In a turnaround from the defiant position he took last week, when he sacked his US lawyers and stated that he would either boycott his impending trial by Military Commission, or would represent himself, Omar Khadr, the Canadian citizen who was just 15 years when he was seized in Afghanistan in July 2002, and who is accused of throwing a grenade that killed a US soldier, Sgt. Christopher Speer, has told his Canadian lawyers that he is now prepared to be represented by his US military defense lawyer, Army Lt. Col. Jon Jackson. His trial, which was scheduled to begin on August 9, will now begin at a later date, although pre-trial hearings will resume on that date.
This is probably a wise move on Khadr’s part, although it does shut the door on the perhaps remote possibility that his defiance could have prompted the Obama administration to put pressure on the Canadian government to demand his repatriation before the trial begins. As I explained in an article on Friday, “Defiance in Isolation: The Last Stand of Omar Khadr,” the Canadian government has a wretched record regarding Omar Khadr, having ignored demands for his return that have been issued by the Federal Court, and having also ignored a strongly-worded condemnation of its actions that was issued by the Supreme Court.
However, the prospect of a one-sided trial, boycotted by Khadr, might have made the Obama administration — already unnerved by the implications of its own willingness to prosecute a former child soldier for war crimes — so uncomfortable that senior officials could have attempted to exert extra pressure on Stephen Harper’s government to request Khadr’s repatriation.
On the ground at Guantánamo, these deliberations have, in any case, been studiously avoided by Khadr’s military judge, Army Col. Patrick Parrish, who was extremely unwilling to allow Khadr to represent himself. In a pre-trial hearing last Monday, Khadr began by declaring that he intended to represent himself, after firing his lawyers, but then, after a recess, announced his intention to boycott the proceedings entirely, prompting Col. Parrish to declare that he would not let Khadr fire his military lawyer if he intended to boycott his trial. Col. Parrish then “directed Lt. Col. Jackson to consult his professional bodies, including the Arkansas bar, as to his obligations regarding Mr. Khadr’s defense,” as the Globe and Mail explained.
Over the weekend, Lt. Col. Jackson responded to the judge’s order by stating that he was “ethically required” to defend Khadr, adding, in a robust defense of Khadr’s rights that also included a ringing denunciation of the Commissions:
Therefore, I intend to provide him with a zealous defense at his trial in August. Omar Khadr continues to be the victim in this case. I never envisioned a scenario in my career as an Army lawyer that would require me to defend a child-soldier against war crimes charges levied by the United States. I always believed we were better than that.
Khadr’s decision to accept Lt. Col. Jackson as his military defense lawyer, which Dennis Edney, one of his Canadian civilian lawyers, confirmed today, means that “a defense motion will proceed on Aug. 9, over the question of whether prosecution evidence against Mr. Khadr was obtained through torture and coercion,” as the Globe and Mail explained. The defense motion follows up on hearings in May in which a psychiatrist and a psychologist, commissioned by Khadr’s defense team, stated that, in their assessment, Khadr was traumatized by his experiences in US custody, and a number of interrogators — some summoned by the prosecution — revealed the dubious circumstances in which Khadr was first interrogated in the US prison at Bagram airbase, immediately after being discharged from the hospital where his life-threatening wounds had been treated, and, in one session, revealed that Khadr had been threatened with gang rape in a US prison if he failed to cooperate.
As the Globe and Mail described it, “If Lt. Col. Jackson had decided differently and that suppression motion not gone forward, it could have ended one of Mr. Khadr’s best defenses.” This is undoubtedly true, although doubts remain about the gray areas in the Commission’s rules regarding self-representation, and what the rules are if a prisoner wishes to boycott the proceedings entirely.
One person who has practical experience of these issues is Air Force Lt. Col. David Frakt, who told the Globe and Mail that, over the weekend, Lt. Col. Jackson had “turned to [him] for advice on how to proceed in Mr. Khadr’s case.” Lt. Col. Frakt was the military lawyer for Ali Hamza al-Bahlul, a Yemeni who produced a video for al-Qaeda, and for Mohamed Jawad, an Afghan teenager accused of throwing a grenade that wounded two US servicemen and an Afghan translator in a marketplace in Kabul in December 2002.
In Jawad’s case, Lt. Col. Frakt’s tenacious representation of his client was invaluable, leading to the collapse of the charges against him in his proposed trial by Military Commission, and, last July, a successful habeas corpus petition in the District Court in Washington D.C. that led to his release. In al-Bahlul’s case, however, all the issues raised last week by Omar Khadr emerged in a riot of confusion that severely dented the Commission’s attempts at credibility.
Since first being charged in 2004 (in the first incarnation of the Commissions, ruled illegal by the Supreme Court in 2006), al-Bahlul had expressed his desire to represent himself, and in 2005 this led to a crisis for his court-appointed military defense lawyer, Army Maj. Tom Fleener, who was obliged to represent him under the Commissions’ rules at the time. Speaking to GQ in 2007, Maj. Fleener explained, “The concept of compelled representation has always bothered the crap out of me. You just don’t force lawyers on people. You don’t represent someone against his will. It’s never, ever, ever done.”
When the Commissions were revived by Congress in the fall of 2006, prisoners were allowed to represent themselves, leading to some lively pre-trial hearings involving Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks that further undermined the Commissions’ attempts at credibility.
However, as Sean Flynn explained in the GQ article, “there were reasons to be skeptical, to suspect that the provision wasn’t as clear as it seemed.” The Military Commissions Act stated, “The accused shall be permitted to represent himself, as provided for by paragraph (3), ” but paragraph (3) included “a list of caveats that allowed self-representation to be revoked if the defendant didn’t behave to the presiding officer’s liking.” As Flynn asked, “So what would happen if a man’s idea of representing himself was to boycott his trial? Would a lawyer be forced on him then? That wasn’t clear at all.”
In al-Bahlul’s case, the judge, Air Force Col. Ronald Gregory, responded to these problems by ruling that al-Bahlul could not represent himself, and this was how I described what happened next as his trial began on October 27, 2008:
As the court convened today, [al-Bahlul] sat in silence as his appointed military defense lawyer, Maj. David Frakt, announced that al-Bahlul was boycotting the trial, and that he had two specific reasons: firstly, because the judge had repeatedly denied his requests to represent himself, and secondly because he did not wish to be represented by a military lawyer.
Noting that he was obliged to respect his client’s wishes, Maj. Frakt then asked to be relieved, and when the judge, Air Force Col. Ronald Gregory, refused, he declared that he too was unable to participate. “I will be joining Mr. al-Bahlul’s boycott of the proceedings,” he said, “standing mute at the table.” He then refused to answer any further questions from Col. Gregory.
In response, Col. Gregory attempted to argue that Maj. Frakt was “obliged to participate,” as the Associated Press described it, and insisted, “The commission will not proceed with an empty defense table.” However, he then appeared to concede that it was not in his power to force Maj. Frakt to represent al-Bahlul, and determined to proceed with a trial based solely on evidence provided by the prosecution.
The result, as I explained in a follow-up article, was that al-Bahlul received a life sentence after a one-sided trial in which neither he, nor Maj. Frakt, uttered a word in his defense, which, of course, only succeeded in bringing the words “show trial” to mind.
Bringing the story up to date with reference to Omar Khadr’s case, Lt. Col. Frakt explained to the Globe and Mail that the problems he encountered in the fall of 2008 had still not been adequately addressed, and that “Lt. Col. Jackson’s conclusion didn’t come from a bar association or military directive” (Jackson himself “would not elaborate on whether the ethics opinion came from his Army judge advocate corps or his Arkansas Bar,” as the Miami Herald reported). Lt. Col. Frakt added that the lawyers in the Commissions are left “to sort of fend for themselves on these things,” and that their responses only arise after “lengthy discussion[s].”
“In these situations there’s two concerns a lawyer has,” Lt. Col. Frakt continued. “One is, ‘How do I represent the client and carry out the client’s wishes?’ And, two, ‘How do I not lose my license to practice law?’ … There’s an added layer of complexity in these cases because the court is ordering Jackson to represent [Mr. Khadr], but what does that really mean?”
Nevertheless, in Khadr’s case, as Lt. Col. Frakt also explained, the most crucial element is that he “needs an active defense.” He added that refusing to provide a defense or insisting on representing himself would have been “basically a recipe for getting convicted on all counts and getting a very lengthy sentence. Al-Bahlul was willing to sacrifice himself for what he saw as a greater cause, [but] Khadr, from my understanding he’s not a jihadist, he’s not a martyr. He’s just a scared, angry kid that wants to go home.”
Under the rules of the new Military Commissions Act (PDF, pp. 9-10), introduced by President Obama, who bears the ultimate responsibility for reviving Khadr’s prosecution by Military Commission, rather than in a federal court, the accused still has the right to self-representation, if he “knowingly and competently waives the assistance of counsel, subject to the provisions of paragraph (4)” (which replaces the earlier paragraph (3) mentioned above). This stipulates, as before, that the right to self-representation is dependent upon “deportment” and “conduct” that conforms “to the rules of evidence, procedure, and decorum applicable to trials by military commission.”
For now, at least, Omar Khadr has stepped back from testing the rules on self-determination, and is undoubtedly in a far better position to actually defend himself as a result of Lt. Col. Jackson’s assistance. As Lt. Col. Frakt explained in an article in May, this ought to mean that the government is required to explain how, under the Commissions’ absurd rules, he can be “charged with murder in violation of the law of war,” even though “there is no evidence that he violated the law of war” in allegedly throwing the grenade that killed Sgt. Speer.
If all goes to plan, Lt. Col. Jackson will be able to expose this absurdity, as well as other glaring holes in the government’s case, in Khadr’s favor (including airing the long-established claim that he never even threw the grenade that killed Sgt. Speer), leaving the unresolved issues about self-representation — and the headache that will undoubtedly represent for the government — for some other prisoner to raise instead.
Note: The courtroom sketch above is by Janet Hamlin, and is courtesy of Janet Hamlin Illustration.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.
See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).
And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Predictable Chaos As Guantánamo Trials Resume (July 2009), David Frakt: Military Commissions “A Catastrophic Failure” (August 2009), 9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please? (September 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Military Commissions Revived: Don’t Do It, Mr. President! (November 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), Rep. Jerrold Nadler and David Frakt on Obama’s Three-Tier Justice System For Guantánamo (November 2009), Guantánamo: Idealists Leave Obama’s Sinking Ship (November 2009), Chaos and Confusion: The Return of the Military Commissions (December 2009), Afghan Nobody Faces Trial by Military Commission (January 2010), Lawyers Appeal Guantánamo Trial Convictions (February 2010), When Rhetoric Trumps Good Sense: The GOP’s Counter-Productive Call for Military Commissions (March 2010), David Frakt’s Damning Verdict on the New Military Commissions Manual (May 2010), Prosecuting a Tortured Child: Obama’s Guantánamo Legacy (May 2010), The Torture of Omar Khadr, a Child in Bagram and Guantánamo (May 2010), Bin Laden Cook Accepts Plea Deal at Guantánamo Trial (July 2010).
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