Canadian citizen Omar Khadr is an alleged child soldier detained by U.S. forces in Afghanistan in July 2002 and transferred to the Guantánamo Naval Base in October 2002 at age 15. He was 15 years old at the time, and has spent more than a quarter of his life at Guantánamo.
Khadr alleges he was repeatedly subjected to torture and cruel treatment during multiple interrogation sessions in U.S. military custody at Bagram Air Field in Afghanistan and at Guantánamo Bay.
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Khadr is accused of killing a U.S. soldier by throwing a hand grenade during combat with U.S. forces, planting mines to target U.S. convoys, and gathering surveillance at an airport in Afghanistan. He is the sole detainee still at Guantánamo Bay being charged for acts committed as a juvenile, since charges were dropped against Mohammed Jawad who was subsequently repatriated to Afghanistan in 2009.
The International Covenant on Civil and Political Rights and international juvenile justice standards require prompt determination of juvenile cases and discourage detainment of juveniles at all except as a last resort. Such standards have not been heeded by the U.S. government in the case of Khadr. Khadr was held for two years prior to being given access to an attorney, waited more than three years prior to being charged before the first military commission, and is now in his eighth year in U.S. custody. During Khadr’s time in detainment, he has been held both in solitary confinement as well as with adult detainees, contrary to international standards requiring that children be treated in accordance with their age and segregated from adult detainees. Khadr also claims he was subjected to abusive interrogation practices in violation of U.S. humane treatment standards, including Common Article 3 of the Geneva Conventions, and other binding prohibitions against torture and cruel, inhuman, and degrading treatment
In 2002, the U.S. ratified the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, which prohibits the use of children under 18 in armed conflict and requires signatories to criminalize such conduct and rehabilitate former child soldiers as well as provide “all appropriate assistance for their physical and psychological recovery and their social reintegration.” The U.S. has failed to heed these legal obligations in the case of Khadr.
Khadr was designated an “enemy combatant” and an al Qaeda fighter at a Combatant Status Review Tribunal (“CSRT”) in September 2004. On April 24, 2007, the Convening Authority referred charges against Khadr for murder, attempted murder, conspiracy, providing material support for terrorism, and spying on U.S. forces in Afghanistan. But in June 2007, military commission Judge U.S. Army Colonel Peter Brownback dismissed the charges as improper because Khadr had not been designated an “unlawful enemy combatant” by the CSRT. The CSRT had found that Khadr was an “enemy combatant,” but it had not determined whether he was a “lawful” or “unlawful” combatant.
The U.S. government appealed Colonel Brownback’s decision to the Court of Military Commission Review (“CMCR”)—a special military appeals court which was created pursuant to the 2006 Military Commissions Act. In September 2007, in its first decision ever, the CMCR held that commission judges were themselves authorized to make “unlawful enemy combatant” determinations. Following the CMCR’s decision, the military commission charges against Khadr were reinstated.
In October 2007, Khadr appealed the CMCR decision to the D.C. Circuit Court of Appeals. The government moved to dismiss Khadr’s appeal, contending that the D.C. Circuit has no jurisdiction to hear the case until the military commission trial is completed. At the same time, Khadr asked the D.C. Circuit to delay the military commission proceedings against him until ruling on his appeal. The court rejected Khadr’s request on November 6, 2007.
Khadr was arraigned before Colonel Brownback on November 8, 2007. The question of whether Khadr is an “unlawful enemy combatant” subject to the jurisdiction of the military commissions was temporarily set aside.
In July 2008, defense attorneys for Khadr filed a motion for appropriate relief stating that the Military Commissions Act of 2006 (“MCA”) violated the ex post facto clause of the Military Rules of Evidence. “More than four years after the alleged conduct the government changed the rules of evidence to allow the accused’s uncorroborated and involuntary statements to be admitted into evidence,” they stated. “Significantly, the changes always benefit only the government and always make it easier for the government to obtain a conviction – two critical factors relied on by the Supreme Court in finding an ex post facto violation.”
In January 2008, Khadr’s lawyers moved to dismiss the charges against him on several grounds, including: (1) lack of subject matter jurisdiction; (2) violation of the bill of attainder clause of the U.S. Constitution; and (3) lack of jurisdiction to try child soldiers under the MCA. The defense argued that Khadr must be tried based upon the law in 2002, when the alleged offenses occurred, and that none of the charges fall within the category of offenses historically tried by military commission. The government opposed the motions. Following a hearing on February 4, 2008, in a written ruling on February 20, 2008, Colonel Brownback denied the defense motion to dismiss for violation of the bill of attainder clause. On May 2, 2008, he denied the motion to dismiss for lack of jurisdiction to try child soldiers.
Discovery hearings were held in Khadr’s case on March 13 and April 7, 2008. The defense had filed more than 50 discovery motions, including requests for the names of all eyewitnesses to the alleged crime, any physical evidence seized from the scene of the crime, all of Khadr’s statements made during interrogation, the names of interrogators and notes they took, audio and video recordings of the interrogations, and other documents relating to interrogation methods used on Khadr and the abuse and mistreatment of national security detainees.
In another discovery hearing on May 8, 2008, Judge Brownback ordered the government to produce DIMS (Detainee Information Management System) records, which document Khadr’s day-to-day treatment at Guantánamo. On May 29, 2008, Chief Judge Marine Col. Ralph Kohlmann unexpectedly dismissed Judge Brownback from Khadr’s case, replacing him with Army Col. Patrick Parrish. Although some suspected that Judge Brownback was dismissed because of his repeated rulings against the government, Judge Kohlmann said his decision was “based on a number of manpower management considerations” unrelated to the tribunals.
In early June 2008, Khadr’s lawyers issued a press release announcing that they had reviewed a “standard operating procedure” document, produced by the government during discovery, which encouraged interrogators to destroy handwritten notes containing interrogation information. The defense argued that the document suggests that the Department of Defense destroyed evidence, as a matter of policy, to thwart its use in pending or anticipated legal proceedings.
At a pretrial hearing in June 2008, Khadr’s attorneys moved for additional discovery. Khadr’s trial was set for October 8, 2008.
In July 2008, Khadr’s lawyers released a ten-minute video showing an interrogation of Khadr by Canadian intelligence officials in Guantánamo in 2003. The video shows a distraught teen crying and pleading for his release.
Pretrial hearings continued on August 13, 2008, and Lt. Cmdr. William Kuebler, Khadr’s Pentagon-appointed lawyer, argued that his client should be given an independent psychological examination. Kuebler also argued that the prosecution had allowed other government agencies to unlawfully influence the amount of information shared with the defense.
On September 4, 2008, Judge Parrish banned Air Force Brig. Gen. Thomas Hartmann from acting as the Pentagon legal advisor in Khadr’s case, citing concerns that Hartmann favored the prosecution. Kuebler said the ruling provided “token relief,” recognizing that Hartmann had already refused to fund a child psychologist that may have bolstered the defense’s case.
At a pretrial hearing on September 10, 2008, Khadr’s attorneys asked Judge Parrish to grant defense attorneys access to eyewitness descriptions of the firefight during which Khadr allegedly threw a grenade that killed a U.S. soldier. They also requested that Khadr be given a mental health examination. On September 11, Judge Parrish decided to delay Khadr’s trial due to the prosecution’s delays in turning over evidence to Khadr’s defense attorneys. On September 16, 2008, Khadr’s trial was rescheduled for November 10, 2008.
Additional pretrial hearings began on October 22, 2008. Navy Lt.-Cmdr. Bill Kuebler requested an indefinite delay of Khadr’s trial, arguing that political interference had led the government to suppress evidence. Kuebler also stated that the defense was given an incomplete account of Khadr’s medical records and that Khadr should be given sufficient time to develop a relationship with an independent psychologist.
On October 24, 2008, Judge Parrish agreed to delay the trial yet again due to concerns raised by Khadr’s defense regarding the government hindering Khadr’s ability to receive an independent psychiatric evaluation, and failing to provide his psychiatric records to defense counsel. Pretrial hearings were scheduled to begin on January 19, 2009, with the trial set to start on January 26, 2009.
On January 12, 2009, Human Rights First, along with four other prominent human rights groups, sent a letter to then President-elect Barack Obama, urging Obama to drop the military commission charges against Khadr and either repatriate him to Canada or prosecute him in U.S. federal courts.
Following a 120-day continuance at the request of the Obama Administration, pretrial hearings resumed on June 1, 2009. Khadr complained about infighting amongst his Pentagon-appointed lawyers and asked to fire them, but at the same time he also rejected exercising his right to proceed pro se. Judge Parrish refused to allow Khadr’s case to proceed without any counsel and Khadr chose to retain only Navy Lt.-Cmdr. Kuebler as his attorney.
Pretrial hearings resumed on July 15, 2009 to resolve remaining representation issues and to consider the government’s motion for an additional 120-day continuance. Khadr stated, “I have no trust [in the military lawyers],” and asserted that he did not want to continue to have Lt. Cmdr. Kuebler, or any uniformed attorney, play a lead role in his defense. The judge agreed to remove Kuebler pending security clearance for a civilian attorney that Khadr approved.
A motion for continuance was scheduled for Khadr on October 7, 2009. At what amounted to about a thirty-minute hearing according to a Human Rights First observer, Kuebler was officially dismissed from the case. Civilian attorneys Barry Coburn and Kobie Flowers of Coburn and Coffman, PLLC were assigned to his case.
On November 13, 2009, Attorney General Holder and Defense Secretary Robert M. Gates announced that Khadr would be tried by a military commission.
HRF observers monitored a military commission hearing in the Khadr case from April 27 – May 7, during which Army Major Jon S. Jackson joined Khadr’s civilian attorneys on his defense team. Most of the hearing was dedicated to a defense motion to suppress Khadr’s statements, which the defense claims were elicited by abuse and torture. So far, the government has presented witnesses who interrogated Khadr during his time in U.S. custody. These interrogators each insisted that they treated Khadr very well. Several interrogators did acknowledge, however, that Khadr was threatened and treated abusively shortly after he survived the firefight and was severely wounded. Abuses included being chained to his cell door weeping, and being threatened with rape during interrogation.
The interrogators’ testimony also elucidated details regarding the extreme physical wounds the fifteen year-old solider received during fighting with U.S. troops in Afghanistan, including the shrapnel that has left him blind in one eye and a hole he received the size of a Copenhagen chewing tobacco tin, among others.
At the prosecution’s request, the judge in May ordered that Khadr undergo a psychiatric examination by an expert chosen by the prosecution. The pre-trial hearing was scheduled to resume on July 12, after that examination was completed. In addition to the results of the government expert’s examination, Khadr’s attorneys were expected to present their own psychiatric experts who had examined Khadr, and additional interrogators who would address Khadr’s treatment in custody.
However, in early July 2010 Omar Khadr gave notice that he wished to fire his American legal team (including civilian lawyers Barry Coburn and Kobie Flowers and military counsel Lt. Col. Jon Jackson). Military Judge Patrick Parrish ordered Khadr to appear on July 12, 2010 to deal with representation issues. At that hearing Khadr told the Judge he wished to boycott proceedings, and he read from his own handwritten statement, in which he referred to the military commissions as a “sham,” “unfair,” and “unjust.” Judge Parrish refused to let Khadr proceed without representation if he did not intend to mount his own defense, and retained Lt. Col. Jon Jackson as his detailed counsel. Jackson told the commission that he would need to consult his licensing authorities to determine how to proceed in representing a client that did not want his services.
Following the hearing it was reported that Jackson received guidance from his licensing authorities that ethically required him to continue to represent Khadr. Jackson noted that he plans to defend Khadr zealously at trial. Khadr’s Canadian lawyer stated that Khadr is now willing to have a U.S. military lawyer act on his behalf and his trial was set to resume on August 9.
On August 2, 2010, one week before his military commission trial was to resume, Khadr’s military lawyer filed an emergency petition with the U.S. Supreme Court, requesting that it consider whether it is fair for Khadr’s trial to take place in a military commission court. “Separate is always unequal,” he said. U.S. citizens accused on terrorism-related charges “get all the protections of federal court,” while Khadr, a Canadian citizen, is subject to “second-class justice” at Guantánamo Bay. The Supreme Court took no action.
In pretrial hearings on August 9, Judge Parrish ruled that all of Khadr’s statements and confessions would be allowed, even though interrogators testified Khadr was subjected to abuse and threats at Bagram. In the decision that was later released on August 21, 2010, Parrish concludes that “under the totality of the circumstances, the statements offered against the accused are reliable, possess sufficient probative value, were made voluntarily, are not the product of torture or mistreatment, and whose admission is in the interest of justice.”
Khadr, who insists that these confessions were made under enhanced interrogation has maintained his innocence and pled “not guilty” to all of the charges put to him.
On August 10, after a day of the lead government prosecutor and Khadr’s military defense lawyer asking a pool of 15 unnamed military jurors a broad range of questions, from whether people close to them have been victims of enemy explosive attacks, to whether they had opinions about the Guantánamo Bay prison camp or know any Muslims or Arabs, Khadr’s jury was selected.
The government’s witnesses began testimony on August 12 and the questioning was centered on determining the details of what exactly took place in the firefight near Khost, Afghanistan on July 27, 2002, during which Khadr is accused of having thrown a grenade that led to the death of a U.S. soldier.
That afternoon, while questioning a government witness, Lt. Col. Jon Jackson, Khadr’s lone attorney, collapsed. The court recessed for the day while awaiting word on Jackson’s status. It was announced the next day that the trial would be suspended for 30 days to allow Lt. Col. Jackson to recuperate.
On August 31, it was announced that Khadr’s trial would resume at Guantánamo on October 18, 2010, however it was reported on October 15th that settlement discussions are ongoing, and the trial was postponed until October 25.
Omar Khadr accepted the terms of a plea agreement presented by the government on October 25th and pled guilty to murder, conspiracy, and spying. During a weeklong sentencing hearing, in accordance with the terms of the plea deal, the government presented ten witnesses attesting to the depravity and future dangerousness of Omar Khadr. The government’s star witnesses were Tabitha Speers, the widow of the U.S. soldier Khadr confessed to killing, and a forensic psychiatrist, Dr. Michael Welner.
The defense was allowed to present only four witnesses to counter that story. Significantly, the details of the plea prevented Khadr’s lawyers from putting anyone on the stand who actually knew Omar Khadr and believed he was not guilty, or at least didn’t have a real choice about whether or not to assist al Qaeda and his father as an adolescent. A witness contradicting the plea would have called the entire deal into question.
After deliberating for more than nine hours, the jury announced late Sunday afternoon that Omar Khadr should serve 40 years more than the 8 he has already served at Guantánamo since his capture.
The terms of his plea deal, however, stated that he would serve either 8 additional years (one in Guantánamo and seven in Canada) or the term handed down by the jury. The members were not told about the 8-year term previously included in the plea bargain. Khadr will therefore serve his 8 year sentence at Guantánamo and in Canada.