Child abusers and war criminals

>> Saturday, February 21, 2009

I'm fucking angry right now, and I'm not sure how much I can write rationally at the moment. Perhaps I can't write rationally, and perhaps I shouldn't write rationally.

What's set me off is a piece by Dahlia Lithwick in Wednesday's Slate that I didn't see until Thursday, "Welcome Back Khadr?" in which Ms. Lithwick discusses the case of Omar Khadr, one of the youngest detainees at Guantánamo Bay and the only remaining westerner (I mention this because everyone does, not because I see how it matters). Mr. Khadr was fifteen years old when he allegedly killed an American soldier, Special Forces Sgt. 1st Class Christopher Speer. He is now twenty-two.

It is alleged that Mr. Khadr, in the service of a criminal, terrorist gang, murdered a father of two serving his country while deployed in Afghanistan, a war that seems as justifiable as such things ever can be; it is possible another man threw the grenade, and if Mr. Khadr ever sees a courtroom his defense is likely to present that case. Will Mr. Khadr ever be tried? His cases have been dismissed once, and were on the verge of being dismissed again when the Colonel serving as judge in Mr. Khadr's matters was removed from his duties in the matter, allegedly after ruling that the prosecutors needed to stop withholding evidence. I do want to be clear about this before I go on, however: there is a very high probability that the young Mr. Khadr threw a grenade and killed a man, a father, a soldier who was doing his duty; it is not my place nor my intention to absolve Mr. Khadr of either the moral consequences or appropriate legal consequences (if any) of what he probably has done.

It is also alleged that Mr. Khadr confessed under torture. Ms. Lithwick writes:

Then there's the fact that Khadr claims to have confessed under torture. Videos of him weeping during an interrogation surfaced last year and served only to remind the world that he was a teenager confined at Guantanamo among "the worst of the worst." Khadr was allegedly shackled in stress positions until he urinated on himself, then covered with pine solvent and used as a "human mop" to clean his own urine. He was beaten, nearly suffocated, beset by attack dogs, and threatened with rape. In May 2008, the Supreme Court of Canada ruled in Canada v. Khadr that the detention of Khadr at Guantanamo Bay "constituted a clear violation of fundamental human rights protected by international law."

Ms. Lithwick then goes on to cite another treaty that the United States is a party to, the Convention on the Rights of the Child. Here's a portion of the Convention--and I apologize for the length, but these sections must be read in full to appreciate what we've allegedly done:

Article 37

States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

Article 38

1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.

2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.

3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.

4. In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.

Article 39

States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.

Article 40

1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:

(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;

(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:

(i) To be presumed innocent until proven guilty according to law;

(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;

(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;

(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;

(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;

(vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;

(vii) To have his or her privacy fully respected at all stages of the proceedings.

3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:

(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;

(b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.

4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.

I have been asked if I thought former President Bush and former Vice-President Dick Cheney should be tried for war crimes in the United States. I have been challenged with the probability that this would rip the country asunder--never mind that this nation survived the divisions of 1861-1865 and 1967-1975 and arguable emerged stronger, at least for awhile. I have hemmed and hawed, because yes, such a division would get in the way of so many things this nation already needs to do to repair itself. And now I stand corrected.

If a fifteen-year-old really was turned into a "human mop" and the President Of The United States knew about it and authorized it, and this nation is one that turns a blind eye or looks the other way because we're "too important" to follow the most basic fundamentals of human decency, much less the laws we've enacted and treaties we've ratified, then this nation does not deserve to exist. I don't care if the prosecution of Mr. Bush somehow triggers another civil war. I don't care if it causes further global collapse. And no, I'm not being fucking rational right now: I believe that a society is judged by how it treats the weak--if the allegations in the Khadr case are true....

I can't even think of an appropriate way to finish that sentence.

There needs to be a bipartisan, unlimited investigation, and if probable cause exists to believe crimes have been committed, there need to be indictments and the defendants given what the Bush Administration was quick to deny their victims: open trials. I am not saying this needs to happen tomorrow; but it needs to happen while these allegations are fresh and while this is still vital. We need to affirm to ourselves, and to the world, that we are not a rogue state and that we are a nation of laws, and that we are moral people, not the monsters we seem to have become--and if we cannot affirm this, we do not deserve to exist on this Earth.

That's all. I need to find something else to write about for the next few days. I knew we were holding kids in Gitmo--I guess, silly me, I somehow didn't think we tortured them, too.


Random Michelle K Saturday, February 21, 2009 at 12:06:00 AM EST  

Go look at the fuzzy kitty pictures on my website.

Because there's not a damned thing you can do about Bush & Cheney.

Eric Saturday, February 21, 2009 at 7:06:00 AM EST  

There's one thing I can do, Michelle: I can not be quiet, I can make my noises and hope I'm at least a part of memory, if not persuasion; I can try to amplify the words of others who maybe carry more weight than I do. I can serve as a reminder, a scold, a nag.

And if I don't, at maybe least my life's mistakes won't include Pastor Niemöller's.

That having been said, for the sake of my blood pressure and temper I'll be staying off of politics in my posts for at least a few days: I'm pre-posted through, I think, the end of next week and I think the nearest thing to a post on law is a post making fun of South Carolina gambling laws.

(PS: I didn't leave a comment, but the fuzzy kitty is--as usual--soft and cuddly, no matter how you try to spin it. :-) )

Janiece Murphy Saturday, February 21, 2009 at 1:45:00 PM EST  

Eric, I've been thinking about this since I read it last night.

It still makes me nauseous, but I'm a bit torn, because killing another human being is an adult action, even if the kid was 15 when he did it.

So while I agree that the whole "torture is legal, lalala, John Yoo told me so, lalala" thing is grounds for getting wrapped around the axle, I'm not sure the kid's age outrages me as much as it does you. Provided he did what he's accused of, I mean.

Does that make sense?

Eric Saturday, February 21, 2009 at 2:08:00 PM EST  

Janiece, I once represented a fifteen-year-old boy who, along with his girlfriend, took a pair of weapons (he, a rifle; she, a handgun), walked from his bedroom into the adjacent living room, and executed the boy's father for no good or explicable reason. Both teens are in prison now.

I do not want to minimize the loss to Sgt. 1st Class Christopher Speer's family, which must be devastating. But he, unlike my client's dad, was a highly-trained soldier in the best army in the world equipped with the best gear available, in a combat zone, as opposed to a man sitting in his living room in his shorts and a t-shirt.

And if anybody had tortured my murderer, who frankly got what was coming to him when he went to Department Of Corrections (the kid not only confessed, he wrote several dozen letters to the DA after being told not to, all of which ended up in evidence), I would have felt a vengeful satisfaction in watching the sonofabitch dragged out of the courtroom through the side door, in cuffs. Because nobody, however reprehensible, deserves to be tortured, and torture is by definition a crime no matter who it's perpetrated on.

And yeah, the kid's age outrages me, because kids are a protected class. Kids commit adult actions all the time, but that doesn't mean they always suffer the adult consequences, nor should they. (Not that being tortured is ever an adult consequence.)

Whoever is responsible for what happened to Khadr if his allegations are true (and let's concede a fuller investigation needs to be conducted) violated two treaties and two sets of Federal law: the responsible parties violated the Convention Against Torture and the Convention For The Rights On The Child. And the responsible parties would deserve to be prosecuted as war criminals and child abusers.

Because, if the allegations are proven, that's what they are.

rbird Saturday, February 21, 2009 at 5:29:00 PM EST  

I know I said this before but this is an issue of children and armed conflict, which is what makes it inherently different from a child who murders in any other situation. Children are turned into "cold blooded killers" all over the world for the sake of nationalism and religion.

Random Michelle K Saturday, February 21, 2009 at 9:15:00 PM EST  

Janiece, I'll second rbird. Children in war zones are an entirely different kettle of fish that your average 15 year old.


There's nothing else I can coherently say, so I'm going back to my happy place. I don't have the spare sanity for this right now.

Eric Saturday, February 21, 2009 at 9:40:00 PM EST  

Re: child soldiers, two quick points--

1) If you read the CNN piece linked to in the main post, you'll see that part of the horror of Mr. Khadr's situation--his parents were basically psychos, the kinds of people who if they'd been in midwestern Americans would have been marrying their 12-year-old daughters off to a cult leader. Even if you could say a fifteen-year-olds are capable of making adult decisions (they're not), Khadr was in the hole to start with;

2) The Convention On Rights On The Child gives signatories specific duties when dealing with child soldiers, "adult" decisions or no--re-read Article 39, reproduced above. And even if you don't treat Khadr as a child soldier (and I don't know how you can't), he would have rights as a child criminal under Article 40 (again, reproduced in the main post); the juvenile client I mentioned above may have ended up being punished "as an adult," but he received every benefit of due process on the way there--which is in accord with not only our moral values but also our Constitution and our international agreement under the CRC.

We've failed Mr. Khadr on every score, regardless of what he may have done or whatever choices he may have made (probably under the influence of unimaginably horrible adults who had a moral responsibility to shelter and raise him, not to "[give] him away to a known Islamic militant." We had an obligation to rehabilitate him if we could and to at least give him due process, and certainly not to make him a "human mop," if that occurred. (Note that even if it were to turn out that Mr. Khadr's allegations of torture are false, we've still mistreated him by imprisoning him without trial.) And in failing Mr. Khadr we have failed ourselves and we have failed the international community.

Janiece Murphy Sunday, February 22, 2009 at 11:44:00 AM EST  

I think we can all agree with the fact that torture is a Bad Thing.

I think we can all agree that this case needs to be investigated more thoroughly.

I think we can all agree that (if true), the allegations mean the U.S. abrogated its treaty obligations.

But as I said before, I'm still thinking about it, and I'm still conflicted. The idea of child soldiers sickens me, but as a vet, I see the person who killed my comrade in arms as "the enemy."

It's not that simple for me, and I'm still trying to determine if there's a position that doesn't place me in a moral conundrum.

Random Michelle K Sunday, February 22, 2009 at 12:25:00 PM EST  

Janice, what you are saying does make sense.

I took an ethics class several years ago, and one of my classmates was a former Marine. She said that in a combat situation, she was trained to see any individual as a threat and a target--women, children, it didn't matter. She couldn't afford to see them as anything other than a threat, or she couldn't do her job. If she thought about the mothers and fathers and children of these individuals she'd never be able to do her job.


A actions in a combat zone are very different from actions taken upon a prisoner.

If a child who has taken up arms is killed in combat, that is one thing. But to take a child out of that combat situation and treat them like an adult is completely unacceptable.

Remember the DC sniper? I was shocked that people were calling for the kid's death. It made no sense to me. Here you have a teenager who is following the orders of the father figure in his life. It is very very difficult for children to go against authority figures, which, I believe is why sexual abuse of children by authority figures has been such a problem.

Torture is wrong under all circumstances (not that that statement coming from me should surprise you) but treating children as adults is even more wrong.

Random Michelle K Sunday, February 22, 2009 at 12:34:00 PM EST  

Re my friend the Marine, she stated it better than I did, but that is the gist of what we said.

Everyone in class was stunned by her admission, but it did make sense when she explained it. The fact that a very petite, very attractive woman was taking about how deadly she was trained to be, made her assessment of other women as threats much more logical.

Eric Sunday, February 22, 2009 at 12:41:00 PM EST  

I think Michelle hits the nail on the head: if Sgt. Speer and his unit had been forced to kill Khadr in action, it would have been a tragedy of war but absolutely no blame could fall on the Sergeant and the unit; tragic things happen in war, and the shame would be entirely on the people who turned a child into a soldier.

But once Khadr was taken off the battlefield, the situation and the applicable rules changed. It's not that the prisoner is no longer "the enemy," but that the rules for how an enemy is treated change.

I think--I hope--that's the path out of your conflicted feelings, Janiece. When Khadr became a prisoner, he was no longer a combatant.

Janiece Murphy Monday, February 23, 2009 at 6:01:00 PM EST  

Okay, I understand what you and Michelle are saying.

But if he's no longer a combatant, then what is he? Clearly he's a victim of his upbringing, but he's also someone who has been trained to kill his enemy, has done so, and may do so again if released.

Eric Monday, February 23, 2009 at 6:49:00 PM EST  

He's a prisoner, and subject to the regulations set forth in the Geneva Conventions and in the CRC: no torture, due process, "all appropriate measures to promote physical and psychological recovery... [etc.]," and so on.

In terms of practical steps, and in terms of whether it's too late now after several years of violating our obligations... that's a tougher one, and I don't know that I have an answer right at hand, Janiece. Figuring out a way to repatriate him to Canada seems like a start--not to pass the buck, but because that seems to be where he may have responsible family members.

Random Michelle K Monday, February 23, 2009 at 9:04:00 PM EST  

Janice, there are groups that exist to repatriate child soldiers.

No, I'm not going to look them up, because that will take me even further away from my happy place. But that would be my suggestion.

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