No Comment — November 9, 2010, 4:19 pm

Political Justice

The New York Times sounds an appropriate note of warning about the flawed disposal of the Military Commissions case against child warrior Omar Khadr:

In reaching a plea deal to end the prosecution of Omar Khadr, a former child soldier held at the Guantánamo Bay, Cuba, detention center, the Obama administration achieved its political goal of avoiding having this disturbing case be the first to go to trial under its revamped military commissions. But this is not a legal victory anyone can feel proud about.

Mr. Khadr, a 24-year-old Canadian, was captured in Afghanistan when he was 15. He was thrown into armed conflict by his Al Qaeda-linked father, who was killed by Pakistani forces in 2003. As part of the plea deal, Mr. Khadr admitted that he threw a grenade that killed an American soldier during a 2002 firefight and that he planted roadside bombs. In exchange, his sentence was capped at eight years. After a year, he will be allowed to transfer to Canada to serve the remainder of his term. It is hard to know what to make of Mr. Khadr’s admission of guilt. It may be truthful or driven by a fear that going to trial would mean a life sentence.

In a presentation earlier this year, I called the Khadr case a prosecutorial nightmare and strongly advocated a plea bargain as a suitable conclusion to the case. That’s what ultimately happened. Khadr will receive a sentence of eight years and will be transferred to Canada after the first year. Although nations usually hold their nationals under prisoner transfer agreements without legal challenge, the present case is extraordinary—in part because the Canadian courts have already characterized the Guantánamo process as fundamentally flawed and concluded that his basic rights were seriously violated. In his case, like that of Australian David Hicks, tried in Guantánamo three years ago, he may wind up being freed early. That’s not unreasonable, since the sentence is eight years, and he’s already served more than that time, part of it under conditions that even one of his jailers agreed were grossly inhumane.

The sentence component of the plea bargain strikes me as at least within striking distance of justice. Khadr is, notwithstanding his theatrical guilty plea, almost certainly innocent of the main charge leveled against him—lobbing the grenade that killed an American soldier. But he is almost certainly guilty of engaging in other violent acts against the Americans for which charges might well be warranted (even if better tried in a criminal court rather than as war crimes).

The real offense here is against the American public and America’s reputation for justice. Plea bargains are the cornerstone of the American criminal justice system. They are also increasingly an embarrassment: producing innumerable convictions of innocent persons, while allowing the guilty to escape with punishments far milder than they deserve. They are the hallmark of a dysfunctional prosecution system. The Khadr plea bargain magnifies the flaws of this system exponentially, and the real victim is the American public, which was subjected to a show trial (as Tony Keller wrote for Canada’s National Post). This was designed to give Americans the false sense that the Guantánamo justice system was working, when in fact it is collapsing. The Khadr plea bargain probably averted gross injustice, but it placed a further strain on the nation’s reputation for justice.

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