Aug
28

Some Questions About The Prosecution of Omar Khadr

Was anyone really surprised that 15-year-old Omar Khadr was lied to and threatened with what amounts to sadistic torture by U.S. interrogators?  Our courts condone police lying. Police departments tolerate it. Officers do it all the time, and then lie about doing it. Only defendants are held accountable for lying.

What surprises about the Khadr prosecution is that the interrogators admit lying. Therein lies the difference, I suspect, between the civilian and military justice system: In the military, officers who lie under oath can be punished severely. Few would dream of punishing a lying cop.

Khadr was captured by U.S. troops in Afghanistan and is accused of throwing a hand grenade at a U.S. solider, killing Army sergeant  Christopher Speer. That was eight years ago. Khadr, now 23, is set to face trial in the first case to be tried before the Guantanamo Tribunal.

While the boy solider was being interrogated years ago by a burly he-man of a intelligence operative, he was told that another young man who had not been forthcoming had been sent to an American prison where he died after a gang rape. Presumably, this implied threat loosened the lips of Khadr.  His words, no doubt, will now be used in the effort to condemn him.

My clients often tell me of threats being made to them by civilian police officers. When officers are confronted on the witness stand with these allegations, they routinely deny them, often times feigning great insult that anyone would accuse them of such a thing. The police are no doubt afraid that civilian jurors would disapprove of such thuggery. The reason police have a policy against tape-recording interrogations is so that they can lie about what goes on behind closed doors.

In the Khadr case, the trial judge was not offended at all by thuggery. Threatening a boy with gang rape was not so coercive as to render his confession involuntary, no, not at all.

What astonishes about the Khadr prosecution is that the interrogator admitted behaving like a two-bit punk. I suspect that was because in some fundamental respects the military justice system is superior to its civilian counterpart: Military officers found to have lied to superiors can be court-martialed, dishonorably discharged or even imprisoned. There is an honor code in the military that imposes a requirement to be truthful. Our civilian police departments too often give only lip service to the truth. That's why scholars write about the phenomenon known as the blue wall of silence. Ask Frank Serpico about what happens when you violate that code.

The Obama administration is rightly concerned about international reaction to this the first of the Guantanamo trials. Just why we are prosecuting the boy in a military tribunal is not at all clear to me. If the child cloaked himself in the garb of a soldier, and we are truly at war with terror, then why a trial at all? Don't combatants aim to kill one another? A war against terror is a war against a shadowy non-state entity peopled by non-conventional soldiers. Just what is it that we are trying to prove with this trial?

If the claim is that the boy is a civilian then why try him in a military court? We look like a cowardly giant placing a kid on trial in a kangaroo court while simultaneously thumbing our nose at the International Criminal Court. If this boy attacked us because we have declared war on something he cares to defend, then how does a military tribunal gain jurisdiction over this civilian? Shouldn't this really be a matter of international law? Trying Khadr in a military tribunal looks a lot like Mafia chieftans convening to pass judgment on the lone Irishman in their neighborhood.

Someone enlighten me about why this improvident prosecution is taking place. I just don't get it.
Comments (2)
Posted on August 29, 2010 at 7:29 pm by Diane1976
Why is Khadr being prosecuted in the first place? ...
Why is Khadr being prosecuted in the first place? Good question, not usually raised by anybody in the media. Morris Davis, the former prosecutor, gives a suggestion at the Huffington Post.

Khadr's case is based on original Bush theory. Anybody connected to AQ, Taliban or related groups was an "unlawful enemy combatant", a criminal, in the War on Terrorism. Anybody who fought the US invasion of Afghanistan was included along with anybody they rounded up there or had turned over to them for bounties.

They found themselves with hordes of prisoners, supposed criminals, they couldn't prosecute for anything. Those they could, were mostly cases hard to explain to the public. But, here was Khadr. He fought against US troops. He might even have killed one. His father had AQ connections and that made him a "terrorist". He was one of their best cases.

Much of the public did relate to the Khadr case but many people, particularly legal and human rights experts found the case absurd and disgusting. Who ever heard of the "war crime" of killing a soldier in a war? He was only 15, raised mainly in and near Afghanistan and recruited into the war by his father. How could the US invade a foreign country and charge an inhabitant, especially one so young, with the "war crime" of fighting back? What about the international law that requires countries like the US to offer assistance to minors illegally recruited into armed conflict? Prosecuting him for fighting in the war completely undermines the law, outraging groups like UNICEF and Amnesty International, et al. Some said even if he was prosecuted it should be under domestic law in a domestic court, not a war crimes trial.

But, the Bush Admin persisted in knitting their case, interrogating him for two years without access to a lawyer under highly questionable conditions, using the so-called "frequent flyer program" (reported by Canadian intelligence officers who were allowed to conduct a few interviews), if nothing worse, as stories of torture in the prisons multiplied, and creating a pretense of applying international law. Whether the case is even in line with the Military Commissions Act is questionable. See an article by Lt. Col. (ret.) David Frakt at the Huffington Post.

Now it's 8 years later. Many in the Obama Administration, if not the president himself, no doubt find the case ludicrous and embarrassing. But they're stuck with it. Expectations that the soldier's death will be paid for and the grief of his family and friends will be relieved by a conviction have been raised, although that doesn't normally happen when a soldier is killed in battle even in wars against irregular armed groups. Obama can't risk any more accusations of being on the side of the terrorists.

There have been hints the Obama Admin would like Canada to ask for repatriation to get them off the political hook. Canada's current right wing minority Conservative government has no interest in doing so. They have defied Parliament, fought the courts and ignored a host of national and international organizations to avoid it.

What purpose does it serve? Well, it would make a great recruitment video for anti-US forces about a young "hero" who fought with a tiny band against numerous troops and survived a massive bombing attack, and then was tortured and subjected to a widely discredited "show trial" by the US.

Posted on August 29, 2010 at 6:14 am by Henry Berry
Pattis writes, "The reason police have a policy ag...
Pattis writes, "The reason police have a policy against tape-recording interrogations is so that they can lie about what goes on behind closed doors."

Tape-recording would be a step in the direction of holding law-enforcement accountable. However, this is not foolproof. I have evidence of tampering with a tape recorded by a court stenographer at a civil case of mine at the Bridgeport Superior Court on Main Street. I have identified a judge, two lawyers, and the then-head of the court reporters at this Connecticut court as being involved with the tampering of the tape. But they left in one tell-tale detail evidencing that the tape had been tampered with.

The untouched tape recording had relevance as evidence of motivation in my defense if my case for harassment had not been dismissed once I pointed out lies in the complaint. If there had been a trial, I would have used the tampered-with tape both as evidence of motivation and also evidence of coordinated criminal activity by individuals in the public and private sectors of the Connecticut legal system.

One proof of that the tape had been tampered with was that the court stenographer recording the tape was summarily moved to another court house when it was she I first approached to get copies of the section of the tape I was interested in and then questioned her on it when I got the tampered-with tape.

In my harassment case, I faced layers of duplicity--much of it coordinated--involving individuals from a judge through court staff, police officers, and a witness persuaded to make a complaint containing false statements. (Contact me for details including names if interested.)

Televising interrogations would make law-enforcement illegalities relating to trying to convict persons more difficult. But law-enforcement adamantly resists this too.

This reminds me of my adage, "The more the government wants to know about you, the less it wants you to know about it." Government routinely makes the case (rightly) that TV cameras placed at locations on city streets, at airport terminals, and many public locations and facilities will help lower crime (although probably all it does is move it to different places). This is a simple, undisputed truth accepted by all sensible individuals (e. g., storekeepers) with an interest in providing themselves with an increased measure of protection and enabling the identification and arrest of individuals committing criminal acts caught on camera.

Yet law-enforcement resists this simple, undisputed truth accepted by all sensible individuals. The reason for this is that law-enforcement insists on reserving its prerogatives to commit crimes of its choosing whenever it suits them. Government, and particularly law-enforcement, tries to make the case that there is no doubt televised material is a significant tool for crime control or even resolving conflicting descriptions or claims regarding incidents, yet this significant tool is inapplicable to it, even in this day when the public rightly has questions about its good faith and openness and even purpose. Government and law-enforcement are thus declaring that the public should not be afforded such convenient, common sense tools assuring the public that they are law-abiding, fair, and competent.

This is just another example of why their is a wide and growing gulf between the public and the government, and growing distrust of law enforcement. You'd think under the circumstances, law enforcement would be doing what it so obviously easily could to strengthen this necessary trust. But no...
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
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