Obama Administration Tries to Get Out of Its Khadr Problem

Add this to the list of things I might laugh about if it weren’t so damned sad and awful. The Administration has now realized trying a Canadian accused of murder for killing someone in an active battlefield as a teenager exposes the Gitmo show trials as a kangaroo court. But they don’t know whether they have the authority to intervene to stop it.

Administration officials would speak only anonymously about deliberations on whether to try to abort the trial. But their view about the need to improve the system’s perceived credibility — so allies will cooperate by providing evidence or extraditing defendants — was echoed by Kenneth L. Wainstein, assistant attorney general for national security in the Bush administration.

“It is important for the government to be able to proceed through a trial, to do so in a transparent way, and have the world see that this is a fair process with strong safeguards and full due process,” he said. “The sooner that happens, the better.”


Administration officials have discussed whether senior civilian leaders at the Pentagon or elsewhere could get involved, helping to revive plea negotiations or even directing Admiral MacDonald to make a more attractive offer. (Admiral MacDonald did not respond to an interview request.)

A similar high-level intervention would clearly be allowed in the regular court system, where the attorney general supervises prosecutions. But tribunal rules insulate commission officials.

A provision in the Military Commissions Act prohibits “unlawful command influence,” defined as attempting “to coerce, or, by any unauthorized means, influence” the judgment or actions of prosecutors or the convening authority. Officials are debating what that means.

But it seems there are at least two things complicating this picture (I’ll think of more after I drink more coffee).

First, in discussions of Khadr’s potential plea deal, no one seems to admit that the plea deals themselves discredit the military commissions. The press reacted little more favorably to Ibrahim al Qosi’s pretend 14 year sentence that everyone knew was actually two years than they have to the rulings in the Khadr case admitting rape threat tainted evidence. The kabuki quality of the plea deal was one of the reasons Khadr cited for firing his lawyers and rejecting the plea deal they were offering him (they were offering him 30 pretend years and 5 real ones). So a sweeter plea deal, without fixing the whole double secret sentence business, won’t do all that much to restore the credibility of the military commissions.

Also, it seems like the Administration has one other option (and I hope the Canucks will expand on this in comments). After all, our government has transferred every other western detainee back to his home country. There have been discussions with Canada about doing the same. Why not make Omar Khadr Stephen Harper’s problem? Nothing in the military commissions would preclude the Administration from engaging in foreign policy, would it?

Of course, that would require the courage to stand up to the screeching fear-mongers who would attack the Obama Administration for making the same kind of deals that the Bush Administration made.

But international credibility doesn’t come for free. If the Administration is serious about winning international credibility for our kangaroo court, it is going to have to be willing to make the case for credibility itself. And right now, it still seems to be hoping for some gimmick to get out of its Khadr problem.

  1. cinnamonape says:

    Dumping Khadr on Harper would be the easy way out for Obama. I recall that the “Australian” Talibanist was released back to his country as part of a plea agreement, and I think that Australia is about to release him. So there is precedent. I would suspect that when you drop a person back in their homeland you are renouncing any future control of the length of terms or appelate issues.

    I’m not sure that Steven Harper would see much benefit in this, though. There would be loud and immediate cals for Khadr’s release…so that any bounce he might get for working out an agreement for prison in Canada would be quickly dissipated.

    • bmaz says:

      Well, the US could just deport him and say “here he is Canada, good luck with your citizen, do what you will with him”.

      • emptywheel says:

        And of course, the release of Khadr’s brother bc the US didn’t have sufficient evidence for extradition sort of complicates the issue for both sides.

        • BoxTurtle says:

          Well, it SHOULD complicate the issue. But I don’t think it does. If you exclude the progressives, Obama is getting no pressure at all for fair trials for terrorism suspects. And ObamaLLP has already written us off.

          Harper feels no pressure either. He’d be in no danger of losing his majority if he simply locked Khadr up for the duration of his term and left it for the next fellow to deal with.

          Boxturtle (Perhaps Obama and Harper would exchange sternly worded letters for public consumption)

  2. PJEvans says:

    If the Administration is serious about winning international credibility for our kangaroo court, it is going to have to be willing to make the case for credibility itself. And right now, it still seems to be hoping for some gimmick to get out of its Khadr problem.

    This seems to be the way they deal with every potential problem: wait to see if it fixes itself, or if someone else will take care of it first. (And then whine a lot about the DFHs if nothing happens.)

    • BoxTurtle says:

      In their defense, that technique seems to be part of every governments toolbox.

      Boxturtle (But Israel can’t help us here, their bombers can’t reach gitmo)

  3. Frank33 says:

    Of course, that would require the courage to stand up to the screeching fear-mongers who would attack the Obama Administration for making the same kind of deals that the Bush Administration made.

    Many thanks EW for exposing the Incredible Kangaroo Court with its unfair processes and no safeguards and full spectrum dominance of due process. If by fear-mongers, you are referring to Glen Beck or Gay Lindsey Graham, then the Administration has no courage. But this Administration does make the same kind of deals that the Bushies made. It is basically the same set of Bushie warmongers using the Kangaroo Courts to keep the same set of secrets.

  4. bobschacht says:

    Thanks, EW!
    Well, one possible ray of hope in all this mess is that there appear to be some people in the administration who still have a sense of shame(?) and/or who care what enlightened people of the world (i.e., people more inspired by our own values than we are) think.

    What a theater of the absurd!

    Bob in AZ

    • BoxTurtle says:


      They only thing those amoral so-and-so’s in ObamaLLP care about is re-election.

      Boxturtle (and anybody accidently moral would have had their appointment process clogged)

  5. MadDog says:

    What I found humorous was that these Administration officials figured that by sending this message anonymously to Admiral MacDonald via the NYT, they had found a legal loophole around their fright about using “unlawful command influence”.

    Shorter Administration: “Try getting a judge to compel a subpoena against the NYT Repugs. Hah!”

  6. BoxTurtle says:

    Prediction #1: ObamaLLP will solve this by deporting to Canada. Harper government will be publically very supportive of the decision.

    Prediction #2: This will do nothing to improve the image of Col. Kangaroo’s court.

    Prediction #3: Despite #2, nobody foreign, domestic, governmantal or NGO will do anything beyond a sternly worded letter to stop ’em.

    Prediction #4: At the end of the season, Favre will be old, tired, and broken. And he’ll retire at least until the summer minicamps are done.

    Boxturtle (Prediction #5: Folks who should be tried in court will be shot while escaping to avoid this in the future)

  7. skdadl says:

    Fork the forking plea deal. Why should Khadr plead guilty to anything?

    The only thing I found notable about that NYT article (wow, but they are smarmy writers) was the quote from Dennis Edney, who is the more public of Khadr’s two Canadian lawyers. I did not think that Edney was ever going to advise conceding an inch, one of the reasons that Omar has gone on trusting him, so that is notable.

    Harper fact: Harper does not want Khadr back in Canada. He could be pressured into it, and I guess that would be a good thing, better than what’s happening now, but he is never going to volunteer. Washington forces him, or our Supreme Court, taking their time, force him, but he is not going to move on his own. He is a neocon, and he likes to see people suffer.

      • skdadl says:

        Yes! Except why would you send him to Montreal? He comes from TO. Or he could come here. I have a basement free …

        Srsly, I really fear for what will happen to Omar after whatever arrangements are to be made get made. He is going to be in the hands of one group of spooky nerds or another who will do clockwork-orange stuff to him.

        Me, I nominate Jeff Kaye as his protector and guardian. If only, eh?

          • skdadl says:

            Grand Prix — is that cars? I live about two blocks away from the mansion of the guy who founded GM Canada, Col Sam, in a town where everyone except me has a car for each foot and even I have a huge driveway. (Well, I have friends who need a place to park.)

    • BoxTurtle says:

      Why should Khadr plead guilty to anything?

      Because in this alice in wonderland world, in order to be freed an innocent man must first confess guilt. If he doesn’t confess and thus prove ObamaLP was correct to imprision him, he’ll be imprisioned forever. If he confesses, he gets 15 fake years and might be releasd with time served. If he’ll agree to a no-talk-to-press deal.

      Boxturtle (I keep trying to see Obama as the Queen of Hearts, but the face keeps morphing into Rahm)

    • emptywheel says:

      I’m assuming Edney was thinking of a deal that involved a few more months than supervised release in Canada.

      And yeah, I know Harper doesn’t want Khadr. making him unhappy is all part of my plan!

      • skdadl says:

        Well, we have the same problem bmaz mentioned above @ 39: the courts can’t do anything until someone gets a case to them. The case here has looped back once again, to a decision by a Federal Court judge that Harper’s action didn’t meet the SCC’s standard (and was ignored by Obama anyway) in January, which decision is being appealed to Fed Ct of Appeal, and then presumably SCC after that. I mean, all this takes forever, which I think is exactly what Steve wants.

        I would so love to see a judge send a few of Nicholson’s lawyers to jail. I mean, I’d take sandwiches to watch that. Maybe a few of our civil servants would find a little self-respect again.

  8. sculptagain says:

    The first thing that Pops right out is the Canadian Connection. If an American is arrested for anything in our wars – he’s given to the U.S. to hold that person accountable. So why shouldn’t – And why not at the very beginning – turn this fellow over to the Canadians. If the Canadians or Swedes or Germans or French or British were taking Americans fighting against the “Coalition Troops” and began internment and prosecution… I dare say the American Public would rise up and Pitch A Tizzie !!

    So why hasn’t this guy – from the very beginning – been shipped to Toronto?

    Richard Lewis

    Arkansas (home of the most stupid people in the Western Hemisphere).

    Semper Paratus

  9. Mary says:

    Don’t have the time to go into it now, but IMO Obamaco really thought the Sup Ct would take Khadr’s case and they would then get that excuse as a halt to the proceedings for a bit (hopefully till after elections) and then be able to point to a favorable ruling there for creds (although all it would do internationally would be to follow up on what the el-masri and Arar cases have done with belittling and diminishing our sup ct in the eyes of the world) or put the blame on the court if the ruling wasn’t favorable.

    I’m almost glad they didn’t take the case for two reasons – first, that it leaves the responsibility square fore where it should be – with the Executive that created the mess and that is willing to put more and more Americans and America’s future at risk, just to cover up for its office’s role in torture and depravity.

    Second, the complicated reason that I don’t have time to go into right now – but IF the Sup Ct thinks it is going to weigh in a bit on military commissions, the Khadr case isn’t, imo, the best facts case for them. I think if you want someone like a Kennedy to try to help with a swing (and now he doesn’t have a Stevens, but instead has a political piker like Kagan) he’s going to wait for a better facts case.

    I know that might seem odd, for me to say that Khadr isn’t a good facts case for the Sup Ct, but I really don’t think it is – for all that I’ve said about why it’s a bad case in general. It’s not the good case to send up to try the whole issue of military commissions proceedings and/or indefinite detention without habeas. I can’t stick around to argue the point, but IF the court is interested in doing anything (and I’m not convinced it is) then what they do is to take their recent rulings ever-expanding the criminal constructs to include the broad based “material support” black hole they created, then they pick a case that involves someone who wasn’t picked up in anything that could conceivably be called the active battlefield area and whose “support” did not involve anything like physically planting ieds (or allegedly so)

    A lot of the “facts” in Khadr that go to him not having committed any war crimes per se and to having been the victim of war crimes himself, are not necessarily facts that go to the Judicial/Executive tension over which branch should have the right and power. Khadr is a bad case for the MCA issue imo, but there are still a lot of good cases on that issue. Obamaco has been playing chicken with the court by keeping any of the good fact cases from getting to the court so that it can make its ruling and then leave the Exec scrambling over how far that ruling reaches.

    When the court denied cert on Khadr, it became their turn to put Obama in the middle. I don’t know that Kennedy has the votes anymore, with soemthing like a Kagan on the court, but I think he’s angling for the good facts case and Khadr isn’t it for the kinds of issues he wants to address.

    jmo, ymmv.

    • skdadl says:

      I follow your logic, Mary, and I agree. The Supreme Court that needs to speak is ours, not yours. They have said in the past (last time: January) that Khadr’s rights as a citizen have been violated, and it is long past time that they put some muscle behind that statement. I’m not quite sure how they do that.

      Gee, the UK High Court seems so good at this stuff. I wish that our guys would be that gutsy.

    • Night Owl says:

      No reason the Court can’t render two opinions.

      I agree that this case is not well suited to a sweeping SCt ruling regarding the broader terrorism issues you mention, but on the narrower questions of the Constitutionality of Military Commissions themselves, the procedural absurdities inherent in this so-called ‘trial’ would seem tailor made for a high court rebuke.

      My guess is the court has not have intervened at this juncture because it simply feels the case is not yet ripe, and wants to wait for an actual conviction before addressing the Constitutionality (and lack thereof) of the tribunal’s decision. This way the Justices have an actual record of specific Constitutional violations while avoiding the appearance of rendering an advisory opinion before the tribunal has even convened.

      • bmaz says:

        Well, the Supremes do not just up and “intervene” in cases or “address” issues so, no, they will not undertake a consideration unless and until it is presented to them as a valid case and controversy via an appellate path, whether through a writ or appeal.

        • Night Owl says:

          Well, the Supremes do not just up and “intervene” in cases or “address” issues so, no, they will not undertake a consideration unless and until it is presented to them as a valid case and controversy via an appellate path, whether through a writ or appeal.

          Exactly right.

          So when people ask why the Justices haven’t acted to stop this travesty of executive overreach from proceeding (assuming they would, of course), the simplest answer is that the Constitution requires the court to wait until the deed is done before it can act.

          • karenjj2 says:

            or take an existing case and twist it to fit the ruling roberts wants to make–citizens united, for example.


          • powwow says:

            So when people ask why the Justices haven’t acted to stop this travesty of executive overreach from proceeding (assuming they would, of course), the simplest answer is that the Constitution requires the court to wait until the deed is done before it can act.

            Which “deed” do you think should suffice?

            How about the establishment of the Commissions in the first place, via the Military Commission Act(s)? A deed that affects many, not just one man.

            And that deed the Supreme Court may act upon, to start to bring the Congressionally-unleashed Executive back into semi-control, via the possibly-imminent filing before it of a petition for writ of certiorari, in response to the (inexcusably-delayed) one-page denial of Khadr’s “Writ of Mandamus and Prohibition” filed in the D.C. Circuit Court of Appeals in March. A writ of mandamus (and “emergency” stay request) filed by Khadr on March 23, 2010, on which expedited briefing was finished by April, but that wasn’t acted upon by the appellate panel until August 4th, 2010 – and then not until Lt. Col. Jackson, Khadr’s military attorney, had asked the Supreme Court on August 2nd to force the appellate panel to act, which the Court of Appeals finally did (with a one-page order) before the Supreme Court responded to his request, only days before Jackson had to depart for Guantanamo for Khadr’s pending trial.

            That March writ of mandamus and prohibition – a writ apparently handled with bias and contempt by the Court of Appeals panel with jurisdiction (Ms. Henderson, Mr. Tatel & Mr. Kavanaugh) – was Khadr’s attorneys’ effort to directly confront and challenge the Commission, and its associated MCAs, on Constitutional and law of war grounds, before Omar Khadr was subjected to a trial before it. And its one-page denial will soon, I assume, be formally served up on a silver platter for review by the Supreme Court, if Lt. Col. Jackson’s actions immediately pre-trial are any indication. [Its subject matter mostly leaves aside the particulars of Omar Khadr’s own case, by focusing on the legality of the Commission itself and on the “war crime” charges it brings, rather than on any future conviction of Khadr.]

            Despite being apparently-intentionally squeezed for time by the D.C. Circuit panel, just two days before Khadr’s military attorney Jon Jackson got on the military charter for Guantanamo for the trial (and one week before he fell to the floor during cross-examination on the opening day of the trial at which he was Khadr’s sole remaining attorney), Jackson nevertheless filed a request for an emergency stay of the Commission trial at the Supreme Court, to give him two weeks to request a review by that Court of the just-issued one-page appellate court dismissal of his writ of mandamus:

            Applicant [Khadr] now seeks a stay of the military commission proceedings so that applicant can have two weeks in which to prepare and file a petition for writ of certiorari to this Court from the Court of Appeals denial.

            As I noted here, the Supreme Court immediately rejected that requested stay the next day, without comment.

            In short, I assume that Lt. Col. Jackson, as he recuperates (which he seems to be doing nicely, per Anna Mehler Paperny’s reporting in the Globe and Mail), is proceeding to prepare that request for a writ of certiorari, in spite of the opening of the trial, given that the trial has now been interrupted for a month, after just one day, for reasons of his own health, and that he will build on the arguments he gave in his repudiated request for a two-week trial delay:

            If a stay is not granted, Applicant’s right not to be put on trial will be rendered meaningless, a possibility that this Court recognizes as one of the few bases for its intervention before trial in a criminal prosecution. […] The government, on the other hand, would suffer the minimal harm of another relatively brief continuance of the proceedings – something that has happened numerous times previously in this case, including over a year-long hiatus at the government’s request. A brief stay is necessary to prevent irreparable harm and if a stay is not granted, the relief requested will be moot.


            The Military Commissions Act of 2009 limits the jurisdiction of military commissions convened under its authority to non-citizen unlawful enemy belligerents. The uniqueness of that jurisdictional limitation in American military history cannot be overstated. Without exception, since the Revolutionary War, both the ordinary courts-martial system and the “law-of-war” military commissions, see Hamdan v. Rumsfeld, 548 U.S. 557, 596 (2006) (distinguishing law-of-war commissions from others), have tried Americans alongside aliens. In fact, Americans have been tried by law-of-war commission in every military action in which they have been employed since the Revolutionary War. (The underlying petition as well as a full petition for writ of certiorari has comprehensive historical citations that establish this point).


            Applicant then shows, through historical analysis, that the specific limitations on military jurisdiction imposed [on Congress] by the Define and Punish Clause are the limitations imposed by “the Law of Nations.” That is to say, the jurisdictional limitations imposed by the Clause are as those that it imposes on the substantive limitation on Congress’s power to “define and punish . . . Offenses.”


            It is therefore far too late in the day for the government to claim that some “practical need” justifies an alienage distinction that both this Court and the military have long rejected. For that reason, the jurisdictional provision of the Military Commission Act of 2009 violates the law of war, and therefore the limitation on Congressional power imposed by the Define and Punish Clause.

            – Lieutenant Colonel Jon Jackson JAGC, USAR
            Office of the Chief Defense Counsel
            Military Commissions
            United States Department of Defense
            August 5, 2010

  10. Michael Kwiatkowski says:

    But they don’t know whether they have the authority to intervene to stop it.

    Oh HELL yes they know! Obama is the commander-in-chief, or so the illusion is supposed to have us believe. He can order the military to turn this kid over to the civilian courts. He can order the Pentagon to release him without further delay.

    • Mary says:

      I don’t know what Wainstein would do with himself if, like Bellinger, he couldn’t be a mouthpiece for someoneoranother, but his compatriot, Olsen, has moved on from being able to get these “miraculous” unanimous opinions from the Obamites who were on the review boad as to every single case (including the ones that have left the courts in shock) – and now he’s taking that remarkable ability to be whatever the Executive wants and make sure everyone around him is too – to the NSA. I believe he’s gen counsel there now. After a few months of vacancies.

  11. workingclass says:

    There is absolutely no possibility anywhere in the infinity of time and space that the military commissions will ever have even a teeny tiny shred of credibility. None.

    Ask the dood where he wants to go. Take him there. Give him a suit case full of money and never bother him again.

  12. skdadl says:

    O/T, and please forgive me for missing a discussion if this happened a few days ago, but EW, have you done the Obama-and-Petraeus-have-hired-Fred-Kagan discussion?

  13. fatster says:

    Meanwhile, over in Thailand . . .

    Extradition battle over Viktor Bout

    “Viktor Bout now wants the money laundering and fraud charges to come to court because, if that case can be dragged out for three months, the extradition order will expire and a two-and- a-half-year process will have to start all over again.

    “And from the Thais’ perspective, if Mr Bout stays in prison here. they will not be upsetting one big ally any more than the other.”


    • Mary says:

      WHY did they add such schmucky charges so late in the game and after the lower court ruling? Did no one consult with any Thai lawyers?

  14. PeasantParty says:

    Why can’t the US just go ahead and expose the mess they have made and get it all over with? For Pete’s SAKE! The international community already knows most of it. It’s the American public that has been kept in the dark. We are still being told that angry Muslims and Osama Bin Forgotten attacked us!

    They haven’t publicly tried a single entity they say they have gotten, planned, or participated. The reason why is evident. They didn’t do it!

  15. bell says:

    skdad – thanks for articulating the canuck viewpoint… why isn’t our supreme court doing anything about this? are they beholden to harper and nothing else? is it necessary that a politician shake there chain before they do something? i agree with you here and of course with your line on harper “He is a neocon, and he likes to see people suffer.” that about sums it up…

    i also liked this line from emptywheel “But it seems there are at least two things complicating this picture (I’ll think of more after I drink more coffee).

  16. Margaret says:

    This administration acts like it doesn’t really believe it should be in charge and must therefore wait for permission from the very serious people, (aka conservative warmongers) before they act on anything. Just another case of leadership FAIL!

  17. hackworth1 says:

    Rhambama want to find the best way to escape this issue with the least amount of criticism from Fox News. That means they must put this kid in front of a firing squad without a trial – Kangaroo or otherwise.

    If Khadr gets sent to Harperdick, Fox will say that Obama freed him or let him escape to Canada (where, btw, draft dodging America-hating hippies go). Note that Conservatives are unaware of the hundreds of “detainees” that Dubya released.

  18. wigwam says:

    “It is important for the government to be able to proceed through a trial, to do so in a transparent way, and have the world see that this is a fair process with strong safeguards and full due process,” he said. “The sooner that happens, the better.”

    Not going to happen. The world isn’t blind. This isn’t “a fair process with strong safeguards and full due process.”

    It is important that the Obama learns that decisions have consequences. The sooner that happens, the better.

    • bmaz says:

      Um, that is a lesson unlearned because they are too busy insuring that decisions do NOT have consequences, at least for any of the “deciders”.

  19. hackworth1 says:

    Had any single meaningful progressive reform been in effect at this point, Americans would be renouncing torture and embracing religious freedom.

    Since no meaningful reforms have taken effect, (our lives are no better, probably worse) we are still arguing about due process, torture, immigration and religious freedom and whether Bill O’Reilly is a genius or not.

  20. OldFatGuy says:

    I’m pretty sure this is exactly what the Obama administration will do, simply return him to Canada.

    They’ll do that right after they nominate Elizabeth Warren to the consumer protection agency she though of, and right after they pass EFCA, and right after they end DADT, and right before they close GITMO.

    So he should be fine.

  21. mui1 says:

    I remember reading something on the “trial” not long ago. It looked as though either the military or the administration had intended to turn this into a show trial by inviting the special forces victim?Bushcasualty’s family?wife?children? to view the show, as if this were a “justice-served” type “trial”/execution.

  22. JohnLopresti says:

    There may be some sort of balancing occurring in the topic under discussion re the trial. I recall that defense counsel had a health degradation in court, and the proceeding was postponed another month, the current time being an interregnum for tuning the mca-compliant trial carburetor.

    I located articles about two distant events in administration work that may have bearing, may not: yesterday acting SGKatyal toplined the signators on an O*co petition to Scotus to remand a decision to the 2nd circuit appeals forum in re: TVA*s dirty coalfired electric plants; I ally this with gratitude for Katyal*s work on earlier mca related Scotus deliberations a few years ago; plus a way to please the southernmost TVA service area by hyping nuclear generated electric grid power. That site has links to the other court papers in the series.

    The other, more germane, occurrence is an editorial two weeks ago by a military defense counsel currently writing at hrw regarding the public-private elements of the Qosi trial, there.

  23. TarheelDem says:

    So we have gone from a kangaroo court shrouded in secrecy (pre-Boumedienne) to a kangaroo court that is transparently a kangaroo court. I believe that counts as change. :)

    When will the general public realize how effed-up this military commissions system is? I guess Obama will have to put up a balloon of applying military commissions to move along the case backlog in federal courts for the public to pay attention. Then Fox could start with their Oh Noes. I just know that this is not on any of my neighbors’ or friends’ radar at all.

  24. shawnfassett says:

    Good timing to have Khadr’s attorney pass out in court. Has there been any update on his condition (or what exactly happened to the defense attorney??)

    • fatster says:

      Can’t find an update, but he had gall bladder surgery about six weeks prior to the trial. After his collapse, he was reported receiving a morphine drip at the hospital. LINK.

  25. diane1976 says:

    It’s ironic, but since Obama came to power the support among the Canadian population for requesting Khadr’s repatriation has decreased. Because there is no other obvious reason, this may be because Obama, unlike Bush, is widely liked and trusted in Canada and this leads people to believe that Khadr actually will receive a fair trial under his Administration. The minority Conservative government which is determined to keep Khadr out of the country uses that. Canadians have always been fairly evenly divided but there was a time when most supported repatriation. A lot of the most vicious hatred against Khadr because of his notorious family comes from supporters of the Conservatives.

    At the same time, there have been repeated hints that the Obama Administration would like Canada to request repatriation, which would give them some political cover. Obama gave a vague indication he feels the same way himself when he visited Canada, but it would help if he issued a stronger hint, so that the media and the Opposition parties could pick up on it and use it to further pressure the Conservative government.

    The only other hope for help from Canada would be a change of government but that doesn’t seem likely in the near future. All the parties except the Conservatives now support repatriation and three of them make up a majority in Parliament. As such, they could join together and bring down the government any time, but no one party looks to be in a position to win more seats than the Conservatives in the election that would follow.

  26. aussielawyer says:

    Just for the record, Omar Khadr is NOT the last western hostage at Gitmo. A Russian, Ravil Mingazov (ISN 702)is there too. Remember, the guy who Amherst Massachusetts offered to take in the naive belief that the Obama would do the right thing? He has won his habeas but doesn’t want to go to Russia where bad things have happened to the other returning Russians.

  27. beowulf says:

    Administration officials have discussed whether senior civilian leaders at the Pentagon or elsewhere could get involved, helping to revive plea negotiations or even directing Admiral MacDonald to make a more attractive offer. (Admiral MacDonald did not respond to an interview request.)

    A similar high-level intervention would clearly be allowed in the regular court system, where the attorney general supervises prosecutions. But tribunal rules insulate commission officials. A provision in the Military Commissions Act prohibits “unlawful command influence,” defined as attempting “to coerce, or, by any unauthorized means, influence” the judgment or actions of prosecutors or the convening authority. Officials are debating what that means.

    File this next to “we just don’t have 60 50 votes for a public option”. Last time I checked, an Act of Congress, even one intended to kill the terrorists and punch the hippies, is always subordinate to the Constitution. Why, let’s see what Article II, Section 2 says about this…

    The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

    President Obama could pardon Khadr tomorrow and put him on a plane to Toronto. He doesn’t need to consult or get the consent of the prosecutor, judge or defendant. As the Supreme Court has written:

    A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.

    But then the buck would be stopping with the Oval Office, and that’s just crazy talk. The problem with this Administration isn’t that they’re stupid, because they’re not. The problem is they think we’re stupid.

  28. klynn says:


    In your last post on Khadr, I asked bmaz if rulings from military commissions could be used as precedent in civilian courtrooms. I was specifically referring to the ruling on the threat of rape.

    bmaz’s answer had many advocates, for youth victims of sexual violence/threats, that I know personally, deeply concerned at what the implications of this ruling could mean for youth victims and how the ruling could empower predators.

    People are mad about this possibility. Very mad.

  29. Mary says:

    @43 and assorted et seq

    The way it works is that an objection to basic jurisdiction, as in the jurisdiction of the convening authority over the detainee, can be raised at any stage of a proceeding and doesn’t have to wait for a “deed to be done”

    However, a jurisdictional attack in such a convoluted setting as the MCA is going to be a very sensitive area. If you’ve seen anything I’ve posted over the years here, I am NOT arguing, at all, that there is jurisdiction for the MCA proceedings in Khadr’s case. BUT – making strategy decisions is something I used to do, and you don’t waltz into such an Angels Fear To Tread area (remember, the Sup Ct has no real enforcement powers – no “boots on the ground” or even gameboy obsessed guys with drones – when it bumps chests with the Exec branch) with one of your worst facts cases when instead you have the power, by cert, to pick and choose a best facts case.

    The Khadr facts – from a JURISDICTIONAL attack basis (as opposed to the later, deed done, determinative/substantive/procedural aspects) are just not as good as a case where the detainee was not originally obtained in a place like Afghanistan (that arguably was a lawless area and was an active battlefield vis a vis Khadr)and instead was taken in the bounty, extraordinarilyillegal rendition proceedings, etc. type of proceedings where the armed detainee/armed combat troops fact is not there.

    Now, most other attacks aren’t things that can be raised at any stage and typically you do have a wait and see approach by the courts to alternative proceedings offered up by the Exec. SOme things are so facially objectionable that you don’t have to wait for an “as applied” outcome to take to the court.

    But there are lots of cases, including lots of detainee cases, in the pipeline. The court couldn’t take them all if it wanted to, and in such a politically fraught area – where you have Congress having the Consitutionally stated right to set laws of war for the military (not CIA though ;) ) it’s a very different thing to have a detainee who was in active engagement with the military than to have a different kind of detainee before the court – even one who might have been in an armed confrontation when they were taken, but a non-military armed confrontation (CIA, Pak ISI, etc.)

    It’s bad strategy, imo, to getting the consensus together for a decision that will touch on jurisdictional aspects, to start off with the Khadr case. Again, jmo, ymmv, but there you go.

    Unfortunately, even though I could see some strategy at work if there was an ultimate decision by some justices to address the jurisdictional issue (something Kennedy seemed to hint at) I don’t really believe it. I don’t really think the court has the will or, now with Kagan, the makeup, to do what needs to be done.

    • powwow says:

      Unfortunately I don’t think that Khadr’s March 23rd writ of mandamus and prohibition is online anywhere, but as I understand it, it is focused on challenging the subject-matter jurisdiction of the Guantanamo Military Commissions, not the personal jurisdiction of the commissions over Khadr specifically. Omar Khadr already struck out, years ago in the D.C. Circuit, on the personal jurisdiction front – without intervention by the Supreme Court, probably for many of the reasons you outline in your comment.

      This excerpt from Jackson’s August 5th emergency application to the Supreme Court for a stay highlights what’s at stake in the March filing:

      Applicant’s underlying mandamus petition raised issues of the greatest public importance. If successful, the Military Commissions Act of 2009 will be held to be unconstitutional on its face, and all commission proceedings held under the authority of the Act – not only Applicant’s – will be null and void. There is thus an imperative need to decide this issue as soon as possible, not only to vindicate Applicant’s rights but to avoid the possibility that all intervening military convictions will be overturned in toto between now and the time this Court ultimately reaches the merits of Applicant’s argument.

      To get a flavor, though, of Khadr’s writ of mandamus, see this mandamus filing (from almost exactly one year ago now, on behalf of Ramzi Bin Al Shibh, by U.S. Navy JAGs Suzanne Lachelier and Richard Federico) that I highlighted in this diary – a filing that was soon followed by a string of similar filings by more of the 9/11 Five, and others at Guantanamo, none of which have been acted upon to date by the D.C. Circuit to my knowledge.

      Because of Lt. Col. Jackson’s extra efforts, and the imminent trial of Khadr, a decision was finally forced out of the D.C. Circuit appellate court on at least one of these subject-matter jurisdiction mandamus writs filed by Guantanamo detainees (and doubtless Khadr’s March, 2010 filing took advantage of the arguments in the earlier writs to improve and refine those arguments and otherwise present the best possible case against the commissions). Thus, such a case – directly confronting the most important failures and lawless excesses of the Guantanamo Military Commissions – can now (if Jackson soon files his petition) be considered by our highest court, should it finally decide to reassert its authority over this matter, instead of leaving these critical decisions in the irresponsible, unresponsive hands of the D.C. Circuit’s three-member panels, or waiting yet more years to examine the fundamental questions about the Constitutional and Law of Nations authority, or lack thereof, underlying the 2006/2009 Military Commission Act(s), and the ongoing Commission operations, in a comprehensive way.

      • bmaz says:

        Yeah, and that ain’t much in the way of a decent panel of 3 either. Here is the problem as I see it though, at the Supremes, you have four that are likely to rubber stamp the kangaroo commissions and four (that is making the hopeful assumption that Kennedy is where he intimates he is, which is no sure thing) that might strike them down or at least put a real gash in them and one that probably recuses herself. In the event Kagan doesn’t recuse (I think she would that early into her Supreme service), then I do not trust her for squat to go against the Obama Administration position.

        Bottom line, the best likely to result from an approach to the high bench is a 4-4 split which leaves Kavanagh et. al’s bunk in controlling effect.

        • powwow says:

          Well, whether or not that’s the case, and I certainly don’t disagree with you or Mary @ 75 about Khadr’s prospects with the current pathetic group of Justices, I nevertheless see this issue as too profoundly important – as well as already too-long avoided (after all, by the time Boumediene finally came down in 2008, it was too late to be applicable to most of the 779 Guantanamo detainees once detained there who had, years after their seizure and rendition to Cuba but nevertheless before June, 2008, already been released from Guantanamo by the military that brought them there) – for the Supreme Court to continue to ignore.

          So let’s have it, Supreme Court – tell us if you will, in black and white, on the record, that the United States Congress can make up American-manufactured “war crimes” under the “universal” Law of Nations, which the President and his military chain of command may unilaterally prosecute, judge, jury-try, and punish by end-running the Judicial Branch of government and even the UCMJ-governed traditional military justice system, against a demonized group of non-citizen defendants held under conditions that openly violate the Geneva Conventions and the “law of the land.” That ought to be quite the opinion, or perhaps quite the continued buck-passing to three hacks on the D.C. Circuit in the event Kagan recuses, but we’ll at least know where we stand with this Supreme Court on this profound issue (and thus whether or not Boumediene was in fact just a fluke, as the Supreme Court’s tolerance of the D.C. Circuit’s ongoing undermining of it may indicate).

          I don’t suppose that this view of mine is likely to be characterized as a cautious or wise strategy for success, as Mary notes, but, even though I know that these very arguments are overdue to be given their first serious response by some members of the military sitting on the new Court of Military Commission Review (ruling on the appeals of the two non-plea-bargain Commission convictions returned, after which the D.C. Circuit will get its crack), I simply find it inexcusable at this late date for the Supreme Court to continue to look the other way on these “issues of the greatest public importance” – just as I find the same behavior inexcusable (besides obviously being an original contributing cause of the problem) when exhibited by powerful, responsible Members of Congress with jurisdiction over the regulation of our Armed Forces.

          [As an aside regarding the personal jurisdiction of the commissions over detainees held by the military – the Guantanamo Military Commissions are off-limits to POWs, and Omar Khadr – like all the other detainees – has never been granted an Article 5 hearing to determine whether or not he qualifies as a POW, as Hamdan at least belatedly was given before his Commission trial commenced in front of a different military judge. Just one more issue that the Supreme Court may elect to get around to considering five years or so from now, long after any Khadr conviction by the Obama Commission…]

          • skdadl says:

            Thanks very much for your comments, powwow.

            I don’t know how to put these things in legal terms, so I sit to be improved upon by many here. But I recall reading at the time of Boumediene that, because Khadr had already been charged and his commission set up, he was not entitled to a habeas hearing until after his commission had played itself out. Some others were; there was a case similar to his that was cleared very quickly after Boumediene because no commission had been set up. All this is very cloudy in my memory now, but perhaps others will know how to explain it.

          • bmaz says:

            Under the facts claimed by the government, it is hard to see how he is not a POW. But that has always been the conundrum with this bogus charade the US government has been running.

          • bobschacht says:

            So let’s have it, Supreme Court – tell us if you will, in black and white, on the record, that the United States Congress can make up American-manufactured “war crimes” under the “universal” Law of Nations, which the President and his military chain of command may unilaterally prosecute…

            And not only prosecuting made up war crimes, but also failing to prosecute long-established war crimes (torture, etc). Now, I have learned to expect a “We make the laws around here” global attitude of George W. Bush, but I had hoped Obama would be different.

            Bob in AZ

      • Mary says:

        I’m sure he wasn’t challenging personal jurisdiction, since Khadr is in actual military custody.

        I always appreciate your posts and I’m not trying to say I think Jackson should be doing anything different than what he is doing. I’m saying, rather, that a) in response to Night Owl’s comment that the court has to wait for some action to be taken by the commissions, this isn’t the case for a jurisdiction based attack, and b) that I think the Khadr facts aren’t the ones that anyone on the court who wants to tackle the jurisdictional issues to negate commission would prefer to have for the case in front of them.

        The “bad facts” from a subject matter jurisdictional standpoint (and I am NOT arguing a case, or implying that I think Jackson hasn’t done, and won’t do, a great job making the very persuasive case that EVEN Khadr’s case should be tossed) include the facts that Khadr was taken in a lawless, battlefield proceeding; he was actively engaged with US military forces in that battlefield proceeding; he may or may not have been actively participating in something like planting ieds as an attack on US military forces, etc.

        He has a lot more US military connection points than many of the other detainees, and also has a battle theatre capture issue that most don’t have. And, there is a time and place for military commissions – plus Congress does have a lot of Constitutional weight behind it when it is making rules for the military.

        A much more conservative way to start to try to throw in a monkey wrench and to maybe (although, as bmaz points out, not likely) peel off a vote or two, is to have a proceeding where the detainee involved was not active themselves in a military show down – where they were picked up by intel forces or bounty hunters, where they were picked up in a place where courts were open and operating, where they were picked up for offenses which are also readily chargeable under domestic law (something Khadr’s case is iffy on, since a lot of what he is charged with would have a hard time being chargeable under civlian law as a crime – which is also not to say that he should be able to be charged with it under military law either, but there you do get more to an as applied than a jurisdictional argument), etc.

        As bmaz points out – I’m not really all that convinced with the Kagan make up of the court and with the court now (pretty shamefully) lacking in anyone with any tangential military background that anyone really is going to try to pull the bunny out of the hat, but if they are and they are serious about it, I don’t think Khadr’s case is the one they want to use to try to peel off votes. I’m not sure where peeled votes would come from – Scalia might be a vote peel if the detainee where an American citizen, but I haven’t seen much optimistic if not; Roberts I won’t attempt to decipher based on any judicial ideology; Alito isn’t a likely, but if he’s your peel off, he is going to need a very bad set of jurisdictional facts imo to get him on board and he’s much more likely to be a “wait to see how the mc’s work, as applied” guy.

        Kagan is like Roberts – so much so they could share a pair of plaid sansabelts. Sotomayor is going to be easier to keep on the side of the angels in a very egregious jurisdictional facts case as well. I just don’t see Khadr’s case as being a “come together” moment for a 5 vote majority.

        jmo, ymmv, but as unpopular as it may be to say, if I was a Justice or clerking/assisting, I wouldn’t be trying to pop Khadr’s case to the top of the list. fwiw

        That aside – Jackson is doing absolutely what he should be doing and doing it really well. It’ really is – well, I’m going to use the word distressing, but that’s not the one in my mind – to think that the way Bush and Obama and this country reward guys like this is by jeopardizing their career progress.

  30. Mary says:

    BTW – one thing that struck me when I read The Guantanamo Lawyers was how often lawyers had court order and the soldiers at GITMO, the ones protecting America, told them those court orders didn’t mean anything at GITMO.

    Not a highly publicized fact back home – but one that helps underscore what a Bush-Obama successive package of contempt for courts and law has done – made it very easy for the military to openly express contempt for US law, bc that’s the lead established by their CICs for a decade now.

    • bmaz says:

      What a crock of fucking shit. We have complete freedom to write whatever we want and are probably more active on the Palestinian issue than any other major blog. Clearly this “mondoweiss” whoever the fuck that is, just wants to whine about Leen. He can take a hike. I wonder if he has seen any of the things Siun has done. Or any of the things the rest of us have done.

  31. Mary says:

    OT – Davey Miliband is starting to feel some of what Obamaco will be feeling with his support for torture – it loses for you.


    It’s pretty funny, though, that he is saying that the US did “bad things” but he and Tony were just too slow to recognize what was going on.

    “Slowly the pieces of the jigsaw were put together and when they were put together the British government acted.”

    If, by acted, you mean helped cover up torture info and told a court it was bc the US was threatening to do … bad things … to Britain if they didn’t assist in the cover ups.

    So the guys who are in charge of deciphering what a gazillion terrorist groups might do next were having problems putting together the “jigsaw” pieces of Abu Ghraib photos and Bush saying he wasn’t bound by the Geneva conventions and black site prisons opening up everywhere and Brit residents/nationals surviving the shipping container killings only to be sent to GITMO on trumped up crap about being at a meeting with Bin Laden they couldn’t have been at, and being absconded with from Africa and disappearing or London chefs being put in solitary for years and the US opening up prisons at GITMO specifically to put them beyond the reach of law and repeated references to the dark side and gloves coming off and frickin stories IN THE BRITISH PRESS about KSM’s disappeared children and wife and … Britain’s intel couldn’t put those pieces together and figure out that bad things were being done?

    I guess it’s the intel response to the military incursion – Crock & AwwwShucks.

    Nice to see that his own brother, Ed, is running against him and has suggested that suggested that “under the last government foreign policy deviated from core Labour values” But despite his own brother’s pot shots at him, Davey is running as the unity candidate. I guess he’ll win, too. God needs more opportunities for cosmic irony.

    • skdadl says:

      I would be very glad to see David Miliband suffer a lot more than this, although I’d be gladder to see dear Tony sharing a cell with Dubya for life. You might recall that Hillary has a thing for David. Well, of course she does; he made a fool of self before the High Court for State’s sake (court had to explain to him that they didn’t think that covering Tony’s, ah, reputation amounted to a matter of national security or damage to international relations), plus he wears cool ties and has a cute accent. I don’t know Ed so well, but presumably he also wears cool ties and has a cute accent.

      It’s an interesting confrontation. Well, we all have families, don’t we.

  32. bobschacht says:

    How Obama Got Rolled by Wall Street
    Newsweek – by Michael Hirsh – Aug. 29 (News Analysis)

    Why the 44th president is no FDR—and the economy is still in the doldrums.
    Barack Obama was “incredulous” at what he was hearing, said one of his top economic advisers. The president had spent his first year in office overseeing the biggest government bailout of the financial industry in American history. Together with Federal Reserve chairman Ben Bernanke, he had kept Wall Street afloat on a trillion-dollar tide of taxpayer money. But the banks were barely lending, and the economy was still mired in high unemployment. And now, in December 2009, the holiday news had started to filter out of the canyons of lower Manhattan: Wall Street’s year-end bonuses would actually be larger in 2009 than they had been in 2007, the year prior to the catastrophe. …

    Here’s one of the money quotes from later in this lengthy analysis:

    Led by Summers and Geithner, Obama’s economic team resisted almost every structural change to Wall Street—in particular, Volcker’s plan (initially) and Arkansas Sen. Blanche Lincoln’s idea to bar banks from swaps trading.

    And later,

    Yet all in all, he [Obama] seemed perfectly willing to leave things to his trusted lieutenants, Geithner and Summers, puzzling some Democratic allies on the Hill.

    All this is adapted from Hirsch’s new book.

    OK, so the chief villains are Wall Street and their moles in the WH: Geithner and Summers, and the other Rubinites. Who are the heros?

    *Paul Volcker
    *VP Biden and his staff
    *Sen. Blanche Lincoln
    *Brooksley Born
    *Joseph Stiglitz

    Oddly, Elizabeth Warren is not mentioned at all, in any context.

    Hirsch’s conclusion:

    Today, after engendering Tea Party and centrist Democratic resistance to more government spending by pushing his health-care plan, the question is whether he has the political capital he may well need, in the end, to save his presidency. And after a two-year fight over financial reform, one other question still lingers: has Wall Street come out the big winner yet again?

    What’s the real game here?
    I suspect this: its between those Obama-bots who think Wall Street, Geithner & Summers snookered Obama into weak policies that won’t be sufficient to turn the economy around, and those who think Obama wasn’t snookered at all, and was in cahoots with Wall Street from “Day One,” as the spin-meisters are fond of saying.

    Obama may be vascillating, and the Obama-bots may be trying to push him into bolder action.

    IIRC, during the Great Depression, the first efforts to deal with it were also half-hearted, half-way measures that didn’t go far enough. The famous Pecora Commission was not an instant success, either– it had to go through several incarnations before Pecora arrived and decided real teeth were needed.

    Bob in AZ

    • powwow says:

      It was noticed at FDL in a couple of Seminal diaries that I read, Bob. I commented in both of the diaries about the editorial because I was rather underwhelmed by it, and noticed an error that the editorial repeated.

      Daphne Eviatar’s Friday diary was first (though she used the phrase in her title, her diary apparently didn’t get much notice), and then Jeff Kaye’s diary on Sunday (which had only a passing reference to the editorial, by which he was also underwhelmed) was front-paged at the Seminal and also, I believe, on FDL, in addition to making the front page Reader Diaries list.

      I do salute the New York Times writer for trying, at least – the editorial’s a step in the right direction, and I hope it motivates the paper to improve its reporting and its opinion pieces on these profound problems in future.