[Ppnews] The Collapse of Omar Khadr's Guantánamo Trial

Political Prisoner News ppnews at freedomarchives.org
Mon Oct 27 12:10:48 EDT 2008


October 27, 2008

A Bitter Blow to the Government

The Collapse of Omar Khadr's Guantánamo Trial


Hardly a day goes by without some extraordinary 
news from the Military Commissions, the system of 
“terror trials” conceived in the Office of the 
Vice President in November 2001, and their days 
now seem to be as numbered as those of the Bush administration itself.

Following the 
resignation of former prosecutor Lt. Col. Darrel 
Vandeveld and the Pentagon’s 
decision to drop charges against five prisoners 
to prevent Vandeveld from testifying for the 
defense, the latest news to rock the Commissions 
is that the trial of 
Khadr -- a supposedly flagship case, along with 
that of the Yemeni Salim Hamdan, who received a 
surprisingly light 
after a trial this summer -- has been delayed 
until after the administration leaves office.

This is a bitter blow for the government, which 
has been pushing to prosecute Khadr for war 
crimes since 2005. Its first attempt failed, when 
the Supreme Court ruled that the whole enterprise 
was illegal, but after the Commissions were 
bandaged up by Congress and resumed their 
ghoulish existence in 2007, Khadr was once more put forward for trial.

This was in spite of the fact that his tenacious 
lawyers -- both military and civilian -- have 
questioned the very basis of the “war crimes” 
charges (which essentially transform combatants 
in war into “terrorists”), and have unearthed 
evidence (despite systemic obstruction) that 
Khadr may not have been responsible for the main 
crime for which he is charged (throwing a grenade 
that killed a US soldier). Focusing on the fact 
that Khadr was just 15 years old when he was 
seized in July 2002, they have also persistently 
pointed out the cruel folly, injustice and 
illegality of prosecuting a juvenile for war 
crimes, when the 
Convention on the rights of children in wartime, 
to which the US is a signatory, requires 
juveniles -- those under the age of 18 when the 
alleged crime took place -- to be rehabilitated rather than punished.

Last week, in pre-trial hearings, they reprised 
some of these arguments, and also sought access 
to seven interrogators, from various intelligence 
agencies, who, they insist, extracted coerced 
confessions from Khadr, who was severely wounded, 
while he was detained in the US prison at Bagram 
airbase in Afghanistan, before his transfer to 
Guantánamo. According to the lawyers, the 
information extracted from Khadr under duress was 
then used as the basis for interrogations at 
Guantánamo using more “sterile” and “benign” 
techniques, in much the same way that the 
administration has attempted to cover up its 
torture of 
Sheikh Mohammed and other “high-value detainees” 
in secret CIA custody by using 
teams” of FBI agents to extract new confessions in Guantánamo.

As was 
in Salim Hamdan’s trial, the prohibition on the 
use of coerced evidence (which was only 
introduced after the Commissions’ first 
incarnation was struck down by the Supreme Court, 
and is still allowable at the judge’s discretion) 
may technically satisfy the absolute prohibition 
on the use of evidence obtained through torture, 
but it has the knock-on effect of effectively 
erasing the government’s crimes from the record, 
while also allowing the authorities to obtain 
“clean” confessions from abused prisoners in a 
way that would shame all but the most vile totalitarian regimes.

Last week, Khadr’s judge, Army Col. Patrick 
Parrish, deferred a decision on the defense’s 
motion, but as Judy Rabinovitz, an observer for 
Civil Liberties Union, noted, he “did not appear 
impressed” by the prosecution’s argument that 
“there ‘needs to be a showing’ by the defense 
that coercive interrogation practices were used,” 
which otherwise were only “speculative.” As 
Rabinovitz noted, touching on the burning issues 
of the suppression of evidence vital to the 
defense, which was highlighted in Mohamed Jawad’s 
case by Lt. Col. Vandeveld, “This line of 
argument would not likely succeed in a regular 
military or civilian criminal court, in which the 
standard for discovery generally places the 
burden on the government to give the defense 
information that may assist the defense.” She 
added that Col. Parrish was also not impressed by 
the government’s assertion that even providing 
information about the seven interrogators, three 
weeks before the trial’s scheduled start date of 
November 10, would be an “undue burden” on the government.

However, Col. Parrish’s decision to postpone 
Khadr’s trial until January 26, five days into 
the new administration, was prompted in 
particular by defense complaints about the 
government’s attempts to obstruct an independent 
psychiatric examination of their client. Although 
this was first requested in May, it was 
challenged and resisted by the government in 
hearings throughout the summer, and as a result a 
psychiatric expert met Khadr for the first time 
on October 13. Requesting a postponement of the 
trial’s start date, the defense pointed out that 
the expert would need time to establish a rapport 
with Khadr, and also argued that the delay in 
providing Khadr with a psychiatric evaluation was 
largely the government's fault. As Judy 
Rabinovitz explained, even when an independent 
expert had been approved, the prosecution 
“delayed in providing her the necessary security 
clearance, and has also failed to provide the 
defense with Khadr's psychiatric records.”

Those who have been pressing for the young 
Canadian’s release will now be hoping that the 
Canadian government (which is also a signatory to 
the UN Convention) will finally discover its 
spine, and will take advantage of the change of 
administration to demand his return to Canada, or 
that the new US government will refuse to proceed 
with the case. Barack Obama, who voted against 
the Military Commissions Act that revived the 
trial system in 2006, has pledged to abolish the 
Military Commissions, which he regards (along 
with the use of torture, the shredding of the 
Geneva Conventions, and the sidelining of the US 
Constitution and the Uniform Code of Military 
Justice) as key examples of the Bush 
administration’s quest for “unchecked 
presidential power,” and even John McCain, who 
voted for the legislation, may wish to transfer 
the ailing system to the mainland, and has 
already explained that he would repatriate Khadr 
if asked to do so by the Canadian government.

Andy Worthington is a British historian, and the 
author of 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (published 
by Pluto Press). Visit his website at: 

He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk

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