Why we aren’t putting Omar Khadr on trial

Omar Khadr turned to terror early in life.  He was only fifteen years old in the months after 9/11, but he spent them laying mines for al Qaeda in Afghanistan — and allegedly throwing the grenade that killed Sgt. Christopher Speer, a Special Forces medic. Khadr was pulled from the rubble, patched up, and sent to Gitmo.

Now the question is whether Khadr will escape trial because he was a juvenile at the time of his crimes.

The Washington Post thinks he will:

“This is not what you would choose to open with,” said a senior
administration official, speaking of a planned July trial for Khadr, who
is accused of throwing a grenade that killed a U.S. Special Forces
medic. “Khadr has become a cause, and this is not a case that will
demonstrate the strength and validity of military commissions.”

To avoid trying Khadr, the Justice Department has apparently offered the accused killer a plea bargain in which he would serve only five years in prison.

Other media reports confirm that the administration has cold feet on this case.  Canada’s National Post recently quoted an authority “in a position to know” as saying that the Obama administration has been pressing the Canadian government to request that Khadr be returned to Canada.

Why?  Because some US officials “don’t have the stomach to try a child for war crimes” the National Post reports, and a Canadian repatriation request would put a diplomatic cover on an outcome they badly want to engineer for other reasons:

Mr. Khadr’s age of 15 at the time of the alleged offences is playing on
the minds of certain administration officials — especially those with
backgrounds in the type of activism that has clashed with some of the
more controversial U.S. anti-terror efforts, the [National Post] source said.

The National Post has no firsthand information on who is driving this stance, but it fingers Samantha Power, Michael Posner and Harold Koh as the officials most likely to fit its source’s description.

You’d think from the administration’s gunshy approach that there must be a big legal problem with trying someone for crimes committed at fifteen.  If so, I can’t find it.  Practically every state in the union allows juveniles to be tried as adults at the discretion of juvenile court judges, which often use a standard that combines the best interests of the child and of society.  Many states create a presumption that the juvenile will be treated as an adult in the case of serious crimes; the presumption kicks in at 15 or less in most of these states.

Even the international law argument that juveniles can’t be tried for war crimes is remarkably thin.

  • See, for example, this  report by a Canadian international human rights subcommitte of the Canadian Parliament; the authors would dearly love to find an international treaty prohibiting such a prosecution but they can’t.  Instead, after a lot of citations to provisions about giving special treatment to child soldiers, most human rights groups fall back on the highly technical argument that US military tribunals “have no juvenile
    justice provisions”
    — that is, no formal authority to treat juveniles differently
    .  Of course that doesn’t prevent prosecutors and the tribunal from considering the defendant’s age in both the trial and the sentencing, which clearly is already happening in Khadr’s case.
  • Other human rights groups complain that the US isn’t adhering to a protocol to the child soldiers convention, which says that governments should provide “all appropriate assistance” for child soldiers’ “physical and psychological
    recovery and their social reintegration.”  Of course, nothing in that provision prevents such soldiers from being tried for their crimes, though one might think that the social reintegration clause would bar the return of Omar Khadr to the bosom of his terror-supporting, America-hating family of welfare queens in Toronto.

So what’s the problem with the case?  It is widely believed to have a stronger evidentiary basis than any other likely military prosecution.  Despite this, the administration is apparently so spooked by emanations and penumbras of international law that it is ready to send the killer of an American soldier back to his loathsome family after a few years — and perhaps immediately, if he gets credit for eight years already served.

At that point, Omar Khadr will be in his twenties and living just a three-hour drive from the world’s longest undefended border.

Gee, what could go wrong with that?