Travesty in Progress

Omar Khadr and the US Military Commissions

by Lisa Hajjar | published July 26, 2010

At 23, Omar Khadr is the youngest of the 176 people still imprisoned at the US military’s detention facility in Guantánamo Bay, Cuba. He has been there for eight years, one third of his life.

A Canadian, he is the only citizen of a Western country remaining in detention, although one British resident, Shaker Aamer, is also still locked up there. Of the 779 people brought to Guantánamo since 2002, [1] only 36 have been charged or designated for prosecution, 26 by the Bush administration and the remainder by the Obama administration. Khadr is accused of violating the laws of armed conflict -- as reinterpreted by the US government after the September 11, 2001 attacks. He is charged with being an “unlawful enemy combatant” (now relabeled “unlawful enemy belligerent”) who threw a grenade that killed a US soldier in the heat of battle in Afghanistan.

That hot-war murder allegation distinguishes the case against Khadr from those charged with terrorist acts outside a theater of war, including al-Qaeda’s 1998 US embassy bombings in Kenya and Tanzania, the 2000 attack on the USS Cole and the September 11 attacks, which precipitated the launch of the global “war on terror.” Most Guantánamo prisoners facing prosecution are accused of providing material support for terrorism and conspiracy. These offenses were refashioned as war crimes in order to enable their prosecution in military commissions, which were decreed into existence by President George W. Bush on November 13, 2001. The Supreme Court ruled these bodies unconstitutional in 2006, but within months Congress had restored them with the Military Commissions Act, which was superceded by an identically named law in 2009.

When Khadr was captured on July 27, 2002, following a firefight in the Afghan village of Ayub Kheyl, he was blinded in one eye, shot twice in the chest and buried under rubble. The critically injured 15-year old was airlifted to the Bagram air base on the outskirts of Kabul where he was interrogated for three months, starting as soon as he regained consciousness while strapped to a hospital gurney. In September Khadr turned 16, and in October he was shipped to Guantánamo, where he -- like all prisoners -- was held incommunicado for years and interrogated dozens of times.

The Canadians

The key to understanding the events that led to Khadr’s capture and the allegations leveled against him is his father Ahmed, an Egyptian-born Canadian who became a devotee of a highly conservative interpretation of Islam. [2] Like other devout Muslims, in the 1980s Ahmed supported the Afghan mujahideen waging war against the Soviet-backed government, and he traveled frequently to the country to do relief work with widows and orphans. After the Soviets were ousted and a bloody civil conflict erupted, he continued to move between Canada to raise money in Muslim communities and Pakistan to work with charities that provided humanitarian aid to Afghan refugees. Although Omar and his siblings were born in Canada, they spent significant periods of their childhood living in Peshawar. Locals knew them as “the Canadians.”

In 1994, Ahmed, who had become a proponent of jihad, sent his two eldest sons, Abdullah, 13, and Abdurahman, 11, to the Khalden camp in Afghanistan so they could learn to fight. In 1995, he arranged a marriage for his eldest daughter, Zaynab, 15, to an Egyptian Islamist who, at the time, was suspected of involvement in a deadly embassy bombing in Cairo (and was later captured in Albania and rendered by the CIA to Egypt for trial). After the Taliban took control of most of Afghanistan and the al-Qaeda leadership relocated there from Sudan in 1996, Ahmed became an intimate of Osama bin Laden and Ayman Al-Zawahiri. He moved the Khadr family to Afghanistan and, for a period, they lived in bin Laden’s compound south of Jalalabad.

The Khadr family was living in Kabul on September 11. Following the US-led invasion and the fall of the capital, they fled to the border region of Pakistan, except Abdurahman, who got separated from the family and was captured by the US-backed Northern Alliance in November and handed over to the Americans.

In June 2002, Ahmed sent Omar back into Afghanistan with a Libyan al-Qaeda operative, Abu Laith al-Libi, to serve as a translator because he spoke both Arabic and Pashtu. That month, the Pentagon claims, he was given some “one-on-one” weapons training. On the day of his capture, Omar had accompanied three Arabs to translate at a meeting with Afghan militants. After two Afghan soldiers were shot dead when they entered the house, US forces launched an aerial bombardment that reduced the compound to rubble. When the four-hour battle ended, Omar was the only survivor, found when a US soldier stepped on a pile and realized that someone alive was buried underneath. Since that moment, he has been a prisoner of the US.

Ahmed was killed in October 2003 in Waziristan by Pakistani forces and his youngest son, Kareem, was severely injured. The surviving members of the Khadr family returned to Canada, except Abdullah, who was arrested and detained in Pakistan in 2004. Abdurahman and Abdullah joined the family after they were released from custody. (Abdullah was arrested in Canada in 2005 and the Obama administration is seeking to extradite him to stand trial in Boston on charges of supplying rockets and other weapons to al-Qaeda and conspiring to kill Americans abroad.)

The captured Omar was assumed to be a treasure trove of intelligence about al-Qaeda and Canadian “sleeper cells.” On October 7, 2002, for example, he was shown a photo of another Canadian citizen, Maher Arar, who at that time was detained at John F. Kennedy airport in New York before he was “extraordinarily rendered” by the US to Syria, where he was brutally tortured. Khadr told FBI interrogator Robert Fuller that he didn’t recognize the man in the photo but, when pressed, said that he might have seen Arar at an al-Qaeda training camp. (Arar, who has never been to Afghanistan, became a “person of interest” to the Royal Canadian Mounted Police on the October 2001 day he had lunch with another Syrian-Canadian engineer, Abdullah Almalki, who was under surveillance because he had worked briefly in Afghanistan in the early 1990s for a charity run by Ahmed Khadr.)

Khadr’s treatment in US custody was typical of the rampant abuse of prisoners. At Bagram, he was beaten, threatened with rape and snarling dogs, hung by his wrists for hours which exacerbated the pain of his injuries, hooded and soaked with water until he began to suffocate. His captors also shined bright lights into his eyes, which had been damaged by shrapnel. His main Bagram interrogator was later court-martialed in connection with the beating death of the Afghan taxi driver Dilawar (the subject of the Oscar-winning documentary, Taxi to the Dark Side). At Guantánamo, Khadr was again beaten and threatened with rape and dogs, had his hair pulled out, was subjected to protracted sleep deprivation under the “frequent flyer program,” and was doused with a pine-scented cleaner and used as a “human mop” on the floor where he urinated after being denied access to a toilet. He was sequestered in isolation for protracted periods, and force-fed after he joined the prisoners’ hunger strike.

Poster Child

The June 2004 Supreme Court decision in Rasul v. Bush paved the way for lawyers to gain access to Guantánamo prisoners. In August, the Center for Constitutional Rights assigned Khadr to American University law professors Rick Wilson and Muneer Ahmad because of their expertise in human rights law and juvenile detention. They met Khadr for the first time in November. Following that meeting, he was interrogated for four days with “extreme physical force” about what he had told his attorneys. At the November meeting and again the following April, Wilson and Ahmad administered psychological questionnaires to Khadr, which they showed to two doctors who assessed that he displayed full-blown symptoms of post-traumatic stress disorder. In the litigation Wilson and Ahmad pursued on Khadr’s behalf, O. K. v. Bush, District Court Judge John Bates ruled against motions seeking to force the government to provide them with his medical records and to bar further interrogations.

Khadr was one of the first ten Guantánamo prisoners to be selected for prosecution in the military commissions. He was charged with murder for allegedly throwing the grenade that killed a Special Forces sergeant, Christopher Speer. He was also charged with attempted murder because a video retrieved from the rubble shows Khadr, among a group of adults, handling something with protruding wires, alleged to be an improvised explosive device that might have been planted along Afghan roads to attack US and allied forces. And he is charged with conspiracy, providing material support for terrorism and spying. Despite Khadr’s youthfulness and, as the defense would argue, his lack of choice in the relations and activities that his father commanded, prosecutors have insisted that he “willfully” joined and conspired with al-Qaeda and that he is criminally culpable. The government’s case rests heavily on statements he gave to interrogators between 2002 and 2005.

In 2005, when Khadr’s charges were first referred -- the term describing the intent to prosecute -- US officials claimed that his would be one of the “easiest” cases to prove, suggesting that the process would be quick. The Bush administration was eager to demonstrate that the military commission system, which had been subject to withering criticism at home and abroad, was capable of producing convictions. Yet by the time Bush left office, the Khadr case had not gone to trial. Nor, because of pervasive antipathy toward the Khadr family in Canada, has his own government sought his repatriation from Guantánamo.

Khadr was arraigned for the first time in 2006. His legal team, which has undergone several transformations over the years, was originally composed of Wilson and Ahmad, who effectively left in the spring of 2007 for reasons eloquently explained in Ahmad’s article, “Resisting Guantánamo: Rights at the Brink of Dehumanization.” As Ahmad put it, “Why adopt a rights-based strategy in a rights-free zone?” The first military lawyer assigned to his case, Lt. Col. Colby Vokey, sought additional help and was joined and then succeeded by Lt. Cmdr. William Kuebler and Lt. Rebecca Snyder. Two Canadian lawyers hired by the Khadr family, Nathan Whitling and Dennis Edney, provide legal counsel but, as non-Americans, cannot defend him before the military commissions. In May 2008, the chief military defense lawyer removed Kuebler from the case, possibly in reprisal for his public criticisms of the commissions, but a judge later ordered him reinstated. In September 2008, Cmdr. Walter Ruiz and a civilian attorney working with the Office of Military Commissions, Defense (OMCD), Michel Paradis, were added to the team. The judge assigned to the case, Col. Patrick Parrish, rejected the defense motion that these commissions do not have jurisdiction over crimes of a child soldier, but in October 2008 he suspended the case until after the November elections.

When Barack Obama assumed the presidency, there was hopefulness among the rule-of-law-restoration crowd that the idea of prosecuting a child soldier for war crimes would be abandoned in favor of the internationally sanctioned route of rehabilitation, but the hope has long since died. On May 21, 2009, Obama reversed his own cancellation of the military commissions as fundamentally flawed, in October he signed into law the Military Commissions Act of 2009 and in November Attorney General Eric Holder announced that Khadr was one of five people designated by the administration for prosecution in the commissions.

The military commission system is an evolving mess, mired in the contradictions and novelties of invented laws, crimes and rules, and played for partisan political advantage in Washington. According to Katherine Newell Bierman, who worked at Human Rights Watch before joining the OMCD to provide expertise on counter-terrorism and torture, “American military lawyers come into this job with no experience working on behalf of people who have been tortured. It’s an added challenge defending people in this system because many of them are so damaged.” Khadr’s frustration and despondency was exacerbated by disagreements over defense strategies and infighting, and he fired his American lawyers in June 2009. One military lawyer who was not part of his legal team but provided assistance in drafting motions said, “Khadr is the poster child for this farce.” Because Khadr had to retain one military lawyer, he agreed to keep Kuebler, who was later replaced by Lt. Col. Jon Jackson. In October 2009, two Washington-based criminal attorneys, Barry Coburn and Kobie Flowers, were assigned to the case.

In April and May 2010, the Khadr case moved into the phase of pre-trial hearings on defense motions to challenge and suppress government evidence, including self-incriminating statements he gave to interrogators at Bagram and Guantánamo. Although the four-man prosecution team brought its own witnesses to refute the defense’s claims that Khadr had been tortured and coerced, among those who testified at those spring hearings were several interrogators, [3] jailers and medical providers who gave first-person accounts of how he had been threatened with prison gang rape by “big black guys and big Nazis,” beaten and put into stress positions, and denied adequate pain medicine for his injuries. Although the 2009 legislation prohibits the use of statements elicited through cruel, inhuman and degrading treatment, it falls on military judges to determine what those standards are and how they apply in specific cases. Jennifer Turner, the ACLU monitor who attended the April-May sessions, reported, “During the hearings, the prosecution objected constantly to questions the defense asked of interrogators, especially about standard operating procedures. The judge kept sustaining those prosecution objections. This is very relevant because Khadr doesn’t recall that period.”

The hearings also focused on the veracity of government’s evidence that it was Khadr who threw the grenade that killed Sgt. Speer. The military’s incident report, filed by a soldier identified only as “Lt. Col. W,” originally stated that someone who was subsequently killed hurled the explosive. Several years later, however, a line in the report was altered to state that the grenade was thrown by someone who was injured -- to implicate the only survivor, Khadr. The “revised” version was backdated to cover up the change in the original. In 2008, the defense obtained a copy of the original report, which the government never intended to provide, when it was inadvertently included in some discovery filings. “W,” who testified at the spring hearings by video link, claimed he had changed the report “for history’s sake” because he believed at the time that Khadr -- who he maintains threw the grenade -- had died. But the same reason “W” adduced for believing Khadr had died casts doubt on whether he could have thrown the grenade: Photographs taken after the firefight, moments after the grenade was thrown, show Khadr, shot and unconscious, buried face down in rubble.

Since at least April, prosecutors reportedly had been attempting to negotiate a plea bargain with Khadr and his lawyers. A deal would have spared the government not only the labor and expense of a trial but also the embarrassment of more damning testimony about Khadr’s torture and abuse, not to mention averting the ignominy of pursuing the first trial (anywhere in the world) of an adolescent for war crimes since the close of the Nuremberg tribunals. The negotiations collapsed in June and -- although it is not clear if there is a direct connection -- on July 7, Khadr fired his three American lawyers, Coburn, Flowers and Jackson. On July 12, instead of resuming pre-trial hearings on the suppression motions, there was a one-day session on the issue of legal representation. Minutes into the start of the hearing, Khadr stated that he intended to boycott the whole “sham process,” adding a new layer of uncertainty to the government’s plans for his trial.

Cynical Faith

Since the military commissions were established, only four cases have concluded. The first, against Australian citizen David Hicks, was resolved by a politically negotiated plea bargain agreement in 2007. To the ire of the prosecuting attorneys, Vice President Dick Cheney pushed through a light deal to accommodate conservative ally Prime Minister John Howard, who was running for reelection and needed to demonstrate to Australians that he was doing something to get Hicks out of Guantánamo.

Hicks, a convert to Islam, had been captured in Afghanistan in December 2001 by the Northern Alliance and sold to the US military for a $1,000 bounty. Accused of undergoing military training in al-Qaeda camps and allying with the Taliban, he was charged for the first time in 2004. His military lawyer, Maj. Dan Mori, waged a determined public relations campaign in Australia to build pressure for Hicks’ release, including a lecture tour and a march to the office of Foreign Minister Alexander Downer. Khadr’s lawyers, especially Kuebler, have tried the “Mori model” of public advocacy in Canada, but to far less avail.

Following the Supreme Court’s June 2006 ruling in Hamdan v. Rumsfeld that the presidentially created military commission system was unconstitutional, all charges against Hicks and others were canceled. But Congress resurrected the system with slight modifications. Revised charges were filed against Hicks in February 2007, and the following month he pled guilty to the newly codified catch-all of providing material support for terrorism. By April he was back in Australia to serve nine months of a suspended seven-year sentence. (Howard still lost the election.)   

The second person convicted -- the first by trial rather than a deal -- was Salim Hamdan. Like many poor Yemenis, Hamdan had gone to Afghanistan to find work, and he was employed as bin Laden’s driver (for $200 a month). He was captured by the Northern Alliance in November 2001, passed to US custody in December and transferred from Bagram to Guantánamo in early 2002. His case was one of the first five to be referred, not because he was accused of being a major terrorist but because he had agreed to plea bargain.

The military lawyer assigned to represent Hamdan, Lt. Cmdr. Charles Swift, was instructed that his role was to plead the case out. Instead, Swift joined forces with Georgetown law professor Neal Katyal, and Joe McMillan and Harry Schneider from the Seattle-based firm of Perkins Coie, to challenge the legality of the military commissions. As Swift said in a 2005 interview, “All men have rights, including the right to a trial -- a regular trial! The abuse of prisoners indicates that we don't think detainees are human.” That sentiment was seemingly vindicated by the 2006 Supreme Court decision in Hamdan, which followed years of litigation and losses in the federal system. The ruling, in addition to invalidating the commissions, also held that Common Article 3 of the Geneva Conventions -- which prohibits torture, cruel treatment and “outrages upon personal dignity” -- applies to “war on terror” prisoners in US custody, and that violations are punishable offenses under the federal War Crimes Act of 1996. But Congress negated the court’s landmark decision with the 2006 Military Commissions Act that also authorized retroactive immunity for grave breaches of the Geneva Conventions by US officials back to 1997.

On May 10, 2007, Hamdan was recharged with conspiracy and providing material support for terrorism. His attorneys tried again to fight the commissions, but the Supreme Court declined to hear challenges. Katyal (who now serves as Obama’s assistant solicitor general) was not part of Hamdan’s commission defense team, but Lt. Cmdr. Brian Mizer joined Swift, McMillan and Schneider. When Hamdan’s pre-trial hearings commenced on February 7, 2008, his lawyers moved to have the charges dismissed on the grounds that those activities were not crimes under military law at the time of Hamdan’s capture. That challenge, had it succeeded, would have negated the possibility of prosecuting anyone for material support and conspiracy in military commissions. The presiding judge, Capt. Keith Allred, also refused the defense request to interview Khalid Sheikh Muhammad, the self-proclaimed planner of the September 11 attacks, and six other “high-value detainees” who had been moved from CIA black sites to Guantánamo in September 2006 and who could corroborate Hamdan’s claims of innocence.

At the next round of pre-trial hearings in April 2008, the defense moved to have the case dismissed on the grounds of unlawful command influence, namely that the legal process was being directed and manipulated from above. Former chief prosecutor and one-time head cheerleader for the commissions Col. Morris Davis, who resigned in October 2007 to protest politicized interference, testified for the defense. (Five other prosecutors have also resigned in protest over the years.) On the stand, Davis reiterated his criticism that the government was willing to pursue cases on the basis of tortured and other unreliable forms of evidence, and that the commission’s top legal advisor, Gen. Thomas Hartmann, acting at the behest of Bush political appointees, pressured the prosecution about how cases should be handled. Judge Allred did find undue command influence and disqualified Hartmann from any further involvement in the case.

Hamdan, whose psychological condition had deteriorated precipitously, was so frustrated by the circumvention of his legal victory in the Supreme Court that he boycotted the pre-trial proceedings. In response to defense motions to suppress his self-incriminating statements, Judge Allred agreed to exclude those from Bagram but not Guantánamo, despite that at the latter his interrogation treatment included 50 days of sleep deprivation under “Operation Sandman.”

Hamdan’s trial began on July 21, 2008, and lasted two weeks. On August 6, the six-officer military jury pronounced its verdict. He was found guilty of providing material support for terrorism but was acquitted of the conspiracy charges. According to Swift, the prosecution strategy to make the case for conspiracy had backfired because when they showed a video of the attack and collapse of the Twin Towers, which Hamdan had never seen, he broke down in tears. The following day, the jury sentenced him to five and a half years and credited him for time served since he arrived at Guantánamo. Five months later, his sentence was up and he was repatriated to Yemen.

The fact that Hicks and Hamdan have been charged, sentenced and freed has persuaded some lawyers who represent Guantánamo prisoners that the military commission system, although indisputably flawed, is functionally preferable to the alternatives: indefinite detention without charges (a designation that 48 have been assigned by the Obama administration), or trial in federal courts which, according to one military defense lawyer, “are great for pre-trial and habeas but at the trial stage are not a defendant-friendly ballgame -- they are a meat grinder for prosecutions.” Such client-centered “cynical faith” in the military commissions might be explained by the presumption, borne out in Hamdan’s case, that military jurors will not be persuaded that material support for terrorism merits a harsh sentence. The right-wing argument that military commissions are inherently “tougher” on terror suspects is contradicted by comparison of the Hicks case to the case against US citizen John Walker Lindh, who was charged with similar offenses and sentenced to 20 years by a federal court. Some lawyers even harbor the hope that a future military jury will balk the commissions’ core contention -- widely regarded as bogus by international and military law experts -- that terrorism crimes are violations of the laws of war and subject to military trial, and register their opposition by acquitting the accused.

Many military law experts regard the post-September 11 legal edifice as flimsy for three reasons. First, the government reinterpreted the laws of war in order to treat the status of an “enemy unprivileged combatant” -- that is, an enemy of the US who is not a member of a regular army and thus is “unprivileged” to fight -- as the determinant factor in prosecuting the person for war crimes. Second, the offenses included in the war crimes category (if perpetrated by America’s Islamist enemies), such as conspiracy, providing material support and solicitation of murder, are not actually violations of the laws of war. They are violations of other kinds of laws. Third, military courts, tribunals and commissions should only prosecute war crimes, whereas non-war crime offenses should be prosecuted in civilian courts, either in the country where the crime occurred or, possibly, in the country of the victims. In the case against Khadr, for example, if the allegation that he killed Sgt. Speer were true, he could be prosecuted for murder in Afghanistan, but killing a uniformed soldier, even if the killing is done by someone who is “unprivileged” to kill in war, is not a war crime because a uniformed soldier is not a “protected person” under military law. If these refashioned law of war violations were regarded and treated as universally applicable, by the same measure that Khadr’s “unprivileged” status makes him subject to the war crimes charge of murder, CIA agents, who are non-military and thus unprivileged combatants, could be charged with the war crime of murder for operating Predator drones.

Boycott

The third conviction, and the last during the Bush years, is instructive in different ways because the outcome was the harshest possible sentence for a non-capital case. Ali Hamza al-Bahlul, another Yemeni, went to Afghanistan in 1999 to join the Taliban in their fight against the Northern Alliance. He received military training, became a propagandist for al-Qaeda and made a two-hour recruitment video glorifying jihad and attacks on US targets. Al-Bahlul, who has maintained unrepentant support for al-Qaeda, insisted from the time he was first charged in 2004 that he wanted to represent himself and would not accept the services of any American lawyer. Under the commission rules in 2005, his military lawyer, Maj. Tom Fleener, was obligated to represent him despite his opposition. As Fleener told a GQ interviewer in 2007, “The concept of compelled representation has always bothered the crap out of me. You just don’t force lawyers on people. You don’t represent someone against his will. It’s never, ever, ever done.”

Al-Bahlul was charged with conspiracy, solicitation of murder and providing material support for terrorism. When Fleener returned to civilian life in 2008, Maj. David Frakt was assigned to his case. The 2006 Military Commissions Act incorporated the right of a defendant to represent himself, and the presiding judge of the commissions, Col. Peter Brownback, granted al-Bahlul’s request to go pro se. But Brownback, who was also presiding over the Khadr case, was abruptly removed in May 2008 and involuntarily retired from the Army. Kuebler speculated that Brownback was fired for complaining about being “badgered and beaten and bruised” by the prosecution to set a trial date for Khadr before the November 2008 election. The new judge, Col. Ronald Gregory, revoked Brownback’s decision that he could defend himself.

Al-Bahlul refused to accept Frakt’s representation. When the trial began, he wanted guards to carry him into the courtroom as a demonstration that he was there against his will, but that request was denied. Instead, he held up a handmade sign that read “boycott” to make the point. Judge Gregory refused Frakt’s request to be released, but said he could not force a lawyer to mount a defense against his client’s wishes. Frakt declared, “I will be joining Mr. al-Bahlul’s boycott of the proceedings, standing mute at the table.” And so it went: No questions were answered, no testimony was provided, no cross-examination was pursued and the prosecution’s case went unchallenged. The military jury convicted al-Bahlul and sentenced him to life in prison. Both the al-Bahlul and Hamdan convictions by trial are undergoing automatic appeal in the Court of Military Commissions Review.

The fourth and last conviction -- the first under Obama -- is that of Sudanese citizen Ibrahim al-Qosi. In the early 1990s, al-Qosi worked as an accountant for a company in Khartoum owned by bin Laden, and in 1996 he moved with his family to Afghanistan and worked as bin Laden’s cook. When he was charged in 2004, Lt. Col. Sharon Shaffer was assigned to represent him. In 2005, Shaffer characterized his interrogations as “possibly torture but certainly inhumane treatment” because he was held in stress positions for protracted periods, exposed to snarling dogs and sexually humiliated. She said, “As a member of the US military, it’s scary…to talk to my client about what he has been through because I worry about what will happen to our people when they are captured. We are supposed to be defenders of the rule of law!”

Shaffer’s defense strategy was to challenge everything, including government plans to reinterrogate her client after he had been charged. She also sought to depose top officials, including former President Bill Clinton because al-Qosi’s conspiracy charge alleged conduct dating to 1996, but this motion was denied because the commissions had no rules on depositions. Her allegation of prosecutorial misconduct arising from the disappearance of videotapes of interrogations, including al-Qosi’s, was a factor in the resignation of several military prosecutors who refused to participate in what she termed a “travesty of justice.”

Al-Qosi was recharged on February 9, 2008, and was assigned a new military lawyer, Cmdr. Suzanne Lachelier. She has described his case as “Hamdan lite.” Because al-Qosi refused to deal with her or any American lawyer, she arranged for Abdullahi An-Na‘im, a Sudanese-American who teaches law at Emory University, to meet with him at Guantánamo in August 2008 in order to persuade him to cooperate in his defense. The Sudanese Bar Association sent Ahmad al-Mufti, head of the government-run Sudan Human Rights Commission, to provide counsel and attend his commission hearings.

At a December 2009 hearing, the government announced that it intended to add new charges alleging that al-Qosi’s conspiracy with al-Qaeda dated back to 1992, but the judge refused to grant that request. At a hearing on July 7, 2010, he pled guilty to conspiracy and providing material support for terrorism. Citing two anonymous sources who have read the plea agreement, the satellite news channel Al Arabiya reported that he had agreed to serve two more years. If this deal is confirmed at the sentencing hearing on August 9, he will be out of Guantánamo before the next presidential election.

“The Rules Are Always Changing”

After Khadr fired his American lawyers on July 7, Judge Parrish canceled the pre-trial hearings scheduled to begin the following week that would have featured psychiatrists testifying for the defense and the prosecution about whether Khadr’s statements to interrogators at Bagram and Guantánamo should be excluded because coercion, abuse and his youth make anything he said unreliable. Instead, the court convened on July 12 to consider the issue of legal representation. Khadr, dressed in a loose-fitting white tunic and pants, was brought into the courtroom by a contingent of guards and seated at the defense table beside his Canadian lawyer, Edney. On the other side of Edney sat his fired military lawyer, Jackson.

Judge Parrish began by asking Khadr to confirm that he had in fact fired his civilian attorneys Coburn and Flowers, and that no one had forced or pressured him to do so. Then he asked, “How do you plan to proceed?” Khadr replied, “I plan to boycott the process. I have my reasons.” He explained those reasons by reading to the court a handwritten statement later distributed to journalists:

Your Honor, I’m boycotting this military commission because: firstly, the unfairness and injustice of it. I say this because not one of the lawyers I’ve had, or human rights organizations or any person ever say that this commission is fair or looking for justice, but on the contrary they say it’s unfair and unjust and that it has been constructed to convict detainees not to find the truth (so how can I ask for justice from a process that does not have it or offer it) and to accomplish political and public goal. And what I mean is when I was offered a plea bargain it was up to 30 years which I was going to spend only five years so I asked why the 30 years. I was told it make the US government look good in the public eyes and other political causes. Secondly: The unfairness of the rules that will make a person so depressed that he will admit to alligations [sic] made upon him or take a plea offer that will satisfy the US government and get him the least sentence possible and legitimize this sham process. Therefore I will not willingly let the US gov use me to fulfill its goal. I have been used many times when I was a child and that’s why I’m here taking blame and paying for things I didn’t have a chance in doing but was told to do by elders. Lastly I will not take any plea offer because it will give excuse for the gov[ernment] for torturing and abusing me when I was a child.

Perhaps Judge Parrish did not understand Khadr’s statement, because he asked, “Will you represent yourself? I’m not going to release Jackson if you choose not to represent yourself.” Khadr reiterated that he did not want any lawyer to represent him. Assuming Khadr meant that he wanted to represent himself, the judge asked, “Have you ever studied the law?” Khadr replied, “This is a military commission. You don’t need to study the law.” Judge Parrish: “What is your education?” Khadr: “Five years in the military commissions.”

As if the judge knew nothing about Khadr’s background or was working off a script, he asked, “Have you ever represented yourself or anyone else in this type of proceeding? Are you familiar with the rules of evidence?” Khadr responded, “The rules are always changing, so knowing the rules doesn’t really matter.” Parrish: “Are you familiar with the rules of the military commissions?” Khadr answered, “In general. My lawyers are as untrained as I am. No one has any experience in these military commissions.” Indeed, the new rules implementing the 2009 Act had materialized late in the afternoon of April 26, the first day of Khadr’s pre-trial hearing. [4]

Adopting a paternal tone, Parrish advised that effective legal representation must be objective and that “representing yourself is never a good idea.” Khadr was resolute. Parrish: “So are you saying that in this process legal training makes no difference?” Khadr: “Yes.”

The judge asked if there were any responses or questions from the prosecution. At the table sat the chief military prosecutor for the commissions, Capt. John Murphy; the lead prosecutor, Jeff Groharing, who had been on the Khadr case since the beginning and opted to continue even after he had returned to civilian life; and Capts. Chris Eason and Michael Grant. Groharing urged the judge to inquire about Khadr’s “possible physical and psychological ailments” and to ask questions “to clarify what about the system the accused thinks is unfair.” Groharing also reminded the judge that if Khadr were to be granted the right to pro se representation and it is “incompetent,” he would not be permitted to raise the issue on appeal. Judge Parrish duly asked Khadr, “Do you have any mental or physical issues that would prevent you from making these decisions?” Khadr: “This place is not a five-star hotel, so I’m sure it’s going to have an effect on me. I don’t know.”  

Jackson, who had sat silently, interjected a point for the judge’s consideration. Citing Edwards v. Indiana and referencing the fact that Khadr had said he did not know if he is suffering any psychological illness, Jackson urged serious consideration of the issue of competency. Parrish said that the defense’s psychologist, Katherine Porterfield, had assessed Khadr as competent to stand trial. Jackson retorted that competency to stand trial and competency to represent oneself are different standards. Groharing, after repeating the point that Porterfield had found him competent to stand trial, asked the judge to inquire further about PTSD and stated that the two evaluators hired by the government, Alan Hopewell and Michael Welner, had drawn different conclusions about Khadr’s mental state than the defense experts, Porterfield and Stephen Xenakis. (These evaluations are not publicly available because they have not yet been entered into evidence.)

In an effort to project an aura of impartiality about motions as yet undecided, Parrish tiptoed around the issue of torture that might have caused Khadr to be suffering PTSD. “After you were captured, you’ve been through a number of things, and this might affect your mental state.” He asked whether Khadr would want him to consider the reports by the defense experts. Khadr, after Edney whispered in his ear, responded that if the judge was going to consider the reports by the government-hired experts then, yes, he should consider those of the defense, too. Soon, the judge called a recess in order to deliberate on the issue of representation.

When the court reconvened, Parrish seemed uncertain how to navigate this confounding relationship between a defendant’s rights and the inevitable public relations disaster that would result from prosecuting an unrepresented child soldier for war crimes. The prospect that the Khadr trial might follow the al-Bahlul model, in which another boycotting defendant and his military lawyer sat mute, could not have been a heartening thought for the judge (or the prosecution). Hoping to persuade Khadr to rethink his position, Parrish tried pointing out some of the disadvantages, such as: “If I allow you to represent yourself, you won’t have access to material that’s classified.” Khadr: “I’m boycotting.” Then Parrish tried praising the zealous dedication of the lawyers who have worked on Khadr’s case over the years. Khadr: “I’m boycotting and I don’t want any attorneys.” Parrish asked, “Is part of the boycott that you will represent yourself and not talk?” Khadr: “I don’t know.” Parrish: “If you show up, does that mean you are still boycotting?” Khadr: “I don’t understand. I’m boycotting this whole thing. What’s the point of representing myself?” Judge Parrish: “So you do not want to represent yourself?” Khadr: “I don’t see the point. I don’t want to represent myself, and I don’t want anyone to represent me. If I was in a formal court, I wouldn’t be doing this. But because I’m in this court, I am forced to do this.” Judge Parrish: “Then I am not releasing Jackson. He will remain your detailed counsel.” Khadr: “You are forcing him on me. I don’t want him to represent me.”

Parrish seemed satisfied that the representation issue had been resolved. Flipping through the court calendar, he mused that if the defense wanted to continue hearings on suppression motions, they could resume on August 10. That would mean, he continued, that the trial could start in October. That scenario disturbed the prosecutors. Groharing asked whether the defense would indeed want to hold additional pre-trial hearings, because if the answer was no, they could go straight to trial in August. And with that, the representation conundrum returned. Who was empowered to make that decision? Khadr offered his preference: “I want this to finish as soon as possible. I’m not calling any witnesses.” Was that the final word from the defense? Judge Parrish asked Jackson, who had barely spoken to Khadr and had no idea what his own role would be. He said, “I don’t know if the client would talk to me, but I’m willing to talk to him.” The judge called another recess.

At the start of the third and last session, Jackson said that before taking any position on how to proceed or making any scheduling commitments, he would have to consult with Khadr and with “my licensing authority in Arkansas and the professional licensing branch of the Army.” By this point, the prosecutors were apoplectic about the prospect of more delays. Groharing, rifling through the commissions rule book, said that “the obligation is to proceed unless there is a decision that this would pose an ethical problem,” continuing testily that Jackson could have made these ethics inquiries weeks ago since Khadr’s firing of his lawyers was hardly a surprise. Jackson replied that he had no idea until that day that he would be detailed to represent a client whose intent was to boycott since he had not been privy to Khadr’s statement before it was read in court.

The prosecutors huddled with the rulebook for several minutes, trying to figure out how to persuade the judge to push forward to trial. Groharing finally stood up to say that “the rules applicable to the military commissions would be paramount over any other licensing authorities.” He seasoned the point by stating that any further delay “would create a significant disadvantage for the government.” Then he added, “This is the latest of many instances when the accused has attempted to manipulate this process. He’s making a mockery of the military commissions.” Parrish was unmoved by Groharing’s complaints. “I am not going to allow an unrepresented accused in here,” he said. “That is not gong to happen.” The hearing ended with Parrish asking Jackson to report by August 2 about what he had heard from his licensing authorities.

Postscript, Prologue

On July 17, the Miami Herald’s Carol Rosenberg reported that Jackson had received the ethics opinion he was seeking. “I am ethically required to continue representing Mr. Khadr at this time. Therefore, I intend to provide him with a zealous defense.” Echoing a sentiment common among military defense lawyers, Jackson also told Rosenberg, “I never envisioned a scenario in my career as an Army lawyer that would require me to defend a child soldier against war crimes charges levied by the United States. I always believed we were better than that.” Khadr, according to his Canadian lawyers, has agreed to accept Jackson’s defense. On August 10, the court will reconvene to continue pre-trial hearings on suppression motions.

After the hearing on July 12, Capt. David Iglesias, who recently joined the Office of the Military Commission, Prosecution, and serves as its official spokesperson, came to the media center to speak to journalists. Iglesias became a national figure in 2006 as the most visible of the seven US attorneys fired by Attorney General Alberto Gonzales for refusing to pursue voter fraud cases against Democrats after they concluded that the allegations emanating from the White House were politically motivated and baseless. Asked whether the prosecution was worried about political fallout from Khadr’s trial, Iglesias replied, “Perfect cases don’t go to trial.” Asked what he thought of the quality of the government’s case against Khadr, he pled ignorance of the details but added, “We will go forward no matter what.” What did he have to say about the novelty of prosecuting a child soldier on charges that are so widely regarded as specious? “A conviction is a conviction, whether it’s for a historical war crime or a more recently added war crime.”

Endnotes

[1] See Andy Worthington, “Guantánamo: The Definitive List,” July 12, 2010, available at: http://www.andyworthington.co.uk/2010/07/12/guantanamo-the-definitive-pr.... See also Nick Baumann, “Obama’s GITMO by the Numbers: A Graphic Look at What Happened to 779 Detainees,” Mother Jones, July 16, 2010.
[2] For an authoritative and fascinating account of the Khadr family, see Michelle Shephard, Guantanamo’s Child: The Untold Story of Omar Khadr (Wiley, 2008).
[3] Although the names of the three testifying interrogators are public knowledge, at the hearings they were referred to by pseudonyms and their true identities were deemed classified by the Pentagon. Four reporters (Carol Rosenberg of the Miami Herald, Michelle Shephard of the Toronto Star, Paul Koring of the Canadian Globe and Mail and Steven Edwards of Canwest) were subsequently banned from Guantánamo for publishing the name of Khadr’s main Bagram interrogator. Rosenberg was “unbanned” prior to the July hearing, but the other three were not.
[4] See David Frakt, “New Manual for Military Commissions Disregards the Commander-in-Chief, Congressional Intent and the Laws of War,” Huffington Post, April 29, 2010.

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