U.S. rejects Canadian's 'child soldier' defense

MIAMI (Reuters) - A Canadian captured in Afghanistan at age 15 can be tried for murder in the Guantanamo war crimes court, a U.S. military judge ruled in rejecting claims that he was a child soldier who should be rehabilitated rather than prosecuted.

Canadian prisoner Omar Khadr, now 21, is charged in the Guantanamo court with throwing a grenade that killed a U.S. soldier during a firefight at a suspected al Qaeda compound in Afghanistan in 2002.

His military lawyer, Lt. Cmdr. William Kuebler, had argued in February hearings at the Guantanamo naval base that Khadr was a child soldier illegally conscripted by his father, an al Qaeda financier. He urged the judge to drop the charges, which carry a maximum penalty of life in prison.

The judge, Army Col. Peter Brownback, issued a ruling on Wednesday agreeing with prosecutors' position that the law authorizing the Guantanamo trials contained no minimum age.

Brownback's ruling clears the way for Khadr to be tried in the special tribunals created by the Bush administration to try non-U.S. captives it considers "unlawful enemy combatants" outside the regular civilian and military courts.

Kuebler called the ruling "an embarrassment to the United States" and said Canada would share in the embarrassment if it allows its citizen to be tried at Guantanamo. He said Khadr would be the first child soldier tried for war crimes in modern history.

The United States and Canada have ratified an international treaty, the Child Soldier Protocol, that outlaws recruitment of combatants under age 18 and requires governments to help child soldiers recover and reintegrate into society.

It does not specifically bar prosecution of child soldiers but says they should not be subjected to cruel, inhuman or degrading treatment or punishment, and that they cannot be subjected to life imprisonment without possibility of release.

Khadr, who was shot twice in the back by U.S. soldiers during the battle that led to his capture, is charged with murder, attempted murder, conspiring with al Qaeda, providing material support for terrorism and spying on U.S. military convoys in Afghanistan.

US releases al-Jazeera cameraman

An al-Jazeera cameraman detained by American forces in Afghanistan was last night released after spending nearly six years imprisoned without charge at Guantánamo Bay.

Sami al-Haj, 39, was arrested on the border between Pakistan and Afghanistan on December 15 2001, while on assignment to cover the war against the Taliban. Although he had a valid visa to work in Afghanistan, US intelligence alleged that he was an al-Qaida operative, and he was transferred to Guantánamo in June 2002.

Last night, his lawyer, Clive Stafford Smith, said Haj was en route to his home in Sudan to be reunited with his wife and son. He said: "I'm very glad Sami has finally been released, but the question is why he wasn't freed many years ago."

The US military alleged that Haj had secretly interviewed Osama bin Laden, smuggled guns for al-Qaida and worked as a financial courier for Chechen rebels. But the evidence against him was never revealed, and he was never charged.

Prior to his release, Haj had been on hunger strike since January 2007, and was forced to undergo "assisted feeding" via a tube through his nose. According to Stafford Smith, he was suicidal and had throat cancer, but camp authorities withheld medical treatment. "We are very concerned about him, because he has been under a tremendous amount of stress and has been on hunger strike for 480 days. He has asked to be taken straight to a hospital in Khartoum," Stafford Smith said.

In exchange for Haj's release, the Sudanese government has agreed to ban him from working as a journalist or leaving Sudan, according to Reporters Without Borders.

Robert Ménard, secretary general of Reporters Without Borders, said: "Sami al-Haj should never have been held so long. US authorities never proved that he had been involved in any criminal activity."

Haj's case was one of number involving journalists captured by US forces while reporting from war zones. Two weeks ago US forces in Iraq released Bilal Hussein, a photographer from the Associated Press news agency, who was detained in Ramadi in April 2006.

Commentators in the Middle East viewed Haj's imprisonment as a proxy punishment for al-Jazeera, whose broadcasts have angered US officials.

When the BBC reporter Alan Johnston was kidnapped in Gaza, Haj appealed for his release. Johnston in turn, called on the US authorities to free Haj. But Stafford Smith said much of the western media had been slow to take up Haj's case.

A spokesman for the Pentagon refused to comment on the case.

Terror suspect gets shelter in Sudan, but no trip home

The Harper government granted terrorist suspect Abousfian Abdelrazik, “temporary safe haven” Tuesday in Canada's Khartoum embassy and said it was “reviewing his case,” but stopped short of agreeing to help him return home.

Mr. Abdelrazik, who has been marooned in Sudan for years, spent nearly two years in prison there, was denied a new Canadian passport and was unable to return to his family in Montreal, walked into the Canadian embassy Tuesday morning and said he wanted to stay there.

A day earlier, The Globe and Mail published a detailed account of Mr. Abdelrazik's predicament, drawing on more than 1,000 pages of government documents that detailed his multi-year ordeal during which the government repeatedly assured him that there was nothing it could do to remove him from international blacklists fingering him as a terrorist.

The government abruptly changed tack on Tuesday.

Foreign Minister Maxime Bernier decided to grant Mr. Abdelrazik “temporary safe haven,” said the minister's spokesman, Neil Hrab.

“We are currently reviewing his case,” Mr. Hrab added.

And in a carefully worded response, the government acknowledged that it understood “Mr. Abdelrazik is unable to return to Canada of his own accord.”

The response also acknowledged that repatriating the Canadian citizen would require either a government aircraft to circumvent no-fly lists or a serious effort to have him removed from the United Nations list of alleged al-Qaeda suspects.

For the government to provide even “temporary safe haven” on what is Canadian territory, the embassy in Khartoum, to Mr. Abdelrazik while the Canadian Security and Intelligence Service continues to finger him as a terrorist suspect suggests that the designation may be under review.

“He doesn't want to live out his days in the embassy,” said Yavar Hameed, an Ottawa lawyer representing Mr. Abdelrazik. “That's just a stopgap measure. … What he wants is to come home.” Mr. Hameed said the government should send a plane “to fly him out of there within days.”

As the government fended off questions and CSIS refused to say why it originally labelled Mr. Abdelrazik a terrorism suspect and al-Qaeda member, Opposition Leader Stéphane Dion said Mr. Abdelrazik “should be authorized to return to Canada,” adding that if there are serious allegations against him he should be charged and tried “in Canada.”

The Harper government has failed to protect Canadians overseas, Mr. Dion said in Quebec City. “The government should be much more determined in protecting the rights of Canadians everywhere in the world,” he said.

CSIS spokeswoman Manon Berube said “on the matter of Mr. Abdelrazik's status as a terrorist suspect, CSIS cannot confirm or deny any specific operational investigation.”

Mr. Abdelrazik, walked into the Canadian embassy at about 10:40 a.m., Tuesday, local time. According to Mr. Hameed, one of the Canadian diplomats stationed in Khartoum, Eric O'Connor, warned him to be careful “on the streets” because of the attention now focused on his case by reports of his predicament.

“I don't intend to leave the embassy,” Mr. Abdelrazik told the consul.

Mr. O'Connor said he needed to seek advice from Ottawa and hours later confirmed to Mr. Abdelrazik that he would be allowed to stay temporarily. Embassy staff bought him a pizza. Security personnel guarding the embassy were told that Mr. Abdelrazik was remaining inside.

The government's carefully chosen phase, “temporary safe haven,” stops far short of “sanctuary” or “refuge,” both of which could be construed by Sudan as suggesting the Canadian government believed Mr. Abdelrazik needs protection. Sudan has already issued documents saying it believes the accusations that he is a terrorist and al-Qaeda member are groundless.

A senior Foreign Affairs official called Mr. Hameed Tuesday afternoon to say an “evolving risk assessment” was under way with respect to Mr. Abdelrazik.

Meanwhile, his former wife, Myriam St.-Hilaire, who divorced him while he was in prison in Sudan, made an impassioned plea at an Ottawa news conference for his return. She said she was speaking on behalf of their five-year-old son.

“I'm here to be his voice, since he's too young to do so right now. Time is passing by, years are passing by and things aren't changing,” she said.

Ms. St.-Hilaire, who has said CSIS harassed her and Mr. Abdelrazik for years before he went to Sudan, also rejected the unsubstantiated allegations by counterterrorism agencies from Canada, France and the United States linking him to senior al-Qaeda figures, including Abu Zubaydah.

“The question that comes up over and over again: Is he a terrorist? I'll just answer plain and simple. He is not a terrorist. He is a Muslim. He is a practising Muslim, but a peaceful Muslim. And we just wish him to reunite with his family, with his children,” she said.

Mr. Hameed said his client has been a victim of “duplicity and disinformation” by Canada's Foreign Affairs Department, which has refused to help repatriate Mr. Abdelrazik based on “nebulous security concerns.”

In Toronto, Aileen Carroll, former federal minister for CIDA in the Liberal government and now Ontario Culture Minister, said she had been advised during a 2004 visit to Khartoum that the Sudanese government might ask her to take Mr. Abdelrazik home on her government Challenger executive jet.

“It would have been denied for the reasons that the gentleman's name was on the no-fly list, which means he is prohibited from flying on commercial air[lines] and most air[lines]. In addition to that, he would most likely not be permitted entry to countries that I would be required, … to stop [for refuelling] on my return to Canada,” she said.

But nothing in the UN sanctions precludes the repatriation of terrorist suspects, nor do commercial no-fly lists apply to government or military aircraft.

Canadian embassies have been used as safe havens in the past, most recently in 2004 when 44 North Korean defectors stormed over the wall in the embassy in Beijing. They lived there for three months before a deal was struck allowing them to make their way to South Korea.

But the arrangement in Khartoum is different because Mr. Abdelrazik has been granted “temporary safe haven” in an embassy located in the country of his other nationality and isn't seeking to reach refuge in a third country but rather return to Montreal, an effort that has been thwarted for years by the refusal of the Canadian government to issue him a new passport or have him removed from no-fly lists.

In Ottawa on Tuesday, Liberal MP Dan McTeague said the first thing the government must do in Mr. Abdelrazik's case is find out how and why he got on the no-fly list in the first place.

“I have no information as to how or why Mr. Abdelrazik was placed on that, but I think that would be the first order of business if the government wishes to have him returned to Canada,” Mr. McTeague said. “It is well intentioned to give someone a travel document, but if you have to transit through another country which will not allow a Canadian on such a list to get onto their planes, it kind of makes it impossible to get him back.”

Detainee driver slovenly, threatens boycott

GUANTANAMO BAY NAVY BASE, Cuba -- Osama bin Laden's driver appeared at his war crimes trial Monday looking disheveled and threatening a boycott.

Lawyers for Salim Ahmed Hamdan, 36, of Yemen filed a brief as far back as February protesting what they argue has been a protracted regime of virtual solitary confinement behind the detention center's barbed wire.

They argued that his mental health has deteriorated, and asked a Navy judge to intervene.

Prison camp spokesmen say there is no such thing as solitary confinement at Guantánamo. Detainees can see guards, get open-air recreation, shout to other detainees through slits in their cell doors through which food is delivered -- and sometimes see other captives coming and going through the slits, called ``bean holes.''

On Monday the judge postponed a hearing on the topic until the eve of his June trial. In response, the normally mild-mannered driver, a father of two with a fourth-grade education, looked stricken.

He then asked to be excused.

''I refuse all the lawyers. I refuse them working on my behalf and I'm sorry,'' Hamdan said. ``I don't allow them to represent me when I'm not here.''

Hamdan, facing life in prison on a charge of material support for terrorism, is the latest of a string of four war-on-terror detainees to seek to walk out on the proceedings.

He is accused of abetting a series of al Qaeda attacks around the globe, not by knowing about them or plotting them but by serving as bin Laden's $200-a-month driver and sometime bodyguard in Afghanistan leading up to the Sept. 11, 2001, attacks.

In a twist, he said he was banning any participation by his five-lawyer defense team -- including his first attorney, a former Navy lawyer turned college professor who took the Hamdan case to a landmark U.S. Supreme Court ruling.

It was uncertain whether Hamdan's boycott would hold. The judge called a recess to give the detainee a bathroom break, then extended it through the lunch hour.

The development was a surprise in a day that defense lawyers had predicted would go differently -- with testimony from the Pentagon's former chief prosecutor for Military Commissions, who resigned to protest what he described as trials rigged to win convictions.

Air Force Col. Morris Davis, the prosecutor who before he resigned filed charges against Hamdan, was outside the tribunal chamber when the captive broke from the script.

Hamdan rambled at times, saying his human rights had been abused, and in particular that ``my self-esteem . . .does not allow me to continue to speak.''

His appearance was striking. Throughout nearly four years at the defense table, he has consistently appeared elegantly groomed in traditional Yemeni garb -- a pristine white gown topped by a herring-bone jacket, a skullcap over tidy, short-cropped hair.

He would enter the court with a head scarf draped in traditional Yemeni style, then unfurl it over his shoulders as though removing his hat for the court.

Monday, as if to illustrate his attorneys' arguments that his mental health is deteriorating from five years behind the razor wire, he appeared slovenly -- in a rumpled tan, military-issue prison camp uniform.

He had long unkempt curly hair and a scraggly beard, and fidgeted with his headset through the preliminary proceedings.

The judge sounded sympathetic and politely asked Hamdan to take a seat after he stood up at the defense table -- bringing every guard in the room to his feet, on alert.

Detainees are routinely unshackled at the trials.

''I don't have control over the conditions of your confinement,'' said Navy Capt. Keith Allred, the trial judge. ``But your defense attorneys have asked me to look into the conditions of your confinement and grant you some relief.''

His trial has been a showcase for President Bush's military commissions. He was the first-ever charged when they opened in August 2004. He was among the first recharged after Congress authorized the trials following closure by the U.S. Supreme Court.

With delays in the trial of alleged child soldier Omar Khadr of Canada, Hamdan's is also slated to be the first full-blown war crimes trial.

Up until Monday, he had always exchanged warm smiles in the courtroom as the black-robed judge entered and left. Unlike other prisoners, he also stood in respect for his various judges.

He continued the practice of standing along with everyone in the court. But he cracked no smiles.

Part of the reason why Monday's hearing on the issue of his mental health and confinement was postponed was the absence of an expert. The Pentagon had refused a defense request to continue to engage as a consultant and expert witness a California psychiatrist who has evaluated Hamdan's health.

In February, the doctor, Emily Keram, filed an affidavit with the court that said Hamdan suffers nightmares, amnesia, anxiety, irritability, insomnia and a sense of ''hopelessness and helplessness'' as a result of his captivity as an enemy combatant.

Keram works with U.S. war veterans at the Veterans Administration and describes Hamdan as suffering post-traumatic stress disorder.

But the Pentagon's Office of the Convening Authority refused to fund Keram's continued work on the case, a denial the Hamdan defense team was challenging.

Scalia: Does Torture Violate ‘Cruel And Unusual Punishment’ Provision? ‘No.’

Last night, Supreme Court Justice Antonin Scalia granted his first broad-based television interview, to Lesley Stahl on CBS’s 60 Minutes. There he explained that the torture of detainees does not violate the 8th Amendment’s ban on “cruel and unusual punishment” because, according to Scalia, torture is not used as punishment:

STAHL: If someone’s in custody, as in Abu Ghraib, and they are brutalized, by a law enforcement person — if you listen to the expression “cruel and unusual punishment,” doesn’t that apply?

SCALIA: No. To the contrary. You think — Has anybody ever referred to torture as punishment? I don’t think so.

STAHL: Well I think if you’re in custody, and you have a policeman who’s taken you into custody–

SCALIA: And you say he’s punishing you? What’s he punishing you for? … When he’s hurting you in order to get information from you, you wouldn’t say he’s punishing you. What is he punishing you for?

Scalia’s parsing of the 8th Amendment blindly ignores reports showing that the abuse at Abu Ghraib was about humiliation and punishment, not information-gathering. In 2004, the Washington Post reported MPs involved in the abuse “said detainees were beaten and sexually humiliated as punishment or for fun.” A recent New Yorker profile of one of the soldiers there confirmed that “mostly what interrogators wanted when they asked for ’special treatment’ was punishment: take away his mattress, keep him awake, take away his clothes.”

What’s more, as Human Rights First points out, torture raises other constitutional questions besides 8th Amendment violations:

[I]t seems Justice Scalia has forgotten about the 5th Amendment’s guarantee of due process. Furthermore, a court holding a witness in contempt for refusing to cooperate with a judicial proceeding is, in fact, quite different than an interrogator resorting to physical abuse when a prisoner refuses to talk.

Scalia has repeatedly latched on to the “red herring” idea of a ticking time-bomb scenario to justify torture. He approvingly cites torture-happy Jack Bauer, the fictional star of “24,” and recently he declared it would be “absurd to say that you can’t stick something under the fingernails, smack them in the face.”

Letters Give C.I.A. Tactics a Legal Rationale

WASHINGTON — The Justice Department has told Congress that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law.

The legal interpretation, outlined in recent letters, sheds new light on the still-secret rules for interrogations by the Central Intelligence Agency. It shows that the administration is arguing that the boundaries for interrogations should be subject to some latitude, even under an executive order issued last summer that President Bush said meant that the C.I.A. would comply with international strictures against harsh treatment of detainees.

While the Geneva Conventions prohibit “outrages upon personal dignity,” a letter sent by the Justice Department to Congress on March 5 makes clear that the administration has not drawn a precise line in deciding which interrogation methods would violate that standard, and is reserving the right to make case-by-case judgments.

“The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act,” said Brian A. Benczkowski, a deputy assistant attorney general, in the letter, which had not previously been made public.

Mr. Bush issued the executive order last summer to comply with restrictions imposed by the Supreme Court and Congress. The order spelled out new standards for interrogation techniques, requiring that they comply with international standards for humane treatment, but it did not identify any approved techniques.

It has been clear that the order preserved at least some of the latitude that Mr. Bush has permitted the C.I.A. in using harsher interrogation techniques than those permitted by the military or other agencies. But the new documents provide more details about how the administration intends to determine whether a specific technique would be legal, depending on the circumstances involved.

The letters from the Justice Department to Congress were provided by the staff of Senator Ron Wyden, an Oregon Democrat who is a member of the Intelligence Committee and had sought more information from the department.

Some legal experts critical of the Justice Department interpretation said the department seemed to be arguing that the prospect of thwarting a terror attack could be used to justify interrogation methods that would otherwise be illegal.

“What they are saying is that if my intent is to defend the United States rather than to humiliate you, than I have not committed an offense,” said Scott L. Silliman, who teaches national security law at Duke University.

But a senior Justice Department official strongly challenged this interpretation on Friday, saying that the purpose of the interrogation would be just one among many factors weighed in determining whether a specific procedure could be used.

“I certainly don’t want to suggest that if there’s a good purpose you can head off and humiliate and degrade someone,” said the official, speaking on the condition of anonymity because he was describing some legal judgments that remain classified.

“The fact that you are doing something for a legitimate security purpose would be relevant, but there are things that a reasonable observer would deem to be outrageous,” he said.

At the same time, the official said, “there are certainly things that can be insulting that would not raise to the level of an outrage on personal dignity.”

The humiliating and degrading treatment of prisoners is prohibited by Common Article 3 of the Geneva Conventions.

Determining the legal boundaries for interrogating terrorism suspects has been a struggle for the Bush administration. Some of those captured in the first two years after the Sept. 11, 2001, attacks were subjected to particularly severe methods, including waterboarding, which induces a feeling of drowning.

But the rules for interrogations became more restrictive beginning in 2004, when the Justice Department rescinded a number of classified legal opinions, including a memorandum written in August 2002 that argued that nothing short of the pain associated with organ failure constituted illegal torture. The executive order that Mr. Bush issued in July 2007 was a further restriction, in response to a Supreme Court ruling in 2006 that holding that all prisoners in American captivity must be treated in accordance with Common Article 3.

Mr. Benczkowski’s letters were in response to questions from Mr. Wyden, whose committee had received classified briefings about the executive order.

That order specifies some conduct that it says would be prohibited in any interrogation, including forcing an individual to perform sexual acts, or threatening an individual with sexual mutilation. But it does not say which techniques could still be permitted.

Legislation that was approved this year by the House and the Senate would have imposed further on C.I.A. interrogations, by requiring that they conform to rules spelled out in the Army handbook for military interrogations that bans coercive procedures. But Mr. Bush vetoed that bill, saying that the use of harsh interrogation methods had been effective in preventing terrorist attacks.

The legal reasoning included in the latest Justice Department letters is less expansive than what department lawyers offered as recently as 2005 in defending the use of aggressive techniques. But they show that the Bush administration lawyers are citing the sometimes vague language of the Geneva Conventions to support the idea that interrogators should not be bound by ironclad rules.

In one letter written Sept. 27, 2007, Mr. Benczkowski argued that “to rise to the level of an outrage” and thus be prohibited under the Geneva Conventions, conduct “must be so deplorable that the reasonable observer would recognize it as something that should be universally condemned.”

Mr. Wyden said he was concerned that, under the new rules, the Bush administration had put Geneva Convention restrictions on a “sliding scale.”

If the United States used subjective standards in applying its interrogation rules, he said, then potential enemies might adopt different standards of treatment for American detainees based on an officer’s rank or other factors.

“The cumulative effect in my interpretation is to put American troops at risk,” Mr. Wyden said.