Khadr Sentenced To 40 Years By Military Tribunal

[Sharpshooter]

No haven't had time yet but I doubt he sent himself over to Al Queda.

[ronthecivil]

Since you assert that He ws a member of Al-Queda, please prove it by providing me some evidence before continuing in that ignorant assumption. Oh, and since you're going to say his father was in it, prove that to me too, oh and since you'll say that the U.S. Army intel has proven it, show me the proof, and what hasn't the U.S. Army intel gotten wrong before, manipulated and flat out lied about??

I await your findings and reply.

[Wetcoaster]

I have said all along that I agree that the US system used here was shady and innappropriate but the US did not 'make up' the GC. The GC clearly sets out the criteria required for a person engaged in combat to be given their protections. The uniform issue is a red herring - the GC provides protection for those that don't wear them under CERTAIN conditions. Essentially, the GC will protect you if you abide by the laws of war and carry arms openly, with or without a uniform. The 'Taliban' and AQ do not in almost every circumstance.

[Wetcoaster]

Since you assert that He ws a member of Al-Queda, please prove it by providing me some evidence before continuing in that ignorant assumption. Oh, and since you're going to say his father was in it, prove that to me too, oh and since you'll say that the U.S. Army intel has proven it, show me the proof, and what hasn't the U.S. Army intel gotten wrong before, manipulated and flat out lied about??

I await your findings and reply.

[Wetcoaster]

They might be tangents, but the last few pages I was mostly interested in the possible risks (and benefits) of doing things the way they were supposed to be done. That's hardly bizzare and if the thread is about how things were done illegally then talking about the implications of doing thing legally should be looked at. After all, it might play into why things were done illegally.

[GarthButcher]

Jah, I think that your input has been of great value in this thread. It's interesting to hear an informed legalistic opinion from the perspective of the military. At the same time, some of the interpretations you've expressed have been a frightening look (personally) into the mentality of a professional soldier.

While treaties and conventions are important guidelines for the waging of conflict, there is a serious risk of not seeing the forest from the trees. Matters of life and death are not easily categorized and filed in normal situations, and there is a serious risk involved in the interpretations of these rules on the part of actors in a conflict.

This is at the heart of objections about the Khadr case. It would take a military mind (or someone predisposed to sympathy towards that acting party in the conflict) to accept such justifications for brutality.

I am not claiming that you agree with the tribunal system, as you've stated clearly that you're not.

The whole question touches on the fog of war. It harkens back to the theme of my favourite movie of all time (Apocalypse Now) where they've charged Kurtz for murder in the middle of the Viet Nam war.

Bureaucratizing war is a very dangerous game, and risks losing sight of the forest from the trees.

As for the title of the thread, I figured it was a mod. Not the biggest deal. I just didn't like the title change because the 40 year sentence was a moot point after the plea deal. It was some attempt at a self-justification after the US sidestepped the process. The reality is, the reason the trial has finished is because of the plea deal and little else.

[JAH]

The US made their own definitions to get around the Geneva Conventions and then claimed "See not under the GC" They had "Made in the US of A" definitions of "unlawful enemy combatant" and "unprivileged belligerent".

Khadr was charged with "murder in violation of the laws of war" - a war crime not recognized internationally -just in this US bastardized system.

As noted by Jason Ralph who is a professor in international relations at the University of Leeds. He is an expert in the fields of international law, American foreign policy, human rights and the war on terror.

The issue here is that "murder in violation of the laws of war" – the charge laid against Khadr – is not recognised internationally as a war crime. Following the Bush administration's lead, the US Congress insisted in the 2009 Military Commission Act that any civilian targeting an American soldier was an unprivileged belligerent guilty of murder or attempted murder. But "unprivileged belligerent" is not a category of combatant defined in the laws of war.

Under the Geneva conventions, violent individuals are either combatants or civilians. As an enemy combatant, one would have expected Khadr (age aside) to be targeting US soldiers.

Of course then stripping Khadr of all opportunity to make full answer and defence as result of removing virtually all procedures and protections that might have at least given him the chance to a fair trial, the guilty plea was coerced. These rights arer also guaranteed at international law.

Here is what Lt. Col. David Frakt, a law professor and the former military defense attorney at Guantanamo Bay had to say on the issue - when it came to the central charge of "murder in violation of the law of war," He says even if Khadr did throw the grenade, "there is no evidence that he violated the law of war in doing so."

Frakt explained that the Bush administration's original invented charge for the commissions - "Murder by an Unprivileged Belligerent" - was, essentially, replaced by the Congress-endorsed "Murder in Violation of the Law of War," even though it "conflated two different concepts - unprivileged belligerents and war criminals." He went on to examine international law:

Under Article 4 of the Geneva Prisoner of War Convention, it is clear that while a member of an organized resistance movement or militia may be an unprivileged belligerent (because of not wearing a uniform or failing to carry arms openly, for example) he may still comply with the laws and customs of war, so not all hostile acts committed by unprivileged belligerents are war crimes. Attacks by unprivileged belligerents which comply with the law of war (in that they attack lawful military targets with lawful weapons) may only be tried in domestic courts. In Iraq, for example, insurgents who try to kill Americans by implanting roadside bombs are properly arrested and tried before the Central Criminal Court of Iraq as common criminals. Attacks by unprivileged belligerents which violate the law of war, such as attacks on civilians or soldiers attempting to surrender, or using prohibited weapons like poison gas, can be tried in a war crimes tribunal.

The US government added the following "official comment" to the explanation of the offence of "Murder in Violation of the Law of War" in the new military commissions Manual:

[A]n accused may be convicted in a military commission ... if the commission finds that the accused engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.

This one really confounded Frakt who said of the comment to the manual that:

"Astoundingly, according to the Pentagon, a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war."

Of course those who applaud the US government's illegal military tribunal and railroaded conviction of Omar Khadr might say yeah but this Frakt guy was a defence counsel.

So how about a prosecutor at Guantanamo Bay? Here is Lt. Col. Darrel Vandeveld of the US Reserves, a former prosecutor in the Military Commissions whoi was so disgusted he resigned (along with six other prosecutors who could no longer hold their nose and convict persons under an illegal and unethical tribunal system.

When he resigned he let loose with both barrels:

My ethical qualms about continuing to serve as a prosecutor relate primarily to the procedures for affording defense counsel discovery. I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain “procedure” for affording defense counsel discovery. One would have thought … six years since the Commissions had their fitful start, that a functioning law office would have been set up and procedures and policies not only put into effect, but refined.

Instead, what I found, and what I still find, is that discovery in even the simplest of cases is incomplete or unreliable. To take the Jawad case as only one example — a case where no intelligence agency had any significant involvement — I discovered just yesterday that something as basic as agents’ interrogation notes had been entered into a database, to which I do not have personal access … These and other examples too legion to list are not only appalling, they deprive the accused of basic due process and subject the well-intentioned prosecutor to claims of ethical misconduct.

BTW Vandeveld was the prosecutor of another child soldier, Mohamed Jawad (an Afghan — and a teenager at the time of his capture — accused of throwing a grenade at a jeep containing two US soldiers and an Afghan translator). Vandeveld said of that case “My view of the case has evolved over time,” and proceeded to explain how he had come to suspect that Jawad, who has always denied throwing the grenade, was duped into joining a militant group, and was drugged before the attack. Michael Berrigan, the Commissions’ deputy chief defense counsel, added that prosecutors also knew that the Afghan Interior Ministry said that two other men had confessed to the same crime, although Vandeveld did not mention this in his statement.

Vandeveld added, “Based on my view of the case, I have advocated a pre-trial agreement under which Mr. Jawad would serve some relatively brief additional period in custody while he receives rehabilitation services and skills that will allow him to reintegrate into either Afghan or Pakistani society.” This, however, was turned down by his commanding officers. He continued: “One of my motivations in seeking a reasonable resolution of the case is that, as a juvenile at the time of capture, Jawad should have been segregated from the adult detainees, and some serious attempt made to rehabilitate him. I am bothered by the fact that this was not done.”

On October 26, as Jawad’s defense lawyer, the abive noted David Frakt, sought to have the case dismissed due to “gross government misconduct,” Lt. Col. Vandeveld testified for the defense by video link from Washington D.C., explaining, as the Associated Press described it, that “the embattled military tribunal system may not be capable of delivering justice for Jawad or the victims.” “They are not served by having someone who may be innocent be convicted of the crime,” Vandeveld said, reiterating that, even after six years, “it is impossible for anyone in good conscience to stand up and say he or she is provided all the discovery in a case.”

And later Lt. Col. Vandeveld as a former prosecutor in the Military Commissions testifying under oath before a Committee hearing had this to say.

Testimony of Lt. Col. Darrel Vandeveld (USA Reserves)

Before the Constitution, Civil Rights, And Civil Liberties Subcommittee of the

House Committee on the Judiciary Hearing on Legal Issues Surrounding the Military Commissions System

July 8, 2009

I am a Lieutenant Colonel in the US Army Reserve Judge Advocate General’s Corps. Since the September 2001 attacks, I have served in Bosnia, Africa, Iraq and Afghanistan. I have been awarded the Bronze Star Medal, the Iraqi Campaign Medal, the Joint Service Commendation Medal, and two Joint Meritorious Unit Awards. In civilian life, I am a senior prosecutor for the Commonwealth of Pennsylvania, and since graduating from law school, I have tried well over one hundred criminal jury trials.

Most importantly for the purposes of this hearing, I served on active duty as a prosecutor at the Office of Military Commissions in Guantanamo Bay, Cuba, from May 2007 to September 2008. I proudly went to Guantanamo to serve our country as a prosecutor charged with bringing to justice detainees who President George Bush had said were “the worst of the worst.” But I eventually left Guantanamo after concluding that I could not ethically or legally prosecute the assigned case. I became the seventh military prosecutor at Guantanamo to resign because I could not ethically or legally prosecute the defendant within the military commission system at Guantanamo.

I am here today to offer a single, straightforward message: the military commission system is broken beyond repair. Even good faith efforts at revision, such as the legislation recently passed by the Senate Armed Services Committee, leave in place provisions that are illegal and unconstitutional, undermine defendants’ basic fair trial rights, create unacceptable risks of wrongful prosecution, place our men and women in uniform at risk of unfair prosecution by other nations abroad, harm the reputation of the United States, invite time consuming litigation before federal courts, and, most importantly, undermine the fundamental values of justice and liberty upon which this great country was founded.

He has said that he had not always been “skeptical about the capacity of military commissions to deliver justice,” Vandeveld admitted that, at the beginning of his assignment at Guantánamo, when Jawad “told the court that he was only 16 at the time of his arrest, and that he had been subjected to horrible abuse, I accused him of exaggerating and ridiculed his story as ‘idiotic.’” He added, “I did not believe that he was a juvenile, and I railed against Jawad’s military defense attorney, whom I suspected of being a terrorist sympathizer.”

Vandeveld explained that, initially, the case against Jawad “seemed uncomplicated,” because he had “confessed to his role in the attack on a videotape recorded by US personnel,” and, as a result, the case “seemed likely to produce a quick, clean conviction, and an unmarred early victory for the prosecution, vindicating the concept” of the Commissions.

As he “delved deeper into Jawad’s case file,” however, he “soon discovered a number of disturbing anomalies,” and explained that when he “attempted to bring these anomalies to the attention of my supervisors, they were harshly dismissive of my concerns and actually, on some unspoken level, began to question my loyalty, even though my combat experience exceeded both theirs combined.” He continued:

I began to realize that the problems with Jawad’s case were symptomatic of the military commissions regime as a whole. Indeed, if any case was likely to be free of such anomalies, it should have been that of Mr. Jawad, whose alleged crime was as straightforward as any on the prosecutor’s docket. Instead, gathering the evidence against Mr. Jawad was like looking into Pandora’s Box: I uncovered a confession obtained through torture, two suicide attempts by the accused, abusive interrogations, the withholding of exculpatory evidence from the defense, judicial incompetence, and ugly attempts to cover up the failures of an irretrievably broken system.

Evidence from US Army criminal investigators showed that Jawad had been hooded, slapped repeatedly across the face and then thrown down at least one flight of stairs while in US custody in Afghanistan. Detainee records show that once at Guantánamo, he was subjected to a sleep deprivation regime, known as the “frequent flier program,” during which he was moved to different cells 112 times over a 14-day period — an average of once every two and a half hours — and that he had tried to commit suicide by banging his head repeatedly against a wall. Evidence from a bone scan showed that he was, in fact, a juvenile when he was initially taken into US custody.

Field reports, and examinations by US personnel in the hours after Jawad had been apprehended, indicated that he had been recruited by terrorists who drugged him and lied to him, and that he probably hadn’t committed the crime for which he was being charged. In fact, the military had obtained confessions from at least two other individuals for the same crime.

Sound familiar? Remind any one of Omar Khadr?

Here is what Vanderveld now says of the illegal military tribunal system and the manner in which the US twisted international and military law while completely disregarding the civil rights of detainees:

http://judiciary.house.gov/hearings/pdf/Vandeveld090708.pdf

“The military commissions cannot be fixed, because their very creation — and the only reason to prefer military commissions over federal criminal courts for the Guantánamo detainees — can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation.”

In concluding his testimony before the committee Vanderveld said:

Imagine that US soldiers captured on the battlefield were, today, being subjected to the type of trial proceedings that we plan to set up through these military commissions. Imagine that our service members had been tortured or abused, and that the commissions hearing their cases allowed into evidence statements obtained through coercion. Imagine that defense counsel were thoroughly under-resourced and prohibited even from viewing information critical to their cases, and that exculpatory evidence was hidden. Imagine that the evidence against our soldiers was so weak, and had been gathered in such a shoddy and disorganized manner, that the commissions allowed hearsay into evidence — to be analyzed not by professional judges but by lay jurors — just to “make sure” that any and all prosecutions were successful. How would out government react to such trials? I imagine the uproar would be close to deafening.

But hey, right - this guy was only a a Lieutenant Colonel in the US Army Reserve Judge Advocate General’s Corps. Now if some higher ranking officer said the same thing...

Okay how about Retired Rear Admiral John D. Hutson, the former Judge Advocate General of the US Navy from 1997 to 2000 who testified before to a Senate Armed Services Committee hearing on “legal issues regarding military commissions and the trial of detainees for violations of the law of war,” explaining why the only valid forum for trials of suspected terrorists at Guantánamo Bay is the US federal court system?

“You can’t have a legitimate court unless you are willing to risk an acquittal. If you aren’t willing to accept the possibility that a jury will acquit the accused based on the evidence fairly presented, then it isn’t really a court. It’s a charade.”

As he notes not only do military commissions take away from the core military mission and provide a distraction but the civilian courts are very good at prosecuting terrorists while military prosecutors and defence counsel are regularly rotated through assignments and are unable to develop the experience and expertise of their civilian counterparts.

Besides being a distraction to the vital mission of DoD, military commissions have, to a large extent, become a discredit in spite of the valiant and highly credible efforts of many, many people in uniform. Rather than showcasing the military justice system of which we all are justifiably proud, commissions represent something else entirely. They have not worked often or well. “Fixing” them would help, but won’t eliminate undeserved but inevitable criticism.

On the other hand, during the same period, U.S. District Courts have successfully prosecuted literally hundreds of terrorists who now reside in Federal prisons around the country, keeping all Americans safer. Federal courts, including judges, prosecutors, marshals, and other court personnel have decades of experience in these cases. They have developed a justifiable and universally held reputation for fairness, and consequently, they are largely immune to criticism.

And Admiral Hutson put his point neatly:

We don’t ask DoJ to fight wars. We shouldn’t ask DoD to prosecute terrorists.

And his assessment of the military tribunal system created for the detainees at Guantanmo Bay?

If the point of this exercise is to create a court system that will ensure convictions of alleged terrorists against whom we don’t have sufficient admissible evidence, then we have missed the point. You can’t have a legitimate court unless you are willing to risk an acquittal. If you aren’t willing to accept the possibility that a jury will acquit the accused based on the evidence fairly presented, then it isn’t really a court. It’s a charade.

The corollary to that is that you can’t have a real court if the rules of evidence and procedure are so stacked against the defendant that he has no real chance to present his case or defend against the government’s case. The admissible evidence against him based on the facts may be so overwhelming that conviction is assured but that must be the consequence of facts, not rules of evidence tilted in favor of the prosecution.

And in summary:

We are now operating under the Military Commission Act of 2006 which many find to be badly flawed. I very much respect and admire your effort to improve it. My recommendation, however, is to repeal it rather than improve it. In the process, I urge you to express this body’s preference to prosecute alleged terrorists in federal court and thereby demonstrate to the world, friend and foe alike, what kind of Justice the United States wishes to export.

Here is Admiral Hutson's full statement:

http://armed-services.senate.gov/statemnt/2009/July/Hutson%2007-07-09.pdf

[ronthecivil]

Nope just off on more bizarre tangents.

The usual strategy you employ is to make fantastical speculations and posit wild hypotheticals - then when you trap posters into the Alice in Wonderland debate act as if they prove something - they do not.

[Sharpshooter]

I am not sure as to the structure of Al Queda but the guys he was hanging out with certainly weren't friendlies. There's a record of the events of the firefight on wikipedia even. Clearly those aren't the kind of people any reasonable parent would want their kids hanging out with!

[ronthecivil]

They were in a house inside a civilian controlled city. What says Al-Queda compound about that? As much as I luv Wiki, come on, that's your proof? Also, inside the house were men, women and children. Al-Queda cell? Come on Ron.

Where's the real proof that allows you to make such assertions and slap on your labels??

[JAH]

Jah, I think that your input has been of great value in this thread. It's interesting to hear an informed legalistic opinion from the perspective of the military. At the same time, some of the interpretations you've expressed have been a frightening look (personally) into the mentality of a professional soldier.

[Sharpshooter]

The US made their own definitions to get around the Geneva Conventions and then claimed "See not under the GC" They had "Made in the US of A" definitions of "unlawful enemy combatant" and "unprivileged belligerent".

Khadr was charged with "murder in violation of the laws of war" - a war crime not recognized internationally -just in this US bastardized system.

As noted by Jason Ralph who is a professor in international relations at the University of Leeds. He is an expert in the fields of international law, American foreign policy, human rights and the war on terror.

The issue here is that "murder in violation of the laws of war" – the charge laid against Khadr – is not recognised internationally as a war crime. Following the Bush administration's lead, the US Congress insisted in the 2009 Military Commission Act that any civilian targeting an American soldier was an unprivileged belligerent guilty of murder or attempted murder. But "unprivileged belligerent" is not a category of combatant defined in the laws of war.

Under the Geneva conventions, violent individuals are either combatants or civilians. As an enemy combatant, one would have expected Khadr (age aside) to be targeting US soldiers.

Of course then stripping Khadr of all opportunity to make full answer and defence as result of removing virtually all procedures and protections that might have at least given him the chance to a fair trial, the guilty plea was coerced. These rights arer also guaranteed at international law.

Here is what Lt. Col. David Frakt, a law professor and the former military defense attorney at Guantanamo Bay had to say on the issue - when it came to the central charge of "murder in violation of the law of war," He says even if Khadr did throw the grenade, "there is no evidence that he violated the law of war in doing so."

Frakt explained that the Bush administration's original invented charge for the commissions - "Murder by an Unprivileged Belligerent" - was, essentially, replaced by the Congress-endorsed "Murder in Violation of the Law of War," even though it "conflated two different concepts - unprivileged belligerents and war criminals." He went on to examine international law:

Under Article 4 of the Geneva Prisoner of War Convention, it is clear that while a member of an organized resistance movement or militia may be an unprivileged belligerent (because of not wearing a uniform or failing to carry arms openly, for example) he may still comply with the laws and customs of war, so not all hostile acts committed by unprivileged belligerents are war crimes. Attacks by unprivileged belligerents which comply with the law of war (in that they attack lawful military targets with lawful weapons) may only be tried in domestic courts. In Iraq, for example, insurgents who try to kill Americans by implanting roadside bombs are properly arrested and tried before the Central Criminal Court of Iraq as common criminals. Attacks by unprivileged belligerents which violate the law of war, such as attacks on civilians or soldiers attempting to surrender, or using prohibited weapons like poison gas, can be tried in a war crimes tribunal.

The US government added the following "official comment" to the explanation of the offence of "Murder in Violation of the Law of War" in the new military commissions Manual:

[A]n accused may be convicted in a military commission ... if the commission finds that the accused engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.

This one really confounded Frakt who said of the comment to the manual that:

"Astoundingly, according to the Pentagon, a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war."

Of course those who applaud the US government's illegal military tribunal and railroaded conviction of Omar Khadr might say yeah but this Frakt guy was a defence counsel.

So how about a prosecutor at Guantanamo Bay? Here is Lt. Col. Darrel Vandeveld of the US Reserves, a former prosecutor in the Military Commissions whoi was so disgusted he resigned (along with six other prosecutors who could no longer hold their nose and convict persons under an illegal and unethical tribunal system.

When he resigned he let loose with both barrels:

My ethical qualms about continuing to serve as a prosecutor relate primarily to the procedures for affording defense counsel discovery. I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain "procedure" for affording defense counsel discovery. One would have thought … six years since the Commissions had their fitful start, that a functioning law office would have been set up and procedures and policies not only put into effect, but refined.

Instead, what I found, and what I still find, is that discovery in even the simplest of cases is incomplete or unreliable. To take the Jawad case as only one example — a case where no intelligence agency had any significant involvement — I discovered just yesterday that something as basic as agents' interrogation notes had been entered into a database, to which I do not have personal access … These and other examples too legion to list are not only appalling, they deprive the accused of basic due process and subject the well-intentioned prosecutor to claims of ethical misconduct.

BTW Vandeveld was the prosecutor of another child soldier, Mohamed Jawad (an Afghan — and a teenager at the time of his capture — accused of throwing a grenade at a jeep containing two US soldiers and an Afghan translator). Vandeveld said of that case "My view of the case has evolved over time," and proceeded to explain how he had come to suspect that Jawad, who has always denied throwing the grenade, was duped into joining a militant group, and was drugged before the attack. Michael Berrigan, the Commissions' deputy chief defense counsel, added that prosecutors also knew that the Afghan Interior Ministry said that two other men had confessed to the same crime, although Vandeveld did not mention this in his statement.

Vandeveld added, "Based on my view of the case, I have advocated a pre-trial agreement under which Mr. Jawad would serve some relatively brief additional period in custody while he receives rehabilitation services and skills that will allow him to reintegrate into either Afghan or Pakistani society." This, however, was turned down by his commanding officers. He continued: "One of my motivations in seeking a reasonable resolution of the case is that, as a juvenile at the time of capture, Jawad should have been segregated from the adult detainees, and some serious attempt made to rehabilitate him. I am bothered by the fact that this was not done."

On October 26, as Jawad's defense lawyer, the abive noted David Frakt, sought to have the case dismissed due to "gross government misconduct," Lt. Col. Vandeveld testified for the defense by video link from Washington D.C., explaining, as the Associated Press described it, that "the embattled military tribunal system may not be capable of delivering justice for Jawad or the victims." "They are not served by having someone who may be innocent be convicted of the crime," Vandeveld said, reiterating that, even after six years, "it is impossible for anyone in good conscience to stand up and say he or she is provided all the discovery in a case."

And later Lt. Col. Vandeveld as a former prosecutor in the Military Commissions testifying under oath before a Committee hearing had this to say.

Testimony of Lt. Col. Darrel Vandeveld (USA Reserves)

Before the Constitution, Civil Rights, And Civil Liberties Subcommittee of the

House Committee on the Judiciary Hearing on Legal Issues Surrounding the Military Commissions System

July 8, 2009

I am a Lieutenant Colonel in the US Army Reserve Judge Advocate General's Corps. Since the September 2001 attacks, I have served in Bosnia, Africa, Iraq and Afghanistan. I have been awarded the Bronze Star Medal, the Iraqi Campaign Medal, the Joint Service Commendation Medal, and two Joint Meritorious Unit Awards. In civilian life, I am a senior prosecutor for the Commonwealth of Pennsylvania, and since graduating from law school, I have tried well over one hundred criminal jury trials.

Most importantly for the purposes of this hearing, I served on active duty as a prosecutor at the Office of Military Commissions in Guantanamo Bay, Cuba, from May 2007 to September 2008. I proudly went to Guantanamo to serve our country as a prosecutor charged with bringing to justice detainees who President George Bush had said were "the worst of the worst." But I eventually left Guantanamo after concluding that I could not ethically or legally prosecute the assigned case. I became the seventh military prosecutor at Guantanamo to resign because I could not ethically or legally prosecute the defendant within the military commission system at Guantanamo.

I am here today to offer a single, straightforward message: the military commission system is broken beyond repair. Even good faith efforts at revision, such as the legislation recently passed by the Senate Armed Services Committee, leave in place provisions that are illegal and unconstitutional, undermine defendants' basic fair trial rights, create unacceptable risks of wrongful prosecution, place our men and women in uniform at risk of unfair prosecution by other nations abroad, harm the reputation of the United States, invite time consuming litigation before federal courts, and, most importantly, undermine the fundamental values of justice and liberty upon which this great country was founded.

He has said that he had not always been "skeptical about the capacity of military commissions to deliver justice," Vandeveld admitted that, at the beginning of his assignment at Guantánamo, when Jawad "told the court that he was only 16 at the time of his arrest, and that he had been subjected to horrible abuse, I accused him of exaggerating and ridiculed his story as 'idiotic.'" He added, "I did not believe that he was a juvenile, and I railed against Jawad's military defense attorney, whom I suspected of being a terrorist sympathizer."

Vandeveld explained that, initially, the case against Jawad "seemed uncomplicated," because he had "confessed to his role in the attack on a videotape recorded by US personnel," and, as a result, the case "seemed likely to produce a quick, clean conviction, and an unmarred early victory for the prosecution, vindicating the concept" of the Commissions.

As he "delved deeper into Jawad's case file," however, he "soon discovered a number of disturbing anomalies," and explained that when he "attempted to bring these anomalies to the attention of my supervisors, they were harshly dismissive of my concerns and actually, on some unspoken level, began to question my loyalty, even though my combat experience exceeded both theirs combined." He continued:

I began to realize that the problems with Jawad's case were symptomatic of the military commissions regime as a whole. Indeed, if any case was likely to be free of such anomalies, it should have been that of Mr. Jawad, whose alleged crime was as straightforward as any on the prosecutor's docket. Instead, gathering the evidence against Mr. Jawad was like looking into Pandora's Box: I uncovered a confession obtained through torture, two suicide attempts by the accused, abusive interrogations, the withholding of exculpatory evidence from the defense, judicial incompetence, and ugly attempts to cover up the failures of an irretrievably broken system.

Evidence from US Army criminal investigators showed that Jawad had been hooded, slapped repeatedly across the face and then thrown down at least one flight of stairs while in US custody in Afghanistan. Detainee records show that once at Guantánamo, he was subjected to a sleep deprivation regime, known as the "frequent flier program," during which he was moved to different cells 112 times over a 14-day period — an average of once every two and a half hours — and that he had tried to commit suicide by banging his head repeatedly against a wall. Evidence from a bone scan showed that he was, in fact, a juvenile when he was initially taken into US custody.

Field reports, and examinations by US personnel in the hours after Jawad had been apprehended, indicated that he had been recruited by terrorists who drugged him and lied to him, and that he probably hadn't committed the crime for which he was being charged. In fact, the military had obtained confessions from at least two other individuals for the same crime.

Sound familiar? Remind any one of Omar Khadr?

Here is what Vanderveld now says of the illegal military tribunal system and the manner in which the US twisted international and military law while completely disregarding the civil rights of detainees:

http://judiciary.hou...eveld090708.pdf

"The military commissions cannot be fixed, because their very creation — and the only reason to prefer military commissions over federal criminal courts for the Guantánamo detainees — can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation."

In concluding his testimony before the committee Vanderveld said:

Imagine that US soldiers captured on the battlefield were, today, being subjected to the type of trial proceedings that we plan to set up through these military commissions. Imagine that our service members had been tortured or abused, and that the commissions hearing their cases allowed into evidence statements obtained through coercion. Imagine that defense counsel were thoroughly under-resourced and prohibited even from viewing information critical to their cases, and that exculpatory evidence was hidden. Imagine that the evidence against our soldiers was so weak, and had been gathered in such a shoddy and disorganized manner, that the commissions allowed hearsay into evidence — to be analyzed not by professional judges but by lay jurors — just to "make sure" that any and all prosecutions were successful. How would out government react to such trials? I imagine the uproar would be close to deafening.

But hey, right - this guy was only a a Lieutenant Colonel in the US Army Reserve Judge Advocate General's Corps. Now if some higher ranking officer said the same thing...

Okay how about Retired Rear Admiral John D. Hutson, the former Judge Advocate General of the US Navy from 1997 to 2000 who testified before to a Senate Armed Services Committee hearing on "legal issues regarding military commissions and the trial of detainees for violations of the law of war," explaining why the only valid forum for trials of suspected terrorists at Guantánamo Bay is the US federal court system?

"You can't have a legitimate court unless you are willing to risk an acquittal. If you aren't willing to accept the possibility that a jury will acquit the accused based on the evidence fairly presented, then it isn't really a court. It's a charade."

As he notes not only do military commissions take away from the core military mission and provide a distraction but the civilian courts are very good at prosecuting terrorists while military prosecutors and defence counsel are regularly rotated through assignments and are unable to develop the experience and expertise of their civilian counterparts.

Besides being a distraction to the vital mission of DoD, military commissions have, to a large extent, become a discredit in spite of the valiant and highly credible efforts of many, many people in uniform. Rather than showcasing the military justice system of which we all are justifiably proud, commissions represent something else entirely. They have not worked often or well. "Fixing" them would help, but won't eliminate undeserved but inevitable criticism.

On the other hand, during the same period, U.S. District Courts have successfully prosecuted literally hundreds of terrorists who now reside in Federal prisons around the country, keeping all Americans safer. Federal courts, including judges, prosecutors, marshals, and other court personnel have decades of experience in these cases. They have developed a justifiable and universally held reputation for fairness, and consequently, they are largely immune to criticism.

And Admiral Hutson put his point neatly:

We don't ask DoJ to fight wars. We shouldn't ask DoD to prosecute terrorists.

And his assessment of the military tribunal system created for the detainees at Guantanmo Bay?

If the point of this exercise is to create a court system that will ensure convictions of alleged terrorists against whom we don't have sufficient admissible evidence, then we have missed the point. You can't have a legitimate court unless you are willing to risk an acquittal. If you aren't willing to accept the possibility that a jury will acquit the accused based on the evidence fairly presented, then it isn't really a court. It's a charade.

The corollary to that is that you can't have a real court if the rules of evidence and procedure are so stacked against the defendant that he has no real chance to present his case or defend against the government's case. The admissible evidence against him based on the facts may be so overwhelming that conviction is assured but that must be the consequence of facts, not rules of evidence tilted in favor of the prosecution.

And in summary:

We are now operating under the Military Commission Act of 2006 which many find to be badly flawed. I very much respect and admire your effort to improve it. My recommendation, however, is to repeal it rather than improve it. In the process, I urge you to express this body's preference to prosecute alleged terrorists in federal court and thereby demonstrate to the world, friend and foe alike, what kind of Justice the United States wishes to export.

Here is Admiral Hutson's full statement:

http://armed-service...%2007-07-09.pdf

[Sharpshooter]

Why else would he be there? Pushtun lessons?

Why did the US military feel it necesary to bomb and gather a hundred soldiers to take over a civilian controlled city?

None of you seem to have any issues with the military action. Clearly the people that the action was taken on weren't good guys!

[JAH]

...and in a civilian population there's really no way of knowing the good guys from the bad guy...and that's why the military more often than not, tends to most they encounter in a "Clear and Control" military operation, as a bad guy.

[Wetcoaster]

I'm not disputing that the US circumvented the Law. I'm saying on the issue of whether or not he was covered by the 4th GC wrt protections, they didn't need to. Clearly the need to circumvent was present for many, many other issues, but NOT this one.

The GC clearly states Khadr was acting outside the GC and International Law (age aside for the moment).

[JAH]

That is not the interpretation of a number of legal scholars familiar with international law.

[Wetcoaster]

What's the difference between Lawyers and Phycologists? Phycologists don't think they are lawyers.

[Wetcoaster]

And they are entitled to their opinion, as am I.

note: those 'scholars' are either retained to represent a client or have an axe to grind. Neither group can claim objectivity.

[JAH]

Your take on this would be laughable if it was not so sadly transparent.

But you are objective and learned in international law?

How about these legal scholars? They state clearly that the Geneva Conventions, most notably the Third Geneva Convention and the Fourth Geneva Convention applies to all detainees in the War on Terror.

These legal scholars are known by the nickname of SCOTUS (Supreme Court of the United States) and that opinion was rendered in Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

[Wetcoaster]

Listen, the legal profession is predicated on differing interpretations of facts as it relates to the law. In fact, the advesarial basis of our system, as you know, GUARANTEES disagreement between litigators.

So here you are, well aware of this, and you are telling me that (essentially) I'm an idiot for proposing that the lawyers on one side of a two-sided argument are full of it.