Time Running Out for Omar Khadr

August 3, 2010

Time is running out for Omar Khadr, his Military Commission trial will finally get underway on August 10th and it is likely to be completed within two weeks.

We don’t anticipate a very edifying spectacle. Khadr fired his hopelessly outclassed civilian defense attorneys last month and is refusing to participate any further in the proceedings. As he explained in a letter to the court:

“It is going to be the same thing with or without lawyers. It’s going to be a life sentence.”

It is hardly a surprise that after eight years of delay and prevarication, rule changes and procedural challenges, Khadr has no faith in the genuine independence of the military commission process. Few international observers do.

Omar Khadr was taken into US custody when he was 15 years old on 27 July 2002 in Afghanistan. On the right is a picture of him after being detained for eight years.

The case against Khadr is a weak one. There are no eyewitnesses to the primary

incident and the only real evidence against him are statements obtained from him under duress and a videotape of him apparently helping to plant an IED. It is not clear whether the tape is of a training exercise or an actual attack.

The judge in the case is still refusing to consider whether incriminating statements made by Khadr after his capture were obtained through torture – hardly a fanciful claim since his interrogator was actually convicted in a US court martial of abusing another detainee in the same facility.

Khadr’s remaining–military–attorney, Lt. Col. Jon Jackson, has petitioned the Supreme Court to consider the propriety of the US government maintaining in essence a separate legal system for US non-citizens. US citizens charged with terrorist offenses are directed to the federal courts not military commissions. As Lt. Col. Jackson notes: “separate is always unequal.”

Finally, perhaps most egregious of all, Khadr is being tried as an adult despite the fact that he was only fifteen when the alleged offenses he is accused of occurred. Under the terms of the Optional Protocol to the United Nations Convention on the Rights of the Child, of which the United States is a signatory, Khadr should properly be considered a child soldier.

At fifteen Khadr was a vulnerable minor living in a foreign country surrounded by hardened fighters. He was in an impossible position, which is why under international law child soldiers are not considered to be fully responsible for their actions.

As Khadr poignantly observed in his letter to the court:

“I have been used too many times when I was a child, and that’s why I’m here taking blame and paying for things I didn’t have a choice in doing but was told to do by elders.”

States have an obligation to approach former child soldiers with compassion and understanding. It is because the United States has failed in this duty that Khadr’s case has been taken up by UNICEF, now headed, ironically enough, by Bill Clinton’s former National Security Adviser Anthony Lake.

Khadr has been offered a plea bargain by military prosecutors – five more years in GTMO followed by further period of indeterminate detention in Canada – which he has refused:

“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.”

To date, the Omar Khadr trial has been one of the most dysfunctional in US judicial history. Its final act is likely to be as messy and dispiriting as the rest. It is hard in the current circumstances to imagine anything other than a guilty verdict. Few observers around the world are likely to conclude justice has been done.

However, there is an alternative. Even at this late stage President Obama has the power to either stop the trial and repatriate Khadr to his home in Canada, or ensure his trial in a civilian court.

This outcome is not beyond reach. Last month your messages helped secure the release of Mohammed al-Odaini, another young man held without charge in GTMO for more than 8 years.

Just as the odds were stacked against Mohammed then, they are stacked against Omar now. He needs your support. You can take action now to urge President Obama to intervene.

Join me on Tuesday, August 10th for a Tweet Chat (follow me on Twitter @TomAtAmnesty) to discuss his case and that of other detainees at Guantanamo.  Submit your questions any time between now and August 10th by using hashtag #AskAI.