AIDP Blog

Iran on Sunday confirmed it will attend this week’s conference on Iraq in the Egyptian resort of Sharm el-Sheik. Iran’s delegation will be headed by Iran’s foreign minister. There is a strong possibility of bilateral talks with the United States. U.S. Secretary of State Condolezza Rice is also attending. All of Iraq’s other neighbors as well as Egypt, Bahrain and representatives of the big five U.N. Security Council members will be there. President Bush has indicated that Rice might have bilateral conversations at the conference with Iraq in an interview on PBS’s “The Charlie rose Show.” Shiites now lead the Iraqi government and Iran has considerable influence among the Shiite parties in Iraq.
This may be an opening for talks among the attendees which could lead to a lessening of the violence in Iraq. President Bush has stated on PBS that Rice could have bilateral conversations at the conference. The United States cut diplomatic ties with Iran in 1979. Any beginning to reduce the violence in Iraq must be applauded and encouraged. Sources: BBC & CNN news.

Over at National Security Advisors Professor Tung Yin comments on the governments efforts to restrict lawyer access to detainees. He states:

I’m guessing that the “conduit to the news media” is a reference to disbarred criminal defense lawyer Lynne Stewart, who was convicted of providing material support to designated foreign terrorist organizations by making her client, the Blind Shiekh, “available” to his followers via a translator.

I made a similar suggestion in a post here. Professor Yin goes on further to state:

I’m curious, however, whether the government believes that any of the detainee lawyers are engaging in conduct even remotely comparable to Stewart’s. My sense is that most of the lawyers involved in these cases work for large law firms such as Jenner & Block, Perkins Coie, and others, and I’d be highly surprised if they were anything but circumspect.

Despite the parallels drawn by Professor Yin and I the governments allegations are in fact much more direct. According to this Jurist report:

The Justice Department said that the new restrictions are necessary because lawyers have “caused unrest” at Guantanamo, such as hunger strikes and other protests, have provided detainees with information about events outside the prison, and have provided media outlets information from detainees.

Military officials seized legal papers from Australian detainee David Hicks as part of its investigation into several detainee suicides at Guantanamo last year, and the DOJ later told a US court that paper provided by lawyers may have aided the suicide plot. The papers seized include notes marked “privileged attorney-client material” and suggest that detainees were misusing the attorney-client communication system.

The arguments made by the government can be found in the Bismullah-Parhat brief posted at SCOTUS Blog.

According to a DoD Press Release, Abd al-Hadi al-Iraqi, a high level member of al Qaida was transferred from CIA custody to Guantanamo Bay today.

al-Iraqi was one of al-Qaida’s highest-ranking and experienced senior operatives at the time of his detention. Abd al-Hadi associated with leaders of extremist groups allied with al-Qaida in Afghanistan and Pakistan, including the Taliban. Abd al-Hadi worked directly with the Taliban to determine responsibility and lines of communication between Taliban and al-Qaida leaders in Afghanistan, specifically with regard to the targeting of U.S. Forces. More details of his background and activities are available at http://www.defenselink.mil/news/Apr2007/d20070427hvd.pdf . 

This development, along with the transfer of a detainee picked up in hostilities in Somalia suggests that while there are efforts to shut down GITMO operations –at least as they relate to those individuals picked up in and around Afghanistan in 2002-2003– the facility still serves a useful purpose for high level detainees picked up in more recent engagements.

Hat Tip Bobby Chesney

by Dorean Marguerite Koenig

Two children, teenagers, are subjected to the horrors of war and the abuse of recruitment into war. It is instructive to compare rehabilitation and reintegration for one with what happened to the other. Both of them, after they were recruited, were encouraged, if not forced, to participate in heinous activities in wars they did not create.
Omar Ahmed Khadr was a fifteen-year-old child “soldier” in Afghanistan when he was captured in 2002 and sent to Guantanamo. According to his attorneys, Khadr, a Canadian, has been held at Guantanamo “in conditions equal to or worse than those given to convicted adult criminals” (National Post, Canada, April 25, 2007). Khadr is being charged with, among other charges, the murder of Sgt. 1st Class Christopher Speer as a result of a firefight on July 27, 2002. Khadr has been held at Guananamo for five years without trial and, apparently, without any recognition of his being a child, let alone being recruited into a war. Greg McNeal writes (April 24, 2007) on the upcoming trial of Khadr at Guantanamo by a Military Commission. McNeal emphasizes that Khadr is an adult now; that he committed serious terrorist acts as a child and that he “comes from a dedicated al Qaeda family.”
Michael Kelly wrote (April 6, 2007) that the already poor conditions at Guanatamo are worsening. He quoted from reports that “the majority [are] held in solitary confinement, and the often harsh and inhumane conditions at the camp are pushing people to the edge.” A new prison facility is said to have “created even harsher and apparently more permanent conditions of extreme isolation and sensory deprivation”. Detainees are reportedly confined to windowless cells for 22 hours a day, only allowed to exercise at night and can go for days without seeing daylight. What would such conditions do to an impressionable youth?
However child abuse occurs, the result is the same for the youths – children committing horrendous acts, using lethal weapons, in a war. Comparing the outcome of being a recruit for the then 15-year-old Omar Khadr in Afghanistan and for the then13-year-old Ishmael Beah in Sierra Leone is instructive, although only the comparison of two children recruited for war.
Omar Khadr has been imprisoned as an adult, with adults, during his five years in U.S. custody, held under harsh conditions and without having the care a child, especially a teen-ager, needs. Khadr is suggested by McNeal as being as dedicated a terrorist today as he was in 2002. For a different outcome, we need only read Ishael Ishmael Beah’s story, beginning when he was 13-years-old, as he tells it in A Long Way Gone: Memoirs of a Boy Soldier. The acts of brutality he committed should have, by all acounts – including his own, left him unable to ever contribute to society. But, here we have, as outcome, a talented writer and productive member of society, reprieved and brought to the United States after being a child soldier where he admits to killing many people. After he was found, he was treated humanely as the teen-ager he was, and given the help and education he needed.
According to Amnesty International, there may be as many as 500,000 child soldiers recruited by governmental and non-governmental entities alike. No one really knows how many. Research indicates 300,000 at least. The Convention on the Rights of the Child (CRC) is a treaty that has been ratified by all 191 member states of the United Nations except the United States and Somalia. It is so widely accepted that it has been described as “international customary law.” The CRC states, Art. 3(1), “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” (Art.20(1)) states: “A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.”
None of this, apparently, was provided to Khadr.

Lynne Stewart, who was convicted in 2005 for providing material support to terrorists was disbarred Tuesday.  Stewart attempted to voluntarily resign in November 2006, but the NY Supreme Court’s appellate division denied her request. 

According to the report:  

“Stewart was convicted of one count each of conspiracy to defraud the United States, conspiracy to provide and conceal material support to terrorist activity and providing and concealing material support to terrorist activity. She also was convicted of two counts of making false statements.”

FDD Senior Fellow Andrew McCarthy has written extensively on the case and describes Stewart as a likeable person.  However, in a February 15, 2005 piece he does go on to state:

Perhaps that’s why I can feel justice but no joy is seeing her brought low. The worst part, for me, is the revelation that lying to the government was at the core of her crimes. In order to get into the jailhouse, she gave her word that she needed access to the Sheikh for one purpose, viz., to provide legal assistance, and then willfully carried out a far different purpose: viz., to enable Abdel Rahman to continue influencing the barbaric Egyptian terror organization which assassinated President Anwar Sadat for making peace with Israel, sought President Hosni Mubarak’s murder, savagely slaughtered nearly 60 tourists in Luxor as an extortionate demand for the Sheikh’s release, and has sedulously busied itself toward toppling the secular government for a quarter century.

These were bold-faced, nefarious lies. To the profession of lawyering, they should be seen as lies of the most despicable kind. For Stewart later claimed that her mendacity was excusable as a part of zealously representing a client. What she did, however, formed no part of what an attorney does.

Conduct of the type Stewart was convicted of is the same type of conduct the government fears lawyers for detainees in Guantanamo will engage in.  In the Bismullah-Parhat litigation, the government argues that under the post Rasul pre-DTA habeas regime:

• Security procedures were violated by attorneys visiting Guantanamo
• Counsel caused unrest on the base by informing detainees about terrorist attacks and other incidents
• Counsel took a broad view of their representation of detainees, sending material which did not relate to the legality of their detention
• Counsel misused their access to detainees through the legal mail system by informing detainees about terrorist attacks, operations in Iraq, activities of terrorist leaders, efforts in the war on terror, the Hezbollah attack on Israel, detainee biographies and abuse at Abu Ghraib
• Such information was deemed inflammatory by the government and could incite detainees to violence
• Attorneys also disguised as privileged, materials which were in fact intended as communications to or from the media

This is not to suggest that all lawyers representing detainees in Guantanamo behaved in this fashion.  In fact we can expect that most lawyers behaved professionally while zealously representing their clients.  However, the allegations of the government detailed above and the conviction of Stewart do highlight the fact that the government has concrete and legitimate interests in monitoring attorney conduct to ensure it does not go beyond the scope of representation. 

Murder, attempted murder, material support, conspiracy and spying charges were officially referred today against Omar Khadr. Khadr is a Guantanamo detainee captured on the battlefield in Afghanistan at the age of fifteen. Colonel Morris Davis, Chief Prosecutor for the Office of Military Commissions recently told me that Khadr is no boy, but a burly full bearded man who could start for a Division 1 football team. Apparently Khadr has taken full advantage of the workout facilities in Guantanamo, and looks nothing like the dated photos circulating in the media. Those photos show a boy who looks even younger than the one captured after his murderous acts. Once the hearings begin in the coming weeks we will likely see better sketch artist images of Khadr, and hear more about his background, association with and dedication to the al Qaeda cause.

Despite likely efforts to paint Khadr as a misguided boy, don’t expect a repeat of the successful strategy pursued by Hicks and his attorneys. There is little political support in Canada for Khadr or his family, and Khadr himself has openly rejected the “court of the infidels” and is unlikely to enter a plea–unless his attorneys can somehow change his mind.

Khadr comes from a dedicated al Qaeda family, with a family tradition of terrorism. Abdurahman Khadr, Omar’s brother boldly stated “I admit it that we are an al-Qaeda family. We had connections to al-Qaeda.” and later revealed that he had been “raised to become a suicide bomber.”

Khadr’s father Ahmad was killed in a targeted missile strike in Pakistan. Prior to his death, Ahmad Khadr was a long time member of al Qaeda and rose to the highest levels of the al Qaeda terrorist network. Ahmad Khadr contributed to al Qaeda in the form of financial support and personnel assistance to further the organization’s international terrorism objectives. In particular, he encouraged his sons to join al Qaed and to carry out its work. Omar Khadr heeded his father’s call.

So what is it that the government believes young Omar, son of a senior al Qaeda member and Osama bin Laden associate did? Well, after moving from Canada to Pakistan, Khadr and his family made yearly trips to the bin Laden compound in Jalalabad Afghanistan, meeting with bin Laden, Al-Zawahiri, and other senior leaders. Khadr, not only met with senior leadership, he also attended various training camps learning the tradecraft of an international terrorist. He was trained to use rocket propelled grenades, rifles, pistols, hand grenades and explosives.

He put his skills to use converting land mines to IED’s, planting IED’s along U.S. military routes of travel, and conducting surveillance against U.S. forces in preparation for future attacks. Khadr concluded his al Qaeda tour of duty in a firefight on July 27, 2002, where he threw a grenade killing Sergeant First Class Christopher Speer of the 3rd Special Forces Group and partially blinding Sergeant First Class Layne Morris. In the firefight Khadr was shot four times by U.S. forces who then stepped over the bodies of their comrades to save his life.  He was detained, provided medical treatment and sent to Guantanamo.

Clearly these are serious allegations against Omar Khadr.  There’s substantial publicly available evidence to support the charges against him.  Hopefully coverage of his upcoming military commission will balance arguments about the military commission process with clear descriptions about what Khadr is alleged to have done, who he is and who his family is.

Just a short note.  I’ve been travelling quite a bit recently attending a variety of workshops, conferences, symposia etc.  Two of the events had some interesting overlap regarding U.S. counterterrorism policy despite being held on different sides of the world–  one in The Netherlands, and the other in Oklahoma City.  At both events members of the blogosphere were present, including our very own AIDP Blogger Mike Newton in The Netherlands, and in Oklahoma, Geoff Corn of National Security Advisors and Chris Borgen of Opinio Juris.  It’s always fun to put a face to a blog-name and all three made fascinating and insightful presentations.   

For those of you who have sent me e-mails recently or posted comments worthy of a response— I hope to get to them in the next week or two (once I finish grading student’s notes!) . 

My recently published article in the UCLA Journal of Int’l Law & Foreign Affairs offers a succinct riposte to the notion that the sovereignty of nation-states is waivalble by the Great Powers at their sole determination. “Pulling at the Threads of Westphalia: Involuntary Sovereignty Waiver - Revolutionary International Legal Theory of Return to Rule by the Great Powers?” can be accessed here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=960581

Dr. Richard Haass, president of the Council on Foreign Relations, laid out a broad policy agenda with regard to sovereignty issues when he addressed the School of Foreign Service at Georgetown University in 2003 while serving as President Bush’s Director of Policy Planning at the State Department. In that speech, he said:

The final challenge to sovereignty I want to highlight arises not when states cede it voluntarily but when it is taken away. This is the result of one of the most significant developments of the past decades: the emerging global consensus that sovereignty is not a blank check. Rather, sovereign status is contingent on the fulfillment by each state of certain fundamental obligations, both to its own citizens and to the international community. When a regime fails to live up to these responsibilities or abuses its prerogatives, it risks forfeiting its sovereign privileges – including, in extreme cases, its immunity from armed intervention. I believe that exceptions to the norm of non-intervention are warranted in at least three circumstances.

The first qualification of sovereignty comes when a state commits or fails to prevent genocide or crimes against humanity on its territory. The international community then has the right – and, indeed, in some cases, the obligation – to act to safeguard the lives of innocents…. [T]he second point of growing global consensus: Quite simply, countries have the right to take action to protect their citizens against those states that abet, support, or harbor international terrorists, or are incapable of controlling terrorists operating from their territory. As President Bush declared in releasing the National Security Strategy, “All nations have important responsibilities. Nations that enjoy freedom must actively fight terror.” The United States stands prepared to assist governments in meeting this solemn responsibility. And when states are reluctant or unwilling to meet this baseline obligation, we will act – ideally with partners, but alone if necessary – to hold them accountable…. Finally, states risk forfeiting their sovereignty when they take steps that represent a clear threat to global security. When certain regimes with a history of aggression and support for terrorism pursue weapons of mass destruction, thereby endangering the international community, they jeopardize their sovereign immunity from intervention – including anticipatory action to destroy this developing capability….

In all three of the situations I have just outlined – stopping genocide, fighting terrorism, and preventing the spread of weapons of mass destruction – the principle remains the same: With rights come obligations. Sovereignty is not absolute. It is conditional. When states violate minimum standards by committing, permitting, or threatening intolerable acts against their own people or other nations, then some of the privileges of sovereignty are forfeited.

Here is the abstract of my response:

This paper explores the nature of sovereignty, its 17th century fusion with the state as a new political entity, its evolution over time, and challenges to its systemic primacy in the 21st century by thinkers such as Dr. Richard Haass, President of the Council on Foreign Relations, whose involuntary sovereignty waiver theory is deconstructed as a viable alternative to U.N. Security Council military intervention preventing human rights abuses, terrorism, and proliferation of weapons of mass destruction. The article also explores Haass’s recommendation that the world return to a Concert of Powers system modeled on that which developed from the 1815 Congress of Vienna, and evaluates use of the anticipatory self-defense doctrine as a method of executing involuntary sovereignty waiver theory. This paper also discusses the interplay between internationalist, realist, and neoconservative schools within the Bush foreign policy apparatus and evaluates the efficacy of Haass’s theory being employed by each.

As President of the American National Section of the AIDP, I inaugurated this Blog on March 15 with my essay entitled “The Lucifer Effect.”  In response, a Dutch colleague whose opinions I respect posted the following insightful comment:

“Stating that “Lucifer Effects” are at the foundation of many barbaric situations in the world, could, in my opinion, analogously be put as a warning against the use of foreign force in these same situations. As many examples make clear, our own troops (and, as a European, I don’t just mean US troops) are victim of these same “Lucifer Effects” which make them act barbarically themselves: Abu Ghraib and Guantánamo are illustrative. Obviously, we fail in having our representatives in these conflicts, our armies, respect International Humanitarian Law and basic Human Rights. By this, we are putting “Lucifer Effects” into a conflict which is already inflamed by “Lucifer Effects” (See Scharf’s article) and thereby creating a new source for “Lucifer Effects”: a misbehaving alien power is, as an easy mutual enemy, a perfect binding source.”

I agree that every military intervention, no matter how justified, will generate barbaric acts on all sides.  And for that reason, nations must always exercise the highest degree of caution when contemplating a military response to grave human rights violations.  But the answer is not to remain always on the sidelines, while crimes against humanity are committed with impunity (as in Darfur).  To this end, let me quote from Elie Wiesel’s Nobel Peace Prize acceptance speech, in which the noted author and Holocaust survivor reminded us:

“We must take sides.  Neutrality helps the oppressor, never the victim.  Silence encourages the tormentor, never the tormented.  Sometimes we must interfere.  When human lives are endangered, when human dignity is in jeopardy, national borders and sensitivities become irrelevant.  Wherever men and women are persecuted because of their race, religion, or political views, that place must – at that moment – become the center of the universe.”

For those who are interested in other expert views about when (if ever) it is appropriate to employ force in response to crimes against humanity, I invite you to attend the Hague Joint Conference on Contemporary Issues of International Law – 2007: “Criminal Jurisdiction 100 Years after the 1907 Hague Peace Conference,” June 28-30, at the Steigenberger Kurhaus Hotel in The Hague, The Netherlands.  I am serving as Co-Chair of the Hague Joint Conference, which features a dozen panels of the world’s foremost experts, including: “Defining, Suppressing and Trying Genocide,” and “International Humanitarian Intervention in the Post-September 11 Era.”   For more information about the Hague Joint Conference, see: http://www.asser.nl/hjc/index.asp .

BBC is reporting that the international NGO Amnesty International has decried worsening conditions at the U.S. military prison facility in Guantanamo Bay, Cuba, where trials of detainees captured in the War on Terror have recently gotten underway:

Guantanamo conditions ‘worsening’
BBC News, April 4, 2007

The provision that stripped detainees of their right to mount a legal challenge to their confinement was upheld by a US federal appeals court in Washington in February. Pushing the anti-terror legislation through Congress last year, Mr Bush said he needed the new law to bring terror suspects to justice. It allows for the indefinite detention of people as “enemy combatants”. The US has said it plans to use the military tribunal system to prosecute about 80 of 385 prisoners remaining at the camp.