Gitmo Charges Against Canadian Teenager Dismissed

Omar Khadr is the teenager who was captured and brought to Guantanamo at age 15. (Background here.)

His case came before the military tribunal at Guantanamo today and the Judge dismissed the charges on jurisdictional grounds.

The stunning ruling by Army Col. Peter Brownback came just minutes into Khadr's arraignment, in which he faced charges he committed 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.

"The charges are dismissed without prejudice," Brownback pronounced as he adjourned the proceeding.

The reason:

Khadr had been classified as an "enemy combatant" by a military panel years earlier at Guantanamo Bay, but because he was not classified as an "alien unlawful enemy combatant," Brownback said he had no choice but to throw the case out.

The Military Commissions Act, signed by President George W. Bush last year after the U.S. Supreme Court threw out the previous war-crimes trial system, says specifically that only those classified as "unlawful" enemy combatants can face war trials here.


Unfortunately, it sounds like all they have to do is reclassify him and refile the charges. That's what "dismissed without prejudice" means.

The real issue is trying a child soldier:

Khadr's attorneys had decried the charges against him, saying he was a child soldier and should be rehabilitated, not imprisoned.

"The U.S. will be the first country in modern history to try an individual who was a child at the time of the alleged war crimes," the attorneys said in a joint statement in April.

The New York Times yesterday had this article on Khadr and the issue of child soldiers.

As Jeanne D'Arc wrote in the now defunct Body and Soul:

Omar Khadr is as much a victim of these people as a member of the family. He's eighteen years old. When he was captured in Afghanistan, he was fifteen -- a child turned into a soldier by parents from hell. And our government's response to this victim of child abuse was to abuse him further.

Canadian news has this in depth profile of the Khadr family. In 2005, the Toronto Star reported Omar's alleged torture while at Guantanamo.

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    What a disgrace (5.00 / 1) (#10)
    by txpublicdefender on Mon Jun 04, 2007 at 03:12:34 PM EST
    Treating a conscripted child soldier this way is an outrage.  The government should be ashamed of itself.  

    This government (none / 0) (#15)
    by Edger on Mon Jun 04, 2007 at 05:41:40 PM EST
    and their supporters, appear to be incapable of feeling shame.

    Or much of anything else for that matter, including self respect or any other kind.


    They prefer to hide from sunlight (none / 0) (#16)
    by Edger on Mon Jun 04, 2007 at 06:07:40 PM EST
    Khadr, who was only 15 years old when he was taken into custody, presents a special challenge as the first juvenile to face war crimes charges in decades.
    For activists, Khadr's as much of a victim as Speer and Sgt. Layne Morris, who was nearly blinded during the firefight.

    "We have a kid who was dragged to meet al Qaeda leaders from the age of 10, sent to military training camps at age 15 and then out to the battlefield to be shot at," said Jennifer Daskal at Human Rights Watch.
    Authorities insist international law permits them to prosecute Khadr as an enemy combatant without the rights afforded prisoners of war while others argue the United States has an obligation to rehabiliate child soldiers under a United Nations treaty it has ratified.

    Meantime, some find it strange that Khadr is among only three prisoners to be formally charged since the military commission system was revamped last year after the U.S. Supreme Court ruled it was illegal.

    "You have to wonder why it's Omar Khadr who may be the first to go on trial," said Jameel Jaffer, director of the national security project at the American Civil Liberties Union in New York.

    To give others with links to the Sept. 11 attacks a hearing may expose some uncomfortable information about interrogation techniques employed by the CIA, he said.

    "They don't want that information on the front of the New York Times."

    CTV, June 03, 2007

    GWB crimes in his 40s: 'youthful indiscretions' (5.00 / 1) (#18)
    by Ellie on Mon Jun 04, 2007 at 06:29:58 PM EST
    But this kid and semi-retarded Texas teenagers are locked up without due process to await being categorized as human or not with a swipe of an idiot psycho's pen.

    If only they were six frozen snowflake embryos in danger of thawing out at a photo op ...

    Don't Miss the Big Picture (5.00 / 1) (#24)
    by Aaron on Tue Jun 05, 2007 at 08:04:55 AM EST
    I thank the many legal experts for posting their evaluations of this case, and helping to bring to light the details.  But I'm thankful that I'm not a lawyer, so that I do not get caught up, or perhaps better to say distracted by the legal minutia which would distracts us all from the larger picture of the politics involved in this kind of travesty.

    Now that our president is finally watching his political power slip from his grasp, those who were once willing to jump on the boat of tacitly accepted the classification of enemy combatants as illegal criminals, the modern equivalent of Pirates, and stripping them of any rights or considerations under any law, many are now willing to swing the other way, and do what should have been done years ago, but for political reasons were considered impractical by all but the most tenaciously principled, and finally concede that what was being done to our enemies was nothing more than political expediency, perpetrated by a president drunk with power, while almost everyone in a position to do so was unwilling to oppose him.

    It must be tough for lawyers who spend their lives following the law, to watch as all of what they put their faith in goes out the window as a result of one terrorist attack on the United States.  I imagine that's exactly what Osama bin Laden was thinking when he planned and helped orchestrate that attack.  For he knew, and I'm sure it was a calculated political decision, that George W. Bush would throw everything out the window, including the Constitution and the people of the United States, in order to get the job of destroying our enemies and reshaping the globe by whatever means necessary without regard the law or morality, done.  Bin Laden did a great job of revealing exactly who and what the United States of America really is when you strip away all the BS.  A picture that much of the world seemed to see quite clearly, but we citizens could comfortably ignore in a zone of complacency while we thought ourselves safe from any consequences.

    I can't help but wonder, if the president, by some miracle had found some measure of success in Iraq, I wonder how many Iraqi children would now be classified as war criminals, perhaps we would have them by the thousands at this point languishing in Iraqi prisons and at Guantánamo awaiting their inevitable executions for their "war crimes". Though I imagine when we pull out of Iraq, the American forces which will maintain a presence there will see the necessity for supporting forces that do so.  After all we don't interfere in the internal political matters of sovereign nations, at least according to Dick Cheney circa 1983.

    I don't see the actions of these military officers as particularly heroic, they're just doing what everyone else in our government is doing, putting a finger up in the political wind and blowing with the breeze, and using legal arguments, legal arguments they were quick to forget when the president was in favor, to hold themselves up as some kind of defenders of principal and law.

    Child soldiers are a fact of life, and there are hundreds of thousands of them all across Africa, and no doubt they will become a force to be reckoned with in the future.  But the idea that a free society could look upon any children and say to ourselves "these are the people who should be held responsible" and anyone could actually take it seriously, is a terrifying prospect.  It's not unlike what we see happening with the lowest ranking young American soldiers (kids really) who after being placed in a horrendously untenable military situation begin acting out in ways that are considered criminal by civilian standards, are then are held responsible, while their superiors, most specifically our commander-in-chief, gets the equivalent of free pass from the people of the United States for his unconscionable criminality.

    Yes, I'm glad I'm not a lawyer so these focused legal arguments do not become blinders preventing me from seeing the monstrosities are supposed liberal democracy is capable of, at least under the totalitarian auspices of a renegade president.

    Unlike Frank Rich's assertions about the American people in his op-ed in the Sunday New York Times, which mentions TalkLeft -- though only in the most superficial condescending manner, the way most journalists seem willing to portray the blogging world -- I'm not ready to give my anger over to easy listening, and slip back into the same complacency that allowed a lackey like George W. Bush and a band of war mongering predatory neoconservatives who directed him, so that my country can pretend like nothing is deeply wrong with the state of our union.  If we don't learn from the kind of distortions that would hold children and those with the least power responsible for the actions of our leaders, then we are surely a doomed generation, which will doom the coming generations to an ugly desperate fate, that we are helping to perpetuate today.

    Aaron (none / 0) (#25)
    by jimakaPPJ on Tue Jun 05, 2007 at 10:04:40 AM EST
    Nice rant.

    I am not a lawyer, either, but:

    "without prejudice" means that the government can refile.

    Act II coming soon to the Gitmo Theater.

    Sorry about that.


    Not so. (none / 0) (#1)
    by Gabriel Malor on Mon Jun 04, 2007 at 12:12:11 PM EST
    Jeralyn, you've got it wrong when you write:
    Unfortunately, it sounds like all they have to do is refile the charges. That's what "dismissed without prejudice" means.

    Khadr must be classified as an unlawful combatant by a CSRB before he can be sent to the tribunals again. That's more than just "refiling the charges."

    I made the correction (none / 0) (#2)
    by Jeralyn on Mon Jun 04, 2007 at 12:14:43 PM EST
    to show he must be reclassified and then charges can be refiled.  Thanks.

    So (none / 0) (#3)
    by Edger on Mon Jun 04, 2007 at 12:45:10 PM EST
    "dismissed" does not really mean "dismissed".

    How handy for the government.


    Dismissed. (none / 0) (#4)
    by Gabriel Malor on Mon Jun 04, 2007 at 12:55:22 PM EST
    Dismissed without prejudice means that there is no bar to refiling the case. Dismissals like this usually occur in cases where there has been a minor procedural error or the claim is not yet ripe.

    Dismissed with prejudice means that the party that brought the action is prevented from ever bringing it again. That usually occurs when the action was patently unmeritorious, a harassment suit, or the result of some other egregious misconduct.


    Mmmm. Thanks, Gabe. (none / 0) (#5)
    by Edger on Mon Jun 04, 2007 at 12:56:47 PM EST
    As I said.. how handy.

    CSRTs (none / 0) (#14)
    by Categorically Imperative on Mon Jun 04, 2007 at 05:03:13 PM EST
    Correct me if I am wrong, but the CSRTs merely verify or overrule a preexisting designation, no?  Technically, the reclassification will be done after a DOD review signed off on by the Secretary of Defense.  Then Khadr, and any other reclassified "unlawful enemy combatant" will have the right to appeal their designation to a CSRT.  Perhaps this is a technicality, but it could become important if the administration attempts to push to "trial" immediately after reclassification rather than waiting for the CSRT.  After all, the CSRTs are wholly ad hoc and are simply there to provide a fig leaf of cover for our manifest Geneva Conventions violations.  The administration could (I think) argue that under existing law the classification can be made and the move to a hearing under the MCA made immediately given that the military commission is equally "competent" to review an "unlawful enemy combatant" designation as is a CSRT.

    No. (none / 0) (#17)
    by Gabriel Malor on Mon Jun 04, 2007 at 06:17:27 PM EST
    The MCA 2006 lays out the rules governing just who can be tried. They include this definition of "unlawful combatant":

    The term `unlawful enemy combatant' means--
    (i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
    (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

    For whatever reason, subsection (i) has not been applied to any current detainees. I suspect it is being avoided because it seems to rely on the very determination for which a CSRT is necessary: whether and how the person was taking part in hostilities. Instead, subsection (ii) must be satisfied and that takes a CSRT.


    For those who are interested in background (none / 0) (#6)
    by sarcastic unnamed one on Mon Jun 04, 2007 at 12:57:31 PM EST
    in Khadr, this TL thread is probably the most informative.

    Not a trivial change (none / 0) (#7)
    by Al on Mon Jun 04, 2007 at 02:48:52 PM EST
    If he wasn't classified as an unlawful combatant before, it's hard to see how that change could be justified now.

    Evolving law. (none / 0) (#8)
    by Gabriel Malor on Mon Jun 04, 2007 at 02:58:32 PM EST
    Khadr was classified as an "enemy combatant" before the MCA 2006 was created. The MCA 2006 first used the term "alien unlawful combatant" to describe who could be put to military commission.

    In other words, he wasn't classified as other than an "enemy combatant" back when he was captured because the military couldn't predict that Congress would limit military commissions to those who have been classified by a CSRB as an "alien unlawful combatant."

    Why couldn't the change be justified now? He's an alien. He's definitely an enemy combatant. Let a competent tribunal address whether he's an unlawful combatant. If he is, he gets a trial. If he's not, he gets held until the cessation of hostilities.


    Revolt? (none / 0) (#9)
    by squeaky on Mon Jun 04, 2007 at 03:10:26 PM EST

    Shortly afterwards, the chief of military defence lawyers at Guantánamo Bay said the ruling had "huge" impact, because none of the remaining Guantánamo detainees has been found to be an "unlawful" enemy combatant.

    Reader JR [from war & piece], an Air Force veteran, comments, "This subtle but profound ruling constitutes a revolt by career military officers, especially military lawyers, who have previously compromised their integrity and oath of office to support a President and Administration who lied and violated US and international law to take the nation to war and keep it mired there for years. Note that the courageous ruling is by an Army colonel and the implications quote a Marine colonel -- two officers at the end of their careers who have nothing to lose by placing institutional integrity ahead of loyalty to a commander-in-chief who has none. Sadly, the generals and admirals who should have made such stands over the last five+ years sat mute."

    W & P

    Heroes of the Day (none / 0) (#11)
    by katall on Mon Jun 04, 2007 at 03:22:08 PM EST
    Argue as you might against the Bush administration.  But, for this victory, you have to give kudos to John Altenburg, a retired major general and assistant TJAG for the Army.

    From my knowledge MG Altenburg is the epitomy of fairness.  He is politically adept and, once appointed, would not let anyone (even Rumsfeld) run roughshod over him.  

    And he has integrity.  Were I being prosecuted, I would want him to be in charge, because I would be sure the charges were solid and warranted (but, I would not want him to try the case, as I would surely lose).  

    And, he is an outstanding judge of character.  He was criticized for picking COL (ret.) Peter Brownback as the chief judge because they were friends.  But, they were friends because COL Brownback was an outstanding soldier, and, perhaps, the finest military judge in the Army.  

    COL Brownback, like MG Altenburg will not bow to pressure.  He calls them like he sees them.  

    So, yes, the Bush administration set itself up.  But, you have to give credit to players who have integrity.

    Today's heroes of the day are COL Brownback and MG Altenburg.

    It's hard to see ... (none / 0) (#12)
    by Sailor on Mon Jun 04, 2007 at 04:31:35 PM EST
    ... how career Army officers are a part of bushco. And no offense, but I'll withhold judgment till I see how this technicality plays out.

    et al: the terms "alien unlawful combatant" and "illegal combatant" were invented by bushco to excuse obvious violations of the GenCons, international torture laws, the US Constitution and just plain freakin' humanity.


    They are not now (none / 0) (#13)
    by katall on Mon Jun 04, 2007 at 04:55:41 PM EST
    career army officers.  both Altenburg and Brownback are retired (Brownback may have been recalled to active duty).

    This is no defense of Bush or his administration's plans.  It is a defense of the fairness of the system and the fairness of the players.

    But, we are in trouble.  Altenburg went back to the private sector and we don't have the court of appeals yet...


    A technicality? (none / 0) (#19)
    by kst on Mon Jun 04, 2007 at 07:09:45 PM EST
    CNN says that this is all based on a "techicality".  (I'm not picking on CNN, they're just the ones whose coverage I happened to see.)

    But it seems to me that the distinction between "enemy combatant" and "unlawful enemy combatant" is anything but a technicality; it's the very heart of the case.

    An enemy combatant, if the term is defined sensibly, is just a soldier on the other side.  We can capture enemy soldiers, we can even kill them during combat, but we don't get to prosecute them just for being on the other side and fighting back unless they do something that violates the rules of war.

    I don't know the details of what this kid is accused of, but if he as a member of the Taliban, he may just have been defending his country against foreign invaders.  Even if the invaders were the "good guys", that doesn't make him a criminal; it just makes him a soldier.

    And that's leaving aside the fact that he was 15 years old at the time.

    The kid was and is a citizen of Canada (none / 0) (#20)
    by sarcastic unnamed one on Mon Jun 04, 2007 at 08:20:48 PM EST
    His dad was from Egypt, his mom from Pakistan (or maybe the other way around)
    I don't know the details of what this kid is accused of, but if he as a member of the Taliban, he may just have been defending his country against foreign invaders.
    His dad was pretty high up in AQ, the kid was deeply entrenched in AQ.

    He and some other AQ types were sitting in a compound/building. US troops surrounded the compound and demanded the AQ's surrender. They did not. The US troops sent in several local tribesmen to talk to them, and the AQ's promptly slaughtered the tribesmen. The US troops then called in an airstrike that leveled the compound.

    The US troops entered the flattened compound and the kid jumped out from behind a wall and killed one US troop and maimed another with a grenade.

    Up above, in a previous comment, I linked to another TL discussion which explains this and a lot more, if you are truly interested...


    All of that may be true (none / 0) (#21)
    by Edger on Mon Jun 04, 2007 at 08:38:00 PM EST
    Good chance it is. But, the kid who is now 20(?) "...was dragged to meet al Qaeda leaders from the age of 10, sent to military training camps at age 15 and then out to the battlefield to be shot at," said Jennifer Daskal at Human Rights Watch.

    When a young kid is exposed to and indoctrinated in, for example, a dogmatic religion such as Roman Catholicism (or any other doctrine), from a young age the mindset created is nearly impossible to break out of, and the entire world is seen through the lens of what s/he has been taught. Anything that questions it is seen as threat.

    Khadr's entire experience with Americans took place after he had already been indoctrinated, and consisted of being shot at and bombed by Americans.

    The US troops entered the flattened compound and the kid jumped out from behind a wall and killed one US troop and maimed another with a grenade.

    Should anything different have been expected? Whose fault is it? His? Anyones?


    Update (none / 0) (#22)
    by txpublicdefender on Mon Jun 04, 2007 at 08:43:24 PM EST
    I just read that one of the other judges just tossed out Hamdan's case on the same grounds.

    Edger (none / 0) (#23)
    by jimakaPPJ on Tue Jun 05, 2007 at 07:28:14 AM EST
    Khadr's entire experience with Americans took place after he had already been indoctrinated, and consisted of being shot at and bombed by Americans.

    The same thing can be said of the Germans, Japanese in WWII, the Chiense and the NV.