Choosing a Court

More than seven years after U.S. forces picked up a 15-year-old boy in a remote Afghan town and accused him of throwing a grenade at a U.S. soldier, the U.S. government appears to be on the verge of deciding where to give him his day in court.

The boy, Omar Khadr – now a 23-year-old man with a full beard – looked on passively from his seat in Military Courtroom 2 at Guantanamo Bay this morning, as Navy Captain John Murphy, the chief prosecutor, told the court that the Department of Justice was reviewing Khadr’s case and expected to make a “forum decision” by November 16.

Later at a press conference, Murphy said that the Department of Justice had referred 40 military commission cases to federal prosecutors for their review in case the administration decided to pursue the cases in federal courts. If Khadr’s case is transferred to federal court, it would be heard in the District of Columbia, he said.

Defense attorneys Barry Coburn and Kobie Flowers appeared for the first time on behalf of Khadr today. The attorneys, both of whom previously served as federal prosecutors, say that they are “effectively at the beginning” of digesting the complex details of the case. Prior to actually trying the case in either a military commission or a federal court, they would need to visit “the alleged crime scene” in Afghanistan and develop their arguments after wading through thousands of pages of dense legal documents, they said.

The defense attorneys refused to give a time table for this process, though experts said that it could take them as long as 6 months to a year.

And so another hearing on Khadr’s status ended with no discernible progress. After the hearing, defense attorneys, court observers and journalists prepared to climb aboard a military transport plane back to the mainland. And Khadr, who celebrated his 23rd birthday at Guantanamo on September 19, went back to the detention facility.

The Defense Attorney Shuffle

Navy Lieutenant Commander William Kuebler, who had served as Khadr’s military defense attorney since early 2007, was officially dismissed from the case this morning.

After confirming that Khadr no longer wanted Kuebler, a uniformed, military lawyer, to represent him, the judge gave Kuebler permission to exit the courtroom, ending more than two years of work on the case.

Longtime commission-watchers said they believed that Coburn and Flowers are the 10th and 11th attorneys to represent Khadr.

In her book, “Guantanamo’s Child: the Untold Story of Omar Khadr,” Michelle Shephard writes that detainees have control over so little in their lives that choosing their own counsel may be the only chance they get to exercise their will.

It is now up to Coburn and Flowers to try to extricate Khadr from the legal anarchy that has forced him to serve more than 7 years in detention without any meaningful judicial review.

As the Toronto Star wrote on June 5, 2007, “Releasing [Khadr] into Canadian custody, with a bond to keep the peace, should not outrage America’s sense of justice, cheapen Sgt. Speer’s death or bring the law into disrepute. What it would do is put an end to a travesty of justice.”

Can I Take a Peek at What You Wrote?

Another window into the strange, make-it-up-as-you-go-along military commission system was provided during the 30-minute hearing on Omar Khadr’s case this morning.

Defense Attorney Coburn told the court he was concerned about the detention facility’s practice of “scanning” the notes that a detainee records on paper while speaking to his attorneys.

Navy Captain John Murphy, the lead prosecutor, told the court it was standard practice for the guards to “peruse” written material after a detainee spoke with his attorneys “for force protection.” The “quick scan” is intended to see if the detainee has written “a specific threat” against a guard, for example, Murphy said.

Coburn told the court that he believed this violated “attorney-client” privilege and notified the judge that it might be an issue he would explore in later hearings. The judge then asked Coburn to detail “his experience” in federal maximum security prisons with regard to detainees’ notes. “Notes like that are usually kept in the cell with an inmate and are protected by the [attorney-client] privilege,” Coburn said.

The incident, which ended with all the parties agreeing to work together to resolve it in an amicable way, was a small reminder of how “green” this process is.

Even more than seven years after the detention facility at Guantanamo was opened, it is not clear how far basic protections like attorney-client privilege extend. And the military system, unlike the federal courts, has precious little comparable experience to fall back on. As a result, every issue – however small – must be openly debated and new precedent must be hammered out. Meanwhile the years are passing and the chances that justice will be served in a timely fashion (a key legal protection in federal and military courts) seem ever-more remote.

David Danzig is the Deputy Program Director at Human Rights First