Khadr Trial Suspended for at Least 30 Days

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Things are not going well in our Kangaroo Court. After quickly determining a fake sentence for Osama bin Laden’s cook, Ibrahim al Qosi, matters turned to trying Omar Khadr for an alleged murder that normally wouldn’t be a crime that he allegedly committed as a teenager using evidence gotten through rape threats.

So they picked a jury (but not, thanks to a disqualification from the prosecution team, the guy who agreed with Barack Obama that Gitmo should be closed) and proceeded to the witnesses. Lieutenant Colonel Jon Jackson was in the middle of highlighting the many inconsistencies of prosecution witness testimony when he collapsed in the court room. Daphne Eviatar was in the court room when it happened:

On Thursday afternoon I watched Omar Khadr’s sole defense lawyer, Lt. Col. Jon Jackson, collapse in the Guantanamo Bay courtroom in the middle of conducting a cross-examination of a key government witness. He was taken away on a stretcher by ambulance, hooked up to an I.V. Fortunately he was breathing normally and I hope will be fine, though as an observer in the courtroom I was stunned. It all happened so suddenly and he seemed to be in perfect health and in complete control of his questioning. It seems unlikely at this point that this historic trial will resume on Friday, as scheduled.

It turns out the collapse was related to complications from gall bladder surgery Jackson had about six weeks ago. He just got medivacked to the US for treatment and Khadr’s trial has been suspended for at least 30 days. So the showcase war crime trial for allegations that most don’t consider to be a war crime will have to wait (and they may have to start all over again with jury selection).

And Omar Khadr, who has been held for a third of his life, has another month gone from his life.

Update: Here’s Carol Rosenberg’s report on all this.

The Things Bob Bauer Was Doing before Taking over Ethics

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The White House Ethics Czar, Norman Eisen, has gotten himself nominated to serve as Ambassador in one of the greatest places on earth, Prague, Czech Republic. To replace the function of Ethics Czar, the White House has announced that White House Counsel Bob Bauer will take over, and Steven Croley (who worked on the campaign) will lead a team of six to oversee ethics.

Ethics wonks are mixed about whether this arrangement will meet the high standards Obama set when he came into the White House. POGO’s Danielle Brian takes Bauer’s appointment as a good sign that ethics will continue to be a priority. OMB Watch’s Gary Bass is happy the White House worked so quickly to implement a plan to replace Eisen. But Sunlight Foundation’s Ellen Miller views the appointment of Bauer–who has a history of supporting bad ethics habits–as a setback.

This concern is magnified manifold when Eisen’s key successor – Bauer — can hardly be described as having the DNA of a ‘reformer.’  This is the man who invented the rationale for the acceptance of “soft money’’ – unregulated (chiefly corporate) funds that flooded elections to the tune of $1.5 billion between 1992 and 2002, and the man who sided with arch conservatives in their defense of lack of transparency.

[Update: CREW has concerns as well.]

I’ll leave it to the ethics wonks to decide whether Bauer can do the job–on ethics–well or not. And FWIW, the one time I’ve seen Bauer’s work close up (during an election-related suit here in MI in 2008), I thought he was the kind of fighter Dems need more of.

But I am worried about what this says about the Administration’s focus on two other critically important functions. You see, when Bauer took over for Greg Craig, he was hailed as the kind of guy who could solve two problems Craig had failed to: judicial confirmations and closing Gitmo.

Read more →

Helen Would Have Asked about the Rape Threats for Teens

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That last thread is getting a bit long, and since McCaffrey the MilleniaLab says we’re going on a walk NOW, I wanted to throw up more space for discussion.

So let me just make this observation. Apparently, not one of the crack reporters at yesterday’s White House press conference asked any question about what it means that a judge speaking for the United States of America decided the other day that using rape threats with teens is an acceptable way to force confessions.

As I suggested, perhaps Robert Gibbs’ intemperate rant wasn’t so stupid after all. It distracted from the sad state of America’s claims at being a law-abiding nation. Lots of questions about the professional left. No questions about threatening a teenager with rape and then using the confession that results as admissible evidence.

Which brings me to a point WaldenE made. Used to be, these kinds of questions got asked in White House press briefings. Back when Helen Thomas was still the Dean of the White House press corps, she would have asked about military interrogators using rape threats with teens (after which, Robert Gibbs would have sighed and given her a patronizing response). No longer. Because she was chased out because–they say–she was an opinion journalist and because she made a comment that Robert Gibbs might call “inartful.”

These things are all connected somehow…

More Kangaroo Court Craziness

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Not only did our Kangaroo Court in Gitmo decide that it’s okay to threaten teeenaged boys with rape to get them to confess, but it also announced that the sentence for Ibrahim al Qosi would remain sealed until he was released.

In one courtroom, Air Force Lt. Col. Nancy Paul, a military judge, announced that the length of Ibrahim al Qosi’s plea bargain sentence would be a secret until he was released. The judge then began questioning a jury pool of 15 senior American officers who would on Tuesday deliberate Qosi’s prison sentence.

So much for using the transparency of trials to win hearts and minds! David Iglesias, of the US Attorney firing scandal, is about to issue a statement on this secret sentence.

Then, back to Khadr’s Show Trial, the judge admitted a video crafted by a someone with little real experience in terrorism that has nothing to do with Khadr.

The other disappointing part of today’s hearing was that the government has once again introduced Evan Kohlmann as an expert on al Qaeda and related terrorist groups. The 31-year-old Kohlmann is an NBC news analyst who started his own company that provides reports on terrorist groups to corporations and media organizations, based largely on surfing the Internet. He admitted in court today that he does not speak Arabic or have an advanced degree in anything related to terrorism, Islam or Islamic extremism. He has an undergraduate degree from Georgetown University where he wrote his senior thesis on al Qaeda and Arab-Afghans. All of his research and writing on that and related subjects was based on information he found on the Internet. He appears to believe that his inability to speak or read Arabic did not hinder his ability to review or understand what he found. Kohlmann has created a video that tells the history of al Qaeda and its goals, based, likewise, on video clips and other public documents he’s found online.

Whether Kohlmann is accepted as an expert or not (he probably will be, as he has been in two previous military commission cases and in 16 federal court trials, all testifying for the prosecution), the real issue here seems to be what his expertise has to do with Omar Khadr. Kohlmann testified today that he knows nothing about Omar Khadr except the charges against him. From what I can tell, the defense isn’t contesting that the U.S. is at war with al Qaeda or that al Qaeda has tried to attack the U.S. repeatedly, including on September 11, 2001. But the prosecution isn’t alleging that Omar Khadr had anything to do with that attack, or any of the others that constitute the bulk of Kohlmann’s movie. So I don’t see how the 90-minute historical survey of al Qaeda and Islamic extremist terrorism is going to shed light on whether Omar Khadr is guilty as charged.

Just in case there were any doubts about this being a show trial or not.

And, from Daphne’s update, the Judge also accepted the US claim that killing a uniformed soldier during a war is illegal.

And finally — and perhaps most significantly — Judge Parrish ruled that he is accepting the government’s statement of the laws of war, which defines the killing of a uniformed soldier as a war crime. Never mind that killing the other side’s soldier in a war has never before been considered or prosecuted as a violation of the laws of war.

Happy Monday! You can get more up-to-the-minute updates on the Gitmo Show Trials by following Carol Rosenberg, Muna Shikaki, and Daphne Eviatar on Twitter.

The US Believes It’s Okay to Threaten Teenagers with Rape

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Carol Rosenberg tweets:

Omar Khadr’s military judge just ruled that ALL of his confessions from Afghanistan to #Guantanamo will go to trial. None suppressed.

The Toronto-born captive’s defense had wanted his interrogations excluded on grounds they were not voluntary. Col. Patrick Parrish disagreed

#Khadr‘s war court judge also agreed to use at trial a homemade video of the 15-year-old allegedly building, planting mines in Afghanistan

So in spite of the fact that Joshua Claus threatened Omar Khadr with rape and potentially death, our military “justice” system does not believe that taints Khadr’s confession.

So nice to see our Kangaroo Court is living up to billing. It shames the US terribly in the process.

Update: it sounds like Khadr’s lawyer takes the same lesson from this I do:

Omar #Khadr‘s Canadian lawyer, Edney, calls Army judge “a disgrace” for admitting the Canadian’s admissions as a 15-year-old at trial.

DC Circuit, Want to Rethink that Habeas Ruling?

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Back in May, the DC Circuit decided that detainees at Bagram Air Force base were not entitled to habeas corpus because, since the base is in an active war zone, it would be unduly burdensome for the government to hold a real hearing.

I’m wondering if the DC Circuit would like to rethink that decision?

After all, in July, the Afghans proved themselves capable of holding a trial in the very same base in which Americans claim to be helpless to do the same, relying on assistance from US military lawyers who claim to be unable to hold their own meaningful hearings.

The chief judge asked God’s forgiveness if he had reached the wrong decision, and then he sentenced four members of an Afghan family charged with making bombs: two brothers to 10 years in prison and two other family members to time already served.

The courtroom, deep inside the American-run detention center in Parwan, erupted. The prosecutors complained that the sentences were too light, and the defense lawyers protested that they were too heavy; one of the defendants, Masri Gul, said he had not been allowed to examine the evidence; and the guards tried to quiet everyone.

[snip]

The American military made a great effort to showcase the bomb-making trial as a symbol of the transfer of authority, inviting Afghan and Western news media. However, the judges’ verdict seemed to depend in large part on crucial forensic work primarily from American technicians, and over all, Americans will continue to play a substantial role in decisions about the transfer of detainees. So far, Afghan and American officials have identified 110 cases for Afghan trials.

If a bunch of US military lawyers are already actively involved in hearings in Afghanistan (ones they’re proud enough to turn into a press spectacle), and if Afghans can pull a trial off, then doesn’t it follow the American military can muster some kind of real review of detainees?

Add in the fact that–as Spencer describes it–this base is looking more and more like an American exurb, down to the traffic jams and the road named Disney.

More notable than the overstuffed runways is the over-driven road. Disney Drive, the main thoroughfare that rings the eight-square-mile base, used to feature pedestrians with reflective sashes over their PT uniforms carrying Styrofoam boxes of leftovers out of the mess halls. And those guys are still there.

But now the western part of Disney is a two-lane parking lot of Humvees, flamboyant cargo big-rigs from Pakistan known as jingle trucks, yellow DHL shipping vans, contractor vehicles and mud-caked flatbeds. If the Navy could figure out a way to bring a littoral-combat ship to a landlocked country, it would idle on Disney.

Expect to wait an eternity if you want to pull out onto the road. Cross the street at your own risk.

Then there are all the new facilities. West Disney has a fresh coat of cement –- something that’s easy to come by, now that the Turkish firm Yukcel manufactures cement right inside Bagram’s walls.

There on the flightline: the skeletons of new hangars. New towers with particleboard for terraces. A skyline of cranes. The omnipresent plastic banner on a girder-and-cement seedling advertising a new project built by cut-rate labor paid by Inglett and Stubbs International.

If we’re going to build infrastructure for a permanent empire in Afghanistan, then we ought to build in all the things empires bring, like real judicial systems.

Seriously. With all this building and trialing and whatnot, the DC Circuit now looks like a collection of chumps buying a transparent government lie about the ability to hold hearings. Isn’t it time to rethink habeas in Afghanistan?

Abu Zubaydah’s American-Taxpayer Paid Tour of the World

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You should read two pieces in conjunction this morning. First, this Andy Worthington piece from last week, that lays out new details on the black site CIA used in Poland in 2002-2003.

On Friday, the Polish Border Guard Office released a number of documents to the Warsaw-based Helsinki Foundation for Human Rights, which, for the first time, provide details of the number of prisoners transferred by the CIA to a secret prison in Poland between December 5, 2002, and September 22, 2003, and, in one case, the number of prisoners who were subsequently transferred to a secret CIA prison in Romania. The documents (available here and here) provide important information about the secret prison at Szymany, in northeastern Poland, and also add to what is known about the program in Romania, which has received far less scrutiny.

[snip]

Friday’s revelations by the Polish Border Guard Office are, however, even more significant, firstly because they include, for the first time, confirmation that N63MU flew into Poland on December 5, 2002, and secondly, because they provide details of the number of passengers on seven of the flights, as follows:

December 5, 2002: 8 passengers delivered

February 8, 2003: 7 passengers delivered; 4 others flown to an unknown destination

March 7, 2003: 2 passengers delivered

March 25, 2003: 1 passenger delivered

May 6, 2003: 1 passenger delivered

July 30, 2003: 1 passenger delivered

September 22, 2003: 0 passengers delivered; 5 flown to Romania

Then, read this AP piece, which fleshes out details about the first time that Abu Zubaydah and three other detainees went to Gitmo.

Four of the nation’s most highly valued terrorist prisoners were secretly moved to Guantanamo Bay, Cuba, in 2003, years earlier than has been disclosed, then whisked back into overseas prisons before the Supreme Court could give them access to lawyers, The Associated Press has learned.

[snip]

Before dawn on Sept. 24, 2003, a white, unmarked Boeing 737 landed at Guantanamo Bay. At least four al-Qaida operatives, some of the CIA’s biggest captures to date, were aboard: Abu Zubaydah, Abd al-Nashiri, Ramzi Binalshibh and Mustafa al-Hawsawi.

Together, the articles provide key new details of the global voyages that Abu Zubaydah and other key detainees took between CIA black sites. And the AP piece confirms something earlier revealed in the ICRC report completed in 2007 and released last year: that at least four of the High Value Detainees were in Gitmo in 2003-2004, until they were moved again precisely to hide them from the ICRC.

ICRC notes that four detainees believed that they had previously been held in Guantanamo, for periods ranging from one week to one year during 2003/4. They reported recognising this location upon return there in September 2006, as each had been allowed outdoors on a daily basis during their earlier time there. The ICRC has been assured by DoD that it was given full notification of and access to all persons held in Guantanamo during its regular detention visits. The ICRC is concerned, if the allegations are confirmed, it had in fact been denied access to these persons during the period in which they were detained there.

Now, the two pieces in conjunction answer key questions. As Worthington points out, we know from this that Abu Zubaydah and Rahim al-Nashiri (and, he adds, Ramzi bin al-Shibh) got moved from Thailand to Poland in December 5, 2002, as CIA was making their first efforts to close the Thai black site and destroy the torture tapes. And then the three of them, plus Mustafa al-Hawsawi, got moved to Gitmo the following September 24, 2003. Then, on March 27, 2004, they were taken away from Gitmo.

One implication of this, of course, is that the death threats used against al-Nashiri–reportedly investigated by John Durham (and, I have speculated, possibly one reason Philip Mudd retired in March) happened on Polish soil.

It also times interestingly with Jack Goldsmith’s tenure at OLC (October to July) and even more interestingly with the CIA IG Report (they got Zubaydah and Nashiri–against both of whom the IG Report described torture–out of Gitmo before Congress got a hold of the report).

But the two reports also lay out further area for inquiry. At least according to what detainees told the ICRC, at least one of the detainees who were in Gitmo in this early period were only there for a week. But that also suggests some of the four might not have known they were at Gitmo when they returned in 2006, perhaps because they didn’t have the same exercise privilege (and remember that detainees, at least as of a few months ago, still exercised only with those who they had been in black sites before, so they couldn’t compare notes). Does this mean others were moved to Gitmo’s “Strawberry Fields” after this first bunch?

Finally, note how CIA’s spokesperson, in his comment to the AP, wants this story to be about events that happened six years ago.

CIA spokesman George Little said: “The so-called black sites and enhanced interrogation methods, which were administered on the basis of guidance from the Department of Justice, are a thing of the past.”

Aside from the fact that Little said this while John Durham’s inquiry into the torture that exceeded the guidance of DOJ is ongoing, it also distracts attention from other inconvenient little facts: like the presumably ongoing existence of Camp No, and the weird qualification in Obama’s Gitmo closure orders limiting them only to those at Gitmo considered to be enemy combatants.

Still, kudos to Worthington and the AP for their work to tease out the global trajectories of these detainees.

Will DOD Ban Itself for Publishing Joshua Claus’ Name?

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Carol Rosenberg tweets:

Just got formal notice: Pentagon publicly naming Interrogator No. 1 who testified remotely to #Guantanamo as ex-Army Sgt. Joshua Claus

Army Maj. Bradsher read me a Pentagon policy statement that said Claus’ “own actions” mean publishing his name does not violate ground rules

You’ll recall that DOD banned Carol Rosenberg and three other key Gitmo journalists when they published Claus’ name–even though one of them, Michelle Shephard, had published an on-the-record interview with him in the past. Yet now DOD says–on the eve of the Khadr trial–that it’s okay to publish his name? And as justification, they say his own actions, rather than the public nature of his name, means publishing it does not violate ground rules?

Really?

Because if you’re going to pretend your arbitrary and capricious system of censorship is not arbitrary and capricious, you might want to come up with better excuses than that.

Canadian Judge: Omar Khadr’s Brother Was Illegally Held and Interrogated

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Omar Khadr is set to go on trial starting Monday, August 9.

Today, his brother went free in Canada.

A judge ruled that he could not be extradited to the US because the confessions on which his extradition request was based had been collected when he was illegally held and interrogated in Pakistan.

Abdullah Khadr walked out of a Toronto courtroom a free man Wednesday after an Ontario judge denied a U.S. request to send him to Boston to face terrorism charges.

[snip]

Reading passages from his 62-page decision, [the judge in the case, Christopher] Speyer told a Toronto court that setting aside the extradition order was a “remedy of last resort” required in this case due to the fact that Khadr was illegally held and interrogated.

Khadr’s lawyers Nathan Whitling and Dennis Edney had argued that extraditing Khadr would mean Canada supports countries that violate international law.

Pakistan was paid a $500,000 (US) bounty to arrest Khadr in 2004. He was held without charges for 14 months and interrogated by intelligence and police agents from the U.S., Pakistan and Canada.

The Boston case against the 29-year-old Khadr was based on his own statements made in Pakistan and then repeated in Toronto upon his return in 2005.

Abdullah Khadr, like his brother Omar, said he made the confession only after suffering from abuse.

This decision may be appealed. But for the moment, Abdullah Khadr’s fate sets up an interesting contrast with the likely fate of his brother before the Gitmo show trials.

Holding Up Intelligence Reform, Clapping to Administration Demands

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So after a last minute dance with three Republican holds, James Clapper is poised to be confirmed as Director of National Intelligence. As I noted before, this means someone most Senators either have or have had concerns about will be approved by big numbers to head our intelligence community.

But the more important story about this nomination seems to be about holds and reform.

As I noted before, John McCain briefly put a hold on Clapper’s nomination. As Marc Ambinder explains, he did so as leverage to demand information on a satellite program over which Congress and the Administration has clashed.

The Director of National Intelligence’s office has sent Sen. John McCain’s office its top secret report on the development of two “tier-two” electro-optical satellites that Congress doesn’t want funded but the intelligence establishment believes it desperately needs. Neither McCain’s office, the White House, nor the DNI would confirm that McCain was seeking information about the highly classified development program, nor would they say why it took so long to send McCain the report he requested.

In parallel with McCain’s hold, Kit Bond and Tom Coburn–who, as Senate Intelligence Committee members, both voted for Clapper’s nomination in the Committee–put a hold on Clapper’s nomination as leverage to get a report on threat assessments of people at Gitmo.

The Cable caught up with Senate Intelligence Committee chairwoman Dianne Feinstein, D-CA, who said that two other senators were holding up the nomination, committee ranking Republican Kit Bond, R-MO, and Tom Coburn, R-OK. The senators wanted ODNI to deliver an overdue threat assessment on the prisoners being held at Guantánamo Bay, Cuba.

[snip]

Bond told The Cable Tuesday that he is getting the information he desires.

“Today I talked to General Clapper and I’m pleased the intelligence community is now working to provide the documents and access that I — and other members — have been seeking and that they are required by law to share with lawmakers,” he said.

Coburn also denied he has a formal “hold” on Clapper but said he was worried about the Guantánamo threat assessment.

“I think it’s important that we look at the vast number of people that have been released under the Bush administration and the Obama administration from Guantánamo who are now trying to kill American soldiers,” he said. “And I think that information is due and the intelligence committee ought to be getting it. So I am trying to do whatever I can to make good decisions.”

So prepare for James Clapper to take over at DNI!

And with his confirmation, expect Congress to lose the leverage it had to force the Administration to accept some real intelligence reform, reform that would, among other things, require Presidential Administrations to share information required by Congress more readily and widely.

So note the irony. The Ranking Member of the Senate Armed Services Committee, John McCain, had to put a hold on this urgent nomination to get information that he doesn’t get (Ambinder says the Gang of Eight gets briefed on it, but not SASC; I think it more likely that a few members of the Senate Appropriations Committee get briefed on it, but neither the Gang of Eight nor the leadership of SASC). And the Ranking Member of the Senate Intelligence Committee, Kit Bond (as well as Tom Coburn, who never met a hold he didn’t like), had to put a hold on this urgent nomination to get information he hadn’t get but was entitled to by law.

And yet no one finds this state of affairs urgent enough to make real changes in intelligence oversight such that individual Senators don’t have to find similar holds with which to gain enough leverage to get the information they need to do their job?