Wednesday, 12 July 2017

OMAR KHADR: Was he really a terrorist? (Part Four)                                           

The Trial

By August 2010, nearly five years had passed since Omar Khadr was first charged with murder and war crimes under the Bush administration and was now undergoing his trial. He was almost 20-years of age when he entered the courtroom that was in the confines of the infamous Guantánamo Bay military prison.

In a military trial, there is a military judge and a panel of officers who act as the jury. The court is referred to as a Commission.

The proceedings began with opening statements from the prosecution and defence.

The prosecutor, Major Jeffrey Groharing said in his opening statement that Omar Khadr had grown up in a family of “radical Islamists” and had “even lived with Osama bin Laden in an al-Qa’ida compound in Afghanistan. 

In his opening statement for the defence, Lt Col Jackson portrayed Omar Khadr as a scared child in the company of “three bad men” on 27 July 2002 when the firefight occurred.  He blamed Omar Khadr’s late father for the fact that Omar Khadr was there in the first place, adding that “Omar’s father hated his enemies more than he loved his son. Members of the Khadr family, including Omar, are believed to have moved to Afghanistan when he was 11 years old.

Lt Col Jackson asserted that “Omar Khadr did not kill Sergeant Speer” and that it was another man who was also still alive after US airstrikes against the compound who had thrown the grenade.  On the question of interrogations, Lt Col Jackson highlighted the way Omar Khadr was treated in Bagram by his first interrogator, who questioned him while he was still in a stretcher, recovering from his serious injuries, and effectively threatened him with being raped and killed by “big black guys and Nazis” in a US prison.

Major Jeffrey Groharing began his case by wheeling in a scale model of the compound where the firefight took place.  He alleged that Omar Khadr had told one of his interrogators that he was a “terrorist, trained by al-Qa’ida” and that what he was most proud of was carrying out attacks against Americans. The prosecutor alleged that Omar Khadr had deliberately decided to conspire with members of al-Qa’ida to kill as many US soldiers as possible.  When it came to the question of statements and confessions obtained during the teenager’s interrogations at the US air base in Bagram in Afghanistan and subsequently in Guantánamo, the prosecutor insisted that they were the result of friendly conversations between the detainee and his interrogators and that all were freely and voluntarily given.  He made no reference to Omar Khadr’s young age when these interrogations took place.  

Quite frankly, I don’t believe that Omar’s interrogation was friendly at all. In my previous article, I mentioned that he had been denied sleep and had also been restrained in painful positions.  Was this abuse a means of getting Omar to confess or was it a form of punishment. In any case, it would be illegal and if he was interrogated while he was submitted to this abuse, anything he said could not legally be entered into the trial as evidence.    

As the trial proceeded, the commission heard from two prosecution witnesses and viewed a video that US forces had retrieved from the compound in Afghanistan where the firefight took place. It was the basis of the prosecution’s case against Omar Khadr.

It was there that, as a 15-year-old, Omar is alleged to have thrown a grenade that fatally wounded an American soldier—Sergeant Christopher Speer who was also a medic. Among those present in the courtroom for the first time, was the widow of Sgt Speer.

Part of the day was spent hearing from two prosecution witnesses who were Colonel W and Sgt-Major D, (their last names are not disclosed) both of whom had been involved in the July 27, 2002 firefight.  Colonel W had ultimate command and Sgt-Major D was the officer who shot and killed the other man who was still alive in the compound at the end of the firefight and who also shot Omar Khadr, twice, in the back as the 15-year-old was crawling away from the wall.

Both officers gave vivid testimony describing how the fighting unfolded, including highly charged moments such as when Sgt-Major D described holding Sgt. Speer’s hand as he lay bleeding from the shrapnel wound that ultimately took his life and urged him to live for his wife and children.

Neither Colonel W nor Sgt-Major D actually saw Omar Khadr throw the grenade but they both testified that they believed it had been him.  Believing that something occurred is not proof of the existence of the occurrence.  Now if Omar was the only person behind the wall, then their belief would be valid but because there was a man also behind the wall, then their beliefs where mere speculation.

Sgt-Major D’s account of shooting Omar Khadr (who he said he saw sitting facing away from him) in the back certainly raises questions.  Inconsistencies appeared, too, between Colonel W’s testimony and the initial written report he had filed about the incident, which he further admitted he had changed some years after the events.

The first report, written hours after the fighting, said that “one badly wounded person threw the grenade and was later killed.” Omar Khadr, however, obviously survived.  Colonel W then laid out how he revised his own personal copy of that report, some two or three years later, changing the word “killed” to “engaged.”  He indicated that the first report had been based on his mistaken assumption that Omar Khadr, who he had been told was unlikely to survive, had in fact died. He said that when he realized the error, he made the correction. If horse dung smells like horse dung, it must be horse dung.

The prosecution also showed a video that US forces had recovered from the compound some 30 days after the firefight.  The video is a hodge-podge of images, some with conversation, others not, and included depictions of the making of improvised explosive devices (IEDs) and planting IEDs on a roadway.  Omar Khadr appears in some of the images – which the prosecution argues is proof that he conspired with other al-Qa’ida members.  At the same time the video underscores Omar Khadr’s young age at the time and shows a teenager apparently eager to please the adults he was with.

I would be amiss if I didn’t mention that in the United States, military defence lawyers are honest and dedicated to their profession and do their best for their clients. 

The dominant concern as the day ended was that of Lt-Col Jackson’s health.  It is virtually certain the trial would not continue the next day as he had been hospitalized overnight.  Depending on the results of medical tests, proceedings might resume on Monday. If he needs to be transferred to the mainland for treatment, an adjournment of at least several weeks is inevitable. It was later announced that Lt-Col Jackson has been transferred to the US mainland and that there would be a minimum 30-day delay in the trial.     

Meanwhile, Amnesty International urged the US authorities to use this development to abandon Omar Khadr’s military commission trial once and for all, and to resolve the Omar Khadr case in accordance with international human rights standards. The organization also said that the Canadian authorities should do what they had so far failed to do and that was to seek Omar Khadr’s repatriation. The first and last suggestions were unrealistic.

The plea of guilty

In order to leave Guantánamo, Khadr accepted a plea deal in October 2010, in which he admitted that he was guilty of murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, providing material support for terrorism, and spying. 

There were serious problems with the credibility of the main charge against him—that he threw a grenade that killed a US soldier—since  an investigation of the evidence indicated that at the time the grenade was thrown, Omar was unconscious, having been shot twice in the back at close range.

Hey. Let’s stop a minute. Who was shot first? Was it Omar or the man next to him?  When the soldiers looked over the wall, the man was already dead and it was then that Omar was shot twice in his back. He wasn’t unconscious before he was shot or unconscious after he was shot.

Omar was convicted. The jury's sentence of 40 years in addition to the eight Omar had already served in Guantanamo Bay, Cuba  was a very stiff penalty. He would be sixty-two years of age by the time he was released.

In any case, Omar was offered a deal. Instead of serving another forty years in prison, he would only serve one year in U.S. custody, and the balance would be served in Canadaseven years in a Canadian prison. Part of the deal was that he plead guilty to murder, attempted murder, providing material support for terrorism, spying and conspiracy. He agreed to the terms of the deal.

I honestly don’t know whether or not Omar threw the fatal grenade. He may have run to the compound wall to escape the compound that was being bombed and the carnage that followed or he intended to kill the oncoming America soldiers.

However, I am convinced that he was a terrorist while he was living with his family and al-Qa’ida in Afghanistan. The video  shown at his trial underscores Omar Khadr’s young age at the time and shows him as a teenager apparently eager to please the adults he was with. I have seen a video of him building a road bomb and planting in on a road. 

His guilty plea. 

The document says that when Khadr was interviewed three months after he was imprisoned in  Guantanamo Bay he said, "I felt happy when I heard that I had killed an American," a reference to Sgt. First Class Christopher Speer, a member of a U.S. Army Special Forces unit, who died as the result of his wounds from a grenade. I am not sure he really meant what he had said. He may have said it to get back at the interrogators who were mistreating him while he was imprisoned in Guantanamo Bay

His family hated Americans. When terrorists destroyed the twin towers in New York, the family stated that the Americans deserved what they got. Making that kind of statement doesn’t really make someone a terrorist but assisting a terrorist organization like al-Qa’ida is a terrorist act. It is my opinion that while the Khadr lived in Afghanistan, most of his family members were rotten to the core.
Return to Canada

In 2008, Canadian Foreign Affairs officials visited Khadr several times. Karim Amégan and Suneeta Millington reported that Khadr was "salvageable" if allowed to return to Canadian society and that keeping him in the Guantanamo Bay Prison would risk radicalizing him   In 2008 Foreign Affairs officials visited Khadr several times. Karim Amégan and Suneeta Millington reported that Khadr was "salvageable" if allowed to return to Canadian society, but that keeping him in the prison would risk radicalizing him.  A poll taken in January 2009, showed that as many as 64% of Canadians supported repatriating Khadr to a Canadian prison.

In April 2009, the Federal Court of Canada ruled again that Khadr's rights under the Canadian Charter of Rights and Freedoms had been violated. It concluded that Canada had a "duty to protect" Khadr and ordered the Canadian government to request that the U.S. return him to Canada as soon as possible.

Omar’s eventual transfer to a Canadian prison occurred following a process initiated by the United States government and accepted by the Canadian government.

In 1975 while I was a participant at the Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at the UN permanent headquarters in Geneva Switzerland, the Canadian delegation proposed the transfer of prisoners convicted in one country to be transferred to the country of their birth if both countries agree to the transfer. Later the General Assembly made it official. It has been in practice ever since.

In 1975, I attended that particular UN Fifth Congress when the Canadian delegation proposed such transfers. I didn’t address the conferees on that subject because it appeared to me that most if not all the delegations were in favour of the proposal as was I also.

Imprisonment in Canada

After serving an additional year at Guantanamo Bay, the transfer was initiated on September 29, 2012 when Omar boarded a military plane at the Guantanamo Naval base in Cuba and arrived at the Canadian military airbase in Trenton, Ontario. He was to serve the rest of his remaining seven years of imprisonment in Canada.

I will explain why he might have been eligible for parole at such an early stage of his imprisonment in Canada. The law with respect to parole in Canada is that a prisoner may apply for parole after serving one third of his sentence.  He or she can still apply later if their first request is denied. If a prisoner isn’t convicted of murder and or isn’t considered a dangerous person, the prisoner will automatically be released after serving two thirds of the sentence so that the prisoner can serve the remaining third of his or her sentence as a parolee. 

On August 13, 2013, Khadr's lawyers, Dennis Edney and Nathan Whitling, filed a brief in court arguing that under Canada's International Transfer of Offenders Act, it was not legal to hold Khadr in an adult institution, because the eight-year sentence he received from the U.S. military commission could only be interpreted as a youth sentence and as such, he should be detained in a provincial jail rather than a federal prison. During the time of his alleged crimes, he was still legally a child. 

In Canada, young offenders who commit crimes when they are under the age of 18 are considered as children. This is generally a factor in all westernized nations. Until they turn 18, they must serve their sentences in a young offender facility. When they turn 18 (unless they are going to be released very soon after) they are transferred to an adult facility.

Omar Khadr will sleep in a bed in a home, go for walks and exercise as a relatively free man.  He will eat meals cooked at home and in restaurants.  Occasionally, he’ll go on family trips to the Edney cottage in British Columbia.  He will also continue to study for his high school diploma which he could in a year or so.  After that, the Edmonton’s Kings University College has said he’s welcome to study there if he so chooses.  

If the Washington court finds that he was a child soldier and comes to the conclusion that no one actually saw him throw the grenade over the wall and that he was coerced into pleading guilty, he may be found not guilty of any of the crimes he was charged with and had pleaded guilty to those charges. If that is so, then he will be totally a free man. 

He is however facing a major problem. He has been sued by the two wives of the deceased soldier and the other soldier who lost an eye via the explosion of the grenade.

He was first imprisoned at the Millhaven Penitentiary in Bath, Ontario that is about 130 miles east of Toronto. That prison is a maximum security prison and is where dangerous prisoners are sent. Years ago, I was permitted to tour that prison.

Under Canadian law, he was eligible for parole in mid-2013. However, due to his murder conviction, Omar was classified as a prisoner to be still held in a maximum security prison. This delayed his application for parole because such prisoners are unlikely to be given parole at such an early stage of their imprisonment.

The Supreme Court of Canada ordered that since Omar had been given a youth sentence, he was to serve the rest of his sentence in a provincial correctional facility for adults. Since his lawyer lived in Edmonton, Alberta, Omar was sent to the Bowden Institution in that province, It is a provincial minimum security correctional facility. As an aside, in the mid- 1950s, I was the director of programming in the Young Offenders section of that facility.  

In May 2015, a Canadian judge released Omar Khadr, formerly the youngest prisoner at Guantanamo, pending his appeal to the American court in Washington D.C.

In the fifth and final article in this series on Omar Khadr, I will  write about the pending trials and the contentious issue of Omar Khadr receiving $10.5 million dollars and a formal apology from the Canadian federal government. 

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