The pointlessness of American detention policy in the fiasco formerly known as the war on terror is best exemplified by the peculiarly awful case of Omar Khadr, whose poorly conceived military commission trial appears to have been revivified this week, Khadr, you will recall from my interview with his former attorney Rick Wilson among other places, was captured as a 15 year old child in Afghanistan, after American forces bombed the residential compound he and his family were in., Supposedly Khadr threw a grenade that killed an American soldier and wounded another. Even if true, last I looked, Afghanistan was a war, and soldiers get killed in war without it being a "war crime". Worse, in addition to the United States refusing to give Khadr either belligerant immunity or treat him as a juvenile (we can join Somalia as the only other country so enlightened as to have refused to sign the international treaty dealing with the rights of child soldiers)... Khadr was almost certainly unconscious at the time of the alleged "crime".
Nonetheless, he has spent the last eight years in American custody, and suffered egregious abuse (most civilized people would call it "torture;" since we're Americans and that term doesn't really apply to us, I'll just say "abuse"). And the alleged confessions obtained as a product of torturing a teenager are "the evidence" that the government wants to use.
And this is what alleged "constitutional law
professor senior lecturer and President Barack Obama has decided to make his first case for the not quite fully reformulated military commission trials. (BTW, we're "just weeks away" from hearing if KSM and the premier division terrorists get their trials in civilian courts, particularly in New York City, or if we'll see "one kangaroo fits all" justice).
The military commissions are problematic enough; one look need no further for harsh criticism than former prosecutors in them, such as Darrel Vandeveld (interviewed by me here) or former chief prosecutor Morris "Moe" Davis,.who is not happy with President Obama on this one,
Thus far, the problem for the government with the military commissions has been... the military. Those damned officers, whether defense counsel or prosecutors or judges-- refuse to give the White House the whitewash it has insisted on, and have actually behaved honorably and lawfully (damn them), and other than the case of a man who stood mute, have handed out rather lenient sentencing, and been extremely undeferential to the government's dodgy legal theories. Obviously, we'll have to see what happens in the Khadr case, but there seems no reason to think the military judges will give the government a pass on this one either.
The amazing thing remains just how easy it has been for bastard politicians of both parties to play the fear card on all this, when the numbers belie everything. Even accepting that the 50 or so men slated for lifetime arbitrary imprisonment ("enough evidence to sentence to life imprisonment, but not enough evidence to try!") and that 30 or so men can actually be tried, whether in federal court or in the Bush league commissions, that means of the nearly 800 men to pass through GTMO, nearly 90% shouldn't have been there, a remarkable failure rate... indeed, even in those cases the government has been willing to allow to go to habeas corpus hearing, detainees have won something lke 36 out of 47, or in any event, well over 70%. And yet, most Americans still believe that everyone at GTMO is "a terrorist" (see above re "civilized people"). The rest of the world, of course, doesn't buy anything we say-- to the ultimate detriment of us all, particularly of our countrymen and countrywomen on the front-lines of our ill-conceived conflicts.
Trying a Canadian youth who was almost certainly innocent of what he is accused of and what he is accused of wasn't a crime anyway... isn't going to make any of this better. Not that anyone listens to me, of course. This has been "Tortured Reasoning."