Obama's First Military Commission Trial: A Child Soldier


This week, Omar Khadr, the 15-year-old Canadian arrested by US forces in Afghanistan eight years ago, will finally face a trial.

Or not.

Although the defense department's Office of Military Commissions sent out notices weeks ago saying Khadr's trial starts this week, the military's more recent notices to observers suggest that this week we won't actually see a trial -- we'll see a pre-trial evidentiary hearing instead.

That's typical of the military commissions, a quasi-court system set up in Guantanamo Bay to try detainees in the war on terror - what the Obama administration calls "unlawful enemy belligerents." (President Bush called them "enemy combatants.")

Regular observers of the military commissions are used to the confusion, misinformation and delay. After all, the military doesn't post the schedules or documents filed in military commission cases on its web site or any other publicly accessible place, the way the government does for regular federal court trials. But if it's annoying to observers, for the detainees themselves, who have been imprisoned at the military installation for up to eight years without a trial, the confusing stop-and-start nature of the proceedings have much more serious consequences.

Omar Khadr, for example, has been imprisoned without trial for more than one third of his 23 years. His trial, when and if it goes forward, will be the first military commission trial to be held under the Obama administration.

Accused of throwing a grenade that killed a U.S. soldier in Afghanistan in July 2002, Khadr -- a Canadian citizen whose family moved to Afghanistan in 1996 -- claims he is innocent. And there appears to be strong evidence to support that. According to a report in the Toronto Star, classified documents in the case indicate that "Khadr was buried face down under rubble, blinded by shrapnel and crippled, at the time the Pentagon alleges that he threw a grenade that fatally wounded a U.S. soldier."

Khadr was captured after a gunfight between U.S. forces and al Qaeda fighters. By the time he landed in US custody, he'd been shot twice in the back and once in the shoulder, struck with shrapnel in his right eye and wounded in his left leg.

When Khadr regained consciousness a week later, U.S. forces brutally interrogated him in the tent hospital at Bagram, he says, shackling him into painful positions and denying him pain medication despite his serious wounds. Even before he'd healed, he was forced into stress positions with his wrists shackled to the ceiling, made to carry heavy buckets of water and clean floors on his hands and knees, and threatened with barking dogs while a bag was tied over his head, according to documents filed by his defense lawyers. Not allowed to use the bathroom during interrogations, Khadr was forced to urinate on himself, he says.

When he was transferred to Guantanamo Bay three months later, the abusive interrogations continued. Khadr says he was beaten, sleep-deprived, and threatened with torture and rape.

That treatment is likely to be the focus of hearings scheduled in Khadr's case this week. Khadr' s lawyers claim that his statements in custody should not be used against him at trial because they were the products of torture.

The Military Commissions Act of 2009 prohibits the use of coerced statements except under very narrow circumstances that don't apply to Khadr's case.

In another case also involving tortured confessions from an adolescent, a military commission judge ruled that the statements of Mohamed Jawad, an Afghan whose family says he was 12 when arrested, could not be used against him because they'd been coerced by interrogators who'd threatened to kill him and his family. The government eventually dropped the case.

Khadr's lawyer are hoping their client will get similar treatment. But even if the case proceeds, it has many other problems.

For one thing, Khadr was only 15 when he was captured, and it's not clear that military commissions have jurisdiction over juveniles. No military commission has tried a child soldier since Nuremberg. Military court-martials don't try children, and a U.N. treaty on the rights of children in armed conflict ratified by the United States a month before Khadr was detained requires that child soldiers be treated as victims entitled to rehabilitation rather than as combatants to be punished. The Military Commissions Act, for its part, says nothing about jurisdiction over juveniles. And the commissions have no codified procedures or rules.

Equally fundamental is that the military commissions were created to try war crimes. But even if Khadr were guilty of the acts charged - murder, attempted murder, conspiracy, and aiding the enemy - those aren't really war crimes. At least, they weren't war crimes until Congress declared them to be in the Military Commissions Act of 2006 -- four years after Khadr allegedly committed them. So to try Khadr for war crimes now is a violation of the Ex Post Facto clause of the U.S. Constitution, Khadr's lawyers point out. (Khadr could, of course, be tried in a civilian court for the crimes of murder and conspiracy.)

Khadr's case, then, underscores many of the fundamental problems with the military commission system - that it has no rules, little experience, almost no precedent and barely any law to guide it.

So why did the Obama administration decide to make the case of Omar Khadr its first trial in a military commission?

If the administration is hoping to showcase the strength of its military and the president's tough stance on terrorism, this probably wasn't the best way to do it.


Corporate Cruelty: Massey Denies Time Off For Miners to Attend Funerals

I realize that the majority of my recent diaries have been continuing coverage of the Massey mine disaster, and I feel it is important to inform the people of MyDD about such an event and its aftermath.  A small state like West Virginia doesn't get a lot of publicity, and events like this are sometimes allowed to die without proper justice being brought.

Massey Energy, the Virginia-based coal giant that runs the Upper Big Branch Mine, has denied time off for miners to attend their friends’ funerals; has rejected makeshift memorials outside the mine site; and, in at least one case, required a worker to go on shift even though the fate of a relative — one of the victims of the April 5 disaster — remained unknown at the time, according to some family members and other sources familiar with those episodes. In short, the company might be taking heat for putting profits and efficiency above its workers, but it doesn’t appear to have changed its tune in the wake of the worst mining tragedy in 40 years.

Source: Think Progress

It is appalling to me that something like this is allowed to happen without repercussions.  That an employee isn't even allowed leave from work to visit a loved one's funeral who died in a terrible mining disaster.  This is disgusting.  My heart goes out to the miners who are forced to continue working under the iron fist and black soul of Blankenship.  

So now, to cover up this catastrophe, Massey has hired a PR firm from Texas (Public Strategies).  This firm has quite a load on their hands, especially given this new discovery from Think Progress

Public Strategies, an Austin, Texas-based firm owned by advertising giant WPP, has been brought in by the mining company’s board in recent days to advise it on how to respond to questions about the company’s governance and the board’s general oversight of the company, people familiar with the matter said. An explosion at the company’s Upper Big Branch Mine in West Virginia killed 29 miners earlier this month.

Source:  Wall Street Journal

Also according to the WSJ, part of the firm has ties with the Bush White House, no doubt Blankenship is a fan.  (also Clinton ties)

I have lost every bit of respect I've ever had for Massey and Blankenship (which albeit wasn't very much at all).  

Program to stop border crossings diverts resources from more dangerous crimes

From the Restore Fairness blog.

Here’s more proof that current methods of immigration enforcement are unjust and inefficient. A Bush-era immigration enforcement effort along the U.S.-Mexico border called Operation Streamline is making us less safe in more ways than one – according to a new report released by The Berkeley Law Warren Institute.

Introduced in 2005 as a disincentive to border crossings, the “zero-tolerance” program requires the federal criminal prosecution and imprisonment of all unlawful border crossers. Instead, the program has led to unprecedented caseloads in eight of the eleven federal district courts along the border, leading to assembly-line justice and a serious lack of due process.

The report states,

Many Operation Streamline defendants complete the entire criminal proceeding – meeting with counsel, making an initial appearance, pleading guilty, and being sentenced after waiving a pre-sentence report – in a single day.

And while the numerous prosecutions are straining resources to the breaking point with overburdened judges, federal prosecutors and public defenders, it diverts scarce resources from fighting the roots of border violence: drug smuggling and human trafficking. As petty immigration prosecutions have increased in the border district courts, U.S. attorneys are forced to to cut back on prosecuting more serious crimes along the border.

In a New York Times article, Judge George Kazen of Laredo, Texas, has said,

The U.S. attorney isn’t bringing me those cases. They’re just catching foot soldiers coming across the border. . . . But they will tell you that they don’t have the resources to drive it and develop a conspiracy case.

As a result of Operation Streamline, between 2002 and 2008, Federal Magistrate judges operating along the border saw their immigration misdemeanor caseloads quadruple.

And despite their best efforts, it is extremely difficult for border jurisdictions to implement Operation Streamline without depriving migrants of due process and effective assistance of counsel. Chief Judge of the District of New Mexico, Martha Vázquez, has said,

The increase in our criminal caseload, especially in Las Cruces, has caused us to conduct hearings in a way that we’ve never had to conduct them before, and in a way that other jurisdictions don’t have to. . . . We have . . . up to 90 defendants in a courtroom.

Many defendants may have defenses that are not identified because of the speed and en masse nature of the proceedings.  These can include claims to immigration relief, such as eligibility for asylum or relief under the Convention Against Torture. Even U.S. citizens and legal permanent residents have been identified amongst defendants. This ultimately has consequences nationwide.

As Fifth Circuit Court of Appeals Judge Carolyn King has said,

we “can’t have a rule of law for the southwest border that is different from the rule of law that obtains elsewhere in the country.

The report recommends replacing Operation Streamline with a comprehensive and effective approach to border enforcement. This includes reverting to the longstanding practice of leaving unlawful border crossings to the civil immigration system, thereby stopping the draining the resources of the district courts, the U.S. Attorney’s Office, the Federal Public Defender, and the U.S. Marshals Service.

Photos courtesy of www.law.berkeley.edu/ewi.htm.

DCCC head not afraid of nationalized election

Democratic Congressional Campaign Committee chairman Chris Van Hollen told Greg Sargent that he isn't worried about Republicans nationalizing this year's House races:

They’ve got a very tough argument to make,” Van Hollen told me, speaking of Republicans. “If you want to nationalize the election, you also bring in Bush and Cheney. If they do that, they open the door to the question: Why would you give the keys to the guys that drove us into the economic ditch and then refused to help get out of that ditch?”

“If you want to talk about President Obama’s record, you have to recognize that he inherited a mess that was given to us by Bush and Cheney,” Van Hollen continued. “You can’t argue one without having to address the other. We will ask a simple question: How did we get into this mess and what have Republicans done to get us out of it?”

One tricky thing for the DCCC is that making the election about Obama could help some incumbents by driving up Democratic turnout, but many House Democrats in Republican-leaning districts will prefer to emphasize their "independence" from the president's agenda. Most of the 42 Democrats in the DCCC's Frontline program represent more conservative districts.

I do agree that it's imperative for Democrats to remind voters whose economic policies made the past decade a lost one for the middle class while the wealthiest made a killing. Although we can't make this year's election primarily about George Bush, Democrats ran successfully against the "party of Hoover" for many election cycles.

UPDATE: Republican activists are upset that RNC Chairman Michael Steele predicted his party won't take back the House majority this year.

Torture Report Coming

TPM says we'll see it soon:

"We'll have something for you soon," a Justice Department spokeswoman just told TPMmuckraker via email.
Based on leaked information, it seems clear that the report, by DOJ's Office of Professional Responsibility, will be critical of the work of DOJ lawyers like John Yoo who approved torture, and could lead to disciplinary measures for Yoo and others.

Good the DOJ is finally releasing the report, but does anyone really expect a bombshell? Lawyers like Yoo operated in a way almost above the law, and I'm not entirely confident that the Justice Department will self-police harshly.

There's more...


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