The Omar Khadr Trial

Spencer Ackerman at Washington Independent:

The pre-trial hearing for a 23-year old Canadian citizen tried before a military commission is likely to host some of the most dramatic testimony of the post-9/11 era this week. That is, if the government and defense attorneys don’t reach a plea deal to settle the case of Omar Khadr, who has been held in detention for nearly eight years and charged with the murder of a U.S. Special Forces soldier.

Khadr’s attorneys plan to call someone known only as “Interrogator #1″ to testify this week. According to attorneys Barry Coburn and Kobie Flowers, Interrogator #1 will testify to having personally threatened Khadr in 2002 with sending the then-15 year old son of an Osama bin Laden associate to Egypt to be raped if he did not cooperate with interrogators at Bagram Air Field in Afghanistan.

Additionally, during cross-examination during the first four days of the hearing — in which Khadr’s attorneys are asking a military judge to exclude all of their client’s statements to his interrogators from the government’s case against him, arguing that they occurred under coercion and even torture — Khadr’s attorneys have asserted that the first person to have ever interrogated Khadr at Bagram was court-martialed from the military for participating in the abuse of detainees.

More Ackerman here, here, here, here, and here

Daphne Eviatar at Firedoglake:

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.

C. Dixon Osburn at Huffington Post:

The back and forth this week may determine what evidence is admitted at his trial that is set to begin in July, unless the defendant and government come to an agreement, which is allegedly in the works.

The contrasts strike me in politics as well. Representative McKeon this week said he plans to introduce a series of amendments to the House Defense Appropriations Bill, one of which would force all trials of 9/11 defendants into military commissions. Why would anyone do that other than to delay justice?

The federal civilian courts have tried more than 400 terrorism cases since 9/11; the military commissions have tried only three. The federal civilian courts follow a Constitution that has stood us in good stead for more than 200 years; the military tribunals just received yet another set of rules last week, rules which will face years of constitutional challenges to sort out.

Senator Lindsey Graham argues that suspected terrorists do not deserve the same rights as someone who robbed a 7/11, rights like due process. Yet, Col. Lawrence Wilkerson, chief of staff to former Secretary of State Colin Powell, said recently that President Bush, Vice President Cheney, and Secretary of Defense Donald Rumsfeld knew that the vast majority of detainees at Guantanamo were innocent. Senator Graham, doesn’t due process help us sort out the good from the bad? Neither Guantanamo nor military commissions have delivered justice that is swift or sure.

I look forward to the hearing. I take seriously the allegations of wrongdoing, just as I take seriously our obligations as a country to live by our values and provide a fair, transparent and just adjudication. I am sure the contrasts will continue to strike me, as I do jumping jacks to stay fit while downing the local fried KFC offered to visiting observers.

Adam Serwer at Tapped:

Omar Khadr is accused of throwing a grenade that killed Sgt. First Class Christopher J. Speer during a battle in Afghanistan in 2002. Khadr was 15 at the time, and his lawyers claim that Khadr underwent abusive treatment and torture after being captured, including stress positions, rape threats, and being used as a “human mop” after he urinated in his cell.

Military commissions proceedings are currently under way at Guantanamo to determine the admissibility of evidence the defense says was gained through coercion. The stakes are high, because as Spencer Ackerman reports, a loss for the government could imperil an indefinite number of future military commissions cases, while successful admission of such evidence will call into question the fairness of the proceedings. The other option the government is considering is a plea deal, which would allow the government to avoid dealing with such questions at all.

The plea deal reportedly offered would keep Khadr in jail for five more years, and the defense rejected it. That makes sense. Of the previous three military commissions cases that ended in convictions, two got fairly light sentences. Salim Hamdan, Osama bin Laden‘s limo driver and bodyguard, got five months plus time served, and is already back home in Yemen. David Hicks, an Australian who fought on behalf of the Taliban in Afghanistan, got a plea deal and served nine months. Are Khadr’s alleged offenses, especially given his age at the time, that much more serious than the prior two convicts?

Andrew Sullivan:

Canadian Omar Khadr has not shown up for his military commission. Complaining of pain in the eye he lost while being captured, he refuses to be transported because he won’t wear the absurd and disgusting Padilla-style ear-muffs and eye-goggles to keep him blind and deaf in transit (see above). The truck that would transport him has no windows anyway, but he is still required to wear the total sensory deprivation gear. His quote:

“The only purpose is to humiliate me.”

Who can doubt him? The Cheney sadism endures. To Obama’s shame.

More Ackerman:

GUANTANAMO BAY — Late-breaking disappointment for Omar Khadr’s defense: the judge in his military commission has ordered that Khadr must submit to a government psychological exam before the defense can present its mental-health experts. Long story short, because of the judge’s provision to allow for four weeks for the exam, that means it’s going to be early June before the defense presents its case in the pre-trial suppression hearing. Read all about it in my brand-new Washington Independent piece. I was thisclose to beating Reuters‘ Jane Sutton. But no one beats Reuters’ Jane Sutton.

So this means I’m going to try to catch a commercial flight off this island on Wednesday if that’s at all possible. Don’t know whether it will be. But I miss Attackerlady like a motherfucker. And yes, Joey, I am still trying to catch the Converge show at the 930 on Wednesday night, and thereby floorpunch for justice.

UPDATE: Spencer Ackerman at Washington Independent

John Cole

UPDATE #2: Emptywheel at Firedoglake

Adam Serwer at The American Prospect

UPDATE #3: Dahlia Lithwick at Slate

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3 Comments

Filed under GWOT, Torture

3 responses to “The Omar Khadr Trial

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