Dispatches from the Creation Wars

Khadr Pleads Guilty

Omar Khadr, the child soldier who has spent more than half his life imprisoned in Guantanamo Bay, at least some of it being tortured, pleaded guilty on Monday in what was essentially a plea bargain with the government. My friend Daphne Eviatar was in the “courtroom” when it happened and she reports that there is far more here than meets the eye.

This morning I sat in a U.S. military commissions courtroom in Guantanamo Bay, Cuba, and watched the first child soldier charged by a Western nation since World War II plead guilty to crimes he was never even accused of. If the guilty plea of Omar Khadr this morning was a face-saving effort by the U.S. government, it was a sad day for the rule of law in the United States.

Omar Khadr is the 24-year-old Canadian who’s spent a third of his life in U.S. custody without trial after being accused of helping his father’s al Qaeda associates build improvised explosive devices when he was just 15. He was taken to Afghanistan from Canada by his father at the age of nine. The lone survivor of a 2002 U.S. assault on an Afghan compound, Khadr was accused of throwing a grenade that killed a U.S. soldier.
But as he entered his guilty plea this morning — after the government agreed he’d serve just one more year at Guantanamo Bay, and an as-yet-unspecified number of years in Canada — it was clear that prosecutors had taken the opportunity to throw the kitchen-sink-full of charges at him – including far more crimes than he’d even been charged with. Most importantly, Khadr pled guilty to the murder of two Afghan soldiers who accompanied U.S. forces in the 2002 assault on the compound. The government has never presented any evidence whatsoever that Khadr was responsible for that.

All of this is happening because a military judge ruled that confessions obtained under the threat of torture were admissible in these allegedly fair military tribunals.

But all of this is hardly a vindication of the U.S. military commission system. After the plea was entered this morning, chief prosecutor Captain John Murphy told reporters that Khadr “stands convicted of being a murderer and also being an Al Qaeda terrorist” based on “his own words.”

To be sure, Judge Parrish took pains today to ask Khadr if he was entering his guilty plea knowingly, and fully understanding the consequences. Khadr nodded and quietly answered “yes.” But in truth, he had little choice. If Khadr had gone to trial, he faced a potential life sentence from a military jury, who would hear how he “confessed” to the crimes in interrogation. He could have faced many more years in prison. What’s more, the U.S. maintains the right to indefinitely detain him even if he was found not guilty. Ironically, all but one of the other four detainees found guilty in military commissions have gone home, while dozens of remaining Guantanamo detainees who have never been charged with a crime continue to languish.

For Khadr, then, today’s guilty plea was probably the right choice. His Canadian lawyers are likely to challenge his sentence as unlawful as soon as he’s transferred to Canada. (The “diplomatic notes” reached between the U.S. and Canadian governments that will likely allow his transfer after a year in U.S. custody are still secret but will be released with the plea agreement after the commission members recommend their sentence.)

For the U.S. government, the guilty plea was a way to save face. After all, the Obama administration knew that it was a political embarrassment for its first military commission trial to be of a child soldier – a contradiction of its obligations under international law to rehabilitate child soldiers rather than punish them. The administration also knew that the charges against Khadr were all legally dubious – invalid under international law and a violation of the ex post facto clause of the U.S. Constitution. Khadr’s guilty plea allows them to rack up another “win” for the military commissions, pushing the total to a whopping five convictions in the last eight years. By contrast, U.S. civilian federal courts have convicted more than 400 terrorists in that same time period. This doesn’t exactly tip the balance.

Still, no matter how you look at it, this plea makes a troubling statement about the United States’ respect for the rule of law. Although as part of his plea agreement Omar Khadr has waived his right to appeal his conviction or to sue the United States for his confinement or treatment, a dark cloud continues to shadow this case. That cloud will continue to conceal the truth about Omar Khadr’s treatment at the hands of his U.S. interrogators; and it will ensure that the validity of his conviction, and the integrity of the military commissions themselves, remain in doubt.

Obama may have banned torture, but he obviously has no problem using evidence obtained under torture to convict even a 15 year old. I am appalled. I am ashamed of my government. You should be too.