Canadian Driftwood

The War on Terra prisoner Omar Khadr has entered into a plea deal that may find him breathing free air in a little over a year.

Under what are believed to be the terms of the plea bargain, Khadr, after an additional year in American stir, could apply to his native Canada to have the remainder of his eight-year sentence served in that country. Once under Canadian authority, that government could, if it liked, free him. Canada, unlike the United States, is not in the business of prosecuting and imprisoning child soldiers. Khadr was 15 when he entered the War on Terra gulag. He has already spent eight years there. He is today 24.

On Monday, Khadr admitted before a military commission that he had thrown a grenade that killed an American soldier in Afghanistan, and that he had planted roadside bombs in that country for Al Qaeda. A panel of seven military officers will decide on his sentence, but under the terms of the plea agreement that sentence cannot be greater than the eight years therein agreed upon.

The plea deal spares Khadr the prospect of a life sentence, and the Obama administration the embarrassment of trying a child as its first War on Terra prisoner dragged before its revamped military commissions . . . as well as the near-certainty that any conviction would be thrown out bodily by one or more blistering appellate-court decisions, that would employ language so excoriating that anyone even tangentially connected with Khadr’s prosecution would be compelled to hide, for some months, under a bed, in shame.

I have never understood the Khadr prosecution. The guy’s premier sin was that he threw a grenade that killed an American soldier. Sounds like a routine act of war to me. Planting roadside bombs is likewise an act of war. A guy just down the street here did that against the Germans in World War II.

But BushCo apparently decided that Khadr didn’t belong in Afghanistan, because he was from Canada; he was, therefore, “an enemy combatant.” Fair enough—so long as it is equally recognized that the solder he killed was likewise “an enemy combatant,” for that soldier was from America. If a Canadian had no business waging war in Afghanistan, then neither did an American.

Of course, BushCo didn’t see it that way.

Philip Alston, NYU law professor and United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, also doesn’t much hold with the notion that Khadr committed “homicide in violation of the law of war” . . . and notes that if he did, then so too have CIA agents and military contractors.

I do disagree with the proposition that it is a war crime for an unprivileged combatant (or “unprivileged belligerent” as the laws of war term it) to merely “participate” in armed conflict. That’s because the laws of war don’t criminalize a person based solely on his status, such as being an unprivileged belligerent. Instead, they focus on conduct—i.e., whether or not the person’s activities comply with the law of war rules. But the difference is that unlike members of a state’s armed forces, civilians, including CIA agents, do not have immunity from prosecution for domestic law violations. So a CIA agent or a civilian contractor who uses lethal force in compliance with all the restrictions of the laws of war has not committed a war crime, but that person can be prosecuted for murder or homicide under U.S. law, or the law of the state in which the killing occurred (unless a government negotiates immunity under domestic law, as the U.S. has done in Afghanistan for its officials and contractors operating there).

In contrast to the law of war rules, the original military commission rules included as “murder in violation of the laws of war” the use of lethal force by a person who does not meet the “requirements for lawful combatancy.” It has been reported that these rules were changed because the State Department recognized that this approach—predicated on the status of a person, not their conduct—would, if applied to CIA agents in the drone killing program, have created the risk that they could be prosecuted for “war crimes.”

Of course, calling something a war crime doesn’t make it so—the question is whether it is recognized as such under international law—and your question raises a broader concern and reflects the deeply disturbing approach of the United States to the laws of war since 9/11. The U.S. has put forward the novel theory of a brand new “law of 9/11” under which it can sidestep the laws of war or re-interpret them when it suits. This approach is no doubt appealing and convenient in the short term. But it will inevitably return to bite the U.S., and will undermine the international legal framework on which the U.S. relies in so many other contexts. In this particular instance, if the U.S. were to insist that use of lethal force in an armed conflict by a civilian who is a citizen of another country is a “war crime” just because that person is a civilian, it won’t have a leg to stand on if another state prosecutes a CIA agent involved in the drone killing program on exactly the same grounds.

The New York Times story on Khadr’s plea-deal mentions the above-referenced frantic rule-rewriting, in connection with BushCo’s horseshit insistence that Khadr acted outside the laws of war because he wore no uniform:

The centerpiece of the charges was not a conventional terrorism offense—targeting civilians—but killing an enemy soldier in combat. Usually in war, battlefield killing is not prosecuted. But the United States contended that Mr. Khadr lacked battlefield immunity because he wore no uniform, among other requirements of the laws of war.

The uniform issue also led to a scramble by the Obama legal team to rewrite commission rules on the eve of a hearing for Mr. Khadr. Because Central Intelligence Agency drone operators also kill while not wearing uniforms, the team rewrote the rules to downgrade “murder in violation of the laws of war” to a domestic law offense from a war crime to avoid seeming to implicitly concede that the C.I.A. is committing war crimes.


Then there is the fact that Khadr was 15 when he was throwing grenades and planting bombs. Boys of 15, the world over, not uncommonly do what their dads do. If dad is a farmer, the boy farms. If dad repairs shoes, the boy repairs shoes. If dad fights for Osama bin Laden, the boy fights for Osama bin Laden.

Khadr’s father was friendly with bin Laden, and as a youngster Omar often played with the bin Laden children. Canadian authorities have determined that for many years Omar had little knowledge of his father’s Al Qaeda activities, since “he was out playing or simply not interested.”

When the US invaded Afghanistan in late 2001, Omar’s father enrolled his son in the conflict; this father has been praised in Al Qaeda documents for “tossing his little child in the furnace of the battle.”

Omar’s father was killed in a raid in Pakistan in October of 2003. Omar had been shot and seriously wounded in July of 2002 in Afghanistan, at which time he disappeared into the War on Terra gulag.

There is an extensive library of material over on Andy Worthington’s blog about Omar Khadr’s sojourn through the gulag, and the grimly farcical attempts to bring him to gulag “justice.”

I am not going to try to duplicate that material here. Suffice it to say that Khadr was while in prison subjected to “softening up” treatment that no civilian American court of law comporting itself with the United States Constitution would approve against an adult, much less a child. And that Khadr’s “confession” was extracted using methods that no civilian American court of law comporting itself with the United States Constitution would sanction against an adult, much less a child. And that Khadr’s aborted trial before the Obama administration’s revamped military commission permitted the introduction of evidence that no civilian American court of law comporting itself with the United States Constitution would deem admissible in a criminal proceeding against an adult, much less a child.

It is important to remember that the United States Supreme Court has never officially sanctioned a military-commission conviction obtained against a War on Terra prisoner. The original, BushCo-style military commissions were rejected as unconstitutional by the high court in 2006, in Hamdan v. Rumsfeld. George II and a compliant Congress then contrived the Military Commissions Act of 2006. Yet no completed prosecution under that act has received the high court’s blessing, nor has any completed prosecution under the new! improved! tribunals crafted by the Obama administration and Congress in the summer and fall of 2009. Neither has the Supreme Court had the occasion to pass judgement on any War on Terra criminal conviction in which evidence was admitted against a defendant that had been obtained via torture or other abuse.

Khadr, once in the War on Terra gulag, was denied surgery to save his eyesight. He was then denied even sunglasses, on “state security” grounds. He was refused pain medication for his wounds. He had his hands tied above a door frame for hours, was doused with cold water, had a bag placed over his head, was threatened with military dogs, was farted upon, forced to carry 5-gallon pails of water (thereby to aggravate his shoulder wound), forced to urinate on himself. He was deprived of sleep, was spat upon, kicked and assaulted, had his hair torn out in clumps, and was threatened with rape. Somewhere along this line, he “confessed.”

During Khadr’s preliminary examination, under the new, revamped Obama administration military-commission system, it was decided that all of Khadr’s various “confessions” could be admitted into evidence. It was additionally apparent that the military prosecutors were still experiencing great difficulty in comporting with the basic rules of discovery; they were repeatedly ordered to turn over to Khadr’s defense team material they had already—sometimes several times—been ordered to produce.

This is why the plea deal benefits the Obama administration as much or more than it does Khadr. Obama administration lawyers do not want to have to stand in front of the United States Supreme Court and argue that generations of precedent should be heaved out the window in order to judicially bless the admissibility of evidence obtained by kicking, beating, spitting, and farting on a 15-year-old, who was meanwhile also threatened with rape.

As the New York Times puts it:

By avoiding the need for a trial of Mr. Khadr, the deal represents a breakthrough for the Obama administration’s legal team, which had been dismayed that his case was to become the inaugural run of a new-look commissions system—undermining their efforts to rebrand the tribunals as a fair and just venue for prosecuting terrorism suspects.

It has been evident for some time that the Obama administration has been looking towards the Canadians for assistance in extracting it from the Khadr mess. This was so even before the military prosecutors and judges began behaving like macabre buffoons in the preliminary proceedings against Khadr.

In March of this year, the Canadian National Post reported that “[o]fficials in the Obama administration are quietly seeking a way to repatriate Canadian-born terror suspect Omar Khadr[.]”

“They don’t have the stomach to try a child for war crimes,” said the source, who declined to be identified because of the sensitive nature of such a U.S. bid.

Mr. Khadr’s age of 15 at the time of the alleged offences is playing on the minds of certain administration officials—especially those with backgrounds in the type of activism that has clashed with some of the more controversial U.S. anti-terror efforts, the source said.

Samantha Power, Michael Posner and Harold Koh are among administration officials with the strongest backgrounds in human-rights study and activism.

For example, Mr. Posner, the assistant secretary of state, was founding executive director of Human Rights First, which has advocated Mr. Khadr’s repatriation as one alternative to his continued prosecution in the military system established at the U.S. naval base in Guantanamo Bay, Cuba.

But even those seeking to return Mr. Khadr to Canada don’t feel the United States can make the first move. They want Ottawa to ask for the return of Mr. Khadr so that the Obama administration has “political cover” to dodge any domestic backlash resulting from the release of an accused terrorist from the U.S. justice system.

“There are political repercussions,” the source said. So administration officials are “looking for a Canadian [outreach].”

The Canadian government has not behaved particularly well during Khadr’s internment in the War on Terra gulag. This certainly did not change with the ascension of Barack Obama to the US presidency. The Conservative government of Stephen Harper conspired via truthless leaks to derail the Obama presidency during the Democratic primary campaign, and it is hardly likely to perform any favors for Obama now.

The rest of the Canadian government, however, is growing increasingly restive. A 2009 review determined that Harper’s Cabinet had failed Khadr by refusing to acknowledge his juvenile status or the torture inflicted upon him. In April 2009, the Federal Court of Canada ruled that the nation’s Charter of Rights and Freedoms made it obligatory for the government to immediately demand his return. In January of this year, the nation’s Supreme Court ruled that Khadr’s Canadian constitutional rights had clearly been violated, though it declined to order the government to demand forthwith Khadr’s return to Canada.

Yet Harper’s government continues to play hard to get. As Worthington wrote today:

[S]everal news outlets reported that, on Thursday, Secretary of State Hillary Clinton phoned Lawrence Cannon, the Canadian Foreign Affairs Minister, to talk about the Khadr case, and, allegedly, “to press the Conservative government into repatriating” Khadr. Cannon, however, remained tight-lipped about the conversation, reflecting another aspect of Khadr’s manipulation as a pawn, in this case by the government of his home country.

Still, after another year—or less—in US custody, Khadr will almost certainly be sent to Canada. And, particularly once the Canadians rid themselves of Harper et al, he will shortly thereafter be released. Until then, he remains but a bit of Canadian driftwood, bobbing atop the sea of lawlessness that BushCo poured forth in its War on Terra. It is a sea that, slowly, is being drained. Not near fast enough, though, to serve justly people like Omar Khadr.


4 Responses to “Canadian Driftwood”

  1. 1 possum October 26, 2010 at 4:01 am

    The Khadr affair continues to be a major blot on the US reputation. If we are to ever again be a nation respected for any measure of fairness and legality we need to face this mess and sort out in a court of law the full story. Without a full and open accounting we will never rid ourselves of the shadow.

    “It is important to remember that the United States Supreme Court has never officially sanctioned a military-commission conviction obtained against a War on Terra prisoner.” Never let us forget this entire mess is very likely illegal and unconstitutional in our nation. The fact that two Presidents support the mess makes it no less illegal.

    The whole thing is phenomenal beyond belief. A 15-year-old held for 9 years for a crime he may or may not have committed let alone the mistreatment suffered at the hands of US forces is unacceptable in any civilized society. We in the US are in danger of losing our claims to civil society these days as we continue to mount failing wars and condone prisoner abuse.

    For 8 long years I refused to wear a flag pin on my coat lapel in protest. I hoped one day the tables would turn and we would get our nation back again. I see that has not yet come to fruition. The flag pin will continue to be replaced by a Constitution pin instead until and unless we as a nation change our ways.

    • 2 bluenred October 27, 2010 at 10:04 am

      Nobody wanted this case “in a court of law.” Khadr didn’t want to risk spending more years combatting these kangaroos, and the government didn’t want to have to defend its awfulness in front of some legitimate panel of judges. It’s the Johnny Walker Lindh case all over again . . . just eight years on.

  2. 3 possum October 28, 2010 at 3:56 am

    Our “justice” system is nothing less than shameful in so many cases where a defendant chooses a plea over fighting for rights. Cutting one’s losses should not be part of a true system of justice. Is there any chance humankind will ever find a way to a system of real justice without retribution and the old “eye for an eye” approach?

  1. 1 World Spinner Trackback on October 26, 2010 at 6:41 am

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