[Ppnews] Torturing the Rule of Law at Obama's Gitmo

[Political Prisoner News]

http://www.counterpunch.org/madar07302010.html

July 30 - August 1, 2010


Obama Bravely Takes on a Tortured Child Soldier


Torturing the Rule of Law at Obama's Gitmo

By CHASE MADAR

President Obama may lack the nerve to stare down 
Liz Cheney or Bibi Netanyahu, but no one can deny 
that our commander in chief has the guts to take 
on a child soldier. Come October, a military 
commission in Guantánamo will try Omar Khadr, a 
Canadian national captured outside Kabul in 2002, 
when he was just 15 years old. This will be only 
the third Gitmo trial and the Obama 
administration’s first, and there won’t be 
anything kinder and gentler about it.

But give our government credit for breaking new 
ground: no nation has tried a child soldier for 
war crimes since World War II, and the decision 
to prosecute Khadr has drawn protests from 
UNICEF, headed by a former U.S. national security 
adviser, as well as every major human-rights 
group. The audacity doesn’t stop there: charges 
against Khadr include “murder in violation of the 
rules of war,” a newly minted war crime novel to 
the history of armed conflict. Battlefield deaths 
do not usually result in murder trials for 
prisoners of war. But according to the Department 
of Defense, Omar Khadr is no POW. He’s a 
non-uniformed, “unprivileged belligerent.” In the 
euphemistic lingo of Gitmo, Khadr is not even a 
prisoner, just a “detainee” who has been awaiting 
trial for the past eight years.

This kind of court action would have made great 
copy under Cheney and Bush, noisome proof of 
their barbarity. Now everyone except the Right’s 
usual panic-merchants is sick of Guantánamo and 
wishes it had closed, as Obama promised, by the 
end of 2009. But that deadline has passed, and 
Gitmo will surely be open next year too. Several 
reporters told me they had to beg their editors 
to be sent down to cover the Khadr story.

Anyone expecting to witness eye-popping tableaux 
of Rumsfeldian cruelty at Gitmo will be 
disappointed. It’s a military base like many 
others, except instead of the nearby base town 
with obligatory pawn shop, strip club, and Korean 
restaurant, you find an impermeable barrier 
sealing base dwellers and visitors inside. 
Overall, it’s not a bad deployment: soldiers can 
at least get a beer off duty, the snorkeling’s 
good, and the roads are free of IEDs. Given the 
paucity of lurid local color, scribblers who take 
the military flight­when I flew down, a leased 
Delta aircraft from Andrews Air Force Base­have 
been reduced to soliloquizing about Guantánamo’s 
McDonald’s and the banality of evil amid the French fries.

Gitmo’s population continues to trickle away, to 
a point. Over 600 prisoners have been let go, 
most by the Bush administration, and of the 51 
habeas petitions for release filed since the 
Boumediene decision in 2008, 37 have been 
granted. Were these really “the worst of the 
worst”? Hardly. Still, the Obama administration 
has announced that it will continue to hold some 
45 detainees indefinitely without charges, one of 
George W. Bush’s most radical policies, now 
zealously defended by a smoother, smarter team of 
Democratic lawyers. This is exactly the kind of 
lawlessness that Harold Koh, a human-rights icon, 
used to condemn from his bully pulpit as dean of 
Yale Law. Now, as legal adviser to the Department 
of State, he’s tasked with justifying indefinite detention.

Of the 176 remaining prisoners, Omar Khadr is the 
youngest. The 23-year-old is now in the midst of 
pretrial suppression hearings to determine 
whether his confession of throwing a grenade that 
killed a Special Forces medic is admissible as 
evidence. Few would deny that Khadr was 
tortured­one interrogator testified that he first 
laid eyes on the youth hooded and chained to the 
walls of his cell, standing with his shackled 
arms extended at head level. The only questions 
are how much torture, exactly what kind, for how 
long, and whether it contaminates the confession 
that Khadr later retracted. The first round of 
hearings afforded a clear vantage into the legal 
black hole that Guantanamo very much remains.

The Obama administration has striven to paper 
over the abyss with a layer of legality. There 
are new, improved rules for the military 
commissions, signed by the secretary of defense 
the night before the hearings began. Alas, they 
continue to fall short in core areas of juridical 
fairness. There is no right to a speedy trial, no 
pretrial investigation to weed out weak cases, 
and the defense’s requests for witnesses must go 
through the prosecution. There is no credit for 
pretrial detention­now nearly a decade for many 
prisoners­and no right of equal access to 
witnesses and evidence. Freshly invented war 
crimes like “material support for terrorism,” 
retroactively applied, violate the fundamental 
juridical principle of nulla poena sine lege, no 
crime without a prospective law.

The greatest flaw is structural: the interference 
of the “Convening Authority”­the politically 
appointed head of the commissions­into the 
prosecutions has been documented again and again. 
Brig. Gen. Thomas Hartmann, former legal adviser 
to the Convening Authority, was so blatant in his 
attempts to secure convictions that he was banned 
from any involvement in three separate trials for 
his “undue command influence.” One former chief 
prosecutor at Guantánamo has said that Hartmann 
pushed hard for the Khadr case because he thought 
it would be “sexy, the kind of case the public’s 
going to get energized about.” Such micromanaging 
did not endear Hartmann to his colleagues: former 
deputy prison camps commander at Guantánamo Brig. 
Gen. Gregory Zanetti testified in 2008 that 
Hartmann’s conduct was “abusive, bullying and 
unprofessional 
 pretty much across the board.”

One might expect that a legal system thus rigged 
would greatly appeal to its prosecutors. Until 
now, one would be wrong. Half a dozen prosecutors 
have quit the commissions in disgust, most with 
blistering criticisms on their way out. Col. 
Morris Davis, former chief prosecutor of the 
commissions until October 2007, said that 
constant political pressure made full, fair, and 
open trials impossible: “What we are doing at 
Guantánamo is neither military nor justice.”

No less scathing is Lt. Col. Darrel Vandeveld, 
formerly lead prosecutor in another commissions 
case against a child soldier­a case that 
collapsed midway through, with the government 
dropping all charges. “It would be foolish to 
expect anything to come out of Guantánamo except 
decades of failure. There will be no justice 
there, and Obama has proved to be an almost 
unmitigated disaster,” he told me. After 
resigning from the commissions as a matter of 
ethical principle, Vandeveld was punished with a 
mandatory psychiatric evaluation and gratuitous 
hearings into his fitness for remaining in the 
Army, even though he now has only two months 
remaining in his term of service. Vandeveld, who 
has deployed to Iraq, Afghanistan, and Bosnia, 
doubts very much that any more prosecutors will 
resign after his highly visible reprimand.

The new head of the prosecution team, Capt. John 
Murphy, told me proudly that morale has never 
been higher on his team. Half of the four lawyers 
looked young enough to have started law school 
long after 2001, and it is hard to imagine young 
attorneys quitting the commissions without established careers to fall back on.

This may spell the end to a golden chapter in JAG 
history: throughout the sordid drama of 
Guantanamo, the few glimmers of governmental 
integrity have come from the JAG corps’ dissent. 
They even earned that ultimate ethical accolade, 
the disapproval of John Yoo, who scolded the 
military lawyers for adhering to the rule of law 
in defiance of the “unitary executive authority” 
as embodied by torture buffs such as himself.

For its part, Team Obama’s main innovation has 
been to ban troublesome journalists from the 
base, a move Bush never dared. On May 6, toward 
the end of this round of hearings, the Joint Task 
Force abruptly barred four of the most 
knowledgeable reporters from returning to Gitmo, 
accusing them of violating an order that the 
identity of Omar Khadr’s primary interrogator be 
kept secret. It doesn’t matter that “Interrogator 
Number One,” convicted in a 2005 court martial 
for prisoner abuse at Bagram prison, had already 
been interviewed by one of these journalists two 
years ago and that his identity is available in the public record.

One of the banned journalists, Carol Rosenberg of 
McClatchy, was hounded last summer by a risible 
and quickly dismissed sexual harassment complaint 
made by Navy press officer Jeffrey Gordon. 
Rosenberg is the acknowledged dean of Gitmo 
journalists, and getting rid of her would be a 
singularly effective way for the Department of 
Defense to regain some control over the sordid 
War Court narrative. Carol and two other 
journalists have since been reinstated after 
reaffirming their allegiance to the DoD’s “ground 
rules” at Gitmo, but the government’s warning shot has registered.

The uproar over the banned journalists did 
successfully deflect attention from the 
prosecution’s cosy arrangements with a convicted 
detainee abuser. Joshua Claus, or interrogator 
number one as he was called in the hearings, was 
court-martialled for detainee abuse in 2005, and 
pled guilty to maltreatment and assault on a taxi 
driver known only as Dilawar, who was beaten to 
death by his Bagram interrogators. (Dilawar’s 
crime had been to drive his taxi near the 
detention centre at the wrong time.) Though Claus 
was not convicted of murder (no one was), he did 
admit to throttling Dilawar and forcing water 
down his throat, and he was the last interrogator 
seen with the prisoner before his death. Claus's 
pledge to cooperate with the Khadr prosecution 
team helped earn him a lenient sentence of only 
five months. Though called as a defense witness 
in the recent Khadr hearings, Claus had spent far 
more time conferring with the prosecution, and 
his well-prepared statements in the hearings 
evinced much rehearsal and preparation. The 
prosecution’s chummy working relationship with a 
court-martialed detainee abuser: this is not the 
stuff for an Obama-era rehabilitation of Guantánamo’s public image.

And that image remains pretty terrible, even if 
Camp X-Ray, the open-air cages that held orange 
jumpsuited detainees for four months in 2002, is 
now growing weeds. Camp Delta, the detention 
complex, is rather prosaic. Camp 5, for the least 
compliant prisoners, is a direct modular copy of 
a block from the federal prison in Terre Haute, 
Indiana; Camps 4 and 6, for the most compliant, 
of Lawanee Prison in Adrian, Michigan. Some 
detainees are able to take courses in Arabic, English, and art. And so what?

A prison doesn’t have to be a Gothic nightmare to 
threaten the rule of law. As the ACLU’s Ben 
Wizner puts it, “At this point, Guantánamo isn’t 
a place anymore, it’s a principle.” A 
normal-looking prison that just happens to hold 
people indefinitely without charge is a more 
insidious threat to the integrity of the legal 
system than Camp X-Ray ever was. For this reason, 
the ACLU does not see transporting the system to 
Thomson Correctional Facility in Illinois as any kind of progress.

Guantánamo, wherever it is located, runs the 
grave risk of normalization, a process already 
well underway. Over a few nights during the Khadr 
hearings, I read in my air-conditioned tent a 
law-review article by Prof. Adrian Vermeule, an 
up-and-comer at Harvard Law School. He proposes 
that legal black holes­the term was coined by a 
British law lord expressly for Guantánamo­are not 
only tolerable but necessary. Any attempt to fill 
them in with law would be “hopelessly utopian,” 
“quixotic” even. “Our Schmittian Administrative 
Law,” published last year in the Harvard Law 
Review, draws heavily on the work of Nazi jurist 
Carl Schmitt, lifelong opponent of the rule of 
law and liberal democracy. A chronic figure of 
fascination among lefty academics for the cold 
eye he cast on liberalism’s sacred myths, 
Schmitt’s ideas had always been held at a prophylactic distance.

No longer. Schmitt’s ready-made conceptual 
lexicon for political emergencies, non-state 
combatants, and the need for strident executive 
authority has proven irresistible to ambitious 
intellectuals in the revolving door between the 
federal government and the finer law schools. 
These tweedy immoralists urge us to relax our 
square-john commitment to the rule of law and 
embrace strong executive action. Surely the 
moralizing banalities of rule-of-law theorists 
are inadequate for the unique challenges of the 
post-9/11 global order, they tell us.

But after the events of the past decade, one 
would be on safer ground drawing the opposite 
conclusion about the rule of law’s value. Our 
government responded to 9/11 with extraordinary 
measures contemptuous of ordinary legality, and 
every one of them has been catastrophic. From the 
conquest of Iraq to waterboarding to warrantless 
wiretapping to the military commissions of 
Guantánamo, these policies have been exorbitantly 
costly in blood, money, and national prestige. 
Nor is setting up a shambolic court to try a 
child soldier who was tortured in custody likely 
to solve anything. Has any part of our frenzied 
rejection of legal restraints improved national security one bit?

Vermeule is correct to note that these black 
holes are likely to dilate rather than contract 
as an imperialist foreign policy strains our 
legal system, not only with the panic and fervor 
of war but with juridical conundrums of 
extraterritoriality, non-state belligerents, and 
geographically far-fetched definitions of 
self-defense. Already a new Guantánamo for 
indefinite detainees has opened up in Bagram, 
which will be much less accessible to media, 
nonprofit observers, and defense counsel.

Meanwhile, the rule of law will continue to 
suffer rough treatment at the hands of our best 
and brightest. The concept has been debunked by 
many postmodern academics as so much high-minded 
bourgeois blather and, more dangerously, derided 
by the neoconservative Right as a folktale for 
chuckleheads. But people in countries where 
violent lawlessness is rife see the rule of law 
as something more than rhetorical window 
dressing. From Colombia to Egypt to Italy to 
Guantánamo’s neighboring Cuba, citizens who risk 
their lives against the depredations of organized 
crime or authoritarian states routinely invoke 
the rule of law to give meaning to their acts of 
resistance. Yes, the rule of law may be an ideal­but it is not only an ideal.

Repairing legal black holes in America may start 
by shutting down Guantánamo, wherever the 
detention complex ultimately winds up, and 
radically rethinking our post-9/11 security 
policies. Indefinite detention in some 
nondescript prison with a few art classes doesn’t 
make for splashy headlines, but it marks the 
beginning of the end of the rule of law.

Chase Madar is a lawyer in New York, and can be 
reached at <mailto:chase.madar at gmail.com>chase.madar at gmail.com.

This is an updated version of a piece that 
originally appeared in the August 2010 edition of 
The American Conservative, a nonpareil source of 
anti-imperialist news and opinion.




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