When Attorney General Eric Holder Jr. announced last fall that he planned to try Khalid Sheikh Mohammed in a civilian court in New York, he was met with a firestorm of criticism. Despite the fact that hundreds of terror suspects have been tried and convicted in U.S. courts, Republican opponents spun out a thousand reasons for treating Mohammed differently: his trial would create a target in New York City that would demand millions of dollars in security measures; he would use the proceedings as a means of spreading jihadist propaganda; he shouldn't be entitled to the constitutional rights and protections afforded U.S. citizens. In short, KSM became the poster boy for a man too dangerous for the law. In March the White House indicated that a decision on Mohammed's trial was weeks away. Months later the administration is still mulling.
So instead of subjecting the so-called worst of the worst to a military tribunal, last week the Obama administration fired up the old system in order to try a child soldier. Omar Khadr is everything we shouldn't be trying before a military commission. At 23, he is the youngest detainee of the 176 remaining prisoners at Guantánamo Bay. He's been there for eight years. As a Canadian citizen, he is the only Westerner there. Khadr is charged with being an "unlawful enemy combatant" (later changed to "unprivileged enemy belligerent"). At 15, he allegedly threw the grenade that killed Special Forces Sgt. Christopher Speer in Afghanistan. Under international law, children captured in combat are to be treated as victims, not soldiers, and their captors are meant to rehabilitate and repatriate them. Then there's the question of physical abuse: Khadr's attorneys say the prosecutors have relied on confessions extracted after Khadr was coerced, abused, and threatened with gang rape by military interrogators. Last week the military judge in the case decided to allow Khadr's statements to be admitted, and they make up the bulk of the evidence against him.
Nobody disputes that there should be consequences for a teen who throws a grenade on a battlefield. The question is whether a lifetime in prison, after what must have felt like a lifetime at Gitmo, is proper.
Child soldier, Westerner, plus torture. It's why ACLU staff attorney Ben Wizner describes the case as "the perfect storm of what's wrong with the military-commission system."
In 2005 the Bush administration decided to press forward with this case because it felt it would be "easy" to prove. Last November President Obama—who campaigned against the use of military commissions and promised in January 2009 to shut down Guantánamo Bay—opted to put Khadr on trial to showcase the new and (slightly) improved military commissions that refined some aspects of the original ones but still permit, for instance, the use of hearsay testimony. It's unclear how the commissions are to be shown to their best advantage with the trial and conviction of a marginal fighter who was likely coerced both by his father (into jihad) and by Americans (into confessing). If the point of this first commission of the Obama administration was to highlight evenhanded American justice, beating up on a Canadian teenager and then beating on him some more (through the justice system) is probably not the best way to do it.
Perhaps unsurprisingly, Americans have tuned out the Khadr trial just as the rest of the world has tuned in. The foreign papers have followed every motion and argument in this proceeding; for them, Guantánamo Bay is as much a stain on Obama's foreign policy as it was on Bush's. But for Americans, Gitmo is an antique. What happens there stays there, and thank goodness we don't have to think about it. We continue to use arguments about key players in the 9/11 attacks to shore up a system that has only ever been used against the cannon fodder. In the eight years since we first invented the military-commission system at Guantánamo, only four terrorists have been convicted (two in trials), and two are now free.
The sad coda to the whole U.S. misadventure at Guantánamo is that we built a prison there for the people who most terrified us, then used it to terrorize people who didn't much matter. We built it to hold people too dangerous to be brought stateside, then used it for people too embarrassing to let go. For years now we have heard that Gitmo was a legal black hole, but that doesn't quite capture the full tragedy of the place: it's also become a memory hole, a place into which America has poured all the evidence of a lawless, hysterical period so we can turn the page and forget it.
Note: After this story was originally published, Khadr's defense counsel, Jon Jackson collapsed on Aug. 12 while questioning a witness and had to be airlifted back to the United States for treatment. There will be at least a 30-day delay in the proceedings.
