Khadr comes home

Omar Khadr is back in Canada a full decade since he, then a 15-year-old boy, was seized in Afghanistan.
As we've posted, he was placed in U.S. custody, interrogated, and detained – eventually, at Guantánamo. It was there that, in 2010, he entered a guilty plea to 5 terrorism charges in exchange for a sentence then believed to include about a year more at GTMO plus 7 in Canada. Khadr is reported now to be at a maximum-security prison in Ontario. (credit for detail from 2008 photo (c) Joshua Sherurcij)
Transfer yesterday to Canada came a week or so after the 25th birthday of this onetime child soldier. (Don't get us started on the clueless CNN.com teaser headline of yesterday, "Gitmo detainee: Killer or child soldier?", as if the 2 were mutually exclusive.) Canadian media reports – compare headlines here and here – indicated divided opinion about his repatriation.

The Convention Against Torture, the Canadian Criminal Code & the Prosecution of George W. Bush

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Yesterday, the former President of the United States, George W. Bush, was scheduled to speak in British Columbia, at the Surrey Regional Economic Summit.
Given Bush's presence in Canada—a state party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – many international scholars and human rights advocates alike, including Amnesty International and Human Rights Watch, are asking: Why aren’t Canadian officials indicting him for torture?
Attempts have been made in the national courts of Switzerland, in Germany, in France, and in Spain to hold Mr. Bush and other former top administration officials accountable. Under Article 5(2) of the Convention Against Torture, Canada may be obligated either to submit the case against George W. Bush for the purpose of prosecution or to extradite him to a third country willing to engage in prosecution. But thus far, the Attorney General of Canada has failed to do so.
Is Canada placing politics above the law?
If it is, that may be about to change.
Yesterday, four individuals who allege they were tortured during George W. Bush’s tenure as President of the United States filed to bring a private prosecution against him in Provincial Court in Surrey, British Columbia (right). (photo credit) The four men took this step after repeated calls by human rights organizations to the Canadian Attorney General to open a torture investigation of George Bush went unanswered.
According to the filing, the four men, Hassan bin Attash of Saudi Arabia, Sami el-Hajj of Sudan, Muhammed Khan Tumani of Syria, and Murat Kurnaz, a German-born Turkish citizen, each endured years of inhumane treatment that violated the Convention Against Torture. The horrific and illegal treatment, which they say occurred while in U.S. custody at military bases in Afghanistan or at the detention facility at Guantánamo Bay, included beatings, chainings to cell walls, being hung from walls or ceilings while handcuffed, lack of access to toilets, sleep, food and water-deprivation, exposure to extreme temperatures, sensory overload, and sensory deprivation. Three of the plaintiffs have since been released without ever facing charges. Hassan Bin Attash still remains in detention at Guantánamo Bay, though he too has not been formally charged.
Said former Guantánamo detainee and torture survivor Muhammed Khan Tumani:

'Although I was completely innocent, I lost nearly 10 years of my life. I suffered greatly while detained at Guantánamo, and continue to suffer. I have restrictions on my travel and cannot travel to see my father who is ill. George Bush must face justice and be held accountable for his actions, which continue to cause me and so many harm.'

Over 50 Human rights groups and prominent individuals are signing on in support.
On September 29 and October 14 of this year, the New York-based Center for Constitutional Rights and the Canadian Centre for International Justice, which has offices in Ottawa and Vancouver, made joint requests for the indictment of former President Bush for his role in the authorization and oversight of acts of torture committed pursuant to his administration’s well-documented torture program. The request for indictment was based upon Canada’s obligations under the Convention Against Torture, on Canadian Criminal Code § 269.1, which addresses criminal liability for torture, and on Canadian Supreme Court precedent condemning the acts of torture that took place at Bagram Air Base, secret “black sites,” through extraordinary renditions, and at Guantánamo against detainees in U.S. custody. The legal grounds for liability under the Canadian Criminal Code are based on evidence that Mr. Bush ordered, authorized, condoned, planned or otherwise aided and abetted acts of torture, or, at a minimum, that he failed to prevent or punish subordinates who committed these acts.
CCR and CCIJ delivered over 4,000 pages of exhibits, admissions and evidentiary materials together with joint letters and a 70-page legal brief and draft indictment to Canada's Attorney General, Robert Nicholson. Given the overwhelming documentation, there are reasonable grounds to believe that Mr. Bush is responsible for acts of torture and other cruel, inhuman and degrading-treatment and enforced disappearances, violations that took place during the CIA's secret detention program between 2002 and 2009.
Remarkably, as reported in this Washington Post article, the indictment is also supported by statements made by George W. Bush. His 2010 memoir, Decision Points, describes his role in the creation of the CIA secret detention program and the approval of “enhanced interrogation techniques,” such as waterboarding. Despite Mr. Bush’s arguments about the need for the authorization of waterboarding in the context of the “war on terror,” Article 2(2) of the Convention Against Torture:

'No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.'

The Canadian Federal Court of Appeal and the Canadian Supreme Court have in some ways acknowledged that the Bush regime authorized acts in violation of both the Convention against Torture and § 7 of the Canadian Charter of Rights and Freedoms, if not § 269.1 itself. This occurred with respect to the conditions of detention and interrogation of Omar Khadr, a Canadian citizen detained at Guantánamo. (See paragraph 51 here and paragraph 25 here.) The Canadian Supreme Court also made the following clear, at paragraph 50 of a 2002 decision, Suresh v. Canada (Minister of Citizenship and Immigration):

It can be confidently stated that Canadians do not accept torture as fair or compatible with justice. Torture finds no condonation in our Criminal Code; indeed the Code prohibits it (see, for example, s. 269.1). The Canadian people, speaking through their elected representatives, have rejected all forms of state-sanctioned torture. Our courts ensure that confessions cannot be obtained by threats or force.

Several recent Canadian asylum cases found sufficient evidence of command responsibility or membership in an organization responsibilty for acts of torture– not much unlike, and potentially less extreme than, acts apparently authorized by top officials in the Bush Administration.
Despite the overwhelming evidence presented to Canada’s government, Bush administration officials continue to visit the country with impunity.
Similarly, if Mr. Bush were not a former U.S. official authorizing the very same acts, would his fate be different from Mr. Bazargan (Iran, 1996), Mr. Bonilla (Colombia, 2009), Mr. Equizabal (Guatemala, 1994), Mr. Ishaku (Democratic Republic of the Congo, DRC, 2011), Mr. Ryivuze (Burundi, 2007), Mr. Sivakumar (Sri Lanka, 1997), Mr. Syed (Pakistan, 2006) or Mr. Zazai (Afghanistan, 2005)?
Why such selective recognition and enforcement of Canada’s bans against torture and crimes against humanity?
In my view, the Bush Administration’s legacy of torture has tarnished what remains of the reputation the United States maintained as a “beacon” of diplomacy democratic values. Will profitable political business relationships with former political leadership in the United States now sully the reputation of Canada’s judiciary as an independent body working to secure justice, fairness and equity for all?
People around the world need Canada to be a defender of human rights, not a country that conveniently forgets its principles when those accused of authorizing torture happen to be powerful neighbors. Today, with the filing of the first private criminal prosecutions against Mr. George W. Bush for torture, the Canadian judiciary has the chance to prove its mettle to its citizenry and the world.

SG confesses 1 detention error

The United States' top advocate before the Supreme Court has, as he put it, made a "Confession of Error" respecting his office's long-ago support of a detention policy.
In a Friday post on the blog of the Department of Justice, Neal Katyal, Acting Solicitor General since May 17 of last year, praised the roles that his predecessors played "in advancing civil rights." Katyal then continued:

But it is also important to remember the mistakes.

The mistake he had in mind:

the Solicitor General’s defense of the forced relocation and internment of Japanese-American during World War II.

Writing 68 years and 10 days after Solicitor General Charles H. Fahy presented oral argument in the 1st internment case to reach the Supreme Court, Hirabayashi v. United States, Katyal recalled that

the Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment. The Ringle Report, from the Office of Naval Intelligence, found that only a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody. But the Solicitor General did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court 'might approximate the suppression of evidence.' Instead, he argued that it was impossible to segregate loyal Japanese Americans from disloyal ones. Nor did he inform the Court that a key set of allegations used to justify the internment, that Japanese Americans were using radio transmitters to communicate with enemy submarines off the West Coast, had been discredited by the FBI and FCC. And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by 'racial solidarity.'

Acting Solicitor General Katyal noted that "it took nearly a half century for courts to overturn" the mid-1940s upholding of convictions against two U.S. born young men, Gordon Hirabayashi and the litigant in a subsequent case, Fred Korematsu (prior posts). Katyal stressed one such court's laying of blame on the office that Katyal now holds:

One court decision in the 1980s that did so highlighted the role played by the Solicitor General, The court thought it unlikely that the Supreme Court would have ruled the same way had the Solicitor General exhibited complete candor.

Though the convictions have been set aside, the balancing of individual security and national security that the Court established in the 2 cases has not been overruled. Katyal, who'd represented Salim Ahmed Hamdan in challenging trial at Guantánamo, said of the lingering precedents in Hirabayashi and Korematsu:

[T]hose decisions still stand today as a reminder of the mistakes of that era.

Katyal concluded that

our Office takes this history as an important reminder that the 'special credence' the Solicitor General enjoys before the Supreme Court requires great responsibility and a duty of absolute candor in our representations to the Court.

From the standpoint of transitional justice, Katyal's statement constitutes an admission of wrongdoing by one of many responsible governmental entities. It joins:
►Proclamation 4417, Confirming the Termination of the Executive Order Authorizing Japanese-American Internment During World War II (1976), in which President Gerald R. Ford declared

not only was that evacuation wrong, but Japanese-Americans were and are loyal Americans.

► The Civil Liberties Act passed by Congress and signed by President Ronald Reagan in 1988. The statute, which accorded each internee about $20,000 in reparations, began with these words:

The Congress recognizes that, as described in the Commission on Wartime Relocation and Internment of Civilians, a grave injustice was done to both citizens and permanent residents of Japanese ancestry by the evacuation, relocation, and internment of civilians during World War II.

From the standpoint of contemporary justice, Katyal's statement begs comparison with ongoing detention controversies.
Yesterday, "[m]aking it eight in a row, the Court turn[ed] down the last of the Guantanamo Bay appeals it had considered this Term," as SCOTUSblog's Lyle Denniston wrote. The Office of the Solicitor General (with Katyal recusing himself) argued against the cert. petition filed by former child soldier Omar Khadr. The Office -- which is likely soon to be headed by nominee Donald Verilli -- had done the same in the 7 cases that preceded Khadr v. Obama.

(credit top right image of DOJ seal; credit for May 1942 photo above left, made by Dorothea Lange for the War Relocation Authority of the U.S.Department of the Interior, of Mochida family members as they awaited government-ordered transfer from their home in California; credit for bottom right photo of Camp Delta detention center at Guantánamo; hat tip to Kevin R. Johnson, whose ImmigrationProf blog post on this issue is here)

Guantánamo 9 years on

Today, January 11, 2011, marks the ninth year of the existence of the detention center (left) at the U.S. Naval Base at Guantánamo Bay, Cuba.
Translate that to measure the effect on human beings. What this means is that scores of men have been detained by the United States for nine years now, in prison-like conditions, without trial.
Detention for nine years without trial.
If I appear impassioned, forgive me. But, yours truly has represented Guantánamo detainees for close to nine years—almost as long as the detention camp has been around. Over the years, I have:
► Played a direct role in the litigation journey that ended in the U.S. Supreme Court judgment in Boumediene v. Bush (2008) (prior posts).
► Seen several bills pass in attempt to restrict the rights of the detainees.
► Seen numerous military commissions start and stop. Child soldier Omar Khadr (right), whom I represented for a short time, has faced no fewer than three different military commissions, operating under different rules.
► Seen my clients on hunger strike. And I heard from my fellow habeas counsel the stories of attempted suicides, successful suicides and whispers of homicide. In total, six men have died in custody.
A lot has happened in these last nine years, though for the detainees there, frankly, too little has happened. In those circumstances nine years can seem like a lifetime. And for some of those men, detention at Guantánamo may be a lifetime.
This brings us to the current state of Guantánamo and the detainees.
Of the original 779 detainees, 599 have been released, but 173 men remain in the detention camp. Despite the executive order issued by President Obama in January 2009 that calls for the closure of the detention camp within a year, which I wrote about here, Guantánamo remains open. And as posted by IntLawGrrl Diane Marie Amann this weekend, the most recent piece of legislation signed into law just a few days ago—The National Defense Authorization Act for 2011—makes it clear that closing Guantánamo will be very difficult. This Act:
► Prohibits the use of funds authorized by the bill for the transfer or release to the United States (or any U.S territory or possession) of Guantánamo detainees, including 9/11 defendant Khalid Sheikh Mohammed, who is specifically named.
► Requires certification from a foreign country regarding the transfer of Guantánamo detainees to that foreign country. The country must certify, among other items, that it: is not a sponsor of terrorism; maintains control over the detention facility; has agreed to take steps to ensure the individual won’t take action to threaten the U.S.; and has agreed to share information with the U.S. regarding the individual.
► Prohibits the use of funds authorized by the bill to modify or construct facilities in the U.S. to house detainees from Guantánamo for detention or imprisonment in the custody of the Department of Defense.
On Friday, January 7, President Obama signed the bill into law but issued a signing statement that specifically address two of the provisions relating to Guantánamo: the restriction on transfer into the U.S. and the certification requirement from foreign countries. (photo credit) Some criticized it as weak. But as Diane's post observed, the signing statement includes a pretty clear denouncement of Congress’ attempt to intrude on executive prerogative. Obama wrote:

'Section 1032 represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security.'

President Obama also stated that his administration would

'work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.'

The confrontation between the two branches is certainly interesting, and will require a watchful eye as to exactly how the administration will work with a new Congress that now has a Republican majority in the House.

A more interesting and disheartening development, I believe, are reports of a pending executive order on indefinite detention.

On Sunday, Laurie Blank contributed an IntLawGrrls guest post criticizing such an attempt to routinize indefinite detention. Also well worth reading is the extended article by Dafna Linzer (right), a ProPublica national security reporter, available here. (credit for photo by Lars Klove)

According to Linzer, the White House has been busy for over a year preparing an executive order that sets forth a system for indefinite detention. This system would enable detainees to challenge their detention on a regular basis by requiring a minimal review every six months and then a more lengthy annual review before a ‘parole-like’ board made up of officials from civilian and military agencies. Further, detainees would have access to an attorney to assist them in the process. This review would not replace the court habeas review required by Boumediene, but would supplement it. In essence, the executive review would weigh the necessity of the detention, rather than its lawfulness. The ‘parole board’ would have the authority to release the detainee if appropriate.

The National Defense law just enacted, however, with its severe restrictions on transfer to third countries, would fairly undermine this assertion of executive authority.
In the end:

There are still men at Guantánamo, who by either court order or executive determination (recall the Guantanamo Review Task Force Report that identified approximately 50 men who could neither be tried or released), will continue to be detained without trial either at Guantánamo or elsewhere.

It has already been nine years of detention for the men at Guantánamo, and recent events only confirm that indefinite detention may very well be a reality for some of these men. Equally disturbing, it may very well be a permanent part of our democratic society.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

I found it odd that Welner felt the need to emphasize repeatedly alleged crimes for which family members hadn’t been convicted and ones totally unrelated to terrorism. When you have a family with an al Qaeda connection, is it really necessary to list every black mark?

-- One of many trenchant queries by our colleague Michelle McCluer (prior IntLawGrrls posts), Executive Director of the National Institute of Military Justice, in her eyewitness posts on the plea hearing and subsequent sentencing proceedings against Omar Khadr, which she's been attending at a courthouse at Guantánamo (above right).

Well worth a read.

Update: Khadr pleads guilty

Omar Khadr has pleaded guilty to 5 terrorism charges.
According to a report by the Washington Post's Peter Finn, the plea entered this morning by a military commissions judge at Guantánamo provides for an additional year of detention at that U.S. naval base, followed by 7 years more in prison in Canada, Khadr's birthplace.
Below are my thoughts posted in anticipation of this latest development in this case of a captured child soldier.

Khadr to settle?

Emanating from Guantánamo yesterday:
News stories reporting rumors that the military commissions case of United States of America v. Omar Ahmed Khadr is about to end with a plea bargain.
If not, trial is set to begin later this morning in a GTMO courtroom.
Confirming rumors reported by the Los Angeles Times' Carol J. Williams on Saturday, Reuters' Jane Sutton speculated on a reputed agreement by which Khadr, now 24 (above right), would serve "one more year at Guantanamo, followed by seven years in his native Canada." (image credit) Sutton added that Secretary of State Hillary Clinton had talked Sunday with her counterpart in Canada, which would have to approve any such deal.
Later on Sunday, Michelle Shepard of the Toronto Star, author of a book on the case, acknowledged such speculation, but stressed the statement by "Khadr’s Canadian lawyer Dennis Edney" that "there was no deal, 'as of this moment.'" Shepard thus continued with a preview of the trial, should it occur.
The Miami Herald's Carol Rosenberg, meanwhile, led with concern that any Khadr deal might remain secret (as has that of another detainee). Such secrecy would challenge "[t]he Obama administration's quest to show that military commissions can be as transparent and fair as other U.S. courts," Rosenberg reported.
(Indeed, as posted in the update above, this morning Khadr did plead. The agreement was not released, but is believed to provide for the sentence described in this post.)
As blogreaders well know from our prior posts, Khadr was 15 (above, middle) when seized by U.S. military personnel during a firefight in Afghanistan. He has spent 1/3 of his life in American custody. As detailed in his Department of Defense case file, Khadr now faces trial on charges of, inter alia, throwing a grenade that killed a member of the U.S. special forces during the firefight.
At the preliminary hearing that I attended in December 2008, defense lawyers indicated that proof of the charges at trial may prove difficult. From the beginning, however, proceedings have focused on 2 other aspects of the case:
► 1st, what Khadr suffered, including treatment as a "human mop."
► 2d, that if the acts alleged in fact occurred, Khadr was a child soldier. That fact alone ought to preclude prosecution and punishment, many have argued -- among them our colleague David M. Crane, former Chief Prosecutor for the Special Court for Sierra Leone.
The plea agreement bruited in yesterday's media would seem to take neither aspect into account.
Assuming speculation is correct, Khadr would not see release until after having served 16 years in custody -- a sentence scarcely seeming to incorporate much mitigation on account of detention conditions or any other reason.
The reputed deal departs markedly from international law with regard to child soldiers.
Consider the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. In Article 6(3) states parties agree to

take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.

Article 7(1) continues in like vein:

States Parties shall cooperate in the implementation of the present Protocol, including in the prevention of any activity contrary thereto and in the rehabilitation and social reintegration of persons who are victims of acts contrary thereto, including through technical cooperation and financial assistance. Such assistance and cooperation will be undertaken in consultation with the States Parties concerned and the relevant international organizations.

The treaty's view that the children are "victims" and deserving of "rehabilitation and social reintegration," as well as "physical and psychological recovery," is obviously at odds with a prosecution and punishment strategy with regard to these same children.
It is at odds, then, with the reported disposition of Khadr.
Canada became a full state party to the protocol in July 2000; the United States, in December 2002. The countries' statements at ratification said nothing to undercut the force of the articles quoted -- which, as indicated in this report of the International Committee of the Red Cross, jibe with other treaties.
Wonder whether either state will address this discrepancy.

A "child soldier"

Much in "U.S. Wary of Example Set by Tribunal Case," a story about Omar Khadr will not be new to our readers, who no doubt will have read IntLawGrrls' many prior posts.
What is noteworthy appears in the lead sentence of this recent New York Times article:

After working for a year to redeem the international reputation of military commissions, Obama administration officials are alarmed by the first case to go to trial under revamped rules: the prosecution of a former child soldier whom an American interrogator implicitly threatened with gang rape.

Khadr was seized in Afghanistan at age 15 and soon shipped to Guantánamo. He's been in U.S. custody more than 8 years -- nearly 1/3 of his life, which began with his birth in Toronto, Canada, to a family that had emigrated from Syria.
The Times article labels him, more than once and without hesitation, a "child soldier."
It's a label that wasn't often seen when initially used on this blog 3-1/2 years ago. The unquestioned use of the term in this Times article marks an important mindset-shift in a mainstream publication that seems yet to have a consistent rule on what deserves the label "torture." It's a shift that owes much not only to judicial decisions like this and this, but also to the release of "Oh, Mommy" interrogation videos (photo credit), to NGO advocacy, to the book Guantanamo's Child (2008), and to principal and amicus litigation.
Time will tell whether and how the shift affects the ultimate fate of this alleged child soldier -- if, that is, his oft-delayed criminal case, set to resume on October 18, ever proceeds to verdict.

Which GTMO trial plan best serves U.S. legal tradition? U.S. legal tradition.

U.S. Senator Dianne Feinstein (D-Cal.) (right), Chairman of the Select Committee on Intelligence, has voiced her strong support for trying suspected terrorists in federal courts, before civilian judges sitting in courthouses located in the country's 50 states.
Feinstein's op-ed in yesterday's Los Angeles Times adopted an almost mocking tone, concluding its listing of "the flurry of guilty pleas this year by high-profile terror suspects," who "now face maximum terms of life in federal prison -- where there is no possibility of parole," with this:

So much for the claim that our federal courts aren't up to the job.

The op-ed went on to cite statistics demonstrating the efficiency of these courts, which have concluded cases involving more than 400 terrorism suspects in the last 8 years. That's quite in contrast with the military commissions at Guantánamo:

Since 9/11, only four Guantanamo detainees have been prosecuted in military commissions. Two of them received light sentences and are now free.

In the view of Feinstein, who 3 years ago advocated transferring all detainees stateside and trying them before "a regularly-constituted court," the "lopsided statistics" mean that, almost always, civilian federal courts are to be favored.
This new avowal of support for the decades-old American tradition with regard to terror cases is much needed.
Feinstein's op-ed alluded to an absence of current debate. Curious, given the publication of 2 Washington Post op-eds on the issue in the last 5 days. Both advocated positions to the right of Feinstein:
► On the same day Feinstein published in the Times, the man whom she helped to confirm as Attorney General in 2007, Michael B. Mukasey (left) (prior IntLawGrrls posts), came out hard against another proposal to try all GTMO suspects before Article III judges. (He himself once was a life-tenured judge in accordance with Article III of the U.S. Constitution, serving on the U.S. District Court for the Southern District of New York from 1987 to 2006). Mukasey contended that such trials would: not jibe with the constitutional requisite of a jury trial; violate "'the rule of law'" as codified in the Military Commissions Act of 2006; and impose on prosecutors undesirable evidentiary burdens.
Mukasey's op-ed seemed to accept that the GTMO commissions have had "mixed results," attributing this

to military courts' unfamiliarity with the conventions of conspiracy law, which appears to account, for example, for the finding that Osama bin Laden's driver was not substantially blameworthy even though he bore principal responsibility for bin Laden's physical safety and, like those who serve similiar functions for organized crime bosses, had to have been among his most trusted aides.

Not only does this assessment run counter to evidence at the GTMO trial of that driver, Salim Ahmed Hamdan, but it also fails to note that in view of 4 Justices of the U.S. Supreme Court in Hamdan v. Rumsfeld (2006), conspiracy is not a lawful charge. An equal number of Justices disagreed. Justice Anthony M. Kennedy reserved decision, leaving the question wide open as a matter of U.S. law (far less so as a matter of the international law of war, whose tradition does not recognize the charge).
Mukasey concluded by extolling military commissions proceedings at Guantánamo as "remote, secure, and humane," with security "unparalleled anywhere on the mainland," and an "elaborate press gallery." (My own December 2008 observations on same were rather different; see here and p. 9 here.)
► What provoked Mukasey's ire was not a call to close GTMO, but rather a bid to bestow on that Cuba-based naval base its own federal court.
The title of last Friday's Post op-ed said it all: Try Sept. 11 suspects in the U.S. District Court for Guantanamo. Each of its 2 authors is a former judge: Eugene R. Sullivan (near right), Chief Judge of the U.S. Court of Appeals for the Armed Forces, an Article I court (from 1990 to 1995), and Louis J. Freeh (far right), like Mukasey once an Article III judge in Manhattan and, more recently, Director of the Federal Bureau of Investigation (1993-2001).
The authors of this op-ed applauded the Obama Administration decision to seek a federal district court trial for Khalid Sheikh Mohammed and 4 other Guantánamo detainees charged in connection with the attacks of September 11, 2001. But they contended that holding the trials Stateside "is no longer an option for a host of political and practical reasons," adding that the GTMO commissions "are fatally flawed." Hence, their idea: cast a statutory net to include the base within a jurisdictional map of Manhattan, traditional home of S.D.N.Y., just as farflung sites like Wake Island are deemed part of the District of Hawaii. Or create a new D.GTMO. Sullivan and Freeh foresaw "immense benefit" from this hybrid.
The best choice?
None of the above.
► Mukasey simply seeks More Of The Same. More confusion about critical issues like availability vel non of the death penalty, still, as Attorney General Eric Holder recognized, a question mark in any military commission proceeding against KSM et al. More escalation in cost, more inconvenience to counsel, more keeping of the public from full access to the proceedings. More boycotts like that just announced by Omar Khadr. More litigation of every aspect of every proceeding.
Mukasey's mind-boggling idea for yet another newfangled court, "perhaps presided over by Article III judges but with juries drawn from the military," surely would set off even More.
► Sullivan and Freeh would supplant one practical/political challenge with another that has little to commend it.
Put to one side the oddity of Congress sending appeals from GTMO trials to the federal appellate court in New York even though appeals from GTMO habeas now go to its counterpart in Washington. Put aside too that D.GTMO would be no less costly nor inconvenient than the current system. (The authors envisioned "impaneling an anonymous jury in Manhattan and transporting the jurors to Guantanamo Bay for service.")
Consider only the import of such an innovation.
For the 1st time in U.S. history, an Article III court would have its permanent seat in an armed camp. Public oversight would be subject to Defense Department edict -- as, controversially, it is now. Not just jurors but all participants -- even judges -- would effectively be sequestered. The risk is evident that such circumstances would so tip the balance as to preclude fully fair trials. And given the ostensible justification -- stated fears of trying these particular defendants on American soil -- the changes would undermine the authority and legitimacy of all federal courts in the United States.
► Feinstein's op-ed demonstrated that those courts well deserve the authority and legitimacy they have earned over the course of 2 American centuries. Yet it also falls short, for it allows that some detainees yet might be tried before military commissions. Leaving the GTMO courtroom door even a bit ajar creates a foothold for proposals like those in the other op-eds.
Meanwhile, persons captured as many as 8 years ago remain in an offshore site of U.S. military power, uncharged and untried, the crimes attributed to them unresolved.
That result is not fair. Not fair to detainees, not fair to victims and their loved ones, not fair to the public at large.
The time is well passed to treat the terrorism suspects of today by the same processes that the likes of Ramzi Yousef, Omar Abdel Rahman, and Manuel Noriega have faced.
It is time to return without exception to American legal tradition.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

If the administration is hoping to showcase the strength of its military and the president's tough stance on terrorism, this probably wasn't the best way to do it.

-- Daphne Eviatar (below left), Senior Associate at the Law and Security Program of Human Rights First, concluding a commentary provoked by news that the military commission trial of Omar Khadr, alleged child soldier pictured above right at time of capture years ago, may begin -- "or not" -- this week at Guantánamo.

Khadr in the Canadian Supreme Court

Readers who are following the progress of Guantánamo-related cases through domestic courts around the country will be no doubt familiar with the case of Omar Khadr (left). Arrested and detained in Guantánamo Bay while he was a minor, Khadr is a Canadian citizen who had secured a lower court ruling directing the Canadian government to make representations for his release. The Government challenged that decision in the Supreme Court, largely on the basis that the exercise of diplomatic functions is an Executive function from which the courts ought to exclude themselves or, at least, in which they ought to minimise their role quite significantly.
In the Canadian Supreme Court's decision in Prime Minister of Canada v Omar Khadr [2010] CSS 3 there is a clear recognition of the participatory role of the Canadian government in the unlawful detention with statements provided by Canadian officials being one of the bases for his continued detention. However, while Khadr was entitled to a remedy the Supreme Court did not grant the remedy sought, i.e. an order that Canada request his repatriation. The Court did not accept that the government was immune from constitutional scrutiny when it comes to deciding on perogative powers. Rather, the court asserted its jurisdiction to decide (1) whether a claimed perogative power exists, (2) if so whether the Charter of Rights or constitutional norms have been breached in the exercise of that power, and (3) to make specific orders. However, the Court could not make an order directing the government to request repatriation as to do so is to infringe too greatly on the executive power relating to foreign affairs. The Court held that the appropriate remedy in such a case is to declare a breach of rights and then leave it to the government to decide how to react to that breach.
The judgment seems to be a mixture of judicial muscularity (the claim that the conduct of foreign affairs is not an area within which the government can act without scrutiny) and deference (the claim that the government can not be directed to act in a certain way without the foreign affairs arena). While this might, at first, seem to indicate a contradictory viewpoint on the part of the Supreme Court, in my view it is in fact a good example of the kind of 'nudging' judgment we have seen in both the US and the UK superior courts in the 'War on Terrorism' (I have written about this here in the MLR and, forthcoming, also in the OJLS with an early, unproofed version here). What will happen if the Government does nothing or is not forced into doing something by parliament and 'the people'? That is perhaps the lingering question from Khadr. The hope is that it will not fall to the Court to decide it and, instead, the government will take steps to try to have Khadr repatriated.

(Cross posted at Human Rights in Ireland

On the latest GTMO move

My 2¢ is published as "Unanswered Questions," the 4th item in the "Moving Gitmo to America" forum at The New York Times' Room for Debate blog.

Posed there are questions about the announcement that the Obama Administration is moving to acquire a state prison in Thomson, Illinois (pop. 559) to house "a limited number of detainees" from Guantánamo -- alleged child soldier Omar Khadr perhaps among them, according to a Canadian Broadcasting Co. report.

My post reflects queries in prior IntLawGrrls' posts -- Beth Van Schaack's here, Fiona de Londras' here and here, and, especially, my 2007 post entitled "Closing "Guantánamo" as well as Guantánamo."

Canada Supreme Court to hear Khadr

News flash: The Canada Supreme Court has just ordered arguments on whether the government must work to seek the release of Omar Khadr, a native citizen of Canada detained at Guantánamo.

The government's appeal of lower courts' orders to do just that will be heard on November 13, at the courthouse in Ottawa.

This will not be the Canada Supreme Court's 1st consideration of Khadr; it issued a ruling on an evidence-disclosure matter in 2008.

As we've posted, Khadr, now 22 years old, is alleged to have been fighting as a child soldier when he was seized in Afghanistan in 2002. He's spent a third of his life in U.S. antiterrorist detention. (My observations on Khadr's December hearing before a military commission at Guantánamo are at pages 9-13 of this report.)

The Toronto Star today wrote that the Conservative-led Canadian government

has long argued Khadr should face trial under the U.S. military justice system, which took custody of him immediately. Khadr was jailed first at Bagram military base and later in Guantanamo Bay, where he was subjected to a 'frequent flyer' program of sleep deprivation to prepare him for aggressive questioning.
That treatment was known to Canadian officials just prior to the third interview conducted by a Canadian foreign affairs official in March 2004.

Jawad goes home

The United States' criminal case against Mohammed Jawad (right), the alleged child soldier about whom IntLawGrrls have posted here, ended yesterday when he was flown out of Guantánamo and home to Afghanistan. The U.S. Department of Justice said of Jawad, who was between 12 and 16 years old when seized in 2002:

Jawad’s transfer was carried out under an arrangement between the United States and the government of Afghanistan. The United States has coordinated closely with the government of Afghanistan to ensure the transfer takes place under appropriate security measures and will continue to consult with the Afghan government regarding Jawad.

It remains to be seen whether an arrangement between the United States and the government of Canada one day will benefit the alleged child soldier at left, Canada-born Omar Khadr.

Accountability explored

Kudos to our colleague, Stanford Law's Allen S. Weiner (below left), for dispassionate analysis in The Torture Memos and Accountability, a recent ASIL Insight. (Indeed, down-the-line examination is a hallmark of this feature, making Insights an invaluable resource for anyone trying to separate facts/law from spin on issues of international law). The piece is most timely, given both the efforts to downsize detainee population at Guantánamo about which Naomi Norberg posted yesterday, and the New York Times' lead story yesterday, which asserted: "None of the Justice Department lawyers who reviewed the interrogation question argued that the methods were clearly illegal."
Addressing U.S. criminal law in his ASIL Insight, Allen:
► Explained the significance of the "reasonable reliance" defense of the common law, codified at Model Penal Code § 2.04(3)(b) and accepted in prior federal criminal law precedents. This defense could protect interrogators who, pursuant to Office of Legal Counsel opinions authorizing their behavior, committed acts amounting to torture under the Convention Against Torture and its domestic implementing statute, and that this possibility may underlie the declaration of President Barack Obama that the United States would not seek to prosecute such interrogators. (Prior IntLawGrrls posts here, here, here, and here.) (photos above right from video of interrogation of then-16-year-old Omar Khadr, detailed here and here)
► Confirmed our own conclusion that Obama's declaration does not shield persons who did not rely on the OLC memos, for the simple reason that they wrote those memos. There is no automatic bar to prosecution of lawyers for conspiracy or aiding and abetting torture, Allen explained. But he warned that any such prosecution "could prove difficult," for it would require proof beyond reasonable to doubt "that the purpose of the lawyer's advice was to facilitate conduct that the lawyer knew to be criminal," and such proof likely would be hard to come by.
Turning then to the international arena, Allen:
► Stated on the one hand that if it were refusing to prosecute "on policy grounds" alone the United States might stand in breach of the obligation under Article 7 of CAT -- which it assumed voluntarily when it ratified that anti-torture treaty in 1994 -- to try or extradite a person said to have committed torture. On the other hand, he argued, there may be no breach if the "reasonable reliance" defense grounds the decision.
Other legal considerations yet may prove pivotal. Thus Allen:
► Cited Common Article 3 of the 1949 Geneva Conventions and the statute implementing them, as well as other U.S. laws proscribing conduct the United States admitted occurred during interrogations. To this could be added the International Covenant on Civil and Political Rights, a treaty to which the United States has been a state party since 1992 and Article 7 of which also unequivocally prohibits subject to "torture or to cruel, inhuman or degrading treatment or punishment."
► Noted the potential for other accountability mechanisms in places like Spain, and concluded by reminding that

apart from the question of state responsibility on the part of the United States, it is possible that individual interrogators or lawyers may be subject to criminal prosecution outside the United States.

(The Spanish avenue may face closure, however, as we've posted.)
The Insight underscores that the final chapter in the story of accountability for post-9/11 counterterrorism practices is far from written.

GTMO present

The world waits to see if detention at Guantánamo will end once Barack Obama takes the Presidential oath at high noon tomorrow. Media are rife with queries and commentaries on same -- among them IntLawGrrls' prior Guantánamo posts and a couple that I wrote last week here and here. This post offers my own glimpses of the naval base as it has been post-9/11 and, for at least a few days more, still is.
At this writing I imagine that a new crew of reporters, lawyers, and NGO observers has crossed choppy water in vessels called "vipers" -- envision very sleek, very fast versions of the boat in the movie "The African Queen" -- to "Camp Justice." Why? Today's pretrial hearing in the case of Omar Khadr, the best-known among the alleged-child-soldier cases pending before GTMO military commissions. Trial of the Canadian-born Khadr, 15 at arrest (right) and now 22, is set for next Monday. (Carol J. Williams' excellent Los Angeles Times article on the law of Khadr's case is here.)
Camp Justice is the name given to a cluster of quonset-like tents (below left) and tiny trailers. It's situated on the tarmac of an abandoned airfield on the windward side of a base that sprawls for 45 square miles, twice the size of Manhattan. This cluster stands next to the walls and razor wire surrounding a new and hypersecure court complex. On a hill sits a much older courthouse. Farther away lie camps that, as of Saturday, still hold 244 noncitizens seized as terrorism suspects. Farther yet is the compound of cages into which the 1st detainees were put. Now closed, that Camp X-Ray compound crumbles beneath creeping vines, yet remains intact by order of a U.S. court that's hearing challenges to detention.
Camp Justice is the place where last month another such crew -- among them myself, observing on behalf of the National Institute of Military Justice -- was installed. We were there for proceedings in Khadr, which took place in the hilltop courthouse, and, in the new courtroom, in Khalid Sheikh Mohammed et al., the 9/11 case about which I wrote here.
Ever escorted, on occasion we NGO observers ventured elsewhere on the base. There's the outdoor Starbucks, the Subway nestled next to the NEX, or Navy Exchange, a supermarket that offers most of the foods and otherstuffs found at any neighborhood SuperTarget, and, at night, a dim room lined with barstools and booths that bills itself "the only Irish pub on Communist soil." No off-base adventures, neither for us nor for anyone but the 3 aging men who for a half-century have done the daily commute to and from homes in Cuba to work at GTMO. On account of the border, or "fence line," that separates the U.S. base from the rest of Cuban soil, GTMO's isolation is palpable.
It is an otherworldly place, where a beautiful natural landscape has given way both to the banality of government-issue structures and the brutality that the government itself admits occurred within prison walls. Eerily unfamiliar are elsewhere-familiar offerings like premium coffee. Odder still is GTMO kitsch, T-shirts, toys, and trinkets like those at top. It's the kind of stuff found in any souvenir shop anywhere -- even, oddly, in the few such shops scattered about this near-yet-far outpost of U.S. power.

Just back from GTMO ...

... where I spent last week observing the military commission proceedings in Khalid Sheikh Mohammed et al., the 9/11 case, and in Khadr, the case about which Naomi Norberg posted yesterday. I was an NGO observer for the National Institute of Military Justice, on whose Board of Advisors I serve.

My Miami Herald op-ed on the strange turn of events in the 1st case may be found here, and a Washington Post quote from me on same may be found here.

Hope to post more on this extraordinary visit in due course.

Sins of the father?

On Friday, Omar Khadr (right) appeared before his judges at Guantánamo. As we've posted, Khadr has been held at Guantánamo since 2002, when he was 15. Accused of the murder of an American soldier in Afghanistan, Khadr is the only citizen of a Western country still in confinement at Camp Delta, where he has now spent a third of his young life. Prior to that, he and his brothers were pushed into al Qaeda training camps by their father, who was killed in battle in Afghanistan in 2003. The eldest brother is currently in prison in Toronto, Canada, awaiting judgement on a US extradtion request for allegedly supplying weapons to al Qaeda; the second eldest was an unsuccessful al Qaeda recruit turned FBI and CIA informant during his time in prison in Kaboul and at Guantánamo. He claims that once his cover was blown, the Americans sent him back to Kaboul with neither money nor passport and was only able to be repatriated to Canada with the help of the Canadian embassy in Bosnia. Meanwhile, Khadr's younger brother was injured in the attack that killed their father and is now a paraplegic who spent many months in a hospital in Pakistan before finally regaining Canada and his mother and sisters.
Given this family background, it is not entirely surprising that pleas to Canada's Prime Minister Stephen Harper to repatriate Khadr have been refused on the grounds that Khadr is "accused of very serious crimes" for which he must be judged. But being judged does not include, among other things, being beaten and threatened with rape, as Khadr claims to have been during his captivity at Bagram Air Force Base and Guantánamo. Despite the Canadian Supreme Court's ruling that Khadr's detention and interrogation at Guantánamo violated Canada's international human rights obligations, as well as U.S. domestic law and Khadr's lawyer's attempts to convince the military judge that the U.S. is violating both American and international laws with respect to protecting children and former child soldiers, Khadr continues to be held and his trial date repeatedly pushed back. Now set for January 26, 2009, his only hope of escaping trial by military commission - according to procedures that violate both U.S. and international law - lies in President-elect Obama's pledge to close Guantánamo.

Child soldier accountability

The good news:
Upon signature last week by President George W. Bush, the Child Soldier Accountability Act became U.S. law. This means that recruitment and use in combat of children are now criminal acts subject to prosecution in U.S. courts. Criminalized is recruitment of children "under 15." As Human Rights Watch details here, that age line comports with the 31-year-old protocols to the 59-year-old Geneva Conventions; however, it is much lower than the line of 18 drawn in many later international law instruments.
The bad news:
The age-line discrepancy is no small thing.
Notwithstanding U.S. officials' apparent recognition that children recruited to serve as soldiers are victims of crime, the United States persists in its prosecution of alleged child soldiers. Among them, as we've posted, is Toronto-born Omar Khadr, was 15 years old when captured in Afghanistan. He's spent his adolescence at the U.S. military base at Guantánamo Bay, Cuba, under conditions of detention and interrogation (above; credit) that his lawyers say have harmed his mental health. The situation has been condemned by Canada's Supreme Court, and lawyers have demanded Khadr's repatriation. Although plans to start a trial by military commission yesterday have been scrapped, U.S. efforts to prosecute Khadr -- on charges of murder, attempted murder, conspiracy, material support for terrorism -- continue. In similar predicament is another detainee, Mohammed Jawad, 16 when captured; see Jamil Dakwar 's ACLU Blog post here.
Some day, perhaps, there will be a measure of accountability for the treatment of these child soldiers?

(Hat tip on news of the new U.S. law to Pamela Merchant at the Center for Justice and Accountability, a San Francisco-based NGO)

Child soldier in interrogation

We've posted before about Omar Khadr (right), the alleged child soldier who's been detained for years at Guantánamo and is among the 1st detainees whom to U.S. government has charged. He was seized in Afghanistan in 2002.
Now comes the videotape below of a February 2003 interrogation of the Canada-born Khadr. Though the words at times are hard to decipher, Khadr's distress is evident. At one point the woman and men who are questioning him leave the room. Khadr slumps forward, head in hands, and wails 2 syllables that some have understood to be "Help me," but that others have heard as the Arabic words "Ya Umi" -- "Oh, Mommy" in English.
At the time of this interrogation the boy was 16 years of age.