This has been a very poor week for American justice. On Monday, the Obama administration secured a plea deal in the trial by Military Commission of Canadian citizen Omar Khadr, who was 15 years old when he was seized by US forces in July 2002. As a result, the United States has become the first supposedly civilized country since the Second World War to secure the conviction of a former child prisoner, even though, under the terms of the UN Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, which the US ratified in December 2002, 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 to ensure “the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.” To make it absolutely clear, the Optional Protocol deals with the treatment of juvenile prisoners — those who are under 18 at the time that their alleged crimes take place.
In addition, the crimes to which Khadr admitted as part of his plea deal — murder in violation of the laws of war (for apparently throwing a grenade that killed Delta Force Sgt. Christopher Speer), spying, material support for terrorism, conspiracy and attempted murder — are only war crimes in the United States, as the result of decisions taken by the US Congress in 2006, and revived by the Obama administration in 2009. According to this absurd and unjust scenario, Khadr is “an alien unprivileged enemy belligerent,” who did not have “any legal basis to commit any war-like acts” at all. As I explained in a recent article:
[T]his is exactly the sort of twisted argument used by the Bush administration to hold men and boys without rights and to pretend that they had been by-passed completely by the Geneva Conventions, when in fact anyone captured in wartime must be given the minimum baseline protections of Common Article 3. Pretending that certain types of combatants have no rights — and are “enemy combatants,” or, in Obama’s words, “alien unprivileged enemy belligerents” – is exactly the mindset that led to the vile conclusion that prisoners seized in the “War on Terror” could be tortured and abused, and were, essentially, something less than human.
The final problem, as succinctly identified by Dennis Edney, one of Khadr’s long-term Canadian civilian lawyers, is that there is not necessarily any correlation between what Khadr actually did back in 2002, and what he conceded to doing as part of his plea deal. Explaining why Khadr accepted a plea deal, having previously refused to accept the charges against him, Edney said it was a “very, very difficult” decision, and one which he “made only because Canada agreed to repatriate him after a year,” as the Associated Press described it, adding that Edney had explained that it “came down to a choice” between an “illegal” trial “and going home — and he chose the latter.” He insisted, however, that he stood by his client’s prior protestations of innocence regarding the death of Sgt. Speer. “We have reviewed the evidence … We have looked at the circumstances and it’s our clear opinion that Mr. Khadr is an innocent man, that Mr. Khadr was put into a hellish conflict and continues to remain in this hellhole that has a record internationally of abuse,” Edney said.
Although the plea deal is secure, the Obama administration has been obliged to weather a storm of international criticism — including a complaint by Radhika Coomaraswamy, the UN undersecretary-general responsible for children and armed conflict, who stated on Thursday, in a letter delivered to Guantánamo (PDF), that Khadr’s case “is a deep concern for all of us in the international community working on the issue of children and armed conflict.” She added, “In every sense Omar represents the classic child soldier narrative, recruited by unscrupulous groups to undertake actions at the bidding of adults to fight battles they barely understand,” and urged the Commission “to consider international practice — practice supported by the US Government — that Omar Khadr not be subject to further incarceration but that arrangements be made for him to enter a controlled rehabilitation program in Canada.”
Nevertheless, Khadr’s trial has moved on to a sentencing phase, in which evidence is being submitted in the courtroom at Guantánamo this week by both the prosecution and the defense, before a seven-member military jury will deliver its own sentence. As I explained in another recent article, because “the details of Khadr’s plea deal have not been made public, this strange formality (which involves a sentence without a trial) will only mean anything if the jury delivers a less severe sentence than the one negotiated in secret.”
In its first attempt to persuade the military jury to deliver a harsh sentence to Khadr, the prosecution began by calling on a controversial psychiatrist, Michael Welner, to describe Khadr’s mental state. Welner, who “interviewed Khadr for about eight hours over two days this summer, but told the court he had spent 500-600 hours on the case,” as the Toronto Star explained, seized headlines on Tuesday with his lurid descriptions of how Khadr was an al-Qaeda “rock star” who had “been marinating in a radical Islamic community” in Guantánamo. “He is devout. He is angry,” Welner said. “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.” Welner also said, “He’s highly dangerous. He murdered. He has been part of al-Qaeda. And we’re still at war.” As the Miami Herald described it, Welner also claimed that Khadr’s family “had the ‘stardust’ of proximity with the bin Ladens,” and that, at Guantánamo, although Khadr was the youngest prisoner, “his elders confer on him the honor of prayer leader.”
As Michelle Shephard explained in the Toronto Star, Welner became “increasingly agitated” as one of Khadr’s lawyers, Air Force Maj. Matthew Schwartz, “challenged his credibility,” saying he had delivered “hours and hours of hearsay-filled testimony,” but it was not until Thursday that the contentious nature of Welner’s work was revealed, when Shephard explained that “[p]art of his assessment relied on the research of Danish psychologist Nicolai Sennels,” the author of Among Criminal Muslims, who has called the Qur’an “a criminal book that forces people to do criminal things,” and has claimed that “massive inbreeding within the Muslim culture during the last 1,400 years may have done catastrophic damage to their gene pool.”
In contrast to Welner’s testimony, the defense team secured testimony from Navy Capt. Patrick McCarthy, the former top military legal adviser at Guantánamo, who, as the Associated Press put it, stated that Khadr was “a model prisoner, respectful and helpful to military personnel.” Speaking by video link from Afghanistan, where he is currently stationed, Capt. McCarthy, who “said he could not recall ever before testifying for the defense in a sentencing hearing,” explained that Khadr was “not one of the ‘radical’ detainees who assaulted guards,” and sometimes “served as a mediator between Guantánamo officials and prisoners to help quell tensions.” Capt. McCarthy stated, “Mr. Khadr was always very respectful. He had a pleasant demeanor. He was friendly.” He also directly contradicted Welner, telling the military jury that “he believes Khadr has the potential to be rehabilitated in part because of his age,” and made a point of criticizing the decision to prosecute a former child prisoner. “Fifteen-year-olds, in my opinion, should not be held to the same level of accountability as adults,” he said.
Another contentious part of the prosecution’s case has involved calling on Tabitha Speer, Sgt. Speer’s widow, and Delta Force Sgt. Layne Morris, who was blinded in one eye during the firefight. On Wednesday, Sgt. Morris spoke briefly about how his injury obliged him to retire from the military, and how “the ‘stability’ he once gave his four children wasn’t there when he returned home to Utah,” as the Toronto Star described it.
On Thursday, Tabitha Speer, who was left with a young daughter and a baby son when her husband died, told Khadr, “You will always be a murderer in my eyes.” Drawing on a passage in the “Stipulation of Fact” that Khadr signed as part of his plea deal (PDF), she told the military jury that Khadr “had the choice to leave with the women and children before the firefight broke out at the al-Qaeda compound where he lived, but chose instead to stay and fight US forces,” as Reuters described it. “Everybody wants to talk about how he’s the victim, how he’s the child. I don’t see that,” she said. “He made a choice. My children had no choice [and] didn’t deserve to have their father taken by someone like you.”
This was obviously powerful testimony, and led to an apology on Khadr’s part. “I am really, really sorry for the pain I have caused you and your family,” he said (in a statement reproduced here), adding, “I wish I could do something that would take that pain away.” As the Globe and Mail described it, he also said that he “carried no anger in his heart,” had learned from reading Nelson Mandela that “you won’t gain anything from hate,” and believes that “Love and forgiveness are more constructive, they will bring people together and solve lots of problems.”
Without wishing to sideline the suffering of the family of Sgt. Speer, or of Sgt. Morris, their testimony is only relevant in the vision of war conjured up by the US government, in which Khadr, as an “alien unprivileged enemy belligerent,” was engaged in illegal combat and can legitimately be viewed as a “murderer” and as someone who refused to leave the compound with the women and other children because he “knowingly and voluntarily” stayed (as the “Stipulation of Fact” described it), whereas, as a juvenile, he cannot be held accountable for his actions.
As someone who despises war, I do not wish to see anyone die, either in combat or in any other circumstances, but war produces casualties on both sides, in firefights like the one that led to Khadr’s capture, and the death of Sgt. Speer, as well as in the countless bombing raids that have led to an almost unthinkable number of civilian deaths, and using the testimony of Tabitha Speer and Sgt. Morris only reinforces the unacceptable opinion that, post-9/11, fighting against US forces is in and of itself a crime.
It is not, and as Omar Khadr’s sentencing phase continues, the focus should remain on the injustice of prosecuting a former child prisoner for invented war crimes charges, and not on the spurious opinions of hysterical psychiatrists or — however distressing — the suffering of soldiers and their families. With respect, the ongoing travesty of Omar Khadr’s conviction is about fundamental notions of justice that have been thoroughly undermined and betrayed from the moment, last November, that the Obama administration chose to proceed with Khadr’s trial by Military Commission, and nothing should be allowed to obscure that uncomfortable truth.
Courtroom sketches above are by courtroom artist Janet Hamlin, and are reproduced courtesy of Janet Hamlin Illustration.
Originally published on Cageprisoners.
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.