Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
Canadian Guantánamo detainee Omar Khadr pleaded guilty on Oct. 25 to charges of murder, attempted murder, conspiracy, spying, and material support of al Qaeda. Khadr was 15 years old when he was shot and captured after a four-hour firefight in the Afghan village of Ayub Kheyl in July 2002. He has spent more than a third of his life in U.S. military detention, and until his plea, he faced the prospect of being prosecuted in what NACDL believes to be a gravely flawed and illegitimate military commission system with rules that heavily favor the prosecution and a jury with the power to sentence him to life in prison. And so the Guantánamo military commissions can now count an ex-child soldier as its fifth conviction after two presidents and nine years.
After the plea hearing, the chief prosecutor, Navy Capt. John Murphy, held a press conference. “Omar Khadr stands convicted of being a murderer and convicted of being a terrorist,” Murphy proclaimed. “He was convicted with the most powerful evidence known to law — his own words: ‘I am a murderer. I am an al Qaeda terrorist.’ Omar Khadr is not a ‘victim.’ He’s not a ‘child soldier.’” The term “child soldier” has been widely used in the media to describe Khadr, who is now 24 years old.
But the media, mostly Canadians and Europeans, seemed skeptical of Capt. Murphy’s victory speech. Khadr was a juvenile when he purportedly committed the crimes to which he pleaded guilty. Many wanted to know: Shouldn’t that mitigate his case? Murphy steadfastly demurred and repeatedly referred to Khadr as a “murderer.”
The National Association of Criminal Defense Lawyers was chosen by the Office of Military Commissions as one of the nongovernmental organizations (NGOs) authorized to send an observer to the Khadr proceedings, which human rights groups believe to be the first U.S. prosecution of a juvenile in a military court since World War II. Jack King, Director of Public Affairs, traveled to Guantánamo as NACDL’s NGO representative.1 He is drafting a report on the sentencing proceeding, which he calls “a travesty … a political show-trial that ultimately accomplished nothing but a perversion of the ideal of justice.”
On the day the defense was to make its opening statement, the judge surprised courtroom observers by announcing that he understood Khadr was changing his plea to guilty to all charges. Khadr’s plea deal capped his sentence at eight years, with no credit for time served in military detention at Bagram Air Force Base in Afghanistan and Guantánamo Bay. After one more year of incarceration, he can petition the Canadian government for repatriation with the support of the Convening Authority and the U.S. government, according to the plea agreement, with the remainder of his sentence to be served in Canada, consistent with Canadian law.
The second paragraph of the government’s stipulation of facts, signed by Khadr, states, “Omar Khadr is an unprivileged belligerent because he does not fall within one of the eight categories enumerated under Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War” — he was not in a country’s armed forces, not in a recognized militia, not a civilian military contractor, or a citizen who spontaneously took up arms in defense of his homeland, and so on.2
But that stipulation ignores what Khadr is — a young man captured on the field of battle at age 15, who took his orders from adults. The prosecution’s own evidence admitted that Khadr was taken from Toronto to Pakistan by his father six years earlier at age nine.
Human rights groups, including NACDL, rightly criticized the legal precedent set by the United States in prosecuting Khadr. Both the United States and Canada are signatories to the U.N. Convention on Rights of the Child. Under that treaty, what the world calls “child soldiers” — persons under age 18 who carry arms in support of groups “distinct from the armed forces of a State” — are to be afforded “all appropriate assistance for their physical and psychological recovery and their social reintegration.”3 Instead, Khadr, who was severely mistreated at Bagram Air Force Base in Afghanistan, and then incarcerated for the past seven years as Guantánamo’s youngest detainee, will be subjected to at least one more year of the harshest noncapital punishment given to U.S. prisoners, military and civilian. Having been residing for the past few years in the lowest security camp because of his cooperative and benign nature, as a convicted murderer, Khadr will be returned to Camp 5 and placed in solitary confinement to serve his sentence.
The sentencing hearing gave the Obama administration an opportunity to present to the world emotionally charged “evidence” that Omar Khadr was a murderer, as Capt. Murphy predicted. The drama of the plea itself was just an overture to three days of aggravating evidence by the prosecution and, under the terms of the deal, one day of mitigation evidence.
A prosecution expert, forensic psychiatrist Michael Welner, M.D., declared Khadr “highly dangerous.” Among the reasons Welner gave for his conclusion: Khadr is “devout,” “charming,” “gracious,” and multilingual. (In fact, Khadr does have a gift for languages, being fluent in English, Arabic, Pashtu and Dari, with some conversational French.) In Welner’s opinion one of Khadr’s most dangerous traits is his ability to conform his conduct to what is expected of him; he is even friendly in one-on-one situations. Is that what scares Dr. Welner — people who can act normal and friendly?
However, when cross-examined by Air Force Major Matthew Schwartz, one of Khadr’s defense lawyers, it turned out that Welner’s professional opinion of Khadr’s religion had been informed by a telephone conversation with a self-admitted anti-Muslim psychologist in Denmark who has written that the “Muslim culture” has been damaged by 1,500 years of “inbreeding” and that the Koran is a “criminal book that forces people to do criminal things.” In the warped legal world of Guantánamo military commissions, this is what passes for expert opinion!
It is not difficult to see why Khadr took the plea, even if reluctantly. Eight years with the possibility of parole looks good in comparison to spending the rest of his life in a military prison in solitary confinement. It is my understanding that in Canada, Khadr would be eligible for parole after serving one-third of his sentence, or 32 months, although some experts have speculated that Khadr could petition a Canadian court for extraordinary relief.
The spectacle of a child soldier pleading guilty in a U.S. tribunal and being sentenced to up to eight years of solitary confinement — the decision to repatriate him is up to the Canadian government — demonstrates the bankruptcy of the military commission system. Other signatory nations to the Convention on the Rights of the Child may see this travesty as a moral failing on our part as much as it is a legal one.
It is impossible to say if Khadr would have been prosecuted at all if he had not been the only al Qaeda survivor at Ayub Kheyl. He was young, shot twice in the back, and blinded in one eye by a bomb fragment. There were no eyewitnesses who saw him throw the grenade that killed one of our soldiers. We have only Khadr’s confession, which was extracted under lengthy and harsh interrogation at Bagram, and the stipulation of facts in his plea agreement. While he was recuperating from his wounds, one of his interrogators told him that if he refused to cooperate, he’d be sent to a U.S. prison. There, he was told, a “little Afghan” was sent for lying to his interrogators, where some American prisoners — “big black guys … big Nazis” — caught him in the shower, the interrogator said, “and they raped him and … we think he ended up dying, but we’re not sure.”4
The military commission system again shows how it was designed to ensure convictions above all else.5 Under the U.N. Convention, Khadr’s rehabilitation and reintegration into society should have begun years ago. With Khadr spending at least another year in solitary, the rehabilitation process is still a long way off.
- My thanks to Jack King for briefing me on his observations at Guantánamo Oct. 22-Nov. 1, 2010. His report is scheduled to appear in next month’s issue of The Champion.
- Specifically, the stipulation tracks the language of the Convention on the Rights of the Child, Article 4, word-for-word, preceding each of the Convention’s numbered paragraphs with “Khadr is not” or “Khadr did not. …"
- Part I, Article 1 of the Convention on the Rights of the Child provides: “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.” The subsequent Optional Protocol on the involvement of children in armed conflict “condemn[s] with the gravest concern the recruitment, training and use within and across national borders of children in hostilities by armed groups distinct from the armed forces of a State, and recognizing the responsibility of those who recruit, train and use children in this regard” and “[r]ecognizes the special needs of those children who are particularly vulnerable to recruitment or use in hostilities[.]”
- Defense Exhibit BB, Written Unsworn Statement of Omar Khadr, read in open court by the defendant Oct. 29, 2010, submitted Oct. 30, 2010.
- NACDL warned several years ago that the Military Commission Rules were “designed to ensure convictions.” NACDL News, The Champion, March 2007 at 6.
Cross-Examination Trial Pack
NACDL’s new Cross-Examination Trial Pack includes three of our best-selling Cross-Examination resources: “Damage Control: Situational Cross-Examination Techniques Trial Guide”, "Ultimate Cross 2.0: Audio Recordings & Written Materials" and "Sample Cross-Examination Questions."
This masterful collection of cross-examination resources provide countless tips, techniques and strategies for a variety of criminal case-specific scenarios. Learn to cross-examine a variety of trial witnesses!
Death Investigation: Forensic Pathology in the Courtroom and Cause & Manner of Death (2022)
This unique program provides criminal defense lawyers with an accurate and clear overview of forensic pathology and the countless factors to consider in a death investigation and will methodically explain what happens during an autopsy to determine cause and manner of death.
You'll uncover the different types of medicolegal death investigations, what to request from your MDI expert, quality benchmarks for accreditation and certification, guidelines and standards, common terminology and frequently asked questions.
The Psychology of Persuasion & Storytelling for Criminal Defense Lawyers
This Trial Resource Guide is a masterful collection of practical tips, techniques and strategies focused solely on using the arts and sciences of persuasion to improve your storytelling skills at trial.
You'll learn how to master the ability to communicate with juries, deliver powerful openings and closings, perform convincing cross-examinations, use effective courtroom choreography and non-verbal communication, identify and develop the optimal theme and theory for your case, and offer compelling arguments during mitigation and sentencing.
Zealous Advocacy in Sexual Assault & Child Victims Cases (2022)
Defending charges of sexual assault and child abuse can be daunting — but with the right tools, it doesn’t have to be.
Every year, NACDL identifies the hottest topics and most pressing issues when defending these cases, and brings-in nationally-renowned lawyers and experts to help you prepare for battle. This year’s 13th Annual Defending Sex Cases training program is our best yet; packed with topics and speakers you won’t want to miss!