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All right, y'all.
Welcome back to the show.
It's Antiwar Radio.
I'm Scott Worden, and our next guest is Daphne Eviatar.
She writes for Human Rights First.
She's actually the senior associate for law and security there, which is more than a writer.
She does write for The Washington Post, and she spent last week in Communist Cuba, that is on the American side of the line, watching the show trial of the innocent, anyway, child soldier accused of something that's not even a war crime, anyway, Omar Khadr.
If I have that straight, Daphne, welcome back to the show.
Yeah, that sounds pretty accurate.
Thanks, Scott.
Happy to be here.
We've talked about this poor kid so many times, I got it where I can just wrap it all up in one mostly incoherent statement, that this kid, first of all, is a child.
Second of all, didn't even do what they say he did.
Third of all, what they say he did, even if he was guilty of it, isn't a war crime, anyway.
And the whole thing is a big farce, and it's in Communist Cuba.
Right?
I mean, that's basically the case of Omar Khadr, the 15-year-old.
That pretty much sums it up, you know?
I mean, you could fill in some details and stuff, but that pretty much sums it up.
Fill them in.
Go ahead.
Well, he was 15 years old when he was captured by U.S. forces in Afghanistan.
This is eight years ago.
This is 2002.
And it was a U.S. firefight.
The U.S. soldiers were storming a compound that he was in, and he was in this compound with some adults who his father had sent him to help work with.
And it's not clear what he was doing in that compound, but there were guns and grenades in the compound.
And the U.S. stormed it, bombed the compound, dropped two 500-pound bombs on it, and basically killed everyone inside, and the only person who was not killed was Omar Khadr, who was the 15-year-old who was there with a bunch of adults.
So he's then been accused.
In the process of all this, one U.S. soldier was killed by a grenade, and so they accused Khadr of being the one who threw the grenade, although no one actually saw him through a grenade.
And it's basically impossible to prove who threw the grenade, given that there were a lot of people in there, all of whom ended up dead, except for Khadr.
So, yeah, I mean, we don't know who threw the grenade, but it's really hard for the government to make the case that it was Omar Khadr.
Well, it must have been him, because after they tortured him, he admitted that he did it, right?
Yes, yes, that's right.
So after, you know, the amazing thing, one of the amazing things about the trial, observing both the pretrial hearing and then the beginning of the trial, was that the lawyers put in a lot of evidence about how Khadr was treated early on when he was first brought to the Bagram Air Base in Afghanistan, and he was treated for his wounds, his gunshot wounds, which, by the way, a U.S. soldier shot him twice in the back when he was unarmed.
So he was very severely wounded, in addition to being blinded and wounded by shrapnel.
So while he was still wounded and recovering, they interrogated him, and one of the interrogators testified in court that, you know, among various other tactics of trying to terrify him, I mean, that was literally the technique that the U.S. military was using at the time, it's called Sphere Up, and so they actually were trying to terrify these guys into confessing to things or giving them information.
But as is widely known, when you coerce someone into a confession, it's usually not an accurate confession, or there's no way to know whether it's accurate or not.
So in this case, he told Omar Khadr about another kid just like him who didn't cooperate, didn't give the interrogators the information they wanted to hear, and he ended up being gang-raped and killed in an American prison.
So you can imagine how a 15-year-old responds when he hears that.
So there was a lot of discussion about whether the statements he made to that interrogator and to other interrogators after that should be admissible in court.
And if you were in a regular U.S. court, that would never be admissible because that would be clearly considered coerced torture testimony.
I mean, that meets the legal definition of torture to threaten someone with death.
So that would not be admissible, but the judge in this military commission case decided, sure, let it all in.
It's admissible.
So that was the first really bad decision that was made in the case last week, and there were a series of other ones, but that was a pretty egregious one.
Yeah, it really is amazing.
But you say, though, that the so-called, quote, unquote, those are ironic quotes, jury is able at least to hear the information that this was coerced out of him?
They will get, yeah, they will hear the information that was coerced, but, you know, there's a big caveat there.
And one thing I don't think that people understand enough and hasn't really gotten enough attention about this whole military commission system is the defense doesn't have access to all of the evidence.
I mean, you have a lot of CIA interrogators who interrogated Omar Khadr and all of the other detainees that were being held in Afghanistan at the time.
And this is 2002, 2003.
This is around the time when you had the Abu Ghraib abuses in Iraq.
You had people being killed in prison, tortured and killed in Bagram.
This is that time period where the worst abuses were occurring and where the Bush administration actually said you can go ahead and use all these extreme abuses like waterboarding and all of that stuff at that time was being used.
So that's the setting under which he was interrogated.
And in other cases, that evidence has been excluded.
If someone has made a statement after being abused, tortured, that was excluded.
In this case, it was not.
He said, yeah, just let it all in, and the jury, which consists of seven military members, can decide what weight to give it.
Okay, and then tell me that this couldn't possibly be right.
The quote-unquote defense attorney, ironic quotes in this situation, stood up and said, ladies and gentlemen of the ironic quotes jury, and then he fell down and hit his head on the floor and hadn't been seen since.
What happened to him?
Yeah, this is really horrifying, I have to say.
He's actually a really good lawyer, and he's doing a really good job, and he's doing it alone.
The other side, the prosecution has four attorneys.
This guy is representing Omar Khadr alone, and there's a long kind of back story to why that is, but basically he's a military lawyer.
He's assigned to the defense, and he's really been doing the best he can.
He's a really articulate, really smart guy.
He gets up there.
He's cross-examining these witnesses.
He's bringing out just the ironies and the illegitimacies of this case, and in the middle of cross-examining one of the key government witnesses, who is showing that basically, well, I can tell you a little bit more about the evidence later, but, yeah, in the middle of the cross-examination, he just dropped.
He said to the judge, excuse me, can I take a minute, and the judge excused the jurors because clearly the lawyer didn't want the jurors to see him drop.
He obviously knew something was about to happen, and then he just passed out on the floor, and he's like 6'4", 6'5", so it was pretty amazing.
It turns out he's going to be okay.
He was having complications from gallbladder surgery that he had had several weeks before, and he was medevaced out and taken to a hospital in Washington, but it was very disturbing to see, and certainly the stress of representing this kid in this trial, which he thinks is totally illegitimate, didn't help his medical condition at all.
What an important point right there, that just because this man is willing to go through the motions of doing, I mean, I don't mean just in a least work sense, but I mean just because he's willing to represent this kid in this bogus court does not mean that he's conceding the legitimacy of it.
It means that he's doing the best he can for a kid that needs defending in the situation that he's in, but it's like paying your taxes.
That doesn't mean you support the government.
It means you have to, or they'll put you in jail.
And he's made a lot of statements outside the courtroom saying that he doesn't support this process, that it's completely unfair to his client, that his client shouldn't be on trial, that his client was a child, that it's a travesty for the United States government trying a child soldier in the military commission for war crimes that are not even really war crimes, as you said.
I mean, you know, it's amazing because the United States has actually signed on to an international protocol that objects to the use of child soldiers around the world and calls for their rehabilitation, and we fund efforts to rehabilitate child soldiers in Sierra Leone, for example.
But then in this case, when there was a child soldier in Afghanistan, we've put him on trial.
It's an amazing contradiction.
I'm shocked by it.
Is it hyperbole or is it actually the case that really this is a war crime, that the international law that America not just is a signatory to, but demands that the rest of the world obey at all times that threat of, you know, J-Dam bomb, bans this kind of thing, making up an ad hoc law and an ad hoc military trial system for putting child soldiers on trial, right?
I mean, isn't this illegal?
Well, you know, it's an interesting thing.
International law is kind of fussy in that way.
I'm sorry.
Hold it there.
I'll let you answer after the break.
They're hard breaks.
I can't put them on.
It's Daphne Eviatar from Human Rights First.
I'm talking about Omar Khadr.
Google that up and read about that.
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All right, y'all.
Welcome back to the show.
It's Antiwar Radio.
I'm Scott Ward and I'm talking with Daphne Eviatar.
She's from Human Rights First.
You can find her articles cross-posted as well over at the Huffington Post.
And thank goodness for that.
Get some eyeballs on these articles over there.
The web address for Human Rights First is simply humanrightsfirst.org.
Now, Daphne, I was asking you whether a war crime is being perpetrated against Omar Khadr.
And I'm not talking about when the American soldiers shot the unarmed minor in the back twice.
Never mind that, right?
But what about this sham trial that's being put on, as the defense attorney calls it?
Or, you know, I don't know his exact words, but this illegitimate process.
What about this as a war crime against this kid?
You know, I don't think you can technically call it a war crime, but you can certainly say it's not a legitimate trial.
I mean, are we in violation?
Is the Obama administration in violation of parts of the Geneva Convention here or any other of those treaties?
Well, actually, our view is that the whole military commission is in violation of the Geneva Convention because you're supposed to try war criminals in regularly constituted courts.
And so this is not a regularly constituted court.
So actually, I mean, when you're not talking about POWs, which the administration has said these are not, so these are not protected soldiers.
These are what they call – they're basically armed civilians.
It's considered a non-international armed conflict, which means you're not fighting a foreign country.
You're fighting a foreign organization that doesn't wear uniforms.
So they're basically like armed civilians, and they should be treated – they should be tried in just regular courts, not in a specially created war crimes commission, which is supposed to be only used for traditional war crimes, which is when you're fighting a foreign state with actual soldiers.
And then what's actually a war crime is if that foreign state is targeting civilians, not if they're targeting your own soldiers, because in a war you target each other's soldiers.
That's legitimate, right?
So in this case, there's just no basis for accusing him of murder in violation of the laws of war because even if he did what they say he did, he killed a U.S. soldier who was attacking him.
So that's not a violation of the laws of war.
That's what happens in war.
Well, now we're signatories to the Convention Against Torture, and there are federal laws enforcing it, right?
Right.
So doesn't that Convention Against Torture ban the use of tortured, coerced evidence against people?
Well, the military commissions themselves ban the use of tortured, coerced evidence against people.
The problem here, or the way the judge got around that here, is by saying, well, the government isn't introducing statements that he made directly to the guy who tortured him.
They're introducing statements he made to other interrogators.
Now, the defense argument is, well, look, once you tell a kid that other kids just like him are being gang-raped and killed in prison, if they don't give the information that the interrogator wants to hear, you can't then separate the next interrogator and act as if the next interrogator is part of the same U.S. Army, it's part of the same U.S. military, and the prisoner sees all of these interrogators as the same thing.
They're all part of this same force that is imprisoning him.
Well, but didn't one CIA officer even say, yeah, he was beaten and chained to a wall and all kinds of things, not just verbally threatened?
Yeah.
I mean, again, I think what I was going to say to you before the break is there's difficulties.
One of the difficulties in the case is that since a lot of these interrogators are CIA and even military ones who are stationed abroad, they don't have to come and testify in court.
So any of them that were abusive to him, they don't have to, you know, the defense can request that they come and testify about what they did to Omar Khadr, but they don't have to come.
So it was really hard for the defense to get a lot of people to even establish what kind of abuse Omar Khadr was subjected to.
They were able to get this one interrogator, two interrogators to come in and talk about the threat and that he was chained to a cage.
And yes, he was mistreated, but a lot of the more severe abuse that he's claimed, they can't really prove because they can't force any of these interrogators to testify and the government won't require them to testify.
So any defense is kind of hamstrung by these rules.
This is all the information is in the property of the government.
The government has control over all that information.
This is so funny that this isn't even a political issue at all.
The fact that here we've had, you know, there were originally 700 and something more than 750 held there.
Hundreds and hundreds and hundreds have been released.
Everybody, you know, from Colin Powell's right hand man all the way down, agreed that the whole thing was a sham in the first place.
The public record, according to Washington Post, you know, the official version of history is that so far they got the cook and the driver and a guy, an Australian, who was maybe friends with the Taliban and never did anything to America, who they gave time served and made him promise not to describe his torture as a condition of his release.
And now they're going after a 15 year old kid and nobody even cares.
This whole thing is ridiculous.
It's going on in Cuba for crying out loud.
You know, I want a regime change.
It's amazing.
I mean, and honestly, most of them, most of the press that was down there covering the trial are foreign press.
A lot of Canadian press.
Canada cares a lot more because Omar Khadr is Canadian.
He was born and raised in Canada until he was about nine or ten years old.
So they care much more than the Americans do, even though it's the American government that's putting this kid on trial.
And yeah, it is pretty amazing.
All right.
Well, now, I think for the rest of this time, I ought to just be quiet and let you tell me things that you learn, that you want to talk about, that you think are important about your time at Guantanamo, what you saw in this kid's trial that I don't know what to ask you about.
But I know that you noticed a lot of important things when you were down there.
So here's Daphne Eviatar's free reign time on the show.
Wow.
Thanks.
You know, one thing I want to point out was I didn't have a chance to write about just because the Internet connection went out for a full day.
We didn't have any ability to write down there for a day.
Well, I'm sure that was an accident.
Yeah, sure.
It was totally an accident.
And so were all of the absurd restrictions they put on who we can talk to and where we can walk on the military base.
But without going into that, just the point you made about how everyone from Colin Powell to, you know, John McCain, George Bush, I mean, everybody said Guantanamo needs to be closed.
It's a bad idea.
It's hurting our national security.
So when they were picking jurors in this case, the lawyers asked questions to the jurors to kind of get a sense of who they are.
And then they can make objections and try to get rid of some of the ones on the jury if they don't like.
So they would ask the jurors, you know, does anyone have an opinion about Guantanamo Bay, whether it should be open or closed?
No one had an opinion.
No one.
We started out with 15 military officers.
Over time, two of them admitted that they had an opinion.
They thought that maybe it should be closed.
One of them said, well, you know, I agree with the president of the United States that I think it's probably not a good idea to keep it open.
He was the first one the government struck from the jury.
Anyone who had an opinion, who admitted that they had an opinion about Guantanamo Bay, not even about the military commissions, but just agreed with the president of the United States that it should be closed because it's not a good idea as a matter of national security, agree with John McCain and Colin Powell and all of those military generals that have come out and said that.
They got struck from the jury.
I mean, that was a pretty amazing thing.
And the vast majority of the military jurors, and, you know, they're very upright people.
You know, I get the sense that they're trying to do their best, but they had no opinion about U.S. foreign policy.
They had no opinion about trying a child soldier.
They seemed completely unaware of the fact that the United States is signatory to a convention that says you should rehabilitate child soldiers, not try them and not convict them.
You should rehabilitate them.
None of them were aware of that.
And instead they said, yeah, 15-year-olds should be tried the same way that adults should be tried for crimes.
I don't have any problem with that.
It was amazing to me the way that the jurors were sort of deliberately ignorant about what was going on.
And I don't know if that's because the military encourages them to be ignorant about what's going on or if that's just their own choice.
But the ones that expressed any knowledge or understanding of Guantanamo Bay and its history of the issue of child soldiers were struck from the jury by the government.
Amazing.
Yeah, well, I hope that you do get a chance to write about that part of it because that needs to be in the historical record.
I don't know if anybody at McClatchy or anywhere else covered that part.
But there has been a lot of really good journalism as far as you guys can get away with.
In a way, it's almost like reading these newspaper stories.
It ought to be like during Desert Storm where it says approved by military censors at the bottom of the screen or something.
Yeah, they have to approve a lot of stuff.
Tell me the parts that they don't want us to know.
Well, you know, one thing I did mention in one of my posts that I thought was pretty shocking and I hadn't heard this before was you ask the question of who's really committing a war crime.
And it struck me when I was listening to the testimony of one of the government lawyers, he was describing the firefight on that day in 2002 in Afghanistan.
And he went in there armed with various kinds of weapons.
I don't remember what kind they were, but Glock and like whatever it is.
I don't know.
I don't really know military terms.
But a lot of really serious firepower.
And he shot dead one guy who was armed with an AK-47.
And then he saw Omar Khadr sitting on the ground, his back to him in like a dusty light blue tunic, not moving, no weapons anywhere near him.
And he shot him twice in the back.
I thought that was pretty amazing.
You're not supposed to shoot civilians in combat unless they are directly participating in hostilities.
And when someone's not armed and they have their back to you, they're not directly participating in hostilities.
I thought that was a pretty amazing thing that really raises the question of who's committing the war crimes here.
Yeah, I regret saying that in such a sarcastic offhand way.
I mean, the kids should have been set free that day.
Kid, get out of here.
You know, I think it was Andy Worthington on the show said, well, you know, in Canada, the government up there really doesn't like his dad because his dad is some al-Qaeda-loving radical type.
And so politically, the whole family is kind of verboten or whatever.
I don't know all those smart words, but you know what I mean.
You know, it would be like if he was the son of a Black Panther or something.
They don't want him around.
That's exactly what I heard a lot of from people who are from Canada is that this is a big problem.
Canada did not want him to be repatriated to Canada because his father is or was, his father's killed, but his father was this notorious al-Qaeda financier.
And his mother was also kind of an al-Qaeda supporter.
He comes from kind of a crazy family, an extremist family.
I think there were like six or seven kids in the family.
He just happens to be one of the kids, right?
His father sent him to Afghanistan, took him to Afghanistan, and then made him work for some of his friends.
When he was a kid, you know, the fact that whether it's Canada or the United States, it's holding against him what his father did, who's now dead, is really absurd.
And, again, that's just a completely inappropriate use of the military justice system.
So, I mean, that was just another thing that just came out repeatedly.
There's no evidence that this guy had any desire to be where he was or to participate in any of these activities.
He was completely abused in prison.
He was completely taken advantage of.
And it's just shocking to me that this is who they would choose to prosecute.
You know, the other thing that's really worth mentioning, and I'm in the process right now of updating a report that Human Rights First did a few years ago called Command's Responsibility, where we tracked all the deaths in detention in U.S. custody in Afghanistan and Iraq.
And, you know, we've been finding a bunch more deaths, many of which have not been reported.
But none of those people, or almost none of those people, have been held responsible.
And we're talking about prison guards, U.S. military prison guards, who will shoot someone in the head who's unarmed, a civilian, or who will, you know, notoriously there were a couple of notorious cases of people being beaten to death at the Bagram prison.
At most, somebody was sentenced to maybe four months in prison, and we don't even know if they actually served it.
So, none of those people were actually tried for war crimes.
And none of the officers who ordered them to do it, who told them explicitly, Neva doesn't apply, go ahead and rough them up, get them ready for the CIA when they come.
None of them have been held accountable.
And those are clear war crimes.
There's no question that you're not supposed to kill a civilian.
How many people, you said, first of all, please send me the link to that.
I want to read that report, and then I can interview you all about that, too.
But what's the raw number that you guys have so far of people who were tortured to death in custody, Daphne?
You know, I have to, we're still figuring it out.
Can you give me a ballpark?
I mean, Larry Wilkerson, the same guy who said that Guantanamo was obviously just a PR stunt and that virtually all of these people are innocent except the ones that were brought there in 2006.
Right.
He's the same guy that said that he was aware of at least 100, and I think Barry McCaffrey said the same thing.
Do you know?
Right.
Our earlier report found at least 100 who were killed in U.S. custody.
I'm in the process of updating it.
Probably another 50 or so more, but I can't say that they were all the result of torture or beatings because the United States government isn't releasing a lot of the information.
They're not releasing the autopsy reports.
So a lot of what we're trying to figure out is what do we know and what are the questions that we don't know.
I think the big thing about this is that the U.S. government, even despite the fact that we know a lot of, certainly some people were tortured to death in those prisons in the past, even under the Obama administration, they're releasing less and less information.
So you've got no information about deaths in custody in Afghanistan, zero.
That's pretty amazing.
They used to release some of that information.
All right.
Well, Daphne, I'm sorry.
We're over time here, and I've got to cut you off.
But I so appreciate all of your efforts and your time on the show today.
It's just great.
And what would we do without you?
Without you, there'd be much less light about what's going on down there in Guantanamo.
It's one of the most important issues in the world right now.
So you're a hero, and I appreciate it.
Wow.
Thanks so much for your interest, guys.
It's a great show.
