It is not that I know much about Omar Khadr or his case history. I don't. I don't know if the guy is a bad guy, a child soldier, a terrorist, a freedom fighter, or anything else. What I do know is that the history of his incarceration and everything connected to it is a damnable offense in this day and age, or, at least, it should be. I am going to post three different pieces on the case below. The other side can present their own story on their own blogs. I don't have to defend myself against the charge of supporting fundamentalist jihadi politics. I don't consider the Taliban or Al Quida or Iran or al-Assad to be anti-imperialists. I consider them to be a pack of throw back, right wing, religious, misogynist dogmatists and thugs who stand in opposition to most everything I believe. I do not defend them. I criticize those who do, especially those who cry out the enemy of my enemy must be my friend. I've done more than my share of speaking out against that bull, but that is not what this is about. This is about the so called liberal West, you know where democracy and the rule of law reign. There is, I know, nothing here that can really shock us in the USA anymore, but I seldom venture here and I just thought it being Prison Friday and all at SCISSION that now was a good time to once again point out that just because the other guys are not good guys, doesn't mean the guys opposing them are good guys either. The world is full of bad guys these days...as this case demonstrates.
The first article below comes from Invictus. The second comes from Rabble.ca. The third is from Straight.com.
Omar Khadr Leaves Guantanamo, While Press Refuses to Report His Water Torture
On a pre-dawn Saturday morning, September 29, the youngest prisoner in Guantanamo, Omar Khadr left the harsh US-run prison where he had been held since October 2002. At the time of his incarceration he was fifteen years old. According to a CBC report, Khadr was flown to Canadian Forces Base Trenton, where he was to be transferred to the Millhaven Institution, a maximum security prison in Bath, Ontario.
Khadr is supposed to serve out the remainder of an eight-year sentence, part of a deal his attorneys made with the U.S. government, with Khadragreeing to plead guilty to the killing of SPC Christopher Speer during a firefight at the Ayub Kheil compound in Afghanistan, in addition to other charges such as "material support of terrorism" and spying. Khadr essentially agreed to participate in what amounted to a show trial for the penalty phase of his Military Commissions hearing. For this, he got a brokered eight year sentence, with a promise of a transfer out of Guantanamo to Canada after a year.
The Khadr deal was made in October 2010, but the transfer promise was dragged out as seemingly the Canadian government balked at accepting the former child prisoner, who was also a Canadian citizen. The entire affair became a magnet for right-wing propaganda in Canada, while human rights groups also fought for Khadr's release. But not long after Macleansleaked U.S. documents related to the Khadr transfer, including psychiatric reports by both government and defense evaluators, the Canadians appeared to move more quickly to accept Khadr into Canada.
CBC reported that Public Safety Minister Vic Toews said he was "satisfied the Correctional Service of Canada" (CSC) could administer Khadr's sentence, presumably six more years of imprisonment. Speaking no doubt to those fear-mongerers who suggested Khadr's safety somehow threatened the average Canadian, he also noted the CSC could " ensure the safety of Canadians is protected during incarceration."
For those looking for an early release by Canadian authorities, Toews said, "Any decisions related to his future will be determined by the independent Parole Board of Canada in accordance with Canadian law." According to Carol Rosenberg's report, Khadr could be eligible for early release because he was a juvenile at the time of his supposed crimes.
Center for Constitutional Rights (CCR) Legal Director Baher Azmy released a statement calling for Khadr's immediate release, and for President Obama to close Guantanamo and release the 86 known detainees already cleared for transfer.
Khadr never should have been brought to Guantanamo. He was a child of fifteen at the time he was captured, and his subsequent detention and prosecution for purported war crimes was unlawful, as was his torture by U.S. officials.
Like several other boys held at Guantanamo, some as young as twelve years old, Khadr lost much of his childhood. Canada should not perpetuate the abuse he endured in one of the world’s most notorious prisons. Instead, Canada should release him immediately and provide him with appropriate counseling, education, and assistance in transitioning to a normal life.
Azmy also suggested that Canada could "accept other men from Guantanamo who cannot safely return to their home countries," such as Algerian citizen Djamel Ameziane, who lived legally as a refugee in Canada from 1995 to 2000. Ameziane fears persecution if he were transfered back to Algeria.
Covering-up Crimes
No doubt the Khadr transfer will get a great deal of coverage in the mainstream press and the bloggers of the fictional Internet land of Blowhardia. Little of the digital ink will be meaningful, and much of it will be disinformation.
But even reputable sources will leave out many of the details surrounding Khadr's imprisonment and torture, details that may be too embarrassing for the U.S. government, or for a Democratic incumbent running for President who steadfastly refuses to punish those who engaged in the planning and implementation of torture during the Bush years, and who lies about the so-called nonabusive nature of current U.S. interrogation policy (while even the progressive press and bloggers give him a free pass on this, because such lies are printed on the front page of the New York Times).
In probably the most egregious cover-up surrounding the Khadr case, one recent document released in the Macleans' treasure drove of released reports on Khadr's treatment and mental condition under U.S. control states that Khadr received a form of waterboard-like drowning torture while held as a wounded teen at Bagram.
Dr. Stephen Xenakis, a psychiatrist and former brigadier general in the U.S. Army, wrote in a February 28, 2012 summary report to Canada's Public Safety Minister Toews that while at the Bagram medical facility in late 2002, that Khadr "was mocked" by U.S. personnel, "and remembers having water poured on his face while hooded so that he felt unable to breathe." Dr. Xenakis confirmed to me by telephone that Khadr had told him this during one of the 300 hours he spent interviewing the famous Guantanamo prisoner.
Given the hullaballoo surrounding the issue of waterboarding in general, as evinced in the recent controversies over the release of a Mitt Romney campaign draft about his support for "enhanced interrogation techniques" and the wide reporting surrounding Human Rights Watch's recent reportthat included revelations about unreported waterboarding of a Libyan prisoner, it is shocking to see the total lack of interest in this new revelation. It is as if there were an invisible censor that determined what was appropriate to report, and never or rarely to go farther than that.
I was personally distressed by the lack of coverage (I believe I'm still the only one to report it in an article at The Dissenter earlier this month), but I directly approached human rights groups and members of the press who regularly cover the torture issue, and the Khadr case in particular. I never received a response from the press. Human Rights Watch told me they would look into it.
Meanwhile coverage by McClatchy's Carol Rosenberg quotes derogatory statements about Khadr by the government's psychiatric "expert," but is totally mum on the revelations about the water torture of the teenaged prisoner noted in a defense attorney's report. Nor do any reports seem to recall that there never was an eyewitness to Speer's death, or that documents long withheld from Khadr's defense showed the likelihood that Speer died from "friendly fire," as noted in this April 2008 LA Times story.
As for other overlooked details about the Khadr case, an initial look at report on Khadr's release shows that nothing is said about previously reported threats Khadr had about being transferred and raped, as came out at his military commissions "trial". According to the ACLU:
In bombshell testimony, Interrogator One described a “fictitious story” he told the 15-year-old about an Afghan they sent to prison in America because he was lying. Interrogator One said he told Khadr that “a bunch of big black guys and big Nazis,” patriotic and angry about the 9/11 attacks, “noticed the little Muslim” because he “speaks a different language, prays five times a day.” He said he told Khadr, “This poor little kid, away from home, kind of isolated,” was “in the shower by himself and these four big black guys show up, and say ‘we know about you Muslims.’ They caught him in the shower and raped him. The kid got hurt and we think he ended up dying.”
Interrogator One also explained the approved interrogation techniques he used on Khadr to extract information, including “fear up,” “fear up harsh,” “fear of incarceration,” “pride and ego down,” and “love of family.”
The references to "fear up" and the "approved interrogation techniques" are specifically to techniques that are part of the Army Field Manual (AFM) on interrogations. Such techniques are, according to a most recent article by Charlie Savage, "nonabusive" in nature. Now Savage is reporting as fact what is in fact spin by the U.S. government, who loves counterpoising the abusive AFM -- which also includes in its "techniques" use of cruel isolation, sleep deprivation, sensory deprivation, and use of certain drugs -- to the equally repugnant but more splashy waterboarding and other "enhanced interrogation" tortures of the Bush era.
Savage and the New York Times were not challenged by the characterization of AFM tactics as "nonabusive," even by people who knew better. The fairy tale that the AFM is a "humane" alternative to the Bush-era torture is a fiction central to the Obama reelection campaign, and there's nary a "progressive" blogger that will challenge that these days, especially when the assertion is in a story on the election on the front page of the New York Times. The silence persists despite the fact the actual nature of the AFM and especially its notorious Appendix M has been documented byAmnesty International, Physicians for Human Rights, Center for Constitutional Rights, Open Society Foundation, and other human rights groups.
Meanwhile, it seems likely that Khadr's release itself is related to U.S. presidential politics, with a thorny controversy related to Guantanamo finally stashed out of sight. No more questions, no more unsightly leaks (like this recent article two days ago revealing Dr. Michael "I-have-no-opinion-if-nearly-half-of-all-Muslims-are-inbred" Welner's seven-hour interview with Omar Khadr). Khadr will go now to Millhaven, a dangerous maximum security prison that had a prison riot in 2009, and where the exercise yard lacks prison staff and yard fights are broken up by rifle shots by guards.
Khadr's release will temporarily throw an embarrassing light on the Obama's administration's failure to close the controversial torture prison, and then the news will sink back into the turgid morass of bloated presidential campaign politics. And just like the story about a prisoner at Guantanamo, Adnan Latif, who was found dead on September 10, but was quickly forgotten (the press doesn't even care how he died), the Khadr case will slip out of sight, and the unsightly parade of lies and cover-up that masquerades as reporting on U.S. politics will continue.
But at least one prisoner will have left Guantanamo alive, soon to see family, and maybe have half a start at a life, a life he insisted had been taken from him first by his pro-Al Qaeda father, and then later by U.S. authorities and interrogators. "I never had a choice in my past life, Khadr once told CBC News, "but I will build my future with the right bricks, and that Islam is a peaceful, multicultural and anti-racism religion for all."
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Defending Omar Khadr
| OCTOBER 5, 2012
So Omar Khadr is finally back from the Guantanamo Bay detention centre and in Canada, or to be more accurate, a Canadian jail. The Conservatives, after years of vilifying him as a terrorist and stating he was not welcome back, were forced to accept Khadr into Canada by the United States. Judging by Public Safety Minister Vic Toew's barely suppressed indignation when announcing Khadr’s return, the Conservatives are none to pleased about it.
The supporters of Khadr have been quick to jump to his defence upon learning of his return. Anyone who was following the Khadr case in the media this week was treated to endless storylines about a divisive figure who some saw as a terrorist and others saw as an exploited child soldier.
Considering that Omar Khadr is in Canada for the foreseeable future and that the debate over Khadr’s actions and future are not going away anytime soon, I thought it might be useful to try to understand the ways in which people have been trying to defend him and the implications that they carry.
The first and most common defence of Khadr is that he was a child soldier. He was 15 when he was detained by American troops and accused of his crimes. This defence rests on the fact that he was not responsible for any crimes as laid out in the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. This is the defence proffered by Senator Romeo Dallaire. Khadr was a child; he was not responsible because he was forcibly recruited by his father.
The second defence is somewhat intertwined, though not completely, with the first. This is what I will call the procedural defence: he was tortured, he was detained without trial for many years, he didn’t have proper access to lawyers, he was mentally incapacitated by his conditions, the trial was structurally unfair and so forth. Of these claims there cannot be any doubt, Khadr was the subject of torture almost immediately after his capture. He was threatened with rape and attack dogs, subjected to stress positions, to sleep deprivation, denied medication and a litany of other abuses. There can also be no doubt that he had no due process. He languished in Guantanamo for approximately ten years; his plea agreement cannot be taken seriously because of it. In this defence the torture and violations of any due process by the American government invalidate any possible legal conclusion of guilt.
The third defence is that he simply didn’t do it, or that there is not the evidence to conclude that he is guilty of the crimes he is accused of (specifically the killing of an American soldier). He is therefore innocent. Part of this defence rests upon the violations of due process and torture in explaining Khadr’s plea agreement. But there is also a deeper questioning of the events that led to his capture.
What we do know is this, after a firefight between American forces and approximately five ‘militants’, Apache helicopters and Warthog planes bombed and gunned the compound where Omar Khadr was. American troops then threw in more grenades. As the Americans entered, a couple of grenades were thrown at them as well as some more gunshots. They proceeded to kill one more militant. When they came across Khadr he was already wounded by shrapnel, blinded in one eye. Still they proceeded to shoot him twice in the back. One of the grenades thrown over a wall by the militants killed Sergeant Speer, a medic with the American army. The conflicting eyewitness accounts by the surviving soldiers makes it very unclear when the grenade was thrown and by whom.
So in short the three, sometimes interrelated, lines of defence of Khadr are: he was a child solider, his access to due process was violated (torture, kangaroo court, etc.) and he is innocent. While all three of these lines of defence are in some manner true they miss a more fundamental truth. There was no overriding crime. Killing a soldier in the course of a war when your country has been invaded and is occupied is not a crime. I know some of you will say that he allegedly killed a medic in violation of the Geneva Convention. Now I am no legal scholar but it seems this particular killing of an Army medic is not a violation. A grenade was thrown over a wall, after the Americans had done the same. No one is claiming that the grenade was directed specifically at the medic or more importantly that the thrower could clearly identify the medic’s insignia.
The other tricky question is that of the status of resistance fighters. Are they soldiers, combatants, militants or terrorists? Rather than get bogged down in semantics it is easier to look at this question from an anti-imperialist stance. Those who resist foreign invasion and occupation have a right to do so. If we are to only accord legitimacy to recognized armies than we certainly would have to write off the partisans fighting fascism during the Second World War as simply terrorist thugs seeking to subvert authority. The point is not whether to agree with the aims of the resistance but whether people subjected to an invasion and occupation have a right to resist. The American invasion of Afghanistan was declared legal ex post facto. However, the ability of powerful nations to warp legal reality around their actions does not make their invasions any more just or resistance to them any less credible.
When we defend Omar Khadr as a child soldier denied due process who may or may not have killed a soldier, it is important to not cede the ground that armed anti-imperial resistance is a right, not a crime. Omar Khadr is not innocent, because declaring so means that there was even a possibility he could ever have been guilty.
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Reasonable Doubt: Military court or Star Chamber? Omar Khadr and the principle against self-incrimination
By Laurel Dietz, October 5, 2012
Laurel Dietz is one of the writers of Reasonable Doubt.
So, Omar Khadr is back in town, or rather, he’s at a maximum security federal prison in Bath, Ontario. Khadr’s story is one that continues to mystify me. I am well aware of the hyperbole or versions of his case that have been bandied about by the media, but in my brief experience of practicing criminal defence and given my life experience with human nature, what is happening and what has happened to Omar Khadr just does not add up.
First, I do not understand fully why he was incarcerated for so long in Guantánamo Bay. Second, I do not understand the offence for which he was being held. Third, I do not understand the politics, the rhetoric, the fear, the racism, and prejudice that surround Khadr.
The reason I don’t understand these things is that my life experience has me so far removed from anything like what Khadr has been involved in; I have never come close enough to meddling with the powers-that-be such that truths, justice, ideals, law, and facts begin to shift and dissolve before my very eyes. I was raised in a very privileged environment and now occupy a position where the closest I come to injustice is through my profession, not my personal life.
In modern times, we have built a system of justice that is ever working towards being fair, while trying to get at the truth in an efficient manner. (Well, these are the ideals towards which we strive.) Sometimes, it’s easy to forget that it has not always been this way and the institutions of justice that we have built on ideals do not exist without continued commitment to the underlying ideals.
Over 400 years ago, our concept of justice was just being formed. At that time in England there was a court called the Star Chamber. This was an elite court that was for all intents and purposes established its own brand of justice; a person accused in that court could be sentenced for an act that was not even a crime. The Star Chamber was also known for sentencing juries that returned verdicts that were contrary to the government’s interests and having people give evidence against themselves.
As a result of the abhorrence for this type of justice, the principle against self-incrimination developed and is a basic precept of our modern criminal justice system. Simply put, today, an accused person shall not be compelled to build the case against him or herself. This includes among many other things being forced to testify at one’s own trial against oneself. Further, the principle against self-incrimination means that the courts are wary about investigative methods that produce false confessions such as coercive interrogations. The courts do not like coercive interrogations because they override a person’s right to make a real choice to cooperate with the state, and, first and foremost, coercive interrogations produce unreliable evidence.
The court’s job is not to convict an accused person; the court’s job is to get at the truth of the matter put before it. Based on the truth that is assessed at trial, the court will convict or acquit the person charged with the crime.
Despite the fact that we value the principle against self-incrimination and inducing false confessions, there is a lot of pressure exerted by the state and by society at large (through the media) on an accused person to admit their guilt. From my experience in the criminal justice system, it is often harder to exercise your right to silence and a fair trial than it is to plead guilty and serve your sentence.
One thing I do understand about Khadr’s case, is one motivation for him to plead guilty; that much is clear based on the vastly reduced sentence offered for his plea. What I will never know, though, is what would have happened if our principles against self-incrimination were invoked to give Khadr a fair trial.
Laurel Dietz is a criminal defence lawyer at Cobb St. Pierre Lewis. Reasonable Doubt appears on Straight.com on Fridays. You can send your questions for the column to its writers at straight.reasonable.doubt@gmail.com.
A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.
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