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| |  | | Omar Ahmed Khadr | | | context : | Afghanistan  | | judgement place : | United States | | status : | Indicted | | particulars : | Charged with conspiracy to commit war crimes, murder, attempted murder and aiding the enemy by the Pentagon (USA); all charges dismissed by a US military judge on 4 June 2007 due to lack of jurisdiction; Pentagon appealed against the decision on 4 July 2007; terrorism charges reinstated on 24 September 2007 by the US Court of Military Commission Review; pretrial hearing on 4 February 2008 | | position : | Militant fighter for Al Qaeda |
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| | | | The military commission proceedings at Guantánamo are the first such war crimes trials conducted by the United States since World War II.
Of the 500 or so captives brought to Guantánamo from Afghanistan since 2002, only a small fraction is facing a military commission.
Human rights activists and military defence lawyers have criticized the commission rules, saying they favour prosecutors, allow evidence obtained through torture and hearsay and permit only limited independent judicial review. Critics also note that the Pentagon has never said it would actually free a defendant if he were acquitted.
Furthermore, the detainees are said to be charged with conducts that were not previously crimes or not previously recognized as war crimes.
The Supreme Court heard on March 28, 2006, a challenge to George W. Bush's power to create military commissions to put Guantanamo prisoners on trial for war crimes (cf. the profile of Salim Ahmed Hamdan in "related cases"). On June 29, 2006, the Supreme Court ruled that the US President exceeded his authority in establishing the military commissions at Guantánamo Bay. The Court also ruled that the commissions violated U.S. military law and the Geneva Conventions.
A controversial new bill was passed by the US Senate and the House of Representatives in late September 2006.
The Military Commissions Act, which is heavily criticised by human rights organisations
- allows terror suspects to be tried by military tribunals rather than civilian courts
- gives defendants a legal right to see evidence and a (limited) right to counsel
- forbids "serious" breaches of the Geneva Conventions, such as torture, in the course of interrogation procedures
- gives the president the authority to "interpret the meaning and application of the Geneva Conventions"
- allows for hearsay evidence in trials of terror suspects.
Furthermore, the new legislation prohibits any person from invoking the Geneva Conventions or their protocols as a source of rights in any action in any US court.
The new bill entered into force following signature by the President in October 2006.
On 20 February 2007 the US Court of Appeals for the DC Circuit ruled that provisions in the Military Commissions Act stripping foreign nationals held as "enemy combatants" of the right to file habeas corpus petitions challenging their detentions do not violate the Suspension Clause [Art. I, §9, ] of the US Constitution. The ruling came in the consolidated cases of hundreds of Guantanamo Bay detainees (Boumedienne v. Bush and al Odah v. United States). The DC Circuit vacated the lower court decisions in the cases and dismissed the detainees' petitions for lack of jurisdiction.
On 7 June 2007, the US Senate Judiciary Committee voted 11-8 in support of The Habeas Corpus Restoration Act which, if adopted, would allow Guantanamo detainees to challenge their detention in US federal courts for the first time since the Military Commissions Act of 2006 revoked that right.
The US Supreme Court agreed on 29 June 2007 to hear the appeals of Guantanamo Bay detainees who are seeking habeas corpus review of their detentions. The Court thereby reversed its April 2007 denial of petitions for certiorari. | |    | |  |  | | nationality : | | | Canada | | | date of birth : | | | 19.09.1986 | | | last time seen : | | | Guantanamo (Cuba) | | | charges : | | | War crimes | | | profile last modified : | | | 18.03.2008 |
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