From the moment that the Toronto Star unleashed a gruesome, and previously unpublished photo of the chest wounds sustained by 15-year old Omar Khadr, after a firefight in Afghanistan in July 2002, it was clear that the resumption of Khadr's pre-trial hearing at Guantánamo last week would once more raise murky issues of torture and untrustworthy intelligence that the administration -- desperate to secure a "clean" conviction in its much-reviled Military Commission process -- hoped would remain buried.
The photo preceded excerpts from Star reporter Michelle Shephard's long-awaited biography of Omar Khadr, Guantánamo's Child, which does the most thorough job to date of humanizing the second youngest son of the generally unsympathetic Khadr family, whose late patriarch, Ahmed Khadr, was close to Osama bin Laden.
While serving as a terrifying trailer for the book, however, the photo's publication also heightened tensions that had surfaced in pre-trial hearings in November, when, after five years of claims, on the administration's part, that Khadr had been the last enemy soldier alive after the firefight, and had therefore thrown the grenade that killed a US soldier, it was revealed that the grenade could, in fact, have been thrown by one of his companions, who was alive at the time, but whose survival at that point had not previously been disclosed.
Omar Khadr and the fog of war
The day before Khadr's pre-trial hearings resumed last Friday, his tenacious military defense lawyer, Lt. Cmdr. William Kuebler, duly raised these issues, telling journalists that the report of the circumstances that led to Khadr's capture, written by an officer identified only as "Lt. Col. W.," had been altered after the event to implicate the Canadian teenager. As Lt. Cmdr. Kuebler described it, the report initially said that the assailant who threw the grenade had been killed, but was then revised, about two months later, to say that the grenade thrower had been "engaged" (a change that clearly implicated Khadr). "We now know that story was false," Lt. Cmdr. Kuebler told the reporters, adding, "It's consistent with the proposition that the government manufactured evidence to make it look like Omar was guilty."
On Friday, Lt. Cmdr. Kuebler asked the judge, Col. Peter Brownback, to allow the defense team to question "Lt. Col. W." Col. Brownback not only agreed to this request; he also ordered prosecutors to give Khadr's lawyers a list of all US personnel who had interrogated Khadr in Afghanistan and Guantánamo, and to provide them with access to their notes, postponed the trial's start date (scheduled for May 5) to allow more time for discussions of acceptable evidence, and rebuffed the government-appointed prosecutors, who claimed, as the Miami Herald described it, "that they had already searched available records and interviewed potential witnesses, and had found nothing more to provide in the discovery phase to defense lawyers." As the Herald report continued, "Brownback was not persuaded," and "sent prosecutors back to search US State Department communications with Canada, battlefield dispatches and messages around the time of the 2002 firefight and other records." "We can't try the case until we get the discovery done," Col. Brownback insisted. "So if I have to come down here every week, I'll do it, what the heck."
Khadr alleges torture
Capping another difficult week in the administration's attempts to prosecute Khadr, his lawyers released an eight-page affidavit, in which Khadr himself described his treatment at the hands of both the Americans -- in Afghanistan and at Guantánamo -- and the Canadian agents who also visited him at Guantánamo. Partly redacted by US censors, the document nevertheless reveals extensive allegations of abuse that, in some cases, seem to amount to torture.
In addition to Khadr's previously documented claims that he was threatened with rape and was used as a human mop at Guantánamo to wipe up his own urine after he had been held for hours in a stress position and had soiled himself, he reported that he "told a Canadian delegation in 2003 that the Americans 'would torture' him -- so he told them whatever they wanted' to hear, but that "The Canadians called me a liar, and I began to sob. They screamed at me and told me they could not do anything for me." In other sections, he described how, after he embarked on a hunger strike at Guantánamo, "Guards would grab me by pressure points behind my ears, under the jaw and on my neck. On a scale of one to 10, I would say the pain was an 11."
Khadr also described abuse that took place in the days after his capture, in particular at the hands of a Hispanic MP, who "would often [redacted]. He would tell nurses not to [redacted] since he said that I had killed an American soldier. He would also [redacted] me quite often." He also reported that something was done to his eyes -- "Sometimes they would [redacted] particularly since both my eyes were badly injured" -- and described being kneed "repeatedly in the thighs," a brutal technique, known as the common peroneal strike, whose overuse in Bagram led to the murder of two prisoners, Mullah Habibullah, and a taxi driver named Dilawar, in December 2002.
This comment adds to the suspicion that Khadr was the victim of torture in Bagram, as it was also revealed last week that one of his interrogators was Sgt. Joshua Claus, who was later charged, along with 14 others, of various crimes, including assault and "maltreatment of a detainee" in connection with the murder of the two men, and was sentenced to five months in jail in 2006.
Omar Khadr was not the only defendant last week to raise the spectre of torture to haunt the Military Commissions. On Wednesday, Mohamed Jawad, an Afghan who, according to his own account, was only 16 when he was seized after allegedly throwing a grenade that wounded two US soldiers and an Afghan interpreter, said, as Carol Williams described it in the Los Angeles Times, "that he had been tortured while in US custody at Bagram Air Base in Afghanistan after his arrest, and that he had been mistreated in Guantánamo as well." "The American government said the Taliban has been very cruel in Afghanistan, that they killed people without any trial and imprisoned people without trial," Jawad told the judge, Col. Ralph Kohlmann. "When I was in detention at Bagram, Americans killed three people. They beat people and arrested us without trial. We're not given any rights."
This was a departure in some ways. As I reported in a detailed article when he was first charged last October, Jawad had not alleged that he had been tortured by US forces during his tribunal and his military reviews at Guantánamo, which were convened, in the first instance, to assess whether he had been correctly designated as an "enemy combatant" when he was captured, and subsequently to assess whether he still constituted a threat to the US or its interests. He had, however, claimed that a false confession had been forced out of him by the Afghan police who first captured him. "[T]hey tortured me," he said in 2005. "They beat me. They beat me a lot. One person told me, 'If you don't confess, they are going to kill you'. So, I told them anything they wanted to hear."
Although he explicitly stated in his review, "I have never seen or endured any torture in Bagram or here in Cuba by the Americans," it's possible that he had previously failed to mention being tortured by US forces because he had concluded that it was wiser not to raise the topic in front of the US military officers who appeared to offer him a chance -- however slim -- of escaping from Guantánamo for good. It certainly seems unlikely that Jawad was not subjected to abuse while at Bagram, as the period that he was there -- from mid-December 2002, two months after Omar Khadr left for Guantánamo -- is during that same period, from summer 2002 until sometime in 2003, at the earliest, that the prison was the venue for particularly savage and routine violence that led to the murders mentioned above, and, it should be noted, to an apparent third homicide mentioned not only by Mohamed Jawad, but also by the released British prisoners Moazzam Begg, Richard Belmar and Jamal Kiyemba, as I discuss in my book The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison.
This alone would make his trial problematical, but Jawad himself raised further hurdles to what the Pentagon clearly hoped would be a straightforward process by declaring the proceedings illegal and refusing to accept representation by his military lawyer, Col. Mike Sawyers. Apparently dragged from his cell to attend the hearing, and wearing the infamous orange garb that, for many years, has been reserved for those ruled "non-compliant," he told Col. Kohlmann, "My right has not been given to me. I have not violated any international law. There are many accusations against me ... they don't make any sense ... I am a human being." He added, as Steven Edwards described it for the Canwest News Service, that he "continued to be treated unjustly and interrogated, and that he wanted the 'whole world' to know it."
Despite being spurned by his client, Col. Sawyers was vigorous in his defense outside the courtroom, explaining to reporters that western concepts of justice were "completely foreign" to Jawad, and making a statement on his behalf that also resonates with the case of Omar Khadr. "I believe this is the direct result of taking a 16- or 17-year-old boy and putting him in confinement ... with no contact with the outside world," Col. Sawyers said. "He has been in a three-by-seven-(foot) cell ... I do not believe he understands the proceedings ... I don't know if I were given ten years I could explain it to him."
With Jawad's refusal to engage with the Commissions (asked to enter a plea, he had, by that point, "slumped onto the defense table and refused to respond to Kohlmann's questions") and with Col. Sawyers' active duty about to run out, the case is unlikely to resume in the near future. As Col. Steve David, the Commissions' chief defense lawyer, explained, he will not be able to assign Jawad a new lawyer for some time, because, unlike the prosecution, which has a full roster of 30 lawyers, he has only nine lawyers on duty, who are already struggling to cope with their caseload.
The last of the cases considered last week -- that of Ahmed Mohammed al-Darbi, a 33-year old Saudi -- also failed to advance the process. The brother-in-law of one of the 9/11 hijackers, al-Darbi, described as "polite and responsive" during his arraignment, also refused to enter a plea, and was undecided about whether or not to accept the services of his military lawyer. The administration can, perhaps, count itself lucky that al-Darbi did not wish to speak out, although this is probably only a matter of putting off the inevitable.
Seized in Azerbaijan, al-Darbi was rendered to Afghanistan, and also ended up in Bagram, where, he later alleged, an interrogator named Damien Corsetti, known as "Monster" or "The King of Torture," abused prisoners by poking them in the face with his naked penis and threatening them with sexual assault. Corsetti was later charged with dereliction of duty, maltreatment, assault and performing an indecent act with another person, but although he was cleared of all the charges in June 2006, al-Darbi's presence at Bagram during the period that both Omar Khadr and Mohamed Jawad were there suggests that the well-chronicled torture at the prison during that period -- which Corsetti discussed, with refreshing frankness, in a recent interview -- will also surface in his trial.
If, as Carol Williams suggested, Mohamed Jawad's case had been pushed forward before those of the six men (including Khalid Sheikh Mohammed) who were charged last month in connection with the 9/11 attacks, because the process of finding lawyers for those men has only just begun, and because Jawad's case -- and, by extension, that of Ahmed al-Darbi -- were presumed to be easier to win, last weeks' events have served only to rock the Commissions' legitimacy once more, highlighting allegations of torture in Bagram as a counter-point to the well-chronicled torture of those charged in connection with 9/11 in secret prisons run by the CIA (in five of the cases) and in Guantánamo in the case of the sixth, Mohammed al-Qahtani.
Ibrahim al-Qosi and Ali Hamza al-Bahlul
Nor, it seems, is it likely that torture will be sidestepped in the cases of the other prisoners awaiting arraignment. The Sudanese prisoner Ibrahim al-Qosi and the Yemeni Ali Hamza al-Bahlul (both charged last month for their alleged connections with al-Qaeda) are well-known to those who have been following the Commissions since they first spluttered into life in the summer of 2003. Both were previously charged in the first round of the trials, which were struck down as illegal by the Supreme Court in June 2006, without either man having had the opportunity to discuss the details of their treatment, but in a hearing in 2004 al-Bahlul's military defense lawyer, Maj. Tom Fleener, told the judge, Col. Peter Brownback, "I believe Mr. al-Bahlul was tortured," adding that it was "going to be an issue" in any trial faced by his client. Similar territory was covered by Lt. Col. Sharon Shaffer, who was assigned to represent al-Qosi. According to a report in the Nation in December 2005, she "characterized his treatment as possibly torture but certainly inhumane treatment; he was held in stress positions for protracted periods, subjected to military dogs and sexually humiliated."
If there is a "clean" case that can be presented to the Commissions without ensnaring the administration in ever more lengthy and damaging allegations relating to the use of torture by US forces, it has yet to be found. Just possibly, however, the Pentagon's announcement, during the fallout from Mohamed Jawad's boycott of his arraignment, that another Afghan --Mohammed Kamin -- would also face a trial by Military Commission was intended to fulfil the administration's elusive dream: the successful prosecution of a prisoner who will not claim that he was tortured.
On the surface, Mohammed Kamin fulfils this criterion, although he also seems, like many before him, to be an unworthy candidate for any kind of war crimes trial at all. In his charge sheet (PDF), he is accused of "providing material support for terrorism"; specifically by receiving training at "an al-Qaeda training camp," conducting surveillance on US and coalition military bases and activities, planting two mines under a bridge, and launching missiles at the city of Khost while it was occupied by US and coalition forces. He is not charged with harming, let along killing US forces, and were it not for his supposed al-Qaeda connection -- he apparently stated in interrogation that he was "recruited by an al-Qaeda cell leader" -- it would, I think, be impossible to make the case that he was involved in "terrorism" at all. As it is, I'm prepared to state that his case seems to me to demonstrate how hopelessly blurred the distinctions between military resistance (aka insurgency) and terrorism have become, so that anyone caught fighting US occupation is not engaged in a war (with its own well-established laws) but is automatically part of a global terrorist movement.
In a courtroom, of course, it may well emerge that, like all the others mentioned above, Mohammed Kamin will reveal -- or at least allege -- that he too was tortured, adding to the increasing suspicion that there is no corner of the post-9/11 prison system that is beyond the cold hand of the torturer, whose actions were sanctioned at the highest levels of the government. In the full glare of the world's media, the Military Commissions continue to expose the very torture and abuse that the administration has strived so hard to conceal, and I cannot see how they can ever result in a prosecution that will be recognized as valid. As the Bush administration counts down its last months in office, the only solution, it seems to me, is to maintain the pressure on the next administration to move the trials to federal courts on the US mainland.