Impunity Watch: North America

Canada's Highest Court Says Canadian Government Violated Its Human Rights Obligations in Khadr Case; Arraignment of Guantanamo Detainees Accused of September 11 Attack Will Remain On Schedule; Marines Officer Court Martialed For Role in Haditha Massacre

By Andrew Benfield
Impunity Watch Senior Desk Officer, North America

TORONTO, Canada – Canada’s highest court has unanimously ruled that Omar Khadr, a Canadian citizen, has a “constitutional right” to materials found to be “directly related to interviews” that Canadian officials conducted with Khadr during his detention at Guantanamo Bay. 

The Canadian court ruled found that Canadian government “violated the constitution” when it gave the United States results of interviews conducted with Khadr at Guantanamo Bay.  By turning over the interview materials the Canadian government violated Canada’s “binding international human rights obligations.” 

The Canadian court’s ruling came after the United States Supreme Court identified the human rights violations in its analysis of the United States’ case against Khadr. 

A Canadian Federal Court judge will review the interview materials and determine what materials fall within the “disclosure obligation.”

For more information, please see:

CNN – Candian court: Gitmo detainee has rights to some documents – 23 May 2008

The Associated Press – Canadian detainee at Guantanamo wins documents case – 24 May 2008

----------

GUANTANAMO BAY, Cuba – A United States military judge has denied motions to delay arraignments of five Guantanamo Bay detainees who are accused of mounting the attacks on 11 September 2001.  The judge found that the “interests of justice” are best served by completing the arraignments on 5 June 2008. 

At the arraignments, the United States will seek the death penalty for all five detainees.  Lawyers for the five detainees sought to delay the arraignments because they say the government has made it “impossible to defend” the detainees. 

The detainee lawyers point to the fact that the individual detainees have been held for several years without a hearing but are now brought before the court with only limited meetings with their attorneys. 

For more information, please see:

The Canadian Press – Military judge denies motions to delay arraignment 0f 9-11 suspects – 23 May 2008

The New York Times – Guantanamo Judge Wont Delay Trials – 23 May 2008

----------

LOS ANGELES, United States – A United States Marines officer was court martialed on 28 May 2008 for making “false statements and obstruction of justice” following the deaths of 24 Iraqi civilians in the town of Haditha, Iraq. 

In addition, the marine will stand trial for “attempting to fraudulently separate” from the Marine Corps. 

The court action stems from an incident in 2005 where Iraqi civilians were shot by United States marines following a roadside bombing. 

Four soldiers are facing charges of murder while other marines, such as the one in the instance case, are charged with “covering up” and “failing to properly investigate the killings.”

For more information, please see:

AFP – Marine officer to stand trial next week in Haditha case – 23 May 2008

ABC News – Haditha massacre court martial begins – 28 May 2008

Military's 'New Approach' to Detainees Isolates Extremists, Releases Others; Former Detainee Testifies Before Congress About Abuse

By Andrew Benfield
Impunity Watch Senior Desk Officer, North America

WASHINGTON, United States – The United States military has conducted an assessment of the military’s approach to detainees.  The new approach places an emphasis on “isolating” Al-Qaeda and Shiite extremists while “increasing the release of the average men caught up in the fighting.” 

The military assessment found that only one in five detainees are members of a “main extremist group fighting United States forces.”  Many of the remaining detainees are suitable for reintegration into society. 

Marine Maj. Gen. Douglas Stone emphasized that the United States’ goal is to release detainees who do not pose an “imperative security risk.” 

Over the last ten months, the time of the implementation of the military’s new approach to detainees, the military has released approximately 8,000 detainees.  Of the 8,000, less than one percent have returned to military detention facility.  Before the new approach, 6.4 percent of released detainees returned to a detention facility. 

For more information, please see:

USA Today – Military retools detainee releases – 19 May 2008

Stars and Stripes – Detainees overcrowded in Iraqi holding facilities – 23 May 2008

WASHINGTON, United States – This week the Justice Department’s inspector general released a report containing accounts by FBI agents detailing “abuses overseas at detention facilities run by the military and CIA.” 

Furthermore, Murat Kurzan, a detainee held by the United States in Afghanistan and Guantanamo Bay, testified before Congress that he was subject to “water treatment, electric shocks and other abuses” during his five year detention. 

Kurzan testified that, while being held at a United State detention facility in Afghanistan, he was subject to water treatment.  An officer would stick his head in a bucket of water and then punch him in the stomach so that Kurzan would inhale the water.  Also at the facility, Kurzan would be tied to the ceiling with his feet dangling and shocked. 

The interrogation tactics continued when Kurzan was transferred to Guantanamo Bay. 

For more information, please see:

ABC News – Ex-Detainee Describes ‘Water Treament’ – 20 May 2008

The Associated Press – Former US detainee testifies of abuse – 21 May 2008

Executions Resume But Questionable Conviction Remain; Top US Official Subpoenaed To Testify Before Congress on Torture Issue; New Gitmo Courtroom Facility Contributes to Detainee Arraignment Disruption

By Andrew Benfield
Impunity Watch Senior Desk Officer, North America

NORTH CAROLINA, United States – Recently, North Carolina appellate courts overturned three defendants’ death sentences.  In these cases, the courts found that prosecutors and investigators’ withholding evidence favorable to the defendant compromised the defendants’ convictions.  In addition, several courts found that the defendants’ lawyers “failed to mount an adequate defense.” 

Nationally, six inmates, including the three from North Carolina, have been released from death row in the past year.

Georgia has recently resumed executions of death row inmates, bringing an end to the United States’ “seven month national suspension” of executions.  The Georgia execution is the first since the United States Supreme Court’s ruling that a lethal injection method is not unconstitutional.

For more information, please see:

The New York Times – Executions Resume, As Do Questions of Fairness – 7 May 2008

Toronto Star – US Executions Ready to Resume After Hiatus – 6 May 2008

WASHINGTON, United States – United States Vice President Dick Cheney’s chief of staff has been subpoenaed to testify before a congressional probe concerning the “treatment and possible torture of enemy combatants.” 

The Bush administration asserts that aides to the administration may not be forced to testify. 

Congress subpoenaed David Addington, Cheney’s chief of staff, because Addington “played a key role” in the drafting of the United States “strategies to combat terrorism” after September 11. 

For more information, please see:

Yahoo! News – Cheney’s aide subpoenaed to testify to Congress – 7 May 2008

Washington Post – Cheney’s Total Impunity – 29 April 2008

GUANTANAMO BAY, Cuba – Al Hamza Ahmad Suliman al Bahlul, Osama bin Laden’s suspected media director, refused to enter a plea on his three terrorist related charges in a Guantanamo courtroom. 

Earlier in the arraignment, Bahlul held a hand-made “boycott” sign and refused to answer the trial judge when asked if he was refusing his military attorney.  When Bahlul spoke, he stated that he would not contest the charges against him. 

Bahlul is charged with conspiracy, solicitation to commit murder and providing material support to terrorists. 

Power and audio-visual failures as well as “technical flaws” constantly disrupted Bahlul’s hearing in a new courtroom that is part of a $12 million complex built to hear the up and coming trials at Guantanamo Bay. 

For more information, please see:

Yahoo! News – Technical flaws mar hearing in new Guantanamo court – 7 May 2008

Jurist – First Guantanamo detainee hearing in new court complex delayed by technical glitch – 7 May 2008

BRIEF: U.S. Currently holds 500 Juveniles in Iraq and 10 in Afghanistan, Human Rights Groups Outraged

NEW YORK, United States - On May 14th, 2008, the U.S. government acknowledged, in a supplement to the U.N. Committee on the Rights of Children ("CRC"), that it has held almost 2,500 youths (18 and younger) in U.S. run facilities overseas.  The American Civil Liberties Union ("ACLU") says that the U.S. is holding these youths without a policy in place for how the juveniles are tretaed.  The ACLU says the youths, some of which have been held for years without being charged with a crime, are not being treated in accordance with internationally accepted standards and the Optional Protocol on the Involvement of Children in Armed Conflict that was ratified by the United States in 2002.  Jamil Dakwar, Director of ACLU's Human Rights Program, was quoted as saying "it is shocking to know that the U.S. is holding hundreds of juveniles in Iraq and Afghanistan...", Dawkar continues, "juveniles and former child soldiers should be treated first and foremost as candidates for rehabilitation and reintegration into society, not subjected to further victimization."

The Associated Press claims that currently the U.S. is holding 500 youths who are claimed to be suspected "unlawful enemy combatants" in Iraq and 10 in Afghanistan.  Between 2004 and 2006 the United States released eight of the youths being held at Guantanamo Bay, Cuba.  Tina M. Foster is the executive director of International Justice Network ("IJN") who brought law suits on behalf of the juveniles held at Guantanamo.  The IJN will also be representing some of the adults being held at the Bagram Theater Internment Facility in Afghanistan but cannot take on any of the juvenile cases until their names are released.  Foster was quoted by the Associated Press as saying, "it's shocking to me that the U.S. government has not figured out a way to keep children out of adult prisons.  It's outrageous, and it is not making us any safer, I can say that about Afghanistan from personal experience."  A press release on the ACLU website says the U.S. government claims it is holding youths in Iraq so they can be educated on how to be part of Iraq's future in a postive way.

For more information, please see:

Yahoo! News (AP) - US:  500 Youths Detained in Iraq; 10 in Afghanistan - 19 May 2008

American Civil Liberties Union - New Government Report Reveals 2,500 Youths Held in Military Custody Abroad - 14 May 2008

UPDATE: Guantanamo Rulings Challenge Upcoming Trials

WASHINGTON- The Pentagon reviewed its option following a military judge’s ruling that raised questions about the impartiality of the first war crimes trial against an Al-Qaeda suspect.
Navy Captain Keith Allred, the military judge in the case of Salim Hamdan, disqualified the Pentagon’s legal adviser for the military commissions from further participation in the Hamdan case. Allred found that the legal adviser, Brigadier General Thomas Hartmann, pressed for war crimes prosecutions based on “political factors such as whether they would capture the imagination of the American people, be sexy, or involve blood on the hands of the accused.” The general also attempted to direct prosecutors to use evidence at trial that the chief prosecutor “considered tainted and unreliable, or perhaps obtained as a result of torture or coercion.”

Allred stated that the commission was not persuaded, beyond a reasonable doubt, that the legal advisor to the convening authority retains the required independence from the prosecution function to provide fair and objective legal advice to the convening authority. The “convening authority” is responsible for overseeing the military commissions.

This ruling follows the testimony of Col. Morris Davis, the former chief prosecutor at Guantanamo. Davis resigned in October, saying that the prosecutions had become “deeply politicized” and appeared as a defense witness for Hamdan.

For more information, please see:
CNN- Gitmo Judges Bars Pentagon Official from Trial -12 May 2008

AFP- Guantanamo Ruling Challenges Upcoming Trials- 12 May 2008

BRIEF: Military Judge Removes General from Guantanamo Trial

GUANTANAMO BAY, Cuba - A military judge for the Guantanamo war crimes tribunal has decided that Brig. Gen. Thomas W. Hartmann of the Air Force Reserve be removed from any further involvement with the Guantanamo war crimes tribunal for at least the first prosecution.  General Hartmann is well known publicly and serves as the appointed legal adviser to Susan J. Crawford.  Crawford is a Pentagon official with the military title of Convening Authority for the war crimes cases in Guantanamo.  This title gives Crawford, among other things, the power to approve or reject charges.

Defense attorneys for Salim Hamdan requested Gen. Hartmann's removal for his influence over the prosecution.  Hamdan, former driver for Osama bin Laden, has claimed his charges were "unlawfully influenced."  The military judge, Captain Keith J. Allred of the Navy, says in consideration of fairness, "he could not find that the general 'retains the required independence from the prosecution.'"  Former chief military prosecutor, Colonel Morris D. Davis of the Air Force, claims General Hartmann pressured him in deciding who would be prosecuted and what evidence would be used.  The Pentagon's General Counsel has been asked to replace Gen. Hartmann for this trial set to take place next month.

For more information, please see:

New York Times - Judge Drops General From Trial of Detainee - 10 May 2008

Miami Herald - Judge Bars General From War-Court Case - 10 May 2008

BRIEF: Former Prisoner Gives Guantanamo Title of "History's Worst" Prison

GUANTANAMO BAY, Cuba - Sami al-Haj spent 2,340 days in Guantanamo Bay's military prison.  Al-Haj was a former cameraman for international news outlet Al-Jazeera.  Al-Haj was never prosecuted while being detained in Cuba but says the United States charged Al-Haj as being "a courier for a militant Muslim organization."  Al-Haj states he believes his connection to Al-Jazeera was the real reason he was detained and questioned.

Al-Haj was met by a large crowd of supporters last week but was still weak after his 16 month hunger strike.  Al-Haj claims he was put through over 130 interrogation "sessions" and was asked to be a spy for the United States against Al-Jazeera, Al-Haj declined.  The Sudanese cameraman has proclaimed, after his release from the Guantanamo Bay detention center that it "was the worst prison mankind has ever seen."

For more information, please see:

Yahoo! News - Freed Sudanese Cameraman Calls Gitmo History's Worst Jail - 5 May 2008

BRIEF: United States Military Commission Rejects Khadr's Motion to Dismiss

GUANTANAMO BAY, Cuba – On April 30, 2008, a United States military judge denied Omar Khadr’s motion for dismissal due to a “lack of jurisdiction under the Military Commission Act in regard to juvenile crimes of a child soldier.”

Khadr argued that he was a child soldier when he was “captured in Afghanistan” and the United States military commission presiding over his trial lacked jurisdiction over his case because the United States’ Congress did not grant the military commission authority to “hear cases involving child soldiers charged with juvenile crimes.” 

For more information, please see:

JURIST – Paper Chase: US military judge rules Khadr not a child soldier – 30 April 2008

Reuters – U.S. rejects Canadian’s child soldier defense – 2 May 2008

Hamdan Allowed to Send Notes to Other Prisoners; Trial Set for June 2

By Gabrielle Meury
Impunity Watch Reporter, North America

Military judge Keith Allred says that Yemeni detainee Salim Hamdan can send notes to top al Qaeda suspects imprisoned at Guantanmo to enlist their help in his war crimes tribunal. Hamdan’s defense team says that the communications are needed to confirm that Hamdan was not a terrorist. Prosecutors contend that allowing Hamdan to send notes would threaten national security. Hamdan is continuing his boycott of his own trial, on the grounds that the military tribunal is fundamentally unfair. Judge Allred hopes that Hamdan will reconsider his boycott if he is allowed to send notes.

On April 29, Hamdan appeared in court as his lawyers tried to suppress the use of statements taken from Hamdan by law enforcement officials without informing him of his right against self-incrimination. Under virtually any other legal system these statements would be deemed inadmissible. Under the Military Commissions Act, however, protections against self-incrimination do not apply to any statements made before trial. Hamdan expressed frustration at the ruling, stating "The law is clear. The Constitution is clear. International law is clear, why don't we follow the law? Where is the justice?"

On April 30, Hamdan did not leave his prison cell to participate in a the pretrial hearing, and his defense attorneys also refused to participate.  Even if Hamdan continues to boycott, his trial will proceed without him on June 2.

Hamdan is among the first to be charged under the Military Commissions Act, which Congress passed in 2006 after Mr. Hamdan's successful Supreme Court challenge to President Bush's initial effort to set up courts without congressional authorization or judicial oversight.

For more information, please see:

Wall Street Journal- Judge Says Hamdan Can Swap Notes with Fellow Guantanamo Detainees- 30 April 2008

Salon- Lawless in Guantanamo- 2 May 2008

Periodico- Former Guantanamo Prosecutor Says Military Tribunals Are Rigged- 29 April 2008