Andy Worthington » Military Commissions

No Surprise at Obama’s Guantánamo Trial Chaos

Andy Worthington — Wed, 01 Sep 2010 10:29:57 +0000

Surprise is the last thing that anyone ought to feel on hearing the news that the Obama administration “has shelved the planned prosecution,” in a trial by Military Commission, “of Abd al-Rahim al-Nashiri, the alleged coordinator of the Oct. 2000 suicide attack on the USS Cole in Yemen,” as the Washington Post reported on Thursday, or that senior officials are “alarmed” by negative responses to the trial by Military Commission of Omar Khadr, as the New York Times reported on Friday.

The problem in both cases is that trials by Military Commission are inappropriate for any of the prisoners held at Guantánamo, who are either accused of terrorist activities, and should be tried as criminals in the federal court system, or are soldiers seized in connection with their support of the Taliban, wrongly imprisoned in an experimental prison established to permit coercive interrogations, instead of being held in a prisoner of war camp in accordance with the Geneva Conventions.

The Commissions — dragged from the bowels of history in November 2001 by Dick Cheney — looked appropriate to the former Vice President, and to President George W. Bush, because they, like Guantánamo, appeared to be beyond the reach of the US courts, and would allow prisoners to be executed after largely perfunctory trials using evidence obtained through torture.

One reason for seeking to avoid court interference was that senior Bush administration officials were aware that their “War on Terror,” which equated al-Qaeda with the Taliban and failed to distinguish between terrorists and soldiers, regarding everyone who ended up in US custody as “enemy combatants” or “high-value detainees,” was legally unprecedented, and would be subjected to rigorous challenges.

To the Bush administration, such interference was unacceptable, but time and again they were proved wrong, as the Supreme Court found in favor of the prisoners, ruling that they had habeas corpus rights in June 2004, ruling that the Military Commissions violated both the Geneva Conventions and the Uniform Code of Military Justice in June 2006, and, after unconstitutional interventions by Congress, reiterating that the prisoners had habeas corpus rights in June 2008.

In the cases of the men held as part of the general population at Guantánamo, the Supreme Court’s rulings destroyed the Bush administration’s claim that, in the “new paradigm” of the “War on Terror,” men could be held forever without being able to ask a judge if there was any basis for their detention, if, as in many cases, they claimed that they had been seized by mistake. As has become apparent in the last two years, when the prisoners’ habeas petitions have proceeded to the District Court in Washington D.C., there are so many fundamental problems with the prisoners’ detention — primarily involving torture and unacceptable levels of hearsay masquerading as evidence — that in 38 out of 53 cases so far decided, the prisoners have won their petitions.

The Obama administration has failed to understand quite how ruinous these rulings are for the detention authority inherited from President Bush. Although senior officials have publicly repudiated Bush’s reliance on claims of seemingly unfettered power exercised as the Commander-in-Chief during wartime, Obama has continued to rely on the Authorization for Use of Military Force (AUMF), passed by Congress the week after the 9/11 attacks, which, with another Supreme Court ruling from June 2004 (Hamdi v. Rumsfeld) allows the government to detain anyone it regards as having supported al-Qaeda, the Taliban or related forces.

This has led to horrendous problems, as I have reported at length, because, in the first instance, the majority of those who have lost their habeas petitions were nothing more than foot soldiers for the Taliban, who should have been held as prisoners of war, and secondly, because the President is also relying on the AUMF to justify his plan to continue holding 48 of the remaining 176 prisoners without charge or trial, on the basis that “prosecution is not feasible in either federal court or a military commission.”

The well-chronicled failures of the Military Commissions

This is a fundamental error that has still not been adequately addressed, but when it comes to the Military Commissions, the failures of the system have been far more thoroughly aired, and the Obama administration had no excuse for working with Congress to revive them last summer. In Congressional testimony at the time, a number of knowledgeable critics of the Commissions, including retired Adm. John Hutson and Lt. Col. Darrel Vandeveld, a former prosecutor, explained why reviving the Commissions was a bad idea, but the most compelling testimony was delivered by Lt. Col. David Frakt, the military defense attorney for two Guantánamo prisoners, Mohamed Jawad (released last August) and Ali Hamza al-Bahlul (who received a life sentence after a one-sided trial by Military Commission in October 2008, in which he refused to mount a defense).

In a comprehensive dissection of the failures of the original Military Commissions, Lt. Col. Frakt stated:

[T]he drafters [of the original military commission rules (PDF)] classified as “war crimes” conduct, such as conspiracy and terrorism crimes that are violations of regular criminal law but had never previously been recognized as covered by the laws of war, largely because the laws of war rightly apply to the narrow context of armed conflict.

They also created a number of “new” war crimes based on the alleged status of a person, rather than on conduct that actually violates the laws of war [PDF]. The most egregious examples of these were the invented crimes “Murder by an Unprivileged Belligerent” and “Destruction of Property by an Unprivileged Belligerent,” which appeared in the original commission’s list of offences. These provisions made killing US soldiers, destroying military property, or attempting to do so, a war crime. In other words, the US declared that it was a war crime to fight, regardless of whether the fighters comply with the rules of war.

Noticeably, Lt. Col. Frakt found little improvement in the revised version of the Commissions introduced by Congress in the fall of 2006, after the Supreme Court ruled that Cheney’s version was illegal. As he stated, Congress “retained the full list of war crimes (again with minor variations), including the invented ones, and even added new ones, such as the flexible catch-all ‘material support to terrorism.’” He added:

If one were to review the charges brought against all of the approximately 25 defendants charged [under President Bush] in the military commissions, as I have, one would conclude that 99% of them do not involve traditionally recognized war crimes. Rather, virtually all the defendants are charged with non-war crimes, primarily criminal conspiracy, terrorism and material support to terrorism, all of which are properly crimes under federal criminal law, but not the laws of war.

Alarmingly, senior officials in the Obama administration recognized that providing material support to terrorism should not be included in the revised version of the Military Commissions that was approved last summer. In Congressional testimony, Assistant Attorney General David Kris conceded (PDF) that “there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy,” and the Pentagon’s General Counsel Jeh Johnson also accepted (PDF) that “material support is not a viable offense to be charged before a military commission because it is not a law of war offense.”

However, Congress chose to ignore even the government’s appeals, and on November 13 last year, Attorney General Eric Holder announced that five men previously put forward for trial by Military Commission under President Bush — Omar Khadr, Abd al-Rahim al-Nashiri, Ibrahim al-Qosi, Ahmed al-Darbi and Noor Uthman Muhammed — would face what was the United States’ second or third attempt to secure convictions through trials by Military Commission.

Reprehensible excuses for proceeding with the trial of Omar Khadr

As a result, it was somewhat disingenuous of the administration to bleat to the New York Times, via anonymous officials, that the first full trial under the revamped system, that of Omar Khadr, was “undermining their broader effort to showcase reforms that they say have made military commissions fair and just.”

International and domestic concerns about proposals to put Khadr forward for a war crimes trial have been voiced since he was first put forward for a trial in November 2005, primarily because the Canadian citizen was just 15 when he was seized after a firefight in Afghanistan in July 2002, but also because of widespread recognition that a line had been crossed by the government in claiming that his alleged crime — throwing a grenade that killed a US soldier — was a war crime.

Given that the Obama administration chose to ignore both of these criticisms in proceeding with Khadr’s trial, the complaint aired to the Times by anonymous officials — that “No one intended the Khadr case to be the first trial under the revamped system,” as Charlie Savage described it — is frankly reprehensible, as it involves the explicit recognition that the entire trial is unacceptable, and would only be acceptable if it could have been hidden behind the coat tails of a more prominent case — one, for example, that involved recognizable allegations of terrorism.

Attempts to mitigate this uncomfortable truth were also made by the officials who spoke to the Times, but largely without success. The officials explained that they were unsure if offering a new plea deal to Khadr to stop his trial from taking place would constitute “unlawful command influence,” which is prohibited in the Commissions’ rules. Khadr had previously been offered a plea deal, which he refused, and as Charlie Savage explained, “Administration officials have discussed whether senior civilian leaders at the Pentagon or elsewhere could get involved, helping to revive plea negotiations,” or even whether they could direct Vice Adm. Bruce MacDonald (the Commissions’ convening authority, who is responsible for approving all charges and sentences) to “make a more attractive offer.”

What worried them, they explained, was the prohibition on “unlawful command influence” — defined as any attempt “to coerce, or, by any unauthorized means, influence” the actions of prosecutors or the convening authority. Charlie Savage added, “Officials are debating what that means,” but this purported reticence was disputed by Col. Morris Davis, the Commissions’ former chief prosecutor, who suggested the provision to lawmakers in 2006. Col. Davis resigned in October 2007 after he was placed in chain of command under the Pentagon’s General Counsel William J. Haynes II, who aimed to use information derived through the use of torture, against Col. Davis’ own refusal to countenance the use of such material, and he told the Times that he “believe[d] the provision was not meant to bar pressure to sweeten a plea offer,” telling Charlie Savage, “It’s clearly not ‘command influence’ to do something favorable to the accused. The whole concept was the opposite of that.”

Paralysis in the case of Abd al-Rahim al-Nashiri

Ironically, at the same time that these poor excuses were being made in Omar Khadr’s case, the Washington Post revealed that, in the case of a genuine terrorist suspect, Abd al-Rahim al-Nashiri, the alleged mastermind of the bombing of the USS Cole in October 2000, “no charges are either pending or contemplated with respect to al-Nashiri in the near future.” As the Post explained, “The statement, tucked into a motion to dismiss a petition by Nashiri’s attorneys, suggests that the prospect of further military trials for detainees held at Guantánamo Bay, Cuba, has all but ground to a halt.”

Although the Pentagon disputed the statement, claiming that “Prosecutors in the Office of Military Commissions are actively investigating the case against Mr. al-Nashiri and are developing charges against him,” and the Post spoke to military officials who said that “a team of prosecutors in the Nashiri case has been ready go to trial for some time,” one military official seemed to cut through this waffle by stating, “It’s politics at this point.” As the Post described it, “He said he thinks the administration does not want to proceed against a high-value detainee without some prospect of civilian trials for other major figures at Guantánamo Bay.”

This was a reference to Khalid Sheikh Mohammed and four other “high-value detainees” accused of involvement in the 9/11 attacks, whose proposed federal court trials were announced on the same day last November that Eric Holder announced the resumption of trials by Military Commission against Omar Khadr, Abd al-Rahim al-Nashiri and the three others mentioned above. At the time, critical attention focused on the three-tier justice system that Holder’s announcement enshrined, with federal court trials for some prisoners, trials by Military Commission for others, and, as the administration also conceded, indefinite detention without charge or trial for others.

This was rightly lambasted as a travesty of justice, which involved different processes depending on what the administration had gauged to be its level of potential success, and it was not offset by Eric Holder’s claim that, in al-Nashiri’s case, for, example, “With regard to the Cole bombing, that was an attack on a United States warship, and that, I think, is appropriately placed into the military commission setting.” As last week’s Post article made clear, it was more probable that a Military Commission was chosen for al-Nashiri because the prosecution was “expected to rely heavily on statements made to the FBI by two Yemenis who allegedly implicated Nashiri,” and who, unlike in federal court, would not be required to testify, and also, of course, because, as one of three “high-value detainees” subjected to waterboarding — and threatened with a gun and a power drill — al-Nashiri’s own statements would probably be inadmissible as evidence.

Overall paralysis

Ten months on, however, with federal court trials for the alleged 9/11 co-conspirators still in doubt, after a successful backlash that has thrown the administration into paralysis, and with the latest news about the Commissions indicating that they too have “all but ground to a halt,” it is, sadly, clear that the word “paralysis” now defines the Obama administration’s overall response to Guantánamo.

Of the remaining 176 prisoners, only 35, at present, are destined for new homes, after being cleared for release by President Obama’s interagency Guantánamo Review Task Force, and the rest — 58 Yemenis also cleared for release, but still held because of President Obama’s January moratorium on releasing any more Yemenis, the 35 prisoners supposedly scheduled to face trials, and the 48 designated for indefinite detention without charge or trial — are stuck in a limbo of political paralysis that is unlikely to be lifted before the mid-term elections, and that may be impossible to remedy after the elections if the balance of power in Congress shifts away from the Democrats.

Political maneuvering and pragmatism has played a major role in this, as has unprincipled scaremongering from Republicans and members of Obama’s own party, but the result — no trials, few releases and that dominant mood of paralysis — is a poor reflection on the administration, on lawmakers of both parties, and of America in general, because the failure to bring genuine terrorist suspects to justice, to release prisoners who do not constitute a threat, and to close Guantánamo once and for all is nothing to celebrate.

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.

As published exclusively at the website of the Future of Freedom Foundation.

Lawlessness Haunts Omar Khadr’s Blighted War Crimes Trial at Guantánamo

Andy Worthington — Wed, 25 Aug 2010 14:56:20 +0000

On August 12, the US administration’s intention to proceed with the war crimes trial of Omar Khadr, a Canadian who was just 15 years old when he was seized after a firefight in Afghanistan in July 2002, was temporarily delayed when Khadr’s military lawyer, Army Lt. Col. Jon Jackson, collapsed in the courtroom in Guantánamo while cross-questioning a prosecution witness on the first full day of Khadr’s trial by Military Commission.

Lt. Col. Jackson’s collapse was attributed to complications resulting from a gall-bladder operation six weeks previously, but as he was airlifted off the island, and deputy chief defense counsel Brian Broyles acknowledged that Khadr’s trial would be suspended for at least a month, no one in a position of authority — either in the United States or Canada — appeared willing to take the opportunity to find a last-minute way to avoid proceeding with a trial that, to critics, demonstrates only that the Obama administration is incapable of resisting the kind of sweeping and often indiscriminate desire for vengeance that fueled the Bush administration in its response to the terrorist attacks of September 11, 2001.

If this sounds unnecessary, just consider two salient facts:

1. In the face of international concern about the recruitment of child soldiers in other countries, and attempts to recognize, through treaties and other agreements, that they are deserving not of punishment, but of rehabilitation, the Obama administration — and Stephen Harper’s government in Canada — are making a clear exception in Khadr’s case. This not only flies in the face of their commitment to the United Nations’ Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, which includes the agreement that all States Parties who ratify the Protocol “[r]ecogniz[e] the special needs of those children who are particularly vulnerable to recruitment or use in hostilities,” and are “[c]onvinced of the need [for] the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict,” but also involves them tacitly subscribing to the outrageous position regarding juvenile prisoners that was adopted by former defense secretary Donald Rumsfeld and General Richard Myers, the chairman of the Joint Chiefs of Staff, at a press conference in May 2003, after the story first broke that juveniles were held at Guantánamo. On that occasion, Rumsfeld stated, chillingly, “these are not children,” and Gen. Myers, in a weird sporting analogy, added that they “may be juveniles, but they’re not on the Little League team anywhere. They’re on a major league team, and it’s a terrorist team, and they’re in Guantánamo for a very good reason — for our safety, for your safety.”

2. Although Khadr is charged with murder in violation of the law of war for allegedly throwing a hand grenade that killed a US Delta Force soldier, Lt. Col. David Frakt, defense attorney for two other Guantánamo prisoners, Mohamed Jawad and Ali Hamza al-Bahlul, explained in April this year that even if Khadr did throw the grenade, “there is no evidence that he violated the law of war in doing so.” In an important analysis of the Commissions’ Congress-approved failings, Lt. Col. Frakt explained that the confusion arose initially because the Bush administration wanted to find a way to ensure that “any attempt to fight Americans or coalition forces was a war crime,” and that Congress, in enacting two pieces of legislation relating to the Military Commissions in 2006 and in 2009, maintained this unjustifiable position by refusing to distinguish between legitimate and illegitimate actions during wartime. As Lt. Col. Frakt explained, the Bush administration’s original invented charge for the Commissions — “Murder by an Unprivileged Belligerent” — was, essentially, replaced by the Congress-endorsed “Murder in Violation of the Law of War,” even though it “conflated two different concepts — unprivileged belligerents and war criminals.” He continued:

Under Article 4 of the Geneva Prisoner of War Convention it is clear that while a member of an organized resistance movement or militia may be an unprivileged belligerent (because of not wearing a uniform or failing to carry arms openly, for example) he may still comply with the laws and customs of war, so not all hostile acts committed by unprivileged belligerents are war crimes. Attacks by unprivileged belligerents which comply with the law of war (in that they attack lawful military targets with lawful weapons) may only be tried in domestic courts. In Iraq, for example, insurgents who try to kill Americans by implanting roadside bombs are properly arrested and tried before the Central Criminal Court of Iraq as common criminals. Attacks by unprivileged belligerents which violate the law of war, such as attacks on civilians or soldiers attempting to surrender, or using prohibited weapons like poison gas, can be tried in a war crimes tribunal.

In Khadr’s case, whoever threw the grenade that killed Sgt. Speer was attacking a lawful military target with a lawful weapon, which makes a mockery of his war crimes trial, but this inconvenient truth remains hidden behind a smokescreen of colorful, though fundamentally irrelevant distractions: whether Khadr actually threw the grenade that killed Sgt. Speer (which seems impossible to prove), whether he could not have thrown the grenade because he was buried face-down under a pile of rubble (which the prosecution claimed, on that abortive first day of the trial, was a long-standing fiction maintained by the defense), and whether Khadr’s supposed confessions about his involvement in al-Qaeda were tainted by torture.

In a nine-page ruling issued on August 17 (PDF), Judge Parrish turned down Khadr’s motion to suppress any self-incriminating statements as “the product of torture, involuntary [and] unreliable,” finding that “There is no credible evidence that the accused was ever tortured,” and adding, “While the accused was 15 years old at the time he was captured, he was not immature for his age,” but all this really demonstrates is how spectacularly he has missed the point. Held for two years without access to a lawyer, for three years without ever being charged, and at no point treated as a juvenile deserving of rehabilitation, Khadr’s entire experience of US detention has been lawless and abusive, and, in any case, it should be irrelevant whether a 15-year old apparently made self-incriminating statements, when the focus should be on his father, Ahmed Khadr, an alleged fundraiser for Osama bin Laden, who was responsible for indoctrinating his child in the first place.

There are no circumstances in which President Obama comes out of this well. Instead, the decision to proceed with Khadr’s war crimes trial will forever stand as a stark example of his inability to stand up and publicly repudiate the wayward policies of his predecessor. However, as much blame must attach to the government of Stephen Harper, which has persistently refused to demand Khadr’s return to Canada, even though, in January this year, Canada’s Supreme Court ruled that the involvement of Canadian agents in interrogations of Khadr at Guantánamo constituted “state conduct that violates the principles of fundamental justice.” The Court added, “Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel … offends the most basic Canadian standards about the treatment of detained youth suspects.”

This was in marked contrast to Judge Parrish’s view of Khadr’s interrogations by American operatives, but sadly Canada’s Supreme Court stopped short of ordering the government to demand Khadr’s return, limply concluding that it was up to the government to “shape a response that reconciled its foreign policy imperatives with its constitutional obligations to Khadr,” as columnist Chantal Hébert explained in the Toronto Star as Khadr’s trial spluttered briefly to life.

Stephen Harper, of course, put Canada’s “foreign policy imperatives” above Khadr’s rights, just as President Bush did with America’s “foreign policy imperatives” after the 9/11 attacks, and as President Obama has continued to do — although in his case, his refusal to do the right thing seems to be driven more by a desire not to stir up uncomfortable domestic troubles.

The result, while Lt. Col. Jon Jackson recuperates, is that most commentators are still entranced by the sideshow of grenades and torture, and very few people have, like Lt. Col. David Frakt, gazed resolutely at the lawless void at the heart of the circus, and concluded that the show must not go on.

Note: The courtroom sketch above is by Janet Hamlin, and is courtesy of Janet Hamlin Illustration.

As published exclusively on the website of the Future of Freedom Foundation.

Bin Laden Cook Expected to Serve Two More Years at Guantánamo – And Some Thoughts on the Remaining Sudanese Prisoners

Andy Worthington — Tue, 24 Aug 2010 14:51:32 +0000

On August 11, Ibrahim al-Qosi, a 51-year old former cook and driver for Osama bin Laden, was given a 14-year sentence by a military jury, after pleading guilty to one count of conspiracy, and one count of providing material support to terrorism at an earlier hearing on July 7, as I reported here.

The sentence was the first under President Obama and only the fourth in the long and troubled history of the Military Commissions at Guantánamo. The trial system was dragged from the history books by Vice President Dick Cheney in November 2001, ruled illegal by the US Supreme Court in June 2006, revived by Congress later that year, suspended by President Obama on his first day in office, and then revived last November, in a move that was widely criticized as part of a hideously compromised three-tier system of justice for the Guantánamo prisoners, involving federal court trials or Military Commissions for 35 prisoners in total, and indefinite detention without charge or trial for 48 others.

As Reuters explained, al-Qosi, who is Sudanese, met Osama bin Laden in Sudan, traveled with him to Afghanistan, and “acknowledged that he knew al-Qaeda was a terrorist group when he ran one of the kitchens in bin Laden’s Star of Jihad compound in Afghanistan.” He also “admitted helping the al-Qaeda leader escape US forces in the Tora Bora mountains of Afghanistan,” but added that he “had no involvement in or prior knowledge of terrorist attacks.” Putting these admissions in context, Renee Schomp, a Program Associate for Human Rights First’s Law and Security Program, stated:

[A]l-Qosi pled guilty to living on a compound with supporters of Osama bin Laden in Jalalabad, Afghanistan and acting as a cook. His wife and children were with him until about November 2001. Al-Qosi’s guilty plea states that his activities in Afghanistan were the sole means of support for them. Al-Qosi never acted as a bodyguard or security guard for bin Laden, but for 12-18 months he served on defensive lines in a mortar crew — before the “war on terror” began, and not against US forces.

Crucially, al-Qosi’s sentence was part of a plea bargain whose full details have not yet been made publicly available. According to the Dubai-based al-Arabiya TV network, his sentence was capped at two years, although it is clear from the negotiations during his trial — in which the prosecution and the defense called for the military jury to deliver a sentence of between 12 and 15 years — that the jury had not been given any information about the plea deal, and that, essentially, all the details had been worked out behind the scenes to use the jury to deliver a sentence that appeared to validate the system, even though it did no such thing.

What was also apparent during al-Qosi’s sentencing was typical confusion — of the kind that has undermined the Commissions throughout their troubled history — regarding practical considerations; in this case, where his sentence will be served.

As Reuters reported, al-Qosi’s sentencing “hit a snag” because of the military’s inability to develop a coherent policy regarding his desire not to be held in solitary confinement. His plea deal “required the convening authority overseeing the trial [Retired Vice Adm. Bruce MacDonald, who replaced President Bush’s appointee Susan Crawford in March this year] to recommend that Qosi serve his time in Camp Four, where detainees live communally under fewer restrictions than in the other camps.” However, “military rules forbid housing convicted criminals with other detainees.”

Of the three men previously convicted, only one, Ali Hamza al-Bahlul, is still held, and he is serving a life sentence in solitary confinement. Asked to explain the circumstances of al-Bahlul’s confinement, Navy Cmdr. Brad Fagan stated, “He is separated from the general population,” but “declined to elaborate” except to say that “he’s by himself.”

Al-Qosi’s judge, Air Force Lt. Col. Nancy Paul, was clearly unimpressed by the military’s inability to establish a policy regarding the circumstances in which convicted prisoners are to be held. As Reuters explained, “an assistant defense secretary ordered two years ago that the army and the military’s Southern Command, which oversees the Guantánamo base, develop a detailed plan for housing prisoners after their conviction.” As Judge Paul noted, however, “This has not been done.” She added that the absence of an official policy was “especially troubling” because of the possibility of another conviction in the trial of Omar Khadr, the Canadian who was just 15 years old when he was seized in Afghanistan in July 2002.

As a compromise, Judge Paul ruled that al-Qosi’s plea agreement “was valid because it called only for a recommendation that he be housed in the communal camp, and did not guarantee he would be.” She ordered him to “remain in Camp Four for 60 days while the military worked out where he would serve the rest of his sentence.”

Press reports also noted that, at the end of his sentence, al-Qosi will be repatriated to Sudan, where, as the Wall Street Journal explained, the Sudanese National Intelligence and Security Service stated, in correspondence introduced at al-Qosi’s trial by one of his military defense lawyers, Maj. Todd Pierce, that “it would put Mr. Qosi in mandatory ‘rehabilitation,’ monitor his phone calls and email, and deploy ‘informants’ to ensure he ‘no longer [adheres] to a radical ideology.’”

The Wall Street Journal added that the Sudanese intelligence agency reported that its program, used to deal with nine Sudanese prisoners previously released from Guantánamo (between 2004 and 2008), was “85% effective,” and also suggested that the US government “has been working with the Sudanese government to repatriate detainees from Guantánamo Bay.” These men were not named in the report, but there are only two other Sudanese prisoners in Guantánamo, in addition to Ibrahim al-Qosi.

The other two Sudanese prisoners

The first, Ibrahim Idris, who has sometimes been listed as a Yemeni, is clearly of no great significance. Accused of attending al-Farouq (the training camp associated with Osama bin Laden in the years before the 9/11 attacks), and of fighting with the Taliban for two years, he attended a military review board in December 2007, in which he stated that he had actually been seized in Pakistan, where he had traveled for 40 days to work as a missionary. “No disrespect to the interrogators,” he explained. “I said what I had to say, and they made me say things that weren’t true.” This may or may not be accurate (although it is certainly possible), but no information has emerged in the last eight years to indicate that he was involved in any way with terrorist activities.

The case of the other Sudanese prisoner, Noor Uthman Muhammed, who was involved with the Khaldan training camp as a trainer, and who appears to have run the camp when its leader was away, is clearly more problematical for the government. Muhammed was one of 29 prisoners put forward for a trial by Military Commission under President Bush between 2007 and 2008, and was one of five prisoners whose military trials under President Obama were announced by Attorney General Eric Holder last November. Progress in his case has been slow in the months since, with inconclusive wrangling over his defense team’s request for his evaluation by an independent psychologist, but it would be surprising if the government were to be in any great hurry to proceed with the trial, as his case involves two men whose stories the government would prefer to keep hidden. The first is Ibn al-Shaykh al-Libi, the camp’s leader, and the second is Abu Zubaydah, the camp’s mentally troubled gatekeeper.

Al-Libi, who died in mysterious circumstances in a Libyan jail last May, was the notorious CIA “ghost prisoner” who produced a false confession about links between al-Qaeda and Saddam Hussein, while being tortured in Egypt on behalf of the CIA, which was used to justify the US-led invasion of Iraq in March 2003, and Abu Zubaydah, as has become increasingly apparent over the last few years, is the supposed “high-value detainee,” for whom the CIA’s torture program was initially developed, who, in fact, was not part of al-Qaeda and had no knowledge of al-Qaeda’s terrorist plans.

In general, the government has spent the last few years removing all mention of Zubaydah from other prisoners’ cases, and Muhammed’s proposed trial is therefore a potentially disturbing aberration. As McClatchy Newspapers explained in an article on July 1 this year, when Muhammed boycotted a pre-trial hearing, “Declassified documents say Abu Zubaydah has told interrogators that the Khaldan training camp that Noor allegedly ran was a rival to training camps run and sanctioned by bin Laden, wasn’t associated with al-Qaeda, that it was first set up by the US-backed resistance to the Soviet invasion of Afghanistan and was committed to a defensive, not offensive, jihad.”

As McClatchy also noted, there was “little likelihood” that Muhammed would be tried in the near future, because, in April this year, his judge, Navy Capt. Moira Modzelewski, “said it would take her until January or February to sift through classified evidence the prosecution intends to use against him and that the trial couldn’t begin before she’d done that.”

Pre-trial hearings are scheduled to continue next month, but with al-Qosi’s example, it may make more sense for the government to try to work out a plea bargain in Muhammed’s case that would bypass the potential embarrassment of an actual trial.

Whether any of these proposals have anything to do with justice is debatable. As Melina Milazzo, Pennoyer Fellow with Human Rights First’s Law and Security Project, stated after al-Qosi’s sentence was announced, Judge Paul’s decision that “it was in the best interest for both the government and al-Qosi that the details of his plea agreement should continue to be sealed until after his confinement was completed” was “unprecedented in both US federal court as well as US court martial,” adding, “Moreover, shrouding his plea agreement in secrecy does little to provide much needed transparency to a grossly opaque system.”

Noticeably, however, it is pragmatism and diplomacy rather than justice that have largely enabled prisoners to leave Guantánamo, and if President Obama is at all serious about closing the prison, then he should be aware that the Sudanese government has at least provided him with an opportunity to close one more chapter in Guantánamo’s sordid history by facilitating the repatriation of all three of the remaining Sudanese prisoners.

Note: The courtroom sketch above is by Janet Hamlin, and is courtesy of Janet Hamlin Illustration.

As published exclusively on Cageprisoners.

A Letter from Omar Khadr in Guantánamo

Andy Worthington — Tue, 27 Jul 2010 20:35:08 +0000

The Washington Post has just made available a letter from Guantánamo (PDF), written by Omar Khadr, the Canadian citizen who was just 15 years old when he was seized in Afghanistan in July 2002. The letter, to one of Khadr’s Canadian lawyers, Dennis Edney, was written on May 26, and touches on aspects of Khadr’s impending trial by Military Commission — including his constant desire to fire his lawyers, which surfaced in recent pre-trial hearings, and which I discussed in two articles, Defiance in Isolation: The Last Stand of Omar Khadr and Omar Khadr Accepts US Military Lawyer for Forthcoming Trial by Military Commission.

The Washington Post described the letter as “providing a glimpse into the thinking of one of the most high-profile inmates there in advance of his August military commission trial on murder and war crimes charges,” and, in a press release that accompanied the release of the letter, one of Khadr’s supporters explained that, in it, “we see both the boy and the man; the boy in his awkward phrasing and grammar — the man in his sophisticated assessment of his predicament and the role he appears destined to play in the Guantánamo Bay story.”

What is also readily apparent is how Edney has come to be regarded by Khadr as a father figure, a substitute for his own father, killed in Pakistan in 2003, and, presumably, one of the very few people that Khadr has been able to trust during the long years of his incarceration. I think a measure of hard-heartedness can be gleaned from readers’ responses to Khadr’s description of himself as “Your truly son [sic],” and his encouragement to Edney to “Just think about me as a child who died and get along with your life,” if he were to fire Edney and not see him again.

The press release also stated, “Omar’s supporters would also like to announce their intent to embark on a renewed campaign of appeals to Canadian Prime Minister Stephen Harper and American President Barack Obama to re-establish the once solid international reputation of their countries as just enforcers of the rule of law. To do so, we hold that they must take immediate action to insure that Mr. Khadr receive a fair trial, either in an American federal court or in a Canadian court which recognizes his rights under the Canadian Charter of Rights and Freedoms.”

The letter is cross-posted below.

Omar Khadr’s letter from Guantánamo

Dear Dennis:

I’m writing to you because sometimes there are things you can’t say, but rather write on paper, and even if I were to tell you you won’t understand. So anyway here are the things:

First: About this whole MC thing we all don’t believe in and know it’s unfair and know Dennis that there must be somebody to sacrifice to really show the world the unfairness, and really it seems that it’s me. Know Dennis that I don’t want that, I want my freedom and life, but I really don’t see it coming from this way. Dennis you always say that I have an obligation to show the world what is going on down here and it seems that we’ve done every thing but the world doesn’t get it, so it might work if the world sees the US sentencing a child to life in prison, it might show the world how unfair and sham this process is, and if the world doesn’t see all this, to what world am I being released to? A world of hate, unjust and discrimination! I really don’t want to live in a life like this. Dennis justice and freedom have a very high cost and value, and history is a good witness to it, not too far ago or far away how many people sacrificed for the civil right law to take affect. Dennis I hate being the head of the spear, but life has put me, and as life have put me in the past in hard position and still is, I just have to deal with it and hope for the best results.

Second: The thought of firing everybody as you know is always on my mind so if one day I stop coming or fire you please respect it and forget about me, I know it is hard for you. Just think about me as a child who died and get along with your life. Of course I am not saying that will or willn’t happen but its on my mind all the time.

Dennis. I’m so sorry to cause you this pain, but consider it one of your sons hard decisions that you don’t like, but you have to deal with, and always know what you mean to me and know that I will always be the same person you’ve known me and will never change, and please don’t be sad and be hopeful and know that there is a very merciful and compassionate creator watching us and looking out for us and taking care of us all, you might not understand these thing, but know by experience they have kept me how and who I am.

With love and my best wishes to you, and the family, and everybody who loves me, and I love them back in Canada, and I leave you with HOPE and I am living on it, so take care.

Your truly son,

Omar

26 May 2010 at 11:37am

P.S. Please keep this letter as private as can be, and as you see appropriate.

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).

Omar Khadr Accepts US Military Lawyer for Forthcoming Trial by Military Commission

Andy Worthington — Mon, 19 Jul 2010 15:32:39 +0000

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.

Cross-posted on Cageprisoners, The Public Record and Uruknet.

Defiance in Isolation: The Last Stand of Omar Khadr

Andy Worthington — Fri, 16 Jul 2010 11:26:10 +0000

In the last week, Omar Khadr, the only Western citizen still held in Guantánamo, has sacked his US lawyers and stated that he will boycott his forthcoming trial by Military Commission, scheduled to begin on August 10. He has also refused to have anything to do with a plea deal that was being negotiated between the prosecution and defense lawyers, which apparently involved him serving five years of a 30-year sentence if he were to plead guilty to throwing a grenade that killed a US Delta Force soldier, Sgt. Christopher Speer, on the day of his capture after a firefight in Afghanistan nearly eight years ago, on July 27, 2002.

From a legal point of view, Khadr’s decision to boycott his forthcoming trial appears resolutely counter-productive. Of the three prisoners convicted in the Commissions’ miserable eight-year history (a fourth, Ibrahim al-Qosi, awaits sentencing after a plea deal last week), only one — Ali Hamza al-Bahlul — received a punitive sentence, being sentenced to life in prison in November 2008, after a one-sided trial in which he refused to mount a defense.

Khadr’s rebellion may yet play to his advantage, but before considering that, it is worth recounting how he reached this point, and what his rebellion means.

At the time of his capture, Khadr was just 15 years old. Seriously wounded after the firefight in which Sgt. Speer — and all of Khadr’s companions — were killed, he was then accused of having thrown the grenade that killed Sgt. Speer, even though subsequent accounts have indicated that he was face-down and unconscious under a pile of rubble at the time, and was subjected to interrogations, threats and insensitive and sometimes abusive treatment until his transfer to Guantánamo, soon after his 16th birthday on September 19. 2002. In Guantánamo, the same pattern of interrogations, threats and abusive treatment continued.

Khadr’s abuse as a juvenile, in defiance of international treaties

At no point was Khadr treated as a juvenile prisoner (those under 18 years of age when their alleged crimes take place), caught up in war at the instigation of an adult — in this case, his father, Ahmed Khadr, an alleged financier for Osama bin Laden, who had repeatedly shuttled his family from Canada to Afghanistan and Pakistan during Khadr’s childhood. It was, after all, Ahmed Khadr who bore the ultimate responsibility for letting his son spend time with a group of men who, on July 27, 2002, took him with them when they went to visit colleagues in Ab Khail, a small village outside Khost, where they were subsequently ambushed by US soldiers.

Of particular relevance here is the Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict, which was adopted by resolution of the General Assembly of the United Nations on May 25, 2000, and entered into force on February 12, 2002. The US ratified the Optional Protocol on December 23, 2002, five months after Khadr was seized, but then spectacularly failed to fulfill its obligations, which includes the agreement that all States Parties who ratified the Protocol “[r]ecogniz[e] the special needs of those children who are particularly vulnerable to recruitment or use in hostilities,” and are “[c]onvinced of the need [for] the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.”

The US also ignored a detailed plan for the care of juveniles in Guantánamo, “Recommended Course of Action for Reception and Detention of Individuals Under 18 Years of Age” (PDF), dated January 14, 2003, which was drawn up by four doctors at Guantánamo, and provided detailed guidance on how juveniles should be treated. The document, which I discussed in an article in October 2008, began by noting, “All efforts should be made to keep those in the pediatric age range [those under 18] from undergoing detention at Guantánamo Bay, Cuba,” and pointed out, “People less than age 18 years are emotionally, psychologically, and physically dynamic and complex. If it is determined that they must be detained, then all aspects of their transport, in-processing, and detainment should be specific for this age group.” Much of the rest of the document described, in detail, how juvenile prisoners must be housed and treated, and how to meet their psychological and educational needs.

However, instead of being rehabilitated, Khadr was subjected to the full weight of the oppressive and illegal regime at Guantánamo, and was also abandoned by the Canadian government, which sent interrogators to Guantánamo in February 2003. As his Canadian lawyers, Nathan Whitling and Dennis Edney, noted when they released a video of the interrogations in July 2008 (which was provided to them during Canadian court proceedings), although Omar was clearly “suffering from severe emotional problems connected with his detention and interrogation, crying heavily on more than one occasion,” the Canadian officials “dismissed his claims of abuse on the flimsiest of pretexts,” writing, in one of the reports, that his allegations of torture at the US prison in Bagram, Afghanistan “did not ring true,” even though, as we now know, at least two prisoners were killed by US soldiers just months after Khadr was transferred to Guantánamo.

Khadr’s only power – the power to dismiss his lawyers

As a result of all these factors, when two US lawyers, Muneer Ahmad and Rick Wilson of the International Human Rights Law Clinic at American University, finally got to meet him in October 2004, following the Supreme Court’s ruling, in June 2004, that the prisoners had habeas corpus rights, “[s]ecuring [his] trust did not prove easy,” as I explained in a profile of Khadr in November 2007, “primarily because suspicion and paranoia were built into the fabric of Guantánamo.” Ahmad recalled that, when he finally met Omar, his first thought was, “He’s just a little kid.” In August 2006, an article in Rolling Stone explained, “Omar was gaunt and pale, in a state of everlasting exhaustion, his senses starved by solitude. He had large gunshot-wound scars on his back and chest, and smaller scars over most of his body, several parts of which still held shrapnel.”

Significantly, as Ahmad also explained, although Khadr gradually opened up to them, “reveal[ing] himself to be very shy and curious and, in most ways, still a child, with a child’s sweetness and credulous charm,” he also realized, as Michelle Shephard explained in the Toronto Star on Wednesday, that “the only control [he] could wield in prison was whether he saw his lawyers, and if he would let them represent him. Interrogations and daily routines were non-negotiable. Even hunger strikes were unsuccessful due to Guantánamo’s policy of force-feeding striking detainees.”

In November 2005, just over a year after his first visit from his lawyers, Khadr was charged in the first incarnation of the Military Commission trial system, which, in November 2001, Vice President Dick Cheney and his close advisors thought would be a useful method for trying terror suspects without due process, using material derived from torture, and, if required, subjecting them swiftly to the death penalty. It didn’t work out that way, of course, In June 2006, the Supreme Court ruled that the Commissions violated the Geneva Conventions and the Uniform Code of Military Justice, but they were then revived by Congress, and in February 2007 Khadr was charged again. This time around, proceedings limped on until January 2009, when, on his first day in office, President Obama suspended the Commissions, but by May he had concluded that they ought to be revived with the aid of Congress, and in November last year Khadr was charged for the third time.

As the Commissions have struggled to establish their legitimacy, and have stumbled from one disaster to another, plagued by resignations, internal problems and inconsistencies, and a fundamental misconception that any of the charges faced by the prisoners are recognizable as war crimes, Khadr has repeatedly resorted to the only power he has — the power to dismiss his lawyers — even as those men and women did their best to defend him, both in court hearings and in the media, pointing out that he was a child when seized, that he was tortured, that he did not throw the grenade that killed Sgt. Speer, and that the United States ought to be ashamed for even contemplating putting a former juvenile prisoner on trial for war crimes.

Khadr’s defiance and his sense of justice

Khadr’s actions may seem counter-intuitive, and in some ways may be nothing more than a frustrated child in a man’s body lashing out in a manner that reveals the anguish beneath his generally calm exterior. Looked at another way, however, it is easy to understand why Khadr has just sacked his US lawyers (again), and why he believes that the Commissions are rigged and that the US government is incapable of delivering justice in his case. His reasoning permeates the statement he read out in court on Monday, in which he declared:

[Y]our honor I’m boycotting this Military Commission because:

* Firstly the unfairness and unjustice of it. I say this because not one of the lawyers I’ve had, or human rights organizations, or any person, ever say that this commission is fair or looking for justice, but on the contrary they say it’s unfair and unjust and that it has been constructed to convict detainees, not to find the truth (so how can I ask for justice from a process that does not have it or offer it) and to accomplish political and public goals. And what I mean is when I was offered a plea bargain it was up to 30 years which I was going to spend only five years so I asked why the 30 years. I was told it makes the US government look good in the public’s eyes and other political causes.

* Secondly: The unfairness of the rules that will make a person so depressed that he will admit to all[e]gations made upon him or take a plea offer that will satisfy the US government and get him the least sentence possible and l[e]gitimize this sham process. Therefore, I will not willingly let the U.S. gov use me to [fulfill] its goal. I have been used [too] many times when I was a child and that’s [why] I’m here taking blame and paying for things I didn’t have a choice in doing but was told to do by elders.

* Lastly I will not take any plea offer because it will give excuse for the gov for torturing and abusing me when I was a child.

It’s all there: Torture and abuse by the US when he was a child; the refusal by the US authorities to recognize that he was manipulated by those older than him; and a refusal to accept a plea deal that would make the US look good, that would appear to validate an unjust process, and that would involve him confessing to a crime he didn’t commit.

US discomfort, Canada’s shameful history – and why the Harper government needs to act now

I don’t doubt that Khadr’s defiance is mixed with confusion, but it just may be that boycotting his pending trial will force both the American and the Canadian governments to think long and hard about what to do now.

For Barack Obama, the boycott threatens to turn a situation that is already problematical into one that is beyond contemplation. When Ali Hamza al-Bahlul refused to mount a defense and was convicted in the dying days of the Bush administration, no one cared, but in Khadr’s case it is different. As Michelle Shephard explained on Wednesday, his status as a child soldier “has already made many in Washington uncomfortable,” and a decision to boycott his trial may make it “politically untenable.” Jennifer Turner, a researcher who was observing Khadr’s hearing for the American Civil Liberties Union, told Shephard by email, “Politically, it’s a nightmare. Instead of restoring the rule of law, Obama would be presiding over the one-sided prosecution of a child, taken to a conflict zone by his family and mistreated for years in US detention.”

Even more pertinently, Khadr’s boycott may finally provoke action from the Canadian government, which, throughout this whole sordid story, has behaved appallingly. Despite signing the Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict on July 7, 2000, and advocating on the world stage for the rights of child soldiers from other countries, the government has persistently refused to call for the return of Khadr to Canada, and has, over the years, faced mounting condemnation in the courts.

In April 2005, critics of the government’s stance in Canada were appalled when William Hooper, the assistant director of operation for the Canadian Security Intelligence Service, admitted that the information obtained from Khadr’s interrogation at Guantánamo had been shared with the US authorities, without any attempt having been made to ascertain whether it would be used in a case involving the death penalty, and in July 2008, when Nathan Whitling and Dennis Edney released the video of Khadr’s interrogations by Canadian agents, they were able to do so because, on May 23, 2008, the Supreme Court of Canada ruled unanimously that the government had acted illegally, contravening Article 7 of the Charter of Rights and Freedoms, which guarantees that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice,” and ordered the videotapes released.

A month later, on June 25, 2008, there was more trouble for the government, when Mr. Justice Richard Mosley of the Federal Court of Canada ruled (PDF) that a report from a visit to Khadr in March 2004 by Jim Gould of the Canadian Department of Foreign Affairs, which nonchalantly mentioned how Khadr had been subjected to prolonged sleep deprivation for three weeks before his visit, “in an effort to make him more amenable and willing to talk,” constituted a breach of the UN Convention against Torture and the Geneva Conventions.

In April 2009, the Federal Court of Canada revisited the case, reiterating that Khadr’s rights had been violated, and concluding that the government had a “duty to protect” Khadr and should request his return to Canada as soon as possible. In August 2009, the Federal Court of Appeal upheld the ruling, and in January 2010, in another unanimous 9–0 decision, the Supreme Court of Canada also upheld the ruling, concluding:

The deprivation of [Khadr's] right to liberty and security of the person is not in accordance with the principles of fundamental justice. The interrogation of a youth detained without access to counsel, to elicit statements about serious criminal charges while knowing that the youth had been subjected to sleep deprivation and while knowing that the fruits of the interrogations would be shared with the prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.

The Supreme Court stopped short of ordering the government to seek Khadr’s return, accepting, lamely, that it was up to senior officials to ascertain how to balance foreign policy requirements with the need to respect Khadr’s constitutional rights. Predictably, given its past behavior, the government decided that Khadr’s rights counted for nothing, prompting another round of litigation. Last week, Mr. Justice Russell Zinn gave the government seven days to come up with a list of ways in which they intended to protect Khadr’s rights, but on Monday, as Khadr prepared to deliver his statement in Guantánamo, the government filed another last-minute appeal.

Whether evasion on the part of the government is endlessly possible remains to be seen, but it now seems likely that, with Khadr’s boycott looming, the Obama administration may finally seek to exert pressure on Prime Minister Stephen Harper. As Michelle Shephard explained on Wednesday, such has been the Canadian government’s aversion to dealing constructively with Khadr’s case that government officials were not even involved in the discussions regarding a plea deal, meaning that the whole arrangement of serving five years of a 30-year sentence “was never guaranteed.”

Khadr may not have known this when he sprang his surprise on his latest lawyers, but, as Dennis Edney explained, “The deal was dependent on a number of things, including whether Canada would take him. And Canada was never at the table.”

With a chronic travesty of justice looming, it is time for Canada to sit at the table with the Americans, and to work out how to secure Khadr’s release without the embarrassment of a war crimes trial. Unlike every other Western citizen, Omar Khadr has been spurned for too long by his home country, and it is time for Stephen Harper to secure his return, and to bring to an end the desperate defiance, born of frustration and isolation, of a former child prisoner who has lost a third of his life in an experimental prison outside the law.

As published exclusively on Cageprisoners. Cross-posted on Common Dreams, Eurasia Review, The Public Record, Uruknet and Rebel News.

Bin Laden Cook Accepts Plea Deal at Guantánamo Trial

Andy Worthington — Thu, 08 Jul 2010 11:16:40 +0000

In an alleged victory for the Military Commission trial system for terror suspects at Guantánamo, revived by President Obama last year despite the fact that he suspended the Commissions on his first day in office, a Sudanese prisoner, Ibrahim al-Qosi, accepted a plea bargain yesterday, and made a guilty plea on one count of conspiracy and one count of providing material support to terrorism.

In the six years since al-Qosi, now 50 years old, was charged in the first incarnation of the Commissions (which were ruled illegal by the Supreme Court in June 2006), he has been accused of serving as the accountant for a company run by Osama bin Laden in Sudan from 1992 onwards, of visiting Chechnya to fight in 1995, with bin Laden’s support and permission, of serving as a bodyguard, cook and driver for bin Laden in Afghanistan from 1996 onwards, and of fighting in Afghanistan as part of a mortar crew. He was seized in December 2001, crossing the border from Afghanistan to Pakistan.

Charged again in February 2008, and again last November, he had, until yesterday, taken part in several inconclusive hearings, and had, for the most part, watched as the government largely failed to secure any legitimacy for the Commissions, winning only three dubious victories: David Hicks (via a plea deal) in March 2007, Salim Hamdan after a trial in August 2008, and Ali Hamza al-Bahlul, after a one-sided trial in which he refused to mount a defense, in November 2008.

At his hearing on Wednesday, the final picture that emerged, as the Miami Herald explained, was of a man who left Sudan to follow bin Laden to Afghanistan, taking his wife and children with him, and who “admitted that his work for al-Qaeda was his family’s only means of support.” He also admitted that he “went to Pakistan for al-Qaeda and met the Taliban’s top leader, Mullah Omar, who used to stop by the terrorist compound on holidays,” that he “drove a caravan of vans when bin Laden and his associates went to Kandahar, where married and single terrorists were separated into groups in two-room apartments,” and where he “cooked for the bachelors,” and that he “also spent more than a year on the front lines, getting bombed on the Pakistan border and coming under fire from US helicopters in Jalalabad.”

During the hearing, he told the judge, Air Force Lt. Col. Nancy Paul, that “he acknowledged his offenses and he understood his plea deal,” as the Associated Press explained, although he “did not speak at length.” The details of the deal, which have spared him from facing additional charges at a trial, were not disclosed, although rumors of a deal have circulated for several months, and it was understood that a plea deal would also prevent him from receiving a life sentence, as may have happened had his case proceeded to trial. The Miami Herald noted that the Dubai-based Al-Arabiya satellite news network, “[c]iting two anonymous sources who read the plea agreement,” reported that he “agreed to a maximum of two more years in prison before he is sent home to Sudan.”

A panel of military officers is scheduled to deliver al-Qosi’s sentence on August 9. Navy Capt. David Iglesias, a spokesman for the Prosecution Office of the Military Commissions, explained that “[m]ilitary legal authorities can reject the panel’s sentencing decision if it exceeds what was agreed upon as part of the plea deal.” He “declined to say how much more time, if any, the prisoner could serve under the agreement,” but stated, “Both sides reached an agreement that they felt was fair and it would be against the interests of justice not to accept it.”

Iglesias also said that al-Qosi “admitted to knowing [bin Laden] personally, helping him and was willing to follow him around. He was somewhere between a foot soldier and less than a general. We are not talking about robbing a 7-Eleven in Hialeah. We are talking about war crimes.” This analysis, which was perhaps acceptable until it came to Iglesias’ conclusion about “war crimes,” was strongly challenged by critics who have opposed the Commissions throughout their generally dismal eight-year existence, and who were dismayed when President Obama decided to revive them last May, conveniently forgetting how much he had opposed them as a Senator in 2006 and 2007.

Stacy Sullivan, a senior counter-terrorism advisor for Human Rights Watch, said, “He’s a cook who served as a driver and possibly a bodyguard, Can you imagine if, during Nuremberg, they prosecuted cooks and drivers? It didn’t happen. They consider the fourth conviction in eight years a victory?” She also noted, as the Miami Herald explained, that al-Qosi’s “accusations of abuse, including that he was wrapped in an Israeli flag and subjected to loud music, was not mentioned in court,” and nor was there any mention of claims made in 2005 by Lt. Col. Sharon Shaffer, who was assigned to represent al-Qosi at the time, who ”characterized his treatment as possibly torture but certainly inhumane treatment; he was held in stress positions for protracted periods, subjected to military dogs and sexually humiliated.”

Adding to the criticism, Daphne Eviatar, a senior associate in Human Rights First’s Law and Security Program, stated, “This is not a victory for the military commission system. In fact Mr. al Qosi’s case is a textbook example of the inability of the military commission system … to achieve swift justice. The case has dragged on for more than six years without a trial.”

Given how shambolic al-Qosi’s last hearing in December was, it is unsurprising that the administration chose to pursue a plea deal rather than a full-blown trial. On that occasion, as I explained at the time, Lt. Col. Paul resisted the prosecution’s attempts to push back the start date of al-Qosi’s alleged crimes from 1996 to 1992, noting that:

although the rules regarding proposed changes in the new Military Commissions Act appeared to provide no guidance on this point, the relevant passages in the 2006 Act, which were drawn substantially from passages in the US military’s Rules for Court-Martial, were clear that the government’s request constituted a “major change” to the charges, and that “major changes may not be made over the objection of the accused unless the charges are withdrawn and re-referred.”

She added that the proposed amendments were “troubling in nature as the four-year extension of time and addition of overt acts dramatically changes the nature of the offense alleged,” noted that the request disrupted trial preparation which “has been ongoing for almost 2 years,” and, in conclusion, denied the request because the changes “are essentially new and additional offenses and contain substantial matters not fairly included in those previously referred,” and, additionally, because they bring “unfair surprise to the Accused.” In the courtroom, as Devon Chaffee [an observer for Human Rights First] explained, Lt. Col. Paul made a point of adding that, five years after the government first filed charges against al-Qosi, the defense still “doesn’t even know what the charges are going to look like.”

With the plea deal, further embarrassments like these will presumably be avoided (in al-Qosi’s case at least), as will legal challenges to the charges themselves — of conspiracy and material support — which have both been subjected to serious criticism, leading to doubts about whether either charge will stand up on appeal.

In Hamdan v. Rumsfeld, the case in which the Supreme Court shut down the Commissions’ first incarnation, Justice John Paul Stevens, in an opinion in which he was joined by three other justices, made a point of mentioning that “conspiracy” has not traditionally been considered a war crime. Moreover, on the charges of material support, which are currently being appealed in the cases of Salim Hamdan and Ali Hamza al-Bahlul, senior administration officials proposed to Congress last summer, as the Commissions were being revived with lawmakers’ support, that the charge of material support for terrorism should be dropped. As I explained last December:

Assistant Attorney General David Kris conceded (PDF), in Congressional testimony in July, that “there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.” The Justice Department’s position was echoed by the Pentagon, where General Counsel Jeh Johnson also accepted in July (PDF) that “material support is not a viable offense to be charged before a military commission because it is not a law of war offense.”

The irony, as I also noted at the time, was “not only that David Kris and Jeh Johnson failed to persuade Congress to drop the charge of material support for terrorism, but also that Congress ignored Kris’ additional suggestion that ‘material support charges could be pursued in federal courts where feasible.’”

With this in mind, it may be worth watching out for more plea bargains in the Military Commissions, while everyone who should know better — or who has influence but no insight — continues to ignore the fact that the Commissions should never have been revived, and that any trials should take place in federal courts.

Note: The courtroom sketch above, by Janet Hamlin, is courtesy of Janet Hamlin Illustration.

Cross-posted on Common Dreams, Eurasia Review, The Public Record and The Smirking Chimp.

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 January 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.

Guantánamo as an “Intelligence Squeezing” Center: Pakistan Media Interviews Col. Morris Davis

Andy Worthington — Mon, 28 Jun 2010 14:54:08 +0000

Note: Please see the postscript below by Col. Davis.

Today, the Daily Times in Pakistan has published an interview with Colonel Morris Davis, conducted by political analyst Ali Kamran Chishti. The interview is of interest for Col. Davis’ explanation of how Guantánamo operated as an illegal “intelligence squeezing” center, and for his description of the prison as “an embarrassment to the United States.” For Pakistani readers, and those interested in Pakistan’s relationship to the US, the interview is also fascinating for Col. Davis’ assertion that the ISI (the Inter-Services Intelligence directorate, Pakistan’s largest, and most controversial intelligence agency) was involved in negotiations regarding proposed trials for prisoners, but that the Pakistani government was not informed about these discussions.

It is also of interest because of Col. Davis’ thoughts on US policy in Afghanistan and Pakistan, and on the use of drones, and also because he reiterates that he resigned as the chief prosecutor of the Military Commission trial system at Guantánamo in October 2007, “because I did not believe we would provide full, fair and open trial for the detainees we intended to prosecute.”

Col. Davis has previously explained that his resignation was triggered when he was placed in a chain of command under Pentagon chief counsel William J. Haynes II, who was implicated in the development of torture as part of Dick Cheney’s “War Council,” and I was impressed by how, in the interview, he described the importance of observing the rule of law:

There were too many people trying to manipulate the trials and a few people trying to pressure me to use evidence that was unreliable because it was the produce of undue coercion. I couldn’t in good conscience be a part of that. I was just one of the many who had the common sense and common decency to recognize that there’s a line between right and wrong, and the courage to stand up for what’s right.

I was also pleased to note that Col. Davis followed up on this statement by hinting that the actions of his superiors may have constituted illegal actions, and that they may one day face prosecution: “I hope the world will come to see that despite a few bad people in the US government who made bad decisions — decisions that may even be criminal — there were many of us who believed in the sanctity of the rule of law.”

I must point out, however, that I don’t agree with all of Col. Davis’ assessments. Even if “The facilities [at Guantánamo] are clean, they are safe, they are not over-crowded, the food is good and the medical care is better than I got when I was in the military,” as Col. Davis asserts, which still seems to be open to dispute, this is not adequate compensation for being held in a uniquely open-ended form of arbitrary detention that is ruinous for the prisoners’ mental health.

Moreover, on his position regarding the three questionable suicides at Guantánamo on June 9, 2006, I also have doubts. Col. Davis states that the men in question were insignificant, and that “None of them had been among the detainees who instigated trouble with the guard force.” While the former assertion is correct, in terms of how they were perceived as terrorist suspects, the second is not, because all three men had been profoundly troubling to the authorities, as long-term hunger strikers who persistently stood up for the rights of their fellow prisoners.

In addition, Col. Davis states that, because of the timing — with an important Supreme Court ruling imminent (Hamdan v. Rumsfeld), as well as the scheduled arrival of 14 “high-value detainees” from secret CIA prisons — “the personnel at Gitmo had no reason to arbitrarily murder three nobodies; instead they had every reason to be on their best behavior.”

I’m uncertain about this timing, in that I’m not sure that the decision to transfer 14 “high-value detainees” into Guantánamo (who arrived in early September 2006) was taken until after the government lost Hamdan v. Rumsfeld on June 29, 2006, when the Supreme Court found that the administration did not have the authority to establish the Military Commission trial system at Guantánamo without Congressional approval, because it did not comply with the Uniform Code of Military Justice and the Geneva Conventions, and the government then panicked about its secret CIA detention program.

In any case, another reason for doubting Col. Morris’ assertion about the behavior of the military personnel at Guantánamo in June 2006 is that, if the men were killed on June 9, 2006, it was as a result of the activities of agents outside the military’s command — the CIA, or perhaps the Joint Special Operation Command (JSOC), the shadowy organization that was recently implicated in reports of torture in a secret prison at Bagram, Afghanistan — and the military only became involved because a cover-up was required.

Nevertheless, it is always good to hear from Col. Davis, whose principled stand against the Bush administration’s attempts to convict Guantánamo prisoners in show trials using information derived from torture ensures that he, and five other prosecutors who resigned (including Lt. Col. Darrel Vandeveld, whose resignation in September 2008 also had a major impact), will always be remembered as principled public servants who chose to uphold their loyalty to the Constitution over the unprincipled demands of a President who was more interested in the exercise of unfettered executive power.

Gitmo detainees were exploited for intelligence
The Daily Times, Pakistan, June 28, 2010

Pakistan-based political analyst Ali Kamran Chishti recently interviewed former Guantánamo Bay prison chief prosecutor Colonel Morris Davis. The following is the transcript of the talk.

Ali Kamran Chishti: Tell us about yourself.

Colonel Morris Davis: I am 51 and grew up in Western Carolina in the US and attended college and law school there. I joined the US Air Force in 1983 and served there for 25 years as an attorney. I was Chief Prosecutor for the Military Commissions at Guantánamo Bay, Cuba from September 2005 to October 2007.

Ali Kamran Chishti: How many prosecutors worked at Gitmo?

Colonel Morris Davis: I was head of a multi-agency Prosecution Task Force (PTF) that fluctuated in size over time. When I resigned in October 2007 there were about 110 people detailed to the PTF on a full or part-time basis including attorneys, paralegals, intelligence analysts, law enforcement agents and support personnel from the Department of Defense, Department of Justice, CIA, FBI and other federal agencies.

Ali Kamran Chishti: So what did you do as chief prosecutor and did you have direct access to detainees?

Colonel Morris Davis: Probably the best analogy is to the role of a head coach of a sports team. I assigned team members, monitored their progress, provided guidance on their preparations, ensured they had the resources they needed and made sure everyone understood the rules and followed them. The law enforcement members of PTF (CIA, FBI etc.) had more direct access to the detainees. The PTF did have access to the detainees, which was necessary in order to prepare cases for trial, and we interviewed many of them in detail. I interviewed directly with two detainees.

Ali Kamran Chishti: Great! So you had the prosecution team at Gitmo but did you have a defense team too?

Colonel Morris Davis: I believe an ample number of very capable and qualified defense attorneys, both military and civilians, were and are committed to the defense effort. And I believe they did a fine job of keeping the military commission process tied up in litigation in the federal courts for years, ending up with the Supreme Court’s decision in Hamdan v Rumsfeld in June 2006 that ended the process created by President George Bush, [which was] created by an executive order.

Ali Kamran Chishti: Okay! Now let’s talk about the rights which the Gitmo detainees never had. Apparently, President Bush did not give detainees protection under the Geneva Conventions despite the Supreme Court’s ruling in Hamdan v Rumsfeld, which actually calls for a “minimal protection” to detainees (Common Article 3 of the Geneva Conventions). Did people from “inside” disagree [with] that?

Colonel Morris Davis: Yes, people disagreed with the Geneva Conventions. If you haven’t already, you might want to read Karen Greenberg’s book, The Least Worst Place, which chronicles the first 100 days that Gitmo was in operation in early 2002. The military leadership, in absence of any other rules, fell back on their Geneva Convention training and the place operated in a pretty humane manner at the outset. All of the Judge Advocate Generals, the senior uniformed attorneys of each of the military services, argued for application of the Geneva Conventions. Apparently, it was the civilians like David Addington, John Yoo, Alberto Gonzales and Jim Haynes — a group referred to as “the big brains” — who disagreed and had more clout. Secretary of Defense Rumsfeld was dissatisfied with the amount of information coming from the detainees and pressed to ratchet up the coercion to squeeze more intelligence from the detainees, and the rest is history.

Ali Kamran Chishti: What were the legal standards used to put people in Guantánamo? The public has the impression that many innocent people were in there on the basis of rumors or malicious individuals. If no information was gained from them after a year or so, why were they kept for so long?

Colonel Morris Davis: I don’t know the precise process that resulted in most of the detainees going to Gitmo because that pre-dated my involvement in the military commissions. The only detainees sent to Gitmo during my tenure were 15 high value detainees that were transferred from the CIA black sites to DoD detention at Gitmo. Those were approved by President Bush. The customary laws of war permit detention of enemy combatants for the duration of hostilities. That authority is not dependent on whether they do or do not provide information. It is dependent on whether they pose a current or future threat to us or our allies.

Ali Kamran Chishti: Sir, do you realize [that out of] all those years of the establishment of Gitmo only three prisoners (David Hicks, Salim Hamdan and Ali Al-Bahlul) were convicted while 420 out of 775 were released without a charge? Why? [Note: 532 prisoners were released under President Bush (including Hicks and Hamdan) and Obama has released another 59].

Colonel Morris Davis: Basically Gitmo was more of an “intelligence squeezing” center than a Jail.

Ali Kamran Chishti: Why were some people put in Guantánamo, others sent to secret detention sites in Europe, and others to Syria, Egypt etc. for questioning? And some remained in Bagram, Afghanistan. Are these different categories of prisoners?

Colonel Morris Davis: Those sent to Gitmo were those believed to have intelligence value. People were not sent there to face prosecution, they were sent there to be exploited for intelligence.

Ali Kamran Chishti: Hmm … so who was in charge of the interrogation? Or “Intelligence Squeezing” Ops?

Colonel Morris Davis: There is no simple answer. The Department of Defense operated the facility and had primary responsibility for the interrogations through an organization called the Joint Intelligence Group (JIG). That is not to say the CIA or FBI or a foreign intelligence or local enforcement agency couldn’t speak with detainees but the vast majority of the work was done by personnel from the Defense Department. On the other hand, at the CIA black-sites where the high-value detainees were held before they were sent to Gitmo, the CIA had primary responsibility and conducted most of the negotiations.

Ali Kamran Chishti: Hang on, foreign agencies were allowed access to the detainees?

Colonel Morris Davis: Yes. I know the Canadians were allowed to speak to Omar Khadr [as well as] various [other] intelligence agencies around the world that had access.

Ali Kamran Chishti: Various intelligence agencies like the ISI?

Colonel Morris Davis: Yes. In fact I had one face-to-face meeting with a very senior official of the ISI (name withheld). We initially met to discuss the extent to which ISI would assist us, as we got ready for the military commission trials.

Ali Kamran Chishti: Military Commissions? Did the ISI agree to this?

Colonel Morris Davis: Yes. We needed access to people, things and places and ISI could help facilitate the process. The official I met with was very cordial and was more than willing to arrange ISI cooperation. In return they were interested in access to one detainee of Pakistani origin at Gitmo (name withheld). I was supposed to travel to Pakistan for a follow-up meeting but our trip was delayed because of unrest in Pakistan. I resigned a few months later, so I never made the trip. I don’t know to what extent ISI is cooperating with the prosecution now.

Ali Kamran Chishti: So are you trying to say — and let me get it absolutely spot-on on this one: Yes or no. What you said is that the ISI or Pakistani military agreed to help US try Pakistani nationals at military tribunals without the protection of the Geneva Conventions at Guantánamo Bay, Cuba?

Colonel Morris Davis: Yes, absolutely.

Ali Kamran Chishti: And there was no one from the Pakistani civilian government [who] ever checked up on the Pakistani detainees state of affairs? Or wanted consular access?

Colonel Morris Davis: Negative. No contact whatsoever.

Ali Kamran Chishti: On the violence part: Gitmo has one of the worst human rights record and as you say it was more of an “intelligence exploitation” center than a jail. How [was] intelligence squeezed out?

Colonel Morris Davis: It was my understanding that Secretary Rumsfeld rolled back his earlier authorization for enhanced techniques in 2004 after the abuses at Abu Ghraib went public. I never witnessed torture at Gitmo although aggressive techniques were used prior to the time I became chief prosecutor in September 2005. I know there were some instances where interrogators went too far and crossed the line. [Mohammed al-]Qahtani and [Mohamedou Ould] Slahi are two examples where the techniques used by the interrogators went too far. Those instances were not anywhere near as common as most people believe. In my estimation, more than 90 percent of the information developed at Gitmo came from interrogators taking the time to develop relationships with detainees, often over burgers, pizza and sub sandwiches rather than using undue pressure to make them talk. In the few cases where interrogators went too far, I instructed the PTF members that we would not use anything the detainees said and, instead, we would work to develop cases independent of the coerced statements at trials, then how the statements were obtained is irrelevant in the military commissions. Also contrary to popular folklore, no one was ever waterboarded at Gitmo. There were three detainees that were waterboarded and that happened while they were in CIA custody long before they were transferred to Gitmo.

Ali Kamran Chishti: How do you define torture? Does it include sleep deprivation? Or other psychological forms of pressure that are not used in normal prisons? Who ordered the torture to start and stop?

Colonel Morris Davis: I have never tried to define torture. Whether a detainee was tortured focuses on the culpability of those interrogating the detainee and whether they should be prosecuted for their conduct, which is not a military commission matter. My job as chief prosecutor for the military commissions was to prosecute enemy combatants we believe committed war crimes. My sole focus was on whether the information obtained from the detainee was reliable regardless of whether the treatment reached a level where it satisfied the elements of torture under domestic or international law. As for the latter part of the question of sanctioning torture: both former president Bush and former vice president Cheney stood by their decision, arguing the ends justified the means.

Ali Kamran Chishti: Now there were reports of mass suicides by detainees because of the treatment by interrogators. Your views?

Colonel Morris Davis: You’ve linked two facts — there were suicides and there was some abusive treatment by interrogators — to form a conclusion that I believe is incorrect. I was down at Gitmo on June 9, 2006 when the triple suicides occurred. Admiral Harry Harris, the commander of the detainees operations at the time, was vilified for calling the suicides an act of “asymmetrical warfare”. I personally believe Admiral Harris was right to call it what it was. The story that this was a triple homicide followed by an elaborate conspiracy to conceal it makes for good drama but I don’t believe the scenario was accurate. When Donald Rumsfeld referred to the detainees in general as the “worst of the worst”, the three detainees that killed themselves did not fit the description. They were so insignificant among the detainee population that when I saw the names I had no idea who they were. At least one of the three had already been cleared for transfer back to his home country since he didn’t pose a threat to the US or our allies. None of them had been among the detainees who instigated trouble with the guard force. These were human beings, so I don’t mean to disparage them in any way, but among the detainee population as a whole they were nobodies. Recall, too, that at that point in time in June 2006 we were days away from the Supreme Court announcing its decision in the Hamdan case and President Bush was preparing to announce that he was authorizing the transfer of the high-value detainees from CIA custody at the black sites to DoD detention at Gitmo. In short, the personnel at Gitmo had no reason to arbitrarily murder three nobodies; instead they had every reason to be on their best behavior, given the historic announcements that were coming from the most senior levels of the US government in the coming days.

Ali Kamran Chishti: Do you think Gitmo was an embarrassment to the United States?

Colonel Morris Davis: It was and clearly is an embarrassment to the United States. As to whether it should have been closed, I suppose that depends on what the alternative would have been. If it just meant moving all or most of the detainees to another facility – Bagram, for instance — all you’ve done is create another Gitmo in a new location. I have personally seen a great many jails and prisons in the United States and abroad, and the facilities at Gitmo are far superior. I believe Americans who are currently in prison would gladly trade places if they saw the conditions at Gitmo. The facilities are clean, they are safe, they are not over-crowded, the food is good and the medical care is better than I got when I was in the military. Unfortunately, just the word Guantánamo has become such a stigma that I don’t know if it’s possible to rehabilitate its image, which alone may warrant its closure.

Ali Kamran Chishti: Why did you resign from the post of chief prosecutor of Guantánamo Bay?

Colonel Morris Davis: I resigned because I did not believe we would provide full, fair and open trial for the detainees we intended to prosecute. There were too many people trying to manipulate the trials and a few people trying to pressure me to use evidence that was unreliable because it was the produce of undue coercion. I couldn’t in good conscience be a part of that. I was just one of the many who had the common sense and common decency to recognize that there’s a line between right and wrong, and the courage to stand up for what’s right. I hope the world will come to see that despite a few bad people in the US government who made bad decisions — decisions that may even be criminal — there were many of us who believed in the sanctity of the rule of law. A year later, in October 2008, I retired from the Air Force. For my final year I served as Director of Air Force Judiciary.

Ali Kamran Chishti: Why did the Obama administration decide to sack you from Congress?

Colonel Morris Davis: I think the opinion pieces I published last November in the Wall Street Journal and the Washington Post, [which were] critical of the Obama administration’s handing of the Gitmo detainees issue, aggravated some in the Obama administration, but I do not believe they instigated my termination at the Library of Congress. The person I was working for had been at the Library for more than 40 years and in my view he is incapable of separating his personal beliefs from his professional duties. He was offended that I had the audacity to publicly express my opinion about Gitmo based on my former role. My boss didn’t like it, although the Library of Congress has a regulation that at least in print purports to encourage employees to write and speak on topics outside the scope of their official duties. I relied on the rules and my boss fired me. Interestingly, I alienated some in the Bush administration when I resigned as chief prosecutor and spoke out against torture and political meddling in the trials. I then alienated some in the Obama administration when I criticized their waffling on what to do with the Gitmo detainees. Having offended both the ends of the political spectrum, I’ve hit a spot where I’m now [un]employable.

Ali Kamran Chishti: How do you view American foreign policy in general and specifically Afghanistan-Pakistan policy?

Colonel Morris Davis: I give President Obama credit for his efforts to engage with other countries and I’m particularly impressed by Secretary of State Clinton. She has done much better than I ever expected. I never understood the Bush administration’s view that talking with others is a sign of weakness. I thought the Bush policy was arrogant and short-sighted. While the current administration has done a good job of reviving international dialogue, I’m waiting to see it followed up with some concrete actions that show we are meaningfully engaged in the community of nations. I’m skeptical of our Af-Pak strategy. Too often we tend to view others through our own lens and often we’re shocked when they don’t behave as we would. We thought the Iraqis would see us as liberators and they’d embrace democracy and become a Middle East success story. We were shocked that when given a chance for democratic elections the Palestinians elected Hamas. I’m afraid we bring those same biases to our Af-Pak strategy. Nation building in that region has been a largely futile effort for generations. I’m not sure why we think we’ll prevail where so many others failed. I also found it ironic that the far right, who were so critical of President Bill Clinton for using the military for nation building, ended up getting us into two massive nation building endeavors that dwarf anything that ever happened when Clinton was in office. I hope I’m wrong and that by this time next year we are withdrawing forces from Afghanistan and the situation there has gotten a lot better, but I’m doubtful that will happen.

Ali Kamran Chishti: Do you see, as an Air Force Officer, the effectiveness of drones? And how it is affecting Pakistan?

Colonel Morris Davis: I don’t think there is any question that drones are effective, at least from our perspective. For us they are safe, inexpensive, and can loiter a lot longer than conventional aircraft and provide a better blanket of close air support. It’s how we use them that is problematic. I am concerned about the legality of how we’re employing them. If a CIA employee operates a drone from a remote site far from the front lines and fires a missile that kills people on the ground in another country, what is the legal status of that employee? Where does he or she fit in the Geneva Convention classification of personnel in an armed conflict? Is he or she a lawful or unlawful combatant? How would we react if the Mexican government pursued a drug cartel member across the US border using a drone and then fired a missile that killed the drug smuggler and some American citizens? It may be a case of where we condone doing ourselves what we’d condemn others for doing, similar to how some view our use of torture compared to torture by others.

Ali Kamran Chishti: Thank you so much for the time.

Colonel Morris Davis: It’s always a pleasure, Ali.

POSTSCRIPT: Col. Davis wrote to me with the following clarifications of aspects of the interview:

What Ali reported is for the most part accurate. It was based in part on my written responses to his written questions as well as a brief telephone conversation that Ali then wove together into a single narrative. The part of the narrative that came from my written answers is mostly accurate, although it was edited after I submitted it and it is not a verbatim version of what I sent Ali. Some of the narrative that came from the telephone conversation is not “spot-on.” I suspect that is due in large part to Ali and I having some difficulty understanding the other because of our distinct accents. To be clear, I did meet with a Pakistani official to see if they would be willing to assist us in preparing for the military commissions, but there was no mention whatsoever of them doing so in return for access to a detainee or in return for anything else for that matter. The official I met with was willing to arrange a meeting in Pakistan with government officials to discuss the extent, if any, of their assistance to us, but the trip did not take place before I resigned. Also, I don’t know whether anyone from their government checked up on Pakistani detainees. Ali asked if I ever saw anyone from the Pakistani government at Gitmo and I said I had not, and that the only government I knew for sure that visited one of its citizens was the Canadian’s meeting with Khadr. As for your assertion about the timing of the Supreme Court’s decision in the Hamdan case and the transfer of the high value detainees, I know from personal involvement that the latter was independent of the former.

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 January 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.

Amnesty International Blasts Obama for Delays and Injustice on Human Rights, Guantánamo and Terrorism

Andy Worthington — Sat, 26 Jun 2010 21:35:43 +0000

To mark the International Day in Support of Victims of Torture, I have an article published on Truthout (which I’ll be publishing here tomorrow) and have just posted an article featuring statements by UN Secretary-General Ban Ki-moon and other UN experts, but in the meantime I thought this was a good opportunity to mark the occasion by cross-posting an excellent Amnesty International report issued on June 23 (“Normalizing delay, perpetuating injustice, undermining the ‘rules of the road’”), which is not only appropriate for today, but is also a great review of the Obama administration’s failures with regard to human rights, and a compelling analysis of a document that I haven’t had time to review myself — the 60-page National Security Strategy, published by the White House last month, which, as Amnesty explains, displays America’s “particular fluency in the language of human rights,” even though its own actions “have frequently fallen short of its international obligations”.

The report echoes my own complaints about the Obama administration’s poor response to the challenge of cleaning up after the brutal and chaotic arrogance of the Bush years, with regard to human rights and the so-called “War on Terror.” The authors criticize the Obama administration’s reliance for its detention policies on the Authorization for Use of Military Force, the founding document of the phony “war,” which equates soldiers with terrorists, but fails to treat terrorists as criminals, and continues to be used as an excuse for indefinite detention. The report also lambasts the administration for its unconscionable delays in releasing prisoners from Guantánamo who are not regarded as significant terrorist suspects, and also focuses on recent court activity in a case that I have not had the opportunity to deal with: that of Obaydullah (aka Obaidullah), a largely insignificant minor Afghan insurgent who has found himself held for years in an unacceptable legal limbo, charged in a military commission system that is barely functioning, and yet unable to challenge his detention through a habeas corpus petition. The report also focuses on the administration’s refusal to acknowledge that grievous errors were made in the case of Maher Arar, an innocent Canadian who was subjected to “extraordinary rendition” and torture in Syria on little more than a whim, and also dares to ask why it is that men like Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, is still held without trial, over seven years after his capture.

USA: Normalizing delay, perpetuating injustice, undermining the “rules of the road”: Adherence to international human rights must be central to security strategy

Amnesty International, AI Index: AMR 51/053/2010, June 23, 2010

And we reject the notion that lasting security and prosperity can be found by turning away from universal rights … our support for universal rights is both fundamental to American leadership and a source of our strength in the world.
President Barack Obama, National Security Strategy, May 2010

Acting to give real meaning to words could be said to be at the heart of the human rights project begun in 1948. Adopting the Universal Declaration of Human Rights 62 years ago, the international community pointed to its text as a “common standard” — not for mere recitation, but for actual “achievement”. Fulfilling, not simply repeating, the words of the Universal Declaration was, and must still be, the aspiration “for all peoples and all nations” as the “foundation of freedom, justice and peace in the world”.

The USA has long displayed a particular fluency in the language of human rights, but its own actions, often couched in terms of domestic values, have frequently fallen short of its international obligations. This unfortunately remains the case today in respect of detentions, trials, accountability and remedy in the counter-terrorism context.

In the National Security Strategies issued under President George W. Bush in 2002 and 2006, the USA promised to champion the “non-negotiable demands of human dignity”, including the “rule of law” and “equal justice”, even as it sought to keep detainees it labeled as “enemy combatants” in a global “war on terror” from judicial supervision and pursued interrogation techniques and detention conditions that violated the international prohibition of torture and other cruel, inhuman or degrading treatment. Clearly the administration considered “human dignity” during this period to mean something quite different from the understanding most governments around the world, including many of the USA’s closest international partners, and international human rights bodies, had held for decades.

The latest National Security Strategy released by the White House on 27 May 2010 [PDF] also makes promises on human rights and human dignity, some general, some specific. Generally, the strategy asserts, one of four “enduring national interests” for the USA is ensuring “respect for universal values at home and around the world”. In addition, it asserts that the “rules of the road must be followed and there must be consequences for those nations that break the rules”, such as on their “human rights commitments”. More specifically, it reiterates among other things that torture is prohibited “without exception or equivocation”. While this is welcome, some other parts of the security strategy, such as its restatement of the Obama administration’s decision to retain military commission trials and indefinite detention without charge or criminal trial for use against selected terrorism suspects, are not:

When we are able, we will prosecute terrorists in Federal courts or in reformed military commissions that are fair, legitimate, and effective. For detainees who cannot be prosecuted — but pose a danger to the American people — we must have clear, defensible, and lawful standards. We must have fair procedures and a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

As the legal authority for such detentions, the US authorities continue to rely upon the Authorization for Use of Military Force (AUMF), a broad resolution passed after little genuine debate by Congress in the immediate wake of the attacks of 11 September 2001. Because of the human rights violations that have been committed in the name of the AUMF over the years, Amnesty International has called since 2006 for its revocation. When the Obama administration took office, the organization called on it to clarify that it would not interpret the AUMF as representing any intent on the part of Congress to authorize violations of international human rights or humanitarian law, or as otherwise providing authority for such violations.

Closure of the detention facilities at the US Naval Base in Guantánamo Bay, Cuba, is a goal repeated in the National Security Strategy, with the stated purpose not necessarily to respect and ensure human rights per se, but rather “to deny violent extremists one of their most potent recruitment tools.” A human rights approach to ending the Guantánamo detentions would include the principle that any detainee not charged with a recognizable criminal offence for trial under fair procedures in an independent and impartial court — not a military commission with impoverished due process guarantees reserved for foreign nationals alone — should be immediately released, while ensuring that no one is forcibly returned to a country where he would face human rights violations. The US authorities should drop any intention to construct a system for indefinite “national security” detention without criminal trial of anyone who is not recognised as a prisoner of war in connection with an international armed conflict. To simply move the detention practices put in place at Guantánamo to some other location would be as hollow a gesture as would be pronouncing the terms of universal human rights while depriving them of any real meaning or effect.

A human rights approach is the one most likely to encourage constructive international cooperation with those partners who themselves profess to adhere to the principles of human rights and rule of law. A senior US Justice Department official [Assistant Attorney General David Kris] stated recently:

[S]ome countries won’t provide us with evidence we may need to hold suspected terrorists in law of war detention or prosecute them in military commissions. In some cases, they have agreed to extradite terrorist suspects to us only on the condition that they not be tried in military commissions. In such cases, use of federal courts may mean the difference between holding a terrorist and having him go free.

International cooperation is a theme that runs through the May 2010 National Security Strategy.

Redefining “prompt”

It is a basic principle of international human rights law that anyone deprived of his or her liberty by arrest or detention be entitled to challenge the lawfulness of their detention in a court. The purpose of this provision, including as articulated in article 9.4 of the International Covenant on Civil and Political Rights (ICCPR), is so that an independent and impartial court can rule “without delay” on the lawfulness of the individual’s detention and order his or her release if the detention is unlawful. Promptness of action is an essential ingredient. Allowing governments to take timeliness or judicial enforceability out of the equation would make a mockery of this protection against arbitrary detention.

The USA criticizes other governments for their failure to stick to the “rules of the road” on judicial review of detentions. For example, in its most recent assessment of the human rights records of other countries, an annual assessment compiled by the US Department of State which uses the Universal Declaration of Human Rights as its benchmark, the USA takes issue with Egypt’s Emergency Law. Under this law, the USA reports, an individual may be detained without charge or trial “for as long as 30 days, after which a detainee may demand a court hearing to challenge the legality of the detention order”. In similar vein, the USA criticizes Malaysia’s Internal Security Act (ISA):

The ISA empowers police to arrest without a warrant and hold for up to 60 days any person who acts “in a manner prejudicial to the national security or economic life of Malaysia.” During the initial 60 day detention period in special detention centers, the ISA allows for the denial of legal representation and does not require that the case be brought before a court. The home minister may authorize further detention for up to two years, with an unlimited number of two-year extensions to follow. In practice the government infrequently authorized ISA detention beyond two two-year terms. However, in one case the government detained an ISA detainee for approximately seven years.

For the past eight and a half years, the USA has been holding people in indefinite military custody at Guantánamo Bay. Scores remain held without charge or criminal trial there today. Moreover, two years after the US Supreme Court ruled in Boumediene v. Bush [PDF] that those held at the naval base had the right to a “prompt” habeas corpus hearing in US District Court to challenge the lawfulness of their detention, a majority remain without any ruling on the merits of their cases [The Supreme Court stated, “While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing”]. For example, none of the 14 men who were transferred to Guantánamo in early September 2006 from up to four and a half years held incommunicado in secret CIA custody have had rulings on the merits of their challenges.

“Prompt”, it seems, has lost any reasonable meaning for the US authorities — part of the damage to respect for universal human rights principles wrought by the USA’s conduct in what it views as a global “war” against al-Qa’ida and associated groups. Prompt apparently no longer means “without delay” in this context, but something entirely opposite. And even a judicial order for the immediate release of a detainee does not necessarily lead to the individual’s liberty being promptly restored, notwithstanding the express agreement of the USA to article 2.3(c) of the ICCPR by which it, in the clearest possible terms, committed to “ensure that the competent authorities shall enforce such remedies when granted.”

A court’s power to obtain the immediate release of an unlawfully held individual must be “in its effects, real and not merely formal” [UN Human Rights Committee, A v. Australia, Communication No. 560/1993. UN Doc CCPR/C/59/D/560/1993 (30 April 1997), para. 9.5, emphasis added]. However, the US District Court has effectively been reduced to issuing recommendations in the Guantánamo habeas corpus litigation. For even those Guantánamo detainees who have had judicial rulings in their favour are not guaranteed immediate release, and some have been held for months after such rulings as the USA has appealed the rulings (frequently, to engage in protracted and speculative arguments about the scope of possible grounds for detention — drawn out proceedings caused by the absence of any actual specific reference to detention in the AUMF and further demonstrating how woefully the US indefinite detention regime has failed to fulfil the requirement of article 9.1 of the ICCPR that “No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”).

The US authorities have also refused to release in the US mainland those who cannot be repatriated for fear of the human rights violations they would face in their home countries. In 36 of the 50 cases so far decided, the detention was found to be unlawful. Thirteen of these 36 men remain in Guantánamo.

One of the most recent such decisions involves the case of Mohamed Mohamed Hassan Odaini, a Yemeni national, who has been held in Guantánamo without charge or trial since June 2002 after being taken into custody as a 17-year-old in Pakistan two months earlier. For more than seven years, the only review of his detention was executive not judicial. Even favourable executive findings did not lead to his release, demonstrating the need for enforceable judicial oversight. In April 2004 a member of the Pentagon’s Criminal Investigation Task Force reviewed Mohamed Odaini’s case and recommended that he be released. In 2007, Mohamed Odaini’s US lawyer was informed that his client had been approved for release from Guantánamo under executive review procedures initiated in 2004 by the Bush administration. In June 2009, his lawyer was told that he had been approved for release under the executive review conducted by the Guantánamo Review Task Force, established under President Obama’s 22 January 2009 executive order on closing the Guantánamo detention facility. Still Mohamed Odaini remained in custody.

The judicial review to which Mohamed Odaini had been entitled for years came to fruition in 2010. On 26 May 2010, over eight years after being taken into custody and nearly two years after the US Supreme Court’s Boumediene ruling, District Court Judge Henry Kennedy found Mohamed Odaini’s detention to be unlawful and ordered his release. Judge Kennedy wrote that the US authorities had

kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody as such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to Al Qaeda.

A month after the decision, Mohamed Odaini remains at Guantánamo, his release already years overdue. In his 26 May ruling, Judge Kennedy ordered the US administration to take “all necessary and appropriate diplomatic steps to facilitate Odaini’s release forthwith” and to report back to the court by no later than 25 June 2010 on the detainee’s status. Even now it is not clear what will happen to Mohamed Odaini given that President Obama in January 2010 ordered a suspension of any transfers to Yemen of Yemeni nationals held in Guantánamo, citing security concerns. The authorities have said that no Yemeni national will be repatriated until this moratorium is lifted [PDF]. Anonymous US administration officials are reported to have said that the administration is considering partially lifting the moratorium in the wake of Judge Kennedy’s ruling. [Note: In a letter to President Obama Mohamed Odaini’s sister wrote, “I speak to you in all the languages and dialects of the world to look to this family with eyes of mercy and sympathy. This family’s main and greatest concern is the return of their son whose long absence made us miss him much more. We knew him as a loving brother and a caring sibling whose parents have been deprived of this love. A missing brother we pray he comes back safe to us”].

Amnesty International continues to call for Mohamed Odaini to be immediately repatriated to Yemen. If there is some legitimate reason why this cannot happen immediately, and immediate release in an appropriate third country is also not possible, Mohamed Odaini should be released in the USA with all necessary assistance and protection to re-establish his life. Indeed, while reparation for the harms done to Mohamed Odaini may seem less pressing than respect and fulfilment of his human right to immediate release, it is worth noting that article 9.5 of the ICCPR expressly provides that “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

Normalizing delay

The USA’s sense of timing and justice also appears to have generally been warped in the case of those Guantánamo detainees it says it intends to prosecute under its global war framework.

The Obama administration, like its predecessor, has sought to entirely block post-Boumediene judicial review in the case of those detainees whom the government has moved to prosecute, even when trial proceedings are not brought within a reasonable time or are proposed under the highly contentious military commission system. A case in point is that of Obaydullah, an Afghan national held in Guantánamo since October 2002 [Prior to this, he was held in Bagram air base in Afghanistan after being taken into US custody there in July 2002]. A post-Boumediene habeas corpus petition challenging the lawfulness of his detention was filed in US District Court in July 2008. Two months later, charges were sworn against Obaydullah under the Military Commissions Act (MCA) of 2006. Two years later, he has neither been tried nor had his habeas corpus petition heard and ruled upon.

After Obaydullah was charged under the MCA, the Bush administration moved to have his habeas corpus petition dismissed or held in abeyance until completion of the military commission proceedings against him. In December 2008, District Court Judge Richard Leon granted the government’s motion and stayed the habeas corpus proceedings. By the time the Obama administration took office in January 2009, the charges against Obaydullah had still not been referred on for trial, and the new administration obtained a suspension of all military commission proceedings while the Guantánamo Review Task Force established by President Obama set about reviewing the Guantánamo detentions. Given the suspension of trial proceedings, Obaydullah’s habeas corpus counsel moved to have the stay on his habeas corpus challenge lifted arguing that “it could be several months or years before he is subjected to such a [trial] proceeding, if at all”. The Obama administration opposed the motion, arguing that the charges against Obaydullah “still remain pending”. On 22 April 2009 Judge Leon refused to lift the stay. Another year has passed since then with the Obaydullah case in limbo.

The case was appealed to the US Court of Appeals for the DC Circuit. In January 2010, the Obama administration told the Court that the Guantánamo Review Task Force had completed its review and that the Attorney General had determined that prosecution in a military commission was “appropriate” for Obaydullah. The government’s brief said that this meant that the “prior cause of delay in the decision as to whether to refer the charges in this case has been lifted”. Five months later, however, the charges against Obaydullah have still not been referred on for trial.

In an opinion released on 18 June 2010 — with Obaydullah soon to enter his ninth year in US military custody — the Court of Appeals revisited the question of the “prompt” habeas corpus hearing to which the US Supreme Court had said two years earlier that the Guantánamo detainees were entitled [PDF]. While not entirely decoupling the habeas corpus question from the trial question, the Court of Appeals noted that the government had given no indication as to whether the charges against Obaydullah would in fact be referred on for trial or, equally important, if so, when. It further noted that under the revised MCA of 2009 there was no deadline upon the convening authority to make a decision as to whether to refer charges on for trial or not. It also noted that under revised rules for military commissions issued by the Pentagon in April 2010 the requirement articulated in the 2007 version of the rules for such a decision to be made “in a prompt manner” had been dropped. The Court of Appeals added:

[O]f course, the charges may be referred to a military commission tomorrow — which could raise anew the question of possible abstention [of the District Court from habeas review] — but they may also be dropped tomorrow, or remain pending for months or years to come. Seeing no reason sufficient to justify denying Obaydullah the “prompt habeas corpus hearing” to which he is entitled, we reverse the order of the district court denying his motion and vacate the stay of his habeas corpus petition.

The Court of Appeals sent the case back to the District Court to pursue the habeas corpus proceedings. In the absence of an appeal from the administration, or moves to refer the charges on for trial and a court again suspending consideration the habeas corpus petition, Obaydullah’s challenge on the lawfulness of his detention might eventually be heard. It has already been delayed for years too long.

The National Security Strategy of May 2010 promises “swift and sure justice” in the case of those suspected of terrorist offences. Domestic political considerations are taking the upper hand in ensuring that delays continue, however.

Under the ICCPR, anyone charged for trial has the right to be tried “without undue delay” (article 14.3(c)) in an independent and impartial court (article 14.1). The UN Human Rights Committee, the expert body established under the ICCPR to monitor its implementation, has emphasised that this right is “not only designed to avoid keeping persons too long in a state of uncertainty about their fate … but also to serve the interests of justice.” Uncertainty remains the norm for Guantánamo detainees, however, the interests of justice undermined by domestic politics.

Khalid Sheikh Mohammed was indicted in 1996 in US federal court for his alleged role in the Manila air (or “Bojinka”) plot to blow up a dozen US airliners over the Pacific, and was the subject of a reported US plan at the time of the indictment for the FBI to arrest him in Qatar and transfer him to the USA for trial. He was eventually taken into custody in March 2003 in Pakistan. Rather than being extradited and brought to trial in the USA, however, he was summarily handed over to US agents and held in secret CIA custody for the next three and a half years and subject to enforced disappearance, torture and other cruel, inhuman or degrading treatment authorized at high levels of the US government.

On 6 September 2006, President George W. Bush announced that Khalid Sheikh Mohammed had days earlier been transferred to military detention in Guantánamo where he would face trial. He was eventually charged in February 2008 under the Military Commissions Act of 2008 with involvement in the attacks of 11 September 2001. These charges were pending against him and four other detainees at the time the Bush administration left office in January 2009. The cases sat in stasis for another 10 months until, on 13 November 2009, Attorney General Eric Holder announced that the five men “accused of conspiring to commit the 9/11 attacks” would be transferred for prosecution in federal court in New York, adding that their trials had been “too long delayed”. However, hopes have been dashed that the administration which ordered that the CIA’s long-term secret detention facilities be closed would also act with urgency to release or bring to trial the individuals who had been held in them. Today, over seven months after the Attorney General’s announcement — and over seven years after Khalid Sheikh Mohammed was taken into custody — the five men remain in Guantánamo along with more than 170 others.

Confirmation that the certainty of Attorney General Holder’s November 2009 announcement had taken on an elastic quality came when he told the US Senate Judiciary Committee on 14 April 2010 that the administration was reviewing the question of where to prosecute the five detainees — in military commissions or in federal court — and that “no final decision has been made about the forum” in which they would be tried. He said “we expect that we will be in a position to make that determination, I think, in a number of weeks”. What number he had in mind remains a mystery as the weeks have turned into months, leaving the USA on the wrong side of its obligation to bring these men to trial within a reasonable time or release them. There are suspicions now that, for political reasons, the administration may put off the decision until after the mid-term congressional elections in November 2010. This would deepen an already shameful state of affairs and cement a violation of the USA’s international obligations.

The Obama administration has been in office for 17 months. Regardless of the failings of the previous administration, the USA’s failure to ensure within a reasonable time fair trials or release of detainees labelled by the previous administration as “enemy combatants” is unacceptable. A fully functioning civilian judicial system, with the experience, capacity and procedures to deal with complex terrorism prosecutions, was available from day one. Military commissions should long ago have been abandoned in favour of this system.

Perpetuating injustice

The words “effective remedy” are also being drained of meaning by the USA. As a state party to the ICCPR, the USA has undertaken to ensure that anyone whose rights under the treaty have been violated has an effective remedy. As Amnesty International has previously pointed out, this administration, like its predecessor, is blocking remedy for counter-terrorism abuses, in violation of the USA’s obligations. A recent example concerns Maher Arar.

On 14 June 2010, the US Supreme Court announced that it was refusing to consider the case of Maher Arar, a denial that gave the administration what it had asked for in a petition filed with the Court in May [see here for the court documents from January 2004 onwards]. The Supreme Court’s failure to take the case means that the ruling of the US Court of Appeals for the Second Circuit is allowed to stand. In November 2009, the Second Circuit had dismissed the lawsuit brought by Maher Arar, a dual Canadian/Syrian citizen who was arrested at a New York airport in September 2002 while travelling on a Canadian passport en route home to Canada from vacation in Tunisia. After 12 days held incommunicado by the US authorities, he was sent, via Jordan, to Syria, where he was held for a year, including 10 months in a small underground cell. A Canadian judicial commission later concluded that he was subjected to torture during that time. His lawsuit claimed that the US officials conspired to send him to Syria for the purpose of interrogation under torture, and provided Syria with information and questions for the interrogation.

In the face of a dissent by four of the Second Circuit judges arguing that the ruling “risks a government that can interpret the law to suit its own ends, without scrutiny”, the majority ruling stated that “it is for the executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress — and not for us judges — to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation”.

The right to an effective remedy is recognised in all major international and regional human rights treaties. The UN Human Rights Committee has affirmed that this right can never be derogated from, even during times of national emergency. International law requires that remedies not only be available in law, but accessible and effective in practice. Victims are entitled among other things to equal and effective access to justice (including “effective judicial remedy”) regardless of who may ultimately be responsible for the violation; adequate, effective and prompt reparation for harm suffered; and access to relevant information concerning violations and reparation mechanisms. Full and effective reparation includes restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

In its May 2010 petition to the US Supreme Court urging it not to take the Arar case, the Department of Justice argued that the lawsuit implicates “significant national security concerns”, and judicial intervention would “call upon the courts to review sensitive intergovernmental communications, second-guess whether Syrian officials were credible enough for United States officials to rely on them, and assess the credibility of any information provided by foreign officials concerning [Maher Arar’s] likely treatment in Syria, as well as the motives and sincerity of the United States officials who concluded that [he] could be removed to Syria consistent with Article 3 of the [UN Convention against Torture]”. The Second Circuit had properly concluded, the government brief went on, that this litigation would interfere with foreign relations and the government’s ability to ensure national security.

Its litigation strategy to seek to block judicial remedy for human rights violations endured by such detainees leaves the impression that the protection of executive power and the promotion of immunity from real accountability to victims of human rights violations are being prioritized, just as they were under the previous administration. While far from satisfactory, now that it has successfully blocked judicial remedy for Maher Arar, there can no longer be any excuse for the total failure of US administrative and legislative authorities to take effective measures to meet its international obligations to victims of human rights violations for which the USA bears responsibility [In its brief to the US Supreme Court, the US administration asserted that the Court’s refusal to take the case would not leave “executive power unbounded”. It continued: “While the aggrieved party may have no private remedy for money damages, if the executive in fact has exceeded his appropriate role in the constitutional scheme, Congress enjoys a broad range of authorities with which to exercise restraint and balance”]. The current situation, with Maher Arar remaining entirely without effective remedy or reparation from any US authority, is flagrantly inconsistent with, and a continuing violation of, US human rights obligations [By contrast, Maher Arar was provided by Canada with a judicial inquiry and ultimately a formal apology from the government and monetary compensation for the responsibility of Canadian authorities in relation to his case].

The occasion of the annual international day [in support of] victims of torture on 26 June would seem a particularly pertinent time for the USA to begin to end this remedy and accountability vacuum. It is now seven years since President Bush marked this date in 2003 with a statement that amounted to rank hypocrisy:

Notorious human rights abusers … have long sought to shield their abuses from the eyes of the world by staging elaborate deceptions and denying access to international human rights monitors …The United States is committed to the worldwide elimination of torture, and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment … The suffering of torture victims must end, and the United States calls on all governments to assume this great mission.

Three months earlier, Khalid Sheikh Mohammed had been subjected in secret US custody 183 times to the torture technique known as water-boarding. The secret detention program had been authorized by President Bush.

Without a doubt, there has been a positive change in tone on human rights and engagement with the international community under the Obama administration. The fact that the CIA program such as it was under the Bush administration is now believed to have been ended, and the agency’s use of “enhanced” interrogation techniques stopped, is welcome. The fact is, however, there has been zero accountability and remedy for the violations, including crimes under international law, committed under the program.

Responding to the recent events in his case, Maher Arar has told Amnesty International of his view that: “This Supreme Court decision, along with lower court’s rulings, essentially gives the green light to the US administration to engage in torture without any fear of ever being prosecuted.” Similar to what the administration has said in other litigation, and what the White House has stated in its May 2010 National Security Strategy, the Justice Department’s brief to the Supreme Court on the Arar case asserted that the case did “not concern the propriety of torture or whether it should be ‘countenanced’ by the courts.” Torture, it said, “is flatly illegal and the government has repudiated it in the strongest terms … The President has stated unequivocally that the United States does not engage in torture”.

Amnesty International has welcomed the promises made by the Obama administration that it will not torture. This promise is not enough, however. The USA is obliged under international law not only to prevent those who act on its behalf from committing, participating in, tolerating, acquiescing in, or otherwise being responsible for any act of torture or other cruel, inhuman or degrading treatment, as defined under international law — as well as other human rights violations such as enforced disappearance, secret detention, and arbitrary detention — but to investigate and hold accountable those responsible for authorizing and carrying out such violations in the past, including by bringing those responsible for crimes under international law to justice.

In its National Security Strategy, the administration asserts that “We are working within the broader UN system and through regional mechanisms to strengthen human rights monitoring and enforcement mechanisms, so that individuals and countries are held accountable for their violation of international human rights norms.” The USA’s failure to ensure accountability and remedy for its own conduct is leaving its positive words on torture ringing somewhat hollow, as similar words rang hollow under the previous administration.

Time to adhere to the “rules of the road”

The USA must review the full range of its conduct in the counter-terrorism context to ensure that its human rights obligations are being met. The Guantánamo detentions have become mired in a domestic US political context in which over the short-term it may seem less costly to invoke concepts such as “national security” or “global war” to justify deep departures from the USA’s human rights commitments, than to confront and remedy the human rights violations of the past and present.

The USA should adhere to the “rules of the road” on human rights, not continue to undermine them via the distorting lens of its global “war” paradigm, under which domestic political considerations and sweeping and ever-growing national security arguments are being driven into a head-on collision with the universal principles of human rights, justice, and the rule of law.

Note: According to news reports today, the Obama administration will be released Mohammed Hassan Odaini soon. For further information about some of the themes and cases discussed in the Amnesty International report, see the following:

For Mohammed Hassan Odaini, see my articles, Why is a Yemeni Student in Guantánamo, Cleared on Three Occasions, Still Imprisoned? and Obama Thinks About Releasing Innocent Yemenis from Guantánamo, and for a comprehensive list of all the habeas cases so far decided, see Guantánamo Habeas Results: The Definitive List, which contains links to my detailed archive of articles and to the judges’ unclassified opinions. For my criticism of the Authorization for Use of Military Force, see Guantánamo and Habeas Corpus: 2 Years, 50 Cases, 36 Victories for the Prisoners. For the military commission charges against Obaidullah, see Guantánamo trials: another insignificant Afghan charged and Afghan Nobody Faces Trial by Military Commission. For the proposed trial of Khalid Sheikh Mohammed and others, and my criticism of the military commissions, see The Logic of the 9/11 Trials, The Madness of the Military Commissions, and for a response to the recent refusal of the Supreme Court to take Maher Arar’s case, see Obama, the Supreme Court and Maher Arar: No Accountability for Torture.

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 January 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.

The Torture of Omar Khadr, a Child in Bagram and Guantánamo

Andy Worthington — Thu, 13 May 2010 09:47:39 +0000

Are we so inured to the implementation of torture by the Bush administration that we no longer recognize what torture is? Torture, according to the UN Convention Against Torture, to which the US is a signatory, is “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person.”

Under President Bush, however, John Yoo, an ideological puppet in the Justice Department’s Office of Legal Counsel, which is supposed to objectively interpret the law as it applies to the executive branch, purported to redefine torture, in two memos that have become known as the “torture memos,” as the infliction of physical pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or the infliction of mental pain which “result[s] in significant psychological harm of significant duration e.g. lasting for months or even years.”

I ask this question about torture — and our attitude to it — because of what took place last week, in pre-trial hearings at Guantánamo preceding the trial by Military Commission of the Canadian prisoner Omar Khadr, who was just 15 years old when he was seized after a firefight in Afghanistan in July 2002. A number of witnesses revealed details of Khadr’s mistreatment, in the US prison at Bagram airbase in Afghanistan, which hinted at his inclusion in an abusive program that, before the 9/11 attacks, before Yoo’s memos and before a general coarsening of attitudes towards abuse and the mistreatment of prisoners, would have led to calls for that mistreatment to be thoroughly investigated, and, very possibly, for it to be regarded as torture or as cruel, inhumane and degrading treatment.

In Khadr’s case, these questions should not even need raising, for a number of other compelling reasons. The first concerns his age. Under the terms of the Optional Protocol to the UN Convention on the Rights of the Child, on the involvement of children in armed conflict, to which the US is also a signatory, juveniles — defined as those under the age of 18 when the crime they are accused of committing took place — “require special protection.” The Optional Protocol specifically recognizes “the special needs of those children who are particularly vulnerable to recruitment or use in hostilities,” and requires its signatories to promote “the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.”

Instead, however, the US government is attempting, for the third time, to prosecute Khadr for war crimes in a special trial system for foreign terror suspects — the Military Commissions — which were first ruled illegal by the Supreme Court in 2006, were then revived by Congress but abandoned by President Obama on his first day in office (after they had succeeded in delivering just three dubious results), and were then revived again by President Obama, with the support of Congress, last summer.

Compounding the dark absurdity of Khadr’s proposed trial is an uncomfortable truth that has been particularly noted by Lt. Col. David Frakt, a former military defense attorney for the Commissions, who has regularly pointed out that the Military Commissions are fundamentally flawed because they contain “law of war offenses” invented by Congress, including “Providing Material Support to Terrorism” and “Murder in Violation of the Law of War.” Lt. Col. Frakt has recently expressed even graver concerns about how the new Military Commissions Act includes a passage which claims that “a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war.”

As I also explained in an article last week, “critics of Khadr’s trial have, from the beginning, recognized that there is something horribly skewed about redefining the internationally accepted laws of war so that one side in an armed conflict — the US — can kill whoever it wants with impunity, whereas its opponents are viewed as terrorists, or, when brought to trial, as those who have committed ‘Murder in Violation of the Law of War.’”

Nevertheless, as the Obama administration has decided to press ahead with Khadr’s trial, pre-trial hearings were held over the last two weeks in an attempt to address concerns raised by Khadr’s defense team. These largely skirted the issues discussed in the paragraphs above, but focused unerringly on Khadr’s alleged mistreatment, through a “Motion to Suppress Statements Procured Using Torture, Coercion and Cruel, Inhumane and Degrading Treatment” (PDF), in which his lawyers argued that any self-incriminating statements that Khadr may have made should be ruled out because of the manner in which they were extracted.

The torture of Omar Khadr

Over the years, and in an affidavit submitted in February 2008 (PDF), Khadr has described his mistreatment in detail, explaining how he was unconscious for a week after his capture, when he was severely wounded, and how, in Bagram, where he was taken after just two weeks in a hospital, his interrogations began immediately, at the hands of an interrogator who manipulated his injuries (the exact details were redacted from his affidavit). Crucially, he also explained how, as soon as he regained consciousness, “the first soldier told me that I had killed an American with a grenade,” and how, during his first interrogation at Bagram, “I figured out right away that I would simply tell them whatever I thought they wanted to hear in order to keep them from causing me [redacted].”

There is much more in the affidavit — casual cruelty, whereby guards made Khadr do hard manual labor when his wounds were not healed, and, significantly, threats “to have me raped, or sent to other countries like Egypt, Syria, Jordan or Israel to be raped.” He also noted, “I would always hear people screaming, both day and night,” and explained that other prisoners were scared of his interrogator. “Most people would not talk about what had been done to them,” he declared. “This made me afraid.”

Khadr also described what happened to him in Guantánamo, where, as I explained last week, he “arrived around the time that a regime of humiliation, isolation and abuse, including extreme temperature manipulation, forced nudity and sexual humiliation, had just been introduced, by reverse-engineering torture techniques, used in a military program designed to train US personnel to resist interrogation if captured, in an attempt to increase the meager flow of ‘actionable intelligence’ from the prison.”

At various points in 2003, while the use of these techniques was still widespread, Khadr stated that he was short-shackled in painful positions and left for up to ten hours in a freezing cold cell, threatened with rape and with being transferred to another country where he could be raped, and, on one particular occasion, when he had been left short-shackled in a painful position until he urinated on himself:

Military police poured pine oil on the floor and on me, and then, with me lying on my stomach and my hands and feet cuffed together behind me, the military police dragged me back and forth through the mixture of urine and pine oil on the floor. Later, I was put back in my cell, without being allowed a shower or a change of clothes. I was not given a change of clothes for two days. They did this to me again a few weeks later.

Crucially, when describing the interrogations that punctuated these experiences at Guantánamo, Khadr explained, “I did not want to expose myself to any more harm, so I always just told interrogators what I thought they wanted to hear. Having been asked the same questions so many times, I knew what answers made interrogators happy and would always tailor my answers based on what I thought would keep me from being harmed.”

Until two weeks ago, these claims — though well-known to those who have followed Khadr’s case — had, for the most part, not been aired in a courtroom. In response to the defense motion, however, the government attempted to refute Khadr’s claims, calling a female interrogator who stated that Khadr had voluntarily admitted that he threw the grenade that killed US Sgt. Christopher Speer, during sessions after his arrival at Guantánamo in October 2002 that were perfectly amicable, and an FBI agent, Robert Fuller, who stated that his interrogations of Khadr at Bagram earlier in October 2002 were also “conversational” and “non-confrontational,” and that Khadr had freely admitted to throwing the grenade that killed Sgt. Speer.

Whilst it was possible — if not probable — that both interrogators were telling the truth about interrogating Khadr non-coercively, the problem remains that Khadr has stated that, from the time of his very first interrogation, he regarded telling his interrogators what they wanted to hear as the best way of avoiding mistreatment, and so may not have been telling them the truth. As a result, last week’s witnesses were more significant because they shed light on the early days after he recovered consciousness in US custody, and, in particular, on his first interrogation and his subsequent interaction with that interrogator. Along the way, further witnesses cast shadows on the government’s otherwise clean picture of interrogations conducted in a non-coercive environment.

It would have remarkable had this not happened, as countless witnesses — including soldiers as well as current and former Guantánamo prisoners — have described the brutality at Bagram at the time Khadr was held there between August and October 2002, which led, just over a month after Khadr’s departure for Guantánamo, to the murder of two prisoners — and, very possibly, to other murders at the time he was held.

The medic’s testimony –- and “Palestinian hanging”

The first to reveal a glimpse of the regime at Bagram was, ironically, a medic called as a witness by the prosecution. “Mr. M,” as he was identified, who testified by video link from Boston, countered Khadr’s claims that, while he was at Bagram, “five people in civilian clothes would come and change my bandages,” and that they “treated me very roughly and videotaped me while they did it,” stating that he alone changed his bandages twice a day, and that no rough treatment was involved.

He did, however, note that, on one occasion, he found Khadr hooded and chained to a cage by his wrists with his arms “just above eye level,” and that when he lifted the hood, Khadr was visibly upset. The medic added, as Carol Rosenberg described it in the Miami Herald, that “he didn’t object to Khadr’s treatment, because chaining was an approved form of punishment” at Bagram, ”adding that he didn’t know the reason for the punishment nor how long Khadr had been chained.”

This rather nonchalant description of “chaining” may not have shocked the medic, especially as the chains were apparently “slack enough to allow Khadr’s feet to touch the floor,” but the only reason for this was because of the severity of his wounds, as Khadr explained in his affidavit, in which he also stated that he was chained up “several times.” Otherwise, like numerous other prisoners, including Dilawar (the subject of “Taxi to the Dark Side”) and Mullah Habibullah, the two prisoners who were killed at Bagram in December 2002, he would have been fully suspended by his wrists, in a torture technique more commonly known as the “strappado” technique or “Palestinian hanging.”

Nevertheless, as Barry Coburn, Khadr’s lead lawyer, explained, the medic’s testimony provided “critically important validation” of statements in his client’s affidavit, and another of his lawyers, Kobie Flowers, added, “Had this been an American soldier in North Korea, people would be outraged. Here we have a 15-year-old individual who was nearly killed with bullets in his back who was left up there to hang as punishment.”

“Interrogator No. 2” and Khadr’s first interrogation –- on a stretcher

However, while this was significant in establishing some context for the general and well-chronicled brutality at Bagram, which will no doubt emerge in unprecedented detail should Khadr’s trial proceed, it was not until Tuesday last week that previously unknown information emerged regarding Khadr’s first interrogation on arrival at Bagram, which, according to a master sergeant in the US Army, identified as “Interrogator No. 2,” who appeared in person, took place on the same day that Khadr was moved from the hospital to what Carol Rosenberg described as “the crude, putrid Bagram Air Base detention center.”

The interrogator, who was an observer at Khadr’s first interrogation on August 12, 2002, revealed that “the questioning took place while Khadr was on a stretcher — he couldn’t remember if Khadr was shackled to it — and that his notes included this detail: ‘Clarification was difficult due to the sedation and fatigue of the detainee.’” He also explained that no coercion was used on him, but just two approved techniques from the Army Field Manual: “fear down,” which is designed to play down a prisoner’s anxieties, and “fear of incarceration,” which encourages prisoners to tell the truth by pointing out that otherwise they may face extended imprisonment.

It is hard to tell if this controlled line of questioning strictly reflects reality, but even so, as one of Khadr’s military lawyers, Army Lt. Col. Jon Jackson noted, the testimony showed that Khadr “was first questioned within just 12 hours of his transfer from the US field hospital to the detention center.” Kobie Flowers was more forceful in his criticism. “You got a guy who is 15, seriously wounded, who has had multiple surgeries, and that’s the first time the United States government takes a statement from him to use in his prosecution,” he said, adding, “Now whether it is torture, cruel, inhumane, degrading treatment or simply involuntary … I don’t think any federal judge in the United States would allow that type of conduct.”

The testimony of Damien Corsetti

On Wednesday, a peripheral figure in Khadr’s story — but one who has achieved a certain notoriety — testified by video link from Arlington, Virginia. Damien Corsetti, who was known as “Monster” at Bagram, based on a tattoo on his chest, and also as “The King of Torture,” described himself as “a disabled veteran suffering post traumatic stress disorder as a result of his interrogation work in both Afghanistan and Iraq,” and explained how, on seeing Khadr on July 29, 2002, just two days after his capture, he was struck by how he was an injured “child” detained in “one of the worst places on Earth.” He added, “More than anything, he looked beat up. He was a 15 year-old kid with three holes in his body, a bunch of shrapnel in his face. That was what I remember. How horrible this 15 year-old child looked.”

Corsetti, who was cleared in 2005 of abuse charges relating to his conduct in Bagram and, later, at Abu Ghraib in Iraq, explained, back in 2007, how he was still haunted by “the cries, the smells, the sounds” of those whose torture he witnessed, when he was called upon to attend sessions in the basement of Bagram in which “high-value detainees” were tortured. “[T]hey are with me all the time,” he said.

Last Wednesday, Corsetti told the court that he was “not one of Khadr’s interrogators” but had befriended him in Bagram. He explained that the guards and interrogators, who identified all the prisoners as “BOB” (which stood for “Bad Odor Boys”), named Khadr “Buckshot BOB,” due to his injuries. He added that “there was the sound of screaming and yelling ‘continuously,” and also confirmed that threats were made to send prisoners to countries where they would be tortured, or raped. He specifically mentioned Israel and Egypt, but added, as Michelle Shephard explained in the Toronto Star, that he “did not know if Khadr had been told this.” As Khadr stated in his affidavit that he was indeed threatened with being sent to Israel or Egypt (or Syria or Jordan), Corsetti’s testimony therefore endorsed another of Khadr’s claims.

“Interrogator No. 1” and the rape threat

If Corsetti’s testimony, for the most part, did little more than add some more color to the story of Khadr’s early months in US custody, Thursday’s witness, Joshua Claus, provided potent testimony regarding the kind of threats to which Khadr was subjected, and also provided a disturbing link to the kind of violence in Bagram that led to the murders of Dilawar and Mullah Habibullah in December 2002. Claus, formerly a sergeant in the 519th Military Intelligence Battalion (of which Corsetti was also a member), was identified in court as “Interrogator No. 1,” and was Khadr’s main interrogator at Bagram, the “skinny blond” man with glasses (just 21 years old at the time) who also interrogated him while he was on a stretcher, on the day that he was moved to Bagram from the field hospital, and who, according to Khadr, mistreated him in an unknown manner (because the details are redacted) during his first interrogation.

Testifying by video link from Arizona, Claus recalled, in particular, using the technique described as “fear up harsh” in interrogations of Khadr, during which he would kick the furniture and scream at the young prisoner. He also admitted that he invented a rape story to scare him, explaining, as Spencer Ackerman described it in the Washington Independent:

“I told him a fictitious story we had invented when we were there,” Interrogator #1 said. It was something “three or four” interrogators at Bagram came up with after learning that Afghans were “terrified of getting raped and general homosexuality, things of that nature.” The story went like this:

Interrogator #1 would tell the detainee, “I know you’re lying about something.” And so, for an instruction about the consequences of lying, Khadr learned that lying “not so seriously” wouldn’t land him in a place like “Cuba” — meaning, presumably, Guantánamo Bay — but in an American prison instead. And this one time, a “poor little 20-year-old kid” sent from Afghanistan ended up in an American prison for lying to an American. “A bunch of big black guys and big Nazis noticed the little Afghan didn’t speak their language, and prayed five times a day — he’s Muslim,” Interrogator #1 said. Although the fictitious inmates were criminals, “they’re still patriotic,” and the guards “can’t be everywhere at once.”

“So this one unfortunate time, he’s in the shower by himself, and these four big black guys show up — and it’s terrible something would happen — but they caught him in the shower and raped him. And it’s terrible that these things happen, the kid got hurt and ended up dying,” Interrogator #1 said. “It’s all a fictitious story.”

Perhaps so, but as Ackerman also noted, every other interrogator who spoke to Khadr did so “after he heard a ‘fictitious story’ about a young Afghan who lied to US interrogators and as a result was raped and killed in jail.”

In many ways, the events of the last two weeks were inconclusive, and it remains to be seen how the judge, Army Col. Patrick Parrish, will interpret them. Certainly, there was much worse abuse at Bagram and at Guantánamo than that experienced by Omar Khadr, but he was just a child during his time at Bagram and the early years of his abuse at Guantánamo, and it may well be that, as his lawyers assert, any self-incriminating statements that he made (especially regarding the throwing of a grenade that may have taken place when he was face down and unconscious under a pile of rubble) were produced because rape threats and physical violence based primarily on exploitation of his wounds was enough to terrify him into acquiescence with whatever his captors wanted.

The Pentagon shoots itself in the foot: four reporters banned

Ironically, the biggest story in Guantánamo last week was not the reports of Khadr’s treatment but the banning of four reporters (including Michelle Shephard and Carol Rosenberg), after they revealed Claus’ name in newspaper reports. The Pentagon alleged that this violated an order stipulating that Claus’ real name was protected information, but this was patently ridiculous, because his name was already in the public domain, and, in 2008, he had even conducted an interview with Michelle Shephard.

Instead of protecting Claus, the Pentagon’s heavy-handed response served only to make other reporters wonder if the Pentagon was trying to prevent anyone from working out that, unlike Damien Corsetti, Claus served five months in prison for pleading guilty in a court martial to the abuse of an unidentified prisoner at Bagram, who was made “to roll back and forth on the floor and kiss the boots of his interrogator,” as Michelle Shephard described it, and for the assault of Dilawar. In Shephard’s words, “He admitted to forcing water down the throat of Dilawar and twisting a hood over the Afghan’s head.” Moreover, as another soldier explained in a military report into Dilawar’s death, “I had the impression that Josh was actually holding the detainee upright by pulling on the hood. I was furious at this point because I had seen Josh tighten the hood of another detainee the week before. This behavior seemed completely gratuitous and unrelated to intelligence collection.”

In his interview in 2008, Claus insisted that he wanted to set the record straight. “They’re trying to imply I’m beating or torturing everyone I ever talked to [at Bagram],” he said, adding that, with Khadr, “I spent a lot of time trying to understand who he was and what I could say to him or do for him, whether it be to bring him extra food or get a letter out to his family … I needed to talk to him and get him to trust me.”

Responding last Thursday to a question about his conviction posed by Barry Coburn, Claus insisted that he “lost control at a very slight moment. You’re talking about two-and-a-half minutes of my life.” This may not technically be correct, as there was clearly more than one incident, but it is obvious that his actions were part of an abusive program sanctioned at the highest level of the Bush administration, and moreover, as Damien Corsetti explained, “the pressure to get information from prisoner at Bagram was intense.” He told Col. Parrish, “This was less than a year after 9/11 so we’re all still pretty heated up about that. This was life and death stuff we were supposedly dealing with. There was just a ton of pressure on us to get information to save lives and generate reports.”

By banning the four reporters, the Pentagon has only succeeded in drawing attention to something it presumably wanted to hide: that Omar Khadr’s mistreatment in Bagram took place at time when the violence in the prison, sanctioned by the Bush administration, was so intense that prisoners died, and that his first interrogator was implicated in the murder of one of these men. It doesn’t prove that Khadr wasn’t coerced into making false confessions, but it doesn’t augur well for claims that everything about his treatment was “conversational” and “non-confrontational.”

The Obama administration has until July, when Khadr’s trial is scheduled to start, to extricate itself from a public relations disaster of its own making, by formulating an acceptable plea deal for Khadr and arranging his return to Canada. Too much about this story — from the trumped-up war crimes charges, to the doubts about Khadr’s guilt, to his age and the abuse to which, on occasion, he was undoubtedly subjected — makes proceeding with the trial an unpalatable and essentially pointless exercise. It is, I believe, time, after nearly eight years, for his punishment to come to an end, and for his long-delayed rehabilitation to begin.

Note: The courtroom sketches above, by Janet Hamlin, are 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). 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 January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and currently on tour in the UK), and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on Common Dreams, Eurasia Review, Uruknet, United Progressives, Blog from Middle East and Roger Hollander.