By ACLU Staff Attorney Amrit Singh
This morning I attended the military commission hearings of Omar Khadr, a Canadian detainee who has been held in U.S. custody for over five years, most of that time in Guantánamo Bay. Like Mohammed Jawad, another detainee held at this prison, Khadr has also grown up at Guantánamo Bay. He was captured by U.S. forces in Afghanistan when he was 15 years old. The U.S. government has alleged that he conspired with and provided material support to al-Qaeda and that he killed a U.S. soldier by throwing a grenade at him.
As in Jawad’s case, torture and prisoner abuse are central issues in Khadr’s case. The government’s case against Khadr appears to rest in large part on statements which he allegedly made in U.S. custody in Bagram and Guantánamo. But Khadr says that these statements were coerced from him. In a signed, nine-page affidavit filed in March, he describes charges of abuse at the hands of U.S. interrogators, saying that he was repeatedly interrogated while he was in excruciating pain, hooded and menaced by barking dogs, and threatened with rape.
Today’s proceedings revealed that the government’s own documents corroborate Khadr’s claims of abuse at the hands of U.S. forces. Khadr’s military defense counsel, Lt. Cmdr. Bill Kuebler, stated in court that a U.S. Army Criminal Investigation Division (CID) report into Khadr’s abuse at Bagram includes a statement by "Sergeant P." corroborating Khadr’s claim that he was left standing in Bagram for hours on end with his hands extended above his head and chained to the ceiling. (To give you a sense of the impact of such techniques on the recently wounded 15 year old, here is a photograph of Khadr’s condition at the point of his capture). The CID investigation was however abruptly discontinued when it ran across "Sergeant C" and found that he was the subject of a court martial investigation. According to Kuebler, "Sergeant C," who also interrogated Khadr, was one of the most aggressive interrogators at Bagram and was implicated in the homicide deaths of prisoners there. Kuebler believes that the CID investigation was deliberately "killed" to prevent the military commission proceedings in Khadr’s case from unraveling.
Kuebler also revealed that the prosecution was in possession of a February 2003 videotape of Khadr’s interrogation by Canadian officials. The defense had been permitted to view this videotape only in the prosecutor’s office. According to Kuebler, this videotape is "very relevant" to show Khadr’s mental state.
These revelations came in the context of "discovery motions" made by the defense for the production of relevant records in the prosecution’s possession. The prosecution objected to almost every set of record requests. It was apparent that Khadr’s defense lawyers were experiencing significant difficulty in getting the government to turn over records critical for preparing his case.
One such requested record was a December 2002 "SERE" Standard Operating Procedure ("SOP") document, which apparently lists a set of abusive interrogation methods employed at Guantánamo. "SERE" stands for Survival Evasion Resistance, Escape – SERE methods were traditionally used by the military to train U.S. forces to withstand interrogation by hostile forces. The Bush administration, however, authorized these highly abusive methods to be used as offensive tactics on so-called "war on terror" prisoners. (Notably, the first public reference to the December 2002 document was made in a heavily redacted document released to the ACLU last month in its Freedom of Information Act litigation).
The prosecution admitted that it had the December 2002 SERE SOP document in its possession, but refused to turn it over to the defense on the grounds that it had not formally been adopted as official policy. But, as Kuebler pointed out to the military judge, interrogation methods from draft documents could easily have been applied on prisoners even in the absence of such official adoption.
The prosecution also refused to turn over notes taken during Khadr’s interrogation, on the ground that summaries of these notes had already been provided to the defense. Kuebler argued that the summaries were insufficient because they tended to exclude information that was critical for the preparation of Khadr’s case. By way of example, he noted that one particular summary of Khadr’s interrogation omitted to mention the critical fact that the interrogation was conducted while Khadr was on a stretcher. Another summary failed to mention Khadr’s wounds which were evident during interrogation.
Even though many of the defense’s discovery requests for documents remain pending, the military judge, Colonel Peter Brownback, set a May 28 deadline for the next stage of the proceedings, i.e., the filing of evidentiary motions. Brownback also noted that "the government has been beating on the military judge like a drum" to set a trial date, but declined to set such a date. The prosecution took issue with that, complaining that defense counsel’s time would have been "better spent" filing motions before the military commission instead of advocating on Khadr’s behalf before the general public and Canadian parliament.
But from where we sat, the court of public opinion and even Canadian parliament – with all their unreliability – appeared to be a far better bet than the military commission for delivering justice.
As I said in my post yesterday, this is what's being presented as American justice. But it's fundamentally inconsistent with American values and the U.S. tradition of due process.