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Khadr: a “trial” by any other name

A spokesman for Prime Minister Stephen Harper said today that the federal government will not seek Omar Khadr’s repatriation, despite the Supreme Court’s ruling last week that the government has and continues to violate Mr. Khadr’s right to life, liberty and security as guaranteed by the Charter of Rights and Freedoms.  According to the Globe and Mail:

Dimitri Soudas, a spokesman for Prime Minister Stephen Harper, told The Canadian Press that government is reviewing what the court said about Mr. Khadr but has not changed its position that he should remain in the United States for trial.

Built into Mr. Soudas’s comment is an assumption that the type of adjudication that the Americans are offering Mr. Khadr can even be called a “trial”, as we commonly understand the term.  But Mr. Khadr — who has been charged with committing war crimes — is facing adjudication by a military commission, a process that has been consistently criticized as being fundamentally flawed.  As University of Toronto law professor Audrey Macklin has said, a trial by military commission “is not a normal trial.”

The military commissions are tribunals established by statute following the 9/11 attacks and the opening of the detention centre in Guantanamo.  They are different from the courts martial which govern the conduct of U.S. military.  They are not part of the federal judiciary, and are not subject to the rules of evidence and procedure which govern the civilian courts.  They are designed, as their critics charged, not to produce justice, but to secure convictions by depriving the accused of the basic due process protections that are constitutionally mandated in civilian courts and courts martial.

The military commissions system has been challenged in the U.S. courts and criticized by human rights groups and scholars since it was first devised by the Bush administration.  Its first incarnation was held to be unconstitutional by the Supreme Court of the United States.  It was subsequently “reformed” through the Military Commissions Act of 2006, though the U.S. Supreme Court subsequently found portions of that Act to be unconstitutional as well.  Shortly after his inauguration, President Obama ordered the immediate suspension of the entire military commissions process out of due process concerns, though he ultimately resurrected them last May and signed into law last October the Military Commissions Act of 2009.

While the 2009 Act is an appreciable improvement over its predecessor 2006 Act, the military commissions process remains flawed in fundamental and significant ways.

First, military commissions suffer from an inherent lack of independence.  As part of the military structure, they are vulnerable to improper executive branch influence and control.  Improper political influence over the commissions during the Bush administration led several military prosecutors to resign in protest.

Second, while the revised legislation makes significant improvements with respect to eliminating the use of evidence derived from torture or cruel, inhuman or degrading treatment (which, under the Bush military commissions, was admissible as evidence), Obama’s legislation still permits the use of substantive information originally derived from torture, if that same information was obtained again by a different set of interrogators who did not engage in coercive tactics.  This provision is to permit the use of evidence obtained by the FBI’s so-called “clean teams” — interrogators who are sent to Guantanamo to re-interrogate detainees who had previously been tortured by the CIA, in order to obtain purportedly “untainted” evidence that could be used in judicial proceedings.

In the case of Mr. Khadr, the prosecution is seeking to introduce evidence obtained from him by an FBI clean-team.  The FBI interrogated Mr. Khadr after he had already been subjected to coercion by intelligence interrogators, including the notorious Sgt. C, who was implicated in the torture and murder of another detainee around the same time he was interrogating Mr. Khadr.  The voluntariness of any statements subsequently made by Mr. Khadr to the clean-team is doubtful.

Third, only non-U.S. citizens are subject to the military commissions process, further supporting the impression that military commissions are a form of second-class justice, which, while too unfair to be used on U.S. citizens, are fine for use on foreign citizens, particularly in cases where the evidence may not survive scrutiny in a civilian court.

Fourth, and importantly in this case, there are no mechanisms in the military commissions process to recognize Mr. Khadr’s status as a juvenile or as an alleged child soldier.  Indeed, Mr. Khadr’s prosecution by military tribunal flies in the face of international convention — no alleged child soldier has been tried for war crimes in an international tribunal since Nuremberg.

It bears noting that not all Guantanamo detainees are being tried by the military commissions process (and in fact, many of them aren’t being tried at all, but that’s for a separate post).  The U.S. DOJ announced late last year that certain detainees will be tried in the federal courts, with all of the protections of the civilian courts.  Mr. Khadr, however, continues to be “tried” in a process that refuses to acknowledge the fact that he was child when his alleged crimes were committed, and will permit introduction of evidence effectively derived from torture.  This is not the type of “trial” Canada should be endorsing or abandoning one of its citizens to.