In a surprising verdict issued late Sunday afternoon, a military commission jury recommended that Omar Khadr serve 40 years in confinement. Given that Khadr has already served eight years at the U.S. prison camp at Guantanamo Bay, Cuba, that's a 48-year sentence for a child soldier. Khadr is also the only fighter charged by the U.S. government with murder on the battlefield since the start of the wars in Iraq and Afghanistan. He was only 15 years old when, according to his guilty plea, in July 2002 he threw a grenade that killed a U.S. soldier.
As is usually the case with the military commissions, however, all is not as it seems. In fact, according to the terms of his plea deal, Khadr will serve only eight more years in confinement -- one in Gitmo's Camp 5, and seven more in Canada, provided Canada accepts the United States' request to transfer him a year from now. Diplomatic notes between the two countries reveal that Canada will consider the request and is likely to comply. Khadr's Canadian lawyers have already said they'll challenge his sentence in the Canadian courts in the hopes of winning him an early release.
If the proposed 40-year sentence and eight-year plea deal seem incongruous, given the way military commissions work at Guantanamo, they're not, really. The eight-year deal came attached to a 50-paragraph stipulation of facts, in which the government required Omar Khadr to plead guilty not only to murdering a U.S. soldier by throwing a grenade in a firefight, but to a long list of other charges -- including conspiracy, spying, material support for terrorism, and attempted murder of U.S. soldiers and unnamed civilians. In the stipulation, the government labeled all of these offenses as "war crimes," although they're not considered war crimes under internationally accepted laws of war. In fact, they weren't deemed war crimes by the United States until 2006 -- four years after Khadr allegedly committed them.
Still, the plea specified that Khadr, at the age of 15, raised by a terrorist father who'd taken him to Afghanistan at the age of nine and put him to work for his al Qaeda associates, had independently intended to commit each of these criminal acts.
In closing arguments, prosecutor Jeffrey Groharing capitalized on the details of that plea agreement to paint Khadr as an unrepentant terrorist and murderer, a committed member of al Qaeda unworthy of mercy and not susceptible to rehabilitation. He portrayed Khadr as someone who all along had a choice -- to leave al Qaeda, to surrender during the firefight in Afghanistan that killed Sgt. Christopher Speer, and to turn his back on his father and family and their values and beliefs. According to the plea agreement, Khadr repeatedly and independently chose not to do so. Groharing asked the jury to sentence Khadr to 25 years in prison -- less than a life term only because of his age and upbringing.
To the seven-member military jury, however, the government's argument, backed by the unusually detailed guilty plea, was even more effective than prosecutors realized. During a weeklong sentencing hearing, in accordance with the terms of the plea deal, the government presented ten witnesses attesting to the depravity and future dangerousness of Omar Khadr. The government's star witnesses were Tabitha Speer, the widow of the U.S. soldier Khadr confessed to killing, and a forensic psychiatrist. The psychiatrist, Dr. Michael Welner, had interviewed Khadr for just seven hours over the course of two days and relied heavily for his conclusions about Khadr's future dangerousness on the work of a Danish psychologist who believes Islam is an inherently dangerous religion and that Muslims should not be allowed to emigrate to Europe.
The defense was allowed to present only four witnesses to counter that story. Significantly, the details of the plea prevented Khadr's lawyers from putting anyone on the stand who actually knew Omar Khadr and believed he was not guilty, or at least didn't have a real choice about whether or not to assist al Qaeda and his father as an adolescent. A witness contradicting the plea would have called the entire deal into question.
After deliberating for more than nine hours, the jury announced late Sunday afternoon that Omar Khadr should serve 40 years more. The members were not told about the eight-year term previously included in the plea bargain.
If observers were hoping to see justice done at the Guantanamo Bay military commissions this past week, they were sorely disappointed. What we saw instead amounted to a show trial. It was a show directed to allow the government to show the world, the American public, and the widow of Sergeant Speer that the United States is tough on terrorism, values its troops and can justify holding a child captured in battle for eight years without a trial. "Your sentence will send a message," Groharing told the jurors.
But the real message is that military commissions are no place to try suspected terrorists. The government in this case knew that the war crimes charges were always suspect; killing an enemy soldier in the heat of battle is not a war crime. Neither is conspiracy or material support for terrorism. So even if the government believed that Omar Khadr had done everything charged, prosecutors faced pressure to agree to a far lower sentence than such crimes would merit if brought in a civilian federal court, and avoid the appeals that would jeopardize any trial verdict. Khadr was specifically required to waive his right to appeal the verdict and sentence, and in a highly unusual move, the government used the plea agreement not only to state "facts" it could never have proven, but to assert the validity of its legal claims.
In the end, Tabitha Speer could claim at a press conference Sunday evening that this was "a huge victory for my family" and "one of the happiest days of my life," because the jury had awarded a sentence almost twice as long as the government sought to punish Omar Khadr for her husband's death on the battlefield. "It's a victory for not just my family but for hundreds of other families out there" who have lost loved ones in this ongoing nine-year war, she said. The government could claim victory because, as Murphy proclaimed, by winning "an admission of guilt from Omar Khadr" they also won "certainty -- not just on one or two of the charges, but on all of them." Moreover, they won the "end of all appeals -- this case is over today."
It's been clear for months now that the Obama administration wanted this case to go away. As a signatory to a UN Treaty that says child soldiers should be treated as victims and rehabilitated, the government was appropriately embarrassed that its first war crimes trial would be that of a child soldier -- the first time in modern history that the United States has tried a child for war crimes.
Omar Khadr won something, too, of course: a light at the end of the tunnel. At 24, having spent a third of his life in indefinite detention, he now knows that within a year he'll likely leave Guantanamo Bay and return to Canada. There, he'll serve some portion of his sentence and perhaps get a more legitimate hearing in the Canadian courts.
Still, nothing about the end of this case feels like justice. As Dennis Edney, Khadr's Canadian lawyer, said on Sunday evening: "We have over 1,200 American soldiers killed in Afghanistan. We have a 15 year-old boy paying for that."
What's more, even after his five-year ordeal in the military commissions, the story of Omar Khadr remains a mystery. What did he really do, and why? Did he really throw the grenade that killed a U.S. soldier? Did he really have a choice not to fight for al Qaeda? And what happened to him in prison? The judge refused to allow testimony about his treatment -- including evidence that he was shackled to a cage and threatened with gang rape and murder by his lead interrogator -- to be considered by the jury.
When we think about justice, we usually think that truth has something to do with it. If that's the case, then I think we can safely say that justice was not done this past week at Guantanamo Bay.