Today, Omar Khadr, the sole Canadian citizen in
Guantánamo, marks his 22nd birthday in isolation. Seized in
Afghanistan when he was just 15 years old, Omar has now spent nearly a third
of his life in US custody, in conditions that ought to be shameful to the
US administration responsible for holding him, and to the Canadian government
that has abdicated its responsibilities towards him.
Under the terms of the Optional Protocol to the UN Convention on the Rights
of the Child (on the involvement of children in armed conflict), to which both
the US and Canada are signatories, juvenile prisoners – defined as those accused
of a crime that took place when they were under 18 years of age – "require
special protection." The Optional Protocol specifically recognizes "the
special needs of those children who are particularly vulnerable to recruitment
or use in hostilities," and requires its signatories to promote "the
physical and psychosocial rehabilitation and social reintegration of children
who are victims of armed conflict."
As I have discussed at length before,
several factors have conspired to keep Omar in Guantánamo; in particular,
US allegations (only recently challenged) that Omar threw a grenade that killed
a US soldier in the firefight that preceded his capture; a general indifference
towards him in Canada, because of the alleged sins of his family (his father,
who raised funds for the welfare of the mujahideen of Afghanistan and their
families, was reportedly close to Osama bin Laden); and a disregard for the
traditional rules of war, in which not only should a child be protected from
punishment, but any combatant seized in wartime should be regarded as a soldier,
subject to the prohibition on "cruel and inhuman treatment" and interrogation
dictated by the Geneva Conventions, and not held as a terrorist, to be brutalized
and interrogated at will.
As Omar turns 22, however, it is abundantly clear that his treatment – which
includes a heartless disregard for his terrible wounds in the months following
his capture, severe isolation in Guantánamo, and prolonged periods of
abuse and humiliation – demonstrates a blatant disregard, on the part of the
US administration, for the Geneva Conventions. This kind of behavior is reprehensible
in the cases of the adults in US custody, and even more grotesque in the case
of Omar and the 21 other juveniles (at least), who have been held in Guantánamo
throughout its long history, and who have been deprived of the protection not
only of the Geneva Conventions but also of the UN Convention on the Rights of
What makes Omar's case even more shocking is that, because of the nature of
the "crime" of which he has been accused (killing a US soldier in
wartime), he was chosen by the administration for prosecution in its system
of "terror trials" at Guantánamo, the Military Commissions
– unrelated to any other form of US justice – that were conceived by Vice
Cheney and his close advisers in November 2001.
Although he was initially charged in November 2005, Omar's case – like that
of the other nine prisoners charged – was dismissed in June 2006, when the US
Supreme Court ruled that the entire process was illegal, but he was one of the
first prisoners to be charged again (with the Australian David
Hicks and the Yemeni Salim
Hamdan) when the Commissions were revived by Congress later that year.
For the last 15 months, since the first pretrial hearings were held, the case
against Omar has stumbled from one setback to another. Initially, his case was
by the government-appointed military judge, Col. Peter Brownback, because of
discrepancies in the wording of the Military Commissions Act (the legislation
that revived the process), and in the last year his military defense team, led
by Lt. Cmdr. William Kuebler, and his Canadian civilian attorneys, Dennis Edney
and Nathan Whitling, have done everything in their power to persuade the Canadian
government to press for Omar's return, and to persuade the US government to
call off his trial.
These have included submissions pointing out the weakness – or illegality
– of the government's claims that the charges against Omar constitute "war
crimes," suitably shocked announcements following the emergence of long-suppressed
evidence indicating that Omar did not throw the grenade that killed Sgt. Christopher
Speer, and a heartfelt
plea for the US government not to set a vile precedent by prosecuting
a juvenile. "If jurisdiction is exercised over Mr. Khadr," the defense
team explained, "the military judge will be the first in western history
to preside over the trial of alleged war crimes committed by a child. No international
criminal tribunal established under the laws of war, from Nuremberg forward,
has ever prosecuted former child soldiers as war criminals … A critical component
of the response of our nation and the world to the tragedy of the use and abuse
of child solders in war by terrorist organizations like al-Qaeda is that post-conflict
legal proceedings must pursue the best interest of the victimized child – with
the aim of their rehabilitation and reintegration into society, not their imprisonment
Although the administration refused to be swayed by any of these complaints,
the path to Omar's proposed trial has continued to be a bumpy one. In March,
Col. Brownback criticized
the prosecutors for their slow response to demands to hand over information
to the defense team. After ordering them to give Omar's lawyers a list of all
US personnel who had interrogated him in Afghanistan and Guantánamo,
and to provide them with access to their notes, he postponed the trial's start
date (which was scheduled for May 5) to allow more time for discussions of acceptable
evidence, and was promptly dismissed from his job. The administration argued
that this was because his appointed tenure had come to an end, but Omar's lawyers
were not convinced.
Even so, his replacement, Col. Patrick Parrish, has also demonstrated his
independence, despite initial doubts. In hearings
over the summer, Omar's lawyers submitted a raft of new requests and complaints,
calling for independent experts on "false confessions made by juveniles"
to be allowed to assess Omar, and accusing Brig. Gen. Thomas Hartmann, the Commissions'
legal adviser, of "unlawful command influence" in connection with
the removal of Col. Brownback from the case, and his role in "sexing up"
(my phrase) the case for Omar's prosecution.
Brig. Gen. Hartmann had already been excluded by other government-appointed
judges from two other cases – those of Salim
Hamdan and the Afghan teenager Mohamed
Jawad – but although Col. Parrish refused to exclude him from Omar's trial
(and refused to allow independent experts to assess Omar's mental state), he
dealt a third blow to Brig. Gen. Hartmann's credibility by ruling soon after
that, in the case of a conviction, he was prohibited from reviewing the verdict.
Col. Parrish also dealt another blow to the prosecution in Omar's case by
backing a largely overlooked ruling made by Col. Brownback in April, shortly
before his departure, in which the now-retired judge demolished a key plank
of the government's case against Omar by striking out part of the language in
the "conspiracy" charge against him. Col. Brownback had ruled that
the Secretary of Defense lacked the authority to expand the traditional definition
of "conspiracy" to include joining an "enterprise of persons
who shared a common criminal purpose," and Col. Parrish agreed, prompting
the government to declare that it would appeal to the "Court of Military
Commission Review" that it had been forced to establish last summer after
Col. Brownback (for Omar) and Capt. Keith Allred (for Salim Hamdan) had thrown
out their cases in June.
In a press release, Lt. Cmdr. Kuebler explained the importance of the decision.
"The ruling is significant," he wrote, "because military commission
prosecutors lack evidence to link all but a handful of detainees directly with
the 9/11 attacks and other major al-Qaeda atrocities." He pointed out that
sentence Salim Hamdan received after his trial came about partly because
prosecutors were "unable to rely on the expansive ‘enterprise' definition
of conspiracy." Criticizing the government's decision to appeal, he explained
that, because the prosecutors were "[j]ealous of their advantages in military
commission litigation, and unable to change the ruling by changing the judge,"
they were now turning to the appeals court "in an effort to unlevel
the playing field in their favor."
Reiterating that "Omar's anticipated trial violates basic international
standards for the treatment of children and child soldiers and takes place in
a tribunal in which no US citizen can be tried," Lt. Cmdr. Kuebler concluded
that the decision to appeal the "enterprise" ruling "plainly
show[s] that Omar Khadr is a mere guinea pig for the anticipated trials of real
terrorists such as Khalid
Sheikh Mohammed and other alleged al-Qaeda masterminds."
With this appeal yet to proceed, Omar's defense team recently stepped up their
efforts to derail the proposed trial. On September 10, Lt. Cmdr. Kuebler once
more sought permission for independent experts to evaluate Omar, arguing that
the prosecutors' choice, army psychiatrist Chris Peterson, lacks the required
expertise, and also suffers from a conflict of interest, given that military
medical teams helped devise the interrogation techniques used at Guantánamo.
"You're basically asking the guy to testify against his employer, and that's
a problem," Lt. Cmdr. Kuebler explained.
As described in the National
Post, one of the medical experts chosen by Lt. Cmdr. Kuebler is "a
specialist in child soldiers and victims of torture," and the other "is
conducting a study for the army into blast trauma – which is significant in
Mr. Khadr's case because US forces dropped two 225-kilogram bombs on the compound
just ahead of the raid by US ground forces." Lt. Cmdr. Kuebler explained,
"Omar's condition at the time and his ability to recall, to communicate,
is something we have no information on. We need to have someone to evaluate
him and to evaluate what was actually broken when he was first taken into custody."
He added that he also believed that the experts would be able to assess the
extent to which Omar's upbringing "has affected his current ability to
talk about the past or understand his current predicament." Omar "has
provided us with some information, but not the whole picture," Lt. Cmdr.
Kuebler added, "and we think that's something we need in order to be competent
and ethical at trial."
The following day, the Associated
Press reported that attempts by Canada's foreign affairs department to "ensure
proper medical care and prison conditions" for Omar were being "stymied"
by the US authorities. The documents showed "even simple requests to
provide Khadr with a pillow, blanket or sunglasses to protect his shrapnel-damaged
eyes and body foundering on apparent security concerns." The agent
who visited Omar, Suneeta Millington, who described how shrapnel was "slowly
working its way out of Omar's body," explained that two pairs of sunglasses
were "rejected on the grounds that they might constitute a security risk,"
and added, "A number of requests made both by Omar and Canadian government
officials either fall through the cracks, go ignored or are not processed in
a timely manner."
At the same time that the Canadian complaints were aired, Omar's defense team
announced another surprise: the existence of another witness to the firefight,
in addition to "Lt. Col. W.," the witness who, in March, was accused
of "doctoring a report" to implicate Omar in Sgt. Speer's death. Lt.
Cmdr. Kuebler named the man as Jim Taylor, while admitting that he "could
not disclose the government agency or department where Taylor works since it
is classified," and adding that he had not yet met with him "due to
instructions from his employer." He proceeded to explain, as Michelle Shephard
described it in the Toronto
Star, that Taylor "had written a report – date unknown – claiming
more than one occupant of the compound raided by US Special Forces was alive
when Speer was wounded." As the Globe and Mail put it, Lt. Cmdr.
Kuebler told the court that "there were multiple people alive."
After another surprise
– a potentially damaging admission by the prosecution that, at the time of his
capture, Omar had indeed been "a ‘child,' in need of special consideration"
– Col. Parrish, once more chiding the prosecutors for their delays in providing
information to the defense, postponed the trial until November 10, after both
the Canadian and US elections. The results of either election – or both –
may be significant to Omar, but it makes little difference to him today, as
he passes his sixth successive birthday in Guantánamo, alone. Historic
though his case may be, it's doubtful whether the ripples of indignation that
have been steadily building over the last three years, as his lawyers and other
supporters have sought to humanize this lost child, will touch him in his solitude.