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It is Time to Join the Rest of the World: Omar Khadr and the Convention on the Rights of the ChildToday marks the 20th anniversary of the Convention on the Rights of the Child, the most comprehensive treaty on children's rights. The convention has been ratified by nearly every country in the world, except the United States. The convention would fill current gaps in U.S. law, and provide all children in America with the same robust protections that children in 193 countries are already entitled to. On Friday, Attorney General Eric Holder announced that five Guantánamo detainees will face trial before military commissions. Included among those five, is Canadian Omar Khadr, a Guantánamo detainee who has been held in U.S. custody since age 15 — fully a third of his life — and faces prosecution for crimes allegedly committed when he was as young as 10. In response to questions from reporters, Attorney General Holder specifically announced that the administration will continue to prosecute Omar Khadr before a military commission. The decision to continue to prosecute Omar Khadr flies in the face of universally recognized standards of juvenile justice and the United States' international legal commitments. The Optional Protocol on the Involvement of Children in Armed Conflict, a separate protocol to the Convention on the Rights of the Child (CRC), requires the U.S. government to treat former child soldiers first as candidates for rehabilitation and reintegration into society, not subject them to abuse and prosecution in a military tribunal, as in Omar Khadr's case (PDF). The prosecution of Omar Khadr also flies in the face of international practice: no international tribunal since Nuremberg has prosecuted an alleged child soldier for war crimes. In May 2008, the Committee on the Rights of the Child, the United Nations body of experts that monitors compliance with the CRC, reviewed U.S. government compliance with the protocol, which the United States ratified in 2002 and is binding on the United States. The committee expressed serious concern that the U.S. government has charged with war crimes, and in some cases prosecuted, children who were recruited or used in armed conflict, without due account of their status as children. The committee recommended that the U.S. government avoid conducting criminal proceedings against children within the military justice system, and provide psychological, education and other services to promote social reintegration of child soldiers. Yesterday, the ACLU sent a letter to Secretary of Defense Robert Gates requesting updated information on the number of juveniles in U.S. military custody overseas and information on efforts to bring U.S. policy regarding the treatment, detention and trial of suspected child soldiers like Omar Khadr into compliance with international law. The U.S. government's refusal to acknowledge Omar Khadr's status as a teenage child when he was captured, and its insistence on proceeding with prosecution before the discredited military commissions system, is a blot on our country's human rights record. Both our government's insistence on departing from accepted standards and international practice by prosecuting an alleged child soldier, and our government's failure to ratify the most ratified international human rights treaty, stand in the way of the United States' ability to regain leadership on human rights. Even President Obama has recognized this. During his presidential campaign, President Obama said that it is "important that the United States return to its position as a respected global leader and promoter of human rights." At that time, President Obama said that our country's failure to ratify such a universally accepted treaty, and to find ourselves in the company of Somalia, is "embarrassing." Now is the chance to ensure America's commitment to the rule of law by giving Omar Khadr his day in a legitimate system of justice or, better yet, repatriating him to Canada for rehabilitation and reintegration into society, and a second chance at life. Tags: CRC
Maintaining the Status Quo(Originally posted on Daily Kos.) It seemed to be business as usual Wednesday, as we filed into the courtroom at Guantánamo Bay for Afghan Mohammed Kamin's pre-trial hearing before the military commission here. Attorney General Eric Holder simultaneously was testifying before Congress that the decision, announced last Friday, to transfer the five accused 9/11 co-conspirators to federal court to stand trial, represents a step closer to closing Guantánamo (even as President Obama announced that his administration will miss its deadline to do so). The decision to transfer some cases to federal court was indeed an important step forward toward restoring due process and the rule of law, but it is diminished by the continuation of the discredited military commissions. Today the military commissions hurtled on. On Friday, the Attorney General also announced that five Guantánamo detainees will face trial before military commissions. Attorney General Holder said nothing about where Mohammed Kamin's case will be tried, but Kamin was scheduled for a pre-trial hearing today before the military commission. Until the judge sat with the prosecutors and Kamin's defense lawyers yesterday for a status conference, we did not know whether today's hearing would proceed as scheduled. Shortly after today's hearing began, Kamin's defense lawyer, Lt. Cmdr. Richard Federico, voiced his uncertainty about the status of his client's case. Lt. Cmdr. Federico announced that because the Attorney General had made no mention of Kamin's case on Friday, and since he had received no notification about whether Kamin would be tried before the discredited military commissions or transferred to federal court to stand trial, he was unsure what was to happen to his client's case. Lt. Cmdr. Federico went on, "But the fact that we are standing in this courtroom is an indication that the government intends to proceed forward" with the case before the military commission. Prosecutor Maj. Michael Wallace answered that no decision had been made yet about whether to transfer Kamin's case to federal court, but he noted, "essentially today's hearing maintains the status quo." And that's exactly the problem. The Obama administration is creating a tiered justice system: one that maintains the status quo of a discredited military commissions system plagued by delay, confusion and seemingly endless legal challenges; and the other, our tried-and-true federal courts, which have a proven record of handling complex terrorism cases. (Our federal courts have convicted 195 defendants of terrorism charges since 2001, in contrast to the three convictions secured by the military commissions since 2001.) Continuing the military commission proceedings against Kamin meant more of the same of what we've seen in other proceedings here: uncertainty about the rules, which the government is making up as we go along (even now, the Department of Defense is preparing new rules for the military commissions), and a judge frustrated by delays in the prosecution's failure to hand over fundamental evidence to the defense. The usual chaos was compounded by uncertainty over where Kamin's case will ultimately be tried. Kamin is accused of a single crime, providing material support for terrorism—an offense that should have been prosecuted in established federal courts. While a military commission conviction for material support for terrorism could possibly be overturned on appeal because such a crime is not a traditional war crime, the offense is covered by the federal criminal law. And federal courts have a proven track record of obtaining convictions for material support for terrorism in numerous cases since 2001. The discredited military commissions should be abolished and Kamin and the rest of the Guantánamo detainees should be transferred to federal court. It's time to break from the status quo. Tags: Close Gitmo, Guantanamo Dispatch
Restore Religious Freedom for Charitable Donors(Originally posted on Daily Kos.) U.S. policies that purport to address terrorism financing are seriously undermining the Constitution's fundamental rights to freedom of religion, freedom of association, and freedom from discrimination. This past year, I traveled from Michigan to Texas to interview American Muslims about how terrorism finance laws interfere with their rights to practice their religion. American Muslim donors told me how the closure of some of the largest American Muslim charities in the country, widespread law enforcement interviews of Muslim donors about their donations, and surveillance of donations at mosques without suspicion, is creating a climate of fear that prevents them from making charitable donations. Terrorism financing laws leave many innocent Americans unable to fulfill a central tenet of their religion: charitable giving, or Zakat, one of the five pillars of Islam and a religious obligation for all observant Muslims. In a new report released today, the ACLU Human Rights Program documents the chilling effects of terrorism financing policies on American Muslims' practice of their religion through charitable giving. For example, one American Muslim quoted in the report (PDF) told me, "I'm so scared to give charitably. They might come after me. I think when I'm giving, will they come after me? Will they put me on their hit list? There is a constant worry in the back of my mind. I fear giving more would put me on the hit list, and the government will say there is a linkage between me and the charity…. Because everything is under scrutiny, I am not able to fulfill my religious obligation to give — because I am just afraid. It affects my religious obligation to give. I am not following my faith, I'm not practicing my religion as I should. I'm like a prisoner, I can't practice my religion the way I want to — there's no freedom in that respect."From Michigan to Texas, American Muslims told me that they are unable to fully practice their faith, and unable to support needy people both at home and overseas for fear that they could be interrogated by the FBI, dragged into court, lose their citizenship, or even prosecuted for donations to entirely legal Muslim charities that are registered with the IRS. While charitable giving is an important part of all major religions — Christians practice tithing, for instance — terrorism finance laws unfairly and disproportionately target Muslim giving. In recent remarks in Cairo, President Obama recognized that American Muslims face barriers to practicing their religion, noting, "[I]n the United States, rules on charitable giving have made it harder for Muslims to fulfill their religious obligation." The continued intimidation of American Muslim donors tarnishes America's reputation as a beacon of religious freedom. In his speech in Cairo, President Obama not only acknowledged problems with the current laws, but went further, calling for and committing to change these policies and enhance protections for charitable giving. The ACLU applauds the President's commitment and stands ready to work with him for change. Post-9/11 policies have created a climate of fear that prevents Muslims from practicing their religion, and unless the Obama administration takes action, this legacy of the Bush administration will persist. Religious freedom is a fundamental American value to be protected and honored. Learn more about this important issue, and watch a video featuring Americans who have been negatively impacted by these unfair laws, at www.aclu.org/muslimcharities. Tags: Human Rights Program
EU Accepting Guantánamo Detainees Would Signal Global Support for Restoring the Rule of Law(Originally posted in Jurist.) President Obama's recent executive orders to close the Guantánamo Bay prison camp within a year and to reverse many of the Bush Administration's most egregious detention and torture policies were a huge first step in restoring America's standing in the world. With his swift actions, Obama sent a message to the world that the U.S. is newly recommitted to the rule of law. In an encouraging sign, our European allies are now responding to that recommitment. On Monday, European Union (EU) Commissioner Javier Solana announced that several EU member states would likely be willing to accept former Guantánamo Bay prisoners. The ACLU welcomes the interest of the European leaders, who are trying to assist Obama in making good on his promise to shut down Guantánamo. Their leadership signals a new day not just in America, but in relations with our European allies. Guantánamo was a problem created by the Bush administration, and the fact that several European countries are willing to assist in this uniquely American legal debacle should be welcomed and appreciated for what it is. To encourage other countries to support the Obama Administration's closure of Guantánamo and to facilitate swift restoration of the rule of law, the United States should also accept some of the former Guantánamo detainees cleared of wrongdoing for resettlement in the U.S. As a first step, the Obama Administration should respond to the EU's offer by resettling in the U.S. the 17 Uighur Guantánamo detainees who are members of a long-persecuted Chinese Muslim minority. More than three months ago, a federal judge ordered the government to transfer the Uighurs to the U.S., but that order is on hold due to a pending Bush Administration legal challenge. While it is positive news that progress is being made to implement the closure of Guantánamo, it should be noted that the executive order signed by the president merely outlines a process and not the complete plan for shutting down the prison camp. The executive order leaves open questions as to whether terrorism suspects may still be held indefinitely without charge or whether the military commissions will be ended and not just halted. The Obama Administration must continue to take steps to fully restore the rule of law as it moves toward shuttering Guantánamo. That means full and fair criminal trials of Guantánamo detainees in U.S. courts, or repatriation to their home countries or resettlement in third countries in cases where detainees would face torture or indefinite detention at home. Assurances from the Obama Administration that indefinite detention will be unequivocally banned and that the Guantánamo military commissions won't be shipped to American shores would help expedite the closing of Guantánamo and the long-delayed release of certain prisoners, and assure the world that the rule of law will be fully restored.
International Intervention Needed on Behalf of Obama's Child SoldiersPresident-elect Barack Obama will make history on his inauguration day. And if a scheduled Guantánamo military commission trial goes forward on January 26, President-elect Obama will make a wholly different kind of history, by presiding over a terrible historical event. On January 26, Guantánamo detainee Omar Khadr, a 22-year-old Canadian national who has been held at Guantánamo for nearly one-third of his life, is slated to be tried by military commission for war crimes allegedly committed when he was 15. If Omar Khadr's trial goes forward as scheduled on January 26, one of the first acts of President-elect Obama's administration will be to preside over the first war crimes prosecution of a child soldier in U.S. history.
If President-elect Obama does not suspend the military commission trial of Omar Khadr, the United States will become the first western nation since Nuremberg to hold a war crimes trial for crimes allegedly committed by a child. Omar Khadr's trial would require President-elect Obama to break from international practice and flout international standards that recognize children used as child soldiers should be treated first as victims in need of rehabilitation, not abused and prosecuted by an unjust and discredited military commission. Today, the ACLU called on two international U.N. bodies to intervene in the military commission cases of Omar Khadr and Mohammed Jawad, who were both teenagers when they were captured by U.S. forces. (Like Omar Khadr, Mohammed Jawad faces trial by military commission, though a trial date has not yet been set in his case.) We called on the U.N. Special Representative for Children and Armed Conflict and the U.N. Committee on the Rights of the Child to issue public statements calling for their military commission cases to be suspended. Earlier this week, the ACLU, Amnesty International, Human Rights Watch, Human Rights First, and the Coalition to Stop the Use of Child Soldiers jointly called on President-elect Obama to suspend Omar Khadr's trial — a call that was echoed by children's rights scholars, advocates, and professionals who work with youth. While intervention by U.N. bodies in Omar Khadr's case is an exceptional measure, it is warranted by the urgent circumstances. If Omar Khadr's trial goes forward, it would establish dangerous precedent for the United States and the entire world. Time is running out for President-elect Obama to honor his promise to break from the Bush administration by respecting U.S. human rights treaty obligations. Guantánamo, its military commissions, and unjust trials of child soldiers have no place in the new direction the U.S. government plans to take under his leadership. Join us in asking President-elect Obama to stop this travesty in its tracks. Send him a message through the change.gov website at www.aclu.org/askobama. Tags: children's rights, Close Guantanamo, Human Rights Program
A Plea to Obama, from Guantánamo(Originally posted on Daily Kos.) Yesterday marked the final military commission hearing before the eve of President-elect Barack Obama's inauguration. The question of what will become of Guantánamo was a subject of much speculation in the days before yesterday's pre-trial hearing in the case of Saudi national Ahmed Mohammed al Darbi. Al Darbi has been held in U.S. custody for six years and is charged with conspiracy and providing material support for terrorism based on alleged connections to al-Qaeda. Just before concluding yesterday's hearing, the judge, Army Col. James L. Pohl, raised the issue on everyone's mind, unaddressed in other post-election hearings. With al Darbi's trial slated to start in late March, he said, "The court is aware that on January 20 there will be a new commander-in-chief, which may or may not impact on these proceedings." He cautioned, "Both sides should know that unless and until a competent authority tells us not to, prepare to proceed as scheduled." At this, al Darbi motioned that he wished to address the court. Through an interpreter, Al Darbi spoke: "Your honor, you had mentioned there will be a new president on January 20. I hope this location will be closed as he promised," he announced. He continued, "I am hopeful that Mr. President Obama will make good on his promise and earn back the legitimacy the United States has lost in the eyes of the world, as a world leader." "I am asking this nation that claims to be a world power to respect their Constitution so that they can regain their leadership," al Darbi added. As he spoke, al Darbi held up a photograph of Barack Obama. When I looked more closely, I realized that he was holding a copy of the ACLU's full-page New York Times ad that ran on November 10. The ad consists of a photograph of President-elect Barack Obama and a quotation from his campaign pledge that, "As president, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions." It launched an ACLU campaign calling on President-elect Barack Obama to close the Guantánamo Bay prison and end the military commissions on Day One of his presidency. The judge admitted al Darbi's copy of the ACLU ad into evidence. Al Darbi's defense lawyers later said they had no idea how al Darbi obtained the ACLU ad (and the ACLU certainly didn't give it to him), though the detainees do have some access to news. Al Darbi articulated a now common refrain. For much of the world, Guantánamo has become a symbol of injustice, abuse, and the Bush administration's excesses in the name of the "war on terror." It has damaged America's image and standing in the world. During the campaign, Obama described Guantánamo as "a sad chapter in American history." Though it may require political capital and hard decisions, President-elect Obama must close Guantánamo immediately upon taking office. By doing so, he can end the poisonous legacy of the Bush administration's policies and take a critical first step in restoring American values of justice, due process, and human rights. Tags: Close Guantanamo, Guantanamo Dispatch, Human Rights Program
The Chickens Are Coming Home to Roost(Also posted on Daily Kos.) Friday brought another pre-trial hearing in the military commission case against Canadian Omar Khadr, the last Western national still being held at Guantánamo Bay. Now 22, Khadr was 15 when he was captured by U.S. forces in Afghanistan for allegedly throwing a grenade that killed a U.S. medic, Sgt. Christopher Speer. While the media coverage of Friday's hearing focused on potential witness testimony that Khadr could not have thrown the grenade, there has been little coverage of a legal debate that threw into question the authority of the military commission here to try Khadr for Sgt. Speer's murder. Omar Khadr's defense team argued Friday that the most serious crime Khadr is charged with—murder of Sgt. Speer—is not a war crime. The defense argued that Khadr cannot be tried for "murder in violation of the rules of war" in a military commission because he is accused of a homicide, not a war crime. The laws of war are clear: Murder can be a war crime only if the victim belongs to a category of protected people during a battle, such as civilians or wounded soldiers, or if the perpetrator uses a prohibited method of warfare, such as feigning surrender or using a human shield. Khadr is charged with killing a soldier who was engaged in a firefight—not a protected person under the laws of war—and the prosecution never has claimed that he used a prohibited method of battle. The prosecutors predictably tried to argue Friday that the usual rules don't apply here. The prosecution based its argument almost entirely on legal texts that pre-date the Geneva Conventions (the core treaties that lay out the laws of war), displaying a breathtaking and deliberate ignorance of those laws. The prosecution's redefinition of war crimes requires a break from the laws applied in all other post-Nuremberg war crimes tribunals. Friday's hearing revealed that this case should never have been brought before a military commission in the first place. The government could have properly charged Khadr in a U.S. federal court, but instead the current administration intentionally bypassed the U.S. legal system to create commissions outside the bounds of law. Now the chickens are coming home to roost: the government faces the possibility that the murder charges against Khadr will have to be thrown out as a result. While the debate at Friday's hearing was legalistic and technical, it is profoundly relevant to the current debate about what to do with Guantánamo's detainees. In recent weeks, even as president-elect Obama has repeated his promise to close Guantánamo, some have used fear-mongering to argue we should open a new Gitmo at home by creating national security courts. That the most serious charges against Omar Khadr may not even be tried by a war crimes court illustrates why it would be disastrous to import Guantánamo's military commissions to U.S. shores. It also makes clear that it is time to transfer detainees accused of wrongdoing to U.S. criminal courts to face the American criminal justice system, rather than to perpetuate the Bush administration's failed military commissions experiment. President-elect Barack Obama will have to act quickly. Khadr's trial is scheduled to start on January 26, six days after Obama takes office. And in what defense lawyer Lt.-Cmdr. Bill Kuebler labeled "a last-ditch effort to salvage this broken process," a final pre-trial hearing has been squeezed in the day before Obama's inauguration. On day one in office, Obama must shutter the military commissions, not tinker with the Bush administration's broken system. Update In an earlier version of this post, the fifth paragraph stated that the government could have properly charged Khadr in a U.S. federal court. This paragraph has been amended to clarify the fact that Friday's hearing revealed that this case should never have been brought before a military commission in the first place. Tags: Close Guantanamo, Guantanamo Dispatch, Human Rights Program
Pentagon Admits Number of Guantánamo’s Children is Higher than Originally DisclosedAn AP article today announced the Pentagon has admitted that 12 children under the age of 18 have been held at Guantánamo since it opened in 2002. The news report comes on the heels of a study released last week by the U.C. Davis Center for the Study of Human Rights in the Americas, showing that the U.S. has held at least 12 juveniles at Guantánamo. These reports confirm what the ACLU has been saying for months: the U.S. government has been lowballing the number of children it has imprisoned at Guantánamo. In a submission to the U.N. Committee on the Rights of the Child in May, the U.S. claimed that eight juveniles have ever been held at the detention camp and only two prisoners currently at Guantánamo were children at the time of their transfer to the prison. Yet in an ACLU report we issued that same month, Soldiers of Misfortune, we said that prisoner lists released in response to Freedom of Information Act requests show the number is closer to 23, while some sources estimate the number of youth held at Guantánamo as high as 60. At a U.N. review session in Geneva, the ACLU also pointed out that the U.S. had failed to count a third prisoner currently at Guantánamo, Mohammed El-Gharani (also known as Muhammed Al-Qarani), who was only 14 when first captured and has reportedly attempted suicide several times while in custody at Guantánamo. U.N. officials of the Committee on the Rights of the Child demanded that U.S. officials explain why discrepancies in the figures of child detainees may exist, pointing out that the U.S. had failed to count El-Gharani. The government delegation’s inadequate answer? It’s tough to determine the number of teens we’ve detained at the Navy base. In July, the ACLU renewed calls for the U.S. to release accurate numbers for the children imprisoned at Guantánamo, after an attorney for the U.K. non-profit Reprieve said testimonies collected by the NGO, which represents 30 inmates at Guantánamo, indicate the actual number is much higher than 22. As the number of children whom the U.S. owns up to detaining climbs higher, it is becoming crystal clear that there is no transparency in the government’s Guantánamo detention practices. And as the U.S. government’s past miscalculations of child prisoner statistics are revealed, it proves that there is a profound lack of accountability for Guantánamo policies, even when children are concerned. Sadly, this is not the first time the Bush administration has misled a human rights body and deflected public and institutional scrutiny to avoid full accountability for its Guantánamo policies. But it is not too late to correct past wrongs: Delay the upcoming trials of two of the remaining detainees who have been held since they were juveniles and assess their eligibility for rehabilitation and reintegration into society. As alleged former child soldiers, the two detainees (Omar Khadr, who was captured when he was 15, and Mohamed Jawad, who was captured when he was 16 or 17), should be treated first and foremost as candidates for rehabilitation and reintegration into society, not subjected to further victimization. Tags: children's rights, Close Guantanamo, Human Rights Program
No Defendant and No Defense at Guantánamo(Originally posted on Daily Kos.) Friday morning, a determined and defiant Ali Hamza Ahmed Sulayman al-Bahlul (PDF) appeared before the military commission. Escorted by military police holding each of his wrists, al-Bahlul wore a tan prison uniform and flip-flops. He wasn’t carrying his "boycott" sign, which he created back in January 2006 and has held during subsequent hearings. We soon realized that this was the reason for a half-hour delay in the hearing’s start time. Al-Bahlul then took center stage in a hearing that quickly became a circus. First, al-Bahlul requested the boycott sign, on which he had written a nine-point list enumerating the "political and legal reasons" why he opposes the military commission proceedings against him. The front of the sign had been entered into evidence, but apparently not the reverse side, on which al-Bahlul had written his nine-point manifesto, and no one could produce the original, which he said had been confiscated from him after his last hearing. Al-Bahlul refused to continue without the signed document, saying it would assist him in explaining his position to the judge. Al-Bahlul then rightly pointed out "There should be an administrative regime for the court to find the paper...If such a legal document is lost, what kind of court is this?" Criticizing the proceedings as being inherently unfair, Al-Bahlul then announced that he refuses to attend any further hearings and will not accept military defense counsel. "I do not have any trust in this legal farce," Al-Bahlul declared. "When it is the final proceeding, just let me know this is the proceeding when the verdict and sentence are announced, and I will show up. For the other sessions in between I will not be present," he announced. He gestured to his stand-by defense counsel, Maj. David Frakt, and said, "Until I hear the final verdict I don’t consider him my attorney." He stoutly added, "I am not going to talk to Major Frakt." Al-Bahlul also told the new military judge in this case, Col. Ronald Gregory, that because fellow Yemeni Salim Hamdan had recently been convicted and sentenced, he was ready to "do some settling" of the case today to "facilitate things." It is unclear whether he meant he was prepared to plead guilty to the charges today. Al-Bahlul also asked to withdraw his habeas petition — filed on his behalf by his cousin — announcing, "The case which is put forth in the American courts in my name, I am not satisfied with it, and I don’t want it." Before exiting the courtroom midway through the pre-trial hearing, Al-Bahlul departed with a final salvo: "You can continue your legal play." After al-Bahlul left the courtroom, the judge appointed Maj. David Frakt defense counsel because al-Bahlul’s departure meant he had waived his right to represent himself. Maj. Frakt told the military judge that he would defend al-Bahlul "in the manner in which he desired to be defended." Afterwards, Maj. Frakt stunned the judge and observers by waiving all future pre-trial motions, including motions related to discovery of evidence, and demanded the right to a speedy trial, announcing he was ready to go directly to trial. Under the military commission’s rules, Maj. David Frakt’s request for a speedy trial could push the trial to start in 90 days. After the hearing, Maj. Frakt told me he will not mount any defense. Because his client "does not recognize the legality or validity of the proceedings," and believes it is impossible for him to receive a fair trial in a Guantánamo military commission, Maj. Frakt explained, al-Bahlul does not want to have defense counsel do anything purporting to be on his behalf. "He thinks this circus has gone on long enough," Maj. Frakt said. Al-Bahlul's decision to boycott is, perhaps, only a recognition of what the whole world knows — the military commissions system is designed to arrive at a guilty verdict, regardless of whether evidence was coerced or can be tested, because it lacks fundamental guarantees of fair trials and due process. The government has ensured that the regular rules don't apply, so it can hardly be surprised when criminal defendants refuse to participate in a sham process. It also comes as no surprise that al-Bahlul rejects the military commission system as unfair. Al-Bahlul’s statement Friday criticizing the legal process as a "farce" is just the latest in a series of accusations of unfairness that have marred the proceedings in the past week. On Thursday Judge Stephen Henley disqualified Brig. Gen. Thomas Hartmann, the military commission’s Legal Advisor to the Convening Authority, from participation in Mohammed Jawad’s case, citing excessive interference in the prosecution of commission cases (for excellent coverage, see here, here, and here). Because Brig. Gen. Hartmann pushed for charges to be brought against Jawad, (bringing Jawad "from the freezer to the frying pan, thanks to Gen. Hartmann," according to testimony by the former chief prosecutor on Wednesday), Judge Henley ordered an unprecedented top-level review of the charges against Jawad. This is the second time Brig. Gen. Hartmann has been removed from a military commission case for improper influence, as Judge Keith Allred disqualified him from further participation in Salim Hamdan’s case back in May. Last week also brought additional testimony by Col. Morris Davis, former chief prosecutor for the military commissions, in Omar Khadr’s case. Col. Davis resigned in last October, citing political interference. He has testified in Hamdan, Jawad, and now Khadr’s hearings to criticize Brig. Gen. Hartmann’s interference with the prosecution of military commission cases, including pressuring the prosecution to get trials underway before the presidential election. On Wednesday Col. Davis repeated his famous testimony recalling his initial job interview, when the Defense Department’s chief counsel William J. Haynes II told him that the military commissions couldn’t result in acquittals because "We’ve been holding these guys for years." Also last week another senior military official (this time a general) came forward to critique Brig. Gen. Hartmann, adding to the taint on the military commissions. Brig. Gen. Gregory J. Zanetti, deputy commander of Joint Task Force Guantánamo prison camps, accused Brig. Gen. Hartmann of bullying, characterizing his approach as "Spray and pray. Charge everybody. Let’s go. Speed, speed, speed.". Rather than providing fair, meaningful justice that reflects American principles, recent testimony in the Hamdan, Jawad and Khadr cases shows dogged pursuit of wins in these cases at all costs. The taint of political pressure and the failure to observe basic constitutional guarantees means that any verdict rendered by the military commissions will be regarded as illegitimate by the American public and overseas observers. This country deserves more than trials rushed to provide an election-year win. The Office of Military Commissions has a new motto: "Freedom through Justice." Between the taint of political pressure in Mohammed Jawad and Salim Hamdan’s cases and the impending farce of Ali al-Bahlul’s trial, how could this kind of justice possibly not detract from our freedoms?
Psychologists on the Dark Side(Originally posted at Daily Kos.) Thursday’s hearing in Afghan national Mohammed Jawad’s case brought stunning testimony on serious abuse he suffered at Bagram Air Base in Afghanistan as a teenager, as well as military psychologists’ role in crafting abusive interrogation methods for use on Jawad and other prisoners at Guantánamo Bay. On Thursday Special Agent Angela Birt, an Army Criminal Investigation Division (CID) investigator who investigated two homicides of prisoners at Bagram prison in Afghanistan, took the stand. Her investigation resulted in confessions from 18 military police for their role in abusing prisoners and findings of probable cause to charge 27 officers for the homicides. Birt’s investigation led her to Jawad because he had been imprisoned at Bagram at the time of the two homicides. Her investigation also uncovered a widespread pattern of abuse that corroborates Jawad’s claims of mistreatment at Bagram prison. Birt testified that the types of abuse Jawad told her he suffered—being forced to stand for long periods of time in stress positions; forced sleep deprivation; being hit, kicked and beaten; being shackled to the door of his cell; and being hooded and shackled with hand irons, leg irons and a waist chain while moved and in one case pushed down the stairs—mirrored other Bagram detainees’ claims. She also said that Jawad’s claim that he heard the cries and screams of other detainees was a “fairly common” claim of other prisoners locked in isolation who heard other prisoners “crying for their parents and begging for the beatings to stop” during interrogations nearby. Birt testified that the period of time Jawad was at Bagram—the same period in which these two homicides occurred and the period chronicled in the documentary film Taxi to the Dark Side —“was the worst period of abuse I’ve ever seen” in the 2,000 cases she's investigated in her 18-year career at CID. The methods Birt uncovered at Bagram were part of a menu of abusive Survival, Evasion, Resistance, and Escape (SERE) interrogation techniques also used on prisoners at Guantánamo Bay. Thursday’s hearing in Jawad’s case brought attention to the role of military psychologists belonging to Behavioral Science Consultation Teams (BSCTs), known as “Biscuit teams,” in developing and refining these abusive techniques for use at Guantánamo Bay. Since 2002 BSCT psychologists have evaluated prisoners’ fears and psychological weaknesses to craft individualized blueprints for torture and other mistreatment, which they passed on to the interrogators. For instance, a Guantánamo psychiatrist advised interrogators to exploit one detainee’s severe phobia of the dark by deliberately keeping him almost totally in the dark. Earlier media reports (see here, here, and here, and a New England Journal of Medicine article revealed, and recent revelations from a June Senate Armed Services Committee Investigation confirmed, that military psychologists contributed to the development of these abusive interrogation methods. Sadly, Thursday’s hearing did not add much to the public record on the workings of the BSCT program at Guantánamo Bay. The BSCT psychologist, "Lt. Col. Z," who was scheduled to testify for the defense today, invoked her right to remain silent—presumably because she feared recounting her role could incriminate herself in criminal activity. Her testimony would have been the first time a member of the BSCT team had testified in a military commissions hearing. What we already knew was that leaked Guantánamo Bay interrogation logs—which must be read to be believed —show that a BSCT psychologist was present during the highly abusive interrogation of Guantánamo prisoner Mohammed al-Qahtani. (Charges against al-Quatani were suddenly dropped in May, some have speculated because a trial would have turned the spotlight to the torture he endured at Guantánamo Bay.) And BSCT psychologists’ role in aiding torture has been the subject of much controversy among the American Psychological Association (APA), which is holding a referendum among its members to disallow psychologists to participate in such mistreatment. What we did learn Thursday was that, according to Jawad’s defense attorney Maj. Frakt, in September 2003, “when an interrogator observed Mohammad talking to posters on the wall of the interrogation room and was concerned about his mental health,” instead of calling a mental health professional to care for him, they summoned the BSCT team, whose psychologist made a “cruel and heartless assessment and recommendations.” Maj. Frakt called the BSCT psychologist’s report, which was classified secret and therefore not discussed in detail in the open court session, “the most chilling document of all.” And on Wednesday, Dr. Bruce Menely, the chief medical officer at Guantánamo Bay, testified that when Jawad tried to hang himself only months later, on Christmas Day 2003, BSCT psychologists—not regular medical psychologists—were notified of Jawad’s suicide attempt. In Omar Khadr’s hearing Wednesday, Khadr’s defense lawyer Lt. Cmdr. William C. Kuebler noted that, much like in Jawad’s case, military psychologists have met with Khadr to manipulate him and extract more information from him during interrogations. During his emotional closing argument Thursday, Maj. Frakt asked, “What has this country come to when a licensed psychologist, a senior officer in the U.S. Armed Forces, someone trained in the art of healing broken hearts and mending broken minds, someone with a duty to do no harm, turns her years of training and education to the art of breaking people, to the intentional devastation of a lonely, homesick teenage boy?” At the end of her examination of Birt, defense attorney Katharine Doxakis asked Birt whether her resignation from the military was because she had become disillusioned with the military after seeing the results of her Bagram abuse investigation. The prosecution’s immediate objection was sustained, and Birt never got to answer the question. If, as implied by the defense, Birt’s resignation from the military was a stand against torture, why didn’t Guantánamo’s military’s psychologists do the same?
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