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<h1><font size=4><b>Prosecuting a Tortured Child: Obama’s Guantánamo
Legacy</b></font></h1><font size=3>3.5.10<br>
<a href="http://www.andyworthington.co.uk/2010/05/03/prosecuting-a-tortured-child-obamas-guantanamo-legacy/" eudora="autourl">
http://www.andyworthington.co.uk/2010/05/03/prosecuting-a-tortured-child-obamas-guantanamo-legacy/<br>
<br>
</a>Since coming to power 15 months ago,
<a href="http://www.andyworthington.co.uk/2009/01/23/return-to-the-law-obama-orders-guantanamo-closure-torture-ban-and-review-of-us-enemy-combatant-case/">
promising to close Guantánamo</a> within a year, and
<a href="http://www.andyworthington.co.uk/2009/01/22/chaos-and-lies-why-obama-was-right-to-halt-the-guantanamo-trials/">
suspending</a> 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.<br><br>
The rot set in almost immediately, when the new administration
<a href="http://www.andyworthington.co.uk/2009/05/07/obamas-first-100-days-mixed-messages-on-torture/">
invoked the “state secrets doctrine”</a> 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 href="http://www.andyworthington.co.uk/2009/05/21/my-message-to-obama-great-speech-but-no-military-commissions-and-no-preventive-detention/">
a major national security speech</a> 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.<br><br>
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
<a href="http://www.andyworthington.co.uk/2009/11/18/the-logic-of-the-911-trials-the-madness-of-the-military-commissions/">
face federal court trials</a> 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.<br><br>
This year, Obama disappointed critics in the US, and those scrutinizing
his activities around the world, by
<a href="http://www.andyworthington.co.uk/2010/01/19/obamas-countdown-to-failure-on-guantanamo/">
failing to close Guantánamo</a> 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.<br><br>
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
<a href="http://www.andyworthington.co.uk/2007/06/13/the-reviled-military-commissions-collapse-and-the-pressure-to-close-guantanamo-increases/">
since June 2007</a>, when his first pre-trial hearing took place in the
Commissions’ first reincarnation, after
<a href="http://www.hamdanvrumsfeld.com/">the Supreme Court ruled</a> in
June 2006 that the original version, the brainchild of
<a href="http://www.andyworthington.co.uk/2007/06/26/dick-cheney-more-horrors-from-the-vice-president-for-torture/">
Dick Cheney</a> and his legal counsel David Addington, was
illegal.<br><br>
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.<br><br>
<b>The shame and disgrace of prosecuting a child<br><br>
</b>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
<a href="http://www.andyworthington.co.uk/2008/11/22/the-pentagon-cant-count-22-juveniles-held-at-guantanamo/">
at least 22 juveniles</a> 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.”<br><br>
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
<a href="http://www.unhchr.ch/html/menu2/6/protocolchild.htm">Optional
Protocol to the UN Convention on the Rights of the Child, on the
involvement of children in armed conflict</a>, 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.”<br><br>
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, entitled,
“<a href="http://www.andyworthington.co.uk/2008/10/20/omar-khadr-the-guantanamo-files/">
Omar Khadr: The Guantánamo Files</a>,” 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.<br><br>
<b>The problem of invented war crimes charges<br><br>
</b>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.”<br><br>
Lt. Col. David Frakt, who knows more about the laws of war than Congress
or officials in either the Bush or Obama administrations, has
<a href="http://www.andyworthington.co.uk/2009/08/08/david-frakt-military-commissions-a-catastrophic-failure/">
long pointed out</a> 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
<a href="http://www.andyworthington.co.uk/2010/05/03/david-frakts-damning-verdict-on-the-new-military-commissions-manual/">
he explained last week</a>, 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:<br><br>
</font>
<dl>
<dd>This status-based definition conflated two different concepts
unprivileged belligerents and war criminals. Under
<a href="http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e63bb/6fef854a3517b75ac125641e004a9e68">
Article 4 of the Geneva Prisoner of War Convention</a> 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.<br><br>
</dl>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
<a href="http://www.andyworthington.co.uk/2008/08/06/a-critical-overview-of-salim-hamdans-guantanamo-trial-and-the-dubious-verdict/">
Salim Hamdan</a> and
<a href="http://www.andyworthington.co.uk/2008/10/27/an-empty-trial-at-guantanamo/">
Ali Hamza al-Bahlul</a>), as well as the judge in the case of
<a href="http://www.andyworthington.co.uk/2008/10/10/new-evidence-of-systemic-bias-in-guantanamo-trials/">
Mohamed Jawad</a>
(<a href="http://www.andyworthington.co.uk/2009/09/02/reflections-on-mohamed-jawads-release-from-guantanamo/">
released</a> 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.”<br><br>
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.”<br><br>
The first flawed week of Omar Khadr’s pre-trial hearings<br><br>
</b>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.<br><br>
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
(<a href="http://www.defense.gov/news/d2010manual.pdf">PDF</a>), 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.<br><br>
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,
<a href="http://www.miamiherald.com/2010/04/29/1604257/showdown-at-guantanamo-khadr-wont.html">
telling his escort</a>, 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,
<a href="http://www.reuters.com/article/idUSTRE63R2DF20100430">
explained</a>. On Saturday, he refused again, telling Capt. Bruzzese,
“I’m not going, nothing is starting at 0730.”<br><br>
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 in
<a href="http://www.andyworthington.co.uk/2007/11/14/the-trials-of-omar-khadr-guantanamos-child-soldier/">
a major review of Khadr’s case</a> in November 2007:<br><br>
<dl>
<dd>According to his own account, reported by
<a href="http://www.amnesty.org/en/library/info/AMR51/184/2005">Amnesty
International</a>, 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</i>, 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.”<br><br>
</dl>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
<a href="http://www.andyworthington.co.uk/2009/07/01/when-torture-kills-ten-murders-in-us-prisons-in-afghanistan/">
at least two prisoners died</a> 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
<a href="http://www.andyworthington.co.uk/2008/12/23/will-the-bush-administration-be-held-accountable-for-war-crimes/">
reverse-engineering torture techniques</a> 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:<br><br>
<dl>
<dd>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.”<br><br>
</dl>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,
<a href="http://www.thestar.com/news/world/article/801538--two-pictures-of-omar-khadr-emerge-in-court">
testified on Wednesday</a> 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.<br><br>
As Michelle Shephard explained in the
<a href="http://www.thestar.com/specialsections/article/802861--omar-khadr-considered-for-release-months-after-capture-hearing-told">
Toronto Star</a></i>, 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.”<br><br>
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.<br><br>
Did Omar Khadr throw the grenade?<br><br>
</b>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,
<a href="http://www.andyworthington.co.uk/2008/03/21/torture-allegations-dog-guantanamo-trials/">
it was revealed</a> 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.”<br><br>
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.”
<a href="http://www.thestar.com/specialsections/article/803378--at-omar-khadr-hearing-u-s-officer-explains-changing-battle-report">
testified by video link</a> 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.<br><br>
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.<br><br>
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
<a href="http://www.thestar.com/specialsections/omarkhadr/article/717885">
previously classified photos</a>, that Khadr could not have thrown the
grenade because, at the time, he was buried face-down under a pile of
rubble.<br><br>
Will a plea deal save Omar Khadr (and Obama) from the perils of a
trial?<br><br>
</b>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
<a href="http://www.thestar.com/news/article/801422--plea-deal-offered-in-omar-khadr-case-toronto-star-learns">
offered Khadr a plea bargain</a> 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
<a href="http://www.washingtonpost.com/wp-dyn/content/article/2010/04/30/AR2010043001120.html">
Washington Post</a></i> 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</i>, “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.”<br><br>
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:<br><br>
<dl>
<dd>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.<br><br>
</dl>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.<br><br>
<br><br>
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