Monday, June 9, 2008

News from Guantánamo

IntLawGrrls have posted often on matters related to Guantánamo, but we've not checked in recently. So here's a roundup of what's been happening:

Detainees Arraigned in Military Commissions

On Thursday, June 5, Khalid Sheikh Mohammed and four other detainees were arraigned before the military commissions at the Guantánamo Detention Center for their alleged participation in the September 11, 2001, attacks on the United States. The prosecution seeks the death penalty on the charges, which include conspiracy, murder in violation of war, attacking civilians, and material support for terrorism. The five detainees were among twelve detainees who had been held in secret CIA "black sites" prior to their transfer to Guantánamo in September 2006. U.S. government officials have admitted to waterboarding Mohammed while in secret custody; the other four arraigned detainees were also subject to torture and coercive interrogation techniques, including sleep deprivation, stress positions and forced nudity. The arraignment marks the first public glimpse of the alleged "masterminds" of 9/11 and over fifty members of the domestic and international media were permitted to view the proceeding, which was characterized by long conversation between the five detainees, much to the concern of defense counsel who believe the judge let the conversation inhibit the voluntary choice of legal counsel. Army Major. Jon Jackson, who represents one of the detainees, testified that his client, Mustafa Ahmad al-Hawsawi, had clearly been "intimidated" and pressured by Mohammed to disavow his military attorney and to represent himself. Judge Ralph Kohlmann, who had previously denied all defense requests to delay the arraignment, postponed ruling on al-Hawsawi's and another detainee's requests to represent themselves, but ruled that the other three detainees had "knowingly and voluntarily" refused legal counsel. (credit for above photo of Gitmo courtroom)

Military Commissions Judge Steps Down

Military Judge Peter E. Brownback III, who has been presiding over the commission case of Omar Khadr (the young Canadian alleged to have killed an American soldier in Afghanistan; prior posts here), stepped down and will be replaced by Col. Patrick Parrish. The Pentagon has not explained the reason behind the move. Judge Brownback had threatened to halt proceedings if the prosecution failed to release Khadr's detention records. He also had resisted setting a trial date until the classified prison log, which allegedly demonstrates that Khadr was abused and coerced into making incriminating statements, is provided to the defense. Brownback's rulings have not always been in favor of Khadr, however; for example, he declined to apply child soldier status to Khadr. But defense counsel felt that Judge Brownback was fair and was making an effort to make the process fair despite the severe shortcomings of the commission system.

Canada's High Court Denounces Guantánamo Detentions

On a related topic, in a case originally brought by Omar Khadr in the Canadian court system, on May 23 the Supreme Court of Canada unanimously ruled that the detention and interrogation of Omar Khadr at Guantanamo violated U.S. domestic law and international human rights obligations to which Canada is a party, and thus required Canada to disclose to Khadr certain documents in its possession. Disagreeing with the Canadian government, the Court concluded that the Canadian Charter of Rights and Freedoms did apply at Guantanamo. The Canadian Court found that because the U.S. Supreme Court had already ruled in Rasul v. Bush (2004) and Hamdan v. Rumsfeld (2006) that the detentions violated U.S. domestic law and international law. Thus it wrote in paragraph 24 that the principles of comity, which would normally justify deference to foreign laws and might preclude application of the Charter, do not apply in the case:
'The violations of human rights identified by the United States Supreme Court are sufficient to permit us to conclude that the regime providing for the detention and trial of Mr. Khadr at the time of the CSIS interviews constituted a clear violation of fundamental human rights protected by international law.'
Under section 7 of the Charter, which states that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice," the Canadian government was required to disclose to Khadr's counsel records of interviews and information given to U.S. authorities by Canadian officials who interrogated Omar Khadr at Guantánamo. The Court based its decision on the principles articulated by the Stinchcombe case, which held that persons whose liberty is a risk as a result of being charged with a criminal offence are entitled to disclosure of the information in the hands of the Crown under section 7 of the Charter. The Court also held that its ruling did not necessarily mean that Khadr and his attorneys were entitled to unredacted copies of all documents. The trial judge presiding would review the materials and decide which documents fall within the scope of the disclosure obligation.

1 comment:

Diane Marie Amann said...

Deborah N. Pearlstein adds some insights on the arraignment at