Guantanamo's First Trial: Omar Khadr
Earlier today, a
Khadr is charged with murder, for allegedly throwing a hand grenade that killed US Army Sgt. Christopher Speer.
One thing I have noticed is that most of the news media have not done a good job at analyzing Khadr’s defense and his current legal status. If they did, I think many people would be quite surprised.
So far, the military trials in
The military judge, Col Peter Brownback, has also shown himself to be a very level-headed judge, unafraid of stirring up controversy with his rulings.
It is obvious from following the trial thus far that the military justice system is not acting as the rubber-stamp Kangaroo court that some members of the Bush administration perhaps hoped it would be. On the contrary, I would argue that Khadr has a better chance of getting a fair trial than he would in a civilian court in the
Is Khadr an Enemy Combatant or an Unlawful Enemy Combatant?
Khadr’s defense is technical – nobody disputes the fact that he killed Sgt. Speer. The question is whether or not that killing could be considered murder.
The lynchpin in this case is whether or not Khadr is an “enemy combatant” or an “unlawful enemy combatant”. This is a very important consideration: in a war, soldiers kill each other, that in itself does not make them murderers. So long as the soldiers fight under the “laws of war” (i.e.: the Geneva convention), their actions are not considered murder.
Khadr was in
I would expect Khadr’s lawyer to make a very big deal over this element in the case – because if Khadr is not an unlawful enemy combatant, then he is not guilty of murder.
What about a jury of his peers?
Even if you do put together an unbiased jury, the prosecution could influence the jury against Khadr with talk of al-Qaeda, 9/11, showing pictures of Sgt. Speer’s dead body, etc. After the prosecution is done making their case in front of an American jury, the defense would have a real uphill battle.
One benefit to a military trial is that Khadr will be tried in front of a military tribunal – a team of legal experts in uniform, who are not only experts in military law (the Geneva convention, etc.).; they are also soldiers who are unlikely to be swayed by grisly photos, etc. and are thus less likely to allow this type of evidence to distract them from the defendant’s legal arguments.
Given the technical nature of Khadr’s defense (is he an “unlawful enemy combatant” or just an “enemy combatant”), a military tribunal is likely to be more objective.
What about the judge?
The judge in Khadr’s case, Col. Brownback, has demonstrated that he is not afraid to rule in favor of the defendant, no matter what the political impact of his ruling. In June, Brownback delivered a major setback to the government by throwing the case out of court – ruling that his court did not have the authority to try Khadr because Khadr had not been ruled an “unlawful enemy combatant”.
Brownback’s ruling was appealed by the government, but the appeals court did not rule that Khadr was an “enemy combatant” – instead they ruled that Col. Brownback’s court has the legal authority to determine whether Khadr is a legal combatant or not. Then, they sent the case back to Col Brownback.
By my estimation, this does not look good for the government’s case.
One element of
In the case of Khadr, the only reason they are able to proceed to trial at this point is because
The timing of Col. Brownback’s ruling is very beneficial to the defense: they can essentially have their cake and eat it too. They are appealing the whole military tribunal process (that it is unfair, etc.) but at the same time are proceeding to trial while their appeal is ongoing.
If the military tribunal finds Khadr not guilty, the government cannot refile or appeal the case and the defense can just drop their appeal. However, if they find him guilty, the defense can continue to pursue their appeal, and if the appeals court rules that the military tribunal process was invalid, they will get a new trial anyway in a civilian court.
If I were representing Omar Khadr, I would be very happy with the current state of affairs as far as his legal defense. Khadr is likely to have a more fair trial in front of a military tribunal than a civilian court at this point, but even if the military tribunal finds him guilty, he still has a number of appeal routes.