Fate of Canadian detainee unclear after Obama lays out new rules in resurrecting controversial military commissions

Even after the President of the United States put a halt to his trial and a Canadian judge ordered Ottawa to bring him home, Omar Khadr appeared yesterday to be right back where he started - once again facing the prospect of a trial before the roundly condemned Guantanamo Bay military commissions.

President Barack Obama yesterday revived the controversial system that he once assailed as flawed. Washington will ask for a months-long delay in all current Guantanamo Bay hearings - including Mr. Khadr's case - and looks likely to resume the military commissions later in the year, albeit with different rules designed to give terrorism suspects fairer trials.

Among the changes the Obama administration says it will enact are an end to the admission of information obtained through "cruel, inhuman and degrading interrogation methods." Hearsay evidence will still be admissible, but it will no longer be the responsibility of the defendant to prove its unreliability - rather, the government will have to show why the evidence is reliable. Defendants will also have greater flexibility in choosing their own lawyers, the White House says. However, it is unclear whether someone such as Mr. Khadr will be allowed to chose his Canadian lawyers to represent him, rather than his U.S.-military-appointed counsel.

"These reforms will begin to restore the commissions as a legitimate forum for prosecution, while bringing them in line with the rule of law," the White House said in a statement.

However, the decision to resurrect the controversial legal system is in sharp contrast to Mr. Obama's attitude leading up to his election as President, when he slammed the military commissions as a failure. The decision also comes on the heels of the President's about-face on the issue of releasing prisoner-abuse photos to the public, which he announced this week will not be released. Both decisions represent a reality check for a President who came to power promising radical change on the security and terrorism files.

But despite Mr. Obama's past opposition to military commissions, it has always been unclear whether another court would simply throw out many of the cases currently pending in Guantanamo - cases that defence lawyers argue are tainted by hearsay evidence and information obtained through torture. The stakes are especially high in the case of the so-called "high-value" detainees accused of masterminding the Sept. 11, 2001, attacks. Those suspects include individuals the U.S. has admitted waterboarding.

If issues such as torture prompt a non-commissions judge to throw out the case against the men, who have already admitted their involvement, the political and public outrage would be massive over Washington's failure to secure convictions against those allegedly behind the 9/11 attacks. And it appears Washington is not prepared to take that risk.

Lieutenant-Commander Bill Kuebler, Mr. Khadr's U.S. military defence lawyer, said a decision to restart the military-commission system provides an answer to the question of whether Washington is prepared to try terrorism cases in a legitimate legal system.

"Apparently the answer is no," he said. "They're going to create a second-rate justice system to get convictions they couldn't get in regular courts."

However, Lt.-Cmdr. Kuebler added that he would be shocked if the Obama administration decided to go ahead with Mr. Khadr's Guantanamo trial, even under the proposed new rules. Indeed, Washington's move appears aimed primarily at the other, more high-profile cases currently before the commission.

Mr. Khadr, who was detained at the age of 15 by U.S. soldiers after a 2002 firefight in Afghanistan, faced numerous charges before the military commission, the most serious of which related to his alleged murder of a U.S. soldier during that firefight. Now 22, he has spent more than six years in the Guantanamo Bay prison camps. During that time, the military has attempted to put him on trial several times, but the process has never gotten off the ground, either because a judge, a higher court or, most recently, the President has halted proceedings.

While some U.S. politicians lauded the President's decision to revive the commissions, condemnation from human-rights and civil-liberties groups was swift.

"These military commissions are inherently illegitimate, unconstitutional and incapable of delivering outcomes we can trust. Tweaking the rules of these failed tribunals so that they provide 'more due process' is absurd; there is no such thing as 'due process light,' " Anthony D. Romero, executive director of the American Civil Liberties Union, said in a statement.

"In this case, President Obama would do well to remember his own infamous words during his presidential campaign: You can't put lipstick on a pig."

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