Highlights

 
Quotable
All wars eventually act as boomerangs and the victor suffers as much as the vanquished.
Eleanor Roosevelt
Original Letters Blog US Casualties Contact Donate

 
October 28, 2008

The Collapse of Omar Khadr's Guantánamo Trial


by Andy Worthington

Hardly a day goes by without some extraordinary news from the military commissions, the system of "terror trials" conceived in the office of the vice president in November 2001, and their days now seem to be as numbered as those of the Bush administration itself.

Following the outspoken resignation of former prosecutor Lt. Col. Darrel Vandeveld and the Pentagon's desperate decision to drop charges against five prisoners to prevent Vandeveld from testifying for the defense, the latest news to rock the commissions is that the trial of Omar Khadr – a supposedly flagship case, along with that of the Yemeni Salim Hamdan, who received a surprisingly light sentence after a trial this summer – has been delayed until after the administration leaves office.

This is a bitter blow for the government, which has been pushing to prosecute Khadr for war crimes since 2005. Its first attempt failed, when the Supreme Court ruled that the whole enterprise was illegal, but after the commissions were bandaged up by Congress and resumed their ghoulish existence in 2007, Khadr was once more put forward for trial.

This was in spite of the fact that his tenacious lawyers – both military and civilian – have questioned the very basis of the "war crimes" charges (which essentially transform combatants in war into "terrorists"), and have unearthed evidence (despite systemic obstruction) that Khadr may not have been responsible for the main crime for which he is charged (throwing a grenade that killed a U.S. soldier). Focusing on the fact that Khadr was just 15 years old when he was seized in July 2002, they have also persistently pointed out the cruel folly, injustice, and illegality of prosecuting a juvenile for war crimes, when the UN Convention on the rights of children in wartime, to which the U.S. is a signatory, requires juveniles – those under the age of 18 when the alleged crime took place – to be rehabilitated rather than punished.

Last week, in pre-trial hearings, they reprised some of these arguments, and also sought access to seven interrogators, from various intelligence agencies, who, they insist, extracted coerced confessions from Khadr, who was severely wounded, while he was detained in the U.S. prison at Bagram airbase in Afghanistan, before his transfer to Guantánamo. According to the lawyers, the information extracted from Khadr under duress was then used as the basis for interrogations at Guantánamo using more "sterile" and "benign" techniques, in much the same way that the administration has attempted to cover up its torture of Khalid Sheikh Mohammed and other "high-value detainees" in secret CIA custody by using "clean teams" of FBI agents to extract new confessions in Guantánamo.

As was revealed in Salim Hamdan's trial, the prohibition on the use of coerced evidence (which was only introduced after the commissions' first incarnation was struck down by the Supreme Court, and is still allowable at the judge's discretion) may technically satisfy the absolute prohibition on the use of evidence obtained through torture, but it has the knock-on effect of effectively erasing the government's crimes from the record, while also allowing the authorities to obtain "clean" confessions from abused prisoners in a way that would shame all but the most vile totalitarian regimes.

Last week, Khadr's judge, Army Col. Patrick Parrish, deferred a decision on the defense's motion, but as Judy Rabinovitz, an observer for the American Civil Liberties Union, noted, he "did not appear impressed" by the prosecution's argument that "there 'needs to be a showing' by the defense that coercive interrogation practices were used," which otherwise were only "speculative." As Rabinovitz noted, touching on the burning issues of the suppression of evidence vital to the defense, which was highlighted in Mohamed Jawad's case by Lt. Col. Vandeveld, "This line of argument would not likely succeed in a regular military or civilian criminal court, in which the standard for discovery generally places the burden on the government to give the defense information that may assist the defense." She added that Col. Parrish was also not impressed by the government's assertion that even providing information about the seven interrogators, three weeks before the trial's scheduled start date of Nov. 10, would be an "undue burden" on the government.

However, Col. Parrish's decision to postpone Khadr's trial until Jan. 26, five days into the new administration, was prompted in particular by defense complaints about the government's attempts to obstruct an independent psychiatric examination of their client. Although this was first requested in May, it was challenged and resisted by the government in hearings throughout the summer, and as a result a psychiatric expert met Khadr for the first time on Oct. 13. Requesting a postponement of the trial's start date, the defense pointed out that the expert would need time to establish a rapport with Khadr, and also argued that the delay in providing Khadr with a psychiatric evaluation was largely the government's fault. As Judy Rabinovitz explained, even when an independent expert had been approved, the prosecution "delayed in providing her the necessary security clearance, and has also failed to provide the defense with Khadr's psychiatric records."

Those who have been pressing for the young Canadian's release will now be hoping that the Canadian government (which is also a signatory to the UN Convention) will finally discover its spine, and will take advantage of the change of administration to demand his return to Canada, or that the new U.S. government will refuse to proceed with the case. Barack Obama, who voted against the Military Commissions Act that revived the trial system in 2006, has pledged to abolish the military commissions, which he regards (along with the use of torture, the shredding of the Geneva Conventions, and the sidelining of the U.S. Constitution and the Uniform Code of Military Justice) as key examples of the Bush administration's quest for "unchecked presidential power," and even John McCain, who voted for the legislation, may wish to transfer the ailing system to the mainland, and has already explained that he would repatriate Khadr if asked to do so by the Canadian government.

 

comments on this article?
 

Archives

  • A Letter To Barack Obama From A Guantánamo Uighur
    3/27/2009

  • Guantánamo's Long-Term Hunger Striker Should Be Sent Home
    3/21/2009

  • Guantánamo: The Definitive Prisoner List
    3/4/2009

  • Who Is Binyam Mohamed?
    2/24/2009

  • Bad News and Good News for the Guantánamo Uighurs
    2/20/2009

  • Who's Running Guantánamo?
    2/11/2009

  • How Cooking For the Taliban Gets You Life in Guantánamo
    1/30/2009

  • For Detainees, Obama Off to Good Start
    1/24/2009

  • Chaos and Lies: Why Obama Was Right to Halt the Guantánamo Trials
    1/23/2009

  • Judge Orders Release of Guantánamo's Forgotten Child
    1/16/2009

  • Seven Years of Guantánamo,
    Seven Years of Torture and Lies
    1/12/2009

  • The Dying Days of the Guantánamo Trials
    1/9/2009

  • The Ten Lies of Dick Cheney
    12/26/2008

  • A History of Music Torture in the 'War on Terror'
    12/16/2008

  • The End of Guantánamo
    11/27/2008

  • How Guantánamo Can Be Closed: More Advice for Barack Obama
    11/21/2008

  • Why Guantánamo Must Be Closed
    11/18/2008

  • Guilt by Torture
    11/10/2008

  • Life Sentence Fails to Justify Gitmo Trials
    11/4/2008

  • An Empty Trial at Guantánamo
    10/29/2008

  • The Collapse of Omar Khadr's Guantánamo Trial
    10/28/2008

  • When Is a Child Not a Child?
    10/21/2008

  • Justice Dept. Drops 'Dirty Bomb Plot' Allegation Against Binyam Mohamed
    10/16/2008

  • New Evidence of Systemic Bias in Guantánamo Trials
    10/10/2008

  • From Guantánamo to the United States
    10/9/2008

  • Two 50-Year-Olds Released From Guantánamo
    10/8/2008

  • The Dark Heart of the Guantánamo Trials
    10/2/2008

  • Is Khalid Sheikh Mohammed Running the 9/11 Trials?
    9/29/2008

  • Government Says Six Years Not Long Enough to Prepare Evidence
    9/24/2008

  • Seized at 15, Omar Khadr Turns 22 in Guantánamo
    9/19/2008

  • Another Insignificant Afghan Charged
    9/15/2008

  • Controversy Still Plagues Military Commissions
    9/10/2008

  • Gitmo Remainders:
    The 'Worst of the Worst'?
    9/8/2008

  • Tortured in Egypt, Rendered to Guantánamo: Pakistani Heads Home After Six Years
    9/4/2008

  • Bush's Proposed Terror Legacy: A Legal Basis for Perpetual War
    9/2/2008

  • British Court Rules Against UK and US in Guantánamo Case
    9/1/2008

  • Clearing Out Guantánamo: Two More Algerians Transferred
    8/28/2008

  • Guantánamo Suicide Report:
    Truth or Travesty?
    8/26/2008

  • Hamdan's Sentence Signals
    the End of Gitmo
    8/8/2008

  • Secret 'War on Terror' Prison on Diego Garcia Confirmed
    8/2/2008

  • Brother of US 'Enemy Combatant' Released from Guantánamo
    8/1/2008

  • Court Confirms President's Dictatorial Powers
    7/21/2008

  • Omar Khadr's Canadian Interrogation at Guantánamo
    7/16/2008

  • Repatriation as
    Russian Roulette
    7/7/2008

  • Alice in Guantánamo
    7/1/2008

  • Six Years Late, Court Throws Out Guantánamo Case
    6/25/2008

  • John McCain, Torture Puppet
    6/19/2008

  • The Supreme Court's Guantánamo Ruling: What Does It Mean?
    6/14/2008

  • Suicide and Irony at Guantánamo
    6/11/2008

  • Afghan Fantasist to Face Trial at Guantánamo
    6/5/2008

  • Last Call at Gitmo
    6/3/2008

  • The 16 Prisoners Charged in Gitmo's Military Commissions
    5/28/2008

  • Guantánamo Trial Delayed
    5/21/2008

  • Betrayals, Backsliding, and Boycotts
    5/19/2008

  • Ex-Gitmo Suicide Bomber Fuels Pentagon Propaganda
    5/12/2008

  • Who Are the Afghans Just Released from Guantánamo?
    5/10/2008

  • Who Are the Latest Gitmo Detainees to Be Released?
    5/8/2008

  • The Insignificance and Insanity of Abu Zubaydah
    4/26/2008

  • Shameless Propaganda Over Gitmo 9/11 Trials
    4/21/2008

  • Latest Gitmo Charges Questionable
    4/1/2008

  • A Chinese Muslim's Desperate Plea From Gitmo
    3/28/2008

  • The Afghan Hero Who Died in Guantánamo
    3/8/2008

  • Guantánamo's Shambolic Trials
    2/28/2008

  • Gitmo Charges: Why Now? And What About the Torture?
    2/13/2008

  • Guantánamo Trials: Where Are The Terrorists?
    2/9/2008
  • Andy Worthington is a historian based in London. He is the author of The Guantánamo Files, the first book to tell the stories of all the detainees in Guantanámo. He writes regularly on issues related to Guantánamo and the "War on Terror" on his Web site.

    Reproduction of material from any original Antiwar.com pages
    without written permission is strictly prohibited.
    Copyright 2014 Antiwar.com