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<a href="http://www.counterpunch.org/madar07302010.html" eudora="autourl">
http://www.counterpunch.org/madar07302010.html<br><br>
</a></font><font size=2 color="#990000">July 30 - August 1, 2010<br><br>
</font><h1><font size=4><b>Obama Bravely Takes on a Tortured Child
Soldier <br><br>
<br>
</font><font size=5 color="#990000">Torturing the Rule of Law at Obama's
Gitmo </b></font></h1><font size=4>By CHASE MADAR <br><br>
</font><font size=3>President Obama may lack the nerve to stare down Liz
Cheney or Bibi Netanyahu, but no one can deny that our commander in chief
has the guts to take on a child soldier. Come October, a military
commission in Guantánamo will try Omar Khadr, a Canadian national
captured outside Kabul in 2002, when he was just 15 years old. This will
be only the third Gitmo trial and the Obama administration’s first, and
there won’t be anything kinder and gentler about it.<br><br>
But give our government credit for breaking new ground: no nation has
tried a child soldier for war crimes since World War II, and the decision
to prosecute Khadr has drawn protests from UNICEF, headed by a former
U.S. national security adviser, as well as every major human-rights
group. The audacity doesn’t stop there: charges against Khadr include
“murder in violation of the rules of war,” a newly minted war crime novel
to the history of armed conflict. Battlefield deaths do not usually
result in murder trials for prisoners of war. But according to the
Department of Defense, Omar Khadr is no POW. He’s a non-uniformed,
“unprivileged belligerent.” In the euphemistic lingo of Gitmo, Khadr is
not even a prisoner, just a “detainee” who has been awaiting trial for
the past eight years.<br><br>
This kind of court action would have made great copy under Cheney and
Bush, noisome proof of their barbarity. Now everyone except the Right’s
usual panic-merchants is sick of Guantánamo and wishes it had closed, as
Obama promised, by the end of 2009. But that deadline has passed, and
Gitmo will surely be open next year too. Several reporters told me they
had to beg their editors to be sent down to cover the Khadr
story.<br><br>
Anyone expecting to witness eye-popping tableaux of Rumsfeldian cruelty
at Gitmo will be disappointed. It’s a military base like many others,
except instead of the nearby base town with obligatory pawn shop, strip
club, and Korean restaurant, you find an impermeable barrier sealing base
dwellers and visitors inside. Overall, it’s not a bad deployment:
soldiers can at least get a beer off duty, the snorkeling’s good, and the
roads are free of IEDs. Given the paucity of lurid local color,
scribblers who take the military flightwhen I flew down, a leased Delta
aircraft from Andrews Air Force Basehave been reduced to soliloquizing
about Guantánamo’s McDonald’s and the banality of evil amid the French
fries.<br><br>
Gitmo’s population continues to trickle away, to a point. Over 600
prisoners have been let go, most by the Bush administration, and of the
51 habeas petitions for release filed since the Boumediene decision in
2008, 37 have been granted. Were these really “the worst of the worst”?
Hardly. Still, the Obama administration has announced that it will
continue to hold some 45 detainees indefinitely without charges, one of
George W. Bush’s most radical policies, now zealously defended by a
smoother, smarter team of Democratic lawyers. This is exactly the kind of
lawlessness that Harold Koh, a human-rights icon, used to condemn from
his bully pulpit as dean of Yale Law. Now, as legal adviser to the
Department of State, he’s tasked with justifying indefinite
detention.<br><br>
Of the 176 remaining prisoners, Omar Khadr is the youngest. The
23-year-old is now in the midst of pretrial suppression hearings to
determine whether his confession of throwing a grenade that killed a
Special Forces medic is admissible as evidence. Few would deny that Khadr
was torturedone interrogator testified that he first laid eyes on the
youth hooded and chained to the walls of his cell, standing with his
shackled arms extended at head level. The only questions are how much
torture, exactly what kind, for how long, and whether it contaminates the
confession that Khadr later retracted. The first round of hearings
afforded a clear vantage into the legal black hole that Guantanamo very
much remains.<br><br>
The Obama administration has striven to paper over the abyss with a layer
of legality. There are new, improved rules for the military commissions,
signed by the secretary of defense the night before the hearings began.
Alas, they continue to fall short in core areas of juridical fairness.
There is no right to a speedy trial, no pretrial investigation to weed
out weak cases, and the defense’s requests for witnesses must go through
the prosecution. There is no credit for pretrial detentionnow nearly a
decade for many prisonersand no right of equal access to witnesses and
evidence. Freshly invented war crimes like “material support for
terrorism,” retroactively applied, violate the fundamental juridical
principle of nulla poena sine lege, no crime without a prospective
law.<br><br>
The greatest flaw is structural: the interference of the “Convening
Authority”the politically appointed head of the commissionsinto the
prosecutions has been documented again and again. Brig. Gen. Thomas
Hartmann, former legal adviser to the Convening Authority, was so blatant
in his attempts to secure convictions that he was banned from any
involvement in three separate trials for his “undue command influence.”
One former chief prosecutor at Guantánamo has said that Hartmann pushed
hard for the Khadr case because he thought it would be “sexy, the kind of
case the public’s going to get energized about.” Such micromanaging did
not endear Hartmann to his colleagues: former deputy prison camps
commander at Guantánamo Brig. Gen. Gregory Zanetti testified in 2008 that
Hartmann’s conduct was “abusive, bullying and unprofessional … pretty
much across the board.”<br><br>
One might expect that a legal system thus rigged would greatly appeal to
its prosecutors. Until now, one would be wrong. Half a dozen prosecutors
have quit the commissions in disgust, most with blistering criticisms on
their way out. Col. Morris Davis, former chief prosecutor of the
commissions until October 2007, said that constant political pressure
made full, fair, and open trials impossible: “What we are doing at
Guantánamo is neither military nor justice.”<br><br>
No less scathing is Lt. Col. Darrel Vandeveld, formerly lead prosecutor
in another commissions case against a child soldiera case that collapsed
midway through, with the government dropping all charges. “It would be
foolish to expect anything to come out of Guantánamo except decades of
failure. There will be no justice there, and Obama has proved to be an
almost unmitigated disaster,” he told me. After resigning from the
commissions as a matter of ethical principle, Vandeveld was punished with
a mandatory psychiatric evaluation and gratuitous hearings into his
fitness for remaining in the Army, even though he now has only two months
remaining in his term of service. Vandeveld, who has deployed to Iraq,
Afghanistan, and Bosnia, doubts very much that any more prosecutors will
resign after his highly visible reprimand.<br><br>
The new head of the prosecution team, Capt. John Murphy, told me proudly
that morale has never been higher on his team. Half of the four lawyers
looked young enough to have started law school long after 2001, and it is
hard to imagine young attorneys quitting the commissions without
established careers to fall back on.<br><br>
This may spell the end to a golden chapter in JAG history: throughout the
sordid drama of Guantanamo, the few glimmers of governmental integrity
have come from the JAG corps’ dissent. They even earned that ultimate
ethical accolade, the disapproval of John Yoo, who scolded the military
lawyers for adhering to the rule of law in defiance of the “unitary
executive authority” as embodied by torture buffs such as
himself.<br><br>
For its part, Team Obama’s main innovation has been to ban troublesome
journalists from the base, a move Bush never dared. On May 6, toward the
end of this round of hearings, the Joint Task Force abruptly barred four
of the most knowledgeable reporters from returning to Gitmo, accusing
them of violating an order that the identity of Omar Khadr’s primary
interrogator be kept secret. It doesn’t matter that “Interrogator Number
One,” convicted in a 2005 court martial for prisoner abuse at Bagram
prison, had already been interviewed by one of these journalists two
years ago and that his identity is available in the public
record.<br><br>
One of the banned journalists, Carol Rosenberg of McClatchy, was hounded
last summer by a risible and quickly dismissed sexual harassment
complaint made by Navy press officer Jeffrey Gordon. Rosenberg is the
acknowledged dean of Gitmo journalists, and getting rid of her would be a
singularly effective way for the Department of Defense to regain some
control over the sordid War Court narrative. Carol and two other
journalists have since been reinstated after reaffirming their allegiance
to the DoD’s “ground rules” at Gitmo, but the government’s warning shot
has registered.<br><br>
The uproar over the banned journalists did successfully deflect attention
from the prosecution’s cosy arrangements with a convicted detainee
abuser. Joshua Claus, or interrogator number one as he was called in the
hearings, was court-martialled for detainee abuse in 2005, and pled
guilty to maltreatment and assault on a taxi driver known only as
Dilawar, who was beaten to death by his Bagram interrogators. (Dilawar’s
crime had been to drive his taxi near the detention centre at the wrong
time.) Though Claus was not convicted of murder (no one was), he did
admit to throttling Dilawar and forcing water down his throat, and he was
the last interrogator seen with the prisoner before his death. Claus's
pledge to cooperate with the Khadr prosecution team helped earn him a
lenient sentence of only five months. Though called as a defense witness
in the recent Khadr hearings, Claus had spent far more time conferring
with the prosecution, and his well-prepared statements in the hearings
evinced much rehearsal and preparation. The prosecution’s chummy working
relationship with a court-martialed detainee abuser: this is not the
stuff for an Obama-era rehabilitation of Guantánamo’s public image.
<br><br>
And that image remains pretty terrible, even if Camp X-Ray, the open-air
cages that held orange jumpsuited detainees for four months in 2002, is
now growing weeds. Camp Delta, the detention complex, is rather prosaic.
Camp 5, for the least compliant prisoners, is a direct modular copy of a
block from the federal prison in Terre Haute, Indiana; Camps 4 and 6, for
the most compliant, of Lawanee Prison in Adrian, Michigan. Some detainees
are able to take courses in Arabic, English, and art. And so
what?<br><br>
A prison doesn’t have to be a Gothic nightmare to threaten the rule of
law. As the ACLU’s Ben Wizner puts it, “At this point, Guantánamo isn’t a
place anymore, it’s a principle.” A normal-looking prison that just
happens to hold people indefinitely without charge is a more insidious
threat to the integrity of the legal system than Camp X-Ray ever was. For
this reason, the ACLU does not see transporting the system to Thomson
Correctional Facility in Illinois as any kind of progress.<br><br>
Guantánamo, wherever it is located, runs the grave risk of normalization,
a process already well underway. Over a few nights during the Khadr
hearings, I read in my air-conditioned tent a law-review article by Prof.
Adrian Vermeule, an up-and-comer at Harvard Law School. He proposes that
legal black holesthe term was coined by a British law lord expressly for
Guantánamoare not only tolerable but necessary. Any attempt to fill them
in with law would be “hopelessly utopian,” “quixotic” even. “Our
Schmittian Administrative Law,” published last year in the Harvard Law
Review, draws heavily on the work of Nazi jurist Carl Schmitt, lifelong
opponent of the rule of law and liberal democracy. A chronic figure of
fascination among lefty academics for the cold eye he cast on
liberalism’s sacred myths, Schmitt’s ideas had always been held at a
prophylactic distance.<br><br>
No longer. Schmitt’s ready-made conceptual lexicon for political
emergencies, non-state combatants, and the need for strident executive
authority has proven irresistible to ambitious intellectuals in the
revolving door between the federal government and the finer law schools.
These tweedy immoralists urge us to relax our square-john commitment to
the rule of law and embrace strong executive action. Surely the
moralizing banalities of rule-of-law theorists are inadequate for the
unique challenges of the post-9/11 global order, they tell us.<br><br>
But after the events of the past decade, one would be on safer ground
drawing the opposite conclusion about the rule of law’s value. Our
government responded to 9/11 with extraordinary measures contemptuous of
ordinary legality, and every one of them has been catastrophic. From the
conquest of Iraq to waterboarding to warrantless wiretapping to the
military commissions of Guantánamo, these policies have been exorbitantly
costly in blood, money, and national prestige. Nor is setting up a
shambolic court to try a child soldier who was tortured in custody likely
to solve anything. Has any part of our frenzied rejection of legal
restraints improved national security one bit?<br><br>
Vermeule is correct to note that these black holes are likely to dilate
rather than contract as an imperialist foreign policy strains our legal
system, not only with the panic and fervor of war but with juridical
conundrums of extraterritoriality, non-state belligerents, and
geographically far-fetched definitions of self-defense. Already a new
Guantánamo for indefinite detainees has opened up in Bagram, which will
be much less accessible to media, nonprofit observers, and defense
counsel.<br><br>
Meanwhile, the rule of law will continue to suffer rough treatment at the
hands of our best and brightest. The concept has been debunked by many
postmodern academics as so much high-minded bourgeois blather and, more
dangerously, derided by the neoconservative Right as a folktale for
chuckleheads. But people in countries where violent lawlessness is rife
see the rule of law as something more than rhetorical window dressing.
From Colombia to Egypt to Italy to Guantánamo’s neighboring Cuba,
citizens who risk their lives against the depredations of organized crime
or authoritarian states routinely invoke the rule of law to give meaning
to their acts of resistance. Yes, the rule of law may be an idealbut it
is not only an ideal.<br><br>
Repairing legal black holes in America may start by shutting down
Guantánamo, wherever the detention complex ultimately winds up, and
radically rethinking our post-9/11 security policies. Indefinite
detention in some nondescript prison with a few art classes doesn’t make
for splashy headlines, but it marks the beginning of the end of the rule
of law.<br><br>
<b>Chase Madar</b> is a lawyer in New York, and can be reached at
<a href="mailto:chase.madar@gmail.com">chase.madar@gmail.com</a>.
<br><br>
This is an updated version of a piece that originally appeared in the
August 2010 edition of The American Conservative, a nonpareil source of
anti-imperialist news and opinion.<br><br>
<br><br>
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