{"id":8244,"date":"2010-11-08T00:00:30","date_gmt":"2010-11-07T23:00:30","guid":{"rendered":"http:\/\/www.transcend.org\/tms\/?p=8244"},"modified":"2010-11-04T20:43:22","modified_gmt":"2010-11-04T19:43:22","slug":"guantanamo-exception-or-rule-all-american-justice-for-a-child-soldier-at-obama%e2%80%99s-gitmo","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2010\/11\/guantanamo-exception-or-rule-all-american-justice-for-a-child-soldier-at-obama%e2%80%99s-gitmo\/","title":{"rendered":"Guant\u00e1namo, Exception or Rule? All-American Justice for a Child Soldier at Obama\u2019s Gitmo"},"content":{"rendered":"

When I was down in Guant\u00e1namo a few months ago, a veteran German journalist let it slip that she didn\u2019t much care for the place.\u00a0 \u201cThis<\/em>,\u201d she confided in me, and many of the other journalists there as well, \u201cis the\u00a0worst<\/em> place I have\u00a0ever<\/em> visited in my\u00a0entire<\/em> career<\/em>.\u201d<\/p>\n

It\u2019s not hard to see why my superlative-loving friend felt this way: we were covering the case of Omar Khadr, a 15-year-old Canadian captured after a firefight with U.S. forces outside Kabul in July 2002, tortured and interrogated for a few months at Bagram Air Base in Afghanistan, then transported to Guant\u00e1namo.\u00a0 He just\u00a0reached<\/a> a plea agreement that will avoid a trial before a military commission at Gitmo for five \u201cwar crimes.\u201d \u00a0Four of them,\u00a0freshly invented<\/a> for the occasion, are not recognized as war crimes in any other court on the planet.\u00a0 (Khadr pled guilty to all charges and will get at least one year more at Gitmo — in solitary — then perhaps be transferred to Canada for a remaining seven years.)<\/p>\n

Aside from Khadr and about 130 other prisoners who may one day see a trial, Guant\u00e1namo also holds\u00a047 more<\/a> War on Terror prisoners who are expected to be \u201cdetained\u201d indefinitely without being tried at all.\u00a0 This was one of the radical policies of George W. Bush and Dick Cheney that is now cheerfully defended by the\u00a0human rights grandees<\/a> in Barack Obama\u2019s State Department.<\/p>\n

Gitmo and all other places without\u00a0habeas corpus<\/em> rights are indeed dismal places — and there is certainly something disgusting about the first conviction of a child soldier since World War II.\u00a0 All the same, I couldn\u2019t help but wonder if my vehement\u00a0Kollegin<\/em> had ever visited a homegrown federal prison like the one in Terre Haute, Indiana (whose maximum security wing was copied down to the smallest detail at Gitmo\u2019s Camp 5), or even your run-of-the-mill overcrowded state lock-up, the kind you pass on the highway without even noticing that you\u2019ve done so, or one of the crumbling youth detention facilities in New York State which, as we lawyers who have represented youth offenders know, are hellish.<\/p>\n

Such prisons may lack the exotic setting of Gitmo\u2019s Camp Delta, but they should not be forgotten.\u00a0 At the risk of sounding boosterish, it so happens that a great many of America\u2019s unsung domestic prisons also routinely abuse inmates, Guant\u00e1namo-style, are unable or unwilling to prevent inmate rape, employ long-term, sustained solitary confinement (which gives waterboarding<\/a> a run for its money), and in actual practice are often beyond the rule of law.\u00a0 Confessions, true or false, obtained through violence and threats, aren\u2019t restricted to Guant\u00e1namo either.\u00a0 They are not all that hard to find in our contiguous 48 states.\u00a0 And for the rest of our prison system, where are the outraged German journalists?\u00a0 Why are no British \u201claw lords\u201d calling the federal supermax in Florence, Colorado, a \u201clegal black hole\u201d as law lord Johan Steyn termed Guant\u00e1namo?<\/p>\n

Alas, in so many ways Guant\u00e1namo is not the exception but far closer to the rule of our criminal justice system, and the case of Omar Khadr, rather than being an anomaly of the War on Terror, is in all too many ways positively all-American.\u00a0 To be sure, taking a child soldier you\u2019ve captured in a foreign land, whose interrogation entailed<\/a> stringing him up half-naked in a five-foot-square cell with wrists chained to the bars at eye level and a hood clamped tightly over his face, then prosecuting him for \u201cmurder\u201d because he allegedly tossed a grenade on a foreign battlefield, does present some legal issues that don\u2019t ordinarily come up in Spokane or Chillicothe.<\/p>\n

But Gitmo, a \u201cbetrayal of American values\u201d?\u00a0 Would that it were!\u00a0 Alas, for nearly every grisly tabloid feature of the Khadr case, you can find an easy analog in our everyday criminal justice system.\u00a0 In a sense, much of our War on Terror has proven a slightly spicier version of our \u201cnormal\u201d way of doing criminal justice.\u00a0 Using the case of Omar Khadr, let\u2019s take this step by step.<\/p>\n

Child Soldiers and Juvenile Offenders<\/strong><\/p>\n

The Khadr case should have been a bit queasy-making for us Americanos<\/em>.\u00a0 Hasn\u2019t there been a surge of concern for child soldiers in book clubs<\/a> and church groups across the land?\u00a0 Turns out, however, that this long-distance compassion goes up in smoke at closer range.\u00a0 The second a child soldier points his gun at an American, not another African, it\u2019s adi\u00f3s<\/em> victimized child, hello<\/a> hardened terrorist.<\/p>\n

The hypocrisy in all this is less flaming than it may appear.\u00a0 After all, clemency for youth offenders, be they child soldiers or just local kids, runs against the American grain these days.\u00a0 If we routinely prosecute children even younger than 15 as adults — and we do — why should a foreign child soldier be any different?<\/p>\n

In fact the U.S. even has a few dozen inmates doing life without parole<\/a> for acts committed when they were 13 or 14, and most of these sentences were mandatory rather than the prerogative of a particularly nasty judge.\u00a0 (Some small progress: last May in Graham v. Florida<\/a> <\/em>the Supreme Court decided that juveniles can get life without parole only<\/em> if there\u2019s homicide involved.)\u00a0 Overall, the U.S. has in recent years had precious little mercy for its children, or anyone else\u2019s.<\/p>\n

Coercive Interrogation of Minors<\/strong><\/p>\n

Back in May, the Gitmo press corps gasped when Khadr\u2019s \u201cInterrogator Number One,\u201d Joshua Claus, described<\/a> the veiled threats of rape he wielded at Bagram Prison to try to break the young prisoner.\u00a0 If Khadr should fail to cooperate, Claus told him, he would meet the same fate as another young (and imaginary) Afghan detainee who was supposedly sent to a U.S. penitentiary and raped to death in a shower room by \u201cneo-Nazis, and four big black guys.\u201d\u00a0 Claus, a court-martialed detainee abuser, had been the leader of the final interrogation<\/a> of a mistakenly imprisoned Afghan taxi driver who was beaten to death by American guards at Bagram in 2002.\u00a0 Before receiving a rather light sentence in the case, Claus pledged his full cooperation with the Khadr prosecution, and he kept his part of the bargain with visible enthusiasm.<\/p>\n

As it happens, Claus\u2019s veiled threats of rape and violence to a minor would not have been that uncommon in domestic interrogation rooms.\u00a0 \u201cFrom the stories I\u2019m familiar with, threats like that are a pretty garden-variety police interrogation tactic,\u201d says Locke Bowman, legal director of the MacArthur Justice Center<\/a> at Northwestern University.<\/p>\n

With youths, it\u2019s not that much of a challenge to get a false confession, even without the threat of or actual physical violence being brought to bear, as the case of Marty Tankleff<\/a> in Long Island shows, not to mention the seven and eight year-old boys from the Englewood neighborhood of Chicago who, in the summer of 1998, \u201cconfessed\u201d<\/a> to murdering a girl for her bicycle.\u00a0 Even after DNA evidence from semen found on the corpse was matched to an adult serial sex offender, the Chicago Police Superintendent at first refused to exonerate them.\u00a0 The State\u2019s Attorney might well have prosecuted the boys, too, if the entire South Side of Chicago hadn\u2019t threatened to explode.<\/p>\n

Torture<\/strong><\/p>\n

Okay, but what about torture?\u00a0 We bemoan with great feeling that America has \u201cbecome\u201d a state that uses torture.\u00a0 Alas, this, too, is not so new, nor has it ever been limited to foreign insurgents (be they Comanche, Filipino, or Vietnamese) or suspected terrorists.\u00a0 Take, for example, the former high-ranking Chicago police detective Jon Burge<\/a> who, over a 20-year career, enhanced his interrogations with mock executions, suffocation, electroshocks, pistol-whipping, and yes, a form of waterboarding.\u00a0 All this was uncovered in 2002 in an epic special investigation which led to the reexamination of more than 100 cases, several overturned convictions, multiple Governor\u2019s pardons and the usual massive lawsuits against the Chicago Police Department.\u00a0 Because the statute of limitations for Burge\u2019s crimes had run out, the disgraced police officer was convicted this past June <\/strong>for perjury and obstruction of justice.\u00a0 He currently awaits sentencing.<\/p>\n

Routinized Prison Abuse<\/strong><\/p>\n

As for routinized prison abuse, Bagram and Abu Ghraib have regularly been described as one-off aberrations, but the origins of such brutality are not hard to spot in our treatment of prisoners at home.\u00a0 This continuity is personified by Charles Graner, the ringleader of the Abu Ghraib torture.\u00a0 He had fittingly been a guard<\/a> at maximum-security State Correctional Institute-Greene in southwestern Pennsylvania, itself subject to a major prisoner-abuse scandal in the late 1990s which got several guards fired, though not Graner.<\/p>\n

Fact is, the abuse and\/or torture of prisoners, though far from systematic, is not all that uncommon in many American prisons.\u00a0 What came out in the Abu Ghraib photos is, according to<\/a> the (increasingly busy) United States program of Human Rights Watch, not so different from the abuse and brutality of many of our own stateside lock-ups.<\/p>\n

In New York, for instance, a state task force convened by Governor David Paterson in 2008 deemed<\/a> the entire youth detention system \u201cbroken.\u201d\u00a0 The official report found that guards throughout the system regularly used \u201cexcessive force\u201d on youth inmates, sometimes breaking bones and shattering teeth.<\/p>\n

Prison abuse here at home can be just as fatal as at Bagram.\u00a0 In New York, an emotionally disturbed 15-year-old died in 2006 after corrections officers pinned him face down on the ground.\u00a0 (Remember, at Bagram the interrogators tried to make young Khadr talk by threatening to send him to an American prison<\/em>, which they apparently considered at least as threatening as anything Afghanistan had to offer.)<\/p>\n

This is not lost on lawyers representing Gitmo detainees.\u00a0 \u201cI might well advise a client to take ten years in the communal wing of Guant\u00e1namo over three years in solitary at the supermax in Florence,\u201d says Shayana Kadidal, senior managing attorney at the Guant\u00e1namo Global Justice Initiative<\/a> at the Center for Constitutional Rights.\u00a0 Attorney Joshua Dratel, who took part in the very successful defense of Gitmo detainee David Hicks<\/a>, told me recently that he thought the worst American-run prison is not Guant\u00e1namo\u2019s Camp Delta, but rather the Metropolitan Correctional Center in lower Manhattan. And yet, somewhat mysteriously, New Yorkers are more likely to know about the brutality of Gitmo and Abu Ghraib than the fatal abuse and abysmal prison conditions in their own state.<\/p>\n

To be sure, in significant ways Gitmo and the CIA\u2019s various global \u201cblack sites\u201d<\/a> were significantly worse. First, the use of torture has been far more widespread at Bagram, Abu Ghraib, Guant\u00e1namo, and the other secret prisons established in the Bush years than at home.\u00a0 In addition, the government has also made the decision to imprison some detainees without trial for the duration of what has often been described as a \u201cmultigenerational\u201d global war on terror.\u00a0 Even those prisoners with habeas rights have had trouble<\/a> getting release orders granted by the judiciary enforced.\u00a0 Half a dozen Guant\u00e1namo prosecutors — prosecutors, mind you, not defense lawyers — have quit in disgust with the whole process, offering harsh words about the structural flaws which tilt the system towards securing convictions at the expense of impartial justice.<\/p>\n

In important ways, however, our domestic justice system is no better.\u00a0 Darrell Vandeveld is a former Guant\u00e1namo prosecutor.\u00a0 He resigned in a crisis of conscience in 2009.\u00a0 He was also once a public defender in San Diego where he found<\/a> that many defendants were able to get only a semblance of justice. \u00a0\u201cMost of the defendants\u2019 rights were honored only in the breach.\u00a0 It\u2019s an overburdened system that has only become worse.\u00a0 Comparable to Gitmo?\u00a0 No doubt.\u201d\u00a0 Vandeveld, who now heads the public defender office in Erie, Pennsylvania, stresses that, while the outrages are not identical, they are comparable.<\/p>\n

Legal Black Holes, At Home and Abroad<\/strong><\/p>\n

Gazing into Gitmo\u2019s black hole can also easily provoke disturbing reflections on the rule of law in wartime America.\u00a0 As another lawyer<\/a> remarked 2,000 years ago while his republic was degenerating into empire, \u201cInter armas silent leges\u201d<\/em> (in time of war, the laws fall silent).<\/em><\/p>\n

Keep in mind that the Global War on Terror — a name the Obama administration has demurely dropped without dropping<\/a> the war that went with it — is by no means the only war deforming our justice system.\u00a0 For the past three decades, the War on Crime and the War on Drugs have been in full fury, becoming ever less metaphorical as budgets for police and prisons skyrocket, and then skyrocket some more.\u00a0 These domestic crackdowns have come with much martial rhetoric and political manipulation of fear and anger, clearing a wide path for the excesses of that Global War on Terror.\u00a0 By overburdening the criminal courts and prison system to a hitherto unimaginable degree, these \u201cwars\u201d also created legal black holes where the rule of law is notional at best.<\/p>\n

Take the Prison Litigation Reform Act of 1995<\/a>, which made it nearly impossible for inmates to sue prison authorities, and has put thousands of Americans beyond the reach of any kind of juridical authority.\u00a0 According to Bryan Stevenson<\/a>, a peerless capital-defense litigator and executive director of the Equal Justice Initiative in Montgomery, Alabama:<\/p>\n

\u201cU.S. prison officials have obtained greater and greater discretion to send someone to solitary confinement for years; to force people into their cells naked, without meals; to inflict punitive measures without any possibility of outside intervention.\u00a0 It\u2019s often a closed system whose managers have all the authority, especially at our supermax facilities.\u00a0 They function in many ways like Guant\u00e1namo.\u201d<\/p>\n

Gitmo and Bagram were well within our capabilities before 9\/11.\u00a0 Yes, it\u2019s true that Bush administration officials and pundits told us<\/a> with excitement about how, in our counterattack on al-Qaeda, \u201cthe gloves were coming off.\u201d\u00a0 For a great many Americans already in U.S. prisons, however, those gloves had never gone on to begin with. \u00a0This raises some vexing questions about how we budget our indignation.\u00a0 It is not at all clear why violent interrogations, abuse, and torture should be more scandalous when they happen overseas than in Chicago.<\/p>\n

What explains this collective Jellybyism<\/a>?\u00a0 Is it because so many of our domestic inmates, especially in the regions where national opinion is produced, are African American and Latino, whereas most of our professional social reformers in the nonprofit sector are white and Asian?\u00a0 Is it because most of our elite public-interest lawyers and white-shoe pro bono<\/em> advocates come out of a top half-dozen law schools where they most likely got a nice taste of well-tended federal courts, but little if any exposure to our overburdened state criminal courts?\u00a0 Is it just too depressing to think about our crumbling, overstrained criminal justice system in Guant\u00e1namo-like terms?\u00a0 Does compassion fatigue for those atrocities closest at hand always set in first, and hardest?\u00a0 Whatever the reasons, the gaping legal black holes in our domestic justice and penal system have acquired the seamless invisibility of an open secret.<\/p>\n

It is no coincidence that most of the American intellectuals who have pointed out these domestic precursors to the Global War on Terror — journalists like Margaret Kimberley<\/a> and Bob Herbert<\/a>, and law professor James Forman, Jr.<\/a> — are African American.\u00a0 Black Americans, whose overall incarceration rate today is probably higher than that of Soviet citizens at the peak of the gulag, have had ample reasons over the centuries, and now as much as ever<\/a>, to doubt the fundamental fairness of American justice.\u00a0 When advocates compare the military tribunals unfavorably to \u201cthe Cadillac version of justice\u201d that U.S. citizens supposedly get (which was how one Gitmo defense attorney described America\u2019s domestic courts), it is simply baffling to those aware of how our system actually works.<\/p>\n

In fact, the ho-hum familiarity of much of the War on Terror\u2019s nastiness may help explain why so many Americans view what\u2019s gone on at Gitmo with a shrug, and often respond to the liberal shock and horror with exasperation.\u00a0 This has been going on right here for decades, where have you been?<\/em><\/p>\n

Prosecuting a 15-year-old for \u201cmurder\u201d with the help of a little torture and some threats of rape may not be the kind of thing we want to show German journalists.\u00a0 They\u2019ll just get upset.\u00a0 They lack the context<\/em>.\u00a0 But we Americans really have no right to claim that we\u2019re shocked, shocked.\u00a0 We got used to this kind of thing a long time ago.\u00a0 The prosecution of former child soldier Omar Khadr has been nothing, in other words, if not all-American.<\/p>\n

__________________________<\/p>\n

Chase Madar is a lawyer in New York.\u00a0 He reviews and reports for the <\/em>London Review of Books, <\/em>Le Monde Diplomatique, the <\/em>American Conservative Magazine and <\/em>CounterPunch.\u00a0 A Timothy MacBain TomDispatch video interview with Madar on why Guantanamo has not betrayed American “values” can be seen by clicking here<\/a> or downloaded to your iPod, here<\/a><\/em>.<\/p>\n

Copyright 2010 Chase Madar<\/em><\/p>\n

Go to Original \u2013 tomdispatch.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Child Soldiers and Juvenile Offenders: The Khadr case should have been a bit queasy-making for us Americanos. Hasn\u2019t there been a surge of concern for child soldiers in book clubs and church groups across the land? Turns out, however, that this long-distance compassion goes up in smoke at closer range. The second a child soldier points his gun at an American, not another African, it\u2019s adi\u00f3s victimized child, hello hardened terrorist.<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[139],"tags":[],"class_list":["post-8244","post","type-post","status-publish","format-standard","hentry","category-justice"],"_links":{"self":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/8244","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/comments?post=8244"}],"version-history":[{"count":0,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/8244\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/media?parent=8244"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/categories?post=8244"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/tags?post=8244"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}