Court To Determine Whether Prosecution Of Two Foreign Nationals Is Proper

NEW YORK – The American Civil Liberties Union will be at Guantánamo Bay this week to monitor the military commission hearings of Canadian national Omar Ahmed Khadr and Yemeni national Salim Ahmed Hamdan. In each hearing, a U.S. military judge will determine whether the commission has proper jurisdictional authority to hear the U.S. government’s case. Khadr and Hamdan are two of only four Guantánamo detainees to face charges since Congress’ 2006 reinstatement of the commissions after the U.S. Supreme Court struck down the system established by the Bush administration.

“The ACLU remains committed to monitoring every military commission hearing at Guantánamo Bay so that their fundamental inconsistencies with both the Constitution and international law are exposed,” said Anthony D. Romero, Executive Director of the ACLU. “The U.S. Government is failing to act in accordance with this nation’s historic commitment to due process and the rule of law.”

Khadr, whose hearing begins today, was 15 when he was captured by U.S. forces in Afghanistan. Now 21, he is charged with murder, attempted murder, conspiracy, material support and espionage. Hamdan, whose hearing is expected to begin on Thursday, is alleged to have served as a personal driver and bodyguard for Osama bin Laden and is charged with conspiracy and providing material support for terrorism.

“In the six years since the first prisoners arrived at Guantánamo, the Bush administration has failed to bring a single military commissions case to trial because it insists on using a system with fatal due process flaws,” said Hina Shamsi, a staff attorney with the ACLU’s National Security Project who will attend the military commission hearings of both Khadr and Hamdan this week. “That one of the first tests of this illegitimate system is the prosecution for war crimes of someone captured as a child shows just how much of a moral and legal failure Guantánamo is.”

The murder charge in Khadr’s case relates to a 2002 incident in Afghanistan in which Khadr is alleged to have thrown a grenade, killing a U.S. soldier. The other charges are based on his alleged links to, and support for, al Qaeda. Among the arguments that Khadr’s lawyers are making in his defense is that the military commissions do not have jurisdiction to try Khadr for war crimes because he was a child when the alleged crimes were committed. 

If the military judge denies Khadr’s lawyers’ motion to dismiss the charges on this basis, Khadr could become the first juvenile to be tried for war crimes in recent times. Khadr’s lawyers also argue that the offenses with which he is charged should be dismissed because they were not violations of the laws of war at the time he is alleged to have committed them. 

Hamdan’s lawyers are similarly challenging the commission’s jurisdiction to try their client’s case on the grounds that conspiracy and material support were not war crimes at the time they were allegedly committed. His lawyers are also asking the court to move Hamdan from the harsh conditions of solitary confinement that, they say, have caused his mental health to decline to the point that it is interfering with his ability to maintain an attorney-client relationship.

A series of reports containing Shamsi’s comments and observations from the hearings will be posted beginning today on the ACLU’s diary on Daily Kos, which can be found at: www.dailykos.com/user/aclu Her posts can also be found on the ACLU’s blog, which is located at: blog.aclu.org

The ACLU, one of four organizations that have been granted status as human rights observers at the military commission proceedings, has observed the tribunals since they began in 2004 and has repeatedly called on Congress and the Bush administration to shut down the U.S. prison at Guantánamo Bay. In May 2007, the ACLU endorsed legislation introduced by Senator Tom Harkin (D-IA) that would shut down the Guantánamo facility and end the practice of indefinite detention without charge for detainees who have been held for as long as six years, often without even knowing the reason for their detention. It would also provide a push for the government to finally charge those detainees it believes are guilty of crimes against the United States.

Additional information about the ACLU’s involvement surrounding the detention of prisoners at Guantánamo Bay can be found online at: www.aclu.org/gitmo