The trials of Omar Khadr, Guantánamo's "child soldier"
[ politics - november 07 ]
On July 27, 2002, so the story goes, a US Special Forces unit stationed in Khost, in south-eastern Afghanistan, received a tip-off from an Afghan villager that a group of al-Qaeda terrorists was operating out of a compound near Ab Khail, a small town in the hills near the Pakistani border. Although they found nothing there, one member of the unit, Sgt Layne Morris, decided to check another compound nearby. Taking five other soldiers with him, Morris spied, through a chink in the gate, five Arab men, all heavily armed. When they refused his call to surrender, he summoned reinforcements.
Forty-five minutes later, when the reinforcements arrived and Pashtu translators began attempting to negotiate with the men, they responded by firing their guns and hurling grenades. Wounded in one eye, Morris was evacuated by helicopter, but the battle continued for four hours, and the five men refused to give up even as American planes bombed the compound relentlessly. When the shooting finally stopped, the remaining soldiers - Sgt Christopher Speer and four others - entered the shattered compound, intending to "collect arms and intelligence." They were not expecting to find anyone alive, and were therefore caught off-guard when Omar Khadr, who was hidden between the remains of two buildings, apparently threw a grenade at them. Wounded in the head, Speer was also evacuated, but later died from his injuries at a military hospital in Germany.
"Within seconds," said Capt Mike Silver, who walked into the compound behind Sgt Speer, "we had him [Omar] pinpointed and we opened fire." Shot three times in the chest, Khadr dropped the pistol he was carrying, and when Capt Silver approached him, called out, "Shoot me. Please, just shoot me." Although a sergeant who was present noted later that "every US soldier who walked by Omar longed to put a bullet in his head," the unit's medic insisted on patching him up. It was an act of kindness that has rarely been repeated in the five years and four months since.
Transferred to a hospital at the US prison in Bagram airbase, north of Kabul, with chest wounds and shrapnel injuries to his head and one of his eyes, Khadr's interrogation began as soon as he regained consciousness. According to his own account, reported by Amnesty International, he "asked for pain medication for his wounds but was refused," said that "during interrogations a bag was placed over his head and US personnel brought military dogs into the room to frighten him," and added that he was "not allowed to use the bathroom and was forced to urinate on himself." Like many other prisoners, he was also hung from his wrists, and explained that "his hands were tied above a door frame and he was forced to stand in this position for hours." An article in Rolling Stone, in August 2006, added further details, noting that he was "brought into interrogation rooms on stretchers, in great pain," and was "ordered to clean floors on his hands and knees while his wounds were still wet." The rationale, according to an unnamed official cited by Amnesty, was to secure intelligence at all costs. He claimed that captured prisoners were so scared of abuse by US soldiers that they would talk without prompting. The prisoners "sometimes think we are going to cut out their livers," he said, citing Khadr as an example of a prisoner "singing like a bird."
It is not known at which point the US authorities realized who Omar Khadr was - the third of four sons of Ahmed Said Khadr, who had fought with Osama bin Laden in Afghanistan in the 1980s, during the US-sponsored mujahideen resistance to the Soviet occupation. Based in Canada after emigrating from Egypt in 1977, Ahmed Khadr was reportedly a financier for al-Qaeda, and had taken his family to live in a compound with bin Laden's family after the leader of al-Qaeda returned to Afghanistan in 1996. Once this information was registered, however, Omar's fate - as a significant "enemy combatant," to be held beyond the reach of the law - was sealed.
More crucially, it is not known at which point the US authorities realized that Omar, born on September 19, 1987, was only 15 years old when he was captured, although Rolling Stone reported that, when the Special Forces soldiers approached him after shooting him in Ab Khail, "they saw that he was just a boy. Fifteen years old and slightly built, he could have passed for thirteen." For those prosecuting the 'War on Terror', however, Omar's age was irrelevant. Dozens of children were held in Guantánamo, and, although few were treated as badly as Omar, only a handful - three even younger Afghan children - were ever segregated from the prison's adult population (in a separate block, Camp Iguana), and treated with something close to appropriate care.
Amnesty International suggested that, "because the USA is one of only two states that have not ratified the UN Convention on the Rights of the Child, which recognizes that children need special safeguards and care, it feels free to trample on the human rights of juveniles in its 'war on terror'", and this was confirmed by pronouncements from within the administration. At a press conference in April 2003, after the "child prisoners" story first surfaced, Defense Secretary Donald Rumsfeld pointedly described the juvenile detainees as "not children," and General Richard Myers, the chairman of the Joint Chiefs of Staff, said that they "may be juveniles, but they're not on the Little League team anywhere. They're on a major league team, and it's a terrorist team, and they're in Guantánamo for a very good reason - for our safety, for your safety."
As a result, Omar's torture continued with impunity in Guantánamo. On his arrival, in October 2002, just a few weeks after his 16th birthday, he was immediately subjected to a regime of humiliation, isolation and abuse - including extreme temperature manipulation, forced nudity and sexual humiliation - which had just been introduced in an attempt to increase the meager flow of "actionable intelligence" from the prison. He told his lawyers that he was "short-shackled by his hands and feet to a bolt in the floor and left for five to six hours," and that "occasionally a US officer would enter the room to laugh at him." He also said that he was "kept in extremely cold rooms", "lifted up by the neck while shackled, and then dropped to the floor" and "beaten by guards." In one particularly notorious incident, the guards left him short-shackled until he urinated on himself, and then "poured a pine-scented cleaning fluid over him and used him as a 'human mop' to clean up the mess." As if further humiliation was required, he added that he was "not provided with clean clothes for several days after this degradation."
Confirming its disregard for the rights of children, the administration proceeded, in November 2005, to designate Omar as one of 10 Guantánamo detainees to be tried by Military Commission. Under this new process, dreamt up by Dick Cheney and his senior counsel David Addington in November 2001, the detainees could be tried - and even sentenced to death - using secret evidence that would never be revealed to either the detainees or their government-appointed defense lawyers.
Omar's age did, however, make a difference to lawyers and human rights groups, who have maintained, ever since his case first came to light, that he should have been treated as a juvenile from the moment he was seized by US forces. They have also pointed out that the Military Commissions, which are grotesquely unjust when applied to adults, are doubly so when applied to juveniles, whether the children in question are "soldiers" or not. It would, indeed, be hard to imagine a situation that reflected more badly on the reputation of the United States as a nation established and administered under the rule of law than to prosecute a juvenile in a system that, rather than functioning as a beacon of justice, bore more than a passing resemblance to the show trials of Stalinist Russia.
Omar's lawyers, Muneer Ahmad and Rick Wilson, who run the International Human Rights Law Clinic at American University, first visited him in October 2004, following a crucial ruling in the Supreme Court in June 2004, when, in a landmark case, Rasul v Bush, the Justices ruled by six to three that the detainees had the right to challenge the legal limbo in which they had been held for nearly two-and-a-half years, demolishing, along the way, the administration's long-cherished belief that Guantánamo did not count as US territory.
Although the arrival at Guantánamo of Ahmad, Wilson, and dozens of other lawyers finally pierced the veil of total secrecy that had shrouded the prison since its inception, the administration's other response to the Supreme Court's ruling on the detainees' habeas rights was shockingly underhand. Instead of opening up to the US court system, those in overall charge of Guantánamo instigated a tribunal system to confirm that the detainees were "enemy combatants," and that they could therefore continue to hold them without charge or trial. To effect their aims, the tribunals - the Combatant Status Review Tribunals (CSRTs) - prevented detainees from being represented by lawyers, and, like the Commissions, relied on secret evidence obtained through torture, coercion or bribery.
Ahmad explained that he and Wilson took Omar's case on legal principle but also "to remind the world that this kid is there, that he is alive, that his life has value and meaning and that he's been thrown in a hole. It's our collective responsibility to treat him with the dignity that he deserves." He recalled that, when he finally met Omar, his first thought was, "He's just a little kid." As Rolling Stone described it, "Omar was gaunt and pale, in a state of everlasting exhaustion, his senses starved by solitude. He had large gunshot-wound scars on his back and chest, and smaller scars over most of his body, several parts of which still held shrapnel." "You feel a general protectiveness toward these folks just because they're kept without access to anyone," Ahmad added. "And because of Omar's age and lack of world experience, you feel that much more protective. You're conscious of not infantilizing him, but when someone is that young, you would be wrong not to recognize this. Our contention is that children are deserving of special protection - that's been our legal approach, and it's also been our ethos in our relationship with him."
Securing Omar's trust did not prove easy, primarily because suspicion and paranoia were built into the fabric of Guantánamo, and also because guards and interrogators did all they could to slander the lawyers - as Arab-hating Jews or homosexuals, for instance - or to suggest that cooperating with them would ensure that they remained in Guantánamo for life. Gradually, however, as Rolling Stone described it, "Omar revealed himself to be very shy and curious and, in most ways, still a child, with a child's sweetness and credulous charm." When the lawyers offered to get him something to read, "he asked for coloring books and car magazines and books with photographs of big animals," and when, after a break during a meeting, they asked him what kind of juice he wanted them to bring back, he said, "Just something weird."
More worrying, however, than these poignant demonstrations of the stunted growth of Omar's adolescent mind, is the psychological impact of indefinite detention. A number of medical experts, who reviewed the results of mental status tests administered by his lawyers, stated that he had been severely traumatized by his experiences. Dr Eric Trupin, who has conducted extensive research on the effects of incarceration on adolescents, explained, "The impact of these harsh interrogation techniques on an adolescent such as OK [Omar], who also has been isolated for almost three years, is potentially catastrophic to his future development. Long-term consequences of harsh interrogation techniques are both more pronounced for adolescents and more difficult to remediate or treat even after such interrogations are discontinued, particularly if the victim is uncertain as to whether they will resume. It is my opinion, to a reasonable scientific certainty, that OK's continued subjection to the threat of physical and mental abuse places him at significant risk for future psychiatric deterioration, which may include irreversible psychiatric symptoms and disorders, such as a psychosis with treatment-resistant hallucinations, paranoid delusions and persistent self-harming attempts."
In the three years since Ahmad and Wilson first met Omar, his isolation - and the perils to his young mind - have not diminished, and, although singled out for trial by Military Commission, he remains, like every other detainee, held in what appears to be an unending legal limbo, as the Commissions have stumbled from one legal setback to another. In April 2006, when he was briefly hauled up before his first trial, Omar read out a note that read, "Excuse me, Mr Judge, I'm being punished for exercising my right and being co-operative in participating in this military commission. For that, I say with my respect to you and everybody else here, that I'm boycotting these procedures until I be treated humanely and fair."
Omar did not have long to wait until his first trial collapsed. In June 2006, the Supreme Court ruled that the Commissions were illegal under US law and the Geneva Conventions, and highlighted the relevance of Common Article 3 of the Geneva Conventions, which forbids "cruel treatment and torture" and "outrages upon personal dignity, in particular humiliating and degrading treatment." Justice Anthony Kennedy even went so far as to warn the administration that "violations of Common Article 3 are considered 'war crimes,' punishable as federal offences, when committed by or against United States nationals and military personnel."
Scurrying back to its bunker, the administration seized on a comment made by one of the judges, Justice Stephen Breyer, who had said, "Nothing prevents the President from returning to Congress to seek the authority he believes necessary," and responded by drafting the Military Commissions Act (MCA). Passed by a comatose Congress last fall, this despicable piece of legislation reintroduced the Commissions and, for good measure, removed the detainees' habeas corpus rights that had been demanded by the Supreme Court in June 2004.
Duly revived in March this year, the Commissions skirted their first challenge, when the Australian detainee David Hicks accepted a plea bargain and dropped his well-documented allegations of torture at the hands of US forces in exchange for a nine-month sentence to be served in his homeland, but collapsed again in June, when Omar's case, and that of Salim Hamdan, a Yemeni who had worked as a driver for Osama bin Laden, were dismissed by the Commissions' military judges. In separate decisions, both Army Colonel Peter Brownback (for Khadr) and Navy Captain Keith Allred (for Hamdan) pointed out that the MCA had mandated them to try "illegal enemy combatants," whereas the tribunals that had made them eligible for trial - the Combatant Status Review Tribunals - had only declared that they were "enemy combatants."
After a petulant hiatus, in which the administration's language-shredding officials declared that the distinction was merely one of semantics (which it was not), the government declared that it would appeal the decisions, and was once more ridiculed when it was revealed that the appeals court in question - the Court of Military Commission Review, which was also mandated by the MCA - had not yet been established. Convened in August, in what the New York Times described as "a borrowed courtroom half a block from the White House," the appeals court duly decided that the Commissions' judges had the right to sweep away these inconvenient distinctions, and Omar's trial was rescheduled for November 8.
And so, last Thursday morning, as the sun rose over Guantánamo Bay, journalists, human rights activists, and, for the first time, a few hand-picked administration cheerleaders from organizations including the Heritage Foundation, crowded into a makeshift military courtroom to witness the government's latest attempt to fulfil a six-year old dream: securing the successful conviction of a "war criminal" in a court designed primarily by Dick Cheney and David Addington, which bears no resemblance to any court recognized in domestic or international law.
Omar's third trial began with the kind of unpredictable challenges that observers of the ad-hoc legal system have come to recognize from previous attempts to rewrite the law. His tenacious military lawyer, Lt Cmdr William Kuebler, who has traveled to Canada to publicize his client's plight, and, in the last few months, has described the Commissions as rigged, ridiculous, unjust, farcical and a sham, tore into the judge, challenging Col Brownback's independence, and arguing that he was too involved in the system to make impartial decisions. Referring to a comment that Brownback had made, in which he admitted taking "a lot of heat" over his decision in June, Kuebler forced the judge to fight back, admitting that he made the comments, but denying that anyone in authority had put pressure on him.
After a two-hour hearing, the much-vaunted trial turned out to be nothing more than an arraignment. To the dismay of the prosecutors, who had hoped to show a video, retrieved from the Ab Khail compound, that purportedly showed Omar making and planting roadside explosives, Col Brownback refused to allow the video to be shown, and postponed the trial to allow time for the defense to examine the new evidence.
The real reason that Col Brownback postponed the trial - without, in the end, ruling that Omar was indeed an "illegal enemy combatant' - was only revealed after the arraignment, when deputy chief defense counsel Mike Berrigan announced that, just 36 hours before the trial began, the lead prosecutor, Marine Corps Major Jeff Groharing, had informed Khadr's defense team of the existence of "potentially exculpatory evidence" from a "US government employee," who was an eye-witness to the gunfight in Afghanistan that led to Khadr's capture. As Carol Williams described it more bluntly in the Los Angeles Times, "The eye-witness' account contradicts the government version of events and could exonerate Khadr of the war crimes with which he is charged: murder, attempted murder, conspiracy, spying and material support for terrorism."
"It's an eye-witness the government has always known about," Lt Cmdr Kuebler explained to the press, adding that the disclosure was symptomatic of the underlying problem with a system that was "designed to produce convictions." He also asked, "How much other exculpatory evidence is out there behind the black curtain that we cannot see?" and Mike Berrigan added, "How we can be on the eve of a hearing to determine his status - and how we can have newly discovered evidence - is beyond me."
Further criticism came from Jennifer Daskal, senior counter-terrorism counsel at Human Rights Watch, who explained, "It is totally outrageous that the prosecution would try to push ahead with a hearing on whether or not Khadr was an unlawful enemy combatant, while all the time withholding from the defense potentially exculpatory information. Anyone who has ever gone to law school knows the fundamental legal and ethical rule - the prosecution cannot withhold exculpatory information from the defense."
Jennifer Daskal was correct to highlight the "fundamental legal and ethical rule" about exculpatory evidence, but its omission for five years in Omar's case is typical of the rigged and unjust system that Lt Cmdr Kuebler and other principled military lawyers - including Michael Mori, who defended David Hicks, and Charlie Swift, who lost his job for defending Salim Hamdan - have spent so long railing against. It is, moreover, not a problem that applies exclusively to the Military Commissions.
Just five weeks ago, an Army Major, who served on 49 tribunals at Guantánamo, made a sworn statement - included in an affidavit filed on behalf of another Guantánamo detainee, a Sudanese hospital administrator named Adel Hamad - in which he criticized the absence of exculpatory evidence in the Combatant Status Review Tribunals. Noting that any exculpatory evidence, which might have exonerated the detainees, was supposed to be presented separately, "as required in the CSRT rules," he explained that no exculpatory evidence whatsoever was presented in any of his 49 tribunals, and added that the only time he ever encountered exculpatory evidence was "by accident," when "some of the evidence presented by the recorder [whose role was "to generate the evidence" to present to the tribunals would contradict the allegations made against the detainee."
In the legal netherworld of Guantánamo, beyond US criminal law and the Uniform Code of Military Justice, the failure to disclose potentially exculpatory evidence for five years is, of course, no surprise. The administration's many shields - designed to prevent all mention of torture and ill-treatment, while securing convictions at all costs - rely, specifically, on the right to withhold classified evidence from the detainees and their lawyers, and, moreover, to impose protective orders shielding the identities of witnesses, interrogators and informants. Though little reported, the imposition of protective orders - described as "draconian" by Lt Cmdr Kuebler - has led to a situation whereby, as Carol Williams reported, "Affidavits sworn by bounty hunters in Pakistan who turned over more than 200 of Guantanamo's detainees in exchange for sums upwards of $5,000 are among the classified documents that neither defendants nor trial observers are allowed to see."
In such an environment, Omar is lucky that the exculpatory evidence was presented at all. As he returns to enforced solitary confinement once more, it's hard not to wonder whether finally, after 64 months of hideous imprisonment, his long journey to some sort of justice is finally near. But then I recall some of the most chilling words ever uttered by the administration: that, even if detainees are eventually acquitted in their military trials, they might be held indefinitely in Guantánamo anyway.