The Canadian Press/AP
Omar Khadr

Gitmo Trial Suspension Could Portend Facility's Future

January 21, 2009 12:04 PM
by findingDulcinea Staff
A judge has acceded to Obama's request and suspended the trial of a Guantanamo inmate; some anlaysts say the act heralds the facility's future closing.

Judge Suspends Gitmo Detainee's Trial

Army Col. Patrick Parrish, the judge in the case, granted President Barack Obama’s request to suspend the trial of Guantanamo Bay inmate Omar Khadr for 120 days.

The one-sentence written order "has the practical effect of stopping the process, probably forever," said Navy Lt. Cmdr. William Kuebler, Khadr's defense lawyer, according to AP.

President Obama has said he will shut down Guantanamo, and have prisoners tried in the United States instead of the war crimes court that is not subject to the same due process. Analysts consider today’s order the first steps in the process of dismantling the facility. 

Also today, a judge is expected to decide “on a similar motion to suspend the trial of five men charged in the Sept. 11 attacks,” AP reports.

Twenty-one Guantanamo inmates are still facing war crimes charges.

Omar Khadr, 22, a Canadian citizen whose family moved to Afghanistan to join al-Qaida, was captured at age 15 after a battle between alleged al-Qaida members and American soldiers in which he sustained severe injuries and allegedly threw a grenade. He was the youngest terrorism suspect imprisoned at Guantanamo Bay.

Khadr was born in Canada but grew up on an al-Qaida compound in Afghanistan, where he socialized with Osama bin Laden’s children. They were raised to believe that the greatest honor in life was to be a martyr for Islam, and trained as terrorists. Khadr’s brother, who now works for the CIA, explains that attending Afghani terrorist training camps “is, like, for kids here to go to a hockey camp.”

In July, his attorney released a video of his interrogation at Guantanamo with intent to incite Canada to free him. It was the first public video of Guantanamo prisoners, according to the BBC.

Background: Trying to close Gitmo

Amid reports that the incoming administration is already considering which Bush-era laws and policies to roll back or reverse in the days following his Jan. 20 inauguration, President-elect Barack Obama’s policy on the future of Guantanamo Bay has emerged as one of the most controversial and legally challenging.

The Cuba-based detainment center has become a focal point of international criticism for allegations of detainee abuse and an inadequate legal system for prisoners, and has been a symbol of the debate over what constitutes torture and a violation of human rights.

However, recent remarks by EU officials and Australian Prime Minister Julia Gillard signaled a new willingness to participate in the closure of the camp by accepting prisioners that would otherwise be sent to the United States for trial, raising a host of legal concerns.

Since opening in 2002, the military center has held a total of about 750 prisoners, many captured during military campaigns in Afghanistan and Iraq. The facility currently holds 255 prisoners, including 50 that have already been found "not guilty" but have been unable to be repatriated for fear of persecution.

A staple of both campaigns during the presidential election, the closure of Guantanamo Bay has received widespread international support, especially among human rights groups who banded together to issue an appeal to Obama to take action immediately after taking office.

Yet while the intent exists, what has remained unclear is how the new administration could proceed and what would become of the prisoners still awaiting trial, or those deemed too dangerous to release.

Analysis: Questions of how and where

The challenges facing the Obama administration, should it choose to pursue a closure, center on two main obstacles—what kind of system of trials the prisoners should face and where should they be relocated to once the facility is closed.

These challenges appeared so great that after reviewing a Supreme Court ruling that said all remaining prisoners had the right to habeas corpus appeals, former President George W. Bush stated that although he would have liked to close the prison, there was no way to do it any time soon.

Currently, the trial system at Guantanamo requires prisoners to face Combatant Status Review Tribunals—the source of the lack of legal representation of detainees and the camp’s secrecy.

While not complete, early reports about Obama’s plan would send some prisoners back to their countries of origin and require open trials of the prisoners in the United States.

Reports have also included the creation of a possible “terrorism court” to try the remaining detainees, though details of what this would constitute remain unclear.

According to CBS legal analyst Andrew Cohen, these courts would “bring them here to the States and prosecute them in semi-secret terror-law courts, overseen by civilian judges.”

Critics and members of the Bush administration have pointed to the new legal rights possibly awarded to the prisoners, should they be held on U.S. soil, as the largest challenge and deterrent to closing the facility.

Meanwhile, supporters of the closure have expressed doubts about the creation of an entirely new legal system for detainees, arguing that the Guantanamo system has proven that a new legal framework is no substitute for what already exists.

“I think that creating a new alternative court system in response to the abject failure of Guantanamo would be a profound mistake,” Jonathan Hafetz, an American Civil Liberties Union attorney who represents detainees, told The Associated Press. “The last eight years are a testament to the problems of trying to create new systems.”

Further, the question of where the detainees could be held and tried has made Guantanamo’s closure all the more complicated. In addition to opposition to relocation from within the United States, with members of Congress voicing their strong displeasure with plans to move detainees to their respective states, some prisoners face the challenge of having no country to which they may return home.

Notably, a number of Uighur prisoners, members of a predominantly Muslim ethnicity in the west of China, have been found not to be a threat, but have appealed not to return to China for fear of persecution. They were captured in Afghanistan in 2001 while living there as refugees. Few countries have opened their borders to the Uighurs for fear of souring ties with China, however, leaving the United States to house them.

Key Player: Prof. Laurence Tribe

One of the most influential figures in Obama’s plans for what awaits Guantanamo detainees is Harvard Constitutional Law Professor Laurence Tribe. A one-time professor of Obama's in law school, Tribe has become one of the leading architects of Obama’s legal approach to enemy combatants. Charlie Rose hosted a discussion between Tribe and Berkeley Professor John Yoo, one of the leading legal voices in the Bush administration’s handling of enemy detainees.

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