Omar Khadr Trial at Gitmo?
 

So sine GC has it’s fair share of the legal crowd I was wondering how many folks down south are paying attention too, or have even heard of, the Omar Khadr trial(s) at Gitmo?

From a purely legal perspective it is a wonderfully convoluted case of Military Tribunals convened and struck-down, gag orders, denial of legal counsel, judicial politics, international law, American and Canadian relations, hunger strikes, surprise witnesses, accusations of prosecutorial withholding of evidence, civil litigation, and “government” leaking of ‘barred’ evidence to the media… and this doesn’t even actually cover the actual “meat” of the legal arguments by the defense and prosecution about the actual charges, alleged confession, and circumstantial evidence.

I was just wondering what our resident GC legal "experts" make of all of this since it touches on domestic law, military law, international law, juvenile legal status, and of course the whole host of controversy attached to the whole "unlawful combatant" bullshit.

Canadian born kid spends most of his life in Pakistan and Afghanistan, dad is buddies with Osama and indoctrines him into the terrorist lifestyle. Same kid kills a US soldier, gets caught and sent to Cuba to await trial, but since he was 15 at the time his lawyer is crying that he is being charged as an adult ( I don't know about you canucks, but in USA this is not unheard of for violent crimes). Honestly, if it wasn't for a small fringe group of anti-american Canadians politicising this case, it wouldn't be in the news.

I don't feel bad for him at all.

Ah yes because it's only those "anti-American Canadians" that are politicizing the case :rolleyes: Leaving aside all of them (and AI and the UN, but not our government since Harper couldn't care less), and leaving aside my personal disgust with the whole Gitmo/International Law fiasco, what do you actually make of the legal issues that have been raised in the case?

For example being tried a third time after the first trial was thrown out by the Supreme Court? and the second by the military judge?

... or "damning" video footage being declared prejudicial to the case and being barred by the current judge - but mysteriously said secret footage some how got leaked to CBS a week later?

... or having his civilian legal counsel barred from talking or visiting him?

... or the prosecution withholding testimony and evidence from the defense - specifically eyewitness testimony from a soldier that states it wasn't Omar that threw the grenade? (in the case of the murder charge).

... strong allegations by US military personnel that Omar's confession was obtained under extreme (and illegal) duress: ie. the witholding of pain medication to quote "soften him up" post-op?


As you can see there are some interesting non-political legal questions raised by the whole process - for example how does this case fit in with the practice and context of UCMJ and American domestic law? or where does the case fall into the American legal system with regards to the appeals and sentencing process?



*Now as for Canadian domestic and military law it is illegal to try a minor as an adult without a Supreme Court ruling allowing it.... and it is most certainly illegal to hold the accused in custody without legal recourse until such time that they reach the age of majority (pesky Charter of Rights and Freedoms, Human Rights Code, and all that). All of that aside the reason the both the Liberal and Conservative governments haven't got involved is simple, Omar and the Khadr family are a political grenade - there is (or was) equal parts outrage and disgust with him and his family as there where and are calls for Canadian governmental involvement in his case... basically public opinion is pulling in two directions at once even amongst the more hawkish or pro-American segments of society, conflict between seeing him (and his family) punished and the idea of Canadian sovereignty and the Rule of Law ~ and no government wants to (or wants to be seen) handle something that could easily blow up in their face, particularly after the Maher Arar disaster... (of course the whole thing could also blow up on them if they don't get involved "in the right way", ala Maher Arar).

He killed an American soldier while participating in a terrorist organization.

That makes the case pretty simple for me. From a justice standpoint, this "kid" deserves death.

The only question I have here is that of the powers of the U.S. Military Court to do what it's doing. I guess that's why we have lawyers working hard to figure the situation out.

Allegedly... and that has been thrown more into question by an eyewitness account of the engagement by the commanding officer - defense is arguing that this casts enough doubt on the charge of murder, while prosecution is arguing that the circumstantial evidence counter's the witness testimony (so same old same old).

Remember: "innocent until proven guilty"

Which will cause a political shit-storm really - at least up here and internationally... although it might be why the current Canadian government has backed off of the policy of contesting American Capital Punishment sentences involving Canadian citizens; but even then it'll still mean a huge public opinion debate for the Conservative government if the support or don't contest a death sentence for Omar if convicted (his status as a minor at the time will no doubt add fuel to the fire I'm sure).

I'm wondering that myself... since the purview and powers of the court seem to change ever couple of months :rolleyes:


Okay now onto my personal issues/opinion with this specific case, leaving aside my opposition to Gitmo in general:

IF Omar is guilty, AND IF he is found guilty then what? Does he have legal recourse for an appeal? If an appeal is possible to whom is it made (the military or civilian justice system)? Will the conduct of this trial and the previous ones affect the public and international view of the legitimacy of the trial? What does his legal designation as a combatant create as a legal precedent? and if he is sentenced to death under the current legal arrangement isn't that a violation of American domestic law as he was 15 at the time of the crime (I thought 16 was the absolute minimum prior to 2005)?