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How Omar Khadr’s military commission ends: with an eight-year plea deal… and a 40-year sentence that the commission’s members decided that Khadr should serve but won’t.
According to the Department of Defense, here’s how it’s most likely to actually play out in Canada, where Khadr will serve out his time after another year at Guantanamo Bay:
In these circumstances, the [U.S. government] understands and acknowledges that Khadr would be eligible to apply for parole in Canada after serving one-third of his sentence, and may be eligible for statutory release in Canada after serving two-thirds of the time remaining after his return to Canada.
As best I can understand it, the logic here is that the commission members want to go on record as stating that Khadr ought to have gotten 40 years for throwing the grenade that killed SFC Christopher Speer and helping plant IEDs in Afghanistan. But doesn’t that then stand as an implicit criticism of the Office of Military Commissions for negotiating Khadr’s plea deal? If this is ultimately an attempt by the government to save face for detaining and sentencing someone who was 15 years old at the time of his crimes, it’s not the most intuitive method. What am I missing?
Update: Don’t miss Moe Davis, who used to be the chief military-commissions prosecutor, responding to this post.
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This is where lawful and unlawful combatant status would seem to loom large. I was never much for the distinction, but it would seem to me intuitive that how under the LAC one would treat a fifteen year-old lawful combatant taking lawful actions of warfare against other lawful combatants on a battlefield would be very different from how one would treat a fifteen year-old unlawful combatant taking violent criminal action against lawful combatants. If the latter is the correct understanding, if not detention and military trial, what then was the way said fifteen-year-old was to have been treated under the law?
It occurred to me over the weekend that, if only the participants were different, Omar Khadr would be a hero to the hardcore American Political Right, rather than a villain. A kid, defending his home and family against overwhelmingly more powerful foreign invaders, using small arms and knowledge of the terrain something something something…
WOLVERINES!!
mikey
Might may not make right, but where pure dominance of the force of arms is in question it makes such law as there is. Who can tell me how international law advocates propose to distinguish in theory and then determine in fact who was a lawful resistor and who a violent criminal in an environment like Afghanistan 2002?