As part of his defense before a military commission at Guantanamo, Omar Khadr’s attorneys filed a motion claiming that his confessions were the product of torture. Khadr made incriminating statements (including that he killed an American serviceman) only after he was subjected to various indignities and abuse, his lawyers said.
In a motion to suppress Khadr’s confessions, Khadr’s lawyers claimed Khadr was: “forced into various ‘stress positions’ and left there for many hours on end”; “suffocated until he passed out, revived, and then suffocated again”; “terrorized by barking dogs while his head was covered by a plastic bag tied tightly around his neck, making it hard for him to breathe”; “doused with freezing water and left cold and shivering”; forced to “urinate on himself” during lengthy interrogations; temporarily blinded by a technique called “light pushing”; “beaten by interrogators who shackled his hands and feet together”; “abused until he could not stand”; and “used by military police as a human mop to wipe his own urine and pine oil off the floor of an interrogations chamber.”
This is awful.
There is just one problem: It never happened.
In a ruling last week, military judge Patrick J. Parrish found: “There is no credible evidence the accused was ever tortured…even using a liberal interpretation considering the accused’s age.”
Judge Parrish’s ruling makes it clear that Khadr’s claims could not withstand basic scrutiny. Khadr’s lawyers filed an affidavit supposedly authored by Khadr himself in support of their torture claims, but Khadr did not allow prosecutors to cross-examine himself on his story. The judge noted that Khadr had the right to decline to testify, but it certainly did not help his case.
If Khadr was really tortured in the fashion he claimed, then why not take the stand and describe it in graphic detail for the commission to hear?
Khadr’s refusal to testify was particularly problematic because Khadr’s lawyers failed to provide any corroborating evidence to back up Khadr’s claims in almost every instance (save one, discussed below). Meanwhile, the government produced witness after witness who not only rebutted Khadr’s self-serving affidavit, but also made it clear that Khadr incriminated himself during cordial conversations with investigators who used rapport-building techniques.
One Navy criminal investigator established such a good rapport with Khadr that the son of al Qaeda sent the investigator an unsolicited letter after their time together had come to an end. There was no hint of torture in Khadr’s letter.
One of Khadr’s claims involved a routine weighing session. U.S. servicemen are required to weigh the detainees held at Gitmo and other detention facilities regularly for various health-related reasons. Khadr did not cooperate, and he later claimed that he was abused while having his weight taken. Unfortunately for the defense, the session was recorded. Judge Parrish found:
The accused alleged in his affidavit that he was mistreated while he was being weighed. The videotape of the accused being weighed…clearly shows the accused was not abused or mistreated in any way by any of the guards.
The judge even found the authorship of Khadr’s affidavit to be dubious. Judge Parrish wrote:
The Defense offered no evidence to explain how the affidavit was prepared. …The Commission presumes the affidavit was prepared by a defense counsel, at least in part, for the purpose of litigating the suppression motion.
Reading between the lines, it appears the judge thought it was likely that Khadr’s lawyers authored the affidavit (“at least in part”) as part of their legal ploy. This document portrayed the American military as serial torturers and Omar Khadr as an innocent, oppressed victim. Here is yet another instance, then, in which the detainees’ lawyers are not the heirs of John Adams. At a minimum, Khadr’s lawyers passed on unsubstantiated claims of abuse and torture. At worst, some of the lawyers may have helped Khadr make up his claims. Either way, their actions are not part of some noble legal tradition. (A number of private lawyers have rushed to Khadr’s defense. It would be interesting to learn if any of them were responsible for authoring the affidavit.)
In the end, because Khadr would not testify concerning the affidavit’s contents, it was rebutted by virtually all of the evidence that was provided to the Commission, and since the defense did not explain how the affidavit came into existence in the first place, the judge gave little weight to Khadr’s torture claims.
There was one unfortunate and indefensible instance, however. An interrogator (“Interrogator #1”) told Khadr the fictitious story of a young Afghan who was sent to prison and gang-raped. Khadr’s defense counsel argued that this instance tainted everything that came after it, including even a videotape showing Khadr building improvised explosive devices and implanting them.
The judge disagreed, finding “there is no evidence such a story coerced or in any way caused the accused to make any incriminating statements at any time.” Instead, it was the discovery of the aforementioned videotape that led Khadr to talk. Quite separate from Interrogator #1’s sessions with Khadr, U.S. officials discovered the videotape in the bombed out compound where Khadr and other al Qaeda terrorists battled American forces. When Khadr was shown the tape, he stopped lying about his background and began cooperating with investigators.
The “credible evidence is that [Khadr] started to make incriminating statements only after he learned the Americans found the videotape,” Judge Parrish found. “No statement offered against [Omar Khadr] was derived from, the product of, or connected to any story Interrogator #1 told to the accused.”
Many “torture” claims have been floated in defense of Omar Khadr. But the only thing that was really tortured was the American military’s reputation.
Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.