Omar Khadr and the Still-Black Hole of Guantánamo

At 23, Omar Khadr is the youngest of the 176 people still imprisoned at the US military’s detention facility in Guantánamo Bay, Cuba. He has been there for eight years, one third of his life. A Canadian, he is the only citizen of a Western country remaining in detention, although one British resident, Shaker Aamer, is also still locked up there. Of the 779 people brought to Guantánamo since 2002,(1) only 36 have been charged or designated for prosecution. Khadr is accused of violating the laws of armed conflict – as reinterpreted by the US government after the 9/11 attacks. He is charged with being an “unlawful enemy combatant” (now relabeled “unprivileged enemy belligerent”), who threw a grenade that killed a US soldier in Afghanistan.

When Khadr was captured on July 27, 2002, following a firefight in the Afghan village of Ayub Kheyl, he was blinded in one eye, shot twice in the chest and buried under rubble. The critically injured 15-year-old was airlifted to the Bagram air base where he was interrogated for three months, starting as soon as he regained consciousness while strapped to a hospital gurney. In September, Khadr turned 16, and, in October, he was shipped to Guantánamo, where he – like all prisoners – was held incommunicado for years and interrogated dozens of times.

Khadr was assumed to be a treasure trove of intelligence about al-Qaeda.(2) At Bagram, he was beaten; threatened with rape and snarling dogs; hung by his wrists for hours, which exacerbated the pain of his injuries; and hooded and soaked with water until he began to suffocate. His captors also shined bright lights into his eyes, which had been damaged by shrapnel. At Guantánamo, Khadr was again beaten and threatened with rape and dogs, had his hair pulled out, was subjected to protracted sleep deprivation under the “frequent flyer program” and was doused with a pine-scented cleaner and used as a “human mop” on the floor where he urinated after being denied access to a toilet. He was sequestered in isolation for protracted periods, and force fed after he joined the prisoners’ hunger strike.

Enter the Lawyers

The June 2004 Supreme Court decision in Rasul v. Bush paved the way for lawyers to gain access to Guantánamo prisoners. In August, the Center for Constitutional Rights assigned Khadr to American University law Professors Rick Wilson and Muneer Ahmad, who met him for the first time in November. At the November meeting and again the following April, Wilson and Ahmad administered psychological questionnaires to Khadr, which they showed to two doctors who assessed that he displayed full-blown symptoms of post-traumatic stress disorder. In their litigation, O.K. v. Bush, District Court Judge John Bates ruled against motions seeking to force the government to provide them with his medical records and to bar further interrogations.

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Khadr was one of the first ten Guantánamo prisoners to be selected for prosecution in the military commissions, which had been decreed into existence by President George Bush on November 13, 2001. He was charged with murder for allegedly throwing the grenade that killed a Special Forces Sgt., Christopher Speer. He was also charged with attempted murder because a video retrieved from the rubble shows Khadr, among a group of adults, handling something with protruding wires, alleged to be an improvised explosive device that might have been planted along Afghan roads to attack US and allied forces. And he is charged with conspiracy, providing material support for terrorism and spying. Despite Khadr’s youthfulness and, as the defense would argue, his lack of choice in the relations and activities that his father Ahmed commanded, prosecutors have insisted that he “willfully” joined and conspired with al-Qaeda and that he is criminally culpable. The government’s case rests heavily on statements he gave to interrogators between 2002 and 2005.

In 2005, when Khadr’s charges were first referred, US officials claimed that his would be one of the “easiest” cases to prove. The Bush administration was eager to demonstrate that the beleaguered military commission system was capable of producing convictions. Yet, by the time Bush left office, the Khadr case had not gone to trial. Nor, because of pervasive antipathy toward the Khadr family in Canada, has his own government sought his repatriation from Guantánamo.

Khadr was arraigned for the first time in 2006. His legal team was originally composed of Wilson and Ahmad, who effectively left in the spring of 2007 for reasons eloquently explained in Ahmad’s article, “Resisting Guantánamo: Rights at the Brink of Dehumanization.” The first military lawyer assigned to his case, Lt. Col. Colby Vokey, was joined and then succeeded by Lt. Cmdr. William Kuebler and Lt. Rebecca Snyder. Two Canadian lawyers, Nathan Whitling and Dennis Edney, provide legal counsel but, as non-Americans, cannot defend him in the military commissions. In September 2008, Cmdr. Walter Ruiz and a civilian attorney working with the Office of Military Commissions, Defense (OMCD), Michel Paradis, were added to the team. The judge assigned to the case, Col. Patrick Parrish, rejected the defense motion that these commissions do not have jurisdiction over crimes of a child soldier, but in October 2008 he suspended the case until after the November elections.

An Evolving Mess

When Barack Obama assumed the presidency, there was hopefulness among the rule-of-law-restoration crowd that the idea of prosecuting a child soldier for war crimes would be abandoned in favor of the internationally sanctioned route of rehabilitation, but the hope has long since died. On May 21, 2009, Obama reversed his own cancellation of the military commissions as fundamentally flawed, in October, he signed into law the Military Commissions Act (MCA) of 2009 (which replaced the 2006 MCA). In November, Attorney General Eric Holder announced that Khadr was one of five people designated by the administration for prosecution in the commissions.

The military commission system is an evolving mess, mired in the contradictions and novelties of invented laws, crimes and rules, and played for partisan political advantage in Washington. According to Katherine Newell Bierman, who works at the OMCD to provide expertise on counterterrorism and torture, “American military lawyers come into this job with no experience working on behalf of people who have been tortured. It’s an added challenge defending people in this system because many of them are so damaged.” Khadr’s frustration and despondency was exacerbated by disagreements over defense strategies, and he fired his American lawyers in June 2009. One military lawyer who was not part of his legal team, but provided assistance in drafting motions, said, “Khadr is the poster child for this farce.” Khadr’s new military lawyer was Lt. Col. Jon Jackson. In October 2009, two Washington-based attorneys, Barry Coburn and Kobie Flowers, were assigned to the case.

In April and May 2010, the Khadr case moved into the phase of pre-trial hearings on defense motions to challenge and suppress government evidence, including self-incriminating statements he gave to interrogators at Bagram and Guantánamo. Among those who testified at those spring hearings were several interrogators, jailers and medical providers who gave first-person accounts about how he had been threatened with prison gang rape by “big black guys and big Nazis,” beaten and put into stress positions, and denied adequate pain medicine for his injuries. The 2009 MCA prohibits the use of statements elicited through cruel, inhuman and degrading treatment, but it falls on military judges to determine what those standards are and how they apply in specific cases. Jennifer Turner, the ACLU monitor who attended the April-May sessions, reported, “During the hearings, the prosecution objected constantly to questions the defense asked of interrogators, especially about standard operating procedures. The judge kept sustaining those prosecution objections. This is very relevant because Khadr doesn’t recall that period.”

The hearings also focused on the veracity of the government’s evidence that it was Khadr who threw the grenade that killed Sergeant Speer. The military’s incident report, filed by a soldier identified only as “Lt. Col. W,” originally stated that someone who was subsequently killed threw the grenade. Several years later, however, the report was altered to state that the grenade was thrown by someone who was injured – to implicate the only survivor, Khadr. The “revised” version was backdated to cover up the change in the original. The defense had obtained a copy of the original report, which the government never intended to provide, when it was inadvertently included in some discovery filings. “W,” who testified by video link, claimed he changed the report “for history’s sake” because he believed at the time that Khadr – who he maintains threw the grenade – had died. But the same reason “W” adduced for believing Khadr had died casts doubt on whether he could have thrown the grenade. Photographs taken after the firefight, moments after the grenade was thrown, show Khadr, shot and buried face down in rubble.

Since at least April, prosecutors reportedly had been attempting to negotiate a plea bargain with Khadr and his lawyers. A deal would have spared the government not only the labor and expense of a trial, but also the embarrassment of more damning testimony about Khadr’s torture and abuse, not to mention averting the ignominy of pursuing the first trial (anywhere in the world) of an adolescent for war crimes since the close of the Nuremberg tribunals. The negotiations collapsed in June and – although it is not clear if there is a direct connection – on July 7, Khadr fired his three American lawyers, Coburn, Flowers and Jackson.

“The Rules Are Always Changing”

On July 12, instead of resuming pre-trial hearings on the suppression motions, there was a one-day session on the issue of legal representation. Parrish began by asking Khadr to confirm that he had in fact fired his civilian attorneys Coburn and Flowers, and that no one had forced or pressured him to do so. Then he asked, “How do you plan to proceed?” Khadr replied, “I plan to boycott the process. I have my reasons.” He explained those reasons by reading to the court a handwritten statement later distributed to journalists:

Your Honor, I’m boycotting this military commission because: firstly, the unfairness and injustice of it. I say this because not one of the lawyers I’ve had, or human rights organizations or any person ever say that this commission is fair or looking for justice, but on the contrary they say it’s unfair and unjust and that it has been constructed to convict detainees not to find the truth (so how can I ask for justice from a process that does not have it or offer it) and to accomplish political and public goal. And what I mean is when I was offered a plea bargain it was up to 30 years which I was going to spend only five years so I asked why the 30 years. I was told it make the US government look good in the public eyes and other political causes. Secondly: The unfairness of the rules that will make a person so depressed that he will admit to alligations [sic] made upon him or take a plea offer that will satisfy the US government and get him the least sentence possible and legitimize this sham process. Therefore I will not willingly let the US gov use me to fulfill its goal. I have been used many times when I was a child and that’s why I’m here taking blame and paying for things I didn’t have a chance in doing but was told to do by elders. Lastly I will not take any plea offer because it will give excuse for the gov for torturing and abusing me when I was a child.

Parrish apparently did not understand Khadr’s statement because he assumed Khadr’s point was that he wanted to represent himself. He asked, “Have you ever studied the law?”

Khadr replied, “This is a military commission. You don’t need to study the law.”

Parrish: “What is your education?”

Khadr: “Five years in the military commissions.”

As if working off a script, Parrish asked, “Have you ever represented yourself or anyone else in this type of proceeding? Are you familiar with the rules of evidence?”

Khadr responded, “The rules are always changing, so knowing the rules doesn’t really matter.”

Parrish: “Are you familiar with the rules of the military commissions?”

Khadr answered, “In general…. My lawyers are as untrained as I am. No one has any experience in these military commissions.”

Indeed, the new rules implementing the 2009 MCA had materialized late in the afternoon of April 26, the first day of Khadr’s pre-trial hearing.(3)

Adopting a paternal tone, Parrish advised that effective legal representation must be objective and that “representing yourself is never a good idea.”

Khadr was resolute.

Parrish: “So are you saying that in this process legal training makes no difference?”

Khadr: “Yes.”

The judge asked if there were any responses from the prosecution. The lead prosecutor, Jeff Groharing, who had been on the Khadr case since the beginning and opted to continue even after he had returned to civilian life, urged the judge to inquire about Khadr’s “possible physical and psychological ailments” and to ask questions “to clarify what about the system the accused thinks is unfair.” Parrish duly asked Khadr, “Do you have any mental or physical issues that would prevent you from making these decisions?”

Khadr: “This place is not a five-star hotel, so I’m sure it’s going to have an effect on me. I don’t know.”

In an effort to project an aura of impartiality about motions as yet undecided, Parrish tiptoed around the issue of torture. “After you were captured, you’ve been through a number of things, and this might affect your mental state.” Soon, the judge called a recess in order to deliberate on the issue of representation.

When the court reconvened, Parrish seemed uncertain how to navigate this confounding relationship between a defendant’s rights and the inevitable public relations disaster that would result from prosecuting an unrepresented child soldier for war crimes. Hoping to persuade Khadr to rethink his position, Parrish tried pointing out some of the disadvantages, such as: “If I allow you to represent yourself, you won’t have access to material that’s classified.”

Khadr: “I’m boycotting.”

Then, Parrish tried praising the zealous dedication of the lawyers who have worked on Khadr’s case over the years.

Khadr: “I’m boycotting and I don’t want any attorneys.”

Parrish asked, “Is part of the boycott that you will represent yourself and not talk?”

Khadr: “I don’t know.”

Parrish: “If you show up, does that mean you are still boycotting?”

Khadr: “I don’t understand. I’m boycotting this whole thing. What’s the point of representing myself?”

Parrish: “So you do not want to represent yourself?”

Khadr: “I don’t see the point. I don’t want to represent myself, and I don’t want anyone to represent me. If I was in a formal court, I wouldn’t be doing this. But because I’m in this court, I am forced to do this.”

Parrish: “Then I am not releasing Jackson. He will remain your detailed counsel.”

Khadr: “You are forcing him on me. I don’t want him to represent me.”

Parrish seemed satisfied that the representation issue had been resolved. Flipping through the court calendar, he said that if the defense wanted more hearings on suppression motions, they could resume on August 10. Who was empowered to make that decision?

Khadr offered his preference: “I want this to finish as soon as possible. I’m not calling any witnesses.”

Parrish asked Jackson, who had barely spoken to Khadr. He said, “I don’t know if the client would talk to me, but I’m willing to talk to him.”

The judge called another recess.

When the court reconvened, Jackson said that before taking any position on how to proceed or making any scheduling commitments, he would have to consult with Khadr and with his licensing authorities in Arkansas and the Army. The prospect of more delay made the prosecutors apoplectic. Groharing, rifling through the commissions rule book, said that “the obligation is to proceed unless there is a decision that this would pose an ethical problem,” continuing testily that Jackson could have made these ethics inquiries weeks ago since Khadr’s firing of his lawyers was hardly a surprise. Jackson replied that he had no idea until that day that he would be detailed to represent a client whose intent was to boycott.

The prosecutors huddled with the rulebook for several minutes. Groharing finally stood up to say that “the rules applicable to the military commissions would be paramount over any other licensing authorities.” He stated that any further delay “would create a significant disadvantage for the government.” Then he added, “This is the latest of many instances when the accused has attempted to manipulate this process. He’s making a mockery of the military commissions.”

Parrish was unmoved. “I am not going to allow an unrepresented accused in here,” he said. “That is not gong to happen.”

Postscript, Prologue

On July 17, the Miami Herald’s Carol Rosenberg reported that Jackson had received the ethics opinion he was seeking. “I am ethically required to continue representing Mr. Khadr at this time. Therefore, I intend to provide him with a zealous defense.” Jackson also told Rosenberg, “I never envisioned a scenario in my career as an Army lawyer that would require me to defend a child-soldier against war crimes charges levied by the United States. I always believed we were better than that.”

Khadr, according to his Canadian lawyers, has agreed to accept Jackson’s defense. On August 10, the court will reconvene to continue pre-trial hearings on suppression motions.

After the hearing on July 12, Capt. David Iglesias, who recently joined the Office of the Military Commission, Prosecution, and serves as its official spokesperson, came to the media center to speak to journalists. Iglesias became a national figure in 2006 as the most visible of the seven US attorneys fired by Attorney General Alberto Gonzales for refusing to pursue voter fraud cases against Democrats after they concluded that the allegations emanating from the White house were politically motivated and baseless. Asked whether the prosecution was worried about the political fallout that was likely to result from Khadr’s trial, Iglesias replied, “Perfect cases don’t go to trial.”

Asked what he thought of the quality of the government’s case against Khadr, he pled ignorance of the details but added, “We will go forward no matter what.”

What did he have to say about the novelty of prosecuting a child soldier on charges that are so widely regarded as specious? “A conviction is a conviction, whether it’s for a historical war crime or a more recently added war crime.”

Footnotes:

1. See Andy Worthington, “Guantánamo: The Definitive List,” July 12, 2010, available here. See also Nick Baumann, “Obama’s GITMO by the Numbers: A Graphic Look at What Happened to 779 Detainees,” Mother Jones, July 16, 2010.

2. For a fascinating and authoritative account of the Khadr family and their ties to al-Qaeda, see Michelle Shepherd, “Guantánamo’s Child: The Untold Story of Omar Khadr,” (Wiley, 2008).

3. See David Frakt, “New Manual for Military Commissions Disregards the Commander-in-Chief, Congressional Intent and the Laws of War,” Huffington Post, April 29, 2010.