Andy Worthington 9/19/08

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 the Child.

[Images from a video of Omar’s interrogation in 2003 by Canadian agents, which were released this summer.]

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 President Dick Cheney and his close advisers in November 2001.

Although Omar was initially charged in November 2005, his 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 pre-trial hearings were held, the case against Omar has stumbled from one setback to another. Initially, his case was dismissed 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 or execution.”

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 the short sentence Salim Hamdan received after his trial partly 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.

Andy is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press).