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Pundits Punch and Congress Cowers: Bill Bans all Gitmo Prisoner Transfers for Trial

12:18 pm in Uncategorized by daphneeviatarhumanrights1st

After Ahmed Ghailani was found guilty of participating in a conspiracy to bomb two U.S. embassies in November, a conviction that could land him life in prison (his sentencing hearing is scheduled for January), the usual slate of right-wing pundits took to the airwaves, eager to denounce President Obama for trying the suspected terrorist at all.

Liz Cheney declared that the guilty verdict “signals weakness in a time of war.”

John Yoo said prosecutors were “lucky to even get one conviction,” adding that “It is really hard to see what the upside is to having civilian trials.”

And Laura Ingraham, sitting in for Bill O’Reilly on Fox, called trying terror suspects in federal court “insane,” “wrong” and “potentially dangerous.”

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Indefinite Detention Would Harm, Not Help, National Security

8:54 pm in Uncategorized by daphneeviatarhumanrights1st

Since Ahmed Ghailani’s conviction on only one of 285 criminal counts on Wednesday, the verdict has been pronounced by supporters of military commissions as the reason to stop trying any terror suspects in civilian courts.

In their op-ed in the Washington Post today, Brookings Institution fellow Benjamin Wittes and Harvard Law Professor Jack Goldsmith attack that reasoning, explaining that there’s no reason to believe that Ghailani would have been convicted of all the charges against him in a military commission, either. Military justice rules ban tortured evidence as well. As in the New York trial, none of Ghailani’s statements made to the CIA during what the government admits were coercive interrogations would have been admissible. Evidence derived from those statements would likely have been deemed inadmissible as well. Still, civilian prosecutors in a New York federal court managed to convict Ghailani for a crime imposes a mandatory minimum sentence of 20 years, and up to life in prison.

That isn’t good enough for Wittes and Goldsmith. Although they acknowledge that military commissions “raise legal uncertainties” that could undermine future military commission verdicts, they argue that the better choice is simply not to try suspected terrorists at all. It’s not clear why they think the civilian justice system is insufficient, other than that, because a conviction isn’t guaranteed beforehand, there’s always the possibility of the government being embarrassed by an acquittal.

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Gitmo Guilty Plea Is A Sad Day for U.S. Rule of Law

3:02 pm in Uncategorized by daphneeviatarhumanrights1st

This morning I sat in a U.S. military commissions courtroom in Guantanamo Bay, Cuba, and watched the first child soldier charged by a Western nation since World War II plead guilty to crimes he was never even accused of. If the guilty plea of Omar Khadr this morning was a face-saving effort by the U.S. government, it was a sad day for the rule of law in the United States.

Omar Khadr is the 24-year-old Canadian who’s spent a third of his life in U.S. custody without trial after being accused of helping his father’s al Qaeda associates build improvised explosive devices when he was just 15. He was taken to Afghanistan from Canada by his father at the age of nine. The lone survivor of a 2002 U.S. assault on an Afghan compound, Khadr was accused of throwing a grenade that killed a U.S. soldier.

But as he entered his guilty plea this morning — after the government agreed he’d serve just one more year at Guantanamo Bay, and an as-yet-unspecified number of years in Canada — it was clear that prosecutors had taken the opportunity to throw the kitchen-sink-full of charges at him – including far more crimes than he’d even been charged with. Most importantly, Khadr pled guilty to the murder of two Afghan soldiers who accompanied U.S. forces in the 2002 assault on the compound. The government has never presented any evidence whatsoever that Khadr was responsible for that.

That Khadr pled to this and the range of other charges that the government first unveiled today (details will not be available until the military commissions publicly release the stipulation signed by Khadr tomorrow) is hardly surprising. Ever since Judge Patrick Parrish ruled that Khadr’s statements made to interrogators after he was threatened with gang-rape, coerced and possibly tortured were admissible, his defense was sure to be challenging. Although the government did not appear to have any forensic or eyewitness testimony to support its murder charge, government interrogators planned to testify that Khadr had willingly told them that he threw the grenade that killed Sergeant First Class Christopher Speer. Whether he said that because it was true, or because he was a scared and wounded 15-year-old expecting a quick release for telling his interrogators what they wanted to hear, we’ll never know. (Khadr was shot multiple times and severely woundedin the firefight, which left him blind in one eye; he still has shrapnel in the other.)

Khadr’s sentencing hearing begins tomorrow. Although the plea agreement contains a recommended sentence (news reports have said it’s 8 years total) that deal will remain secret until the military commission sworn to act as a jury in this case issues its own sentence based on live testimony. The government will present witnesses to describe the effects of improvised explosive devices, and the testimony of Sergeant Speer’s widow about her loss. Khadr’s lawyers will put forth psychological and psychiatric experts to talk about the impacts of torture on him and likely about the ability of a 15-year-old youth to appreciate the wrongfulness of his acts, particularly when they were directed by the adults around him.

But all of this is hardly a vindication of the U.S. military commission system. After the plea was entered this morning, chief prosecutor Captain John Murphy told reporters that Khadr “stands convicted of being a murderer and also being an Al Qaeda terrorist” based on “his own words.”

To be sure, Judge Parrish took pains today to ask Khadr if he was entering his guilty plea knowingly, and fully understanding the consequences. Khadr nodded and quietly answered “yes.” But in truth, he had little choice. If Khadr had gone to trial, he faced a potential life sentence from a military jury, who would hear how he “confessed” to the crimes in interrogation. He could have faced many more years in prison. What’s more, the U.S. maintains the right to indefinitely detain him even if he was found not guilty. Ironically, all but one of the other four detainees found guilty in military commissions have gone home, while dozens of remaining Guantanamo detainees who have never been charged with a crime continue to languish.

For Khadr, then, today’s guilty plea was probably the right choice. His Canadian lawyers are likely to challenge his sentence as unlawful as soon as he’s transferred to Canada. (The “diplomatic notes” reached between the U.S. and Canadian governments that will likely allow his transfer after a year in U.S. custody are still secret but will be released with the plea agreement after the commission members recommend their sentence.)

For the U.S. government, the guilty plea was a way to save face. After all, the Obama administration knew that it was a political embarrassment for its first military commission trial to be of a child soldier – a contradiction of its obligations under international law to rehabilitate child soldiers rather than punish them. The administration also knew that the charges against Khadr were all legally dubious – invalid under international law and a violation of the ex post facto clause of the U.S. Constitution. Khadr’s guilty plea allows them to rack up another “win” for the military commissions, pushing the total to a whopping five convictions in the last eight years. By contrast, U.S. civilian federal courts have convicted more than 400 terrorists in that same time period. This doesn’t exactly tip the balance.

Still, no matter how you look at it, this plea makes a troubling statement about the United States’ respect for the rule of law. Although as part of his plea agreement Omar Khadr has waived his right to appeal his conviction or to sue the United States for his confinement or treatment, a dark cloud continues to shadow this case. That cloud will continue to conceal the truth about Omar Khadr’s treatment at the hands of his U.S. interrogators; and it will ensure that the validity of his conviction, and the integrity of the military commissions themselves, remain in doubt.

Criticism of Federal Courts for Terrorism Trials Once Again Falls Flat

3:39 pm in Uncategorized by daphneeviatarhumanrights1st

I had thought that National Review columnist Andrew McCarthy’s criticisms of federal court trials for suspected terrorists had been thoroughly discredited, ever since we learned that his frequent criticism that civilian trials hand our enemies classified evidence to use against us was shown to be complete malarkey. As my former colleague Spencer Ackerman has pointed out, the one case frequently cited as evidence that federal civilian trials fail to protect classified evidence was actually a case prosecuted by Andrew McCarthy himself. And, as my colleagues at Human Rights First explained in a report titled Pursuit of Justice, given the Classified Information Procedures Act and other means of filing sensitive information with the federal courts under seal, prosecutor McCarthy could easily have protected that information from ever becoming public.

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Former Gitmo Prisoner’s Case Comes Down to What He Knew and When He Knew It

3:08 pm in Uncategorized by daphneeviatarhumanrights1st

Lawyers made opening statements Tuesday as the trial began in earnest for the first former Guantanamo detainee transferred to U.S. soil. While the government portrayed the slight, baby-faced 36-year-old as a vicious al Qaeda murderer who helped plan two US embassy bombings that killed 224 people, the defense told a very different story. Although not contesting much of the evidence the government plans to present — about the bombings themselves, its destructiveness and their innocent victims — defense lawyers argue that Ahmed Khalfan Ghailani was a hapless young Tanzanian duped into helping his powerful childhood friends who, unbeknownst to him, were al Qaeda killers.

What’s most surprising about the case is that, based on the government’s opening arguments, it’s not clear whether prosecutors have any direct evidence establishing that Ghailani intended to hurt anyone, or even knew that the items he purchased in Tanzania were going to be used as a bomb. That knowledge is a critical element of the charges against him — particularly the multiple murder charges.

From the opening statements, it seems that the government will try to piece together the circumstances of the bombings and evidence that Ghailani paid cash for the two-and-a-half ton white Nissan truck and tanks filled with oxygen and acetylene, all of which were used to create a massive bomb detonated outside the U.S. embassy in Tanzania in 1998, to argue that Ghailani was in on the plot from the beginning, which prosecutors link back to Osama bin Laden. Ghailani purchased the truck and gas tanks, prosecutor Nicholas Lewin told the federal court jury in downtown Manhattan today, "because he and his associates were committed to Al Qaeda’s overriding goal: killing Americans."

Defense lawyers, on the other hand, are presenting Ghailani as an innocent "creature of his surroundings," as Steve Zissou, one of his lawyers, put it today. Ghailani, his lawyers argue, was a simple young man struggling to earn a living, who acted as an errand boy and middle man, buying a truck and gas tanks in the chaotic open markets of Dar es Salaam, Tanzania, "where you could literally buy anything and sell anything." Ghailani didn’t know what his friends wanted these things for, Zissou argued, and therefore cannot be held responsible for his friends’ actions. Ghailani is "not just presumed innocent," but "truly innocent."

The government’s first witness, the acting U.S. Ambassador in Tanzania at the time of the bombing, opened the government’s case with a description of the day of the bombing and the explosion itself. Whether the government will be able to actually demonstrate that Ghailani knowingly helped plot and carry out the bombing remains an open question.

What’s clear from the trial’s opening, however, is that lawyers on both sides seem strong, the judge appears to be addressing the issues even-handedly, and, 12 years after the East Africa embassy bombings, the stage is finally set to give Ahmed Khalfan Ghailani a fair trial.

Critics of Ghailani Trial Have Little Faith in U.S. Law

10:37 am in Uncategorized by daphneeviatarhumanrights1st

On Wednesday, to the surprise of some spectators in the courtroom, a U.S. federal judge did the right thing: he followed the law.

Judge Lewis Kaplan had a clear choice before him: he could exclude the testimony of a government witness discovered via abusive CIA interrogation of Ahmed Khalfan Ghailani, or he could allow the government to introduce that testimony, in blatant violation of U.S. law. Ghailani, transferred from Guantanamo Bay to New York last year, is now on trial for allegedly assisting in the 1998 bombings of two U.S. embassies in East Africa.

In a U.S. federal court, testimony derived from a coercive interrogation is not admissible. A similar rule applies in the military commissions at Guantanamo Bay. Although judges there have more leeway, most military judges are equally principled and take the ban seriously. Torture-derived evidence is inadmissible for two reasons: to prevent U.S. authorities from engaging in torture, and because such evidence is inherently unreliable. International treaties similarly ban its use.

The government knew, of course, that this would be a problem, and it surely has plenty of other evidence against Ghailani or it wouldn’t have transferred him to civilian court in the first place. After Judge Kaplan’s ruling, Attorney General Eric Holder expressed his continued confidence in the case. Notably, four of his alleged co-conspirators in the bombings were tried and sentenced to life in prison back in 2001 – without the use of this particular government witness. Evidence introduced in that trial pointed to Ghailani as well.

Still, since Wednesday, commentators such as Liz Cheney and Jack Goldsmith have seized on Judge Kaplan’s ruling to lament not the fact that Ghailani was thrown in a CIA black site for two years and likely tortured (the government refuses to address Ghailani’s treatment in this trial but concedes he was "coerced"), but the fact that the judge has excluded the evidence that his interrogators squeezed out of him – or to claim the administration should never have given Ghailani a trial at all.

"If the American people needed any further proof that this Administration’s policy of treating terrorism like a law enforcement matter is irresponsible and reckless, they received it today," announced Cheney after the ruling. Goldsmith, the Harvard Professor and former head of the Office of Legal Counsel Under President Bush, now writing on the new Lawfare blog, wonders "why the government is bothering to try Ghailani." Why not simply imprison him indefinitely?

Coming from Goldsmith, this is particularly disappointing. When he was at OLC, he had the courage to criticize his colleagues John Yoo and Jay Bybee for their twisted legal analysis that allowed them to institutionalize torture as U.S. policy. Now, rather than recalling that error as the source of the problem in Ghailani’s trial today, he’s criticizing the Obama administration for applying the rule of law at all.

Technically, Goldsmith may be right: the administration could just declare Ghailani an al Qaeda member and ongoing threat and hold him in military detention forever. That’s the unfortunate consequence of the "war against al Qaeda, the Taliban and associated forces," which has no logical end. But as a matter of principle and policy, imprisoning people indefinitely without trial would be a disgrace, along the lines of what Goldsmith’s colleagues at OLC sanctioned.

If there’s anything the United States stands for — or used to stand for — it’s that we don’t throw people in prison without proof they’ve done something wrong.

Principle aside, it’s just bad strategy. As General Petraeus has acknowledged, winning the war against al Qaeda and the Taliban is as much about winning over the local populations where they live as it is about U.S. military prowess. Throwing Muslims in prison for decades without charge or trial is hardly a good strategy. If, as national security experts tell us, al Qaeda’s strategy is to present the U.S. war against terror as a war against Islam, indefinite detention of suspected Islamic insurgents without trial hands al Qaeda its most effective propaganda campaign on a silver platter.

Cheney and Goldsmith may be right that excluding a witness derived by torture will make the government’s case against Ghailani more difficult. But in the end, a fair trial for a suspected terrorist in a respected federal court will do far more to defeat al Qaeda and its associates — and to bolster the image of the United States in the world — than will foregoing justice altogether.

Alleged Al Qaeda Terrorist Trial Begins Today in NYC Courtroom

6:38 am in Uncategorized by daphneeviatarhumanrights1st

When Ahmed Khalfan Ghailani was first transferred to New York from Guantanamo Bay last year, House Republican leader John Boehner of Ohio called it "the first step in the Democrats’ plan to import terrorists into America."

More than a year later, Ghailani remains the only detainee from Guantanamo Bay to be brought to the United States. He’s scheduled to go on trial starting this week in lower Manhattan. Jury selection begins Monday.

Ghailani is a Tanzanian accused of helping to bomb two U.S. embassies in East Africa in 1998 that killed 224 people. Like the September 11, 2001 attacks, those bombings have been attributed to Osama bin Laden.

In hundreds of legal charges filed with the federal court in New York, Ghailani is accused of having scouted out the American embassy in Tanzania before it was bombed, assembled bomb materials and escorted the suicide bomber to the site. After the bombings, prosecutors say he fled to Afghanistan and rose up the ranks of al Qaeda, forging documents for the group and working as a cook and a bodyguard for Osama bin Laden.

When he was captured in Pakistan in 2004, U.S. authorities deemed Ghailani a "high-value" detainee and sent him to a secret CIA prison for interrogation, where Ghailani claims he was tortured. Indeed, a variety of so-called "enhanced interrogation techniques," including waterboarding, were authorized for use by CIA interrogators on high-value detainees.

Ghailani was transferred to Guantanamo Bay in 2006. Last year, more than ten years after the embassy bombings, he was transferred to the New York prison. The same prison has safely held such notorious criminals as John Gotti and the blind terror leader Sheik Omar Abdel-Rahman.

Critics of Ghailani’s transfer warned that his prosecution could be derailed by his abuse in prison and the long delay in bringing him to trial. But the federal judge hearing the case, Judge Lewis A. Kaplan, has denied the defense lawyers’ requests to dismiss the trial on those grounds.

Last week, former New York mayor Rudy Giuliani insisted that it would be safer to try Ghailani in a military commission in Guantanamo Bay than in New York City.

Ghailani has already appeared in court for pretrial hearings, however, without incident. New York City police have said that while they will provide some extra security for the trial, the proceedings will not require any of the elaborate and costly measures that New York City officials had warned would be necessary for a trial of the 9/11 plotters. After receiving complaints from local business groups about the potential disruption that trial might cause, Police Commissioner Ray Kelly announced that he would take a range of extraordinary security measures, including a flood of uniformed police officers, checkpoints and thousands of interlocking metal barriers. Mayor Bloomberg estimated the cost at $200 million a year, and the Obama administration soon backed away from the plan.

Despite the huge costs and inconvenience predicted for the 9-11 plotters’ trial, no such estimates have been made for the trials of any of those accused of carrying out al Qaeda’s U.S. embassy bombing attacks.

Four other men have already been tried and convicted in the same New York courthouse for their roles in the U.S. embassy attacks. All were sentenced to life in prison without parole.

Lindsey Graham’s Backwards Look at Military Commissions

10:07 am in Uncategorized by daphneeviatarhumanrights1st

By Daphne Eviatar, Senior Associate, Law and Security
Cross-posted at The Huffington Post

I’ll agree with Sen. Lindsey Graham on one thing: "Americans still wait for justice." That’s the headline of a column he wrote that ran in the SunNews and other South Carolina newspapers on Monday, lamenting that the U.S. government still hasn’t put the plotters of the September 11 terrorist attacks on trial.

But Graham’s explanation for why we haven’t yet seen justice is actually backwards.

Graham insists that the Obama administration must press forward in prosecuting Khalid Sheikh Mohammed and his alleged co-conspirators in military commissions. But it’s the insistence by Graham and others on using an ill-formed and inexperienced commission system to try suspected terrorists that’s the cause of the long delay. If the United States had just used the federal justice system we have, which has worked well for the past 200 years, the 9-11 perpetrators would have been tried and sentenced long ago. That’s what happened to the plotters of the first attack on the World Trade Center, and to the planners of the US Embassy bombings in East Africa. Instead, the Bush administration decided shortly after the September 11, 2001 terrorist attacks that, not only would it respond militarily against al Qaeda and the Taliban, but that its prosecution of the individual planners of the attacks, all of whom are civilian terrorist thugs, not military leaders of an actual foreign army, must be carried out by the military as well. Never mind that the U.S. military had no experience prosecuting terrorists, while the U.S. federal courts had decades’ worth — plus entire terrorism prosecution units created just for that purpose. And it is that fateful decision by the Bush administration — and the Obama administration’s apparent reluctance to change course now — that has led to the unconscionable delay in bringing these men to justice that Lindsey Graham is now complaining about.

The military commissions that Senator Graham takes such pride in have convicted only four individuals on terrorist-related charges, mostly for such minor crimes as driving or cooking for an al Qaeda operative. The reason they haven’t been more active isn’t due to a lack of political will, but a lack of legal authority. The first military commissions created by the Bush administration were declared unconstitutional by the Supreme Court in 2006. The next set of commissions approved by Congress continued to raise serious constitutional problems, including the creation of war crimes that never before existed. The result is that any convictions obtained in these tribunals – which were changed again in 2009 — are constitutionally suspect and ripe for reversal on appeal. No wonder prosecutors haven’t been eager to push through their cases.

The cases that have been successfully prosecuted have for the most part won relatively lenient sentences, largely for the same reason. Thus Salim Hamdan, Osama bin Laden’s driver, was sentenced to only five months on top of the time he’s already served at Guantanamo Bay. Australian-born terrorist David Hicks was likewise sentenced to only nine months in prison.

By contrast, U.S. federal courts have convicted more than 400 terrorists since September 11, 2001. And with hundreds of years of convictions behind them, the federal courts’ criminal prosecutions are not vulnerable to the same legal and constitutional challenges. Convicted terrorists such as Sheik Omar Abdel Rahman, Zacarias Moussaoui, and Richard Reid end up serving long sentences in the United States’ highest security prisons. Notwithstanding Lindsey Graham’s claims about security, no terrorist has ever escaped.

Indeed, Graham’s claims that civilian trials would "create unnecessary legal problems, be incredibly expensive, and put civilian populations at risk" are nonsense. On the other hand, it’s an apt criticism of the military commissions. They’re not only a thorny legal problem, but also a colossal waste of money, costing about $125 million a year in operating expenses alone. As a result, the United States spends more than $650,000 to detain each of the 176,000 war-on-terror detainees at Gitmo. By contrast, it costs less than $6,000 a year to keep a prisoner in federal detention, according to the Bureau of Prisons.

Meanwhile, as a broad range of current and retired military leaders have acknowledged, the Guantanamo Bay detention camp has become a global liability; its continued operation harms, rather than helps, national security.

It’s becoming fashionable in some circles these days to argue that we should just leave Guantanamo open — as Harvard professor and former Bush administration lawyer Jack Goldsmith recently wrote in the Washington Post and Brookings Institution scholar Benjamin Wittes wrote on his new lawfare blog, calling the focus on Guantanamo a mere "fetish." But there isn’t a single reasonable justification for maintaining an offshore prison in a country we don’t even talk to. The United States has plenty of ultra-secure prisons that are perfectly capable of confining terrorists in the territorial United States. The Guantanamo prison was created by the Bush administration to evade U.S. law. Although the Supreme Court refused to go along with that plan, the detention center still stands as a symbol of that misguided attempt. And the catalogue of officially-sanctioned abuses that took place there still haunts us. As President Obama noted in his press conference last week, "Al Qaeda operatives still cite Guantanamo as a justification for attacks against the United States." I can’t see any reason why the United States should assist al Qaeda with its propoganda and recruitment.

As a former military lawyer, Lindsey Graham is right to respect the longstanding military justice system. But the military commissions are a different matter. Since their creation eight years ago, they’ve demonstrated repeatedly that they’re not up to the task of providing swift and credible justice — neither for the plotters of the 9/11 attacks, nor for anyone else. It’s time for the administration to admit that they’re not working and to bring our most notorious terrorists to justice — in a successful, experienced and legitimate court of law.

How to Overcome the “Legacy of Torture”

12:01 pm in Uncategorized by daphneeviatarhumanrights1st

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

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

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

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

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

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

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

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

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

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

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

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

12:44 pm in Uncategorized by daphneeviatarhumanrights1st

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.