Guantanamo Bay Military Commission Hearing

Ari Cover, a senior associate at Human Rights First is covering the Guantanamo Military Tribunal of detainees Omar Khadr and Ali Hamza Ahmed Sulayman al Bahlul.

Normally a pretrial hearing is a fairly mundane and not all that interesting proceeding to watch. But given the novelty of these commissions, with the rules hardly tested, if at all, it's hard to predict what may occur.

The government alleges that Yemeni citizen al Bahlul is a member of al Qaeda who worked as a media specialist for the terrorist group from 1999 to 2001, creating recruitment and instructional videos, including one glorifying the bombing of the USS Cole. Al Bahlul has been charged with to conspiracy to commit acts triable by a military commission, namely "attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent; and terrorism." But the President military order creating the tribunals only authorizes prosecution of war crimes. Whether conspiracy is recognized as a war crime under the laws of war, however, is a complicated question that remains unsettled.

Al Bahlul already had one rather eventful go round of preliminary hearings back in August of 2004, when inaccurate language translation plagued the day and he expressed the desire to represent himself and made an unclear or unclearly translated reference to his affiliation with al Qaeda and September 11. Al Bahlul apparently still wishes not to be represented by a lawyer. Army reservist Maj. Tom Fleener was recently appointed as al Bahlul's military commission defense lawyer and is in a tricky predicament that many public defense lawyers have found themselves in when their clients decline counsel. Fleener believes it is his ethical obligation to fight for his client's right to self-representation and not go further on any other issues. Military commission rules do not allow for self-representation and the presiding officer in the case, who will decide issues of law, appears disinclined to honor al Bahlul's request. As a second choice, al Bahlul has previously expressed preference for a Yemeni lawyer, a selection that makes perfect sense to Fleener, who told me: "If I was captured by al Qaeda I wouldn't want an al Qaeda lawyer." But military commission rules do not allow for non-American legal representation. These issues will almost certainly have to be confronted on Wednesday.

Canadian citizen Omar Khadr was fifteen years old when he was captured by U.S. military forces in Afghanistan in 2002. He is accused of having thrown a hand grenade that caused the death of an American soldier, Sergeant First Class Christopher Speer of the U.S. Army. Khadr is officially charged with murder by an unprivileged belligerent; attempted murder by an unprivileged belligerent; aiding the enemy; and conspiracy. The charge sheet provides a background describing the immersion of Khadr in the al Qaeda world as a nine- or ten-year-old in Afghanistan and Pakistan.

Trying a person for alleged war crimes committed as a child is unprecedented and disturbing. Khadr's civilian lawyers, Richard Wilson and Muneer Ahmad, say that "there is no record of trial of a juvenile under the age of 18 for war crimes in any tribunal" from Nuremberg until the international tribunals of recent time in Yugoslavia, Rwanda, Sierra Leone or East Timor. The lawyers also pointed out in a letter to the United Nations' Special Representative for Children and Armed Conflict that the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (to which the U.S. is a party) requires that states seek to provide for captured juveniles' physical and psychological recovery and social reintegration. It is galling that the United States has instead chosen to charge this now young man as a war criminal.