Military Tribunals Resume at Guantanamo Despite Pending Supreme Court Case on Legality of Hearings

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A Canadian teenager and nine other detainees are appearing before a military tribunal at Guantanamo Bay this week even though the legality of the pre-trial hearings remains in doubt with the Supreme Court case Hamdan v. Rumsfeld still pending. We speak with ACLU attorney Ben Wizner. [includes rush transcript]

We turn to the U.S. military prison at the Guantanamo Bay where a Canadian teenager and nine other detainees are appearing before a military tribunal this week even though the legality of the pre-trial hearings remains in doubt. Last week the Supreme Court heard oral arguments in the case Hamdan v. Rumsfeld that will decide whether the government can legally use military commissions to try detainees.

Although the Supreme Court has not yet ruled on the case, the military is going ahead with the pre-trial hearings.

One of the detainees appearing before the tribunal today is the Canadian-born Omar Khadr. U.S. forces detained him four years ago in Afghanistan when he was 15 years old.

Human rights lawyers say Omar is the first person in modern world history to face a military commission for alleged crimes committed as a child. He is accused of killing U.S. special forces soldier Christopher Speer with a grenade during a firefight near the village of Khost, Afghanistan in July 2002.

Earlier this week Khadr’s attorney challenged the fairness of the proceedings. Over the past few months the attorney, U.S. Marine Lt. Col Colby Vokey, has only been allowed to talk to his client for two hours and he has been unable to see all of the evidence against the teenager. Khadr’s legal team is expected to file a motion to halt the tribunal proceedings, arguing that the hearing’s presiding officer does not have the power to put the Canadian on trial.

Similar complaints have been expressed by other attorneys representing detainees before the military tribunal.

  • Ben Wizner, staff attorney with the American Civil Liberties Union. In January, he traveled to Guantanamo Bay to observe some of the proceedings before the military tribunals. He has also been closely monitoring the Supreme Court case Hamdan v. Rumsfeld and authored a friend of the court brief in the case.

- ACLU blog on Guantanamo tribunals

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: To discuss the military tribunals at Guantanamo, we are joined in our Firehouse studio by Ben Wizner, staff attorney with the American Civil Liberties Union. In January, he traveled to Guantanamo Bay to observe some of the proceedings before the military tribunals. He’s also been closely monitoring the Supreme Court case, Hamdan v. Rumsfeld, and authored a friend of the court brief in the case. Welcome to Democracy Now!

BEN WIZNER: Thanks for having me on the program, Amy.

AMY GOODMAN: Why don’t we start with the teenager? Tell us about his case.

BEN WIZNER: Well, Omar Khadr, as you said in the lead-in, was 15 years old when he was detained in Afghanistan after a firefight, and what’s striking about this case is that only ten of the 500-some men and boys who are held at Guantanamo have been designated for these war trials. You would think that the United States would put before the world the worst of the worst to counter the very accurate information that hundreds of people there have been swept up in a dragnet. And for the United States to put a teenager before the world as one of the worst in the worst shows really just what a mess the entire Guantanamo system has become.

AMY GOODMAN: Well, tell us about his case, in particular, where was he picked up in Afghanistan and how now the military is responding.

BEN WIZNER: Well, there was a firefight, in which — evidently the military has witnesses that can testify that Omar Khadr threw a grenade during this firefight. What’s interesting about this charge is that Khadr is charged with murder. When we go to Afghanistan, we are doing so as part of a war on terror. When people resist that war, they are unprivileged belligerents who are charged with crimes, and Khadr’s charge is one of the more serious of the people who have been brought before the tribunal so far. Most of the detainees who have been charged with crimes have been charged with the non-existent war crime of conspiracy.

AMY GOODMAN: Now, talk about him being brought up, Khadr being brought up in this military tribunal at the time the Supreme Court is weighing the Hamdan case, and explain, if you will, the Hamdan case, in particular, who Hamdan was and why this is significant.

BEN WIZNER: Hamdan is alleged to be Osama bin Laden’s driver, and Hamdan is among these first ten detainees who has been designated for war trials. Hamdan’s military defense lawyer, Lieutenant Commander Charles Swift, was confronted with this bewildering system that the United States is making up as it goes along and took his training seriously and said, “This is not fair; this is unconstitutional; this violates international law.” He sought out Georgetown law professor Neal Katyal and said, “We have to put a stop to these military tribunals.”

They brought a lawsuit saying that the tribunals were illegitimate, that they were not authorized by Congress, that they violated the Geneva Conventions, that they were unconstitutional, and they were able to persuade a lower court to agree and to halt the tribunals. The D.C. Circuit Court of Appeals with John Roberts, our new Chief Justice, sitting on the panel reversed and allowed the commissions to proceed, and that case made its way last week to the United States Supreme Court. We and others have said that it’s absolutely inappropriate for the United States to continue putting these people on trial while the Supreme Court has expressed serious doubts about whether the tribunals are even legitimate.

AMY GOODMAN: Now, John Roberts ruled on behalf of the Bush administration when — before he became Chief Justice. In fact, when he was being considered to be nominated to the Supreme Court, had been meeting at the White House a number of times, and then Antonin Scalia spoke about this case before he heard it.

BEN WIZNER: Well, there was one empty chair during the argument, because the Chief Justice was appropriately recused. I think a lot of people were hoping there would be two empty chairs during that argument, and in fact, five retired generals and admirals on the day of the argument presented a motion to the court saying that Scalia ought to recuse himself, because he appeared to have prejudged that case. Not only did Scalia not recuse himself, but it was quite clear from the oral argument where Scalia’s sympathies lie in this case.

AMY GOODMAN: Talk about the oral arguments. Were you surprised by how the Supreme Court justices questioned the attorneys?

BEN WIZNER: Well, I have to say, in a way, yes, and I think what it shows is that the court does not take lightly attempts to strip the court of its traditional authority, and so you had at least five justices who were expressing serious doubts about what’s going on with these tribunals and about whether Congress has the authority to tell the courts to butt out. The most important vote in this case, as in every case from now on, will be the vote of Justice Kennedy, who seems to be paying more attention to international law and our treaty obligations, and Justice Kennedy was very bothered by the government’s arguments that the Supreme Court should stay out of this dispute until after all the tribunals have been completed.

AMY GOODMAN: Former Attorney General John Ashcroft recently gave a speech to students where he said, 'This is ridiculous. These people do not deserve the standard judicial treatment to be brought into a court, have their day in court, as prisoners of war weren't in the past given that right.’ What is your response?

BEN WIZNER: Well, I want to say a couple of things in response. The harshest criticism of the military tribunals has come not from human rights organizations and civil libertarians like me. It has come from former members of the prosecution team, whose internal emails that were leaked to the press described the commission system as fixed, as a fraud on the American people, with commission members —

AMY GOODMAN: Prosecution?

BEN WIZNER: Prosecution members, with the commission members hand-picked to ensure conviction, and these comments are described in our friend of the court brief before the Supreme Court. These were internal criticisms. The United States has —

AMY GOODMAN: These were the prosecutors of those at Guantanamo.

BEN WIZNER: They were former members of the prosecution team, would be a better way of describing them. They are no longer prosecutors. They have found people who are more willing to toe the line. This system is being invented from whole cloth. We have a constitutional tradition that is several hundred years old. We have a military justice system that’s half a century old. We have international treaty obligations that set minimum standards for a fair trial. All of those have been thrown out for these commissions, where you have members who are hand-picked by the administration, where you have President Bush and Donald Rumsfeld as the final arbiters of guilt and innocence, where you have evidence that may be extracted through coercion and torture that might be used to convict the detainees.

This system is a mess, as I said, and it’s amazing for me to say that. But this system, as bad as it is, is not the worst thing going on at Guantanamo. In some ways, it’s the best thing that’s going on at Guantanamo, because the 495 other men and boys have been charged with absolutely nothing.

AMY GOODMAN: We are talking to Ben Wizner, staff attorney for the ACLU, who observed the tribunals held in January, including some of the proceedings in the Hamdan case. What was it like when you went down?

BEN WIZNER: Well, I wasn’t expecting much. These were billed as simple arraignments, where charges would be read and so-called voir dire would be done of the judge. But what was inspiring about being there was seeing just how committed the uniform military defense lawyers are to their clients. These are people who are members of the U.S. armed forces, who have been trained, but who took law school seriously, who took their constitutional oaths seriously, and who consistently say that the system is fixed, that it’s unfair and that it’s unjust, and to see them sparring with the hand-picked judges in these cases and contesting every inch of the way shows that even in a flawed system, having a lawyer, having a counsel, having someone stand up and defend you does make a difference in the proceeding.

AMY GOODMAN: Ben Wizner, you also at the ACLU have been looking at the issue of domestic spying. Can you talk about the significance of this, being the staff attorney in these issues? You have seen the documents that — where it shows the F.B.I. was spying on, for example, the Thomas Merton Center in Pittsburgh, the peace center.

BEN WIZNER: You know, to me, the real significance of these documents that describe under headings like 'Anti-Terrorism Unit' or 'International Terrorism Matters,' things like antiwar protests in Pittsburgh, is that it shows just how much the administration is asking when it says, “Trust us. The N.S.A. is an anti-terrorist surveillance program.” Well, what definition of terrorism is the United States using when it says that the N.S.A. is intercepting only terrorist communications? If it’s using the definition that you find scattered throughout these F.B.I. records, then there may be a great number of people who have been deliberately selected for N.S.A. surveillance, so it’s another example of the abuse of power, of the concentration of power in the administration and of unchecked authority.

AMY GOODMAN: Tell us about some of the names you have come across. Some are particularly targeted, and others you see the names of groups when looking at other groups.

BEN WIZNER: Well, it won’t be a surprise, I think, to some of your listeners that the F.B.I. has had a long interest in groups like People for the Ethical Treatment of Animals. And the documents we’ve posted on our website and that I hope your listeners will go and look at show really a long campaign on the F.B.I.’s part to try to tar PETA as just a front group for more militant and violent groups like the Animal Liberation Front, and yet they find no evidence of this consistently. So, although they maintain these domestic terrorism investigations and are able to persuade the I.R.S. to conduct audits of groups like PETA and Greenpeace, they never find the evidence that they are looking for, that these groups are involved in violent activities.

AMY GOODMAN: When you were looking at the file on Greenpeace, you found other groups?

BEN WIZNER: Well, there was one particularly amusing document — maybe some of your listeners will find it frightening, but most of us had a chuckle — in which an F.B.I. special agent describes the Catholic Worker group as advocating a “communist-like redistribution of resources and peace and love through prayer.” And again, the idea that this is sitting there in an F.B.I. record should be an embarrassment to the government.

AMY GOODMAN: What other groups are being watched?

BEN WIZNER: Well, we have obtained records on a variety of antiwar groups, on United for Peace and Justice, which is the large umbrella antiwar organization in this country, on PETA, on Greenpeace. Food Not Bombs is a group that gives vegetarian food to the homeless and protests war and has turned up in a number of these files and, of course, some of the larger Arab and Muslim groups have been monitored by the F.B.I., as well.

AMY GOODMAN: So you get these documents. You see. You alert the groups?

BEN WIZNER: Oh, yes. No, I mean, we have been working with the groups in requesting the documents and in bringing litigation against the F.B.I. to compel the release of these documents.

AMY GOODMAN: And once this happens, can you compel the F.B.I. to stop? And what about the Pentagon, who also has their terror lists that include, for example, Quaker groups in Lake Grove, Florida?

BEN WIZNER: We know a lot less about the Pentagon. There was a document that was leaked to NBC News that showed a variety of antiwar protests and also anti-military recruitment protests that had been kept in a Pentagon database under the heading “Threats to the Military,” and some of them were deemed credible, some not, but they involved groups like the Quakers, as you said, groups that were protesting against the military’s “Don’t ask, don’t tell” policy.

To its apparent credit, the Pentagon, unlike the F.B.I., seems to have acknowledged that it was absolutely improper for the Pentagon to be maintaining this information. We have filed a series of FOIA requests to try to get to the bottom of what happened and how broad the Pentagon’s activities were, but we’ve received nothing in advance.

The F.B.I., on the other hand, has really dug in its heels and has been unapologetic about what it’s been doing and has been offering very unpersuasive defenses that all of these records are derived from individual criminal investigations, but that’s simply contradicted by the records, and I would urge your listeners to go to our website at and take a look through some of the documents that we posted there.

AMY GOODMAN: Well, we will also, of course, link to the ACLU spy files at Ben Wizner, I want to thank you very much for being with us. Ben Wizner, a staff attorney for the ACLU, went down to Guantanamo, also is the staff attorney at the ACLU on the issue of surveillance.

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