The Torture of Omar Khadr, a Child in Bagram and Guantanamo

Are we so inured to the implementation of torture by the Bush
administration that we no longer recognize what torture is? Torture,
according to the UN Convention Against Torture,
to which the US is a signatory, is "any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third
person has committed or is suspected of having committed, or
intimidating or coercing him or a third person."

Under President Bush, however, John Yoo, an ideological puppet in
the Justice Department's Office of Legal Counsel, which is supposed to
objectively interpret the law as it applies to the executive branch, purported to redefine torture, in two memos that have become known as the "torture memos,"
as the infliction of physical pain "equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure, impairment
of bodily function, or even death," or the infliction of mental pain
which "result[s] in significant psychological harm of significant
duration e.g. lasting for months or even years."

I ask this question about torture - and our attitude to it - because
of what took place last week, in pre-trial hearings at Guantanamo
preceding the trial by Military Commission of the Canadian prisoner Omar Khadr,
who was just 15 years old when he was seized after a firefight in
Afghanistan in July 2002. A number of witnesses revealed details of
Khadr's mistreatment, in the US prison at Bagram airbase in
Afghanistan, which hinted at his inclusion in an abusive program that,
before the 9/11 attacks, before Yoo's memos and before a general
coarsening of attitudes towards abuse and the mistreatment of
prisoners, would have led to calls for that mistreatment to be
thoroughly investigated, and, very possibly, for it to be regarded as
torture or as cruel, inhumane and degrading treatment.

In Khadr's case, these questions should not even need raising, for a
number of other compelling reasons. The first concerns his age. Under
the terms of the Optional Protocol to the UN Convention on the Rights of the Child, on the involvement of children in armed conflict,
to which the US is also a signatory, juveniles - defined as those under
the age of 18 when the crime they are accused of committing took place
- "require special protection." The Optional Protocol specifically
recognizes "the special needs of those children who are particularly
vulnerable to recruitment or use in hostilities," and requires its
signatories to promote "the physical and psychosocial rehabilitation
and social reintegration of children who are victims of armed conflict."

Instead, however, the US government is attempting, for the third
time, to prosecute Khadr for war crimes in a special trial system for
foreign terror suspects - the Military Commissions - which were first
ruled illegal by the Supreme Court in 2006, were then revived by
Congress but abandoned by President Obama on his first day in office (after they had succeeded in delivering just three dubious results), and were then revived again by President Obama, with the support of Congress, last summer.

Compounding the dark absurdity of Khadr's proposed trial is an
uncomfortable truth that has been particularly noted by Lt. Col. David
Frakt, a former military defense attorney for the Commissions, who has regularly pointed out
that the Military Commissions are fundamentally flawed because they
contain "law of war offenses" invented by Congress, including
"Providing Material Support to Terrorism" and "Murder in Violation of
the Law of War." Lt. Col. Frakt has recently expressed even graver concerns
about how the new Military Commissions Act includes a passage which
claims that "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."

As I also explained in an article last week,
"critics of Khadr's trial have, from the beginning, recognized that
there is something horribly skewed about redefining the internationally
accepted laws of war so that one side in an armed conflict - the US -
can kill whoever it wants with impunity, whereas its opponents are
viewed as terrorists, or, when brought to trial, as those who have
committed 'Murder in Violation of the Law of War.'"

Nevertheless, as the Obama administration has decided to press ahead
with Khadr's trial, pre-trial hearings were held over the last two
weeks in an attempt to address concerns raised by Khadr's defense team.
These largely skirted the issues discussed in the paragraphs above, but
focused unerringly on Khadr's alleged mistreatment, through a "Motion
to Suppress Statements Procured Using Torture, Coercion and Cruel,
Inhumane and Degrading Treatment" (PDF),
in which his lawyers argued that any self-incriminating statements that
Khadr may have made should be ruled out because of the manner in which
they were extracted.

The torture of Omar Khadr

Over the years, and in an affidavit submitted in February 2008 (PDF),
Khadr has described his mistreatment in detail, explaining how he was
unconscious for a week after his capture, when he was severely wounded,
and how, in Bagram, where he was taken after just two weeks in a
hospital, his interrogations began immediately, at the hands of an
interrogator who manipulated his injuries (the exact details were
redacted from his affidavit). Crucially, he also explained how, as soon
as he regained consciousness, "the first soldier told me that I had
killed an American with a grenade," and how, during his first
interrogation at Bagram, "I figured out right away that I would simply
tell them whatever I thought they wanted to hear in order to keep them
from causing me [redacted]."

There is much more in the affidavit - casual cruelty, whereby guards
made Khadr do hard manual labor when his wounds were not healed, and,
significantly, threats "to have me raped, or sent to other countries
like Egypt, Syria, Jordan or Israel to be raped." He also noted, "I
would always hear people screaming, both day and night," and explained
that other prisoners were scared of his interrogator. "Most people
would not talk about what had been done to them," he declared. "This
made me afraid."

Khadr also described what happened to him in Guantanamo, where, as I
explained last week, he "arrived around the time that a regime of
humiliation, isolation and abuse, including extreme temperature
manipulation, forced nudity and sexual humiliation, had just been
introduced, by reverse-engineering torture techniques,
used in a military program designed to train US personnel to resist
interrogation if captured, in an attempt to increase the meager flow of
'actionable intelligence' from the prison."

At various points in 2003, while the use of these techniques was
still widespread, Khadr stated that he was short-shackled in painful
positions and left for up to ten hours in a freezing cold cell,
threatened with rape and with being transferred to another country
where he could be raped, and, on one particular occasion, when he had
been left short-shackled in a painful position until he urinated on
himself:

Military police poured pine oil on the floor and on me,
and then, with me lying on my stomach and my hands and feet cuffed
together behind me, the military police dragged me back and forth
through the mixture of urine and pine oil on the floor. Later, I was
put back in my cell, without being allowed a shower or a change of
clothes. I was not given a change of clothes for two days. They did
this to me again a few weeks later.

Crucially, when describing the interrogations that punctuated these
experiences at Guantanamo, Khadr explained, "I did not want to expose
myself to any more harm, so I always just told interrogators what I
thought they wanted to hear. Having been asked the same questions so
many times, I knew what answers made interrogators happy and would
always tailor my answers based on what I thought would keep me from
being harmed."

Until two weeks ago, these claims - though well-known to those who
have followed Khadr's case - had, for the most part, not been aired in
a courtroom. In response to the defense motion, however, the government
attempted to refute Khadr's claims, calling a female interrogator who
stated that Khadr had voluntarily admitted that he threw the grenade
that killed US Sgt. Christopher Speer, during sessions after his
arrival at Guantanamo in October 2002 that were perfectly amicable, and
an FBI agent, Robert Fuller, who stated that his interrogations of
Khadr at Bagram earlier in October 2002 were also "conversational" and
"non-confrontational," and that Khadr had freely admitted to throwing
the grenade that killed Sgt. Speer.

Whilst it was possible - if not probable - that both interrogators
were telling the truth about interrogating Khadr non-coercively, the
problem remains that Khadr has stated that, from the time of his very
first interrogation, he regarded telling his interrogators what they
wanted to hear as the best way of avoiding mistreatment, and so may not
have been telling them the truth. As a result, last week's
witnesses were more significant because they shed light on the early
days after he recovered consciousness in US custody, and, in
particular, on his first interrogation and his subsequent interaction
with that interrogator. Along the way, further witnesses cast shadows
on the government's otherwise clean picture of interrogations conducted
in a non-coercive environment.

It would have remarkable had this not happened, as countless
witnesses - including soldiers as well as current and former Guantanamo
prisoners - have described the brutality at Bagram at the time Khadr
was held there between August and October 2002, which led, just over a
month after Khadr's departure for Guantanamo, to the murder of two prisoners - and, very possibly, to other murders at the time he was held.

The medic's testimony -- and "Palestinian hanging"

The first to reveal a glimpse of the regime at Bagram was,
ironically, a medic called as a witness by the prosecution. "Mr. M," as
he was identified, who testified by video link from Boston, countered
Khadr's claims that, while he was at Bagram, "five people in civilian
clothes would come and change my bandages," and that they "treated me
very roughly and videotaped me while they did it," stating that he
alone changed his bandages twice a day, and that no rough treatment was
involved.

He did, however, note that, on one occasion, he found Khadr hooded
and chained to a cage by his wrists with his arms "just above eye
level," and that when he lifted the hood, Khadr was visibly upset. The
medic added, as Carol Rosenberg described it in the Miami Herald,
that "he didn't object to Khadr's treatment, because chaining was an
approved form of punishment" at Bagram, "adding that he didn't know the
reason for the punishment nor how long Khadr had been chained."

This rather nonchalant description of "chaining" may not have
shocked the medic, especially as the chains were apparently "slack
enough to allow Khadr's feet to touch the floor," but the only reason
for this was because of the severity of his wounds, as Khadr explained
in his affidavit, in which he also stated that he was chained up
"several times." Otherwise, like numerous other prisoners, including
Dilawar (the subject of "Taxi to the Dark Side")
and Mullah Habibullah, the two prisoners who were killed at Bagram in
December 2002, he would have been fully suspended by his wrists, in a
torture technique more commonly known as the "strappado" technique or "Palestinian hanging."

Nevertheless, as Barry Coburn, Khadr's lead lawyer, explained, the
medic's testimony provided "critically important validation" of
statements in his client's affidavit, and another of his lawyers, Kobie
Flowers, added, "Had this been an American soldier in North Korea,
people would be outraged. Here we have a 15-year-old individual who was
nearly killed with bullets in his back who was left up there to hang as
punishment."

"Interrogator No. 2" and Khadr's first interrogation -- on a stretcher

However,
while this was significant in establishing some context for the general
and well-chronicled brutality at Bagram, which will no doubt emerge in
unprecedented detail should Khadr's trial proceed, it was not until
Tuesday last week that previously unknown information emerged regarding
Khadr's first interrogation on arrival at Bagram, which, according to a
master sergeant in the US Army, identified as "Interrogator No. 2," who
appeared in person, took place on the same day that Khadr was moved
from the hospital to what Carol Rosenberg described as "the crude, putrid Bagram Air Base detention center."

The interrogator, who was an observer at Khadr's first interrogation
on August 12, 2002, revealed that "the questioning took place while
Khadr was on a stretcher - he couldn't remember if Khadr was shackled
to it - and that his notes included this detail: 'Clarification was
difficult due to the sedation and fatigue of the detainee.'" He also
explained that no coercion was used on him, but just two approved
techniques from the Army Field Manual: "fear down," which is designed
to play down a prisoner's anxieties, and "fear of incarceration," which
encourages prisoners to tell the truth by pointing out that otherwise
they may face extended imprisonment.

It is hard to tell if this controlled line of questioning strictly
reflects reality, but even so, as one of Khadr's military lawyers, Army
Lt. Col. Jon Jackson noted, the testimony showed that Khadr "was first
questioned within just 12 hours of his transfer from the US field
hospital to the detention center." Kobie Flowers was more forceful in
his criticism. "You got a guy who is 15, seriously wounded, who has had
multiple surgeries, and that's the first time the United States
government takes a statement from him to use in his prosecution," he
said, adding, "Now whether it is torture, cruel, inhumane, degrading
treatment or simply involuntary ... I don't think any federal judge in
the United States would allow that type of conduct."

The testimony of Damien Corsetti

On Wednesday, a peripheral figure in Khadr's story - but one who has
achieved a certain notoriety - testified by video link from Arlington,
Virginia. Damien Corsetti, who was known as "Monster" at Bagram, based
on a tattoo on his chest, and also as "The King of Torture," described
himself as "a disabled veteran suffering post traumatic stress disorder
as a result of his interrogation work in both Afghanistan and Iraq,"
and explained how, on seeing Khadr on July 29, 2002, just two days
after his capture, he was struck by how he was an injured "child"
detained in "one of the worst places on Earth." He added, "More than
anything, he looked beat up. He was a 15 year-old kid with three holes
in his body, a bunch of shrapnel in his face. That was what I remember.
How horrible this 15 year-old child looked."

Corsetti, who was cleared in 2005 of abuse charges relating to his conduct in Bagram and, later, at Abu Ghraib in Iraq, explained, back in 2007,
how he was still haunted by "the cries, the smells, the sounds" of
those whose torture he witnessed, when he was called upon to attend
sessions in the basement of Bagram in which "high-value detainees" were
tortured. "[T]hey are with me all the time," he said.

Last Wednesday, Corsetti told the court that he was "not one of
Khadr's interrogators" but had befriended him in Bagram. He explained
that the guards and interrogators, who identified all the prisoners as
"BOB" (which stood for "Bad Odor Boys"), named Khadr "Buckshot BOB,"
due to his injuries. He added that "there was the sound of screaming
and yelling 'continuously," and also confirmed that threats were made
to send prisoners to countries where they would be tortured, or raped.
He specifically mentioned Israel and Egypt, but added, as Michelle
Shephard explained in the Toronto Star,
that he "did not know if Khadr had been told this." As Khadr stated in
his affidavit that he was indeed threatened with being sent to Israel
or Egypt (or Syria or Jordan), Corsetti's testimony therefore endorsed
another of Khadr's claims.

"Interrogator No. 1" and the rape threat

If
Corsetti's testimony, for the most part, did little more than add some
more color to the story of Khadr's early months in US custody,
Thursday's witness, Joshua Claus, provided potent testimony regarding
the kind of threats to which Khadr was subjected, and also provided a
disturbing link to the kind of violence in Bagram that led to the
murders of Dilawar and Mullah Habibullah in December 2002. Claus,
formerly a sergeant in the 519th Military Intelligence Battalion (of
which Corsetti was also a member), was identified in court as
"Interrogator No. 1," and was Khadr's main interrogator at Bagram, the
"skinny blond" man with glasses (just 21 years old at the time) who
also interrogated him while he was on a stretcher, on the day that he
was moved to Bagram from the field hospital, and who, according to
Khadr, mistreated him in an unknown manner (because the details are
redacted) during his first interrogation.

Testifying by video link from Arizona, Claus recalled, in
particular, using the technique described as "fear up harsh" in
interrogations of Khadr, during which he would kick the furniture and
scream at the young prisoner. He also admitted that he invented a rape
story to scare him, explaining, as Spencer Ackerman described it in the
Washington Independent:

"I told him a fictitious story we had invented when we
were there," Interrogator #1 said. It was something "three or four"
interrogators at Bagram came up with after learning that Afghans were
"terrified of getting raped and general homosexuality, things of that
nature." The story went like this:

Interrogator #1 would tell the detainee, "I know you're lying about
something." And so, for an instruction about the consequences of lying,
Khadr learned that lying "not so seriously" wouldn't land him in a
place like "Cuba" - meaning, presumably, Guantanamo Bay - but in an
American prison instead. And this one time, a "poor little 20-year-old
kid" sent from Afghanistan ended up in an American prison for lying to
an American. "A bunch of big black guys and big Nazis noticed the
little Afghan didn't speak their language, and prayed five times a day
- he's Muslim," Interrogator #1 said. Although the fictitious inmates
were criminals, "they're still patriotic," and the guards "can't be
everywhere at once."

"So this one unfortunate time, he's in the shower by himself, and
these four big black guys show up - and it's terrible something would
happen - but they caught him in the shower and raped him. And it's
terrible that these things happen, the kid got hurt and ended up
dying," Interrogator #1 said. "It's all a fictitious story."

Perhaps so, but as Ackerman also noted, every other interrogator who
spoke to Khadr did so "after he heard a 'fictitious story' about a
young Afghan who lied to US interrogators and as a result was raped and
killed in jail."

In many ways, the events of the last two weeks were inconclusive,
and it remains to be seen how the judge, Army Col. Patrick Parrish,
will interpret them. Certainly, there was much worse abuse at Bagram
and at Guantanamo than that experienced by Omar Khadr, but he was just
a child during his time at Bagram and the early years of his abuse at
Guantanamo, and it may well be that, as his lawyers assert, any
self-incriminating statements that he made (especially regarding the
throwing of a grenade that may have taken place when he was face down and unconscious under a pile of rubble)
were produced because rape threats and physical violence based
primarily on exploitation of his wounds was enough to terrify him into
acquiescence with whatever his captors wanted.

The Pentagon shoots itself in the foot: four reporters banned

Ironically, the biggest story in Guantanamo last week was not the reports of Khadr's treatment but the banning of four reporters
(including Michelle Shephard and Carol Rosenberg), after they revealed
Claus' name in newspaper reports. The Pentagon alleged that this
violated an order stipulating that Claus' real name was protected
information, but this was patently ridiculous, because his name was
already in the public domain, and, in 2008, he had even conducted an interview with Michelle Shephard.

Instead of protecting Claus, the Pentagon's heavy-handed response
served only to make other reporters wonder if the Pentagon was trying
to prevent anyone from working out that, unlike Damien Corsetti, Claus
served five months in prison for pleading guilty in a court martial to
the abuse of an unidentified prisoner at Bagram, who was made "to roll
back and forth on the floor and kiss the boots of his interrogator," as
Michelle Shephard described it,
and for the assault of Dilawar. In Shephard's words, "He admitted to
forcing water down the throat of Dilawar and twisting a hood over the
Afghan's head." Moreover, as another soldier explained in a military
report into Dilawar's death, "I had the impression that Josh was
actually holding the detainee upright by pulling on the hood. I was
furious at this point because I had seen Josh tighten the hood of
another detainee the week before. This behavior seemed completely
gratuitous and unrelated to intelligence collection."

In his interview in 2008, Claus insisted that he wanted to set the
record straight. "They're trying to imply I'm beating or torturing
everyone I ever talked to [at Bagram]," he said, adding that, with
Khadr, "I spent a lot of time trying to understand who he was and what
I could say to him or do for him, whether it be to bring him extra food
or get a letter out to his family ... I needed to talk to him and get him
to trust me."

Responding last Thursday to a question about his conviction posed by
Barry Coburn, Claus insisted that he "lost control at a very slight
moment. You're talking about two-and-a-half minutes of my life." This
may not technically be correct, as there was clearly more than one
incident, but it is obvious that his actions were part of an abusive
program sanctioned at the highest level of the Bush administration, and
moreover, as Damien Corsetti explained, "the pressure to get
information from prisoner at Bagram was intense." He told Col. Parrish,
"This was less than a year after 9/11 so we're all still pretty heated
up about that. This was life and death stuff we were supposedly dealing
with. There was just a ton of pressure on us to get information to save
lives and generate reports."

By banning the four reporters, the Pentagon has only succeeded in
drawing attention to something it presumably wanted to hide: that Omar
Khadr's mistreatment in Bagram took place at time when the violence in
the prison, sanctioned by the Bush administration, was so intense that
prisoners died, and that his first interrogator was implicated in the
murder of one of these men. It doesn't prove that Khadr wasn't coerced
into making false confessions, but it doesn't augur well for claims
that everything about his treatment was "conversational" and
"non-confrontational."

The Obama administration has until July, when Khadr's trial is
scheduled to start, to extricate itself from a public relations
disaster of its own making, by formulating an acceptable plea deal for
Khadr and arranging his return to Canada. Too much about this story -
from the trumped-up war crimes charges, to the doubts about Khadr's
guilt, to his age and the abuse to which, on occasion, he was
undoubtedly subjected - makes proceeding with the trial an unpalatable
and essentially pointless exercise. It is, I believe, time, after
nearly eight years, for his punishment to come to an end, and for his
long-delayed rehabilitation to begin.