GUANTANAMO BAY, Cuba – A session of the Guantanamo war crimes court that began Sunday will likely show the difficulties President Barack Obama faces in changing the system and closing the prison by January.
The case in question, of Canadian Omar Khadr charged with killing an American soldier, is stalled by infighting among lawyers.
Other defendants have even more complex legal issues, and officials say the U.S. may have to choose between delaying Guantanamo’s closure or quickly finding somewhere else to hold the trials.
“I don’t think they’ll get a single trial done by January,” said Michael Berrigan, the deputy chief defence counsel for the Guantanamo tribunals. “I don’t think there’s any way.”
The Guantanamo war court sessions are held in the $12 million Expeditionary Legal Complex, a windowless courthouse of corrugated metal and a network of dozens of tents overlooking the Caribbean that the military says can be picked up and moved if necessary.
But the Obama administration has not found a replacement for Guantanamo. So when the judge in the trial of 22-year-old Khadr decided a pretrial hearing was necessary, the military had no choice but to hastily arrange a charter flight to bring lawyers, court personnel and a dozen journalists to the U.S. base in Cuba.
The brief war court session, a closed hearing Sunday and an open one Monday if the issues are not resolved, is the first since Obama asked military judges to suspend all proceedings while his administration reviews strategies for prosecuting terrorists.
The main issue before the tribunal is just who has the right to dismiss a lawyer. It’s a straightforward question in traditional civilian or military courts but there are not yet many legal precedents at the Guantanamo Military Commissions and still disagreement over the rules.
The chief defence counsel, air force Col. Peter Masciola, has been trying since April to fire the lead lawyer for Toronto-born Khadr, navy Lt.-Cmdr. William Kuebler, whose aggressive defence and impromptu news conferences have riled military superiors.
Kuebler insists Masciola can’t dismiss him without the trial judge’s permission.
It is nothing new for procedural issues to bog down efforts to prosecute terrorism suspects at Guantanamo. Obama’s pledge to revive the trials with more legal protections for detainees is expected to result in further legal challenges and delays.
“One thing I think we can all agree on is whatever time period you think it will take to complete something at Guantanamo, multiply it by X,” said Charles Stimson, a former deputy assistant secretary of defence for detainee affairs under president George W. Bush. He said there is no chance of trials wrapping up at Guantanamo by January, although Obama could be planning to move them to the United States.
Obama has not specified where he will hold commissions.
The prospect of moving detainees to the United States, however, appears to be growing more difficult politically as communities across the U.S. come out against holding terror suspects. Relocating the commissions to the U.S. could also threaten the system by making terror suspects eligible for more legal rights.
The chief prosecutor for the Guantanamo trials, navy Capt. John Murphy, said his office is advising the administration on what a move to the United States would mean for the commissions.
“There are a lot of complicated legal questions that are being analyzed, and that is one of them,” Murphy said.
The U.S. intends to prosecute about 65 of the 240 detainees remaining at Guantanamo, according to Murphy, who said an administration task force is still deciding whether to try them in the commissions or U.S. federal courts. Eleven prisoners are currently facing charges at Guantanamo including five accused of orchestrating the Sept. 11, 2001, attacks on New York and Washington.
Khadr, the son of a slain al-Qaida financier, is charged with killing U.S. army Sgt. 1st Class Christopher Speer with a grenade during a 2002 battle at an al-Qaida stronghold in Afghanistan. Kuebler has said there is evidence to suggest that Khadr didn’t throw the grenade that killed Speer. He also says the Canadian should be treated as a child soldier since he was 15 at the time of the battle.
Kuebler says Masciola wants to dismiss him over strategy disagreements. Masciola won’t discuss the dispute in detail but has called Kuebler’s leadership of the defence team “dysfunctional.”
Once the judge resolves who represents Khadr, he can address a request from Obama for a new 120-day suspension, issued in all pending commissions cases, that would keep them on hold until mid-September.
Obama could still roll back his self-imposed January deadline to close the prison, and there are at least some signs that the military expects Guantanamo to stay open.
A military defence lawyer, air force Maj. David Frakt, said his expired security badges for the prison and the commissions were recently renewed until May 2010.