The son of an al-Qaeda official who had brought his family to live in Afghanistan and who died in 2003, he pleaded guilty to the following charges: murder in violation of the laws of war; spying; providing material support for terrorism; conspiracy and attempted murder.
In exchange, Mr. Khadr was to receive an eight-year sentence, the last seven to be served in Canada.
Following his guilty plea, Omar Khadr was asked a long list of questions, a 50-paragraph, eight-page stipulation elaborating the details on which the plea agreement was based, entailing admitting all charges in the form of a public confession.
As a result, Khadr recognized being an alien, unprivileged, enemy belligerent.
Such belligerents, according to the US, have no legal right to attack US forces, even on the battlefield.
He also admitted to being a member of al-Qaeda, and of having committed murder in violation of the laws of war.
During a four-hour battle, he was accused of throwing a grenade that killed Sgt 1st Class Christopher Speer.
Sporting a dark suit, the young man, holding his head in his hands, repeatedly answered yes when asked by the judge to reply to the charges leveled against him.
The judge, Col. Patrick Parrish, asked Omar Khadr, has anyone forced you to enter into this stipulation? He answered no.
Later, he asked him, it’s your voluntary decision to continue with the plea of guilty?
Yes, he responded.
The judge also enquired whether anyone had made promises should he agree to plead guilty.
Naturally, the young man said no.
Tellingly, Omar Khadr, as part of the agreement, pledged to neither appeal the sentence nor later take legal action against the US.
One hour after it had begun, the hearing was over…
A further hearing would take place in the following days to determine the sentence of Omar Khadr, the first child soldier to be prosecuted by a Western nation since WWII.
Previously however, he had rejected a similar plea bargain offer because an admission of guilt would have justified the abuses inflicted on him since 2002, and, for all practical purposes, exonerated the US of all responsibility for torturing and arbitrarily detaining him for eight years.
I will not take any of the offers because it’ll give the US government an excuse for torturing me and abusing me when I was a child, he wrote.
Apart from his testimony, obtained in 2002 while he was wounded, and under duress at Bagram, described by an interrogator there as one of the worst places on Earth, there was little actual evidence against him, and no eyewitnesses to the principle charge, throwing the grenade that killed Christopher Speer.
In fact, there are reports-classified photographs and defence documents obtained by the Star-indicating that Khadr was already wounded and buried in rubble when Speer was killed. The prosecution ignored that evidence.
Why then, plead guilty?
Military commissions were created to produce guilty verdicts, regardless of the facts.
No one has ever been acquitted by such a court.
The day before the trial was to begin last August, the judge declared admissible Khadr’s forced confession…There was thus no mystery as to how the trial would end…
Last July, Omar Khadr repudiated all his lawyers, discouraged by a process he knew was specifically designed to convict him.
It is going to be the same thing with or without lawyers. It's going to be a life sentence, he wrote the court.
Before the trial, Guantanamo’s chief prosecutor, John Murphy told the press that there is a substantial likelihood of conviction based on the evidence.
A guilty verdict was therefore, a foregone conclusion and so would be the sentence delivered by a jury of US military officers: life in prison.
He is anxious to avoid a trial before that kangaroo court, Kate Whitling, one of Omar Khadr’s Canadian lawyers, told CNN.
The prosecutors had not dared to demand the death penalty, due to Khadr’s young age at the time of Speer’s death.
Did Khadr have much of a choice, hence?
There is no justice here. He either pleads guilty to avoid trial, or he goes to trial and the trial is an unfair process, his attorney, Denis Edney, told The Globe and Mail.
It came down to a choice, between an illegal trial and going home-and he chose the latter, he added.
The fact that the agreement stipulated that he could go home after one further year in Guantanamo was the decisive factor.
Tellingly, Omar Khadr had also accepted responsibility for two other murders no one had previously accused him of committing in order to secure a deal that would send him home.
For his lawyer, this confirms that he would have admitted to the killing of John F. Kennedy if doing so would have got him out of Gitmo.
Hence, Khadr’s admission of guilt was the only legal strategy possible, the only one enabling him to return to Canada.
For Khadr and his lawyer, it has no bearing on his actual responsibility for the deeds he is accused of having committed.
In our view, it’s all a fiction, Mr. Edney told The Globe and Mail. In our view, Mr. Khadr is innocent.
The irony is that his lawyer advised him to commit perjury and confess to murder and other serious crimes, as the lesser of two evils.
What is deeply disturbing about this case is the nature of the crimes Khadr was compelled to admit in order to avoid a trial that would have sent him to jail for life.
When MM. Obama and Gates revived the military commissions last year (the former had initially suspended them upon becoming President), a new definition of war crimes was appended.
According to Lt. Col. David Frakt, a former Guantanamo military defense lawyer, a detainee may be convicted of murder in the violation of the law of war even if they did not actually violate the law of war…
In the new [Military Commissions] Manual the following official comment has been included in explanation of the offense of Murder in Violation of the Law of War: « an 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», he added.
In short, the US reserves the right to accuse and convict anyone it chooses of war crimes, at its discretion, even if no war crimes were committed…
Secondly, the US will ignore international law when it finds it convenient to do so.
In essence, only in the US are the actions Omar Khadr has been accused of committing on the battlefield war crimes.
Everywhere else, they would have been considered but acts of war.
As a soldier, Christopher Speer did not enjoy a protected status (he was neither unarmed nor injured at the time of his death, for instance), and was killed during a four-hour firefight.
Furthermore, juveniles, even on a battlefield, are protected under international law.
Those holding them are under the obligation to assure their rehabilitation and social reintegration (UN Standard Minimum Rules for the Administration of Juvenile Justice, Beijing Rules), and provide educational and recreational opportunities (UN Rules for the Protection of Juveniles Deprived of their Liberty).
Instead, the US chose to ignore international law, detain him for years, abuse and torture him, and try him as an adult for war crimes no one recognizes as such but the US, though he was but fifteen at the time.
No wonder President Obama did not want him judged in federal court...
Martin Scheinin, UN special rapporteur on counter-terrorism and human rights, and professor of international law at the European University in Florence, Italy characterized the United States’ conduct in this case thus: I think it is a disgrace and a shame for the United States, he told AFP. None of the crimes for which Omar Khadr pleaded guilty are war crimes. Not a single one.
They are crimes codified in the Military Commissions Act several years after the fact. The court judging Omar Khadr is not even a military court, but a military commission which should not have the authority to deal with ordinary crimes, he added.
Furthermore, the charges that led to the Omar Khadr trial and conviction were not crimes when he was accused of having committed them…
In fact, wrote Daphne Eviatar, Senior Associate in Human Rights First’s Law and Security Program, they weren’t deemed war crimes by the United States until 2006- four years after Khadr allegedly committed them.
In essence, Khadr was imprisoned, judged and convicted for crimes that were not crimes at all when he supposedly committed them in 2002.
There is no justice here, to repeat Mr. Edney’s lucid conclusion.
On October 31st, the military commission jury, composed of seven officers, sentenced Omar Khadr to a forty-year prison sentence for the crimes he admitted committing during the initial hearing.
During the sentencing hearing, the prosecutor presented ten witnesses, including the widow of the fallen Sergeant, Tabitha Speer.
You will always be a murderer in my eyes, she told Khadr.
Everybody wants to talk about how he’s the victim, how he’s the child. I don’t see that. He made a choice. My children had no choice [and] didn’t deserve to have their father taken by someone like you, she added.
Another important witness was Dr. Michael Welner, who had had the opportunity to interview Omar Khadr for some seven hours over two days.
He explained that, in Guantanamo, Khadr had been marinating in a radical Islamic community.
He is devout. He is angry. He identifies with his family, which has radical leanings. He is not remorseful and he is not westernized although he is very articulate and smooth. He’s highly dangerous. He murdered. He has been part of al-Qaeda. And we’re still at war, he told the court.
Yet, Khadr would not have been in a position to marinate there, assuming he was, if the US had not arbitrarily detained him in Guantanamo.
The psychiatrist seems to be confirming an accusation made by many critics of Guantanamo: the arbitrary detentions and abusive treatment exacerbate (when they do not actually engender) Islamic militancy and radicalism, potentially transforming ordinary individuals caught by US forces (or sold to them by unscrupulous Afghans or Pakistanis) because they were in the wrong place at the wrong time, into dangerous extremists.
These individuals cannot be charged because there is no evidence, or if there is, has been potentially been defiled by torture.
Scores of Yemeni detainees for instance are still being held in Guantanamo even though the US government itself has conceded there are no longer any grounds to hold them.
Yet, due to the cargo parcel bomb plot revealed earlier this month, and last Christmas’ attempted attack on a US passenger aircraft also involving militants based in Yemen, no one in Washington has had the political courage to push for their release and send them home.
Congress and the White House seem to fear they may engage in militant activity should they return home.
Hence, even thought they have committed no wrong, and thus have been imprisoned arbitrarily, they are still being held for what they might one day do…
The Doctor’s testimony was undermined however, when it was discovered that his conclusions were based on the work of Danish psychologist Nicolai Sennels, author of Among Criminal Muslims.
The latter has characterized the Qur’an as a criminal book that forces people to do criminal things, and claimed that massive inbreeding within the Muslim culture during the last 1,400 years may have done catastrophic damage to their gene pool.
The defense was allowed to present only four witnesses.
Significantly, the details of the plea prevented Khadr's lawyers from putting anyone on the stand who actually knew Omar Khadr and believed he was not guilty, or at least didn't have a real choice about whether or not to assist al Qaeda and his father as an adolescent. A witness contradicting the plea would have called the entire deal into question, wrote Daphne Eviatar.
In addition, the judge refused to authorize any testimony regarding the abusive treatment inflicted on Khadr at both Bagram and Guantanamo.
One witness however, did contradict Welner’s testimony.
According to Cpt. Patrick McCarthy, a former legal adviser at Guantanamo, Omar Khadr was a model prisoner, respectful and helpful to military personnel.
Furthermore, he was not one of the radical detainees who assaulted guards.
Mr. Khadr was always very respectful. He had a pleasant demeanor. He was friendly…
Fifteen-year-olds, in my opinion, should not be held to the same level of accountability as adults, he concluded.
His account of Omar Khadr is corroborated by Arlette Zinck, and English professor at King’s University College in Edmonton, Canada, who developed an epistolary relationship with the young detainee.
Contrary to what Dr. Welner had alleged, Omar Khadr did not read only Harry Potter and the Qur’an.
Under cross-examination, he was compelled to admit that the young man also read Nelson Mandela’s Long Walk to Freedom, Obama’s Dreams from my Father, and A Long Way Gone: Memoirs of a Boy Soldier by Ishmael Beah, among other works.
This may have been the result of Ms. Zinck’s positive influence.
In the media, she described the young man as a voracious reader, and a polite, thoughtful, intelligent person.
Omar Khadr expressed interest in attending King’s University College after his release.
Zinck indicated that she would write him a letter of recommendation should he apply.
This was not sufficient to sway the jury, who sentenced him to forty years in jail.
Fortunately for Mr. Khadr, the plea agreement guaranteed a maximum sentence of eight years, with the last seven to be served in Canada, which has finally accepted his repatriation.
Canada, unlike other Western nations such as Australia, Britain or France has always refused to get involved and intervene in order to obtain the release of one of its citizens.
Even after the guilty plea was announced, Lawrence Cannon, a spokeswoman for Canada’s Foreign Minister declared, this matter is between Mr. Khadr and the US government. We have no further comment.
Canadian security agents however, did not hesitate to collaborate with the Americans.
They interrogated their own citizen and shared their findings with his American jailers.
The nation’s Supreme Court, in a 9-0 ruling, concluded that the government’s inaction offends the most basic Canadian standards about the treatment of detained youth suspects.
Canada’s only contribution to his well-being, according to Mr. Edney, was to send him a pair of sunglasses (he has only one eye remaining and the other is damaged as a result of the fighting in 2002) this summer…
For President Obama, the plea bargain and the sentence hearing had the double advantage of ending a trial that could only embarrass the US.
Nevertheless, the US President will be remembered in the history books for at least one, though sinister, deed: he is the only Western leader ever to prosecute a juvenile for war crimes.
It is a singular and signal accomplishment indeed, for he chose a path not even MM. Bush and Cheney dared to tread…
Needless to say, justice was certainly not served on that dismal occasion.
I think it’s a lose-lose, where both the Obama administration and Omar Khadr mitigated their losses and cut the best deal that they could, Col. Morris Davis, a former chief prosecutor of military commissions at Guantanamo and architect of the case against Khadr, told CTV.
Yet, at what price?
The prosecution feared that the guilty plea would only encounter skepticism and so compelled Omar Khadr to deny that he had been made any promises in exchange, and had not been forced, if not blackmailed, to accept its terms.
The judge had even the audacity to tell Mr. Khadr: you should only do this if you truly believe it is your best interest.
In essence, Omar Khadr was confronted with the following dilemma: comprehensively accept the US claims in this case, that he is an alien, unprivileged, enemy belligerent, committed murder in violation of the laws of war thereby legitimizing these constructs of the Bush and Obama administrations, in exchange for an eight year sentence, or refuse the agreement and face a trial that had only one possible conclusion: life in prison.
Caught between Scylla and Charybdis, he chose Scylla.
Incidentally, since he has already been imprisoned for eight years, should he not be freed today?
He may be the only prisoner to have been jailed for sixteen years after having been sentenced to eight…
In short, President Obama’s military commission extorted a guilty plea in order to spare itself the embarrassment of convicting a juvenile to life in prison on bogus legal grounds.
As the Star concluded, in an article called A travesty of justice, the guilty plea spares Obama the ignominy of a full trial of a child soldier in a sham court, yet not the ignominy of having arbitrarily detained and abused a juvenile then manufactured charges to justify the odious treatment inflicted.
(The photograph above is by Brennan Linsley/Reuters)
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