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 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 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.
Note: The courtroom sketch above is by Janet Hamlin, and is courtesy of Janet Hamlin Illustration.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.
For a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Predictable Chaos As Guantánamo Trials Resume (July 2009), David Frakt: Military Commissions “A Catastrophic Failure” (August 2009), 9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please? (September 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Military Commissions Revived: Don’t Do It, Mr. President! (November 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), Rep. Jerrold Nadler and David Frakt on Obama’s Three-Tier Justice System For Guantánamo (November 2009), Guantánamo: Idealists Leave Obama’s Sinking Ship (November 2009), Chaos and Confusion: The Return of the Military Commissions (December 2009), Afghan Nobody Faces Trial by Military Commission (January 2010), Lawyers Appeal Guantánamo Trial Convictions (February 2010), When Rhetoric Trumps Good Sense: The GOP’s Counter-Productive Call for Military Commissions (March 2010), David Frakt’s Damning Verdict on the New Military Commissions Manual (May 2010), Prosecuting a Tortured Child: Obama’s Guantánamo Legacy (May 2010), The Torture of Omar Khadr, a Child in Bagram and Guantánamo (May 2010), Bin Laden Cook Accepts Plea Deal at Guantánamo Trial (July 2010), Defiance in Isolation: The Last Stand of Omar Khadr (July 2010), Omar Khadr Accepts US Military Lawyer for Forthcoming Trial by Military Commission (July 2010), A Letter from Omar Khadr in Guantánamo (July 2010), Bin Laden Cook Expected to Serve Two More Years at Guantánamo – And Some Thoughts on the Remaining Sudanese Prisoners (August 2010), Lawlessness Haunts Omar Khadr’s Blighted War Crimes Trial at Guantánamo (August 2010), No Surprise at Obama’s Guantánamo Trial Chaos (September 2010).
[…] This post was mentioned on Twitter by Dominique Rodier, Andy Worthington. Andy Worthington said: The Betrayal of Omar Khadr – and of American Justice – Plea analysis & call for caution re: "truth" of Khadr's crimes: http://bit.ly/btCWKs […]
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.
I actually don’t think so: the world is already well aware that the military commissions are a mockery of lawful procedure, let alone justice; the American people by and large do not… but more importantly, couldn’t care less. And so, I don’t think this is about touting the “favorable result” of yet another guilty plea and/or conviction (and the commissions are now “5 for 5,” Khadr joins Hicks and al-Qosi in pleading guilty, and of course, al-Bahlul and Hamdan were “found guilty” after “trial”… al-Bahlul sentenced to life after standing mute during the “trial,” and Hamdan now having been released to Yemen).
I think this is more about avoiding the [international] embarrassment about completing the course they set on– the “trial” for a “war crime” of a juvenile who (1) was 15 and (2) likely unconscious at the time of the events in question, (3) which, of course, were not “crimes” let alone “war crimes” and (4) the “evidence” against Khadr was largely his confessions obtained under torture (and, if you like, “torture-like” circumstances of withholding medical treatment after he had been wounded in combat).
Obama, Holder, et al. also have to walk a fine line here, having affirmatively campaigned in 2008 by pointing out the fundamental injustice and flawed nature of military commissions. That said– their own “base” is more likely to get off their back if they get a guilty plea here, and the bloodthirsty mass of Americans who couldn’t care less about the fairness of the proceedings will move on now, accepting that a plea bargain has been reached, even if it means Khadr returns to Canada, and probably gets released there in relatively short order.
[I’m also somewhat fascinated as to why the forced alocution of Khadr required him to say that he intended to “kill Jews” as well as Americans; I suppose that detail must be useful for some domestic constituency here.]
I really don’t blame Omar Khadr for accepting a deal. Did he really have any choice? He is choosing between two paths of terrible suffering. I hope Omar Khadr can one day see that he is supported in the world. That many people are working hard against injustice. And many of us are praying for those who are suffering from oppression. What good has come from this ‘war on terror’? I cannot see the world is a better place because of it. There is only more pain, more suffering, growing distention and division of people. Peace is never achieved through violence.
Excellent comments, Tashi. Thanks.
Hi, TD. Great to hear from you. I was just thinking about you — and had recourse to your comments about free speech and why the powers-that-be allow us to function after arrively safely and unmolested in San Francisco two weeks ago. For those not privy to that information, it involves an acceptance that we have free speech until, or unless we cause enough of a stink to threaten the existing power structures.
So OK, you’re right — I should have written that the adminstration will be able to tell hideous screeching right-wingers that the Commissions are “fair and just,” so that they can spew their venom about how he was always a terrorist because now he’s admitted that he was. As if they needed any more ammunition …
So thanks again, Barack Obama and Eric Holder. Your face-saving plea deal, with its risible list of confessions, will now be used to repeatedly bash those of us who doubt the truth of admissions in a plea deal as much as we have always doubted the quality of the “evidence” against the Guantanamo prisoners in general …
Again, Mr. Worthington, I commend you for resolutely (if not tirelessly) reporting on one of the most abominable and depraved aspects of Amerika’s misbegotten and atrocious “Global War on Terror”. (I know they’ve “re-branded” that Official Term with new aliases, but I can never keep track of the euphemism du jour.)
Candidly, whenever I see your byline I have to take a deep breath and steel myself before reading– and some days I just can’t do it. I don’t see how YOU can do it as the months turn into years, but I respect and admire you for it.
What a tragic and horrific travesty of justice!
It wasn’t the first, and it won’t be the last misrule of law perpetrated in the Amerikan Imperium’s quest for a thousand-year Reich. But custom cannot stale the righteous outrage, revulsion, and despair such unremitting state-sponsored iniquity prompts in fair-minded, compassionate observers after each and every heinous instance.
I watched some vile military spokesperson on teevee– I can’t remember his name, but “Colonel Eichmann” will do– blithely assert that this “verdict” utterly refutes that Khadr is a victim, and incontrovertibly establishes that he is in fact a heinous criminal properly convicted by his own freely-given testimony.
Regrettably, the “colonel”‘s forked tongue did not swell up and protrude until it wrapped around his own neck like a boa constrictor and choked him. I would gladly have suffered the challenge to my skeptical agnosticism for the privilege of seeing it.
I suppose I should give “Colonel Eichmann” credit for not adding that another benefit of this conviction is that it proves, against all criticism, that torture DOES TOO work!
For a rogue terrorist security state like Amerika, my native land, such wanton obscenities are gifts that never stop giving.
Thank you, Little Brother. Good to hear from you again. That really is an excellent analysis.
There are many things wrong with the US “justice” system but if I were to pick out one aspect that I consider the worst of all it is the corrupt system of plea bargaining. The problem is that there are no limits on the differential between the sentence credibly threatened to those who insist on going to trial and that from a plea bargain. This puts factually innocent defendants in an impossible situation, their lawyers are probably correct in advising them to take the plea. The threat of a draconian sentence at trial is credible because the state can concentrate its enormous resources on those foolish enough to resist a plea offer and because most juries do not actually grant the defendant the vaunted presumption of innocence.
Unfortunately too many people do see the acceptance of a plea as an admission of guilt as with the details of the plea negotiations being secret and their being unaware of the strong presumption of guilt that those who go to trial face they are unaware of how overwhelming is the pressure to take the plea. Those who take a plea are required to answer a question in the negative as to whether their decision to take the plea is in fact coerced which is absurd as the essence of the plea process is coercion. In the case of Omar Khadr, the prosecutors may have said to him that they will imprison him for life even if he is acquitted at trial.
It may be that Omar Khadr might have been wiser to refuse the plea and go to trial, but it is a lot to expect wisdom from someone beaten down by 9 years of American mistreatment. I seriously doubt that Omar Khadr was in a psychological condition to evaluate the alternatives. Of course this is the normal case for those offered pleas, by the time that a plea is offered the defendant has been made aware of the enormous power that the state has over him and the depth of prejudice that he faces as an accused criminal.
From now on I will cheer and give thanks to almighty Lucifer whenever I hear of an American, Australian or Britan killed in Iraq or Afpakistan or killed by terrorist action anywhere in the world.
[…] Worthington, author of The Guantanamo Files, discusses Omar Khadr‘s plight from when he was a 15 year old battlefield prisoner in Afghanistan to a 24 year old […]
Here are some comments from Common Dreams:
From Geneva convention: “Attacks …which violate the law of war, such as attacks on civilians or soldiers attempting to surrender, …can be tried in a war crimes tribunal”
So are those helicopter attacks on Reuters people and civilians chatting on cell phones and also those attempting to surrender going to be prosecuted as war crimes?
Not likely, some nations have double standards.
Betrayal of American justice: yes. Also, unfortunately, betrayal of Canadian justice. For a good summary of the failure of the Supreme Court of Canada in this case see lawyer Gail Davidson’s article “Torture as Foreign Policy,” here:
After EIGHT YEARS of psychological and physical torture, it is no surprise that Omar Khadr now openly parrots whatever line his captors tell him to say.
Yeah. If I was American I would be so damn proud of the destruction of a child’s mind.
Eight years of hell in Gitmo, held illegally, in violation of US law, international law and the Geneva Conventions, betrayed by the lapdog Canadian Government, forced into a guilty plea which sentences him to eight more years of hell in an American prison, only to face the prospect of being declared a ‘danger’ to the US if he is ever released, and thus condemned to rot in prison until he dies.
All for allegedly defending himself from US soldiers who were doing their best to slaughter Afghan civilians.
Those facts must make every red-blooded patriotic ‘Murica feel just prouder’n’shit!
Non Serviam – I will not serve.
Michael F replied:
He did not parrot whatever line his captors told him to say. He merely said ‘yes’ and nodded at the pre-scripted points in Parrish’s regurgitation, as his lawyers instructed him he must…which is not infrequently the case with others forced to accede to plea-bargains.
Not only was there no evidence against Khadr, who was wounded in a building attacked by U.S. forces, but U.S. law required that Khadr be treated as a victim, not a combatant, because he was only 15 years old.
Dave Lindorff puts it very well:
“…The biggest outrage in this case is that Khadr was 15 when he was captured. Under the Optional Protocol to the UN Convention on the Rights of the Child, a treaty that was signed by the US and that is thus part of US law, all children under the age of 18 captured while fighting in wars are to be offered “special protection” and treated as victims, not as combatants.
“The “special treatment” afforded to Khadr after his capture, however, was to be tortured, as has been recounted even by US military witnesses, who have described his being chained with his arms above his head, despite being seriously wounded, threatened with rape, interrogated only hours after being operated on for his wounds, kept in solitary confinement, and so on….
“This is simply a disgusting case that offends any sense of decency, and makes both America and this president look no better than Iraq under Saddam Hussein”
“America and Obama Hit Bottom: Pressuring Child Soldier to Plead Guilty to Murder Violates International Law and Basic Common Decency,”
Absurdities now pile up as news. A 15 year old child, in the US legal system, is a “war criminal” in the same category as Nazi leaders like Goring and Tojo, is a danger to humanity and needs to be locked up for our safety. But Bush, Blair and others in their administrations, with the deaths of hundreds of thousands of innocent civilians on their hands, are not war criminals and need to hit the lecture circuit to earn millions telling their tales and giving us advice. Absurd.
Again, a major Obama disappointment.
While campaigning he stated that confessions obtained by torture would not be acceptable – it would have been a simple matter as C-in -C to pass a regulation for the military tribunals to that effect.
Instead he allowed this travesty of a judicial process to determine by its outlandish terms that the statements of this teenager obtained under circumstances that clearly constituted torture to be found to be admissible against him.
Where has the Obama of pre-Nov. 2009 disappeared to ?
Thank goodness Obama and Biden won in 2008, and with large Democratic majorities in both houses of Congress. Think if McCain and Palin had won, and/or if the Republicans had won control of one or both Houses . . .
If McCain/Palin had won, the Tea Party idiots would be burning gays at the stake right about… now.
Michael F wrote:
According to Eviatar:
…as part of his plea agreement Omar Khadr has waived his right to appeal his conviction or to sue the United States for his confinement or treatment…
Of course, the US would raise the ‘contractual’ provision if he tried to sue, but couldn’t he plead contract of adhesion (for unconscionability) against that?
And of course, he couldn’t do anything while in US custody. They’d just dig a mineshaft under Guantanamo and stick him in it forever.
May the good lord bless and keep our Beloved Leader…far away from us.
How does a citizen of a nation invaded by a foreign power get convicted of being a war criminal when he shoots back at the foreign invaders?
John Mitchell replied:
Come on Rainborowe, read the fine print. As the article states, Lt. Col. David Frakt said that “the Bush administration wanted to find a way to ensure that ‘any attempt to fight Americans or coalition forces was a war crime.'” Case closed.
From a legal perspective, I suppose that the fact that Mr. Khadr was a Canadian citizen played a role in the judgment, but the complete disdain that the U.S. government has shown for the rule of law makes any legal arguments on its part preposterous.
Had I, as a teenager, been subjected to “eight years of imprisonment in an experimental prison devoted to arbitrary detention and coercive interrogation,” I would say anything that a lawyer and a court would expect of me, particularly that I willingly participated in an activity that involved killing that torturous enemy. If I hadn’t seriously entertained the feeling before, I certainly would do so now… Because yes, by that point, I would hate them.
Also, my friend Kabuli sent me the following response:
The ‘deal’ Omar Khadr was pressurised to accept, must be the most depressing one I have seen yet.
I know you dislike conspiracy theories, but I admit that when I learned that his attorney was ‘suddenly taken ill’ and whisked off to the mainland, my first thought was that they added something to his morning coffee, in order to get him out of the way and buy more time to break Omar’s resistance, as evidently it is not easy to keep alive the flame of such courage over a prolonged period, in addition without the moral support of your lawyer.
And they got their way.
There are no words vehement enough to describe this criminal travesty of ‘justice’. Will no one stand up in US (or Canadian) government and finallly say aloud that this went too far by all possible standards?
Poor kid, what a prospect.
Why another year in Guantanamo, to further wash his brain, so that by the time he gets to the Canadian jail (not much to look forward to either), he won’t be able to utter any comoprehensible words anymore?
Thanks for your continued effort in highlighting these abuses of justice.
You’re welcome, Sinclair. Good to hear from you.
[…] Worthington, author of The Guantanamo Files, discusses Omar Khadr‘s plight from when he was a 15 year old battlefield prisoner in Afghanistan to a 24 year old […]
[…] bon résumé de la situation est donné par Andy Worthington http://www.andyworthington.co.uk/2010/10/26/the-betrayal-of-omar-khadr-and-of-american-justice/ Il est l’auteur renommé de « The Guantanamo Files. The Story of the 774 Detainees in […]
[…] That led directly to the notion that mandatory military custody for terror suspects is somehow acceptable, when it is clearly not, and left the administration, like an unconvincing puppeteer, holding Military Commission trials at Guantánamo which they have so far failed to endorse confidently, reaching plea deals in all three cases dealt with to date — those of Ibrahim al-Qosi, Noor Uthman Muhammed and Omar Khadr. […]
[…] who was seized at the age of 15 after a firefight in Afghanistan in July 2002, accepted a plea deal in his war crimes trial at Guantánamo in October 2010, on the basis that he would serve an […]
Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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