By Andy Worthington

From New Left Project | Original Article

Yesterday morning, wearing a dark suit, a white shirt
and a dark tie, Omar Khadr, the Canadian citizen who
was just 15 years old when he was seized after a
firefight in Afghanistan in July 2002, ended an eight-
year struggle - first by the Bush administration, and
then by the Obama administration - to convict him in a
war crimes trial at Guantánamo, when he accepted a plea
deal in exchange for a reported eight-year sentence.

According to an article in the Miami Herald, drawing on
comments made by "two legal sources with direct
knowledge" of the deal, Khadr said he "eagerly took
part in a July 28, 2002 firefight with US Special
Forces in Afghanistan that mortally wounded Sgt 1st
Class Christopher Speer." This was the crux of the case
against him, and a charge that he had always previously
denied. He also said that he had "aspired as a teen to
kill Americans and Jews," and described his father,
Ahmed Said Khadr, who had been responsible for taking
him on numerous visits to Pakistan and Afghanistan as a
child, leading to the events on the day of his capture,
as "a part of Bin Laden's inner circle, a trusted
confidant and fundraiser."

Khadr's plea was submitted to the judge, Army Col.
Patrick Parrish, by his military defense lawyer, Army
Lt. Jon Jackson, and Col. Parrish made sure that he
knew what he was doing as he ran thought the charges.
"Yes," Khadr replied. "You should only do this if you
truly believe it is in your best interests," Col.
Parrish then told him. "Yes," Khadr replied again.
According to the Miami Herald, his voice was "a near
whisper," but became stronger as Col. Parrish read out
the charges.

As the Globe and Mail described it, Khadr "assented to
knowing that he was attacking civilians, that he wanted
to kill US troops, that he planted mines and that he
received one-on-one terrorist training from an al-Qaeda
operative." He also agreed that he was a member of al-
Qaeda, and was an "alien, unprivileged, enemy
belligerent," who was "unqualified therefore to shoot
back or engage in combat hostilities with US or other
coalition forces," and also said that he understood
that he was guilty of "murder in violation of the laws
of war."

For the United States, the plea deal means that a trial
has been avoided, dimming the glare of the global media
spotlight on the embarrassing prospect of the first war
crimes trial of a child soldier since the Second World
War. Instead, according to the Military Commission
rules, a limited amount of evidence will be submitted
this week - including testimony from Tabitha Speer, the
widow of the Special Forces soldier killed by the
grenade in the firefight that led to Khadr's capture,
and statements by mental health professionals for both
the prosecution and the defense - before a seven-member
military jury will deliver its own sentence. As 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.

This, however, is not the main problem with yesterday's
outcome, which blurs the parameters of justice
horribly, creating the impression that Khadr is guilty,
even though he may only have agreed to confess in order
to secure a favorable sentence. This is something that
Daphne Eviatar, an observer for Human Rights First,
noted in an excellent article in the Huffington Post,
when she explained that "it was clear that prosecutors
had taken the opportunity to throw the kitchen-sink-
full of charges at him - including far more crimes than
he'd even been charged with. Most importantly, Khadr
pled guilty to killing two Afghan soldiers who
accompanied US forces in the 2002 assault on the
compound. The government has never presented any
evidence whatsoever that Khadr was responsible for
that, and did not claim he was in its opening statement
at trial."

In addition, Khadr's guilty plea enables the Obama
administration to disguise the many fundamental flaws
with the Military Commissions, which might have been
exposed during a trial.

Because Khadr's plea deal is presumed to stipulate that
he cannot appeal, the administration will be able to
tell the world that the Commissions are "fair and
just," although they are no such thing. One problem, of
course, is that a former child prisoner has been
subjected to a trial after eight years of imprisonment
in an experimental prison devoted to arbitrary
detention and coercive interrogation, when he should
have been rehabilitated, according to 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), but another concerns
the nature of the crimes to which he confessed.

This second problem - which focuses on the fundamental
legitimacy of the Commissions - was illustrated starkly
in the Globe and Mail's description of how Khadr agreed
that he was an "alien, unprivileged, enemy
belligerent," who was "unqualified therefore to shoot
back or engage in combat hostilities with US or other
coalition forces," and also how he reportedly
understood that he was guilty of "murder in violation
of the laws of war."

Back in April, Lt. Col. David Frakt, a law professor
and the former military defense attorney for two other
Guantánamo prisoners, Mohamed Jawad and Ali Hamza al-
Bahlul, spelled out the problems with these charges in
no uncertain terms. Writing of the central charge of
"murder in violation of the law of war," Lt. Col. Frakt
explained that, even if Khadr did throw the grenade,
"there is no evidence that he violated the law of war
in doing so."

As I explained in an article about Khadr two months
ago, he added 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."

Lt. Col. Frakt also explained that 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."

With Khadr's plea deal, the uncomfortable truth about
the Commissions - that they have been established to
try non-existent war crimes - has been swept aside as
thoroughly as it was in the case of Ibrahim al-Qosi,
who accepted a plea deal in July. As a result, Omar
Khadr may have taken the only realistic route open to
him, but the price has been the apparent validation of
a fundamentally lawless process, which could have been
legally challenged had he been subjected to a full
trial.

Back in July, Omar Khadr refused to accept a plea deal,
and, in a letter to Dennis Edney, one of his Canadian
lawyers, wrote, "there must be somebody to sacrifice to
really show the world the unfairness [of the
Commissions], and really it seems that it's me." It is
understandable that - faced with an eight-year
sentence, or the possibility of a life sentence in
exchange for a "sacrifice" - Khadr chose the former
option.

However, it remains deeply depressing that the Obama
administration will be able to maintain the fiction
that the Military Commissions are capable of delivering
justice, and also that it now appears to be irrelevant
that Khadr was a juvenile prisoner, subjected to
horrific treatment, because he has conceded, in
circumstances that may not have been conducive to
telling the truth, that he was in fact a terrorist.