Omar Khadr’s Crime?

Omar A. Khadr, a Canadian citizen, was 15 years old at the time of his capture and arrest, after a firefight in Afghanistan, in 2002. He is accused of throwing a grenade that killed Army Sergeant Christopher Speer even though Khadr, at the time, was blinded in his left eye and shot twice in the back. It is not clear that he actually did this, yet he has spent eight years in the Guantanamo Bay prison without trial. His father, an Al Qaeda associate who is now dead, brought him to the battlefield. He is now 24, without hope of justice. Many in Canada regard him as a child solider, with the Canadian government refusing to request the repatriation of Khadr.

The question that remains is why is the Obama administration putting a child soldier on trial? Perhaps it is because the Canadian government has shown little to no interest in getting Khadr back. His father after all, was a part of Osama bin Laden’s inner circle of confidants when Khadr was 10. The idea that we are comfortable with punishing the son for the sins of the father is alarming.

Khadr is the youngest of the 176 detainees and is the only Westerner currently being held at the facility. All other nations have successfully repatriated their detainees. The United Nations and Amnesty International have expressed grave concern over Khadr’s case and the trial

The Supreme Court of Canada unanimously declared that Khadr’s human rights had been violated but opted not to suggest a remedy such as bringing Khadr back to Canada. Canadian intelligence officials also interrogated Khadr without legal counsel after systemic sleep deprivation.

Since his trial began, the proceedings have already had their share of complexities. In July, having lost faith in the legal process, Khadr fired his legal team and boycotted his own trial. He then turned down a plea bargain of 30 years in lieu of life. And on 2010 Aug. 12, his lawyer, who had gotten a gall bladder surgery six weeks before the trial, collapsed near the end of the first day of proceedings. As such, the trial has been postponed until Oct. 18.

Khadr has been in American custody for nine years. He says that when he did not say what the guards wanted to hear, he was tortured and threatened with gang rape by “four big black guys.” Furthermore, Khadr’s chief interrogator testified to doing this in order to scare Khadr into confessing. All the while he was merely 15 years old with severe wounds. He suffered from bullet holes in his chest and his eyes were full of shrapnel. Yet despite this, the judge at his tribunal said that the statements he made in those circumstances are “perfectly admissible.” It appears the case is based largely on confessions he made under duress.

Interestingly, Khadr’s case—“a proceeding condemned by legal and humanitarian groups around the world”—will be the first full military commission under Barack Obama, even though he had promised to shut down Guantanamo within his first year of office.

Daphne Eviatar, a decorated human-rights lawyer, goes so far as to argue that the acts committed by the U.S. government are war crimes themselves. David Glazier, a professor of law, says that the crimes Khadr is charged with fall under the new Military Commission Acts, which in themselves and with the USA PATRIOT Act, are an affront to the U.S. Constitution. Furthermore, the U.S. federal government then went forth to unilaterally change international law, allowing them to redefine conspiracy and aiding in a crime. Because the laws were not actually in place when Khadr supposedly committed the crimes, such a trial is also a violation of the prohibition on ex post facto laws.

Such a mockery of America’s justice system bodes poorly for the Obama administration, which relished a clean slate. The majority of cases that ever see a civilian criminal court have been dismissed, showing the complete lack of any real evidence.

Even more disturbing is the fact that the charges Khadr is facing are not actually war crimes under the Geneva Conventions. For the sake of argument, let us just assume Khadr is guilty of the charges brought against him. Even if this were true, since when has killing the enemy on the battlefront become a war crime?

Semra E. Sevi, a staff writer at The Varsity, is a political science concentrator at the University of Toronto.