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.

 

 

 

Judges to Congress: Don’t Legislate Indefinite Detention

 

For months now, certain commentators and legislators have been arguing that Congress needs to pass a new law authorizing the indefinite detention without charge or trial of suspected terrorists and their supporters.

On its face, that would seem to violate some basic tenets of the U.S. Constitution. But the U.S. government is already detaining hundreds of suspects captured abroad at Guantanamo Bay and elsewhere. The question is whether Congress should expand that authority and define it in more detail.

Writers such as Benjamin Wittes of the Brookings Institution and lawmakers such as Senator Lindsey Graham of South Carolina argue that even though hundreds of people have been detained over the last eight years at Guantanamo Bay, the law that justifies their detention or mandates their release isn’t clear, and Congress needs to step in and make new rules.

In fact, as a new report issued today by 16 former federal judges makes clear, that’s nonsense. The people in the best position to decide when military detention is legal are already doing just that. The new report, published by Human Rights First and theConstitution Project, explains exactly how that process is working – and demonstrates that it’s actually working very well. Responding to a series of habeas corpus petitions, where Guantanamo detainees have asked the federal court to review the legality of their detentions, federal district court judges in Washington, D.C. have already issued written opinions concerning 50 different detainees that set out the legal standard for indefinite wartime detention, and which cases do and do not meet it.

The claim by Wittes and Graham that judges are somehow overstepping their bounds and usurping the role of Congress reflects a fundamental misunderstanding of how the federal courts and judges work. In fact, the courts are doing just what they’re supposed to do: interpret the law.

The reason judges are so well-situated to explain the contours of U.S. detention authority is because, according to judicial rulings, the right to detain arises out of existing laws, including the Authorization for Use of Military Force against Terrorists, or AUMF, passed by Congress in 2001; the traditional law of war; and the U.S. Constitution.

Traditionally, a government at war can detain fighting members of the enemy’s forces, under humane conditions, until the war is over. Although that authority is less clear when the government is fighting a loose coalition of insurgent forces around the world rather than another country, the Supreme Court has said that at least in some circumstances, pursuant to the AUMF, the United States can detain enemy fighters seized on the battlefield.

It’s the Supreme Court’s rulings on the subject, combined with the law of war and the mandates of the U.S. Constitution, that highly experienced federal judges have been applying to the habeas corpus cases that have come before them. Applying those rulings, they’ve developed a clear and consistent body of law that explains what kind of evidence the government needs to have amassed against a suspected insurgent to justify his military detention.

Under the D.C. District Court’s rulings, for example, Fouad Al Rabiah, a 43-year-old, 240-pound, Kuwaiti Airways executive with a long history of volunteering for Islamic charities who’d been discharged from compulsory military service in Kuwait due to a knee injury, and who suffered from high blood pressure and chronic back pain, did not meet the requirement of being “part of” or having “substantially supported” al Qaeda, the Taliban or associated forces. Although seized while attempting to leave Afghanistan in 2001, by the time of Al Rabiah’s hearing, even the government had decided the witnesses who claimed he’d helped al Qaeda weren’t credible. The government’s own interrogators didn’t believe his “confessions,” which the court determined had been coerced and were “entirely incredible.”

On the other hand, Fawzi Al Odah, also Kuwaiti, did meet the law’s detention standards. The same judge found that he’d attended a Taliban training camp, learned to use an AK-47, travelled with other armed fighters on a route common to jihadists, and took directions from Taliban leaders – all making it more likely than not that he was a member of Taliban fighting forces.

Still, despite the courts’ careful analysis in these cases, Congress could step in and write its own new law on indefinite detention. But how can any one statute possibly address all the vastly different factual scenarios, many spanning several countries and decades, that constitute the government’s claims that any particular individual is detainable? What’s more, any new law will still have to meet the requirements of the U.S. Constitution, and the Supreme Court gets the ultimate say on that. Any new statute passed by Congress, then, would likely be challenged as soon as it’s applied, causing more confusion about what the law really is until the U.S. Supreme Court weighs in on that new statute several years later.

The federal judges of the D.C. District Court and Court of Appeals are already way ahead of that game. In addition to the trial court opinions, the appellate court recently issued its own opinion setting out the law of detention and the government’s constitutional authority. That decision may be appealed to the Supreme Court, whose opinion would set out the binding standard that every judge and future U.S. administration will have to follow.

The upshot of all this is that if Congress legislates some new detention standard now, it will actually take a lot longer to get a clearly-defined and binding law that guides the government than it would if Congress just let the courts continue to play the role they’re supposed to: deciding the legality of government detention.

Wittes, Graham and others may secretly be hoping that Congress will legislate in this area anyway and try to expand the government’s indefinite detention authority beyond Guantanamo Bay to reach even suspects arrested on U.S. soil. But that would create a whole new constitutional firestorm, resulting in exactly the opposite of what they say they’re after: a clear and reliable statement of the law.

 

GTMO Hearing: Does The Threat of Rape Make A Confession Involuntary?

 

Does threatening a prisoner with rape and death, even implicitly, mean that a court should suppress admission of a crime because those statements lack voluntariness and reliability. That is the question raised today at a preliminary hearing in the case ofOmar Khadr, being tried at the detention facility at Guantanamo Bay, Cuba.

Omar Khadr is the fifteen year old child soldier captured by American troops after a fire fight in Khost, Afghanistan in the summer of 2002. The United States claims that Mr. Khadr confessed to interrogators that he threw a grenade that killed an American soldier. Mr. Khadr claims that he did not. He claims that the admission was extracted from him through coercion. The government claims that it was not.

Today's star witness was someone identified as Interrogator #1. He was the chief interrogator of Mr. Khadr at the Bagram Collection Point in Afghanistan. He testified that he interrogated Mr. Khadr twenty to twenty-five times. In a prior statement, he said he interrogated Mr. Khadr every day for four to six hours for what may have been at least 44 days, which would approximate 220 hours of interrogation.

Interrogator #1 testified that he interrogated Mr. Khadr the day after he was discharged from the hospital prison. Mr. Khadr, who was fifteen years old, was on a stretcher, greatly "fatigued" and "sedated," according to #1, due to serious injuries he had received in the fight with American troops.

Mr. Khadr arrived at Bagram hospital on July 28, 2002, with a hole in his back the size of a Copenhagen chewing tobacco tin, a shredded cornea in his left eye which has left him blind, and a face peppered with shrapnel, which garnered Mr. Khadr the nickname "Buckshot Bob." Prior to his release from the medical tents at Bagram, he underwent three major surgeries to repair his injuries.

Interrogator #1 questioned Mr. Khadr first on August 12, 2002, just 15 days after arriving at Bagram with the prognosis that he might not survive his injuries. Number One said that on that first day, and every day, he required Mr. Khadr to raise his head from the stretcher and look him in the eye during the questioning, which may have been very difficult for a young person having come recently out of surgery.

Number One said that the approved interrogation method he used that day and for the majority of the times he interrogated Khadr was "fear up." The purpose of "fear up" interrogation is to scare the individual into cooperation. Methods may include screaming, cursing, turning over furniture in anger, all of which Number One confirmed he used.

Number One then said that he also used fictitious stories to instill fear in the young detainee. The lead defense counsel asked him to elaborate. He said that he had learned that Afghans were "terrified of rape and homosexuality." So, he concocted a story about a prisoner like Mr. Khadr who chose not to cooperate with interrogators, was prosecuted and incarcerated in an American prison. Number One said that the convict was in the prison showers one day, alone, when "four big black men" and "neo-Nazis" entered the shower and raped him. He said that despite being in prison, these convicts were "patriotic Americans" who were very angry about 9/11. He said that the prison guards always try to help, but can't be everywhere all the time and bad things can happen. He concluded the parable by telling Mr. Khadr that the young man in the story "may have died."

It is not clear on which day of interrogations Interrogator One told the parable of American prisons, but he said that the story was targeted to Afghan citizens. He was under the impression that Khadr was Afghani only in the first few days of his detention. Khadr is a Canadian citizen.

The parable is disturbingly racist and homophobic. Bigotry alone, though, is not a basis to set aside a confession of murdering a soldier. Suggesting to a scared, impressionable fifteen year old who is on a stretcher just discharged from a hospital after three surgeries for life-threatening injuries, that he may be raped and die in an American prison unless he cooperates, though, may convince the military judge to suppress any statements made by Khadr. If the judge grants the motion to suppress the key evidence, the government will not have a case.

The chief prosecutor in the case claimed after the hearing that he remained "confident" in the case and that his confidence "continues to grow." The lead defense attorney said that he thought that Interrogator One's testimony about the implicit threat of rape and death may be tantamount to torture, and at the very least provided a strong basis to determine that the confession elicited from Mr. Khadr was not "unfettered," "reliable" or "voluntary," and should be suppressed.

What may determine the outcome of the decision about whether to allow or disallow the evidence of murder is how the military judge interprets the new rules governing this very hearingpromulgated by the Department of Defense during the hearing. The Pentagon has issued multiple variations of the rules governing military commissions and they all have serious constitutional problems. The new set of rules does not appear to cure those constitutional defects, leaving any convictions in these military commissions vulnerable to reversal on appeal.

The military judge has promised to issue a series of rulings on Tuesday next week, and to set a calendar for the next evidentiary hearing. It is unclear how the judge will rule, but it is clear that Khadr case will be another difficult challenge to the continued viability of the military commissions.

 

GTMO Hearing: Does The Threat of Rape Make A Confession Involuntary?

 

Does threatening a prisoner with rape and death, even implicitly, mean that a court should suppress admission of a crime because those statements lack voluntariness and reliability. That is the question raised today at a preliminary hearing in the case ofOmar Khadr, being tried at the detention facility at Guantanamo Bay, Cuba.

Omar Khadr is the fifteen year old child soldier captured by American troops after a fire fight in Khost, Afghanistan in the summer of 2002. The United States claims that Mr. Khadr confessed to interrogators that he threw a grenade that killed an American soldier. Mr. Khadr claims that he did not. He claims that the admission was extracted from him through coercion. The government claims that it was not.

Today's star witness was someone identified as Interrogator #1. He was the chief interrogator of Mr. Khadr at the Bagram Collection Point in Afghanistan. He testified that he interrogated Mr. Khadr twenty to twenty-five times. In a prior statement, he said he interrogated Mr. Khadr every day for four to six hours for what may have been at least 44 days, which would approximate 220 hours of interrogation.

Interrogator #1 testified that he interrogated Mr. Khadr the day after he was discharged from the hospital prison. Mr. Khadr, who was fifteen years old, was on a stretcher, greatly "fatigued" and "sedated," according to #1, due to serious injuries he had received in the fight with American troops.

Mr. Khadr arrived at Bagram hospital on July 28, 2002, with a hole in his back the size of a Copenhagen chewing tobacco tin, a shredded cornea in his left eye which has left him blind, and a face peppered with shrapnel, which garnered Mr. Khadr the nickname "Buckshot Bob." Prior to his release from the medical tents at Bagram, he underwent three major surgeries to repair his injuries.

Interrogator #1 questioned Mr. Khadr first on August 12, 2002, just 15 days after arriving at Bagram with the prognosis that he might not survive his injuries. Number One said that on that first day, and every day, he required Mr. Khadr to raise his head from the stretcher and look him in the eye during the questioning, which may have been very difficult for a young person having come recently out of surgery.

Number One said that the approved interrogation method he used that day and for the majority of the times he interrogated Khadr was "fear up." The purpose of "fear up" interrogation is to scare the individual into cooperation. Methods may include screaming, cursing, turning over furniture in anger, all of which Number One confirmed he used.

Number One then said that he also used fictitious stories to instill fear in the young detainee. The lead defense counsel asked him to elaborate. He said that he had learned that Afghans were "terrified of rape and homosexuality." So, he concocted a story about a prisoner like Mr. Khadr who chose not to cooperate with interrogators, was prosecuted and incarcerated in an American prison. Number One said that the convict was in the prison showers one day, alone, when "four big black men" and "neo-Nazis" entered the shower and raped him. He said that despite being in prison, these convicts were "patriotic Americans" who were very angry about 9/11. He said that the prison guards always try to help, but can't be everywhere all the time and bad things can happen. He concluded the parable by telling Mr. Khadr that the young man in the story "may have died."

It is not clear on which day of interrogations Interrogator One told the parable of American prisons, but he said that the story was targeted to Afghan citizens. He was under the impression that Khadr was Afghani only in the first few days of his detention. Khadr is a Canadian citizen.

The parable is disturbingly racist and homophobic. Bigotry alone, though, is not a basis to set aside a confession of murdering a soldier. Suggesting to a scared, impressionable fifteen year old who is on a stretcher just discharged from a hospital after three surgeries for life-threatening injuries, that he may be raped and die in an American prison unless he cooperates, though, may convince the military judge to suppress any statements made by Khadr. If the judge grants the motion to suppress the key evidence, the government will not have a case.

The chief prosecutor in the case claimed after the hearing that he remained "confident" in the case and that his confidence "continues to grow." The lead defense attorney said that he thought that Interrogator One's testimony about the implicit threat of rape and death may be tantamount to torture, and at the very least provided a strong basis to determine that the confession elicited from Mr. Khadr was not "unfettered," "reliable" or "voluntary," and should be suppressed.

What may determine the outcome of the decision about whether to allow or disallow the evidence of murder is how the military judge interprets the new rules governing this very hearingpromulgated by the Department of Defense during the hearing. The Pentagon has issued multiple variations of the rules governing military commissions and they all have serious constitutional problems. The new set of rules does not appear to cure those constitutional defects, leaving any convictions in these military commissions vulnerable to reversal on appeal.

The military judge has promised to issue a series of rulings on Tuesday next week, and to set a calendar for the next evidentiary hearing. It is unclear how the judge will rule, but it is clear that Khadr case will be another difficult challenge to the continued viability of the military commissions.

 

GTMO Hearing: Does The Threat of Rape Make A Confession Involuntary?

 

Does threatening a prisoner with rape and death, even implicitly, mean that a court should suppress admission of a crime because those statements lack voluntariness and reliability. That is the question raised today at a preliminary hearing in the case ofOmar Khadr, being tried at the detention facility at Guantanamo Bay, Cuba.

Omar Khadr is the fifteen year old child soldier captured by American troops after a fire fight in Khost, Afghanistan in the summer of 2002. The United States claims that Mr. Khadr confessed to interrogators that he threw a grenade that killed an American soldier. Mr. Khadr claims that he did not. He claims that the admission was extracted from him through coercion. The government claims that it was not.

Today's star witness was someone identified as Interrogator #1. He was the chief interrogator of Mr. Khadr at the Bagram Collection Point in Afghanistan. He testified that he interrogated Mr. Khadr twenty to twenty-five times. In a prior statement, he said he interrogated Mr. Khadr every day for four to six hours for what may have been at least 44 days, which would approximate 220 hours of interrogation.

Interrogator #1 testified that he interrogated Mr. Khadr the day after he was discharged from the hospital prison. Mr. Khadr, who was fifteen years old, was on a stretcher, greatly "fatigued" and "sedated," according to #1, due to serious injuries he had received in the fight with American troops.

Mr. Khadr arrived at Bagram hospital on July 28, 2002, with a hole in his back the size of a Copenhagen chewing tobacco tin, a shredded cornea in his left eye which has left him blind, and a face peppered with shrapnel, which garnered Mr. Khadr the nickname "Buckshot Bob." Prior to his release from the medical tents at Bagram, he underwent three major surgeries to repair his injuries.

Interrogator #1 questioned Mr. Khadr first on August 12, 2002, just 15 days after arriving at Bagram with the prognosis that he might not survive his injuries. Number One said that on that first day, and every day, he required Mr. Khadr to raise his head from the stretcher and look him in the eye during the questioning, which may have been very difficult for a young person having come recently out of surgery.

Number One said that the approved interrogation method he used that day and for the majority of the times he interrogated Khadr was "fear up." The purpose of "fear up" interrogation is to scare the individual into cooperation. Methods may include screaming, cursing, turning over furniture in anger, all of which Number One confirmed he used.

Number One then said that he also used fictitious stories to instill fear in the young detainee. The lead defense counsel asked him to elaborate. He said that he had learned that Afghans were "terrified of rape and homosexuality." So, he concocted a story about a prisoner like Mr. Khadr who chose not to cooperate with interrogators, was prosecuted and incarcerated in an American prison. Number One said that the convict was in the prison showers one day, alone, when "four big black men" and "neo-Nazis" entered the shower and raped him. He said that despite being in prison, these convicts were "patriotic Americans" who were very angry about 9/11. He said that the prison guards always try to help, but can't be everywhere all the time and bad things can happen. He concluded the parable by telling Mr. Khadr that the young man in the story "may have died."

It is not clear on which day of interrogations Interrogator One told the parable of American prisons, but he said that the story was targeted to Afghan citizens. He was under the impression that Khadr was Afghani only in the first few days of his detention. Khadr is a Canadian citizen.

The parable is disturbingly racist and homophobic. Bigotry alone, though, is not a basis to set aside a confession of murdering a soldier. Suggesting to a scared, impressionable fifteen year old who is on a stretcher just discharged from a hospital after three surgeries for life-threatening injuries, that he may be raped and die in an American prison unless he cooperates, though, may convince the military judge to suppress any statements made by Khadr. If the judge grants the motion to suppress the key evidence, the government will not have a case.

The chief prosecutor in the case claimed after the hearing that he remained "confident" in the case and that his confidence "continues to grow." The lead defense attorney said that he thought that Interrogator One's testimony about the implicit threat of rape and death may be tantamount to torture, and at the very least provided a strong basis to determine that the confession elicited from Mr. Khadr was not "unfettered," "reliable" or "voluntary," and should be suppressed.

What may determine the outcome of the decision about whether to allow or disallow the evidence of murder is how the military judge interprets the new rules governing this very hearingpromulgated by the Department of Defense during the hearing. The Pentagon has issued multiple variations of the rules governing military commissions and they all have serious constitutional problems. The new set of rules does not appear to cure those constitutional defects, leaving any convictions in these military commissions vulnerable to reversal on appeal.

The military judge has promised to issue a series of rulings on Tuesday next week, and to set a calendar for the next evidentiary hearing. It is unclear how the judge will rule, but it is clear that Khadr case will be another difficult challenge to the continued viability of the military commissions.

 

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