Alex Neve

It is not my role to “second-guess” military authorities here as to the security measures they feel need to be put in place.

With these words, Judge Patrick Parrish, who is presiding over the military commission hearings and trial in the case of Omar Khadr, starkly illustrated the fundamental concern that the proceedings at Guantánamo Bay lack the level of independence that international human rights standards expect and require of a fair trial.

I have just wrapped up observing the first week of hearings as part of a pre-trial motion that Omar Khadr’s legal team has brought forward in advance of his trial, expected to commence in July. There was a sizable crowd of journalists, other NGO observers, military and government officials — even Canadian government representatives. But none of us, of course, were supposed to be here. President Obama’s January 2009 promise to close Guantánamo Bay was clear — at least we thought so at the time. But the promise was broken, and instead of moving to abolish military commissions, by October 2009 new legislation had instead been adopted, reforming them.

And now here we are, with Omar Khadr’s case going forward as the first to come to trial since Obama came to power. It defies understanding — but the case of a child soldier who alleges a long litany of torture, is the case the Obama administration is using to show the world that things have improved at Guantánamo.

What is at stake in the hearings currently underway is very important. Omar Khadr has, of course, made detailed allegations of a myriad of ways he was subject to torture, ill-treatment and coercion when he was interrogated and interviewed by over 30 police, security and military officials, more than 100 times, between 2002 and 2004. He is, therefore, seeking to have the confessions and statements that were obtained from him at the time excluded from the trial.

But much is stacked against Omar. First off there was the bizarre spectacle of the rules for the commission hearings. The legislation for the new military commissions was adopted six months ago, but without the detailed rules that lay out procedure, deal with questions about evidence, talk about torture and coercion, and much more — the hearings really can’t even get underway. The rules were not finalized and approved by US Defence Secretary Robert Gates until the evening before the opening of the hearing. Omar’s lawyers were not given a copy until less than an hour before they were to be in court. (They were, at least, given the morning to read and digest.) Think of it — the judge is employed by the military. The prosecutors are with the military. And the military is — right up to the very last minute — finalizing the governing rules. Sure seems all to be pointing in one direction.

Then there is the question of witnesses. Omar did not, of course, have anyone with him while he was being questioned — at Baghram Air Base in Afghanistan or at Guantánamo — no parent, relative or friend; no lawyer; no Canadian consular official. The only people who can, therefore, potentially corroborate what Omar alleges about torture and mistreatment worked for the US government.

But he doesn’t even know who they were; let alone how to track them down. Only the government does. The government allowed Omar’s lawyers to interview only three of the more than thirty interrogators in advance of the hearings. And there are nine interrogators who the government is calling as witnesses over the course of these pre-hearing motions. But there are close to twenty others who the government will not disclose to the defence and most certainly will not — at this stage — allow them even to be interviewed, let alone potentially testify.

It certainly leaves Omar at considerable disadvantage. And this is not just theoretical. The defence did manage to get access to one witness who the government was trying to keep secret and what he had to say turned out to be crucial. He confirmed that while he did not include it in his written report, someone did indeed threaten Omar with the possibility of being raped in the course of an interrogation session that he was part of. That is precisely what Omar has said happened.

But for me, in many respects, the clearest sign that independence and fairness are in short supply here came in those few words: I will not second-guess. Omar had been present for the first day of hearings, but was not there for the second. Apparently on day two he experienced pain associated with the shrapnel still embedded in both of his eyes. When military officials forced him to put on tight-fitting “eye and ears” goggles, with opaque lenses and tight ear muffs, before he could be transferred from the prison camp to the courtroom in a windowless van, Omar balked. He said it was painful and humiliating and that he would not do it. There was also some suggestion that this was a sudden and unexplained change in protocol.

There were various defence witnesses prepared to testify about this on Omar’s behalf, including a retired Brigadier General who is a child psychiatrist and physician, has spent considerable time with Omar and had an opportunity to carry out a detailed examination of him during a recess. The judge would have none of it. It wasn’t his role, he emphatically stated. He would not second-guess the military officials as to what measures they wanted to use while transporting prisoners.

When Omar was finally talked into coming to court that afternoon, he was in visible pain and cried often during the proceedings. The judge did not even acknowledge his discomfort. He showed no interest in understanding whether there might be an impediment to an accused in his courtroom being able to participate meaningfully in the hearing. He showed no interest in inquiring as to whether there had been any arbitrary practices employed during transport to and from his hearing room. He was not going to “second guess.”

And that is where it all goes so terribly wrong at Guantánamo Bay. For what is required is precisely that, a judge who feels equipped and prepared to “second guess” anyone about anything related to the proceedings, the charges, the evidence and certainly the treatment and well-being of detainees. For that is the very essence of the role of a judge — to scrutinize and inquire: to second-guess.

We do not know where things will stand at the end of these pre-trial motions. Will the prosecution feel emboldened? The defence bolstered? Will any of that change the dynamics around the possibility of a plea deal being reached that avoids Omar Khadr going to trial? That remains unknown— all that is certain at this point is that the case proceeds.

And then there continues, of course, to be the question of the Canadian government’s position. The unwillingness of the government to go to bat for Omar is as entrenched as ever. The refusal to seek his repatriation to Canada is most certainly unshaken. But worse, we have not heard a word of concern about the many ways that Omar says he was tortured in Afghanistan and Guantánamo; nor about the lack of fairness and independence of the military commissions themselves. The government characterizes their position as simply remaining neutral and staying out of things while justice runs its course for Omar at Guantánamo Bay. But there is nothing neutral about the government’s silence and inaction.

Quite the contrary, the silence and inaction sends a very clear, very loud message. It is a message that must change.

Alex Neve is a lawyer, with a Masters Degree in International Human Rights Law from the University of Essex in the United Kingdom. He has served as Secretary General of Amnesty International Canada’s English branch since 2000. In that role he has carried out numerous human rights research missions throughout Africa and Latin America as well as within Canada.