Khadr case continues amid "child soldier" debate

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Khadr case continues amid “child soldier” debate
by Shanita Simmons
Originally published on February 8, 2008, in the The Wire, a weekly newspaper for staff of JTF-GTMO -- http://www.jtfgtmo.southcom.mil/wire/WirePDF/issue50v8.pdf. Wikified on February 23rd, 2008.


Khadr case continues amid “child soldier” debate[edit]

By Army Spc. Shanita Simmons
JTF Guantanamo Public Affairs

A U.S. military tribunal in Guantanamo Bay heard arguments Monday on whether Omar Khadr is properly charged under the Military Commissions Act for crimes he allegedly committed while fighting against American forces in Afghanistan in 2002.

Khadr’s case has drawn considerable attention as a child soldier since he was captured at age 15 and then detained within the facilities here. The only Canadian being held in Guantanamo Bay, Khadr is accused of murder, attempted murder, conspiracy, spying and providing material support for terrorism.

Prosecution and defense counsel filed 16 motions with the military commission and orally argued six during the proceedings. Khadr, a slim young man who adorned a neatly trimmed, short, black beard during the proceeding, wore a white shirt and pants as he sat beside his defense counsels.

Defense Attorney Rebecca Snyder urged Judge Army Col. Peter Brownback to dismiss the charges brought by the government against Khadr since he was charged in violation of the Ex Post Facto clause of the U.S. Constitution. Since the acts resulting in the charges were committed before the Military Commissions Act was promulgated, the defense argued that Congress could not retroactively pass “penal legislation” that was created after the period when Khadr committed the alleged criminal acts. However, Prosecuting Attorney Andy Goldstein explained that the MCA was created to prosecute unlawful enemy combatants captured after Sept. 11 whose acts led up to the attacks. Thus, the prosecution concluded that there was clear intent by Congress to apply the legislation retroactively.

Goldstein also disputed the defense claim that Khadr is afforded Ex Post Facto protections under the Constitution. He cited a District of Columbia Circuit Court case that denies detainees certain constitutional rights.

During the proceedings, Snyder also claimed the military commissions lacked subject matter jurisdiction over Khadr because the charges of conspiracy and providing material support for terrorism are not laws of war violations. Rather than facing a commission, Snyder argued that Khadr should be subject to a domestic court. However, Goldstein explained that the criminal acts of conspiracy and providing material support for terrorism are violations of the laws of war that had been codified into the MCA.

Marine Maj. Jeffery Groharing, an attorney for the prosecution, defended the government’s charges of murder and attempted murder against Khadr by disputing the defense’s claim that terrorism by definition is not a war crime. Groharing stated the evidence presented at trial will show that Khadr was captured in Afghanistan while wearing civilian attire, and he received al Qaida training in which he learned how to use fi rearms and make explosives. Groharing said that comparing Khadr’s acts as an alleged member of a terrorist organization to those committed by an American soldier “is an insult to all those who wear the uniform.” Groharing added that Khadr could be brought up for charges under the MCA as an alien unlawful enemy combatant.

During the proceeding, Defense Attorney Navy Lt. Cmdr. Willam Kuebler questioned whether a child soldier could be held criminally liable under the MCA. Kuebler added that the court could not believe that Congress intended a “‘one size fits all’ justice system” without expressly saying so.

During the proceeding, the prosecution asserted that Congress’ definition of “persons” in the MCA as “any infant members of an organization” supports the intent to include children when charging individuals under the act. During the proceeding, Kuebler called Khadr a “victim” and said he should be recognized as a child soldier who was involuntarily placed on the battlefi eld by a non state actor. In support of this argument, Kuebler cited the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts (“Protocol”), which prohibits the employment of children under age 17 in the Armed Forces. He explained that since Congress recognized a juvenile’s inability to meet a “soldier status,” there is an assumption that child soldiers should not be prosecuted like adult soldiers. The prosecution claimed that Kuebler’s arguments were based on a legal fallacy since there are historical accounts of tribunals that have exercised jurisdiction over war criminals under the age of 18. The prosecution supported its argument by mentioning the British Military Court, which tried a 15-year-old for war crimes, and the Permanent Military Tribunal at Metz, which exercised jurisdiction over three 16-year-old German girls. The prosecution stated that Kuebler’s use of the Protocol to support Congressional intent was baseless since this treaty applies to soldiers enlisted in an army and not to alien unlawful enemy combatants.

During the hearing, defense and prosecution attorneys argued other issues such as whether the prosecution could engage in ex parte communications with the judge to discuss classified evidence and whether spying is a chargeable offense under the MCA.

Khadr’s case was reopened on Sept. 9, 2007. The Court of Military Commisssions review overturned a dismissal of all charges against him.