No One Cares About Child Soldiers if They're in Guantanamo

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.