Everything about the last week’s events at Guantánamo has been deeply disturbing. On Monday, in defiance of international obligations requiring the rehabilitation of child prisoners, the US government — under President Obama — fulfilled the deepest wishes of the Bush administration, and persuaded Omar Khadr, the Canadian citizen who was just 15 years old when he was seized after a firefight in Afghanistan in July 2002, to plead guilty to charges of murder in violation of the laws of war, attempted murder, spying, conspiracy, and providing material support to terrorism, in a plea deal that apparently involves an eight-year sentence, with Khadr serving one more year at Guantánamo before being returned to Canada.
At the heart of the plea deal is a 50-point “Stipulation of Fact” (PDF), signed by Khadr and stating that he “does not have any legal defense to any of the offenses to which he is pleading guilty,” in which, despite his previous protestations to the contrary, he accepted that he threw a grenade that killed Delta Force Sgt. Christopher Speer on the day of his capture, and, moreover, that he was, at the time, an “alien unprivileged enemy belligerent,” who did not have “any legal basis to commit any war-like acts” at all.
As part of the Bush administration’s apparently successful rewriting of international law — facilitated by President Obama and lawmakers in Congress — Khadr was therefore obliged not only to forego further complaints about his age at the time of his capture, and the responsibility of others for indoctrinating him, but also to accept that he had been captured in circumstances in which it was impossible for him to be a legitimate combatant.
He was also required to stay silent in the face of compelling evidence that these dubious-sounding war crimes to which he signed his name were not in fact war crimes at all, and were only invented by Congress in 2006, as former Guantánamo military defense attorney Lt. Col. David Frakt explained last summer. In addition, he also had to overlook the fact that, when the Commissions were revived last year, defense secretary Robert Gates added a new twist to the fictional war crimes so that, as Lt. Col. Frakt explained in April this year, “a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war.”
This was Lt. Col. Frakt’s full explanation of this particular point:
In the new [Military Commissions] Manual the following official comment has been included in explanation of the offense of Murder in Violation of the Law of War: “an accused may be convicted in a military commission … if the commission finds that the accused engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.” Astoundingly, according to the Pentagon, a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war.
However, rather than dwelling on these profoundly disturbing truths about the nature of Khadr’s “crimes,” the significance of his age at the time of his capture, and the pressure he was put under to reverse the implacable opposition to a plea deal that he demonstrated in summer, the media, for the most part, allowed themselves last week to be ushered into the next stage of the game: a week of sentencing hearings, involving witnesses called by the prosecution and the defense, to enable a seven-person military jury to deliver its own sentence, which, bizarrely, will mean nothing unless the jurors deliver a sentence shorter than the one agreed in secret as part of the plea deal.
As I reported in a previous article, the government took full advantage of this platform to summon a purported psychiatric expert, Michael Welner, who in fact delivered an Islamophobic tirade and threw out provocative soundbites that were snapped up by a sensation-hungry journalists — describing Khadr as, amongst other things, “Al-Qaeda royalty” and “highly dangerous” — and also summoned a soldier wounded in the firefight and Tabitha Speer, the widow of Sgt. Speer.
One of the few commentators to pick up on this particularly manipulative choice of witnesses was Thomas Walkom of the Toronto Star, who, with reference to Tabitha Speer’s testimony, wrote in his column today, “While heart-wrenching, her testimony glided over the queerest irony of this case — that after a pitched battle between clearly delineated forces, in which soldiers on both sides killed, only one person from one side ended up accused of murder.” (Walkom ended his column by noting that, when Khadr eventually returns to Canada, the government “will ignore, as almost everyone seems to ignore, the absurdity of prosecuting a soldier for killing his enemy in battle”).
Khadr’s defense team managed to secure a few important witnesses, including Navy Capt. Patrick McCarthy, the former top military legal adviser at Guantánamo, who called Khadr respectful, pleasant and friendly, and added, “Fifteen-year-olds, in my opinion, should not be held to the same level of accountability as adults.” In addition, as the Edmonton Journal reported today, his defense team drew on correspondence between Khadr and Arlette Zink, a teacher in Canada. She has corresponded with Khadr for the last two years, and has been encouraging him in his voracious appetite for literature, and, echoing Capt. McCarthy, she described him as a “polite, thoughtful, intelligent person.”
For the most part, however, Khadr’s lawyers were hobbled by their inability to dwell on the fundamental problems with the trial mentioned above, and also by the judge’s refusal to let them discuss another deeply disturbing aspect of Khadr’s story — the torture and abuse to which he was subjected, at least in the first two years of his imprisonment.
Back in May, I discussed some of the claims made by Khadr, as described in an affidavit submitted in February 2008 (PDF), in an article entitled, “The Torture of Omar Khadr, a Child in Bagram and Guantánamo,” in which I explained how
[Khadr] described his mistreatment in detail, explaining how he was unconscious for a week after his capture, when he was severely wounded, and how, in Bagram, where he was taken after just two weeks in a hospital, his interrogations began immediately, at the hands of an interrogator who manipulated his injuries (the exact details were redacted from his affidavit). Crucially, he also explained how, as soon as he regained consciousness, “the first soldier told me that I had killed an American with a grenade,” and how, during his first interrogation at Bagram, “I figured out right away that I would simply tell them whatever I thought they wanted to hear in order to keep them from causing me [redacted].”
As I also explained:
There is much more in the affidavit — casual cruelty, whereby guards made Khadr do hard manual labor when his wounds were not healed, and, significantly, threats “to have me raped, or sent to other countries like Egypt, Syria, Jordan or Israel to be raped.” He also noted, “I would always hear people screaming, both day and night,” and explained that other prisoners were scared of his interrogator. “Most people would not talk about what had been done to them,” he declared. “This made me afraid.”
Khadr also described what happened to him in Guantánamo, where, as I explained [in a previous article], he “arrived around the time that a regime of humiliation, isolation and abuse, including extreme temperature manipulation, forced nudity and sexual humiliation, had just been introduced, by reverse-engineering torture techniques, used in a military program designed to train US personnel to resist interrogation if captured, in an attempt to increase the meager flow of ‘actionable intelligence’ from the prison.”
At various points in 2003, while the use of these techniques was still widespread, Khadr stated that he was short-shackled in painful positions and left for up to ten hours in a freezing cold cell, threatened with rape and with being transferred to another country where he could be raped, and, on one particular occasion, when he had been left short-shackled in a painful position until he urinated on himself, “Military police poured pine oil on the floor and on me, and then, with me lying on my stomach and my hands and feet cuffed together behind me, the military police dragged me back and forth through the mixture of urine and pine oil on the floor. Later, I was put back in my cell, without being allowed a shower or a change of clothes. I was not given a change of clothes for two days. They did this to me again a few weeks later.”
Crucially, when describing the interrogations that punctuated these experiences at Guantánamo, Khadr explained, “I did not want to expose myself to any more harm, so I always just told interrogators what I thought they wanted to hear. Having been asked the same questions so many times, I knew what answers made interrogators happy and would always tailor my answers based on what I thought would keep me from being harmed.”
Given the well-chronicled accounts of torture and abuse in Bagram and Guantánamo, including two murders in Bagram just months after Khadr was held there, and the official implementation of reverse-engineered torture techniques at Guantánamo in 2002 (which continued until 2004), it was disturbing that the judge in Khadr’s case, Army Col. Patrick Parrish, brushed over allegations of abuse and of rape threats that surfaced in pre-trial hearings in May (which I described in the article mentioned above), for two reasons. The first is because it keeps hidden from view the long and often brutal history of the Bush administration’s detention policies in the “War on Terror,” as experienced by everyone held at Guantánamo and in other Bush-era prisons, and the second is because it specifically deprived Khadr of the opportunity to remind jurors — and the wider world — of the pressure he was put under to confess to the “crimes” of which he was accused.
On Friday, the defense team finally managed to mention the abusive conditions in which Khadr was held in Bagram, when one of his lawyers, Lt. Col. Jon Jackson, read out an unsworn statement by Khadr relating to an exchange he had with Joshua Claus, who, at the time, was a sergeant in the 519th Military Intelligence Battalion. Claus later served a five-month prison sentence after pleading guilty in a court martial to the abuse of an unidentified prisoner at Bagram, who was made “to roll back and forth on the floor and kiss the boots of his interrogator,” as Michelle Shephard described it in the Toronto Star, and also for his part in the murder of Dilawar, an Afghan taxi driver whe died in Bagram in December 2002.
As Claus conceded in May, he had come up with a scenario to terrify Khadr, which involved him being sent to a US prison and gang-raped, and the following statement by Khadr, describing his response to this threat, was the defense team’s last submission on Friday. It remains to be seen if it will sway the jury in any way as the jurors make their deliberations this weekend, deciding between, on the one hand, prosecutor Jeff Groharing’s description of Khadr as “a terrorist and a murderer,” who should be given a 25-year sentence, and, on the other, Lt. Col. Jackson’s description of him as a “child with a bad dad,” who “was radicalized as a child and has matured and changed while in US custody.” In his final words to the jury, Jackson said, “This case is about giving Omar Khadr a first chance because he’s never had it. Send him back to Canada, let him start his education and career. There is no good for him here. Send him home.”
Omar Khadr’s unsworn statement about the rape threat he received in Bagram
I ask that you consider this letter about what happened to me at Bagram in 2002. It is hard for me to talk about. I know it does not change what I did but I hope you will think about it when punishing me.
At first I did not tell them my interrogators what really happened. My main interrogator, Interrogator #1 [Sgt. Claus], told me he knew I was lying. He told me that it was fine if I did not tell him the truth. He told me a story about a young Afghan who lied to him. He told me they thought the Afghan guy had not done anything seriously wrong. But they sent him to an American prison for lying to Americans.
He told me a story about an Afghan getting sent to an American prison, and he said there’s a bunch of, you know, big black guys and, you know, the big Nazis are there, and they noticed this little Afghan who doesn’t speak their language. He, you know, he prays five times a day; he’s got to be a Muslim. Remember, they’re Americans. They’re still kind of upset and mad about the September 11th attacks, so, you know, they’re still patriotic even though they’re inmates. And the guards, they do everything they can to protect this little guy and keep him out of harm’s way, but, you know, nobody could be everywhere at once. Things happen. We don’t want things to happen, especially to anybody, and this poor little kid, we couldn’t clear out. You know, he’s like 20 years old. He’s kind of scared. He’s away from home; kind of isolated, you know, no one can really understand him.
It would be unfortunate that, you know — that apparently one time he was in the shower by himself and these four big black guys, they showed up in prison. They said, hey, we know all about you Muslims. You attacked the country. And we didn’t want anything to happen to this kid. We just wanted him to talk to us, but he decided he wanted to lie and didn’t want to be straight with us. And it’s terrible that something would happen but, you know, they caught him in the shower and they raped him and, you know, it was terrible. This kid got hurt. And we think he ended up dying but we’re not quite sure.
This story scared me very much and made me cry. Interrogator #3 was also there and he saw the whole thing happen.
Signed Omar A. Khadr