By Scott Forsyth
The Daily Record Newswire
Today was to mark the beginning of the trial of Omar Khadr, a Canadian citizen, before a military commission in Guantanamo Bay, a proceeding now is being postponed until September.
The trial symbolizes many of the inconsistencies in President Obama’s detainee policy. During the presidential campaign, Obama pledged to close the detention facility at Guantanamo Bay, denouncing it as “a sad chapter in American history.”
He signed an executive order early last year to shut the facility by January 2010, necessary “to restore the standards of due process and the core constitutional values that have made this country great.”
Yet here we are, Aug. 19, 2010, and the facility continues to operate. Worse, the first trial by military commission during Obama’s administration is one month away.
Obama also promised during the campaign that his administration would not use coerced evidence against a detainee during a trial.
Nine days ago, Khadr’s attorney moved to exclude self-incriminating statements made to interrogators because of torture and other abuse. The presiding judge denied the motion without explanation. He promised a written decision later. It will be tough for him to spin the known facts to fulfill Obama’s promise.
The government alleges that in 2001 Khadr killed an American medic in Afghanistan by throwing a grenade at him. Khadr denies the allegation. He was seriously wounded during the firefight, captured and transported to the Bagram air base. He was 15 at the time.
Khadr claims that, while at Bagram, his jailers denied him pain medication for his injuries, hooded him, menaced him with barking dogs, used him as a “human mop” after he urinated on himself, threatened him with rape and deprived him of sleep.
An army medic at Bagram backed up Khadr’s allegations. In an affidavit, the medic swore he found Khadr hooded in a 5-by-5 foot cage, arms chained to an overhead grate.
The government does not have any eyewitnesses to the alleged killing or forensic evidence, according to Khadr’s attorney. All that it has are Khadr’s suspect confessions.
Other countries have sought and obtained the release of their citizens detained at Guantanamo Bay. Not so the government of Canada, which has resisted all efforts to bring Khadr home for trial. Instead, it has sent agents to assist the U.S. military in Khadr’s interrogation.
The assistance, with knowledge of his harsh treatment, prompted Canada’s highest court to rule in 2009 that the Canadian government had violated Khadr’s rights under the Canadian Charter of Rights and Freedoms. The court declined to order the government to seek his return, however.
Aside from the question of proof and venue, Khadr’s detention and trial raise fundamental questions about our treatment of child soldiers. Should we prosecute a child for a war crime, punishable by life imprisonment — what Khadr faces — or death at all?
Anthony Lake, a former U.S. national security advisor, now executive director of UNICEF, believes not. He calls child soldiers “victims, acting under coercion.” The true war criminals are the “adult recruiters.”
If a child is to be tried as an adult, our standards of justice, which reflect international standards, require special protections be provided to the child. In Khadr’s case, those protections included regular access to counsel, housing separate from adult detainees — to minimize the risk of radicalization — and moderate questioning. He did not receive those protections.
Khadr is now 23. He has spent eight years behind bars — a third of his life — awaiting trial.
The trial will last a month. Follow it closely. Will the trial — its process and outcome — make up for our dismal treatment of Khadr to date and help to restore faith in our system of justice? Or will it represent just another page in the “sad chapter” called Guantanamo Bay?
Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
