Khadr Arraigned in Military Commissions Hearing

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November 14, 2007
Story by Army Spc. Shanita Simmons
JTF Guantanamo Public Affairs

GUANTANAMO BAY, Cuba, Nov. 14, 2007 – A Canadian-born detainee held in Guantanamo Bay, Cuba, since his capture on the battlefield in Afghanistan at age 15 was arraigned by a military commission on Nov. 8.

In this courtroom sketch reviewed and cleared for release by U.S. Military officials, Guantanamo detainee Omar Khadr, far left, sits flanked by two civilian and one military lawyer, inside the courtroom during a U.S. Military Tribunal arraignment, at Guantanamo Bay, Cuba, June 4, 2007. The military judge, depicted at far right, dismissed charges against Khadr, saying the matter is outside the jurisdiction of the new military tribunal system. Khadr was captured in Afghanistan in 2002 and is accused of multiple violations of the law of war, including murder of an American soldier.

During the arraignment of Omar Khadr, a 21-year-old detainee who was captured in Afghanistan in 2002, his attorneys deferred the opportunity to enter a plea for the charges against him or to raise any motions until a later date.

Earlier this year at a June 4 hearing, Khadr’s combatant status became a critical issue after Military Commissions Judge Army Col. Peter Brownback dismissed his charges concluding that the court lacked personal jurisdiction over the accused. The judge’s ruling was based on the failure of the Combatant Status Review Tribunal (CSRT) to properly establish whether Khadr is an “unlawful” enemy combatant, which Judge Brownback believed was a prerequisite to the military commission’s ability to exercise personal jurisdiction.

During a period before the Military Commissions Act was promulgated, the CSRT reviewed Khadr’s case and determined he was an enemy combatant without considering if he was unlawful. According to Brownback’s interpretation of the Act, this failure to make an unlawful status determination prevented the military commission from having personal jurisdiction to hear the case. The United States Court of Military Commissions review reversed the military judge’s ruling that he lacked authority to hear evidence on, and ultimately decide, the matter of Khadr’s “unlawful enemy combatant status” under the provisions of the MCA The CMRC ruling caused Judge Brownback to revisit the issue of jurisdiction during the Nov. 8 hearing.

Navy Lt. Cmdr. William Kuebler, defense counsel for Omar Khadr, answers questions during a press conference held immediately after Khadr's arraignment, Nov. 8. Khadr was captured in Afghanistan in 2002 and is accused of multiple violations of the law of war, including murder of an American soldier.

Although the prosecution was prepared to present evidence establishing that Khadr is an “alien unlawful enemy combatant.” Judge Brownback concluded that the prosecution’s presentation of evidence was unnecessary since the CMRC’s ruling allowed the court to presume that personal jurisdiction exists until it is challenged by the defense in future proceedings.

Charges against Khadr include murder of a U.S. Soldier and attempted murder of U.S. military or coalition forces by making and planting improvised explosive devices in violation of the law of war. Khadr also faces charges of spying and conspiring with Osama bin Laden and other Al Qaeda members. Throughout the proceedings, the defense reiterated its belief that Khadr cannot receive a fair trial under the military commission’s process.

During the hearing, the defense engaged in voir dire, "a questioning," of the military judge to determine his qualifications and to reveal any reasons that may disqualify him from presiding over the case. After the voir dire, Defense Chief Counsel Lt. Cmdr. William C. Kuebler challenged Brownback’s ability to serve as judge based on his lack of impartiality in light of political pressures from Washington.

Although the judge denied the challenge, Kuebler stated he was uncertain of judge Brownback’s qualifications and his ability to effectively preside over the case. “I thought the judge’s voir dire is significant in showing to the appellate court at some point and certainly to the interested public just how much pressure the Department of Defense and others are under to get this process moving,” said Kuebler.

During a press conference following the hearing, Kuebler said he was pleased with the outcome of the hearing. Brownback set the deadlines to file motions in Khadr’s case for Dec. 7, 2007 and Jan. 11, 2008, and no trial date has been scheduled.

The next commission hearing is scheduled for Dec. 5, when Military Commissions Judge Navy Capt. Keith Allred will hear the case of Salim Ahmed Hamdan, a Yemeni suspected of working as Bin Laden’s personal driver and bodyguard. In June, Allred dismissed charges against Hamdan because he had not been designated as an “alien unlawful enemy combatant.”