At first glance, the military trials of terrorism suspects at Guantanamo Bay appear to be winding down.
One prisoner recently pleaded guilty to murder and other charges, and just one more, Noor Uthman Mohammed of Sudan, is charged with war crimes for alleged complicity with Al Qaeda. Of nearly 800 terrorism suspects brought to this remote U.S. base in southern Cuba over nearly nine years, 174 remain, most because of diplomatic troubles between Washington and their home countries rather than out of concern they would pose a security threat if freed.
FOR THE RECORD:
Guantanamo Bay tribunals: An article in Wednesday's Section A about military tribunals at Guantanamo Bay said that New York psychiatrist Michael Welner based his analysis of conditions in the detention facility's Camp 4 on the single June visit he mentioned during two days of testimony. Welner reported after publication that he had also visited the camp for compliant detainees on April 28 and on the weekend before his Oct. 26-27 testimony for the government. —
But the case of Omar Khadr, who pleaded guilty to throwing a grenade that killed a U.S. soldier, is a reminder that many vexing questions concerning Guantanamo and its prisoners remain unanswered. Among them: Who should be tried there? And do conditions at the prison actually encourage radicalism?
The downsizing of the prisoner population and the dearth of activity at the military tribunal are the result of political indecision and fear of voter backlash, say critics of a forum that has been under fire since it was created after the Sept. 11, 2001, terrorist attacks.
Despite President Obama's pledge to close Guantanamo within a year of taking office, new charges are being drawn up against an unspecified number of prisoners who cannot be tried under the more restrictive rules of evidence in U.S. federal courts, prosecutors say.
Trying terrorism suspects in criminal courts on the U.S. mainland presents other problems as well. Charges against five "high-value detainees" accused of plotting Sept. 11 have been delayed for months, some believe, because of political posturing in Congress that has made Americans fearful of having the most dangerous prisoners brought to U.S. soil for trial.
A case-by-case review last year led the White House to report that at least 40 others can't be tried in any forum yet they remain too dangerous to release.
Stalled by legal challenges and procedural flaws that have scuttled charges brought against at least a dozen other prisoners, including the Sept. 11 suspects, Guantanamo has produced only five convictions of the accused terrorists while U.S. federal courts have resolved more than 400 terrorism cases involving suspects who were not held at Guantanamo.
"Five convictions in eight years — that's not a great stat," Marine Col. Jeff Colwell, the chief defense counsel for military commissions, said of the tribunal's record. He expressed frustration with the on-again, off-again nature of the commissions, which leaves his defense lawyers uncertain about their role in representing detainees for whom charges are said to be pending.
"For us, we'd just like somebody to make a darned decision," Colwell said. "Federal courts, military commissions, some kind of combo? We just don't know."
Defenders of the Pentagon's makeshift judiciary insist the war court is independent of political influences. Critics have attacked the plea deal that freed Australian David Hicks in 2007 when then-Prime Minister John Howard needed a boost in what proved a doomed reelection bid.
Critics also raised questions about the recent case of Khadr.
The military commissions, as the tribunal is known here, on Sunday sentenced former child soldier Khadr to one more year of U.S. imprisonment and up to seven more once he is sent home to Canada. He faced a life sentence if convicted on any of five war-crimes charges, but pleaded guilty in exchange for the lighter sentence.
Why the government so drastically scaled back its punishment demands for the former Al Qaeda apprentice spurred speculation that the White House didn't want the embarrassment of prosecuting a child soldier in a forum tainted by vociferous foreign and domestic rebuke.
"I had no pressure on me to make this decision. The decision was mine and I stand by it," said Navy Capt. John Murphy, the commissions' chief prosecutor, who signed off on the Khadr plea deal, which was backed by diplomatic assurances from Canada that Ottawa would take him back.
The government's legal team for the Khadr sentencing, however, urged the jurors to give him at least another 25 years' imprisonment and tied Khadr, son of an Al Qaeda kingpin, to the terrorist organization's crimes going back to when Khadr was 3 years old.
The prosecution's portrayal of Khadr as a committed jihadist in his early teens and a poor prospect for rehabilitation might have done more to discredit Guantanamo operations than recommend them.
The government's chief witness, New York psychiatrist Michael Welner, described for the military jury a detention environment that deprived Khadr of a structured education and housed him for the last eight years with older, committed extremists who regarded him as "a rock star" for having killed a U.S. soldier.
"In Camp 4, he has marinated in hardened Islamic radicalism," said Welner, who based his analysis on a single visit to Guantanamo in June. Camp 4 is the communal-living camp reserved for the most compliant detainees.
"If that's true, it is a condemnation of the conditions of confinement to which the detainees have been subjected," said Alex Neve of Amnesty International.