National Post: Guantanamo justice

[tuvor]

With all the attention paid recently to Omar Khadr, it is surprising that more scrutiny hasn't been given to the characteristics of the legal system he is facing. Following the G8 summit in Japan, Stephen Harper pronounced that there is a legal process in the United States and that Mr. Khadr's only option was to navigate his way through that process. But it is impossible for anyone who is familiar with the machinations at Guantanamo Bay to share the Prime Minister's confidence that Mr. Khadr can ever receive anything approximating justice.

The history of the trials at Guantanamo Bay has been nearly as convoluted as Mr. Khadr's own since he arrived there in October, 2002. Originally the Bush administration asserted that it could hold him and anyone else -- American and non-American alike -- that it designated an unlawful combatant; the combatant would have no basis to challenge his detention. The Supreme Court of the United States rejected this view in two cases, Hamdi and Rasul. Writing for the majority in Hamdi, then-justice Sandra Day O'Connor wrote that enemy combatants must be given a "meaningful opportunity" to contest the factual basis for their detentions. Prior to the Rasul and Hamdi decisions, Mr. Khadr had no right to argue that he should be freed.

The Bush administration's response to the Supreme Court's rebuke was to create Combatant Status Review Tribunals (CSRTs). These tribunals, each staffed by three military officers, place the burden on the detainee to disprove that he is an enemy combatant. The tribunals can rely on classified evidence that the detainees are not allowed to see. Even when a detainee is fortunate enough to have a civilian lawyer, the lawyer may not be permitted to examine the classified evidence. The tribunals also eschew the evidence rules of U. S. courts -- allowing, for example, both hearsay evidence and evidence that is the product of torture. Detainees who have prevailed before the CSRT have simply been sent back to another panel until the Bush administration received what it wanted -- a finding that a detainee was an enemy combatant and could be held indefinitely. Numerous individuals who have been involved in the running of the CSRTs have stated that the tribunals are rigged and subject to political meddling.

Unsurprisingly, the Supreme Court of the United States ruled in June in the Boumediene case that the CSRTs are an inadequate substitute for detainees' rights to habeas corpus. It cannot be denied that despite being held in Guantanamo for nearly six years, Mr. Khadr has never been able to meaningfully challenge President Bush's unilateral determination that he is an enemy combatant.

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http://www.nationalpost.com/news/world/story.html?id=670416

[IntravenousDemilo]

1. I do believe I was watching something about this on TV the other day, maybe on CPAC.

Or maybe it was Newsworld. Anyway, some Conservative fellow kept calling Boumediene "Buddha-mean".