What About Khadr?

With today’s announcement that the Justice Department will move five of the men accused of 9/11 crimes to federal court in New York, the question still remains about one of the other high-profile detainees: Omar Khadr.

The world knows Khadr as one of the child soldiers detained at Gitmo since he was 15. (The other child soldier, Mohammed Jawad, was released back to Afghanistan after the government failed to produce enough credible evidence to bring charges against him.) Khadr is accused of throwing a grenade that killed an Army medic in Afghanistan, a charge that the U.S. government itself later threw into question by accident during one of his pre-trial hearings:

During a break in the hearing, members of the press were given copies of legal motions on the issue of whether the military commission has the authority to try Khadr, given his status as a juvenile at the time of his alleged offenses. Included in those papers was a classified attachment, which, according to military commissions officials, should have been redacted, instead of released.

The significance of the document was made clear by Khadr’s military defense counsel, Lt. Cmdr. William Kuebler. Asked to describe it later in the day, Lt. Cmdr. Kuebler said it dispelled what he referred to as a myth propagated by the government: that Khadr was the only person who could have lobbed the grenade that killed U.S. soldier Christopher Speer — the basis of the most serious charge against him. The document, created in 2004, turned out to be an interview of a witness to Khadr’s capture. In it, the witness describes finding two people alive in the Afghan compound in which Khadr was captured — the witness shot and killed the first man before he saw Khadr. Then, according to Lt. Cmdr. Kuebler, Khadr, who was 15 years old at the time, “was shot on sight — in the back — twice — while wounded, sitting and leaning against a wall facing away from his attackers.” (emphasis ours)

Earlier today, the Supreme Court of Canada heard arguments in an appeal by the Canadian government on two lower court decisions that found Khadr’s rights under the Canadian Charter of Rights and Freedoms had been breached when Canadian officials interviewed him at the prison in Guantánamo in 2003 and shared the resulting information with U.S. authorities. Khadr’s lawyers argued that Canada was complicit in his abuse and maintain that the Canadian government is obliged under international law to demand the prisoner’s return. Since Khadr was only addressed in passing at Attorney General Eric Holder’s news conference this morning, Canadian news outlets are reporting the possibility that Khadr could still be repatriated to Canada and tried in a Canadian court.

Or, he could still be tried in the flawed military commission system. But as Dafna Linzer points out today in ProPublica, the evidence against those the government won’t transfer is flimsy:

[…]Most of the remaining [Guantánamo] detainees are considered too difficult to prosecute, mostly because the evidence against them is thin or based on statements obtained through coercion.

One defense attorney said federal prosecutors had so little on his client that they asked the detainee to suggest a charge he would be willing to plead guilty to.

The U.S. government has refused to acknowledge his status as a child or to apply universally recognized standards of juvenile justice in his case. According to Human Rights Watch:

No international tribunal since Nuremberg has prosecuted a child for alleged war crimes. The United Nations committee that monitors the rights of children found that the United States has held alleged child soldiers at Guantánamo without giving due account of their status as children and concluded that the “conduct of criminal proceedings against children within the military justice system should be avoided.

It’s time for all Guantánamo detainees to be moved to federal court, a system that’s successfully prosecuted more than 150 defendants on terrorism-related charges, both before and after 9/11. Compare that to the whopping three convictions achieved by the broken military commissions. Tell Attorney General Eric Holder to send all detainees’ cases to federal court.

Khadr grew up in Gitmo. It’s time to give him a fair shake at justice, or better yet, repatriate him to Canada for rehabilitation, and reintegration into society and a second chance in life.