Friday, August 13, 2010

"nothing that would stand up in court"

Sandy Levinson

I could not help notice a line in today's New York Times full-page editorial about the war in Afghanistan referring to allegations that President Karzai's brother is up to his neck in the drug trade. According to the Times, the response from Washington is that there is "nothing that would stand up in court," so, presumably, we are not bringing great pressure on President Karzai to do something (drastic) about his brother. What is ironic, of course, is that the United States is currently trying at Guantanamo a now-23-year-old for an alleged killing of a U.S soldier when he was 15, before a military court and apparently using a "confession" obtained under conditions that would instantly get it thrown our of a "real court" in the U.S. The Times article, incidentally, notes that this is the first military trial for acts committed by an under-18 "soldier" since World War II.

It wouldn't shock me if the then-15-year old actually did the act alleged, though one could still get into a sustained conversation about the standards of liability imposed on "child soldiers" (and whether, for example, eight years in Guantanamo might be "'suffering enough" (to paraphrase Gerald Ford's famous phrase as he pardoned Richard Nixon) re punishment). But, frankly, it would surprise me even less if President Karzai's brother is indeed the drug-dealer that he is widely reported to be. But for him, the Administration (or at least some anonymous Washington insider not named by the Times) is quite scrupulous in looking for evidence that "would stand up in court.' "Equal justice under law" indeed.


At, Glenn Greenwald has asked "how can it possibly be that the U.S. invades a foreign country, and then when people in that country -- such as Khadr -- fight back against the invading army, by attacking purely military targets via a purely military act ..., they become 'war criminals,' or even Terrorists, who must be shipped halfway around the world, systematically abused, repeatedly declared to be one of 'the worst of the worst,' and then held in a cage for almost a full decade (one third of his life and counting)? It's hard to imagine anything which more compellingly underscores the completely elastic and manipulated 'meaning' of 'Terrorist' than this case: in essence, the U.S. is free to do whatever it wants, and anyone who fights back, even against our invading armies and soldiers (rather than civilians), is a war criminal and a Terrorist."

A combatant which does not follow the laws of war and fights as a civilian does not enjoy combatant immunity for killing anyone, is subject to the charge of murder as a war criminal and may be executed if found guilty.

The law of war to which the US is a signatory does not distinguish between war crimes committed by adults and minors. This is war, not an episode from the Bowery Boys. If you give minor soldiers get out of jail free cards for war crimes, then al Qaeda and other terrorist groups will use children as a matter of course to attack our troops.

Khadr was a Pakistani/Candian in the company of other foreign al Qaeda, not a Afghan freedom fighter defending the home country and their wonderful way of life under the Taliban dictatorship from the evil Americans.

Now, if all the handwringing is over, let's see if the prosecution can actually prove the charges. Given the disclosed state of evidence or lack thereof, a conviction is hardly a sure thing.

I am interested in Mr. DePalma's comment that a conviction is not a sure thing. So the next obvious question is "what then"? Is he released, having, no doubt, built up, shall we say, further negative feelings about the US over the pat eight years of his confinement? Do we suddenly turn him into a "prisoner of war" who is to be confined for the duration of an endless war (though this would contradict treating him as a non-POW)? I'm not trying to bait anyone. I think this is a genuinely serious problem with the Bush-Obama position on detainees.

What does his having built up further negative feelings about the US have to do with anything? We release defendants who are acquitted, or who are convicted and later shown to be innocent, all the time without inquiring about their feelings regarding the government, the prosecutors, or the witnesses who testified against them. If Khadr is acquitted and we are concerned about his negative feelings, then perhaps we could counter them by apologizing and compensating him generously for having tortured him and stolen all those years of his life.

There seems to be substantial evidence that Khadr threw the grenade. If he was a combatant as Greenwald appears to urge, then he is innocent of charges (by his combatant immunity) but also subject to detention as a POW for the duration of hostilities. Alternately, they could find that he threw the grenade and has no combatant immunity, in which case he is guilty of murder as charged. If they find he did not throw the grenade and did not build explosive devices, then not only is he innocent of charges, but he is also not subject to detention and should be released (admitting that there is a difference between reasonable doubt and the burden of proof needed to detain).

However, when you have about 20 witnesses to a particular act and the accused is captured at the site and confesses, then whatever your view of possible defense arguments you cannot claim that there is "nothing that would stand up in court". This post is nonsense in trying to contrast the two cases.

Sandy Levinson said...

I am interested in Mr. DePalma's comment that a conviction is not a sure thing. So the next obvious question is "what then"? Is he released, having, no doubt, built up, shall we say, further negative feelings about the US over the pat eight years of his confinement? Do we suddenly turn him into a "prisoner of war" who is to be confined for the duration of an endless war (though this would contradict treating him as a non-POW)?

I think we need to start going back in history when nations could not keep POWs for extended periods of time such as the French and Indian War. If I recall correctly, only those who were thought likely to return to combat were detained and the rest were paroled on an assurance they would not return to the war.

In a terrorist war, al Qaeda will not provide that assurance so we are going to have to rely upon other nation states to do so. In Khadr's case, we could probably send him to Canada with an assurance that he would not be permitted to go back to Pakistan and then parts unknown.

As for the delay in trying Khadr, stop tying up the military tribunals in court. Even the Obama Administration and its group of liberal legal experts in Justice realized that you cannot expect to gather evidence from an overseas twilight battlefield which will be commonly admissible under civilian criminal evidence rules in federal court. Let's get the tribunals going en masse and resolve these war crimes cases. Then we can reasonably determine if any further POWs should be released.

Our yodeler refers to:

"In a terrorist war, ...."

Over the years, laws of war have developed, yes, even back in the days of the French and Indian War(s). But do these laws apply to terrorists, such as Al Queda, acting independently of a nation state, e.g., a criminal?

Justifying delays in trying such as Khadr because "you cannot expect to gather evidence from an overseas twilight battlefield which will be commonly admissible under civilian criminal evidence rules in federal court" imposes greater burdens upon such as Khadr to defend himself. Or doesn't it matter? For terrorists, is there a presumption of guilt? The founding fathers may not have had terrorists in mind with their speedy trial principle but perhaps such borders on an unalienable right.

Under the Bush Administration, the Department of Defense had a nice line in ironic titles and perhaps none more so than ”Camp Justice” for the buildings housing the travesty of justice being enacted at Guantanamo Bay.

It should not be forgotten that the whole purpose of establishing a prison camp at Guantanamo Bay was to profit from what was then thought to be a legal ”black hole” in the habeas corpus jurisdiction of the US Courts. Nor should we overlook the fact that the “black hole” was part of a programme involving the unlawful abduction and kidnapping (euphemism = ”extraordinary rendition”) of alleged terrorists and their subsequent interrogation by means of torture or inhuman and degrading treatment of detainees. It is ironic that the UK Government is defending claims for damages for the alleged complicity of UK intelligence officials in such crimes and a number of those same officials are the subject of criminal investigation while the principal US malefactors have thus far by and large enjoyed immunity from either criminal or civil proceedings.

Wars take place between sovereign states. Generally, the Courts of a belligerent will not adjudicate the question whether the war is lawful or not as a matter of international law. They will recognise that the invasions of Afghanistan and Iraq were indeed wars. The USA is no longer at war with Afghanistan. Insofar as Khadr was a combatant, as Howard Gilbert observes, there is a proper issue of “combatant immunity” and a further issue as to whether Khadr should now be released now the war is over.

The concept of the Bush “Global War on Terrorism” (“GWOT”) on the other hand is a legal nonsense insofar as a state of war cannot exist with a non-sovereign entity. Terrorists belong in the ordinary criminal courts of the state with jurisdiction to try their criminal acts.

Therefore the first triage has to be between those physically detained on the battlefield in Afghanistan or Iraq and those detained elsewhere. In this connection it is noteworthy that the UK is refusing to extradite terrorist suspects to the USA unless there is first in place an undertaking from the USA that they will be tried only in the ordinary courts and not be the subject of any designation as an “enemy combatant”. That may say something about the way our courts regard the military commission process.

Perhaps contrary to most, I do not have rooted objections to the Defendant in this case being tried in an adult court, the court ought to capable of making the appropriate adjustments to take account of the fact that he was a juvenile at the relevant time. One decision of the military judge has made it clear that the Defendant’s age at the time is relevant to the issue of intent.

Nor do I object to the Defendant being tried before a military jury for an offence properly triable under the laws of war. I believe a US military jury is as capable as any other of delivering a true verdict and to the extent it has combat experience, perhaps more so. Further, I believe that the JAG lawyers assigned to the Defendant will act honourably and fearlessly. That has already been amply demonstrated.

My objections are to (i) the trial taking place at all in Guantanamo Bay, out of sight and out of mind and largely “under the radar” of public scrutiny and (ii) the flawed procedure of the Military Commission process.

It says much that the former Chief Prosecutor Colonel Davis resigned his commission over concerns that the commission process was unfair, that Lt Colonel Vandeveld did likewise, and that Susan Crawford, then the official in charge of the whole process also conceded there had been abuses amounting to torture when she decided not to prefer charges against Al Quatani.

Regrettably it does not exactly inspire confidence that the military judge in the case, Colonel Patrick J. Parrish, appears to be the only one of a number of judges at Camp “Justice” who has declined to release his military biography to the press.

It says much more that the Court has ruled confessions admissible – see Omar Khadr’s trial has been tainted by coercion.

This is a trial which should not have proceeded and the international reputation of the United States will only be damaged as it continues.

It is my understanding that the Administration would have preferred some deal with Canada only there is a glitch - the present government of Canada is in the hands of conservatives who don't want to abide by the judicial rulings in Canada that the government has violated the Defendant's rights.


I offered the French and Indian War as an example of the concept of parole of POWs. If we applied the law of war from that time to terrorists, then a military commander on the battlefield would have made a summary determination about whether Khadr was a lawful combatant or innocent civilian and executed him if the answer was no.

I never claimed that evidence gathering delayed Khadr's trial. Rather, the attempts by the self appointed defense counsel for the prisoners have delayed the military tribunals for years trying to get foreign war crimes trials to be tried in civilian courts for the first time in American history.

I think the "out of sight" issue addressed by Mourad is one reason why even changing little other than the locale of Gitmo (e.g., plans by Obama to transfer some to a federal facility in Illinois) would be an improvement, small as it might be without much more.

Mostly off topic, the secrecy calls to mind this essay.

Shag: I note you picked up on dear Bart’s phrase:

”….you cannot expect to gather evidence from an overseas twilight battlefield which will be commonly admissible under civilian criminal evidence rules in federal court.”

Lets refresh our memories of the evidence which has been given at Camp “Justice” from two reports:-
Khadr first interrogated on stretcher after major surgery
Khadr, left hooded, chained in cage after capture, prosecution admits :-

“Khadr was 16 years old at the time and a ”slight, fresh-faced, teen, who had survived multiple gunshots wounds and several major surgeries”... As he was still sedated, lying on a stretcher after major surgery for multiple bullet wounds, Omar Khadr’s first interrogation at Bagram prison was conducted by Sergeant Joshua Claus, later convicted of detainee abuse and assault.

That interrogator was among a group linked to the death of another Bagram detainee who was beaten so severely his legs were described as “pulpified” in the autopsy report. Sgt. Claus pleaded guilty at his 2005 court martial and was sentenced to five months in prison.

The medic knew Khadr because he "...changed the dressings on Mr. Khadr’s multiple bullet wounds twice daily and treated his shrapnel-infested eyes that left him nearly blind" and yet he found him ”shackled, hooded and with his hands chained head-high in the phone-booth-sized prison cage.”

Sort of gives a whole new meaning to the dear Bart’s euphemism ”gather evidence” doesn’t it?

Or perhaps in Colorado they find it quite normal that a 16 year old juvenile accused who is so soon out of major surgery that he requires his wounds dressed twice daily should be kept shackled and hooded and with his arms chained above his head in phone-box sized cage.

This was on Bagram Air Force Base, a US government facility and the interrogators were members of the US Armed Forces.

Perhaps, Joe, one can understand why the Department of Defense was not over-keen to have all this evidence given in an American courtroom, perhaps on TV.

People might ask questions.

Questions like why has everyone from the Commanding Officer of the Base down not been court martialled? Perhaps because the “gentlemen” concerned might have taken the well worn “Nuremberg Plea”:

”I was only following orders”.


The defense will have plenty of opportunity to cross examine the alleged confession.

As to Kahdr's treatment, he is very fortunate indeed the SF decided to capture him, save his life and restore his eyesight. They could very well had declined to capture him and let him bleed out at the house where he murdered the SF trooper.

The CIA and military had no obligation to and indeed would have been derelict in its duty if it delayed interrogation of Khadr until several weeks later when he was fully healed. There is no stretcher exception for military interrogations.

It will be up to the military jury to determine whether Khadr was telling the truth when he was interrogated.

Dear Bart uses the suffix “Esq” on his professional web site which I take to mean that he is a “gentleman” by virtue of his admission to the bar.

From previous posts of his, I understand that at some time Bart was a commissioned officer in the US Army and therefore a “gentleman” by virtue of his commission.

By virtue of his commission Bart should have good familiarity with Field Manual 27-10 – The Law of Land Warfare and in particular with Chapter 3 thereof.

As a lawyer Bart should be able quickly to point us to any provisions thereof which authorised the detention and interrogation of any prisoner in the condition of Kadr and on a US military facility in the manner described in the evidence given at Camp “Justice”.

If he cannot, perhaps he should behave as if he were an officer and gentleman and concede that, on the evidence given, the treatment afforded Khadr was contrary to law.

I took a look at the linked documents and it is my interpretation that the rules applicable to Khadr are found not in Chapter 3 but in Chapter 5. Chapter 3 is inapplicable because Khadr is not entitled to POW status as he was, among other things, not in uniform while he engaged in hostilities.

Because Khadr is not a POW, his rights are provided by Chapter 6 section VIII which governs the treatment of local "protected persons" by an occupying power. Under Chapter 5 section 248 (derogations from protected person status) Khadr would be entitled to those protections only insofar as it was not prejudicial to the security of the US and occupied Afghanistan, because he is definitely suspected of engaging in hostilities.

If, as Bart suggested, refraining from interrogating Khadr after he had returned to some semblance of normal health would have been prejudicial to the security of the US its occupied territory, it appears the above provision would apply to the stretcher interrogation.

Nevertheless, under Section 248 Khadr is entitled to be treated with humanity and to a fair and speedy trial.

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I note what you say. The USA invaded Afghanistan. I would therefore argue that Khadr was protected under paragraph 61A(6):-

“Inhabitants of a nonoccupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading force, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.”

But as you rightly say, there are other definitions which could also apply.

Further, the acts complained of took place on a US base and were perpetrated by US citizens in the service of the United States.

I do not know about US military law, but in the case of the UK, all offences against the person which take place on a UK base by or against any civilian are cognisable by a court-martial. I would be surprised if there was not some equivalent US provision. If there is not then there bloody well ought to be.

The test is really very simple. Kadr was a prisoner in US custody. His treatment should not essentially differ from that of a US prisoner in US police custody (which, of course, ought to be human rights compliant).

Indeed as recent UK decisions show, the provisions of the European Convention on Human Rights apply to prisoners in UK custody overseas and in relation to Iraq there have been a number of cases where the Crown (which is vicariously liable for the wrongful acts of its servants) has had to pay substantial compensation to Iraqi victims of abuse in UK military custody and there are some 500 Iraq/Afghanistan cases in the pipeline.

61A6 could apply but I think it possible that it might not because Afghanistan was invaded on October 7 of 2001, US troops were in the area where Khadr was captured as early as February of 2002, and his capture was five months after that in July of 2002. Five months or longer seems sufficient time to me to organize and begin to use insignia, etc, such that it takes Khadr and his associates actions out of a safe harbor for spontaneous resistance. I would interpret 61A6 that way because of the language used, such as "on the approach of the enemy" and "spontaneous".

That is assuming, counter-intuitively in my opinion, that they had any such intent to respect the laws of war. In saying this I do not meant to express an opinion on whether or not they were morally obligated to follow the laws of war.


You make a very good point about the right to a fair and speedy trial.

Omar Khadr was taken into US Custody in July 2002 and was first detained at Bagram and then transferred to Guantanamo in October 2002. He was then aged 15. He was held for over two years before being given access to a lawyer. Charges were not preferred against him until 2007.

Given the well documented barbarity of the US criminal justice system generally, I would not expect that the sort of protections the generality of western democracies apply to juveniles would necessarily apply to juveniles in US Federal custody. But surely there must be some minimal protections.

Further, in 2002, the U.S. ratified the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, which prohibits the use of children under 18 in armed conflict and requires signatories to criminalize such conduct and rehabilitate former child soldiers as well as provide "all appropriate assistance for their physical and psychological recovery and their social reintegration."

I do not see how the USA can claim that it has honoured its treaty obligations under this Convention in the case of Khadr or, for that matter, in relation to the Convention against Torture and Inhuman or Degrading Treatment.

It is unfortunate that the US has not yet abolished the pernicious doctrine of sovereign immunity in tort claims.

I simply cannot envisage any circumstances at all where a juvenile taken into the custody of UK forces in Afganistan/Iraq in 2002 could face charges at all as late as 2007 or where the evidence confessions tainted by abusive interrogations or even just prolonged detention without access to a court would be admissible against him.

The case would have been purely and simply chucked out on day 1 as an abuse of the process of the Court.

A claim for damages against the Crown would then have followed as night follows day and it would have succeeded. It wound not have been astronomical - but £3-6 millions would be a ballpark.

From what I have seen of plea bargain papers in the Guantanamo cases, this is essentially what it is all about – seeking waivers of damages claims. For me, to hold criminal proceedings over a defendant in terrorem to obtain a waiver of future civil claims is also an abuse.

I suggest there is a further twist to this case. See Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44

The Canadian Supreme Court has already held that Khadr’s rights were violated by the participation of Canadian security officials in abusive interrogations at Guantanamo Bay.

Then the Canadian sought to persuade the US government not to use the information supplied by the Canadians in the forthcoming trial U.S. rejects Ottawa’s plea to suppress Khadr interrogation by CSIS agents .

Interestingly, this is precisely the opposite approach the US Government took in the UK “complicity in torture” case where the UK was pressured to suppress US papers.

Canada and the UK have very similar jurisprudence and routinely rely on each others’ decisions as persuasive authority. There is every prospect of Khadr succeeding in a damages claim against Canada for its complicity in the violation of his rights by US interrogators.

Perhaps that is why Canada is the sole western democracy which has not pressured the USA to repatriate its nationals from Guantanamo. Everyone assumes that it because PM Harper is very much a "neoconservative loon" but I wonder if that is the only reason.


I doubt that the Canadian government is declining to press for Khadr's extradition simply to avoid paying him a settlement. According to Wikipedia, Khadr is the only Westerner left in Guantanamo and is unique among Canadian citizens in that his government has not sought his repatriation. Khadr's father was an intimate of Bin Laden and was suspected of being an Al Quaeda financier. Khadr's father was killed in a Pakistani or Pakistani-American attack, where his brother was also paralyzed. Khadr himself was held for for more than seven years by the US military and tortured. He is educated and transcultural and multilingual. He is strongly suspected of bearing arms against Western forces. The Canadian and American governments probably think he will do so again, and as something of a celebrity, if released. They want to gain a conviction and a long sentence instead of releasing him because of procedural and evidentiary defects in their murder case against him. Given this administration's use of targeted killings, granting a dismissal in the comission process regardless of the merits and based on lack of admissible evidence or speedy trial violation could lead to the perverse result of releasing Khadr from captivity because his guilt cannot be proved legally, only to assassinate him shortly thereafter on flimsier, secret, and related grounds. If he is acquitted, I suspect he will continue to be held on the grounds that the US and Canada cannot work out a parole agreement, and will be released only if it is deemed sufficiently safe to do so.


Khadr is indeed unique. He is the only national of any western country (not just Canada) whose government has not sought his repatriation. He is also the only detainee where the Courts of his own country have already held (right up to the Supreme Court) that agents of his own government violated his human rights by complicity in his unlawful interrogations. Given the standoff between the Canadian Courts and the Canadian government, were Khadr to be returned to Canada, I doubt there is anything the Canadian government could do to restrict Kadr’s liberty.

Now, if one assumes, as I am prepared to, that by reason of his upbringing, by reason of indoctrination, by reason of what happened to his family, Khadr is a committed salafist, can one devise a better way of reinforcing his beliefs than by (i) detaining him in inhumane conditions; (ii) subjecting him to inhuman and degrading treatment within the meaning of the Torture Convention; and (iv) detaining him in the company of a large number of other salafists?

I started researching the problem of salafist terrorism well before 9-11, to be precise, at the time when the Front Islamique du Salut very nearly succeeded in taking over Algeria (a country once predisposed in favour of the USA because JFK had supported the Algerian Revolution against France). I found that the methods used to indoctrinate those who had “joined the caravan” to the proxy war against the Soviets had been subject to precisely the same techniques as are used by other whacky religious cults to obtain their devotees, e.g. communal living, sleep deprivation, restricted diet, hard physical training, a dress code and above all, teaching that the way to paradise was via martyrdom.

A group of USAF psychologists, examined all this and concluded that the antidote was to apply the techniques which are currently used in the USA to “deprogram” those who get caught up in other religious cults. There was once a paper on the subject available on the internet but it seems to have disappeared – perhaps unsurprisingly, because the regime at Guantanamo is almost precisely the opposite of the recommended methods.

You are quite right to assume that if Khadr is released, he will become a celebrity. However, you would also be right to assume that if he is convicted and imprisoned by a process which is seen to be unfair he will become a further example to be cited in support of the salafist proposition that the government of the USA is inherently evil and the enemy of Islam. Just as the mosque controversy is being cited all around the Muslim world to the same effect. Just as the use of drones in Pakistan is radicalising thousands.

I am afraid that no amount of pious White House pronouncements during Ramadan will counteract that.

What if a person convicted of serious crimes is determined after many years of incarceration to be clearly innocent of such crimes and he had developed during such incarceration a sense of hatred against the society that had wrongfully (in the sense that he was actually innocent) incarcerated him such that he is deemed by the authorities to be a threat to society? Should the government be justified in keeping him restrained of his liberty? Does justice mean anything any more?

For my part, I'm wondering what it means when Neil says Kadr "is educated and transcultural". What does this "educated" mean? Engineering degree from Capella? Or did he graduate from a Canadian school at 13?

It would appear on the surface that his "education" consists of having spent a third of his life in detention, with the occasional torture (or at least mistreatment that would, if practiced by a private citizen, get that citizen perhaps half the prison time that Khadr has served -- if you want irony, consider that.)

As for "transcultural", unless they have a lot of cultural enrichment at Gitmo, I'm guessing the only "culture" he's been exposed to is that of brutality and oppression.


Further, in 2002, the U.S. ratified the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, which prohibits the use of children under 18 in armed conflict and requires signatories to criminalize such conduct and rehabilitate former child soldiers as well as provide "all appropriate assistance for their physical and psychological recovery and their social reintegration."

The Convention does not state that minors cannot be detained as combatants nor does it excuse their war crimes.

I don’t know how either the Feds or the States deal with wrongful convictions. In the UK there is a statutory compensation scheme. It is not particularly generous: £1m for 10 years+ served and 1.5 times the mean national average earnings over the time served. At least that’s a improvement on nothing more than a piece of parchment (paper nowadays) granting a Pardon.

Most long term prisoners are only too grateful to be out but they generally require resettlement care. I suppose there could be cases where a prisoner has developed such severe mental health problems in prison as to justify continued detention in hospital under the Mental Heath Acts despite a pardon.

There is a potential problem on the release of any prisoner. We have just had a case in point The Strange Life and Death of Raoul Moat.

Fortunately, such cases are very rare. Absent known psychosis, I do not see how continued detention could be justified.

See Wikipedia here which has an account of Khadr’s early life.

It is possible that what Wikipedia describes as a “private school” was a Madrassa. It is important to know the significance of Madrassas in the education system of the Indian sub-continent. See Madrassa Education in Pakistan and Bangladesh . Note in particular this passage:-

” Most of the madrassas associated with militancy and terrorism after the mid-1990s were established in the 1980s. But what were established for the particular purpose of fighting against the Soviets were in fact military training camps where some religious education was also imparted, obviously to strengthen the spirit of jihad against the Soviets. The point is that they were not the institutions originally conceived as madrassas that later turned into terrorist training camps; they were, from their very inception, conceived as militant training camps and were given a cover of a madrassa to Islamically legitimize their operations and to solicit funds from all over the Muslim world. The story of these madrassas is thus integrally linked with the story of Afghan jihad of the 1980s and of the Cold War that created the political conditions for this jihad. Therefore, the answers to the questions being asked these days in the media and in scholarly and policy circles—who established these madrassas? why they were created? who provided them generously with funds? and more importantly, who revived the so far dormant tradition of jihad as an armed struggle against the infidels?—lie not only in Kabul or Islamabad or Peshawar or Riyadh, but also in Langley, VA.”

The point is that the USA, the West in general, and several Muslim states, are now reaping the whirlwind of what the Reagan Administration sowed to fight a proxy war with the Soviets in Afghanistan.

I do not know the extent to which that will come out at Omar Khadr’s hearing (I shan’t dignify the process with the word “trial”) but I certainly think it is relevant.

Bart wrote:-

” The Convention does not state that minors cannot be detained as combatants nor does it excuse their war crimes.”

Among all his other delusions, Bart seems to be under the misapprehension that contributors to this thread cannot read. We all have access to the text of the Convention and if we can read Bart’s posts we can also read what the Convention does say.

What the Convention does impose on the USA is a duty to “… rehabilitate former child soldiers as well as provide "all appropriate assistance for their physical and psychological recovery and their social reintegration."

Perhaps dear Bart can explain to us ordinary people who do not inhabit cloud-cuckoo-land the peculiar thought process by which he concludes that inhuman and degrading treatment in breach of the Torture Convention and 8 years’ detention in inhumane conditions contributes to the “psychological recovery and social reintegration” of this particular young person.


Which part of former child soldiers escaped you?

The tribunal has already disposed of the Khadr's motion to dismiss attempting to transform aspirational language about rehabilitation of former child soldiers into a get out jail free card for captured minor combatants who committed war crimes.

This argument is even weaker than the claim that unlawful enemy combatants are civilian non-combatants under the GCs.

Brian de Palma- the kid was a "war criminal" you say (assuming of course he is guilty of killing the US soldier). This because he was not wearing a uniform in accordance with the law of war to which the US is a signatory. Another example of how you cannot export western treaties/law/democracy into the Middle East at the barrel of a gun. I'm not so sure the 15-year-old knew what the "law of war" was at the time but he surely knew who belonged in Afghanistan and who didn't.

Blankshot, are you seriously going to try to claim that a captured child soldier isn't a former child soldier?


The default rule in war is that you kill the enemy at will. The law of war is meant to impose limits on the default rule of war. In short, the law of war provides Khadr with his only protections from being killed.

al Qaeda's refusal to follow and Khadr's ignorance of the laws of war is no defense to Khadr's alleged war crimes.

If Khadr's position is that the law of war does not apply because of his ignorance of the same, then I suppose we could execute him now and dispense with the trial.


Prisoners of war are current enemy or they could not be held. They become former enemy when we either parole them or the war ends.

Which part of former child soldiers escaped you?

Actually, the protocol doesn't ever say "former." It says quite clearly:

States Parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.

The questions become:
1. Is Khadr's continued detainment (5 years after he was picked up) still necessary for national security? If not, he should have all the rights of a protected person under the Geneva Conventions, as ordered by FM 27-10.

2. Does Khadr's physical or mental condition warrant rehabilitation and reintegration into society?

If we argue that Khadr is so violent that he constitutes a threat to society, we can attempt to rationalize the legal black hole route that allows us to keep him indefinitely. But it seems that if we acknowledge that his mental state is a part of that decision, we find ourselves obliged to rehabilitate and reintegrate him into society under the Convention of the Rights of the Child.

It's definitely an interesting conundrum that Mourad has pointed out.

Bart wrote:-

” Mourad: Which part of former child soldiers escaped you?”

Answer: ”No part. By definition a child soldier who is apprehended, disarmed and taken into custody is a ”former” child soldier.. The Convention obligation comes into effect from the moment of apprehension.

Unless, of course, dear Bart considers that a child shackled above his head to the bars of his cage is a combatant of some description. Funny place cloud-cuckoo-land.

I note also that Bart does not answer the question how interrogation in contravention of the Torture Convention contributes to the rehabilitation and reintegration of a child.

I said above that I have no rooted objection to a properly constituted adult court dealing with a young person and I have no objection either to a properly constituted court martial dealing with a young person. In my personal experience, a court martial, particularly one composed of officers who have “been there and done that” (and who are likely to have young children of their own) is usually better placed to approach issues with understanding than either civilians or ”desk wallahs”.

I find it interesting that in the Khadr military juror selection process the prosecutor was moved to use up his peremptory challenge to remove from the panel an Army Lt-Colonel who said the Guantanamo Bay had "eroded" the country's moral authority. “While he believes that the U.S. should become should be a beacon for liberty and moral authority,” the Military Judge , Col. Parrish noted, “that is not a basis for a challenge for cause.” A U.S. Navy captain who said Guantanamo Bay has been an international black eye for the country was challenged for cause (which failed) and was seated on the jury.

I suspect that these officers, like Khadr's Counsel, who is regrettably quite ill, will have far more understanding of the realities than poor Bart with all his prejudices could ever have.

What I, and I hope every self-respecting lawyer, find objectionable is a kangaroo set up where the procedural rules have been mucked about with for the purpose of obtaining convictions in breach of fundamental principle. Unfortunately that’s what the so-called Military Commissions remain.

PS - Poor Bart also refers to the term ” unlawful enemy combatants” which, as he should well know once appeared as a term of art in the definitions Section of the Military Commissions Act of 2006. Unfortunately, as Bart should recall, the Military Commissions Act 2009 removed that definition and replaced it with that of ‘unprivileged enemy belligerent’.

Neither definition has any significance in the international law of war. What both definitions concern is to define who is to be subjected to the kangaroo process the Bush Administration established and the Obama administration has not had either the guts or the foresight to consign to the very large dustbin for Bush Administration mistakes.

PMS_CC said...

BD: Which part of former child soldiers escaped you?

Actually, the protocol doesn't ever say "former." It says quite clearly:

States Parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service.

A distinction without a difference.

How precisely is the United States supposed to compel al Qaeda to release Khadr from service?

Khadr will not admit to being in the service of al Qaeda nevertheless pledging to no longer fight for al Qaeda.

Until the enemy is defeated or its captures at minimum pledge never to fight again and are paroled, there is no demobilization.

Mourad said...

Bart wrote:-”Mourad: Which part of former child soldiers escaped you?”

Answer: ”No part. By definition a child soldier who is apprehended, disarmed and taken into custody is a ”former” child soldier..

Nonsense. Under your reasoning, all POWs would be former soldiers and as such can no longer be held as prisoners of war.

Reviewing Bart’s successive comments, I felt there was something I was missing. Why all the venom towards person captured as a 15 year old juvenile?

Then the penny dropped. Poor Bart’s military service was as a platoon leader in the US Army. Worse, he even refers to that fact on his professional web site. If he'd been "Colonel De Palma" (perish the thought) it might have been bad taste but understandable, but to confess to only having been the lowest form of officer life....I do wonder.

Readers may now care to look again at the Wikipedia account of Omar Khadr’s apprehension (link above):-

”Khadr was given on-site medical attention, during which time he repeatedly asked the medics to kill him, surprising them with his English. An officer present later recorded in his diary that he was about to tell his Private Second Class to kill the wounded Khadr, when Delta Force soldiers ordered them not to harm the prisoner”

See also this Toronto Star story: Captured Khadr nearly executed: documents.

That’s it! Some platoon leader was prevented by real soldiers from summarily executing an injured juvenile Khadr and former platoon leader Bart wants to try to make up for their humanity by ensuring that maximum harm is done to young Khadr. How sick can one get?

I wonder if this is some platoon leader variant of Münchausen syndrome by proxy.

I’m reminded of a conversation I once had in the Sergeants’ mess, when a mate told me over a pint or five of Boddington’s that he preferred his platoon leaders to be total shits. ”At least you know where you stand”, he explained, and if they stink too much you can always bury them.

He was not, of course, referring to the one time US Army tradition of “fragging” officers which I understand had rather gone out of fashion by the time Bart was in Iraq for the fag end of Desert Storm. I note however, that this particular US Army tradition has not quite gone. There was an unusual recorded case from the Bush “Enterprise of Iraq” adventure – see After Guilty Plea Offer, G.I. Cleared of Iraq Death.

Perhaps we should encourage dear Bart to take up some kind of training role with the Afghan National Army. I'm told they're none too keen on officers either, I'm told.

I'm sure Screwtape could find another Wormwood for this blog.



You have perhaps set a record here for the strangest string of ad hominems yet - lieutenants as the lowest form of officer life, officers as war criminals, officers as "total shits," the joys of fragging officers and, best yet, the finale of Screwtape the corruptor of souls.

We seem to have arrived at the usual coda of weak legal arguments.

How precisely is the United States supposed to compel al Qaeda to release Khadr from service?

No, there is a distinction, but I don't think you're recognizing it.

The way I understood it, Guantanamo Bay is under US jurisdiction, as are all the people who occupy that place. Once Khadr is in Guantanamo, he is no longer under Al Qaeda's jurisdiction (no doubt one could argue that Bagram would qualify, too). He is under US jurisdiction, which means that under the convention cited, we bear the burden of demobilizing him (we've certainly done that part, haven't we?) and ensuring that he's rehabilitated.

So exactly what is the war crime here? Either this person is a combatant or not. And that is explicitly supposed to be adjudicated in a court prior to any war crimes proceeding under Article 45, 1st Additional Protocol. At times, Mr. de Palma is asserting that Omar Khadr is guilty of the war crime of murder, at times that he is a combatant. If there is uncertainty over Omar Khadr's status, then it's a violation of international law to be putting him on trial for war crimes in the first place. And in anticipation of the response, the United States stated in 1987 that it regarded Article 45 as customary IHL in its entirety (the U.S. actually wrote it).

This yodelism:

"We seem to have arrived at the usual coda of weak legal arguments."

is autobiographically confessional of our Blankster's "expertise."

By the Bybee, how many :::chuckles::: can a chucklehead :::chuckle::: if a chucklehead could :::chuckle:::?

Bart writes:-


Actually, the allegations relating to the circumstances of Omar Khadr’s detention come, not from me, but from Lieutenant Commander William C. Kuebler, Judge Advocate General’s Corps, United States Navy whose qualifications and experience are set out in this Affidavit filed in the Supreme Court of Canada and in relation to whom some details of the command pressure he came under for carrying out his duty may be found in in his Wikipedia entry. See also this NYT profile: An Unlikely Antagonist in the Detainees’ Corner. See also this issue of the McGill University Reporter Guantamo Bay: Justice Denied in which Cdr Kuebler is reported thus:-

”It has seen people detained without charge for years and taken out of the usual criminal process. Because of the questionable evidence gathering methods, says Kuebler, "We can't prosecute them in ordinary criminal courts, so we had to create this new special trial process called the Military Commissions."

His conclusion as to why these Commissions were established is succinct and damning: "It's real simple. It's to launder evidence and convict people using evidence derived through coercion, in some cases torture, that could not support the basis for a criminal conviction in any US court or any court in the civilized world. That's what Military Commissions are about. And that is the legal framework of the U.S. War on Terror."

A sufficient number of JAG officers, some of many years’ standing, have written and spoken in similar vein – many at great personal cost – to put Cdr Kuebler’s conclusions beyond doubt.

That, dear readers, is why British Intelligence Officers are under criminal investigation for being accessories to torture and why the UK government is offering substantial compensation to victims in an effort to buy off the civil suits now under way. That is why the Supreme Court of Canada ruled as it did in Omar Khadr case.

That is why it is regrettable that the Obama Administration has not had the courage of its professed convictions, a decision which is inimical both to the reputation of the United States and counterproductive in terms of the struggle against terrorism.

And that is also why dear Bart joins the ranks of Bush-Cheney-Rumsfeld-Addingron-Yoo et al as not merely a ”shit” of the first order but in reality something far worse: an apologist for torture.

One of the cardinal rules in civil litigation is that the lawyer should warn his client in express and imperative terms of the perils and stupidity of tampering with the discovery process:

”Search for and secure everything. Don’t even think about destroying or tampering with the potential evidence. Be sure your sins will find you out and the consequences can be dire”

But the lessons of Watergate are never learned which makes this AP report of interest AP Exclusive: Under desk CIA found video of 9-11 plotter being interrogated in secret prison.

In the Binyan Mohamed claim in our civil courts, it is his contention that he also was taken to Morocco and tortured there. See also Opinion of US District Judge Kessler starting at about p 47.

So the black site in Morocco where the US tortured by proxy is identified. How embarassing for Morocco, long a firm US ally, one of the few in the Arab world, albeit one which had a really nasty security service under Hassan II.

Slowly, far too slowly, the facts about the CIA “Greystone” programme are coming out.

Does no-one in the Administration understand that while this may be “under the radar” for the great American public, that is not the case overseas? That it is viewed by salafist terrorism recruiters as something akin to "manna from heaven"? That it is viewed by allies as putting in question intelligence, military and judicial co-operation?

PMS_CC said...

BD: How precisely is the United States supposed to compel al Qaeda to release Khadr from service?

The way I understood it, Guantanamo Bay is under US jurisdiction, as are all the people who occupy that place. Once Khadr is in Guantanamo, he is no longer under Al Qaeda's jurisdiction...

My question assumes that we have jurisdiction over our POWs and then asks how we are supposed to carry out the task of releasing Khadr from the service of al Qaeda when al Qaeda will not release him and Khadr will not even admit to the service nevertheless repudiate it.

ondelette said...

So exactly what is the war crime here?

During a war, lawful combatants have license to kill other combatants.

An unlawful combatant does not have license to kill anyone and can be guilty of murder if he or she intentionally does so.

Okay, but during war, there are only two classes of persons: combatants and civilians. And the aforementioned Article 45 demands that before any belligerent nation charges a person alleged to be from their adversary with a war crime, they must bring that person into one of those "regularly constituted courts, affording all the judicial guarantees which are recognized as indispensable by civilized peoples" and re-evaluate whether what that person's status under 3rd convention Article 5 is. No one has done that, which is why you are making noises about unlawful combatants, and "murder". Murder as a grave breach isn't engaging in combat as an illegitimate belligerent. That's just ordinary domestic murder, prosecutable under Afghan law. The grave breach murder (the war crime) is the kind they did to someone like, say, Diliwar, or the kind they did in Nisoor Square, or the kind the Taliban did in Meena Bazar. You know, killing vulnerable and protected persons as combatants.

ondelette said...

Okay, but during war, there are only two classes of persons: combatants and civilians.

No, under the GCs, there are privileged combatants, unprivileged combatants and non-combatant civilians.

None of this is new. After WWII, the parties to the GCs spent a great deal of time setting out the rules for extending lawful combatant status to unconventional forces like partisans. In the 70s, there was a concerted effort to amend the GCs to extend privileges to terrorists, which was rejected. Currently, advocates for extending privileges to terrorists simply pretend there is no such category as unlawful combatant and they are instead civilians.

I think Bart's point is that Khadr must stop being a bad guy before we have the obligation to rehabilitate him. When you think about it, it's an argument that not just anyone could come up with.


“The way I understood it, Guantanamo Bay is under US jurisdiction, as are all the people who occupy that place. Once Khadr is in Guantanamo, he is no longer under Al Qaeda's jurisdiction...”

Sorry. Al Qaeda is not a sovereign state. It has no sovereignty and no jurisdiction.

That is what makes poor Bart’s premise: “…how we are supposed to carry out the task of releasing Khadr from the service of al Qaeda when al Qaeda will not release him and Khadr will not even admit to the service nevertheless (sic) repudiate it?” such arrant nonsense.

Poor Bart is so much imbued with fascism that he can only think of Al Quaida in terms of a corporation with some kind of corporate personality or as a membership organisation with membership rolls, party cards and the like. That’s nonsense.

Each band of salafists has its “emir” and there are relationships between the various emirs some vertical, some horizontal and some ad hoc for a particular purpose. These links are ever shifting. For example, a band of salafists in Algeria called the ”Groupe Salafiste De Preche et de Combat” now call themselves ”Al Quaida in the Arab Maghreb”. It can be thought of as a little like the Mafia with the various bosses of families sometimes in alliance and sometimes in dispute war. What is shared is an ideology.

So in the case of Al Khadr he may well have had and indeed still have the ideology but his connections were severed upon capture and the thing to have done at that point was to endeavour to deprogram him, just as with any other cult member.

But the treatment he has received over the last 8 years seems much more likely to have reinforced the ideology. So what was done was actually pretty stupid.

Likewise Bart’s attempt to draw a distinction between “lawful” and “unlawful” combatants is equally nonsensical. Insofar as the USA invaded Afghanistan/Iraq, everyone who resisted the invasion is a combatant and privileged. It does not actually matter whether they are regulars or irregulars.

The first task of an invading force is to establish order and then the rule of law. What can and cannot be done is set out in the law of belligerent occupation. It is perfectly possible to make a good case that the USA never successfully established a proper occupation of Afghanistan.

Insofar as persons have been apprehended elsewhere, they may or not be in lawful custody and they may or may not be amenable to US jurisdiction. What is certain is that the UK will not now surrender anyone if there is a risk they might end up before a kangaroo military commission and if matters get any worse the whole extradition treaty may have to be re-thought since the word of the US Government in our courts has been devalued somewhat of late.

Rejected by whom? The ACs were adopted by 160 countries and went into force. The U.S. agreed to regard almost all articles of the 1st protocol as customary IHL in 1987 (cf. M.Matheson, 1987, Amer University Int'l Journal of Law and Policy, 2(2)-2 pp.416-538, with A. Sofaer (chief and deputy legal advisors to the State Department).

There really are only two classes of persons. What you classify as "unlawful combatants" are civilians. That is why they are not protected from civilian prosecution for murder. But that has nothing to do with being prosecuted for the war crime of murder. As for the debate on non-international conflict, even when they were debating the Stockholm proposal, there was never a third class of people, there were still only civilians and combatants. People may be protected and there are various kinds of protection, but there is no one who is not either a civilian or a combatant.

There are only two types of murder that qualify as a grave breach: murder of a protected civilian -- a civilian, a humanitarian worker or the like, or murder of a sick, wounded or captive or otherwise hors de combat combatant.

That's one of the reasons David Frakt had given for resigning, if you remember, that the MCA was creating a war crime out of the enemy killing our soldiers. That's exactly what Article 45 attempts to prevent, and the U.S. wrote it in reaction to attempts by the North Vietnamese to put American bomber pilots, John McCain in particular, on trial. You can't put the enemy on trial for war crimes for killing your soldiers, especially on the slim excuse that they were out of uniform.

Not saying I agree with it, but isn't the basic idea that Khadr is somehow connected to Al Qaeda, an unprotected lawless group and thus his activities is not protected by combatant immunity? It is like if a member of a criminal gang tossed the grenade. The courts thus far has not granted combat immunity to Al Qaeda. I doubt they will.

As to his treatment, first, no matter what his status was, I'm unsure how it was "humane." Second, even if proper to protect the troops, it very well might not be for the purposes of guilt in a war crime tribunal.

Third, if for the sake of argument he is not a POW, if questioned right away, how was it determined before questioning that he was not a POW? Isn't that the default? Him not having a uniform is not by itself enough to determine that.

I also am curious if the linked discussion on protected status really doesn't apply to him. The "wounded" seem to get special treatment.

I think ondelette might have answered my first question.


So in the case of Al Khadr he may well have had and indeed still have the ideology but his connections were severed upon capture and the thing to have done at that point was to endeavour to deprogram him, just as with any other cult member.

Turn Gitmo into reeducation camp? Do you care to flesh this idea out?

Images of North Korean and Chinese attempts to reeducate our POWs come to mind followed in close order by images of an al Qaeda propaganda bonanza.

What precisely should the US military compel Khadr to believe during this deprogramming process?

What methods are we allowed to use to facilitate this deprogramming?

Should a confession to war crimes and an apology be part of this process?

Do pesky things like a legal defense to war crimes charges interfere with the deprogramming?

Do you see how this can go really wrong?

ondelette said...

Rejected by whom?

The United States refused to become a signatory to the Protocol Additional to the Geneva Conventions 1977.

Common Article III recognizes two classes of combatants by applying a minimum standard of treatment for all captures, but reserving POW privileges for those who meet additional criteria.

Likewise, GC IV assumes that civilians are non-combatants.

Trying to persuade people to embrace Western values and renounce terrorism is equivalent to what the Chinese and North Koreans did to our POWs? What a sick thing to say!

...As Judge Sofaer will explain, the executive branch regards this provision [Article 44] as highly undesirable and potentially dangerous to the civilian population and of course does not recognize it as customary law or deserving of such status. It probably goes without saying that we likewise do not favor the provision of article 1(4) of Protocol I concerning wars of national liberation and do not accept it as customary law.

On the other hand, we do support the principle that, should any doubt arise as to whether a person is entitled to combatant status, he be so treated until his status has been determined by a competent tribunal, as well as the principle that if a person who has fallen into the power of an adversary is not held as a prisoner of war and is to be tried for an offense arising out of the hostilities, he should have the right to assert his entitlement to prisoner-of-war status before a judicial tribunal and to have that question adjudicated. Those principles are found in article 45.
(the above mentioned document, page 426, Michael Matheson, deputy legal adviser to the Secretary of State speaking on behalf of the United States, 1987.

Bart, your characterization of common Article 3 is totally wrong, as it does not make characterizations whatsoever about combatants and civilians. Furthermore, even for the distinction that it does make, that between armed conflicts of non-international character and others, it asks that the belligerent parties quickly negotiate to bring the full conventions into effect as soon as possible (in the last paragraph).

The US has never believed that Khadr is entitled to combatant status. Khadr was not in uniform, did not carry an ID card, and has never claimed combatant status and given his name, rank, and serial number. In all the years his trial has been pending before Commissions, no lawyer representing Khadr has ever asserted that he was a combatant and entitled to POW status.

Of course, combatant status is a defense against all the charges. Should Khadr assert such status, then his Commission can certainly conduct the Article 5 Tribunal function just as happened during the trial of Hamdan before his Military Commission. However, until someone somewhere asserts a belief that Khadr is a combatant, then there is no need for procedures that occur "should any doubt arise as to whether a person is entitled to combatant status". We think he is a civilian, he claims to be a civilian, he lawyer thinks he is a civilian, so where is there any doubt?

If Khadr is a lawful combatant (and I think he has a good argument if he makes the claim) then he is innocent of all charges and entitled to POW status and detention for the duration of the conflict.

If he threw the grenade and was not a lawful combatant, but rather what the ICRC calls a "civilian directly participating in hostilities" or "a member of an armed unit of a non-state party to a non-international conflict engaged in continuous combat function", then he is not entitled to combatant privilege and may be tried for murder.

If he did not throw the grenade, then he was too young to be regarded as a participant in combat and is not only innocent but should be released and rehabilitated.

The trial before the Military Commission is the right forum in which to decide the facts. In their current post-Obama form, they are essentially the same as a Court Martial under the UCMJ except that they exclude rights given to US soldiers under the Constitution (like self-incrimination and the confrontation clause) that are unique to the US domestic justice system and not shared by most countries around the world. Foreigners detained outside the US are not entitled to those particular rights, but this distinction was not maintained in the rules for Court Martial which assumed that defendants would always be US soldiers entitled to all the particular US domestic constitutional privileges. So a version of Court Martial for people not entitled to rights under international law but not under the domestic constitution makes good sense. When Obama rewrote the Commission rules he tried to achieve that, and if he missed that target take it up with him.

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This comment has been removed by the author.

Steve M wrote:-
”Trying to persuade people to embrace Western values and renounce terrorism is equivalent to what the Chinese and North Koreans did to our POWs? What a sick thing to say!”

Just about everything Bart writes is sick or worse. So let’s try to get matters straight.

Much of the ideology of the salafists, can be traced back to a number of sources, including and in particular one Sayyed Qutub. Contrary to popular US belief, and a lot of propaganda, this ideology is profoundly un-Islamic.

For the most part, the potential recruits are ill educated, many barely literate. As with many of the whackier Christian Cults, the indoctrination involves taking passages of scripture (in this case the Holy Quran) and deliberately misinterpreting or redefining A lot of posturing is involved.

I’ll give you a silly example. Islam has always encouraged learning and science. Algebra, Astronomy, Geography, Medicine and Philosophy made huge advances in the Muslim world of the middle ages and sparked the Renaissance in Europe. Now during this month of Ramadan it is important for a Muslim to know the time of first light and the time of sunset for the purpose of observing the fast.

With today’s scientific knowledge, tables are published setting out the data for just about any city in the world (those for London are hanging in my kitchen). But in their ignorance the salafists used to teach young Algerian recruits that it was wrong to use such “western devices” as a watch and astronomical data but to go back to the practice of the time of the Prophet when in the absence of anything more reliable to determine first light, the practice was to hold up a black and white thread and when one could distinguish the black thread from the white thread, that was first light. To reject scientific progress is contrary to the whole ethos of Islam.

Please note that it did not stop the so-called “Emirs” driving around in the best motor cars their supporters could buy for them rather than on donkeys.

Another more sinister Algerian example was that of encouraging young male sympathisers to give up the pretty universal jeans and tee-shirt of the streets in the 70’s and adopt “Islamic” dress often modelled on foreign rather than national usage and to grow full beards and for young females to give up western fashions and wear a full veil. This served a political purpose: one could actually measure the increase in support for the “intégristes” by looking at what people were wearing on the street.

We’ve had the same phenomenon in England and in France and our Mosques and Cultural Associations are doing a good job of outreach to convince the young that Islam is not backward looking and that we should be striving to regain our love for learning and progress just as fast as scholarship can move us.

“Deprogramming” in this sense is exactly the same process as that which needs to be employed to help someone who has been taken over by one of the weirder cults which proliferate even more in the USA than they do here. So, in fact it is the exact reverse of what the Chinese and Koreans sought to do to POWS.

Sadly it is often quite a slow and psychologically painful process - it is often quite hard to come to terms with the fact that one has had one’s mind tampered with by someone one trusted as a “man of God”.

Try to thik about how to bring one of the “Rapture Ready” back to a mainstream Christian view and you’ll get the idea.

Howard Gilbert wrote:-

”The US has never believed that Khadr is entitled to combatant status.”

Whom do you mean by “the US” ?

If you mean the Government of the USA under the direction of feu President G.W. Bush, the official position was that all prisoners in Guantanamo Bay and its official and black prisons elsewhere, whether captured on the battlefield, or criminally kidnapped or abducted elsewhere, had no rights at all. Period. They could be tortured at will. Detained at will. Executed at will. Perhaps one of the then President’s “voices” had told him he was “born again” – as Louis XIV. He even thought he could do it to US Citizens, a worthless piece of parchment more generally known as the US Constitution notwithstanding.

If you mean the Obama Administration, regrettably I do not believe that the Administration has any public belief other than that which is expedient for the moment. I suspect that the President, the Attorney-General and their principal advisers in the OLC may have some principles (which is at least an improvement on the previous Administration) but I also believe that they are perfectly prepared to sacrifice both principle and justice on the twin altars of US public opinion and expediency.

There are signs that the Administration does internally want to do the right thing in accordance with generally accepted human rights standards. But there are some problems. Their instinct, and a correct one, was to make a first separation between those prisoners who could be tried for criminal offences in the ordinary criminal courts. Sadly, in a very substantial number of the cases, there is very good reason to believe that the prospects of successful prosecutions have been impaired by torture and inhuman and degrading treatment contrary to the Torture Convention. What is the administration going to do with those individuals it believes ought to be prosecuted but where it believes there is no reasonable prospect of success by reason of the poisoned chalice of abusive interrogation inherited from the Bush Administration? I do not think the Administration itself yet knows how to resolve this one.

Then there are those convicted by the kangaroo commissions on charges of conspiracy or material support for terrorism. 2 convictions are now on appeal and it is possible that it will be held that the charges are not war crimes at all. That would impact on 9 of the 12 cases presently on the commission hearing list. Then there is the problem of the constitutional prohibition on ex post facto criminalisation.

All the evidence is that the Administration well knows that the commissions are bringing the USA into international disrepute. It is constantly traipsing around Europe and elsewhere with a list of names of people it would like to see resettled. But it is coming up against the ”pottery barn” rule.

As for Omar Khadr see my next post.

Howard Gilbert:-

As it happens, before we get to Omar, we have to look at his brother Abdullah.

The USA has been seeking to extradite Khadr’s brother Abdullah from Canada, but the Toronto Superior Court has just ruled against the USA – see United States of America v. Khadr, 2010 ONSC 4338 Note the summary of findings at para 104 and the conclusions at paras 150-151:-

1. Khadr was captured in Islamabad, Pakistan by the ISI at the behest of the United States, who paid a $500,000 bounty for his arrest.
2. Khadr was initially sought by American officials solely for intelligence purposes and not for criminal prosecution purposes.
3. I am satisfied that Khadr’s detention by the ISI was both arbitrary and illegal, according to the law of Pakistan.
4. During his initial three days of detention, Khadr was mistreated and physically abused, but not on the level of severity he alleges in his affidavit. I am satisfied that the United States intelligence agency did not have actual knowledge that Khadr would be abused when it paid the bounty for his arrest. However, I am equally satisfied this agency ought to have known that there was a credible risk he would be mistreated.
5. Khadr’s rights to consular access without delay were denied by Pakistan. The United States and Pakistan collaborated in this delay in order to facilitate the completion of American intelligence interrogations.
6. I am satisfied for reasons previously stated that the United States intelligence agency pressured the ISI to delay Khadr’s repatriation to Canada for a period of six months. The delay was caused by American dissatisfaction with the decision to return Khadr to Canada without charges being laid. This delay was contrary to Canadian officials’ expectations and wishes that Khadr be repatriated. It was a source of frustration: Canadian officials had fully expected Khadr to be released and had made preparations for his return to Canada.

[150] I recognize that the collection of reliable intelligence is of the highest importance in protecting and securing a nation from the dangers of terrorism. It must also be recognized that there will always be a tension, especially in troubled times, in the balancing of intelligence and security issues with cherished democratic values, such as the rule of law and protection from human rights violations. In civilized democracies, the rule of law must prevail over intelligence objectives. In this case, the sum of the human rights violations suffered by Khadr is both shocking and unjustifiable. Although Khadr may have possessed information of intelligence value, he is still entitled to the safeguards and benefit of the law, and not to arbitrary and illegal detention in a secret detention centre where he was subjected to physical abuse. The United States was the driving force behind Khadr’s fourteen month detention in Pakistan, paying a $500,000 bounty for his apprehension. The United States intelligence agency acted in concert with the ISI to delay consular access by DFAIT to Khadr for three months, contrary to the provisions of the Vienna Convention. The United States, contrary to Canada’s wishes, pressured the ISI to delay Khadr’s repatriation because of its dissatisfaction with Khadr being released without charge, even though there was no admissible evidence upon which to base charges at that time. In my view, given this gross misconduct, there cannot be a clearer case that warrants a stay.
[151] In issuing a stay of proceedings, it is not, in the words of Tobiass, a form of punishment to the requesting state, but rather a specific deterrent; that is, a remedy aimed at preventing similar abuse in the future. It is also aimed at this court dissociating itself with the conduct of the requesting state.

Canadian and UK jurisprudence on this is the same. It’s about time some US cowboys learned to remain within the law of other sovereign states.

Howard Gilbert wrote:-

” The trial before the Military Commission is the right forum in which to decide the facts. In their current post-Obama form, they are essentially the same as a Court Martial under the UCMJ except that they exclude rights given to US soldiers under the Constitution (like self-incrimination and the confrontation clause) that are unique to the US domestic justice system and not shared by most countries around the world. Foreigners detained outside the US are not entitled to those particular rights”

The Military Commissions are most certainly not the same as Courts-Martial – ask any of the Judge Advocates representing the accused. Further, the only unique thing about the US criminal justice system generally is its barbarity as compared to any other western democracy. No western democracy which has signed up to the ECHR makes any distinction in its criminal justice system between citizens and non-citizens. Nor is self-incrimination permitted in any of them. Nor is the death penalty permitted. I’ll pass over considerations like iniquitous plea-bargaining, denial of effective Counsel to the poor, and much else.

So if you think the Military Commissions will pass muster in the civilised world, you’d best retire to cloud-cuckoo-land with dear Bart.

Turning now to Omar Khadr. All the evidence is that the Administration is between a rock and a hard place.

The Administration may want Abdullah very badly and the neocon loon who is presently the Canadian PM may have wanted to help out.

But Canada has human rights guarantees which are up to western standards and a judiciary fully prepared to give effect to them.

There may well be an appeal from the Superior Court, but given the findings of fact, I think that would be throwing good money after bad.

Secondly, the Canadian Government is under pressure from the Courts to do something to remedy what it has held to be the continuing violation of Omar's fundamental rights in which Canada has been complicit with the USA. In both the UK and Canada, it’s not a good idea for minsters to get on the wrong side of Her Majesty’s Judges.

The Administration must also be conscious of the furore the first criminal prosecution of a child solder since WW2 is causing around the world, even if it is below the radar in the USA.

The signs are that the Administration wants a way out preferably by way of a plea bargain. Then the Administration could claim success, transfer him to Canada and expect him to be discretely paroled or released.

But the Canadian PM's hands are tied. Given the Supreme Court findings, Omar will be a free young man the day he arrives on Canadian soil - or if not as soon as a Judge can be found.

So Canada is not helping. Nor is Omar. He wants his day in Court. He thinks it will discredit the USA – and so it will.

The sensible thing would be for the President to abort the prosecution some way and then to pop Omar over the border and thus dump the problem on Canada. But before the mid-terms – no way.

Howard Gilbert writes:

If Khadr is a lawful combatant (and I think he has a good argument if he makes the claim) then he is innocent of all charges and entitled to POW status and detention for the duration of the conflict.

That's nice. The conflict ended as he was being picked up, and he was under 18, so he should have been rehabilitated and released. The conflict the duration of which for which he could be held was the Afghan Civil War which ended on paper on December 5, 2001, and ended de facto shortly thereafter.

Even if he was not entitled to be held as a prisoner of war, the U.S. was not entitled to hold him past the end of that conflict.

Furthermore, children are to be rehabilitated and released, and civilians are to be reviewed every six months with prejudice towards release as soon as they are no longer a security threat, they may not be held, for example, because they continue to provide useful intelligence.

On top of which, there are serious concerns in this case that the only reason why he is going to trial on war crimes allegations is because Canada does not want him repatriated. Under normal rules, since the U.S. keeps insisting he is not a combatant, the U.S. lacks jurisdiction to try him for murder, only Afghanistan and Canada have such jurisdiction.

Furthermore, the issue of determining whether any information was taken from him or anyone else by means that amount to torture needs to be investigated, because a credible allegation has been made, and under the CAT, that means the alleged perpetrator is to be taken into custody and all countries that may have victims of that perpetrator are to be informed so they can compile evidence. Until that is disposed of, the issue is still there.

This whole trial is so riddled with violations of international law on the part of the prosecuting nation, it's hard to believe it can proceed without disposing of those, and hard to believe there is a good reason for keeping the prisoner in custody while they are disposed of. A lot seems to come down to Canada, which is doing exactly what the U.S. Congress did when President Obama announced he wanted to close Guantánamo. But there is no excuse for alleging a war crime, and no excuse for Congress having set up a military commission with such a crime to prosecute.

This comment has been removed by the author.

Ondelette wrote:-

”The conflict the duration of which for which he could be held was the Afghan Civil War which ended on paper on December 5, 2001, and ended de facto shortly thereafter.”

Well, of course, the Bush Administration’s thesis was that the ”the Global War on Terror” aka GWOT™ was against Al Qaeda and which would go on for until Al Qaeda (however defined) was defeated. One can imagine the Cheney-Rumsfeld-Addington Axis dreaming this one up: unlimited war powers for the President – ability to designate anyone, citizen or not, and consign them to the judicial black hole, unlimited and unaccountable surveillance. The Bush Administration’s concept of Freedom™ was of the Orwellian kind – a perpetual state of war.

The problem is that politicians tend to resort to hyperbole to try and make the public believe they are doing something. When a politician refers to some official as his “drugs czar”, he does not mean that the official is to be empowered to suspend the constitution by ukase. Likewise when Tony Blair announced a “war” on street crime, I don’t think he was intending to send in Royal Marine Commandos to mow down juvenile muggers seen snatching mobile phones.

In legal drafting the expression “war” has a precise meaning. A war can only take place between two or more sovereigns. So there cannot be a “war” against Al Qaeda because that entity is not a sovereign (see Vattel). Nor can there be a “war on terror”.

That where the Bush Administration got it wrong. It's an issue the US Courts have also ducked.

100 years ago, if one had a band of criminals whose activities posed a threat to, for example, ”those who pass upon the high seas upon their lawful occasions”, a great power might resort to the use of what was then known as “a punitive expedition”. But under the UN Charter, such activities should now now take place under the authority of UNSC resolutions under Chapter VII of the UN Charter.

As we know, the UNSC offered to authorise Chapter VII authority to intervene in Afghanistan, but the Bush-Cheney-Rumsfeld-Addington Axis was having none of that because of the restrictions the UNSC imposes on what one can do with prisoners.

The invasion of Afghanistan was probably simply unlawful as a matter of international law. ISAF by contrast did have the authority of successive UNSC Resolutions. Now, of course, the unfolding disaster is technically “military assistance in aid of a friendly foreign sovereign”.

“Friendly”?? There has to be a better way - perhaps a revival of the concept of "Trust Territories".

Mourad comments (sarcastically I assume):

"Now, of course, the unfolding disaster is technically 'military assistance in aid of a friendly foreign sovereign'."

So the approach of Bush/Cheney was to invade Afghanistan and in the course of its military activities at some point bring about "elections" of a "friendly foreign sovereign" (headed by Karzai - with friends like this, who needs an enemy?) to provide "military assistance" to. Doesn't that smack of good old fashioned colonialism?


You may be right. But you may recall from previous threads that I was for a long time suspicious of the role of Neocon Zalamay Khalilzad in the choice of Karzai rather than one of the Afghan royalty who might have had more loyalty from a Loya Jirga.

I was convinced Bush & Co had backed the wrong horse and that Obama should act before it was too late. My guess is now that it is more or less too late. I do not now believe that the situation for the Afghan people can be turned around in time for the planned wihtdrawal of US forces.

Good point Sandy!

It's the amazing shifting standard.

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