More Frivolity: Now With Human Mops!

by hilzoy

(Eighth in a series arguing against the Graham Amendment/for the Bingaman Amendment regarding habeas corpus at Guantanamo Bay. If you agree, please call your senators, and ask them to vote for Jeff Bingaman's S. AMDT 2517 to bill S. 1042.  Senator Graham's full floor speech is here.)

"A Canadian detainee who threw a grenade that killed an army medic in a firefight and who came from a family of longstanding al-Qaida ties moved for preliminary injunction forbidding interrogation of him or engaging in cruel, inhumane, or degrading treatment of him. It was a motion to a Federal judge to regulate his interrogation in military prison."

A lot of the cases we have dicussed earlier involve detainees who have been found to be innocent. This one (pdf) is different: it involves a detainee (known as O.K.) who has been charged with murder for allegedly throwing the grenade Graham mentioned. You might not think that it's a mitigating factor that he was with his family in a compound when it came under attack, and that he seems to have thrown the grenade in an attempt to defend himself. (He was the only survivor of the attack on the compound.) What, you might ask, was he doing at what seems to have been an al Qaeda compound to begin with? The answer is that he was fifteen years old at the time, and that's where his family was living.

Since his capture over three years ago, he has been housed as an adult and kept in solitary confinement. Virtually all the human contact he has had has been with interrogators and guards. He alleges that he has been tortured, and this is corroborated by various sources (see p. 3.) In addition to being short-shackled in various uncomfortable positions for substantial periods of time, beaten, and threatened with extraordinary rendition and rape, there's this charming allegation:

"Petitioner reported that around March 2003, when he was 17 years old, he was removed from his cell in the middle of the night and brought into an interrogation room. Military police "short-shackled" his hands and ankles by handcuffing his feet and ankles together and then both to a bolt on the floor, and then forced him into various stress positions (...) He was left in these stress positions for a period of hours, and because he was not allowed to use the washroom, eventually urinated on the floor and upon himself and his clothing. Military police then poured a pine oil solvent onto the floor and onto Petitioner. With Petitioner on his stomach and his hands and feet cuffed together behind his back, they used Petitioner as a human mop, dragging him back and forth through the mixture of urine and pine oil. After he was returned to his cell, Petitioner was not allowed a change of clothes for two days."

O.K.'s lawyers therefore ask that he not be subjected to further torture. They do so not just on the grounds that torture is itself illegal, but also because they are worried about O.K.'s psychological condition. A psychologist, Dr. Eric Trupin, who is an expert on juvenile detention and isolation, and who has reviewed the declassified information on O.K. writes that (p. 10):

"Petitioner's symptoms, including psychotic symptoms such as delusions and hallucinations, suicidal behavior, and intense paranoia, indicate that he likely suffers from a significant mental disorder, including post-traumatic stress disorder and depression".

Trupin also believes O.K. to be at "moderate to high risk for suicide", that his symptoms are "consistent with those exhibited by victims of torture and abuse", and that the use of "harsh interrogation tactics" against an adolescent is "potentially catastrophic for his future development" and places him at risk of irreversible psychiatric damage.

The government, for its part, says: “He has a history of adjustment disorder and personality disorder, but does not currently require care by the Behavioral Health Services.” (Quoted in Exhibit B to the motion linked above, p. 2.) Trupin finds the government's basis for this "does not meet minimal standards in addressing either the psychological sequale of O.K.’s injuries and subsequent isolation and interrogation, or his mental health status." (Ex. B, p. 3)

While dueling experts are not uncommon in legal proceedings, I have a hard time imagining that any adolescent could be kept in isolation for three years without suffering serious psychological damage, even if he had not been captured and wounded in a firefight in which most of the rest of his family was killed, and even if he had not been tortured.

This is not, to my mind, a frivolous request either.

Comments

[Armando]

Thanks to Hilzoy and Katherine for this great series.

[Andrew]

I'm just lost for words. This is outright criminal.

[LizardBreath]

What do they think a fifteen (now eighteen, I suppose) year old boy knows, three years after he was arrested? If they think throwing the grenade was criminal, turn him over to the Afghan civil authorities, but doesn't it seem awfully unlikely that he's a source of intelligence?

[CMatt]

Hilzoy, the link to Graham's full floor speech is broken.

Thank you for this series, which I wish need never have been written.

[Gary Farber]

Jamadi death a homicide says Department of Defense, says Time, says Forbes.

[Gary Farber]

"What do they think a fifteen (now eighteen, I suppose) year old boy knows, three years after he was arrested?"

Presumably as much or little as any other foot soldier. Children as young as 7 or 8 fighting with automatic weapons is, of course, perfectly common in third world militias.

Note that this is not a defense of anything; I'm just noting that a good chunk of the fighting world doesn't start recruiting only at the age of 16 above; this includes Afghanistan and Pakistan.

Please don't make me have to repeat the first sentence of the previous paragraph again, if y'all be so kind.

[cleek]

presumably there's a point at which defensive actions go so far beyond what is reasonable that you've ceased to be mere defender and instead become an aggressor.

[cleek]

...and if it sounds like i'm defending the CIA's actions, assume i'm not...

[LizardBreath]

Presumably as much or little as any other foot soldier.

Sure, but at 15, pretty much guaranteed no more than a foot soldier, if that much. I'm not claiming that he was unlikely to have been a combatant, I'm suggesting that he seems awfully unlikely to have been a terrorist mastermind, of the type that I thought were supposed to be the only ones at Gitmo.

The treatment would be absolutely unacceptable if it were directed to a terrorist mastermind. Still, if I thought they had a good reason for thinking the detainees at Gitmo (etc.) were all vitally important sources of information, I'd at least be able to believe that there was some recognizable thought process behind how we're treating them. When it becomes apparent that lots of the detainees are no one in particular (and I did know this before, the fact that this kid was fifteen just reminded me), the incredible stupid randomness of it just makes my gorge rise.

[Jesurgislac]

Lizard Breath: What do they think a fifteen (now eighteen, I suppose) year old boy knows, three years after he was arrested?

This will be Omar al-Khadr. Part of the problem is almost certainly the problem that any of the prisoners in Guantanamo Bay have obtaining a release, even after the authorities concede they have no reason to hold them. They may also believe that the boy has value as a hostage. More here.

[rd]

Good grief, you're using *Khadr* as your poster boy? Just another hard luck teenager in the wrong place at the wrong time? Try a google search and learn all about Canada's famous "Al Quada" family:

Here's the first thing that pops up:
http://www.cbc.ca/news/background/khadr/

[mangala]

This and this may be of interest; two opinion pieces from today's Toronto Star, dealing with Omar Khadr's case. (free registration required)

As a Canadian, I have very mixed feelings about Khadr - I think it's clear that his family situation played a huge role in the fact that he was in Afghanistan, apparently fighting for Al Qaeda, but the story, at least as presented by the Canadian media, has seemed to suggest that he is proud of that fact. Statements from other members of his family certainly don't inspire sympathy. On the other hand - the fact that we don't like someone, or find their actions contemptible, isn't a reason to do away with laws that are meant to apply to everyone, or to deny them rights without proof of wrongdoing or oversight. We don't strip citizenship from murderers; we try them and imprison them if found guilty, or extradite them if their crimes were committed elsewhere, if they will not be subject to treatment that is against our laws. Ottawa should not have turned him over to the States to be held in Guantanmo. (Extradition to the US for a trial, with legal representation, I wouldn't object to.)

I don't think the fact that children are used as soldiers and terrorists should deter us, in Canada or the US, from following our own rules about minors when they're in our custody. But of course, that's just my opinion.

[washerdreyer]

Good grief, you're aruging that who else is in one's family is anything but totally relevant to whether or not they should be forced to soak up their own urine?

Soft-hearted liberals can't do what needs to be done.

[bob mcmanus]

"Soft-hearted liberals can't do what needs to be done."

I totally agree.

[rd]

No but to present the kid, as the post does, as some hard luck teenager who somehow wandered on to the battlefield is ridiculous.

[LizardBreath]

Are you arguing that what's described here is a reasonable punishment for this kid, however involved his family may be with Al Qaeda? Because that's messed up.

[Jesurgislac]

rd: No but to present the kid, as the post does, as some hard luck teenager who somehow wandered on to the battlefield is ridiculous.

I honestly don't see how you can interpret Hilzoy's post in that way.

[rd]

The post describes him as throwing a grenade
"only to defend his family." Right. And no, I wouldn't view any of his allegations as a somehow just punishment. But the evidence points to Omar being a true believer Al Queada foot soldier. The idea that he should be treated as just another juvenile offender is ridiculous.

[LizardBreath]

But the question is what is the point of holding him at Gitmo? Are we hoping to get intelligence from him, or are we punishing him? If we're hoping to get intelligence from him, from my ignorant outsider's perspective, it looks pretty unlikely at this point (15 years old, three years since he's been out in the open). If we're punishing him, why is that happening at Gitmo?

[mangala]

The evidence points to Khadr being a true believer now, maybe; but he was born into a family of Al Qaeda supporters. I'm not sure how much choice in his ideology he really had; it's much harder to break with something that's been drummed into you as truth from a young age.

(I'm very much in favour of charging the surviving Khadr adult(s?) with child abuse for sending their children into a war zone and having them trained as terrorists/fighters, and having CAS remove any remaining minors in their care, if it hasn't already been done.)

RD, would you seriously argue that a child raised by a family who believed in a murderous ideology, who presumably controlled the information he had access to from birth, should bear full criminal responsibility for his beliefs and actions based on those beliefs? I know that I wouldn't be prepared to make that argument. He should be tried for his actions, but I think you need more than "the evidence points to him being a true believer Al Qaeda foot soldier", when he's a juvenile who was raised and taught by true believers, to argue that he shouldn't be tried as a juvenile offender.

[hilzoy]

rd: "Good grief, you're using *Khadr* as your poster boy? Just another hard luck teenager in the wrong place at the wrong time?"

No. I have been trying to find the originals behind Graham's statements, whoever they are, and figure out the stories behind what he says. I started with medical malpractice, in part because Katherine had the idea, and in part because I am a bioethicist. I then checked out what seemed to me the most frivolous-sounding case, the DVDs. I then moved on to this one, which sounded different: someone who sounded clearly guilty, but whose request -- not to be tortured -- sounded reasonable.

I didn't know what I would find in any of these cases, and I have not refrained from posting any because I have not found the right thing. (If you think it's easy for a non-lawyer to wrestle legal search engines into submission, and figure out how to find these motions, think again. Too much effort to squander.) I only knew that I wanted to figure out what the story behind Graham's descriptions was, and make it (and the documentation behind it) available for others.

In this particular case, I don't know what to think of Khadr himself. On the one hand, unlike Sami Al-Laithi, he is clearly not an innocent. I tried to make that clear. (And while you put it in quotes, I did not say that he threw the grenade "only in an attempt to protect his family." I said: "in an attempt to defend himself", no "only" about it.)

I do think it makes a difference that he threw the grenade in a situation in which he and his family were under attack, and not just out of the blue; I do not think, nor do I say, that the difference it makes is that between a terrorist and a hard-luck case, or between guilt and innocence. (Similarly, it would make a difference to how I thought of a bank robber that he had shot someone in a firefight, rather than just for kicks; but not the difference between being one of the good guys and one of the bad guys.)

I do not tend to ascribe the sins of his relatives to him. Possibly I am biased here, since I have a peculiar family myself. Some of them I am very proud of, and it would be gratifying to claim their accomplishments as my own. (Going up against Brad DeLong armed with my very own Nobel in economics: how cool would that be?) On the other hand, there's e.g. the uncle who supported Pol Pot, and for all I know supports him still. I tend to think that these people's views are theirs and mine are mine. The situation would be different, I guess, if I were fifteen, but that would mean both that I was more likely to share my parents' views and that I would be less than fully responsible for this.

It's the fifteen years old part that gets to me. Again, personal experience may play a role here: I, at least, would hate to be judged on my fifteen year old self, let alone dropped into solitary confinement for three years based on her. I do not think that kids that age are as fully not responsible as, say, eight year olds; but they are not fully responsible either. Mostly, I think they are flailing around trying to figure out how to be adults; and if all the adults they knew were in al Qaeda, that would be a very bad thing indeed.

Again, though: I did not intend to hold him up as a poster child for anything; just to explain what was behind Graham's remarks. I also think that there are ways we should not treat even real adult villains, since it harms us and the country we love too much for almost any benefits to compensate.

[liberal japonicus]

rd
It seems to me that a similar situation occurred with Randy Weaver, yet he was given an opportunity to go to court. I don't think anyone would be unable to characterize Randy Weaver as a 'true believer' of various white supremacist doctrines, so should he have had the same treatment that was meted out to this juvenile?

[serena1313]

First of all everyone is assuming he is a member of al-Qaeda -- we do not know that for sure.

Secondly even if he was or wasn't he has every right to defend himself against an attack ... just as every one of us would probably react the same if under attack. If someone was crashing thru your front door during war what would you do?

Third, just because he fought back does not make him a criminal. He was captured, he was taken into custody and thus for 3 years has been tortured; he is ruined for life by that experience....

IF simultaneously he and other prisoners were treated with some modicum of respect it would lessen the hatred and anti-Americanism that grows daily. It is by our actions -- by our own doing -- that is defeating the whole purpose; instead of less terrorists there are more now than before!

In addition to the aforementioned there is just NO reason NOT to treat others humanely.

No matter what your personal feelings are re_member generalities do not apply ... in other words not all blondes are stupid, not all African-Americans can dance, nor are all Middle-Easterners terrorists.

Last, but not least: two wrongs a right does not make.

[Gary Farber]

"I'm suggesting that he seems awfully unlikely to have been a terrorist mastermind,"

I thought I indicated my own view when I said that I expected that he could be expected to know as little or as much as any foot soldier.

"of the type that I thought were supposed to be the only ones at Gitmo."

That's a bit off, though, since it's pretty much always been reported that the folks with really serious information become ghosts, and into the secret prisons, and are definitely not sent to Guantanamo. On the other hand, since obviously that's never been officially announced as official policy, so when you say "supposed to be," you can legitimately be referring to the official fiction.

Anyway, bottom line is that I have no larger argument or agenda in this and my prior comment on this thread; I'm just doing my usual tucking away at small hanging threads that I see. I'm just anal that way, I'm afraid.

[Gary Farber]

"Are we hoping to get intelligence from him, or are we punishing him?"

My understanding -- which is distant and apt to be wrong in some or all measure, perhaps -- is that the rationale for continuing to hold those in his category is simply fear, or in their view, reasonable grounds to believe that it is likely, that when released said person will likely again take up arms for the Taliban or elsewhere. (So: no, neither.)

I'm not defending anything here. I'm just trying to answer your asked question as to what the rationale is of the people doing this, insofar as I understand it.

[Gary Farber]

"IF simultaneously he and other prisoners were treated with some modicum of respect it would lessen the hatred and anti-Americanism that grows daily."

Without debating or disagreeing with anything else you've said, I have to note that the above statement works far better if some modifer such as "might," or "I would hope," were in there, rather than the flat and absolute predictive you, perhaps without intended emphasis, stated, which is rather challengeable as a sure prediction.

[Matt Weiner]

I'm not sure whether we're arguing about how much responsibility O.K. has for his actions--even if one thinks he's a bad person who deserves punishment, it is still wrong to shackle him in stress positions, shove him through his own urine, and keep him in solitary for three years.

But, if the facts are as they are presented in rd's first link, is there any reason not to hold him as a POW for the duration of the fighting in Afghanistan? He was captured while apparently fighting in that war; we fear that he would go back to fighting it; isn't that what POW status was designed for?

[Jon H]

Matt Weiner writes: "He was captured while apparently fighting in that war; we fear that he would go back to fighting it; isn't that what POW status was designed for?"

Somehow we managed to keep POWs in WW2 on the mainland. We didn't need a lawless offshore limbo to store freakin' NAZIs.

[Jesurgislac]

Matt: He was captured while apparently fighting in that war; we fear that he would go back to fighting it; isn't that what POW status was designed for?

He hasn't been given PoW status. None of the prisoners at Guantanamo Bay have been given PoW status - quite illegally, I might add: it was that first breach of the Geneva Convention that disturbed me about Guantanamo Bay even before it became clear that many of those held there were not combatants, and well before word of prisoner abuse and torture started to get out.

[Jesurgislac]

Matt: He was captured while apparently fighting in that war; we fear that he would go back to fighting it; isn't that what POW status was designed for?

He hasn't been given PoW status. None of the prisoners at Guantanamo Bay have been given PoW status - quite illegally, I might add: it was that first breach of the Geneva Convention that disturbed me about Guantanamo Bay even before it became clear that many of those held there were not combatants, and well before word of prisoner abuse and torture started to get out.

[Jesurgislac]

Damn! Sorry: I should know by now to ignore error messages, even ones that leave me with a 404 error.

[BruceR]

Just for the record, it has been established that two of the Canadians held and tortured in Syria and Egypt (Abdullah Almalki and Ahmad Abou Elmaati) were under surveillance partly for their connections with Omar Khadr's father, terrorist financier Ahmed Khadr. Both appear to have fingered under torture the apparently completely innocent Maher Arar, which Obsidian Wings has discussed extensively in the past.

Leaving aside the Gitmo aspects, it would seem successfully limiting the writ for foreign nationals in U.S. custody would augur poorly for Canadians, generally, and particularly in the case of any person our government might want to save from U.S. rendition in the future.

[Barry]

Posted by: BruceR: "Leaving aside the Gitmo aspects, it would seem successfully limiting the writ for foreign nationals in U.S. custody would augur poorly for Canadians, generally,"

I'd expect that.

" and particularly in the case of any person our government might want to save from U.S. rendition in the future. "

Do you mean 'rendition to the US'? I'd expect that Canadian courts would now take a very dim view of sending anybody to the US from Canada. Would it be politically permissable for any Canadian politician to authorize such a sending?

[jwo]

rd. The real question is: What is the point of this horrendous treatment of this individual? He is a young man who has thrown a grenade. I do not have a great deal of trouble understanding how this might have occurred, and just what factors created the attitudes and actions of this fellow. But I have an enormous problem in trying to understand just what it is that his captors are trying to achieve, and what it is that makes them the human beings that they have apparently turned into. It makes me sad to say this, but I think we have sadists maintaining our prisons for these people who are accused of being terrorists. How can we also take away any right they have to try to prove that they are wrongly held? This entire issue makes me ashamed, and it should make every American ashamed.

[Dr Zen]

"But the evidence points to Omar being a true believer Al Queada foot soldier."

If, say, the Taliban caught a young marine, and dragged him through a puddle of piss, you'd conclude, fair enough, he's a true believer Bush foot soldier?

What's your problem with the Taliban, with Al Qaida, with any of these people? Why do you think they're despicable if you think it's perfectly okay for us to do just exactly the same as they do? What are we fighting for? Why don't we just leave them be, to drag their enemies through puddles of piss, and we'll do the same to ours?