At 22, Omar Khadr Has Spent a Third of His Life in Guantanamo

By Andy Worthington, Andy Worthington's Blog. Posted September 20,
2008.

Yesterday was the birthday of Guantanamo's child soldier and sole
Canadian citizen, Omar Khadr, who has been held in isolation since he
was 15.

On Friday, Omar Khadr, the sole Canadian citizen in Guantanamo, marked
his 22nd birthday in isolation. Seized in Afghanistan when he was just
15 years old, Omar has now spent nearly a third of his life in U.S.
custody, in conditions that ought to be shameful to the U.S.
administration responsible for holding him and to the Canadian
government that has abdicated its responsibilities toward him.

Under the terms of the Optional Protocol to the UN Convention on the
Rights of the Child (on the involvement of children in armed
conflict), to which both the United States and Canada are signatories,
juvenile prisoners -- defined as those accused of a crime that took
place when they were under 18 years of age -- "require special
protection." The Optional Protocol specifically recognizes "the
special needs of those children who are particularly vulnerable to
recruitment or use in hostilities," and requires its signatories to
promote "the physical and psychosocial rehabilitation and social
reintegration of children who are victims of armed conflict."

Several factors have conspired to keep Omar in Guantanamo: in
particular, U.S. allegations (only recently challenged) that Omar
threw a grenade that killed a U.S. soldier in the firefight that
preceded his capture; a general indifference toward him in Canada
because of the alleged sins of his family (his father, who raised
funds for the welfare of the mujahedeen of Afghanistan and their
families, was reportedly close to Osama bin Laden); and a general
disregard for the traditional rules of war, in which not only should a
child be protected from punishment, but any combatant seized in
wartime should be regarded as a soldier, subject to the prohibition on
"cruel and inhuman treatment" and interrogation dictated by the Geneva
Conventions, and not held as a terrorist to be brutalized and
interrogated at will.

As Omar turns 22, however, it is abundantly clear that his treatment
-- which includes a heartless disregard for his terrible wounds in the
months following his capture, severe isolation in Guantanamo, and
prolonged periods of abuse and humiliation -- demonstrates a blatant
disregard on the part of the U.S. administration for the Geneva
Conventions. This kind of behavior is reprehensible in the cases of
the adults in U.S. custody, and even more grotesque in the case of
Omar and the 21 other juveniles (at least) who have been held in
Guantanamo throughout its long history and who have been deprived of
the protection not only of the Geneva Conventions but also of the UN
Convention on the Rights of the Child.

What makes Omar's case even more shocking is that, because of the
nature of the "crime" of which he has been accused (killing a U.S.
soldier in wartime), he was chosen by the administration for
prosecution in its system of "terror trials" at Guantanamo, the
Military Commissions -- unrelated to any other form of U.S. justice --
that were conceived by Vice President Dick Cheney and his close
advisers in November 2001.

Although he was initially charged in November 2005, Omar's case --
like that of the other nine prisoners charged in the Military
Commissions -- was dismissed in June 2006, when the U.S. Supreme Court
ruled that the entire process was illegal, but he was one of the first
prisoners to be charged again (along with the Australian David Hicks
and the Yemeni Salim Hamdan) when the Military Commissions were
revived by Congress later that year.

For the last 15 months, since the first pretrial hearings were held,
the case against Omar has stumbled from one setback to another.
Initially, his case was dismissed by the government-appointed military
judge, Col. Peter Brownback, because of discrepancies in the wording
of the Military Commissions Act (the legislation that revived the
process); in the last year his military defense team, led by Lt. Cmdr.
William Kuebler and his Canadian civilian attorneys, Dennis Edney and
Nathan Whitling, have done everything in their power to persuade the
Canadian government to press for Omar's return and to persuade the
U.S. government to call off his trial.

These have included submissions pointing out the weakness -- or
illegality -- of the government's claims that the charges against Omar
constitute "war crimes," suitably shocked announcements following the
emergence of long-suppressed evidence indicating that Omar did not
throw the grenade that killed Sgt. Christopher Speer, and a heartfelt
plea for the U.S. government not to set a vile precedent by
prosecuting a juvenile. "If jurisdiction is exercised over Mr. Khadr,"
the defense team explained, "the military judge will be the first in
Western history to preside over the trial of alleged war crimes
committed by a child. No international criminal tribunal established
under the laws of war, from Nuremberg forward, has ever prosecuted
former child soldiers as war criminals. Â… A critical component of the
response of our nation and the world to the tragedy of the use and
abuse of child solders in war by terrorist organizations like al Qaeda
is that post-conflict legal proceedings must pursue the best interest
of the victimized child -- with the aim of their rehabilitation and
reintegration into society, not their imprisonment or execution."

Although the administration refused to be swayed by any of these
complaints, the path to Omar's proposed trial has continued to be a
bumpy one. In March, Brownback criticized the prosecutors for their
slow response to demands to hand over information to the defense team.
After ordering them to give Omar's lawyers a list of all U.S.
personnel who had interrogated him in Afghanistan and Guantanamo and
to provide them with access to their notes, he postponed the trial's
start date (which was scheduled for May 5) to allow more time for
discussions of acceptable evidence and was promptly dismissed from his
job. The administration argued that this was because his appointed
tenure had come to an end, but Omar's lawyers were not convinced.

Even so, his replacement, Col. Patrick Parrish, has also demonstrated
his independence despite initial doubts. In hearings over the summer,
Omar's lawyers submitted a raft of new requests and complaints,
calling for independent experts on "false confessions made by
juveniles" to be allowed to assess Omar, and accusing Brig. Gen.
Thomas Hartmann, the commissions' legal adviser, of "unlawful command
influence" in connection with the removal of Brownback from the case
and his role in "sexing up" (my phrase) the case for Omar's
prosecution.

Hartmann had already been excluded by other government-appointed
judges from two other cases -- those of Salim Hamdan and the Afghan
teenager Mohamed Jawad -- but although Parrish refused to exclude him
from Omar's trial (and refused to allow independent experts to assess
Omar's mental state), he dealt a third blow to Hartmann's credibility
by ruling soon after that, in the case of a conviction, he was
prohibited from reviewing the verdict.

Parrish also dealt another blow to the prosecution in Omar's case by
backing a largely overlooked ruling made by Brownback in April,
shortly before his departure, in which the now-retired judge
demolished a key plank of the government's case against Omar by
striking out part of the language in the "conspiracy" charge against
him. Brownback had ruled that the secretary of defense lacked the
authority to expand the traditional definition of "conspiracy" to
include joining an "enterprise of persons who shared a common criminal
purpose," and Parrish agreed, prompting the government to declare that
it would appeal to the "Court of Military Commission Review" that it
had been forced to establish last summer after Brownback (for Omar)
and Capt. Keith Allred (for Hamdan) had thrown out their cases in
June.

In a press release, Kuebler explained the importance of the decision.
"The ruling is significant," he wrote, "because military commission
prosecutors lack evidence to link all but a handful of detainees
directly with the 9/11 attacks and other major al Qaeda atrocities."
He pointed out that the short sentence Hamdan received after his trial
partly came about partly because prosecutors were "unable to rely on
the expansive 'enterprise' definition of conspiracy." Criticizing the
government's decision to appeal, he explained that, because the
prosecutors were "jealous of their advantages in military commission
litigation, and unable to change the ruling by changing the judge,"
they were now turning to the appeals court "in an effort to unlevel
the playing field in their favor."

Reiterating that "Omar's anticipated trial violates basic
international standards for the treatment of children and child
soldiers and takes place in a tribunal in which no U.S. citizen can be
tried," Kuebler concluded that the decision to appeal the "enterprise"
ruling "plainly show(s) that Omar Khadr is a mere guinea pig for the
anticipated trials of real terrorists such as Khalid Sheikh Mohammed
and other alleged al Qaeda masterminds."

With this appeal yet to proceed, Omar's defense team recently stepped
up its efforts to derail the proposed trial. On Sept. 10, Kuebler once
more sought permission for independent experts to evaluate Omar,
arguing that the prosecutors' choice, army psychiatrist Chris
Peterson, lacks the required expertise and also suffers from a
conflict of interest, given that military medical teams helped devise
the interrogation techniques used at Guantanamo. "You're basically
asking the guy to testify against his employer, and that's a problem,"
Kuebler explained.

As described in the National Post, one of the medical experts chosen
by Kuebler is "a specialist in child soldiers and victims of torture,"
and the other "is conducting a study for the Army into blast trauma --
which is significant in Mr. Khadr's case because U.S. forces dropped
two 225-kilogram bombs on the compound just ahead of the raid by U.S.
ground forces." Kuebler explained, "Omar's condition at the time and
his ability to recall, to communicate, is something we have no
information on. We need to have someone to evaluate him and to
evaluate what was actually broken when he was first taken into
custody." He added that he also believed that the experts would be
able to assess the extent to which Omar's upbringing "has affected his
current ability to talk about the past or understand his current
predicament." Omar "has provided us with some information, but not the
whole picture," Kuebler added, "and we think that's something we need
in order to be competent and ethical at trial."

The following day, the Associated Press reported that attempts by
Canada's foreign affairs department to "ensure proper medical care and
prison conditions" for Omar were being "stymied" by U.S. authorities.
The documents showed "even simple requests to provide Khadr with a
pillow, blanket or sunglasses to protect his shrapnel-damaged eyes and
body foundering on apparent security concerns." The agent who visited
Omar, Suneeta Millington, who described how shrapnel was "slowly
working its way out of Omar's body," explained that two pairs of
sunglasses were "rejected on the grounds that they might constitute a
security risk," and added, "A number of requests made both by Omar and
Canadian government officials either fall through the cracks, go
ignored or are not processed in a timely manner."

At the same time that the Canadian complaints were aired, Omar's
defense team announced another surprise: the existence of another
witness to the firefight, in addition to "Lt. Col. W.," the witness
who, in March, was accused of "doctoring a report" to implicate Omar
in Speer's death. Kuebler named the man as Jim Taylor, while admitting
that he "could not disclose the government agency or department where
Taylor works since it is classified," and adding that he had not yet
met with him "due to instructions from his employer." He proceeded to
explain, as Michelle Shephard described it in the Toronto Star, that
Taylor "had written a report -- date unknown -- claiming more than one
occupant of the compound raided by U.S. Special Forces was alive when
Speer was wounded." As the Globe and Mail put it, Kuebler told the
court that "there were multiple people alive."

After another surprise -- a potentially damaging admission by the
prosecution that, at the time of his capture, Omar had indeed been "a
'child,' in need of special consideration" -- Parrish, once more
chiding the prosecutors for their delays in providing information to
the defense, postponed the trial until Nov. 10, after both the
Canadian and the U.S. elections. The results of either election -- or
both -- may be significant to Omar, but it makes little difference to
him now, as he passes his sixth successive birthday in Guantanamo,
alone. Historic though his case may be, it's doubtful whether the
ripples of indignation that have been steadily building over the last
three years, as his lawyers and other supporters have sought to
humanize this lost child, will touch him in his solitude.

Andy Worthington is a writer and historian, and he is the author of
The Guantanamo Files.