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Former boy soldier, youngest Guantanamo detainee, heads toward military tribunal
"His age, family background, the culture he grew up in are all going to be part of a trial, and they are all going to be factors that the members can consider," said Navy Capt. John F. Murphy, the chief military prosecutor at Guantanamo Bay, referring to the military term for jurors. "We're not hiding from the fact that he was 15 years old. . . . Even in our traditional court system, we try 15-years-olds, and we try them as adults."
There is no strict international prohibition against prosecuting child soldiers, but there is a general consensus on the issue. The U.N.-backed Special Court for Sierra Leone, for example -- which was set up to try people accused of grave human rights violations -- allowed the prosecution of people 15 and older, but no minors were put on trial.
"I could have prosecuted anyone under the age of 18 for war crimes and crimes against humanity, but I chose not to," said David M. Crane, the former chief prosecutor for the Sierra Leone court and a law professor at Syracuse University. "I didn't think any person under that age had the requisite mens rea, the evil-thinking mind, to commit a war crime. It's a rare thing, almost unheard of, that we prosecute children."
But Michael A. Newton, a former State Department official who helped set up the Sierra Leone court, said Crane's exercise of prosecutorial discretion carries no weight in other legal settings.
"The key issue is: Does international law prohibit the prosecution of people below the age of 18? And the answer is no," said Newton, a professor of law at Vanderbilt University. "It's disfavored but not prohibited. Remedial training and rehabilitation is the norm. Prosecution is the exception, but prosecution is not prohibited."
Murphy also pointed out "a historic basis to charging minors and prosecuting them in commissions." He noted that the United States and Britain prosecuted Nazi minors in military tribunals after World War II, and that some were imprisoned.
American attorneys for Khadr, now 23, said they will continue to press the argument that their client, as an alleged juvenile offender, should not be tried in a military tribunal.
"Omar Khadr is not in Afghanistan but for his father," said Kobie Flowers, one of Khadr's attorneys. "He conscripted the boy -- and what choice did Omar have?"
Living with al-Qaeda
Khadr's father, Ahmed Said Khadr, immigrated to Canada from Egypt as a young man, and his mother, Maha Elsamnah, a Palestinian raised in Egypt and Saudi Arabia, moved to Canada with her family when she was 17. Drawn first to the anti-Soviet jihad, Ahmed Said and his kin shuttled back and forth between Canada and Pakistan, where the family patriarch worked for an Islamic charity. In 1995, the father was detained in connection with a bomb attack on the Egyptian Embassy in Islamabad, but the charges were eventually dropped.
The following year, Omar Khadr moved to Afghanistan, and he and his family briefly lived inside bin Laden's compound outside Jalalabad and were frequent visitors to another, outside Kandahar. Khadr's older brothers attended al-Qaeda training camps, according to Canadian reports.
The family was in Kabul when the World Trade Center and the Pentagon were attacked on Sept. 11, 2001, and fled into Pakistan. But the father sent Khadr back into Afghanistan with an al-Qaeda operative, Abu Laith al-Libi. The Pentagon alleges that Khadr received military training and, just before his capture, joined an al-Qaeda unit making improvised explosive devices to attack U.S. forces.
Khadr's father remained in Pakistan, where he was killed in a shootout with Pakistani forces in October 2003. One of his sons, Kareem, was shot and paralyzed in the firefight. Another son, Abdurahman, told the Canadian Broadcasting Corp. that he cooperated with the CIA after his capture in Afghanistan and was inserted into the prison at Guantanamo Bay to gather intelligence. He said he eventually broke off the relationship with the agency after it sent him to Bosnia, where he was supposed to infiltrate extremist groups. The CIA declined to comment.
Omar's mother, while still in Pakistan, outraged the Canadian public and dismayed Khadr's attorneys when she said of the Sept. 11 attacks in a CBC documentary: "Let them have it." Added his sister, Zaynab, only her eyes visible behind a black head cover, "You don't want to feel happy, but you just sort of think, well, they deserve it."
The Canadian government has shown little interest in getting Khadr back, and antipathy in Ottawa is driven in significant part because of public disdain for his family. They are known by some as "Canada's first family of terrorism."
Questions of evidence
Defense lawyers said Holder's assignment of the Khadr case to the military illustrates the Obama administration's acceptance of a two-tier system of justice in which flawed evidence that would be disallowed in federal court can be admitted in a tribunal.
The government defends its decision.
"The forum decision in the Khadr case was made after a careful assessment of all the factors identified" in a protocol developed by the Justice and Defense departments, said Dean Boyd, a Justice Department spokesman. "Although we cannot discuss how all the protocol factors were applied to the Khadr case or other specific cases, we note that this case involves a grenade attack on U.S. soldiers in a war zone, that the defendant was apprehended in a war zone in the context of active hostilities, and that the case was initially investigated and evidence gathered by military personnel."
Flowers, Khadr's attorney, said government lawyers indicated at a meeting in early November that they would introduce statements in a military commission that they would not use if the case went to federal court. A Pentagon spokeswoman declined to discuss any meeting with the defense.
Khadr's attorneys said the government's case is riddled with problems.
They said that their client was tortured in military custody and that all statements, even if given later and seemingly voluntarily to FBI agents, are contaminated by the alleged earlier abuse, which, they said, included threats of rape, stress positions and the use of snarling dogs.
Flowers also challenged the government's contention that Khadr threw the grenade that killed Speer. "The evidence," he said, "is extremely problematic."
But soldiers involved in the firefight that led to Speer's death and Khadr's capture have no such doubts. Morris, the blinded Special Forces soldier, who lives in Utah, said Khadr should remain in U.S. custody.
"Mr. Khadr is where he needs to be, and he needs to stay there for a long time," Morris said.