Seized at 15, Omar Khadr turns 22 in Guantanamo

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).