military commissions

The United States strongly condemns the use of children as well to pursue violent agendas. We call upon all parties to immediately release all children within their ranks, to halt child recruitment, and to provide for the proper reintegration into civilian life of former child soldiers. —Susan E. Rice, U.S. Permanent Representative to the United Nations, September 16, 2010, at a Security Council debate on Somalia

UPDATED BELOW

Which is the most appallingly evil thing about the sad, ridiculous incarceration and trial(s) of Omar Khadr?

That a CHILD of 15, shot twice in the back, and blinded in one eye, is accused of WAR CRIMES for fighting back against an invading army that bombed and rocketed his compound before sending in the Special Forces, chucking grenades and … well, shooting children in the back?

That much of what we know about the firefight comes from the heavily redacted report by one OC-1, the “government employee” who shot Khadr in the back, twice?  And that that report only fell into reporters’ hands by accident, because the prosecution team accidentally left it where journalists could see it? And that there was a standoff worthy of the Keystone Kops where the authorities insisted the report be returned, with the reporters (naturally) refusing?

That OC-1’s testimony makes it clear that no one knew who threw the grenade that killed Sgt. Speer? It might have been his own comrades.

That Khadr was clearly tortured, and that whatever he confessed to must be seen in that light, and dismissed?

That half a dozen military PROSECUTORS have been disgusted enough to quit? “This is neither military, nor justice,” said one.

Another prosecutor’s case is reminiscent of Soviet psychiatric examinations for dissenters:

Lt. Col. Darrel Vandeveld, formerly lead prosecutor in another commissions case against a child soldier—a case that collapsed midway through, with the government dropping all charges. “It would be foolish to expect anything to come out of Guantánamo except decades of failure. There will be no justice there, and Obama has proved to be an almost unmitigated disaster,” he told me. After resigning from the commissions as a matter of ethical principle, Vandeveld was punished with a mandatory psychiatric evaluation and gratuitous hearings into his fitness for remaining in the Army, even though he now has only two months remaining in his term of service. Vandeveld, who has deployed to Iraq, Afghanistan, and Bosnia, doubts very much that any more prosecutors will resign after his highly visible reprimand.

That Obama, who vowed to “close Guantanamo, reject the Military Commissions Act and adhere to the Geneva Conventions,” has not gotten around to any of those things yet. What DID he do? He

abruptly barred four of the most knowledgeable reporters from returning to Gitmo, accusing them of violating an order that the identity of Omar Khadr’s primary interrogator be kept secret. It doesn’t matter that “Interrogator Number One,” convicted in a 2005 court martial for prisoner abuse at Bagram prison, had already been interviewed by one of these journalists two years ago and that his identity is available in the public record.

That the prosecution has engaged a shady charlatan who promotes himself as an “expert in evil” as a kind of last half-hearted effort to demonize Khadr?

That Khadr’s options are still ridiculous, to face the farcical military commissions trial, or agree to a plea-bargain that will see him behind bars for eight more years?

As has been argued forcefully elsewhere, the war criminal is not Omar Khadr.

Even if Khadr did everything alleged, none of the five charges as actually lodged describes a criminal violation of the law of armed conflict (LOAC). Two of the charges, conspiracy and providing material support to terrorism, are inherently problematic. The remaining offenses, murder and attempted murder “in violation of the law of war,” and spying, are capable of valid application, but lack legitimacy in Khadr’s factual situation. Essentially the government seeks to distort the fundamental legal equality between opposing belligerents into a unilateral shield for coalition personnel, turning the conflict into a “hunting season” in which U.S. forces can shoot their enemy on sight but their adversaries commit a war crime by fighting back. Because the tribunals’ statutory bases, the Military Commission Acts of 2006 and 2009, were enacted after Khadr was in custody, any charges lacking sound grounding in the LOAC constitute impermissible ex post facto enactments.

It’s Sunday night. The trial is scheduled to resume tomorrow morning and Khadr’s legal team might agree to a plea bargain any minute. Which would be a tragedy. Of course, his going forward with the trial might be even more tragic.

The laws and treaties that bind the United States are clear. Omar Khadr should not have served a single day in any prison. He was 15, a child, when captured. In a just world, he should be paid massive restitution from both the United States and Canadian governments. I know. Fat chance of that.

UPDATE: Omar Khadr has plead guilty to all charges against him.