Khadr case update

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.

Khadr’s defence team would not talk about negotiations Tuesday but confirmed that they have spoken with prosecutors and were “open to any possibilities that would resolve this case.”

“Communication is ongoing, but as of right now there is no resolution,” Washington lawyer Barry Coburn told reporters.

On wednesday evening the government did approve and release the Manual for Military Commissions,  laying out the rules that are to govern the conduct of Omar Khadr’s and all military commission proceedings.  But his legal team did not receive a copy of the new rules until shortly before proceedings were set to get underway this morning.  It came as no surprise, therefore, that they were given a few extra hours to digest the contents.  So the hearing, before it even began, was adjourned to the afternoon.

Things certainly began to move quickly once the hearing was underway in the afternoon however.  There was considerable legal jousting back and forth between defence and prosecuting lawyers over a number of outstanding issues.

Prosecutors are demanding that they be able to carry out their own psychiatric examination of Omar Khadr – but without either his lawyers or his own psychologist or psychiatrist present.  They are also demanding access to all of the notes, studies, test results and other documents that his psychologist and psychiatrist have used in preparing their expert reports.  They also argued that Omar Khadr’s affidavit detailing the many instances of torture and ill-treatment that he says he has suffered both in Afghanistan and at Guantánamo, should not be entered into evidence.  Instead they demand that he should personally testify about everything that is in the affidavit.  That was the one issue the judge did rule on – he decided that the affidavit can be entered into evidence for the purposes of this pre-trial hearing into the question of excluding Omar Khadr’s statements made to interrogators.  He has not ruled on whether it can be used as evidence at the actual trial scheduled to take place this summer.   

For their part, the defence team is seeking access to all individuals who have interrogated him.  They want to be able to interview each of them, to determine whether any should be called as witnesses for the defence.  They estimate that at least 30 individuals (military, FBI and private contractors) interrogated Omar on more than 100 occasions.  To date, they have only been allowed to interview three of them – one of whom allegedly provided information corroborating Omar’s allegation that in one interrogation session he was threatened with rape.  His team also wants an order requiring that Omar’s expert psychologist and psychiatrist, who are serving both as witnesses and expert consultants to the legal team, be paid for their efforts.

After these opening skirmishes, which went on for several hours, suddenly the first witness was called to begin testifying – Special Agent Robert Fuller with the FBI.  He had only provided some of his evidence before the hearing ended for the day.  Special Agent Fuller indicated that he interviewed Omar Khadr six times in October 2002 at Bagram Air Base in Afghanistan.  He testified that the interviews were cordial, involved no abuse or threats, that Omar Khadr was entirely cooperative, and that he saw no signs of pain, fearfulness or disorientation in him.  “He said he was proud — and mentioned he was proud to be a soldier,” said FBI agent Robert Fuller, recalling an interrogation in which Khadr claimed that before his capture he had slept with an unloaded AK-47. Fuller added that Mr. Khadr gave him detailed accounts of meetings with senior al-Qaeda leaders and how his father, Ahmed Said Khadr, was a major financier of training camps safe houses in Afghanistan and close confidant of Osama bin Laden.

 The showdown started at 5:15 a.m., according to a prison camps lawyer, Marine Cpt. Laura Bruzzese, when Khadr complained of pain in his shrapnel-blinded eye. He was taken to the detention center hospital for a drop to ease it.

Soon after, guards took him to a windowless security van for the short trip to Camp Justice. But Khadr refused to don what troops call “his eyes and ears” — the black-out mask and sound-deafening earmuffs.

“You’re trying to humiliate me,” she quoted him as saying.

Lawyers said the young man was suffering conjunctivitis, and high blood pressure, which aggravated what his attorney described as eye pain from shrapnel still in his eyes from his 2002 capture. A prison camps spokesman, Navy Cmdr. Bradley Fagan, said Khadr has always been taken to court in those ski-mask like blinders, which don’t touch his eyes.

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.

Today’s refusal came after Mr. Khadr was seen by doctors who apparently treated recurring eye problems which, he claimed

“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.

A day earlier, Col. Parrish refused to order medical treatment for the accused Canadian, saying he didn’t intend to “second guess” the care and security arrangements provided by military guards at Guantanamo Bay’s prison camps.

Mr. Khadr kept his face covered and his head down as a 27-minute video was played, allegedly showing him as a grinning, 15-year-old building detonators in a carpeted room while al-Qaeda trainers exulted: “God willing we will get a good number of Americans.’’

The defence team is fighting to have the video – and Mr. Khadr’s confessions – ruled inadmissible, claiming U.S. interrogators tortured and abused the gravely wounded teenager in the weeks after his capture.

In the video, apparently made in the early summer of 2002, al-Qaeda operatives are shown digging holes in a roadway, planting old Soviet anti-tank mines, running detonator wires and using a hand-held radio to trigger the explosions. In stark contrast to his current burly, bearded physic, the then 15-year-old Mr. Khadr, is a thin teenager with wispy sideburns clowning for the camera and helping to assemble detonators.

Russia court bans neo-Nazi group for extremist ideology

[JURIST] The Moscow City Court ruled Tuesday that the Slavic Union (SS) violates Russia’s extremism laws, banning the organization. The SS, whose initials are the same as the Nazi paramilitary, was one of Russia’s largest neo-Nazi organizations. City prosecutors initiated the action, accusing the group of promoting nationalistic supremacy similar to the ideology of Nazi Germany. SS leader Dmitry Dyomushkin says he plans to appeal the ban. He warned that the ban will anger radical ultranationalists into retaliation.

Earlier this month, a Moscow City Court judge known for presiding over cases involving neo-Nazi groups was killed while leaving his apartment. Russia is currently struggling to limit hate crimes, which decreased in 2009 according to the SOVA Center. Last month, the Russian Prosecutor General’s Office banned Adolf Hitler’s book Mein Kampf, finding it in violation of laws against extremism. In December, the Russian Supreme Court  upheld a lower court decision to shut down the Taganrog Jehovah’s Witness congregation and ban the distribution of 34 Jehovah’s Witness publications, finding both the Jehovah’s Witness congregation and the publications to be extremist. In 2007, the Russian parliament approved legislative amendments to change the prevailing definition of extremist crime in Russian law to include activities taken for “political or ideological hatred.”

Attacks Make South Asia Terrorism hot spot

An increase in terrorist attacks in Pakistan and Afghanistan triggered a spike in the number of civilians killed or wounded there last year, pushing South Asia past the Middle East as the terrorism hot spot, according to figures compiled by a U.S. intelligence agency.

Thousands of civilians – overwhelmingly Muslim – continue to be slaughtered in extremist attacks, contributing to the instability of the governments in the region, the statistics compiled by the National Counterterrorism Center show. The struggling countries provide havens for terrorists who are increasingly targeting the U.S. and other western nations.

At the same time, U.S.-led operations against insurgents increased in both countries. ‘The numbers, to a certain extent, are a reflection of where the enemy is re-gathering,’ said Juan Zarate, a top counterterrorism official in the Bush administration who is now senior adviser at the Center for Strategic and International Studies.

(H/T Afghan Conflict Monitor)

MI5 files must be kept from 7/7 victims’ families

The Guardian reports that disclosing MI5 files about the July 7 suicide bombers to the families of those killed in the London attacks would be “impossible”, counsel for the Security Service and the home secretary said today.

Investigating claims that MI5 could have prevented the 2005 atrocities would involve “handing over the keys” to MI5’s Thames House headquarters, Neil Garnham QC told a hearing to decide the scope of the inquests into the bombings.

He said sensitive intelligence could be seen by the coroner and counsel to the inquests. However, any jurors would be subjected to intrusive vetting, he said, and neither the bereaved families nor their lawyers would be allowed to see it.

He said two reports by the parliamentary intelligence and security committee (ISC) had adequately investigated MI5’s involvement. He admitted the committee was not “institutionally independent” because it was appointed by and reported to the prime minister, but he said it was operationally independent.

“Kiyemba II” could be back again

SCOTUS blog reports that in a legal move that very likely is a prelude to a Supreme Court appeal, an Algerian who has been imprisoned at Guantanamo Bay for more than eight years has begun a new challenge to a major ruling against detainees’ rights by the D.C. Circuit Court — a ruling that was left intact by the Supreme Court last month.  That decision brought a sweeping rejection of federal judges’ power to review government decisions on the fate of Guantanamo detainees.

The Algerian, Ahmed Belbacha, has pursued a variety of legal efforts to avoid being returned to his homeland, where he says he fears persecution not only by the government, but also death threats by a terrorist organization operating there.  On Tuesday night, his lawyers made their new move, asking the full, en banc D.C. Circuit Court to reopen the case of Kiyemba v. Obama (informally known as “Kiyemba II“) on the premise that he is directly affected by that ruling and that the decision sharply deviates from the Supreme Court’s 2008 decision adding to the legal rights of those held at Guantanamo Bay.

The fact that the Supreme Court refused to hear the Kiyemba case, turning it aside on March 22, does not mean that the decision in that case could not be tested anew.

The Administration has argued that the “Kiyemba II” decision took away the judge’s power to issue the no-transfer order for Belbacha.  The Circuit Court has taken no action on that, and has not set any new briefing schedule or hearing on the government’s appeal.  With his lawyers growing concerned that he might be sent to Algeria at any time, they decided recently to attempt to put the case before the full Circuit Court bench.  (If the case were heard by a three-judge panel, it would be bound by the “Kiyemba II” ruling; one panel cannot overturn another’s ruling.)

In making the new move, Belbacha’s counsel said the case now raises three questions “of exceptional importance.”

First is whether U.S. immigration law bars a federal judge from blocking a detainee’s transfer to another country if that would violate a U.S. treaty, the Convention Against Torture, and, if it does, whether that is an unconstitutional suspension of a detainee’s habeas rights “in contravention of Boumediene” and whether it would violate constitutional guarantees of legal equality.  The Supreme Court has not ruled on that issue.

Second, the filing said, the case tests whether the Supreme Court’s 2008 ruling in Munaf v. Geren blocks a federal judge from barring a detainee’s transfer to a country where torture is likely, either from a foreign government or from a terrorist group.  (Munaf, decided by the Justices on the same day as Boumediene, allowed the U.S. military in Iraq to transfer to the Iraqi government for criminal prosecution two prisoners who allegedly had committed crimes in Iraq.)  The Supreme Court has not said whether its Munaf ruling has any bearing on the rights of Guantanamo detainees, accused of no crimes.

And, third, Belbacha’s lawyers said, the case tests whether the U.S. government can transfer a detainee to another country where he has reason to believe he will be tortured, before the detainee has a real chance to challenge such a transfer.

US House subcommitee examines legality of unmanned drone strikes

[JURIST] A US subcommittee heard testimony Wednesday on the use of unmanned predator drone strikes. The National Security and Foreign Affairs Subcommittee of the House Committee on Oversight and Government Reform held a hearing on the legality of unmanned targeting. In his opening remarks, subcommittee chair John Tierney (D-MA) said:

The use of unmanned weapons to target individuals – and, for that matter, the targeting of individuals in general – raises many complex legal questions. We must examine who can be a legitimate target, where that person can be legally targeted, and when the risk of collateral damage is too high. We must ask whether it makes a difference if the military carries out an attack, or whether other government entities such as the Central Intelligence Agency may legally conduct such attacks. We must ensure that the Administration’s understanding of the authorities granted to it by Congress do not exceed what Congress intended.

The American Civil Liberties Union (ACLU), which has consistently opposed the use of unmanned targeting, sent a letter to President Barack Obama Wednesday, urging an end to the program.

Last month, State Department Legal Adviser Harold Koh defended the legality of the use of unmanned drones. Earlier in March, the ACLU filed suit  seeking information related to the US government’s use of unmanned drones. The ACLU alleges that the drones have been used by the military and CIA for unlawful killings in Afghanistan, Iraq, and Pakistan. The ACLU also cites troubling reports indicating that US citizens may be targeted and killed by unmanned drones. In October, UN Special Rapporteur on extrajudicial, summary or arbitrary executions Philip Alston  noted that the use of unmanned drones by the US to carry out attacks in Pakistan and Afghanistan may be illegal.

Alston said, “[t]he onus is really on the government of the United States to reveal more about the ways in which it makes sure that arbitrary executions, extrajudicial executions, are not in fact being carried out through the use of these weapons.” Alston criticized the US policy in a report to the UN General Assembly’s human rights committee that was presented as part of a larger demand that no state be free from accountability.

Opening Statement of Chairman John F. Tierney

Written Testimony of Professor Kenneth Anderson

Written Testimony of Professor Mary Ellen O’Connell

Written Testimony of Professor David Glazier

Written Testimony of Professor William Banks

Statement for the Record of the American Civil Liberties Union

Statement for the Record of Professor Afsheen John Radsan

Statement for the Record of Professor Hina Shamsi

US Army Report: Rise in Fratricide in the War on Terror

(Secrecy News) Incidents of fratricide in the U.S. war on terrorism increased in recent years, according to a new report from the US Army (“An Analysis of U.S. Army Fratricide Incidents during the Global War on Terror (11 September 2001 to 31 March 2008)” by Catherine M. Webb and Kate J. Hewett, U.S. Army Aeromedical Research Laboratory, March 2010).

“Fratricide” — the unintended killing or injury of friendly forces — “is a harsh reality during combat operations,” the study states.  “Over the course of 2004-2007, the number of fratricide incidents increased, and experts speculate this is due to the high operational tempo and the reliance on technology during the current war.”

According to official data, “there were 55 U.S. Army fratricide incidents from 11 September 2001 to 30 March 2008.  Forty of these were Class A accidents” — involving damage costs of $2 million or more and/or destruction of an Army aircraft, missile or spacecraft and/or fatality or permanent total disability — “resulting in the deaths of 30 U.S. Army personnel.”

Human error is a primary causal factor in many fratricide incidents, the study indicated, and “therefore, human error must be considered in the design and development of fratricide countermeasures, including both technical and human-centric solutions… Improved supervision and leadership may have the greatest potential to reduce U.S. fratricide incidents.”