{"id":543155,"date":"2010-04-26T06:00:15","date_gmt":"2010-04-26T10:00:15","guid":{"rendered":"http:\/\/washingtonindependent.com\/?p=83108"},"modified":"2010-04-26T06:00:15","modified_gmt":"2010-04-26T10:00:15","slug":"will-military-commissions-under-obama-differ-from-the-bush-era","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/543155","title":{"rendered":"Will Military Commissions Under Obama Differ From the Bush Era?"},"content":{"rendered":"<div id=\"attachment_83111\" class=\"wp-caption alignnone\" style=\"width: 490px\"><a href=\"http:\/\/washingtonindependent.com\/wp-content\/uploads\/2010\/04\/obama-khadr.jpg\"><img loading=\"lazy\" decoding=\"async\" class=\"size-large wp-image-83111\" title=\"President Obama and Omar Khadr \" src=\"http:\/\/washingtonindependent.com\/wp-content\/uploads\/2010\/04\/obama-khadr-480x331.jpg\" alt=\"President Obama and Omar Khadr \" width=\"480\" height=\"331\" \/><\/a><\/p>\n<p class=\"wp-caption-text\">President Obama and Omar Khadr (WDCpix, The Toronto Star\/ZUMApress.com)<\/p>\n<\/div>\n<p>Starting this week, something will happen that was never supposed to  when Barack Obama took the oath of office. A military commission meeting  at Guantanamo Bay nearly five months after Obama said the detention  facility would cease to exist will hold a pre-trial hearing for Omar  Khadr, a Canadian citizen captured by U.S. forces in Afghanistan in 2002  and accused of throwing a grenade that killed a U.S. soldier. At the  end of the hearing, it will likely be possible to tell whether Obama&#8217;s  changes to the military commissions created and advocated by George W.  Bush &#8212; and most congressional Republicans &#8212; are substantive or  cosmetic.<\/p>\n<p><div id=\"attachment_2848\" class=\"wp-caption alignleft\" style=\"width: 140px\"><img loading=\"lazy\" decoding=\"async\" class=\"size-full wp-image-2848\" title=\"nationalsecurity\" src=\"http:\/\/washingtonindependent.com\/wp-content\/uploads\/2008\/08\/nationalsecurity.jpg\" alt=\"Image by: Matt Mahurin\" width=\"130\" height=\"130\" \/><\/p>\n<p class=\"wp-caption-text\">Image by: Matt Mahurin<\/p>\n<\/div>\n<div class=\"floatButtons\">\n<div style=\"float: left; margin-right: 10px; margin-bottom: 10px;\"><script src=\"http:\/\/digg.com\/tools\/diggthis.js\" type=\"text\/javascript\"><\/script><\/div>\n<div style=\"float: left; margin-bottom: 10px;\"><script type=\"text\/javascript\"\n\tsrc=\"http:\/\/d.yimg.com\/ds\/badge2.js\"\n\tbadgetype=\"square\">\n\t<?php the_permalink(); ?><\/script><\/div>\n<div style=\"float: left; margin-right: 10px;\">\n\t<script type=\"text\/javascript\">\ntweetmeme_source = \"TWI_news\";\ntweetmeme_service = \"bit.ly\";\n<\/script> <script src=\"http:\/\/tweetmeme.com\/i\/scripts\/button.js\" type=\"text\/javascript\"><\/script>\n<\/div>\n<div style=\"float: left;\"><a name=\"fb_share\" type=\"box_count\" href=\"http:\/\/www.facebook.com\/sharer.php\">Share<\/a><script src=\"http:\/\/static.ak.fbcdn.net\/connect.php\/js\/FB.Share\" type=\"text\/javascript\"><\/script><\/div>\n<\/div>\n<p>Khadr, a teenager when initially detained, has  been held for nearly half his life at a facility that the Obama  administration has pledged to close. He will be tried in a legal venue  that Obama rejected as a Senator and embraced, in reformed fashion, as  president. What happens this week at Guantanamo will determine whether  Obama&#8217;s pledge that the new, revised military commissions can deliver  internationally-recognized justice is meaningful: the pre-trial hearing  in Khadr&#8217;s case will provide the first in-depth examination of whether  Khadr&#8217;s treatment in U.S. custody amounts to torture; will determine  whether prosecutors can use evidence against him acquired under abusive,  coercive circumstances that civilian courts would never allow; and  whether additional statements made by Khadr in subsequent and  less-coercive circumstances are fair game or inextricable from his  overall abuse.<\/p>\n<p>On November 7, 2008, three days after Obama won  the presidency, Khadr&#8217;s military lawyers introduced a motion to suppress  evidence commission prosecutors sought to produce that came from  Khadr&#8217;s interrogations in Afghanistan and Guantanamo Bay. Under the  commissions, evidence obtained under torture cannot be used, but the  scope of the commissions&#8217; allowance for coercively-obtained testimony  remains largely unclear. Since their creation in 2002, the commissions  have only produced three convictions, two of which were the result of  plea deals; the Supreme Court has twice ruled that the commissions  provide insufficient due process rights for defendants.<\/p>\n<p>Khadr&#8217;s  attorneys charge that the teenaged detainee underwent over 40  interrogations in 2002 at Bagram Air Field in Afghanistan after being  shot and suffering shrapnel wounds in a battle with U.S. forces in July  2002 in the eastern Afghan province of Khost. During those  interrogations, Khadr was given limited pain medication; had his head  hooded while &#8220;interrogators brought barking dogs into the interrogation  room&#8221;; was placed in stress positions despite his gunshot and shrapnel  wounds; and was threatened with rape. After 90 days, U.S. military  officials flew him to Guantanamo Bay, where he was again placed in  stress positions; had his hair torn out; threatened again with rape; and  was even used as &#8220;a human mop&#8221; by military police after he urinated on  the floor of his interrogation room after being placed in stress  positions for a prolonged period of time.<\/p>\n<p>Information that  emerged from those interrogation sessions &#8212; basically, what Khadr told  his interrogators while being tortured &#8212; comprises a substantial  portion of the prosecution&#8217;s case against him. It isn&#8217;t clear how much  of the government&#8217;s case against Khadr relies on what he told his  interrogators after his abusive treatment. The government will call  witnesses who will attest to seeing Khadr throw the grenade that killed  Sgt. First Class Christopher J. Speer. (At least one, <a href=\"http:\/\/www.cbc.ca\/world\/story\/2008\/02\/06\/khadr-morris.html\">Sgt.  Layne Morris, has come forward in the press<\/a>.) And the government  will probably also seek to introduce statements Khadr made that it  maintains were not the result of torture. But Khadr&#8217;s lawyers contended  in their November 2008 motion that &#8220;all statements made by Mr. Khadr  subsequent to any statement he made in response to coercive  interrogation must also be suppressed as fruit of the poisoned tree,&#8221; a  legal concept holding that the taint of improperly acquired evidence  extends to any secondary evidence it produced.<\/p>\n<p>It&#8217;s a crucial  question for the military commissions. Every detainee who tried before  the commissions encountered periods where they were harshly interrogated  but then later faced less-coercive interviews, &#8220;so this is a real test  case for the viability of other prosecutions,&#8221; said David Frakt, a  lieutenant colonel in the Air Force Reserve judge-advocate general corps  who used to be defense counsel for Mohammed Jawad, another juvenile  held at Guantanamo Bay. For instance, if Khalid Shaikh Mohammed and the  other 9\/11 conspirators who were initially held in undisclosed CIA  prisons are brought back to military commissions, Khadr&#8217;s hearing may  determine whether everything they have told their interrogators &#8212; even  long after being abused &#8212; is inadmissible before the commissions. To  Jennifer Turner, a human-rights researcher with the ACLU who will travel  to Guantanamo Bay to observe the Khadr hearing, if the judge rules that  Khadr&#8217;s statements to his interrogators can be used against him, &#8220;it  will show the military commissions under Obama are no different than  those under Bush.&#8221;<\/p>\n<p>Indeed, it is because of Obama that the  issue has remained unsettled. Upon taking office in January 2009, Obama  issued executive orders banning enhanced interrogation; vowing to close  Guantanamo Bay within a year; and suspending the military commissions  while his administration decided how it would deal with the  approximately 240 Guantanamo detainees it inherited from the Bush  administration. That suspension, coupled with Senator Obama&#8217;s objections  to the commissions on constitutional grounds, raised hopes among civil  libertarians that the administration would ultimately scrap its  predecessors&#8217; ad hoc approach to terrorism prosecutions.<\/p>\n<p>Instead,  <a href=\"http:\/\/www.whitehouse.gov\/the_press_office\/Remarks-by-the-President-On-National-Security-5-21-09\/\">in  a May 2009 speech<\/a>, Obama pledged to reform the commissions, not  abandon them. Among the reforms he promised was to &#8220;no longer permit the  use of evidence &#8212; as evidence statements that have been obtained using  cruel, inhuman, or degrading interrogation methods.&#8221; By October,  Congress passed and Obama signed <a href=\"http:\/\/armedservices.house.gov\/pdfs\/BillLanguage\/Bill_Language100709.pdf\">the  Military Commissions Act of 2009.<\/a> Section 948(r) indeed enshrines  the ban on statements made owing to those methods. But it gives judges  leeway to enter into evidence &#8220;other statements of the accused&#8230; only  if the military judge finds&#8221; that they are indeed voluntary.<\/p>\n<p>And  that&#8217;s where Khadr&#8217;s defense motion comes in. While there have been at  least two other pre-trial procedural hearings since Obama opted to  retain the commissions, none have had the significance of Khadr&#8217;s. There  are ten days&#8217; worth of hearings scheduled for the prosecution and the  defense to tussle over the motion to suppress and what the Military  Commissions Act of 2009 requires for it. The Washington Independent will  be at Guantanamo Bay for the proceedings, and will provide frequent  reports &#8212; in blog posts, stories, photo and video &#8212; about what they  determine for the future of the military commissions in the age of  Obama.<\/p>\n<p>There are at least two additional complicating factors.  First is that while the commissions have a new law authorizing them, the  military has yet to issue a new manual for officers of the court to  understand how the procedures under the 2009 law are to be implemented.  &#8220;If you go to <a href=\"http:\/\/www.defense.gov\/news\/commissions.html\">the  website for the military commissions<\/a>,&#8221; noted Air Force Col. Morris  Davis, a former chief prosecutor for the commissions, &#8220;there is no  information on who is heading up the military commissions, no  information about a new Manual for Military Commissions that implements  the changes Congress made in late 2009, and no information about revised  Rules for Military Commissions.&#8221; As a result, Davis said, &#8220;it appears  we&#8217;re still trying to lay the tracks after the train has left the  station, which is no way to run a railroad or a criminal justice  system.&#8221;<\/p>\n<p>Maj. Tanya Bradsher, a spokeswoman for the commissions,  said that &#8220;a revised Manual will be issued shortly,&#8221; but added that the  manual was less important than the law. &#8220;The standards for the  admissibility of statements are set out in the Military Commissions Act  of 2009, and any procedural or evidentiary rules cannot change the  standards set by Congress,&#8221; Bradsher said.<\/p>\n<p>Frakt said it isn&#8217;t  that simple. &#8220;The military commission rules of evidence have been  substantially changed by the Military Commissions Act of 2009,  particularly with regard to the standards to be applied to determining  the admissibility of a statement,&#8221; he said. &#8220;The Manual will have  significant additional guidance and discussion, because it&#8217;s the  implementing regulations for this. It&#8217;s possible the judge will gather  all the evidence and simply sit around and wait for the Manual to come  out before issuing a ruling.&#8221; In terms of actually arguing the motion,  though, &#8220;it&#8217;s still unclear what rules apply.&#8221;<\/p>\n<p>A second complication  is how much detail about Khadr&#8217;s treatment a judge will allow the  outside world to see. There has never before been a two-week court  session to examine, in large part, whether the treatment a detainee  suffered in a U.S. facility amounts to &#8220;cruel, inhuman or degrading  treatment,&#8221; the standard in the Military Commissions Act for  inadmissibility. &#8220;This will be one of the first really in-depth looks  into the treatment of detainees in the early days of the war on terror,&#8221;  Frakt said. &#8220;There are going to be a lot of press and observers [at  Guantanamo]. It&#8217;s going to be a nightmare for the government if they  have to constantly close the hearing to talk about things that are  embarrassing to the government.&#8221;<\/p>\n<p>Davis, the former chief  military commissions prosecutor, holds little sympathy for Khadr, whom  the government says a videotape shows emplanting improvised explosive  devices in Afghanistan. (The video does not implicate him in the death  of Sgt. Speer.) But he said his problem was with the Obama&#8217;s claim that  it needs to keep the options of both federal courts and military  commissions to handle terrorism prosecutions, a claim that struck him as  both politically motivated and unjust.<\/p>\n<p>&#8220;It\u2019s too bad that  the Obama administration is back on its heels in a defensive crouch,  afraid to go toe-to-toe with the Cheney right-wing fanatics, and  continues to try to have it both ways with the option of military  commissions and trials in federal courts still in play,&#8221; Davis said.  &#8220;Hopefully, at some point they\u2019ll grow a pair and make a choice, but  this double standard where we\u2019ll give a detainee as much justice as we  can and still ensure we get a conviction shows how hypocritical we are  when it comes to the rule of law. We talk the talk, but we don&#8217;t walk  the walk.&#8221;<\/p>\n","protected":false},"excerpt":{"rendered":"<p>President Obama and Omar Khadr (WDCpix, The Toronto Star\/ZUMApress.com) Starting this week, something will happen that was never supposed to when Barack Obama took the oath of office. A military commission meeting at Guantanamo Bay nearly five months after Obama said the detention facility would cease to exist will hold a pre-trial hearing for Omar [&hellip;]<\/p>\n","protected":false},"author":4314,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-543155","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/543155","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/4314"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=543155"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/543155\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=543155"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=543155"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=543155"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}