Wikileaks Iraq documents raise critical questions

The trove of Iraq war documents recently made public by Wikileaks underscores several important truths.

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Google Searches Undermine Government's Star Witness in Khadr Case

The government's star witness in the sentencing hearing of Omar Khadr continued to talk for hours on the stand today, explaining his view of why he believes that the Canadian captured in 2002 at the age of 15 is "highly dangerous."

But it turns out that much of the information Dr. Michael Welner relied upon, including the judgments that informed the bulk of his opinions about the future dangerousness of Omar Khadr, was based on the highly suspect opinions of a Danish psychologist, Nicolai Sennels, whose work Welner had barely read and to whom he spoke only once on the telephone. Although those opinions were easily retrievable online, Welner said he'd never come across them before.

But it's not just the Danish psychologist's opinions that cast doubt on the objectivity of the government's expert. In fact, although not raised on cross-examination, Dr. Welner himself has stated opinions in an online magazine that reflect a deep-seated fear and mistrust of Muslims, calling into question the reliability of his assessment of Omar Khadr as a dangerous "radical Islamist."

As one of Khadr's lawyers, Major Matthew Schwartz, pointed out during cross-examination this morning, Sennels wrote an open letter to Prime Minister David Cameron in July in which he called the Koran "a criminal book that forces people to do criminal things," and said that because Turkey is a   mostly Muslim country, "25-30% of marriages in Turkey are intermarriages" and "the result of inbreeding."

In another article, Sennels referred to treating Muslims as dealing with "someone from another planet" and said that the "Western world has to put a complete halt to Muslim immigration."

In another, Sennels said that "we need to understand that it is not possible to integrate masses of Muslims into Western society."

And in an interview with an online magazine, Sennels said: "We should in general make it so unpleasant and the economic disadvantage so big that the consequences of non-integration would motivate resident Muslims to emigrate."

Confronted by these statements on cross-examination, Welner said he had not seen any of the articles referenced, although he earlier testified that in preparing to testify in Khadr's case, he'd "reviewed everything he could get his hands on."

After reading each of the articles during the court's lunch break, he said that while he does not agree with all of Sennel's statements, "I feel more confident that his conclusions are useful," adding "he had an opportunity to sit and work with people he wanted to help and gained important understandings."

According to his book, Among Criminal Muslims, Sennels worked in a prison in Copenhagen counseling young Muslim inmates.

But it's not just Sennels' statements that undermine both the basis of Welner's conclusions as well as his judgment, not to mention the thoroughness of his research.

Welner himself has exhibited Islamophobia in his own writings. In Frontpage magazine, for example, he wrote that Israeli Jews living in Gaza "have provided a buffer zone for Israel, stemming the tide of Islamo-chaos," yet are forsaken by more secure Israelis. He continued: "Like the happy family living next door to a drug addict, Israeli Gazans' success shows the violent and destitute that other behavioral paths exist."

Marcy Wheeler and Jeff Kaye have also pointed out Welner's writings on Muslims' propensity for anger. "In Muslim culture, it is expected that one should show anger and threatening behavior if one is criticized or teased," wrote Welner, who does not claim to be an expert on Muslim culture. "If a Muslim does not react aggressively when criticized he is seen as weak, not worth trusting and he thus loses social status immediately."

On the witness stand today, Welner admitted that he has never before testified on the influence of "radical Islam" on detainees, or on a range of other subjects he testified about, such as the effectiveness of deradicalization programs.

It remains to be seen how the jury in Omar Khadr's sentencing hearing will weigh Welner's testimony.

With Times Square Bomber Sentenced to Life, Ghailani Trial Gets Started

In the wake of the life sentence of Times Square bombing plotter Faisal Shahzad, the trial of the first former Guantánamo Bay detainee to be tried in a civilian U.S. federal court will finally get underway on Wednesday. Ahmed Khalfan Ghailani, a Tanzanian who's been in U.S. custody since 2004, is accused of assisting the 1998 bombings of U.S. embassies in East Africa that killed 224 people and wounded hundreds more. Originally scheduled for opening statements on Monday, the trial was delayed at the government's request so the judge can rule on a critical question: can the government introduce at trial a witness it first learned about during abusive CIA interrogations?

Defense lawyers argue that the witness, Hussein Abebe, who the government says supplied Ghailani with explosives used to bomb the U.S. embassy in Tanzania in 1998, should be barred from the case because his identity is the fruit of the government's abuse. Prosecutors counter that the witness will testify voluntarily, and is only remotely linked to Ghailani's mistreatment. (Although evidence of Ghailani's treatment in CIA custody is largely classified and therefore filed under seal, nobody seems to be denying that Ghailani was subjected to the Bush administration's "enhanced interrogation techniques" in a secret CIA prison.)

At a hearing last month, federal district court Judge Lewis Kaplan, presiding over the case in lower Manhattan, questioned the government's claim that Abebe, who prosecutors call "a giant witness for the government," was testifying voluntarily.  He's expected to rule on this issue by Wednesday.  That ruling could signal how federal judges might decide these sorts of questions in the future – and whether the government will give more civilian judges the opportunity to consider them.

About 35 detainees now being held at Guantánamo Bay are slated for trial, but the government hasn't said how many it plans to bring to civilian courts on U.S. soil, and how many it will try in military commissions set up at the Guantánamo prison complex.

Since September 11, civilian federal courts have convicted more than 400 people on terrorism-related charges. Many, like Shahzad, are now serving life sentences. Military commissions, meanwhile, have convicted only four. And two of those have already been freed. That's in part because since their creation, the military commissions have been struggling to interpret the new Military Commissions Act, first passed in 2006 and amended last year, and the accompanying rulebook issued just this past Spring. International lawyers and constitutional scholars say the law has substantial legal problems that would put most post-trial convictions at risk of appeal.

Judge Kaplan's rulings in the Ghailani case so far reflect the careful way most civilian federal judges handle these cases using established law. In detailed legal opinions, the judge has so far refused to dismiss the case, rejecting strong arguments from Ghailani's lawyers that the government violated his right to a speedy trial by waiting six years to prosecute him (he was captured in 2004), and that his abuse in CIA custody should lead to his acquittal.

To their credit, prosecutors are not relying on statements Ghailani made in custody – presumably concerned that they would be considered the products of coercive interrogations and therefore inadmissible. With four other men already convicted and serving life in prison for their roles in the bombings, the government apparently believes it has enough evidence against Ghailani without his statements.

Still, the alleged torture of Ghailani in a secret CIA prison hangs heavy over this case – as it will every other one where detainees were subjected to the so-called "enhanced interrogation techniques" that included sleep deprivation, exposure to extreme temperatures, stress positions, confinement in a box and in some cases, waterboarding.

The Ghailani case is also being closely watched for any local reaction it provokes. Last year, Liz Cheney and her advocacy group Keep America Safe rallied in downtown Manhattan to protest the administration's decision to hold the trials of the alleged September 11 plotters in a New York federal court. Obama critics such as Debra Burlingame warned that "part of Jihad is tying up lower Manhattan"; Karl Rove called holding trials there "an utter, unmitigated disaster for the security of the United States."

So far, though, the New York Policy Department has said it hasn't had to take any extraordinary security measures for the first former Gitmo detainee's trial. Having been inside the courthouse for jury selection, I didn't notice any difference in security, either. Meanwhile, as my colleagues discovered the other day when they interviewed New Yorkers heading to work downtown, most locals don't even know the trial is happening. Watch reactions in the video below:

3 Years After Blackwater Massacre in Iraq, Contractors Still Lack Accountability and Oversight

Coauthored by Melina Milazzo

On September 16, 2007, Blackwater Worldwide (now Xe) private security contractors working for the U.S. Department of State shot dead 17 unarmed civilians and wounded 24 more in an unprovoked incident in Baghdad’s Nisoor Square. Amid the political firestorm that ensued, one thing became crystal clear: the United States lacked a coordinated, systematic policy for overseeing private contractors abroad and holding them accountable for serious violent crimes.

Three years later, we’ve seen some progress in U.S. law and policy. Congress has required greater agency oversight and coordination over contractors in Iraq and Afghanistan, and established a means of investigating and reviewing incidents of violence by private security contractors abroad.

But serious gaps in oversight and accountability continue, especially when it comes to holding contractors accountable for serious violent crimes like the ones that took place in Baghdad three years ago. And the U.S. has never created a mechanism for compensating the victims of private security contractors’ crimes.

In a report issued today, Human Rights First provides a snapshot of the legal and regulatory progress made since the Nisoor Square shooting, and identifies key areas where we still need major improvement.

When it came to holding the Blackwater contractors accountable, the Bush administration claimed that the U.S. government had no authority to prosecute private security contractors working for the State Department, as the Blackwater guards were. Although the Obama administration takes a different view, the issue has never been resolved by Congress or the courts.

To date, it remains unclear whether the U.S. government can prosecute contractors who work for any agencies other than the Department of Defense for serious crimes committed abroad. And it’s not clear that the Status of Forces Agreement between Iraq and the United States even allows the Iraqi government to prosecute all private security contractors in its own country for serious crimes committed there.

The Civilian Extraterritorial Jurisdiction Act, or CEJA, currently in both chambers of Congress, would clarif y and expand U.S. criminal jurisdiction over all private contractors working for the U.S. government abroad . The U.S. government also needs to review its agreements with Iraq and Afghanistan and ensure that local law in those countries adequately extends to civilian contractors, so that serious crimes committed do not go unpunished.

The problem isn’t only with prosecuting violent crimes, however. U.S. government agencies don’t even track how many contractors and subcontractors work for them abroad. And the U.S. government still lacks sufficient staff within agencies that rely on private contractors abroad to keep track of contractors’ work and ensure they’re obeying the law. In Iraq, a Special Inspector General for Iraq Reconstruction found that the Defense and State Departments still need to improve their investigations of serious incidents. And in Afghanistan, private security contractors for the State Department are not even required to report serious incidents (such as attacks, injuries, and death) involving contractors to the government.

Despite the troubling lack of oversight, the United States is dramatically increasing its reliance on private security contractors. With the U.S. drawdown in Iraq, the Department of State plans to more than double the number of private security contractors it employs, from 2,700 to 7,000. And an additional 50,000 contractors are expected to be needed to support the Afghan surge. Meanwhile, the jurisdictional gap over non-Defense contractors widens.

“We cannot win a fight for hearts and minds when we outsource critical missions to unaccountable contractors,” said Barack Obama, then a U.S. Senator, shortly after the Nisoor Square shootings. President Obama was right then. The U.S. has both a moral responsibility and a national security interest in ensuring that the contractors it fields abroad operate in an effective, safe and law-abiding manner.

Key Q's Remain as Khadr Military Commission Pretrial Hearing Wraps Up

 

Pretrial hearings in the case of Omar Khadr today were dominated by arguments over whether his “confessions” to interrogators should be suppressed due to alleged abuse, and what other evidence should be admitted at trial. Khadr’s lawyer argued that all of his statements about what he did should not be admissible at trial because his lead interrogator at Bagram threatened him with gang rape, and possibly with death, thereby tainting his perspective of all of the interrogators asking him questions afterwards. The government has insisted instead that the judge can just forget that threat from Interrogator #1, who was, in another context, court-martialed for abusing prisoners, and instead conclude that all of his subsequent statements about his involvement with al Qaeda and throwing a hand grenade that killed a U.S. soldier were voluntary.

What hasn’t been argued today, though, is whether a 15-year-old like Khadr who was taking orders from his father, a known al Qaeda financier, ever really had a choice in the matter. What’s more, the judge still hasn’t ruled on whether the murder that he’s accused of actually constitutes a war crime, and therefore is properly being heard in this military commission. The judge suggested today that he won’t rule on that until after the trial is over, prompting objections from Khadr’s military defense lawyer that he needs to know what the judge thinks the law is in order to effectively present his client’s case. In the view of defense counsel and many international law experts, killing a member of enemy forces – in this case, a U.S. soldier – is not a violation of the laws of war. It’s what people in battle are trying to do.


The other disappointing part of today’s hearing was that the government has once again introduced Evan Kohlmann as an expert on al Qaeda and related terrorist groups. The 31-year-old Kohlmann is an NBC news analyst who started his own company that provides reports on terrorist groups to corporations and media organizations, based largely on surfing the Internet. He admitted in court today that he does not speak Arabic or have an advanced degree in anything related to terrorism, Islam or Islamic extremism. He has an undergraduate degree from Georgetown University where he wrote his senior thesis on al Qaeda and Arab-Afghans. All of his research and writing on that and related subjects was based on information he found on the Internet. He appears to believe that his inability to speak or read Arabic did not hinder his ability to review or understand what he found. Kohlmann has created a video that tells the history of al Qaeda and its goals, based, likewise, on video clips and other public documents he’s found online.


Whether Kohlmann is accepted as an expert or not (he probably will be, as he has been in two previous military commission cases and in 16 federal court trials, all testifying for the prosecution), the real issue here seems to be what his expertise has to do with Omar Khadr. Kohlmann testified today that he knows nothing about Omar Khadr except the charges against him. From what I can tell, the defense isn’t contesting that the U.S. is at war with al Qaeda or that al Qaeda has tried to attack the U.S. repeatedly, including on September 11, 2001. But the prosecution isn’t alleging that Omar Khadr had anything to do with that attack, or any of the others that constitute the bulk of Kohlmann’s movie. So I don’t see how the 90-minute historical survey of al Qaeda and Islamic extremist terrorism is going to shed light on whether Omar Khadr is guilty as charged.


The judge has taken a break to deliberate over the pending legal motions. Hopefully by later this afternoon we’ll have some decisions – and a bit more clarity on what’s going to happen in this first military commission trial put on by the Obama administration.

 

 

 

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