Release Omar Khadr now...

Last Monday, Lt. Col. Jon Jackson asked the US Supreme Court to halt the upcoming trial of Omar Khadr, a twenty-three-year old Canadian who has been held in Guantanamo for eight years.
Accused of war crimes, he is to be tried before a Military Commission on August 10.
Omar Khadr was captured in July 2002 in Afghanistan after having been grievously wounded, and has been charged with murder in violation of the laws of war, and providing material support to the enemy.
Omar’s father was an Islamic militant who moved his family to Pakistan. He was later accused of providing financial assistance to Islamic extremists.
Specifically, Omar Khadr was accused of having thrown a hand grenade during a firefight that killed Army Sgt. 1st Class Christopher Speer.
He has also been charged with planting landmines on behalf of al-Qaeda.
Khadr’s military lawyer claims that the young man is being denied his rights to a fair trial because, unlike US citizens accused of terrorism-related crimes, he is not being judged by a US Federal Court, but by a Military Commission.
Separate is always unequal. If you are a noncitizen, you are tried by a military commission. The military commissions provide young Omar, a Canadian citizen, only second-class justice. This kind of discrimination is something we cannot stand for as a country, Jackson told the Montreal Gazette.
Concomitantly, defense lawyers have asked the military judge presiding over the trial, Col. Patrick Parish to dismiss statements made by Khadr shortly after his capture, when his wounded condition rendered him particularly vulnerable to pressure and coercion. Omar Khadr was fifteen at the time of his capture…
Apart from Khadr’s confession obtained under duress, there is little evidence incriminating the youth.
No eyewitnesses were present when the alleged crimes were committed.
In fact, there are conflicting reports concerning the events that led to Sgt. Speer’s death. The commander leading the operation at the time of the incident initially declared that the individual who had thrown the grenade was himself killed in the clash.
It was only some time later that the officer changed his version of events and incriminated Omar Khadr.
Furthermore, according to documents and photographs obtained by The Toronto Star and published in October 2009, Khadr was already wounded and covered with rubble when Sgt. Speer was killed.
Omar is actually innocent of the allegation. Omar suffered blinding shrapnel wounds and severe injuries to the legs during the course of a U.S. bombardment that crippled him before the attack, his military lawyers told The Star.
After just two weeks in a hospital, he was taken to Bagram prison.
He would be interrogated more than forty times, and up to eight hours a day during the next three months, until his transfer to Guantanamo.
Omar Khadr claims that interrogators took advantage of his wounded condition to obtain a confession concerning his role in the death of Sgt. Speer.
During the first three days I was conscious in the tent hospital, the first soldier would come and sit next to my stretcher and ask me questions. He had paper and took notes. [ ]. Due to my injuries, this caused me great pain. At least two of the interrogations during these first three days occurred when I was [ ]. I was unable to even stand at this time, so I was not a threat, and I could tell that this treatment was for punishment and to make me answer questions and give them the answers they wanted, he declared in an affidavit submitted in February 2008 (the blank sections are the parts redacted by the Pentagon).
During this interrogation, the more I answered the questions, and the more I gave him the answers he wanted, the less [ ] on me. I figured out right away that I would simply tell them what I thought they wanted to hear in order to keep them from causing me [ ], he added.
An army medic confirmed that detainees were harshly treated at Bagram.
Identified only as M, he testified that he saw Khadr in a five-foot by five-foot cage chained to the door by the arms.
Omar Khadr’s lawyers considered this testimony as a validation of Omar’s affidavit.
Had this been an American soldier in North Korea, people would be outraged. Here we have a 15-year-old individual who was nearly killed with bullets in his back who was left up there to hang as punishment, Kobie Flowers, one of Khadr’s former lawyers told the Miami Herald.

Joshua Claus, then a Sergeant in the 519th Military Intelligence Battalion was Khadr’s principal interrogator, and the very first to question him.
Khadr has accused Claus of torturing him.
He did admit threatening the young Canadian. If he did not cooperate, this is what would happen to him. 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, he told Spencer Ackerman of the Washington Independent.
It appears that Khadr then decided that it was in his best interest to tell his interrogators whatever it is they wanted to hear. His subsequent interrogators confirmed that Khadr was cooperative in their dealings with him.
Claus was later court-martialled and pleaded guilty to abusing a prisoner in Bagram.
He served a five-month prison sentence.
Shortly after Omar Khadr was transferred to Guantanamo, at least two detainees, Dilawar, a taxi driver and Mullah Habibullah died during interrogation at Bagram.
Joshua Claus was reportedly present at what would be the former’s last interrogation.
The post 9/11 context and the fear that the US would sustain further attacks made violence against detainees the norm.
The pressure to get information from prisoners at Bagram was intense, Damien Corsetti, a former interrogator at Bagram and Abu Ghraib declared.
Due to a lack of experienced interrogators possessing top security clearance, military intelligence soldiers were recruited to handle prisoner interrogations.
Corsetti, then 22, received a one five-hour training course before he began interrogating suspects…
Conditions at Bagram were brutal. Each prisoner has in his cell a carpet measuring 1.2 m by 2.5 m. And they spend 23 hours a day sitting on it, in silence. If they speak, they are chained to the ceiling for 20 minutes and black visors are put on them so they can’t see and protectors are put on their ears so they can’t hear. They are taken down to the basement once a week, in groups of five or six, to shower them. It’s done to drive them crazy. I almost went crazy, he told the Spanish newspaper El Mundo in 2007.
In Abu-Ghraib and Bagram they were tortured to make them suffer, not to get information out of them. They would punish them for being terrorists. They tortured them and didn’t ask them anything, he added
Psychological torture was also rampant. They tell them they are going to kill their children, rape their wives. And you see on their faces, in their eyes, the terror that that causes them, he told the newspaper.
Sleep deprivation was also a favorite tactic to induce cooperation.
You’re in a cell where they let you sleep only a quarter of an hour every now and then. With no contact with the outside world. Without seeing sunlight. Like that, a days seems like a week. Your mental capacity is destroyed, he added.
This particularly harsh treatment was also inflicted on Khadr for three weeks, what the Canadian Supreme Court later referred to as the frequent flyer program.
Omar Khadr remains the only citizen of a Western nation still held in Guantanamo.
All the others, be they French, British or Danish were sent back to their home countries.
Will Omar Khadr become the first child (he was fifteen at the time the alleged crimes were committed) ever convicted of war crimes?
The odds are not in his favor.
In spite of the lack of evidence, and the tainted nature of his confession, a conviction appears likely, because that is the vocation of the Military Commission.
There is a substantial likelihood of conviction based on the evidence, Navy Capt. John Murphy, Guantanamo’s chief prosecutor, told the Star.
Last month, Khadr fired his lawyers and decided to boycott the trial because he knew the verdict had already been determined.
It is going to be the same thing, with or without lawyers. It’s going to be a life sentence, he wrote the court.
The judge rejected Khadr’s move to dismiss his attorneys.
Prof. David Frakt, a law professor at Western State University, and former lawyer to a Guantanamo detainee, believes that the likelihood of aconviction is a clear sign that military commissions have nothing to do with justice.
It is appalling that the Obama administration is allowing charges to go forward in the military commissions against Omar Khadr. Clearly, Omar Khadr, as a juvenile of 15 at the time of his alleged offences, could not be tried as an adult in federal court, so they are allowing him to be tried as an adult in the military commissions, potentially making him the first child soldier to be tried and convicted as a war criminal in world history, he told IPS.
The Bush and Obama administrations have never recognized the juvenile status of Omar Khadr.
To do so would render any trial not only morally indefensible but also illegal, thus precluding any possibility of obtaining a conviction.
As such, is the upcoming trial legal?
According to the International Covenant on Civil and Political Rights (ICCPR), children can only be detained as a last resort, and on a temporary basis.
Khadr was not charged until 2006, more than three years after being captured in Afghanistan. Yet, his case was dismissed after the US Supreme Court declared military commissions illegal in Hamdan v Rumsfeld in June 2006.
Furthermore, according to the Convention on the Rights of the Child (CRC), children in detention are entitled to expeditious legal assistance. Khadr did not have access to a lawyer until November 2004, more than two years after his transfer to Guantanamo.
Contrary to the provisions of the UN Rules for the Protection of Juveniles Deprived of their Liberty, Khadr was denied all educational and recreational opportunities, even though they were offered to other children.
In 2003, three minors detained at Guantanamo (thirteen to fifteen) were released and bestowed to the care of UNICEF.
Why was not Omar Khadr one of them?
The UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) stress the need for the rehabilitation and social integration of young offenders.
The US government never considered it necessary to provide Khadr with either…
As a signatory to the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, the US is bound by the following provisions: all appropriate measures to promote physical and psychological recovery and social reintegration must be taken.
Khadr never benefited form any of these provisions.
Why not?
Would Mr. Obama be as phlegmatic if a fifteen-year old American had been captured at the age of fifteen, detained for eight years in a maximum security prison and was about to be judged by a court that flouts the rights of the defense?
The US has thus been violating a host of its obligations under international law for years, notably since 2001.
Many firmly held the belief that once elected, President Obama would impose new practices based on the rule of law. They have clearly been deceived
Furthermore, are the charges themselves legal, according to international standards?
The US Congress recently established a new crime called murder in violation of the laws of war.
According to this new law, and the prosecution in the Khadr case, if it is not a crime to kill a soldier on the battlefield, it becomes a war crime if an unlawful enemy combatant commits the deed. Hence, and by definition, all acts of war committed by unlawful enemy combatants are war crimes.
What is an unlawful enemy combatant? One that has been designated as such by a tribunal established by the President or the Secretary of Defense.
One does not have to be on the battlefield to become an unlawful enemy combatant.
Providing material support to a charity that may have links, however tenuous, to an organization that the US government considers to be a terrorist entity will suffice.
According to Human Rights Watch, these definitions have essentially been invented by the administration and Congress. They have no basis in international law and undermine one of the most fundamental pillars of the Geneva Conventions – the distinction between combatants, who engage in hostilities and are subject to attack, and non-combatants.
The defense argues that killing a soldier is tantamount to a war crime only if the victim had a protected status (i.e. wounded, in detention, religious or medical personnel), or if illegal weapons were used, such as poison gas.
Sgt. Speer died during a military operation. He had no protected status, and was not killed by an illegal weapon.
This therefore, cannot be construed as a war crime or murder in violation of the laws of war. As a result, Omar Khadr should appear before a US Federal Court, not a military commission. The Obama administration seems ready to do everything in its power to prevent that from happening.
Why?
Moreover, even if he is responsible for Speer’s death, the fact that he was a juvenile at the time should spare him his current ordeal.
At this juncture, an interesting question comes to mind.
If actions that lead to the killing of a combatant may be characterized as murder in violation of the laws of war, how should we describe US drone attacks that target suspected terrorists throughout the Afghanistan/Pakistan region and beyond (including Yemen and Somalia), and that kill both suspects and innocent bystanders?
The drones, furthermore, are operated not by combatants, military personnel, but by civilians not even in the battle zone, but in the US.
Are these operators war criminals?
If not, why not?
Furthermore, what if the intended target happens to be a US citizen?
Anwar al-Awlaki, a militant Islamic cleric and American citizen currently living in Yemen, has been accused by the US government of inspiring and supporting acts of terrorism in the US and abroad.
He exchanged emails with Major Nidal Hasan, who has been charged with killing thirteen fellow soldiers at Fort Hood, Texas last year.
There are also reports that he was involved in the attempted bombing by Umar Abdulmutallab of the Detroit-bound jet on Christmas Day 2009.
Currently on the list of targets for assassination, he is in imminent danger of being killed in a drone attack.
US presidents have never hesitated to eliminate enemies of the nation.
President Obama has apparently no qualms about targeting a US citizen as well for what he may have done, even though no court has ever reviewed the evidence that the administration claims to possess and that justifies his presence on the hit list.
As such, the ACLU and the Center for Constitutional Rights are seeking a federal court order to prevent the Obama administration from assassinating Mr. al-Awlaki thus depriving him of any opportunity to defend himself in court.
President Obama is claiming the power to act as judge, jury and executioner while suspending any semblance of due process. Yemen is nearly 2000 miles from Afghanistan or Iraq. The U.S. government is going outside the law to create an ever-larger global war zone and turn the whole world into a battlefield. Would we tolerate it if China or France secretly decided to execute their enemies inside the U.S., wondered Vince Warren, the executive director of CCR.
The Canadian Supreme Court, in Canada v Khadr confirmed in a ruling last January that Omar Khadr’s rights had been denied under section seven of the Canadian Charter of Rights and Freedoms and declared the following: The deprivation of K’s right to liberty and security of the person is not in accordance with the principles of fundamental justice. The interrogation of a youth detained without access to counsel, to elicit statements about serious criminal charges while knowing that the youth had been subjected to sleep deprivation and while knowing that the fruits of the interrogations would be shared with the prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.
Canadian intelligence agents had interrogated the youth in 2003, who had then shared their findings with their US counterparts. The court also enjoined the government to find a remedy to Khadr‘s predicament.
Prime Minister Stephen Harper has always adamantly refused to do so…
Yet, last month, the Federal Court of Canada ruled that the Canadian government had one week to seek ways to preserve Omar Khadr’s constitutional rights.
Mr. Harper decided to appeal the court decision so as not to be compelled to take what is the inevitable next step: demand the release and repatriation of Omar Khadr.
Mr. Harper obviously does not want to have anything to do with Omar Khadr.
The Canadian Prime Minister’s conduct throughout this case has been nothing short of disgraceful. At no time has the Canadian government assisted Omar Khadr.
Unlike other nations, Canada has never requested the release and repatriation of its citizen, apparently quite satisfied with his current situation.
No other country has treated its citizens detained at Guantanamo with such open contempt.
Let us hope that Canada’s Supreme Court will compel him to do what he never had the decency to demand himself, urge the Americans to immediately release Omar Khadr.
The Obama administration’s resurrection of the military commissions (Obama had suspended them as soon as he entered the White House) was both misguided and unethical.
Who would have thought that Obama, a former constitutional law professor, would be the one to pursue the Bush administration’s vendetta against Khadr and try him as an adult before a military commission…
Was that the change those who elected him had in mind?
President Obama’s stance on a number of fundamental constitutional rights issues, including military commissions has been greatly disappointing.
He still has a few days left to put a stop to this travesty of justice.
All those who believe in justice and the rule of law will be watching Mr. Obama closely and hoping that, at least this time, he will not once again, betray himself and his supporters…
(The photographs of Omar Khadr can be found here)