Gitmo Controversy: The Queasy Case of Omar Khadr

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From left: John Moore / Getty Images; CNS

Guantánamo Bay detainee Omar Khadr

President Obama's promise to shut the Guantánamo Bay detention facility has come back to haunt him. Not only is the facility still open long past the January 2010 deadline that Obama set for closing it, but this week saw the first steps in the trial of its youngest and most controversial inmate. Omar Khadr, who has been held at the facility for seven years, faces a maximum life sentence for allegedly killing a U.S. soldier during a battle in Afghanistan when he was 15 years old.

If Khadr is convicted by a jury composed of U.S. military officers, he will be the first person convicted of war crimes committed as a child anywhere in the world since World War II, according to the U.N.'s special representative for children and armed conflict, Radhika Coomaraswamy. Khadr's trial got under way just as another military tribunal sentenced Osama bin Laden's former chef and driver, Ibrahim al-Qosi, to 14 years in prison. It was the first prosecution of a Gitmo prisoner since Obama took office promising to close the offshore prison, which has become a symbol of the Bush Administration's riding roughshod over the rule of law in the course of its war on terror.

Defense lawyers will remind the jurors that the man accused of the crimes at the center of the Khadr trial isn't the wide-shouldered, bearded man of 23 years who sits before them but a gangly 15-year-old keen on Hollywood movies and soccer, who read The Adventures of Tin-Tin to his younger siblings at night. They'll argue that the accused was a quiet, obedient middle son who never crossed his late father Ahmed Said, an imposing, gray-bearded patriarch who was close friends with Osama bin Laden and al-Qaeda's second in command, Ayman al-Zawahiri.

The Gitmo prosecutors have no eyewitnesses or forensic evidence tying Khadr to the killing of Sergeant Christopher Speer, who died in a grenade blast during a firefight in July 2002. But the prosecutors do have a confession made by Khadr.

Lieut. Colonel Jon Jackson, one of the defense lawyers, says Khadr's confession was coerced. The accused, who lost an eye and was shot twice during a U.S. special forces raid on a jihadi compound near Khost in eastern Afghanistan, alleges that after capture, he was hung upside down for long stretches of time and threatened that he would be raped or killed. He also says he was urinated on by a soldier who then dragged him around the floor like a mop to clean up the mess. In a pretrial hearing, Jackson told the judge, Colonel Patrick Parrish, "Without question, he was subjected to cruel, degrading and inhuman treatment ... By the time he left Bagram [the main U.S. base in Afghanistan], he was broken." Khadr was also allegedly under heavy sedation for his wounds when he made his admission of guilt, his lawyers say.

Although the Obama Administration did tighten the rules of evidence at Gitmo's military tribunals — no longer are hearsay evidence and evidence obtained under coercion allowed — on Monday, Judge Parrish ruled that Khadr's confession was admissible.

Until Khadr appeared in the makeshift courtroom wearing a dark oversize suit, hastily found by his lawyers in a Gitmo broom closet, it seemed probable that he might boycott the trial. Earlier, he had denounced it as a "sham" and rejected a plea bargain of 25 years in jail if he declared his guilt. But sources close to Khadr's defense team tell TIME that Khadr was convinced that going along with the trial would not necessarily mean that he was "putting his faith in the military legal system" and that it would bring to light the myriad injustices he allegedly suffered at Gitmo.

Not only is harsh interrogation and coercion banned under the Third Geneva Convention, but according to Human Rights Watch counterterrorism adviser Stacy Sullivan, the U.S. government, in Khadr's case, violated a slew of its own laws and U.N. regulations. "As a child prisoner, Khadr should have been kept away from adults, given family visits and education, none of which happened," Sullivan says. Khadr's request for Sudoku puzzles was turned down. He was allowed to order a book on origami, the Japanese art of folding paper, but his wardens then refused to give him any paper, say his attorneys. And besides, argues Sullivan, "it's unprecedented in modern history to prosecute a child for war crimes."

Sentencing Khadr for terrorism crimes he allegedly committed as a child could also have a knock-on effect for children who are dragooned into wars elsewhere in the world. Says Anthony Lake, executive director of UNICEF: "The prosecution of Omar Khadr may set a dangerous international precedent for other children who are victims of recruitment in armed conflicts."

So why hasn't Obama shut down Gitmo and stopped these controversial military tribunals as promised? The political will has evaporated. Congress has repeatedly blocked attempts to move the detention facility's inmates to a high-security prison on U.S. soil. The option of sending them home is also fraught. Nearly half of the remaining detainees are from Yemen, and after it was revealed that a firebrand sheik based in Yemen was behind the narrowly averted bombing in Times Square last winter, authorities worried that extraditing the inmates to Yemen would be tantamount to setting them loose outside an al-Qaeda recruitment office.

Jury selection for Khadr's trial is supposed to end on Aug. 18, and the trial will begin immediately afterward. It is expected to run until mid-September. But regardless of its finding, the trial is unlikely to reflect positively on the Obama Administration in the eyes of many of its allies in the fight against al-Qaeda.