The Obama administration is facing the first big road test of its new military commission system when the Pentagon early next week convenes the long-delayed trial of Omar Khadr, a Canadian citizen accused of lobbing a hand grenade that killed a U.S. soldier in a firefight in Afghanistan eight years ago.
Khadr, now 23, was 15 years old at the time of his 2002 capture. He is scheduled to go to trial Tuesday at the U.S. military base at Guantanamo Bay in Cuba on charges that include conspiring to commit terrorism and murdering a U.S. soldier. (The U.S. Supreme Court on Friday refused to halt the trial.)
A successful conviction in a trial that is perceived internationally as fair may be key to administration plans to try 30 to 40 detainees under new military commission rules that were approved by Congress last year and signed by President Barack Obama.
It also could bolster the arguments of those inside the administration who want Khalid Sheikh Mohammed and other Sept. 11 co-conspirators to be tried before military commissions, rather than a civilian court, as Attorney General Eric Holder originally proposed.
But the case is fraught with ironies and has caused more than a few headaches for senior administration officials. The trial will take place at “Camp Justice,” the high-tech courtroom at the U.S. detention facility in Guantanamo — the very same base that Obama once pledged to close but which remains very much open for business with no prospect it will be shuttered anytime soon.
The case also involves a defendant who at the time of the alleged offense was only 15. That has caused Khadr to be dubbed “the child soldier” and made his case a cause celebre for international human rights groups, who have condemned the entire idea of prosecuting a minor for war crimes.
“It’s beyond me why they insist on going forward with this,” said Jameel Jaffer, the director of national security project for the American Civil Liberties Union. “I can’t imagine anybody in the Obama administration sees this as a proud moment.”
But Pentagon officials say Khadr is hardly the sympathetic defendant that human rights groups have portrayed. They say he is a member of a notorious family of Canadian jihadis whose father was a trusted financier for Osama bin Laden. After Khadr was captured in eastern Afghanistan, the sole remaining survivor of an enemy force at an al-Qaida compound, U.S. soldiers discovered a video that prosecutors are eager to show at trial: It shows the defendant along with other al-Qaida operatives “constructing and planting improvised explosive devices while wearing civilian attire,” states a motion filed by the prosecutors.
In the video, Khadr — who has proclaimed his innocence — can be seen “yucking it up” while making the bombs, said one source familiar with its contents.
Even still, administration officials are painfully aware of the awkward “optics” of putting a “child solder” in the dock as its first showcase trial for the new military commissions. Sources say administration officials had sought eagerly to avert the trial in recent months, attempting to arrange a plea bargain that would have allowed Khadr to be repatriated to his native Canada to serve out much of a reduced 30-year sentence.
But Khadr himself sabotaged the deal, firing his civilian lawyers who negotiated it and proclaiming his intention to boycott his trial. “I will not take any plea offer because it will give excuse to the government for torturing and abusing me when I was a child,” Khadr said during a pre-trial hearing.
The defendant (now facing a life sentence if convicted) has since agreed to be represented by his military lawyer, Jon Jackson, who has vowed to “zealously” defend his client at trial. And as Khadr’s statement indicates, that means presenting evidence that his client was abused and “tortured” by U.S. military personnel after his capture, thereby reviving issues of abusive treatment that engulfed the Bush administration for years.
In an affidavit filed last spring with the court, Khadr assets that while being held at the U.S. military base in Bagram, his interrogators covered his head with a bag, subjected him to barking dogs, tied his hands to the ceiling and made him stand for hours at a time in uncomfortable stress positions even while he was still suffering from bullet wounds in his chest and shoulders.
"On several occasions at Bagram interrogators threatened to have me raped, or sent to other countries like Egypt, Syria, Jordan or Israel to be raped ... Many times, during the interrogations, I was not allowed to use the bathroom, and was forced to urinate on myself,” his statement reads. “Sometimes they would shine extremely bright lights right up against my face, and my eyes would tear and tear and tear. ... In Bagram, I would always hear people screaming, both day and night.”
U.S. military officials have denied that Khadr was tortured, but even before the trial begins, the military judge must rule on whether Khadr’s later confession to lobbying the hand grenade should be thrown out because of claims he was abused in custody.
Either way, the eyes of the world press will be watching: A Pentagon plane takes off this weekend filled with international observers and 35 journalists who have signed up to cover the trial, including reporters from Al-Jazeera as well as Canada, the United Kingdom, France, Italy and Portugal.