The Collapse of Omar Khadr's Guantánamo Trial
Hardly a day goes by without some extraordinary news from the Military Commissions, the system of "terror trials" conceived in the Office of the Vice President in November 2001, and their days now seem to be as numbered as those of the Bush administration itself.
Following the outspoken resignation of former prosecutor Lt. Col. Darrel Vandeveld and the Pentagon's desperate decision to drop charges against five prisoners to prevent Vandeveld from testifying for the defense, the latest news to rock the Commissions is that the trial of Omar Khadr — a supposedly flagship case, along with that of the Yemeni Salim Hamdan, who received a surprisingly light sentence after a trial this summer — has been delayed until after the administration leaves office.
This is a bitter blow for the government, which has been pushing to prosecute Khadr for war crimes since 2005. Its first attempt failed, when the Supreme Court ruled that the whole enterprise was illegal, but after the Commissions were bandaged up by Congress and resumed their ghoulish existence in 2007, Khadr was once more put forward for trial.
This was in spite of the fact that his tenacious lawyers — both military and civilian — have questioned the very basis of the "war crimes" charges (which essentially transform combatants in war into "terrorists"), and have unearthed evidence (despite systemic obstruction) that Khadr may not have been responsible for the main crime for which he is charged (throwing a grenade that killed a US soldier). Focusing on the fact that Khadr was just 15 years old when he was seized in July 2002, they have also persistently pointed out the cruel folly, injustice and illegality of prosecuting a juvenile for war crimes, when the UN Convention on the rights of children in wartime, to which the US is a signatory, requires juveniles — those under the age of 18 when the alleged crime took place — to be rehabilitated rather than punished.
Last week, in pre-trial hearings, they reprised some of these arguments, and also sought access to seven interrogators, from various intelligence agencies, who, they insist, extracted coerced confessions from Khadr, who was severely wounded, while he was detained in the US prison at Bagram airbase in Afghanistan, before his transfer to Guantánamo. According to the lawyers, the information extracted from Khadr under duress was then used as the basis for interrogations at Guantánamo using more "sterile" and "benign" techniques, in much the same way that the administration has attempted to cover up its torture of Khalid Sheikh Mohammed and other "high-value detainees" in secret CIA custody by using "clean teams" of FBI agents to extract new confessions in Guantánamo.
As was revealed in Salim Hamdan's trial, the prohibition on the use of coerced evidence (which was only introduced after the Commissions' first incarnation was struck down by the Supreme Court, and is still allowable at the judge's discretion) may technically satisfy the absolute prohibition on the use of evidence obtained through torture, but it has the knock-on effect of effectively erasing the government's crimes from the record, while also allowing the authorities to obtain "clean" confessions from abused prisoners in a way that would shame all but the most vile totalitarian regimes.
Last week, Khadr's judge, Army Col. Patrick Parrish, deferred a decision on the defense's motion, but as Judy Rabinovitz, an observer for the American Civil Liberties Union, noted, he "did not appear impressed" by the prosecution's argument that "there 'needs to be a showing' by the defense that coercive interrogation practices were used," which otherwise were only "speculative." As Rabinovitz noted, touching on the burning issues of the suppression of evidence vital to the defense, which was highlighted in Mohamed Jawad's case by Lt. Col. Vandeveld, "This line of argument would not likely succeed in a regular military or civilian criminal court, in which the standard for discovery generally places the burden on the government to give the defense information that may assist the defense." She added that Col. Parrish was also not impressed by the government's assertion that even providing information about the seven interrogators, three weeks before the trial's scheduled start date of November 10, would be an "undue burden" on the government.
However, Col. Parrish's decision to postpone Khadr's trial until January 26, five days into the new administration, was prompted in particular by defense complaints about the government's attempts to obstruct an independent psychiatric examination of their client. Although this was first requested in May, it was challenged and resisted by the government in hearings throughout the summer, and as a result a psychiatric expert met Khadr for the first time on October 13. Requesting a postponement of the trial's start date, the defense pointed out that the expert would need time to establish a rapport with Khadr, and also argued that the delay in providing Khadr with a psychiatric evaluation was largely the government's fault. As Judy Rabinovitz explained, even when an independent expert had been approved, the prosecution "delayed in providing her the necessary security clearance, and has also failed to provide the defense with Khadr's psychiatric records."
Those who have been pressing for the young Canadian's release will now be hoping that the Canadian government (which is also a signatory to the UN Convention) will finally discover its spine, and will take advantage of the change of administration to demand his return to Canada, or that the new US government will refuse to proceed with the case. Barack Obama, who voted against the Military Commissions Act that revived the trial system in 2006, has pledged to abolish the Military Commissions, which he regards (along with the use of torture, the shredding of the Geneva Conventions, and the sidelining of the US Constitution and the Uniform Code of Military Justice) as key examples of the Bush administration's quest for "unchecked presidential power," and even John McCain, who voted for the legislation, may wish to transfer the ailing system to the mainland, and has already explained that he would repatriate Khadr if asked to do so by the Canadian government.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.
As published on CounterPunch, Antiwar.com, AlterNet and the Huffington Post.
See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo's shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military's shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan's trial approved, July 2008), A critical overview of Salim Hamdan's Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan's sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo's Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions' corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed's Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief's Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed's Plea Bargain: Trading Torture For Freedom (March 2009).
And for a sequence of articles dealing with the Obama administration's response to the Military Commissions, see: Don't Forget Guantánamo (February 2009), Who's Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama's First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No "Preventive Detention" (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama's Confusion Over Guantánamo Terror Trials (June 2009).
Posted in Barack Obama, Children in Guantanamo, Guantanamo, John McCain, Military Commissions, Omar Khadr
After this article was published on CounterPunch, I received the following message:
Dear Andy
Just a quick email to say how much I admire your tenacity in not letting the Guantánamo issue go. In the mainstream media it seems to be almost forgotten.
Chaos, shambles and farce seem to be the order of the day in Guantánamo. Hundreds of shattered lives over many years. Teenage boys crushed…
I hope in the not too distant future all this will be seen as incomparably more shameful than the McCarthy era and the WW2 Japanese internments.
Nigel B.
...on October 27th, 2008 at 11:58 pm
After this article was published, I received the following comment:
I have never written to a reporter/author before. However, I felt compelled to drop you a line and thank you for your reporting on the "trials" at Guantánamo. I recently ordered your book "The Guantánamo Files" and I look forward to reading it. Nice work Andy. All the best to you.
Spencer Spratley
I then wrote to Spencer, and received the following encouraging reply:
The mainstream media is not really covering the "trials" with any depth and I rely on your reporting for the latest, especially as it concerns the Canadian, Omar Khadr. And your reports about the military lawyers have been very enlightening and fascinating, to say the least.
...on October 30th, 2008 at 1:01 am
Homar from Texas says...
I read elsewhere that the charge against the boy was for trowing a grenade that injured, not killed, 2 American servicemen.
On another note, I'm a 9 year Marine Corps veteran and nothing angers me more than servicemen getting banged up badly and I quench for immediate revenge and retaliation but my love of American values and justice trumps all.
...on November 3rd, 2008 at 7:50 am
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