The military commissions currently being revived at the US Naval Base at Guantánamo have given birth to a fresh addition to the newspeak lexicon to rank alongside such classic antiseptic euphemisms as ‘collateral damage’ and ‘friendly fire’: in these proceedings torture is being rebranded “non-traditional interrogation”.
In any circumstances an attempt to minimize such outrageous conduct would be deeply troubling. To hear this phrase repeated time and time again by the prosecution in the pre-trial hearings in the Omar Khadr case it is doubly so.
The second week of hearings in this case are focusing on the defense’s attempts to have incriminating statements made by Omar Khadr excluded because of the abusive treatment they allege he received while detained in the Bagram detention facility eight years ago as a 15-year-old.
The problem for the defense is proving that their client’s account of events in Bagram is accurate and the version presented by his former interrogators false. There are no eyewitnesses to Omar Khadr’s treatment except those who are alleged to be responsible.
In such circumstances where no independent witness testimony is available lawyers frequently fall back on what is known as similar fact evidence. In essence, this consists of accounts by individuals who found themselves in identical circumstances and from whose experiences reasonable conclusions can be inferred.
In my own experience investigating war crimes in Bosnia, Darfur, Kosovo and Iraq, the collection and submission of similar fact evidence is a vital tool. The sort of abuse one encounters in conflict environments often occurs without eyewitnesses and this is especially true of abuse that takes place in detention facilities.
A typical case might involve a guard removing someone from the general prison population or coming into a cell alone. In cases that pit the word of the victim against the word of the perpetrator the testimony of other victims with similar experiences can tip the balance.
However, the military judge overseeing proceedings in Omar Khadr’s case, Colonel Patrick Parrish, is refusing to allow the defense to introduce similar facts into evidence, stating in court today that unless such testimony can be directly linked to Omar Khadr the weight he will give it “is less than miniscule”.
We know that the abuse of detainees in the Bagram Theater Internment Facility in 2002 was commonplace. In one week in December 2002 two Afghan detainees, Habibullah and Dilawar, died as a direct result of the physical abuse they suffered at the hands of US military personnel at the prison.
We also know that one of Omar Khadr’s military interrogators at Bagram (known in court simply as Interrogator #1) was subsequently court-martialed and convicted of abusing other detainees. The details are hazy – the actual judgment is classified.
There were only two other people in the interrogation room with Omar Khadr. The position taken by Judge Parrish effectively means that unless one of them admits to committing a criminal act, the defense have no way to have Omar Khadr’s claims taken into consideration.
Is it unreasonable to suspect that Omar Khadr may have been tortured while detained in Bagram? Clearly, given that one of his interrogators has been convicted of detainee abuse, it is not.
Even one of the interrogators at Bagram cross-examined in court today declined to rule out the possibility. When asked about Omar Khadr’s claims that he was tortured while detained there, he simply replied: “I hope they are not true.”
Hope is not enough. It is the court’s duty to ensure that tainted evidence is excluded. There is no greater taint than torture and the defense should be given greater latitude in its attempts to expose it.