On trial, 'child soldier' who grew up in Guantanamo Bay
Robert Verkaik witnesses Guantanamo's legal process in action
Published 11/08/2010 | 02:06
Omar Khadr was just 15 when he was captured by US forces on the battlefields of Afghanistan in July 2002.
He has matured from a vulnerable adolescent to a grown man while serving a third of his life at the US naval base in Cuba, in conditions which have been universally condemned by the outside world.
On Monday Mr Khadr, a Canadian citizen, was taken from his cell at Guantanamo's Camp 4 and driven across the peninsula to a converted Second World War control tower which is being used for his trial – the first Guantanamo trial under President Barack Obama.
The case is being seen as a test of Mr Obama's commitment to ending the injustices and abuses carried out in the name of America's "war on terror".
But the very fact that the discredited military commissions are still in business is prima facie evidence that Mr Obama lacks the political will to honour his post- election human rights pledge. Escorted by US navy guards, Mr Khadr was taken past the barbed wire fences and watch towers of Camp Justice.
Shortly after 9am local time he emerged, arm-in-arm with two soldiers, from a side door of the court chamber. The steel chain fixtures poking through the red carpet were the only physical clue that this was not an ordinary American civil courtroom.
Mr Khadr, unshackled, and wearing a baggy white T-shirt and billowing white trousers, lumbered down the far side of the court until he was placed in his seat by three guards, next to his family lawyer, the Scottish-Canadian barrister Dennis Edney, and two seats down from his military commission- appointed advocate, Lieutenant-Colonel Jon Jackson.
Mr Khadr's white US-issue uniform conferred a status of "highly compliant" detainee. He sat quietly crouched over his paperwork carefully following all the arguments and developments in the case. Guards were posted throughout the courtroom, including the spectators' gallery.
Lt-Col Jackson told the court that, eight years ago, shortly after his capture in Afghanistan, it was men in American uniforms who tortured a confession out of Mr Khadr.
Mr Khadr alleges that he was hung up on a door frame, threatened with rape, urinated on and used by one soldier as a human mop to clean the floor. Yesterday Lt-Col Jackson told the judge, Colonel Pat Parish, that any confession Mr Khadr may have made cannot be relied upon.
At a press conference before the start of the trial, Lt-Col Jackson said the whole process was tainted with unfairness. "When Barak Obama became President we thought he was going to close the book on Guantanamo... but President Obama has decided to write the next sad, pathetic chapter of the military commissions," he told a group of journalists gathered in a former Guantanamo airfield hanger.
This view is supported by the US government's decision to press ahead with a second "war on terror" case.
A few hundred yards from the Khadr courtroom, another military commission was hearing the case against Ahmed Mahmoud al-Qosi, a Sudanese detainee who pleaded guilty last month to one count each of conspiracy and providing material support for terrorism.
Qosi, who appeared unshackled in the courtroom built to try the 9/11 architect Khalid Sheikh Mohammed, was accused of acting as accountant, paymaster, supply chief and cook for al-Qai'da during the 1990s, when the terror network was centred in Sudan and Afghanistan. He allegedly worked later as a bodyguard for Osama bin Laden.
The 50-year-old from Sudan faced a potential life sentence if convicted at trial. Terms of the plea deal, including any limits on his sentence, have not been disclosed. The judge ruled yesterday that any sentence will be served in the more relaxed communal environment of Camp 4.
But it is the case of the child soldier Omar Khadr that has grabbed the attention of the world. He is youngest detainee in Guantanamo Bay, where he is charged with terrorist acts for al-Qai'da and the killing of a US Special Forces soldier.
If he is convicted he will be only the fifth of nearly 800 suspects held at the infamous detention centre to be successfully prosecuted under the controversial US military commission system begun under former president George Bush six years ago.
Mr Khadr, now 23, is accused of throwing a grenade that killed the US army Sergeant Christopher Speer of Albuquerque, New Mexico, during a 2002 firefight in Afghanistan. He faces a maximum life sentence if convicted of charges including murder and terrorist conspiracy.
Navy Captain David Iglesias, a former federal prosecutor and also part of the Navy's Judge Advocate General's Corps, told journalists that, if Mr Khadr is convicted of serious charges, "the government will ask for [a] life" term in prison.
But the Canadian's lawyers deny that he threw the grenade and argue that Mr Khadr should be treated as a victim rather than a combatant, as all child soldiers from the numerous conflicts in Africa are treated under international law today. Mr Khadr was badly injured after his capture, sustaining bullet wounds in his back and further injuries from an exploding grenade.
And it was while he was still fully recovering from his wounds at the Bagram Airbase in Afghanistan that he claims he was subjected to torture.
Mr Jackson told the judge yesterday: "Without question Omar Khadr was subjected to cruel, inhumane and degrading treatment... By the time he left Bagram he was broken... Broken because of the actions of people wearing uniform, like you or me."
He added: "This case goes to who we are as soldiers – [what] we have learned about what is right and wrong."
Mr Jackson then pleaded with the judge to "stand up for the rule of law". Whatever the outcome of the case, Mr Khadr feels he has been deserted by his own country.
The Canadian government has steadfastly refused to intervene in his detention and bring him home, leaving him to face the full weight of the US military law.
In May Omar Khadr wrote a letter to one of his Canadian lawyers, Dennis Edney, to say he was resigned to a harsh sentence from a system that he sees as unfair. Mr Khadr wrote: "It might work if the world sees the US sentencing a child to life in prison, it might show the world how unfair and sham this process is."
Guantanamo trials: Obama's reforms still leave concerns
The controversial system for trying Guantanamo detainees was first devised under the presidency of George W Bush.
It was set up in 2006 to try terror suspects under separate rules from established civilian or military courts. Originally, they comprised between five and 12 US serving military officers. A conviction required agreement between two-thirds of the commission. For a death sentence there had to be the unanimity all 12 commission members.
Hearsay evidence and evidence obtained under coercion was allowed if it were deemed to have "probative value". At this time "waterboarding" or simulated drowning was not classified as torture by the Bush administration.
The most famous defendant to face the tribunal is Khalid Sheikh Mohammed, the man who admitted being the architect of the September 11 attacks. But his case has been suspended.
The courts were finally struck down by the US Supreme Court, which found them to be unconstitutional. When Barack Obama was elected President in 2009 he suspended all military commissions as part of his pledge to close Guantanamo Bay. But in a shock move last year the US Government decided to resume hearings under a modified format.
Under the new Obama tribunals, statements that have been obtained from detainees using "cruel, inhuman and degrading interrogation methods" will no longer be admitted as evidence at trial. The use of hearsay evidence is limited and the accused will have "greater latitude" in selecting his counsel.
But despite these changes, Mr Obama's reforms have failed to satisfy human rights groups that they can be relied upon to secure safe and reliable convictions. The federal courts are seen as the best way to proceed to justice in the few remaining cases ready for trial.
Video of 2003 interrogation: 'You don't care about me,' Omar Khadr sobs in interview tapes
Caught in America's legal black hole
Guantanamo still holds 176 detainees, and one of them is about to stand trial – in a test of Barack Obama's resolve to embrace the rule of law
By Robert Verkaik
Have a nice flight with Country Airlines," said the smiling stewardess, "and enjoy your trip." Standing on the gangway of the Sun Country 737, she could have been welcoming us aboard a jet bound for any one of America's favourite holiday destinations.
But the US military-chartered aircraft taking off from the Andrews Air Force Base in Washington this weekend was heading for somewhere not altogether known for its leisure facilities.
As we approached the US naval base of Guantanamo Bay on the edge of Cuba's south-east coast, I wondered about the legality of the ominously wide terms of the liability waiver form I had to sign on condition of entry.
Under these agreements, journalists are warned that their presence in Guantanamo exposes them to serious risk from both the negligence of the US military and possible terrorist attack. The US government cannot be held responsible for any injury caused by either of these threats.
Welcome to the legal black hole that is Guantanamo.
In the distance one can just make out the runway, extended in 2001 to accommodate the giant military cargo planes which first carried the shackled prisoners from the battlefields of terrorism to Camp X-Ray. Ahead lies the Cuban mountain range which shelters Guantanamo Bay from the territorial claims of America's communist neighbour.
Since the September 11 terror attacks on the American mainland, Guantanamo Bay – until then a forgotten US naval base used for holding Haitian refugees – has become synonymous with international kidnapping and torture in the name of the US "war on terror".
It is the hub of the American programme of rendition in which hundreds of foreign nationals, including 20 British citizens and residents, have been flown thousands of miles around the world to be shackled in cages beyond the protections of international law.
Guantanamo Bay has also been the scene of barbaric tortures, vehemently denied by the Bush administration and now openly confronted by Barack Obama. It was here that the CIA, with the blessing of the Bush administration, developed the particularly grisly interrogation practice called waterboarding, where suspects are subjected to simulated drowning.
After winning the American elections nearly two years ago Barack Obama promised to end renditions and tear up the CIA's torture manuals. At the heart of the President's human rights policy was the closure of Guantanamo within a year of the first day he entered the White House – a target he missed.
Eight months after that deadline passed, the starboard view from the Sun Country 737 is irrefutable evidence that Guantanamo Bay is still in business.
The dozens of military buildings and the supporting civilian industry that dot the windward side of the bay are proof that the injustices of Guantanamo cannot be wished away by a few heartfelt sentences – even if they are uttered by the West's most powerful leader.
For sure there is outward change: the detainees are no longer forced to wear orange jumpsuits and the infamous Camp X-Ray detention centre has been decommissioned, surrendering its barbed-wire fences to the creeping Cuban undergrowth.
But as we approach our landing site there is no disguising that we are flying into a legal black hole, where 176 of the original 800 prisoners are still being held without charge or trial in conditions condemned as unlawful and unconscionable by nearly every international human rights organisation.
This week one of the 176 will stand trial in what is being regarded as a test of America's new willingness to confront the brutal legacy of George Bush's war on terror.
The case against Omar Khadr, a Canadian citizen and the youngest of the inmates, is emblematic of Guantanamo Bay's injustices. He is the first child to be tried for war crimes since the Nuremburg prosecutions against the Nazis after the Second World War.
Omar Khadr was captured by US forces in Afghanistan in July 2002 when he was just 15, and after interrogation in Afghanistan flown to the US naval base. He was later accused of war crimes for allegedly throwing a grenade which killed an American soldier.
Clive Stafford Smith, the legal director of the London-based human rights group Reprieve, says the Khadr case will show the world that the discredited military commissions are incapable of deivering justice.
"I have met Omar at Guantanamo – he was a child and still had the scars from the injuries he suffered during the fighting," said Stafford Smith. "The worst they can say about him is that he was with his father's friends when he was caught up in an attack by American soldiers.
"Prosecuting him is like holding a major crimes trial for a member of the Hitler Youth while ignoring the cases against the Nazi leaders. Never mind the fact that the whole process is illegal in the first place."
Khadr's trial is the first case to be heard in full since the resumption of hearings after the US Supreme Court ruled that the military commission system was unlawful under both military justice law and the Geneva Conventions.
Soon afterwards President Obama suspended all the trials so that modifications could be made to the process that would satisfy the courts.
Central to Khadr's defence is his claim that he was tortured while being held at the US detention centre at Bagram in Afghanistan. It was there that he shared a cell with Moazzam Begg, the Briton and former Guantanamo detainee.
He alleges that he was hung up on a door frame, threatened with rape, urinated on and used by one of the soldiers as a human mop to clean the floor. His legal team argues that any confession cannot be relied upon because it was made under torture.
The US prosecution denies Omar Khadr was tortured and says that his statements were made voluntarily.
Guantanamo Bay is the oldest overseas US naval base and is the only military establishment located in a country with which America does not maintain diplomatic relations. The United States leased 45 square miles of land and water from Cuba in February 1903 for use as a coal-fuelling station. A 1934 treaty reaffirming the lease added a requirement that termination of the lease requires the consent of both the US and Cuba governments, or the US abandonment of the base.
Since Fidel Castro came to power by overthrowing the US-backed regime, tensions between the two countries have grown, and in 1961 the US broke off diplomatic relations with Cuba. Over the passing years the US military presence at Guantanamo Bay has become a focal point for some of the tensions between the two states.
A minefield, which used to deter immigrant Cubans fleeing to American territory, now serves as a last obstacle to escaping prisoners.
Today 1,100 army and navy personnel are engaged in guarding the 176 detainees held in nine separate camps at Guantanamo.
The list of rules governing the behaviour of both soldiers and detainees runs into many pages.
For a military camp so internationally castigated for its failure to adhere to the rule of law there are an awful lot of dos and don'ts at Guantanamo Bay.
There is also a strict code of conduct for visiting journalists. Orange barriers restrict the movements of the press to defined areas of Camp Justice, where the commissions are housed. Military minders are on hand to ensure journalists don't venture from the permitted routes.
Photographs of military personnel or sensitive installations are strictly forbidden. And all pictures have to be viewed by the military censors before they can leave the island.
Journalists are also forbidden from interviewing Cuban and Haitian migrant workers.
Punishment for breaking these rules is at the very least immediate expulsion from Camp Justice.
My accommodation for the next three weeks will be a tent which I am told will not protect me from the extreme temperatures. The US military advises me to bring strong sunscreen for the day to protect against the Caribbean glare and an extra blanket for night time when the air conditioning can make it very chilly. I am acutely aware that these are two luxuries not available to the detainees who have frequently complained about the pain of being exposed to extreme temperatures.
But America remains defiant in the face of criticism of its war on terror. Journalists who question the legality of Guantanamo are directed to this statement: "There is no question that under the law of war the US has the authority to detain persons who have engaged in unlawful belligerence for the duration of hostilities, without charges or trial. Like all wars, we do not know when this one will end. Nevertheless, we may detain combatants until the end of the war."
In the dock: Indoctrinated as a child, held at 15
Omar Khadr was 15 when he was captured after a battle in July 2002 with US forces in Afghan-istan. Now 23, he'll finally have his day in court this week. If found guilty, he will be only the fifth terror suspect to be convicted in the eight years since George W Bush created the first military commissions at Guantanamo. He will be the first under the Obama administration.
Khadr was nine when his father, an alleged al-Qa'ida financier, took him from Canada to Afghanistan and introduced him to the world of jihad. Psychiatrists are expect to testify this week that Khadr viewed al-Qa'ida through the eyes of a child who didn't understand that his father's activities were linked to terrorism. It appears that his indoctrination led him to take up arms against US-led coalition troops after the invasion of Afghanistan in late 2001.
Under international law, a child captured in combat should be treated as a victim rather than a combatant. The US military has accused him of killing a US soldier with a hand grenade and spying on the US.
Even his military defence team alleges that his confessions were extracted under torture. The US prosecutors insist that he was not tortured and all his statements were made voluntarily.
Bin Laden's cook awaits sentence
At one time or another, Ibrahim Ahmed Mahmoud al-Qosi is alleged to have been Osama bin Laden's cook, bodyguard, chauffeur and personal accountant.
Today the 50-year-old Sudanese is expected to become the first Guantanamo detainee to be convicted and sentenced under President Barack Obama's administration.
In an effort to bring an end to his eight-year detention without trial, al-Qosi has struck a deal with the prosecution and pleaded guilty to some of the terrorism charges, although the exact terms are not expected to be made public until today when he appears before a military commission.
The US military claims al-Qosi was deployed to the mujahedin front line in Afghanistan in 1990. A year later, he was asked to work as an accountant for Bin Laden in Khartoum, and joined him in the Tora Bora mountains in September or October 1996. After the US-led invasion of Afghanistan, he fled to the Pakistan border armed with a Kalashnikov rifle and was captured by Pakistani tribes.
He was turned over to Pakistani officials then transferred to US custody and taken to the Guantanamo Bay detention centre, where he has been held for eight years and seven months.
History of the base
December 1903 The US leases the 45 square miles of land and water for use as a coal-fuelling station.
6 February 1964 Castro cuts off water and supplies to the base after the US government fines Cuban fishermen for fishing in Florida's waters.
1991 The naval base's mission is expanded as some 34,000 Haitian refugees pass through Guantanamo Bay.
2001 After the terrorist attacks in New York, Guantanamo Bay is prepared as a holding centre for suspects arrested in America's war on terror.
January 2002 The first of what will eventually be 775 prisoners arrive.
April 2002 Camp X-Ray, the temporary detention camp where there were allegations of abuse, is closed. Prisoners are transferred to high-security Camp Delta.
March 2003 US Court of Appeal ruled that detainees did not have a right to have their case heard in an American court.
January 2005 The Pentagon announces an investigation into the alleged mistreatment of prisoners at the camp.
February 2006 The United Nations calls for the camp to be closed.
June 2006 After three detainees hang themselves, President Bush says he hopes to close the camps.
December 2006 Camp Six opens, housing the remaining 430 detainees.
July 2008 The International Herald Tribune reveals that US military trainers based an interrogation class in 2002 on a copy of a study of Chinese torture techniques used during the Korean War to obtain confessions. The methods used included sleep deprivation, stress positions and exposure.
January 2009 Barack Obama outlines plans to close the camp within a year.
April 2009 The US Senate Armed Services Committee releases a report providing evidence of links between the abuse of prisoners at Guantanamo Bay and at the Abu Ghraib prison in Iraq.
January 2010 US officials admit that the camp will not close by Obama's original 22 January deadline.
August 2010 176 of the original 800 prisoners are still being held without charge.