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.
On Wednesday, to the surprise of some spectators in the courtroom, a U.S. federal judge did the right thing: he followed the law.
Judge Lewis Kaplan had a clear choice before him: he could exclude the testimony of a government witness discovered via abusive CIA interrogation of Ahmed Khalfan Ghailani, or he could allow the government to introduce that testimony, in blatant violation of U.S. law. Ghailani, transferred from Guantanamo Bay to New York last year, is now on trial for allegedly assisting in the 1998 bombings of two U.S. embassies in East Africa.
In a U.S. federal court, testimony derived from a coercive interrogation is not admissible. A similar rule applies in the military commissions at Guantanamo Bay. Although judges there have more leeway, most military judges are equally principled and take the ban seriously. Torture-derived evidence is inadmissible for two reasons: to prevent U.S. authorities from engaging in torture, and because such evidence is inherently unreliable. International treaties similarly ban its use.
The government knew, of course, that this would be a problem, and it surely has plenty of other evidence against Ghailani or it wouldn't have transferred him to civilian court in the first place. After Judge Kaplan's ruling, Attorney General Eric Holder expressed his continued confidence in the case. Notably, four of his alleged co-conspirators in the bombings were tried and sentenced to life in prison back in 2001 - without the use of this particular government witness. Evidence introduced in that trial pointed to Ghailani as well.
Still, since Wednesday, commentators such as Liz Cheney and Jack Goldsmith have seized on Judge Kaplan's ruling to lament not the fact that Ghailani was thrown in a CIA black site for two years and likely tortured (the government refuses to address Ghailani's treatment in this trial but concedes he was "coerced"), but the fact that the judge has excluded the evidence that his interrogators squeezed out of him - or to claim the administration should never have given Ghailani a trial at all.
"If the American people needed any further proof that this Administration's policy of treating terrorism like a law enforcement matter is irresponsible and reckless, they received it today," announced Cheney after the ruling. Goldsmith, the Harvard Professor and former head of the Office of Legal Counsel Under President Bush, now writing on the new Lawfare blog, wonders "why the government is bothering to try Ghailani." Why not simply imprison him indefinitely?
Coming from Goldsmith, this is particularly disappointing. When he was at OLC, he had the courage to criticize his colleagues John Yoo and Jay Bybee for their twisted legal analysis that allowed them to institutionalize torture as U.S. policy. Now, rather than recalling that error as the source of the problem in Ghailani's trial today, he's criticizing the Obama administration for applying the rule of law at all.
Technically, Goldsmith may be right: the administration could just declare Ghailani an al Qaeda member and ongoing threat and hold him in military detention forever. That's the unfortunate consequence of the "war against al Qaeda, the Taliban and associated forces," which has no logical end. But as a matter of principle and policy, imprisoning people indefinitely without trial would be a disgrace, along the lines of what Goldsmith's colleagues at OLC sanctioned.
If there's anything the United States stands for -- or used to stand for -- it's that we don't throw people in prison without proof they've done something wrong.
Principle aside, it's just bad strategy. As General Petraeus has acknowledged, winning the war against al Qaeda and the Taliban is as much about winning over the local populations where they live as it is about U.S. military prowess. Throwing Muslims in prison for decades without charge or trial is hardly a good strategy. If, as national security experts tell us, al Qaeda's strategy is to present the U.S. war against terror as a war against Islam, indefinite detention of suspected Islamic insurgents without trial hands al Qaeda its most effective propaganda campaign on a silver platter.
Cheney and Goldsmith may be right that excluding a witness derived by torture will make the government's case against Ghailani more difficult. But in the end, a fair trial for a suspected terrorist in a respected federal court will do far more to defeat al Qaeda and its associates -- and to bolster the image of the United States in the world -- than will foregoing justice altogether.
Mel Goodman is a great American patriot. A former CIA and State Department analyst, he was one of just three former CIA analysts who testified against the nomination of Robert Gates to head the CIA in 1991, because of Gates' record of politicizing intelligence--a problem that has grown immerusably worse since his warnings went unheeded. Yesterday, Truthout published his most recent article, The self-inflicted wounds of 9/11, which is well reading in its entirety. He also appeared on a local Pacifica Radio program on KPFK (LA), Background Briefing, today. The article is highly recommended in its entirety, but I just wanted to share some excerpts and some thoughts.
The article begins with the fundamental irrationality--the vast miss-match and misdireciton between the the threat and our "response":
The attacks on Washington and New York City nine years ago extracted a terrible price in terms of blood and treasure. Unfortunately, the adverse US reaction to 9/11 has also extracted a terrible price with no end in sight. Although al-Qaeda is no longer a sophisticated terrorist organization capable of launching large-scale operations and is merely one of many jihadist groups based in Pakistan, the United States has thrown itself into the briar patch called Afghanistan.
Then the cost in lives and treasure:
Nearly twice as many Americans have died fighting wars in Iraq and Afghanistan than were lost in the 9/11 attacks. The total cost of these long wars will be in the trillions of dollars. When the United States invaded Iraq in 2003, the cost of oil was less than $25 a barrel; the price reached $140 a barrel in 2008 and, currently, the price is still three times the 2001 levels. The entire national security system has suffered as a result of the wrong-headed actions of the Bush administration in Iraq and the Obama administration in Afghanistan.
Obama's expansion of the madness:
President Obama inherited the war in Afghanistan, but last year he unwisely redefined and expanded it when he bowed to the demands of Secretary of Defense Robert Gates and the Pentagon to send more than 30,000 additional soldiers and Marines to Afghanistan. The president has defended this action as being part of the struggle against bin Laden and al-Qaeda, but we have been told authoritatively that there are only 50-100 al-Qaeda members in Afghanistan. In both wars, we have aligned ourselves with corrupt governments that are dysfunctional.
And the ridiculously outsized, astronomical costs:
These wars have been used to dramatically increase the size of the defense and intelligence budgets, which find the United States now spending more than the rest of the world in both categories. The $708 billion defense budget for FY 2011 is higher than at any point in our post-World War II history. In constant dollars it is 16 percent higher than the 1952 Korean War budget peak and 36 percent higher than the 1968 Vietnam War budget peak.
You might think that Obama is trying to get a grip on things. Think again:
It is noteworthy that General David Petraeus appeared yet again on the evening news last night, repeating his very real concerns and continued dismay over the planned burning of a Koran by Preacher Terry Jones. General Petraeus was emphatic in his denouncing the act, firmly believing that it will lead directly to increased American casualties: "General David Petraeus told NBC television that images of the Koran burning would be used by Islamic extremists to fuel anti-Americanism and harm the US mission in Afghanistan and other areas in the world. "We're concerned that the images from the burning of a Koran would be used in the same way that extremists used images from Abu Ghraib that they would in a sense be indelible", Petraeus told NBC. "They would be used by those who wish us ill, to incite violence and to inflame public opinion against us and against our mission here in Afghanistan, as well as our missions undoubtedly around the world, he added." Likewise similar concerns have now been voiced by General Ray Odierno, who recently stepped down as the ranking officer in charge of our military mission in Iraq. As of last night the F.B.I. has announced that a reaction to the burning of a Koran is imminent and the State Department has put American embassies and consulates on a full alert worldwide in expectation of their being targets of attack.
It is also noteworthy that in light of their current concerns, neither Petraeus or Odierno so much as uttered a passing reference to the controversy surrounding the planned construction of an Islamic Cultural Center in lower Manhattan. In light of this it's interesting to note the following. General Petraeus has a Ph.D. in International Relations from the Woodrow Wilson School of Public and International Affairs at Princeton University and General Odierno received a Masters in nuclear effects engineering and national security and strategy from the Naval War College. Thus a reasonable and well informed observer of political affairs would conclude, that in the midst of all the concern about the expected fallout from burning a Koran, both of these well educated and politically astute Generals would at least mention the planned construction project in lower Manhattan if it was even remotely related to issues of national security and safety. Yet, they didn't. Why because both of them know what many of the rest of us know as well, that it's not relevant or germane to what we can expect to be the follow on to the reckless folly that is scheduled to transpire this coming Saturday in Florida.
There are those among us who will continue to conflate the issues of burning a Koran and constructing an Islamic Cultural Center in their ill conceived and conceptually flawed argument as to how these issues relate one to the other or how both relate to the debate over national security and public safety. In trying to tie the two together they continue to reveal just how little they understand of the importance of the issue at hand, which is the burning a Koran on American soil by an American preacher for all the world to see. What we have here is a crass attempt to politicize one issue so as to distract the public from the other. In their silence on the issue of the Islamic Cultural Center, Generals Petraeus and Odierno, have effectively rendered this issue as something of little or no practical value in the current debate. It's time for those who are trying to use the "Mosque Controversy" as a foil or counterargument to the public concern with Preacher Jones' recklessness to realize the folly of their position and get on the right side of the issue once and for all.
Steven J. Gulitti
9/9/10
Sources:
Koran burning could amount to another Abu Ghraib: Petraeushttp://sify.com/news/koran-burning-could-amount-to-another-abu-ghraib-petraeus-news-international-kjjhkicfcda.html
Petraeus: Burning Qurans will undermine U.S. efforts in Afghanistanhttp://www.stripes.com/news/petraeus-burning-qurans-will-undermine-u-s-efforts-in-afghanistan-1.117486
The controversy surrounding the proposed and ill conceived burning of a Koran by a preacher named Terry Jones has devolved, to some degree, into an intellectual parlor game as to the rights of this preacher to do, untrammeled, what he pleases and the rights related to building an Islamic Cultural Center in the vicinity of Ground Zero. Lost in all of this intellectual exercise is the welfare of those Americans now serving in the armed forces overseas. Some would suggest that if Muslims have the right to build a religious and cultural institute in lower Manhattan, then Preacher Jones is justified in carrying out his burning of the Koran, as if the two were somehow conceptually equivalent as it relates to the potential fallout. Lost in all of this is the reality that while people have rights of freedom of speech and expression, those rights are in fact neither absolute nor boundless. Such rights are conditioned by an operative test as to what extent these actions fall within a society's accepted norms and fundamental mores. Both individual and group actions are viewed within the bounds of what rational people would consider reasonable in a civilized society. That's why we operate with common sense conditions on human action with the overall welfare of the population in mind, the prohibition of yelling fire in a crowded theater being an often cited example. The point is a very simple one, while as citizens we constitutionally have the freedom of speech and expression, those freedoms don't extend to or accommodate license and reckless behavior. Thus viewed against the social, political and legal realities of American society, one could only classify the intended behavior of Preacher Jones as that which has now gone beyond the pale of protected behavior and into the realm of unmitigated recklessness. Behavior that can only increase the threat level for Americans both at home and abroad.
By itself, the preacher's actions could be dismissed as the ranting and raving of just another maladjusted soul who seems prone to bizarre and anti-social behavior. But when that behavior puts the lives of Americans serving in the Middle East and Southwest Asia in jeopardy, then these actions are clearly at variance with the well being of both the nation's military and it's citizens. General David Petraeus has already raised the alarm that Preacher Jones' actions will increase the risk of attacks on Americans in Iraq and Afghanistan and protests of the planned burning have already materialized in the region. The General has drawn parallels with Abu Gharib and how the mistreatment of Muslim prisoners aided Al Qaida's recruitment efforts thereby directly adding to the number insurgents we had to face in both Iraq and Afghanistan. Like Abu Gharib, the burning of a Koran by a Christian preacher will provide images that directly help Islamic radicals in their recruitment efforts, the General said. Jones' intended act will undo much of the progress made in winning the hearts and minds of Afghanis and Iraqis as well as creating further disincentives for moderates in the region to align themselves with the American effort. The net affect of Preacher Jones' act of freedom of expression, if carried out, will most likely be Americans losing their lives so that this glorified storefront preacher can garner his fifteen minutes of fame. That's what's really at issue here and all of the rest of this intellectual gymnastics is both now misplaced, misconstrued and totally misses the point that when freedom of speech or expression crosses over to the reckless, then it need be proscribed for the good of the overall public. While people can certainly continue to discuss the pros and cons of Preacher Jones' actions, those who chose to do so are blind to the larger issue entwined within all of this and that is the safety of their fellow Americans. The time for the intellectual games has passed and the time for an advocacy of the rational and reasonable as it relates to this issue is now upon us .
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.
Today's report that the CIA possesses videotapes of interrogations of alleged 9/11 plotter Ramzi Binalshibh in a secret prison in Morocco is renewing attention to the government's abusive interrogations practiced in secret prisons around the world as part of its "war on terror." But U.S. officials are already saying that the tapes, which have not been publicly released, don't actually show any abuse.
"The tapes record a guy sitting in a room just answering questions," a U.S. official told the Associated Press, which broke the story.
That may be true. But even if the two videos and one audiotape of Bin al shibh's interrogation in Morocco show largely benign interrogations, that shouldn't distract attention from the fact that we know that many of the videotapes that the CIA did successfully destroy in 2005 documented serious abuse. Those destroyed tapes include 92 interrogation videos of two other alleged al Qaeda operatives, Abu Zubaydah and Abd al-Nashiri, both of whom were subjected by CIA operatives to a form of torture known as waterboarding - a controlled drowning intended as a death threat. Abu Zubaydah, we know from Justice Department memos and the diligent blogger Marcy Wheeler, was waterboarded at least 83 times in August 2002 alone.
And as Wheeler aptly points out today, we don't know what parts of those interrogations were not videotaped in that Moroccan prison, or elsewhere. (The AP has a helpful timeline of BinalShibh's custody in various CIA "black sites" here.) The former British captive Binyam Mohamed, Wheeler notes, has claimed that he was brutally tortured for months in that same Moroccan prison around the same time.
The latest set of tapes was accidentally discovered in 2007, tucked under a desk in the CIA's Counterterrorism Center, the AP reported today. The U.S. government twice told a federal judge that they did not exist.
Justice Department prosecutor John Durham is already investigating whether destroying the Zubaydah and al-Nashiri tapes was illegal. He's now also probing why the Binalshibh interrogation tapes were never disclosed. Durham is also tasked with a preliminary investigation into whether CIA interrogators broke the law by torturing, threatening and otherwise abusing terror suspects under their control. He has yet to release any of his findings.
Global warming is devastating Asia. With wildfires across Russia, monsoonal floods affectng 13 million people in Pakistan, and deadly landslides and flash floods in India and China, four of the continent's declared nuclear powers are being battered by extreme weather. Or, sure, we're not supposed to confuse weather and climate, we're not supposed to blame any particular weather event on climate change. But we're seeing record temperatures in Moscow never seen before--not just once, but over and over and over again. And that's just one of four countries suffering. At some point, there are simply too many weather events happening at once or too close togther in space and time, and the collection of weather events is no longer compatible with the climate that used to be. The climate has changed. And it will continue changing. That is what's happening in Asia right now. But not just in Asia. It's happening everywhere--Greenland, Bolivia, the United States. Everywhere.
But this isn't a diary about global warming. This is a diary about the war on terror, although it will take awhile to get there. Trust me. We'll get there.
AMY GOODMAN: Welcome to Democracy Now! Dr. Masters, talk about, first, what is happening in Russia.
DR. JEFF MASTERS: Well, in Russia, they're getting a heat wave unlike anything that's ever been recorded in that country. Certainly going back the last 130 years, when we had good records, and then probably going back as much as a thousand years, if you look at the historical records, there has never been heat like this in Moscow and over this huge area of Russia. To give you some idea of what we're talking about, back in 1920, Russia recorded its highest temperature in Moscow on record, 99 degrees Fahrenheit. That record has been broken five times just in the past two weeks. So this is unprecedented heat, not only for Moscow, but for a huge region of Russia and some neighboring countries, as well.
AMY GOODMAN: And talk about the effects in Russia from wildfires to what we're seeing, what, more than 300 more deaths in Moscow alone a day as a result of the heat, that also leads to terrible problems of pollution.
DR. JEFF MASTERS: Yeah, the combined effects of heat and then air pollution and then smoke from fires is a terrible killer. We saw in 2003, when we had a similar heat wave over France and most of Europe, the death toll reached over 40,000. And I think in Russia we're going to be seeing death tolls certainly in the tens of thousands from this heat wave, as well. The smoke, in particular, is causing a tremendous hardship on the people, and the elderly, in particular, in Russia.
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.
On July 5, Robert Cruikshank, aka "Robert in Monterey" aka "eugene", wrote a diary at Dkos, "We Were Right", about the folly of Afghanistan War. It began thus:
Nearly 9 years ago, on a late September afternoon in 2001, I joined maybe 150 other people at Westlake Center in Seattle to protest the looming war in Afghanistan.
It felt like screaming into the wind. Most passersby looked at us as if we had two heads. Others shouted at us, calling us traitors or terrorist-lovers. A few times a pickup truck with a big American flag on a pole mounted in the bed drove by and shouted at us. And this was in a city that, just a year and a half later, saw over 100,000 people march against the Iraq War.
The protest accomplished nothing. We didn't stop the invasion from happening or change many minds at all about the Afghanistan conflict. But as the war grinds on after 9 years, and as it becomes clear that it has been a failure, it's worth re-examining why we were right to protest it....
It was obvious to me that an invasion of Afghanistan would lead to a long-term occupation that would resemble the ill-fated Soviet invasion and occupation of the late 1970s and 1980s, and would needlessly kill Americans and Afghans alike.
Further, it seemed that an invasion of Afghanistan, as opposed to a surgical strike designed to capture bin Laden, would solidify a militaristic response to terrorism and open the door to future military adventures. Even I didn't imagine that Bush really would seek to invade Iraq, not in September 2001, even though it was already being planned - but that was how it played out, with the apparently "successful" invasion of Afghanistan softening the public to the big enchilada, the Iraq War.
Everything Robert wrote was true. But there was more. And the Wikileaks "Afghan War Diary" helps us understand the big picture, not so much by providing radically new information, but simply by documenting what was clearly inevitable at the time to those knowledgeable about the region.
To a very large extent, the most important thing about the diary is that it serves to underscore some basic truths, the denial of which have been central to our entire mindset and strategic framework of assumptions since 9/11. Three things in particular are significant:
"Keep in mind again, federal candidates, this was a war of Obama's choosing. This is not something the United States had actively prosecuted or wanted to engage in."...
"It was the president who was trying to be cute by half by flipping a script demonizing Iraq, while saying the battle really should be in Afghanistan. Well, if he's such a student of history, has he not understood that you know that's the one thing you don't do, is engage in a land war in Afghanistan? All right, because everyone who has tried, over a thousand years of history, has failed. And there are reasons for that. There are other ways to engage in Afghanistan."
Of course there were heads exploding on the GOP side. What else is new? This is what they signed on for when they decided they had to have a black RNC Chair, no matter what--just another bit of proof that racism makes you stupid. But consider what's happened on the Democratic/progressive side. As Glenn Greenwald points out, there's been far too much aping of Bush/Rovism.
Yes, it's true that we already were in Afghanistan. But it was still Obama's war of choice. It was up to Obama, and he freely chose to make Afghanistan the new focus of the GWOT, rather than calling the whole thing off as the counter-productive delusion--ala fighting fire with gasoline--that it actually is. It is Obama's war of choice, and it is historically idiotic--though by a few more thousand years than Steele seems to realize. So Steele was actually right on two counts.
It was, after all, Obama who proudly proclaimed that he was against "dumb wars", remember? And what could be dumber than going to war in the country where empires go to die? And so when Obama started saying that Iraq was the wrong war, and Afghanistan the right one, plenty of people were justifiably confused. And being confused--plus with John McCain looking to start WWIII with Russia (fergodsakes!)--most folks didn't try to figure things out too hard. Most simply assumed it was campaign window dressing, a defense against being called "weak", a promise easily morphed into something more sensible once he got into office, etc., etc., etc.
Well, of course, it turned out that Obama was even less of a progressive on foreign policy than just about anything else (on civil liberties, call it a tie). So, here to remind folks of what a real progressive alternative might look like, on the flip, I'm republishing a diary I first published at My Left Wing in 2005, and that I republished here on January 4, 2009, as "Crafting A Democratic Plan To Win The War On Terror".
As you read it, one thing should be abundantly clear: Unlike Obama's "plan" (whatever that may be), it's a plan based on ideas, not a self-defeating defensive posture of trying to not look weak. Real toughness lies in standing up for sound and moral ideas, rather than running away and/or pandering. As Greenwald wrote:
Generally, when progressives demand that Democrats be "tougher," what they mean is in defense of progressive policies, not in defense of endless war in Afghanistan. It'd be one thing if the DNC came out this forcefully in attacking Bush/Cheney Terrorism policies, or legal immunity for torture, or cutting Social Security while maintaining bloated defense spending, or a failure to stimulate the economy sufficiently, etc. But here, they're acting "tough" in order to stigmatize war opposition and equate questioning of American wars with cowardice and Troop disrespect. I don't quite think that's what progressives have in mind when they urge the Party to be more aggressive.
What should we be fighting for? My answer from 2005 is on the flip.
Last week, U.S. District Judge Henry H. Kennedy, Jr. released a forceful 36-page opinion in the case of a Guantanamo detainee that would ordinarily be shocking. Sadly, such opinions are now so common that, except for one news story and a few particularly alertbloggers, they get barely a mention in the news.
In his opinion, issued in May but publicly released just last Thursday, the Judge found that a young man from Yemen, seized at the age of 17, has been imprisoned in the United States detention center in Cuba for the past eight years without cause. Although five different times since his arrest officials reviewing his case said Odaini should be released, Obama administration lawyers argued against his petition for habeas corpus, insisting that because the Yemeni student had spent one night at the guest house of a fellow student’s family, and because he had a medical visa rather than a student visa (he said his father had gotten him a medical visa because it was cheaper), the U.S. government can lawfully continue to imprison him.
If that sounds bizarre, it’s not, really. Pursuant to the Obama administration’s interpretation of the Authorization for the Use of Military Force, or AUMF, it says it has the authority to detain indefinitely anyone, anywhere in the world who it suspects is affiliated with the Taliban, al Qaeda or associated forces. And if its position in the case of Mohamed Hassan Odaini is any guide, then it interprets that right very very broadly.
Odaini is one of many young men seized in the weeks and months after September 11, 2001 during raids on guesthouses in Pakistan. He has consistently claimed that he was a student at Salafia University who was invited for dinner at a fellow student’s home and spent the night there. But that home was also a guest house, and some al Qaeda fighters stayed there. Although none ever named Odaini as being connected to their cause, the United States insisted it can infer based on his overnight stay that Odaini was an al Qaeda fighter.
The other men seized in the raid corroborated Odaini’s story that he was a student with no ties to al Qaeda or terrorism. As Judge Kennedy notes in his opinion, U.S. government interrogators and officials, too, quickly came to believe Odaini’s consistent claim. Indeed, five different times, government interrogators or task forces independently determined that Odaini should be released. Each time, that recommendation was ignored.
Then in January, President Obama suspended the transfer of any detainees to Yemen, Odaini’s home country, after the attempted Christmas day bombing by a Yemeni national. At that point Odaini’s lawyer, who had until then assumed his client would be released, as recommended, resumed his petition for habeas corpus to the federal court.
In ruling on that petition, Judge Kennedy said that the evidence presented to the court “overwhelmingly supports Odaini’s contention that he is unlawfully detained.” Reviewing the evidence in painstaking detail, including Odaini’s and other detainees’ statements, plus summaries of interrogation and intelligence reports produced by the government, the judge himself seems shocked that the government would be arguing the lawfulness of Odaini’s detention based on the paucity of proof.
The government repeatedly “distort[s] the evidence,” writes Judge Kennedy, concluding that the only way to believe the government’s position is “if one begins with the view that Odaini is a part of Al Qaeda and searches for a way to believe that allegation regardless of its inconsistency with an objective view of the evidence.”
The judge concludes:
Respondents have kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody at such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to al Qaeda. Consequently, his detention is not authorized by the AUMF [Authorization of the Use of Military Force]. The Court therefore emphatically concludes that Odaini’s motion must be granted.
In concluding that Odaini’s detention “has done nothing to make the United States more secure,” Judge Kennedy may as well have been talking not only about this one case, but about the much broader problems caused by the government’s interpretation of the AUMF and international law. After all, indefinite detention at Guantanamo Bay and Bagram, the continued authorization of abusive interrogation techniques under Appendix M of the Army Field Manual, the prosecution of a handful of terror suspects by military commission, and the controversial drone attacks or “targeted killings” outside declared zones of conflict have all served to foment anger at the United States and been used to justify insurgent attacks. Meanwhile, none of those policies have been shown to have made the United States any more secure.
The administration appears not to be learning from past mistakes, however. Just as it refused to concede the case of Mohamed Odaini, it’s insisting that it maintains the authority to continue to detain indefinitely without trial some 48 more Guantanamo detainees who it has said cannot be tried yet are too dangerous too release – based on evidence that it acknowledges would not hold up in court.
Even more troubling is the administration’s continued detention of some 800 prisoners at the Bagram air base in Afghanistan, since the courts have ruled that those prisoners are not even entitled to habeas corpus review, as Odaini finally obtained here – eight years after his capture.
Last week, 15 former federal court judges urged Congress not to write a new detention law to authorize indefinite detention of suspected terrorists, because independent federal judges are best equipped to decide who’s detainable under the law.
The case of Mohamed Odaini is yet another reason to listen to them.
Update: I was thrilled to see this editorial in the Washington Post this morning pointing out that Odaini's case puts the lie to the still widely-held assumption that Guantanamo remains populated with "the worst of the worst" and urging Odaini's repatriation. Unfortunately, as the Post notes, the Obama administration's ban on transferring any Gitmo detainees to Yemen means Odaini is likely to stay stuck in prison even longer, despite Judge Kennedy's scathing criticism and determination that his detention is unlawful.
The D.C. Circuit Court of Appeals on Friday morning issued a stunning ruling: that the United States government may seize suspected terrorists outside the United States, send them to the U.S.-run Bagram detention center in Afghanistan, and thereby deprive them of the right to challenge their detention in federal court.
The question came up in the case of Maqaleh v. Gates, which involves two Yemenis and a Tunisian, one of whom was arrested in Thailand, and all of whom were flown from outside Afghanistan to Bagram by U.S. authorities and imprisoned there. They've been there, without charge or trial, for the past seven years.
The D.C. court relied heavily on the fact that these three men, all suspected of ties to terrorism, are being held in a battlefield prison in a theater of active war. But as American University law professor Steven Vladeck points out, the only reason they were "in theater" is because the U.S. government had decided to move them there. So this case stands for "the proposition that location of capture is less important than location of detention--and that, so long as the latter is in a zone of active combat operations, there will be no habeas."
The case isn't necessarily over, because the detainees could ask for rehearing or appeal to the Supreme Court. But in the meantime, it highlights the absurdity of the United States' claim that the entire world is a battleground and suspected terrorists seized anywhere can be held by the U.S. government as enemy belligerents without the opportunity to challenge that in an impartial federal court. Although the laws of war do allow detention of some belligerents captured on a battlefield in an international conflict, there's nothing in U.S. or international law that authorizes capture of alleged enemies anywhere in the world to be brought to a battlefield where the U.S. is fighting local insurgents, for purposes of their indefinite detention.
The United States continues, however, to detain more than 800 prisoners at Bagram, on very shaky legal ground. To be sure, the U.S. military does eventually offer them some form of a hearing to decide whether they're actually "belligerents" fighting U.S. forces. But as Human Rights First has pointed out before, the procedures in those hearings -- although improved during the Obama administration -- still don't come near providing real due process.
For one thing, the 800 + detainees at Bagram have no right to a lawyer. Although they are assigned a "personal representative" by the military to represent them, there are only about eight such representatives available to represent more than 800 prisoners, and none of them are lawyers. Meanwhile, their own ability to collect evidence and call witnesses is limited to whatever is deemed "reasonably available" by the military. On top of that, much of the evidence used to justify detaining the suspects has been classified; the suspects themselves never actually get to see it. So how can they defend themselves, or even inform their "personal representative" of the relevant facts, if they don't know what evidence is being used against them, or the credibility of whoever provided it?
In Boumediene v. Bush, the U.S. Supreme Court ruled that similar proceedings provided at Guantanamo Bay were wholly inadequate, and that prisoners there have a right to challenge their detention in federal court. Although the D.C. Circuit Court decision on Friday acknowledged this, it ultimately decided the case based on other considerations, such as the practical difficulty of providing habeas corpus rights to hundreds of detainees held in Afghanistan.
Setting aside the broader issue of who's a belligerent and who gets to decide, Friday's decision underscores the importance of the Obama administration providing a meaningful way for Bagram detainees to challenge their detention.
Improving those procedures isn't only a matter of the United States meeting its obligations under international law.It also has very practical implications.
The U.S. military has said repeatedly that its strategy in Afghanistan depends on winning the "hearts and minds" of the Afghan people. Only by providing legitimate public proceedings that afford detainees a meaningful ability to challenge their detention can the United States ever hope to win that critical battle.
The only thing that can really destroy us is us. We shouldn't do it to ourselves, and we shouldn't use fear for political purposes-scaring people to death so they will vote for you, or scaring people to death so that we create a terror-industrial complex."
The notion that the military would actively propagate falsehoods in order to stir up war is something which most morally upstanding citizens find too reprehensible to even consider. However, as Sherlock Holmes put it, "When you have eliminated the impossible, whatever remains, however improbable, must be the truth."
Salon's front-page subhead for Glenn Greenwalds's mid-week post after the underpants bomb scare, "Craving melodrama", put it perfectly:
The calls for Obama to act with more hysteria and panic every time Al Qaeda sneezes are just plain stupid
The immediate tactical purpose of terrorism is to terrorize. And every government everywhere in the world understands this. Responsible governments therefore act to minimize the spread of fear and panic. This is the only play that counters the terrorists' intent. Only governments who welcome expanded control over a frightened citizenry fan the flames of fear that the terrorists set. Such governments are in de facto collusion with the terrorists who attack their citizens, whether consciously or not.
So, tactically, Obama understands how to combat terrorism and is interested in doing so, while the GOP, still following the Bush/Cheney line, continues colluding with the terrorists, consciously or not.
Unfortunately, that's as far as it goes. Strategically, there is virtually no difference between Obama and the GOP. And that's why we're in big, big trouble.
If the immediate tactical purpose of terrorism is to terrorize, the strategic purpose is to initiate a cycle of attacks and disproportionate responses that increasingly angers the terrorists' intended constituency significantly more than the attacks themselves, gradually moving them from near-pariah status to the political vanguard. This is precisely what al Qaeda has done, first with modest success under Clinton, then with spectacular success under Bush, and now apparently with just as much success under Obama.
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