Averting a PR Disaster

By William Fisher

With tongue in cheek, Constitutional experts today congratulated the U.S. Government for negotiating a plea deal with Guantanamo prisoner Omar Khadr, thus avoiding a trial in the Military Commission “puppet theater” that would have subjected them to the embarrassment of “a publicity nightmare of the highest order.”

The consensus among legal scholars contacted by IPS is that “before the end of 2012, Khadr will be home in Canada, and in very short order, he will be a free man.”

Details of the plea deal are not yet fully known, but it appears that Khadr will serve an eight-year sentence, the last seven years of which will be in Canada, his home country. Most of those contacted by IPS believe the Canadian Government will free him since he was only 15 at the time of his offenses and should not have been tried before a Military Commission in the first place.

One IPS source, Constitutional lawyer Scott Horton, who writes for Harper’s Magazine, called the plea deal “a meaningless charade.” He told IPS, “My best guess is this: before the end of 2012, Khadr will be home in Canada, and in very short order, he will be a free man. This is because, as the Canadian courts have already recognized, the entire process at Guantánamo is illegitimate and it furnishes no basis upon which a person can be imprisoned, not even on a ludicrous and highly coerced guilty plea.”

The benefit to the U.S., he said, is that “The U.S. is saved the spectacle of a trial which would have been a publicity nightmare of the highest order. Khadr gets to go home and probably to go free before too long. And the prosecutors get just one thing: a number of gullible reporters who misunderstand what is going on, and report it as a complete victory for them.”

On Monday, Khadr pled guilty to five charges, including murder, for throwing a grenade that killed a US soldier in during a fierce firefight at an al-Qaeda compound in Afghanistan in 2002. He was 15 years old at the time of the incident.
Khadr's defense team says he was pushed into fighting the US by his father, said to be a close associate of Osama bin Laden.

Khadr, now 24, also admitted planting improvised explosive devices and
receiving weapons training from al-Qaeda. His defense lawyers say that because Khadr was a child when the offenses occurred, he should not be tried for war-crimes.

David Frakt, who is widely known for his 2008 defense of Guantanamo detainee Mohammed Jawad, who, like Khadr, was facing charges for events alleged to have taken place when he was a minor, agrees.

He told IPS, “The conviction of this child soldier for non-existent war crimes is a disgraceful travesty and a stain on America's reputation. Although the plea bargain has saved the Administration from the unseemly spectacle of a trial, the United States will still go down in history as the first civilized nation to prosecute a child soldier as a war criminal.”

He added, “That this happened on President Obama's watch is beyond disappointing, and exposes the extreme hypocrisy of the Administration's claims of devotion to the rule of law and adherence to the laws of armed conflict.”

In defending Mohamed Jawad, Frakt argued that Jawad had been subjected to: "...pointless and sadistic treatment [in a] bleak underworld of barbarism and cruelty, of anything goes, of torture.” He was subsequently released on a writ of habeas corpus.

Frakt, now a professor at Barry University law school, told IPS he believes that the officers on the military commission jury are capable of rendering a fair verdict and sentence.

But, he added, “the way that the Military Commissions Act is written, and the way it has been interpreted by the Department of Defense and by Khadr's trial judge, would have virtually guaranteed conviction on most, if not all, of the charges, potentially subjecting Khadr to a very lengthy sentence. Given the unreasonableness of both the U.S. and Canadian governments' posture toward Mr. Khadr, his lawyers are probably wise to advise him to take this deal. At least he now has a chance to get out of confinement while he is still relatively young and lead some semblance of a normal life.”

Chip Pitts, a Lecturer in Law at Stanford Law School, told IPS, “This plea bargain shouldn’t be taken as indication of the legitimacy of the irredeemably tainted military commissions; it was precisely their illegitimacy and one-sidedness that led Canadian citizen Omar Khadr, a juvenile at the time of arrest who was brought into horror of war by his father and had maintained his innocence of the murder charges until the last minute, to finally succumb to the pressure of a potential life sentence and agree to a plea bargain (including to novel “war crimes” not recognized as such at the time).”

Pitts said the plea deal “will return him to Canada and freedom much earlier.”

But, he added, “The precedent set – of extracting a plea by threatening a child soldier with harsh charges and an unfair trial, instead of undertaking the rehabilitation contemplated by international treaties – is a notable setback for international human rights law. How is this different from Uganda’s bringing treason charges in 2002 against child soldiers from the Lord’s Resistance Army, or the DRC’s military court prosecutions against child soldiers? The implications, especially for child victims of war and legal treatment of children with still-developing brains, are disturbing.”

Jonathan Hafetz, a professor at the Seton Hall Law School, joined others in questioning the legitimacy of the Military Commissions. He told IPS, “Khadr's case, which underscored the gross mistreatment of prisoners in U.S. custody and the extent the U.S. government would go to hide it, reminds us that military commissions will continue to spark controversy and lack legitimacy as long as they continue. Khadr's plea may help bring the debacle to an end in his case, but it provides another example of how military commissions are designed to deny justice, not to deliver it."

Human Rights organizations were unanimous in condemning the Khadr proceedings. Rob Freer, Amnesty International’s USA researcher said, “While military trial proceedings may be coming to an end in Khadr’s case, the obligation on the U.S. authorities to address serious concerns about human rights violations suffered by him does not end.”

He added, “The U.S. authorities have ignored their international duties in the treatment of children, which was the case when Khadr was arrested eight years ago.”

And Jameel Jaffer, Deputy Legal Director of the American Civil Liberties Union (ACLU), declared, "Khadr's plea deal means that the United States will be spared the embarrassment of trying a child soldier in a tribunal that most of the world sees as illegitimate. Khadr's case, however, is emblematic of a set of larger problems with the military commissions that won't be resolved by a plea deal. These tribunals are simply incapable of providing fair trials, and they ought to be shut down altogether.”