On August 12, the US administration’s intention to proceed with the war crimes trial of Omar Khadr, a Canadian who was just 15 years old when he was seized after a firefight in Afghanistan in July 2002, was temporarily delayed when Khadr’s military lawyer, Army Lt. Col. Jon Jackson, collapsed in the courtroom in Guantánamo while cross-questioning a prosecution witness on the first full day of Khadr’s trial by Military Commission.
Lt. Col. Jackson’s collapse was attributed to complications resulting from a gall-bladder operation six weeks previously, but as he was airlifted off the island, and deputy chief defense counsel Brian Broyles acknowledged that Khadr’s trial would be suspended for at least a month, no one in a position of authority — either in the United States or Canada — appeared willing to take the opportunity to find a last-minute way to avoid proceeding with a trial that, to critics, demonstrates only that the Obama administration is incapable of resisting the kind of sweeping and often indiscriminate desire for vengeance that fueled the Bush administration in its response to the terrorist attacks of September 11, 2001.
If this sounds unnecessary, just consider two salient facts:
1. In the face of international concern about the recruitment of child soldiers in other countries, and attempts to recognize, through treaties and other agreements, that they are deserving not of punishment, but of rehabilitation, the Obama administration — and Stephen Harper’s government in Canada — are making a clear exception in Khadr’s case. This not only flies in the face of their commitment to the United Nations’ Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, which includes the agreement that all States Parties who ratify the Protocol “[r]ecogniz[e] the special needs of those children who are particularly vulnerable to recruitment or use in hostilities,” and are “[c]onvinced of the need [for] the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict,” but also involves them tacitly subscribing to the outrageous position regarding juvenile prisoners that was adopted by former defense secretary Donald Rumsfeld and General Richard Myers, the chairman of the Joint Chiefs of Staff, at a press conference in May 2003, after the story first broke that juveniles were held at Guantánamo. On that occasion, Rumsfeld stated, chillingly, “these are not children,” and Gen. Myers, in a weird sporting analogy, added that they “may be juveniles, but they’re not on the Little League team anywhere. They’re on a major league team, and it’s a terrorist team, and they’re in Guantánamo for a very good reason — for our safety, for your safety.”
2. Although Khadr is charged with murder in violation of the law of war for allegedly throwing a hand grenade that killed a US Delta Force soldier, Lt. Col. David Frakt, defense attorney for two other Guantánamo prisoners, Mohamed Jawad and Ali Hamza al-Bahlul, explained in April this year that even if Khadr did throw the grenade, “there is no evidence that he violated the law of war in doing so.” In an important analysis of the Commissions’ Congress-approved failings, Lt. Col. Frakt explained that the confusion arose initially 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 that Congress, in enacting two pieces of legislation relating to the Military Commissions in 2006 and in 2009, maintained this unjustifiable position by refusing to distinguish between legitimate and illegitimate actions during wartime. As Lt. Col. Frakt explained, 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.” He continued:
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.
In Khadr’s case, whoever threw the grenade that killed Sgt. Speer was attacking a lawful military target with a lawful weapon, which makes a mockery of his war crimes trial, but this inconvenient truth remains hidden behind a smokescreen of colorful, though fundamentally irrelevant distractions: whether Khadr actually threw the grenade that killed Sgt. Speer (which seems impossible to prove), whether he could not have thrown the grenade because he was buried face-down under a pile of rubble (which the prosecution claimed, on that abortive first day of the trial, was a long-standing fiction maintained by the defense), and whether Khadr’s supposed confessions about his involvement in al-Qaeda were tainted by torture.
In a nine-page ruling issued on August 17 (PDF), Judge Parrish turned down Khadr’s motion to suppress any self-incriminating statements as “the product of torture, involuntary [and] unreliable,” finding that “There is no credible evidence that the accused was ever tortured,” and adding, “While the accused was 15 years old at the time he was captured, he was not immature for his age,” but all this really demonstrates is how spectacularly he has missed the point. Held for two years without access to a lawyer, for three years without ever being charged, and at no point treated as a juvenile deserving of rehabilitation, Khadr’s entire experience of US detention has been lawless and abusive, and, in any case, it should be irrelevant whether a 15-year old apparently made self-incriminating statements, when the focus should be on his father, Ahmed Khadr, an alleged fundraiser for Osama bin Laden, who was responsible for indoctrinating his child in the first place.
There are no circumstances in which President Obama comes out of this well. Instead, the decision to proceed with Khadr’s war crimes trial will forever stand as a stark example of his inability to stand up and publicly repudiate the wayward policies of his predecessor. However, as much blame must attach to the government of Stephen Harper, which has persistently refused to demand Khadr’s return to Canada, even though, in January this year, Canada’s Supreme Court ruled that the involvement of Canadian agents in interrogations of Khadr at Guantánamo constituted “state conduct that violates the principles of fundamental justice.” The Court added, “Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel … offends the most basic Canadian standards about the treatment of detained youth suspects.”
This was in marked contrast to Judge Parrish’s view of Khadr’s interrogations by American operatives, but sadly Canada’s Supreme Court stopped short of ordering the government to demand Khadr’s return, limply concluding that it was up to the government to “shape a response that reconciled its foreign policy imperatives with its constitutional obligations to Khadr,” as columnist Chantal Hébert explained in the Toronto Star as Khadr’s trial spluttered briefly to life.
Stephen Harper, of course, put Canada’s “foreign policy imperatives” above Khadr’s rights, just as President Bush did with America’s “foreign policy imperatives” after the 9/11 attacks, and as President Obama has continued to do — although in his case, his refusal to do the right thing seems to be driven more by a desire not to stir up uncomfortable domestic troubles.
The result, while Lt. Col. Jon Jackson recuperates, is that most commentators are still entranced by the sideshow of grenades and torture, and very few people have, like Lt. Col. David Frakt, gazed resolutely at the lawless void at the heart of the circus, and concluded that the show must not go on.
Originally published on the website of the Future of Freedom Foundation.
Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.