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.

First U.S. Trial of 'Child Soldier' in Modern History Starts This Week at Gitmo

On Tuesday, the Obama administration is scheduled to begin its first trial of a prisoner held at Guantanamo Bay. Omar Khadr was only 15 when he was captured in a firefight in 2002 with U.S. forces in Afghanistan. Now 23, he'll finally have his day in court. Only instead of an experienced federal court with a long history of trying terror suspects, Khadr will be tried in a military commission, created just last year. In the eight years since President George W. Bush created the first military commissions at Guantanamo, they have convicted only four terrorists - only two in contested trials. Regular federal courts in the United States, by contrast, have convicted more than 400 in the same time period.

Khadr was only nine when his father, an alleged Al Qaeda financier, dragged him from Canada to Afghanistan and put him to work helping his Al Qaeda-connected friends. Khadr has said that he never had a choice. And a Canadian intelligence agency reported, based on interrogations of Khadr in 2003, that Khadr viewed Al Qaeda "through the eyes of a child" who didn't understand that his father's activities were linked to terrorism.

What's more, based on what's been presented in pretrial hearings so far, there appears to be little or no evidence, other than "confessions" extracted under highly suspicious circumstances, that Khadr actually committed the most serious crime he's accused of: throwing a grenade that killed a U.S. soldier.

Even if he did, Khadr shouldn't be tried in a military commission.

Under international law, a child captured in combat is supposed to be treated as a victim rather than a warrior, offered rehabilitation in custody and eventually repatriated home. Khadr, who has relatives in Canada, was offered neither option.

In addition, the crime of murdering a U.S. soldier isn't actually a war crime. In war, it's not a crime to target the other side's soldiers. But because Khadr was a civilian, rather than a member of a regular foreign army, throwing a grenade is a criminal act that could be prosecuted in a regular criminal court. Although the military commission rules characterize his crime as one that falls within the commissions' jurisdiction, the legal authority of the commission to prosecute conduct that was declared a war crime after the act was committed, or ex-post facto, remains legally questionable.

Khadr's lawyer has also questioned the legality of the military commissions as a whole, filing an appeal just this week with the Supreme Court arguing that the commissions are unconstitutional because they target only "aliens"--people who are not U.S. citizens. Though the courts have so far punted on this issue, it's clear that even if Khadr is convicted, he'll have several strong grounds for appeal.

So why is the government bringing this case in a military commission?

Perhaps the government hopes that Khadr's statements, which he claims were extracted by various kinds of torture and abuse, will be allowed into court as evidence. Although Khadr's lawyer hasn't yet had the opportunity to present all the evidence of his client's treatment at Bagram and at Guantanamo Bay, what's come out at pretrial hearings so far is that when Khadr was captured by U.S. soldiers in July 2002, the teenager had been shot twice in the back, blinded in one eye and had a face peppered with shrapnel. Interrogators at the Bagram air base took to calling him "Buckshot Bob." But that didn't stop them from interrogating him while he was still recovering from life-threatening wounds and strapped to a hospital gurney. Using what the military calls a "fear up" technique, an interrogator testified, Khadr was told a story about another prison just like him who refused to cooperate - and who then was gang-raped and killed in an American prison.

Official documents also reveal that at Guantanamo, Khadr was subjected to the military's "frequent flyer" program -- meaning he was moved every three hours for weeks at a time to keep him from sleeping prior to interrogations.

So just how reliable are the statements he made, either at Bagram or at Guantanamo?

Now, after eight years at Gitmo, Khadr insists he's not guilty. He has also at times said he'd boycott his own trial because he thinks the whole military commission process is a sham.

It's easy to understand why. Now 23, Khadr, has been interviewed by dozens of interrogators, each time led to believe that his cooperation would spare him from violence and lead to his release. He told interrogators what he thought they wanted to hear, but that release never happened. If Khadr had been imprisoned in the United States, he would have been tried and either convicted or released long ago. But instead, Khadr has been held without trial on a secluded prison camp in Cuba for nearly a decade with little opportunity to defend himself.

Human Rights First has been observing the military commission hearings since their inception in 2002. Repeatedly, our observers have been astounded by the injustices, inefficiency and wholesale fiasco that many of the inexperienced and legally questionable commissions' proceedings produce.

That's partly because the commissions are so new - created by a law passed in 2009. The first military commission system, created by the Bush administration, was ruled unconstitutional by the U.S. Supreme Court in 2006. As a result, there's is almost no legal precedent to guide commission judges. The Military Commissions Manual, meanwhile, was only issued in late April - on the eve of Khadr's first pretrial hearing. The resulting confusion offers yet more opportunity for Khadr and anyone else convicted in a military commission to challenge their convictions on a broad range of legal grounds. Decisions on the prisoners' fate will be delayed that much longer.

There's another reason that this whole military commission system leaves me scratching my head: the extravagant expense involved. Keeping the Guantanamo Bay prison camp and military commission system open for fewer than 180 detainees costs taxpayers a lot of money. Construction and renovations to the camp have cost about $500 million so far; operating costs are another $150 million every year. The Washington Post recently estimated the bill, much of which has been paid to KBR and Halliburton, has so far exceeded $2 billion. Just the cost of flying dozens of journalists and observers like myself, plus all the lawyers involved, to and from Guantanamo to attend each of these hearings so the government can claim that they're "public" is astronomical. Meanwhile, federal courts and secure prisons in the United States are readily available and already paid for. And the government doesn't have to cover anyone's costs to get there.

I'm in Guantanamo Bay this week to observe the end of Khadr's pretrial hearings and the beginning of his trial in a military commission. But I doubt I'll gain any better understanding of why the Obama administration chose to try him there.

Update: Lt. Col. Jon Jackson, Omar Khadr's military defense lawyer, just gave a quick news conference in the sweltering airplane hangar here at the Gitmo base. (Only prosecutors are allowed to use the indoor air-conditioned rooms for press conferences.) "This case will echo in the future," Jackson said, noting that it will set a sad precedent for the United States' right to try a child soldier as a full-fledged war criminal.

It will also create a lasting legacy for the Obama administration."Forever the Obama administration will be remembered as starting the military commissions with a case of a child soldier," Jackson said.

Somehow that doesn't seem like the sort of legacy Obama had in mind when he vowed to close the Gitmo prison down on his first day in office.

Prisoners Deserve A Hearing Before Being Sent To Countries That Torture

Last week, the United States government transferred an Algerian national, imprisoned for the last eight years at the U.S. detention facility at Guantanamo Bay, Cuba, back to his home country.

Normally, such transfers are a cause for celebration by the prisoners involved. But the reaction of 35-year-old Abdul Aziz Naji was markedly different: he was terrified. That's in part because the Algerian government has a bad track record for its treatment of anyone arrested on "security grounds." In fact, the U.S. State Department reports that in such cases, Algerian authorities still use torture to elicit confessions. A recent decision from the European Court of Human Rights reached the same conclusion, blocking a transfer to Algeria from France.

Naji also argued that he was afraid of local fundamentalist groups terrorizing him into fighting for their cause. In fact, he'd fled Algeria as a teenager precisely because he'd been attacked by extremists. As a result, Naji begged the U.S. government to allow him to remain in prison at Guantanamo rather than be returned to Algeria. But the U.S. government ignored that; it sent him to Algeria anyway.

Although Naji is now back home, reportedly under Algerian government surveillance, there are still another five Algerians left at Guantanamo Bay who are afraid to return home due to fear of mistreatment. Still other prisoners, from countries such as Tajikistan and Morrocco, have similar fears. And terror suspects arrested by U.S. authorities and sent to another country for interrogation and prosecution, under current U.S. rendition policy, face a similar risk.

The U.S. government's actions in Naji's case don't bode well for any of them.

Under international law, the United States isn't supposed to transfer anyone to a country where they're likely to face torture or cruel, inhuman or degrading treatment. That's exactly what Naji fears will happen to him if he's arrested in Algeria. But he did not get an opportunity to make his case to any sort of neutral U.S. arbiter. Although the Obama administration said that the Algerian government had promised not to torture Mr. Naji upon his return, Naji never got a chance to explain why he's skeptical of that promise, and why he's still afraid.

Unfortunately, despite the requirements of the international Convention Against Torture, Naji's treatment complies with official U.S. policy. U.S. officials have insisted that they can send a prisoner or terror suspect to a country that's known to torture prisoners so long as that country provides "diplomatic assurances" -- essentially, an official promise -- that the person will be treated fairly. Perhaps the U.S. obtained such a promise from authorities in Algeria. But what are these "diplomatic assurances" worth?

As the United Nations and many other international experts have recognized, not much. According to Manfred Nowak, the U.N.'s Special Rapporteur on torture, "diplomatic assurances are unreliable and ineffective in the protection against torture and ill-treatment and such assurances," and are usually sought "from States where the practice of torture is systematic." They're also not legally binding.

Thus Maher Arar, for example, a Canadian terror suspect (who turned out to be innocent) rendered to Syria by the Bush administration, was brutally tortured under interrogation there, despite "diplomatic assurances" provided to U.S. authorities by the Syrian government.

Nowak and Martin Scheinin, the U.N. Rapporteur on Human Rights and Counter-Terrorism, last week protested the United States' return of Naji to Algeria.

Although Naji was never charged, tried or convicted of anything by the United States, his imprisonment for the last eight years, supposedly on security grounds, suggests he's likely to be a target of interest to the Algerian authorities.

Indeed, after he was returned home on July 18, his lawyers reported that he had disappeared. He was presumably held and interrogated in secret detention by Algerian security forces.

Then on Monday, Reuters reported that he'd been returned home and was "resting." An Algerian prosecutor said he'd been treated lawfully.

Meanwhile, the Associated Press reported that Naji had been indicted on terrorism-related charges and placed under "judicial supervision."

Whatever Naji's status is now, it could change at any time. Even though the U.S. never charged him with anything, Algerian authorities could go a different route. Or they could detain him for questioning and torture him in prison. Now that the United States has released him, it no longer has any authority to determine his treatment.

But the U.S. doesn't have to follow suit for the other Algerian detainees still imprisoned without charge at Guantanamo, who similarly face repatriation against their will. Human Rights First has called on the Obama administration to back up its professed commitment against torture by systematically providing a hearing before a neutral arbiter before returning anyone in U.S. custody to a country where he fears persecution. The United States should stop relying on the "diplomatic assurances" that have proved utterly ineffective in the past.

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.

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.

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