Omar Khadr: The Injustice Continues

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 his first post in series from the field.


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


It  seems difficult to believe that after being held here at Guantánamo Bay for close to eight years and having been put through an astonishing array of legal twists and turns – including charges being thrown out at one point and then reinstated – Omar Khadr is about to face trial by military commission, possibly this week if pre-trial proceedings are completed.

I’m here to observe these proceedings on behalf of Amnesty International. And quite honestly at this stage I find it very difficult to predict just what I will observe.  All that seems certain is that it will be another phase in the systematic injustice to which Omar Khadr has been subjected.

First, today there will be more legal arguments as to whether all or at least some of the statements Omar Khadr made in the course of over 100 interrogation sessions between 2002 and 2004 – first at Bagram Air Base in Afghanistan and then here at Guantánamo – will be excluded from the trial.  He has laid out detailed and credible allegations as to the many forms of physical and psychological torture and other abuse he says he was subject to at that time, including during many of the interrogation sessions.  The prosecution has maintained in its legal filings that “the accused was not tortured; nor subjected to cruel, inhuman, or degrading treatment”. Yet at a hearing in May, one of Omar Khadr’s interrogators at Bagram admitted to using a rape scenario as a fear tactic against the teenager. And it is clear that at Guantánamo, Omar Khadr was one of the detainees subjected to the sleep disruption/deprivation technique known as the “frequent flyer” program.


Your Guantanamo Questions Answered

Join Tom Parker, our Policy Director for Terrorism, Counterterrorism and Human Rights, to get your questions answered on the Obama administration’s plans to close Guantánamo and the upcoming Military Commission trial for Guantánamo detainee Omar Khadr, who has been in U.S. custody since the age of 15.

WHEN: 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

Time Running Out for Omar Khadr

Time is running out for Omar Khadr, his Military Commission trial will finally get underway on August 10th and it is likely to be completed within two weeks.

We don’t anticipate a very edifying spectacle. Khadr fired his hopelessly outclassed civilian defense attorneys last month and is refusing to participate any further in the proceedings. As he explained in a letter to the court:

“It is going to be the same thing with or without lawyers. It’s going to be a life sentence.”

It is hardly a surprise that after eight years of delay and prevarication, rule changes and procedural challenges, Khadr has no faith in the genuine independence of the military commission process. Few international observers do.

Omar Khadr was taken into US custody when he was 15 years old on 27 July 2002 in Afghanistan. On the right is a picture of him after being detained for eight years.

The case against Khadr is a weak one. There are no eyewitnesses to the primary

incident and the only real evidence against him are statements obtained from him under duress and a videotape of him apparently helping to plant an IED. It is not clear whether the tape is of a training exercise or an actual attack.

The judge in the case is still refusing to consider whether incriminating statements made by Khadr after his capture were obtained through torture – hardly a fanciful claim since his interrogator was actually convicted in a US court martial of abusing another detainee in the same facility.

Khadr’s remaining–military–attorney, Lt. Col. Jon Jackson, has petitioned the Supreme Court to consider the propriety of the US government maintaining in essence a separate legal system for US non-citizens. US citizens charged with terrorist offenses are directed to the federal courts not military commissions. As Lt. Col. Jackson notes: “separate is always unequal.”

Finally, perhaps most egregious of all, Khadr is being tried as an adult despite the fact that he was only fifteen when the alleged offenses he is accused of occurred. Under the terms of the Optional Protocol to the United Nations Convention on the Rights of the Child, of which the United States is a signatory, Khadr should properly be considered a child soldier.


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.


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.


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?


Omar Khadr pre-trial hearings: It is underway

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

The building behind the tree on the right houses the courtroom (cameras are not allowed inside).

The building behind the tree on the right houses the courtroom (cameras are not allowed inside).

The rumours did indeed prove to be true.  Yesterday evening the government did finally approve and release a 280-page Manual for Military Commissions, laying out the rules that are to govern the conduct of Omar Khadr’s and all military commission proceedings.  But his legal team did not receive a copy of the new rules – essential to mounting any legal strategy – until shortly before proceedings were set to get underway this morning.  It came as no surprise, therefore, that they were given a few extra hours to digest the contents.  So the hearing, before it even began, was adjourned to the afternoon.

The whole fiasco was yet one more illustration of how one-sided and unfair this system is.  The judge works for the government, the prosecuting team works for the government, and as the prosecutors are in the final stages of preparing for the hearing the government is writing and finalizing the rules that will govern proceedings.  Regardless of whether they end up being the best or worst of rules, it can’t help but further the impression of the military commission process being lop-sided in favour of the government.

Things certainly began to move quickly once the hearing was underway in the afternoon however.  There was considerable legal jousting back and forth between defence and prosecuting lawyers over a number of outstanding issues.

Prosecutors are demanding that they be able to carry out their own psychiatric examination of Omar Khadr – but without either his lawyers or his own psychologist or psychiatrist present.  They are also demanding access to all of the notes, studies, test results and other documents that his psychologist and psychiatrist have used in preparing their expert reports.  They also argued that Omar Khadr’s affidavit detailing the many instances of torture and ill-treatment that he says he has suffered both in Afghanistan and at Guantánamo, should not be entered into evidence.  Instead they demand that he should personally testify about everything that is in the affidavit.  That was the one issue the judge did rule on – he decided that the affidavit can be entered into evidence for the purposes of this pre-trial hearing into the question of excluding Omar Khadr’s statements made to interrogators.  He has not ruled on whether it can be used as evidence at the actual trial scheduled to take place this summer.


Observing the Trial of Omar Khadr

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

Photo: Alex Neve at Guantánamo Bay

Photo: Alex Neve at Guantánamo Bay

Omar Khadr’s case has been in the military commission pipeline for several years – he was first charged in November 2005 under the system thrown out the following year by the US Supreme Court.  His case has had various false starts under a variety of different versions of the military commission process.

His case has been slated to come up before the latest version of military commissions for months.  Lawyers, journalists, observers, government and military officials have arrived – anticipating that key legal issues were finally going to get an airing.  All this lead time; all this preparation – you would at least expect everything to be in place.

But there is no confidence at all that things are going to get off to a smooth start.  One key piece of the equation that is missing is the set of rules to govern the military commission process under legislation passed in late 2009.  Under the revised Military Commissions Act (MCA), signed by President Obama last October, the Secretary of Defense was supposed to submit to Congress within 90 days the rules for military commissions – that is, the Manual for Military Commissions.  At the moment, the only manual that has been available is a 2007 version under the 2006 MCA.