Then, recalling that a medic called Mr. M testified yesterday that guards shackled Khadr’s arms at forehead level as a punishment, Jackson asked if such an “abnormal position” would include “standing with your hands shackled, even with your forehead.”

“It could be, sir,” Interrogator #2 said. He conceded he had heard of an “air lock technique,” where a detainee was forced to stand with their hands held outside a hole in the outer door of their cell. The differences with Khadr’s case and the “air lock” is that Khadr was shackled with his hands held at forehead height, not straight out, and the “air lock” doesn’t involve shackling. “But they put their hands through, and stay there?” “Yes,” Interrogator #2 said.

That’s directly relevant for this hearing. If the defense can show that Khadr was abused early in his detention, it stands a greater chance of persuading Col. Patrick Parrish, the military judge presiding over the case, to rule that Khadr’s statements to interrogators were unreasonably coerced — jeopardizing the government’s case not just against Khadr, but potentially against other detainees tried before military commissions.

Interrogator #2 also described other techniques allowed for interrogators at Bagram that appeared abusive. ”We could play music, yes sir. … Loud music, yes.” A report about Khadr contemporaneous with Interrogator #2′s time in Bagram said Khadr was “sedated” during an interrogation.  And Interrogator #2 chafed when Jackson asked if Bagram interrogators could use “stress positions,” replying that they were cleared to use something called “safety positions.”

“Well, first it was called stress positions, wasn’t it?” Jackson asked. “Yes, sir,” Interrogator #2 replied.

That raised Parrish’s interest: “Is there a difference?”

Interrogator #2 replied, “No, sir.”

Interestingly, Interrogator #2 assisted a figure we know only as “Interrogator #1,” the lead interrogator for Khadr, who will testify  – on behalf of the defense — to threatening Khadr with rape.

Whether that will actually happen is a different story. Much is in flux: The prosecution still has four more witnesses to call this week, as well as this afternoon’s cross-examination of someone we only know as “Interrogator #2,” an Army master sergeant who testified this morning to interrogating Khadr at Bagram. While the prosecution expects its remaining witnesses to testify fairly quickly — at least one of them is a medic who administered life-saving medical care to Khadr after he sustained severe gunshot wounds during his July 2002 capture by U.S. forces — this hearing so far has been characterized by unexpected procedural snags. Parrish has still not said anything in court to instruct counsel on whether his ordered psychological exam effectively stops the hearing after the government finishes presenting its witnesses.

(Unrelatedly, half an hour ago, the Defense Department announced that two Guantanamo detainees were transferred yesterday — under my nose! — to “the custody and control of the governments of Bulgaria and Spain.” No names have been provided. The detainee population now officially stands at 181.)

The sun rises over Camp Delta at Guantanamo Bay. (MICHELLE SHEPHARD/TORONTO STAR)

GUANTANAMO BAY — The military judge presiding over Omar Khadr’s military commission on Monday handed the 23-year old Canadian citizen something he’s grown accustomed to in his eight years in U.S. detention centers: delay.

[Security1]Col. Patrick Parrish today granted the government’s request to conduct an independent psychological examination of Khadr, who is charged with killing an Army Special Forces sergeant in Afghanistan in 2002. That exam, Parrish ruled, must occur before the defense can present its own expert mental-health witnesses in a hearing to argue that Khadr’s statements to his interrogators at Bagram Air Field and Guantanamo Bay ought to be inadmissible before the commission. The effect, said Khadr’s attorneys — who were reading Parrish’s ruling while holding an impromptu press briefing late Monday afternoon — will almost certainly be to pause the hearings for what the ruling calls “a period of four weeks” beginning next Monday.

“My general sense from a quick scan of the order that the judge doesn’t purport to actually compel Mr. Khadr to participate in the examination, but my expectation is that he will conclude that if Mr. Khadr does not participate, then it will be unfair for us to present our mental health testimony,” said Barry Coburn, one of Khadr’s attorneys. “It looks to me that what the judge is intending to do is adjourn, basically stop the hearing for a four-week period after the government completes presenting its evidence, which could occur tomorrow or the day after.”

Parrish’s order instructs defense counsel to advise the court by Friday if Khadr will consent to the psychological exam. Although Khadr’s attorneys said last week that they “tend to think he would not” consent, now that Parrish has ruled in the government’s favor, “I think it’s overwhelmingly likely that he will participate,” Coburn said. If so, then beginning on Monday, May 10, the government will have until June 7 to conclude the exam.

The delay also means a deferral in determining whether the latest version of the government’s military commissions for trying terrorism detainees — what officials hear have taken to calling “Military Commissions 4.2″ — will provide a modicum of justice for defendants. “The government has refused to tender interrogators as witnesses and for deposition by the defense,” said Jennifer Turner, a human-rights expert observing the trial for the American Civil Liberties Union. “The fact that this decision will delay the presentation by the defense witnesses and a real presentation of what happened to Omar Khadr is a concern.”

During opening statements last Wednesday, Coburn’s co-counsel, Kobie Flowers, argued that the government’s desired exam was unnecessary, since the government had “the same access to all the [Khadr mental health] records we have access to” and warned that Khadr would essentially be “incriminating himself by participating in their examination.” But Air Force Cpt. Christopher Eason, one of the prosecutors on the case, argued that the defense “cannot use [mental health] as a shield to protect their client from our experts and a sword to attack our evidence.”

The defense’s mental health experts, retired Army Brig. Gen. Stephen Xenakis and Dr. Kate Porterfield of New York University, intend to testify that Khadr’s youth — he was 15 when captured in Afghanistan — rendered all of the government’s interrogations inherently coercive to a degree that render them inadmissible for trial.

One aspect of that coercion emerged in testimony today from a former Army medic at Bagram called by the prosecution to testify. Khadr swore in his affidavit that while at Bagram, “the soldiers tied my hands above my head to the door frame or chained them to the ceiling and made me stand like that for hours at a time.” Mr. M, the pseudonym given to the medic, testified that on one occasion, he saw Khadr handcuffed to the frame of the outermost door to his cell, with his hands “lightly above eye level, about in line with his forehead” and “some type of a cloth hood” placed over his head.

Khadr sustained bullet wounds to his shoulder about three months before the incident, and Mr. M said that when he removed Khadr’s hood he observed Khadr crying — though more from being “very frustrated” than from pain, in his view. Mr. M testified that the guards placed Khadr in that position for “punishment” for an unknown infraction. He did not state how long Khadr was remained shackled.

Coburn called the testimony “the most substantial” piece of independent corroboration of Khadr’s affidavit to date. “All we have heard from the government, to my knowledge, in response to that affidavit has been skepticism,” he said. “I think it’s quite interesting, really, to see that a witness — not a witness that we called, but a witness the government called — has so directly and substantially corroborated an allegation of what I regard as egregious, inexcusable and repulsive abusive treatment… It’s torture.”

But before Parrish will indicate whether he agrees with Coburn — or, at least, that the behavior Khadr experienced materially impacts the admissibility of his statements to interrogators — the government will get to subject Khadr to psychiatric evaluation. While the government sought in its motion for the exam to exclude defense counsel from attending, Parrish’s ruling does not address that request, and both Coburn and Flowers said they did not expect Parrish to block their attendance. Accordingly, they dodged a question about whether they would premise Khadr’s participation on their ability to observe the exam.

Flowers expressed disappointment with Parrish’s ruling. The government’s psychological exam is “arguably a way for them to re-traumatize this guy,” Flowers said. “I do believe that it’s just completely unnecessary. They can get an expert, like it’s done all across this great country, and read what the reports are, read what the raw data is, and make a decision.”

The prosecution is expected to finish calling its witnesses as early as Tuesday, when the five-day hearing resumes. Parrish informed both the prosecution and the defense at the conclusion of Monday’s hearing that he would entertain arguments on the terms of the exam.

Coburn said that Parrish’s decision meant it was “perhaps a little bit less likely at this moment than it was a couple of hours ago” to keep to the scheduled July beginning for Khadr’s military commission. “I think that’s going to be a great disappointment to Mr. Khadr,” he said, “because he has been anxious to move forward with this.”

]]> http://washingtonindependent.com/83858/military-judges-ruling-likely-to-delay-gitmo-hearing/feed 11 http://washingtonindependent.com/83715/most-dramatic-testimony-of-9-11-era-expected-at-gitmo http://washingtonindependent.com/83715/most-dramatic-testimony-of-9-11-era-expected-at-gitmo#comments Mon, 03 May 2010 10:00:00 +0000 Spencer Ackerman http://washingtonindependent.com/?p=83715 GUANTANAMO BAY — The pre-trial hearing for a 23-year old Canadian citizen tried before a military commission is likely to host some of the most dramatic testimony of the post-9/11 era this week. That is, if More...

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A sketch by courtroom artist Janet Hamlin of defendant Omar Khadr with his defense team as FBI Special Agent Robert Fuller testifies in front of a video of Khadr posing while allegedly making IEDs. (EPA/ZUMApress.com)

GUANTANAMO BAY — The pre-trial hearing for a 23-year old Canadian citizen tried before a military commission is likely to host some of the most dramatic testimony of the post-9/11 era this week. That is, if the government and defense attorneys don’t reach a plea deal to settle the case of Omar Khadr, who has been held in detention for nearly eight years and charged with the murder of a U.S. Special Forces soldier.

Khadr’s attorneys plan to call someone known only as “Interrogator #1″ to testify this week. According to attorneys Barry Coburn and Kobie Flowers, Interrogator #1 will testify to having personally threatened Khadr in 2002 with sending the then-15 year old son of an Osama bin Laden associate to Egypt to be raped if he did not cooperate with interrogators at Bagram Air Field in Afghanistan.

[Security1]Additionally, during cross-examination during the first four days of the hearing — in which Khadr’s attorneys are asking a military judge to exclude all of their client’s statements to his interrogators from the government’s case against him, arguing that they occurred under coercion and even torture — Khadr’s attorneys have asserted that the first person to have ever interrogated Khadr at Bagram was court-martialed from the military for participating in the abuse of detainees.

This interrogator appears to be a different person than Interrogator #1, since Coburn said in a Saturday press conference that the court-martialed interrogator was “someone whom I’d very much like to be here,” and Interrogator #1 is scheduled to testify. “If that person is not here, and testifies electronically, that would be disappointing to me, but the most important thing is that that witness testify,” Coburn continued. He would not answer any substantive questions about either interrogator or their possible testimony.

If either Interrogator #1 or the other “First Interrogator” testifies, their faces will be visible in the super-secure courtroom here and their names will not be revealed. But published reports indicate a few likely possibilities for their identities. Former Army Spc. Damien Corsetti, a military interrogator at Bagram in 2002, was acquitted by a court-martial of various disciplinary infractions, but has confessed to involvement in the abuse of detainees. “I firmly believe it was torture and unfortunately I took part in it,” Corsetti said of Khadr’s treatment at Bagram in a 2009 interview with the Toronto Star’s Michelle Shephard.

While Corsetti is not believed to have interrogated Khadr, he might still have threatened the 15-year old during detainee operations at Bagram, where Khadr was held after his July 2002 capture by U.S. troops before his transference to Guantanamo in October 2002. A Saudi man who was detained at Bagram has said that Corsetti threatened him with rape, according to a 2005 New York Times expose into detainee abuse at the prison.

That same report identified Joshua Claus as an Army specialist responsible for the violent deaths of two detainees at Bagram, named Habibullah and Dilawar, a few months after Khadr was transfered to Guantanamo. Claus served five months in military prison in 2005 after pleading guilty to assault and misrepresenting his involvement in the deaths to investigators. A former lawyer for Khadr said in 2008 that Claus conducted “virtually all” of Khadr’s Bagram interrogations.

Testimony from any interrogator about personal involvement in detainee abuse on behalf of an abused detainee will be a milestone for the military commissions, or for any other forum for post-9/11 justice. No other case has featured such a dramatic and potentially self-incriminatory development. Asked last week why an interrogator would potentially incriminate himself, Coburn replied, “I don’t know the answer to that.”

Any account from former interrogators about abusing Khadr will contrast sharply with the accounts of five interrogators who have testified thus far on behalf of the prosecution. Those interrogators, who worked for the FBI, the Naval Criminal Investigative Service and the Defense Intelligence Agency, have testified  that Khadr was a cooperative and good-natured detainee who cooperated with his Bagram and Guantanamo detainees without any coercion. All interrogated Khadr when he was 16 years old, and said he responded positively to such inducements as food from McDonald’s, car and motorcycle magazines, and the promise of what one called “Islamic children’s books.”

“If you notice the way the government is presenting evidence in this hearing, what we’re hearing from overwhelmingly are FBI agents or Naval Criminal Investigative Service agents who talked to Omar Khadr way later, long after he was initially detained,” Coburn told reporters Saturday when challenged about their accounts, indicating his witnesses would pre-date the government’s. “This was just sort of renegade conduct that occurred for a certain period of time, which is, from our point of view… something that poisoned the well.”

This week’s hearing will not resolve Khadr’s case. It’s to adjudicate the defense’s contention that initial mistreatment of Khadr in Bagram “poisoned the well” of evidence that the government can use against him during his scheduled July military commission — hence the testimony of the interrogators on the question of Khadr’s treatment.

But it’s possible that all remaining questions in Khadr’s case — from his treatment in detention to his alleged killing of U.S. Army SFC Christopher Speer — could be rendered moot.

Both the government and the defense have now publicly acknowledged negotiations to resolve Khadr’s case out of court. Anonymous administration officials told The Washington Post that they do not want the first military commission of the Obama administration to be against someone who was a juvenile when he was detained. Additionally, if the government loses the hearing to suppress ostensibly coerced evidence, it could threaten the viability of the commissions themselves, as all other detainees charged before the commissions could potentially cite Khadr’s case to argue that the circumstances of their detention are inherently coercive — thereby weakening the government’s cases against them, even in a forum like the military commissions that afford fewer rights to defendants than civilian courts.

But Coburn said on Saturday that his highest priority was securing the most favorable outcome possible for his client, not potentially assisting other detainees by pressing on with the so-called “suppression” hearing. “I don’t think that either I or Mr. Khadr or the other members of our team are thinking that much about the precedential value of what’s happening here as far as it might effect other detainees,” he said.

Even if there isn’t a plea deal announced this week, there’s another procedural snarl that would, at the least, delay the proceedings. Army Col. Patrick Parrish, the military judge presiding over Khadr’s case, said he would rule Monday on a request by the prosecution to subject Khadr to its own psychological screening — without defense counsel present. The prosecution said when it unveiled its request on court Wednesday that it anticipated needing “five weeks” for the desired examination. That would essentially freeze the suppression hearing in place for approximately a month without a resolution, making it more difficult to open Khadr’s actual military commission on schedule in July.

Bagram Air Field, Afghanistan (army.mil)

Almost six years ago, while on a business trip in Thailand, Amin Al Bakri was abducted on his way to the Bangkok airport. For months, his wife and three children at home in Yemen had no idea where he was. Then one day they read in a local newspaper that Bakri, a 39-year-old gem trader, had been seized by United States agents. About six months after his disappearance, they received a postcard, sent via the International Committee of the Red Cross. In it, Bakri explained that he was imprisoned at the United States air base in Bagram, Afghanistan. The family had no idea why.

Illustration by: Matt Mahurin

Bakri was likely held in various secret prisons, known as “black sites,” for interrogation before he landed at Bagram. He was likely abused, humiliated and tortured, as we now know many such prisoners were, and secret United States policies approved by the president and vice-president allowed. But it’s impossible to know for sure, because other than routine Red Cross visits to the prison and two visits over seven years with members of Bakri’s family, no one outside of the US government has been allowed to see or speak with Bakri. Not even his lawyers.

That Bakri has lawyers at all is highly unusual, and is only because his distraught father reached out to the International Justice Network, a nonprofit legal organization that’s been trying to help some of the 600 or more prisoners now being held by US forces at the Bagram air base. Like the detention center at Guantanamo Bay, Cuba, the prison at Bagram is controlled by the United States, although it’s physically located in another country – in this case, Afghanistan. And although the United States claims that most of the prisoners there were seized “on the battlefield” and are therefore being held legitimately, many of the detainees were, like Bakri, seized in other countries and brought to Bagram for detention. (The defense department won’t say how many Bagram detainees have come from other countries.) Lawyers representing the detainees therefore argue that Bagram is essentially the same as Guantanamo – an offshore detention center wholly controlled by the United States and holding prisoners abducted by US agents around the world – and that prisoners there ought to have the same rights as those at Guantanamo.

The Bush administration disagrees. It maintains that the prisoners at Bagram are “enemy combatants” seized in a war, so the United States can detain them indefinitely, without charge or access to lawyers, until hostilities end – whenever that may be. Although the administration has repeatedly lost when it’s made that argument to the Supreme Court about detainees at Gitmo, the Pentagon has insisted that Bagram, because it’s near ongoing conflict, is different. On Wednesday morning, a federal judge in Washington, D.C. will for the first time consider these claims.

The cases of Amin al-Bakri and three other detainees held at Bagram are being argued today before US District Court Judge John Bates, a Vietnam veteran appointed by President Bush just months after the US invasion of Afghanistan. They’re important not just to the fate of the four prisoners – seized in Yemen, Pakistan, Thailand and Tunisia and detained at Bagram without charge for up to six years; they could also determine whether hundreds or even thousands of other prisoners being held indefinitely around the world by the United States military have a right to challenge their detention.

“We’re talking about the exact same situation as Guantanamo,” said Tina Foster, executive director of the International Justice Network, which is representing the four detainees in conjunction with law clinics from Stanford and Yale law schools. “People are removed from whatever country or jurisdiction they happen to be in and taken to a place for the purpose of evading any legal requirements or obligations.”

Last June, in Boumediene v. US, the Supreme Court ruled that the United States cannot hold detainees at Guantanamo without the right to challenge their detention in a US court. Just because the prison is on foreign soil doesn’t mean the Constitution does not apply. As Justice Kennedy wrote in the majority opinion: “to hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, ‘say what the law is’.”

The question before the district court today – and an important question facing the new Obama administration — is whether the same principles will hold true for some 600 men being held at Bagram.

The Bush Justice Department insists they do not. It argues that unlike Guantanamo Bay, Bagram is a temporary air base set up during wartime and that Afghanistan maintains sovereignty. Though Bagram, like Guantanamo, is leased indefinitely for the exclusive use of the US military and a status of forces agreement confirms broad US control over the base and its residents, the government insists Bagram is different. The US hasn’t had the lease for as long; and, “the military base is in an active theater of war where the US military, along with the host nation’s security forces and the troops of some 40 nations, are engaged in daily combat,” Justice Department lawyers wrote in a brief to the court.

But lawyers for the detainees say there’s a big difference between people seized on the battlefield and held temporarily for questioning or turned over to local authorities for prosecution, and people picked up in other countries and sent to a US-controlled prison that happens to be near ongoing hostilities.

“Amin was abducted in Thailand,” says Foster. “But for the US having brought him to Afghanistan, he would have been nowhere near Bagram or Afghanistan. So the argument that they’re holding him in close proximity to ongoing hostilities is a problem of their own making.”

Joseph Margulies, law professor at Northwestern University, agrees. “The United States can choose to house people anywhere,” he said. “They make a choice to move people closer or farther way from the conflict. You wonder whether the law should sanction that kind of manipulation.”

Under the laws of war, says Margulies, “the US has an obligation to move people away from the battlefield after the point of capture. So the US cannot maintain that while there may be boots on the ground in Afghanistan, Bagram airfield is a battleground.”

But if prisoners at Bagram have the right to challenge their detention in US courts just as prisoners at Guantanamo do, does that mean that thousands of suspected Taliban or al Qaeda members being held by the United States as part of the war on terror will have the right to flood American courts with their claims? As the government puts it, to give them all habeas corpus rights “would have a crippling effect on war efforts.”

“Federal courts should not thrust themselves into the extraordinary role of reviewing the military’s conduct of active hostilities overseas,” writes the Justice Department in its brief. That would amount to “second-guessing the military’s determination as to which captured aliens as part of such hostilities should be detained, and in practical effect, superintending the Executive’s conduct in waging a war.”

Legal experts acknowledge that the traditional laws of war don’t easily apply to non-traditional conflicts such as this one, where the US is fighting a terrorist organization or a group of insurgents rather than a government. In World War II, for example, it was clear that the US could hold German or Italian uniformed soldiers until the war was over. But we’re not at war with the government of Afghanistan, and Taliban and al Qaeda warriors don’t wear uniforms and aren’t always recognizable. So what should be done with people the government suspects are warriors, or may have information about terrorists? Can the US lawfully hold them indefinitely, without charge and with no meaningful way to demonstrate their innocence?

“My own view is that if the US is holding somebody subject to its control then that person should have the right to challenge the legality of that detention absent extraordinary circumstances,” said David Cole, law professor at Georgetown University Law School. “Why should it matter whether we’re holding someone in Louisiana, Gitmo or Bagram if they’re being held illegally? Shouldn’t they have some right to question that?”

The question becomes even more important when you consider that since the Supreme Court first decided in 2004 that Guantanamo prisoners have legal rights, the US military has largely stopped sending new prisoners there, sending them to Bagram instead.

Bagram has “become the sort of Yucca mountain storage facility for these human beings,” said Eugene Fidell, an expert on military law and visiting professor at Yale Law School.

In addition to the 600 prisoners at Bagram, the United States is holding more than 15,000 prisoners in Iraq. Which prisoners would have habeas rights would depend on “who they are and the grounds on which they’ve been detained,” said Fidell.

But as the Iraqi government increasingly assumes control of its own country, prisoners being held there by US forces may not be entitled to habeas rights if they are being held on behalf of the Iraqi government, to be eventually tried or released by an Iraqi court.

“That’s a completely different beast,” says Margulies, of Northwestern Law School. In Bagram, the US is holding prisoners for its own interrogation purposes, not for the benefit of the Afghan government. “If you control the location and you are holding people ostensibly forever and not for the benefit of another government, and you’ve decided where to put them, then the writ [of habeas corpus] runs to that location.”

It’s not clear that the US district court hearing the case today – or the US Supreme Court, which may eventually address the issue – will agree. So far, the Supreme Court has only addressed the situation of prisoners at Guantanamo.

Ultimately, it may be the new Obama administration, rather than the courts, that will decide the Bagram question.

“They clearly can decide, like the Bush administration has done with the vast majority of detainees at Guantanamo, to send them home and moot the cases that way,” said Foster, who, along with some of her colleagues, has met with members of the Obama transition team to discuss the situation at Bagram. Or, “they could close down Bagram the same way they’re moving to close down Guantanamo.”

There’s good reason to consider the latter course, regardless of the difficult legal questions involved. As Foster observes: “it does not behoove the Obama administration to have Bagram become his Guantanamo.”

Then there’s a contingent that’s out of uniform and wearing neither contractor lanyards nor carrying Defense Dept. civilian badges. They’ve got beards – thick, grody ones – and tattoos, their heads covered with baseball caps, outfitted in jeans and t-shirts. In other words, they look like me, if I was less of a weakling.

Chances are they’re Special Operations Forces, the guys that go after the high-value jihadist targets and whom I’m not really supposed to write about. Interviews without a public-affairs officer are a no-no.

So I pay for my coffee and they pay for theirs — and we go our separate ways.