The Elephant in the Courtroom

No matter how hard the Military Commissions try they can’t escape the elephant in the courtroom. The five defendants in the 9/11 case were tortured by the CIA and the government is tying itself in knots trying to work around this fact.

In his press conference on the eve of the arraignment the Chief Prosecutor, General Mark Martens, tried to address this issue:

“Some have said that any attempt to seek accountability within the Military Commissions system must inevitably be tainted by torture… we acknowledge your skepticism, but we also say that the law prohibits the use of any statement obtained as a result of torture or cruel, inhuman or degrading treatment, and we will implement the law.”

Of course the law also requires the state to investigate allegations of torture – yet in the case of the five defendants being arraigned this hasn’t happened. That might explain some of our skepticism.
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Dudley Do-Wrong

Protest Bush Canada

Activists protest former President Bush's visit to Canada

Last week former President George W. Bush visited British Columbia, Canada, to give a speech at the Surrey Regional Economic Summit. He was reportedly paid $150,000 for his appearance.

Setting aside the fact that the Bush administration had much the same effect on America’s economy that the iceberg had on the Titanic, there is another good reason why President Bush was a very poor choice of speaker.

As President of the United States, George Bush ordered the torture of detainees in US custody.

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Maher Arar, Bradley Manning and the Sad State of the U.S. Justice System

Guest post by Chase Madar, a lawyer in New York. His next book, The Passion of Bradley Manning, will be published by O/R Books in the fall.

What the US government did to Maher Arar is certainly atrocious. But is our government’s treatment of Arar so very different from what it routinely does to its own citizens, minus the air travel and exotic outsourcing? After all, many of the atrocities that we have committed in the course of our Global War on Terror find easy analogs in our everyday “normal” justice system.

Take Omar Khadr, captured at the age of 15 in Afghanistan, tortured during interrogation and, after years of pretrial detention, convicted of a wholly invented “war crime”. This is surely an appalling persecution of a child soldier. But here in the United States we have young men doing life without parole for crimes committed when they were 13, and who have been treated no less roughly every step of the way. Is the Khadr prosecution consistent with American values? You bet. SEE THE REST OF THIS POST

High Stakes Poker at GTMO

This morning Omar Khadr pled guilty, at a Military Commission hearing held in Guantanamo Bay, to five charges: murder in violation of the law of war, attempted murder in violation of the law of war, providing material support to Al Qaeda, espionage and conspiracy.

Omar Khadr was only fifteen at the time of the incident out of which the charges derived. By the terms of the International Convention on the Rights of the Child he was, at worst, a child soldier. The crime of material support was not even on the statute books. The charge of espionage makes him the youngest spy outside of children’s fiction.

The action at the heart of the case – the detonation of a grenade that killed a US Army medic – has been characterized as a violation of the laws of war. Or, in plain English, a war crime. Many legal scholars are incredulous at this characterization.

International humanitarian law states that a civilian on a battlefield who picks up a weapon becomes a combatant. The penalty they pay is that they become a legitimate target for the opposing force. Khadr paid this penalty in full – he was shot twice in the chest and lost an eye to shrapnel.

The government case against Omar Khadr was a weak one. There were no eye-witnesses to the central event. Khadr’s ‘confession’ was tainted by his entirely plausible allegation that it had been elicited through coercion. The film of him assembling an IED could not be tied to an actual attack. In a real court this was far from a slam-dunk.

However, a disturbing pattern is beginning to emerge at the Military Commissions. Knowing that the odds are so heavily stacked against them and the sentences facing them so out-sized, defendants plead guilty out of desperation, grasping at the straws offered by the Prosecution.

Plea deals, while doubtless an efficient method for dispensing with cases quickly, do not always represent justice being done. They resemble more closely a high stakes game of poker – the defendant reviews his cards and then decides whether to bet on the hand he has been dealt or cut his losses by folding.

The added twist at the Military Commissions is that the house gets to make the rules and stack the deck. Khadr had already written to Judge Parrish expressing his lack of faith that he could receive a fair trial. It seems that, having studied his cards, he decided to fold after all.

AIUSA will continue to campaign against the Military Commissions system – which offer justice for neither defendents nor the victims of terrorist acts. You can take action today by going to www.amnestyusa.org/911trials and sending an email to President Obama or Attorney-General Holder calling for federal trials.

Khadr Trial Delayed Amidst Reports of Plea Deal

Yesterday, the military judge overseeing the flawed military commission proceedings against Omar Khadr, who has been in U.S. custody since age 15, postponed the start of the trial by a week. The trial is now scheduled to begin Monday, October 25th at Guantánamo.

The delay came amidst reports that negotiations are underway on a possible plea agreement that would avert the trial.  There is much speculation in the media about what the terms of the deal might be, and who so far has signed off on it.

While the trial might be coming to an end for Khadr, the obligation of US authorities to ensure remedy and reparation for any human rights violations that have been committed against him does not end here.

Also, the fact that the military commission system falls short of international fair trial standards is not changed by whether a plea deal is reached in Omar Khadr’s case.

Regardless of what happens with Khadr, Amnesty International will continue to call on the US to abandon the unfair and flawed military commissions and bring any Guantánamo detainee it intends to prosecute to trial in ordinary civilian federal court, in accordance with international fair trial standards.  Any detainee it does not intend to prosecute should be immediately released.

The trial of Omar Khadr began in August but came to an abrupt halt after his military defense lawyer collapsed on the first day.  The trial is flawed because it is not happening in a real court. Omar Khadr has been tortured, threatened with rape, and denied basic legal rights. Yet despite all that, his fate hangs outside a traditional judge and jury and rests with politicians and military personnel.

Amnesty International delegates have attended military commission proceedings conducted at Guantánamo over the years, including in Omar Khadr’s case. If proceedings do go ahead on October 25th, as currently scheduled, we’ll have representation there to observe the proceedings.

Amnesty International members around the world have been and continue to call for the USA to abandon Omar Khadr’s military commission trial and on the Canadian authorities to call for his repatriation. You can join us by taking action here.

Give Omar Khadr His Chance at Justice

By Njambi Good, Counter Terror with Justice Campaign Director

The U.S. Constitutional amendment protecting everyone’s right to a fair trial is under attack.

On October 18, the desperately flawed trial of Omar Khadr, the young Canadian man who has been in U.S. custody since age 15, is scheduled to resume – lack of transparency, fairness, credibility and all.

The trial is flawed because it is not happening in a real court. Omar Khadr has been tortured, threatened with rape, and denied basic legal rights. Yet despite all that, his fate now hangs outside a traditional judge and jury, but rests with politicians and military personnel.

But three decision-makers, responsible for guiding policies from three different federal offices – the Department of State, Department of Justice and Department of Defense – have the power to steer this runaway trial back on course.

They can be the ones who rise above the noise and send this powerful reminder:

In this country, when a person is suspected of doing something that violates the law, no matter how heinous the alleged act, they are entitled to a fair trial in a U.S. federal court.

We do not create new systems of justice to match the crime or to secure a conviction.

That’s why we’re asking you to join us in calling on these three officials to stop this trial before it starts on October 18: Harold Koh – Legal Adviser for Department of State, David Kris – US Assistant Attorney General for National Security and Jeh Johnson – General Counsel in the Department of Defense.

The fight against torture and terrorism can also be won in the courtroom, but it begins right here. Right now.

Omar Khadr’s Lawyer Collapses, Trial Postponed

By Alex Neve, Secretary General of Amnesty International Canada.  Neve is currently at Guantánamo to observe the military commission trial against detainee Omar Khadr. This is the fourth post in his series from the field.

12 August 2010

Omar Khadr's defence lawyer Lt Col Jon Jackson in the media hangar, Guantánamo Bay, Cuba.

In a case that has moved so slowly for so long - it is now nearly five years since Omar Khadr was first charged under the Bush administration - much happened during the first day of his military commission trial here at Guantánamo, both expected and unexpected. Proceedings began with opening statements from the prosecution and defence. They ended in drama when Omar Khadr’s military lawyer, Lieutenant Colonel Jon Jackson, collapsed in court late in the afternoon while cross examining a witness.  He was taken to hospital by ambulance and as I write it is uncertain when the trial will resume.

Earlier the commission heard from two prosecution witnesses and viewed a video that US forces had retrieved from the compound in Afghanistan where the firefight took place that is at the heart of the case against Omar Khadr.  It is there that, as a 15-year-old, he is alleged to have thrown a grenade that fatally wounded a US soldier, Sergeant Christopher Speer. Among those present in the courtroom today, for the first time, was the widow of Sgt Speer.

For the prosecution, Jeffrey Groharing began by wheeling in a scale model of the compound where the firefight took place.  He alleged that Omar Khadr had told one of his interrogators that he was a “terrorist, trained by al-Qa’ida” and that what he was most proud of was carrying out attacks against Americans. He alleged that Omar Khadr had deliberately decided to conspire with members of al-Qa’ida to kill as many US soldiers as possible.  When it came to the question of statements and confessions obtained during the teenager’s interrogations at the US air base in Bagram in Afghanistan and subsequently in Guantánamo, the prosecutor insisted that they were the result of friendly conversations between the detainee and his interrogators and that all were freely and voluntarily given.  He made no reference to Omar Khadr’s young age when these interrogations took place.

In his opening statement for the defence, Lt Col Jackson portrayed Omar Khadr as a scared child in the company of “three bad men” on 27 July 2002 when the firefight occurred.  He blamed Omar Khadr’s late father for the fact that Omar Khadr was there in the first place, adding that “Omar’s father hated his enemies more than he loved his son”.  [Editor’s note: Members of the Khadr family, including Omar, are believed to have moved to Afghanistan when he was 11 years old. According to the Miami Herald on 12 August 2010, the prosecutor said in his opening statement that Omar Khadr had grown up in a family of “radical Islamists” and had “even lived with Osama bin Laden in an al-Qa’ida compound in Afghanistan”].

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Guantanamo: ‘Jury’ selected for Omar Khadr’s military commission trial

By Alex Neve, Secretary General of Amnesty International Canada.  Neve is currently at Guantánamo to observe the military commission trial against detainee Omar Khadr. This is the third post in his series from the field.

11 August 2010

Alex Neve stands in front of the building housing the courtroom in Guantánamo Bay, Cuba.

Over the past two days I have been observing the process of selecting the “jury” for Omar Khadr’s military commission trial here at the US naval base at Guantánamo Bay in Cuba. Known as a “panel”, this is the group of US military officers who will decide whether Omar Khadr should or should not be convicted of any of the five charges he faces and, if they do convict, what sentence he should face.

The process began on Tuesday morning with a group of 11 men and four women, drawn from the US Army, Navy and Air Force.  The goal was to emerge at the other end with at least five officers impaneled – the necessary minimum for the trial to go ahead.  The defence and prosecution can each exclude one of the members of the pool without giving a reason, and can seek the exclusion of as many others “for cause” as the military judge overseeing the trial may accept.

The day began on a warm-hearted note.  When the side door through which Omar Khadr is escorted in by his guards opened on Tuesday morning, not only was the young defendant once again in attendance, he was wearing a grey suit, white shirt and tie.  We later found out that his Canadian lawyer had chanced upon the suit in a room in the courthouse building moments before Omar Khadr was to come into court. Now each time Omar Khadr enters or leaves the courtroom, there is a broad smile on his face that I have not seen before. It was a reminder of his youthfulness, and of how many small moments (like his first time in a suit) he has been denied during the eight years he has been locked away here — he was transferred to Guantánamo from Bagram air base in Afghanistan in late October 2002 soon after he turned 16.

Much of the first day was taken up with lawyers for both sides asking questions of the 15 potential panel members as a group, covering a wide range of topics: their views on juvenile justice, their familiarity with books or films about al Qa’ida, educational background, involvement in other kinds of military justice proceedings, and their degree of commitment to fair trial principles such as the presumption of innocence and proof beyond a reasonable doubt. Then each of the 15 officers was brought in to be questioned individually.

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Omar Khadr trial: 90 seconds to rule that prosecution can use allegedly coerced statements

By Alex Neve, Secretary General of Amnesty International Canada.  Neve is currently at Guantánamo to observe the military commission trial against detainee Omar Khadr. This is the second post in his series from the field.

Omar Khadr was taken into US custody when he was 15 years old.

Once again, proceedings are underway in the case of United States vs Khadr at Guantánamo Bay. And the first question on the minds of many was answered quickly this morning.  Omar Khadr was indeed present in court as this latest phase of his military commission hearing opened.  He remained throughout the entire day.  He was present but he left his legal representation in the hands of his appointed military defence lawyer.

Before the trial itself begins (which is expected on Wednesday after the commission panel of US military officers, akin to a jury, is chosen and sworn in tomorrow), there were a number of motions filed previously by both the defence lawyers and by government prosecutors that had to be dealt with today.  They involve such matters as questions of evidence, expert witnesses, legal definitions, and courtroom security procedures. Most have been outstanding for many months and have already been the subject of written briefs or days of witness testimony and oral arguments.  Some touch on key human rights concerns that go to the heart of the fairness of this process.

Lawyers took several hours today to make their final submissions on these legal issues.  And then in a remarkably terse series of decisions that took no more than 10 minutes, the military judge, Army Colonel Patrick Parrish, ruled against Omar Khadr on almost every point.

Alex Neve stands in front of the building housing the courtroom in Guantánamo Bay, Cuba.

Most anticipated was the military judge’s decision as to whether statements made by Omar Khadr during interrogation sessions he underwent at both the US air base in Bagram, Afghanistan, and at Guantánamo Bay can be admitted as evidence at the trial.  Prosecutors clearly want them in.  The defence had argued that they should be excluded as they bear the taint of torture and other cruel, inhuman or degrading treatment.  Omar Khadr has detailed a range of torture and other ill-treatment he says he was subjected to at that time, including painful physical stress positions, threats of rape, sleep deprivation, use of barking dogs, hooding, shining bright lights into his injured eyes, being used as a human mop to clean up his own urine, and more.

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Tweet Chat with Tom Parker Today at 2:00 PM EST!

Today Amnesty International USA will be hosting a Tweet Chat with Tom Parker, our Policy Director for Terrorism, Counterterrorism and Human Rights.

Today also marks the beginning of the Military Commission proceedings for Guantánamo detainee Omar Khadr, who has been in U.S. custody since the age of 15.  While the U.S. ratified the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict in 2002, which Khadr should be protected by, the military commission trial completely fails this international obligation.  What’s more is that some of Khadr’s statements may have been made while he was being tortured. Just yesterday,  his statements have been ruled admissible  as the prosecution has maintained in its legal filings that “the accused was not tortured; nor subjected to cruel, inhuman or degrading treatment.”

Now’s your chance to get your questions answered on the Obama administration’s plans to close Guantánamo,  or, even more generally, U.S. policy on torture, terrorism or detainment.

Join Amnesty International today for a Tweet Chat to discuss Khadr’s case and that of other detainees at Guantanamo.

WHEN: Today Tuesday, August 10th from 2:00 – 3:00 pm EST

WHERE: Follow Tom on Twitter @TomAtAmnesty

HOW: Submit questions on Twitter any time from now through August 10th using hashtag #AskAI.  Example: How else should the U.S. gain intelligence re: terrorism plots w/o using torture? #askai