Two days ago, the New York Times reported on the just-released publication of a 2008 report on the CIA's negligence, deceit, disregard for its own rules and stonewalling in connection with investigation of its practice of shooting down airplanes in Peru in 2001. Back then, it was deadly mistakes made in the war on drugs.
A day later, the Wall Street Journal published a report about ramping up the CIA's targeted killing program in the war against terrorism (or against Al Qaida, as the Administration now calls it).
The Peru example underscores why the United States should not be using the CIA to conduct targeted killings. The CIA operates, understandably, in secret. When and if its conduct is investigated, the reports of its violations usually remain secret as well. The power to impose death should not be delegated to an entity, and to individuals, so shielded from standard measures of accountability.
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.
The government's star witness in the sentencing hearing of Omar Khadr continued to talk for hours on the stand today, explaining his view of why he believes that the Canadian captured in 2002 at the age of 15 is "highly dangerous."
In testimony Tuesday afternoon that literally had my jaw dropping, a forensic psychiatrist called by the U.S. government testified that Omar Khadr, the Canadian who Monday pled guilty to a slew of terrorist acts including murder, is too dangerous to be released because he is sincerely religious and became even more devout at the Guantanamo Bay prison.
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.
As the trial of a former Guantanamo detainee proceeded peacefully in a New York courtroom today, U.S. military prosecutors in Cuba were reportedly scrambling to get Omar Khadr, the alleged child soldier on trial for war crimes at Gitmo, to plead guilty to murder. Plea negotiations are reportedly ongoing and his trial, set to resume Monday, has been postponed for a week.
In New York, the government is finally presenting its evidence against Ahmed Khalfan Ghailani, the first former Gitmo prisoner to be transferred to the U.S. for trial.
On Thursday morning, an FBI agent testified about the exhaustive investigation done at the crime scene after the 1998 US embassy bombings in Kenya and Tanzania -- just the sort of complex investigation that FBI agents are trained to do. Having arrived in Tanzania within 24 hours of the bombing, FBI agents secured the crime scene and analyzed and preserved 661 pieces of evidence. Some of that led to the discovery of pieces of the white Nissan truck that had been turned into a bomb, and to its string of former owners.
Unfortunately for the government, though, a broker for the sale of the truck on Thursday afternoon proceeded to contradict everything he'd told the FBI 12 years ago.
Some of the problems in the Ghailani trial are predictable, given that the government imprisoned Ghailani for six years without trial after capturing him in Pakistan in 2004. Because he was interrogated using "enhanced interrogation techniques" and possibly torture in a CIA black site, none of the evidence obtained there is reliable or admissible. And because the government still didn't put him on trial for four years after transferring him to Guantanamo, witnesses may now have a hard time remembering what they told the FBI when it investigated the bombings more than a decade ago. The investigation led to the conviction of four other men in 2001. All are serving life in prison.
What will happen in Ghailani's case remains unclear. As I pointed out earlier, the defense isn't contesting many of the facts the government is now presenting. Yesterday, for example, we heard a whole day of testimony from victims of the bombing -- horrifying stories of being buried under the rubble and finding severed limbs of colleagues and loved ones. Ghailani's lawyers aren't disputing that any of that happened, and conducted hardly any witness cross-examination.
But when it comes to proving that the diminutive Ghailani (friends called him Foupi, meaning "the little one" in Swahili), actually intended to participate in the bombing plot, that's where the government may have a harder time. Though we've already heard testimony that Ghailani, who was around 22 at the time, was at least with one of the people who purchased the truck, the government has yet to present any direct evidence that Ghailani knew what it was being used for. The prosecution's case will likely depend on arguing that Ghailani should have known, based on the circumstances. Given that the trial is expected to last for up to four months, the government will have plenty of opportunity to present its evidence.
Meanwhile, back at Guantanamo Bay, Omar Khadr, the "child soldier" on trial for allegedly throwing a grenade that killed a U.S. soldier, is reportedly considering pleading guilty and serving one more year at Gitmo, then returning to Canada to serve more time there. Whether he'll agree to plead guilty to crimes that don't really exist remains to be seen. (As I've explained before, none of the crimes he's charged with are actually war crimes that belong in a military commission.)
In addition to the legal flaws in the government's case, there's the problem that the military appears to have no forensic evidence demonstrating that Khadr actually committed the crimes he's accused of. That's in part because, unlike the FBI, military investigators don't carefully gather and preserve evidence at a crime scene, making a subsequent prosecution much more difficult. For all these reasons -- in addition to Khadr's likely anger and bewilderment at having been imprisoned by the U.S. for a third of his life without trial -- the 24-year-old Canadian may now have less incentive to cooperate.
Even if Khadr does plead guilty, the legitimacy of that conviction, and of the entire military commissions process, will remain in doubt.
(As the Obama Administration seeks to "normalize" the criminal practices of the Bush Administration, it seems that it may have a LITTLE problem with international law... - promoted by Paul Rosenberg)
On Saturday, the New York Times reported that administration officials are "alarmed" by the military commission case of Omar Khadr, the Canadian citizen seized as a 15-year-old by U.S. forces in Afghanistan who's now spent a third of his life in the U.S. prison at Guantanamo Bay. Trying an alleged child soldier based largely on confessions he made after being threatened with gang-rape and murder is not the case the Obama administration had hoped to showcase in its first military commission trial.
But the argument in a new paper published today by Loyola Law School professor David Glazier should give the administration even more cause for alarm. Glazier, an expert on international law and the laws of armed conflict, argues that the military commission trial of Omar Khadr is itself a war crime.
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.
Pretrial hearings in the case of Omar Khadr today were dominated by arguments over whether his "confessions" to interrogators should be suppressed due to alleged abuse, and what other evidence should be admitted at trial. Khadr's lawyer argued that all of his statements about what he did should not be admissible at trial because his lead interrogator at Bagram threatened him with gang rape, and possibly with death, thereby tainting his perspective of all of the interrogators asking him questions afterwards. The government has insisted instead that the judge can just forget that threat from Interrogator #1, who was, in another context, court-martialed for abusing prisoners, and instead conclude that all of his subsequent statements about his involvement with al Qaeda and throwing a hand grenade that killed a U.S. soldier were voluntary.
What hasn't been argued today, though, is whether a 15-year-old like Khadr who was taking orders from his father, a known al Qaeda financier, ever really had a choice in the matter. What's more, the judge still hasn't ruled on whether the murder that he's accused of actually constitutes a war crime, and therefore is properly being heard in this military commission. The judge suggested today that he won't rule on that until after the trial is over, prompting objections from Khadr's military defense lawyer that he needs to know what the judge thinks the law is in order to effectively present his client's case. In the view of defense counsel and many international law experts, killing a member of enemy forces - in this case, a U.S. soldier - is not a violation of the laws of war. It's what people in battle are trying to do.
The other disappointing part of today's hearing was that the government has once again introduced Evan Kohlmann as an expert on al Qaeda and related terrorist groups. The 31-year-old Kohlmann is an NBC news analyst who started his own company that provides reports on terrorist groups to corporations and media organizations, based largely on surfing the Internet. He admitted in court today that he does not speak Arabic or have an advanced degree in anything related to terrorism, Islam or Islamic extremism. He has an undergraduate degree from Georgetown University where he wrote his senior thesis on al Qaeda and Arab-Afghans. All of his research and writing on that and related subjects was based on information he found on the Internet. He appears to believe that his inability to speak or read Arabic did not hinder his ability to review or understand what he found. Kohlmann has created a video that tells the history of al Qaeda and its goals, based, likewise, on video clips and other public documents he's found online.
Whether Kohlmann is accepted as an expert or not (he probably will be, as he has been in two previous military commission cases and in 16 federal court trials, all testifying for the prosecution), the real issue here seems to be what his expertise has to do with Omar Khadr. Kohlmann testified today that he knows nothing about Omar Khadr except the charges against him. From what I can tell, the defense isn't contesting that the U.S. is at war with al Qaeda or that al Qaeda has tried to attack the U.S. repeatedly, including on September 11, 2001. But the prosecution isn't alleging that Omar Khadr had anything to do with that attack, or any of the others that constitute the bulk of Kohlmann's movie. So I don't see how the 90-minute historical survey of al Qaeda and Islamic extremist terrorism is going to shed light on whether Omar Khadr is guilty as charged.
The judge has taken a break to deliberate over the pending legal motions. Hopefully by later this afternoon we'll have some decisions - and a bit more clarity on what's going to happen in this first military commission trial put on by the Obama administration.
On Tuesday, the Obama administration is scheduled to begin its first trial of a prisoner held at Guantanamo Bay. Omar Khadr was only 15 when he was captured in a firefight in 2002 with U.S. forces in Afghanistan. Now 23, he'll finally have his day in court. Only instead of an experienced federal court with a long history of trying terror suspects, Khadr will be tried in a military commission, created just last year. In the eight years since President George W. Bush created the first military commissions at Guantanamo, they have convicted only four terrorists - only two in contested trials. Regular federal courts in the United States, by contrast, have convicted more than 400 in the same time period.
Khadr was only nine when his father, an alleged Al Qaeda financier, dragged him from Canada to Afghanistan and put him to work helping his Al Qaeda-connected friends. Khadr has said that he never had a choice. And a Canadian intelligence agency reported, based on interrogations of Khadr in 2003, that Khadr viewed Al Qaeda "through the eyes of a child" who didn't understand that his father's activities were linked to terrorism.
What's more, based on what's been presented in pretrial hearings so far, there appears to be little or no evidence, other than "confessions" extracted under highly suspicious circumstances, that Khadr actually committed the most serious crime he's accused of: throwing a grenade that killed a U.S. soldier.
Even if he did, Khadr shouldn't be tried in a military commission.
Under international law, a child captured in combat is supposed to be treated as a victim rather than a warrior, offered rehabilitation in custody and eventually repatriated home. Khadr, who has relatives in Canada, was offered neither option.
In addition, the crime of murdering a U.S. soldier isn't actually a war crime. In war, it's not a crime to target the other side's soldiers. But because Khadr was a civilian, rather than a member of a regular foreign army, throwing a grenade is a criminal act that could be prosecuted in a regular criminal court. Although the military commission rules characterize his crime as one that falls within the commissions' jurisdiction, the legal authority of the commission to prosecute conduct that was declared a war crime after the act was committed, or ex-post facto, remains legally questionable.
Khadr's lawyer has also questioned the legality of the military commissions as a whole, filing an appeal just this week with the Supreme Court arguing that the commissions are unconstitutional because they target only "aliens"--people who are not U.S. citizens. Though the courts have so far punted on this issue, it's clear that even if Khadr is convicted, he'll have several strong grounds for appeal.
So why is the government bringing this case in a military commission?
Perhaps the government hopes that Khadr's statements, which he claims were extracted by various kinds of torture and abuse, will be allowed into court as evidence. Although Khadr's lawyer hasn't yet had the opportunity to present all the evidence of his client's treatment at Bagram and at Guantanamo Bay, what's come out at pretrial hearings so far is that when Khadr was captured by U.S. soldiers in July 2002, the teenager had been shot twice in the back, blinded in one eye and had a face peppered with shrapnel. Interrogators at the Bagram air base took to calling him "Buckshot Bob." But that didn't stop them from interrogating him while he was still recovering from life-threatening wounds and strapped to a hospital gurney. Using what the military calls a "fear up" technique, an interrogator testified, Khadr was told a story about another prison just like him who refused to cooperate - and who then was gang-raped and killed in an American prison.
Official documents also reveal that at Guantanamo, Khadr was subjected to the military's "frequent flyer" program -- meaning he was moved every three hours for weeks at a time to keep him from sleeping prior to interrogations.
So just how reliable are the statements he made, either at Bagram or at Guantanamo?
Now, after eight years at Gitmo, Khadr insists he's not guilty. He has also at times said he'd boycott his own trial because he thinks the whole military commission process is a sham.
It's easy to understand why. Now 23, Khadr, has been interviewed by dozens of interrogators, each time led to believe that his cooperation would spare him from violence and lead to his release. He told interrogators what he thought they wanted to hear, but that release never happened. If Khadr had been imprisoned in the United States, he would have been tried and either convicted or released long ago. But instead, Khadr has been held without trial on a secluded prison camp in Cuba for nearly a decade with little opportunity to defend himself.
Human Rights First has been observing the military commission hearings since their inception in 2002. Repeatedly, our observers have been astounded by the injustices, inefficiency and wholesale fiasco that many of the inexperienced and legally questionable commissions' proceedings produce.
That's partly because the commissions are so new - created by a law passed in 2009. The first military commission system, created by the Bush administration, was ruled unconstitutional by the U.S. Supreme Court in 2006. As a result, there's is almost no legal precedent to guide commission judges. The Military Commissions Manual, meanwhile, was only issued in late April - on the eve of Khadr's first pretrial hearing. The resulting confusion offers yet more opportunity for Khadr and anyone else convicted in a military commission to challenge their convictions on a broad range of legal grounds. Decisions on the prisoners' fate will be delayed that much longer.
There's another reason that this whole military commission system leaves me scratching my head: the extravagant expense involved. Keeping the Guantanamo Bay prison camp and military commission system open for fewer than 180 detainees costs taxpayers a lot of money. Construction and renovations to the camp have cost about $500 million so far; operating costs are another $150 million every year. The Washington Post recently estimated the bill, much of which has been paid to KBR and Halliburton, has so far exceeded $2 billion. Just the cost of flying dozens of journalists and observers like myself, plus all the lawyers involved, to and from Guantanamo to attend each of these hearings so the government can claim that they're "public" is astronomical. Meanwhile, federal courts and secure prisons in the United States are readily available and already paid for. And the government doesn't have to cover anyone's costs to get there.
I'm in Guantanamo Bay this week to observe the end of Khadr's pretrial hearings and the beginning of his trial in a military commission. But I doubt I'll gain any better understanding of why the Obama administration chose to try him there.
Update: Lt. Col. Jon Jackson, Omar Khadr's military defense lawyer, just gave a quick news conference in the sweltering airplane hangar here at the Gitmo base. (Only prosecutors are allowed to use the indoor air-conditioned rooms for press conferences.) "This case will echo in the future," Jackson said, noting that it will set a sad precedent for the United States' right to try a child soldier as a full-fledged war criminal.
It will also create a lasting legacy for the Obama administration."Forever the Obama administration will be remembered as starting the military commissions with a case of a child soldier," Jackson said.
Somehow that doesn't seem like the sort of legacy Obama had in mind when he vowed to close the Gitmo prison down on his first day in office.
As lawmakers in Congress duke it out over whether the Times Square bombing suspect ought to have been read his Miranda rights, it's worth considering the real-life impact of reading a suspect his rights - and of withholding them. The consequences of not reading rights to terrorist suspects that we later want to prosecute are now on display at the military commissions in Guantanamo Bay, Cuba. And it's not looking good for the government.
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.
Today's hearing in the military commission case of Omar Khadr was once again fraught with confusion, complication and delay. This time the problem appeared to be the military judge's refusal to question military procedure - even when it might be causing significant harm to the defendant.
Opening statements today in the suppression hearing in the Khadr case lay out how both sides plan to argue the motion, which aims to stop the government from using any confessions by Omar Khadr to any of the crimes alleged.
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