US Refusal To Investigate Torture Lets Other Countries Do It For Us


The Supreme Court's refusal this week to hear the claims of Maher Arar, a Canadian sent to Syria to be interrogated under torture in 2002, is appropriately being condemned as another example of the U.S. avoiding any legal or moral responsibility for government- sanctioned torture.

What seems to shock and outrage people about the Arar case in particular is that the facts are not in dispute. Canada, whose security services were complicit in his rendition to Syria, has publicly acknowledged its responsibility, compensated Arar,and launched a criminal investigation of U.S. and Syrian officials. The United States, on the other hand, has still neither admitted its role nor held any U.S. officials accountable. And, it hasn't paid Arar a dime.

The United States' refusal to acknowledge its role in the torture of terrorism suspects even when faced with overwhelming evidence of U.S. involvement has become an unfortunate pattern. But it's heartening to see that other countries aren't dropping the matter.

On Monday, the European Court of Human Rights announced that it would hear the case of Khaled el-Masri, a German citizen seized by Macedonian authorities at the request of the United States. El-Masri was beaten and abused during interrogations in both Macedonia and the notorious "Salt Pit" in Afghanistan. Authorities unceremoniously dumped him on a roadside in Albania without charging him with any wrongdoing.His case against U.S. officials was dismissed by a federal court on the grounds that it would reveal "state secrets." The Bush and Obama Administrations have both invoked State Secrets to stop the disclosure of evidence that may reveal government misconduct.

And last year, an Italian court convicted 21 alleged CIA operatives and a US air force operator for their role in the kidnapping and rendition to Egypt of Abu Omar, a Muslim cleric who was already under surveillance by Italian authorities, who suspected him of having ties to al Qaeda. Omar claims he was held incommunicado and tortured in an Egyptian prison for seven months. He was eventually released without charge.

The Obama administration has repeatedly insisted that it wants to look forward, not backward, and so has refused to examine the role of senior U.S. officials in the torture of terrorism suspects. In adopting that position, the government is reneging on its obligations under the Convention Against Torture, which demands both that torturers be held accountable and that victims receive remedies.

Until the U.S. lives up to those responsibilities, its past practices and officers will continue to be scrutinized by foreign governments and justice systems. Those verdicts will cast judgment not only on the past administration's conduct, however. To the extent that foreign governments have to intervene to bring justice to victims of U.S. policies, they will reveal the extent of the United States' current respect for the rule of law as well.


Court Order Highlights U.S. Legal Distortions

Last week, U.S. District Judge Henry H. Kennedy, Jr. released a forceful 36-page opinion in the case of a Guantanamo detainee that would ordinarily be shocking. Sadly, such opinions are now so common that, except for one news story and a few particularly alert bloggers, they get barely a mention in the news.

In his opinion, issued in May but publicly released just last Thursday, the Judge found that a young man from Yemen, seized at the age of 17, has been imprisoned in the United States detention center in Cuba for the past eight years without cause. Although five different times since his arrest officials reviewing his case said Odaini should be released, Obama administration lawyers argued against his petition for habeas corpus, insisting that because the Yemeni student had spent one night at the guest house of a fellow student’s family, and because he had a medical visa rather than a student visa (he said his father had gotten him a medical visa because it was cheaper), the U.S. government can lawfully continue to imprison him.

If that sounds bizarre, it’s not, really. Pursuant to the Obama administration’s interpretation of the Authorization for the Use of Military Force, or AUMF, it says it has the authority to detain indefinitely anyone, anywhere in the world who it suspects is affiliated with the Taliban, al Qaeda or associated forces. And if its position in the case of Mohamed Hassan Odaini is any guide, then it interprets that right very very broadly.

Odaini is one of many young men seized in the weeks and months after September 11, 2001 during raids on guesthouses in Pakistan. He has consistently claimed that he was a student at Salafia University who was invited for dinner at a fellow student’s home and spent the night there. But that home was also a guest house, and some al Qaeda fighters stayed there. Although none ever named Odaini as being connected to their cause, the United States insisted it can infer based on his overnight stay that Odaini was an al Qaeda fighter.

The other men seized in the raid corroborated Odaini’s story that he was a student with no ties to al Qaeda or terrorism. As Judge Kennedy notes in his opinion, U.S. government interrogators and officials, too, quickly came to believe Odaini’s consistent claim. Indeed, five different times, government interrogators or task forces independently determined that Odaini should be released. Each time, that recommendation was ignored.

Then in January, President Obama suspended the transfer of any detainees to Yemen, Odaini’s home country, after the attempted Christmas day bombing by a Yemeni national. At that point Odaini’s lawyer, who had until then assumed his client would be released, as recommended, resumed his petition for habeas corpus to the federal court.

In ruling on that petition, Judge Kennedy said that the evidence presented to the court “overwhelmingly supports Odaini’s contention that he is unlawfully detained.” Reviewing the evidence in painstaking detail, including Odaini’s and other detainees’ statements, plus summaries of interrogation and intelligence reports produced by the government, the judge himself seems shocked that the government would be arguing the lawfulness of Odaini’s detention based on the paucity of proof.

The government repeatedly “distort[s] the evidence,” writes Judge Kennedy, concluding that the only way to believe the government’s position is “if one begins with the view that Odaini is a part of Al Qaeda and searches for a way to believe that allegation regardless of its inconsistency with an objective view of the evidence.”

The judge concludes:

Respondents have kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody at such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to al Qaeda. Consequently, his detention is not authorized by the AUMF [Authorization of the Use of Military Force]. The Court therefore emphatically concludes that Odaini’s motion must be granted.

In concluding that Odaini’s detention “has done nothing to make the United States more secure,” Judge Kennedy may as well have been talking not only about this one case, but about the much broader problems caused by the government’s interpretation of the AUMF and international law. After all, indefinite detention at Guantanamo Bay and Bagram, the continued authorization of abusive interrogation techniques under Appendix M of the Army Field Manual, the prosecution of a handful of terror suspects by military commission, and the controversial drone attacks or “targeted killings” outside declared zones of conflict have all served to foment anger at the United States and been used to justify insurgent attacks. Meanwhile, none of those policies have been shown to have made the United States any more secure.

The administration appears not to be learning from past mistakes, however. Just as it refused to concede the case of Mohamed Odaini, it’s insisting that it maintains the authority to continue to detain indefinitely without trial some 48 more Guantanamo detainees who it has said cannot be tried yet are too dangerous too release – based on evidence that it acknowledges would not hold up in court.

Even more troubling is the administration’s continued detention of some 800 prisoners at the Bagram air base in Afghanistan, since the courts have ruled that those prisoners are not even entitled to habeas corpus review, as Odaini finally obtained here – eight years after his capture.

Last week, 15 former federal court judges urged Congress not to write a new detention law to authorize indefinite detention of suspected terrorists, because independent federal judges are best equipped to decide who’s detainable under the law.

The case of Mohamed Odaini is yet another reason to listen to them.

Update: I was thrilled to see this editorial in the Washington Post this morning pointing out that Odaini's case puts the lie to the still widely-held assumption that Guantanamo remains populated with "the worst of the worst" and urging Odaini's repatriation. Unfortunately, as the Post notes, the Obama administration's ban on transferring any Gitmo detainees to Yemen means Odaini is likely to stay stuck in prison even longer, despite Judge Kennedy's scathing criticism and determination that his detention is unlawful.


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.


Smog Alert: Hot Air in Congress Could Block Gitmo's Closing

It was an odd sequence of events.

First, on Thursday, the Senate Armed Services Committee passed a bill to stop the Obama administration from purchasing a new prison that could house detainees now at the prison camp at Guantanamo Bay under lock and key here in the United States.

Then on Friday, just as the Memorial Day weekend got underway, the House of Representatives voted to stop the president from transferring any of the Guantanamo detainees to the United States for any reason - including a trial.

But then on Saturday, the Washington Post reported that actually, only about 10 percent of the 240 detainees held at Guantanamo Bay when President Obama took office were "leaders, operatives and facilitators involved in plots against the United States." The majority were merely low-level fighters. About 5 percent of the prisoners couldn't be categorized as anything at all.

The report was based on the findings of the administration's Guantanamo Review Task Force, provided to the administration last January. Those findings were never released publicly, and only sent to select committees on Capitol Hill last week. The administration reportedly didn't share the information earlier because, in the wake of the failed Christmas-day bombing attempt, members of Congress had displayed little to no interest in closing the Guantanamo Bay prison camp.

Last week's events reveal that many members of Congress continue to show little interest in the real facts about Guantanamo and the detainees held there. How else to explain the stubborn refusal to allow any of them to touch United States soil, even to stand trial, regardless of whether there's any reason to believe that they're actually terrorists?

The Obama administration's task force that deemed most of them low-level foot soldiers was made up of more than 60 career professionals -- including intelligence analysts, law enforcement agents and prosecutors. They reviewed capture information, interview reports, CIA, FBI and NSA records, as well as files on the detainees' behavior since their imprisonment. Notably, the Bush administration hadn't even bothered to look at much of this evidence, the task force reported, so last year was the first time it had been systematically compiled and reviewed. Senior officials from six different agencies, including the defense department and Homeland Security, approved the task force's findings.

Still, that seems to be having little impact on the 282 lawmakers who voted to ban them all from coming to the U.S. for trial. Many persist in portraying all of the 180 remaining detainees as "the worst of the worst," as former defense secretary Donald Rumsfeld called them.

"We can't stop every terrorist from coming to the United States but we can stop the ones that are coming from Guantanamo," said Rep. Randy J. Forbes, the Virginia Republican who offered the House amendment prohibiting the movement of detainees to the United States.

Meanwhile, a long list of retired military leaders have said that keeping the Guantanamo Bay detention center open threatens national security, rather than improving it.

While members of Congress blow hot air about threats they imagine from suspected terrorists confined in Supermax prisons on U.S. soil, they continue to ignore some very real national security dangers that they have the ability to do something about. As the New York Times pointed out over the weekend, Congress has failed to streamline its oversight of national intelligence and refused to prohibit or even adequately regulate companies' use of toxic gases that could easily be weaponized by terrorists for use in a future attack.

It's high time for lawmakers to stop posturing around imaginary threats, which prevents the federal government from bringing actual terrorists to justice and releasing those who don't deserve to be in prison. That - coupled with tackling tangible threats to homeland security that loom right here in our own country - would be the real way to enhance U.S. national security.

Court Ruling Highlights Need for Due Process at Bagram

The D.C. Circuit Court of Appeals on Friday morning issued a stunning ruling: that the United States government may seize suspected terrorists outside the United States, send them to the U.S.-run Bagram detention center in Afghanistan, and thereby deprive them of the right to challenge their detention in federal court.

The question came up in the case of Maqaleh v. Gates, which involves two Yemenis and a Tunisian, one of whom was arrested in Thailand, and all of whom were flown from outside Afghanistan to Bagram by U.S. authorities and imprisoned there. They've been there, without charge or trial, for the past seven years.

The D.C. court relied heavily on the fact that these three men, all suspected of ties to terrorism, are being held in a battlefield prison in a theater of active war. But as American University law professor Steven Vladeck points out, the only reason they were "in theater" is because the U.S. government had decided to move them there. So this case stands for "the proposition that location of capture is less important than location of detention--and that, so long as the latter is in a zone of active combat operations, there will be no habeas."

The case isn't necessarily over, because the detainees could ask for rehearing or appeal to the Supreme Court. But in the meantime, it highlights the absurdity of the United States' claim that the entire world is a battleground and suspected terrorists seized anywhere can be held by the U.S. government as enemy belligerents without the opportunity to challenge that in an impartial federal court. Although the laws of war do allow detention of some belligerents captured on a battlefield in an international conflict, there's nothing in U.S. or international law that authorizes capture of alleged enemies anywhere in the world to be brought to a battlefield where the U.S. is fighting local insurgents, for purposes of their indefinite detention.

The United States continues, however, to detain more than 800 prisoners at Bagram, on very shaky legal ground. To be sure, the U.S. military does eventually offer them some form of a hearing to decide whether they're actually "belligerents" fighting U.S. forces. But as Human Rights First has pointed out before, the procedures in those hearings -- although improved during the Obama administration -- still don't come near providing real due process.

For one thing, the 800 + detainees at Bagram have no right to a lawyer. Although they are assigned a "personal representative" by the military to represent them, there are only about eight such representatives available to represent more than 800 prisoners, and none of them are lawyers. Meanwhile, their own ability to collect evidence and call witnesses is limited to whatever is deemed "reasonably available" by the military. On top of that, much of the evidence used to justify detaining the suspects has been classified; the suspects themselves never actually get to see it. So how can they defend themselves, or even inform their "personal representative" of the relevant facts, if they don't know what evidence is being used against them, or the credibility of whoever provided it?

In Boumediene v. Bush, the U.S. Supreme Court ruled that similar proceedings provided at Guantanamo Bay were wholly inadequate, and that prisoners there have a right to challenge their detention in federal court. Although the D.C. Circuit Court decision on Friday acknowledged this, it ultimately decided the case based on other considerations, such as the practical difficulty of providing habeas corpus rights to hundreds of detainees held in Afghanistan.

Setting aside the broader issue of who's a belligerent and who gets to decide, Friday's decision underscores the importance of the Obama administration providing a meaningful way for Bagram detainees to challenge their detention.

Improving those procedures isn't only a matter of the United States meeting its obligations under international law. It also has very practical implications.

The U.S. military has said repeatedly that its strategy in Afghanistan depends on winning the "hearts and minds" of the Afghan people. Only by providing legitimate public proceedings that afford detainees a meaningful ability to challenge their detention can the United States ever hope to win that critical battle.

This post has been updated.

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.

Congressional Sparring Ignores Practical Reasons For Miranda

As lawmakers in Congress duke it out over whether the Times Square bombing suspect ought to have been read his Miranda rights, it's worth considering the real-life impact of reading a suspect his rights - and of withholding them. The consequences of not reading rights to terrorist suspects that we later want to prosecute are now on display at the military commissions in Guantanamo Bay, Cuba. And it's not looking good for the government.

Omar Khadr, whose pre-trial hearing continues, was not read his rights, pursuant to Bush administration policy. Of course, Khadr was captured in Afghanistan, following a deadly shootout with U.S. forces. The Obama administration isn't reading Miranda rights to battlefield captures either.

Withholding Miranda rights makes sense in the heat of a battle, because we don't usually prosecute warriors; instead, we try to defeat their forces, and send prisoners home when the war is over. But once the government decides it may want to prosecute someone and bring him to justice - whether he's captured in an Afghan desert or at JFK airport in New York - there are very practical reasons for informing him of his rights.

In the case of the Times Square suspect, Faisal Shahzad, U.S. officials initially questioned him without reading him Miranda rights, under what's known as the "public safety exception" to the Miranda rule. Statements made in that initial period when the FBI is collecting information about any imminent threats are still admissible in court later. But once investigators determine that the imminent threat is over, they must deliver those Miranda warnings if they want to use any of the evidence they gather from the suspect later in a prosecution. In Shahzad's case, they did - and hereportedly kept right on talking.

That's typical - as Human Rights First's report "In Pursuit of Justice" notes, empirical studies from both supporters and opponents of the Miranda rule have found that giving the warnings has little real effect on whether a suspect speaks to police without a lawyer.

Still, to some, the idea of telling a suspected criminal that he has the right to remain silent sounds kind of silly. After all, why would you want to encourage him not to talk?

But the Miranda rule developed for a very good reason, and has withstood several legal challenges. The Constitution (and the Uniform Code of Military Justice) provides suspects the right against self-incrimination, and the right to the assistance of an attorney. By informing a suspect of those rights, the FBI basically immunizes itself - anything the suspect says afterwards can then lawfully be used against him.

The Miranda rule means the government doesn't later have to spend months arguing in court over whether a suspect's statements were voluntary or coerced, as it's now forced to do in the Khadr case. Because even military commissions forbid reliance on involuntary confessions, except those made at the point of capture or during active combat - a rule that's similar to the federal court's public safety exception.

The Khadr case is a perfect example of how hard it is for the government to show that a suspect confessed voluntarily if he was never told of his right not to.

Khadr, who was 15 when he was captured, claims he was mistreated in custody and coerced into saying things that weren't true. His hearing is ongoing, and although some evidence has emerged to support his claims, it's impossible to know yet what really happened. (As I've explained before, themilitary commission rules make finding the truth in such cases particularly difficult.) But if Khadr can show that he was coerced into confessing, his statements have to be thrown out even under the military commission's rules. That's because coerced statements are considered inherently unreliable - in any U.S. court of law.

To argue that Shahzad shouldn't have been read his Miranda rights, as Senator John McCain (R-Ariz.) did yesterday, makes even less sense than in a case like Khadr's, because Shahzad is a U.S. citizen who cannot legally be tried in a military commission. (Rep. Peter King (R-NY), who reportedly said Shahzad should be tried in a military commission, apparently didn't understand that.) So the result of not reading him his rights after the public safety threat has subsided would be to undermine his subsequent prosecution - and to risk having to let him go free.

Surely Sen. Christopher Bond of Missouri, the ranking Republican on the Senate Intelligence committed, didn't mean to suggest we should free terrorists when he said yesterday that the U.S. has "got to be far less interested in protecting the privacy rights of these terrorists than in collecting information. . . ." But that could be the logical result of the current campaign to deny terror suspects basic rights.

Even Glenn Beck, the conservative Fox News commentator, defended the Obama administration's handling of the case yesterday, saying that "we uphold the laws and the Constitution on citizens....We don't shred the Constitution when it's popular."

Connecticut Senator Joe Lieberman's response to that, of course, was that Shahzad, who hasn't yet been convicted of anything, should be stripped of his citizenship. (In fact, if he were convicted of fighting with an enemy military force he would be stripped of his citizenship anyway.)

Setting aside the many compelling arguments for why the United States on principal shouldn't be cowed by terrorists into abandoning our own Constitution, it's worth remembering that the Miranda rule serves a very important practical purpose: it ensures that suspects' confessions are usable in court against them, and that terrorism convictions in any U.S. legal forum will stand.

The Real Reason Khadr's Case Is In A Military Commission

As the government continues to pursue the case of Omar Khadr, it's becoming clear why the administration chose to try this case in a military commission rather than a regular civilian federal court: a civilian federal court judge would likely throw the case out.

The reason isn't only that Khadr was, at worst, a child soldier - he was 15 when he was captured in a compound of al Qaeda associates who were friends of his father's. It's that his statements recounting what he did before his capture would almost certainly be ruled inadmissible.

Khadr is accused of throwing a grenade in a firefight with U.S. forces in Afghanistan that killed an American soldier. He's also accused of assisting al Qaeda operatives - all friends of his father's - in making and laying explosives.

Although almost killed in the firefight, Khadr eventually regained consciousness at the US air base in Bagram, where he was immediately interrogated. Among other things, he provided valuable information about al Qaeda operatives.

Four of his interrogators took the stand last week in a pretrial hearing in Khadr's war crimes case now pending in the military commission at Guantanamo Bay.

So far, two military interrogators and two FBI agents have described how they ingratiated themselves to the young teenager by bringing him M&M's, McDonald's sandwiches and video games. One, an attractive young woman identified only as "Number 11," says she was chosen to question him in the hopes that he would open up to her as "a mother figure." Whether he saw the lithe twenty-something brunette as motherly or something else is questionable. (Journalists at Gitmo last week took to calling this witness "the honeypot.")

Setting aside the ethics of using an attractive young woman to lure an adolescent boy, there's a striking problem raised by all of the interrogators' testimony so far: not one read Khadr his rights. That was U.S. policy at the time, because the government's goal was to obtain military intelligence, not to prosecute crimes.

These days, critics mock the idea that terror suspects should be read Miranda rights - a Supreme Court rule created to ensure the 5th Amendment right against self-incrimination. But what's become clear in the military commission proceedings last week is the critical role that rule plays: to ensure that confessions are voluntary, and that the suspect knows that his statements could be used against him later.

The aim isn't to make the suspect clam up, as Senators Lindsey Graham or Mitch McConnell might claim. The idea is, at least in part, that if a suspect doesn't know how his statements will be used, he may be more likely to make stuff up. How else to explain the many different versions of his story that Khadr told different interrogators?

In one version, for example, Khadr said he remembers throwing the grenade - although he was shot twice in the chest and knocked unconscious moments later. It was the first time he'd ever thrown a grenade, he claimed, so he threw it just like he'd seen it done in the movies. In another version, he told a different interrogator that he'd had lots of training in small arms fire. He never mentioned the movies.

Then there's the story Khadr told another interrogator, that both of his parents had been killed in a car accident. He told a different questioner that his father had died in Egypt, and his mother had died of cancer.

Khadr also reported enjoying his celebrity among the detainees at Bagram, who recognized his father as a high-level Al Qaeda operative. Khadr boasted to them that he'd killed a U.S. soldier.

Are these statements incriminating evidence that support the government's case, or boastful talk by a teenager bored out of his mind in prison and eager to please his attractive and generous visitors? It's worth noting that between interrogation sessions, Khadr had fits of uncontrollable sobbing, crying for his grandmother and acting "suicidal and depressed," as one FBI agent described it in his notes. On the witness stand, the agent attempted to retract that statement: " 'crying and inconsolable' would have been more accurate."

Khadr believed, as one interrogator testified, that cooperating and telling them what they wanted to hear would lead to his prompt return to Canada - not to his detention in a U.S. military prison without trial for the next eight years.

As he heads to trial this summer, Khadr is no longer boasting that he threw a grenade or willingly manufactured explosive devices. Now, represented by lawyers, he's claiming he was abused at the Bagram and Guantanamo prisons, that his statements were involuntary, and that all of them should be suppressed.

The defense team has not yet had an opportunity to call witnesses to support that claim, and it may be impossible get at the truth of what happened in the military commissions. That's because only the government has the power to compel interrogators to testify. Not surprisingly, those that have testified so far say they were exceedingly nice to Omar Khadr.

But Khadr was questioned by more than 30 different interrogators. His defense lawyers want to interview them all about Khadr's treatment - including one who the defense says already told the government that Khadr was threatened with rape, confirming one of Khadr's claims. But the government has refused to make any of the interrogators available to the defense for questioning.

The judge may be able to order some interrogators to appear in court, although he hasn't done it so far - and the commission rules don't require it. Issued just last week, the rules say a defendant is not entitled to the same access to evidence that the government has, as he would be in a military court martial. In the military commissions, the defense is entitled only to "reasonable access" to evidence.

If an interrogator is overseas, or is a CIA agent whose identity is secret, is it "reasonable" to require him to appear? The rules don't say, giving the judge great latitude to say no. It's not even clear if the judge has authority to compel testimony from a witness in a government agency outside the military. All of this could make it impossible for the defense to even present evidence supporting Khadr's claims.

After the first week of this hearing, whether or not Omar was abused in prison seems almost beside the point. The government's own witnesses are portraying him as a child who was victimized by the adults who raised him, then used by U.S. authorities to extract information, which he willingly provided - only to have it used against him years later, after he'd finally become, at least technically, an adult.

The rules governing federal courts - that suspects must be read their rights for their statements to be admissible, that law enforcement must seek the consent of a child's parent or guardian before questioning him, and that the defense can issues subpoenas to compel witnesses to testify - are not trivial technicalities. They all exist for a reason: to ensure that trials are fair and justice is done.

The Bush administration started the United States down a very rocky path by abandoning those rules in the "war on terror." The Obama administration does not have to continue in that direction.

Omar Khadr, who this past week was apparently so distraught that he refused to attend his own trial, may have given up hope that justice is anywhere in the cards for him. The government still has the opportunity to prove him wrong.

Why is the US Military Prosecuting a Child For Following Daddy's Orders?

What emerged from another day of testimony in the Omar Khadr military commission case today was the portrait of a young boy ordered by a powerful father and his al Qaeda associates to do bad things. And now, eight years of imprisonment later, that child is being prosecuted for it.

Khadr is accused of throwing a hand grenade that killed a U.S. soldier, and conspiring with al Qaeda to plant explosives. Although the hearing now being heard by the military commission in Guantanamo Bay is ostensibly about whether to suppress his confessions, which he says were elicited by abusive treatment and torture, the government's witnesses so far are presenting much of the substantive evidence supporting the military's case.

Three individuals who interrogated Omar Khadr testified on Friday: an FBI agent who interviewed Khadr at the Bagram air base in Afghanistan, and two military interrogators who interviewed him at Guantanamo Bay. All three testified that they were always exceedingly nice to Khadr, giving him water, snacks and games. In turn, Khadr poured his heart out to them, telling them how as a child he played with the children of Osama bin Laden and was ordered to act as a translator for his father's al Qaeda associates. He also provided details of what happened at the fateful firefight that led to the death of a U.S. soldier.

The government clearly intends this testimony to be damning to the defense, since the interrogators have all testified that Khadr confessed to throwing a grenade and to helping his father's associates build land mines. But it's not clear whether he was even attempting to tell the truth, or whether he was simply telling these kindly interviewers what he thought they wanted to hear - anything to keep him from being returned to his prison cell. The fact that significant facts in his stories differed depending who he told them to at the very least raises that question.

One of the interrogators who testified today, named #11 by the government, was an attractive young woman who testified that she was chosen to question Khadr because the military thought he would view her "as a mother figure." Not surprisingly, she testified that Khadr told her repeatedly that he would rather talk to her anytime than sit bored and alone in his Guantanamo prison cell.

Significantly, however, the details of Khadr's stories changed when he spoke to different interrogators. Khadr told the FBI agent in Bagram, for example, that he'd thrown a grenade over a compound wall as U.S. forces stormed the compound. Khadr told a military interrogator at Guantanamo Bay that he threw a grenade backwards over a 3-foot-tall bush. Testimony today revealed he'd told other interrogators that both of his parents had been killed in a car accident. He told someone else that his father had died in Egypt, and his mother died of cancer. If nothing else, that all calls the reliability of any of his statements into serious question.

The government's witnesses all appeared professional and competent, and all swore they'd never so much as even raised their voice at Omar Khadr. That doesn't address whether any of the other 30 or so interrogators who interviewed him treated him well, however. And it doesn't explain why the government refuses to produce more than three of those interrogators for interviews by defense counsel.

But what struck me most in this long day of testimony was that Omar Khadr, dragged around Afghanistan from the age of nine by his father, was exactly the sort of child that international treaties are intended to protect.

The FBI agent, Robert Fuller, testified that Khadr easily identified a long list of al Qaeda operatives shown in photos and on a videotape. He proceeded to recount that Khadr told him the details of how he'd met each of these people, all in the mid-1990s, and mostly at weapons training camps or guesthouses - when Khadr, who was born in 1986, was between nine and 11 years old.

All of which raises the question, what exactly is the government trying to prove in this case? The remarkable fact that a small boy took orders from his terrorist financier father?

Whether or not Omar Khadr was treated inhumanely or tortured, as he claims, the testimony presented so far in the case underscores the fundamental problem here: that trying a child as an enemy combatant for alleged war crimes is not only a violation of international humanitarian law; it also flies in the face of common sense.

Concerns about Sufficiency of Medical Treatment Mar Military Commission Proceedings

Today's hearing in the military commission case of Omar Khadr was once again fraught with confusion, complication and delay. This time the problem appeared to be the military judge's refusal to question military procedure - even when it might be causing significant harm to the defendant.

Omar Khadr, the Canadian detainee seized and imprisoned by US authorities in Afghanistan when he was 15 years old, has consistently cooperated with the military commission and followed its rules and procedures. When he sat in the courtroom yesterday, for example, he was leaning forward attentively, apparently following every word as the lawyers argued over the admissibility of evidence and an FBI agent took the stand to testify against him. He made no sign of being uncooperative, and observers at his previous hearings say that's consistent with how he's always behaved in hearings. But something was different today.

The Morning Session

When observers arrived at the hearing this morning, we learned that Omar Khadr would not be attending. Based on the testimony of a military captain who'd attempted to bring him to court this morning, he'd had severe pain in his left eye. Khadr is blind in that eye due to shrapnel wounds arising out of in a firefight with U.S. forces in Afghanistan in 2002. This morning it was causing him severe pain, he said. His lawyer said the entire left side of his face was beet red.

Khadr was taken to a medical clinic where he received eyedrops. He then confirmed that he still wanted to attend his hearing. But he was forced to put on what the military calls "eyes and ears" - tight-fitting blacked-out goggles and ear muffs that completely block out sight and sound. Although that's standard operating procedure when a detainee is transferred outside "the wire," the captain testified this morning, yesterday evening was the first time that Khadr had been required to keep the goggles in while sitting inside the military vehicle - which has no windows. Khadr first complained of eye pain yesterday afternoon.

How is wearing goggles and ear muffs necessary inside a completely enclosed windowless military van necessary for security? His lawyers asked this morning on cross-examination.

The military's witness couldn't say. "My understanding was that it's SOP," she replied. She added that Khadr said that he didn't want to wear the "eyes and ears" because "the reason is just to humiliate us."

But Khadr's defense lawyers weren't so sure. Barry Coburn, his lead civilian defense attorney, offered to bring in witnesses, including a doctor and retired military general who'd examined Khadr, who would explain the pain Khadr seemed to be in and why tight-fitting goggles would be a very bad idea.

That didn't interest the judge. "This commission is not going to second-guess the security procedures required by JTF-GTMO," he announced. "It is not the commission's responsibility to second guess decisions by security officials about what's needed to transport detainees from location A to location B."

But what if those procedures are unreasonable, unnecessary, and causing the detainee extreme pain? In a civilian federal court, a judge would surely probe newly-imposed detention conditions that appeared to have no valid purpose and were deterring a defendant from attending his own trial. But Judge Parrish was not going to go there.

Coburn raised another point: the new military commission rules say that Khadr has the right to be present at his hearing, and that any refusal to participate must be "voluntary." Is it "voluntary" if Khadr is not participating because he's in pain, and because the procedures suddenly changed just as his trial got underway?

The judge hesitated. But it wasn't the pain or the question of Khadr's voluntariness that was concerning him. Rather, it was that a rule appeared not have been followed.

Having instructed someone to search the record, the Judge realized that, in true U.S. military commission style, Omar Khadr, although arraigned twice before in two different incarnations of the military commissions - he was charged first in 2004 and then again in 2007 under the Military Commissions Act - had never been read his rights. The military commissions have always required informing the detainee that he has a right to appear at his hearings and that the proceedings may continue without him if he voluntarily chooses not to. But apparently, no judge had ever before told him that.

Uh-oh, looks like a rule was broken. "I don't feel comfortable proceeding until I know he was so advised," said Judge Parrish.

So Judge Parrish told the defense lawyers that he could either have Khadr forcibly dragged to court so that he could read him his rights, or his defense attorneys could convince their client to appear - or get his consent not to, and report back to the court.

The Afternoon Session

Ultimately, Omar Khadr chose to appear in court rather than be forcibly dragged there. But it was clear he was in serious pain. From where I was sitting behind him, I could see him hunched over, his head in his hands, and a wad of tissues in one hand. When the judge read him his rights, he quietly said he understood, but he sounded like he was crying.

The judge seemed unconcerned, and proceeded with the hearing. It was not one of the military commission's finer moments.

After the hearing, I spoke to General Stephen Xenakis, who's been retained as a medical expert by Khadr's defense counsel. A retired military general and practicing physician, he'd examined Khadr during the break and concluded that he was suffering from extreme conjunctivitis, exacerbated by his shrapnel wounds, or worse. And he was suffering from high blood pressure which was adding pressure to his eye and worsening the pain. The eye drops he'd been given, Xenakis said, dulled the pain for only an hour. They hardly solved the problem.

"If I were the general in command of this base I would make sure he sees an ophthalmologist," said Xenakis, who added that the goggles Khadr was forced to wear were surely aggravating his condition.

Too bad there is no ophthalmologist available on the Guantanamo Bay military base.

At a press conference late this afternoon, a spokesman for JTF-GTMO said that Khadr had not actually seen a doctor at the clinic this morning. He would, however, be taken to see some sort of doctor this evening, and an optometrist - a non-medical health care provider who measures vision and fits eye glasses - would see him sometime tomorrow.


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