On February 22, 2006, I had the privilege of speaking with Professor Rick Wilson of American University's Washington College of Law, one of the civilian attorneys representing Omar Khadr, a 19-year old Canadian national now detained at Camp 4, Guantanamo Bay, Cuba. Mr. Khadr was first detained a few months before his 16th birthday, and transferred to Guantanamo Bay shortly after his 16th birthday, and is, as far as anyone is aware, currently the youngest detainee still held there. Mr. Khadr is one of a handful (10 are charged) of detainees scheduled to be tried in military commissions, with his next proceeding scheduled for the first week of April. The following reflect my interview notes, as corrected where appropriate by Professor Wilson.
The Talking Dog: I always ask this question first (because I happened to be across the street from the WTC) and the answer is always interesting (others I've talked to were in downtown Manhattan or downtown Washington, and in one case, had a loved on an airplane heading to New York). Where were you on 9-11? If it's not privileged or classified, and if you can tell me, where was your client Omar Khadr?
Rick Wilson: I was at the law school, in a supervisory session with two students discussing their cases. We came out of the room, and there was total silence. Everyone was riveted to television sets. We saw the towers fall and started watching just as the second plane had just hit.
The Talking Dog: The law school, of course, is in Washington, D.C.. When did you see or hear about the Pentagon being hit?
Rick Wilson: The Pentagon was hit just a bit later. We are almost on top of a hill overlooking the City of Washington. You can't see the Pentagon itself from the campus, but in the distance, we could certainly see smoke, and planes and helicopter activity, especially from the cafeteria on the top floor of the building. I remember feeling at that moment that everything in human rights and everything in my law practice and teaching was going to change. It took longer than I thought it would, but it effects every aspect of my clinical practice.
The Talking Dog: Well, let me ask you about that. How, besides your representation of Mr. Khadr, has your practice been effected?
Rick Wilson: For one thing, about half our cases in the Human Rights Clinic are in the context of domestic political asylum. The other half covers a wide range of human rights issues, of which Omar's case is one. As to immigration, you know you have problems when even the Attorney General of the United States Alberto Gonazales has to direct immigration judges to curb their rudeness and inappropriate behavior in handling their immigration cases. Apparently, the immigration judges feel it is now permissible to abuse immigrants-- the attitude is that they could all be terrorists, even a 17-year old female Costa Rican domestic violence victim arrested-- and jailed-- for the crime of entering on a false visa-- the best example of something that never would have happened earlier. Fear of “the other” is now dominant.
The Talking Dog: Have you been involved in representing any of the Middle Easterners who were detained on immigration violations after September 11th?
Rick Wilson: I have not, though my co-counsel on Omar's case [Professor] Muneer [Ahmad] has been. He has represented a Canadian of Middle Eastern origin detained in immigration proceedings, on a pro bono basis. We also have a clientele mostly from Africa and South Asia rather than the Middle East, and some Latin Americans of course. I will say that since September 11th we have lost more asylum cases than ever before-- we lose on cases when an immigration judge just concludes that false or missing identification papers presented by the asylum seeker are enough to mean they lose the case, even though those same false or missing papers are a hallmark of the desperate measures necessary to escape from persecution in the home country -- the judges insist that they don't want to be the one responsible for admitting the next 9-11 bomber. It's a very difficult situation.
As to Omar, and where he was on September 11th, he and his family were in Kabul, Afghanistan. As of September 11, 2001 he was 14; his birthday is in late September, I believe, I think he turned 15 later that September. As the war rhetoric got louder here about attacking the Taliban, Omar's family decided to leave Kabul. His father ran orphanages between Kabul and Pakistan, so they headed that way towards the Pakistani border. Omar has a large family. His family is infamous in Canada. There have been all manner of allegations against his father and his connections with bin Laden and Al Qaeda, though none of these claims have ever been substantiated in a court of law....
The Talking Dog: I had read that Omar's mother has said that Osama bin Laden was a guest at her wedding...
Rick Wilson: Yes, no question that there has been some history of family relationships with bin Laden, all of which took place when Omar was quite young and more concerned with his playmates than politics. Omar's parents have been linked to a lot of different people, though a lot of the contact dates back to the early days of bin Laden in Afghanistan when bin Laden was at least tolerated by the United States for helping support the Mujahadeen against the Soviet Union. But that's the family. Certainly, Omar has been victimized as a result of the family reputation, including some of the grounds for his selection for trial by a military commission.
The Talking Dog: I understand that your client's military commission trial has been adjourned until some point in April. What is the next scheduled procedural stage there? Is there any chance that the outcome of the Hamdan case at the Supreme Court or any of the proceedings at the D.C. Circuit will result in delaying the military commission case still further, or possibly derailing it altogether? Has a military lawyer been appointed for him?
Rick Wilson: Yes, he recently got the military lawyer he had wanted, Marine Corps Lieutenant Colonel Colby Vokey, out of Camp Pendleton, California. Col. Vokey just made a trip to Guantanamo with me. We went down Super Bowl weekend, and from Saturday morning to Monday morning, due to the vagaries of Guantanamo, we weren't permitted to see Omar. I had to leave Guantanamo without being able to get in at all. Vokey stayed two more days, and maybe got to see him for an hour, hour and a half on his last day, just "hello, good-bye." It is another testimony to the vagaries of Guantanamo that even a high ranking military officer has to struggle-- he was there five days. As far as proceedings, the first week of April is the next scheduled session. Colonel Vokey is lead counsel now-- he is a very capable defense lawyer.
The Talking Dog: Might a delay in the Commission proceedings allow the Hamdan case to be decided in the interim, and does it look like Graham Levin issues will also be covered by it?
Rick Wilson Hamdan is scheduled for oral argument on March 28th. The case of Al Odah, in which we are also included in a large group of detainees’ appeals, is scheduled for argument in the D.C. Circuit on March 22nd. We had a district court decision on the Judge Green side, which found that the detainees do have rights to due process and other constitutional and habeas protections in the US court, while Judge Leon found the opposite - those are the two cases consolidated as Al Odah on appeal. At the Court’s direction, we did indeed file supplemental briefs based on Graham Levin relying on the suspension clause of the constitution and the statute's own provisions as to not applying retroactively to pending cases. As to Hamdan itself, the Supreme Court has said it intends to take up some issues of detainee treatment and Graham Levin during argument, and supposedly, decide whether to deal with it all at once after they hear arguments. We would expect Hamdan to be decided by the very end of June. We have no idea when the Al Odah appeal will be decided. But to answer your question, both cases will likely have a profound impact on Omar's detention and the military commissions, though we don't know for certain. We don't believe that our judge, Judge Bates, would be friendly to action before him that would slow up the commission process. We may well have a more receptive court at least as to scheduling matters with the commission itself.
The Talking Dog: My understanding is that Omar Khadr's case tracks that of the detainee representing himself...?
Rick Wilson: Omar's case was originally scheduled on the same date as that of Al Bahlul. But now the cases seem to be taking on lives of their own and going on different tracks. The prosecution team for the commissions is the same overall, with individual prosecution teams for each case; the judges on each case are different.
The Talking Dog: Let me turn to the specifics of the commission or military tribunal case. My understanding is that American forces had bombed a private home enclosed in by a compound wall in Afghanistan; Omar Khadr somehow survived the bombing,and threw a hand grenade killing an American soldier. At the time of this incident, he was 15 years old. I guess two issues emerge for me, and I'd like you to discuss each. One is the one you often raise-- his standing as a juvenile, and what American law is and international law is (and whether we are a party to such international law) regarding juveniles in a combat situation, international law, and what the supposed justification is for not treating Omar as a "juvenile" combatant if there is such a word. The other is more basic: doesn't killing a soldier in a combat situation invest Omar with a belligerent immunity? In other words, shouldn't he be a straight prisoner of war (or if this is a "war crime" shouldn't he be tried in civilian courts like John Walker Lindh)? Hypothetically, suppose Omar had been standing at the fence of an American military base in the United States and tossed a grenade that killed a soldier: what would happen to him, i.e., what authority would detain him, charge him, try him, etc.?
Rick Wilson: Well, there is an easy answer, and a complicated answer! You have raised a number of points. So let me start this way. There are certainly kids of military dependents on military facilities and reservations, and they get in trouble for a variety of conduct, and there are a range of responses, sorted out between military and civilian courts. The military will assume jurisdiction over minors for very minor infractions. For a major juvenile infraction, it would be referred to the civil courts in the federal system-- where the accused would still be treated as a juvenile, but with all due process protections that juveniles get. Indeed, while such a juvenile might be susceptible to be tried as an adult, a transfer order would have to be requested, and there are strict rules governing all parts of the process of transfer from juvenile to adult jurisdiction, including the possibility that transfer is rejected as inappropriate. There are of course, no analogs at all in the case of the Guantanamo military commissions, where the government has determined that it does not recognize juvenile status or have a minimum age.
As far as the complicated answer, the questions you raise, including possible belligerent privilege/immunity, or whether Omar is properly a prisoner of war, or his proper status as a juvenile-- are key questions to be litigated. Nothing is clear on this.
History tells us some very definite things about children affected by armed conflict: since Nuremberg, there has never been a trial of a juvenile-- that is someone under 18-- for war crimes. The United States has a treaty-- the so-called “Child Soldier” Protocol to the Convention on the Rights of the Child – that governs this situation. The United States ratified the Protocol but not the Convention on the Rights of the Child itself, which is the most widely ratified human rights treaty in the world, but the US is one of two countries that have not, the other being Somalia. The protocol was designed to address issues of what happens when a country captures a child combatant. The goal is to reintegrate the child into society somehow-- prosecution and punishment are not the answer under the protocol.
Again, these issues haven't been argued; the government, of course, has a different view.
The Talking Dog: There hasn't exactly been anywhere to argue these points, has there?
Rick Wilson: That's certainly true. The only issue really litigated in Omar’s case has been the issue of his treatment while detained and, of course, the legality of the detention itself, which is still pending. The combat situation, the fact that he appeared to be under fire in a combat situation against a military entity, not with his family, that is an issue that has not been discussed publicly, and I can’t today. However, we welcome a chance to argue it. Again, even if Omar was "unprivileged" [by belligerent immunity] for the war crimes, war crimes do not involve routine actions against a soldier in a combat situation. We don't accept that on its face... this really does drastically alter the laws of war.
The Talking Dog: Couldn't this blow back on our soldiers,
increasing the risk that they will be tried for war crimes committed in a combat situation?
Rick Wilson: No question this would increase those risks-- certainly to soldiers captured out of uniform, if nothing else.
The Talking Dog: On that note, my understanding is that a decision was made not to appeal a judicial decision denying an injunction against mistreating Omar (including, inter alia, his use as a "human mop," isolation and other mistreatments). Without disclosing anything of a privileged or classified nature, can you tell me in general terms what went into that decision, and why you thought an appellate court would not be sympathetic to the plight of someone abused by the military in derogation of our own laws and military regulations? Am I correct that this was essentially just a calculation that an appeals court was not likely to be sympathetic, and you didn't want to risk an adverse higher court ruling?
Rick Wilson: There is no question that our motivation was concern for what we saw as a very likely adverse decision from a higher court, simply because appellate courts tend to favor upholding the lower court decision, and we lost there. If we believed we had a viable chance for a reversal for Omar's case, we would have taken an appeal. But Judge Bates was very careful in his opinion, noting that even if he accepted our allegations of abuse as true, he still wouldn't tell the military how to conduct itself. For one thing, because of his family’s history and the facts of his capture, our client may not have been all that sympathetic (as Guantanamo detainees go) in the appellate court, which may have some effect on his treatment in the D.C. District Court and in other courts. The nature of the detainees and the abuse of detainees in general is becoming better documented-- we now have the National Journal report, and the Seton Hall study, documenting detainees' profiles, noting that 80-90% of them were not captured anywhere near a battlefield, but by the Northern Alliance or by Pakistan. Joe Margulies has said in his view that Gitmo is a response to the massive failure of intelligence around 9/11, and I think he’s right. In any event, Guantanamo is an aberration-- it is a gigantic albatross around the neck of our military and our government.
The Talking Dog: Can you summarize (more than I have in the last question plus, say food and sleep deprivation and isolation) what Omar's allegations of abusive treatment are? How would you respond to a reference to "the Manchester Document"-- that Al Qaeda supposedly has a training manual that all captured are supposed to claim they are being tortured? Is Omar participating in the hunger strike?
Rick Wilson: The government's statements that detainees are trained to claim torture is ludicrous on its face, especially with a kid of Omar’s age. Actually, one can make exactly the same argument in reverse, because there is an Army interrogation manual that states that, if asked about torture and whether you have engaged in it, deny, deny, deny. Denying it doesn't mean the abuse didn't happen. Certainly, Omar suffered sleep deprivation, food denial and other abuse as described and catalogued in Judge Bates' decision. Indeed, the case of "O.K. v. Bush" from July 2005 involves evading the ultimate question and accepting our facts, but refusing to grant an injunction because the court was ostensibly asking "but what have they done lately"-- the issue being likely future misconduct. The Administration hasn't actually modified its policy permitting aggressive interrogations although, officially, it's not supposed to be torturing anyone, and the President tells us, repeatedly, “we do not torture.”
Omar is not in the current hunger strike, he was in the prior one-- last July he lost 30 lbs. He was transferred from Camp 5-- where he was kept for more than a year with no human contact but his interrogators-- and moved to Camp 4, the "lightest": of the camps. They kept this teenage kid in total isolation for over a year. On its face, Omar's treatment certainly suggests "torture", or at the least, cruel, inhuman and degrading treatment, under either international law or Senator McCain's definition.
The Talking Dog: Has Omar gone through a Combatant Status Review Tribunal, and if so, what has it "concluded"? Has anything else in the nature of charges against Omar been disclosed to you? Has the nature of the evidence to be presented against him been disclosed to you? Do you think you (or we) will larn anything new about Omar's case-- or other detainees-- from the production of information from the Associated Press Freedom of Information Law case?
Rick Wilson: The CSRT allegations and conclusions, classified and public parts, appear to be parallel, and somewhat consistent as to what Omar is charged with, to wit, the basis for asserting that he is an enemy combatant is roughly the same claims made about him in the military commission, which we have discussed. I don't know what new material will come out from the A.P. case, but if nothing else, we should at least learn something just from learning the names of the other detainees.
The Talking Dog: My understanding is that Omar's father, a purported Al Qaeda financier was killed in a shoot-out in another area of Afghanistan and after Omar’s capture, a shoot out in which his brother was seriously injured. I understand another of Omar's brothers, Abdurahman, was himself a prisoner at Guantanamo, but has since been released. My understanding (from what I've read) is that Abdurahman Khadr claims he was sent to Bosnia and Herzegovina after his release, and was expected to spy on possible terrorists there and in the Balkans. Can you comment on one of my own theory, i.e., that Omar may be, essentially, being held as some kind of security for his brother Abdurahman's continued cooperation, or whether the treatment of the two is in any way related, or if there is any rhyme or reason to any of this (and if you can't comment on this, please say so)?
Rick Wilson: You should know that there are two brothers of relevance--Abdullah the oldest, who I'll discuss shortly, and Abdurahman. As to Abdurahman, there is no suggestion of a connection between the two brothers' cases, other than they evidently shouted to each other while imprisoned inside of Guantanamo. Supposedly, Abdurahman has claimed to be a CIA mole, and as such he was sent to Bosnia. He is now in Toronto, where he seems to be something of a pariah both in the Moslem community, for his claims of CIA alignment, and with the community in general, for his alleged ties to terrorists. Needless to say, he is struggling. He enjoys the limelight, but is of, shall we say, marginal credibility.
Omar's oldest brother Abdullah was just returned to Canada after 15 months in detention in Pakistan. He was released as a result of joint efforts by the Royal Canadian Mounties and by U.S. authorities; he was released briefly, to live with his family, but is now in the custody of the Canadians, where he awaits extradition and possible trial in the United States, for his alleged involvement in supplying weapons to Al Qaeda in Afghanistan. He is represented by the family's Canadian lawyer, Dennis Edney of Alberta.
The Talking Dog Is Abdullah the brother who was injured in the shootout in Pakistan in which their father was killed?
Rick Wilson: No, that's his younger brother Kareem, who is confined to a wheel chair, in and out of the hospital in Toronto. The brothers have quite a history, and frankly, the notoriety of Omar's family, as I have said, has not been helpful to him.
But the case of the brothers is demonstrative of just how aberrational Guantanamo is. Abdullah's case is proceeding through normal legal procedures with due process at every step, Kareem was sent home despite his apparent support for the father, apparently because of his youth, whereas Omar is incarcerated with no due process at all, and now faces trial and a possible life sentence by an extremely questionable military commission..
The Talking Dog: Is there anything else either I, my readers, or the American and Canadian general public need to know about this case, or any questions that I should have asked you but didn't?
Rick Wilson: The thing that surprised me the most has been the Canadian government's inaction in protecting their child citizen.
The Talking Dog: Well, Canada did send interrogators to Cuba talk to Omar...
Rick Wilson: Yes, they did. I was surprised by the Canadian government's hostility to Omar - not just inaction but active participation in his interrogation with their own intelligence services-- he a citizen of their country. The United Kingdom, Germany, Italy and France have of course, been saying that Guantanamo should be closed. The Canadians have been conspicuously silent. Just remarkable. They have kept a low profile. Two of their citizens were detained at Guantanamo (including Omar's brother), and now one has been held for years. Some nations, most prominently Great Britain, have raised a ruckus about their nationals, and gotten them released. Others, like Australia, have demanded more fair treatment and special conditions for trial by military commission of their citizens. Canada has been conspicuously silent.
Certainly, the Khadrs are not the most popular of families in Canada. But this is all remarkable as a betrayal of citizenship-- an unwillingness to go to bat for their own national. Following the recent UN report, the Toronto Star issued an editorial stating that Omar should be released-- he is, after all, a child, and should be sent home (unsurprisingly, we wholeheartedly agree with the Toronto Star's editorial). But the Canadian government has shown no movement toward any kind of a change in policy on this.
The Talking Dog: Professor Wilson, thank you for being so generous with your time, and I'm sure my readers will find this most interesting and informative.
Readers may also find talking dog blog interviews with attorneys Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing other Guantanamo detainees) and with attorneys Donna Newman and Andrew Patel (representing "unlawful combatant" Jose Padilila) to be of interest.