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Former Guantanamo Chief Prosecutor Col. Morris Davis on the upcoming military commission trials

Col. Morris Davis

Col. Morris Davis

A previous post reported on the decision by the Supreme Court to allow the military commission trial of Guantanamo detainee, Omar Khadr to proceed next week. Over at the Crimes of War Project, Colonel Morris Davis, the former Chief Prosecutor of Military Commissions, expresses concern about the military commissions proceedings. After a very useful discussion of pending cases and issues, Col. Morris concludes:

If the Obama administration is intent on proceeding with military commissions and at the same time wants to combat the negative perception the term engenders around the world after nearly nine years of ineptitude and failure then it is essential for it to make a genuine commitment to transparency.   No doubt the administration understands that the public’s perception that justice is being done is as important to U.S. national interests as actually doing justice in an individual case.  The public cannot just drop in at Guantanamo and observe the proceedings, so news media coverage is vitally important to inform the world audience.  Excluding the media from the proceedings and conducting them behind closed doors conveys a message that there must be something the United States is trying to hide, even if in truth the closed proceedings are conducted flawlessly.

If the administration recognizes that transparency is imperative to restore the nation’s reputation as the champion of the rule of law its actions so far have tended in the opposite direction and seem likely to have further eroded public confidence in the notion that it is possible to provide justice at Guantanamo.  The Department of Defense banned four veteran journalists from covering military commissions after they published the name of former U.S. Army interrogator Sergeant Joshua Claus in their reporting on his testimony at a hearing in the Khadr case in May.  The Department of Defense had insisted that journalists describe Claus as “Interrogator #1” rather than using his name, but the four journalists declined noting that Claus had already been convicted in a court-martial for abusing detainees at Bagram Air Base, his name had been in the public domain for years in connection with Khadr, and he had done a prior on-the-record interview about his time at Bagram with one of the journalists.  The Pentagon proved its power to enforce its rules by ousting the journalists, but it was a Pyrrhic victory.

The decision to ban the journalists came a few days after all spectators were removed from the courtroom for a closed hearing to play a videotape of Canadian authorities interrogating Khadr at Guantanamo in February 2003.  The interrogation video played in the closed hearing was the same one released publicly by the Canadian Supreme Court in May 2008.  It is available now, as it has been for some time, on YouTube and other internet sites.  Marine Corps Major Jeff Groharing, lead prosecutor in the Khadr trial, assured everyone earlier in the week that “there is no secret evidence in this case.”  Nonetheless, a Department of Defense security officer said all interrogation sessions are classified and ordered the hearing closed to everyone except the parties and essential court personnel with security clearances.  One of Khadr’s longtime Canadian lawyers, Nate Whitling, who was barred from the closed hearing despite having seen the video many times before, was outraged that the Obama administration ignored a diplomatic note from the Canadian government requesting that the video not be used in Khadr’s military commission.  The request was based on a unanimous decision by the Canadian Supreme Court that the involvement of Canadian officials in the interrogation violated Khadr’s rights under the Canadian Constitution’s Charter of Rights and Freedoms.  Whitling said the Obama administration’s disregard of the Canadian request and introduction of the videotape as evidence against Khadr “confirms the USA’s status as an outlaw among the community of nations.

Barring journalists from the island and from the courtroom to safeguard information that has long been available in the public domain while claiming that military commissions version 3.0 provides real justice the world can trust are discordant positions that cannot be reconciled in any sensible manner.  There is a danger that the Obama administration may be in the process of   squandering its last best chance to demonstrate to a skeptical world audience that military commissions can be credible.  From a public diplomacy perspective, the Khadr case is the pick of the litter among the 30 or so detainee cases that may eventually go to trial.  The alleged offenses – murder and attempted murder – are ordinary crimes the public understands.  U.S. service members were present at the scene of the firefight and can provide firsthand accounts of what happened on the day of the incident.  There is a videotape of Khadr and his comrades making IEDs and planting them along a roadway.  This is the one case with traditional charges and traditional evidence that comes as close to the look and feel of an ordinary criminal proceeding as any of the cases at Guantanamo.  Most of the other cases lack significant physical evidence and depend largely on hearsay to construct a connect-the-dots picture of a cook or a courier or a co–conspirator alleged to have provided material support for terrorism.  If there was a single case best suited to put a military commission through its paces in public view to show the world that justice can be done at Guantanamo it was the Khadr case.  Unfortunately, by flexing its muscles to strictly enforce its secrecy rules the administration may have achieved two small victories over the news media while losing the larger war to try to win hearts and minds.

President Obama pledged while campaigning for the White House to “lead by example, not just by word but by deed,” and to restore “our credibility as a nation committed to the rule of law.”  An example can be a positive one or a negative one, and the assumption was Obama meant America would lead by setting a positive example once he was in office.  Only time will tell if that assumption was right.  To achieve these objectives he needs to focus more on deeds and less on words; he has said what many believe are the right things about closing Guantanamo and providing fair trials for detainees, but his administration has been unable to walk the President’s talk.  To restore America’s credibility as the champion of the rule of law the President has to prove that justice at Guantanamo is not a paradox.  He cannot do so while he espouses a vision of military commissions that clings in essential respects to the Bush paradigm.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.