Wednesday, January 29, 2014

The case of Omar Khadr: when soldiers are made criminals...



Sam Morrison is a defense counsel for Guantanamo prisoners and has taken on the appeal of Omar Khadr. Khadr, at 15, a Canadian of Afghani descent, was found wounded and unconscious on the battlefield in Afghanistan, his father killed in the same battle. Sam writes:

"Omar is the only person in modern history, and so far as I know the only person ever in U.S. history, to be prosecuted for alleged war crimes for conduct that occurred when he was a minor. In so doing, the U.S. acted in blatant disregard of its obligations as a signatory to the Optional Protocol on Child Soldiers."

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Under the Supremacy Clause of the Constitution, Article 6, section 2, treaties signed by the U.S. government are the highest law of the land. This is a violation of American law as well as international agreement.

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Khadr had been charged with murder with a grenade. There is exactly no physical evidence for this; he was found severely injured and in a coma, and the prosecutors made up a crime and, when he regained consciousness, badgered him hundreds of times to confess:

"...the facts of the case are worse yet. In July 2002, Omar was captured in a remote village in eastern Afghanistan at the age of 15, where he had been abandoned by his father in the custody of a known terrorist, after being gravely injured in a firefight with U.S. soldiers. As the sole "enemy" to have survived the conflict, he was assumed to have been responsible for the death of a U.S. soldier. Unsurprisingly, given the extent of his injuries -- a concussion, partial blindness, extensive shrapnel wounds, and two gaping gunshot wounds in his chest -- Omar has no memory of the battle. When he awoke from a coma about a week later, his interrogators told him that he was responsible for the soldier's death by throwing a grenade. The government then proceeded to interrogate Omar more than 300 times over the course of the next three years in order to get him to incriminate himself. At no time -- not once -- was Omar informed that he was the target of a criminal investigation or that he had a right against self-incrimination. He was held incommunicado for two years and did not receive a defense attorney for three years. Yet, all of these statements constituted the primary 'evidence' against him."

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Note that the charge pertains to the action of a soldier in battle and is not something prosecutable. And Khadr was never informed that he was the target of a criminal investigation or that he had the right to remain silent (oh, he was not an American, and only citizens, like the 16 year old Abdulrahman Al-Awlaki, murdered by drone in Yemen, have "rights"...).

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In addition, the lack of physical evidence would, in a court, be disturbing.

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The American military and CIA practiced torture accompanied by incentives for prisoners to say what the torturers already "knew" (Cheney ordered torture of "high value captives" to "prove" that Saddam Hussain had ties to Al-Qaeda - see "What the torturer knew" here). So Omar Khadr about "murder":

"He was also subjected to a decade of abuse and ill-treatment in the custody of the U.S. military, to include, among other things, having pain meds given based on his answers to interrogators, having his hands chained above his head and left for hours in a standing position, being sleep deprived, being shackled in painful stress positions for hours at a time, being threatened with rape and indefinite detention, and so on. In October 2010, he pled guilty in exchange for a commitment to repatriate him to his home country, Canada."

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10 years of a life - falsely imprisoned and under torture...

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The story of Omar Khadr also recalls the horrors done by the US army toward indigenous people or in the South toward blacks...See "Iraq is 'Indian Country" here.

But there is a chance for a Military Appeals Court to prove that there is some remnant of the rule of law in America...

In 1864, Lincoln finally spared two hundred sixty-five Santee Sioux scheduled to hang in Minnesota against whom there was no evidence of a crime (thirty-eight were still hanged). Perhaps this Court could move up to Lincoln's understanding.

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Sam is a defense counsel who has done heroic work on behalf of the law in dark circumstances (Bush-Cheney-Rice world with complicity from Obama). He is available to speak on this issue.

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"Alan,

I trust life is treating you well. I wanted to touch base on an important new project that I've undertaken. I am the lead appellate defense counsel for Omar Khadr. As you may know, Omar is the only person in modern history, and so far as I know the only person ever in U.S. history, to be prosecuted for alleged war crimes for conduct that occurred when he was a minor. In so doing, the U.S. acted in blatant disregard of its obligations as a signatory to the Optional Protocol on Child Soldiers.

While that is bad enough, the facts of the case are worse yet. In July 2002, Omar was captured in a remote village in eastern Afghanistan at the age of 15, where he had been abandoned by his father in the custody of a known terrorist, after being gravely injured in a firefight with U.S. soldiers. As the sole "enemy" to have survived the conflict, he was assumed to have been responsible for the death of a U.S. soldier. Unsurprisingly, given the extent of his injuries -- a concussion, partial blindness, extensive shrapnel wounds, and two gaping gunshot wounds in his chest -- Omar has no memory of the battle. When he awoke from a coma about a week later, his interrogators told him that he was responsible for the soldier's death by throwing a grenade. The government then proceeded to interrogate Omar more than 300 times over the course of the next three years in order to get him to incriminate himself. At no time -- not once -- was Omar informed that he was the target of a criminal investigation or that he had a right against self-incrimination. He was held incommunicado for two years and did not receive a defense attorney for three years. Yet, all of these statements constituted the primary "evidence" against him.

He was also subjected to a decade of abuse and ill-treatment in the custody of the U.S. military, to include, among other things, having pain meds given based on his answers to interrogators, having his hands chained above his head and left for hours in a standing position, being sleep deprived, being shackled in painful stress positions for hours at a time, being threatened with rape and indefinite detention, and so on. In October 2010, he pled guilty in exchange for a commitment to repatriate him to his home country, Canada.

To compound matters, under the law as it now stands, none of the allegations against Omar constitutes a violation of the law of armed conflict. That is, the government concedes that he neither killed (or conspired to kill) a protected person, or used a prohibited weapon, or employed a method of warfare that is illegal under international humanitarian law. Nor was he charged under either of the two preexisting statutes that permitted trial by military commission. Instead, he was tried on the theory that he violated the previously unannounced "U.S. common law of war," a theory which has since been rejected by the D.C. Circuit. (I explain all of this in more detail in the attached brief that was filed in November 2013. Additionally, I spoke at a university in Edmonton last fall, a video of which you can find here. Accordingly, the military commission had no authority to accept his guilty plea in the first place.

It follows that even if you take everything the government alleges at face value, Omar is still innocent of any war crime. While the honorable thing for the government to do would be to confess error and join in our request to have his convictions vacated, the government argues that Omar has "waived" his right to appeal, even though it (contradictorily) acknowledges that the subject-matter jurisdiction of the military commission cannot be waived. Perhaps most disturbing, the government actually claims that allowing Omar to appeal is inequitable because it permits him to retain the "benefits" of the plea agreement, whereas the government has given up custody by transferring him to Canada and thus can wring no further punishment out of him. But this obviously overlooks the fact that his guilty plea was void ab initio. As such, the only conceivable injustice in the case is that he was punished at all. Put another way, the government can hardly complain about being deprived of a result to which it was never entitled. That's like a thief attempting to enforce a contract for the return of stolen property. Then again, moral reasoning has never been the government's strongest suit. (This is explained at greater length in the attached briefs explaining why the appellate court has jurisdiction over the appeal).

The case is now pending before the Court of Military Commission Review, an Article I military court staffed by military appellate judges that normally hear appeals in court-martial cases. I honestly have no idea how we are going to lose. The government simply has no credible argument to sustain the conviction. If we do lose, however, we then proceed to the D.C. Circuit. If you think this would be a suitable topic for your students, I am very much interested in trying to keep the case in the public eye and would be willing to do a speaking event.

Best,
Sam Morison"

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