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Going to court.


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Guantanamo Bay – Overlooking Guantanamo Bay, on a spit of land more fit for a luxury hotel than a courtroom, the U.S. Military Commission Thursday commenced proceedings for the first time since Congress authorized creation of the court in 2006.

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In the dock: Omar Khadr.  Captured on the battlefield in Afghanistan, he stands accused of murder, attempted murder, providing material support to a terrorist group and espionage. Evidence to be presented includes a video, captured with Khadr, that shows him making and emplacing roadside bombs. 

The hearing’s first surprise was Khadr’s mannerly conduct.  He entered the courtroom quietly and willingly and accepted his government-provided lawyers without incident. A healthy looking, well-groomed, bearded young adult, Khadr respectfully answered the military judge’s questions with a simple, direct “yes” or “no.”

Little substantive happened on opening day.  The defense, prosecution, and judge delivered a concerted message that they all intend to follow not just the spirit of the law but every letter of it — down to the least jot and tittle.

The defense team then did what they are supposed to do: Raise every objection imaginable. They questioned the judge’s impartiality; claimed the government was hiding evidence; declared Commissions unconstitutional and little better than a war tribunal; and reserved the right to argue that the Commission had no jurisdiction over their client.

To this nongovernmental observer, everything appeared to be as it should be: a judge, a defense, and prosecutor trying to hold a fair and impartial hearing. But that’s not at all the impression you’d get if all you knew came from the spin being reeled off after the hearing.

This was no secret show trial. There were about three dozen press and observers. The observers came from an alphabet list from Amnesty International to the VFW. It was pretty clear from the start, however, that some observers, like those bearing initials such as ACLU, had arrived to serve more as advocates than as observers. For these characters, trashing the commissions was job one. Every motion, objection, and point raised got cited as evidence that there must be something terribly wrong — otherwise why would the defense be raising all these problems?

Of course, raising issues is what the defense is supposed to do — that’s their job. All the hearings today really showed was that judges and lawyers are doing what judges and lawyers are required to do by law. The hearing should be seen as a testament to the government’s effort to follow the rule of law — not an indictment.

Of course, the organizations with initials were the first to rush to the cameras, and the press rushed to hear them. The fact that everybody: the commission, the NGOs and the press got to do their jobs is just another sign that the system is working as it should.     

There was no shortage of opinions delivered about the rights and wrongs of Guantanamo Bay.  But precious little of those soundbites had anything to do with why we are here — to observe a criminal tribunal and determine whether it is being conducted properly.

A lot of the discussion sounds like what Lee Casey and David Rivkin call “lawfare.” It works like this, if you do not like U.S. policies for combating terrorism and you can’t get the U.S. government to change them, change the nature of the debate. Instead of arguing the policies are wrong — argue that they are illegitimate.

Trying to turn policy debates into legal arguments, however, is not healthy for civil society. It takes political decisions out of the hands of the people and their elected representatives and puts them in the hands of lawyers and judges whose job it is to follow the rule-of-law not make laws.
 
 James Jay Carafano, a retired U.S. Army Lt. Colonel, is senior research fellow for national security issues at The Heritage Foundation.



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