Stop Press

The pretrial hearings in the Omar Khadr case ended last week on two particularly sour notes.

First, in a profound blow to the credibility of the Military Commissions process the Department of Defense banned four journalists covering the trial from returning to GTMO.

The four journalists were blackballed for revealing the identity of Interrogator #1. Three of the four are Canadian and they include Michelle Shephard of the Toronto Star who has written a book about the Khadr case, “Guantanamo’s Child”.

The fifth reporter is the Miami Herald’s Carol Rosenberg who has followed the Military Commissions for years and is practically a permanent fixture in GTMO. You can read the Pentagon’s letter by clicking on this link.

What makes this decision so absurd is that Interrogator #1’s identity has been public knowledge for more than two years. He outed himself in 2008 by giving an exclusive interview to Michelle Shephard about his role in Khadr’s interrogation. I suspect Al Qaeda already has access to Google.

Judge Parrish has gone to great lengths this week to stress his commitment to conducting as transparent a proceeding as possible – refusing to hear arguments in chambers that can be made in the courtroom.

The Pentagon has blown this open posture out of the water in an attempt to shut a stable door two years after it was left wide open.

More alarming still was that this decision coincided with an extraordinary attack on Omar Khadr’s defense attorneys by the Chief Prosecutor, Captain John Murphy, at a press conference held after the hearings closed.

Captain Murphy publically accused Khadr’s defense team of ethical violations in the statements that they had given the media about the case over the previous two weeks. He said that he would be referring these violations to the appropriate authorities for investigation.

Taken together it is difficult to escape the conclusion that these two initiatives are intended to intimidate both reporters and defense attorneys from pushing too hard as they perform their duties on GTMO.

There are already precious few guarantors that defendants at the Commissions will receive a fair trial as it is – the government now seems to want to undermine these slim safeguards even further.

Interrogator Admits to Using Rape Scenario as Fear Tactic

Tom Parker is currently at Guantánamo to observe the military commissions proceedings against detainee Omar Khadr.  This is his third post.

The last day of Omar Khadr’s pre-trial military commission hearing held over the past two weeks here at Guantánamo ended with a breakthrough for the defense team when they called Khadr’s principal interrogator at the Bagram detention facility to the stand.

The court heard that Interrogator #1 – who first interrogated Omar Khadr about two weeks after he was brought into a military hospital at Bagram with multiple gunshot and shrapnel wounds – had interrogated the teenager dozens of times before he was transferred to Guantánamo in late 2002 shortly after he turned 16. In an affidavit signed in 2008, Omar Khadr recalled being interrogated more than 40 times in the 90 days he was held in Bagram.

Interrogator #1 told the court that he had used a variety of techniques detailed in the Army Field Manual on Interrogations against Omar Khadr, including those called “Love of Freedom”, “Fear Up” and “Fear Up Harsh”. He said he used “Fear Up Harsh” on several occasions:

“I got in his face, I screamed at him, I cursed because I knew he didn’t like it. I flipped a bench one time.”

Interrogator #1 maintained that he had not physically abused Omar Khadr in any way. It nevertheless emerged in court that the same interrogator had been convicted in a court martial in 2005 of abusing another detainee in Bagram in 2002.

In this latter case, Interrogator #1 admitted twisting the bottom of a hood around the detainee’s neck, pulling the detainee toward him in a rough manner and sticking a water bottle in the detainee’s face and forcing him to drink from it.

Similar forms of abuse appear in Omar Khadr’s 2008 affidavit. For example, he said:

“On some occasions, the interrogators brought barking dogs into the interrogation room while my head was covered with a bag. The bag was wrapped tightly around my neck, nearly choking me and making it hard to breathe. This terrified me. On other occasions, interrogators threw cold water on me.”

The most damning testimony at today’s hearing came when the defense asked Interrogator #1 directly if he had ever threatened the 15-year-old with rape if he did not cooperate. In his affidavit, Omar Khadr had alleged that

“On several occasions at Bagram, interrogators threatened to have me raped, or sent to other countries like Egypt, Syria, Jordan or Israel to be raped”.

Interrogator #1 responded that he had told the teenager a “fictitious story” about a young Afghan who had lied and been sent to a US prison where “big black guys and big Nazis” noticed “this little Muslim” and, in their patriotic rage over the 9/11 attacks, the “poor little kid” was raped in the shower and died.

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Indecent Haste

Tom Parker is currently at Guantánamo to observe the military commissions proceedings against detainee Omar Khadr.  This is his second post.

Another theme has emerged at the pre-trial military commission proceedings being conducted this week here at the US Naval Base in Guantánamo in the case of Omar Khadran unseemly rush to complete the hearings so that those attending can get back to the US mainland by the weekend.

The military judge overseeing the proceedings, Colonel Patrick Parrish, has not returned to any issue in the past few days as often as he has to reminding counsel that they have only a limited amount of time to examine their witnesses if they want to make their flights home.

Colonel Parrish is scrupulous in noting that he plans to stay on in Guantánamo for several days after the hearings end and that he is not in any way trying to hurry the lawyers, but of course his repeated interventions are having the opposite effect.

The military judge’s concern with staying on an arbitrary schedule seems most often to be directed at the defense as they try day after day, unsuccessfully, to find some way to introduce testimony about the “command climate” in the Bagram detention facility into evidence.

This matters because with no eyewitness to confirm Omar Khadr’s account of his abuse at the hands of his interrogators in the Bagram facility, where he was held for three months as a teenager before being transferred to Guantánamo in late October 2002, the best that the defense can do is to try to demonstrate that his allegations are reasonable and replicated in the experiences of other inmates.

Today we heard two separate interrogators, former US Army Specialist Damien Corsetti and Interrogator #17, try to speak to this issue despite multiple objections from the prosecution that were mostly upheld by the judge, along with heavy-handed hints that time was running out for the defense.

I have a growing sense that in the military commissions the cards are stacked heavily against Omar Khadr.

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Non-Traditional Interrogation

Tom Parker is currently at Guantánamo to observe the military commissions proceedings against detainee Omar Khadr.  This is his first post from the ground.

The military commissions currently being revived at the US Naval Base at Guantánamo have given birth to a fresh addition to the newspeak lexicon to rank alongside such classic antiseptic euphemisms as ‘collateral damage’ and ‘friendly fire’: in these proceedings torture is being rebranded “non-traditional interrogation”.

In any circumstances an attempt to minimize such outrageous conduct would be deeply troubling. To hear this phrase repeated time and time again by the prosecution in the pre-trial hearings in the Omar Khadr case it is doubly so.

The second week of hearings in this case are focusing on the defense’s attempts to have incriminating statements made by Omar Khadr excluded because of the abusive treatment they allege he received while detained in the Bagram detention facility eight years ago as a 15-year-old.

The problem for the defense is proving that their client’s account of events in Bagram is accurate and the version presented by his former interrogators false. There are no eyewitnesses to Omar Khadr’s treatment except those who are alleged to be responsible.

In such circumstances where no independent witness testimony is available lawyers frequently fall back on what is known as similar fact evidence.  In essence, this consists of accounts by individuals who found themselves in identical circumstances and from whose experiences reasonable conclusions can be inferred.

In my own experience investigating war crimes in Bosnia, Darfur, Kosovo and Iraq, the collection and submission of similar fact evidence is a vital tool. The sort of abuse one encounters in conflict environments often occurs without eyewitnesses and this is especially true of abuse that takes place in detention facilities.

A typical case might involve a guard removing someone from the general prison population or coming into a cell alone. In cases that pit the word of the victim against the word of the perpetrator the testimony of other victims with similar experiences can tip the balance.

However, the military judge overseeing proceedings in Omar Khadr’s case, Colonel Patrick Parrish, is refusing to allow the defense to introduce similar facts into evidence, stating in court today that unless such testimony can be directly linked to Omar Khadr the weight he will give it “is less than miniscule”.

We know that the abuse of detainees in the Bagram Theater Internment Facility in 2002 was commonplace. In one week in December 2002 two Afghan detainees, Habibullah and Dilawar, died as a direct result of the physical abuse they suffered at the hands of US military personnel at the prison.

We also know that one of Omar Khadr’s military interrogators at Bagram (known in court simply as Interrogator #1) was subsequently court-martialed and convicted of abusing other detainees. The details are hazy – the actual judgment is classified.

There were only two other people in the interrogation room with Omar Khadr. The position taken by Judge Parrish effectively means that unless one of them admits to committing a criminal act, the defense have no way to have Omar Khadr’s claims taken into consideration.

Is it unreasonable to suspect that Omar Khadr may have been tortured while detained in Bagram? Clearly, given that one of his interrogators has been convicted of detainee abuse, it is not.

Even one of the interrogators at Bagram cross-examined in court today declined to rule out the possibility. When asked about Omar Khadr’s claims that he was tortured while detained there, he simply replied: “I hope they are not true.”

Hope is not enough. It is the court’s duty to ensure that tainted evidence is excluded. There is no greater taint than torture and the defense should be given greater latitude in its attempts to expose it.

USA: We find the defendant NOT guilty. Now lock him up!

Omar Khadr

Omar Khadr

Is this America or the Twilight Zone? According to Amnesty International’s new report, President Obama’s new rules for military commissions at Guantanamo allow for a defendant who is found NOT guilty to be locked up. Potentially forever.

It could happen to Omar Khadr. He will be the first person tried under President Obama’s military commissions, and his pre-trial hearings started this week.  Khadr is a Canadian national who has been held in US custody for nearly 8 years, since he was 15 years old. He has said he was repeatedly tortured in U.S. custody.

His military commission is set up such that it will not meet international standards for fairness. And, even if he is found not guilty after his unfair trial, he can still be held indefinitely.

The new military commissions rule book notes that indefinite detention after acquittal by military commission “may be authorized by statute, such as the 2001 Authorization for Use of Military Force (AUMF), as informed by the laws of war.” (Rule 1101, page II-139.)

President Obama has already used the AUMF to justify indefinite detention and Senator Lindsey Graham (R-SC) has proposed writing that justification into standard American law.  President Obama and Senator Graham worked with Congress last year to set up the current unfair military commissions.

They are using—as did President Bush—the concept of a global war against al Qaeda as justification for violating three pillars of the American justice system:

-If you are accused of a crime, you have the right to either be charged and tried, or be released.

-If you are tried, you have the right to a fair trial.

-If you are found not guilty, you have the right to go free.

Now that two presidents and hundreds of members of Congress from two different parties have responded to the heinous attacks on 9/11 by throwing away due process and fair trials, the conclusion is inescapable:  al Qaeda has destroyed the U.S. justice system.

It’s pretty obvious that self-imposed self destruction by states is one of the hallmark goals of terrorism; how could elected officials ignore—to this day—the American military and intelligence experts who warn them over and over again not to go down this road?

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No Security Without Human Rights

By Alex Neve, Secretary General of Amnesty International Canada.  Neve is currently at Guantánamo to observe the military commissions proceedings against detainee Omar Khadr.

I’ve arrived at Guantánamo Bay and spent much of the afternoon attending to a variety of practicalities and formalities.  I’m here with observers from three US-based NGO’s as well and we’ve been escorted everywhere we’ve gone today by a very helpful US military officer.  Tomorrow will be largely downtime as the start of Omar Khadr’s hearing has been postponed to Wednesday.

Guantánamo is truly a surreal place to be.  Hidden away from where we’ve spent the afternoon are the various camps in which some 183 men remain in detention, many having experienced torture or other ill-treatment during their years in US custody and most having no prospect of any trial (let alone a fair trial) or, it seems, of being released at any foreseeable point.  They include individuals who were previously hidden away for years in secret CIA detention at undisclosed locations, and subjected to so-called “enhanced” interrogation techniques such as “water-boarding” and sleep deprivation.  Meanwhile we are surrounded by sportsfields, fast food chains, and an outdoor movie theatre.

What lawyers will be arguing about over the coming two weeks is critical.  Omar Khadr’s legal team will be pushing to have various statements that he provided to interrogators excluded as evidence in his trial that is set to begin in July.  They will lay out the detailed and harrowing descriptions Omar has provided as to the torture and ill-treatment he says he endured during those interrogations – both in Afghanistan and here at Guantánamo.    They will highlight as well that the treatment was all the more cruel and coercive because he was so young at the time, having been only 15 years old when first apprehended in Afghanistan.  They will stress that under international law and US law, there is no question – statements obtained through torture or other ill-treatment cannot be used.

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Justice for 9-11 victims shouldn’t involve military commissions

Originally posted to McClatchy Newspapers

By Talat Hamdani, Amnesty International Activist

My son, New York Police Department cadet Mohammad Salman Hamdani, was one of the brave souls who died on Sept. 11 trying to rescue people in the World Trade Center.

My life, like countless others, will never be the same.

One thing that has kept me going is the hope that justice will be served. Unfortunately, after more than eight years of repeated delay, it looks like that process could get derailed before it even begins.

Along with many other victims’ family members, I was encouraged in November when Attorney General Eric Holder announced that the 9-11 trials would happen in federal court in New York instead of in the military commissions system. But then, much to my dismay, I watched as some New Yorkers cowered in fear of unsubstantiated threats to their safety, businesses near the courthouse complained they might lose money and local officials fretted about the cost of providing security for the trials.

And while some — though not all — of these concerns are understandable, I cannot tell you what it’s like to hear people say that bringing terrorists to justice is just too scary, too expensive, too inconvenient and not worth some sacrifice.

Is this New York? Is it America?

In the face of these objections, reports indicate that the Obama administration might not only move the trials to another location, but might actually move them back to the military commissions. This would be a monumental error. I’ve been to those commissions, and I can say first-hand that they are an unqualified and chaotic disaster where the rules get made up as they go along.

At one of the early 9-11 hearings, the military judge actually referred to the process as a “learning experience.” Now, years later, despite a missed deadline, new rules needed for the latest version of the law authorizing the commissions have not even been issued. Even when they are, they will not answer basic questions like whether a defendant can plead guilty to a death penalty charge.

The most important cases in U.S. history should not be a lab experiment.

In addition to their lack of clarity, the commissions have constitutional problems that could result in questionable verdicts, leading to years more delay due to legal challenges which, ironically, would probably end up in the federal courts, anyway.

For instance, some kinds of hearsay remain admissible, making it possible that statements of an individual pointing a finger at the defendant could come into trial even if that individual is not in court, denying the accused the opportunity to confront his accuser. The accusatory statement could even be used against the defendant if it was made under coercion. It doesn’t take a legal scholar to know this smells wrong and I, for one — after all this time — don’t want to be faced with a guilty verdict obtained by cutting corners and shrouded in a cloud of doubt.

Another minefield that could sink the entire commission system is that it can only be used to prosecute “aliens.” This sets up two systems of justice — one for Americans and one for others. I already had a personal experience with such thinking right after the 9-11 attacks. While my son was still missing, law enforcement authorities — joined by the media — initially decided he was a suspect in the attacks largely because of our last name. Because of this, they actually delayed informing me that Mohammad’s remains were found. It wasn’t until months later that he was recognized as a hero.

Some are saying that using military commissions is the “tougher” way to proceed against accused terrorists. But the facts say otherwise. Compared to the over 300 terrorism-related convictions in federal courts, the military commissions, in eight years, have produced only three for individuals who are already free after serving relatively short sentences.

The commissions are simply not prepared or experienced enough to handle complex international terrorism cases. Part of the problem is that while many military judges are competent, hard-working and honorable, military criminal cases typically involve prosecutions of U.S. soldiers and sailors for ordinary crimes. There are relatively few murder cases, fewer death penalty cases and almost no conspiracy cases, much less international terrorism trials. This is a problem no new law can fix.

Others worry that federal trials will give the accused a soapbox to spew their hateful agendas. In fact, federal judges are known for preventing such outbursts, as was the case in the Zacharias Moussaoui trial. It was in the Guantánamo commissions that the 9-11 defendants were allowed to give five-minute tirades.

This argument always seemed weak to me: can you imagine not putting Timothy McVeigh on trial because he might make hateful statements? Or any serial killer, for that matter?

The last eight and a half years have been tough. On top of dealing with my personal loss, my faith in our government has been repeatedly challenged as I’ve seen principle discarded in the name of politics and fear. The Obama administration’s November decision to choose principle when it came to the 9-11 trials was a breath of fresh air.

If the administration reverses itself now, it would almost be worse than had it made the wrong decision to begin with. Not only will our hopes have been raised only to be dashed, but it would send the message that our principled decisions become expendable when the going gets tough. That is not the legacy I wish for my son.

Talat Hamdani is the mother of Mohammad Salman Hamdani, an NYPD Cadet who died on September 11 attempting to rescue people at the World Trade Center.

Getting used to a new Gitmo zip code

(Originally posted on Jurist)

The Obama administration’s announcement that it intends to move “War on Terror” detainees not cleared for release to the Thomson Correctional Facility changes very little beyond enabling President Obama to honor the letter, if not the spirit, of his pledge to close the Guantanamo Bay detention facility.

What this decision in fact demonstrates is a lasting commitment to two ideas that President Obama rejected as a candidate: Military Commissions and indefinite detention without charge.

Military Commissions amount to little more than a cynical attempt to create a trial format with a sufficiently low burden of proof that it will admit evidence that could not be used in a real court. The concept of indefinite detention violates one of the most fundamental tenets of American – and international – justice that every defendant has a right to challenge his accusers in court. Both set disastrous precedents.

The decision to move the detainees will also have little positive impact on the position of the detainees themselves – indeed it will most likely further retard cases already unconscionably delayed. Nor will their day-to-day lives be improved, it is likely to be quite a while before the recreational facilities at Thomson match those now on offer at Guantanamo.

The bottom line is that the Obama administration is not fooling anyone either at home or abroad. Changing Guanatanmo’s zip code does not make indefinite detention any less palatable or military commissions any more legitimate.

Sadly, the good citizens of Thomson, Illinois, should get used to the idea that the name of their hometown will soon join Guantanamo and Abu Garaib as a shorthand term for American double standards and that it will likely become as effective a recruitment tool for Al-Qaeda as its predecessors.

Senator Graham: Let’s Hear it for New York

Dear Senator Graham,

Sometime tomorrow, Thursday, likely before noon, the Senate will probably vote on the Commerce, Justice, Science and Related Agencies Appropriations Act for Fiscal Year 2010 and on your proposed amendment to that act that would block Guantanamo detainees from having trials in US federal courts.

I urge you to drop your amendment. And I’ve called my Senators, Gillibrand and Schumer, and urged them to oppose it, using the script below. I’ve encouraged others to call their Senators too.

Why? Because I live in New York City. I’m watching the Yanks as I write this.

And I could see the Twin Towers from my living room. I saw the second Tower fall with my own eyes, from the corner of West Broadway and Canal. I want the people responsible brought to justice. SEE THE REST OF THIS POST

What Goes Around Comes Around

Our ad in the Farragut West Metro Station, Washington DC

Our ad in the Farragut West Metro Station, Washington DC

Last month I had the opportunity to meet with Tamil human rights defenders working to protect the rights of Tamil civilians displaced by the Sri Lankan government’s military campaign against the violent Armed Group known as the Tamil Tigers.

Displaced Tamils are confined to government run camps where conditions are harsh and there is no end to their detention in sight. Tamil and Sri Lankan human rights defenders are operating under great threat from the authorities and Sinhalese nationalist paramilitaries.

Journalists have been killed and activists have disappeared. An unmarked white van has been associated with several disappearances, evoking memories of the dirty wars of Latin America. The atmosphere in Colombo is increasingly one of fear and intimidation.

This is the context in which we learned earlier this month of a visit to Washington DC by the Sri Lankan Attorney General, Mohan Peiris, to meet with his American counterpart Eric Holder. SEE THE REST OF THIS POST