Monday, August 9, 2010 – Globe and Mail
ANNA MEHLER PAPERNY
Sitting in court, heavy brows furrowed, fists propped under bearded chin and black sneakers looking out of place with loose white prison garb, he looks like a profoundly fed-up twentysomething.
But in a letter to his Canadian lawyer earlier this year, the scrawled handwriting and syncopated cadence read like those of a much younger, conflicted individual: “Sometimes there are things you can’t say, but rather write on paper, and even if i were to tell you you wont understand,” it opens. “So anyway here are the things.”
“It seems that we’ve done everything,” he adds later in the letter released recently by the lawyer, “but the world doesn’t get it. … I really don’t want to live in a life like this.”
“I hate being the head of the speer, Dennis.”
That life – years of legal wrangling over his fate, mired in Guantanamo Bay’s military-commissions system – is nearing some form of resolution.
In a heavily air-conditioned Guantanamo courtroom, a coterie of U.S. military personnel – judge, jury, defence and prosecution – are expected to convene the long-delayed military-commission trial that will decide Omar Khadr’s fate.
In U.S. custody since he was taken captive in 2002 after a firefight in Afghanistan at age 15, Mr. Khadr is charged with murder, attempted murder, spying, conspiracy and supporting terrorism.
He has been characterized variously as a child soldier and teen killer; a terrorist and torture victim; the scion of Canada’s notorious al-Qaeda member and a Canadian citizen abandoned.
He has prompted debates about the rights – or limitations – of Canadian citizenship and motivated Ottawa to fight rulings that would oblige the government to go to bat for citizens detained abroad.
Dear Dennis, I’m writing to you because sometimes there are things you can’t say, but rather write on paper. And even if I were to tell you, you won’t understand. … There must be someone to secrefice [sic] to really show the unfairness, and really it seems that it’s me. Know, Dennis, that I don’t want that I want my freedom and life. But I really don’t see it coming from this way. … If the world see the US sentencing a child to life in prison, it might show the world how sham and unfair this prosess [sic] is.
Prosecutors have accused his defence lawyers of attempting to derail or delay a trial as late as last week, when his military-appointed lawyer unsuccessfully petitioned the U.S. Supreme Court to halt proceedings.
Now it all comes down to the next several weeks. This trial will be a litmus test for U.S. President Barack Obama’s revamped military-commissions process and his handling of Guantanamo Bay, the notorious detention centre the President vowed to close by a deadline that passed eight months ago.
Can the trial go forward? More crucially, can it go forward with enough transparency and legitimacy to pave the way for the far more high-stakes trials of 9/11 mastermind Khalid Sheikh Mohammed and other high-level terrorism suspects?
“I’m sure this wasn’t anybody’s choice to have this one go first,” says Thomas Joscelyn, a terrorism analyst and senior fellow at the Foundation for Defense of Democracies.
But the United States, he says, would have a hard time simply releasing him given what he’s charged with and who his family is: His father was a prominent al-Qaeda financier; his oldest brother, Abdullah Khadr, was just released from prison after four-and-a-half years on terrorism charges.
“The Obama military-commissions test case will be the prosecution of a child,” Mr. Khadr’s military lawyer, Lieutenant-Colonel Jon Jackson, said. “That’s a fact.”
Conviction seems almost inevitable in a process “designed to make findings of guilt,” his Edmonton-based lawyers Nathan Whitling and Dennis Edney have said.
Dennis, I hate being the head of the speer. But … I just have to deal with it.
His best shot is the suppression motion that will be completed this week, the last thing to wrap up before the trial itself gets under way.
If military judge Colonel Patrick Parrish agrees with defence arguments that much of the evidence against Mr. Khadr – specifically his own confessions – was obtained through torture and coercion and shouldn’t be admitted in the trial, it weakens the prosecution’s case.
Lieutenant-Colonel David Frakt, a veteran of Guantanamo’s military-commissions process, succeeded in doing just that. He got charges dropped against his client, Mohamed Jawad, an Afghan accused of lobbing a grenade at passing U.S. soldiers as a teenager, because Mr. Jawad’s confessions were deemed inadmissible.
If one day I stop coming or fire you, please respect it and forget about me. I know it’s hard for you, just think about me as a child who died and get on with your life. … It’s on my mind all the time. … I leave you with HOPE and I am living on it.
Despite Mr. Khadr’s own pessimism, Col. Frakt argues he “has a very good shot at beating the murder rap.” Other charges, including supporting terrorism, may be harder to dodge.
But much comes down to the way the jury panel interprets the case.
“Most of the jurors will have teenaged children,” Col. Frakt says. “And it’s going to be hard for them to not think about how they would want their son to be treated in such a situation.”
A JURY OF OFFICERS
The bad news: You got tagged for jury duty. The worse news: It’s jury duty in Guantanamo Bay.
The military-commissions process allows for trial by jury – but in a dramatically different format than the civilian jury system.
A panel of 15 American military officers – all adult U.S. citizens based around the world – has been selected to attend Omar Khadr’s military-commissions trial in anticipation of a start date this week. Both the defence and prosecution have the opportunity to challenge anyone they find problematic; the minimum number of jury members is five.
The selection process is the diametric opposite of the purposely random jury selection of Canadian and U.S. civilian courts: These Defence Department officers are recommended by their superiors in the army, navy, air force and marine corps. They’re then meticulously vetted by those organizing the military commission.
“You want a jury of your peers, so you want people in your command, as a soldier, judging you,” Mr. Khadr’s military lawyer, Lieutenant-Colonel Jon Jackson, said.
He added wryly, “I don’t think that logic applies to detainees.”
Anna Mehler Paperny