November 19, 2007
By James Jay Carafano, Ph.D.
The assault on justice continues at the U.S. detention facility
at Guantanamo Bay, Cuba -- and it has nothing to do with the trial
of enemy combatants accused of war crimes.
I recently joined about three dozen journalists and observers
for the arraignment of Canadian suspect Omar Khadr. Khadr was
captured on the battlefield in Afghanistan and is alleged to have
committed murder, attempted murder, and to have provided material
support to Al Qaeda, among other charges.
There is only one thing you learn for sure watching the
proceedings of the U.S. Military Commission, a tribunal established
by Congress last year to try unlawful enemy combatants for crimes.
The defendants certainly get their day in court. Khadr was defended
by an aggressive, competent defense team that clearly had the
interests of its client at heart.
The defense was led by a young naval staff judge advocate who
spent most of the morning challenging the military judge's
impartiality. Given that the judge had previously thrown out the
government's case against Khadr, causing the Bush administration
great embarrassment and requiring the prosecutor to regroup and
start over, the charge rang kind of hollow. Indeed, the judge in
the case is a 30-year veteran with more than a dozen years on the
bench and three years of experience with the Military Commission,
who by his count has adjudicated some 1,500 cases. He seems an
unlikely target to go after. Still, that is the job of a defense
The defense strategy seems to be to stretch out the proceedings
as long as possible, raising every objection imaginable in the
hopes that changes in U.S. administration will short-circuit the
commissions. At the same time, the defense plays to the Canadian
press, hoping to build a constituency north of the border for
cutting a deal for Khadr (an unlikely prospect -- I'm told there's
little sympathy for Khadr in Canada).
After the hearing at the news conference, the defense dropped
another bombshell, claiming the government withheld evidence in the
All these tactics are exactly what defense lawyers are supposed
to do -- defend the rights of the accused. Those are the rights of
The other "rights," however, are largely missing. Those would be
reasonable independent voices commenting on the proceedings.
Many of the "observers" allowed to witness the arraignment
hearing, like the ACLU, acted a lot more like advocates than
observers. Every legal issue raised in the proceedings elicited
near-hysterical claims that such challenges proved the commissions
were illegitimate -- and likely criminal acts themselves. It
certainly appeared that these "observers" came to Guantanamo not to
observe and comment on the commissions but to condemn them.
They were the first to rush to the reporters after the hearings
and the last to walk away from the microphones. They may have
wasted their breath -- the legal news cycle that day was dominated
by another O.J. trial and the indictment of Bernie Kerik.
It's not clear why the observers think that going after the U.S.
military at Guantanamo in such an unfair and biased manner is so
important. Certainly, I felt that the young men and women leaping
to the microphones were just doing the job they believed in --
advocating for the policies of their organizations.
Guantanamo provides salacious and inflammatory headlines, but it's
hard to see why watching a handful of defense attorneys, judges and
prosecutors doggedly trying to provide a fair and impartial trial
in a largely open and transparent process represents such a great
threat to the cause of freedom and justice around the world.
Perhaps the observers can afford to spend time here because the
world is a safer place than it was 30 years ago. According to a
comprehensive multi-year study by the Human Security Report Project
based at the University of British Columbia, there has been a major
global decline in armed conflicts, genocides, human rights abuses
and military coups. Armed conflicts alone have dropped by 40
percent since 1992. So maybe they just have more time on their
Perhaps they have other reasons. If they believe, however, that
they are truly combating some massive abuse of human rights
perpetrated by the U.S. military -- they are just dead wrong.
History will judge. My guess is that history will look more
kindly on the soldiers, sailors, marines, airmen and coast
guardsmen at Guantanamo -- all doing their best to follow the rule
of law to the letter of the law.
Carafano is Assistant Director in the Kathryn and
Shelby Cullom Davis Institute for International Studies and Senior
Research Fellow in the Douglas and Sarah Allison Center for Foreign
First appeared on FoxNews.com
The assault on justice continues at the U.S. detention facility at Guantanamo Bay, Cuba, and it has nothing to do with the trial of enemy combatants accused of war crimes.
James Jay Carafano, Ph.D.
Vice President, Foreign and Defense Policy Studies, E. W. Richardson Fellow, and Director
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