On trial, 'child soldier' who grew up in Camp Delta

In the second of his dispatches from the US prison camp, Robert Verkaik witnesses Guantanamo's legal process in action

(reuters)

The full-bearded man, tall and well-built, who shuffled into a military court in Guantanamo Bay yesterday hardly lived up to the description of "child soldier".

Omar Khadr was just 15 when he was captured by US forces on the battlefields of Afghanistan in July 2002.

He has matured from a vulnerable adolescent to a grown man while serving a third of his life at the US naval base in Cuba, in conditions which have been universally condemned by the outside world.

Yesterday Mr Khadr, a Canadian citizen, was taken from his cell at Guantanamo's Camp 4 and driven across the peninsula to a converted Second World War control tower which is being used for his trial – the first Guantanamo trial under President Barack Obama.

The case is being seen as a test of Mr Obama's commitment to ending the injustices and abuses carried out in the name of America's "war on terror". But the very fact that the discredited military commissions are still in business is prima facie evidence that Mr Obama lacks the political will to honour his post- election human rights pledge. Escorted by US navy guards, Mr Khadr was taken past the barbed wire fences and watch towers of Camp Justice. Shortly after 9am local time he emerged, arm-in-arm with two soldiers, from a side door of the court chamber. The steel chain fixtures poking through the red carpet were the only physical clue that this was not an ordinary American civil courtroom.

Mr Khadr, unshackled, and wearing a baggy white T-shirt and billowing white trousers, lumbered down the far side of the court until he was placed in his seat by three guards, next to his family lawyer, the Scottish-Canadian barrister Dennis Edney, and two seats down from his military commission- appointed advocate, Lieutenant-Colonel Jon Jackson. Mr Khadr's white US-issue uniform conferred a status of "highly compliant" detainee. He sat quietly crouched over his paperwork carefully following all the arguments and developments in the case. Guards were posted throughout the courtroom, including the spectators' gallery.

Lt-Col Jackson told the court that, eight years ago, shortly after his capture in Afghanistan, it was men in American uniforms who tortured a confession out of Mr Khadr.

Mr Khadr alleges that he was hung up on a door frame, threatened with rape, urinated on and used by one soldier as a human mop to clean the floor. Yesterday Lt-Col Jackson told the judge, Colonel Pat Parish, that any confession Mr Khadr may have made cannot be relied upon.

At a press conference before the start of the trial, Lt-Col Jackson said the whole process was tainted with unfairness. "When Barak Obama became President we thought he was going to close the book on Guantanamo... but President Obama has decided to write the next sad, pathetic chapter of the military commissions," he told a group of journalists gathered in a former Guantanamo airfield hanger.

This view is supported by the US government's decision to press ahead with a second "war on terror" case.

A few hundred yards from the Khadr courtroom, another military commission was hearing the case against Ahmed Mahmoud al-Qosi, a Sudanese detainee who pleaded guilty last month to one count each of conspiracy and providing material support for terrorism. Qosi, who appeared unshackled in the courtroom built to try the 9/11 architect Khalid Sheikh Mohammed, was accused of acting as accountant, paymaster, supply chief and cook for al-Qai'da during the 1990s, when the terror network was centred in Sudan and Afghanistan. He allegedly worked later as a bodyguard for Osama bin Laden.

The 50-year-old from Sudan faced a potential life sentence if convicted at trial. Terms of the plea deal, including any limits on his sentence, have not been disclosed. The judge ruled yesterday that any sentence will be served in the more relaxed communal environment of Camp 4.

But it is the case of the child soldier Omar Khadr that has grabbed the attention of the world. He is youngest detainee in Guantanamo Bay, where he is charged with terrorist acts for al-Qai'da and the killing of a US Special Forces soldier. If he is convicted he will be only the fifth of nearly 800 suspects held at the infamous detention centre to be successfully prosecuted under the controversial US military commission system begun under former president George Bush six years ago. Mr Khadr, now 23, is accused of throwing a grenade that killed the US army Sergeant Christopher Speer of Albuquerque, New Mexico, during a 2002 firefight in Afghanistan. He faces a maximum life sentence if convicted of charges including murder and terrorist conspiracy.

Navy Captain David Iglesias, a former federal prosecutor and also part of the Navy's Judge Advocate General's Corps, told journalists that, if Mr Khadr is convicted of serious charges, "the government will ask for [a] life" term in prison.

But the Canadian's lawyers deny that he threw the grenade and argue that Mr Khadr should be treated as a victim rather than a combatant, as all child soldiers from the numerous conflicts in Africa are treated under international law today. Mr Khadr was badly injured after his capture, sustaining bullet wounds in his back and further injuries from an exploding grenade.

And it was while he was still fully recovering from his wounds at the Bagram Airbase in Afghanistan that he claims he was subjected to torture.

Mr Jackson told the judge yesterday: "Without question Omar Khadr was subjected to cruel, inhumane and degrading treatment... By the time he left Bagram he was broken... Broken because of the actions of people wearing uniform, like you or me."

He added: "This case goes to who we are as soldiers – [what] we have learned about what is right and wrong."

Mr Jackson then pleaded with the judge to "stand up for the rule of law". Whatever the outcome of the case, Mr Khadr feels he has been deserted by his own country.

The Canadian government has steadfastly refused to intervene in his detention and bring him home, leaving him to face the full weight of the US military law.

In May Omar Khadr wrote a letter to one of his Canadian lawyers, Dennis Edney, to say he was resigned to a harsh sentence from a system that he sees as unfair. Mr Khadr wrote: "It might work if the world sees the US sentencing a child to life in prison, it might show the world how unfair and sham this process is."

Guantanamo trials: Obama's reforms still leave concerns

The controversial system for trying Guantanamo detainees was first devised under the presidency of George W Bush.

It was set up in 2006 to try terror suspects under separate rules from established civilian or military courts. Originally, they comprised between five and 12 US serving military officers. A conviction required agreement between two-thirds of the commission. For a death sentence there had to be the unanimity all 12 commission members.

Hearsay evidence and evidence obtained under coercion was allowed if it were deemed to have "probative value". At this time "waterboarding" or simulated drowning was not classified as torture by the Bush administration.

The most famous defendant to face the tribunal is Khalid Sheikh Mohammed, the man who admitted being the architect of the September 11 attacks. But his case has been suspended.

The courts were finally struck down by the US Supreme Court, which found them to be unconstitutional. When Barack Obama was elected President in 2009 he suspended all military commissions as part of his pledge to close Guantanamo Bay. But in a shock move last year the US Government decided to resume hearings under a modified format.

Under the new Obama tribunals, statements that have been obtained from detainees using "cruel, inhuman and degrading interrogation methods" will no longer be admitted as evidence at trial. The use of hearsay evidence is limited and the accused will have "greater latitude" in selecting his counsel.

But despite these changes, Mr Obama's reforms have failed to satisfy human rights groups that they can be relied upon to secure safe and reliable convictions. The federal courts are seen as the best way to proceed to justice in the few remaining cases ready for trial.