The Betrayal of Omar Khadr – and of American Justice
Yesterday morning, wearing a dark suit, a white shirt and a dark tie, Omar Khadr, the Canadian citizen who was just 15 years old when he was seized after a firefight in Afghanistan in July 2002, ended an eight-year struggle — first by the Bush administration, and then by the Obama administration — to convict him in a war crimes trial at Guantánamo, when he accepted a plea deal in exchange for a reported eight-year sentence.
According to an article in the Miami Herald, drawing on comments made by “two legal sources with direct knowledge” of the deal, Khadr said he “eagerly took part in a July 28, 2002 firefight with US Special Forces in Afghanistan that mortally wounded Sgt 1st Class Christopher Speer.” This was the crux of the case against him, and a charge that he had always previously denied. He also said that he had “aspired as a teen to kill Americans and Jews,” and described his father, Ahmed Said Khadr, who had been responsible for taking him on numerous visits to Pakistan and Afghanistan as a child, leading to the events on the day of his capture, as “a part of Bin Laden’s inner circle, a trusted confidant and fundraiser.”
Khadr’s plea was submitted to the judge, Army Col. Patrick Parrish, by his military defense lawyer, Army Lt. Jon Jackson, and Col. Parrish made sure that he knew what he was doing as he ran through the charges. “Yes,” Khadr replied. “You should only do this if you truly believe it is in your best interests,” Col. Parrish then told him. “Yes,” Khadr replied again. According to the Miami Herald, his voice was “a near whisper,” but became stronger as Col. Parrish read out the charges.
As the Globe and Mail described it, Khadr “assented to knowing that he was attacking civilians, that he wanted to kill US troops, that he planted mines and that he received one-on-one terrorist training from an al-Qaeda operative.” He also agreed that he was a member of al-Qaeda, and was an “alien, unprivileged, enemy belligerent,” who was “unqualified therefore to shoot back or engage in combat hostilities with US or other coalition forces,” and also said that he understood that he was guilty of “murder in violation of the laws of war.”
For the United States, the plea deal means that a trial has been avoided, dimming the glare of the global media spotlight on the embarrassing prospect of the first war crimes trial of a child soldier since the Second World War. Instead, according to the Military Commission rules, a limited amount of evidence will be submitted this week — including testimony from Tabitha Speer, the widow of the Special Forces soldier killed by the grenade in the firefight that led to Khadr’s capture, and statements by mental health professionals for both the prosecution and the defense — before a seven-member military jury will deliver its own sentence. As the details of Khadr’s plea deal have not been made public, this strange formality (which involves a sentence without a trial) will only mean anything if the jury delivers a less severe sentence than the one negotiated in secret.
This, however, is not the main problem with yesterday’s outcome, which blurs the parameters of justice horribly, creating the impression that Khadr is guilty, even though he may only have agreed to confess in order to secure a favorable sentence. This is something that Daphne Eviatar, an observer for Human Rights First, noted in an excellent article in the Huffington Post, when she explained that “it was clear that prosecutors had taken the opportunity to throw the kitchen-sink-full of charges at him — including far more crimes than he’d even been charged with. Most importantly, Khadr pled guilty to killing two Afghan soldiers who accompanied US forces in the 2002 assault on the compound. The government has never presented any evidence whatsoever that Khadr was responsible for that, and did not claim he was in its opening statement at trial.”
In addition, Khadr’s guilty plea enables the Obama administration to disguise the many fundamental flaws with the Military Commissions, which might have been exposed during a trial.
Because Khadr’s plea deal is presumed to stipulate that he cannot appeal, the administration will be able to tell the world that the Commissions are “fair and just,” although they are no such thing. One problem, of course, is that a former child prisoner has been subjected to a trial after eight years of imprisonment in an experimental prison devoted to arbitrary detention and coercive interrogation, when he should have been rehabilitated, according to the UN Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (which the US ratified in December 2002), but another concerns the nature of the crimes to which he confessed.
This second problem — which focuses on the fundamental legitimacy of the Commissions — was illustrated starkly in the Globe and Mail’s description of how Khadr agreed that he was an “alien, unprivileged, enemy belligerent,” who was “unqualified therefore to shoot back or engage in combat hostilities with US or other coalition forces,” and also how he reportedly understood that he was guilty of “murder in violation of the laws of war.”
Back in April, Lt. Col. David Frakt, a law professor and the former military defense attorney for two other Guantánamo prisoners, Mohamed Jawad and Ali Hamza al-Bahlul, spelled out the problems with these charges in no uncertain terms. Writing of the central charge of “murder in violation of the law of war,” Lt. Col. Frakt explained that, even if Khadr did throw the grenade, “there is no evidence that he violated the law of war in doing so.”
As I explained in an article about Khadr two months ago, he added that “the confusion arose initially because the Bush administration wanted to find a way to ensure that ‘any attempt to fight Americans or coalition forces was a war crime,’ and that Congress, in enacting two pieces of legislation relating to the Military Commissions in 2006 and in 2009, maintained this unjustifiable position by refusing to distinguish between legitimate and illegitimate actions during wartime.”
Lt. Col. Frakt also explained that the Bush administration’s original invented charge for the Commissions — “Murder by an Unprivileged Belligerent” — was, essentially, replaced by the Congress-endorsed “Murder in Violation of the Law of War,” even though it “conflated two different concepts — unprivileged belligerents and war criminals.”
Under Article 4 of the Geneva Prisoner of War Convention it is clear that while a member of an organized resistance movement or militia may be an unprivileged belligerent (because of not wearing a uniform or failing to carry arms openly, for example) he may still comply with the laws and customs of war, so not all hostile acts committed by unprivileged belligerents are war crimes. Attacks by unprivileged belligerents which comply with the law of war (in that they attack lawful military targets with lawful weapons) may only be tried in domestic courts. In Iraq, for example, insurgents who try to kill Americans by implanting roadside bombs are properly arrested and tried before the Central Criminal Court of Iraq as common criminals. Attacks by unprivileged belligerents which violate the law of war, such as attacks on civilians or soldiers attempting to surrender, or using prohibited weapons like poison gas, can be tried in a war crimes tribunal.
With Khadr’s plea deal, the uncomfortable truth about the Commissions — that they have been established to try non-existent war crimes — has been swept aside as thoroughly as it was in the case of Ibrahim al-Qosi, who accepted a plea deal in July. As a result, Omar Khadr may have taken the only realistic route open to him, but the price has been the apparent validation of a fundamentally lawless process, which could have been legally challenged had he been subjected to a full trial.
Back in July, Omar Khadr refused to accept a plea deal, and, in a letter to Dennis Edney, one of his Canadian lawyers, wrote, “there must be somebody to sacrifice to really show the world the unfairness [of the Commissions], and really it seems that it’s me.” It is understandable that — faced with an eight-year sentence, or the possibility of a life sentence in exchange for a “sacrifice” — Khadr chose the former option.
However, it remains deeply depressing that the Obama administration will be able to maintain the fiction that the Military Commissions are capable of delivering justice, and also that it now appears to be irrelevant that Khadr was a juvenile prisoner, subjected to horrific treatment, because he has conceded, in circumstances that may not have been conducive to telling the truth, that he was in fact a terrorist.