Tuesday, June 05, 2007

CURRENT EVENTS: Child Soldiers, Guantánamo & International Law

smf: This may seem a bit of a stretch for a blog/newsletter about public education in LA, but ultimately it is not – because as Graham Nash teaches us – we must teach our children well ...and our children must teach their parents well. Pop- psychologically and with apologies to Wordsworth: “The child is father of the man.”

The best seller popularity of “A Long Way Gone” by Ishmael Beah, a horrific story about child soldiery and redemption in Sierra Leone shouts to us: “What are we doing?” Omar Ahmed Khadr may well be beyond redemption at 20 after five years of incarceration in black CIA prisons and Guantánamo — it may have been a different story at 15.

And to conclude the preachifying I tip my hat to James Q. Wilson and "The Moral Sense" (1993) : “Mankind's moral sense is not a strong beacon light, radiating outward to illuminate in sharp outline all that it touches. It is, rather, a small candle flame, casting vague and multiple shadows, flickering and sputtering in the strong winds of power and passion, greed and ideology. But brought close to the heart and cupped in one's hands, it dispels the darkness and warms the soul.”


By William Glaberson, International Herald Tribune

Sunday, June 3, 2007 - NEW YORK The facts of Omar Ahmed Khadr's case are grim. The shrapnel from the grenade he is accused of throwing ripped through the skull of Sergeant First Class Christopher Speer, who was 28 when he died.

To U.S. military prosecutors, Khadr is a committed Qaeda operative, spy and killer who must be held accountable for taking Speer's life and for other bloody acts he committed in Afghanistan.

But one fact may not fit easily into the government's portrait of Khadr: He was 15 at the time.

His age is at the center of a legal battle that is to begin Monday with an arraignment by a military judge at Guantánamo Bay, Cuba, of Khadr, whom a range of legal experts describe as the first child soldier in decades to face war-crimes charges. The case has implications as large as the growing ranks of child soldiers worldwide.

Defense lawyers argue that military prosecutors are violating international law by filing charges that date from events that occurred when Khadr was 15 or younger. Legal concepts that are still evolving, the lawyers say, require countries to treat child soldiers as victims of warfare, rather than as war criminals.

The military prosecutors say such notions may be "well-meaning and worthy," but are irrelevant to the U.S. military commissions at Guantánamo. Khadr is one of only three Guantánamo detainees to face charges under the law establishing the commissions, passed by the U.S. Congress last year.

"International law," the Justice Department asserted in a court filing in the case last week, "does not prohibit an individual under 18 from being prosecuted for war crimes." Even so, prosecutors said that if they won a conviction, they would seek something less than a life term, given Khadr's age. He is 20 now.

Whatever the outcome, his case seems destined to become a landmark, though some scholars say not enough attention has been given to its importance. "What is the precedent that we are setting with this unique step?" asked Peter Singer, a senior fellow at the Brookings Institution who has written about child soldiers.

Khadr's case offers a snapshot of relatively new questions surrounding the legal treatment of child soldiers globally, though advocates for children have tended to focus less on young terrorists and more on children who fight in civil wars, like Ishmael Beah, whose best-selling memoir, "A Long Way Gone: Memoirs of a Boy Soldier," recounts his bloody days as a child fighter in Sierra Leone's internal conflict.

Khadr may not be the most sympathetic figure for those pressing for the more forgiving interpretation of international law. He was born in Canada to a family with such deep Qaeda ties that some newspapers there have called it Canada's first family of terrorism.

He is the youngest detainee at Guantánamo Bay, nearly blind in one eye from wounds sustained during the July 2002 clash in which Speer was mortally wounded and another U.S. soldier was severely wounded.

Last week, Khadr said he wanted to fire all of his U.S. lawyers, and some of them said they understood why he might distrust Americans after having spent five years at Guantánamo.

Still, they argue that war-crimes prosecutors should focus on the adults who press children into service, not on the children themselves. The charges against Khadr, they said in a recent court filing, cross a line in the treatment of children that no other country has crossed "in modern history."

The prosecutors, they say, included in their charges acts that occurred when Khadr was younger than 10. Khadr "was subject to undue adult influences," said Muneer Ahmad, an associate professor at the American University Washington College of Law, who has represented Khadr.

"If Omar had had his free choice," Ahmad said, "what he would have chosen to do is ride horses, play soccer and read Harry Potter books."

It is an appeal to emotion that the prosecutors are likely to meet with their own. Speer left a wife and two small children. His widow, Tabitha, said in an e-mail exchange with a reporter last week that Khadr's youth entitled him to no special consideration.

"Given the opportunity, he would do it all over again," she wrote. "He was trained to do exactly what he did, regardless of his age."

To the prosecutors, Khadr is the essence of a young man who should be held to adult standards. U.S. officials say his father, Ahmed Said Khadr, who was killed in a shootout with Pakistani forces in 2003, was a senior deputy to Osama bin Laden.

One of Khadr's brothers is in a wheelchair as a result of that shootout; another told the Canadian Broadcasting Corporation, "We are an Al Qaeda family." Ahmed Khadr traveled internationally from Canada under the auspices of handling charity money for Muslims. In the mid-1990s, he was held for a time in Pakistan on suspicion of having helped finance the bombing of the Egyptian Embassy in Islamabad.

After he was released, the Khadrs and several of their six children moved from Canada to Afghanistan where they lived at times in the same compound as bin Laden, officials have said. "All of the children were indoctrinated into the Al Qaeda way of thinking," said the chief military prosecutor at Guantánamo, Colonel Morris Davis of the air force.

After Sept. 11, 2001, Omar Khadr deliberately chose to join Al Qaeda and eventually to kill Speer, Davis said in a recent interview. "There is a difference," Davis said, "between a 15-year-old who makes a spur-of-the-moment decision and someone who made a long-term choice."

Captured after he was wounded in the firefight that killed Speer, Khadr has been held at Guantánamo since 2002. At least three other juveniles, perhaps as young as 12, also were held there for a time. But they were released in January 2004, the military said.

Khadr's lawyers have said in court that he had been subjected to physical and psychological torture that exploited his youth, another example of what they say is a violation of international principles that children be accorded special protections.

Layne Morris, a housing administrator in a Salt Lake City, Utah, suburb, is a former U.S. Army special forces sergeant, who, like Khadr, is half-blind because of the firefight that day near Khost, Afghanistan.

He said the battle did not unfold quickly, as it sometimes seems in the retelling. American forces surrounded the compound, he said. And then they waited. Anyone who was inside had a choice of whether to fight or surrender, he said, including Khadr.

"There is just no way you can say this is a poor befuddled, brainwashed kid," Morris said. "This is a kid who made a whole lot of decisions on his own."


by Carol Rosenberg, McClatchy Newspapers

Mon, Jun. 4, 2007 - GUANTANAMO BAY NAVY BASE, Cuba - A pair of military judges on Monday blocked the Bush administration's latest plan to try detainees here for war crimes, dismissing charges against two suspects after finding that the Pentagon hadn't followed congressional mandates in bringing the cases.

At issue was the failure of the Pentagon to find during earlier proceedings that Omar Khadr, 20, whom U.S. officials had charged with murder in the death of a U.S. Special Forces medic, and Salim Hamdan, 36, a driver for Osama bin Laden, were "unlawful enemy combatants." Instead, military panels had declared that the men were simply "enemy combatants."

But in separate decisions, Army Col. Peter Brownback and Navy Capt. Keith Allred said that that designation was insufficient under the Military Commissions Act passed last year.

Brownback said the act specifically limits trials to detainees who'd be tagged as "unlawful enemy combatants" and bars trials of "lawful enemy combatants." Without a more specific designation, a military commission has no authority to act, he found.

"A person has a right to be tried only by a court that has jurisdiction over him," Brownback said.

Allred used slightly different logic to reach the same conclusion. He said Hamdan "is either entitled to the designation as a prisoner-of-war or he is an alien unlawful enemy combatant. Or he is entitled to another status."

The Pentagon's current Combatant Status Review Tribunals doesn't distinguish among the three, he said.

The decisions immediately set off calls for the Bush administration to forgo its efforts to set up a separate judicial system to try Guantanamo detainees for alleged war crimes.

"This decision demonstrates the egregious flaws of the Military Commissions Act and makes the point once again that Congress must act immediately to change this law," said Sen. Christopher Dodd, D-Conn. "The current system of prosecuting enemy combatants is not only inefficient and ineffective, it is also hurting America's moral standing in the world and corroding the foundation of freedom upon which our nation was built."

Chief defense counsel Marine Corps. Col. Dwight Sullivan noted that each captive currently held at Guantanamo is classified as an "enemy combatant," not an "unlawful enemy combatant."

Sullivan, who oversees the defense of all military commission cases, declared the war court "a complete failure" and urged the Pentagon to end its efforts to prosecute Guantanamo detainees under the Military Commissions Act.

"The system right now should just stop," said Sullivan. "The commission is an experiment that failed and we don't need any more evidence that it is a failure."

The chief prosecutor, Air Force Col. Morris Davis, a frequent visitor to the Guantanamo media center, chose not to comment on Monday night.

In Washington, Navy Cmdr. Jeffrey Gordon, a Pentagon spokesman, said the Defense Department planned to appeal. But Brownback, a retired military judge, scoffed at that idea when prosecutors raised it on Monday, saying there was no court to which the government could appeal.

Congress authorized the Defense Department to establish a Court of Military Commission Review to handle appeals, but the court has yet to be set up. Defense Department officials said Monday they didn't know when appointments to the court would be made.

Muneer Ahmed, an American University law professor who represented Khadr until last week, said quick appointments to the review court would only further damage the commissions' credibility.

"I think that's going to do more damage than help," he said.

Monday's rulings - Brownback's decision in the Khadr case came first, followed later by Allred's decision in the Hamdan case - were the latest in a long line of legal rulings that have blocked Bush administration efforts to try Guantanamo detainees for alleged war crimes.

Since President Bush declared in 2002 that the Geneva Conventions covering prisoners of war wouldn't apply to Guantanamo detainees, debate has raged over the administration's efforts to create a new kind of military war court - the first U.S. war crimes tribunals since World War II.

Military defense attorneys objected to the proposals, and international law and human rights groups criticized the effort as extrajudicial, extra-territorial justice. Twice, the Supreme Court handed the detainees specific victories. In its latest ruling last year, the court held that plans to try the detainees were unconstitutional because Congress hadn't authorized the trials. The Military Commissions Act was intended to overcome that objection.

But Brownback, who served as chief presiding officer at the first attempt to stage commissions, found that the rules Congress established and those that the Pentagon had been following before the legislation was passed were incompatible.

Brownback declared the dismissal "without prejudice," meaning the Defense Department could seek in the future to recharge the Toronto-born Khadr.

Allred said the problem with the Hamdan case could be remedied by holding a new hearing to determine his status.

Even so, there was a special irony to Allred's ruling. Hamdan, accused of being bin Laden's driver, was the plaintiff who successfully challenged an earlier Pentagon trial scheme before the Supreme Court. It was that case that led to the passage of the Military Commissions Act.

Hamdan, 36, grinned as he listened through Arabic translation as his lawyer accused the Bush administration of "essentially winging it on the jurisdictional basis for this court's proceedings."

Khadr's case had long been controversial because he was only 15 when he was captured in Afghanistan. U.S. prosecutors accused him of murdering a U.S. Special Forces medic during a firefight in July 2002, but some legal experts argued that as a juvenile he should have been treated differently.

But the dispute over technical language was largely unexpected.

The rulings were also likely to force new status hearings for 14 so-called "high-value detainees" transferred here from CIA custody last year, among them suspected Sept. 11 mastermind Khalid Sheikh Mohammed.

At each of those hearings, the presiding officer said the purpose was to determine if a detainee was an "enemy combatant." There was no mention about the status of an "unlawful enemy combatant."

"If the U.S. government were at all wise, this would be a fatal blow to the military commissions," said Jennifer Daskal, an attorney and observer from Human Rights Watch. "In five years, the military commissions have convicted one person by plea agreement."

In that deal, in late March, Australian captive David Hicks, 31, agreed to plead guilty to a single charge of providing material support for terrorism in exchange for a nine-month sentence. He returned last month to Australia to serve his sentence.

Said Amnesty International observer Jumana Musa: "At this point, detainees have been more successful committing suicide in Guantanamo than the government has been successful in getting detainees to trial."

Rosenberg reports for The Miami Herald. Warren P. Strobel in Washington contributed to this report.


Dismissal rulings in two Guantanamo cases raise questions about the military's jurisdiction over detainees.

by Carol J. Williams and Julian E. Barnes, LA Times Staff Writers

June 5, 2007 - GUANTANAMO BAY, CUBA — Military judges threw out war-crimes cases Monday against the only detainees here who have been indicted, in rulings that suggest the hastily reassembled military tribunals have no jurisdiction over any of Guantanamo's 380 prisoners.

In separate hearings, an Army colonel and a Navy captain granted motions to dismiss the cases because the 2006 Military Commissions Act that Congress passed last year gave the tribunals jurisdiction only over "unlawful alien enemy combatants."

Salim Ahmed Hamdan, a former driver and bodyguard for Osama bin Laden, and Omar Khadr, a Canadian who was 15 when arrested five years ago in a firefight with U.S. forces in Afghanistan, were designated "enemy combatants" during 2004 Combatant Status Review Tribunals.

Reconciling the different labels is sure to slow prosecution of these and other Guantanamo detainees. All 380 detainees received the same label during their initial status reviews.

It was the second time in less than a year that the Bush administration's process for bringing terror suspects to justice has failed. An earlier version of the commissions — created by Bush in November 2001 without congressional participation — was struck down as unconstitutional by the U.S. Supreme Court last June 29.

Army Maj. Beth Kubala, the legal advisor and spokeswoman for the tribunals, said, "Based on today's rulings, the public should make no assumptions about the future of the military commissions."

The Geneva Convention protects the rights of "lawful combatants," who are usually members of national armed forces fighting with another country's soldiers. Captured lawful combatants are supposed to be designated prisoners of war and held in communal conditions.

But when the Bush administration devised the tribunals, it eliminated that designation to deprive the war-on-terror suspects of POW rights and living conditions. That left the three-officer status review boards with the choices of "enemy combatant" or "no longer an enemy combatant."

In the second of the two rulings, Navy Capt. Keith Allred suggested that Bush's blanket branding of all Al Qaeda members as illegally engaged in hostilities against U.S. forces was illegitimate because it failed to examine whether each individual had committed war crimes.

"He's either entitled to the designations as a prisoner of war or as an unlawful alien enemy combatant," Allred said of Hamdan.

Allred also pointed out that the status reviews were established to determine whether a detainee was being properly held here, not to determine whether he was subject to trial by military commission.

Navy Lt. Cmdr. Charles Swift, Hamdan's defense attorney, said the Military Commissions Act "demonstrates once again that if you put a statute together in three weeks and rush it through … you end up with a process that doesn't work."

Donald J. Guter, a retired Navy rear admiral and Duquesne University Law School dean, agreed.

"There hasn't been anything we've done down there that has followed form or practice," Guter said. "It has been a lot of ad hoc and reverse engineering."

It was Swift who took Hamdan's challenge of his detention to the Supreme Court last year, leading to the high court's decision that Bush had overstepped his wartime powers when he unilaterally created the commissions two months after the Sept. 11, 2001, terror attacks.

Marine Col. Dwight Sullivan, head of the war crimes tribunal defense team, said that Congress should take the opportunity to force the government to cease circumventing legitimate U.S. courts in its effort to prosecute Guantanamo prisoners.

"The military commissions are a model that has repeatedly shown itself incapable of rendering justice," said Sullivan. He added that after the rulings, "if the United States government is wise, this would be the fatal blow to military commissions."

Monday's rulings could provide an opportunity for Defense Secretary Robert M. Gates to again propose moving trials to the U.S. mainland. Gates, who told Congress earlier this year that he favors shutting the prison, was traveling in Kyrgyzstan on Monday.

In response to reporters' questions, Gates said he would have to review the decisions before making a substantive comment. "This is the reason we have a judicial process in all this," he said.

Some military observers doubted that the rulings would lead to the end of Guantanamo tribunals. Gates lost his first battle to close Guantanamo after Vice President Dick Cheney and other administration officials insisted that the prison remain open as an alternative to bringing the prisoners they have described as the world's most dangerous men to U.S. communities for trial in federal court.

Still, the rulings by the commissions' own judges seemed likely to compound criticism at home and abroad that the denial of Geneva Convention protections conflicts with American values and commitment to justice.

The dismissed cases have no real effect on the prisoners' freedom: The administration has said that even those never charged with specific crimes will be held for the duration of the war on terrorism, regardless of judicial procedures created to try them.

Prosecutors in both cases asked the judges for 72 hours to decide whether to appeal their rulings. But the panel created by the Military Commission Act to review decisions hasn't yet been created — a point many lawyers noted as further evidence that the commissions are a poor substitute for established judicial forums.

Defense Department officials were discussing whether to hold another round of the status review tribunals for detainees they intend to try, officials in Washington said Monday.

Not all detainees would necessarily have to face the review panels. Many are likely to be transferred once arrangements can be made with other countries to receive and detain them. The commissions' chief prosecutor, Air Force Col. Morris Davis, has said he envisions charging about 75 of the prisoners, with the rest to be held "for the duration of the war on terror."

The Pentagon could rewrite the rules for the status reviews to elicit determinations on the lawfulness of each prisoner's alleged combat activities. But rewriting the rules would take months, as would new status hearings, said retired Army Col. Fran Gilligan, a legal scholar now with the commissions' prosecution office.

The newly reconstituted commissions had taken up only one case before Monday, in which Australian David Hicks pleaded guilty to drastically reduced charges in March in exchange for the right to serve the last few months of his sentence in his native Adelaide.

Although Hicks' plea deal was widely denounced as a sham intended to answer mounting demands from the Australian government for his return, the Bush administration cited it as proof that the new system worked.

Army Col. Peter Brownback, the military judge in Khadr's case, brought the motion to dismiss the charges against Khadr, who fired his legal team last week. Khadr was accused of throwing a grenade that killed an Army special forces medic in July 2002.

Hamdan was charged with conspiracy and supporting terrorism for helping bin Laden and other Al Qaeda figures.

The charges against both prisoners were dismissed "without prejudice," meaning the government can bring a new case if it can classify the men as unlawful combatants.

Brownback did say many Guantanamo prisoners merited the "unlawful" designation because most were foreigners fighting for irregular forces like Al Qaeda and Afghanistan's Taliban, not uniformed members of a national army.

Khadr was only 15 when he was captured by U.S. forces at an Al Qaeda compound in Afghanistan. He entered the courtroom in the tan prison garb that designates a compliant detainee according to military-detention regulations, instead of the civilian clothing the court advises defendants to wear to avoid appearing like a prisoner before the commissioners — who were not present Monday.

His beard was scruffy and his hair matted, whereas he had appeared neatly barbered in khakis and a sport shirt during his last commission appearance 16 months ago.

Hamdan hadn't been in court for nearly three years because a federal judge had issued a stay in his and two other cases. A slight man who smiled with his attorneys, he clearly had difficulty understanding the Arabic translation or much of the proceedings.

Human-rights lawyers hailed the twin rulings as an admission that the commissions are "fatally flawed" and should be abandoned in favor of military courts-martial or trials in U.S. federal courts.

"Allred questioned the president's ability to designate an entire class of people as enemy combatants without any inquiry into the actual facts," said Jennifer Daskal of Human Rights Watch.

"Today's ruling is the most significant setback since the U.S. Supreme Court threw out the original military commissions," said Jumana Musa of Amnesty International. "It also signals that these commissions need to be scrapped and the detention facility at Guantanamo Bay must be closed now."

Navy Cmdr. Jeffrey D. Gordon, a Pentagon spokesman, said Monday that the Pentagon would review the rulings but believes the new law and older tribunals' status are legally compatible.

John D. Hutson, a former top Navy judge advocate general and a critic of the tribunal system, said the commissions are unlikely ever to be known for prosecutorial success.

"Look at the cases we have had. So far, we've had a kangaroo-skinner and a chauffeur," Hutson said, referring to Hicks and Hamdan. "We aren't exactly talking about Hitler and Goering, so far."

But he said he doubted that Monday's rulings would be the fatal blow.

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