The Man Gitmo Raised

Omar Khadr's trial is a reminder of everything that went wrong with justice at Guantánamo Bay.

GUANTÁNAMO BAY -- When I first met Omar Khadr, the youngest detainee at Guantánamo Bay, he was somewhere in the awkward gap between boy and man. He was broad-shouldered and lanky, but his face looked like a child's covered with acne. It was April 2006, and at that point the 19-year-old Canadian national had already been sitting in Guantánamo for nearly four years. This Thursday, his trial finally began.

Khadr's story is a long one, illustrating what has gone so terribly wrong with the justice system here in Guantánamo Bay. He was captured after a day-long firefight in an Afghan compound, during which someone threw a grenade that killed U.S. Army Sgt. 1st Class Christopher Speer. Almost everyone inside that compound was killed, and only 15-year-old Khadr was pulled from the rubble, with severe injuries to his eye, bulletholes in his back, and gaping chest wounds. First in Afghanistan and later at Gitmo, he has been ill-treated. Even if he is convicted now, the Supreme Court may well overturn the decision on appeal. He is a child raised to adulthood in an unjust prison. And if convicted, he could be sentenced to spend the rest of his life behind bars.

From the beginning, Khadr has bounced from one dangerous outpost of America's military judicial system to another. After the firefight in Afghanistan in 2002, Khadr was taken to Bagram Air Base. There, in addition to receiving medical treatment, he was hooded, forced into painful stress positions, threatened with rape, and confronted with barking dogs. We know this because Khadr's interrogators, including one convicted of abuse of another detainee, described the tactics they employed on Khadr and other detainees under oath during the pre-trial hearings.

After several months of such treatment, Khadr was transferred to Guantánamo, where he says the abusive interrogations continued. He did not meet with a lawyer until 2004, a full two years after he was taken into U.S. custody. In 2005, Khadr was charged under the first set of military commissions authorized by then-President George W. Bush. After the Supreme Court ruled that the military commissions system was illegal under both military justice law and the Geneva Conventions, the charges against Khadr were dismissed. However, not long thereafter, the military commissions were revised and Khadr was charged again.

I first met Khadr in 2006, when I was working for the chief defense counsel in the Office of Military Commissions and was at Guantánamo observing military commission proceedings. Khadr was not my client, but his lawyers were unable to travel that week and asked me to deliver a letter to him.

Khadr and I talked for a couple of hours. At the time, he seemed very frustrated. He reiterated the usual detainee complaints about his conditions, but he also seemed curiously disaffected, as if he was only going through the motions of complaining. He was discouraged by the lack of legal process and hinted that he was ready to give up his legal battle altogether. I knew that it was in Khadr's best interest to retain counsel, so I talked to him about the importance of working with lawyers. I was also Canadian, I told him, hoping that we might form a more personal connection. I went on to explain why I chose to work on behalf of detainees: I thought the system was illegal and that it was important to speak out against it. Khadr laughed with me when I said that I would get in trouble if he fired his lawyers immediately after meeting with me. We ended our meeting on a light note.

Not long after our meeting, he actually did fire his lawyers, American civilian attorneys working pro bono on his behalf. I have heard of many detainees in Guantánamo doing the same; I have even been fired by a frustrated client myself. It is the one decision that these prisoners are allowed to make. All others -- when to wake up, when to sleep, when to exercise, when to be interrogated -- are made for them. A Guantánamo detainee cannot even refuse to eat, since if he skips more than three meals he will be force-fed. (Last month, Khadr fired his third set of civilian lawyers. Now, as his trial for murder begins, Khadr is being defended by a single military lawyer who has been on the case less than a year.)

Khadr's trial was about to begin in January 2009, when the newly-inaugurated President Barack Obama ordered a stay of all military commission proceedings. Many believed that Obama would scrap the military commission system altogether, but that May, he announced his plan to revive an improved version of them. The resulting legislation did have better rules limiting the admission of hearsay and evidence obtained through coercion. So Khadr was charged yet again -- this time with murder, attempted murder in violation of the laws of war, conspiracy, providing material support for terrorism, and spying. A military judge ruled this week that almost all of the statements Khadr made to interrogators were reliable, including those made following a threat of rape, and would be admissible at trial.

And so Khadr remains at Guantánamo, in largely the same predicament that he has been in for years -- trapped on a legal road to nowhere. Khadr is essentially being tried for being the enemy. Battlefield killings by irregular fighters have not historically been considered war crimes. But the legal theory underlying the prosecution's case seems to be this: U.S. forces can attack the enemy, but, if enemy fighters like Khadr shoot at U.S. soldiers, they are committing a war crime. If he's convicted, the United States could end up regretting its argument: Setting such a standard could implicate CIA officers and other non-uniformed U.S. personnel who either intentionally or inadvertently take part in combat operations.

That's not the only reason Khadr's trial should never take place. The military commission system, despite revisions, is still flawed and untested. Khadr will surely appeal any conviction, and the Supreme Court may well take issue with how his case proceeded. Khadr was never housed separately from adult detainees, the judge and lawyers have no special training on child soldier issues, and the military commission rules do not allow the jury to take into account Khadr's juvenile status when judging his guilt or innocence. And while it is not illegal to prosecute someone who was 15 at the time of an alleged offense, after eight years of detention, many of them abusive, it may be immoral.  

I saw Khadr again last September. I was visiting a client in Guantanamo -- my last visit before I left the Office of Military Commissions to work for Human Rights Watch. The guards left the cell doors open that day, and I passed Khadr's cell on my way by. Khadr saw me and asked his lawyer if I was the Canadian lawyer he had met before. At the lunch break, we were able to wave and say hello, again through the open cell doors.

Khadr had aged, but still had a boyish face, partially hidden behind a full beard. His eyes were still bright as his face broke out into a smile. Weeks later, I wrote him a letter. I had been in Canada meeting with members of a Human Rights Watch committee who were deeply concerned about Khadr's treatment. I wrote to Khadr about the meeting and reminded him that people all over the world are following his case and hoping that, sometime soon, either the U.S. or Canadian governments will do the right thing and stop his trial.

Now, months later, I am at Guantánamo again to observe Khadr's trial. I wonder whether there is any of the boy left in him, or if when he enters the courtroom we will only see a man, raised in Guantánamo. On the first day of trial, as I sat in gallery of the courtroom, Khadr turned back, caught my eye, and smiled.



Between Uzbekistan and a Hard Place

After deadly violence against Uzbeks in Kyrgyzstan, President Islam Karimov seemed to embrace the flood of refugees back home. When, then, did he boot them out immediately?

The iron-gloved, authoritarian government in Uzbekistan hasn't received a lot of approving press or diplomatic applause in the five years since Interior Ministry troops opened fire on anti-government protestors in the city of Andijan in May 2005. The massacre -- the government claimed only 187 fatalities but most outside estimates put the death toll between several hundred to as many as 5,000 -- seriously ruptured relations with the United States and many European countries and drained the country of international media, NGOs, and United Nations representatives. The fallout included the sudden closing of the United States airbase in Uzbekistan, increasing wariness toward President Islam Karimov, and a major shift in Uzbek foreign policy away from Washington and toward Moscow and Beijing.

But the sudden eruption of lethal violence during four chaotic days in early June against the ethnic enclave of Uzbeks in Osh, a city in southern Kyrgyzstan just a few miles from the Uzbekistan border, has produced unexpected dividends in good public relations for the Uzbek government, which trumpeted rare positive reviews for temporarily housing approximately 100,000 ethnic Uzbek refugees -- all women and children -- from Kyrgyzstan and for tamping down popular anger on its side of the border.

This positive narrative conveniently dovetailed with a concerted effort on the part of the United States and some European countries if not to fully rehabilitate the international standing of the Uzbek government then at least to significantly improve relations with a strategically important nation bordering Afghanistan. "It does lend legitimacy to the view that Karimov can act in accord with some international standards," says Michelle E. Commercio, assistant professor of political science at the University of Vermont and a Central Asia specialist.

But it is also a narrative liberated from troubling aspects of the Uzbek response to the Osh crisis. "In essence, Karimov was out to demonstrate to the world a bit of goodwill in the sense that he accepted the refugees, set up the camps," says Commercio. "The more he could give to the Kyrgyzstan government and calm the situation the better, but I think ultimately housing the refugees in Uzbekistan was troubling to him because, a) the state couldn't support them, and b) they are more likely to participate in [subversion against him]."

The deadly violence in Kyrgyzstan galvanized international media attention and sparked concern for a traumatized minority Uzbek population vulnerable to reprisals from Kyrgyz police and rogue citizen militias. Long simmering tension between ethnic Kyrgyz and ethnic Uzbeks sparked deadly clashes after opposition protests successfully overthrew the president of Kyrgyzstan, Kurmanbek Bakiyev, who fled the country. Explanations for the causes of the violence are contested, but ethnic tensions in the region reach back to at least 1990, when police and armed Kyrgyz men attacked Uzbeks in Osh in the wake of the Soviet Union's dissolution. These tensions had an economic component as well. During the Soviet era, Uzbeks who lived in southern Kyrgyzstan flourished economically by leveraging old trading networks unavailable to the traditionally nomadic Kyrgyz, who were largely herders. Following the dissolution of the Soviet state, successive Kyrgyz governments have encouraged a muscular, ethnic-based nationalism.

The newly placed leadership in Bishkek, however, has been eager to show that its June 27 vote on a constitutional referendum that ratified the country's post-coup administration was supported by its minority Uzbek population, including those who had fled the violence in Osh. But less widely reported in the weeks following the Osh conflagration was the pressure exerted by the Karimov government on Krygyz refugees reluctant to return home. Simply put, Karimov has long feared that an influx of Uzbeks from across the border would have the potential to destabilize his rule -- and thus made sure that beyond the bare minimum of temporarily accepting fleeing women and children, the border remained closed. All 100,000 refugees returned to Kyrgyzstan within a couple of days. According to an Uzbek nurse who was present in the refugee camps and reports from human rights organizations in Kyrgyzstan, Uzbek security forces threatened to tear up refugees' passports and intimidated relatives who live in Uzbekistan.

Yet Uzbeks in Kyrgyzstan who continue to fear for their safety have reported being turned away by both Kyrgyz and Uzbek border guards. And since the return of refugees to Osh, organizations like Human Rights Watch have documented continuing abuse of Uzbek men taken for interrogation in police stations in Kyrgyzstan. Across a region deeply sensitive to the politics of ethnic identity, the events have triggered intense debate and alarmed ethnic Uzbek populations across Central Asia -- except, seemingly, in Uzbekistan itself.

"Uzbeks [in Uzbekistan] have other things on their minds than the atrocities in Osh -- unless they have relatives in Osh, and many do -- and I'm not sure how much they even knew of what transpired because the censorship in the country. Given Karimov's clear intention to stay out of it, Uzbeks aren't going to talk about it," says Commercio.

When I drove in late July through Xojobad, a dusty settlement with a vibrant open-air candy and fruit bazaar about 30 miles from the closed border with Kyrgyzstan and the last sizable town before the border checkpoint, uniformed police were stationed about every 100 feet along the main road. In a nearby village called Khojobad, a worker named Gahongar in a tea house warmly invited me to sit with him. He stopped smiling when I asked for his opinion on the violence in Osh; he literally walked away when I asked about the refugees.

In nearby Andijan, the restive, religiously conservative city where Uzbek security forces opened fire on anti-government protestors in 2005, an activist university student open to discussing ongoing human rights abuses in the country refused to comment on the situation in Osh, citing the danger in merely speaking on the topic and the lack of reliable information due to the near-total media blackout imposed by the Uzbek government.

But Karimov's ability to minimize knowledge of the scope of the incendiary turmoil around Osh doesn't pertain only to Uzbek citizens. According to a former highly placed Uzbek government official, he has also "convinced a sizable group of embassy-types that by closing its border and forcing the refugees back to Kyrgyzstan whether they like it or not is a sign that they're going to be more cooperative with the West in the future, and that's not necessarily the case."

"I think Osh has demonstrated to the international community that Uzbekistan can accept international norms when they choose to do so, at least by local standards," says Martha Brill Olcott, a leading Central Asia expert and a senior associate at the Carnegie Endowment for International Peace, in Washington. "The return of the refugees really works for both sides: It allowed the interim Kyrgyz government to demonstrate they intended to be a government of national consolidation, and it took away the problem for the Uzbeks, which was under what criterion they would accept the husbands of these people and risk letting in Uzbek men in who have more radical views than their own Uzbek population."

The bonus for the Uzbekistan government is international acclaim for accepting the refugees, but Karimov's real gain is the time and space to further entrench his authoritarian rule. For the refugees caught between a rock and a hard place, there's little to cheer about.