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.

Holder Reiterates Support for Miranda Rule -- But Still Wants to Change It

Testifying to the House Judiciary Committee today, Attorney General Eric Holder reiterated his support for civilian trials for suspected terrorists and emphasized that Miranda warnings do not prevent suspects from talking. But he also repeated his statement, first made last Sunday, that the "public safety exception" to the Miranda rule should be "modernized" and "clarified" - although he never explained what's wrong with the Supreme Court rule as it stands now.

"I can point to the facts and history which has shown that giving Miranda warnings has not had a negative impact on our ability to obtain information from terrorism suspects," Holder testified this afternoon in a hearing that lasted most of the day. "There is a misconception that people have that a giving of Miranda warnings necessarily means that people will stop talking." But "whether or not people will talk is not determined solely by Miranda warnings" but is based more on the rapport developed by the interrogator with the suspect and any advantage the suspect thinks he'll get from cooperating, Holder explained. He added that Miranda warnings often actually help investigations because if a suspect decides he wants a lawyer, "the defense attorney frequently convinces that person to cooperate in the hope that a sentence would be lessened. So even if it has the initial impact of stopping the information flow, that does not mean that it permanently stops it."

Some Republicans have been hammering Holder lately for allowing law enforcement authorities to read the failed Times Square and Christmas Day bombing suspects their Constitutional rights, and lawmakers such as Dan Lungren (R-Cal.) and Lamar Smith (R-Tx.) continued that line of attack at today's hearing.

But even as he insisted that Miranda rights and civilian trials have been highly effective tools for fighting and prosecuting terrorism in both the Bush and Obama administrations, Holder repeated his recent statement that he wants to work with Congress to "clarify" and "modernize" the public safety exception to the Miranda rule.

In New York v. Quarles, the U.S. Supreme Court in 1984 carved out an exception to the requirement that a suspect must be read his rights prior to interrogation for his statements to be admissible in court. The Supreme Court said that law enforcement authorities may delay informing a suspect of his rights when there is an imminent threat to public safety.

That exception has been commonly applied in terrorism cases. In the questioning of the two recent attempted bombing suspects, Faisal Shahzad and Umar Farouk Abdulmutallab, for example, both were initially questioned by investigators pursuant to that exception before being read their rights. Both provided information, and continued to do so even after they were told they had a right to remain silent and to representation by a lawyer.

In a letter sent today to President Obama, three prominent former FBI interrogators urged the president not to mess with the current Supreme Court rule.

"Legislating on this subject could very well result in rules that unnecessarily constrain law enforcement officials and hinder their ability to adapt to unforeseen situations," wrote former FBI agents Jack Cloonan, Joe Navarro and Jim Clement. They added: "In our decades of working in law enforcement, including the years following 9/11, Miranda rights never interfered with our ability to obtain useful information or make prosecutable cases."

Judging from his statements at today's hearing, Eric Holder believes that as well. It remains unclear, then, why he'd even consider amending this decades-old Supreme Court rule - placing future terrorist convictions in jeopardy for years to come.

Holder also reiterated that the location of the alleged 9/11 co-conspirators' trial is still under consideration by the Department of Justice. Holder said he's taking into account the reactions of political leaders and residents in the areas where it might be held.

Rep. Anthony Weiner of New York, where Holder originally said the trial would be held in a federal court, today announced that he supports having the trial in New York so long as the federal government restores some $50 million in funding that Homeland Security officials recently said would be cut from New York's anti-terrorism budget.

That funding could be easily restored by closing Guantanamo Bay. As Human Rights First pointed out in a recent video, it costs up to $125 million a year simply to operate the Guantanamo Baydetention camp. And that's not including the hundreds of millions of dollars the federal government spent to build it.

March Madness Strikes the Terror Debates

The Wall Street Journal is absolutely right thatLindsey Graham is tossing up an embarrassing air ball. Graham's effort to get the administration to abandon legitimate federal court trials for suspected terrorists in exchange for the funding needed to close Guantanamo Bay is headed nowhere fast, predicts the Journal.

As I've noted before, Graham doesn't have support for his scheme from either side of the aisle.

Senators with any respect for the U.S. justice system, let alone real concern for national security, know that it's absurd to bargain away the requirement that the 9/11 suspects get a legitimate trial. That means a trial that not only convicts the guilty but reveals what really happened when the United States was ruthlessly attacked on September 11, 2001, and showcases our respect for the rule of law over brutality and political expedience. After all, the US constitution is no bargaining chip - it's survived 223 years, through war and peace, for good reason.

Richard Durbin (D-Ill.), Russell Feingold (D-Wisc.), Patrick Leahy (D-Vt.) and others know that any cheap political points lawmakers might score by abandoning American principles will come back to bite them - particularly if military commission convictions are reversed on appeal. They'll be even more embarrassed when the country looks back a few years from now and wonders how Congress came to abandon the most basic American principles because it was cowed by a handful of thugs eager to be seen as warriors for Allah martyred by the United States government.

Lawmakers speaking out against civilian trials, meanwhile, are so intent on undermining the Obama administration, regardless of their impact on national security, that they're obstructing justice to score political points. Not only do they oppose federal trials, but they won't agree to closing the prison camp at Guantanamo Bay so long as President Obama remains in office. No matter that scores of military leaders, in addition to former President George W. Bush and Senator John McCain - when he was a presidential candidate - agreed that Guantanamo must be shuttered.

So the Journal's right that Graham can't possibly deliver victory on his proposed compromise. But the paper's conclusion -- that military commissions are the place for KSM & Co. to go -- is based on assumptions wholly divorced from the facts.

Military commission proceedings "since September 11 have been serious and even-handed," writes the Journal in its endorsement of those trials.

Really? Three convictions in eight years - only two of which followed trials that were even contested -- hardly backs that claim up.

Take the case of Salim Hamdan, who military prosecutors characterized as a "hardened Qaeda member" and bin Laden's right hand man. The military jury acquitted Hamdan of all conspiracy charges and three of eight charges for "material support for terrorism." The result was a sentence of only five and a half years - most of which he'd already served. And that was a case that government officials had said was "one of their strongest" against any of the Guantanamo detainees, as reported in the Wall Street Journal.

Meanwhile, federal prosecutors have convicted more than 195 terrorists in federal court.

Even Brookings Institution fellow Benjamin Wittes and former Bush administration official Jack Goldsmith, writing in the Washington Post last week, acknowledge the weakness of the military commissions. The two note that "serious legal issues remain unresolved, including the validity of the non-traditional criminal charges that will be central to the commissions' success and the role of the Geneva Conventions." Sorting out those issues "will take years and might render them ineffectual," the authors add. They also note that the commissions lack international legitimacy.

Wittes' and Goldsmith's solution, however, is even worse than the Journal's. "Don't bother trying them at all," the two scholars pronounced. "Domestically, the political costs of trying high-level terrorists in federal courts have become exorbitant," they argue, while the "public relations and related legitimacy benefits" of a military commission trial aren't great, either.

So there we have it. Whether and how to try a group of men who are believed to have orchestrated the worst terrorist attack and mass murder ever on U.S. soil has come down to a question of pure politics. "It is time to be realistic about terrorist detention," write Wittes and Goldsmith, and to concede that the time has come to do away with our quaint notions of justice in favor of a new system of indefinite detention without trial. That should be supported, they argue, with new legislation codifying its legitimacy in U.S. law.

To be sure, that's been the de facto response to many of the suspected terrorists held at Guantanamo Bay for the past eight years.

A similar course was briefly considered after World War II, when Winston Churchillreportedly told Joseph Stalin that he'd rather just execute Nazi leaders upon their capture. Stalin, of all people, insisted that they deserved a trial.

Historically, the United States has prided itself as being several steps above Stalin in terms of its respect for the rule of law. But these latest proposals make one wonder just how low some American opinionators and policymakers may be willing to sink.

Terrorist Prosecutions By the Numbers

 Last night on her MSNBC show, Rachel Maddow did a terrific segment about how Umar Farouk Abdulmutallab is now providing valuable information to the FBI, despite receiving those dreaded Miranda warnings that ‘tough-on-terror’ critics are complaining about. In the segment, Maddow citedthe Justice Department saying that more than 300 terrorists were convicted in the civilian U.S. court system by the Bush administration.

As many people know, Human Rights First published a thorough and widely-cited report in 2008 on those successful terrorist convictions. Yet our updated report, issued last year, cited only 195 terrorists convicted. So what accounts for the different numbers?

In fact, both are true – as is an NYU Center on Law and Security report that recently found that more than 500 suspected terrorists have been convicted in the civilian justice system since September 11, 2001. It all just depends on what you’re counting.

Human Rights First took the most conservative approach. Relying on two respected former federal prosecutors in New York with experience trying terrorism cases, we wanted to see how many cases the courts have handled specifically related to radical self-described Islamic or “Jihadist” terrorism, such as al Qaeda, since that’s where the public debate has focused. So the former prosecutors – James Benjamin, now a partner at the highly-respected law firm of Akin Gump Strauss Hauer & Feld, and the other, Richard Zabel, now head of the criminal division in the U.S. Attorney’s office of the Southern District of New York – analyzed just that.

But there are other violent terrorist groups out there, such as the Revolutionary Armed Forces of Colombia (the FARC) and the Tamil Tigers. Prosecutions of their leaders and supporters raise similar concerns about the need to obtain important intelligence information and to protect classified evidence and the identity of certain witnesses. According to a Justice Department spokesman, the Department’s statement that more than 300 terrorists were convicted in U.S. courts during the Bush administration therefore includes those prosecutions, since they also represent the Justice Department’s experience and expertise in handling these complex and sensitive cases.

The NYU numbers, meanwhile, are even broader. In its recently-released report, the Center for Law and Security looked at all cases since the terrorist attacks of September 11, 2001 that the Justice Department initially described as terrorist-related. Many of those suspects were not charged under terrorism-related statutes, however, but charged with fraud or immigration violations instead. That was part of an initial post-9/11 strategy to get potential terrorists off the streets before they could attack, even if the government did not have sufficient evidence of terrorist connections to secure a conviction. Increasingly, the government has moved away from that strategy and charged suspected terrorists with terrorism-related crimes.

So the numbers just depend on what you’re counting. But the main point – regardless of how many hundreds of convictions we’re talking about – is that the Department of Justice has proven itself time and again to be well-equipped to interrogate terrorist suspects, investigate terrorism plots and prosecute complex terrorism cases. Military commissions, by contrast, have not: they’ve only convicted three terrorists so far, two of whom have already been released from prison.

The recent hysteria about how we shouldn’t be giving constitutional rights to non-U.S. citizens is a red herring. (It’s also worth noting, as Glenn Greenwald explained in an excellent post on Salon on Monday, that the Constitution requires according foreigners detained in the U.S. Constitutional rights – as the Supreme Court ruled as far back as 1886 and recently reaffirmed in its decision inBoumedienne v. Bush.)

Not only does the U.S. Constitution confer those rights, but based on the experience of our own time-tested federal justice system, sound national security policy demands it.

 

An Intelligent Way to Enhance National Security?

Ever since the failed attempt to blow up a Northwest airline carrier on Christmas Day, critics have been pressing to militarize the treatment of all terrorism suspects and deny them the basic due process rights provided by the law.

On Tuesday, bills were introduced in both the House and the Senate to require the Attorney General to consult with the Director of National Intelligence, the Director of the National Counterterrorism Center, the Secretary of Homeland Security, and the Secretary of Defense before filing any civilian charges against a foreigner suspected of engaging in or materially supporting terrorists, regardless of where he’s arrested. Senators Joseph Lieberman of Connecticut and Susan Collins of Maine have also written to Attorney General Eric Holder urging him to transfer the failed Christmas bomber, Umar Farouk Abdulmutallab, to military custody. And on Wednesday, six Senators wrote to Holder “in light of recent events” urging him not to try the four 9/11 suspects in a federal civilian court.

Political posturing to look tough on terrorism is not a new strategy for federal lawmakers. But the level of disingenuousness involved in this particular instance is genuinely striking.
After the State of the Union speech last night, Virginia Governor Bob McDonnell complained that “this foreign terror suspect was given the same legal rights as a U.S. citizen” – as if foreigners have not always been entitled to Constitutional due process when brought to trial in the United States.

At hearings last week, Sen. John McCain (R-Arizona) called the decision to place Abdulmutallab in the federal judicial system "a terrible, terrible mistake when it's pretty clear that this individual did not act alone."

Sen. Lieberman called it "a kind of 'Alice in Wonderland' turning of the world of common sense on its head." And former New Jersey Republican Governor Thomas Kean, who led the investigation into the 9/11 terrorist attacks, said he was "shocked and upset" that Abdulmutallab was read his rights before being fully questioned.

Meanwhile at the National Review, Bill Burck, former Deputy Counsel to President George W. Bush and a former federal prosecutor, was “startled” by Dennis Blair’s and Michael Leiter’s admissions last week that “they were never even consulted about the decision” (his emphasis, not mine) to let the FBI handle the interrogation.

But is the FBI’s handling of Abdulmutallab, arrested at a Detroit, Michigan airport, really so shocking?

In fact, as these critics surely know, every single terrorism suspect arrested in the United States during the eight years of the Bush administration after September 11 was initially interrogated by the FBI, as was Abdulmutallab. Ultimately, every one that was tried had their trial in a civilian federal court. Only two individuals arrested in the United States were ever transferred to military custody – Jose Padilla and Ali Saleh Kahlah al-Marri. And in both cases, the Bush administration, after holding the men for years in military detention, charged them as ordinary criminals and accorded them a civilian trial. 

More than 200 terror suspects have been interrogated and tried this way since Sept. 11, including Richard Reid, the “shoe bomber,” in the case most comparable to Abdulmutallab’s.

So as Senator Claire McCaskill pointed out a hearing last week, to start turning all terror investigations in the United States over to the CIA or the military would be a drastic departure from longstanding precedent.

The critics’ mantra since Christmas that offering terror suspects Miranda rights after an initial intelligence interrogation by the FBI dooms the chances of obtaining useful intelligence is also wholly unsubstantiated. Last week Senator Jeff Sessions (R-Ala.) chastised FBI Director Robert Mueller for allowing FBI agents to read Abdulmutallab his Miranda rights. But as Senator Sheldon Whitehouse (D-RI), a former U.S. Attorney, pointed out, an actual review of real-life terrorism prosecutions reveals that “very successful interrogations have been conducted and very significant intelligence information has been obtained from suspects who have been Mirandized.” In fact, sometimes giving Miranda warnings “is actually a part of an interrogation plan for that particular subject,” he said.

Cooperation of suspects arrested in the U.S. criminal justice system has led to invaluable intelligence about the existence of al-Qaida sleeper cells within the United States, training camps in Afghanistan, how to safely dismantle the device used by Richard Reid (the shoe bomber) and details regarding some of the most high-level terrorism suspects, such as Khalid Sheik Mohammed and Hambali, the mastermind of Jemaah Islamiah, a terrorism network in Southeast Asia.

Previous Senate Judiciary Committee hearings have also revealed that FBI-led interrogations have actually been more effective than the far more aggressive ones conducted by the CIA and Defense Department.

In any event, a detainee arrested in the United States and held in military custody is still entitled to a legal representation.

Meanwhile, civilian trials have been far more successful than military commissions, which have won only three convictions in eight years, as compared to 195 in civilian criminal court.

None of this is to suggest that the Bush administration was ‘soft on terror.’ But it wasn’t very smart on terror, either. Not only haven’t most military detainees been convicted, but the detention of hundreds of suspects for years without charge or trial created a national security nightmare for the United States. Hundreds of Muslims were subjected to unlawful and ineffective “enhanced” interrogation techniques devised by inexperienced and unprofessional psychologists with no background in intelligence gathering. The use of those techniques fomented so much anger in the Muslim world against the United States that even President Bush and former presidential candidate John McCain eventually acknowledged that the Guantanamo Bay detention facility had become a liability for the United States and should be closed.

FBI Director Mueller made clear last week that the FBI brought in high-level interrogators who first questioned Abdulmutallab for intelligence purposes, and obtained valuable information, before reading him his Miranda rights. That’s part of FBI protocol for handling terror suspects. But to forbid the United States from trying terrorists as criminals is to force the US government to continue down the same reckless course that’s landed us in our current national security quagmire.

If there was one thing Senators agreed on at their hearings last week, it was that the government needs a rational way of deciding where and how to interrogate and try terror suspects, based on input from top terrorism specialists and interrogators. Administration officials have promised to create just that. But if the administration bows to political pressure and starts subjecting every terror suspect to CIA interrogation and indefinite military detention, it’s only going to exacerbate the current conundrum.

The U.S. Supreme Court has said the government can detain “enemy combatants” – now called “unprivileged enemy belligerents” -- captured on a battlefield for the duration of a military conflict. But the court in the Hamdi case was talking about the battlefield in Afghanistan; it did not suggest that the airport in Detroit could be a battlefield. To expand the definition that broadly would allow the government to get around the Constitution in almost any criminal investigation by simply declaring the target a potential terrorist. And what would prevent the government from throwing a U.S. teenager surfing Jihadi web sites at home in New Jersey into coercive interrogation and years of indefinite detention? Could that possibly comport with the U.S. Constitution, let alone international law?

Members of Congress pressing for legislation that would require the government to respond to all potential terror cases militarily are stepping onto a slippery slope they’ll likely regret if they can convince their colleagues to join them.

In his State of the Union speech, President Obama called on Congress to “put aside the schoolyard taunts about who is tough” and “reject the false choice between protecting our people and upholding our values.”

He could have gone further and said that rejecting our values actually increases the danger to Americans. Guantanamo Bay was bad enough; hundreds of jihadi suspects subjected to secret interrogations and indefinite detention on U.S. soil is hardly an intelligent way to enhance national security.

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