Friday, May 30, 2008

Judge Fired in Khadr Case

The U.S. military judge presiding over the trial of Canadian terrorism suspect Omar Khadr has been fired, said Khadr's lawyer.

In a news release issued Thursday, Lt.-Cmdr. William C. Kuebler said the judge, Col. Peter Brownback, was replaced after threatening to suspend proceedings in the case earlier this month.

Brownback told prosecutors they had to provide Khadr's defence lawyers with records of his confinement at the detention camp in Guantanamo Bay, Cuba, or he would suspend the proceedings.

Kuebler, Khadr's U.S. military-appointed lawyer, said he learned Brownback had been fired in an email from the chief judge of the U.S. military commissions, Col. Ralph Kohlmann. Kuebler's news release also included an email sent Wednesday by lead prosecutor Maj. Jeff Groharing, which complained of numerous delays in trial proceedings.

Kuebler told he believes the prosecution hopes the change will "speed things up."
The trial of Omar Khadr as an armed enemy combatant has been a showcase for all the ways that Bu$hCo™ can twist the concept of 'justice' out of shape until it's beyond recognition. To begin with, under international convention Khadr, who was only 15 years old when captured should never been treated as a soldier under international conventions, but as a VICTIM of war. He barely survived the wounds he suffered when two rounds hit him IN THE BACK as he tried to flee American soldiers.

Not a pretty sight, is it? Adding insult to injury the government locked him up as an enemy combatant and he eventually wound up in Guantanamo Bay, facing charges for murdering a US marine sergeant by lobbing a hand grenade during a firefight. There are a couple of inconvenient facts that contradict that conclusion, and in any kind of non-Kafkaesque world he'd have been exonerated long ago.

The first fact was that Khadr was captured in a building that also contained another brown-skinned Muslim, who may have been the one to have tossed the grenade. The other person, an adult, was killed when he was also shot by the same marines infuriated by the death of their corpsman. So he could have just as well been the man for whose crime Omar is standing trial. But the other fact is even more inconvenient. There were no grenades found inside the hut where Khadr and his companion were holed up, but the US forces were using them. It was most likely a case of 'friendly' fire. (Now THERE is an oxymoron for you.)

So Khadr's adolescence and brief adulthood have been dominated by this travesty of justice created by the Military Commissions Act, a travesty in its own right. Normal civilian courts were not corrupt enough for the Bush administration, even with prosecutors and judges having been purged of all but 'loyal Bushies.' Even the military courts that might have saluted, said, "Sir, yes sir!" and done whatever they were ordered could not be relied upon to be sufficiently compliant. A whole new legal mechanism had to be created for the occasion, one whose rules could be adjusted in the prosecutions favor as the trial went along. The situation is so corrupted and devoid of normal legal niceties that even the former lead prosecutor has criticized the process openly. From TPMmuckraker:
The current chief judge there has written that the military tribunals have “credibility problems." And the former chief prosecutor, after resigning, publicly criticized the system as "deeply politicized."

Now that former prosecutor, Col. Morris Davis, has given more evidence of that politicization in an interview with The Nation after the six Gitmo detainees were charged. Davis says that in an August, 2005 meeting with William Haynes, then the Pentagon's general counsel, Haynes seemed to completely discount the possibility of the military tribunals acquitting any of the detainees. Now, of course, Haynes has been installed as the official overseeing the whole process, both the prosecutors and the defense. From The Nation:
"[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, something that had lent great credibility to the proceedings.

"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals, we've got to have convictions.'"

Davis submitted his resignation on October 4, 2007, just hours after he was informed that Haynes had been put above him in the commissions' chain of command. "Everyone has opinions," Davis says. "But when he was put above me, his opinions became orders."
I'm no lawyer, but when the outcome of a trial becomes dependent upon how it looks politically for the government rather than on the facts of the case, something is terribly wrong. When I first blogged about Omar Khadr back in June of last year, it was to announce that the charges against him had been dropped. The travesty then was that the dropping of all charges did not mean that Khadr was going to be released. That's right, even though it was ruled that the Military Commissions didn't have the authority to try Khadr, the US government could still hold him in a cell indefinitely. This is why the MCA is such a piece of vile shit, it purports to suspend habeas corpus in DIRECT violation of the US Constitution (Article 1, section 9.) The clowns currently masquerading as the US Supreme Court have refused to rule on this issue, to their eternal shame.

Five months later came the news that the Khadr trial had begun, accompanied by protests from Khadr's defense that the prosecution had withheld exculpatory evidence from an eyewitness. In a normal civilian court that would have led to the charges being thrown out of court and the prosecutor facing sanctions, possibly even disbarment. This is serious shit, or so I'm led to believe.

There has been a glimmer of hope in Khadr's case recently. One development had the Supreme Court of Canada (SCC) rule that Khadr's defense would have access to documents generated when Canadian officials interviewed him at Guantanamo. The other, much more significant, was the move Col. Brownback was making to dismiss the case. And then he gets fired. I'm trying to think of a way that political interference could be more blatantly signaled than that, but I'm having a hard time of it. This latest move reaches a new low even for the Bush administration.

A couple of excerpts from Guantanamo's Child give just a glimpse of the humiliation and pain that this young man has suffered in his brief life.
There were raw scars on his chest where there had once been two deep holes. Shrapnel had punctured the skin along his arms and legs. While the nicks and scrapes can sometimes look minor, they have a cruel habit of causing pain for years to come. Doctors will often not remove embedded shrapnel, preferring to allow the body to work on its own to eject foreign objects. While considered safer than extraction, it is incredibly painful as the shrapnel works its way to the surface, eventually bursting through like blood blisters.

The guards left him in the interrogation booth for hours, short-shackled with his ankles and wrists bound together and secured to a bolt on the floor. Unable to move, he eventually urinated and was left in a pool of urine on the floor.

When the MPs returned and found the soiled teenager, Omar's lawyers later said, the guards poured pine oil cleaner on his chest and the floor. Keeping him short-shackled, the guards used Omar as a human mop to clean up the mess. Omar was returned to his cell and for two days the guards refused to give him fresh clothes.
When and if the Bush crime family is ever put on trial for war crimes, I expect the Khadr case to be particularly problematic for the defense.


Oh, and one other thing. Colonel Brown can hardly be considered to be a civil libertarian upstart in this case, or he would have tossed it long ago on any one of a number of points of law. As this story shows, he was dismissive of America's obligation under international treaty with regard to Khadr's status as a child soldier when he was captured.
Colonel Peter Brownback issued a brief ruling in which he described the international statutes dealing with the protection of children involved in armed conflict as “interesting as a matter of policy,” but made it clear that they would have no impact on the kangaroo court proceedings organized by the White House and the Pentagon at Guantanamo.
That story was from less than three weeks ago. Brownback has been ruling in favor of the administration in nearly every instance up until now. But he takes one step out of line and look what happens. It speaks volumes.

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