Since coming to power 15 months ago, promising to close Guantánamo within a year, and suspending the much-criticized military commission trial system for terror suspects, President Obama’s zeal for repudiating the Bush administration’s “war on terror” detention policies has ground to a halt.
The rot set in almost immediately, when the new administration invoked the “state secrets doctrine” last February, to combat a lawsuit brought by several men subjected to “extraordinary rendition” and torture, and was sealed last May, when Obama delivered a major national security speech in which he announced that the military commissions were back on the table, and also announced his intention to continue holding some prisoners at Guantánamo without charge or trial.
In November, Attorney General Eric Holder set the seal on the administration’s two-tier justice system for terror suspects at Guantánamo by announcing that five men would face federal court trials for their alleged involvement in the 9/11 attacks, but that five others would face trial by military commission, in a revamped version of the “terror courts,” approved by Congress over the summer.
This year, Obama disappointed critics in the United States, and those scrutinizing his activities around the world, by failing to close Guantánamo within a year as promised, and by failing to set a new deadline for the prison’s closure, but last week his administration pressed ahead with what may well be viewed as the single most disappointing failure to repudiate the cruel, chaotic and unjust policies of the Bush administration’s “war on terror”: the trial, by military commission, of Omar Khadr.
A Canadian citizen, Khadr was just 15 years old when he was seized by U.S. forces after a firefight in Afghanistan in July 2002, in which he allegedly threw a grenade that killed a U.S. soldier, Sgt. Christopher Speer, and was taken first to the U.S. prison at Bagram airbase, and then to Guantánamo, where he remains to this day. I have been covering his case since June 2007, when his first pre-trial hearing took place in the commissions’ first reincarnation, after the Supreme Court ruled in June 2006 that the original version, the brainchild of Dick Cheney and his legal counsel David Addington, was illegal.
For nearly three years, therefore, I have watched as a disturbingly shambolic and misconceived excuse for a judicial system has attempted, without success, to prosecute Omar Khadr, and the many failures of this endeavor have not been resolved through Congress’ tweaking the system last summer.
The shame and disgrace of prosecuting a child
Firstly, and most important, Khadr was a child when seized. This meant nothing to the Bush administration, and it is clear that it also means nothing to the Obama administration either. Back in May 2003, when the story first broke that juvenile prisoners were being held at Guantánamo (and research indicates that at least 22 juveniles were held in total), Defense Secretary Donald Rumsfeld impatiently told a press conference, “This constant refrain of ‘the juveniles,’ as though there’s a hundred children in there — these are not children,” and General Richard Myers, the chairman of the Joint Chiefs of Staff, 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.”
This rhetoric played well with those who hold that everyone is accountable for their actions, whatever their age, but in a more enlightened world, of which the United States is technically a part, juveniles — defined as those under the age of 18 when the crime they are accused of committing took place — “require special protection” according to the Optional Protocol to the U.N. Convention on the Rights of the Child, on the involvement of children in armed conflict, to which the United States is a signatory. 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.”
It would be difficult to find a more appropriate case of a child who was “particularly vulnerable to recruitment or use in hostilities” than Omar Khadr, who spent much of his childhood in Afghanistan, taken there by his father, an alleged fundraiser for Osama bin Laden, and yet, as I demonstrated in the first of my weekly columns for The Future of Freedom Foundation, back in October 2008, Khadr has never received “physical and psychosocial rehabilitation and social reintegration,” because a detailed plan submitted by four doctors to the Defense Department in January 2003, entitled, “Recommended Course of Action for Reception and Detention of Individuals Under 18 Years of Age,” was completely ignored.
The problem of invented war crimes charges
Beyond this most glaringly obvious problem with Omar Khadr’s trial (and his nearly eight years in detention), another fundamental problem with Obama’s decision to proceed with prosecuting a former juvenile prisoner in the first U.S. war crimes trial since Nuremberg concerns the basis of the charges against Khadr. On an intuitive level, 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 United States — 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.”
Lt. Col. David Frakt, who knows more about the laws of war than Congress or officials in either the Bush or Obama administrations, has long 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.” As he explained last week, as Khadr’s trial got underway, the latter was introduced by the DoD in 2003, when it was defining the crimes eligible for trial by military commission, as “murder by an unprivileged belligerent.” He added:
This status-based definition conflated two different concepts — unprivileged belligerents and war criminals. 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.
When Congress revived the commissions in 2006 (after Congress ruled them illegal), “murder by an unprivileged belligerent” became “murder in violation of the law of war.” However, as Lt. Col. Frakt explained, the distinction appeared to be cosmetic, and, crucially, judges in the only two full trials that ever took place (those of Salim Hamdan and Ali Hamza al-Bahlul), as well as the judge in the case of Mohamed Jawad (released in August 2009), rejected the supposed crime, “each ruling that the mere status of unprivileged belligerency was insufficient to prove a violation of the law of war.”
Despite Lt. Col. Frakt’s alerting Congress to these problems last summer, lawmakers left the definition of “murder in violation of the law of war” unchanged in the new version of the commissions, but, astonishingly, DoD officials added an “official comment,” explaining that “an accused may be convicted in a military commission … if the commission finds that the accused engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.” In other words, as Lt. Col. Frakt explained, “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.”
The first flawed week of Omar Khadr’s pre-trial hearings
This new twist in the absurdly ill-conceived commissions did not permeate the first week of pre-trial proceedings in Omar Khadr’s case, although it will undoubtedly surface should the trial actually go ahead in July, and his defense team has not yet flagged up Khadr’s age on capture as a campaigning issue. Even so, there was more than enough incompetence and manipulation at work to indicate that President Obama’s decision to revive the commissions will, in all probability, lead not only to protracted legal challenges, but also to international indignation at the failure of both the administration and Congress to deliver justice to the prisoners at Guantánamo.
As dozens of journalists geared up for the pre-trial hearings at Guantánamo last Tuesday, having experienced the logistical nightmare that makes trials at the naval base such a poor idea on the basis of expense and practicability alone, they received their first notification of the chaos that, without fail, marks the proceedings as little more than a dark farce. The first day’s hearing was delayed so that everyone could review the commission manual, which was not signed by Defense Secretary Robert Gates until the evening of April 27, and now had to be downloaded and printed out in a part of the world where technology is often stranded in, at best, the late 20th century.
Although Khadr turned up for the delayed start of the first day’s hearings, which commenced on Wednesday afternoon, he essentially boycotted the rest of the week’s proceedings, when, whether deliberately or not, he highlighted the kind of excessive security measures that pass for normal at Guantánamo. On day two, after complaining of eye pain, apparently brought on by conjunctivitis, he refused to don blackout goggles for his trip from his cell to the courtroom in a windowless vehicle, telling his escort, Marine Capt. Laura Bruzzese, “You’re trying to humiliate me.” Although he was persuaded to attend later that day, he again refused to attend on day three, complaining that a waistband search for contraband “comes too close to his genitalia in the way it’s being done,” as Barry Coburn, one of his military defense lawyers, explained. On Saturday, he refused again, telling Capt. Bruzzese, “I’m not going, nothing is starting at 0730.”
In the courtroom, meanwhile, discussions focused on the reliability of the evidence gathered by the government during Khadr’s interrogations. Khadr’s defense team has long maintained that Khadr, who was badly wounded at the time of his capture, having been shot twice in the back, was subjected to brutal treatment in the U.S. prison at Bagram, and later at Guantánamo, which rule out any self-incriminating statements he may have made as the “fruits of torture.” As I explained in a major review of Khadr’s case in November 2007:
According to his own account, reported by Amnesty International, he “asked for pain medication for his wounds but was refused,” said that “during interrogations a bag was placed over his head and U.S. personnel brought military dogs into the room to frighten him,” and added that he was “not allowed to use the bathroom and was forced to urinate on himself.” Like many other prisoners, he was also hung from his wrists, and explained that “his hands were tied above a door frame and he was forced to stand in this position for hours.” An article in Rolling Stone, in August 2006, added further details, noting that he was “brought into interrogation rooms on stretchers, in great pain,” and was “ordered to clean floors on his hands and knees while his wounds were still wet.”
Most of the above seems to have taken place in Bagram, where brutality was so commonplace at the time of Khadr’s stay there that at least two prisoners died of wounds inflicted by their guards just months after his departure. However, the abuse continued in Guantánamo, where, it should be noted, 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 U.S. personnel to resist interrogation if captured, in an attempt to increase the meager flow of “actionable intelligence” from the prison. As I explained in 2007:
He told his lawyers that he was “short-shackled by his hands and feet to a bolt in the floor and left for five to six hours,” and that “occasionally a U.S. officer would enter the room to laugh at him.” He also said that he was “kept in extremely cold rooms,” “lifted up by the neck while shackled, and then dropped to the floor,” and “beaten by guards.” In one particularly notorious incident, the guards left him short-shackled until he urinated on himself, and then “poured a pine-scented cleaning fluid over him and used him as a ‘human mop’ to clean up the mess.” As if further humiliation was required, he added that he was “not provided with clean clothes for several days after this degradation.”
In contrast to Khadr’s claims, the government has proposed that he was treated humanely, and that he offered up self-incriminating information voluntarily. Robert Fuller, an FBI agent who interviewed Khadr at Bagram in October 2002, testified on Wednesday that his interrogations of Khadr were “conversational” and “non-confrontational,” adding, “We never put our hands on Mr. Khadr,” and stating that Khadr spoke “openly, confidently and comfortably about al-Qaeda” and admitted to throwing the grenade that killed Sgt. Speer. Fuller’s testimony continued on Thursday, and on Friday, a young female Navy Reservist (identified only as “Agent Number 11”) also spoke about non-coercive interrogations, this time at Guantánamo.
As Michelle Shephard explained in the Toronto Star, the former interrogator told the court that, “over the course of 12 interviews, which began in the prison hospital when Khadr arrived [at Guantánamo] on Oct. 28, 2002, he agreed to talk while they shared M&Ms and fig newtons.” Claiming that she was chosen to interrogate Khadr in the hope that he would relate to her as a “mother figure,” she also stated that their rapport was so good that Khadr told her, “I’d rather be in the booth with you than bored in my cell.”
Whether this is true or not, “Agent Number 11” inadvertently revealed the general futility of cooperating with the interrogators in Guantánamo, when she explained that “He knew if he was cooperative it would expedite his repatriation back to Canada” — a claim that was clearly groundless. She also said that he confessed to throwing the grenade that killed Sgt. Speer “like it was done in the movies,” adding that he said “he checked his watch just before throwing the grenade to note the time.” Military defense lawyer Lt. Col. Jon Jackson challenged this as “odd,” according to Shephard, “especially since … Khadr was bleeding from his head and blinded in one eye by shrapnel by that time” — or, in another possible scenario, was unconscious and face-down beneath a pile of rubble.
Did Omar Khadr throw the grenade?
The question of whether or not Khadr even threw the grenade that killed Sgt. Speer is crucial to his case, of course, and on day three of the hearings (on Saturday), these claims and counter-claims were addressed. Back in March 2008, it was revealed that there were two versions of a report describing the firefight, both written by the commander of the Special Forces unit responsible for capturing Khadr, who is identified only as “Lt. Col. W.”
In the first version, “Lt.-Col. W” stated that the person who had thrown the grenade had been killed, This, of course, would rule out Khadr as the suspect, but in the revised version, “Lt. Col. W” changed a single line to note that the person who threw the grenade was “engaged,” thereby implicating Khadr, who was the only non-U.S. survivor of the firefight. On Saturday, “Lt. Col. W.” testified by video link from the U.S. Army War College in Pennsylvania, claiming that he had changed his report for “history’s sake,” but only because he had initially believed that Khadr had died. He said that he changed it, several years after the event, after being visited by military investigators.
This sounds plausible, but, as Michelle Shephard noted, his revised report “appears to conflict with a March 2004 statement written by a commando identified only as OC-1, which states that after the grenade was thrown he shot two fighters — one fatally,” demonstrating that two men were alive at the time the grenade was thrown (Khadr and another insurgent), and that, as a result, either of them could have thrown the grenade.
How this will all pan out is unknown at present, as the defense team has not yet had the opportunity to present its evidence, including the alarming claim, mentioned above and made last October when Khadr’s defense team released previously classified photos, that Khadr could not have thrown the grenade because, at the time, he was buried face-down under a pile of rubble.
Will a plea deal save Omar Khadr (and Obama) from the perils of a trial?
Pre-trial hearings are continuing this week at Guantánamo, and, to be honest, anything could happen. According to some of the first reports last week, prosecutors offered Khadr a plea bargain before the hearings even began — proposing that he would serve five years in a U.S. prison in exchange for pleading guilty to the war crimes charges against him — but the defense team turned down the offer. However, on Saturday the Washington Post claimed that the Obama administration was actively seeking a plea agreement. A senior official, speaking of the proposed trial in July, which would be the first trial under Obama to go ahead, told the Post, “This is not what you would choose to open with. Khadr has become a cause, and this is not a case that will demonstrate the strength and validity of military commissions.”
This seems rather disingenuous, as the administration clearly knew what it was doing when Khadr’s name was put forward last November, but maybe Obama has finally found his conscience, and is getting cold feet. After all, as Lt. Col. David Frakt declared authoritatively last week:
The Administration’s decision to press forward with the first war crimes trial of a child soldier in modern history is unfathomable. That the Administration would then try to ensure a conviction by attempting to rewrite the law to create a new war crime is reprehensible.
If an administration that promised “hope and change” is not definitely to become one tarred as an advocate of the “unfathomable and reprehensible,” Obama needs to move fast. Changing the plea bargain to one that frees Khadr after a much shorter period of time than five years would be a good start; and scrapping the commissions immediately afterwards would be a sensible way to follow up.
