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 Guantanamo, 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 thought 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 Guantanamo 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."

He continued:

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.