Getting it Wrong in Guantanamo

The government's case was based largely on Omar Khadr's own self-incriminating statements, even though he made them after being tortured.

By Lisa Hajjar

I was at Guantánamo Bay prison on Halloween. In a ghoulishly fitting coincidence, that was the same day a former child solider was convicted for war crimes for the first time since the end of World War II. Eight years and one day after Omar Khadr arrived at Guantánamo, his military commission case concluded with a plea-bargained sentence of eight more years.

Khadr, a Canadian citizen, was 15 on July 27, 2002, when U.S. forces captured him in an Afghan village following a firefight. His father had sent him to Afghanistan the previous month to translate for an al-Qaeda operative.

Blinded in one eye and shot twice in the chest, the critically wounded teen was airlifted to the American prison in Bagram, where his interrogations began as soon as he regained consciousness. A month after he turned 16, he was shipped to Guantánamo where he, like all detainees, was held for years incommunicado, and continuously interrogated.

Of the 779 people ever imprisoned at Gitmo, only Khadr was charged with a hot war offense. He was accused of throwing a grenade during the firefight that fatally wounded Special Forces Sgt. Christopher Speer. As of today, 1,309 US soldiers have been killed in Afghanistan and 4,427 have been killed in Iraq. Only Khadr has been convicted of killing a soldier in battle--which was never a war crime until the U.S. government reinterpreted the laws of war to prosecute him in the military commissions.

The government's case was based largely on Khadr's own self-incriminating statements. How were those statements elicited? At Bagram, he was beaten, threatened with rape and snarling dogs, hung by his wrists, and hooded and soaked with water until he began to suffocate. His captors would shine bright lights into his shrapnel-damaged eyes. At Guantánamo, Khadr was again threatened with rape and dogs, had his hair pulled out, was subjected to protracted isolation and sleep deprivation under the "frequent flyer program," and was doused with a pine-scented cleaner and used as a "human mop" on the floor where he urinated after being denied access to a toilet.

His lawyers tried to suppress his statements on the grounds that they were the product of torture and abuse and, therefore, were unreliable and legally inadmissible. But on August 9, the presiding military judge, Col. Patrick Parrish, ruled that he found "no credible evidence" that Khadr had been abused or that his treatment constituted violations of (post-9/11) U.S. law. Therefore, all statements would be admissible. The prosecutors were delighted.

Khadr's trial began on August 12. His military lawyer, Lt. Col. Jon Jackson, planned to re-litigate the abuse issue before the seven-member military jury. But the trial was abruptly suspended on that first day when Jackson collapsed from pain relating to a medical condition.

That interruption gave both sides time to pursue a plea bargain. For the government, a deal would guarantee a conviction. The defense decided that pleading guilty was a safer bet for getting Khadr out of Guantánamo than relying on the jury's benevolence.

This was a wise move: When the jury was brought back in October for the sentencing hearing, the prosecutors used his guilty plea to repeatedly characterize him as "a murderer and al-Qaeda terrorist." After two days of deliberation, the jury mercilessly sentenced him to another 40 years. According to the military court rules, however, the applicable sentence is the lesser of the two.

Khadr will serve one more year at Gitmo. Then, according to Canadian diplomatic assurances, he can request repatriation. Once he's back in Canada, his youth and mistreatment will open the door for an early release.

The defense and the prosecution both touted that macabre Halloween outcome, albeit for different reasons. But the Khadr case is a big loss for the principles of justice and the rule of law.