In a surprising verdict issued late Sunday afternoon, a military commission jury sentenced Omar Khadr to 40 years in confinement. Given that Khadr has already served eight years at the U.S. prison camp at Guantanamo Bay, Cuba, that's a 48-year sentence for a child soldier. Khadr is also the only fighter charged by the U.S. government with murder on the battlefield since the start of the wars in Iraq and Afghanistan. He was only 15 years old when, according to his guilty plea, in July 2002 he threw a grenade that killed a U.S. soldier.
This morning I sat in a U.S. military commissions courtroom in Guantanamo Bay, Cuba, and watched the first child soldier charged by a Western nation since World War II plead guilty to crimes he was never even accused of. If the guilty plea of Omar Khadr this morning was a face-saving effort by the U.S. government, it was a sad day for the rule of law in the United States.
Omar Khadr is the 24-year-old Canadian who's spent a third of his life in U.S. custody without trial after being accused of helping his father's al Qaeda associates build improvised explosive devices when he was just 15. He was taken to Afghanistan from Canada by his father at the age of nine. The lone survivor of a 2002 U.S. assault on an Afghan compound, Khadr was accused of throwing a grenade that killed a U.S. soldier.
But as he entered his guilty plea this morning -- after the government agreed he'd serve just one more year at Guantanamo Bay, and an as-yet-unspecified number of years in Canada -- it was clear that prosecutors had taken the opportunity to throw the kitchen-sink-full of charges at him - including far more crimes than he'd even been charged with. Most importantly, Khadr pled guilty to the murder of two Afghan soldiers who accompanied U.S. forces in the 2002 assault on the compound. The government has never presented any evidence whatsoever that Khadr was responsible for that.
That Khadr pled to this and the range of other charges that the government first unveiled today (details will not be available until the military commissions publicly release the stipulation signed by Khadr tomorrow) is hardly surprising. Ever since Judge Patrick Parrish ruled that Khadr's statements made to interrogators after he was threatened with gang-rape, coerced and possibly tortured were admissible, his defense was sure to be challenging. Although the government did not appear to have any forensic or eyewitness testimony to support its murder charge, government interrogators planned to testify that Khadr had willingly told them that he threw the grenade that killed Sergeant First Class Christopher Speer. Whether he said that because it was true, or because he was a scared and wounded 15-year-old expecting a quick release for telling his interrogators what they wanted to hear, we'll never know. (Khadr was shot multiple times and severely wounded in the firefight, which left him blind in one eye; he still has shrapnel in the other.)
Khadr's sentencing hearing begins tomorrow. Although the plea agreement contains a recommended sentence (news reports have said it's 8 years total) that deal will remain secret until the military commission sworn to act as a jury in this case issues its own sentence based on live testimony. The government will present witnesses to describe the effects of improvised explosive devices, and the testimony of Sergeant Speer's widow about her loss. Khadr's lawyers will put forth psychological and psychiatric experts to talk about the impacts of torture on him and likely about the ability of a 15-year-old youth to appreciate the wrongfulness of his acts, particularly when they were directed by the adults around him.
The first trial of a former Guantanamo detainee in a U.S. federal court began in New York City this week. With jury selection completed, opening arguments will begin Monday for Ahmed Khalfan Ghailani.
I went to the jury questioning and it was just another day at court, with a second terrorism trial happening next door. Outside the courthouse, there were no protests or demonstrations along the lines of what was staged by groups like Liz Cheney's Keep America Safe last December after the Obama administration announced it would try the September 11 co-conspirators in a New York federal court. In fact, Cheney and Co. were bizarrely quiet about this trial.
Human Rights First staff interviewed New Yorkers on the street in front of the courthouse while proceedings began. The overwhelming response was nonchalance, or confidence. Far from the nightmare scenarios predicted by those who oppose civilian trials for the 9/11 defendants. Watch the video released yesterday:
If you didn't already know the trial was going on, you'd never know that anything was different at all in the Southern District of New York courthouse and in the immediate vicinity. Sure, security was tight, but it always is. Observers had to pass through the usual metal detectors and check in their cell phones. It was business as usual.
In fact, although most New Yorkers don't realize it, there are now two major terrorism trials going on in the downtown Manhattan courthouse. In addition to Ghailani's, there's the case of four men charged with planting what they thought were bombs outside two Bronx synagogues, and planning to fire missiles at military planes. That trial, which hinges on the role of a government informant, has been going on for five weeks now without any safety incidents.
As this trial gets underway, you have to wonder what all the fuss was about. Civilian courts have convicted 400 terrorists since 9/11. Military commissions, 4. The trial itself has caused no disruption in lower Manhattan and is running smoothly.
I will be headed to Guantánamo later this month to witness the military commissions trial of Omar Khadr. Instead of taking the subway to the proceedings, I'll be flown down and escorted by U.S. government officials to a facility that has cost hundreds of millions of dollars to build and an additional $125 million every year to maintain. This doesn't seem to add up.
The New York Times today highlights a new report released by ProPublica and the National Law Journal concluding that torture and "enhanced interrogation techniques" approved by the Bush Administration and used on suspected terrorists has made it impossible to bring many of those alleged terrorists to justice.
Of the 53 habeas corpus cases brought by Guantanamo detainees and decided by federal court judges, the government has lost 37. Many of those losses were because the only evidence against the detainee was a coerced confession or statements from other prisoners who'd been tortured. Federal court judges have rightly found such statements unreliable and inadmissible. The result is that many of those suspects have won orders of release. (Only three have actually been freed.)
Unfortunately, those orders have led some critics of the administration - including Sen. Lindsey Graham and Brookings Institution commentator Benjamin Wittes - to argue that we need more expansive detention laws so the government doesn't have to let those suspects go. That's precisely the wrong response in a society that claims to presume suspects are innocent until actually proven guilty. (The standard in habeas cases is actually much lower than in a criminal case; the government only has to prove that it's "more likely than not" that the suspect can legally be detained.) Those 37 prisoners won their habeas cases because the government had no reliable evidence that they'd been fighting for al Qaeda or the Taliban. So judges across the political spectrum concluded that the government hadn't demonstrated that these detainees are detainable under the laws of war.
In a report Human Rights First released with The Constitution Project in June, 16 former federal judges explained that the courts deciding these habeas cases are doing the right thing: they're weighing the evidence, deciding the facts and applying the law. No new laws are needed. On the contrary, a new detention law designed to help the government win more cases in the absence of reliable evidence would only tarnish the reputation of the U.S. justice system, which in these cases is doing itself proud.
As the Times points out, these court decisions demonstrate a "respect for due process [that] will help repair this country's battered reputation." The Bush administration's failure to apply basic, longstanding American justice standards is what landed us in this mess in the first place, requiring that some terror suspects go free. Creating a new legal standard to accommodate those past mistakes would only compound the problem and drive the United States' reputation further into the ground.
We're already seeing that happen at the military commissions at Guantanamo Bay. Although, as Peter Finn in the Washington Post today points out, many of the military commission cases have stalled, one that has gone forward recently produced a highly questionable ruling that was immediately broadcast around the world.
In the case of a Canadian citizen and alleged child soldier, Omar Khadr, the judge ruled that a threat of gang-rape and murder in prison from his lead interrogator did not taint any of the 15-year-old's later "confessions" that he threw a grenade that killed a U.S. soldier. Given that there's no physical evidence that Khadr committed the act, his statements to interrogators at the Bagram prison in Afghanistan and later at Guantanamo Bay are critical to the prosecution.
In a similar case, brought against Mohammed Jawad, also accused of throwing a grenade at U.S. soldiers as a child, the military commission judge in 2008 concluded that early threats by Afghan interrogators tainted all of Jawad's later statements made to the Americans. His case was ultimately thrown out and he was returned to Afghanistan.
These sorts of conflicting rulings can happen in the military commissions, an ad hoc justice system created in fits and starts over the last eight years with no binding precedent or road-tested rules. It's one reason why those military commissions lack the legitimacy of civilian federal courts.
Like the court rulings ordering Guantanamo detainees freed, the military commissions, too, are a legacy of torture. They're an attempt to patch together a quasi-justice system to accommodate, without acknowledging or rectifying, the egregious mistakes of the past.
But neither new detention rules nor military commissions can truly overcome torture's legacy. That can only be done by admitting what happened, holding perpetrators accountable, and ultimately, prosecuting terror suspects in our time-tested, world-renowned American justice system. And that is rightly something about which this country can be proud.
Last week, the United States government transferred an Algerian national, imprisoned for the last eight years at the U.S. detention facility at Guantanamo Bay, Cuba, back to his home country.
Normally, such transfers are a cause for celebration by the prisoners involved. But the reaction of 35-year-old Abdul Aziz Naji was markedly different: he was terrified. That's in part because the Algerian government has a bad track record for its treatment of anyone arrested on "security grounds." In fact, the U.S. State Department reports that in such cases, Algerian authorities still use torture to elicit confessions. A recent decision from the European Court of Human Rights reached the same conclusion, blocking a transfer to Algeria from France.
Naji also argued that he was afraid of local fundamentalist groups terrorizing him into fighting for their cause. In fact, he'd fled Algeria as a teenager precisely because he'd been attacked by extremists. As a result, Naji begged the U.S. government to allow him to remain in prison at Guantanamo rather than be returned to Algeria. But the U.S. government ignored that; it sent him to Algeria anyway.
Although Naji is now back home, reportedly under Algerian government surveillance, there are still another five Algerians left at Guantanamo Bay who are afraid to return home due to fear of mistreatment. Still other prisoners, from countries such as Tajikistan and Morrocco, have similar fears. And terror suspects arrested by U.S. authorities and sent to another country for interrogation and prosecution, under current U.S. rendition policy, face a similar risk.
The U.S. government's actions in Naji's case don't bode well for any of them.
Under international law, the United States isn't supposed to transfer anyone to a country where they're likely to face torture or cruel, inhuman or degrading treatment. That's exactly what Naji fears will happen to him if he's arrested in Algeria. But he did not get an opportunity to make his case to any sort of neutral U.S. arbiter. Although the Obama administration said that the Algerian government had promised not to torture Mr. Naji upon his return, Naji never got a chance to explain why he's skeptical of that promise, and why he's still afraid.
Unfortunately, despite the requirements of the international Convention Against Torture, Naji's treatment complies with official U.S. policy. U.S. officials have insisted that they can send a prisoner or terror suspect to a country that's known to torture prisoners so long as that country provides "diplomatic assurances" -- essentially, an official promise -- that the person will be treated fairly. Perhaps the U.S. obtained such a promise from authorities in Algeria. But what are these "diplomatic assurances" worth?
As the United Nations and many other international experts have recognized, not much. According to Manfred Nowak, the U.N.'s Special Rapporteur on torture, "diplomatic assurances are unreliable and ineffective in the protection against torture and ill-treatment and such assurances," and are usually sought "from States where the practice of torture is systematic." They're also not legally binding.
Thus Maher Arar, for example, a Canadian terror suspect (who turned out to be innocent) rendered to Syria by the Bush administration, was brutally tortured under interrogation there, despite "diplomatic assurances" provided to U.S. authorities by the Syrian government.
Nowak and Martin Scheinin, the U.N. Rapporteur on Human Rights and Counter-Terrorism, last week protested the United States' return of Naji to Algeria.
Although Naji was never charged, tried or convicted of anything by the United States, his imprisonment for the last eight years, supposedly on security grounds, suggests he's likely to be a target of interest to the Algerian authorities.
Indeed, after he was returned home on July 18, his lawyers reported that he had disappeared. He was presumably held and interrogated in secret detention by Algerian security forces.
Then on Monday, Reuters reported that he'd been returned home and was "resting." An Algerian prosecutor said he'd been treated lawfully.
Meanwhile, the Associated Press reported that Naji had been indicted on terrorism-related charges and placed under "judicial supervision."
Whatever Naji's status is now, it could change at any time. Even though the U.S. never charged him with anything, Algerian authorities could go a different route. Or they could detain him for questioning and torture him in prison. Now that the United States has released him, it no longer has any authority to determine his treatment.
But the U.S. doesn't have to follow suit for the other Algerian detainees still imprisoned without charge at Guantanamo, who similarly face repatriation against their will. Human Rights First has called on the Obama administration to back up its professed commitment against torture by systematically providing a hearing before a neutral arbiter before returning anyone in U.S. custody to a country where he fears persecution. The United States should stop relying on the "diplomatic assurances" that have proved utterly ineffective in the past.
As the government continues to pursue the case of Omar Khadr, it's becoming clear why the administration chose to try this case in a military commission rather than a regular civilian federal court: a civilian federal court judge would likely throw the case out.
What emerged from another day of testimony in the Omar Khadr military commission case today was the portrait of a young boy ordered by a powerful father and his al Qaeda associates to do bad things. And now, eight years of imprisonment later, that child is being prosecuted for it.
Within Scott Horton's disturbing tale of the three "suicides" that probably weren't, comes confirmation that America's rotten gulag of ill repute has an Area 51 gulag of its very own, meet "Camp No":
The compound was not visible from the main road, and the access road was chained off. The Guardsman who told Davila about the compound had said, "This place does not exist," and Hickman, who was frequently put in charge of security for all of Camp America, was not briefed about the site. Nevertheless, Davila said, other soldiers-many of whom were required to patrol the outside perimeter of Camp America-had seen the compound, and many speculated about its purpose. One theory was that it was being used by some of the non-uniformed government personnel who frequently showed up in the camps and were widely thought to be CIA agents.
A friend of Hickman's had nicknamed the compound "Camp No," the idea being that anyone who asked if it existed would be told, "No, it doesn't." He and Davila made a point of stopping by whenever they had the chance; once, Hickman said, he heard a "series of screams" from within the compound.
See it here, top left. Please tell me this facility at least, could be closed in less than a year without an epic Congressional meltdown of NIMBY cowardice. Hopefully we won't have to find out in another revelation that Camp No itself had a secret room or wing where even more inhuman things were going on too horrible for the regular denizens of Camp No.
Neither the MPs at Abu Ghraib nor the guards at Guantanamo Bay started the US down a path of being a nation that tortures all by their lonesome. They didn't even order it. And why should it be so surprising that there would be little squeamishness about torturing foreigners when our domestic culture has been encouraging in-house torture for a very long time?
The torture of US citizens is common in prisons. This includes dehumanizing solitary confinement and the threat of rape torture. Prisoner advocates have been pointing out for a very long time that prison rape is a casual punchline praised for universally accepted, though never proven, deterrence benefits. US prisoners of war considered solitary confinement among the most terrible tortures and nearly everyone considers rape to be torture, but we allow these things to be done in our country every day.
Though winking at torture never stopped with convicted inmates. Police brutality against minorities and uppity demonstrators has been a long-accepted staple of US national culture - almost as if getting to bully and beat people was a perk of being a law enforcement professional, because it's just so darn fun. Even if most members of the police force conduct themselves laudably and would never want to torment anyone, cases of sadistic behavior by law enforcement rarely raises the mainstream outrage meter, or any attention at all.
Now that Tasers have been approved for law enforcement use, police torture of even upstanding white people who've never protested anything in their lives has become commonplace. Which is great in a way, because then we're more sure to get news coverage of it. Still, it's disconcerting to realize how easy it was to sell everyone on the idea that the police should be able to torture whoever they feel like torturing whenever they want to.
Admittedly, Tasers don't usually cause major organ damage or death, so that's all right then. Except that technology advances are likely to begin making it so easy and efficient for the police to torture even large groups all at once that we might want to think harder about where this is going. Especially when the attitude of some people towards their fellow citizens has gotten so pitiless that moronic advertising company Saatchi & Saatchi of Los Angeles decided that terrorizing and threatening people would make for a good ad campaign, as did Toyota and a bunch of people who referred their 'friends' for this treatment.
Let's debunk Dick Cheney's pernicious lies about torture once and for all. Let's look past the mainstream media frenzy over the personal feud between Obama and Cheney, past the ludicrous GOP talking points, and instead focus on a real story that could allow us to hold Cheney accountable. Major Matthew Alexander is a former Senior Interrogator who conducted more than 300 interrogations in Iraq and supervised over 1,000 more, including that of al Qaeda-in-Iraq leader Abu Musab al-Zarqawi -- and he did so using traditional methods. In an exclusive interview released today by Brave New Foundation, Alexander said Dick Cheney's torture policy "literally cost us hundreds if not thousands of American lives."
According to Alexander, the torture and abuse conducted at Abu Ghraib and Guantanamo Bay became the number one recruiting tool for foreign fighters and suicide bombers who attacked coalition forces in Iraq. Huffington Post's Ryan Grim highlights the importance of Alexander's testimony:
Alexander easily takes down Cheney's arguments. The most immediate blow Alexander strikes is, of course, his obvious success, which undercuts Cheney's case for more brutal techniques. Alexander also engages on the level of principle. For Cheney, the suggestion that torture is a poor strategy because it aids terrorist recruitment is nothing more than old-fashioned blame-America-first cowardice.
No, literally, he is going to lead directly to our deaths. George W. Bush's speechwriter, now writing at "The Corner":
He has removed the tool that is singularly responsible for stopping al-Qaeda from flying planes into the Library Tower in Los Angeles, Heathrow Airport, and London’s Canary Warf, and blowing up apartment buildings in Chicago, among other plots. It’s not even the end of inauguration week, and Obama is already proving to be the most dangerous man ever to occupy the Oval Office.
While I know it's not very post-partisan, there are still moments when I think "fear" is the main unifying theme of Republicanism. It's not just that they want citizens to be afraid, it's that they themselves are perpetually frightened. A few examples (in somewhat chronological order):
Fear of communism
Fear of black people voting
Fear of women in the workplace
Fear of hippies
Fear of people having sex
Fear of gay people
Fear of immigrants
Fear of people not speaking English
Fear of baggy pants
Fear of gays in the military
Fear of big government
Fear of their handguns being taken
Fear of terrorism
Fear of the thought of gay people having sex
Fear of gay people getting married
And now, fear of the "most dangerous man ever to occupy the Whitehouse."
No wonder so many conservatives love huge fenced-in ranches. All the better to keep out the gay, brown, terrorist-loving, sex-having, baggy-pants wearing, communist, socialist hippies.
It's as clear a statement as we're going to get. Obama will end torture and will shut down Guantanamo. There are a lot of questions and concerns that Glenn Greenwald has put forward with characteristic vigor, and I suspect that there will be a massive fight over this as the Pentagon tries to challenge Obama over spending, Iraq, torture, etc.
How Obama handles the national security state will be a fascinating episode to watch, but these are tentatively positive signs.
STATE BLOGS
