Allow me to posture a scenario for you.
You are the US Attorney General. Of the 215 inmates still held in Guantanamo Bay, ten are up for trial in the United States. You must decide who will stand trial in civilian criminal court and who will be prosecuted by a revived military commission. Among the ten prisoners are a terrorist mastermind, four of the mastermind’s cohorts, the bombers of an American war vessel, and a child prisoner. As Attorney General, it is your job to decide “who gets tried where.” What do you do?
US Attorney General Eric Holder recently faced this scenario and made the controversial decision to try 9/11 mastermind Khalid Sheikh Mohammad (KSM) and four other 9/11 suspects in civilian criminal court. Democrats lauded Holder’s decision, explaining that such a move will restore the integrity of American jurisprudence and “show the world” the power of our judicial system. At the same time, Holder announced that the military prosecution of five other Guantanamo prisoners would resume after being put on hold by President Obama earlier this year. These five prisoners include the USS Cole bombers and one other – Omar Khadr – a once child-prisoner and Canadian citizen who has been held in Guantanamo for nearly eight years.
The story of Omar Khadr is one that I thought was rather well-known throughout the US. I was wrong. I asked some family members if they had ever heard of Omar Khadr, or the “child-soldiers” of Guantanamo Bay. Most had no clue what I was talking about and only a few even recognized the name. With that in mind, I’d like to share the story of Omar Khadr, a former child-soldier who will soon again face a military tribunal while KSM – the 9/11 mastermind – prepares for a “fair and balanced” civilian trial.
Omar Khadr is a Canadian citizen who was born to wealthy, fundamentalist Muslim parents in Toronto in 1986. He was educated in both Canada and Pakistan, as the family frequently travelled between the two countries. In 1996, Khadr’s father moved the family to Afghanistan to be closer to Osama Bin Laden. As a young child, Khadr played with Bin Laden’s children and met many Al-Qaeda members, knowledge which would one day make him invaluable to the United States government. Because of his financial involvements with Bin Laden and Al-Qaeda, Khadr’s father was often away, but returned home in 2002. Against the wishes of Khadr’s mother, his father ordered him to live with Afghan militants and serve as a translator. (Khadr’s father told his children that they were to live for Islam, or that he would kill them himself.)
After serving as a translator for a few months, US troops bombed the compound where Khadr stayed. Believing all those inside were dead, a small group of US ground soldiers enter the compound while US troops continued to throw grenades. Inside, the soldiers found a survivor, an armed Al-Qaeda militant. After killing the armed man, a US soldier known as OC-1, literally stumbled over a motionless, blinded, and unarmed Khadr, whose back was to the fighting. Official reports and soldier accounts now prove that Khadr clearly looked younger than 15 and was lying face down; crippled by the explosion, blinded by a grenade, and trapped beneath the rubble. Upon finding his body, OC-1 shot Khadr in the back twice. After the soldiers determined that Khadr was still alive, they planned to finish him off but were ordered to stop by Delta Force soldiers who arrived on the scene. An unconscious and badly wounded Khadr was airlifted to the infamous Bagram Internment Facility, where interrogations began soon after he regained consciousness.
At Bagram, Khadr was charged with war crimes; specifically throwing a grenade that killed American medic, Christopher Speer. Not since the Nuremberg Trials had a child been charged with war crimes. Khadr was kept in a cell with ten adult terrorist suspects and endured numerous forms of torture, even after officials confirmed his age and Canadian citizenship. (Khadr’s primary interrogator later pled guilty to torturing detainees to obtain confessions.) The Canadian Embassy sent a letter to the US government to request special treatment for Khadr on account of his age, and asked that he not be transferred to Guantanamo. Three months later, and without providing notification to the Canadian government, a nearly blind Khadr was transferred to Guantanamo using the same sensory deprivation techniques used on adults.
At Guantanamo, Khadr was treated as an adult, enduring sleep deprivation, beatings, long periods of solitary confinement, threats of rape, shackling, stress positioning, and being dragged in urine like a “human mop,” among other tortures. A 2003 video excerpt of a four-day interrogation by a US CIA Officer and a Canadian Security Intelligence officer showed a then-16-year old Khadr who was bruised, sleep-deprived, nearly blind and mentally unraveled. He repeatedly sobbed, “kill me,” and cried out for his mother.
Khadr’s ability to recognize and describe known terrorists has been exceedingly useful to the US and Canadian governments, and Khadr soon became known as “the treasure trove.” Despite the fact that the Pentagon released evidence confirming that it was the wounded armed militant, and not Khadr, who had thrown the grenade and that friendly-fire more than likely killed Speer, the US still refuses to repatriate him, probably because of his value to US intelligence. Khadr’s detention clearly violates international treaties to which both the US and Canada are a part, in particular the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict and the US government continually refused to recognize Khadr’s status as a child. He remains the youngest prisoner, and only Western citizen, at Guantanamo.
Omar Khadr in Military Court
In response to challenges put forth by the Senate Judiciary Committee last week, Holder offered no clear baseline as to how he made the decision to send the 9/11 terrorists to civilian court and the other prisoners to revived military tribunals. Why Holder chose to try KSM in civilian court but decided that a former child soldier should stand trial in front of an “improved” military commission that the Obama Administration discredited only last year is utterly perplexing to me, and highly disturbing. One thing is for certain, though; if Attorney General Holder and President Obama actually believe that this paradoxical decision sets a shining example of America’s jurisprudential power for the world, they are sadly mistaken. Such a decision, based on nothing but conjecture and Holder’s personal opinion, seems nothing short of flawed.
Although Holder announced that Khadr would face the military tribunal, he managed to stop short of ruling out Khadr’s repatriation to Canada. Holder explained at a press conference in Washington that he is still looking at the Khadr matter and will proceed accordingly as his trial proceeds. If Attorney General Holder and President Obama really want to impress the world with the might of America’s judicial system, I would urge them both to take a long, hard look at Khadr’s case. Certainly, it should not take the country’s top lawyer to realize that the right answer is to REPATRIATE OMAR KHADR. Such action is the best way for the United States’ judicial system to serve as a beacon for all nations to follow.
For more information about Omar Khadr and child soldiers, please take a look at the following:
The Omar Khadr Project
The Child as War Criminal – 2007 NY Times opinion article by Syracuse University Law Professor David Crane
Interview with Omar Khadr’s sister, November 2009
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