5-3-2010By Daphne Eviatar
Senior Associate, Law and Security
As the government continues to pursue the case of Omar Khadr, it’s becoming clear why the administration chose to try this case in a military commission rather than a regular civilian federal court: a law-abiding federal district court judge would almost certainly throw the case out.
The reason isn’t only that Khadr was, at worst, a child soldier – he was 15 when he was captured in a compound of al Qaeda associates who were friends of his father’s. It’s that his statements recounting what he did before his capture would almost certainly be ruled inadmissible.
Khadr is accused of throwing a grenade in a firefight with U.S. forces in Afghanistan that killed an American soldier. He’s also accused of assisting al Qaeda operatives – all friends of his father’s – in making and laying explosives.
Although almost killed in the firefight, Khadr eventually regained consciousness at the US air base in Bagram, where he was immediately interrogated. Among other things, he provided valuable information about al Qaeda operatives.
Four of his interrogators took the stand last week in a pretrial hearing in Khadr’s war crimes case now pending in the military commission at Guantanamo Bay.
So far, two military interrogators and two FBI agents have described how they ingratiated themselves to the young teenager by bringing him M&M’s, McDonald’s sandwiches and video games. One, an attractive young woman identified only as “Number 11,” says she was chosen to question him in the hopes that he would open up to her as “a mother figure.” Whether he saw the lithe twenty-something brunette as motherly or something else is questionable. (Journalists at Gitmo last week took to calling this witness “the honeypot.”)
Setting aside the ethics of using an attractive young woman to lure an adolescent boy, there’s a striking problem raised by all of the interrogators’ testimony so far: not one read Khadr his rights. That was U.S. policy at the time, because the government’s goal was to obtain military intelligence, not to prosecute crimes.
These days, critics mock the idea that terror suspects should be read Miranda rights – a Supreme Court rule created to ensure the 5th Amendment right against self-incrimination. But what’s become clear in the military commission proceedings last week is the critical role that rule plays: to ensure that confessions are voluntary, and that the suspect knows that his statements could be used against him later.
The aim isn’t to make the suspect clam up, as Senators Lindsey Graham or Mitch McConnell might claim. The idea is, at least in part, that if a suspect doesn’t know how his statements will be used, he may be more likely to make stuff up. How else to explain the many different versions of his story that Khadr told different interrogators?
In one version, for example, Khadr said he remembers throwing the grenade – although he was shot twice in the chest and knocked unconscious moments later. It was the first time he’d ever thrown a grenade, he claimed, so he threw it just like he’d seen it done in the movies. In another version, he told a different interrogator that he’d had lots of training in small arms fire. He never mentioned the movies.
Then there’s the story Khadr told another interrogator, that both of his parents had been killed in a car accident. He told a different questioner that his father had died in Egypt, and his mother had died of cancer.
Khadr also reported enjoying his celebrity among the detainees at Bagram, who recognized his father as a high-level Al Qaeda operative. Khadr boasted to them that he’d killed a U.S. soldier.
Are these statements incriminating evidence that support the government’s case, or boastful talk by a teenager bored out of his mind in prison and eager to please his attractive and generous visitors? It’s worth noting that between interrogation sessions, Khadr had fits of uncontrollable sobbing, crying for his grandmother and acting “suicidal and depressed,” as one FBI agent described it in his notes. On the witness stand, the agent attempted to retract that statement: ” ‘crying and inconsolable’ would have been more accurate.”
Khadr believed, as one interrogator testified, that cooperating and telling them what they wanted to hear would lead to his prompt return to Canada – not to his detention in a U.S. military prison without trial for the next eight years.
As he heads to trial this summer, Khadr is no longer boasting that he threw a grenade or willingly manufactured explosive devices. Now, represented by lawyers, he’s claiming he was abused at the Bagram and Guantanamo prisons, that his statements were involuntary, and that all of them should be suppressed.
The defense team has not yet had an opportunity to call witnesses to support that claim, and it may be impossible get at the truth of what happened in the military commissions. That’s because only the government has the power to compel interrogators to testify. Not surprisingly, those that have testified so far say they were exceedingly nice to Omar Khadr.
But Khadr was questioned by more than 30 different interrogators. His defense lawyers want to interview them all about Khadr’s treatment – including one who the defense says already told the government that Khadr was threatened with rape, confirming one of Khadr’s claims. But the government has refused to make any of the interrogators available to the defense for questioning.
The judge may be able to order some interrogators to appear in court, although he hasn’t done it so far – and the commission rules don’t require it. Issued just last week, the rules say a defendant is not entitled to the same access to evidence that the government has, as he would be in a military court martial. In the military commissions, the defense is entitled only to “reasonable access” to evidence.
If an interrogator is overseas, or is a CIA agent whose identity is secret, is it “reasonable” to require him to appear? The rules don’t say, giving the judge great latitude to say no. It’s not even clear if the judge has authority to compel testimony from a witness in a government agency outside the military. All of this could make it impossible for the defense to even present evidence supporting Khadr’s claims.
After the first week of this hearing, whether or not Omar was abused in prison seems almost beside the point. The government’s own witnesses are portraying him as a child who was victimized by the adults who raised him, then used by U.S. authorities to extract information, which he willingly provided – only to have it used against him years later, after he’d finally become, at least technically, an adult.
The rules governing federal courts – that suspects must be read their rights for their statements to be admissible, that law enforcement must seek the consent of a child’s parent or guardian before questioning him, and that the defense can issues subpoenas to compel witnesses to testify – are not trivial technicalities. They all exist for a reason: to ensure that trials are fair and justice is done.
The Bush administration started the United States down a very rocky path by abandoning those rules in the “war on terror.” The Obama administration does not have to continue in that direction.
Omar Khadr, who this past week was apparently so distraught that he refused to attend his own trial, may have given up hope that justice is anywhere in the cards for him. The government still has the opportunity to prove him wrong.