Khadr Trial Suspended for at Least 30 Days

Things are not going well in our Kangaroo Court. After quickly determining a fake sentence for Osama bin Laden’s cook, Ibrahim al Qosi, matters turned to trying Omar Khadr for an alleged murder that normally wouldn’t be a crime that he allegedly committed as a teenager using evidence gotten through rape threats.

So they picked a jury (but not, thanks to a disqualification from the prosecution team, the guy who agreed with Barack Obama that Gitmo should be closed) and proceeded to the witnesses. Lieutenant Colonel Jon Jackson was in the middle of highlighting the many inconsistencies of prosecution witness testimony when he collapsed in the court room. Daphne Eviatar was in the court room when it happened:

On Thursday afternoon I watched Omar Khadr’s sole defense lawyer, Lt. Col. Jon Jackson, collapse in the Guantanamo Bay courtroom in the middle of conducting a cross-examination of a key government witness. He was taken away on a stretcher by ambulance, hooked up to an I.V. Fortunately he was breathing normally and I hope will be fine, though as an observer in the courtroom I was stunned. It all happened so suddenly and he seemed to be in perfect health and in complete control of his questioning. It seems unlikely at this point that this historic trial will resume on Friday, as scheduled.

It turns out the collapse was related to complications from gall bladder surgery Jackson had about six weeks ago. He just got medivacked to the US for treatment and Khadr’s trial has been suspended for at least 30 days. So the showcase war crime trial for allegations that most don’t consider to be a war crime will have to wait (and they may have to start all over again with jury selection).

And Omar Khadr, who has been held for a third of his life, has another month gone from his life.

Update: Here’s Carol Rosenberg’s report on all this.

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  1. klynn says:

    Let’s hold positive thoughts of recovery for Lt. Col. Jackson.

    He was probably not feeling well and was just pushing forward with his duty. After surgery complications do not just creep up on you. He must have been under great stress.

    This is an extremely tragic complication for Khadr to face.

  2. Frank33 says:

    One of the Khadr jurors, has been removed from the case.

    A serving US Army officer who told a court he agreed with President Barack Obama that the Guantanamo Bay prison camps should be closed down has been removed from a jury hearing allegations of war crimes against a former child soldier.

    Prosecutors claimed the unnamed lieutenant colonel had “pre-conceived” views that might harm their case. But the exclusion of the officer, who had been called to sit as a juror in the controversial military commission trial of Omar Khadr at the US naval base in Cuba, has only added to the perception of prejudice…

    He said he thought that some earlier policies had lost America its “reputation for being a beacon of freedom.”

    Asked specifically which policies had led him to this conclusion he authoritatively cited examples including; charge without trial, torture, rendition and the denial of access to members of the International Committee of the Red Cross to detainees held in secret locations. He went on to say that he believed a small number of detainees may have been killed while in American custody but added: “I don’t think my views differ from those of the President.”

    By the time he had admitted that he would be “suspicious” of any evidence obtained under torture his fate was sealed.

    • klynn says:

      Asked specifically which policies had led him to this conclusion he authoritatively cited examples including; charge without trial, torture, rendition and the denial of access to members of the International Committee of the Red Cross to detainees held in secret locations. He went on to say that he believed a small number of detainees may have been killed while in American custody but added: “I don’t think my views differ from those of the President.”

      (my bold)

      That is one beautiful quote you linked to. I hope the Red Cross talks to him.

      And what is the court going to do with such words from a serving US Army officer? Ignore it? The judge cannot ignore this removed juror’s statement. (I realize he can. Although, if I was Khadr’s lawyer, I just might be interviewing this officer.)

      Wow, that was some light shining. Thank you removed juror and serving Army officer. Thank you for being truthful when the court cannot. Thank you for being truthful in you work to protect the Constitution.

      This is the first crack. It just takes one to have the courage to speak the truth and more will follow. This officer is a hero.

      • skdadl says:

        Agreed — that is a most principled officer. But for being well informed, he’s excluded for having “pre-conceived” views. What — the officers who don’t believe torture happened at GTMO don’t have pre-conceived views?

        • klynn says:

          I agree. That is what I meant by the court not being able to ignore his statements. His statements can be used to question the views of the other jurors from the view point of pre-conceived.

          That is the good that can out of this. He just took the step that creates the evidence for understanding how this is a kangaroo court.

          And, I bet if we spend a number of comments discussing this and if EW updates her post with this info, I bet, we’ll see all kinds of media releases working overtime to counter the discussion here.

          Again, this officer is a hero of global proportions.

          • stevo67 says:

            Not to be too critical of your comment, but what a sad turn of events it is when we equate heroism with the simple actions of acting as a decent human being. Once upon a time, this nation stood for values that we could all be proud of, values that we learned in grade school and at the kitchen table. I will never forgive what Bush and Chaney did to this country, nor will I forgive what Obama is doing to this country. Every American should be hanging their head in shame at what we have become.

            • klynn says:

              No criticism taken. Agree with you 100%. Simple actions of acting as a decent human being was once the norm.

              However, in this climate, heroism comes at us in very different ways. We need to acknowledge what once was the norm has now become the exception and note the times of exception as good, great or heroic. Otherwise, the norm will never return.

      • Peterr says:

        This is not new information.

        A while back, the NY Review of Books got a copy of a 2007 ICRC report [pdf] detailing their being excluded from visiting with 14 high value detainees.

        I’m still waiting for someone to use this, with the ICRC report as one piece of evidence.

        • klynn says:

          I know. I still think the Red Cross should talk to him. I am well acquainted with the Red Cross Report. Well acquainted.

          Thanks for the link. It’s a good doc to have a link to in this post.

          • Peterr says:

            It’s hard to say, given the brief description of the exchange with the judge, but I took this potential juror’s comments to be the thoughts of someone who is up on current events, not as someone speaking out of inside/confidential experience. “These are the policies I’ve heard/read about, and I don’t like them at all.”

    • tjbs says:

      This traitor to bush probably believes Khadr is innocent.

      Which would be the proper constitutional view that you’re innocent until proven guilty in a court of law not a kangaroo court.

      What constitution did this genius president teach since it sure can’t be the Constitution of The United States ?

      What, the constitution of the United Snakes Of America ?( credit to fireside )

    • Leen says:

      “He said he thought that some earlier policies had lost America its “reputation for being a beacon of freedom.”

      Asked specifically which policies had led him to this conclusion he authoritatively cited examples including; charge without trial, torture, rendition and the denial of access to members of the International Committee of the Red Cross to detainees held in secret locations. He went on to say that he believed a small number of detainees may have been killed while in American custody but added: “I don’t think my views differ from those of the President.”

      By the time he had admitted that he would be “suspicious” of any evidence obtained under torture his fate was sealed”

      A person with a conscience, intellect. Uh oh…they have to go

  3. klynn says:

    And here is another doc worth linking to on the matter of secret sights.

    In February 2006 White House press secretary Scott McClellan said, “The International Committee for the Red Cross has been provided full access to the detainees [at Guantánamo].” Calls for Transparency Given the administration’s contradictory statements about CIA ghost detainees, who then and now are kept hidden from the Red Cross, and the revelation of four designations of access to the men at Guantánamo at least up until 2003, attorneys with the Center for Constitutional Rights called for a full accounting by the U.S. government of all levels of ICRC access to all men and women and children in its custody. “The Pentagon claims that the manual is out of date and has been replaced by a new set of policies,” said CCR Senior Attorney Shayana Kadidal.

    Even with “what” we know from documents out there, military voices coming forward have the capability of holding important leverage on the issue.

  4. workingclass says:

    Wait a minute. This is a jury trial?

    Is there one person on the planet who believes this is a real trial?

    What is the purpose of this charade?

  5. Mary says:

    What I found really interesting about this article

    http://www.independent.co.uk/news/world/americas/guantanamo-critic-removed-from-jury-2051286.html

    which focused on the sole juror to question torture and his removal from the jury,was this about the jurors who were selected: “None of them thought the US had used torture to extract confessions.”

    So, despite the FACT that Cheney’s pick, Susan Crawford, dismissed the case against Qhatani specifically because she found that he had been tortured:

    http://www.washingtonpost.com/wp-dyn/content/article/2009/01/13/AR2009011303372.html

    the judge for the Khadr trial, and the prosecutors who as lawyers have at least some passing duty (although I guess DOJ has absolved them like it has all other Exec branch lawyers) are only allowing jurors who specifically and absolutely believe a falsehood onto the jury.

    Amazing.

    Can you imagine what would happen if a judge only allowed people who believed Israel was behind the WTC destruction to be on the KSM jury?

    I guess a crew like that – officer rank, and willing to spew the lie that the US hasn’t tortured for confessions despite the flat out rulings of convening authority at GITMO – won’t be at all difficult to lead by the nose when they get instructions on the newly made up charges of illegal self defense from people who invaded and are dropping 500lb bombs on you.

    Whatever. These decisions and charges – 14 years for Bin Laden’s cook v. no time for Haditha’s killings of toddlers huddled in their mother’s arms and no charges for killed pregnant women whose bodies were mutiliated to get the bullets back and basically nothing for the Dilawar torture murderers and nothing for putting an Iraqi general in a sleeping bag after beating and torturing him and suffocating him for days and finally suffocating him to death while bouncing up and down on his chest – all those will be and have been compared and contrasted.

    American soldiers are free to commit atrocities while Bin Laden’s cook has served 11 years in depravity and is getting 14 more (or a “secret sentence”) but with the US still claiming the right to keep an hold forever guys whose sentences have been served.

    Maybe Lindsey had it right – maybe they do hate us for our freedoms.

    It is such a huge disservice to most soldiers, the ones who every day do the hard thing and the right thing. It’s really the difference between the old soldiers creed and the new – one focused on honor and duty, the other just revelling in war – warrior warrior warrior.

    • Jeff Kaye says:

      Yes, a hand-picked selection of military officers is not my idea of any way to provide justice, and to even go along with it and premise who might be a decent juror in this context is to accept the absurdity of these military commissions.

      Even so, my best goes out to Col. Jackson. There’s been ample evidence from other JAGs that this kind of defense work is very stressful and a career killer. To get up in front of the court is practically like cutting your own throat, career-wise. My guess is that maybe this is complications from a surgery six weeks ago, or maybe it was a panic attack and fainting, or even a migraine attack. Carol Rosenberg said the military won’t release more info on his health condition, but noted he was on a morphine drip.

      Re how the Pentagon was pouring stress onto Jackson and the defense team:

      Parrish ordered the Army defender to stay on the case [after Khadr dismissed his two civilian attorneys], but the Pentagon Defense Office provided him no additional assistance beyond two enlisted paralegals who had already been on the case.

      Read more: http://www.miamiherald.com/2010/08/13/1774440/omar-khadr-defense-attorney-being.html#ixzz0wV0EVkNA

      • tjbs says:

        Jeff did you catch this ?

        The saga continues for the Physicians for Human Rights (PHR) report that provided evidence of unethical and illegal medical experiments by the CIA on U.S.-held detainees. The Office of Human Research Protections (OHRP) declined to investigate the issue, and instead referred it to the CIA. Thus the agency that may have violated the laws and standards protecting individuals from unethical medical research was asked to do the investigation. Your efforts are needed now to ensure that these allegations are appropriately investigated.

        Join NRCAT in asking the administration to investigate
        allegations of CIA torture experiments.

        • Jeff Kaye says:

          I hadn’t heard that, but did get confirmation about it. What a load of crap!

          As for bmaz’s contention @20 that the hand-picked nature of the MC jury is not really different from how all juries are hand-picked, I must disagree.

          This is not a real jury, for one thing. Juries are picked from the community. Class distinctions, for instance, are not involved. But for the MC jury, only senior officers were picked, and volunteers for the jury were allowed on the jury pool. Moreover, the jurors were flown to Guantanamo from bases across the world, such flight and travel itself constituting a possible source of unintentional influence, i.e., look how much money the government is spending on you to be here. The universe, in other words, from which the jury pool was drawn was already biased.

          In a regular jury trial, and I recently sat on a jury, the attorneys engage in voir dire to be able to select the best jury for their client or the “people”. The judge, too, participates. I understand there was a voir dire in the MC, too, and this must be why bmaz contends that there is “hand-picking” that goes on in jury selection. My contention is that the pool from which the jurors is drawn has already constituted too great a pre-selection bias, and indeed, we discover that none of the jurors see anything wrong in trying a 15 year old, or that such a person should be held to a different standard (something the judge had to remind the jurors was indeed a fact to be taken into consideration).

          This is nothing like a regular jury trial, and whatever fashion in which the outward form of a jury trial is maintained only serves to mask the true, underlying nature of the MCs as nothing but kangaroo courts. After all, every court has a judge, too. Does that make any court with a judge co-equal?

          • Mary says:

            Not to speak for him, but I don’t think bmaz said or would agree that these are anything like a real jury/jury pool. I agree with what he said – that the use of a peremptory challenge (which appears to be what was used to remove the juror) is what would be used in even a civil proceedings with full due process protections to get rid of a guy you don’t want on the jury. I think he pretty much agreed (40) with my comment @ 27 that these pools basically are pretty much the opposite of what you’d expect for the jury pool in a civilian court proceeding.

            @61 – Complicated answer that gets you to a lot of “no” but I’d love to see someone start doing things like putting Claus’ investigators (who would have to have the info that not just Claus, but a plethora of soldiers, joined in on that torture and the other torture killing at the same time; along with Crawford, as part of the defense if I could think of a way to do it – circumstantial evidence of mode of operation doesn’t seem to work, but I’d love to see it.

      • bmaz says:

        Well, I hate the military commissions all the way around, but come on, “hand picking” is how juries have always been picked. Let’s keep some perspective here.

        • skdadl says:

          You would acknowledge that there’s something wrong with the jury pool in the first place? In ordinary military trials, it’s possible to imagine that such a pool constitutes a group of the accused’s peers. How is that possible with these commissions?

        • DWBartoo says:

          You know, bmaz, for someone who believes in the rule of law, as you do, and as I do, your, “it has ever been thus”, comment smacks of a “perspective” often adopted by attorneys who recognize the injustice of a “pattern” but who are either comfortable with that pattern or have lost any stomach for acknowledging its consequences and implications.

          Perhaps your comment was snark?

          Before you answer me, should you choose to do so, I should inform you that I, very recently, was lucky to escape with my life after a big SUV, a truck, in fact, drove into me broadside … It is my thought that the young driver was using a cell phone when the “accident” occurred… it is said that up to 81% of drivers, knowing the distraction cell phones cause, nonetheless continue to use them while driving.

          One hopes such behavior does not continue to be countenanced … “ever thus”… Equally “hand-picking” “juries” should be noted and questioned. Don’t you think?

          DW

            • DWBartoo says:

              I suppose that answers my question.

              But how does it jibe with your comment, bmaz?

              Do you postulate, that, in general, “hand picking” is a “good thing”?

              Or is it a matter of luck? Or competence? Or something the average person must take on trust?

              Merely curious.

              DW

              • bmaz says:

                The voir dire process is an imperfect thing that is very much affected by competence of the attorneys and judges conducting it. But, on the whole, I have found the jury trial system to work way better than it is given credit for.

                • DWBartoo says:

                  On the whole, I agree with you … it is when the concept of “peers” is tossed out of the equation that the jury trial system fails … or when the court is run by and for kangaroos … that a “jury” adds mocking insult to injury.

                  That is what I happen to think, bmaz.

                  DW

    • bmaz says:

      The “judge” allowed it because it was a peremptory challenge as a matter of right under the rules; it was not granted “for cause”.

      • Mary says:

        I understand that bmaz and agree with you about peremptory challenges, (although in a civil setting with a less handpicked jury pool to start with and peremptory challenges in a made up rules commissions proceeding are interesting in and of themselves)

        My comment was about the jurors who made it onto the jury and the fact that they were all specifically asked about the US using torture to get confessions and they all said they didn’t believe the US used torture to get confessions.

        Despite the previous convening authority’s specific findings on Qhatani, everyone of the jurors put on the jury was put on after stating that they believed something directly contrary to previous commission findings. They all claimed to believe something that had been proven in previous commission review to be false.

        That was my point – not who the prosecutors were spinning with a peremptory, but who the judge and prosecutors were putting on the jury when they should have been spun for cause. If they refuse to believe that the US tortures for confessions when it has been documented and documented right there at GITMO by Crawford, then they are picking a jury that has a unanimously held belief in a lie.

        • Mason says:

          If I were defense counsel, under the circumstances you mentioned, I would have questioned each of those prospective jurors with a hypothetical question like this:

          You said that you don’t believe anyone was ever tortured. If you were to hear evidence that my client was tortured, would you automatically disregard it as untrue, since it conflicts with your opinion?

          If the answer is “yes,” I would challenge the prospective juror for cause. If the answer is “no,” I would ask why and proceed from there to lay the foundation for a challenge for cause. If unsuccessful, I would use one of my peremptory challenges to strike the juror.

          I don’t know if they allow attorney voir dire in military commission trials.

        • emptywheel says:

          One more note. Four of the people in the pool have been through SERE. Not sure how many, if any, ended up on the jury, but we sometimes–though by no means always–see people who went through SERE saying that it wasn’t torture.

          • klynn says:

            EW,

            This discussion about the jury pool would make a great post. Your point @36 is quite critical.

            This is a vital discussion going on here.

          • Leen says:

            You have to be f—ing kidding? This is absurd. What a mockery of justice this process is? Are these people completely unaware that the whole world is watching? They obviously do not give a rats ass.

    • bobschacht says:

      I agree with you. Apparently, only low-information candidates will be considered. Well-informed citizens are automatically excluded. ISTM this ought to be grounds for automatic appeal if Khadr is convicted of anything.

      Bob in AZ

  6. sonofloud says:

    I fail to see any evidence that Obama wants Gitmo closed.
    What Obama says and what Obama wants are clearly two different things.

  7. Frank33 says:

    I bet Emptywheel’s keyboard is smoking hot since this seems an important story. It is an old story. If you do not go along with full spectrum dominance you get purged if you are in the government or military or spy community.

    It is supposedly a war crime for Khadr to fight in a war. But the killing by Halliburton or Drones is praised by the establishment. These Kangaroo Courts are propaganda and are done to conceal more war crimes by the neo-cons. No one, including Obama should be allowed to murder and claim it is justice.

  8. Mason says:

    Appears to me that the potential juror was excused for cause because of his knowledge about what the military and the CIA have been doing since 9/11.

    I have no experience with or knowledge about military justice, except that I have an opinion that it’s an oxymoron based in part on what I’ve already seen in this case. I was a criminal defense and death penalty lawyer for 30 years, so I certainly know criminal procedure, and the judge’s decision that Khadr’s statement while being tortured is admissible is outrageous, indefensible, and would be automatic reversible error in any civilian criminal trial. With the whole world watching this despicable nonsense, I can’t imagine anyone not reacting with revulsion and disgust to this showtrial. Way to go America!

    In a civilian trial, the legal issue regarding the juror is whether the he can set aside his personal opinions, follow the court’s instructions on the law even if he disagrees with them, and reach a verdict based on the evidence admitted at trial. Prospective jurors who admit that they can’t, must be excused for cause. Prospective jurors who say they will try, but aren’t certain they can, are often excused for cause. Prospective jurors who say they are certain they can, almost never get excused for cause forcing a lawyer to use a peremptory challenge to excuse the juror.

    Subject to only a few exceptions, lawyers don’t have to explain why they used a peremptory challenge. However, they must use them carefully because they only have a limited number of peremptory challenges. Challenges for cause are unlimited, but must be supported by a reason and granted or denied according to test I set forth above.

    Lawyers are prohibited from using peremptory challenges to strike prospective jurors based on race or sex. The purpose for this important exception to the general rule is to prevent lawyers from systematically excluding prospective jurors based on race or sex. The United States Supreme Court first imposed the race exception to stop prosecutors from systematically excluding African-American jurors in death penalty trials with African-American defendants.

    I can’t reach a definitive conclusion regarding the propriety of the military judge’s decision excluding the prospective juror in Khadr’s case because I can’t tell if anyone asked the prospective juror if, despite his opinions, he could remain fair and impartial while listening to the evidence, follow the court’s instructions on the law even if he disagrees with them, and reach a verdict based only on the evidence admitted at trial. Excluding the juror for cause would have been improper, if the prospective juror said he could, but he would have been a goner anyway via the peremptory challenge, assuming the prosecutor had not previously exhausted all of his peremptory challenges, which is unlikely.

    In any event, it looks like the 30 day continuance may require a mistrial, so the issue, if any, likely will become moot.

    • Mason says:

      Bmaz @19 says the prosecutor used a peremptory challenge to get rid of the prospective juror. Any prosecutor could and would have done that under the circumstances. Therefore, no error occurred.

  9. Mary says:

    I guess to expand a bit on the jury selection in general – while the big thing that struck me was that all jurors were asked to confirm that they didn’t believe the US tortured for confessions (despite the existing GITMO record generated by Crawford to the contrary), the other thing that struck me was how many had lost friends in terrorist related attacks.

    While peremptory challenges are there to exclude guys you think won’t sway your way easily, for cause exists for more concrete reasons. There’s no way, for example, that in a case involving an illegal immigrant accused of killing a police officer they would allow the jury to be all police officers who had friends or partners killed by illegal immigrants.

    So it’s a funny juxtaposition – the preservation of prosecutorial peremptories in a setting where the pool is basically nothing but men who would be pulled for cause in a civil setting.

    At least, that’s how I see it, but I’ll defer to the real litigators.

    • Mason says:

      I guess to expand a bit on the jury selection in general – while the big thing that struck me was that all jurors were asked to confirm that they didn’t believe the US tortured for confessions (despite the existing GITMO record generated by Crawford to the contrary), the other thing that struck me was how many had lost friends in terrorist related attacks.

      I don’t see a problem with a general question regarding whether any prospective juror believes that the military or CIA used torture to obtain confessions. It would be automatic reversible error in a civilian criminal trial to automatically exclude everyone who said they believed torture was used because no opinion whatsoever triggers automatic exclusion unless the prospective juror admits that the opinion is so strong that he or she cannot fairly and impartially listen to the evidence and follow the court’s instructions.

      A person who is opposed to the death penalty or a person who believes in it cannot be automatically disqualified from serving as a juror in a death penalty trial unless they say they cannot impose the death penalty in any case or they would automatically impose it any case. In both situations the prospective juror in essence is saying he or she cannot follow the law.

      For other readers, I should add that the death penalty isn’t automatic in any case. If jurors convict a defendant in the guilt phase and proceed to determine the penalty in the penalty phase, they have to weigh the mitigating and aggravating circumstances and decide whether the prosecution has proven beyond a reasonable doubt that, even after considering mercy, the death penalty is the only appropriate penalty. The jury must independently consider and unanimously vote for death to render a death verdict.

      • Mary says:

        I’m not sure if we are talking apples and apples or not, bc this confused me:

        It would be automatic reversible error in a civilian criminal trial to automatically exclude everyone who said they believed torture was used because no opinion whatsoever triggers automatic exclusion unless the prospective juror admits that the opinion is so strong that he or she cannot fairly and impartially listen to the evidence and follow the court’s instructions.

        I’m not talking about automatic exclusion of everyone who said they believed torture was used. ?

        We have had a convening authority pre-Obama handling some of the GITMO charges. That convening authority, Susan Crawford, picked by Cheney, held that the case against Qhatani could not go forward bc the US had tortured him. She has since been removed as convening authority, but that was a holding of the commissions – that the US used torture for his confessions.

        In Khadr’s case, the questioning of the jurors has elicited that none of them believe the US has tortured for confessions, despite the prior ruling of the convening authority in the Qhatani case. So my point is that the jury has been selected to unanimously comprise people who believe a demonstrable falsehood. If at least one other commission proceeding has found, by ruling of the convening authority, that the US did torture and if the defense argument will be based in part on a claim of torture, then how can you not require that jurors who refuse to believe that the US tortures, despite prior determinations fo the same commissions, be spun for cause?

        So it’s not so much the lone guy who didn’t picked imo, it’s the unanimous rejection of prior commissions findings of fact by the ones who did get picked that struck me.

        • Mason says:

          I’m sorry, I misstated what I meant to say.

          The legal rules in civilian criminal cases are:

          1. Confessions extracted during torture are involuntary as a matter of law.

          2. Involuntary confessions are inadmissible for any purpose.

          3. Evidence that is obtained as a result of an involuntary confession also is inadmissible for any purpose.

          4. Voluntary confessions obtained during custodial interrogations are inadmissible unless the defendant is advised of his Miranda rights to remain silent and be represented by counsel and agrees to waive those rights and give a statement. A recent Supreme Court decision requires defendants to assert the right to remain silent.

          5. Voluntary statements obtained in violation of Miranda are admissible to impeach, if a defendant testifies and his previous statement contradicts his testimony.

          I meant to say that just as it would be automatic reversible error in a civilian criminal trial to automatically exclude everyone who said they believed torture was used (because no opinion whatsoever triggers automatic exclusion unless the prospective juror admits that the opinion is so strong that he or she cannot fairly and impartially listen to the evidence and follow the court’s instructions) it also would be automatic reversible error to automatically exclude every juror who said they believed that no one was tortured.

          I admit that I haven’t followed this closely and while I know the military judge ruled that Khadr’s statement is admissible, I don’t know the basis for the decision. I think it’s reversible error, unless the government introduced evidence that Khadr wasn’t threatened or tortured and the tribunal judge found as fact that he wasn’t threatened or tortured concluding as a matter of law that his statement was voluntary and admissible.

          Regardless, it seems to me that Khadr should have the opportunity to argue to the jury that he gave a false confession under torture. Therefore, any prospective juror should be excused for cause, if he or she will automatically believe that he gave a true confession and ignore or reject any evidence that his confession was false, coerced under torture, and involuntary.

          Seems to me that each person’s confession has to be evaluated independently on the basis of the circumstances that existed when the confession was made. A decision in one case wouldn’t control a decision in another case, unless the evidence established that a particular procedure was developed and uniformly followed in many cases and that procedure produced involuntary confessions as a matter of law. If that were the case, and the decision were affirmed on appeal, the ruling would be binding legal precedent on all military tribunals unless, of course the original decision was intended, and all of the parties agreed, that it would be binding in all cases as to all confessions. I doubt that was the case.

          I know this Claus character is a torturer and a tribunal ruled in another case that a confession he obtained was involuntary and inadmissible and dismissed the case because there was insufficient independent evidence of guilt to support a conviction without the confession. Just as no trial court would be bound by the decision of another trial court, I assume no military tribunal would be bound by the decision of another tribunal. As I indicated in the previous paragraph, I think you have to have a higher court decision upholding the tribunal decision in one case before the decision is binding on other tribunals.

          Of course, if the government were to have admitted that doing X, Y, and Z to a prisoner during an interrogation constituted torture, that admission should be binding on all other cases in which X, Y, and Z were used to obtain a confession under the principles of res judicata and collateral estoppel.

          Each defendant has the right to claim that he was tortured or threatened with torture and gave an involuntary false confession to avoid more torture. Since Claus the torturer interrogated Khadr, it seems to me that Khadr should be permitted to introduce substantive evidence of what Claus did to other prisoners to obtain confessions, as prior bad act evidence under FRE 404(b), or as impeachment evidence if he denies doing those things to Khadr, assuming Claus admitted doing those things in the previous case. Khadr, of course, has the right to testify, should he decide to do so.

          Does that help?

          • Mary says:

            Some, but I still think we’re talking apples and oranges. When you say:

            I meant to say that just as it would be automatic reversible error in a civilian criminal trial to automatically exclude everyone who said they believed torture was used (because no opinion whatsoever triggers automatic exclusion unless the prospective juror admits that the opinion is so strong that he or she cannot fairly and impartially listen to the evidence and follow the court’s instructions) it also would be automatic reversible error to automatically exclude every juror who said they believed that no one was tortured.

            I think you are talking about torture and the juror’s opinion about torture vis a vis Khadr. I’m not. And I’m also not trying to say the Qhatani decision has a precedential effect.

            I’m saying that there has been a case before the commission – the Qhatani case – where the convening authority has ruled that Qhatani was tortured.

            The jurors put on the jury were asked, as best I can tell from the coverage, if they believe the US tortures for confessions and all of them have said no, the US doesn’t torture for confessions.

            They weren’t asked if they believed Khadr had been tortured (something that, imo, would have been an improper question going to ultimate holdings and findings), but instead whether or not they believe the US has tortured for confessions.

            Now, despite the fact that a prior military commission for Qhatani has decided and stated that his confessions were the result of torture, the jurors are basically refusing to accept the prior commission ruling – that yes, the US did torture in the Qhatani case – bc they are saying that the do not believe the US tortures. So if they were to say that – despite their belief that the US does not torture, if they were presented with evidence they would nonetheless be able to dismiss tortured testimony as unreliable – – it would be extremely hard to believe that they were being truthful bc they have already been presented with not only evidence, but a full blown, well publicized, case where yes, the US did torture.

            IOW, if they don’t believe the US ever tortures (not that they believe or don’t believe the US has tortured Khadr, which is what they would be waiting to hear) even after Qhatani, then it shows they are incapable of fairly dealing with proof of torture.

            fwiw – I’ll quit beating the carcass now.

            IMO – that looks like a for cause reason to spin.

            • pdaly says:

              Mary, do the court officers (prosecutions’ attorneys, judge, and I guess defense attorney) as members of the court have a duty to prevent a lie from propagating in the court room, namely the lie “the US does not torture to gain confessions”? To whom, other than the presiding judge, do they appeal? Holder? US Supreme Court?

              If the Gitmo court reconvenes and, starting with new jury selection, allows this lie to propagate, does Crawford have the duty and right to fly in to Gitmo to stop the kangaroo court? (I like this idea)

            • Mason says:

              Hi Mary,

              I think we agree. You said,

              I’m saying that there has been a case before the commission – the Qhatani case – where the convening authority has ruled that Qhatani was tortured.

              The jurors put on the jury were asked, as best I can tell from the coverage, if they believe the US tortures for confessions and all of them have said no, the US doesn’t torture for confessions.

              Are they unaware of Crawford’s ruling in Qatani, or are they aware of it, but disagree with it? Or were they lying?

              Seems to me to me that anyone who was aware of it, but disagreed with the decision would be perilously close to being excused for cause, if challenged by the defense. Defense counsel still would have to demonstrate that their opinion would prevent them from fairly an impartially evaluating the evidence in Khadr’s case and following the court’s instructions, but any experienced defense attorney should have been able to do that, if the judge permitted extensive attorney voir dire. Federal courts don’t and state courts vary.

              I never took less than 3 weeks to pick a jury in a death penalty case that I tried. The judge permitted individual voir dire and we averaged 4 jurors per day. No trial lasted less than 3 months and the longest lasted 9 months.

              Khadr’s case looks like the outcome is rigged and his lawyer collapsed in court due to stress because he knows it, he cares about his client, and he knows he can’t do a damn thing to stop the railroad.

              THE WHOLE WORLD IS WATCHING!

              WAY TO GO OBAMA. YOU’RE A SCUMBAG!

          • powwow says:

            I admit that I haven’t followed this closely and while I know the military judge ruled that Khadr’s statement is admissible, I don’t know the basis for the decision.

            Neither does anyone else, Mason – Judge Parrish disgracefully gave no explanation for his sweeping ruling Monday (despite having had more than a month since the bulk of the pre-trial hearing testimony was given regarding how, when, and where the interrogations were conducted, in which to prepare an opinion), as the ACLU’s Jennifer Turner noted in her report about Monday’s session:

            A final pretrial hearing also took place Monday in the case of Canadian Omar Khadr, who will start trial today as the first test trial of the military commissions under President Obama. In a summary decision of only a few words, and with no explanation, the military judge in Omar Khadr’s case, Col. Patrick Parrish, denied defense motions to exclude self-incriminating statements Khadr made to interrogators because of torture and other abuse. The judge will issue a written decision, certainly after the trial begins and possibly after it’s ended, but for now he’s offered no explanation.

            It boggles the mind that the military judge could find that Khadr was not coerced and gave these statements to interrogators voluntarily. Khadr, then 15 years old, was taken to Bagram near death, after being shot twice in the back, blinded by shrapnel, and buried in rubble from a bomb blast. He was interrogated within hours, while sedated and handcuffed to a stretcher. He was threatened with gang rape and death if he didn’t cooperate with interrogators. He was hooded and chained with his arms suspended in a cage-like cell, and his primary interrogator was later court-martialed for detainee abuse leading to the death of a detainee. During his subsequent eight-year (so far) detention at Guantánamo, Khadr was subjected to the “frequent flyer” sleep deprivation program and he says he was used as a human mop after he was forced to urinate on himself.

            You have to wonder which side the prosecution was trying to help, with this kind of witness testimony (reportedly neither prosecution witness actually observed Omar Khadr throwing a grenade, per Thursday’s first day of testimony):

            By JESS BRAVIN

            GUANTANAMO BAY, Cuba—Prosecutors sought to use a Guantanamo defendant’s own words against him Thursday, citing a statement in which he allegedly called himself a terrorist, while the defense suggested the altering of a witness report casts doubt on the prosecution’s story.

            […]

            More than 1,200 U.S. service members have been killed in the Afghanistan war since 2001. Sgt. Speer’s killing is the only one being prosecuted as a war crime.

            […]

            After calling in air strikes that leveled the primitive compound with two 500-pound bombs, Col. W’s men advanced onto enemy ground.

            A grenade tossed from behind a wall exploded, killing Sgt. Speer [eight days later]. A U.S. commando who entered the compound, identified as Sgt. Maj. D, testified that he shot and killed one al Qaeda fighter, then came across Mr. Khadr, who was apparently unarmed and facing away.

            “I shot him twice in the back,” Sgt. Maj. D testified.

            In his [immediate] report on the firefight, Col. W wrote that “one badly wounded enemy was able to throw a grenade that badly wounded Chris before that enemy was killed.”

            After military commission investigators visited Col. W two or three years later, he testified, he altered the report by substituting the word “engaged” for “killed.”

            He initially wrote “killed” because “I was operating under the assumption that person had died” after he left the scene, Col. W testified.

            Because conviction requires proof beyond a reasonable doubt, the defense contends that the other fighter’s presence makes it impossible to know who threw the grenade.

            As for the seven-member military jury (only five of whom have to agree, to render a beyond-reasonable-doubt verdict):

            [I]t would be extremely hard to believe that they were being truthful because they [the Khadr commission jurors] have already been presented with not only evidence, but a full blown, well publicized, case where yes, the US did torture.

            In other words, if they don’t believe the US ever tortures (not that they believe or don’t believe the US has tortured Khadr, which is what they would be waiting to hear) even after Qhatani, then it shows they are incapable of fairly dealing with proof of torture. – Mary @ 59

            We probably can’t dismiss the possibility that these military officer jurors know almost nothing about the operation of Guantanamo, and haven’t bothered to spend any time searching out the information that the usual sources (the Executive Branch, Members of Congress, and 24-hour Cable TV “news” outlets, in particular) work so hard to suppress and keep out of wide circulation. Tellingly, apparently none of the prospective jurors said that they had heard the phrase “worst of the worst” applied to Guantanamo detainees, according to one of Carol Rosenberg’s tweets.

            To whom, other than the presiding judge, do they appeal? Holder? US Supreme Court?

            If the Gitmo court reconvenes and, starting with new jury selection, allows this lie to propagate, does Crawford have the duty and right to fly in to Gitmo to stop the kangaroo court? (I like this idea) – pdaly

            The “Convening Authority” in these commissions (who okayed this week’s Al Qosi plea deal and secret sentencing) is the person [in the case of the last two incumbents, persons outside the regular military chain of command] selected to play the role of the Commanding Officer in legitimate, law-free-zone military commission settings. In other words, selected (by the President) to play the role of the person holding actual command authority in armed conflicts who decides that military exigencies dictate that prosecution of the accused can’t wait for a regularly constituted court or tribunal to (re-open and) deal with the matter. Obviously, eight years post-capture and post-alleged offense, never mind any other excuse, that “exigency” of time for Guantanamo detainees reveals itself to be the fraud that it is…

            But since that “Convening Authority” (formerly Susan Crawford, now Bruce MacDonald) must authorize all commission charges, MacDonald also certainly has the authority, which Crawford exercised once, to dismiss charges. In the politicized Guantanamo commission setting, however, I think we can safely assume that no such dismissal is going to happen without first receiving an okay from the top – in the person of President Obama.

            As for avenues of appeal open to Lt. Col. Jon Jackson on behalf of his client, that would allow him to challenge this and other irregularities, and all the gross violations of due process and Constitutional government now being committed by the discriminatory, non-UCMJ military commissions that Congress created – he’s tried his best. First in the face of the unpromising delay by the new Court of Military Commission Review (which has had the two non-plea-bargain commission convictions to uphold or reverse, since January’s oral arguments; appeals that make many of the same arguments that Khadr’s attorneys have made), and then in the face of the inexcusable withholding of a ruling by a D.C. Circuit appellate panel on Khadr’s emergency mandamus appeal in March challenging the commissions (that appeal’s expedited briefing was completed in April but Jackson was able to finally force a one-page ruling from the panel only three days before he had to fly to Guantanamo for Khadr’s August trial), and the subsequent, immediate back-turning by the Supreme Court, one day pre-Kagan, when Jackson asked (I linked and excerpted some of his request here) for a two-week delay in the Khadr trial to allow him to contest that belated D.C. Circuit ruling.

            The United States has fallen a long, long way since the 1949 Geneva Conventions were signed, 61 years ago, yesterday, August 12th – the first day of our government’s Omar Khadr “juvenile war crimes” commission.

    • Leen says:

      “while the big thing that struck me was that all jurors were asked to confirm that they didn’t believe the US tortured for confessions ”

      Is this true? Really? And we are actually supposed to believe in the rule of law?

      Seems logical to ask potential jury members “do you believe waterboarding is torture” They say no they are off the jury.

      The whole world is watching. The message is do as we say not as we do

  10. Frank33 says:

    Of course there is nothing wrong with a Kangaroo Court selecting the judge, jury and executioner.

  11. Agent420 says:

    The United Corporations of America has forgotten how to be a force for good in the world. We are now just a nation of assholes.

  12. Mason says:

    BTW, I believe the Obama administration deserves to be condemned and excoriated for deciding to use military tribunals.

    First, they should disregard every confession because all of them are tainted by torture and release every prisoner against whom they have no case without the tainted confession. This would result in releasing the vast majority of the prisoners.

    Second, they should accord the few remaining prisoners a fair trial in a civilian court with the full panoply of due process protections. They are using military tribunals because they’re afraid civilian juries won’t convict anyone and then the world will react with justifiable horror and revulsion to what the United States did and then the pressure for war crime prosecutions in the International Court of Criminal Justice will dramatically increase.

    Third, the military tribunal trials are kangaroo courts. People in the rest of the world know that and the Obama administration’s use of kangaroo courts embarrasses, diminishes, and discredits all Americans in the eyes of the world and by extension implicates all of us in covering-up war crimes. This infuriates me beyond my capacity to express in words.

    I cannot and never will support or vote for any candidate for public office who supports this bullshit travesty.

    That means you, Barack Obama!

    • Frank33 says:

      I cannot and never will support or vote for any candidate for public office who supports this bullshit travesty.

      This bullshit travesty of a war also worries the White House. We are winning but we need another “Obama Unit”, two more years of war or more.

      Asked in an interview whether US engagement in Afghanistan risked the same loss of support that undermined the war in Vietnam, James Jones replied that such a prospect was “very worrisome.”

      Jones is also lying about Pakistan. The Pakistan Army has never gone after insurgents in safe havens. The Pakistan Army are the Insurgents, and the whole country of Pakistan is their safe haven. Just as Saudi Arabia is a safe haven for Al Qaeda. They have not played both sides, they have played one side. Jones is also lying by claiming these “elements” will ever be part of the solution.

      “Specifically in Pakistan, we need to see more activity on the part of the Pakistani army to go after the insurgents in the safe havens that allow the transit between Afghanistan and Pakistan to go on,” he added.

      “This is fundamentally important.”

      Jones acknowledged that parts of the Pakistan military “have played both sides in years past, because of their uncertainty with regard to our long-term stay and long-term commitment.”

      “Hopefully,” he said, those elements will become “increasingly part of the solution.

    • DWBartoo says:

      One suspects that much of the rest of the world is watching, suejazz.

      One wonders if certain “kangaroos” might not be a wee bit concerned that some of their “slips” are showing?

      However, if the “proceeding” is dressed-up gaudily enough, accompanied by all the right incantations, perhaps no one, and certainly not true-believing Americans, will notice?

      Thank you, suejazz, for the link.

      DW

  13. pdaly says:

    re: defense lawyer, Lt. Col. Jon Jackson’s collapse in the Guantanamo Bay courtroom in the middle of cross-examination 6 weeks out from gallbladder surgery:

    He’s on a morphine drip? not vancomycin drip or similar wide-spectrum antibiotic drip?

    I’d think 6 weeks out from gallbladder surgery is a long time, so the complication could be a deep-seated, slow growing abscess. An infection would cause shaking chills, fever, and lightheadedness, but there’s no mention of that in Carol Rosenberg’s newspaper report. A slow bleed could be a complication of gallbladder surgery leading to collapse from blood loss, but morphine would not make sense in that scenario, because morphine lowers blood pressure.

    Morphine could be to control pain from retained gallstones (even without a gallbladder, you can have a bile stone form in the liver) or to treat pain of an abdominal cavity infection(such as peritonitis). The latter would still require antibiotics. Maybe he’s receiving both antibiotics and morphine (and IV fluids to keep his blood pressure up).

    oops: I check Daphne’s update
    “Update: On Thursday evening, the Military Commission Defense office reported that Jackson, who had had gallblatter surgery in June, PASSED A GALLSTONE IN COURT TODAY. He is in the Guantanamo Bay hospital, where he is receiving morphine as a painkiller.”

  14. Jeff Kaye says:

    “Update: On Thursday evening, the Military Commission Defense office reported that Jackson, who had had gallblatter surgery in June, PASSED A GALLSTONE IN COURT TODAY. He is in the Guantanamo Bay hospital, where he is receiving morphine as a painkiller.”

    Sounds horrible. I hope he recovers quickly.

    • dakine01 says:

      Are you sure that isn’t a kidney stone that got passed? (I assume that the folks at GITMO have gotten it confused)

      I know that any problems I may have had after my gallbladder was removed in ’82 were not of that particular nature (most folks without a gallbladder can become very familiar with the term “blow it out yer a**” though)

  15. whitewidow says:

    My favorite quote so far from the coverage. Apparently this judge has a little snark in him.

    On denying the request by prosecution for a disqualification challenge for a juror who stated he agreed with Obama that Gitmo should be closed:

    Judge: ” While [juror] believes the U.S. should be a beacon for liberty and moral authority, that is not a basis for a challenge for cause.”

    http://twitter.com/Munashik

    For proper credit, it was actually Anna Mahler Paperny who tweeted the quote, but I saw it on Muna Shikaki’s feed

      • bmaz says:

        @70 – That would be correct.

        @71 – Hmmm, first thing I have seen that I will give Parrish credit for. Must have been hard on him. Perfectly fine for the prosecutor to use his peremptory strike on that though.

        • Jeff Kaye says:

          I stand corrected re the position on the jury pool, per Mary’s clarification @70. I think none of us really disagree. I understood the nature of the peremptory challenge, but it’s like making calling the bet in a poker game. That may be a proper thing to do under normal circumstances in a legit game. But when the game is fixed, it doesn’t matter what other rules are followed, the entire thing is a charade. So whether or not the prosecution was appropriate in making a peremptory challenge is not a meaningful question. The procedure itself is not legit.

          The only exception I make is for the actions of the defense, which is trying to protect its client with what tools are allowed it. Khadr’s previous action to boycott was a legitimate statement, and his decision to now attend and participate is his to make, as it is his life on the line.

  16. Mary says:

    OT and I’m out the door, but here’s an interesting tie in piece (joint ProPublica/Nat Law Jnl effort) re: interrogation tactics and their impact on the habeas cases

    Input from – so soon into his admin- a “former” advisor to Obama on GITMO and then there’s this (bothersome bit on what might happen if torture ends up being a problem)

    “I’m not aware of a single case that doesn’t rely extensively on statements of detainees,” said Philip Sundel, deputy chief defense counsel in the Defense Department’s Office of Military Commissions. An administration review recently obtained by The Washington Post supports his assessment: “Much of what is known about such detainees comes from their own statements or statements made by other detainees during custodial debriefings.”

    Some good take on clean teaming too.

    Interesting juxtaposition – if you have evidence so tainted by torture that a court grants habeas, but military commission precedent like allowing in Khadr’s torture statements would convict of war crimes and impose horrific sentences based on the same info that a court says won’t sustain a habeas challenge.

  17. Mason says:

    Just for the record, I’ve read up on Khadr’s case and I now believe that the Obama administration is using the military tribunal forum to minimize, if not erase, that torture was official policy and used in all cases. The military judge, Colonel Patrick Parrish, has his walking orders: rule that any confession obtained by torture is admissible and let a military jury that believes the United States military and the CIA never tortured anyone decide if a defendant’s confession is credible.

    Obama wants a bunch of innocent people convicted and imprisoned for the rest of their lives because he believes he can then credibly claim that torture is irrelevant since it produced no false confessions. He wants torture excluded from the realm of “serious discussion.”

    Disgusting. He is unfit to serve in government in any capacity and, as far as I’m concerned, he should spend the rest of his life in prison.