[Ppnews] Prosecuting a Tortured Child: Obama’s Guantánamo Legacy

Political Prisoner News ppnews at freedomarchives.org
Tue May 4 13:24:44 EDT 2010

Prosecuting a Tortured Child: Obama’s Guantánamo Legacy


Since coming to power 15 months ago, 
to close Guantánamo within a year, and 
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 
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 
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 
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 US, 
and those scrutinizing his activities around the 
world, by 
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 US forces after a firefight 
in Afghanistan in July 2002, in which he 
allegedly threw a grenade that killed a US 
soldier, Sgt. Christopher Speer, and was taken 
first to the US prison at Bagram airbase, and 
then to Guantánamo, where he remains to this day. 
I have been covering his case 
June 2007, when his first pre-trial hearing took 
place in the Commissions’ first reincarnation, 
after <http://www.hamdanvrumsfeld.com/>the 
Supreme Court ruled in June 2006 that the 
original version, the brainchild of 
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 importantly, Khadr was a child 
when seized. This meant nothing to the Bush 
administration, but 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 
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 US 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 
Protocol to the UN Convention on the Rights of 
the Child, on the involvement of children in 
armed conflict, to which the US 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 an article in October 2008, 
Khadr: The Guantánamo Files,” 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 US 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 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.”

Lt. Col. David Frakt, who knows more about the 
laws of war than Congress or officials in either 
the Bush or Obama administrations, has 
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 
explained last week, as Khadr’s pre-trial 
hearings 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 
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 
Hamdan and 
Hamza al-Bahlul), as well as the judge in the 
case of 
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 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 new Military Commissions 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, 
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, 
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 US 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 
major review of Khadr’s case in November 2007:

According to his own account, reported by 
International, he “asked for pain medication for 
his wounds but was refused,” said that “during 
interrogations a bag was placed over his head and 
US 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 
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 
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. 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 US 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, 
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 
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 
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-US survivor of the firefight. On Saturday, 
“Lt. Col. W.” 
by video link from the US 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 
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 
Khadr a plea bargain before the hearings even 
began ­ proposing that he would serve five years 
in a US 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 
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.

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