What's Wrong with Prosecuting a Child Soldier?

Omar Khadr headshot, Guantanamo detainee, undated photo
Chase Madar is a lawyer in New York.  He reviews and reports for the London Review of Books, Le Monde Diplomatique, the American Conservative Magazine and CounterPunch.  This piece first appeared on TomDispatch.

When I was down in Guantánamo a few months ago, a veteran German journalist let it slip that she didn't much care for the place.  "This," she confided in me, and many of the other journalists there as well, "is the worst place I have ever visited in my entire career."

It's not hard to see why my superlative-loving friend felt this way: we were covering the case of Omar Khadr, a 15-year-old Canadian captured after a firefight with U.S. forces outside Kabul in July 2002, tortured and interrogated for a few months at Bagram Air Base in Afghanistan, then transported to Guantánamo.  He just reached a plea agreement that will avoid a trial before a military commission at Gitmo for five "war crimes."  Four of them, freshly invented for the occasion, are not recognized as war crimes in any other court on the planet.  (Khadr pled guilty to all charges and will get at least one year more at Gitmo -- in solitary -- then perhaps be transferred to Canada for a remaining seven years.)

Aside from Khadr and about 130 other prisoners who may one day see a trial, Guantánamo also holds 47 more War on Terror prisoners who are expected to be "detained" indefinitely without being tried at all.  This was one of the radical policies of George W. Bush and Dick Cheney that is now cheerfully defended by the human rights grandees in Barack Obama's State Department.

Gitmo and all other places without habeas corpus rights are indeed dismal places -- and there is certainly something disgusting about the first conviction of a child soldier since World War II.  All the same, I couldn't help but wonder if my vehement Kollegin had ever visited a homegrown federal prison like the one in Terre Haute, Indiana (whose maximum security wing was copied down to the smallest detail at Gitmo's Camp 5), or even your run-of-the-mill overcrowded state lock-up, the kind you pass on the highway without even noticing that you've done so, or one of the crumbling youth detention facilities in New York State which, as we lawyers who have represented youth offenders know, are hellish.

Such prisons may lack the exotic setting of Gitmo's Camp Delta, but they should not be forgotten.  At the risk of sounding boosterish, it so happens that a great many of America's unsung domestic prisons also routinely abuse inmates, Guantánamo-style, are unable or unwilling to prevent inmate rape, employ long-term, sustained solitary confinement (which gives waterboarding a run for its money), and in actual practice are often beyond the rule of law.  Confessions, true or false, obtained through violence and threats, aren't restricted to Guantánamo either.  They are not all that hard to find in our contiguous 48 states.  And for the rest of our prison system, where are the outraged German journalists?  Why are no British "law lords" calling the federal supermax in Florence, Colorado, a "legal black hole" as law lord Johan Steyn termed Guantánamo?

Alas, in so many ways Guantánamo is not the exception but far closer to the rule of our criminal justice system, and the case of Omar Khadr, rather than being an anomaly of the War on Terror, is in all too many ways positively all-American.  To be sure, taking a child soldier you've captured in a foreign land, whose interrogation entailed stringing him up half-naked in a five-foot-square cell with wrists chained to the bars at eye level and a hood clamped tightly over his face, then prosecuting him for "murder" because he allegedly tossed a grenade on a foreign battlefield, does present some legal issues that don't ordinarily come up in Spokane or Chillicothe.

But Gitmo, a "betrayal of American values"?  Would that it were!  Alas, for nearly every grisly tabloid feature of the Khadr case, you can find an easy analog in our everyday criminal justice system.  In a sense, much of our War on Terror has proven a slightly spicier version of our "normal" way of doing criminal justice.  Using the case of Omar Khadr, let's take this step by step.

Child Soldiers and Juvenile Offenders

The Khadr case should have been a bit queasy-making for us Americanos.  Hasn't there been a surge of concern for child soldiers in book clubs and church groups across the land?  Turns out, however, that this long-distance compassion goes up in smoke at closer range.  The second a child soldier points his gun at an American, not another African, it's adiós victimized child, hello hardened terrorist.

The hypocrisy in all this is less flaming than it may appear.  After all, clemency for youth offenders, be they child soldiers or just local kids, runs against the American grain these days.  If we routinely prosecute children even younger than 15 as adults -- and we do -- why should a foreign child soldier be any different?
In fact the U.S. even has a few dozen inmates doing life without parole for acts committed when they were 13 or 14, and most of these sentences were mandatory rather than the prerogative of a particularly nasty judge.  (Some small progress: last May in Graham v. Florida the Supreme Court decided that juveniles can get life without parole only if there's homicide involved.)  Overall, the U.S. has in recent years had precious little mercy for its children, or anyone else's. 

Coercive Interrogation of Minors

Back in May, the Gitmo press corps gasped when Khadr's "Interrogator Number One," Joshua Claus, described the veiled threats of rape he wielded at Bagram Prison to try to break the young prisoner.  If Khadr should fail to cooperate, Claus told him, he would meet the same fate as another young (and imaginary) Afghan detainee who was supposedly sent to a U.S. penitentiary and raped to death in a shower room by "neo-Nazis, and four big black guys."  Claus, a court-martialed detainee abuser, had been the leader of the final interrogation of a mistakenly imprisoned Afghan taxi driver who was beaten to death by American guards at Bagram in 2002.  Before receiving a rather light sentence in the case, Claus pledged his full cooperation with the Khadr prosecution, and he kept his part of the bargain with visible enthusiasm.

As it happens, Claus's veiled threats of rape and violence to a minor would not have been that uncommon in domestic interrogation rooms.  "From the stories I'm familiar with, threats like that are a pretty garden-variety police interrogation tactic," says Locke Bowman, legal director of the MacArthur Justice Center at Northwestern University.
With youths, it's not that much of a challenge to get a false confession, even without the threat of or actual physical violence being brought to bear, as the case of Marty Tankleff in Long Island shows, not to mention the seven and eight year-old boys from the Englewood neighborhood of Chicago who, in the summer of 1998, "confessed" to murdering a girl for her bicycle.  Even after DNA evidence from semen found on the corpse was matched to an adult serial sex offender, the Chicago Police Superintendent at first refused to exonerate them.  The State's Attorney might well have prosecuted the boys, too, if the entire South Side of Chicago hadn't threatened to explode.