Lawyer: Gitmo trials pegged to '08 campaign

The Navy lawyer for Osama bin Laden's driver argues in a Guantánamo military commissions motion that senior Pentagon officials are orchestrating war crimes prosecutions for the 2008 campaign.

The Pentagon declined late Friday to address the defense lawyer's allegations, noting that the matter is under litigation.

The brief filed Thursday by Navy Lt. Cmdr. Brian Mizer directly challenged the integrity of President Bush's war court.

Notably, it describes a Sept. 29, 2006, meeting at the Pentagon in which Deputy Defense Secretary Gordon England, a veteran White House appointee, asked lawyers to consider Sept. 11, 2001, prosecutions in light of the campaign.

''We need to think about charging some of the high-value detainees because there could be strategic political value to charging some of these detainees before the election,'' England is quoted as saying.

A senior Pentagon spokesman, Bryan Whitman, declined to address the specifics, saying ``the trial process will surface the facts in this case.''

''It has always been everybody's desire to move as swiftly and deliberately as possible to conduct military commissions,'' he added. ``But I can tell you emphatically that leadership has always been extraordinarily careful to guard against any unlawful command influence.''

The brief quotes England as a stipulation of fact and cites other examples of alleged political interference, which Mizer argues makes it impossible for Salim Hamdan, 37, to have a fair trial.

It asks the judge, Navy Capt. Keith Allred, to dismiss the case against Hamdan as an alleged 9/11 co-conspirator on the grounds that Bush administration leadership exercises ``unlawful command influence.''

Allred has set hearings at Guantánamo for April 30.

Hamdan is the former Afghanistan driver of al Qaeda leader Osama bin Laden whose lawyers challenged an earlier war court format to the U.S. Supreme Court, which struck down the war court as unconstitutional.

Pentagon prosecutors call him a war criminal for driving bin Laden in Afghanistan before and during the 9/11 attacks and allegedly working as his sometimes bodyguard. Even if he didn't help plot the suicide attacks, they argue, he is an al Qaeda co-conspirator.

As described the Hamdan brief, the England meeting came three weeks after President Bush disclosed in a live address that he had ordered the CIA to transfer ''high-value detainees'' from years of secret custody to Guantánamo for trial.

Bush also disclosed that the CIA used ''an alternative set of procedures'' to interrogate the men into confessing -- since revealed by the CIA director, Air Force Gen. Michael V. Hayden, to include waterboarding.

They included reputed 9/11 mastermind Khalid Sheik Mohammed and four other men against whom the Pentagon prosecutor swore out death-penalty charges in a complex Sept. 11, 2001, conspiracy case on Feb. 11.

The proposed 90-page charge sheets list the names of 2,973 victims of the 9/11 attacks. The men have not been formally charged. Instead they are in the control of a White House appointee, Susan J. Crawford, whose title is the war court's convening authority, and her legal advisor, Brig. Gen. Thomas Hartmann.

Under the law governing the commissions, the alleged 9/11 conspirators would formally be charged 30 days after Crawford approves them.

That currently leaves a seven-month window during the 2008 election campaign.

An expert on military justice, attorney Eugene Fidell, said the Hamdan motion brings into sharp relief the problem of Pentagon appointees' supervisory relationship to the war court.

''It scrambles relationships that ought to be kept clear,'' said Fidell, president of the National Institute of Military Justice.

The quote attributed to England is ``enough that you'd want to hold an evidentiary hearing about it, with live witnesses. It does strike me as disturbing for there to be even a whiff of political considerations in what should be a quasi-judicial determination.''

England is a two-term White House appointee. He joined the Bush administration in 2001 as Navy secretary, briefly served as deputy Homeland Security secretary and then returned to the Pentagon, where he supervised the prison camps' administrative processes.

Crawford was a Republican attorney appointee in the Pentagon when Vice President Dick Cheney was defense secretary.

Hamdan's military lawyer argues that standard military justice has barriers that separate various functions, which he contends Pentagon appointees have crossed in the war court.

In April the defense team plans to call the former chief prosecutor, Air Force Col. Morris Davis, who recounted the England remark since submitting his resignation, claiming political interference.

Davis, who had approved charges against Hamdan, served as former chief Pentagon prosecutor until he resigned over what he called political interference by general counsel William J. Haynes.

Haynes has since quit.

They also want to call as a witness the deputy chief defense counsel, a retired Army lawyer named Michael Berrigan, who, according to the filing, was mistakingly sent a draft copy of 9/11 conspiracy charges being prepared by the prosecution.

In the filing, Hartmann, the legal advisor, orders Berrigan to return it, which the defense team claims illustrates the muddied role of the legal advisor.

He supervised the prosecution, announced the 9/11 conspiracy charges on Feb. 11, then said he would evaluate them independently and recommend to Crawford how to proceed.

The Mizer motion is also the latest attack on the legitimacy of war-court prosecutions by a variety of feisty uniformed defense attorneys, who have doggedly used civilian courts and courted public opinion against the process since the earliest days.

Mizer sent the brief directly to reporters for major news organizations, rather than leave it to the Office of Military Commissions to post it on a Pentagon website.

The Pentagon has been releasing motions for the public to read after they have been argued -- and ruled on by the judge.

With delays in other cases, the Hamdan case is now on track to be the first full-blown U.S. war-crimes tribunal since World War II.

The current time frame would put the trial before the Supreme Court rules on an overarching detainee rights case in June.

Hamdan's lawyer says advisor is exerting illegal sway for political ends

In a motion to dismiss the case against Bin Laden's ex-driver, he says his Navy superior is pursuing election-year convictions when he is supposed to be impartial.


MIAMI -- The lawyer for Salim Ahmed Hamdan, Osama bin Laden's former driver, on Thursday accused U.S. officials of trying to orchestrate war-crimes convictions for election-year political gain.

In his motion for dismissal of the case against Hamdan, Navy Lt. Cmdr. Brian Mizer accused Brig. Gen. Thomas Hartmann -- legal advisor to the White House official overseeing terrorism trials at Guantanamo Bay, Cuba -- of exercising "unlawful command influence" over both the prosecution and defense. Lawyers participating in the tribunals are members of the U.S. military, and all are subordinate in rank to Hartmann.

More than a dozen suspected senior Al Qaeda figures are among the 280 prisoners currently at Guantanamo, including self-proclaimed Sept. 11 mastermind Khalid Shaikh Mohammed.

In his 97-page motion, Navy Lt. Cmdr. Brian Mizer cited what he said were inappropriate comments and actions by Hartmann and political appointees in the Guantanamo process -- including its top official, Susan J. Crawford, the convening authority.

Hartmann "has so closely aligned himself with the prosecutorial function that he cannot continue to provide the requisite impartial advice to the convening authority," Mizer said.

Hartmann did not return messages seeking comment. But a spokesman for the tribunals, Army Maj. Robert D. Gifford, said the general had not seen the motion and would have nothing to say immediately about its allegations.

"While the Office of Military Commissions receives notice of court filings, we are not aware if such a motion has even been filed with the trial court," Gifford said. "Regardless, the proper place for the resolution of any legal matter is in the courtroom."

In the last six years, only one case against a detainee at Guantanamo Bay has reached its conclusion. Crawford, who served as Pentagon inspector general when Dick Cheney was Defense secretary, in early 2007 facilitated the plea bargain that freed Australian David Hicks.

The move was seen by many as a favor by the Bush administration to Australian Prime Minister John Howard, whose failure to free Hicks was hampering his reelection battle -- which he eventually lost.

The former chief prosecutor at Guantanamo, Air Force Col. Morris D. Davis, quit in October after complaining that Hartmann was bringing political pressure to bear on the legal process.

The motion filed Thursday said that Pentagon General Counsel William J. Haynes II had effectively ordered Davis to ensure that the terrorism suspects all were found guilty. "We can't hold these men for six years and have acquittals. We have to have convictions," Haynes is quoted as saying when Davis mentioned that some defendants at the World War II Nuremberg trials were acquitted.

Hartmann took over as legal advisor in July and immediately began acting as "de facto chief prosecutor," Mizer wrote in his motion.

Amid grimness and beatings, a sense of change

The sprawling prison complex at Guantánamo Bay looks from a distance like many of the hastily built resorts round the Caribbean, the camps occupying a narrow strip of sand by the palm-lined sea-shore, with fencing to keep the locals out.

But through the military checkpoint, the grimness of the world's most infamous prison becomes apparent: barbed wire and watchtowers and heavy nylon matting hiding it from outside eyes.

Once inside it becomes grimmer still. Prisoners at Camp Six, where there are maximum security cells, are isolated for 22 hours a day, allowed into a small courtyard for two hours to exercise. Confrontations with guards and beatings are commonplace. Many have been tortured, if not at the camp, then before they arrived. About 10 are on hunger strike. Two have been force-fed for more than 800 days.

At Camp Six military guards, working in strict rotation, peer through peepholes at least once a minute. A prisoner, briefly glimpsed, is bedraggled, only a tiny glimmer of curiosity in his eyes at a break in the routine brought about by the presence of a handful of journalists.

A senior US medical officer at the camps, who preferred not to be named, admitted that about 10% to 15% of the prisoners were receiving treatment for medical or psychological problems, but insisted this was comparable to prisons on the US mainland.

Reporters are not allowed to speak to prisoners but lawyers can, and they regard conditions at Guantánamo as much worse than anywhere else in the US prison system. One of the lawyers, Wells Dixon, from the New York-based Centre for Constitutional Rights, said he had been going to the camps for years and had seen a marked deterioration in prisoners' health. "Camp Six was set up to destroy them physically and mentally, and it worked," he said.

Almost seven years since the 9/11 attacks and the invasion of Afghanistan and five years since the occupation of Iraq, there are still 275 detainees at Guantánamo (down from a high of 775), held without trial. They have come from a wide arc stretching from North Africa through the Middle East to the Muslim regions of western China.

Rear Admiral Mark Buzby, commander in charge of the Guantánamo camps, inside the US naval base on the eastern end of Cuba, said in an interview that his conscience was clear. "I have to get up every morning and look in the mirror and believe that I am doing something that is morally and legally correct. And believe me I can do that every single morning."

Buzby claimed that many of the inmates, if not detained, "would be very actively engaged in jihad and would be doing their very best to take American and coalition lives. And the reason I know this is because they are very happy to tell us that every single day."

Lawyers questioned whether it was possible to hold a fair trial, given that some of the evidence that might be used against the prisoners had been obtained by torture. Buzby said it would be for the judge to decide whether the evidence was admissible. In contrast with the torture used in secret CIA detention centres round the world, Buzby said his preference was for interrogators building a rapport with detainees and offering incentives. "We use the Subway sandwich and the Big Mac." Asked whether he regarded waterboarding - which simulates drowning and was used against Khalid Sheikh Mohammed, the self-declared mastermind of 9/11 - as torture, he admitted: "I would certainly not want it done to me."

The prisoners react in various ways to indefinite confinement. Some are compliant, and these are mainly held in Camp Four, where they are free to wander round a small compound and chat to other inmates, can attend classes in English and have access to a library, in which one of the most read books, according to the librarian, is the latest Harry Potter in English.

Confrontation common
But confrontation is never far away. One of the guards at Camp Six, Patrick Zintel, told of how the prisoners retaliate. "They pile faeces by the door and when a guard comes in, they will throw it at them," he said. Such incidents are common enough for the US to put an eye-wash dispenser outside the cells.

Another guard, Chris Cookson, said that such incidents also occurred in the camps where the inmates are supposedly compliant. "I came out of an office and a cocktail of water, urine and faeces came out of nowhere and splattered the person in front," he said.

The guards retaliate heavily. Clive Stafford Smith, the London-based lawyer for some of the inmates and author of Eight O'Clock Ferry to the Windward Side, which recounts the experiences of the prisoners, said he had seen the scars from such beatings. "Sadly, the emergency reaction force [a five-strong team of guards] still responds to minor infringements by beating them up."

There is a sense of uncertainty about Guantánamo. Although the Bush administration promised that the first of the trials at Guantánamo will finally begin this year, guards and lawyers are unsure how much longer the camps will exist. All the leading candidates in the US presidential race -the two Democrats Barack Obama and Hillary Clinton and the Republican John McCain - have promised to close Guantánamo on entering the White House on January 20 next year.

Stafford Smith predicted that Guantánamo will close rapidly and welcomed the prospect because the prisoners are likely to be moved to the US mainland where they will be subject to US law.

Defence lawyers divide the detainees into three categories. The first are those like Mohammed who could go on trial. Buzby said he expected about 80 to go on trial. Of the remainder, 80 have already been cleared for release but cannot find a country that will take them. The others are awaiting clearance.

Uncertainty
The defence department said earlier this month that Mohammed, who is held at Camp Seven, a CIA camp whose existence was only revealed this year, and five others are to be tried on charges that carry the death penalty.

Yet another camp has been built for Mohammed's trial. Camp Justice, begun in September and completed at the start of this month, consists of a windowless courthouse, holding cells and tents for 550 officials, lawyers and journalists.

Shayana Kadidal, another lawyer with the Centre for Constitutional Rights, which has more clients at Guantánamo than anyone else, said he thought the trial would be nowhere near completion by the time Bush leaves office. Reflecting the sense that these are the dying days of Guantánamo, the air force engineers who built Camp Justice said it could be dismantled in a month.

Omar Khadr: A most peculiar young offender

He should be dealt with here in Canada, as a juvenile who was involved in terrorism

The civilized world condemns the recruitment of child soldiers. Yet Canada sits quietly by as one of its citizens, Omar Khadr, is prosecuted by the United States for war crimes he allegedly committed at age 15 as a member of al-Qaeda.

It is impossible to square. Al-Qaeda's recruitment of child soldiers is immoral and abusive; consequently, it is immoral and abusive to prosecute as a war criminal a child recruited by al-Qaeda, and punish him accordingly. We can't have it both ways.

Lately, it has dawned on Canadians that the United States may well have lied about its evidence against Mr. Khadr. Far from having proof that only he could have thrown the grenade that killed their soldier, the U.S. appears to have hidden the truth: that the teenage Canadian was in the company of an adult al-Qaeda fighter and was himself unarmed, on his knees and facing away from battle when a U.S. soldier shot him twice — in the back.

But the falsehoods are only part of the reasons why Canadians let the 15-year-old disappear six years ago into the legal black hole of Guantanamo Bay, Cuba, in which he had no access to a lawyer for the first 27 months and no way to contest his detention. Canadians accepted that Mr. Khadr be held fully responsible for his actions. As if he were an adult.

The irony has never really penetrated Canadians' consciousness. Canada, the country of the liberal Youth Criminal Justice Act, is the only Western nation to give the United States carte blanche with one of its nationals at Guantanamo. Britain, Australia, Sweden and Germany fought to repatriate their nationals — adults, all of them. And Canada let a juvenile languish.

The reply from our government is but a single, vapid refrain: "Let the process work." But this is a process that, even apart from its other flaws, aims at punishing Omar Khadr for the accident of his birth in an al-Qaeda family.

A VICTIM OF HIS OWN HOME

When a young person raised in a terrorist family becomes a terrorist at 15, does he join voluntarily? Can he give free and informed consent? To say yes is to let al-Qaeda and Toronto's Khadr family off the hook for grooming children for terrorism. It puts the onus on the children to resist.

Most Canadian children grow up in circles within circles of benign, positive influences — family, school, neighbourhood, the larger culture. Omar's circles of influence were pro-terror. His late father, Ahmed Said Khadr, was a senior financier with al-Qaeda who prodded Abdurahman, Omar's elder brother, to become a suicide bomber. Even his mother and sister boasted on national television of the glories of terrorism.

From age 11, Omar was inculcated in terror, according to the U.S. charge sheets. "From 1996 to 2001, the Khadr family travelled throughout Afghanistan and Pakistan, including yearly trips to Usama bin Laden's compound in Jalalabad for the Eid celebration at the end of Ramadan. While travelling with his father, Omar Khadr saw or personally met senior al-Qaeda leaders, including Usama bin Laden, Doctor Ayman Al-Zawahiri, Muhammad Atef (aka Abu Hafs al Masri), and Saif al Adel. Khadr also visited various al Qaeda training camps and guest houses."

Only an extraordinary 15-year-old could have withstood that grooming process. The Khadr son who did resist, Abdurahman, did not do so until he was in his 20s. A younger brother, Abdul Karim, was paralyzed in battle in Pakistan in 2004 at 14. (His father was killed in the same battle.) The oldest brother, Abdullah, faces extradition from Toronto to the United States on terrorism charges from Afghanistan.

Yet many Canadians insist he acted of his free will. "Real child soldiers are forcibly taken from their parents (who are often killed)," one Globe reader wrote in an unpublished letter to the editor. "These children are drugged, brainwashed, and abused so they become killers. Khadr became a soldier/terrorist because his family encouraged it. He was a willing participant. Where was the coercion?"

This is a narrow view of coercion. Could there be a worse form of coercion than that in a father's wish that his son become a suicide bomber? "Blow yourself up or lose your father's esteem." Omar's family culture promoted dying for the cause. That was what it meant to be a good boy in that family.

CHILD SOLDIERS ELSEWHERE

The world is rife with child soldiers. Peter Singer of the Brookings Institution in Washington, D.C., estimates that as many as 300,000 child soldiers are in combat around the world. Yet none of today's international war-crimes tribunals prosecute child soldiers or terrorists.

No one under 18 has been charged before the tribunals for Rwanda or the former Yugoslavia. No one has been charged in East Timor, in Cambodia, in Bosnia and Herzegovina. "To date, there is no precedent in history for the prosecution of a child soldier before an international criminal tribunal, and similarly there is no precedent in the Western world for prosecution of a child soldier before any state tribunal," says Sarah Paoletti, a professor at the University of Pennsylvania School of Law, in a friend-of-the-court brief to the military commission that is to try Mr. Khadr. (Among those whose names are on that brief are former Canadian justice ministers Irwin Cotler and Allan Rock.) The U.S. says there are in fact precedents, but its examples predate the Nuremberg Tribunals. For instance, a British Military Court in northwestern Germany convicted and jailed a 15-year-old Hitler Youth member for his role in killing a British serviceman.

More recently, at the Special Court for Sierra Leone in 2004, the U.S. prosecutor, David Crane, was given the option of putting on trial, in a court without punishment, those age 15 to 17 who committed war crimes. Memorably, Mr. Crane rejected that idea. "The children of Sierra Leone have suffered enough both as victims and perpetrators. I want to prosecute the people who forced thousands of children to commit unspeakable crimes."

If international practice is clear, the law as written is less so.

The relevant text is the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. Both Canada and the U.S. are among the 150 signatories. "The Protocol prohibits the United States from using child soldiers, not from prosecuting them," says the U.S. brief to the military commission.

It's right. The protocol is silent on its face. Emboldened by that silence, the U.S. stretches the point: "If anything, the Protocol obligates the United States to prosecute Khadr" because not punishing Mr. Khadr would "further incentivize" al-Qaeda in recruiting young people.

If the U.S. is right, where is the outcry that all the world's child soldiers are going unpunished at all the world's tribunals except this one?

Omar Khadr was a war crime waiting to happen. Anyone in al-Qaeda or the Taliban is an unlawful enemy combatant under U.S. law. Anything such a combatant does to fight, even in battle, is a war crime.

"In a normal war," explained John Bellinger, a legal adviser to the U.S. state department, "where both sides have a right to engage in combat with one another, if a soldier kills a soldier on the other side, it's not murder unless it is done somehow contrary to the laws of war perfidiously, or killing someone when they have already surrendered.

"In this case, though, the members of al-Qaeda and the Taliban, while they may have thought they were defending themselves, they had no legal right under the laws of war to be engaging in combat." There's a legitimate expectation that young people know and abide by the criminal law of their countries; the minimum age of criminal responsibility is usually 12 (as it is in Canada). But how could a 15-year-old of Mr. Khadr's experience and background have been aware of the laws of war, especially laws that hadn't been invented yet?

And speaking of inventions: "According to the reports of the action we have available, the last surviving enemy in that compound … as his last act at the firefight rose up with a pistol and hand grenade, and engaged the coalition forces, threw the grenade," Col. Roger King, a U.S. spokesman based in Afghanistan, told the Associated Press in September, 2002. We now know that the U.S. had an eyewitness report that painted a very different picture.

A CASE FOR CANADIAN PROCESSES

And what has Canada done to help Mr. Khadr? It sent intelligence officers to interrogate him without counsel, and passed summaries of the interrogations to the Americans. Some help. (The Supreme Court of Canada is hearing Mr. Khadr's request next week for access to Canada's files from those visits.)

"The recruitment and use of child soldiers is one of the most flagrant violations of international norms," says Mr. Singer. Why? Because children are not to be made a mere instrument of the state or terror group. Because children are manipulable. Because children cannot assess risk as adults can. To prosecute children as if they were fully responsible for war crimes is to legitimize their recruitment.

As other Western countries have repatriated adult suspected terrorists — several, in Britain's case — it seems strange that Canada would not bring a lone 21-year-old home to face fair processes that would take into account his age and background, and his long incarceration at Guantanamo. Omar Khadr, child soldier, has been dehumanized enough. Bring him home.