This morning’s military commission session dawned with the air of uncertainty that had permeated the weekend at Tent City in Camp Justice. As so many of us have done before, we filed through the various security checkpoints and settled into our assigned seats in the non-high-value-detainee military commission courtroom. Just before 9am, a crew of guards brought now-24-year-old Omar Khadr into the courtroom to answer for acts committed when he was 15. My seat was approximately 10 feet behind his, where a pin-stripe suited Khadr sat with his 2 US military defense counsel and his 2 Canadian foreign legal advisors (his defense attorneys in all but name). LTC Jackson, recovered from his recent health issues, led the defense team, which included a newly detailed USAF major. The prosecution team, including a civilian, Navy Capt Murphy, and 2 USAF captains, was partially hidden behind the pillars that seem to adorn all military courtrooms. At 9am, we all stood for the entrance of COL Parrish, the military judge appointed to preside over this commission.
To begin the hearing, Khadr withdrew his previous plea of not guilty to all the charges and specifications and waived all outstanding motions. Then, LTC Jackson announced that Khadr pled guilty to all the charges and their specifications.
Much of the hour we spent in court today mirrored what a court-martial Article 39a plea hearing would look like. One of the trial counsel placed Khadr under oath for the plea inquiry. As part of the plea colloquy, Prosecution Exhibit 12, the 50-paragraph stipulation of fact was used. Judge Parrish ensured that Khadr understood the stipulation, which was written in English, and had voluntarily signed it. Parrish also made it clear that the full stipulation would be released tomorrow after it is published to the members.
Next, Parrish listed the elements of the offenses. Charge I—Murder in Violation of the Law of War; Charge II—Attempted Murder in Violation of the Law of War; Charge III—Conspiracy; Charge IV—Providing Material Support for Terrorism (2 specifications); Charge V—Spying. As I listened to the elements and the facts alleged as part of the elements, it struck me how these charges were not ones you would traditionally think of as war crimes—often, they were simply made up. It even sounded as if the 2 specifications of Charge IV were multiplicious, covering the exact same conduct in each.
Unlike a court-martial, the accused in military commission pleas is not required to “Tell me in your own words why you’re guilty” of each offense as required under U.S. v. Care. At the conclusion of the explanation of the elements and definitions applicable to each specification, the judge simply verified that Khadr wished to admit the elements listed. Rather than engaging in the familiar colloquy of potential defenses, Khadr just answered “Yes” to each specification’s elements.
At the conclusion of the providency inquiry, Parrish verified that Khadr still intended to plead guilty, to which Khadr agreed. The counsel agreed that the maximum punishment Khadr faced, based on his pleas, was life in confinement. They also revealed the long-rumored fact that there was a pretrial agreement (PTA) to limit the punishment allowed in the case.
The pretrial agreement was marked as Appellate Exhibit 341. Unlike many PTAs in courts-martial, this PTA contained no separate quantum portion, usually identified as Appendix A. Here, all the terms were included within Appellate Exhibit 341 itself. The judge then went through the standard PTA inquiry that is familiar to court-martial practitioners, ensuring that Khadr had read the agreement, had his counsel explain it to him, entered it voluntarily, and believed it was in his best interests to do so. Paragraph 6a of Appellate Exhibit 341 contains the key terms of the PTA—the sentence limitation; however, those terms won’t be revealed until after the commission members announce their sentence, likely at the end of this week.
Much like with the stipulation of fact, Parrish ensured that the PTA terms would be made available to the public. He even made it clear to the trial counsel that he expected them to work with the Office of Military Commissions to get the PTA released immediately upon the announcement of the adjudged sentence.
As part of the PTA, Khadr agreed to plead guilty to all the charges and specifications, to forego some testing (NFI), not to initiate any litigation against the US, to submit to interviews with US personnel, to have some sentencing witnesses testify, and not to appeal his conviction. After 1 year in confinement, the United States government will support Khadr’s request to return to Canada to serve the remainder of his sentence. Although Canada hasn’t agreed explicitly to accept Khadr back at that time, the defense counsel was satisfied that that would happen, based on diplomatic notes exchanged between the US and Canada. Those diplomatic notes were made part of the PTA as Appellate Exhibit 342 and will also be released to the public at the conclusion of the trial.
Parrish’s rapid pace was a topic of some discussion after the hearing concluded. Even for those of us accustomed to the standard litany of questions that accompany a guilty plea, Parrish moved fast. It was interesting, although not surprising, to note that the military judge always addressed the accused as “Mr. Khadr” or “sir.”
After clarifying a few points, both parties were ready to proceed to the end of the findings phase. Parrish had Khadr and his counsel rise, and Parrish found Khadr guilty of all the crimes alleged at 9:50am.
It was at once a moment of relief and yet one of regret. After 8 years, the end of Khadr’s case appeared to be within sight for all the parties and victims. The plea closed the door on issues that many of us have fought over for years. What is the appropriate way to deal with child soldiers? How can we punish individuals for actions that weren’t crimes at the time they were committed? Why are we able to use Article 1 courts to prosecute crimes that have never before been recognized as law of war crimes? Those are answers Khadr’s case won’t provide us.
The sentencing case starts at 9am tomorrow.