By Jennifer Turner, Human Rights Researcher, ACLU Human Rights Program
On Monday, pretrial hearings resumed in the case of Canadian Omar Khadr, captured at age 15 by U.S. forces in Afghanistan. Accused of throwing a grenade that killed an American soldier and participating in a terrorist conspiracy beginning when he was only 10 years old, Khadr has spent a third of his life at Guantánamo. Unless a plea bargain is reached, Khadr's August military commission trial will be the first under President Obama.
Omar Khadr fired his two civilian lawyers last week, and Monday's hearing was held to determine whether Khadr could fire his military lawyer and represent himself going forward. Khadr's demeanor as he was led into the courtroom was noticeably different than in previous proceedings. Usually he flashes a warm smile at his lawyers, but on Monday he seemed more serious than usual.
Khadr began by reading a hand-written statement to the court, in which he explained he fired his lawyers because the military commissions are "unfair and unjust" and "constructed to convict detainees, not to find the truth." His tone was matter-of-fact rather than defiant, but he was plainly fed up with a process that had dragged on for five years.
In his longest address to the court during the five years of his military commission proceedings, Khadr also revealed that he had rejected a plea offer to serve five more years at Gitmo. The deal would have required him to plead guilty to war crimes, serve five years of a 30-year sentence at Gitmo, and then possibly served more time in Canada if the Canadian government chose to require him to do so. Khadr currently faces a maximum sentence of life imprisonment if convicted.
Khadr told the court he had rejected the plea agreement because it would "legitimize this sham process" and because he did not want to "willingly let the U.S. government use [him] to fulfill its goal." He said agreeing to a plea offer "will give excuse for the government for torturing and abusing me when I was a child."
Khadr added, "The unfairness of the rules will make a person so depressed that he will admit to allegations made upon him or take a plea offer that will satisfy the U.S. government." Khadr's Canadian lawyer Dennis Edney, who has no official standing before the military commission, later told reporters that Khadr had also rejected the plea offer because he "could not admit to guilt to something he did not do."
(Last week, Sudanese detainee Ibrahim al-Qosi, pled guilty to charges of conspiracy and providing material support for terrorism as a cook and driver for al Qaeda, marking the first conviction in the military commissions system under the Obama administration.)
Military judge Army Col. Patrick Parrish then asked Khadr a series of questions to determine if he could represent himself. Federal courts have tried and tested rules that would allow them to determine whether a traumatized young man with little formal education was competent to represent himself. In the commissions, the military judge had to apply an untested rule created a month and a half ago.
The judge had to decide on his own which issues were relevant to Khadr's competence to represent himself, and a military prosecutor periodically interjected to suggest additional questions to ask Khadr. When the judge asked Khadr if he was familiar with the procedural rules for military commissions, Khadr said it didn't matter since the rules "can change anytime at this military commission."
He has a point—there have been five different sets of rules by my count, with the last rule manual reaching the island when Khadr's last pretrial session started in late April.
At two points during Monday's proceedings, the military judge appeared to be about to rule that Khadr could represent himself. During the morning session, the judge was in the middle of ruling that Khadr is competent to represent himself when defense lawyer Lt. Col. Jon Jackson interrupted him.
But Khadr threw a wrench into the process when, after a brief recess, he announced he wanted to boycott the proceedings altogether. He asked, "How can I ask for justice from a process that doesn't offer it?" When pressed to explain what he meant by boycott, Khadr said he didn't intend to defend himself at all. Refusing to hold a trial without a defense, the judge ordered military defense lawyer Lt. Col. Jon Jackson to stay on the case.
The judge announced that Khadr will proceed to trial on August 10 as scheduled, after Lt. Col. Jackson consults his state bar association's ethics committee and the Army Judge Advocate General Corps about his ethical obligations to a client who doesn't want to be defended. So we may be headed for another trial in which the defense remains silent. (In one of the two trials that have taken place at Guantánamo, Ali Hamza al Bahlul was convicted in November 2008 after a one-week trial in which the defense introduced no witnesses, made no legal arguments, and put on no defense).
It would be shameful for the first military commission trial under President Obama to be the prosecution of an alleged child soldier. And the legitimacy of any conviction in the flawed military commissions system will be open to question, but if Khadr is convicted without mounting a defense, the conviction will most certainly be viewed as illegitimate. This is a situation created by the broken military commissions system: Khadr's refusal to participate in this unfair process is the predictable result of a system designed to produce convictions, not justice.
The commissions system is unfit to try any Guantánamo detainee, especially an alleged child soldier who has been held in U.S. custody for a third of his life. Omar Khadr should be repatriated to Canada, or if the evidence warrants, tried in federal courts that guarantee due process and fair trials. Time is running out for the Obama administration to do the right thing.