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Le Monde diplomatique, English Edition, August 2010

At Guantanamo, the long wait for an unfair trial
The state versus a boy soldier
Omar Khadr, 15 years old when he was captured in Afghanistan in 2002 and imprisoned first in Bagram, then in Guantánamo, will at last face trial this month on charges never before brought in the history of war
by Chase Madar
Barack Obama may not be as audacious as his supporters had hoped, but his government will soon be the first since the second world war to prosecute a child solder. The trial of Omar Khadr, a Canadian national captured at the age of 15 outside Kabul in 2002, should begin this August at Guantánamo Bay. It will be the Obama administration’s first Gitmo trial, and pre-trial hearings have already begun to determine how much evidence is to be excluded because of the torture and abuse he suffered at Bagram prison in Afghanistan and Guantánamo.

Khadr is accused of throwing a hand grenade that killed a US serviceman in a firefight between US forces and jihadis. He confessed to tossing the grenade from his hospital bed at Bagram prison while heavily sedated, his chest wounds barely closed. Over months, an extravagantly detailed confession was developed by a succession of interrogators, from the since convicted abuser of prisoners who first interviewed Khadr to a female military interrogator with an MA in anthropology who soothed him to good effect. Omar Khadr repudiated his confession after being transported to Guantánamo, and has alleged in a lengthy affidavit that he suffered torture and abusive coercion at both prisons. Whether all his claims will be corroborated is unclear, but a witness for the prosecution has already testified that he saw Khadr at Bagram standing with his arms outstretched above eye level, wrists chained to the walls of a five-foot-square cell, hooded and weeping. If a US soldier were treated this way, few would hesitate to call it torture.

Prosecuting a child soldier thus treated in custody is not the savviest PR move for a government eager to show it has mended its ways. But here, as elsewhere in national security policy, Obama is playing mainly to a domestic audience. Many Americans are baffled by the idea of clemency for a youthful offender, let alone an accused terrorist. In a country where dozens of prisoners are serving life without parole for crimes committed when they were 12 or 13, and trying 15-year-old felons as adults is routine if not mandatory, the prosecution of Omar Khadr is not a hard sell.

The rest of the world, so eager to welcome a kinder, gentler US since Obama’s election, will be less indulgent. Unicef (now headed by a former US national security adviser) and every major human rights group have denounced the Khadr prosecution, as has the UN’s special representative for children and armed conflict, and former child soldiers. The Khadr trial is giving migraines to many State Department officials.

One might have expected the US to persuade its usually pliant northern neighbour to repatriate Khadr to avoid international embarrassment. If the detainee had any other surname, this would have happened years ago.

The Khadr effect
But the Khadrs are the most reviled family in Canada. In 1995 Omar’s father, Ahmed Said Khadr, was picked up in Pakistan for suspected ties to a bombing of the Egyptian embassy. Premier Jean Chrétien, passing through Pakistan on a state visit soon after, intervened successfully for his release. This came to be seen as a political error when evidence of Khadr’s ties to al-Qaida came to light, and since then “the Khadr effect” has become Canadian parlance for a reluctance to expend political capital on citizens with uncertain affiliations (
Since then, the Khadr family’s image has worsened. A 2004 CBC documentary on them featured interviews with Omar’s older brother Abdurahman, who declared that “we are an al-Qaida family” and boasted of his parents’ long intimacy with Osama bin Laden. Omar’s mother, Elsamnah Khadr, declared that her family, then living in Pakistan, was better off away from the decadence of Canada, where her sons might well become homosexual drug addicts. Weeks later, Ahmed Khadr was shot dead in a skirmish with Pakistani armed forces; the fire fight left his youngest son, Kareem, paralysed with a bullet in the spine. Elsamnah Khadr soon took her injured son back to Canada for free health services, and they were greeted at the airport by camera crews and resentment. Khadr’s oldest brother, Abdullah, is fighting extradition to the US, where a Boston court has indicted him for procuring arms for al-Qaida. The Canadian government has confiscated the family’s passports.

Even so, the Supreme Court of Canada has all but begged Stephen Harper’s Conservative government to repatriate Khadr, given that his treatment in detention by the US military violated both Canadian and international human rights standards. But with Canadian opinion polls equally divided on his repatriation, Harper has found he has nothing to gain by bringing Khadr home. Prolonging the punishment of Khadr (now 23) is an inexpensive way for the PM to delight his hard-right Evangelical electoral base. The Liberal Party has adopted Khadr’s repatriation as part of their platform, which is less solid than it seems, given that the party’s leader (at least for now) is Michael Ignatieff, whose commitment to human rights is supple enough to entail an ambiguous attitude towards torture and advocacy for the conquest of Iraq.

Although the prosecution of a tortured child soldier is sensational, the charges against Omar Khadr may be more significant. The most serious charge against him is “murder in violation of the laws of war”, a war crime new to the history of armed conflict. (The other charges, material support for terrorism and conspiracy, are also freshly invented.) Although murder is an element of many war crimes, never before has a soldier been charged with murder tout court for combat actions on the battlefield: killing is what combat is for. No American soldier has ever been tried for murder in Germany or North Vietnam.

But according to the Department of Defense (DoD), Khadr was never a proper soldier, only an unprivileged enemy belligerent and therefore not a proper POW deserving the protections of the Geneva Convention. The charge of “murder in violation of the rules of war” is the legal complement to the new US grand strategy of open-ended counterinsurgency, anywhere in the world. Khadr could more logically be tried for murder in an Afghan court under Afghan law, but this is not good enough for the DoD and the 15,000 lawyers it employs. The Obama administration may no longer use the Bush-Cheney catchphrase “global war on terror”, but it has maintained nearly all of its policies, such as rendition and indefinite detention, and intensified others, such as targeted killings of foreigners and US citizens via unmanned drone aircraft.

The only enemy left alive
The murder charge will be tough to make stick, even if Khadr’s confession is deemed admissible as evidence despite the abusive treatment. (The 2009 Military Commissions Act does not allow evidence obtained through coercion.) A vivid detail of Khadr’s confession is that right before he tossed the grenade, he looked at his watch, noticed it was 3:30, then passed out. That may be too precise to convince any jury, especially given that Khadr’s eyes were full of shrapnel, an injury that has left him blind in the left eye. More importantly, it has emerged that Khadr was not the only enemy combatant inside the compound at the time the fatal grenade was thrown. The first US soldier who entered it after its bombardment recounts finding and then fatally shooting another adult jihadi, before shooting a prone Khadr twice in the back. The killing of Sergeant First Class Christopher Speer may be being pinned on Khadr because he was the only enemy left alive to stand trial.

The decision to try Khadr in a military commission rather than in a civilian federal court remains controversial and the issue of proper venues for trying detainees has become highly charged. Hawks in and out of government clamour for the military commissions, with Republican Senator Lindsey Graham of South Carolina, a former military lawyer, threatening that failure to try the high-value detainees most directly implicated in the 9/11 attacks in a military tribunal could destroy Obama’s presidency. Obama has characteristically split the difference, vowing to try some detainees in ordinary federal courts and others in a military commission. This seems guided less by principle than by expediency: if there is enough evidence uncontaminated by torture to secure a conviction, then federal court; if not, then the military tribunals. In recent months, Obama seems to be backing away from trying any of the suspects in federal courts. (The previous Bush administration, by contrast, tried over 100 terror suspects in civilian federal courts, including Richard Reid, the failed “shoe bomber”.)

Unless there is a plea agreement, the Khadr case will be Obama’s first Guantánamo trial, and the first trial by the new, improved military commissions whose 2006 version was reformed in 2009. (The rules manual for the 2009 version was signed by the Secretary of Defense the night before Khadr’s hearings began, giving the judge and lawyers only a few hours to study the final version.) Despite many tweaks, the tribunals offer far fewer protections to defendants than either ordinary courts martial or civilian courts: there is no right to a speedy trial, no pre-trial investigation to weed out weak cases, and defence requests for witnesses must go through the prosecution. There is no credit for pre-trial detention – now nearly a decade for many prisoners – and no right of equal access to witnesses and evidence. Freshly invented war crimes, retroactively applied, violate the fundamental juridical principle of nulla poena sine lege, no crime without a prospective law. Small wonder that these commissions are for non-Americans only, as the Pentagon would never tolerate such treatment of US soldiers.

One of the greatest flaws is structural: the interference of the convening authority – the politically appointed military head of the commissions – in the prosecutions has been documented again and again. Brigadier General 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 trials for his undue command influence. A 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 energised about”. Such micromanaging did not endear Hartmann to his colleagues: former deputy prison camp commander at Guantánamo, Brigadier General Gregory Zanetti, testified in 2008 that Hartmann’s conduct was “abusive, bullying and unprofessionalŠ across the board”. (Such cosiness between prosecution and administrative authority has also been pointed out in the international tribunals for war crimes in Rwanda and the former Yugoslavia, though these courts are championed by many of the same legal experts who deplore Guantánamo.)

Decades of failure
One might expect that a legal system thus rigged would greatly appeal to its prosecutors, but this has not been the case. Half a dozen military prosecutors have quit, most of them with criticisms of the commissions. Darrell Vandeveld, former chief prosecutor in a case against another child soldier that fell apart with the government dropping all charges, has been particularly outspoken. “It would be foolish to expect anything to come out of Guantánamo except decades of failure. There will be no justice there,” he told me. After resigning from the commissions as a matter of scruple, Vandeveld was punished with a mandatory psychiatric evaluation and gratuitous hearings into his fitness to remain in the Army reserves, even though he had only three months left of his term of service. Vandeveld, who has deployed to Iraq, Afghanistan, and Bosnia, doubts that any more prosecutors will resign after his highly visible punishment.

The tribunals may be entering a harsh new phase of their own. The first round of Khadr’s pre-trial hearings ended by banning the four most experienced journalists from trips to Guantánamo. Only one has been reinstated. Their trespass was having named Khadr’s primary interrogator at Bagram prison, previously identified by the Toronto Star and several other newspapers and blogs as Joshua Claus. In the most dramatic day of testimony, Claus confirmed that he had made veiled threats of prison rape to Khadr should he fail to cooperate completely. (The reputation of the US penal system is such that the threat of transfer to a US penitentiary, where Claus told Khadr he might be raped in the shower by “neo-nazis and four big black guys”, was a worse prospect than Bagram prison.)

Claus, or interrogator number one as he was called in the hearings, was court-martialled for detainee abuse in 2005, and pleaded guilty to maltreatment and assault on a taxi driver known only as Dilawar, who was beaten to death by his Bagram interrogators. (His 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 defence witness in the recent Khadr hearings, Claus had spent far more time conferring with the prosecution. The uproar over the banned journalists successfully deflected attention from the prosecution’s arrangements with a convicted abuser. How does any of this contribute to US national security?

Have all Gitmo inmates truly been “the worst of the worst” as claimed by the Bush government? More than 600 prisoners have been released, most by the Bush administration, and of the 51 habeas petitions filed since the US Supreme Court authorised the writ’s application in 2008, 37 have been granted. Roughly 180 prisoners remain, of whom Khadr is the youngest. Still, the Obama administration has announced that it will continue to hold some 45 detainees indefinitely without charges, one of George Bush’s most radical policies, now zealously defended by a smoother, smarter team of Democratic lawyers.

One likely outcome, opposed by civil libertarian groups, is the transport of the Gitmo system to the mainland, where indefinite detention might take precedential root in US soil. (The Obama administration has announced it will purchase the Thomson Correctional Facility in Illinois whether or not Congress approves relocation of the detainees there.) It is difficult to envision much resistance to such a policy. Most of the Democratic leaders who once railed against Bush’s Guantánamo are now weary of it. Even the prosecution of a tortured child soldier, which would have offered lurid proof of Bush and Cheney’s depravity, is stimulating little media interest. Americans have learned to live with the legal black holes created by the national War on Drugs and various local Wars on Crime. Under Barack Obama, the War on Terror’s corrosion of the rule of law threatens to become normal.

LMD English edition exclusive

Chase Madar is a civil rights lawyer based in New York

(1) Michelle Shephard, Guantánamo’s Child: the Untold Story of Omar Khadr, Wiley, 2008.

Story Transcript

PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay in Washington. And this week in Guantanamo, the hearings, perhaps trial, of Omar Khadr is going to take place. He was the 15-year-old kid who was in Afghanistan. He’s charged with throwing a grenade at a US soldier in July 2002. He’s charged with war crimes. Sometimes he’s being called a terrorist. And the trial is going to determine whether or not he actually threw that grenade, although there are some bigger questions as well. Carol Rosenberg, from McClatchy Newspapers, is on her way down, and she now joins us. Thank you for joining us, Carol.


JAY: Tell us a little bit, first of all. You were going to head down, and then the Pentagon said you couldn’t. Why? And now they’ve reversed their decision, and now you are going. So what’s that all about?

ROSENBERG: Well, I’ve been covering Guantanamo for a number of years. And during one of the pretrial hearings, I had made reference to the name of Omar Khadr’s first interrogator, who had been identified widely in the Canadian press. And that’s what I had said. I said that later in the week, Sgt. Joshua Claus, Omar Khadr’s first interrogator at the Bagram Air Force Base in Afghanistan, would be testifying. And the Pentagon believed I should have called him Interrogator #1, because in that court there is a protective order that says certain people in the US military, particularly interrogators, could not be publicly identified, and that he was going to be testifying in court as Interrogator #1. But he hadn’t testified at that point; he was coming. And about two years before he ever was to testify, he called up Michelle Shephard of The Toronto Star and gave her an on-the-record interview, in which he said he’d done a proper interrogation of Omar Khadr soon after he was captured, and that he wanted to clear his name, because Joshua Claus, the first interrogator of Omar Khadr, had been court martialed for detainee abuse in another case.

JAY: So this is rather pertinent information, Claus’s role in all this, because the interrogation of Khadr is one of the big issues that is going to appear at the trial, whether he—. Apparently, either Claus or some interrogators threatened Khadr with rape, and part of the defense, if I understand it correctly, is that any admission he might’ve made was made under that threat. So it’s not like Claus is irrelevant here.

ROSENBERG: He’s not irrelevant, and he’s a known person, and his court martial had been covered. This was not—he was not an unknown person, and he wasn’t somebody whose identity had been protected previously. And at issue at that moment in Guantanamo and at issue right now is whether or not the interrogations of Omar Khadr were lawful and whether or not they will be brought to his trial when there is a jury that hears the evidence. Right now, the judge has been hearing from interrogators, lots of interrogators, including interrogators at Guantanamo who said they got him to confess by giving him M&M’s. I mean, there’s been a range of people who have talked about their interrogations of Omar Khadr. His lawyers say he’s been interrogated 100 times since he was captured in July 2002. But Joshua Claus was the first interrogator, and Joshua Claus testified that he told Omar Khadr a really scary story of an Afghan kid who didn’t cooperate with his interrogators, was sent to an American prison, raped, and killed. And this is what he testified. And now the judge is going to have to decide whether, from that moment on, that any confessions that Omar Khadr would have made after that very scary story would amount to coercion.

JAY: And he was what, 15 or 16 years old at the time this story gets told to him?

ROSENBERG: He was 15 years old, and he was fresh out of the hospital at the Bagram Air Base. They haven’t pinned down exactly how many days. But, you know, he’d been captured, shot through the back and out the front. He was near dead. This had been an assault on a compound where he was with some adult men, in which 500 pound bombs were dropped on the compound, explosions rocked the compound, there was shooting from both sides, and he was found near dead. And they brought him to the Bagram Air Force Base, and they saved his life and they saved his sight. And he was—soon after he was released from the hospital, he was put into this detention center, which we’ve heard a lot about and there’ve been lots of claims of abuse regarding, and where detainees subsequently died of abuse, we know from courts martial. And he was put into this setting, and this is where he was interrogated. So the question will become which of Omar’s Khadr’s confessions, which of the times he told interrogators, “I threw a grenade,” would be acceptable at trial.

JAY: Carol, what evidence is there against him other than his confession?

ROSENBERG: The evidence is in a sense circumstantial, because one of the arguments being made by the special forces soldiers that assaulted the compound was that no one else was alive at the time the grenade flew out of the compound. And so it was as though, as the only survivor, he must have been the grenade thrower. There has been some conflicting testimony to that. There is a document written by a commando, American commando, who charged through that compound shooting people in the initial assault and says he killed more than one person. This assault would have been after the grenade was thrown. It’s a little confusing. So there’s some conflicting testimony; there are some conflicting stories. But what’s also of interest is—and there will be mental health testimony coming this week, we expect, whether Omar Khadr knew he threw a grenade, said he threw a grenade because that’s what his captors wanted to hear (that is the defense argument), or has any true knowledge of whether he threw a grenade. They’re going to bring psychiatric testimony this week, and one of the psychiatrists is supposedly going to advance something called “shock blast” theory. In essence, if somebody drops two 500 pound bombs on the compound where you were held, and then you are shot and subsequently unconscious, do you really know whether you threw that grenade?

JAY: Now, so there’s no witness; the case really rests on his confession.

ROSENBERG: I don’t know that yet. I mean, it seems to be that if all of the confessions are out, they’ll have a hard time making a case. And one of the things is I don’t know whether they would have to find him guilty of actually having lobbed the grenade to find him guilty of having been a terrorist, because their argument is, as an alien unprivileged enemy belligerent, he had no right to do anything but surrender to the American forces, and that he couldn’t resist. So part of the argument is is that people who got hurt and people who died in that episode, he does have liability for having fought.

JAY: Now, he’s an alien because he’s Canadian?

ROSENBERG: He’s an alien because he’s Canadian.

JAY: Now, just for people that don’t know—and tell me if I have this right—he’s a Canadian kid whose father is—apparently was a supporter of al-Qaeda and had some connection to bin Laden, and I think his father encouraged him to go over to Afghanistan. He’s then found in this compound. Is that more or less correct, what I’ve said?

ROSENBERG: The story the lawyers tell is that the family grew up mostly in Toronto, Canada. That’s where Omar was born. But by the time Omar was 11, the father had picked up the family and moved him to Pakistan and Afghanistan; that the father was a fundraiser, a militant Muslim fundraiser, which the Canadian government and American government say he was in effect financing al-Qaeda; and that his family did in fact—the two families knew each other, the bin Ladens and the Khadrs; and that from age 11 on, this Omar Khadr was in a family that spent a lot of time around al-Qaeda. And, in fact, if you read the book Guantanamo’s Child by Michelle Shephard, you find that they went to al-Qaeda camp, that they learned how to shoot, that the father gave them a lot of exposure to the world of bin Laden.

JAY: Now, if he had been an Afghan, they would not have been able to charge him with this? It’s because he’s not Afghan?

ROSENBERG: Well, I don’t think it’s as simple as that. I mean, there are Afghans—not at the moment, but they have tried to charge afghans with war crimes. I mean, it would depend—I mean, an Afghan certainly could be charged with a war crime in a military commission if he committed a war crime or allegedly committed a war crime. I mean, a war crime is as simple as, if you’re in a battle and somebody is wounded, you can’t go over and finish them off.

JAY: But certainly in theory, if a foreign army is invaded and occupied your country, how can it be a war crime to fight back, whatever you make of the right or wrong of the American occupation of Afghanistan?

ROSENBERG: I think the argument would be that there was no legitimate resistance to an American invasion, an Allied invasion, which was backed by the Northern Alliance. I think that would be the argument. And you have to remember, there is a Afghan government right now working with the Americans and some allied nations, and that the—you can’t say they’re the victors, exactly, but you can say that the Americans and the Afghans have an authority in that country that would be different than foreigners who happened to be there working with al-Qaeda at the time of the invasion.

JAY: I guess. I mean, he’s doing this in July of 2002. It’s actually only a few months since the fall of the Taliban. So, I mean, the whole thing seems quite surreal, to charge someone with war crimes in that kind of situation, especially when, in Iraq, American forces were hiring people and creating these local defense committees to go fight al-Qaeda made up of people who had the day before been fighting and killing American troops. Like, there it was okay, and this 15-year-old kid gets charged. But I suppose that’s the surrealness of war, particularly now.

ROSENBERG: The point is he’s there not through his own choice or judgment if he’s taken there as an 11-year-old. He is sent to function as a translator with other Arabs, who are living in what seems to have been an al-Qaeda stronghold—we’re talking about a small hut with four or five people in it. And he is caught up in a firefight, and somebody dies. And so the question is: will an American military jury of colonels and lieutenant colonels hear the evidence, see the widow of the soldier who will be sitting in the gallery at the trial, and conclude that this was a war crime, that he threw the grenade, and that he’s guilty? There’s other charges, you know. He’s also accused of participating in planting mines in that area, resisting the American occupation. And that charge is being brought by a videotape that shows a very young, young, young Omar Khadr sort of sitting on a carpet on the floor with what look like Russian-era claymore mines, trying to learn how to assemble them, and then it switches to some night-vision footage of the kid—I mean, he’s a child—out there sort of mugging for the cameras, as other people are whispering and climbing through the roadsides, apparently, planting mines. And, again, you know, the decision—the jury will have to figure out whether that activity reflects exactly what the government says it reflects, and if it does, whether that’s a crime. And it’s complicated.

JAY: Now, they’re not going to actually look at whether this is a war crime or not; they’re just going to look at the question of whether he threw a grenade or not. Like, are they presupposing that if he threw the grenade, it’s a war crime?

ROSENBERG: All of that, whether there’s jurisdiction, whether this is a legal charge, whether the act would constitute a war crime, all of that gets worked out in the pretrial phase of this. There have been challenges. They have said murder is not a violation of the law of war. This has gone on. Remember, we’ve had years of pretrial hearings in the Khadr case, and the military judge, who is an Army colonel, has upheld the integrity of the case that says these charges are war crimes. Now, your point is taken. You know, were he convicted, there will be an appeals process. And there are people who say all sorts of things are wrong with this war court. They say you can’t create a crime after the fact. Congress created this law that created this court that Omar Khadr is being tried under, and Omar Khadr was already at Guantanamo by the time they started figuring out how to write this court. So that would be, you know, a retroactivity that some people would challenge as unconstitutional. And then there’s questions about whether conspiracy is a war crime. The US Supreme Court has not said it isn’t, but they’ve raised some questions as well. So this trial will be within the margins of the Military Commissions Act. It will judge whether or not he did certain acts and should be found guilty. But your larger question about the integrity or authority of a military commission, that would have to come later, after a conviction.

JAY: Well, as we started in the beginning of the interview, you were told you couldn’t go down. Well, now the Pentagon has reversed its decision and Carol Rosenberg is on her way down to Guantanamo. And we’ll be talking to her as the trial of Omar Khadr proceeds. Thanks very much for joining us, Carol.

ROSENBERG: Thanks for having me.

JAY: And thank you for joining us on The Real News Network.

End of Transcript

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Carol Rosenberg is a senior journalist, currently with the McClatchy News Service. Rosenberg works at the Miami Herald, which has provided extensive coverage of the operation of the Guantanamo Bay detention camps, in Cuba