October 8, 2008

Mock justice

Why Omar Khadr should walk free

by Brent Erickson, Dave Oswald Mitchell

The Dominion - http://www.dominionpaper.ca

[cc 2.0]Graffiti protesting treatment of prisoners at Guantanamo Bay. Omar Khadr has been held in the US prison since his capture in 2002, when he was 15 years old. Photo: Walt Jabsco

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“The shaming of one Canadian has shamed all Canadians.”

-Liberal MP Paul Szabo, apologizing in the House of Commons for the RCMP’s treatment of lobbyist and arms dealer Karlheinz Schreiber. (Schreiber’s pants had fallen down while RCMP officers led him, in handcuffs, to a waiting cruiser after his testimony before the Commons Ethics Committee.)

You’re 15 years old, in the company of hardened militants who are associates of your father. A foreign army has invaded the country and unleashed a massive bombing campaign. Soldiers come knocking one morning and demand entry. The men around you refuse and a firefight ensues, culminating in the occupying air force bombarding the compound you’re in, killing everyone but you and one other person.

What happens next is disputed. As the soldiers enter the bombed-out compound a grenade is thrown and explodes near one of them. He later dies of his wounds. Based on witness reports, the thrower could have been one of three people: you, the man lying beside you, or a U.S. soldier outside the compound wall.

The man beside you is shot by an advancing soldier as he reaches for an AK-47 lying beside him. Cowering in the corner, you, in turn, are shot twice in the back. As shock sets in, you plead with the soldiers to kill you, to finish the job.

You are Omar Khadr. Your ordeal has barely begun.

~

It was a temporary but extremely telling setback. On June 4, 2007, U.S. military judges presiding over the Bush Administration’s hastily convened military tribunals threw out all war crimes charges against the only two Guantanamo prisoners facing trial at the time. One of the two prisoners was Omar Khadr, who had been charged with “murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, providing material support for terrorism and spying.” Khadr was 15 years old at the time of his capture.

The judge presiding over Khadr’s case determined he had no jurisdiction over detainees who had been designated “enemy combatants” (as Khadr and many other detainees were labelled in their Combatant Status Review Tribunals in 2004) rather than “alien unlawful enemy combatants,” the more precise term Congress had used in the legislation authorizing the tribunals. The Bush Administration argued that the difference between an “enemy combatant” and an “unlawful enemy combatant” is purely semantic. But is it?

Merely being an “enemy combatant” is not illegal, even according to the laws the U.S. introduced to retroactively prosecute those captured in Afghanistan and elsewhere. What the dismissal of charges introduced into the process was the suggestion that, even if Khadr had thrown a grenade and even if the fact that he was a child soldier who was tortured into confessing was somehow overlooked, the act of resisting an attack by an occupying army alone might not be cause for prosecuting him for war crimes.

As Dave Lindorff, writing for Pacific Free Press, has pointed out, “a fighter killing another fighter during warfare is not the act of a ‘terrorist.’ It may be brutal and it may be tragic, but it is the act of a soldier. That soldier, if captured, is not a criminal, but a POW. Moreover, if he is a child, the Geneva Conventions . . . require that he be treated not as a POW but as a victim of war.”

Khadr’s case, remember, was one of the first the Bush Administration chose to prosecute - a supposed “slam-dunk” designed to pave the way for future victories in the war on terror. The temporary dismissal of charges against Khadr, however, exposed the tribunal for what it was: a politically driven show trial devoid of legal or moral legitimacy.

Khadr’s victory was, of course, short-lived. On September 24, 2007, a hastily convened three-member panel of the U.S. Court of Military Commission Review overruled the decision to throw out the charges, reinstating terrorism charges against Khadr and Salim Hamdan, the other Guantanamo prisoner to have had his charges thrown out. In its ruling the appeals court parroted the Bush Administration line that the distinction between “enemy combatant” and “unlawful enemy combatant” was purely semantic, and that the military still had the authority to try those it had designated “enemy combatants.” The decision meant that prosecutors could move forward with their case against Khadr and other prisoners without having to convene new status tribunals.

Khadr now faces life in prison if convicted. And if acquitted? The U.S. maintains it would still have the right to detain him indefinitely, until such time as America’s war on terror is deemed to have ended.

So what, exactly, is the Pentagon’s case against Omar Khadr? In all the ink that has been spilled covering Khadr’s story, the Kafkaesque absurdity of the entire situation is easily lost in the accumulation of disputed details. With the approach of Khadr’s October trial date, timed to be rushed to completion before President George W. Bush leaves office early next year, Canadians would do well to review the sordid details of Khadr’s story - particularly in light of our own government’s shameful role in perpetuating the torture and abuse of Guantanamo’s youngest detainee.

The firefight in Ab Khail

It happened one morning in July 2002, when U.S. intelligence picked up activity on a satellite phone belonging to an al Qaeda field commander. Before long, U.S. and Afghan forces had traced the call to a small compound in the mountain town of Ab Khail, near the border with Pakistan. When those inside refused to submit to a search, the U.S. patrol began exchanging fire with four or five men armed with grenades and assault rifles.

After air strikes were called in and multiple bombing raids had all but levelled the mud-brick huts, a small assault force entered the compound on foot to sweep out the remaining fighters. Someone in the compound began firing at the soldiers, who quickly took cover. What happened next only became clear in February of this year, after a 2004 Criminal Investigation Task Force witness report was accidentally released to the media.

The witness interviewed in the report, the soldier who shot Khadr, is identified only as OC-1. His description of the throwing of the grenade that would precipitate Khadr’s murder charge reads as follows:

“As the fire continued, [OC-1] saw a hand grenade ‘lobbed’ over the corner wall that lead [sic] into the alley. He estimated the wall was about eight feet tall. The grenade went over his head in an arching pattern. The grenade traveled approximately 30 to 80 feet with the distance depending on how deep from in the alley the grenade was thrown. The grenade landed and [sic] estimated 30 to 50 feet from the opening of the alley.”

Though OC-1 did not hear the grenade explode, it is alleged that this was the weapon that fatally wounded Sgt. Christopher J. Speer. And Omar Khadr stands accused of wielding it.

It was initially alleged that Khadr was seen to have thrown the grenade, but no eyewitness reports have yet surfaced to corroborate this claim. Indeed, the operation’s military commander, identified only as “Col. W,” initially reported that the man suspected of throwing the grenade had been killed in the fighting. Early this year, however, Khadr’s lawyers revealed that Col. W’s report had been altered months later to read that the suspect had merely been “engaged” rather than “killed,” provoking an accusation that the U.S. military was “manufactur[ing] evidence to make it look like Omar is guilty.”

After the grenade sailed over his head, OC-1 heard moaning coming from the back of the compound and saw a man lying on the ground within reach of an AK-47. Seeing that the man was moving, OC-1 shot him once in the head, stirring up a cloud of dust. Once the dust had settled, OC-1 “saw a second man sitting up facing away from him leaning against brush. This man, later identified as KHADR, was moving.” Khadr had by then been wounded in the head, eye, and leg by shrapnel, presumably from the earlier aerial bombardment or perhaps from a U.S. grenade. The 15-year-old was wounded and unarmed, and was facing away from the approaching soldier. According to his report, OC-1 shot Khadr twice in the back.

OC-1 stated that he had been the only American to fire his weapon since entering the compound, although he admitted that at least one American grenade had been thrown into the compound from outside the walls after the team had entered. Khadr’s lawyer, Bill Kuebler, has argued that this raises the possibility that the grenade that killed Speer had been thrown by a U.S. soldier, rather than by anyone inside the compound. Kuebler has indicated that he will present forensic evidence at Khadr’s trial to corroborate this claim.

Approaching the wounded Khadr, OC-1 reported that he “tapped” the motionless boy’s wounded eye to confirm that he was alive. Khadr was then given on-site medical attention, during which time he repeatedly asked the medics and soldiers to kill him. He was then loaded aboard a military helicopter and flown to the detention centre at Bagram Airbase. When he regained consciousness several days later, Khadr claims that the first thing he was told was that he “had killed an American with a hand grenade.”

“Several times, he forced me to [redacted], which caused me [redacted] due to my [redacted].”

Six years of torture and abuse

Some basic facts of Omar Khadr’s story are not disputed. His father was an Egyptian-Canadian aid worker who had ties to numerous militant leaders including Osama bin Laden. He was a suspected member of al Qaeda, and was killed in a raid by Pakistani troops in October 2003. On the day the U.S. army came knocking, Omar Khadr, who speaks English, Pashto, and Arabic, had been loaned out by his father to act as an interpreter for Abu Laith al-Libi, an al-Qaeda leader. (The young Khadr had been living with his mother at the time and had been forced to hide behind a burka, disguised as a girl, to escape scrutiny. Upset by having to disguise himself as a girl in order to be safe, Khadr had asked to live with men in the village instead.) Video footage found at the compound shows Omar Khadr playing with a detonator cord while other men assemble explosives. But none of these facts make him a terrorist, nor do they justify the treatment he has endured since his capture.

As Human Rights Watch points out in their 2007 report “The Omar Khadr Case: A Teenager Imprisoned at Guantanamo,” “Both US and international law requires governments to provide children (persons under the age of 18) with special safeguards and care, including legal protections appropriate to their age.”

“While children should be held accountable for their crimes,” the report continues, “international law requires that they be treated in a manner that takes into account their particular vulnerability and relative culpability as children, and focuses primarily on rehabilitation and reintegration.” Surveying the litany of abuses Omar Khadr has endured in the six years since his capture, it is hard to imagine a treatment regimen better designed to destroy utterly an adolescent’s chances for “rehabilitation and reintegration.”

One might think that Khadr’s youth would have served as a mitigating factor that would have limited the extent of his mistreatment, but two factors conspired to ensure Khadr would be shown no mercy. First, he was considered an “intelligence treasure trove” because of his family’s high-ranking contacts in al Qaeda (Khadr spent part of his childhood living alongside Osama bin Laden himself, and playing with the bin Laden children). In an extra-judicial detention system obsessed with “ticking-time-bomb” scenarios and “actionable intelligence,” this made him an irresistible candidate for torture. Secondly, Khadr was accused of killing a U.S. soldier, which immediately earned him the animosity of almost every other U.S. soldier he encountered. Together, these factors virtually guaranteed that he would receive the sort of “gloves-off” treatment from his captors and interrogators that Bush and then-Secretary of Defense Donald Rumsfeld had directly called for.

At the Bagram Theater Internment Facility, where Omar Khadr spent the first two months of his detention, his interrogators barely waited until he had regained consciousness before they went to work. He was often carried into the interrogation room on a stretcher and was regularly denied pain medication prior to and during his interrogations. He was subjected to barking dogs, threatened with rape, denied bathroom privileges, singled out for all-night cleaning duty long before his wounds had healed, and hung up by his wrists in doorways for hours at a time.

Further abuses detailed by Khadr in a sworn affidavit have been blacked out by military censors. For instance, Khadr’s censored description of his first interrogation reads as follows:

“During this first interrogation, the young blond man would often [redacted] if I did not give him the answers he wanted. Several times, he forced me to [redacted], which caused me [redacted] due to my [redacted]. He did this several times to get me to answer his questions and give him the answers he wanted. It was clear that he was making me [redacted] because he knew that [redacted] and he wanted me to answer questions. I cried several times during the interrogation as a result of this treatment and pain.”

Whatever the specifics, such treatment quickly had its desired effect. Khadr, who was once described by a teacher as “very smart, very eager and very polite,” realized almost immediately that “the more I answered the questions and the more I gave him the answers he wanted, the less [redacted] on me. I figured out right away that I would simply tell them whatever I thought they wanted to hear in order to keep them from causing me [redacted].” A U.S. official quoted in an Amnesty International report cites Khadr as an example of a prisoner “singing like a bird” out of fear of abuse by U.S. interrogators.

Khadr estimates that he was interrogated 42 times over a 90-day period while at Bagram. He was then transferred to Guantanamo, where many of the torture techniques he had already encountered were soon to be enshrined as official U.S. policy, authorized by President Bush himself. At Guantanamo, Khadr was beaten; drugged; ridiculed; subjected to sleep deprivation; subjected to solitary confinement and sensory deprivation; choked repeatedly to the point of passing out; force-fed and beaten after he participated in a detainee hunger strike; and, in one oft-cited incident, denied the use of a bathroom until he lost control of his bladder and was used as a “human mop” to clean up the puddle of urine, then refused a change of clothes for two days. He was also threatened with extradition to Israel, Egypt, Jordan or Syria where he would, he was led to believe, be raped and tortured.

This is, again, only a partial list, as the U.S. military has refused to release details of many of the “enhanced interrogation techniques” used on Guantanamo detainees, and has censored detainee communications that give details of this treatment, citing concerns that terrorists might use the information to prepare themselves to better resist U.S. interrogation methods.

The psychological effects of such a harsh regimen of torture and abuse on someone of Khadr’s age were entirely predictable. “Soon after Omar arrived at Guantanamo,” writes Jeff Tietz in his Rolling Stone exposé, “The Unending Torture of Omar Khadr,”

“he began exhibiting the kinds of dissociative [sic] symptoms most adolescent psychiatrists would have expected. He was startled to the point of disorientation by small changes in his surroundings. He had fainting spells. He cried frequently. [ . . . ] His appetite diminished; he took on the appearance of the permanently malnourished. He entered what clinicians call a state of hypervigilance: He started thinking he might be attacked at any time - without reason, his heart rate would jump, and he would sweat and hyperventilate. He began hearing sounds - screams, bombs, things he could not identify - when the cellblock was silent. Every week or so, a self-generated rage possessed him - an experience wholly foreign to his character. For long periods he felt no emotion at all. He started blaming himself for the things that had happened to him; he became deeply ashamed of what he had suffered. He developed a pronounced twitch on the left side of his face, of which he remained unaware.”

Meanwhile, Khadr’s ordeal dragged on with no end in sight. It wasn’t until three years after reaching Guantanamo that Khadr was even charged with a crime. He was not provided access to legal counsel until late 2004, more than two years after his transfer. In over six years of detention, he has been allowed to speak to his family by telephone only once and his family has never been permitted to visit him.

The London-based Coalition to Stop the Use of Child Soldiers has been closely following the case of Omar Khadr, the world’s highest profile child soldier. According to Lucia Withers of the Coalition, Khadr “should have been treated primarily as a child and a victim of adult illegality. His treatment should have focused on maximizing his potential for successful reintegration. His treatment, including indefinite military detention, lack of access to family and lawyers, lack of judicial review and allegations that he has been ill-treated, have been manifestly contrary to these principles.” The Coalition is calling for Khadr’s age to be taken into account before judgment is passed in his case, and for his punishment, if he is found guilty, to be consistent with international principles on juvenile justice.

Khadr’s disclosure of torture to Canadian officials cost him dearly.

“They had no sympathy”

One of the ugliest questions to emerge from the released documentation of Canada’s interviews with Khadr is the question of why Khadr was “softened up” with three weeks of sleep deprivation, with the full knowledge of Canadian officials, before their meeting with him. Was it because Canadian officials were actively participating in his interrogation in hopes of bolstering the U.S. case against him, rather than visiting “to ascertain Khadr’s well-being,” as the government claimed at the time, and as Khadr’s rights as a Canadian citizen should have warranted? Assisting with the U.S. prosecution, indeed, appears to have been the primary objective of these meetings.

The Canadian government has repeatedly claimed that it “sought and received assurances” that Khadr was being humanely treated in Guantanamo. The classified documents released in July of this year under court order, however, expose this claim as deceptive: whatever “assurances” they may have received, Canadian officials knew very well that Khadr was being subjected to harsh and inhumane interrogation methods, and didn’t particularly seem to care. They neither protested his treatment nor sought his extradition to Canada. Indeed, as is now clear, they actively participated in his interrogation.

The reports of these interrogation sessions reveal that Canadian officials had full knowledge that Khadr had been subjected to what is known as the “frequent flyer program,” a sleep deprivation method, “in an effort to make him more amenable and willing to talk” prior to a visit with now-retired Canadian foreign service officer Jim Gould in 2004.

“For the three weeks before Mr. Gould’s visit,” reports R. Scott Heatherington, Director of the Canadian Foreign Intelligence Division, “Umar [sic] has not been permitted more than three hours in any one location. At three hour intervals he is moved to another cell block, thus denying him an uninterrupted sleep and a continued change of neighbours. He will soon be placed in isolation for up to three weeks and then he will be interviewed again.”

The Foreign Affairs documents go on to state that on several occasions, Khadr cried uncontrollably, and that he removed his shirt to show interviewers bullet wounds he had suffered to his back and shoulder during the firefight in Afghanistan, some of the wounds still leaking blood. According to a sworn affidavit from Khadr,

“I showed them my injuries and told them that what I had told the Americans was not right and not true. I said that I told the Americans whatever they wanted me to say because they would torture me. The Canadians called me a liar and I began to sob. They screamed at me and told me that they could not do anything for me. I tried to cooperate so that they would take me back to Canada. I told them that I was scared and that I had been tortured.

“They came back three more days but I did not sob because they had no sympathy.”

Heatherington’s report notes coldly, “Mr. Khadr’s allegations and protestations . . . did not ring true.”

Damningly, however, Gould’s very own observations actually lent weight to Khadr’s allegation of torture: in one report Gould expressed frustration with the “inexperience and lack of a goal” of Khadr’s primary interrogator, who “seemed to be trying to intimidate Umar or force Umar to talk rather than trying to cajole him into cooperation.” There is no indication that Gould investigated these suspicions further or lodged any complaint with the Americans about what he observed.

Khadr, it must be remembered, took a major risk in disclosing his mistreatment while still in the custody of his torturers, and his disclosure, so quickly dismissed by Canadian officials, cost him dearly: “After the Canadians left and I told the Americans that my previous statements were untrue, life got much worse for me.” Khadr’s description of the “much worse” punishment he suffered for disclosing his torture is almost entirely redacted.

Canada has consistently refused to call for Khadr’s release. Indeed, as Sean Fine pointed out in the Globe and Mail in March 2008, Canada “is the only Western nation to give the United States carte blanche with one of its nationals at Guantanamo. Britain, Australia, Sweden and Germany fought to repatriate their nationals - adults, all of them. And Canada let a juvenile languish.” Indeed, all other western countries not only tried, but succeeded, in getting their nationals released from Guantanamo. How hard would it have been for Canada to do the same?

Meanwhile, Khadr has not been visited by Canadian officials since 2004, after his attorneys sought and won a Federal Court injunction to prevent the Canadian Security Intelligence Service and the Department of Foreign Affairs from interrogating their client again.

“Legal anarchy”

“What is new about President Bush’s order [‘Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism,' November 13, 2001] is that it radically erases any legal status of the individual, thus producing a legally unnamable and unclassifiable being. Not only do the Taliban captured in Afghanistan not enjoy the status of POWs as defined by the Geneva Convention, they do not even have the status of persons charged with a crime according to American laws. Neither prisoners nor persons accused, but simply ‘detainees,’ they are the object of a pure de facto rule, of a detention that is indefinite not only in the temporal sense but in its very nature as well, since it is entirely removed from the law and from judicial oversight.”

Giorgio Agamben, State of Exception

While his lawyers are working to establish a rehabilitative program that would see Khadr returned to Canada under a program of extensive rehabilitation, monitoring and limited family contact, neither the U.S. nor the Canadian government has publicly expressed any support for such a plan. Prime Minister Stephen Harper insists that there is no other option for Khadr than to continue with the controversial U.S. military tribunals. “Frankly, we do not have a real alternative to that process now to get to the truth about those accusations, and we believe that this process should continue,” the PM told reporters at the G8 summit in Japan in July.

Such faith that anything resembling justice can yet emerge from Guantanamo puts Harper among a very small number of neo-conservative Pollyannas who maintain that the Guantanamo “process” should be allowed to work. As early as June 2007, the editorial in the Toronto Star condemned the “legal anarchy” of a process in which “Washington appears determined to rewrite the rules until it manages to secure a conviction.” The Globe and Mail, meanwhile, pointed out in its editorial of July 10, 2008, “The issue is not, as Mr. Harper implies, that Canada’s justice system lacks the legal tools to deal with Mr. Khadr. It is that, by Canadian notions of fair process, the U.S. case against Mr. Khadr would unravel.”

Particularly since the release of the Canadian interrogation footage, Canadian public opinion has increasingly shifted to favour bringing Khadr into the Canadian justice system. As of press time, it remains to be seen whether public pressure can force the Canadian government to abandon its hard-line stance, or whether this quasi-judicial prosecution of a Canadian child soldier based on a confession extracted under torture will be allowed to proceed.

Meanwhile, whatever crimes Khadr may have committed, the list of crimes committed against the youth by those who have held him in legal limbo for the past six years is surely much longer. Justice for Omar Khadr requires not just a free and fair legal process in which the now-21-year-old can defend himself against the serious charges he faces. Justice also requires that those who have manipulated and abused him for their own political ends also be held to account. If prosecuting war crimes is our intention, then let’s not limit ourselves to the war crimes of children and foot soldiers.

Perhaps fearing precisely such an outbreak of judicial zeal, the Bush Administration saw to it that the same Military Commissions Act of 2006 that stripped Guantanamo detainees of their habeas corpus rights and ruled coerced testimony to be admissible against them also gutted the War Crimes Act of 1996 in order to protect U.S. policy-makers (from Bush and Cheney on down) from prosecution for war crimes.

In June of this year, Khadr responded to questions sent to him by CBC News in a handwritten letter, saying “I’m a peaceful person,” and asking the Canadian people to “give me a chance in life and don’t believe what you’ve heard, and believe what you see with your own eyes.”

Brent Erickson is an artist, activist and independent journalist based in Winnipeg. Dave Oswald Mitchell is the editor of Briarpatch Magazine, where this article was originally featured.

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