GUANTANAMO BAY — Forgive a post from an exhausted blogger, but I figure I should say something about the stakes of the pre-trial hearing for Omar Khadr’s military commission. It’s the subject of my preview piece for the Washington Independent, so consider this post to be a deeply distilled version of that. (Hey, thanks, Bmaz.) Basically, I fear we in the press have done a pretty poor job of capturing for you what’s at stake.
Khadr’s attorneys are here to get a judge to consider a request to remove from the government’s case against Khadr any statement he made while in Guantanamo as inherently coerced. That goes for whether it was made directly after he was ill-treated or not — fruit of the poison tree and all that. It’s a big deal. If the judge agrees to suppress Khadr’s statements, then every detainee before the commissions has a good chance of getting his statements suppressed. And that means the government will have a much tougher time obtaining convictions in the commissions. Since obtaining a conviction easier than in a federal court is a substantial (if un-conceded) aspect for the commissions’ rationale, then Khadr’s motion-to-suppress hearing is a critical test of the viability of the enterprise.
If the judge, Army Col. Pat Parrish, doesn’t suppress Khadr’s statements, then it calls into question whether the provisions of the Military Commissions Act of 2009 that ban the admissibility of information obtained from cruel, inhuman or degrading treatment is meaningful. And those provisions were a major aspect of why Obama claimed the commissions could pass muster.
There’s a third option. Parrish could suppress some statements made under duress as improperly obtained, but he could allow others, claiming some degree of distance from abusive treatment. That will likely set off additional motions from other detainees — the FDL legal eagles can tell me whether Khadr’s lawyers would have standing for an additional challenge — to determine, in a how-many-hairs-do-you-have-to-lose-before-you’re-bald sense, exactly how much time/distance has to pass after an abusive act before a detainee statement can be considered voluntary in the commissions.
I realize I just talked about a lot of this stuff in the abstract, and in doing so, I overlooked an important aspect of how all this stuff will be determined. David Iglesias, who’s advising the chief commissioning officer here, told us today that the defense will have the burden of arguing its case in the motion it filed, to a preponderance-of-evidence standard. That means there’s going to be, potentially, days’ worth of exploration of what treatment Omar Khadr suffered at Guantanamo, and its relationship to admissibility. The government might seek to challenge both fact and interpretation about whether Khadr was tortured or abused or degraded — and if it does, that will itself be a remarkable statement about the Obama administration.
Hopefully this explains why I thought it was important to come here and cover the proceedings. OK, more tomorrow. I’ve been up since 4:15 a.m. and I’m about out of gas.
Update, 8:51 p.m., April 27: I should clarify something here, and thanks to Carol Rosenberg of the Miami Herald, who knows more about this issue than probably any other reporter, for the clarification. The commissions don’t really work through binding precedent. A judge in a different case could use whatever happens in the Khadr case as guidance to inform a subsequent one. But s/he’s not obligated to. Legal-esque!