The United States faces severe problems in attempting to avoid federal trials for Guantánamo Bay detainees. The very first case is that of Omar Khadr, a Canadian now aged 23. He was inducted by his father into al-Qaeda at the age of 15; was seriously injured in a battle with U.S. forces in Afghanistan; and has spent eight years in prison. His military trial started at Guantánamo a few weeks ago but was halted when his lawyer was taken ill. Mr. Khadr had already been charged at the time President Obama froze the military commissions, in January 2009. So he remains in the military system. The difficulties are legal and political. The charge is that Mr. Khadr made roadside bombs and threw a grenade, which killed U.S. Sergeant Christopher Speer. But the defence holds that his ‘confessions' of being a terrorist and throwing the grenade are invalid, because he was terrorised by his interrogators' fictitious stories about a young boy who was gang-raped and killed in prison. His initial questioning took place when he was sedated and shackled to a bed. The U.N. says the legality of the trial is doubtful and it could set a dangerous precedent for all child soldiers.
The military commissions themselves are highly questionable. The U.S. Supreme Court struck them down in 2004 but Congress, pressured by the Bush administration, passed the Military Commissions Act 2006, which enables the President or the Secretary of Defense to declare anyone in the world an enemy combatant. It allows no habeas corpus challenge and admits evidence obtained by torture before December 30, 2005. Mr. Obama has never ruled out using the commissions. Much of the relevant information is already public. Secondly, military trials will continue to taint American democracy. Thirdly, the federal courts may well be better at conducting the trials. Since September 11, 2001, they have convicted more than 300 people on terrorism-related charges while military tribunals have convicted three, of whom two were later released. Unsurprisingly, the administration is considering a deal whereby Mr. Khadr pleads guilty to lesser offences and gets a light sentence — but that is only possible in a federal court. In sum, the Obama administration can act like a civilised democratic government and order a federal criminal trial, or it can return to the wild, lawless ways of the Bush administration and abandon Mr. Khadr to the wolves.
Keywords: Guantánamo Bay trials