Omar Khadr. (Photo: 4WardEver UK)
Lawyers for Omar Khadr are negotiating a plea deal that would sentence him to eight years in prison for several charges, including attempted murder, conspiracy and material support of terrorism. The deal would allow Khadr to serve seven of the eight years in Canada, his home country. Khadr is the first child soldier to be prosecuted for a war crime since World War II.
Khadr, now 24, has been in Guantanamo since October 2002, facing accusations of throwing a grenade that killed US soldier Sfc. Chris Speer in Afghanistan. His case has set a number of questionable precedents under US and international law.
The Optional Protocol of the United Nations Convention on the Rights of the Child of 2000 requires states that are party to the convention, including the US, to provide "the physical and psychosocial rehabilitation and social integration of children who are victims of armed conflict" and prohibits them from subjecting children 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 offenses committed by persons below eighteen years of age." According to the Optional Protocol, the United States should have treated the then 15-year-old Khadr as a child soldier and a victim; although international law does not prohibit prosecution of child soldiers, the Optional Protocol required that Khadr be offered rehabilitation in custody and eventually repatriated home.
In addition, Khadr's faces charges for acts that were not considered war crimes at the time of his first military commission. Details are unclear whether Khadr will plead guilty to all the charges; earlier this year, he stated that he would never admit to committing murder.
Amid evidence that Khadr was tortured at Guantanamo and Bagram, where he was held for the first few months after his capture, the potential plea deal would bring the total number of US terrorism convictions by military commissions to five. Meanwhile, US federal courts have convicted more than 400 terrorists since 9/11, including the most recent sentencing of Faisal Shahzad for his attempted bombing of Times Square in May 2010.
Dixon Osburn of Human Rights First stated, "[Khadr] was forced to endure eight years of detention at Guantanamo while the United States attempted in vain to 'fix' its broken military commissions model." The plea deal means "there's now an end date in sight ... if he were in the military commissions system, one would expect appeal after appeal because there are so many legally infirm charges against him and the process is constitutionally suspect."
During his time at Guantanamo, Khadr has been reported to have been deprived of sleep; kept in solitary confinement; denied adequate medical treatment for his eye, which was permanently blinded by shrapnel during the firefight in Afghanistan; bound in stress positions; and threatened with rape and torture by military interrogators.
"Even though he should have been tried as a child soldier, this may be his best option," Osburn said.
Khadr's case has been complicated by a non-supportive Canadian government. Although the majority of Canadian citizens are in favor of repatriating Khadr back to his home country, reports in late 2009 revealed that Ottawa had spent more than $1.3 million to keep him in Guantanamo. The Canadian Cabinet also refused to acknowledge Khadr's status as a child soldier or investigate his claims of abuse at the hands of US soldiers.
"Political heat and rhetoric around the issue of Guantanamo Bay have completely distorted reality," Osburn said. "The political eye has turned blind to what continues to languish."
After Khadr's defense team accused Canadian government lawyers and Canadian Security Intelligence Service (CSIS) agents of interrogating Khadr to help military commission prosecutors reach a conviction, the Canadian Supreme Court ruled that their actions violated Khadr's constitutional rights. But the justices also stopped short of ordering Khadr's repatriation; instead, they left the decision to the government, which has yet to request his return.
The American Civil Liberties Union (ACLU) is also among the many influential organizations that has pushed for Khadr to be sent home. According to ACLU Human Rights Program researcher Jennifer Turner, the plea deal will not only end the military commission process for Khadr, but will enable the US to be avoid the shame of placing a child soldier on trial. "The administration that claims they want to restore human rights is making history with prosecuting a child soldier in war crimes for the first time since World War II," Turner said. "[Military commissions] are completely incapable of providing a fair trial. Anyone who's accused of a terrorism crime should be prosecuted in US courts."
The decision process for determining which alleged terrorists are sent to Guantanamo rather than federal prison is unclear. "People are caught in combat, people who were just swept up," Osburn said. "For the vast majority of [prisoners], there was no credible evidence. They were in the wrong place at the wrong time, or a neighbor pointed a finger at them. There's no rational process."
According to Human Rights First, Khadr's treatment at Guantanamo violates Common Article 3 of the Geneva Conventions, which prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" and "outrages upon personal dignity, in particular humiliating and degrading treatment," and ensures that "the wounded and sick shall be collected and cared for," among other acts. According to the Department of Justice (DOJ), the current administration has relocated or freed 66 prisoners from Guantanamo since the beginning of Obama's presidency. A total of 174 men remain, including Khadr, and conditions have improved after Obama signed an executive order that prohibited the CIA from using interrogation techniques beyond those outlined in the US Army Field Manual.
"One of the improvements under Obama has to do with treatment of prisoners and outlawing use of torture," Turner said. "That doesn't mean Guantanamo Bay is okay. There are ongoing issues with isolation, indefinite detention ... [and] the military commissions are fundamentally flawed and unconstitutional."
"No matter what happens, Khadr should be repatriated. He's been through a nightmare of military commissions for years. It's a circus and it's time for it to end."