Second-Class Justice For Omar Khadr?

by Sandi Behrns

An emergency petition was filed with the United States Supreme Court on Monday in the curious case of Canadian citizen Omar Khadr. Attorney and Army Lt. Col. Jon Jackson is attempting to halt a trial by a military commission, slated to begin August 10.  Khadr was originally detained in 2002 at the age of 15, an age when international conventions would require he be treated as a child soldier in need of rehabilitation and not as a criminal. In fact, the last prosecution of a child soldier was in the 1940s, following World War II. However, 7 years after being shot and taken into custody on an Afghan battlefield, he is the only Western citizen remaining in detention at Guantanamo Bay.

Khadr, unlike many detainees, is charged with five military commission offenses, including “murder in violation of the laws of war,” for the death of Delta Force soldier Christopher Speer. He allegedly threw a hand grenade during a firefight in Afghanistan that fatally wounded Speer. Speer’s widow has specifically called for Khadr to be prosecuted. So how did Omar Khadr, a native of Toronto, come to be in Afghanistan in the first place?

Khadr’s family has also been a major factor in his case. His father, Egyptian-born Canadian Ahmed Said Khadr, was a reputed financier for Al Qaeda and was associated with Osama bin Laden and his second-in-command, Ayman al Zawahiri. He allegedly “loaned” Omar, his second youngest son, as a translator to associates within the Libyan Islamic Fighting Group in the summer of 2002. The Pentagon claims Omar trained with the group for a month before his capture. Pakistani forces killed Omar’s father in October 2003.

Prosecutors claim this evidence supports terrorism charges.

But to try Omar Khadr, the Pentagon will have to overcome issues of the Canadian’s age at the time of the alleged crimes – a concern that Radhika Coomaraswamy, the United Nations’ Special Representative for Children and Armed Conflict, has reportedly stressed during recent meetings on Khadr’s case with White House officials.

While juveniles are often charged in criminal proceedings, Khadr was captured during an armed conflict, and international law stipulates that minors should be rehabilitated rather than prosecuted.

Clearly, the Obama administration should have some discomfort with this prosecution, and in fact they have made attempts to scuttle the murder charge through changes to the tribunal rules. However, those changes failed to materialize because of infighting between the administration and the Pentagon. The White House has also quietly tried to find a way to repatriate Khadr to Canada, as has been done with so many other detainees.

The difference here? Canadian Prime Minister Stephen Harper refuses to make the necessary overture to request Khadr’s return. Strictly speaking, it is not necessary, but in today’s DC climate, it is needed for purposes of “political cover.” Why would Harper’s government be content to watch as a Canadian citizen receives second-class justice? Probably becauase polls show that nearly 50% of Canadians are content to see that happen.

Still, the emergency petition filed Monday is not about Omar Khadr’s age, nor is it about the many allegations of mistreatment and torture he has suffered.

His attorney, army Lt.-Col. Jon Jackson, said he filed the petition with the top court because a U.S. federal appeals court in Washington had not acted on a request he filed four months ago.

Jackson argues that the offshore system for prosecuting war-crimes suspects is unconstitutional. Among other concerns, he said it is unfair because it is reserved only for non-U.S. citizens.

“The military commissions provide young Omar, a Canadian citizen, only second-class justice. This kind of discrimination is something we cannot stand for as a country,” Jackson said. [CBC News]

If past rulings on these issues are any indication, the Court may be inclined to agree. A larger question, though, remains. Why did the United States government, upon learning of Khadr’s age, not immediately repatriate him to his home country for rehabilitation, as stipulated by international law? Perhaps the answer lies less with terrorism, and more with the way the United States deals with juvenile offenders in general.

As of 2007, according to studies by Human Rights Watch and Amnesty International, the US was imprisoning “2,270 people with life sentences without the chance for parole for crimes they committed when they were minors; while in all other nations on Earth, there were a combined total of only 12 such prisoners.” It’s easy to see, then, why a foreign national accused of terrorism in the wake of the 9/11 attacks finds so little sympathy with the American public.

What hope does Omar Khadr now have that he will ever see release? A letter from Khadr himself indicates that he has personally lost hope. His best chance may just be the justice system itself. Even if the Court allows the trial to go forward, there is evidence, or rather, a lack of evidence, that may ultimately exonerate Omar Khadr from the harshest charges. Here’s hoping that evidence gets a fair hearing.

By: Sandi Behrns

Sandi Behrns is a noted policy nerd, new media & web developer, and consultant to progressive organizations and campaigns. She is a senior contributor to Liberaland, and the Executive Editor of Progressive Congress News.