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Obama’s War Crimes Commission Stands Law on its Head

graphic: Lance Page/; Adapted: takomabibelot, Poe Tatum via Flickr

The Administration’s decision to press forward with the first war crimes trial of a child soldier in modern history is unfathomable. That the Administration would then try to ensure a conviction by attempting to rewrite the law to create a new war crime is reprehensible. — David Frakt, Associate Professor of Law at Western State University College of Law and a Lieutenant Colonel in the U.S. Air Force Reserve JAG Corps; former lead defense counsel with the Office of Military Commissions, Guantanamo.

Lt. Col. Frakt, who was the lead defense counsel in the Guantanamo military commissions trials of Mohammed Jawad and Ali al Bahlul, has written an important analysis of the President Obama’s new military commission rules. These rules, released without public comment and only a day before the trial was to start in the case of former child soldier, Omar Khadr, rewrite law in order to prosecute “war crimes,” even where none exist.

Frakt does a good job explaining the Orwellian logic of the new military commission rules. Lost within the arcana of who is or is not a “privileged combatant,” and thereby appropriate for war crimes charges or trial by military commission, is the insanely twisted logic of the Pentagon, who has strained at gnats, only to bring forth yet another atrocity of justice. As Lt. Col. Frakt explains:

Now, the Department of Defense has once again attempted to revive this discredited interpretation of the offense with a slight twist. In the new Manual the following official comment has been included in explanation of the offense of Murder in Violation of the Law of War: “an accused may be convicted in a military commission. . . if the commission finds that the accused engaged in conduct traditionally triable by military commission… even if such conduct does not violate the international law of war.” Astoundingly, according to the Pentagon, a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war.

So you can be found guilty of violation of the laws of war, even if you never violated the laws of war. In other words, according to the prosecutors, we can pretty well bloody do what we want to do. Catch-22, anyone?

News reports describe how Khadr is being forced to wear black-out goggles and earmuffs when being taken to the trial, and after undergoing humiliating searches. This kind of treatment can only be meant to assert power and omnipotence over Khadr, and influence the military and observers at the trial that this 23-year-old man, captured as a 15-year-old, and tortured at Bagram and Guantanamo, is somehow a danger akin to Hannibal Lecter.

Humiliation and fear together constitute psychological torture. Here it is being done in front of the eyes of the world, but people are inured to it, have been psychologically numbed themselves

This whole trial is emblamatic of the false promise and true face of the Obama administration, which has tried to paper over the worst excesses of the previous administrtion with glitzy wallpaper and superglue, but in the end have nothing new to offer but the same old policies of torture, indefinite detention, bogus military commissions (aka kangaroo courts), and secret prisons, not to mention frame-ups, and draconian attacks on justice, as in the recent case of Syed Fahad Hashmi. A U.S. citizen held in solitary confinement for three years in a NYC jail on trumped-up or exaggerated charges of “material support to terrorism”, Hashmi finally pleaded out the other day to a 15-year sentence, even though he never committed a terrorist act. Locked up in a hellhole of a prison in isolation for three years, not even allowed to exercise in fresh air, he must have been a desperate broken man to accept this deal. Or perhaps he looked around at America and thought, these people won’t lift a pinky to help me.

From an important story by Andy Worthington, who describes government attempts to influence the judicial process in the Hashmi case:

Before the trial, Theoharis and Fayad Hashmi’s many supporters had pointed out how the prosecution was trying to rig the proceedings, with the government asking for jurors to be anonymous and kept under extra security (a request that was granted by Judge Loretta Preska) in a filing in which the government’s lawyers claimed that “jurors will see in the gallery of the courtroom a significant number of the defendant’s supporters, naturally leading to juror speculation that at least some of these spectators might share the defendant’s violent radical Islamic leanings.”

With this in mind, Fayad Hashmi may have decided that a plea bargain provided his only opportunity to avoid a 70-year prison sentence, but whatever the truth, his treatment over the last four years, and the paucity of the evidence against him, appears only to demonstrate that the overreaction of the Bush years in relation to the perceived terrorist threat is as exaggerated as ever.

For more on the Khadr trial, follow the coverage by Marcy Wheeler, Spencer Ackerman at The Washington Independent, and his own blog, Attackerman. Spencer is in Guantanamo covering the trial.

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Jeff Kaye

Jeff Kaye

Jeffrey Kaye is a psychologist in private practice in San Francisco, where he works with adults and couples in psychotherapy. He worked over 10 years professionally with torture victims and asylum applicants. Active in the anti-torture movement since 2006, he has his own blog, Invictus. He has published previously at Truthout, Alternet, and The Public Record.