Khadr Sentenced To 40 Years By Military Tribunal

[Sharpshooter]

And your basis is...what? I assume you were many thosands of miles away at the time, and have never actually been trained to interpret the difference....where exactly do you get your frame of reference? PLease tell me how one is to determine it, at the time, according to your world.

[Sharpshooter]

We're talking about a Canadian in Afghanistan and the protections afforded to him (or denied) by the GC. The USSC involvment is only due to US's circus treatment.

But you seem to think that the USSC is the 'Ultimate Authority' on international treaties. It is not.

[JAH]

My time and training as an officer for a Federal Law Enforcement Agency gaves me all the frame of reference when it comes to assessing criminality and noncriminality.

[Sharpshooter]

Canada will 'implement' Khadr plea deal, says foreign affairs minister Cannon

By: Mike Blanchfield, The Canadian Press

OTTAWA - Opposition critics blasted Foreign Affairs Minister Lawrence Cannon Monday for saying that the government will "implement" an agreement between U.S. military prosecutors and Omar Khadr's lawyers that calls for his repatriation to Canada in one year.

Cannon did not offer additional details on how the government would treat the controversial case if Khadr actually files an application to come back to Canada.

"The U.S. government agreed to have Khadr come back to Canada and we will implement the agreement that was reached between Mr. Khadr and the government of the United States," Cannon told the House of Commons in French.

"We will implement the agreement and we will ensure this agreement between the U.S. government (and) Omar Khadr is followed up on."

Cannon maintained that the Canadian government was not involved in Khadr's plea deal, reiterating his government's line that it was a matter between the 24-year-old Toronto man and the U.S. government.

That position continued to draw sharp criticism from federal opposition parties over the government's handling of the only Canadian and last Western national to be held at the infamous U.S. military prison at Guantanamo Bay, Cuba.

NDP MP Wayne Marston said he hoped the government keeps its word and allows Khadr to return to Canada.

"I just don't understand why the minister keeps ducking and dodging on this issue. This is cut and dried ... Mr. Khadr has been convicted," Marston told reporters. "So all we can do at this point is proceed with this deal as it has been put together by the United States and Mr. Khadr's legal team."

Liberal MP Ujjal Dosanjh said it isn't credible for the government to continue to insist it was not in discussions with the U.S. government leading up to Sunday's resolution of the case.

"Now, we know obviously it was talking to the United States government all of the time. Why did the government continue to mislead Canadians, the media and the House of Commons?" Dosanjh asked in the Commons.

Cannon replied that the chief prosecutor of the tribunal has said that the agreement was between the U.S. government and the defence.

Khadr, born in Toronto to a family tied to Osama bin Laden and al-Qaida, was sentenced Sunday to eight years for war crimes in accordance with a plea agreement, even though a military jury called for 40 more years behind bars.

The pre-trial deal also calls for Khadr to serve one more year in U.S. custody, after which he can apply to transfer to Canada to serve out the balance of his sentence under Canadian terms.

Khadr pleaded guilty to killing a U.S. Army medic, admitting he threw a grenade at the end of a fire fight in Afghanistan in July 2002. He was only 15 at the time, and human rights groups and other critics contend he was a child soldier and should never have faced the U.S. military tribunal.

Opposition parties in Canada have lambasted the Conservatives for not actively seeking Khadr's repatriation after other countries, such as Australia and Britain, sought to have their nationals brought back from Guantanamo.

Diplomatic notes between Washington and Ottawa released Sunday showed the U.S. would support the transfer, and that Canada would look on it "favourably."

[Sharpshooter]

Khadr ‘sentence’ showed tribunal’s true colours

http://www.citizen.on.ca/news/2010-11-04/Editorial/Khadr_sentence_showed_tribunals_true_colours.html

ONE OF THE BASIC RULES in the criminal justice systems of most Western nations is that everyone has the right to a trial by his peers. That was the case in the United States until then-president George W. Bush ordered a “war on terror” in response to the terrorist attack on the World Trade Center.

Now, the right continues to be enjoyed by U.S. citizens and by all but one Canadian, Omar Khadr.

Due in large part to his Toronto family’s deserved notoriety, the former child soldier became the only alleged killer of a U.S. soldier to be tried as a war criminal. and apparently the first child soldier to be convicted of the charge in more than six decades.

Instead of being tried by a jury of his peers, he was tried by a military tribunal using rules that vary markedly from those found in an ordinary criminal court, among them no need for unanimity and the ability of prosecutors to adduce confessions obtained through what most of us would see as torture.

In hopes of exposing the total absence of justice in the circumstances, the U.S. government negotiated a plea agreement under which Mr. Khadr, now 24, will apparently have to spend only one more year at Guantanamo Bay in addition to the eight already spent. By the end of 2011 he will be repatriated and potentially paroled after spending no more than about five years in a Canadian penitentiary. (For inmates who behave themselves, full parole can be achieved after one-third of the sentence and day parole about six months earlier than that.)

The “fairness” of the military tribunals was fully demonstrated by the 40-year sentence called for by the panel, 15 years longer than the 25 proposed by the prosecutors.

Under the plea deal, Mr. Khadr pleaded guilty to five war crimes charges brought by the U.S. military, including killing Sgt. 1st Class Christopher Speer in Afghanistan in July 2002, when he was 15 years old.

The sentencing panel was not told about the plea deal before it deliberated nearly nine hours over two days at the U.S. naval base.

The panel of three female and four male U.S. military officers returned its decision Sunday afternoon after asking the military judge to replay testimony from defence witness Capt. Patrick McCarthy, who interacted extensively with Khadr and found him friendly, non-radical and believed he could be rehabilitated.

Not surprisingly, Mr. Khadr’s Canadian lawyer Dennis Edney says justice was not served in this case.

“The fact that the trial of a child soldier, Omar Khadr, has ended with a guilty plea in exchange for his eventual release to Canada does not change the fact that fundamental principles of law and due process were long since abandoned in Omar’s case,” he said.

“In exchange for repatriation, Omar was required to sign an admission of facts which was stunning in its false portrayal of him.”

The federal government hasn’t said yet whether it will repatriate Mr. Khadr, insisting that it didn’t interfere in a judicial matter that was between him and the United States. A Foreign Affairs spokeswoman said Mr. Khadr will be treated like any other Canadian who applies for a prison transfer.

“The decision on any potential transfer will be made in accordance with current law,” she said. “No decision can be made until an application is received.”

The comments were made before the diplomatic notes were disclosed showing that Canada was aware of the plea deal.

As might be expected, the long sentence called for by the panel was welcomed by Sgt. Speer’s widow.

“Today is a huge victory for my family ... and for hundreds of families out there,” said Tabitha Speer.

The prosecution said the panel’s proposed sentence sent a message both to Mr. Khadr and to terrorists around the world, but defended the plea deal as the best way to bring a definitive end to the case.

“What this represents to the government is the certainty of a conviction, it represents the end of a case that spans five years,” said Capt. John Murphy, chief of prosecution for the military commission. “It ends all appeals. This case is over.”

Among other things, Mr. Khadr, as part of the agreement, waived his rights to appeal or to take action against the U.S. As part of the deal, he pled guilty to murder and four other charges, including attempted murder, conspiracy, providing material support to terrorists and spying.

According to a document listing facts in the case, he threw a grenade at the sergeant following a firefight between al-Qaeda operatives and U.S. forces in Afghanistan on July 27, 2002, in which he was badly wounded.

Canada has signed the UN Convention on the Rights of the Child, which is designed to protect child soldiers from prosecution.

In the circumstances, it will be interesting to see where Mr. Khadr is jailed and whether he will be given any chance to fulfill his stated desire of becoming a doctor.

[Wetcoaster]

'Actually, it is a law enforcement operation, being carried out by a military force.'

No it is not. It is a military one, authorized by the UNSC through dozens of Resolutions, and passed off to NATO for the actual execution of the mission. This is not a police action.

'Ironically, the "War" on Terror was always an international law enforcement matter unitl the Bush Administration got their grubby little paws on it.....then it became a "WAR ON TERROR"'

Agreed. When have I suggested otherwise? The 'War on Terror' (stupid term) has many aspects. Law Enforcement, diplomacy, Military operations, etc. This happens to be one of the military operations.

[Sharpshooter]

The Betrayal of Omar Khadr and of American Justice

by Andy Worthington

Khadr's guilty plea enables the Obama administration to disguise the many fundamental flaws with the Military Commissions, which might have been exposed during a trial.(Courtroom sketch by Janet Hamlin courtesy of Janet Hamlin Illustration.)

According to an article in the Miami Herald, drawing on comments made by "two legal sources with direct knowledge" of the deal, Khadr said he "eagerly took part in a July 28, 2002 firefight with US Special Forces in Afghanistan that mortally wounded Sgt 1st Class Christopher Speer." This was the crux of the case against him, and a charge that he had always previously denied. He also said that he had "aspired as a teen to kill Americans and Jews," and described his father, Ahmed Said Khadr, who had been responsible for taking him on numerous visits to Pakistan and Afghanistan as a child, leading to the events on the day of his capture, as "a part of Bin Laden's inner circle, a trusted confidant and fundraiser."

Khadr's plea was submitted to the judge, Army Col. Patrick Parrish, by his military defense lawyer, Army Lt. Jon Jackson, and Col. Parrish made sure that he knew what he was doing as he ran thought the charges. "Yes," Khadr replied. "You should only do this if you truly believe it is in your best interests," Col. Parrish then told him. "Yes," Khadr replied again. According to the Miami Herald, his voice was "a near whisper," but became stronger as Col. Parrish read out the charges.

As the Globe and Mail described it, Khadr "assented to knowing that he was attacking civilians, that he wanted to kill US troops, that he planted mines and that he received one-on-one terrorist training from an al-Qaeda operative." He also agreed that he was a member of al-Qaeda, and was an "alien, unprivileged, enemy belligerent," who was "unqualified therefore to shoot back or engage in combat hostilities with US or other coalition forces," and also said that he understood that he was guilty of "murder in violation of the laws of war."

For the United States, the plea deal means that a trial has been avoided, dimming the glare of the global media spotlight on the embarrassing prospect of the first war crimes trial of a child soldier since the Second World War. Instead, according to the Military Commission rules, a limited amount of evidence will be submitted this week including testimony from Tabitha Speer, the widow of the Special Forces soldier killed by the grenade in the firefight that led to Khadr's capture, and statements by mental health professionals for both the prosecution and the defense before a seven-member military jury will deliver its own sentence. As the details of Khadr's plea deal have not been made public, this strange formality (which involves a sentence without a trial) will only mean anything if the jury delivers a less severe sentence than the one negotiated in secret.

This, however, is not the main problem with yesterday's outcome, which blurs the parameters of justice horribly, creating the impression that Khadr is guilty, even though he may only have agreed to confess in order to secure a favorable sentence. This is something that Daphne Eviatar, an observer for Human Rights First, noted in an excellent article in the Huffington Post, when she explained that "it was clear that prosecutors had taken the opportunity to throw the kitchen-sink-full of charges at him including far more crimes than he'd even been charged with. Most importantly, Khadr pled guilty to killing two Afghan soldiers who accompanied US forces in the 2002 assault on the compound. The government has never presented any evidence whatsoever that Khadr was responsible for that, and did not claim he was in its opening statement at trial."

In addition, Khadr's guilty plea enables the Obama administration to disguise the many fundamental flaws with the Military Commissions, which might have been exposed during a trial.

Because Khadr's plea deal is presumed to stipulate that he cannot appeal, the administration will be able to tell the world that the Commissions are "fair and just," although they are no such thing. One problem, of course, is that a former child prisoner has been subjected to a trial after eight years of imprisonment in an experimental prison devoted to arbitrary detention and coercive interrogation, when he should have been rehabilitated, according to the UN Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (which the US ratified in December 2002), but another concerns the nature of the crimes to which he confessed.

This second problem which focuses on the fundamental legitimacy of the Commissions was illustrated starkly in the Globe and Mail's description of how Khadr agreed that he was an "alien, unprivileged, enemy belligerent," who was "unqualified therefore to shoot back or engage in combat hostilities with US or other coalition forces," and also how he reportedly understood that he was guilty of "murder in violation of the laws of war."

Back in April, Lt. Col. David Frakt, a law professor and the former military defense attorney for two other Guantánamo prisoners, Mohamed Jawad and Ali Hamza al-Bahlul, spelled out the problems with these charges in no uncertain terms. Writing of the central charge of "murder in violation of the law of war," Lt. Col. Frakt explained that, even if Khadr did throw the grenade, "there is no evidence that he violated the law of war in doing so."

As I explained in an article about Khadr two months ago, he added that "the confusion arose initially because the Bush administration wanted to find a way to ensure that 'any attempt to fight Americans or coalition forces was a war crime,' and that Congress, in enacting two pieces of legislation relating to the Military Commissions in 2006 and in 2009, maintained this unjustifiable position by refusing to distinguish between legitimate and illegitimate actions during wartime."

Lt. Col. Frakt also explained that the Bush administration's original invented charge for the Commissions "Murder by an Unprivileged Belligerent" was, essentially, replaced by the Congress-endorsed "Murder in Violation of the Law of War," even though it "conflated two different concepts unprivileged belligerents and war criminals."

He continued:

Under

Article 4 of the Geneva Prisoner of War Convention

it is clear that while a member of an organized resistance movement or militia may be an unprivileged belligerent (because of not wearing a uniform or failing to carry arms openly, for example) he may still comply with the laws and customs of war, so not all hostile acts committed by unprivileged belligerents are war crimes. Attacks by unprivileged belligerents which comply with the law of war (in that they attack lawful military targets with lawful weapons) may only be tried in domestic courts. In Iraq, for example, insurgents who try to kill Americans by implanting roadside bombs are properly arrested and tried before the Central Criminal Court of Iraq as common criminals. Attacks by unprivileged belligerents which violate the law of war, such as attacks on civilians or soldiers attempting to surrender, or using prohibited weapons like poison gas, can be tried in a war crimes tribunal

.

With Khadr's plea deal, the uncomfortable truth about the Commissions that they have been established to try non-existent war crimes has been swept aside as thoroughly as it was in the case of Ibrahim al-Qosi, who accepted a plea deal in July. As a result, Omar Khadr may have taken the only realistic route open to him, but the price has been the apparent validation of a fundamentally lawless process, which could have been legally challenged had he been subjected to a full trial.

Back in July, Omar Khadr refused to accept a plea deal, and, in a letter to Dennis Edney, one of his Canadian lawyers, wrote, "there must be somebody to sacrifice to really show the world the unfairness [of the Commissions], and really it seems that it's me." It is understandable that faced with an eight-year sentence, or the possibility of a life sentence in exchange for a "sacrifice" Khadr chose the former option.

However, it remains deeply depressing that the Obama administration will be able to maintain the fiction that the Military Commissions are capable of delivering justice, and also that it now appears to be irrelevant that Khadr was a juvenile prisoner, subjected to horrific treatment, because he has conceded, in circumstances that may not have been conducive to telling the truth, that he was in fact a terrorist.

http://www.commondre...ne/2010/10/26-5

Seems like the truth is starting to catch on. A good sign...perhaps some here will partake in it as well. We can only hope.

[Sharpshooter]

Gitmo Guilty Plea Is a Sad Day for U.S. Rule of Law

Daphne Eviatar

Senior Associate in Human Rights First’s Law and Security Program

This morning I sat in a U.S. military commissions courtroom in Guantanamo Bay, Cuba, and watched the first child soldier charged by a Western nation since World War II plead guilty to crimes he was never seriously accused of. If the guilty plea of Omar Khadr this morning was a face-saving effort by the U.S. government, it was a sad day for the rule of law in the United States.Omar Khadr is the 24-year-old Canadian who's spent a third of his life in U.S. custody without trial after being accused of helping his father's al Qaeda associates build improvised explosive devices when he was just 15. He was taken to Afghanistan from Canada by his father at the age of nine. The lone survivor of a 2002 U.S. assault on an Afghan compound, Khadr was accused of throwing a grenade that killed a U.S. soldier.

But as he entered his guilty plea this morning -- after the government agreed he'd serve just one more year at Guantanamo Bay, and an as-yet-unspecified number of years in Canada -- it was clear that prosecutors had taken the opportunity to throw the kitchen-sink-full of charges at him - including far more crimes than he'd even been charged with. Most importantly, Khadr pled guilty to killing two Afghan soldiers who accompanied U.S. forces in the 2002 assault on the compound. The government has never presented any evidence whatsoever that Khadr was responsible for that, and did not claim he was in its opening statement at trial.

That Khadr pled to this and the range of other charges that the government first unveiled today (details will not be available until the military commissions publicly release the stipulation signed by Khadr tomorrow) is hardly surprising. Ever since Judge Patrick Parrish ruled that Khadr's statements made to interrogators after he was threatened with gang-rape, coerced and possibly tortured were admissible, his defense was sure to be challenging. Although the government did not appear to have any forensic or eyewitness testimony to support its murder charge, government interrogators planned to testify that Khadr had willingly told them that he threw the grenade that killed Sergeant First Class Christopher Speer. Whether he said that because it was true, or because he was a scared and wounded 15-year-old expecting a quick release for telling his interrogators what they wanted to hear, we'll never know. (Khadr was shot multiple times and severely wounded in the firefight, which left him blind in one eye; he still has shrapnel in the other.)

Khadr's sentencing hearing begins tomorrow. Although the plea agreement contains a recommended sentence (news reports have said it's 8 years total) that deal will remain secret until the military commission sworn to act as a jury in this case issues its own sentence based on live testimony. The government will present witnesses to describe the effects of improvised explosive devices, and the testimony of Sergeant Speer's widow about her loss. Khadr's lawyers will put forth psychological and psychiatric experts to talk about the impacts of torture on him and likely about the ability of a 15-year-old youth to appreciate the wrongfulness of his acts, particularly when they were directed by the adults around him.

But all of this is hardly a vindication of the U.S. military commission system. After the plea was entered this morning, chief prosecutor Captain John Murphy told reporters that Khadr "stands convicted of being a murderer and also being an Al Qaeda terrorist" based on "his own words."

To be sure, Judge Parrish took pains today to ask Khadr if he was entering his guilty plea knowingly, and with full understanding of the consequences. Khadr nodded and quietly answered "yes." But in truth, he had little choice. If Khadr had gone to trial, he faced a potential life sentence from a military jury, who would hear how he "confessed" to the crimes in interrogations. He could have faced many more years in prison. What's more, the U.S. maintains the right to indefinitely detain him even if he was found not guilty. Ironically, all but one of the other four detainees found guilty in military commissions have gone home, while dozens of remaining Guantanamo detainees who have never been charged with a crime continue to languish.

For Khadr, then, today's guilty plea was probably the right choice. His Canadian lawyers will have grounds to challenge his sentence as unlawful as soon as he's transferred to Canada. (The "diplomatic notes" reached between the U.S. and Canadian governments that will likely allow his transfer after a year in U.S. custody are still secret but will be released with the plea agreement after the commission members recommend their sentence.)

For the U.S. government, the guilty plea was a way to save face. After all, the Obama administration knew that it was a political embarrassment for its first military commission trial to be of a child soldier - a contradiction of its obligations under international law to rehabilitate child soldiers rather than punish them. The administration also knew that the charges against Khadr were all legally dubious - invalid under international law and a violation of the ex post facto clause of the U.S. Constitution. Khadr's guilty plea allows them to rack up another "win" for the military commissions, pushing the total to a whopping five convictions in the last eight years. By contrast, U.S. civilian federal courts have convicted more than 400 terrorists in that same time period. This doesn't exactly tip the balance.

Still, no matter how you look at it, this plea makes a troubling statement about the United States' respect for the rule of law. Although as part of his plea agreement Omar Khadr has waived his right to appeal his conviction or to sue the United States for his confinement or treatment, a dark cloud continues to shadow this case. That cloud will continue to conceal the truth about Omar Khadr's treatment at the hands of his U.S. interrogators; and it will ensure that the validity of his conviction, and the integrity of the military commissions themselves, remain in doubt.

http://www.huffingtonpost.com/daphne-eviatar/gitmo-guilty-plea-is-a-sa_b_773549.html

Canada's chance to save some face will come next year when hopefully the Supreme Court of Canada gets their mits on this joke of a gov't. I have faith at least in that much.

[Sharpshooter]

Omar Khadr's tragic saga

By Bruce McLeod, Special to The Windsor Star November 4, 2010 2:07 AM

The tragically sad saga of Omar Khadr should tug at the heartstrings of every Canadian. At 15 years of age, this Canadian citizen, in Afghanistan not by choice but because that was where his father had taken him, was grievously wounded when he and others said to be terrorists were savagely attacked by U.S. forces.

The only survivor of this action, he was taken by the soldiers to a field hospital where an assessment concluded he'd not likely live. However, the efforts of skilled physicians saved his life.

One of the soldiers apparently then alleged that he'd seen this "young terrorist" throw a grenade that killed a U.S. combatant. As a result of that charge, this wounded child was taken to notorious Bahgram Prison placed in isolation confinement; there he was threatened and tortured by U.S. military and CIA interrogators (a fact openly admitted by U.S. authorities and supported by videotaped evidence) trying to elicit an admission of his guilt in the slaying of one attacking U.S. soldier.

The chronicle of his savage treatment and torture is well-documented in writing and photos and supported by recordings made during visits made to him by U.S. and Canadian authorities. One of his interrogators having left the U.S. military was interviewed by a Canadian journalist and told how it had deeply affected him having brutally treated this obviously vulnerable young man.

Omar was led to believe that interviews with Canadian officials were for his support and good; these were later learned to have been only to assist the U.S. interrogators efforts to get a confession from him.

Omar Khadr was transferred with so many others from Afghanistan to the U.S. Military Prison in Guantanamo, Cuba and held now for a total of eight years.

Why to this base on foreign soil? If he had been taken to the United States (or Canada, or almost anywhere else in the world) he would have been released in a moment because of his status as a "child."

The U.S. base in Cuba seems to have some "special standing" in U.S. law, almost like no rules in the world apply to what the United States decides to do to people there.

So, they held him there for 2,500 days, against all the UN Conventions that prohibit this treatment of anyone that age and specifically of a so-called "child-soldier."

They beat him, made him stay awake without food or water for up to four days at a time and held him in isolation all that time. The interrogator interviewed admitted that he'd told Omar savagely that if he did not confess they would kill his mother and sister!

Oct. 25, 2010, after 8 long years Omar Khadr pleaded guilty before a contrived military court in Guantanamo, Cuba to all the charges they came up with.

Why did he finally yield to the relentless pressure? I can only imagine what motivated him, run down, desperate, without having seen or been with anyone who loves him all this time, abandoned finally at this last instant of hope by the Canadian government and people ... just finally wanting it all over with, no more waiting or harassment or being abused and neglected.

At last this child may have a chance after even more deprivation of his freedom to return at last to the land of his birth, to his mother and sister, to the country that abandoned him entirely

Read more: http://www.windsorst...l#ixzz14IfuhmIn

[JAH]

There is the fundamental flaw in your position and where this whole process went completely off the rails and became a travesty.

Once the firefight had concluded with the capture of a 15 year Canadian citizen child soldier the military operation was complete. This matter should have been placed in the hand of civil authorities for investigation and prosecution. Instead the US invented definitions of persons to be charged and crimes unknown to international law to justify an illegal military tribunal system and put it out of the reach of civil courts to the greatest extent possible.

Once it decided the military would handle this, it was just another military operation in the War On Terror - so then the means justified the ends - you had denial of the right to counsel, no habeas corpus, abuse, torture, coerced confessions, bizarre legal definitions being created to fit a bizarre system not meant for such a purpose in the first place, exculpatory evidence being withheld from defence counsel, no right to a fair, just and speedy trial, unlawful detention, rules of evidence being ignored, etc.

As retired Rear Admiral John Hutson, who served as a Judge Advocate in the United States Navy from 1973‐2000 and as the Judge Advocate General of the Navy from 1997‐2000 said in his testimony to the Senate Armed Services Committee on July 7, 2009:

Let us not forget, these are not legitimate warfighters. They are common criminals. They are thugs, cowards who target innocent civilians. We should treat them as such and not elevate their status to that of legitimate enemies.

We don’t ask DoJ to fight wars. We shouldn’t ask DoD to prosecute terrorists.

As he said while the US Military could handle a limited prosecutorial role quite ably related more to internal military discipline, this was a process beyond its scope and abilities and as a result the military lost focus on its core role:

I was an early and ardent supporter of military commissions. Initially, I was drawn to their historical precedents and, more importantly, I was confident that the United States Armed Forces could and would conduct fair trials even of reprehensible defendants. My own experience gained during 28 years in the Navy and our long history of providing due process while trying our own military personnel in courtsmartial gave me this confidence.

Unfortunately, as it turned out, the commissions that were created did not live up to the traditions of the Uniform Code of Military Justice. Predictably, they became a significant distraction for the military. I hasten to add that this was in spite of the stalwart, honorable effort of many, many military personnel themselves. Indeed, that is one of the great tragedies of this saga, and largely makes one of the points that I wish to underline.

The primary role of the military is to fight and win our Nation’s wars or, stated more precisely, to provide the time and space necessary for real solutions—economic, cultural, social, religious—to take place. Prosecution of miscreants is an occasionally necessary sidebar to that mission but shouldn’t distract from it.

We have the UCMJ and the military court‐martial system to expedite the legitimate role of the military, not interfere with it.

If a sailor on a ship is alleged to have committed a crime, we must expeditiously and fairly resolve that problem. Otherwise, it can fester and interfere with unit cohesion and impede an effective fighting force. The UCMJ and the Manual for Courts Martial serve that purpose alone. They solve problems for the armed forces; not create them. Our recent history with military commissions has been the opposite. I’ve come to realize that even a perfect commission regime would be a distraction for the military. It’s simply not part of its mission. I am very concerned when the military is called upon to perform functions outside of its core mission

...

There are valid and important reasons why our military is the most highly respected institution in America. One of them certainly is that the military limits itself to its mission and performs that mission very well. Taking on duties outside of that core mission on an ongoing basis will surely undermine the public’s confidence in the military…and divert important resources, human and otherwise, from that mission in order to take on the new one.

We already have proof of this. Besides being a distraction to the vital mission of DoD, military commissions have, to a large extent, become a discredit in spite of the valiant and highly credible efforts of many, many people in uniform. Rather than showcasing the military justice system of which we all are justifiably proud, commissions represent something else entirely.

As Admiral Hutson noted there are already institutions in place to deal with terrorists with a proven track record - the civil authorities backed by the US Federal Courts and the military could never hope to approach that level of civilian expertise and experience.

On the other hand, during the same period, U.S. District Courts have successfully prosecuted literally hundreds of terrorists who now reside in Federal prisons around the country, keeping all Americans safer. Federal courts, including judges, prosecutors, marshals, and other court personnel have decades of experience in these cases. They have developed a justifiable and universally held reputation for fairness, and consequently, they are largely immune to criticism.

There is also now a large body of law that has been developed over the years in the Federal court system. It would take an equal number of cases and decades of trials for DoD to match the Federal precedent contained in the Federal Reporters.

Military judges, prosecutors, and defense counsel rotate out of one assignment into another every three years or so. Without significant changes to longstanding DoD personnel policy, none of them will ever, ever gain the experience in these cases that is enjoyed by scores of their civilian federal counterparts.

We could do that, we could change longstanding DoD personnel policy but again, if we did we would have the tail of terrorist prosecutions wagging the warfighting dog.

It is not only unnecessary, it is inappropriate for DoD to operate a system of justice in parallel to DoJ. The UCMJ and the courts‐martial it creates are absolutely necessary to ensure our effective fighting force. But for some of the same reasons that the Posse Comitatus Act prevents the military from enforcing laws against U.S. civilians, we should resist the temptation of using the military to prosecute foreign criminals when DoJ can perform that critical function quite well.

However then Admiral Hutson laid out what I view as the true political reason for way in which international law and military law was twisted to create these illegal military tribunals:

If the point of this exercise is to create a court system that will ensure convictions of alleged terrorists against whom we don’t have sufficient admissible evidence, then we have missed the point. You can’t have a legitimate court unless you are willing to risk an acquittal. If you aren’t willing to accept the possibility that a jury will acquit the accused based on the evidence fairly presented, then it isn’t really a court. It’s a charade.

The corollary to that is that you can’t have a real court if the rules of evidence and procedure are so stacked against the defendant that he has no real chance to present his case or defend against the government’s case. The admissible evidence against him based on the facts may be so overwhelming that conviction is assured but that must be the consequence of facts, not rules of evidence tilted in favor of the prosecution.

And as both former military prosecutors and defence counsel have pointed out in detail (see post #583) - that is precisely the system that was in place at Guantanamo Bay and resulted in a coerced confessions and a coerced guilty plea from Omar Khadr. As Admiral Hutson points out this is not a real court... a legitimate court - it cannot be so under these abhorrent conditions.

Admiral Hutson knows military law as he has lived and breathed it - you clearly do not. They may well be (and most likely are) as he describes - "common criminals... thugs, cowards" but the critical point is that they are CIVILIAN "common criminals... thugs, cowards" and as such should be taken before the civil courts. That is the fundamental mistake in this whole sorry affair.

That is why this never should have been a military law matter - it was a civil law enforcement matter for the civil courts that got trapped in an Alice in Wonderland- like system dreamt up by the Bush Administration that just became curious and curiouser as each more fantastical definition or crime was created.

[JAH]

Can we stop with the spam articles? One is enough.

[Sharpshooter]

Can we stop with the spam articles? One is enough.

[GarthButcher]

Those are some good articles. Thanks. The international media has been alarmingly silent on this issue. Mainstream US press has reported it largely as an admission of guilt on the part of Khadr, in a 'we got him' mentality. They quote the biased sources such as the victim's family and skewed prosecutors, and lackeys for the military.

It's a sad state if the US and Canadian government can dodge this farce by simply trying to sweep it under the rug. Of course, the US populace is largely asleep at the wheel when it comes to matters of substance which its government is dealing with. But I will be outraged if the Canadian government is not held to account for openly lying about its role in the plea deal. That is insulting to the intelligence of Canadians, although that seems to be the platform the cons run on.

It's interesting what you say Jah, about the role of the integrity of the soldier in upholding the rights and wrongs in the battlefield. The challenge I have with that is, not a single family member, acquaintance or friend of mine has ever joined the military or law enforcement in Canada. The concept of wanting to kill for the state is completely foreign to me. We are raised in Canada with this rah rah military mentality (which really bothers me on Coach's Corner by the way, as I tune in for hockey news, not war propaganda) fuelled by glorious world war II stories and the like.

While I'm not going to say that all soldiers and police are in the wrong for wanting to kill for the state, it is a very foreign mentality to anything I've every known or experienced. Having spent a great deal of time in countries that have been victims of western military aggression (ie. Viet Nam, Cambodia, Laos, and many others), I have seen first hand the heavy price people in the countries occupied pay for generations as a result of these power games of the heads of states.

So I am predisposed to not supporting military occupations of foreign lands on the part of Canadian forces. It's not the image of Canada that I was raised to be proud of.

The Khadr case points the the inherent hypocracy of this type of activity. We send our soldiers to foreign countries to kill based on some political justification. Then we hold the locals in contempt when they fight back (although Khadr has not been proven to have committed any illegal act).

If, heaven forbid, Canada was ever invaded, most of us would run to the protection of our military. That is what they are for. Imagine how the Afghan locals feel when they have foreign troops using lethal force in their country.

Consider if the Iranian army (or any for that matter) was storming a house in Penticton, shooting the place up, and some 15 year old kid was accused of shooting back. Imagine he was taken to some third country, and accused of violating the Iranian "laws of war". Imagine how we would react to that.

That is, in effect, what has happened to poor Mr. Khadr.

[GarthButcher]

Question to those in the know:

Will the Supreme court of Canada overturn his sentence once he arrives?

According to our laws, his rights have been trampled on. If someone were found guilty in some court in North Korea, then transferred to Canada, we wouldn't enforce the sentence would we.

But if the Cdn gov't was a party to the deal, have they agreed to enforce the sentence? Could that put the cons in trouble for violating the charter?

If that's the case, will the mainstream cdn public wake-up from the political snooze for long enough to notice?

Many questions.

[JAH]

It's interesting what you say Jah, about the role of the integrity of the soldier in upholding the rights and wrongs in the battlefield. The challenge I have with that is, not a single family member, acquaintance or friend of mine has ever joined the military or law enforcement in Canada.The concept of wanting to kill for the state is completely foreign to me.

[Sharpshooter]

Except that Khadr was not an Afghan, was not adhering to the rules of war, and the ideology of the group he fought for is one of oppression and subjugation backed by rape, murder, mutilation, and kidnapping. BUT, what happened after he was captured is not right.

[inane]

I love how you cling to this 'rules of war' bs. This isn't the 1800's where everyone lines up in a nice row and shoot each other after formally declaring war on each other.

No one is at war with anyone anymore. It's just 'engagements' with 'coalitions' or whatever bs terminology you want to use. The rules don't apply if you don't declare war.

[JAH]

I love how you cling to this 'rules of war' bs. This isn't the 1800's where everyone lines up in a nice row and shoot each other after formally declaring war on each other.

No one is at war with anyone anymore. It's just 'engagements' with 'coalitions' or whatever bs terminology you want to use. The rules don't apply if you don't declare war.

[JAH]

At least here's one place we can find a common place of footing to both stand on and agree upon. It's a start, perhaps.

[inane]

So you'd prefer no rules?!

The rules are there to protect the soldiers and the civilians. Without them, an already horrific situation (armed conflict) would be exponentialy more barbaric.

The Laws of War are actually derived on the old 'Gentleman's Code' that were observed (but not written) in centuries past. As time went on, Generals found justifications for violating them in the drive to win. With the advent of weapons (and tactics to a lesser extent) that could kill with greater efficiency and range, it became possible for a relatively small force to kill 10, 100, or 1000 times it's numbers in a single engagement. Some examples are the machine gun, the fragmenting artillery bomb, concertina wire, the landmine, and at the extreme end nuclear weapons. Prior to this, a General more or less had to accept losses equal to that of his foe, and atrition limited the numbers he was willing to commit. Following WW1, where the barbarism hit new heights (lows?) and losses on all sides (military and civilian) were unacceptably high, the world leaders got together and started to formalize the rules of war that were once followed but were no longer adhered to.

This is not 'bs', despite your assertion to the contrary.

editted to add: the Laws of War apply in every armed conflict, regardless of the presence or absence of a formal declaration of war.