“He Didn’t Commit a War Crime”: Omar Khadr’s US Lawyer Challenges His Conviction at Guantánamo


Last week was a busy week for legal challenges by former Guantánamo prisoners. Just after David Hicks announced that he was appealing against his 2007 conviction for providing material support for terrorism (which I wrote about here), Omar Khadr’s lawyer in the US announced that the Canadian citizen, who was repatriated in September 2012 but is still imprisoned in his home country, is “set to appeal his five war crimes convictions on the grounds that the military commission had no legal authority to try him or accept his guilty pleas,” as Colin Perkel described it for The Canadian Press.

In order to leave Guantánamo, Khadr accepted a plea deal in October 2010, in which he admitted that he was guilty of murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, providing material support for terrorism, and spying, even though there are serious problems with the credibility of the main charge against him — that he threw a grenade that killed a US soldier — as an investigation of the evidence indicates that, at the time, he was unconscious, having been shot twice in the back at close range.

Khadr is able to challenge two of the charges against him — providing material support for terrorism and conspiracy — because of two rulings by the court of appeals in Washington D.C. last October and in January this year, when judges threw out two of the only convictions secured in the military commissions at Guantánamo, in 2008 — against Salim Hamdan, a driver for Osama bin Laden, and Ali Hamza al-Bahlul, a propagandist for al-Qaeda.

In Hamdan’s case, the judges stated, “When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime.” In al-Bahlul’s case, as Reuters described it, the judges concluded that “the charges of which he was convicted” — material support, conspiracy and solicitation to commit murder — were “not internationally recognized as war crimes when the acts were committed.”

Omar Khadr’s appeal to the US Court of Military Commission Review

Speaking from Rosslyn, Virginia, Sam Morison, a civilian lawyer with the US Department of Defense, told Colin Perkel that, in challenging Khadr’s conviction on all five counts, “the main argument turns on whether what Khadr is accused of doing as a 15 year old in Afghanistan was in fact a war crime under American or international law.”

Morison said, “These things weren’t crimes, at least in 2002. They weren’t crimes at the time of the charged conduct. Even if you take the government’s allegations at face value, he still didn’t commit a war crime.”

As Perkel explained, “The basis for charging [Khadr] for the battlefield death was that he was not in uniform, and was therefore an ‘unprivileged combatant,'” but Morison pointed out, as Perkel put it, that “there is no authority under international law to elevate what Khadr did to the status of a war-crime, which includes such egregious acts as deliberately targeting and killing civilians as the 9/11 terrorists did.”

As Morison described it, “Merely being an unlawful combatant is not by itself a war crime. War crimes still have to be war crimes. It has to do with what you do.” And on this basis, of course, even if Khadr had thrown the grenade that killed US Special Forces Sgt. Christopher Speer, who died in the firefight, it was not a war crime.

This was noted by Paul Koring in an article for the Globe and Mail, in which he stated that Khadr’s legal team “will argue that even if he tossed the grenade that killed a US special forces soldier, it wasn’t murder and his other activities weren’t war crimes.” Koring cited Morison as saying, “He is, in fact, an innocent person because he never committed a crime.”

Koring also noted that Morison described Sgt. Speer’s death as “a combat death, not a war crime.” In an interview, Morison said, “Using a conventional lawful weapon in the course of conventional battle is not a war crime; he [Khadr] neither killed a protected person, nor used an illegal weapon, nor used an illegal tactic of some sort, like perfidy.”

Outside of the absurd and vengeful world conjured by the Bush administration after 9/11, it is clear that killing a soldier on a battlefield in an occupied country in wartime cannot be a war crime, but the Obama administration refused to acknowledge this when Khadr was prevailed upon to accept his plea deal, and compounded it by also refusing to accept that, as a juvenile at the time that his alleged crimes took place (i.e under the age of 18), Khadr should not have been eligible for any kind of punishment, but should have been rehabilitated under the terms of the UN Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, to which the US and Canada are both signatories.

Khadr’s status as a juvenile is also noted in the appeal, as is “his subsequent mistreatment by his captors after he was found horribly wounded in the rubble of the compound,” as Colin Perkel described it. He also wrote that Khadr, who was blinded in one eye in the firefight, “still suffers the severe after-effects of his injuries, including problems that could blind his other eye and a chronically infected shoulder,” neither of which I had heard about before.

Perkel also noted that, although the plea deal claimed to involve Khadr waiving his right to challenge his conviction afterwards, Morison explained that the authorities presiding over the military commissions “didn’t follow the appropriate appeal-waiver law.” Paul Koring described how “the Congressional statute that created the latest version of the military tribunals established for the offshore trials at Guantánamo Navy Station in Cuba doesn’t permit certain types of appeals — for instance on jurisdiction — to be waived.”

Morison told him, “Khadr has a statutory right of appeal, he has an absolute right to have his case heard and the court is statutorily obligated to reach a decision, they can’t duck it.”

Khadr’s legal team also argue that Khadr only agreed to the plea deal to get out of Guantánamo, noting that US justice has become so skewed that, even if he had been acquitted, the US government argues that he could still have been held indefinitely.

Morison filed the appeal before the Court of Military Commission Review in Washington, D.C. last Friday. The case will probably be heard in the spring, but in the meantime Khadr still faces problems in Canada, where he is imprisoned in maximum security prison, and where, it is clear, the Canadian authorities want to hold him at least until his eight-year sentence expires in October 2018 .

Responding to Khadr’s appeal, a spokesman for Steven Blaney, Canada’s Public Safety Minister, repeated the mantra that is evidently the Canadian government’s official position on Khadr. “The government of Canada will continue to vigorously defend against any attempt to lessen his punishment for these crimes,” he said.

When told about the statement, Morison said, “That’s pretty mind boggling. If the conviction is thrown out, on what grounds would they keep him in jail?”

Morison had not met Khadr when the appeal was filed, although he is supposed to be meeting him for the first time in Guantánamo this week. He told Paul Koring, “I’m going to Canada next week and the first thing I will do is meet with Omar personally.” He added that the Pentagon “had refused to authorize travel even though it had appointed appeals counsel” in Khadr’s case, as Koring put it, and also stated, “I can tell you that he [Khadr] knows the appeal is happening, and I think it is fair to say that he’s anxious to get the process started.”

A Canadian appeal

While we await the outcome of the appeal, which may well ensure that the case ends up in US federal court, like the cases of Salim Hamdan and Ali Hamza al-Bahlul, Omar Khadr continues to challenge his imprisonment in a maximum-security prison in Edmonton. Although a judge in Alberta refused to order his move to a provincial prison last month, Khadr’s Canadian lawyer, Dennis Edney, also announced on Thursday that he was appealing that ruling. As The Canadian Press explained, Edney “said the appeal is based on the judge’s interpretation of a section of the International Transfer of Offenders Act.”

As Edney put it, “I am essentially arguing that the judge got it wrong in both fact and law.” The Canadian Press described how he said Khadr “should be treated as a young offender and that serving his time in a provincial jail rather than a prison in Edmonton would give him access to programs he needs to get parole.”

Edney also said, “We are saying that the only interpretation that one could make with the eight-year sentence that Omar received, had those offences occurred in Canada, could only have been a youth sentence.”

He added that he had “requested an expedited hearing, but that requires consent from the federal government,” which is unlikely given the government’s hostility towards Khadr.

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and 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. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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27 Responses

  1. Andy Worthington says...

    I was pleased to hear his civilian lawyer at the DoD, Sam Morison, speaking so much sense. His website explains that he “has practiced law for more than 20 years and is a nationally recognized expert on federal executive clemency and the restoration of civil rights,” and he also “served for more than a decade as a staff attorney in the Office of the Pardon Attorney, which is the agency within the US Department of Justice that is responsible for assisting the President in the exercise of the pardon power”: http://www.pardonattorney.com/#!attorney-profile

  2. arcticredriver says...

    Andy, thanks for all your continued efforts to keep Omar Khadr’s case before the public.

    Some newspapers allow their readers to share opinions following some of their articles. I haven’t read or participated in the discussions following news of this step of his appeal. But, disappointingly, at earlier stages a surprising number of readers denounced the sneaky lawyers for accepting foolish, and unnecessary government payments for defending “terrorists”. Of course, as you know, and most of your readers know, Dennis Edney, Nathan Whiting, all of Omar’s civilian lawyers, all of the well over a thousand dedicated, principled lawyers who have helped Guantanamo captives have been volunteers.

    As you and I have discussed before Omar has written that he always thought of himself as a Canadian first, even when his parents took him to Afghanistan, and that all he has wished for, since the day he was captured, was the day he could act like a regular Canadian.

    If Commander Gordon runs true to form he will show up here, with the URL to his latest attempt to enhance his career as a professional alarmist — without regard to how this detracts from public safety.

    If Commander Gordon does look in here, will you allow me to urge him, in the strongest possible terms, to abandon the path of professional alarmist? One thing all these professional alarmists have in common is the claim that their alarmism is intended to help enhance their readers’ safety. But when minor elements of those captives’ story are distorted, so they appear alarming, or are magnified, so that they seem much more alarming then they actually merit, the discussion on how to allocate our counter-terrorism resources is distorted.

    The result is we end up continuing to waste counter-terrorism resources on non-threats. Even if, for the sake of argument, Omar participated in that firefight, he is not a threat. When you add up the cost of holding him, the half million dollars paid to that awful shrink the prosecution hired, the other costs of trying him, etc., the tangible costs may have exceeded $30 million. Heck, those tangible costs may have approached $100 million. Add to that the intangible costs of the wild-goose chases that result from taking tortured confessions at face value, and the terrible international black eye the USA is wearing due to its clear torture of a 15 year old youth, the professional alarmists, like Commander Gordon, have a lot to answer for.

  3. Andy Worthington says...

    Great to hear from you, arcticredriver, and you know, of course, that I will continue to do what I can for Omar until he is finally a free man.
    I also agree with you about the diversion of energies from real threats — and, I believe, the alarming tendency of our governments to maintain the notion that we face a permanent existential threat greater than any that has ever existed before. I see it at present in the British government’s attempts to claim that the Guardian endangered national security by publishing Edward Snowden’s NSA revelations, when that is clearly untrue: http://www.theguardian.com/world/2013/nov/03/uk-reaction-nsa-leaks-human-rights

  4. Andy Worthington says...

    On Facebook, Agastyan Daram wrote:

    It seems fair to say that We Americans need to play fair as well. How can it be fair when they kill one of us its considered a war crime? If you engage in an act of war on foreign soil and get killed don’t cry foul.

  5. Andy Worthington says...

    Yes, exactly, Agastyan. It’s an absolutely disgraceful position for the US to take, made all the worse because the alleged “conviction” was inflicted on a former juvenile prisoner who had never been rehabilitated, as required by America’s treaty obligations, and who is still suffering in Canada, where his own government has also flouted its treaty requirements regarding juvenile prisoners. And on top of all that, there is no proof whatsoever that Omar killed anyone.

  6. paul siemering says...

    When I first heard about Omar’s case I was flabergasted. He is a child soldier, so he cannot even be arrested, no matter what. Next, he is accused of “murder” for tossing a grenade at invading soldiers from a foreign country. So i’m like “whoa wait a minute here- you guys want to invade other countries, shoot them up and bomb them and they can’t fight back? boy oh boy you usa usa soldier boys are sure some tough mothers aint you?
    that was many years ago and i been bloggin on and on about it and i swear this is the first time i saw anybody else point this out. ( I’m sure you did Andy, i just did not see it ok?) anyway mighty nice to see he’s got a good lawyer working for him.

  7. Basil McDonnell says...

    Hi Andy,

    I’d like to thank you for all your work on Guantanamo, and to weigh in as a Canadian.

    To me, this case provides an answer to a question a Jewish friend of mine asked me many years ago: could it happen again here? My answer then was no, never. But the Khadr case has changed my mind.

    Based on the Khadr case the answer is yes, what happened to the Jews in Germany could happen here.

    Where laws can be ignored and new ones whipped up on demand, of course Jews or any other unpopular group can be rounded up and stuffed into concentration camps. Because we have no laws. The only law that counts is what is made up by the powerful. Our charter of rights is nothing but a useless scrap of paper, along with all our other laws. If the laws are ignored when they are not convenient, then we have no laws at all.

    The law in 1942 that said Canadians of Japanese origin had the same rights as anyone else was inconvenient, and was therefore just ignored, and off they went into internment camps. How is this any different?

    If Canadian law counted for anything Harper would have met Khadr on the tarmac at the airport, turned him around, and unlocked his handcuffs. And set him free. Why should he have done this? To show Jews and Japanese and everyone else that Canada is a country of laws, not men, and that they are safe here.

    They’re not. No one is.

    I continue to be ashamed and dismayed. I hope this appeal is successful so I can give my Jewish friend a different answer some day.

  8. augustbrhm says...

    God bless America and by extension the present “Canadian American controlled government”

  9. Andy Worthington says...

    Thanks, Paul. Yes, I’ve been pointing it out in various permutations since Omar was forced to accept the plea deal – and I’ve been on about him being a juvenile for even longer. This is something I wrote five years ago about the treatment of Omar and juveniles in general at Guantanamo: http://www.andyworthington.co.uk/2008/10/20/omar-khadr-the-guantanamo-files/
    And this is what I wrote after his plea deal, looking at the mind-boggling injustice of making America’s opponents in a war into war criminals: http://www.andyworthington.co.uk/2010/10/26/the-betrayal-of-omar-khadr-and-of-american-justice/
    It is indeed good to see that he has a good lawyer working for him. The military defense lawyers, and the civilian defense lawyers working for the DoD are examples of checks and balances that have survived the lawlessness of the “war on terror” – as, of course, is the ability of a panel of appeals court judges in Washington D.C., including Bush appointee Brett Kavanaugh, to tell the government that its war crimes are invented.

  10. Andy Worthington says...

    It’s very good to hear from you. Basil, and thank you for your considered opinion about why all decent people, with respect for the law, should be outraged – and deeply worried – when “exceptions” are made because of allegedly “exceptional” circumstances. I too hope that justice will eventually be done in Omar Khadr’s case, and you will be able to tell your Jewish friend that what happened in WWII cannot happen again. I fear, however, that we are on as slippery slope towards embracing keys elements of fascism or totalitarianism, in large part because senior officials in the Bush administration, up to an including the president, and senior lawyers, have, to date, got away with introducing a program of extraordinary renditoon, torture and indefinite detention without charge or trial. People need to be held accountable, or the poison will continue to infect our countries like a malevolent virus.

  11. Andy Worthington says...

    Ah yes, the 51st state, augustbrhm. I think the UK is in there somewhere too, maybe as the 52nd state.

  12. arcticredriver says...

    CNN has a weekly show hosted by Fareed Zakaria. Last Sunday he had two guests discuss the question of whether Snowden’s leaks posed an overall benefit or risk to public safety.

    As to the use and mis-use of secrecy — I think I might have mentioned a political cartoon I saw once, where two officers lean over a map in a deserted map room, after some kind of operation is over, and one says to the other, “Well, we sure screwed up this one. Should we classify it it as SECRET, or TOP SECRET.”

    Spooks claim the leaks put public safety at risk, but, largely, secrecy isn’t protecting public safety — only protecting their reputations and careers, by obscuring their long history of incompetence, cruelty and failure.

    Has the “Arab Spring” turned out to be a positive historical development? May I make a couple of points about the Arab Spring?

    Although no one credits Private Manning for playing a key role in triggering the Arab Spring, I don’t think there is any question that leaking the diplomatic cables from middle east embassies, that peeled away secrecy, so citizens of those countries could understand what their oppressive governments were really doing, and how they were really vulnerable, did play a key role. Of course the leak alone would be insufficient, without the internet to disseminate that information.

    One of George W. Bush’s justifications for invading Iraq was the claim that replacing Saddam’s regime with a genuine western style democracy in Iraq would trigger a cascade of copycat western style doctrine’s cropping up all over the middle east. The invasion of Iraq was a complete failure at introducing democracy across the middle east, and arguably, did not really succeed in introducing democracy to Iraq. But the Arab Spring, which Manning helped trigger, may really have triggered changes that have made some countries freer.

  13. arcticredriver says...

    Andy, may I address one of Paul’s comments? I am going to suggest that Dennis Edney is far more than a good lawyer. I suspect that if Omar had been a minor, when he returned to Canada, Edney would have been willing to adopt him — he has been that dedicated. All of his work has been pro bono, and has been extremely expensive.

  14. Andy Worthington says...

    Thanks, arcticredriver. I actually tittered out loud at your story about the cartoon involving intelligence officers. I would say that secrecy in the “war on terror” is supposed to “cover people’s asses,” as some Americans so charmingly put it, to hide embarrassment at what you correctly identify as “their long history of incompetence, cruelty and failure,” and also to hide evidence of their crimes – although on this latter point, so much has been done to prevent any kind of legal challenge that it’s not really relevant.
    Good points about the Arab Spring too.

  15. Andy Worthington says...

    Thanks, arcticredriver. I agree wholeheartedly about Dennis Edney, although I believe that Paul was referring to Sam Morison, who has made such a great and recent contribution to Omar’s case.

  16. arcticredriver says...

    With regard to secrecy and the utility of torture, may I share my interpretation of the four positions taken in these discussions?

    At first I thought there were just three basic position on the utility of torture, and whether it should be used. I thought those three positions were:

    (1) Torture is morally wrong, and should never be used, under any circumstances whatsoever;

    (2) Torture is morally wrong, and should only be used as a very last resort;

    (3) The technique of torture is merely one more tool in an intelligence officials toolkit, no more morally wrong than any other technique, like traffic analysis.

    In every extended discussion over whether torture should be used it seems to me the amoral crowd in that third group have tried to convince the majority of people who say they are only open to the use of torture as a very last resort that public safety is at such risk, that we are already at our very last resort.

    Of course we are very far from being at the very last resort.

    The position I try to take in these discussions is not that torture is morally wrong — most people already agree with this, to a certain extent, which is why they will only agree to it being used as a very last resort. The position I try to take is that torture never works.

    I think the people who regard torture as just another tool, would abandon advocating its use if they really understood that the spooks have been lying to us, and that torture has been a total failure.

    There was a conservative US Governor, about ten years ago, who had dozens of convicts on his State’s death row. A local law professor and his students mounted an innocence project, and were able to establish that a significant number of the convicts on death row, and possibly some recently executed men, had been wrongly convicted. This Governor withdrew the death penalty from all the remaining death row convicts, based on the comprehensive report from these legal scholars, documenting how often, in practice, suspects had been wrongfully convicted. He gave a statement, that he still believed that a death penalty could be a deterrent to capital crimes, and should be used in circumstances where society could be comfortable that only guilty men were being executed.

    I would be happy if those who have been advocating torture stopped their advocacy solely because they realized torture is innately unreliable. I don’t care if they continue to think torture is morally acceptable in principle, so long as they stop advocating it because they realize it could never work in practice.

    Andy, your work on the true story of Ibn Al Shaykh Al Libi is very important here. The failure his torture represents is so significant it dwarfs the significance of other tortures. Colin Powell agreed to accept his tortured confession at face value and told the United Nations it established that Saddam was training al Qaeda and that Saddam continued to possess a dangerous arsenal of nuclear, chemical or biological weapons.

    After a couple of years I realized there was a fourth group in the discussion — amoral vengeance seekers — who couldn’t care less that torture was worthless as an intelligence technique. They advance the same arguments as those in the third group — that the public is at such great risk we are forced to use brutal techniques of very last resort. But they don’t care that torture doesn’t actually work, torture for information is only their cover for using torture to “get payback” — extract vengeance.

  17. Andy Worthington says...

    Giacomella Jackie Milesi Ferretti wrote:

    thanks for all these posts and comments, I re-posted everything!

  18. Andy Worthington says...

    Thanks, Giacomella. Always good to hear from you.

  19. Andy Worthington says...

    Thanks, arcticredriver. A great summary.
    I will only add a few additional comments, if that’s OK:
    (1) This is the only acceptable position, of course, as Article 2.2 of the UN Convention Against Torture stipulates, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
    (2) The “very last resort” that people refer to generally seems to be the “ticking time bomb scenario,” something that has never actually happened – and is actually impossible to imagine happening.
    (3) This is why we hear so much about “enhanced interrogation techniques,” to hide the fact that what’s being discussed is torture, to which, of course, Article 2.2 of the UN Convention Against Torture applies.
    I believe you’re also right abut the existence of (4), which is a major reason why those who contravened Article 2.2 of the UN Convention Against Torture need to be held accountable for their crimes. Looking forward not backwards won’t deal with the poison of torture that is fatally infecting the moral compass of the US and other countries following its lead (like the UK and Canada).

  20. Kal says...

    It would be interesting to compare how the US treats bad guys accused of killing its people versus how the US treats those cases where US persons are accused of killing foreign bad guys. It’s a fair question, whose responses may reveal more flaws in our seemingly noble justice system than it appears to the uninformed observer.

    For instance, a US Army civilian employee received probation from a Northern Virginia district court for shooting a restrained Afghan national civilian point blank in the face. No jail time. Or the infamous Sgt. Bales, receiving life for murdering over 15 foreign national women and children in their sleep and burning, mutilating their corpses. Or the US Kill Team – five members altogether received less than 20 years jail time for murdering a foreign national civilian teenager. The Marines urinating on the dead and the Germans digging graves for skulls, and other examples of ‘war’ stories but not war crimes.

    In fact, each of these cases cries out to Afghanistan to NOT sign the BSA with the US. It is hoped your leaders will not sign the BSA and rent out your lands and people to as target practice. Remember, Afghanistan, it is these superpower nations who got you in the mess you’re in now.

  21. Andy Worthington says...

    Thanks, Kal. Yes, the hypocrisy is clear in general in those cases you outlined, and right now, when it comes to the BSA (Bilateral Security Agreement), the Afghan government clearly has reasons to be worried, as you note.

  22. Diane says...

    Thanks very much for continuing to write about this Andy.

    What I find most concerning about Omar Khadr’s treatment by our government in Canada is that they are treating him as if he had been convicted by a regular US or Canadian court of committing murder, attempted murder, spying and terrorism in a civilian context in the US or Canada as an adult. The line you quoted about their intention to fight all efforts to lessen his punishment was repeated by both that minister and the prime minister and they referred to his “heinous” crimes. That’s how they justify keeping him in a maximum security prison with little access to rehabilitation or parole.

    This, of course, ignores the facts of his case even if you assume him guilty as charged. He was a young teenager, raised mainly in a foreign country with beliefs that led him to join a war, and was charged basically for being in the war while not having the legal status of a soldier, same as the rest on his side and some on the US side. He was charged with crimes under a law in a system with no counterparts here in Canada and the government had to determine an equivalency. It ignores even his mistreatment that was acknowledged by interrogators and the existence of the enhanced interrogation program and related abuses acknowledged by the US government, as context.

    The government’s treatment of Khadr ignores that the case against him was developed through a process the Canadian Supreme Court declared illegal in a system struck down by the US courts. The system was made more legal before his trial ended, but the transcripts appear to indicate that they used self incriminating evidence just as illegal as the evidence gathered by Canadians at Gtmo, the reason our Court declared Canada complicit in his illegal treatment by the US. It ignores that he had little choice about pleading guilty for the plea bargain or that by making that offer the US was recognizing the dubiousness of the widely criticized case but saving face politically at the same time.

    Their treatment doesn’t even seem best to manage any security risk he may be, not that there is any known credible evidence that he is one. It’s all about disproportionate punishment and politically capitalizing on misplaced vengeance.

  23. Andy Worthington says...

    Thank you, Diane. That’s a very powerful analysis of the completely unacceptable position taken by your government. I would only add that, even if Omar was, as you say, “a young teenager, raised mainly in a foreign country with beliefs that led him to join a war,” he was not responsible for that decision, even though the US authorities repeatedly made him state that he was in his plea deal, because he was a juvenile at the time that his alleged crimes took place, and therefore under the influence of an adult (his father). I find the manner in which both the US and Canada have brushed aside their UN obligations to children in armed conflict in Omar’s case – even though they are required to rehabilitate rather than punish juvenile prisoners – to be thoroughly reprehensible, and I’d like one day to see the Canadian government challenged on that in a Canadian court.
    Mostly, what’s particularly dispiriting to me about Omar’s treatment is how he has been made the hate figure for a disturbing outpouring of racism and Islamophobia that ought never to be acceptable.

  24. arcticredriver says...

    I’ve wondered what role Omar’s father really played in Afghanistan, prior to 9-11.

    Omar’s siblings, Zaynab and Abduraham, have described what life was like in bin Laden’s compound. This has been widely descirbed as if they regularly stayed with bin Laden. I think these two accounts are credible enough to establish that bin Laden senior and Khadr senior had a friendly relationship. But, from my reading, what Zaynab and Abdurahman described was a single visit, lasting weeks, and terminated early and never repeated, because bin Laden viewed the relatively westernized Khadr children as bad influences on his much more strictly raised children.

    I’ve read that, in the 1990s, Khadr senior was asked to serve as a neutral third-party arbitrator, or reasonable equivalent, between the Taliban and the group lead by Gulbuddin Hekmatyar — the Hezbi Islami Gulbuddin.

    There are some Canadian sources that say that when they visited orphanages and other sites Khadr said were charitable enterprises, they saw armed members of the HiG. Should Khadr senior have had armed guards if he was only running genuine charitable enterprises? In lawless Afghanistan armed guards were a very sensible precaution. There is a young American charitable volunteer whose flickr photostream I monitor. He published hundreds of fine images from Afghanistan under a creative commons license that allows generous re-use. The photos in his flickr stream include dozens of photos of the armed guards that protect him and his fellow volunteers. This photo shows a western aid worker practicing with an MP5 submachine gun.

    Should Khadr senior have individually hired and trained his guards? Should he have hired a local with military experience, but no ties to any of the warring factions, to hire and train his security guards? In wartorn Afghanistan would it even have been possible to find a competent local, with military experience, who didn’t have ties to any of the warring factions? So maybe he felt his only choice would be to contact the most powerful group, and hire them to second a team of guards?

    Back in 2001, when we first had news of John Walker Lindh, the “American Taliban”, I was reminded of that great British film, The Great Escape. The film’s accurate elements showed the great difficulties allied flyers who escaped a Luftwaffe POW camp faced while trying to make their way through hostile territory back to Allied lines. In real life only three of the escaped flyers made it back to Allied lines. I thought to myself, that if JWL only learned of the plan to attack the USA in September 2001, would it even have been possible for him to slip away, and proceed overland, to an American embassy?

    I don’t think it would have been possible for young JWL to realize, “Holy crow, these guys played a role in attacking the USA! I am an American patriot first, and defender of Islam second! I have to sneak away and make my way to a US embassy so I can tell officials everything I know” He didn’t look like an Afghan, he didn’t speak any Afghan languages, he had surrendered his funds and passport, for safekeeping, and he had no Afghan friends. This would have been suicide. Now maybe JWL did have foreknowledge he was training with muslims who planned to attack the USA — but, when 15 year old Omar was left in that compound by his dad, could he have slipped away, and made it to US lines, to surrender?

    He spoke Dari and Pashtun, and JWL did not. But he was only 15 years old.

    If 15 year old Omar had escaped that compound in late June 2002, and had made his way to US lines, or Western journalists, would he have been repatriated to Canada, as he deserved, or would he have ended up in CIA custody — like his brother Abdurahman? Andy, you covered the heart-breaking cases of those half-dozen individuals found by the BBC in the abandoned Taliban prison. The USA was quite willing to accept the good press of promising to repatriate these men — but they ended up in Guantanamo anyhow.

  25. Andy Worthington says...

    Thanks, arcticredriver, for the interesting comments re: the Khadrs and the bin Laden compound, and the ludicrous notion that you could not have armed guards in Afghanistan, or could find “neutral” guards.
    I believe you’re correct to point out the difficulties of getting out of Afghanistan after 9/11 – and what should also be noted is how bounty hunters were operating, in large part if not entirely because of the rewards being paid by the US for people who could be dressed up as al-Qaeda or Taliban suspects. Nevertheless, one of the earliest habeas petitions that was denied involved Moaz al-Alawi (aka Muath al-Alwi), a Yemeni prisoner whose habeas petition was turned down by Judge Richard Leon in part because al-Alawi hadn’t swiftly left Afghanistan after 9/11. I wrote:

    By Leon’s own account of the evidence, al-Alawi was in Afghanistan before the 9/11 attacks, and was fighting with the Taliban against the Northern Alliance. To counter this, he endorsed the government’s additional claim that, “rather than leave his Taliban unit in the aftermath of September 11, 2001,” al-Alawi “stayed with it until after the United States initiated Operation Enduring Freedom on October 7, 2001; fleeing to Khowst and then to Pakistan only after his unit was subjected to two-to-three US bombing runs.”

    In other words, Judge Leon ruled that Muaz al-Alawi can be held indefinitely without charge or trial because, despite traveling to Afghanistan to fight other Muslims before September 11, 2001, “contend[ing] that he had no association with al-Qaeda,” and stating that “his support for and association with the Taliban was minimal and not directed at US or coalition forces,” he was still in Afghanistan when that conflict morphed into a different war following the US-led invasion in October 2001. As Leon admitted in his ruling, “Although there is no evidence of petitioner actually using arms against US or coalition forces, the Government does not need to prove such facts in order for petitioner to be classified as an enemy combatant under the definition adopted by the Court.”

  26. arcticredriver says...


    I came across a story of a Green Beret, who has recently been charged with murder, for the extrajudicial killing of an Afghan prisoner. Mathew L. Golsteyn was fighting next to US Marines in “the battle of Marja”, in Helmand, on February 18, 2010. When Marines opened a sliding door it triggered a booby-trap, which killed two Marines, and seriously wounded three others.

    The reason I bring up his story Andy is that I think there is another instance in it of a phenomenon we have discussed before. While I am sure there are lots of GIs who served in Iraq and Afghanistan, who not only never committed an atrocity, they never learned details about atrocities committed by others that would make them an accomplice for not informing on the actual killers, I think the atrocities we actually learn about are the tip of iceberg.

    Just as Police are known for closing ranks, and presenting a “blue wall” to inquiries into abuse of force, soldiers’ war-time camaradarie triggers a similar closing of ranks, when they are aware of atrocities.

    Sometimes we learn of an atrocity when the killers are unlucky enough to be observed by a third party, like Kevin Sites, in Fallujah, who saw the second act when Marines had left wounded Iraqi captives behind, so that they could stake out the building where they left them, and capture comrades who tried to sneak back to rescue them. After a couple of days of stake-out, the Marines returned, to kill off the evidence of their first war crime. Sites was an embedded journalist. The Marines told him to stay outside, and give them 30 seconds to clear the building. He did stay behind. But when he entered the building, after the shooting ended, he heard one of the Marines say, “Hey this guy is still alive”, and shoot him, in cold blood. Sites captured this on video. Apologists for the war came up with some amazingly convoluted defenses of the atrocity. Anyhow, the circumstances were unusual, and I am afraid this kind of killing may have come to be routine.

    One of the other common triggers for an inquiry is when a GI decides he wants to join the FBI, Secret Service, DEA or CIA, when his DoD hitch is over. It seems to be standard procedure for those agencies to subject job applicants to a polygraph examination. They are not eligible if they have a criminal record. No polygraph is required for that. But it seems they are asked if they smoked marijuana, or engaged in other illegal activity that was never detected by law enforcement officials.

    Applicants seem to be told that some unreported crimes will be forgiven, if they are described during the polygraph interview, but will have very serious consequences if they are not described, they are hired, and then their superiors find out. It seems that quite a few soldiers will assume that atrocities, like playing a role in an extrajudicial killing, fall into the class of previously unreported crimes that won’t preclude their hiring, and offer a confession.

    In 2011, Golsteyn wanted to move from the Green Berets to the CIA, and described killing an Afghan he suspected had been a Taliban bomb-maker, and the CIA reported his confession to the Army. Golsteyn had been awarded a Silver Star. The first three year inquiry didn’t recommend criminal charges, or a reduction in rank, or a bad conduct discharge. He was given a “general discharge under honorable circumstances”, which, while not as good as an “honorable discharge” would not strip him of Veteran’s benefits. His personnel file also had a letter of reprimand added to it. Apparently the officers argued there wasn’t enough evidence to charge and convict him.

    But a year later, in 2016, Fox News broadcast an interview with Golsteyn, that contained another confession of the extrajudicial killing. So a second inquiry took place, and he was finally charged with murder, last Friday. Trump tweeted that many people had asked him to look into Golsteyn’s case, and he might have to take action. The BBC reported that, while no one knew quite what Trump meant, his comments looked like yet another instance of “illegal command influence”.

    I think the incident where a junior NCO, who had already served a hitch in Iraq, and was basically a thrill killer, recruited some less experienced soldiers to be part of his “kill team”. It is my recollection that LEO learned of the kill team when one of the GIs was given a polygraph when he applied to another Federal agency. I think I remember atrocities being made public when CACI or Blackwater contract interrogators applied to a Federal agency. And finally, is that how the Steven Green atrocity became public.

    I am trying to remind myself of other instances of this phenomenon.

    Returning to the actual Golsteyn incident of 2010-02-18, after the booby trap explodes GIs inspect nearby homes, and one guy’s home contains “bomb-making material”. Golsteyn takes him into custody. A cooperative Afghan elder Golsteyn trusts identifies him as a member of the Taliban.

    Something goes wrong, and the suspect accidentally sees the cooperative elder, who then tells Golsteyn he is afraid the Taliban will kill him and his family.

    I think you and I know, from reading the OARDEC transcripts, how tribal feuds complicate figuring out who was or wasn’t a member of the Taliban. It was my impression that lots of individuals the USA trusted were just as ideologically conservative as the Taliban, and it was only some tribal grudge, or personal ambition, that kept them from joining. The Attorney General, or Chief Justice that Hamid Karzai appointed, denounced the education for women, in essentially the same terms as the Taliban. So, I am going to reserve some skepticism for the trust Golsteyn placed in his cooperative elder.

    Denunciations of “bomb-making materials”? Sometimes it has sounded to me as if all the GIs had found was a carpenter with a well-stocked carpenters shop, with a bucket of tacks, and cans of volatile stuff like varnish and acetone.

    There is an alarming passage in this NYTimes article

    Major Golsteyn said the suspected bomb maker was not on a list of people whom American forces were authorized to kill without following rules of engagement that bar such action, according to Army documents.

    Could this be the JPEL, the Joint Prioritized Effects List” — usually simply called the “Kill or capture list”? If so it sounds like, by 2010, GIs were taking greater initiative than I imagined. This comment sounds like Green Berets acted like, if they took a prisoner, who turned out to be on this list, they were allowed to ignore Army Regulation 190 on how to treat prisoners humanely and to ignore the Geneva Conventions, and take them out back and shoot them.

    When I first read about this list it sounded like, if they went to the home of someone on the list, they would get an informal nod or wink that informed them as to whether HQ actually wanted him taken prisoner, or whether they would prefer if the after action report said he refused to surrender and subsequently died. I had the impression that if they got the right nod, or wink, they knew that they should take the individual out back, and shoot him, if he was so uncooperative as to surrender, and didn’t cooperate by engaging in a hopeless shootout.

  27. Andy Worthington says...

    As always, thanks for your thoughts, arcticredriver. I had missed the story of Mathew L. Golsteyn, so thanks for relating it here. I find the “kill list” passages particularly troubling, as that’s not something I’ve looked into closely enough.
    It’s the second time today that I’ve been reminded of troubling aspects of the “war on terror” outside of my immediate focus. Earlier I discovered an article for the Intercept by Cathy Scott-Clark and Murtaza Hussain about Shawki Omar, which I recommend. A US citizen, he was horribly abused by US forces, and then handed over to Iraqi forces, who continued the abuse. The entire story is worth reading, if you don’t know it, but what leapt out at me while reading it earlier today was how he was designated an “enemy combatant” in 2004, and how he was one of 200 prisoners regarded as “high-value detainees” in Iraq. As the article notes, in 2010, “the U.S. military in Iraq formally handed over Camp Cropper, the last Iraqi detention facility under its control, to the Iraqi government. The Iraqis renamed the facility Karkh prison, but the U.S. would continue to hold ‘the 200’ high-value detainees — including Omar — in a special facility there consisting of shipping containers and called ‘compound five.'” The Iraqis then continued to abuse “the 200”, and in 2013 he vanished, only to resurface “in solitary confinement at Baghdad Central Prison, formerly Abu Ghraib.”
    For the full article, see: https://theintercept.com/2018/10/28/shawki-omar-iraq-detention-torture/

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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