Now Playing at GITMO: Kabuki Again

By William Fisher

A military jury at Guantanamo Bay sentenced a “child soldier” to 40 years in prison –unaware that Omar Khadr’s defense and prosecution lawyers had already agreed on an eight-year sentence and further agreed that the United States would send the Canadian home next year.

Under a plea bargain with a Pentagon official, Khadr would receive an eight-year sentence, in addition to the eight years he has been a prisoner at Guantanamo Bay. But according to the plea arrangement reportedly reached between prosecution and defense, he would serve only one additional year at GITMO and the remaining seven in Canada, his home country. That means he could be released from prison at age 32, and perhaps sooner according to Canadian parole regulations.

The United States has pledged to support his return to Canada a year from now to serve out seven more years in a Canadian prison. While Canada has denied the repatriation idea publicly, it is known that the U.S. and Canadian government exchanged diplomatic notes on Oct. 23, declaring that “The Government of Canada is inclined to favorably consider Mr. Khadr's application to be transferred to Canada to serve the remainder of his sentence,'' or whichever portion Canada's National Parole Board decides is required.

But the Guantanamo jury, officially, didn’t know any of that. Their decision would apply only if it decided on a lighter sentence.

According to eye-witness Carol Rosenberg of The Miami Herald, “Jurors were told only that Guantánamo's youngest captive had pleaded guilty to five war crimes, including hurling the grenade that mortally wounded Sgt. 1st Class Christopher Speer, 28, during a July 2002 assault on an al Qaeda compound.” Khadr was 15 at the time of the attack.

The prosecution argued for a sentence of 25 years; defense lawyers urged repatriation to Canada. The jury disagreed with both, finding that Khadr should remain in prison until age 64.

The sentence of 25 years would have been far less than the sentence possible for all the crimes Khadr admitted to. Observers have said he pled guilty to so many crimes to avoid receiving a life sentence from the jury.

Moreover, some experts contacted by IPS were certain that the plea deal was known to the jurors.

David Frakt, who gained fame when he resigned as a Guantanamo Bay defense attorney because he believed military commissions were not designed to produce fair trials, told IPS, "I am not sure that we can safely assume that the jury was unaware of the eight year plea deal, because it was plastered all over the news even before the trial started. Although the jurors were instructed by the court not to read news accounts related to the trial, it wouldn’t surprise me if one of them knew about it.”

What was the purpose of convening a jury to deliberate after a plea agreement had been reached? IPS reached out to constitutional scholars for answers. Here are some of them:

Daphne Eviatar, a senior attorney with the advocacy group Human Rights First and an eye-witness to the Khadr proceedings at GITMO, told IPS, “As the prosecutors said over and over to the jury, the government wanted them to ‘send a message’ -- to the American people, to al Qaeda, and to all the victims of this deadly war that the lives of U.S. service members are valued. One has to question, though, the choice of a 15-year-old child soldier forced into war by his father as the messenger.”

David Frakt told IPS, “Even if we accept that they did not know the specific terms of the pretrial agreement, they certainly knew that there was a plea deal, and they would have understood that the maximum sentence under the agreement was something less than the 25 years that the prosecution asked for, because it is standard practice for military prosecutors to ask for a sentence in excess of the agreed sentence cap. It is quite unusual for a military jury to give substantially in excess of what the prosecution requests. In fact, I’ve never seen it happen before.”
He added, “So they clearly were trying to send a message."

“Presumably, the message was intended to be a deterrent to other would-be terrorists and insurgents. In essence, they jurors were saying, “don’t mess with the U.S. military.” Given that the true extreme jihadists are quite willing to die for the cause, I doubt that the sentence will have the desired deterrent effect."

Scott Horton, a constitutional lawyer and Contributing Editor at Harper's Magazine, told IPS, "It can be argued that from the outset a prime function of the military commissions has been not to inform, but rather to deceive the public.”

“A plea bargain was struck, but the details of it were suppressed,” he said, adding:

“What the prosecution got out of the deal was a guilty plea to everything charged--indeed, Khadr would have pleaded to kidnapping the Lindbergh baby had they asked him to. This was then paraded before the public and the commission as a genuine guilty plea, with attendant melodrama, and the thrust behind it was suppressed. But the whole exercise we have seen is theatrics designed to cover the case that the prosecution case was weak and that the government severely mistreated this prisoner. The guilty plea and the courtroom drama will grab headlines, and the rest will be forgotten.”

Chip Pitts, a law lecturer at Stanford University law school, told IPS, “The result is entirely consistent with a process established to function more like the military show trials and Kangaroo courts the United States has traditionally condemned than one established to deliver justice. ‘Back to the USSR’?”

Bruce Fein, a conservative former senior justice department official in the administration of President Ronald Reagan, told IPS, the jury verdict was "a community expression of fear of international terrorism."

Professor Francis A. Boyle of the University of Illinois law school, told IPS, the purpose was “to put the blame on a Child Soldier instead of themselves."

IPS posed another question to the legal experts it contacted: How unusual is it for a judge to send a jury out to deliberate on a verdict without telling them that the prosecution and the defense had already agreed on a plea arrangement?

Scott Horton’s view is that "It's impossible to speak of established practice in military commissions, because they're new, but this is the practice that has been established, starting with the al-Qosi case. Evidently this process is part of the agreed bargain."

Prof. Boyle responded: “These are Kangaroo Court proceedings. Of course they knew [of the plea deal]. As Groucho Marx said, ‘Military justice is to justice as military music is to music.’ And The Marx Brothers are in charge of the GITMO kangaroo court proceedings.”