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They Used Threat of Prison Rape to Scare Omar Khadr

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As Spencer reports from Gitmo, the first interrogator to question Omar Khadr at Bagram told him a story suggesting that if he lied, he’d be sent to an American prison where he’d be likely to get raped.

“I told him a fictitious story we had invented when we were there,” Interrogator #1 said. It was something “three or four” interrogators at Bagram came up with after learning that Afghans were “terrified of getting raped and general homosexuality, things of that nature.” The story went like this:

Interrogator #1 would tell the detainee, “I know you’re lying about something.” And so, for an instruction about the consequences of lying, Khadr learned that lying “not so seriously” wouldn’t land him in a place like “Cuba” — meaning, presumably, Guantanamo Bay — but in an American prison instead. And this one time, a “poor little 20-year-old kid” sent from Afghanistan ended up in an American prison for lying to an American. “A bunch of big black guys and big Nazis noticed the little Afghan didn’t speak their language, and prayed five times a day — he’s Muslim,” Interrogator #1 said. Although the fictitious inmates were criminals, “they’re still patriotic,” and the guards “can’t be everywhere at once.”

“So this one unfortunate time, he’s in the shower by himself, and these four big black guys show up — and it’s terrible something would happen — but they caught him in the shower and raped him. And it’s terrible that these things happen, the kid got hurt and ended up dying,” Interrogator #1 said. “It’s all a fictitious story.”

It may have been a fictitious story, but it was an implicit threat, and a very plausible one when you consider it was told to a Canadian likely to be aware of America’s atrocious record of prison rape of both men and women.

The fate of Khadr–whose further interrogations all followed this implicit threat–is one issue. But the fate of American prisoners exposed to rape is equally timely. There are just four days left to a comment period on new standards that would mitigate many of the underlying problems that allow prison rape to happen.

The U.S. Attorney General is currently reviewing national standards aimed at preventing and addressing this type of abuse. Until May 10, these measures are open for public comments.If fully implemented, the national standards will spare countless Americans the horror of sexual abuse. But the standards are under threat. The reason: Prison officials claim that it will be too expensive to implement them – too expensive to prevent staff from raping detainees.

[snip]

In 2003, Congress recognized that the victimization of inmates constitutes a national crisis and so it unanimously passed the U.S. Prison Rape Elimination Act.

The national standards currently under review by Attorney General Eric Holder were developed by a bipartisan federal commission through extensive consultation with corrections officials, criminal justice experts, advocates and prisoner rape survivors. They are basic, common-sense measures, highlighting the need to train staff, identify likely rape victims and likely predators and ensure that prisons are subjected to independent audits.

By law, Attorney General Eric Holder has until June to review the standards and codify them as federal regulations, making them binding on detention facilities nationwide.

Sadly, it now looks like Holder will not meet his deadline. The delay is due, in large part, to a problematic cost projection study commissioned by the Justice Department in response to pressure from corrections leaders.

In addition, there’s a petition calling on Holder to implement the new measures quickly.

It’s really appalling they used such a threat to scare Khadr. But it’s equally appalling that the threat is so plausible because rape is so common in our prisons.

And we may be a lot closer to doing something about the latter than we seem to be able to do about the former.

Khadr: “You’re Trying to Humiliate Me”

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If you’ve been following Spencer and Carol Rosenberg, you know that the news from Omar Khadr’s hearing has been dominated by Khadr’s two refusals to come to the hearing room, yesterday because he didn’t want to wear the blackout goggles they use while transporting detainees at Gitmo, today because he didn’t want to undergo a waistband search before being transported to the hearing room.

I certainly can’t say whether Khadr really doesn’t want to undergo these procedures–which the government says are routine–or whether he wants to call the world press’ attention to these procedures (anyway, how do you separate the two?). But in any case, he has succeeded, to some extent, in doing the latter (Spencer tweeted that Gitmo authorities actually explained “which digit gets inserted” in a waistband search).

Both times, the authorities dutifully reported Khadr’s comments about humiliation. Yesterday, he said, “You’re trying to humiliate me,” and today he said, “I want to come to court but I want to come respectfully.”

Here’s how the Toronto Globe and Mail (which in some ways would be the key audience for such a story) reported the repeated refusals:

For the second day in a row, Omar Khadr refused to appear Friday for pre-trial hearing on murder and terrorism charges, claiming he was being subjected to unnecessary and humiliating searches by military guards.

[snip]

“I want to come to court but I want to come respectfully,” Mr. Khadr said, according to U.S. Marine Capt Laura Bruzzese, who testified at the opening of today’s session.

Military Judge Col Patrick Parrish said the hearing would proceed without Mr. Khadr.

“He objects to having his waistband searched” but that is a reasonable security measure, the judge said, adding that Mr. Khadr’s objections – unlike those of a day earlier — were unrelated to his eye problems.

[snip]

But Mr. Khadr’s condition and his care eclipsed Thursday’s hearing. The military judge, Col. Parrish, refused defence requests that a doctor on the defence team be allowed to testify as to the seriousness of Mr. Khadr’s eye problems. Mr. Khadr failed to appear for the morning session after he refused to wear the sensory-depriving, blacked-out, ski goggles and earmuffs detainees are required to wear for transport from the prison camps to the courtroom.

Col. Parrish then cancelled it and warned Mr. Khadr’s lawyers that unless they persuaded him to attend, he would order him trussed up and brought to the court, at least long enough for him to be told of his right to absent himself. That right was apparently omitted from Mr. Khadr’s arraignment.

Col. Parrish rejected defence requests to examine whether Mr. Khadr should be forced to wear the goggles, even while in the back of the armoured vehicle used to transfer prisoners from the camps to the court. The judge said he “wasn’t going to second guess the decisions made by security” personnel.

I’m curious what you all make of this. To Americans, certainly, such procedures aren’t going to seem out of order–we see US-based prisoners subjected to bureaucratized dehumanization on teevee all the time. That’s not as true of the rest of the world. Yet, it seems to detract from the issues specific to Khadr that piss off the rest of the world even more, that the US is trying someone who for actions allegedly committed as a teenager.

Breaking! Torture Is Illegal! Except when Consistent with the Interests of Justice!

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Thanks to BoxTurtle for linking to the manual for military commissions rushed out last night in time for the Omar Khadr hearing.

There are a number of interesting details in it, but since Khadr’s hearing today pertains to torture–whether statements he made after allegedly being tortured will be admissible–I thought I’d start with what the manual says about torture. And, ironically, there’s a big section on torture … in the section describing potential charges under military commissions. Here’s how the manual describes the crime of torture:

(11) TORTURE.
a. Text. “Any person subject to this chapter who commits an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”

The details for the most part track the analysis done by OLC on torture, including the language on intent:

(3) The accused intended to inflict such severe physical or mental pain or suffering;

But there’s also this, which appears to be a potential loophole:

(6) The conduct took place in the context of and was associated with hostilities.

Now, given that torture is laid out all nice and tidy like that in the military commission manual, you’d think that the discussion of whether evidence collected through the use of torture is admissible might also include some comment about what happens to the people who did the torture if evidence is deemed inadmissible because it was collected using torture. But it doesn’t.

Here’s what the manual says about statements collected using torture.

(1) Exclusion of Statements Obtained by Torture or Cruel, Inhuman, or Degrading Treatment. No statement, obtained by the use of torture, or by cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under color of law, shall be admissible in a trial by military commission, except against a person accused of torture or such treatment as evidence that the statement was made.

Which would seem to say no evidence collected using torture will be admissible in these military commissions, unless it’s to try to someone for torture.

Except there’s this loophole:

(5) Derivative Evidence.

(A) Evidence Derived from Statements Obtained by Torture or Cruel, Inhuman, or Degrading Treatment. Evidence derived from a statement that would be excluded under section (a)(1) of this rule may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection, unless the military judge determines by a preponderance of the evidence that—

(i) the evidence would have been obtained even if the statement had not been made; or

(ii) use of such evidence would otherwise be consistent with the interests of justice. [my emphasis]

That is, to exclude evidence collected using torture, the defendant has to make a timely motion to suppress that evidence. Fair enough.

But the military commission can still use the evidence if it decides the evidence would have been obtained anyway (this seems to be a giant wall of protection for evidence collected using a clean team, meaning that evidence that matches tortured confessions but was collected using other means can still be used even if the evidence also came out in a tortured confession).

Or, more troubling, if the military judge decides that using evidence collected using torture “would otherwise be consistent with the interests of justice.”

Here’s what the manual has to say about “interests of justice:”

The intention of Mil. Comm. R. Evid. 304(a)(5) is that the “interests of justice” standard generally will restrict the admission of evidence derived from statements obtained by torture or cruel, inhuman, or degrading treatment (other than where the evidence would have been obtained even if the statement had not been made). The admission of evidence derived from a statement that was made incident to lawful conduct during military or intelligence operations and that would not be excluded under section (a)(1) of this rule generally should be regarded as consistent with the interests of justice for purposes of section (a)(5)(B) of this rule.

So torture is illegal. Except when it consists of “lawful conduct during military or intelligence operations,” in which case torture can be regarded as “consistent with the interests of justice.”

Here’s what the manual says about statements made by others under torture (I originally didn’t find this section–this is an update):

(3) Statements from persons other than the accused allegedly produced by coercion. When the degree of coercion inherent in the production of a statement from a person other than the accused offered by either party is disputed, such statement may only be admitted if the military judge finds that—

(A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;

(B) the interests of justice would best be served by admission of the statement into evidence; and

(C) the statement was not obtained through the use of torture or cruel, inhuman, or degrading treatment as defined in section 1003(d) of the Detainee Treatment Act, Pub. L. 109-148 (2005) (codified at 42 U.S.C. 2000dd(d)).

Since this section requires that the coerced statement both serve the interest of justice and that it not be obtained through use of torture, it seems that self-incrimination through torture is allowed, when consistent with the interests of justice, but not the incrimination of others.

Pleading Terror Trials

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Will the GWOT go on trial today? Or will the Administration avoid having its policies on terror detainees go on trial, along with two accused terrorists?

In Gitmo, Omar Khadr’s military commission is due to start shortly, in spite of the fact that lawyers in the case only got the manual laying out rules for military commissions last night. Apparently, military prosecutors made a last ditch attempt to avoid trying a Canadian captured as a teenager using dubious evidence; they offered Khadr a plea deal of five more years in prison in exchange for pleading guilty to war crime charges. Khadr refused that deal, though negotiations appear to be ongoing.

Military prosecutors offered a sentence of five years in a U.S. prison if Canadian detainee Omar Khadr pleads guilty to war crime offences, the Toronto Star has learned.Sources close to the case who spoke to the Star on the condition of anonymity said the offer was turned down, clearing the way for pre-trial hearings Wednesday morning.

I’ll post updates as news breaks, but you can follow Spencer Ackerman and Carol Rosenberg via Twitter for up-to-the-minute updates.

Meanwhile, closer to home, Syed Hashmi accepted a last minute plea deal yesterday, pleading guilty to one charge of material support for terrorism in exchange for a 15 year sentence.

On the eve of his terrorism trial, an American student who studied in London admitted Tuesday that he helped a friend deliver some protective clothing to an al-Qaida military commander fighting Americans in Afghanistan.The plea by Syed Hashmi to a single count of conspiracy to provide material support to al-Qaida was entered in U.S. District Court in Manhattan, averting a trial that was supposed to begin Wednesday.

As part of a plea deal that will require prosecutors to drop three other terrorism charges at his June 7 sentencing, Hashmi agreed to serve 15 years in prison. He has already served four years, at least three of them in solitary confinement at a federal lockup in lower Manhattan.

Hashmi’s case had attracted a lot of support for two reasons: first, because Hashmi’s actions in support of al Qaeda consisted of allowing a friend to use his cell phone and store a bunch of rain gear at his apartment. And because Hashmi was subjected to Special Administrative Measures for almost three years leading up to this point. While the government claims the measures are necessary to prevent terrorists (usually convicted ones) of communicating with co-conspirators, they amount to long-term solitary confinement with little due process.

In any case, by arranging a plea deal with Hashmi, details of his confinement will remain largely unnoticed.

For all the stink about where the 9/11 Defendants will go on trial, it appears that the Obama Administration would rather plead away these more embarrassing cases rather than have his policies, as well as accused terrorists, go on trial.

The Protective Order on Khadr’s Interrogators and the John Adams Project

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In addition to the bombshell that Omar Khadr’s military commission will start Wednesday, less than a day after lawyers in the case will have received the thick manual laying out the rules for the newfangled military commissions, Gitmo released one more thing today: the protective order covering “intelligence identities” that applied to Khadr’s old-fangled military commission. (h/t Carol Rosenberg)

Given the witch hunt launched against the John Adams project (in which detainee lawyers employed investigators to figure out the identity of detainees’ torturers, in response to which the CIA has been demanding the lawyers be charged with violating the Intelligence Identities Protection Act), I’m particularly interested in this language (assuming, of course, that these protective orders are fairly standard).

2. Accordingly, IT IS HEREBY ORDERED:

a. Names or other identifying information of intelligence personnel that have been or may, from time to time, be disseminated to or obtained by the Defense Counsel for the accused, may be disclosed to members of the Defense team, such as paralegals, investigators, and administrative staff, with an official need to know. However, such information shall not be disclosed to the accused or to anyone outside of the Defense team other than the Military Commission panel subject to the limitations below;

b. Unless disclosure has been authorized by the Military Judge, names or other identifying information of any intelligence personnel shall not be disclosed in open court or in any unsealed filing. Any mention of the name or other identifying information of intelligence personnel must occur in closed session and any filing to the Military Commission panel that includes such information shall be filed under seal.

First, let’s read a: “Names or other identifying information of intelligence personnel that have been or may, from time to time, be disseminated to or obtained by the Defense Counsel for the accused”–note they don’t explain why those intelligence personnel would have been disclosed to defense counsel. And they also describe both “names” and “identifying information”–which would presumably include photographs (the CIA is particularly pissed that pictures of interrogators have been passed among detainees at Gitmo).

It goes on: “However, such information shall not be disclosed to the accused.” I’m curious what you lawyers think about this? Is there a parallel in civilian trials? In any case, the protective order makes it clear that the government is trying to protect these identities, first of all, from disclosure to those who were abused by said intelligence personnel.

Then there’s part b: “Unless disclosure has been authorized by the Military Judge, names or other identifying information of any intelligence personnel shall not be disclosed in open court or in any unsealed filing.” Call me picky, but this seems to be sloppy writing here. Since this passage does not refer explicitly back to part a, it would seem that the prohibition on disclosing “such information” would not be limited to information “disseminated” to lawyers for the accused. And in any case, part a includes language about information “obtained by” lawyers for the accused.

What is the significance of this for lawyers who, in an attempt to get information not disseminated (and therefore witnesses who may have exonerating information not produced) have gotten investigators to find out the identities of those who tortured their clients? Furthermore, note that the protective order doesn’t qualify the limit of those whose identities are protected here at all. What happens if a defense lawyer doesn’t know if someone is an intelligence professional but has a suspicion that the person might have been the guy who tortured his client, and in any case is probably a contractor? Does showing the client a picture count as disclosing identifying information, even if the only one who can confirm that the person in question is affiliated (however loosely) with US intelligence is your client?

In any case, this protective order only calls for sanctions, not the IIPA charges that CIA seems to be clamoring for. And this protective order appears to have been operative in 2007, not necessarily 2009 and 2010. I’m not a lawyer, but if the CIA is trying to equate this with security agreements in order to criminally charge defense attorneys, I’m skeptical it’ll work.

But it does give one snapshot of how Kafkaesque the Bush-era military commission process was (as distinct from how Kafkaesque the Obama-era one day rule cramming is).

David Iglesias: Obama’s Used Car Salesman For Gitmo Show Trials

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In January of 2009, right after Obama’s inauguration, there was a swell feel good buzz about the fact David Iglesias, the media darling face of Bush US Attorney Purgegate victimology, had been tapped to be part of a special team of prosecutors to bring sanity to the detention and prosecution of Guantanamo detainees. Iglesias said:

We want to make sure that those terrorists that did commit acts will be brought to justice — and those that did not will be released.

As with so many other facets of the nascent Obama Administration’s promise on the interests of justice, it appears to have been shiny window dressing for the same old story, same old song and dance. A year and change later the same duplicity, bad faith, and specious claims based on vapor and evidence from torture permeates the Obama handling of Gitmo detainees as it did under Bush and Cheney. That is not my conclusion, not that of the “far left progressives”, but that of impartial Federal judges like Henry H. Kennedy.

And today we have yet another reminder that nothing has changed. Iglesias, the photogenic exemplar of A Few Good Men is being walked out once more to shill for the return of Gitmo Show Trials. From Carol Rosenberg:

For hearings on whether U.S. forces tortured confessions out of a Canadian teenager accused of killing an American soldier in Afghanistan, the Pentagon Monday unveiled a new face to advocate military commissions:
Fired former Bush-era prosecutor David Iglesias, a key figure in the so-called Attorney-Gate scandal. He was mobilized last year to the war court as a U.S. Navy Reserves captain.
…..
Monday, Capt. Iglesias was part of a Pentagon prosecution team going to Guantánamo for up to two weeks of hearings on which, if any, of Omar Khadr’s confessions cannot be presented to a jury at his summertime trial.
….
The chief war crimes prosecutor, Navy Capt. John F. Murphy, is leading the Khadr team in court. So the Pentagon tapped Iglesias to brief 35 reporters leaving from Andrews Air Force Base on Monday for the remote U.S. Navy base in Southeast Cuba, a larger than usual number of worldwide media traveling to the base for this week’s hearings. Many are Canadian.

Earlier in his Navy lawyer career, Iglesias has said, he worked on a hazing case that became a basis for the Hollywood hit set in Guantánamo, A Few Good Men, starring Tom Cruise and Jack Nicholson. Since then he has emerged a telegenic critic of Bush era policies.

So there you have it, the white knight Iglesias is not leading the legal charge cleaning up the detention/Habeas cases and prosecution status of the rickety and ill defined military commission effort, he is serving as the used car huckster for the old status quo. I guess Cal Worthington and his dog Spot were not available.

Lest anyone mistake the cravenly serious nature of what is really at stake here, Iglesias is being trotted out to sell a return to military commissions with few established known standards, that have been scorned and blasted by a conservative Supreme Court and, just for kicks, the government is fighting tooth and nail – complete with Holywood Iglesias – for the admissibility of tortured confessions from a child, Canadian Omar Khadr, in a military tribunal to be convened at Guantanamo. Gitmo, the gulag Obama railed on while a candidate and promised to close within Read more →

The Bazaar for Deals at Gitmo

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Dafna Linzer has a very timely story describing how prosecutors at Gitmo are scrambling to make deals with detainees at Gitmo, in some cases to resolve their fate, but in others to prepare them to testify against more significant detainees.

As the United States moves to prosecute Khalid Shaikh Mohammed and four others [1] accused of being conspirators behind the Sept. 11, 2001, attacks, federal and military prosecutors are racing each other to strike plea deals with at least a dozen additional Guantanamo detainees whose testimony could be used against some of the most notorious prisoners.

The plea bargaining exposes the difficulty the government faces in bringing prosecutable cases against these defendants and others still in Guantanamo. Most of the remaining detainees are considered too difficult to prosecute, mostly because the evidence against them is thin or based on statements obtained through coercion.

One defense attorney said federal prosecutors had so little on his client that they asked the detainee to suggest a charge he would be willing to plead guilty to.

I sort of wonder whether that’s one thing that’s going on with Omar Khadr. When asked at a DOD/DOJ press conference today whether Khadr’s trial might be transferred to Canada, the senior DOD official giving the briefing dodged by saying his case is still early in the process.

Toronto Star: Walk me through thinking about Omar Khadr, whether his age was a consideration, and whether there was communication with Canadian govt. Still possibility that Khadr could be repatriated to Canada.

DOD: Don’t want to speculate about outcome of pending prosecutions in commissions. We have this as a pending case. Status of it, it’s a ways off. There’s a way to go in the case. I’m sure the prosecutors will consider all their options wrt how they handle the case.

That seems remarkable for a case that has, supposedly, already been green-lighted for a military commission. So I wonder if they’re trying to get him to approve of a deal?

In any case, click through to read Linzer’s complete story.

Embarrassment-Free Show Trials

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The Miami Herald (which is doing good work on the Gitmo show trials) has a description of some of the ways the military is ensuring that the Gitmo show trials don’t lead to the release of any embarrassing information.

A defense lawyer lets slip at the war court convening here that a battlefield commander changed an Afghanistan firefight report in a way that seemed to help a U.S. government murder case. Reporters hear the field commander’s name but are forbidden to report it.

In another case, a judge approves the release of a captive’s interrogation video showing the blurred face of an American agent. But a federal prosecutor on loan to the Pentagon withholds it “out of an abundance of caution.”

Even as the U.S. government edges toward full-blown, war-crimes trials by military commission here, with more hearings next week, all sides are grappling with what information can be made public and what must be kept secret.

Consider: A new courtroom here sequesters Pentagon-approved spectators behind a soundproofed window. If a terror suspect tries to shout about his treatment in U.S. custody, a military censor can mute the audio feed that observers hear.

Under rules that protect interrogation techniques, the Pentagon’s war court won’t let the reputed 9/11 architect, Khalid Sheik Mohammed, say he was waterboarded — something the CIA director, Air Force Gen. Michael V. Hayden, confirmed on Feb. 5.

This will, I suspect, make for a very interesting First Amendment case before the show trials are done (and yes, the ACLU is already working on just that thing). Until those cases work their way through the courts, though, I hope we see more articles like this. They expose the degree to which these are show trials. And the degree to which the military is worried about not just sensitive security information, but also embarrassing information such as the name of the Colonel who allegedly framed Omar Khadr for murder, will be released.

And if there were any doubt about the speciousness of the claim, compare what Gordon England says when he has a pragmatic reason to want to avoid showing Khalid Sheikh Mohammed publicly:

Gordon England, deputy secretary of defense, issued a memo banning the release of Guantánamo detainee photos. The Pentagon is bound by the Geneva Conventions not to humiliate detainees, it said, and “We respect the dignity of all persons.”

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Will Dick Finally Get Busted for His Leaks?

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I am of the opinion Dick Cheney escaped any repercussions from ordering his Chief of Staff to leak a CIA NOC’s identity because Bush’s Pixie Dust gave Dick the right to insta-declassify classified material as if he were King President. I wonder, though, whether Bush has Pixie Dust somewhere that will permit Dick Cheney to ignore a gag order imposed by a Court? That’s what Colonel Morris Davis suggests Cheney may have done–leak a video purportedly showing Gitmo detainee Omar Khadr making a bomb to 60 Minutes (h/t TP).

Omar Khadr’s defense lawyers will try to find out whether U.S. Vice-President Dick Cheney’s office secretly leaked a video of the detained Canadian to an American media outlet – an allegation that, if proven, would be a clear violation of court orders and further proof that the process by which Mr. Khadr is being tried is a political, not legal one, his military lawyer says.

In an interview with The Globe and Mail Monday night, Lieutenant Commander Bill Kuebler said he is trying to find out how a highly secret video showing Mr. Khadr in Afghanistan was leaked to the U.S. news program 60 Minutes. The video appears to show Mr. Khadr building a bomb.

The news program aired the footage last November.

Lt.-Cmdr Kuebler, Mr. Khadr’s top U.S. military lawyer, said he met with Colonel Morris Davis, the previous top prosecutor of military commissions – the body that is expected to try Mr. Khadr in Guantanamo Bay later this year – last week.

At the meeting, Lt.-Cmdr. Kuebler asked the Colonel where he thought the leak may have come from. In response, Lt. Cmdr. Kuebler said, Col. Davis offered the opinion that the Vice-President’s office may have been involved.

[snip]

Lt.-Cmdr. Kuebler said the prosecution had wanted to play the tape in court – in view of the media – late last year, but the request was denied by a judge. A few weeks later, 60 Minutes had the report.

Given that context, Lt.-Cmdr. Kuebler said he believes the tape was leaked, and he tends to agree with Col. Davis, who told him it was unlikely a junior officer would be the one to leak it.

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