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Is Omar Khadr a pawn in a cynical political game by the Harper Government? November 19, 2013

Posted by rogerhollander in Canada, Iraq and Afghanistan, Torture, War on Terror.
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Roger’s note: I have written and posted before about Omar Khadr, and it is important that he should not be forgotten.  I refer you again to the documentary: “You Don’t Like the Truth: Four Days Inside Guantanamo,” which depicts the torturous interrogation this child was put through by Canadian spooks, and the torture he suffered at the hands of the Americans at the same time as he was wounded to the near point of death.  This photo shows the condition he was in when the CIA interrogated him.

omar_battlefield

 

| November 19, 2013, http://www.rabble.ca 

 

edney

 

Is the continued imprisonment of Omar Khadr actually a question of principle for the Harper Government, or has it become such an embarrassment that our Conservative leaders in Ottawa have concluded he must be kept under wraps as long as possible for reasons of political expediency?

The hatred and hysteria with which the supporters of this government attack the former child soldier, who is now 27 and resides in a federal penitentiary here in Edmonton after pleading guilty to a variety of war crimes charges before a “military commission” run by the U.S. armed forces, suggests the latter.

Either way, though, the explanation hardly shows our federal government in a good light. And perhaps not the rest of us Canadians either, given the sorry tale of what happened to our fellow citizen when he was still a child, abandoned  by his father in a war zone, pressed into service as a child soldier and put on trial after being grievously injured in a battle with American forces.

The question Canadians who believe in common decency and the rule of law need to ask themselves now, though, is what can we do about it?

Various legal challenges are in the works, as regular readers of the news columns surely know. Khadr’s Canadian lawyer, Dennis Edney, has launched an appeal of an Alberta court decision that denied his request to be transferred from the maximum-security Edmonton Institution to a provincial jail.

Khadr’s American attorney, Samuel Morison of the United States Department of Defense, has challenged his conviction for war crimes by a military commission inside the extra-territorial U.S. prison at Guantanamo Bay in occupied Cuban territory.

But the wheels of justice grind slowly, when they grind at all. And the Canadian government, which never lifted a finger to help this young man and which resisted his return to Canada until the embarrassed Americans put him on a plane and sent him home, has now adopted a strategy of doing anything it can to prevent his release.

“The government is going to run the clock out on Omar Khadr,” said Edney, who spoke a week ago today at a packed forum on the case at Edmonton’s King’s University College, a private university founded by the Christian Reformed Church that has taken up Khadr’s case with increasing vigour.

The Harper government, Edney explained, has the legal power to do the right thing, “but it can’t, because it’s put its reputation at stake” by supporting the prosecution of a 15-year-old boy in a judicial proceeding, that while not quite a kangaroo court, hardly lives up to the standards of Canadian justice.

Even that explanation may be a generous one, it is said here, because the passions aroused by Canada’s enthusiastic participation in the war in Afghanistan obviously made Khadr’s fate an effective wedge issue for the relentlessly cynical Harper Tories. Is it beyond the pale they would care more about their own electoral fate than justice for a young man caught in the meat-grinder of a war he didn’t choose?

Surely it is not that hard to imagine that the Harper Government risking even a constitutional crisis to prevent Khadr’s release before the next election if actually ordered to do so by a court.

Adherents of the Harper government’s line are bound to angrily assert that Khadr pleaded guilty to the charges. Indeed, Steven Blaney, the minister of Public Safety, said just that, telling the CBC: “Omar Khadr pleaded guilty to very serious crimes… The government of Canada will vigorously defend against any attempted court action to lessen his punishment for these crimes.”

But as Morison pointed out to the crowd at King’s last week, “If he had been tried by the standards that prevailed here in Canada, he would never have been convicted.”

What’s more, the American lawyer explained, given the Kafkaesque inversion of justice in the Guantanamo commissions, “the only way to win at Gitmo is to lose … the only way to get off the island was to plead guilty.” For a prisoner to insist he is innocent is to sentence himself to life in prison: “That drains the trial process of any real meaning.”

Indeed, last Friday, Canadian lawyers representing Khadr filed civil arguments claiming the Canadian government conspired with U.S. authorities to abuse the prisoner to ensure he pleaded guilty.

Morison, perhaps with the hyperbole of a good trial lawyer, insists the principal crime to which Khadr pleaded guilty — killing a U.S. soldier with a hand grenade — could never have happened the way prosecutors claimed. Indeed, he said, not only did Khadr not perpetrate a war crime, “he was himself the victim of a war crime!” You can click here to see a video of Morison’s illuminating remarks.

This case was the first time in modern history, Morison added, that a 15-year-old was prosecuted for war crimes.

But what can Canadians do now?

“There’s no great big fix in the world,” Edney told the approximately 300 people who attended the forum at King’s. “There’s steps, little steps.”

“You can’t speak in the Supreme Court, but you can speak to your friends,” he explained. “You can go to your local politician…” But nothing will happen, he advised, “without you, without you getting angry, without you saying you will work night and day … only then will you get a result.”

And you must have faith in the rule of law, Edney counselled, as has King’s – “the rule of law is applying here today.”

King’s, he said, “this little Christian university,” has “advocated far more strongly than any other university in Canada, for a Muslim boy.”

So what are the rest of us going to do?

David Climenhaga, author of the Alberta Diary blog, is a journalist, author, journalism teacher, poet and trade union communicator who has worked in senior writing and editing positions with the Toronto Globe and Mail and the Calgary Herald. His 1995 book, A Poke in the Public Eye, explores the relationships among Canadian journalists, public relations people and politicians. He left journalism after the strike at the Calgary Herald in 1999 and 2000 to work for the trade union movement. Alberta Diary focuses on Alberta politics and social issues.

 

This post also appears on David Climenhaga’s blog, Alberta Diary.

Omar Khadr to appeal terrorism convictions April 28, 2013

Posted by rogerhollander in Canada, Criminal Justice, Torture, War, War on Terror.
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Roger’s note: I have taken a great deal of interest in this case of gross injustice at the hands of the US Kangaroo Kourt, better known as the Military Commissions.  The “Commissions” in Military Commissions should stand for nothing less than the commission of criminal injustice.  The most moving documentary film I have ever seen is “You Don’t Like the Truth: 4 Days Inside Guantanamo,” which is reviewed in this segment: https://www.youtube.com/watch?v=PMJuErMEK7g.  You can find more on Youtube.

Former Guantanamo Bay detainee Omar Khadr plans to appeal his terrorism convictions and hopes to walk free if his efforts are successful.

Janet Hamlin / AP

Khadr had pleaded guilty before a military commission in October 2010 to five war crimes — among them killing a U.S. special forces soldier — committed as a 15 year old in Afghanistan. He was given a further eight years behind bars.

Former Guantanamo Bay detainee Omar Khadr plans to appeal his terrorism convictions and hopes to walk free if his efforts are successful.

Khadr’s lawyer Dennis Edney said Saturday that the Toronto-born 26-year-old was “looking forward” to the appeal, which is expected to be filed “very soon.”

Khadr has been held in maximum-security Millhaven Institution in Kingston, Ont. since his transfer to Canada last September from Guantanamo Bay, where he had been held for a decade.

He had pleaded guilty before a widely discredited American military commission in October 2010 to five war crimes — among them the killing of a U.S. special forces soldier — committed in Afghanistan when he was 15 years old. He was given a further eight years behind bars.

Edney said the appeal being launched aims to have all those convictions dismissed.

“We are very confident that the military tribunal convictions will be overturned because in our view there are serious questions about the validity of all these convictions,” Edney told The Canadian Press.

Although Khadr opted for a plea agreement in 2010, Edney argued his guilty plea may not have too much of a bearing on his appeal.

“If you plead guilty to a charge which is a nullity in war, then the plea is also a nullity,” he said.

The case is still likely to be complicated as Khadr did sign away his appeal rights in 2010. but Edney contends that obstacle, too, could be surmounted.

“If the underlying acts weren’t crimes, at least not war crimes, then Mr. Khadr’s waiver may also be unreliable,” he said.

Edney said his team would be filing an appeal first with a U.S. military commission, and then later in the U.S. civil courts if necessary, to overturn all of Khadr’s convictions.

The terms of Khadr’s transfer to Canada precluded attacking his sentence in Canadian courts.

Working in Khadr’s favour, Edney said, are two similar military commission verdicts which American appeal courts have already thrown out after ruling the crimes did not exist under international law of war at the time.

Last October an American appeal court dismissed Osama bin Laden’s driver Salim Hamdan’s 2008 conviction for providing material support for terrorism.

In essence, the court ruled no such crime existed under international law of war at the time of the alleged offence and retroactive prosecutions were not authorized.

In January, the same court threw out the conviction of Ali Hamza al-Bahlul, a Yemeni who was charged with providing material support to terrorism and conspiracy for making propaganda videos for Al Qaeda. In that case, however, a U.S. appeals court said earlier this month that it will re-examine the decision.

Nonetheless, Edney said the rulings on those two cases could bode well for Khadr’s appeal.

“As the law now stands, based upon two earlier rulings … where the civilian appeals court overturned the same charges Omar faced, it concluded the charges were not and are not recognized international law of war charges,” he said.

Edney said he was surprised previous lawyers retained by Khadr hadn’t filed an appeal so far.

“One would expect that should have been done as a matter of course. It wasn’t,” he said. “I took it upon myself to persuade the military defence department to agree that Omar Khadr’s case was worthy of an appeal and they agreed.”

Omar Khadr will remain incarcerated for at least two years, report says December 21, 2012

Posted by rogerhollander in Canada, Criminal Justice, Human Rights, Iraq and Afghanistan, Torture, War.
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Roger’s note: when will the torture of Omar Khadr end?  He pleaded guilty only to avoid a lifetime in Guantánamo.  He was nearly dead when captured, was tortured mentally and physically, including a torturous series of “interviews” with Canadian CSIS, which are documented in the film, “You Don’t Like the Truth: 4 Days Inside Guantánamo.”  His treatment both by the American and Canadian government can be characterized as vengeful and barbaric.

Published on Thursday December 20, 2012, www.thestar.com

                    Omar Khadr

Janet Hamlin/POOL/REUTERS FILE PHOTO

       A Correctional Service of Canada report states that because of his Guantanamo conviction, Omar Khadr, now at Millhaven, was assessed as an inmate convicted of first-degree murder and terrorism and therefore is automatically designated “maximum security.”

Michelle Shephard National Security Reporter

Former Guantanamo detainee Omar Khadr will remain incarcerated at Millhaven Institution’s maximum security facility with little chance of rehabilitation or parole for at least two years.

A Correctional Service of Canada report obtained by the Toronto Star states that due to his Guantanamo conviction, Khadr was assessed as an inmate convicted of first-degree murder and terrorism and therefore is automatically designated “maximum security.”

Although Khadr would be eligible for day parole in March, it is extremely rare for anyone with this designation to be approved. His status will be reviewed in December 2014.

University of Toronto criminologist Anthony Doob said he was dismayed that Corrections Canada chose to apply the standardized “Custody Rating Scale” for Khadr, which automatically designates him maximum security, despite the unique aspects of his case and reports of his good behaviour during his 10-year incarceration at Guantanamo.

READ MORE: Omar Khadr’s mother both ‘happy and sad’ after son returns to Canada

“They should be looking at his past, the circumstances of his offence, how old he was,” Doob said. “It’s perpetuating this view that he’s the same as the guy who is a terrorist or member of organized crime who killed somebody on the streets of Toronto yesterday.

“The thing about approaching this the way they did ensures the outcome. I’ve never met Omar Khadr, I know nothing about him and I can go to the web and see that he’s going to be classified as maximum security.

“Isn’t that a little bizarre? Why didn’t it take three minutes instead of three months if that is all they were going to do?”

Khadr has been held at the Millhaven facility’s hospital for assessment since being transferred to Canada from Guantanamo on Sept. 29. The 26-year-old is now expected to be moved to a range in the general population with other maximum security inmates.

The Khadr saga stretches back to July 2002, when at the age of 15, he was shot and captured following a battle in Afghanistan.

In October 2010, he pleaded guilty to five Guantanamo offences including “murder in violation of the laws of war” for the death of U.S. Delta Force soldier Christopher Speer who was fatally wounded in the battle.

His plea deal gave him an eight-year sentence and chance to return to Canada.

Child and civil rights advocates, including Liberal Senator and retired Lt. Gen. Romeo Dallaire, have pushed to have him recognized and treated as a child soldier, and the UN condemned both the U.S. and Canada for the prosecution of a juvenile for war crimes.

Khadr’s lawyer, John Norris, said he was disappointed the designation will limit Corrections Canada’s ability to provide rehabilitation options, aside from Khadr continuing his education and religious counselling from a prison-approved imam.

“Their hands really are tied by the fact that he’s stuck in max, because they can’t help him get ready to return to the community,” Norris said, adding that he is “weighing the options” in terms of any legal challenges.

“What he really needs is the ability to re-integrate into the community. Re-integration is one of the cardinal principles of dealing with child soldiers. It’s also a key principle in dealing with young people in general.”

Véronique Rioux, a spokeswoman for Corrections Canada said she was unable to comment on individual cases, citing privacy concerns.

It is believed Khadr will receive similar rights as other inmates, including the ability to see visitors. Norris said Khadr has already met with his mother Maha Elsamnah and Arlette Zinck, an English professor from King’s University College in Edmonton, who began providing him lesson plans and visiting him while he was incarcerated in Guantanamo.

Although the eight-page report does outline many of the aspects of the case, Khadr’s security risk rating of 139 determines his status. The scale automatically gives him 69 points for a murder conviction, 20 points for a terrorism offence, 30 points for his age at the time of conviction (he was 25) and 20 points for his sentence length (eight years.)

Any rating over 134 is considered maximum security.

“This says absolutely nothing about whether Omar is a danger to the public and it’s critical people understand it’s completely divorced from that,” Norris said. “In fact, the scoring requires Corrections to ignore the evidence that his is not a danger.”

The Millhaven’s Assessment Unit report recommends that Khadr be kept in a “highly structured environment in which individual and group interaction is subject to direct and constant supervision

“During the intake assessment interview Khadr emphasized that his current sentiments/beliefs reflect pro-social changes in attitudes promoting peaceful resolution to conflicts,” the report states.

But the report also notes that given Khadr’s limited access to other inmates since his arrival, it is difficult to assess how he will interact with other prisoners.

“Not to negate the length of time he has spent in custody (in Guantanamo) with no evidence of attitudinal or behaviour problems; Khadr is a new arrival to the Canadian federal correctional system . . . Correctional Services Canada has not had the opportunity to assess the risk he may pose to the security of the institution, other offenders or the risk to his own safety.”

Concerns about Khadr’s connections to Al Qaeda as a teenager and during his incarceration at Guantanamo are noted in the report, which recommends monitoring his association with other offenders, “particularly those who look up to him.” A security officer noted a Millhaven inmate convicted of terrorism communicating with Khadr through his cell on Oct. 1, 2012, the report states, without giving any further details.

The report references positive assessments of Khadr by Katherine Porterfield, a clinical psychologist at New York’s Bellevue Hospital and forensic psychiatrist and retired U.S. Army Brig.-Gen. Stephen Xenakis. The pair spent several years and hundreds of hours with Khadr during his detention in Guantanamo and the report states according to their accounts, “it would appear that Khadr demonstrated the ability to develop positive interpersonal relationships.”

But the report also states, that “Correctional Services Canada is not in receipt of information from Guantanamo Bay pertaining to his behaviour while detained at the facility.”

There is no mention of the reports by psychiatrists Michael Welner or Alan Hopewell, which Public Safety Minister Vic Toews personally requested from U.S. defence secretary Leon Panetta, delaying Khadr’s expected transfer to Canada and infuriating Obama administration officials eager to transfer the Toronto-born detainee.

Welner told a Guantanamo courtroom during Khadr’s sentencing hearing that he was “highly dangerous” and considered a “rock star” at Gitmo.

Omar Khadr’s Torture by Canadians at Guantanamo October 31, 2010

Posted by rogerhollander in Canada, Criminal Justice, Human Rights, Torture.
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http://www.youdontlikethetruth.com/?lang=En&page=Trailer

“You don’t like the truth: 4 days inside Guantanamo.”  The most powerful and disturbing documentary I have ever seen over my 50 some odd years of political involvement.

I cannot tell you how painful it was to watch for over an hour as a Canadian CSIS officer systematically applied psychological torture to this 16 year old child.

If you are a Canadian, you will feel a profound shame (the Canadian Supreme Court found that the interrogation was a violation of the child’s rights, but didn’t order the government to do anything about it).  If you are a human being with an ounce of humanity …

The documentary, using the video of the four days of interrogation, shows beyond a shadow of a doubt that the child was innocent of the charge against him.  It shows him (who already had been brutally tortured by the Americans) virtually destroyed emotionally over the persistent hectoring of his interrogator and yet, in the end, having more courage and decency than his monster of an adversary (a veritable wolf in sheep’s clothing).

There is much more I could say, and maybe I will add another post once I calm down.  If you want to know the truth about this disgusting travesty of justice, try to find a way to see this documentary, or at least view the trailer whose link is at the top of this post.  The documentary’s home page is http://www.youdontlikethetruth.com/?lang=En&page=Home

Roger Hollander, October 31, 2010

The Torture of Omar Khadr, a Child in Bagram and Guantánamo May 13, 2010

Posted by rogerhollander in Canada, Criminal Justice, Human Rights, Iraq and Afghanistan, Torture, War, War on Terror.
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Omar Khadr wounded

(Roger’s note: this long and painful article describes in tortuous detail the abuse of a child caught in the web of insanity known as the war against terror.  It recounts only one of many stories which serve as an indication of the level of barbarism to which the American program has sunk under the leadership of allegedly civilized leaders such as George W. Bush and Barack Obama.  Those of us who have not become inured to the implementation of torture and other gross violations of human rights that are being perpetuated on a daily basis in our name have a moral obligation to continue to speak out and act against these crimes and the criminals – elected and otherwise – who perpetuate them.)

Published on Thursday, May 13, 2010 by CommonDreams.org

by Andy Worthington

Are we so inured to the implementation of torture by the Bush administration that we no longer recognize what torture is? Torture, according to the UN Convention Against Torture, to which the US is a signatory, is “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person.”

Under President Bush, however, John Yoo, an ideological puppet in the Justice Department’s Office of Legal Counsel, which is supposed to objectively interpret the law as it applies to the executive branch, purported to redefine torture, in two memos that have become known as the “torture memos,” as the infliction of physical pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or the infliction of mental pain which “result[s] in significant psychological harm of significant duration e.g. lasting for months or even years.”

I ask this question about torture – and our attitude to it – because of what took place last week, in pre-trial hearings at Guantánamo preceding the trial by Military Commission of the Canadian prisoner Omar Khadr, who was just 15 years old when he was seized after a firefight in Afghanistan in July 2002. A number of witnesses revealed details of Khadr’s mistreatment, in the US prison at Bagram airbase in Afghanistan, which hinted at his inclusion in an abusive program that, before the 9/11 attacks, before Yoo’s memos and before a general coarsening of attitudes towards abuse and the mistreatment of prisoners, would have led to calls for that mistreatment to be thoroughly investigated, and, very possibly, for it to be regarded as torture or as cruel, inhumane and degrading treatment.

In Khadr’s case, these questions should not even need raising, for a number of other compelling reasons. The first concerns his age. Under the terms of the Optional Protocol to the UN Convention on the Rights of the Child, on the involvement of children in armed conflict, to which the US is also a signatory, juveniles – defined as those under the age of 18 when the crime they are accused of committing took place – “require special protection.” 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.”

Instead, however, the US government is attempting, for the third time, to prosecute Khadr for war crimes in a special trial system for foreign terror suspects – the Military Commissions – which were first ruled illegal by the Supreme Court in 2006, were then revived by Congress but abandoned by President Obama on his first day in office (after they had succeeded in delivering just three dubious results), and were then revived again by President Obama, with the support of Congress, last summer.

Compounding the dark absurdity of Khadr’s proposed trial is an uncomfortable truth that has been particularly noted by Lt. Col. David Frakt, a former military defense attorney for the Commissions, who has regularly 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.” Lt. Col. Frakt has recently expressed even graver concerns about how the new Military Commissions Act includes a passage which claims that “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.”

As I also explained in an article last week, “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.'”

Nevertheless, as the Obama administration has decided to press ahead with Khadr’s trial, pre-trial hearings were held over the last two weeks in an attempt to address concerns raised by Khadr’s defense team. These largely skirted the issues discussed in the paragraphs above, but focused unerringly on Khadr’s alleged mistreatment, through a “Motion to Suppress Statements Procured Using Torture, Coercion and Cruel, Inhumane and Degrading Treatment” (PDF), in which his lawyers argued that any self-incriminating statements that Khadr may have made should be ruled out because of the manner in which they were extracted.

The torture of Omar Khadr

Over the years, and in an affidavit submitted in February 2008 (PDF), Khadr has described his mistreatment in detail, explaining how he was unconscious for a week after his capture, when he was severely wounded, and how, in Bagram, where he was taken after just two weeks in a hospital, his interrogations began immediately, at the hands of an interrogator who manipulated his injuries (the exact details were redacted from his affidavit). Crucially, he also explained how, as soon as he regained consciousness, “the first soldier told me that I had killed an American with a grenade,” and how, during his first interrogation at Bagram, “I figured out right away that I would simply tell them whatever I thought they wanted to hear in order to keep them from causing me [redacted].”

There is much more in the affidavit – casual cruelty, whereby guards made Khadr do hard manual labor when his wounds were not healed, and, significantly, threats “to have me raped, or sent to other countries like Egypt, Syria, Jordan or Israel to be raped.” He also noted, “I would always hear people screaming, both day and night,” and explained that other prisoners were scared of his interrogator. “Most people would not talk about what had been done to them,” he declared. “This made me afraid.”

Khadr also described what happened to him in Guantánamo, where, as I explained last week, 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 US personnel to resist interrogation if captured, in an attempt to increase the meager flow of ‘actionable intelligence’ from the prison.”

At various points in 2003, while the use of these techniques was still widespread, Khadr stated that he was short-shackled in painful positions and left for up to ten hours in a freezing cold cell, threatened with rape and with being transferred to another country where he could be raped, and, on one particular occasion, when he had been left short-shackled in a painful position until he urinated on himself:

Military police poured pine oil on the floor and on me, and then, with me lying on my stomach and my hands and feet cuffed together behind me, the military police dragged me back and forth through the mixture of urine and pine oil on the floor. Later, I was put back in my cell, without being allowed a shower or a change of clothes. I was not given a change of clothes for two days. They did this to me again a few weeks later.

Crucially, when describing the interrogations that punctuated these experiences at Guantánamo, Khadr explained, “I did not want to expose myself to any more harm, so I always just told interrogators what I thought they wanted to hear. Having been asked the same questions so many times, I knew what answers made interrogators happy and would always tailor my answers based on what I thought would keep me from being harmed.”

Until two weeks ago, these claims – though well-known to those who have followed Khadr’s case – had, for the most part, not been aired in a courtroom. In response to the defense motion, however, the government attempted to refute Khadr’s claims, calling a female interrogator who stated that Khadr had voluntarily admitted that he threw the grenade that killed US Sgt. Christopher Speer, during sessions after his arrival at Guantánamo in October 2002 that were perfectly amicable, and an FBI agent, Robert Fuller, who stated that his interrogations of Khadr at Bagram earlier in October 2002 were also “conversational” and “non-confrontational,” and that Khadr had freely admitted to throwing the grenade that killed Sgt. Speer.

Whilst it was possible – if not probable – that both interrogators were telling the truth about interrogating Khadr non-coercively, the problem remains that Khadr has stated that, from the time of his very first interrogation, he regarded telling his interrogators what they wanted to hear as the best way of avoiding mistreatment, and so may not have been telling them the truth. As a result, last week’s witnesses were more significant because they shed light on the early days after he recovered consciousness in US custody, and, in particular, on his first interrogation and his subsequent interaction with that interrogator. Along the way, further witnesses cast shadows on the government’s otherwise clean picture of interrogations conducted in a non-coercive environment.

It would have remarkable had this not happened, as countless witnesses – including soldiers as well as current and former Guantánamo prisoners – have described the brutality at Bagram at the time Khadr was held there between August and October 2002, which led, just over a month after Khadr’s departure for Guantánamo, to the murder of two prisoners – and, very possibly, to other murders at the time he was held.

The medic’s testimony — and “Palestinian hanging”

The first to reveal a glimpse of the regime at Bagram was, ironically, a medic called as a witness by the prosecution. “Mr. M,” as he was identified, who testified by video link from Boston, countered Khadr’s claims that, while he was at Bagram, “five people in civilian clothes would come and change my bandages,” and that they “treated me very roughly and videotaped me while they did it,” stating that he alone changed his bandages twice a day, and that no rough treatment was involved.

He did, however, note that, on one occasion, he found Khadr hooded and chained to a cage by his wrists with his arms “just above eye level,” and that when he lifted the hood, Khadr was visibly upset. The medic added, as Carol Rosenberg described it in the Miami Herald, that “he didn’t object to Khadr’s treatment, because chaining was an approved form of punishment” at Bagram, “adding that he didn’t know the reason for the punishment nor how long Khadr had been chained.”

This rather nonchalant description of “chaining” may not have shocked the medic, especially as the chains were apparently “slack enough to allow Khadr’s feet to touch the floor,” but the only reason for this was because of the severity of his wounds, as Khadr explained in his affidavit, in which he also stated that he was chained up “several times.” Otherwise, like numerous other prisoners, including Dilawar (the subject of “Taxi to the Dark Side“) and Mullah Habibullah, the two prisoners who were killed at Bagram in December 2002, he would have been fully suspended by his wrists, in a torture technique more commonly known as the “strappado” technique or “Palestinian hanging.”

Nevertheless, as Barry Coburn, Khadr’s lead lawyer, explained, the medic’s testimony provided “critically important validation” of statements in his client’s affidavit, and another of his lawyers, Kobie Flowers, added, “Had this been an American soldier in North Korea, people would be outraged. Here we have a 15-year-old individual who was nearly killed with bullets in his back who was left up there to hang as punishment.”

“Interrogator No. 2″ and Khadr’s first interrogation — on a stretcher

However, while this was significant in establishing some context for the general and well-chronicled brutality at Bagram, which will no doubt emerge in unprecedented detail should Khadr’s trial proceed, it was not until Tuesday last week that previously unknown information emerged regarding Khadr’s first interrogation on arrival at Bagram, which, according to a master sergeant in the US Army, identified as “Interrogator No. 2,” who appeared in person, took place on the same day that Khadr was moved from the hospital to what Carol Rosenberg described as “the crude, putrid Bagram Air Base detention center.”

The interrogator, who was an observer at Khadr’s first interrogation on August 12, 2002, revealed that “the questioning took place while Khadr was on a stretcher – he couldn’t remember if Khadr was shackled to it – and that his notes included this detail: ‘Clarification was difficult due to the sedation and fatigue of the detainee.'” He also explained that no coercion was used on him, but just two approved techniques from the Army Field Manual: “fear down,” which is designed to play down a prisoner’s anxieties, and “fear of incarceration,” which encourages prisoners to tell the truth by pointing out that otherwise they may face extended imprisonment.

It is hard to tell if this controlled line of questioning strictly reflects reality, but even so, as one of Khadr’s military lawyers, Army Lt. Col. Jon Jackson noted, the testimony showed that Khadr “was first questioned within just 12 hours of his transfer from the US field hospital to the detention center.” Kobie Flowers was more forceful in his criticism. “You got a guy who is 15, seriously wounded, who has had multiple surgeries, and that’s the first time the United States government takes a statement from him to use in his prosecution,” he said, adding, “Now whether it is torture, cruel, inhumane, degrading treatment or simply involuntary … I don’t think any federal judge in the United States would allow that type of conduct.”

The testimony of Damien Corsetti

On Wednesday, a peripheral figure in Khadr’s story – but one who has achieved a certain notoriety – testified by video link from Arlington, Virginia. Damien Corsetti, who was known as “Monster” at Bagram, based on a tattoo on his chest, and also as “The King of Torture,” described himself as “a disabled veteran suffering post traumatic stress disorder as a result of his interrogation work in both Afghanistan and Iraq,” and explained how, on seeing Khadr on July 29, 2002, just two days after his capture, he was struck by how he was an injured “child” detained in “one of the worst places on Earth.” He added, “More than anything, he looked beat up. He was a 15 year-old kid with three holes in his body, a bunch of shrapnel in his face. That was what I remember. How horrible this 15 year-old child looked.”

Corsetti, who was cleared in 2005 of abuse charges relating to his conduct in Bagram and, later, at Abu Ghraib in Iraq, explained, back in 2007, how he was still haunted by “the cries, the smells, the sounds” of those whose torture he witnessed, when he was called upon to attend sessions in the basement of Bagram in which “high-value detainees” were tortured. “[T]hey are with me all the time,” he said.

Last Wednesday, Corsetti told the court that he was “not one of Khadr’s interrogators” but had befriended him in Bagram. He explained that the guards and interrogators, who identified all the prisoners as “BOB” (which stood for “Bad Odor Boys”), named Khadr “Buckshot BOB,” due to his injuries. He added that “there was the sound of screaming and yelling ‘continuously,” and also confirmed that threats were made to send prisoners to countries where they would be tortured, or raped. He specifically mentioned Israel and Egypt, but added, as Michelle Shephard explained in the Toronto Star, that he “did not know if Khadr had been told this.” As Khadr stated in his affidavit that he was indeed threatened with being sent to Israel or Egypt (or Syria or Jordan), Corsetti’s testimony therefore endorsed another of Khadr’s claims.

“Interrogator No. 1″ and the rape threat

If Corsetti’s testimony, for the most part, did little more than add some more color to the story of Khadr’s early months in US custody, Thursday’s witness, Joshua Claus, provided potent testimony regarding the kind of threats to which Khadr was subjected, and also provided a disturbing link to the kind of violence in Bagram that led to the murders of Dilawar and Mullah Habibullah in December 2002. Claus, formerly a sergeant in the 519th Military Intelligence Battalion (of which Corsetti was also a member), was identified in court as “Interrogator No. 1,” and was Khadr’s main interrogator at Bagram, the “skinny blond” man with glasses (just 21 years old at the time) who also interrogated him while he was on a stretcher, on the day that he was moved to Bagram from the field hospital, and who, according to Khadr, mistreated him in an unknown manner (because the details are redacted) during his first interrogation.

Testifying by video link from Arizona, Claus recalled, in particular, using the technique described as “fear up harsh” in interrogations of Khadr, during which he would kick the furniture and scream at the young prisoner. He also admitted that he invented a rape story to scare him, explaining, as Spencer Ackerman described it in the Washington Independent:

“I told him a fictitious story we had invented when we were there,” Interrogator #1 said. It was something “three or four” interrogators at Bagram came up with after learning that Afghans were “terrified of getting raped and general homosexuality, things of that nature.” The story went like this:

Interrogator #1 would tell the detainee, “I know you’re lying about something.” And so, for an instruction about the consequences of lying, Khadr learned that lying “not so seriously” wouldn’t land him in a place like “Cuba” – meaning, presumably, Guantánamo Bay – but in an American prison instead. And this one time, a “poor little 20-year-old kid” sent from Afghanistan ended up in an American prison for lying to an American. “A bunch of big black guys and big Nazis noticed the little Afghan didn’t speak their language, and prayed five times a day – he’s Muslim,” Interrogator #1 said. Although the fictitious inmates were criminals, “they’re still patriotic,” and the guards “can’t be everywhere at once.”

“So this one unfortunate time, he’s in the shower by himself, and these four big black guys show up – and it’s terrible something would happen – but they caught him in the shower and raped him. And it’s terrible that these things happen, the kid got hurt and ended up dying,” Interrogator #1 said. “It’s all a fictitious story.”

Perhaps so, but as Ackerman also noted, every other interrogator who spoke to Khadr did so “after he heard a ‘fictitious story’ about a young Afghan who lied to US interrogators and as a result was raped and killed in jail.”

In many ways, the events of the last two weeks were inconclusive, and it remains to be seen how the judge, Army Col. Patrick Parrish, will interpret them. Certainly, there was much worse abuse at Bagram and at Guantánamo than that experienced by Omar Khadr, but he was just a child during his time at Bagram and the early years of his abuse at Guantánamo, and it may well be that, as his lawyers assert, any self-incriminating statements that he made (especially regarding the throwing of a grenade that may have taken place when he was face down and unconscious under a pile of rubble) were produced because rape threats and physical violence based primarily on exploitation of his wounds was enough to terrify him into acquiescence with whatever his captors wanted.

The Pentagon shoots itself in the foot: four reporters banned

Ironically, the biggest story in Guantánamo last week was not the reports of Khadr’s treatment but the banning of four reporters (including Michelle Shephard and Carol Rosenberg), after they revealed Claus’ name in newspaper reports. The Pentagon alleged that this violated an order stipulating that Claus’ real name was protected information, but this was patently ridiculous, because his name was already in the public domain, and, in 2008, he had even conducted an interview with Michelle Shephard.

Instead of protecting Claus, the Pentagon’s heavy-handed response served only to make other reporters wonder if the Pentagon was trying to prevent anyone from working out that, unlike Damien Corsetti, Claus served five months in prison for pleading guilty in a court martial to the abuse of an unidentified prisoner at Bagram, who was made “to roll back and forth on the floor and kiss the boots of his interrogator,” as Michelle Shephard described it, and for the assault of Dilawar. In Shephard’s words, “He admitted to forcing water down the throat of Dilawar and twisting a hood over the Afghan’s head.” Moreover, as another soldier explained in a military report into Dilawar’s death, “I had the impression that Josh was actually holding the detainee upright by pulling on the hood. I was furious at this point because I had seen Josh tighten the hood of another detainee the week before. This behavior seemed completely gratuitous and unrelated to intelligence collection.”

In his interview in 2008, Claus insisted that he wanted to set the record straight. “They’re trying to imply I’m beating or torturing everyone I ever talked to [at Bagram],” he said, adding that, with Khadr, “I spent a lot of time trying to understand who he was and what I could say to him or do for him, whether it be to bring him extra food or get a letter out to his family … I needed to talk to him and get him to trust me.”

Responding last Thursday to a question about his conviction posed by Barry Coburn, Claus insisted that he “lost control at a very slight moment. You’re talking about two-and-a-half minutes of my life.” This may not technically be correct, as there was clearly more than one incident, but it is obvious that his actions were part of an abusive program sanctioned at the highest level of the Bush administration, and moreover, as Damien Corsetti explained, “the pressure to get information from prisoner at Bagram was intense.” He told Col. Parrish, “This was less than a year after 9/11 so we’re all still pretty heated up about that. This was life and death stuff we were supposedly dealing with. There was just a ton of pressure on us to get information to save lives and generate reports.”

By banning the four reporters, the Pentagon has only succeeded in drawing attention to something it presumably wanted to hide: that Omar Khadr’s mistreatment in Bagram took place at time when the violence in the prison, sanctioned by the Bush administration, was so intense that prisoners died, and that his first interrogator was implicated in the murder of one of these men. It doesn’t prove that Khadr wasn’t coerced into making false confessions, but it doesn’t augur well for claims that everything about his treatment was “conversational” and “non-confrontational.”

The Obama administration has until July, when Khadr’s trial is scheduled to start, to extricate itself from a public relations disaster of its own making, by formulating an acceptable plea deal for Khadr and arranging his return to Canada. Too much about this story – from the trumped-up war crimes charges, to the doubts about Khadr’s guilt, to his age and the abuse to which, on occasion, he was undoubtedly subjected – makes proceeding with the trial an unpalatable and essentially pointless exercise. It is, I believe, time, after nearly eight years, for his punishment to come to an end, and for his long-delayed rehabilitation to begin.

Andy Worthington is a journalist and historian, based in London. He is the author of The Guantánamo Files, the first book to tell the stories of all the detainees in America’s illegal prison. For more information, visit his blog here.

 

http://www.youdontlikethetruth.com/?lang=En&page=Trailer

“You don’t like the truth: 4 days inside Guantanamo.”  The most powerful and disturbing documentary I have ever seen over my 50 some odd years of political involvement.

I cannot tell you how painful it was to watch for over an hour as a Canadian CSIS officer systematically applied psychological torture to this 16 year old child.

If you are a Canadian, you will feel a profound shame (the Canadian Supreme Court found that the interrogation was a violation of the child’s rights, but didn’t order the government to do anything about it).  If you are a human being with an ounce of humanity …

The documentary, using the video of the four days of interrogation, shows beyond a shadow of a doubt that the child was innocent of the charge against him.  It shows him (who already had been brutally tortured by the Americans) virtually destroyed emotionally over the persistent hectoring of his interrogator and yet, in the end, having more courage and decency than his monster of an adversary (a veritable wolf in sheep’s clothing).

There is much more I could say, and maybe I will add another post once I calm down.  If you want to know the truth about this disgusting travesty of justice, try to find a way to see this documentary, or at least view the trailer whose link is at the top of this post.  The documentary’s home page is http://www.youdontlikethetruth.com/?lang=En&page=Home

Roger Hollander, October 31, 2010

Obama Administration Demands Amnesia From Reporters Covering Gitmo May 7, 2010

Posted by rogerhollander in Criminal Justice, Human Rights, Torture.
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Dan Froomkin, www.huffingtonpost.com, May 7, 2010

Jack Newfield, the legendary investigative reporter, once wrote that if government officials had their way, journalists would be “stenographers with amnesia.”

The “amnesia” part, at least, was generally considered a bit of an exaggeration.

But now, the Pentagon has banned four reporters from covering the military commissions at Guantanamo Bay, Cuba, because they refused to forget something that had already been reported to the world.

The four reporters were covering military commission hearings at which defense attorneys for Canadian detainee Omar Khadr argued that confessions he made as a gravely wounded 15-year-old shouldn’t be admissible in his upcoming trial because they were made under duress.

And indeed, witnesses earlier this week described how Khadr’s interrogation began when he was still sedated and lying wounded on a stretcher. A medic testified that he once found Khadr chained by his arms to the door of his cage-like cell, hooded and in tears

But the defense’s star witness, on Thursday, was the first U.S. Army interrogator to question Khadr. The interrogator admitted that in an attempt to get Khadr to talk, he told the boy a “fictitious” tale of an Afghan youth who was gang-raped in an American prison and died.

And it wasn’t just what he said that was significant, it was also who he was. The interrogator was Army Sgt. Joshua Claus, who pleaded guilty in September 2005 to mistreatment and assault of detainees at the Bagram prison in Afghanistan.

Claus was a central figures in the interrogation of an Afghan taxi driver named Dilawar whose death in U.S. custody in 2002 was ruled a homicide by military investigators and was the subject of a New York Times investigation and the Oscar-winning documentary, “Taxi to the Dark Side”.

The military judge presiding over the hearing insisted that Claus’s name was protected information, and that he should only be referred to as Interrogator # 1.

But since it was already public record that Claus was Khadr’s first interrogator — and he’d even given an interview last year about his desire to testify — the four reporters used his name in their Wednesday reports, previewing his testimony.

That was enough to get them thrown off the island.

“That reporters are being punished for disclosing information that has been publicly available for years is nothing short of absurd,” Jameel Jaffer, deputy legal director for the American Civil Liberties Union, said in a statement. “Any gag order that covers this kind of information is not just overbroad but nonsensical. Plainly, no legitimate government interest is served by suppressing information that is already well known. “

The decision was announced by Col. Dave Lapan, the Pentagon’s director of press operations. He emailed the four news organizations that they could send other reporters to cover military commissions in the future, but that another violation would get their organizations banned entirely.

The decision Is being appealed.

“The company lawyers are looking at the ground rules, the timing of this, and Carol’s reporting, in preparation for appealing this decision,” said John Walcott, Washington bureau chief for McClatchy Newspapers. Carol Rosenberg, one of the four banned reporters, works for McClatchy’s Miami Herald.

The other three reporters are Michelle Shephard of the Toronto Star, Paul Koring of Toronto’s Globe and Mail and Steven Edwards of CanWest Newspapers.

“I’m not sure I understand the logic of trying to redact a name that has been in public for some time, of a man who has granted at least one major interview, and been convicted and sentenced,” Walcott told HuffPost.

“I hope that this decision is about what the Pentagon said it’s about, and that is an attempt to protect a witness — and not about some of the embarrassing testimony that emerged in the tribunal this week.

“I also hope it is not intended to have a chilling effect of tribunals going forward,” he said. “It won’t on us… In fact, it may have the opposite effect.”

John Stackhouse, editor in chief of the Globe and Mail, was also skeptical. “Banning the information now — when it is already known around the world — serves no apparent purpose other than to raise more questions about the credibility of the Guantanamo courts,” he said in a statement.

Khadr was shot twice in the back during a Special Forces raid on a suspected al Qaida compound in Afghanistan. He confessed under interrogation to having thrown a hand grenade that killed U.S. Army Sgt. 1st Class Christopher Speer, 28, and has been charged with murder as a war crime and conspiring with al Qaida. Khadr is now 23.

Claus gave an interview to Michelle Shepard of the Toronto Star (one of the four banished reporters) in March 2008. Shepard wrote:

A former U.S. soldier who spent weeks interrogating Omar Khadr says he wants to testify before a Guantanamo Bay court and rejects any accusations that he harshly treated the Canadian detainee.
In the first interview he has given since leaving the army, Joshua Claus told the Toronto Star that he feels he has been unfairly portrayed concerning his work as an interrogator at the U.S. base in Bagram, Afghanistan.

“They’re trying to imply I’m beating or torturing everybody I ever talked to,” Claus said by telephone yesterday. “I really don’t care what people think of me. I know what I did and I know what I didn’t do.”

 

Shepard also reported in that story:

Khadr’s lawyers fought to get access to Claus at a Guantanamo hearing earlier this month after the prosecution had dropped him from a previous witness list.
Navy Lt.-Cmdr. Bill Kuebler accused the prosecution of trying to hide Claus’ identity because he had been involved in the interrogation of an Afghan detainee who died in U.S. custody.

 

Nancy A. Youssef reported Thurdsay for McClatchy Newspapers:

On Wednesday, the judge in the case, Col. Patrick Parrish, reminded reporters that even though Claus’ name was public, a protective order intended to keep him anonymous applied to journalists as well.
Rosenberg’s report that day included the following sentences: “Canadian reports have identified that interrogator as Army Sgt. Joshua Claus, who pleaded guilty in September 2005 to mistreatment and assault of detainees at Bagram. He was sentenced to five months in jail.”

Rosenberg said her story was filed before the judge’s warning. She said Claus’ name had already been revealed.

“All I did was report what was in the public domain,” Rosenberg said….

Pentagon officials said it didn’t matter that Claus’ name was already widely known.
“If his name was out there, it was not related to this hearing. Identifying him with Interrogator No. 1 was the problem,” Lapan said.

“The judge shouldn’t have had to remind them. The stories that appeared before violated the rules.”

 

The Reporters Committee for Freedom of the Press on Friday announced it is seeking a meeting with Department of Defense officials to discuss the banishment. The committee also notes that the president judge had previously insisted that a video of an interrogation of Khadr be played in a closed session with no spectators, despite the video’s availability to the public on YouTube.

President Obama severely criticized the Bush administration’s military commissions during his presidential campaign, and immediately suspended them upon taking office. But five months later, he reopened the door to their use, and now they’re up and running again.

The White House is widely expected to overrule Attorney General Eric Holder’s decision to try the highest-profile terror suspects, including alleged 9/11 mastermind Khalid Sheikh Muhammad, in federal court, and send them to military commissions instead. Holder, for his part, is gamely trying to defend military commissions to skeptics.

But nothing says “kangaroo court” quite like banning the free press.

*************************

Dan Froomkin is senior Washington correspondent for the Huffington Post. You can send him an e-mail, bookmark his page; subscribe to RSS feed, follow him on Twitter, friend him on Facebook, and/or become a fan and get e-mail alerts when he writes.

“He Was A Child” May 7, 2010

Posted by rogerhollander in Criminal Justice, Human Rights, Iraq and Afghanistan, Torture, War.
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05.06.10 – 7:32 PM

by Abby Zimet

Spencer Ackerman is still at Guantanamo, where he offers more heart-breaking, stomach-churning testimony from the Omar Khadr hearing, this time from Army interrogator Damien Corsetti – aka The Monster – who grew emotional remembering the abuse of the then-15-year-old at Bagram. Canadian media likewise describe a crying Khadr chained to his cell. Horrifying. And, lest we forget, done in our name.

“He was a 15-year old child who had been blown up, shot and grenaded. He was in one of the worst places on the earth. How could you not have compassion for that? He was in the wrong place for a 15-year old child to be.” – Damien ‘The Monster’ Corsetti.

 

THESE ARE SOME COMMENTS TO THIS ARTICLE POSTED ON WWW.COMMONDREAMS.ORG

“Serious Citizen” comments

The US is a signatory to the “UN Convention on the Rights of the Child”, including the “Optional Protocol on the Involvement of Children in Armed Conflict”. These were approved by the US Senate and signed by the President as treaties. In these treaties, a child is defined as anyone under age 18. Child soldiers are declared to be victims of war. These treaties explicitly acknowledge that children may be recruited by non-state combatant forces, such as terrorist organizations. By these treaties, the US is obligated to treat Omar Khadr humanely as a victim of war, not as a war criminal. It should arouse Americans, Canadians, and other signatories to these treaties that the USA is blatantly violating its treaty obligations. There is the further issue that US military personnel swear an oath to uphold and defend the US Constitution, which declares in Article VI, Clause 2, that treaties are “the supreme law of the land.” Thus, US military officers, including interrogators and prosecutors, who treat Omar Khadr as a war criminal are violating a US treaty, which violates the Constitution, which violates their sworn oaths. They themselves should be charged and prosecuted under the Uniform Code of Military Justice, article 933, Conduct Unbecoming an Officer.

“minitrue” comments:

And, of course, one must remember that the majority of those held at Gitmo and other secret gulags around the world were turned in by bounty hunters for $5000, no questions asked. War Lords fattened their treasuries by scooping people off the streets and turning them over to us as bonifide terrorists. People settled old scores by capturing the “other” and turning him in. Five grand, please.

Those in durance vile knew nothing, so they were considered “stubborn.” Tortured, waterboarded, they still gave out no information. Do it again! Many tortured until they would confess to killing their own mother to get the pain to stop.

The Spanish Inquisition redux. I imagine the inquisitors stayed detached. Just doing a job. Roast a man’s feet until he confessed. Just good careful technique.

I imagine our inquisitors are just as professional, just as detached. But remember, if he doesn’t tell you what he knows, he’s hiding something. Ignorance is no excuse, keep torturing.

This is not the country I grew up in, it is not the country I was, at one time, willing to die for. As an historian, I have studied Nazi Germany quite closely. The parallels are approaching identical. We are, perhaps, a bit more sophisticated in our application and, Oh, wouldn’t Himmler have loved the toys we play with?

The administration guts its own argument for 9/11 trials November 19, 2009

Posted by rogerhollander in Barack Obama, Criminal Justice, War.
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Thursday, Nov 19, 2009 05:20 PST


By Glenn Greenwald

(AP Photo\/Alex Brandon)
Attorney General Eric Holder testifies Wednesday on Capitol Hill before the Senate Judiciary Committee hearing on Justice Department oversight.

(updated below – Update II)

 

“What I’m absolutely clear about is that I have complete confidence in the American people and our legal traditions and the prosecutors, the tough prosecutors from New York who specialize in terrorism” — Barack Obama, yesterday.

“Holder said five other Guantanamo detainees would be tried by military tribunals. The five include Abd al-Rahim al Nashiri, who is accused of masterminding the 2000 attack on the USS Cole warship in Yemen; and Canadian Omar Khadr, accused of killing a U.S. soldier in Afghanistan” — NPR, yesterday.

“‘Administration officials say they expect that as many as 40 of the 215 detainees at Guantanamo will be tried in federal court or military commissions . . . . and about 75 more have been deemed too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material’ . . . If true, that means that there are 75 so-called ‘Fifth Category’ detainees who might be subject to indefinite detention without trial” — The Atlantic‘s Marc Ambinder, yesterday, quoting The Washington Post.

* * * * *

Can anyone reconcile Obama’s homage to “our legal traditions” and his professed faith in jury trials in the New York federal courts with the reality of what his administration is doing:  i.e., denying trials to a large number of detainees, either by putting them before military commissions or simply indefinitely imprisoning them without any process at all?

During his appearance before the Senate Judiciary Committee yesterday, Eric Holder struggled all day to justify his decision to put Khalid Sheikh Mohammed on trial because he has no coherent principle to invoke.  He can’t possibly defend the sanctity of jury trials in our political system — the most potent argument justifying what he did — since he’s the same person who is simultaneously denying trials to Guantanamo detainees by sending them to military commissions and even explicitly promising that some of them will be held without charges of any kind.

Once you endorse the notion that the Government has the right to imprison people not captured on any battlefield without giving them trials — as the Obama administration is doing explicitly and implicitly — what convincing rationale can anyone offer to justify giving Mohammed and other 9/11 defendants a real trial in New York?  If you’re taking the position that military commissions and even indefinite detention are perfectly legitimate tools to imprison people — as Holder has done — then what is the answer to the Right’s objections that Mohammed himself belongs in a military commission?  If the administration believes Omar Khadr belongs in a military commission, and if they believe others can be held indefinitely without any charges, why isn’t that true of Khalid Sheikh Mohammed?  By denying jury trials to a large number of detainees, Obama officials have completely gutted their own case for why they did the right thing in giving Mohammed a trial in New York.

Even worse, Holder was reduced to admitting — even boasting — that this concocted multi-tiered justice system (trials for some, commissions for others, indefinite detention for the rest) enables the Government to pick and choose what level of due process someone gets based on the Government’s assessment as to where and how they’re most likely to get a conviction:

 

Courts and commissions are both essential tools in our fight against terrorism . . . On the same day I sent these five defendants to federal court, I referred five others to be tried in military commissions.  I am a prosecutor, and as a prosecutor, my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case with the best law. . . . At the end of the day, it was clear to me that the venue in which we are most likely to obtain justice for the American people is a federal court.

Does that remotely sound like a “justice system”?  If you’re accused of being a Terrorist, there’s not one set procedure used to determine your guilt; instead, the Government has a roving bazaar of various processes which it, in its sole discretion, picks for you based on ensuring that it will win.  Even worse, Holder repeatedly assured Senators that the administration would continue to imprison 9/11 defendants even in the very unlikely case that they were acquitted, citing what they previously suggested was their Orwellian authority of so-called “post-acquittal detention powers.”  Is there any better definition of a “show trial” than one in which the defendant has no chance of ever being released even if acquitted, because the Government will simply thereafter assert the power to hold him indefinitely without charges?

I understand that sending even a limited number of Terrorism suspects to federal court is politically difficult and controversial, as the last couple of days have demonstrated.  But by refusing to embrace and defend the core principle of justice at stake here — that a distinguishing feature of our political system is that we don’t imprison or kill people without charging them with a crime and proving their guilt in a real court, and that military commissions and indefinite detention are un-American (which Democrats argued under Bush) — the Obama administration has made it far more difficult for it to defend what it is doing, as well as for those who want to defend their decision to give trials to 9/11 defendants.

To see how that works, here is part of the exchange I had on MSNBC this week with George Pataki, while debating trials for 9/11 defendants:

 

MR. GREENWALD:  If you look at how the British treated the people who did the London subway bombings, the Spanish who treated the people who did the Madrid subway bombings — even India just put on trial the sole surviving terrorist who perpetrated the Mumbai massacre last year. Even Indonesia gave trials in their real cities to the people who blew up the nightclubs in Bali.

It’s only the American conservatives who are feeding the terrorist agenda by saying that we’re too scared to hold trials

MR. RATIGAN: Hold on, Glenn.

MR. PATAKI: Can I respond to that, Dylan? Only the — only the — only the American conservatives? Then tell me why Obama and Holder are using military tribunals against those who blow up Americans in acts of war overseas? They’re just picking these particular terrorists for trial in New York because they blew up civilians in New York. So what their logic is, “Kill thousands of civilians and you can get a civilian trial; kill one or two overseas, and we’re going to use military tribunals.”

That makes no sense.

For those wanting to defend the administration, what’s the answer to that?  The same thing happened when Rep. Nadler, as part of the same segment, tried to defend the Obama administration’s decision to try the 9/11 defendants in New York:

 

REP. NADLER:  I think that our tradition is that people accused of heinous crimes get trials, and they get trials in the area in which the crime is committed, which is right here. And I think it’s exactly the right thing to do. . . .That’s the way it ought to be, and we ought to show the world that we adhere to our traditions of justice and that these terrorists are not going to cause us to abandon the law.

MR. PATAKI: … We are going to use military tribunals. They’re saying they’re perfectly fine for some terrorists, but these terrorists they’re going to try here. What’s the justification for that, Jerry?

REP. NADLER: Well, I — well, I don’t think there is any justification.

MR. PATAKI: I don’t either.

The administration should have the courage of its convictions and defend jury trials as a linchpin of American justice, which would entail giving them to all Terrorism suspects not captured on any battlefield.  But by refusing to do so — by exhibiting the very cowardice of which Holder accused Republicans, i.e. denying Terrorism suspects a trial — the administration has no cogent argument to make in its own defense.  It’s just another case of the administration wanting to bask in the rhetorical glory of “the rule of law” while simultaneously trampling on it for petty political convenience.

 

UPDATE: The blogger Patterico — who, notably, is a prosectuor himself and thus inclined to be empathetic with prosecutorial goals — nonetheless compiles additional evidence to criticize Holder’s decision as follows:

 

You can see that what we have is an administration that is choosing where to try the detainees, not based on some principle or neutral protocol (as they claim), but based on where they can win. They’re rigging the game.

And if they lose, they won’t let him go anyway.

This is just further evidence that the KSM trial will be a show trial.

It’s worth reading the arguments from a prosecutor about why the administration’s conduct is such a breach of basic justice, even as they cynically wrap themselves in the rhetoric of the sanctity of jury trials and the rule of law.

 

UPDATE II:  For a crystal clear refutation of the claim that it’s normal to use military commissions for the crimes at issue here, see this comment from the always-enlightening Pow Wow, which is based on this equally enlightening interview by Marcy Wheeler of Lt. Col (and now-Law Professor) David Frakt, highlighting the numerous myths on which the case for military commissions is predicated.

Walkom: Omar Khadr heading for a kangaroo court November 14, 2009

Posted by rogerhollander in Canada, Civil Liberties, Criminal Justice, Iraq and Afghanistan, War.
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Let me get this straight. Khalid Sheikh Mohammed, the self-proclaimed mastermind of the 9/11 terror attacks, gets a fair trial with all the constitutional trimmings. But Omar Khadr, the Canadian child-soldier accused of killing an American sergeant during battle, will still be tried before a kangaroo court. Incidentally, the kangaroo court label isn’t mine. That’s how U.S. military lawyers describe the commission that is supposed to try the 23-year-old Toronto man. As Lt.-Col. Darrel Vandeveld, a former military commission prosecutor, wrote last month in a letter to the Washington Post, these bodies were designed “to secure convictions where prisoner mistreatment … would otherwise preclude them.” True, President Barack Obama has eliminated some of their worst elements. Under amendments passed into law last month, the military commission that tries Khadr will no longer be able to use information gained under torture. So that’s something. But as the American Civil Liberties Union has pointed out, the law still permits evidence obtained through both hearsay and coercion, as long as this coercion does not involve “cruel, inhuman or degrading treatment.” Neither hearsay nor coercion will be permissible in the civilian trial of alleged mass murderer Mohammed. Neither is permissible in a military court martial. But both may be allowed in the trial of Khadr, who at the age of 15 was sent off by his father to aid pro-Taliban forces resisting the American-led invasion of Afghanistan. Why the difference? U.S. Attorney General Eric Holder insists he merely wants to differentiate between those accused of attacking civilians and those charged with crimes against the military. He says that’s why Mohammed, accused of bringing down the twin towers, will be tried by a civilian court in Manhattan. And he says that’s why Khadr and four others charged with attacking U.S. soldiers will be tried by military commissions. This is the excuse. The real reason, I suspect, is that Washington knows that 9/11 ringleaders like Mohammed will be happy to publicly acknowledge their crimes, thus making their convictions a near certainty. But Khadr is not angling for martyrdom. And in a real court of law, the case against him would almost certainly fail. First there is his age. Fifteen at the time of his capture, he would be considered a child soldier under United Nations conventions (military commissions are specifically entitled to disregard this). Second, as my colleague Michelle Shephard writes in her book, Guantanamo’s Child, Khadr – seriously wounded in the Afghan firefight – was in such bad shape during questioning that even his U.S. interrogator feared he might die. In civilian court, statements obtained under such circumstances would be dismissed as coerced. Lurking behind all of this is the Canadian government’s obdurate refusal, in Parliament and the courts, to request his repatriation. It’s not clear that the U.S. would agree to such a request if one were made. Holder was deliberately opaque when asked yesterday, saying only “we will, as that case proceeds, see how it should be ultimately treated.” What we do know, however, is that after seven years in custody in Afghanistan and Guantanamo Bay, this particular Canadian citizen is heading for a low-level show trial. Shame on Obama for keeping the military commission farce alive. Shame on Canada for failing to object. Thomas Walkom’s column appears Wednesday and Saturday.

Terror and torture May 3, 2009

Posted by rogerhollander in Criminal Justice, Torture.
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abu-ghraib-matthew-langleyArtwork: Matthew Langley

Jim Miles

www.onlinejournal.com, May 1, 2009

The current media frenzy concerning Obama’s coming release of more information on U.S. torture between 2000 and 2005 is a political storm conveniently kept out of context.

There are two aspects to the context that are missing. First, this is not new information and well before current events erupted into the news, the case has been made all along that the Bush administration in general — Bush and Cheney, their political advisors and legal representatives — are all complicit in contravening the Geneva Conventions on torture and the treatment of prisoners of war. Secondly, terror and torture go hand in glove, the two are fully related and have been used by the U.S. and its proxies in many different contexts around the world — and are still doing so as Obama has put an end to torture at Guantanamo, but has not denied renditions to friendly torturers elsewhere.

The spin-doctors in the White House are no longer allowing the use of the term “war on terror” although the facts of the war have not changed. As the global war on whatever or the long war on whomever continues, the abuses associated with terror and torture will continue to spread.

The initiator of terror, of course, is the occupier of foreign territories creating the obvious wish on the part of the indigenous populations for the occupier to go home, currently involving most of the Middle East from Israel/Palestine through to Pakistan. This has happened throughout history, ancient and modern, from the Crusades and the Mongol hordes through the genocide of native populations in the Americas to the more modern terrors of a highly developed technological warfare that readily conquers “enemies” as defined by the political elites for a variety of reasons, from religious zealotry to political zealotry, frequently one and the same thing, seen most evidently in the Israeli occupation of Palestine and the U.S. occupation of Iraq and Afghanistan. . . . and Pakistan?

Put in simpler terms, the U.S. uses terror, the U.S. uses torture, its allies and compatriots use terror, use torture, and as the U.S. expands its war frontiers further into Pakistan, so will the edges of terror and torture expand.

Power and control

Torture is ultimately about power and control. It ranges from the pure brutality of physical torture often described in many of the wars for suppression of indigenous control in Central America to the more ‘refined’ torture currently used to break down a prisoner’s psychological persona without leaving the physical scars of the less sophisticated forms of torture. Torture is used to create terror, to create a population that is subservient and easily controlled by the very fear of the terror that it spreads. In turn, as terror and torture strips away the thin layers of civilization that control man’s baser instincts, terror and torture become devices used by the combatants on both sides.

As the most powerful country in the world, the U.S. role in abrogating human rights and crimes against humanity have a powerful effect elsewhere in the world. “The actions of the United States have also made it more difficult to critize the violations of international law by other countries, most notably Israel.” What occurred at Abu Ghraib, Guantanamo and Bagram airbase “bear more than a passing resemblance” with the “testimonies of Palestinians released from Israeli prisons.” [1]

As expressed shortly after Abu Ghraib, “the powerful often turn to torture in times of crisis not because it works but because it salves their fears and insecurities with the psychic balm of empowerment.” Even though torture does not do what it is purported to do, provide useful information, “a plea to torture one terrorist with a ticking bomb becomes the rationale for insecure leaders to win the right to torture someone, anyone, to assuage the uncertainties of rule and empower themselves for dominion.” [2]

Obama

I have no sympathy — and perhaps a seed of disdain — for Obama’s current problems on the political front with his inheritance of the Bush legacy of torture. If the world is to look forward with “hope” for “change” it needs to start at home. Simply releasing more information will provide neither hope nor change. If Obama wishes to be more than a man of wonderful sounding phrases, he will have to do what is correct by international law and arrange whatever is necessary under U.S. law to investigate and prosecute those involved with the torture — not just the low level people, those “following orders,” but the ones in the executive and legislative branches who formed the concept and provided the legal okay for it, contrary to international laws.

From readings of international law, Obama himself becomes guilty of torture as anyone who is complicit with aiding and abetting torture becomes guilty of the crime. If he refuses to act, then under international standards, Obama becomes guilty of the crime. Unfortunately the U.S. is one of the most contradictory countries when it comes to upholding laws, always telling others that they need to be transparent, open, democratic, but when it suits its own purposes it relies on ignoring, abrogating, or denying international law.

Guilty until proven innocent

Phillippe Sands’ work “Torture Team” examines one particular case related to Guantanamo and arrives at the clear conclusion that there is good case for prosecuting Bush, Cheney, Feith, Haynes, Gonzales, Yoo, Bybee and others from this case in itself. [3] Others included in this list are the medical workers, physicians and psychologists, who supported those actually applying the torture.

Within its own internal laws the U.S. has provided immunity from prosecution under the Military Commissions Act as it “Gives US officials immunity from prosecution for torturing detainees that were captured before the end of 2005 by US military and CIA.” [4]

Sands adds, “Legislation creating such an immunity would allow the crime to be covered up: it was almost an admission that a crime had occurred.” [5] That immunity, however arguable under U.S. law, does not extend outside the U.S.: “Under the principle of universal jurisdiction, any country may prosecute war crimes and crimes against humanity committed by anyone anywhere.” [6]

Alfred McCoy in “A Question of Torture — CIA Interrogation From the Cold War to the War on Terror” examines the history of torture up to the days of Abu Ghraib. He starts by stating “five intertwined aspects of its perverse psychology,” the fifth of which needs to be restated strongly today: “ . . . a nation that sanctions torture in defiance of its democratic principles pays a terrible price. For nearly two millennia, the practice has been identified with tyrants and empires. For the past two centuries, its repudiation has been synonymous with the humanist ideals of the Enlightenment and democracy. When any modern state tortures even a few victims, the stigma compromises its majesty and corrupts its integrity. Its officials must spin an ever more complex web of lies that, in the end, weakens the bonds of trust and the rule of law that are the sine qua non of a democracy.” [7]

For Obama to avoid complicity, for Obama to not be seen as opposing basic human rights, for Obama to avoid being labelled an ineffective orator, he needs to act on the information that is at hand and proceed with some form of investigation that has the power it needs to fully complete its legal tasks. For the U.S. to not be seen as it has for the past decade as a country that trammels other people’s international rights, the people of the U.S., and their elected representatives, need to support that investigation.

Canadian complicity

Canada is a minor player on the world political scene, increasingly seen as nothing more than a U.S. puppet, a minion succouring favour, trying to be one of the big boys on the global stage by supporting the Bush doctrine, even after Bush is gone. The Canadian government under Harper has supported the U.S. in Afghanistan and currently on into Pakistan without considering the context of who started the great mujahideen warriors in the first place (the U.S. CIA and Pakistani ISI) and why they are now fighting them in Central Asia (gas, oil, containment of China and Russia).

This complicity extends to torture. The case of Maher Arar is a relatively well-known extradition case that the government aided in. More recently, now that Guantanamo is being shut down, a Canadian citizen Omar Khadr is being denied entry back into Canada even though the Federal Court has said it should be allowed. One of the government’s arguments is that Khadr needs to be processed through the U.S. legal system (hmm . . . see above) even though under international law he could be tried here in Canada. While Harper wishes to appear tough on terrorism, he is only making himself complicit in the illegal practices utilized by the U.S. at Guantanamo, soon perhaps to be sanctioned by Obama as well.

The Canadian pretender to the throne, whom I do not always agree with, appears to understand the situation more clearly than Harper. Michael Ignatieff states, . . . even in emergency, even if some liberties must be suspended, a constitutional state must remain answerable to the higher law, a set of standards that protect foundational commitments to the dignity of every person. [8]

Terror’s answer

Terror is an act of aggression. It is part and parcel of the nature of warfare, and is a particular conjoint of unilateral preemptive warfare. The answer to terror is twofold. First the initiating countries, those that are doing the invading, manipulating, coercive activities, need to stop. The second is that terror used in response to terror cannot be stopped by war, but needs to be stopped by international police work and the upholding of international law internally and internationally by all parties.

For Canada, hopefully, Harper will see the last of his controlling reign in the next election and equally hopefully, Ignatieff can stand up his own beliefs in human rights extending beyond state legalities. Obama needs to act in his own backyard and ignore his own state legalities of the Military Commissions Act, or terror will continue regardless of any war label applied to U.S. actions. If it cannot be contained and brought to justice in the U.S., it will not happen internationally.

[1] Byers, Michael. War Law — Understanding International Law and Armed Conflict. Douglas & McIntyre, Vancouver, 2005. p. 154.

[2] McCoy, Alfred W. A Question of Torture: CIA Interrogation, From the Cold War to the War on Terror. Metropolitan Books, Henry Holt and Company, New York, 2006. p. 207.

[3] Sands, Phillippe. Torture Team — Deception, Cruelty and the Compromise of Law. Allen Lane (Penguin), 2008. See review at

[4] Anup Shah. “Military Commissions Act 2006—Unchecked Powers?Znet. October 02, 2006.

[5] Sands, ibid, p. 252.

[6] Byers, ibid, p. 143

[7] McCoy, ibid, p. 14.

[7] Ignatieff, Michael. The Lesser Evil — Political Ethics in an Age of Terror. Princeton University, 2004. p. 44.

Jim Miles is a Canadian educator and a regular contributor/columnist of opinion pieces and book reviews for The Palestine Chronicle. Miles’ work is also presented globally through other alternative websites and news publications.

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