Serious Setback for 'Child Soldier' in Obama's First War Crimes Trial

 Things did not go well forOmar Khadr on his last day of pretrial hearings at Guantanamo Bay today.

In a series of rulings at the end of the day, the judge denied virtually every request from the defense to exclude prejudicial evidence at trial. He also adopted wholesale the government's view that the crime the government says Khadr committed as a 15-year-old - throwing a grenade that killed a U.S. soldier -- is a violation of the laws of war. The vast majority of international law experts believe otherwise.

Jury selection for his trial - the first war crimes trial to be held by the Obama administration - is expected to begin tomorrow.

A Canadian seized by U.S. forces following a firefight in Afghanistan that left him severely wounded, Khadr has been imprisoned at Guantanamo Bay for the last eight years without trial. In earlier testimony in pretrial hearings, the lead interrogator in his case testified that hisinterrogation tactics included yelling, throwing things, threats and coercion, and in Khadr's case specifically included the threat of gang rape and possible death in prison. This interrogator, whothe government called Interrogator #1, interrogated Khadr approximately 25 times.

Based on that testimony, as well as on Khadr's claims that he was beaten, sleep-deprived and abused in a variety of other ways, Khadr's lawyers asked the judge, Army Col. Patrick Parrish, to exclude all evidence of his statements confessing to the crimes charged, on the grounds that all of those confessions were tainted by the abuse he endured. In another similar case, involvingMohammed Jawad, also captured as a teenager, a military judge had done just that, after hearing testimony that interrogators threatened to kill his family if he didn't cooperate.

After that ruling, the government dropped its case against Jawad and he was returned home to Afghanistan.

Khadr was not so lucky today. Judge Parrish concluded that despite the threats and abuse, Khadr's statements to interrogators were not tainted and could all be admitted at trial.

After the hearing, Khadr's Canadian lawyer, Dennis Edney, was furious.

"Judge Parrish should go back to school and learn some of the basic principals of law," he told reporters in a brief press conference in a sweltering airplane hangar outside the courtroom. "You can't split and dice this stuff. If a confessional statement was made under duress, the whole confession, the whole statement, is poisoned." Edney went on to say that he and Khadr believe that "the system is stacked" against his client.

In other rulings, Judge Parrish certified Evan Kohlmann, a 31-year-old NBC news analyst, as an expert on al Qaeda and related terrorist groups who can testify at Khadr's trial. Kohlmann, who has been retained by the government in 30 different terrorist prosecutions, has his own company that provides reports on terrorist groups to corporations and media organizations, based largely on surfing the Internet. He does not speak Arabic, has never been to Afghanistan, and does not have an advanced degree in anything related to terrorism, Islam or Islamic extremism. He testified today, however, that he has an undergraduate degree from Georgetown University where he wrote his senior thesis and some other college papers on al Qaeda and Arab-Afghans. Kohlmann has created a video that tells the history of al Qaeda and its goals from the 1980s through September 11, based largely on video clips and other public documents he's found online. The government has frequently tried to show that video to the jury in other terrorism-related cases. Kohlmann is paid for all of the testimony he provides for the prosecution.

Although the defense argued that Kohlmann is not qualified as an expert, Judge Parrish quickly dismissed that claim. More surprising, however, was that he agreed to let Kohlmann show most of his 90-minute video, although it does not mention Omar Khadr or address any of the charges against him in any way. It does, however, elaborate on Al Qaeda's various plots against the United States over the past several decades.

Kohlmann testified today that he knows nothing about Khadr except what is listed in the government's charges.

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.

 

 

 

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.

 

 

 

Wikileaks Document Dump Supports New Rules of Engagement and Need for Responsible Transition

The 92,000 classified documents on the war inAfghanistan posted by Wikileaks and made public on Sunday are already causing a firestorm.

Although I can't claim to have reviewed the tens of thousands of documents myself (Human Rights First will be reviewing them for specific information on detentions at Bagram and the U.S. reliance on private contractors in Afghanistan), the accounts from diligent reporters so far suggest that the documents support the Obama administration's new rules of engagement, which emphasize the importance of keeping civilian casualties to an absolute minimum. While some soldiers in combat have complained about that, the latest reports in these newly-released documents that some U.S. efforts to target insurgents has led to the killing of civilians and stoked Afghan anger suggest that the administration's efforts to limit the use of air power so as not to kill Afghan civilians unnecessarily was the right move. Reducing unnecessary civilian casualties is not only important to compliance with the laws of war, but it's critical to the U.S. counterinsurgency effort. After all, killing Afghan civilians isn't a very effective way to win hearts and minds. The change in the rules also appears to have responded to solid information the military had received about field operations gone wrong.

Many of the failures in Afghanistan reportedly catalogued in the released documents, which do not extend past 2009 and therefore do not reflect the impact of the new rules of engagement, appear to be the result of insufficient investment in securing Afghanistan and preparing the Afghan police and security forces to responsibly assume their appropriate roles in their own country. To the extent that the U.S. military is currently working with NATO forces to train the Afghan police and security forces to improve their practices, these Wiki-released documents support that effort.

Human Rights First has consistently urged the administration to plan for the turnover of U.S. detention operations to the Afghan government by helping the Afghans develop fair and humane detention and justice systems that reflect a commitment to international standards of due process for suspected terrorists. The Afghans need civilian training, support and funding for those efforts,which are critical to allowing the U.S. to withdraw its military forces from Afghanistan responsibly. I plan to take a trip to Afghanistan in the fall to observe first-hand how that transition is proceeding and whether the U.S. and its NATO allies are providing the necessary support and training.

 Unfortunately, some lawmakers, understandably concerned about corruption, have responded by voting to block all civilian aid to Afghanistan, which could seriously jeopardize those efforts and the United States' long term goals.

When the firestorm over the latest Wikileaks document dump dies down, let's hope that a responsible transition strategy remains standing.

How to Overcome the "Legacy of Torture"

The New York Times today highlights a new reportreleased by ProPublica and the National Law Journal concluding that torture and "enhanced interrogation techniques" approved by the Bush Administration and used on suspected terrorists has made it impossible to bring many of those alleged terrorists to justice.

Of the 53 habeas corpus cases brought by Guantanamo detainees and decided by federal court judges, the government has lost 37. Many of those losses were because the only evidence against the detainee was a coerced confession or statements from other prisoners who'd been tortured. Federal court judges have rightly found such statements unreliable and inadmissible. The result is that many of those suspects have won orders of release. (Only three have actually been freed.)

Unfortunately, those orders have led some critics of the administration - including Sen. Lindsey Graham and Brookings Institution commentator Benjamin Wittes - to argue that we need more expansive detention laws so the government doesn't have to let those suspects go. That's precisely the wrong response in a society that claims to presume suspects are innocent until actually proven guilty. (The standard in habeas cases is actually much lower than in a criminal case; the government only has to prove that it's "more likely than not" that the suspect can legally be detained.) Those 37 prisoners won their habeas cases because the government had no reliable evidence that they'd been fighting for al Qaeda or the Taliban. So judges across the political spectrum concluded that the government hadn't demonstrated that these detainees are detainable under the laws of war.

In a report Human Rights First released with The Constitution Project in June, 16 former federal judges explained that the courts deciding these habeas cases are doing the right thing: they're weighing the evidence, deciding the facts and applying the law. No new laws are needed. On the contrary, a new detention law designed to help the government win more cases in the absence of reliable evidence would only tarnish the reputation of the U.S. justice system, which in these cases is doing itself proud.

As the Times points out, these court decisions demonstrate a "respect for due process [that] will help repair this country's battered reputation." The Bush administration's failure to apply basic, longstanding American justice standards is what landed us in this mess in the first place, requiring that some terror suspects go free. Creating a new legal standard to accommodate those past mistakes would only compound the problem and drive the United States' reputation further into the ground.

We're already seeing that happen at the military commissions at Guantanamo Bay. Although, asPeter Finn in the Washington Post today points out, many of the military commission cases have stalled, one that has gone forward recently produced a highly questionable ruling that was immediately broadcast around the world.

In the case of a Canadian citizen and alleged child soldier, Omar Khadr, the judge ruled that a threat of gang-rape and murder in prison from his lead interrogator did not taint any of the 15-year-old's later "confessions" that he threw a grenade that killed a U.S. soldier. Given that there's no physical evidence that Khadr committed the act, his statements to interrogators at the Bagram prison in Afghanistan and later at Guantanamo Bay are critical to the prosecution.

In a similar case, brought against Mohammed Jawad, also accused of throwing a grenade at U.S. soldiers as a child, the military commission judge in 2008 concluded that early threats by Afghan interrogators tainted all of Jawad's later statements made to the Americans. His case was ultimately thrown out and he was returned to Afghanistan.

These sorts of conflicting rulings can happen in the military commissions, an ad hoc justice system created in fits and starts over the last eight years with no binding precedent or road-tested rules. It's one reason why those military commissions lack the legitimacy of civilian federal courts.

Like the court rulings ordering Guantanamo detainees freed, the military commissions, too, are a legacy of torture. They're an attempt to patch together a quasi-justice system to accommodate, without acknowledging or rectifying, the egregious mistakes of the past.

But neither new detention rules nor military commissions can truly overcome torture's legacy. That can only be done by admitting what happened, holding perpetrators accountable, and ultimately, prosecuting terror suspects in our time-tested, world-renowned American justice system. And that is rightly something about which this country can be proud. 

 

 

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