On Sunday, a military jury at Guantánamo handed down a 40-year sentence to Omar Khadr, the Canadian citizen who was just 15 years old when he was seized after a firefight in Afghanistan. The decision brought to an end a week of hearings that began when Khadr, now 24, accepted a plea deal giving him an eight-year sentence in exchange for agreeing that he was guilty of murder in violation of the laws of war, spying, conspiracy, providing material support to terrorism and attempted murder, with one year to be served in Guantánamo and the remaining seven in Canada.
Because the sentence negotiated as part of the plea deal is less than the one delivered by the military jury, the latter will stand only as a symbolic conviction, but it will be seized upon by those who have long wished to have Khadr convicted as a dangerous terrorist. In addition, the 40-year sentence confirms that, since last Monday, when Khadr accepted his plea deal at Guantánamo, two worlds – and two wildly divergent views of American justice – have coexisted unhappily.
In the first, Khadr’s acceptance that he threw the grenade that killed Delta Force Sgt. Christopher Speer, at the end of a four-hour firefight in Afghanistan on July 27, 2002, and his acceptance that he was a member of al-Qaeda and an “alien unprivileged enemy belligerent,” who did not have “any legal basis to commit any war-like acts,” was a vindication of the system of trials by military commission at Guantánamo that was revived last year by President Obama.
In the other, everything about the last week’s events has been a travesty of justice that heaps shame upon the United States and convicting Khadr for being an “alien unprivileged enemy combatant,” who was not even allowed to legitimately be in any kind of combat situation whatsoever, is an almost incomprehensible farce.
Moreover, the analysis of the last week’s events as a disturbing travesty of justice is supported by the United States’ ratification, in December 2002, of the UN Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict and also by analyses of the legislation authorizing the military commissions, which reveals that the war crimes that Khadr agreed to committing as part of his plea deal are not war crimes at all.
Under the terms of the UN Optional Protocol, which deals with prisoners who are under 18 when their alleged crimes take place, signatories are obliged to “[r]ecogniz[e] the special needs of those children who are particularly vulnerable to recruitment or use in hostilities,” and are also called upon to ensure “the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.”
In Khadr’s case, however, his conviction in a war crimes trial under President Obama only serves to reinforce the melancholy truth that little has changed since it was revealed in 2003 that juvenile prisoners – as many as 22 in total – were being held at Guantánamo and defense secretary Donald Rumsfeld responded to reporters’ concerns with the memorable quip, “these are not children.”
As for the war crimes, even putting aside for a moment any reasonable doubts that Khadr may only have agreed to the charges in order to secure his release, the crimes in question are only recognized as war crimes by the Obama administration and by Congress, as Lt. Col. David Frakt, a law professor and the former military defense attorney for two Guantánamo prisoners, has explained.
Back in April, Lieutenant Colonel Frakt made it clear that, when it came to the central charge of “murder in violation of the law of war,” even if Khadr did throw the grenade, “there is no evidence that he violated the law of war in doing so.”
This confusion first arose 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, in 2006 and, disturbingly, last year under Obama, Congress maintained this unjustifiable position by refusing to distinguish between legitimate and illegitimate actions during wartime.
Lieutenant Colonel Frakt 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.
Furthermore, in a cynical attempt to overcome this glaring contradiction between legitimate and illegitimate actions in wartime, the Obama administration added the following “official comment” to the explanation of the offense of “Murder in Violation of the Law of War” in the new military commissions Manual:
[A]n accused may be convicted in a military commission … if the commission finds that the accused engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.
As Lieutenant Colonel Frakt commented, “Astoundingly, according to the Pentagon, a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war.”
In other words, then, a former child prisoner, who should have been rehabilitated rather than punished, because the responsibility for his actions lay with his militant father, was convicted on war crimes charges that were invented by Congress and were then reworked by the Obama administration so that the glaring contradiction between real war crimes and invented war crimes could be papered over with a veneer of legitimacy.
Small wonder then that, in the “Statement of Fact” that Khadr signed as part of his plea deal, he was also obliged to waive his right to appeal, in a passage that stated that he “does not have any legal defense to any of the offenses to which he is pleading guilty.”
With such grotesque distortions of justice taking place over the last week, it is easy to forget that the judge, Army Col. Patrick Parrish, had also prevented Khadr’s lawyers from drawing on their client’s well-chronicled reports of his torture and abuse in US custody. As a result, claims that Khadr was subjected to abusive treatment in Bagram – and was later subjected to variations on the reverse-engineered torture techniques used in Guantánamo and derived from the US military’s Survival Evasion Resistance Escape program (SERE) – were not even mentioned until the final day of his sentencing hearing,
In their closing comments, his lawyers managed to introduce a statement, written by Khadr, referring to the terror he felt when an interrogator, Sgt. Joshua Claus, threatened him with being sent to a US jail where he would be raped by “four big black guys.”
Claus served a five-month prison sentence for the abuse of an unidentified prisoner at Bagram and for his part in the murder of Dilawar, an Afghan taxi driver who was murdered in Bagram in December 2002, but this was a relatively mild anecdote, compared to other claims made by Khadr over the years – that on one occasion in Guantánamo, for example, he was used as a human mop after urinating on himself while being held in isolation and subjected to painful short-shackling and that he was regularly threatened with rape and with being transferred to another country where he could be raped.
In conclusion, while those who exult in the depths to which America has sunk over the last nine years, since “the gloves came off” following the 9/11 attacks, will rejoice in Khadr’s 40-year sentence (and will complain that his real sentence is only eight years), anyone who retains a shred of decency and respect for the rule of law will be more inclined to accept the words of Dennis Edney, one of Khadr’s long-term Canadian civilian lawyers, who stated after the military jury announced its sentence:
The fact that the trial of a child soldier, Omar Khadr, has ended with a guilty plea in exchange for his eventual release to Canada does not change the fact that fundamental principles of law and due process were long since abandoned in Omar’s case. Politics also played a role. To date, there have been in excess of 1,200 US troops killed in Afghanistan, yet it is only Omar who has been put on trial.
Edney followed up by referring to those two polarized worlds of opinion that I mentioned at the start of this article, saying that those watching the military commission “may choose to believe that through his plea Omar finally came clean and accepted his involvement in a firefight when he was 15 years of age,” or, conversely, that they may have concluded that “this was one final coerced confession from a victimized young man who was in the wrong place at the wrong time because his father placed him there.”