[Marxism] At Guantanamo, Even "Easy" Cases Have Lingered (WSJ)
walterlx at earthlink.net
Tue Dec 19 23:24:43 MST 2006
An exceptionally detailed and highly informative report on how the
United States is bringing "democracy", "human rights", "accountability"
and "transparency" to the sliver of Cuba which Washington currently
occupies. We're all inundated by horror stories from Abu Ghraib, and
somewhat less from Afghanistan, but the situation in both countries
is horrific under the heel of Washington's attempt to occupy those
countries and crush popular resistance. Today's Los Angeles Times,
for a change, has a massive feature on the so-called legal system
now in place in Iraq. It's the best law money can buy. Among the
many interesting points here is that Washington has no plans to
even TRY the great majority of the prisoners it's holding today!
"Air Force Col. Moe Davis, the chief Guantánamo prosecutor, estimates
that about 70 of some 435 Guantánamo prisoners will eventually face
trial for specific war crimes; the rest will be held until the U.S.
determines they no longer pose a threat."
Given the recent reports of massive corruption in the legal systems
of Iraq and Afghanistan, countries whose regimes Washington was
able to overthrow, this provides a truly stunning indication of what
the future would hold in store for Cuba, if Washington were able to
do there what it did to Iraq and to Afghanistan. Things have gotten
so bad under occupation in Afghanistan that the Taliban are starting
to look good to some people. In Iraq, Saddam Hussein's popularity
is now on the uprise as the country is drowned in violence while the
public services like water, electricity and so on simply no longer
function. This is what occupation looks like to ordinary people.
Walter Lippmann, CubaNews
Los Angeles, California
Even 'Easy' Cases
Balky Intelligence Agencies,
War-Torn Crime Scene
Hinder Legal Process
Maj. Groharing's Village Hunt
By JESS BRAVIN
December 18, 2006; Page A1
WALL STREET JOURNAL
December 18, 2006
After an hours-long firefight in an Afghan village called Ab Khail,
an enemy fighter hurled a grenade at Sgt. First Class Christopher
Speer, causing fatal injuries. For more than a year, Maj. Jeffrey
Groharing, a Marine Corps prosecutor, has been trying to bring the
alleged killer to justice.
Winning a conviction should have been easy. The suspect, Omar Ahmed
Khadr, a Toronto-born teenager whose relatives have ties to al Qaeda,
was captured after the July 2002 skirmish and taken to Guantánamo
Bay. Under an order President Bush issued in November 2001, Mr. Khadr
could claim few of the rights afforded defendants in civilian courts
But for Maj. Groharing, the case of U.S. v. Omar Khadr, slated for an
American military commission at Guantánamo, has been a headache.
Intelligence agencies refused to share their files with the
prosecutor, fearing their methods or sources might be disclosed.
Soldiers who witnessed the incident are scattered across the globe.
Defense attorneys hurled a series of legal challenges that paralyzed
proceedings. And the crime scene -- a remote village still contested
by Taliban fighters -- was all but obliterated by American bombs,
making it nearly impossible to conduct an independent investigation.
Such challenges help explain why the Bush administration failed to
complete a single Guantánamo trial in the five years before the
Supreme Court struck the system down in June. The decision threw into
limbo the prosecution of Mr. Khadr and nine other Guantánamo
prisoners who were charged prior to the high court ruling. Congress
has since passed the Military Commissions Act, which grants
defendants some of the rights President Bush previously had sought to
deny. But even when the deck was stacked in the government's favor,
prosecutors struggled to convict fighters captured overseas amid a
"At the end of the day, the question is: Can you actually try a case
under these conditions?" says Prof. Robert Chesney, a specialist in
national-security law at Wake Forest University.
Maj. Groharing acknowledges that the Guantánamo cases have had "some
fits and starts," and presented challenges that few other prosecutors
face. He says the effort is nonetheless worthwhile.
"What's the alternative? To not hold him accountable? We are
certainly not going to give him a pass for killing a U.S. service
member and plotting to kill many more," the prosecutor says. "The
difference between us and al Qaeda is that when we had him on the
battlefield, we didn't summarily execute him," he says.
The U.S. has employed forms of military commissions in past
conflicts, most recently World War II, when hundreds of Axis
officials and soldiers were tried for offenses such as crimes against
humanity and mistreatment of American prisoners of war. But those
trials took place after fighting had ended and before the
introduction of stricter courtroom and evidentiary standards, as laid
out by the Geneva Conventions, the U.S. Uniform Code of Military
Justice and other laws.
Air Force Col. Moe Davis, the chief Guantánamo prosecutor, estimates
that about 70 of some 435 Guantánamo prisoners will eventually face
trial for specific war crimes; the rest will be held until the U.S.
determines they no longer pose a threat. Those expected to face
military trial include Khalid Sheikh Mohammed and Ramzi Binalshibh,
alleged plotters of the Sept. 11, 2001, terror attacks. President
Bush transferred them in September from a secret Central Intelligence
Agency prison to Guantánamo.
The majority of the defendants are relative unknowns whose alleged
crimes fall short of the catastrophic hijacking attacks. Mr. Khadr
was selected as an early prosecution target precisely because his
case seemed so simple. Of the prisoners previously charged, Mr. Khadr
is the only one accused of killing anybody. Sgt. Speer's combat
death, alone of the 194 American military personnel killed by enemy
fire in and around Afghanistan, is the only one that has prompted a
In contrast to some other cases, "we have a crime scene, we have
facts, we have witnesses," says Maj. Groharing.
Defense attorneys say the allegations against Mr. Khadr amount to
nothing other than taking part in a battle he didn't start.
The Marine attorney assigned to represent Mr. Khadr, Lt. Col. Colby
Vokey, initially was barred by his commander from communicating with
reporters after filing an affidavit accusing Guantánamo prison guards
of abusing detainees. Muneer Ahmad, an American University law
professor helping represent Mr. Khadr, says: "It's hard to think this
is a case prosecuted solely on its merits without regard to the
political benefits to the administration."
Mr. Khadr, he adds, "has been punished for the perceived sins of his
Mr. Khadr's father, Ahmed Said Khadr, an Egyptian-born Canadian
citizen, was closely identified with extremist Islamic causes. In the
1980s, Ahmed Khadr traveled to Pakistan and Afghanistan, where he
became a confidant of Osama bin Laden. In 1993, Mr. Khadr moved his
family to Afghanistan, where U.S. authorities say he funneled money
to al Qaeda under cover of charity work.
Mr. Khadr's boys trained at al Qaeda-run camps and played with Mr.
bin Laden's children, Khadr family members said in interviews with
the Canadian Broadcasting Corp. According to Pentagon charges, "while
traveling with his father, Omar Khadr saw or personally met senior al
Qaeda leaders," including Mr. bin Laden, Ayman al-Zawahiri and
After the U.S. invaded Afghanistan to topple the Taliban regime in
October 2001, the Khadrs scattered. Ahmed Khadr was killed by
Pakistani forces in an October 2003 battle that also left his
youngest son paralyzed.
Omar, meanwhile, "received approximately one month of one-on-one,
private al Qaeda basic training" arranged by his father, Pentagon
charges say, including "the use of rocket-propelled grenades, rifles,
pistols, grenades and explosives."
In late July 2002, U.S. forces picked up satellite telephone
transmissions from a village about seven miles outside Khost,
Afghanistan, says retired Army Sgt. First Class Layne Morris, part of
the unit sent to reconnoiter. Mr. Morris's account of the day is
corroborated by contemporary news reports, charging documents and
other court papers, including a successful civil suit filed by Mr.
Morris and the widow of Sgt. Speer in U.S. District Court in Utah.
The Khadr family's Canadian lawyer, Dennis Edney, contends that suit
was illegitimate and that it may color Mr. Morris's credibility.
According to Mr. Morris and press accounts, a detachment of about 40
U.S. soldiers, along with a few allied Afghan militiamen, headed to
Ab Khail. Mr. Morris recalls leading a five-man squad to a compound
outside the main village, with a mud wall surrounding a homestead
with buildings and animal pens.
The sergeant peered through the compound's green metal gate, spotting
what he says were well-dressed Arabs with AK-47 machine guns sitting
around a fire. "They looked at me and I looked at them," Mr. Morris
Mr. Morris backed up, ordered his soldiers into position and called
for reinforcements. About 100 villagers were hanging around watching
events unfold. About 45 minutes later, the rest of the detachment
arrived, including Sgt. Speer. The Americans took cover and sent the
Afghans into the compound to inquire further, Mr. Morris says.
The men inside immediately shot the Afghans dead and began firing
guns and throwing grenades at the U.S. soldiers, Mr. Morris says. The
ensuing battle was ferocious, costing Mr. Morris his right eye,
wounding four other Americans and ending only after U.S. F-18s
dropped two 500-pound bombs on the compound, destroying it.
U.S. soldiers, assuming the enemy fighters were all dead, advanced on
the compound, Mr. Morris says. That's when Mr. Khadr, then 15,
allegedly rose and threw a grenade that wounded Sgt. Speer, a
The soldiers shot Mr. Khadr. When they got to his prone body, he
begged them, in English, to finish him off, Mr. Morris says. U.S.
soldiers said at the time in press interviews they restrained their
desire to do so and instead ordered medical treatment. Mr. Khadr
survived, but lost most sight in his left eye. His three companions,
all Arabs, were dead.
Sgt. Speer, shrapnel lodged in his head, was taken to an Army
hospital in Germany, where he died on Aug. 7. Mr. Khadr was sent to
Maj. Groharing, 36, had long nursed dreams of becoming a Marine.
He didn't join the Corps until 1996 after graduating from the University
of Nebraska law school and a brief but unexciting exposure to private
practice. For most of his career, he worked as a defense attorney
representing Marines accused of crimes. He sometimes found the role
uncomfortable, he says, partly because it involved standing up to
commanders who want the offenders punished.
In 2002, he was transferred from San Diego to Washington, D.C., for a
job with the Marine Corps commandant's legal counsel. Eager for
experience at the prosecution table, he next sought appointment to
the Office of Military Commissions.
"I wanted to do something that needed to be done," says Maj.
Groharing. After he arrived in June 2005, Guantánamo reporters
nicknamed him "Kevin Bacon," after his resemblance to the actor who
played a Marine prosecutor in the picture, "A Few Good Men."
Prosecutors had already requested that President Bush authorize
charges against Mr. Khadr based on the voluminous array of potential
evidence. Over three years of detention, Mr. Khadr had told
interrogators about his father's activities and connections, shedding
light on al Qaeda's organizational structure, military officials say.
Soldiers who took part in the battle could be called to testify,
along with relatives of Sgt. Speer. Both would likely hold weight
with the seven U.S. officers appointed as judges. To top it off,
soldiers had recovered a video tape from Ab Khail, which the Pentagon
says shows a smiling Mr. Khadr building and planting bombs.
In November 2005, the administration formally charged Mr. Khadr with
conspiracy, murder by an unprivileged belligerent, attempted murder
by an unprivileged belligerent and aiding the enemy. The charges stem
from Mr. Khadr's classification as an unlawful combatant, or a person
who has no right to commit acts of war; if he was adjudged to be part
of a regular army, his actions likely would be considered legal under
the rules of war.
Maj. Groharing went to Guantánamo to personally deliver the news. He
recalls thinking that Mr. Khadr looked "somewhat hardened, far from a
typical teenager" and "a bit arrogant, cocky."
Mr. Khadr didn't appear know who the Marine was. "He advised me he
didn't want me to be his lawyer. I said, 'I'm not your lawyer,' " and
handed him the charges.
Mr. Khadr already had an impressive legal team. His family in Canada
had hired counsel. In addition, Prof. Ahmad and a faculty colleague,
Richard Wilson, represented him in civil litigation challenging his
detention at Guantánamo. To these were added an Army lawyer and Col.
Vokey, an experienced military defense counsel.
Mr. Khadr's lawyers say none of the charges are crimes, citing a
variety of legal arguments. They note the Supreme Court plurality has
found that conspiracy is not a war crime, based on post-World War II
precedents that considered the charge too vague.
Prof. Ahmed says murder by an unprivileged belligerent "has never
been recognized as a violation of the laws of war," and was instead
"invented" by the Bush administration. The other charge, aiding the
enemy, makes no sense, the law professor adds, because Mr. Khadr
owes no allegiance to the U.S. Lastly, because Mr. Khadr was 15 at the
time of the alleged crime, he should be treated as a juvenile, says
Prof. Ahmad, following historic precedent.
His attorneys allege Mr. Khadr was subjected to years of abuse,
including being used as a "human mop" to clean up urine, being
shackled until he soiled himself, and being threatened with
deportation to Egypt, where he would be raped.
Col. Davis, the chief Guantánamo prosecutor, says the allegations are
under review and have not to date been substantiated. Maj. Groharing
says if he ever gets his case into a courtroom, he can deal with such
objections by citing evidence collected prior to the interrogation.
That wasn't the only problem. The prosecution needed help from other
Pentagon offices but instead found uneven support for the commission
plan. The tribunals had originated with Bush political appointees
rather than professional military lawyers, many of whom thought
existing court-martial procedures were more than adequate. Defense
Secretary Donald Rumsfeld had little time for the commissions,
officials say, since administration lawyers concluded prisoners could
be held indefinitely, regardless of whether they were tried or even
In the Pentagon bureaucracy, ambivalence translated into inertia, if
not outright resistance. Intelligence agents refused to make key
material available. Maj. Groharing tacked over his desk an
intelligence report he received whose entire contents had been
"There's an inherent conflict between what they're doing and what
we're doing," Maj. Groharing says he realized. And the intelligence
mission "trumps what we're doing."
Maj. Groharing says he was prepared to try his case based on the
paper files and interviews with surviving U.S. servicemen. But Col.
Vokey, the defense attorney, wanted to interview witnesses and gather
evidence himself. Because that meant a trip to contested areas of
Afghanistan and regions of Pakistan unfriendly to Americans, Maj.
Groharing had to make arrangements for his adversary's travel,
something the prosecutor considered "awkward."
Col. Vokey agrees, saying he didn't want to conduct his investigation
with the prosecutor "looking over my shoulder." (Shortly before this
article's publication, Col. Vokey said the ban on his communication
with journalists had been lifted.)
By chance, lawyers in other military commission cases had business of
their own in the region and the office planned a group trip. Maj.
Groharing decided to go, too, so he could attend Col. Vokey's
depositions and hunt down additional witnesses of his own.
The group flew to Islamabad, Pakistan, in May. Col. Vokey immediately
came down with food poisoning "and that put him down for a week," the
prosecutor says. "From that day on, he never had another kebab or
After a stop in Peshawar, a border city where Ahmed Khadr once
volunteered for a charity called Human Concern International, the
group flew to Bagram air base in Afghanistan. From there, they took a
helicopter to Khost, where an Army unit was assembled to escort the
lawyers, now wearing Kevlar battle gear, to the crime scene.
At first, they couldn't find the village. When the convoy of six
Humvees and some 25 soldiers finally rumbled into Ab Khail, villagers
surrounded the U.S. group. The prosecutor wanted to find witnesses
who would say that foreign fighters had been in the compound.
Several villagers "clearly remembered" the incident, Maj. Groharing
says, before the village elder showed up and took charge of the
encounter. "Anyone we tried to talk to, he would always jump in and
answer for everyone else," the prosecutor says. The elder denied the
very essence of the prosecution case: that al Qaeda fighters had
fought U.S. soldiers in the village.
"There wasn't going to be a 'Perry Mason' moment where all of a
sudden he admitted everything when I confronted him with the
evidence," Maj. Groharing says.
Both the prosecutor and the defense attorney tried various feints to
distract the elder. "We did talk to some folks on the side without
him, but we also didn't want to upset the apple cart," Maj. Groharing
says. "We wouldn't be doing a very good job of winning hearts and
minds" by offending the local establishment.
The Americans examined the new compound, which had been built over
the rubble of the previous buildings, noting a few reused bricks with
bullet holes and spotting the shrapnel-damaged green metal gate,
leaning unused against the compound's mud wall. After about three
frustrating hours, they gave up and returned to Khost, Maj. Groharing
Their last stop was Jalalabad, a southern Afghan city where Ahmed
Khadr ran an organization called Health and Education Project
International. The U.S. says it was a front for financing al Qaeda.
Col. Vokey wanted to interview the organization's current director.
Narrow streets and congested traffic made it impossible for their
Humvees to maneuver, forcing the uniformed U.S. lawyers to walk the
last few blocks. As they approached, explosions went off, Maj.
Groharing recalls. Arriving at the address, they found a crowd
watching the entire city block in flames.
"We were looking at the map and the grid coordinates and, no kidding,
it's the place Col. Vokey wanted to see," Maj. Groharing says. The
two lawyers, fearing for their safety, quickly left the scene.
The case against Mr. Khadr is now one of many held up by the Supreme
Court's decision to strike down the Bush administration's original
commission plan. Maj. Groharing says he expects to refile charges
after the Pentagon draws up rules and procedures implementing the new
system of military commissions, to be completed as soon as January.
The Bush administration, meanwhile, plans to build a courtroom
complex at Guantánamo by July 2007 at a cost of up to $125 million.
But lawmakers of both parties have questioned the courtroom project,
and the ultimate fate of military commission trials remains unclear.
Last week a federal judge found Guantánamo prisoners had no right to
challenge the Military Commissions Act, but the outgoing and incoming
chairmen of the Senate Judiciary Committee, Sens. Arlen Specter (R.,
Pa.) and Patrick Leahy (D., Vt.), have said they plan to revisit the
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