GUANTANAMO BAY, CUBA—On the upper deck of the ferry stand two svelte women with long braids, big smiles and camcorders capturing their final moments at the world famous naval base.
One woman, the blonde, is a Madonna impersonator. The dark-haired performer is a Cher lookalike.
They were brought to the island for a Saturday night show at the thatched roof Tiki Bar — a rally-the-troops, Bob Hope-style performance.
The night after the party, a military jury sentenced Toronto-born Omar Khadr to 40 years in prison, unaware that a plea deal capped his sentence at eight and gave him the chance to return to Canada by next fall.
“Madonna” commiserates with a reporter about the journalist’s tent accommodations, since the performers stayed at the VIP condos. She believes journalists were forced to live there because we wrote “bad” stories.
Just another vaudevillian Gitmo moment, but perhaps as good a starting point as any to reflect on 23 visits to this famous prison and dissect the eight-year Khadr saga.
Pentagon prosecutor Jeffrey Groharing said in his closing arguments last week that “the world is watching” and urged jurors to send a message in sentencing Khadr. Their decision to put Khadr behind bars until he was 64 was certainly a message.
But what was it?
Was it proof that justice was possible here and that while meaningless — Khadr’s plea deal had capped his sentence at eight years — the jury’s decision was a strike against terrorism?
Or was it that our Madonna impersonator wasn’t so different from the rest of us — all participants in a show trial that had more to do with politics than the rule of law?
IS KHADR GUILTY?
At the age 15, Khadr underwent a month of Al Qaeda training and helped convert landmines into improvised explosive devices, burying them in areas that would target U.S. and NATO forces.
There is a video of him making the IEDs and Khadr told U.S. forces after his capture where to find them. Prosecutors said the unexploded devices were later recovered.
Had Khadr gone to trial, he would have likely been convicted of the three military commission charges for spying, providing material support to terrorism and conspiracy. But on the two counts of attempted murder and murder, there are still unanswered questions for those who believe Khadr only pleaded guilty to get out of here.
Did he throw the grenade that killed U.S. Sgt. Christopher Speer?
Navy Capt. John Murphy, Guantanamo’s chief prosecutor, said they had a “very strong case,” despite the fact that no one saw Khadr throw it.
Murphy said two theories floated by the Khadr defence team — that Speer could have been killed by friendly fire and a photo of Khadr lying prone and under debris at the time the grenade was thrown — would be dismantled at trial.
“Shrapnel was obtained from a soldier, not from Sgt. First Class Speer but from another soldier near him,” Murphy said in an interview. “It did not come from a U.S. grenade.”
As for the photo that his lawyer said proved his innocence? It wasn’t Khadr, Murphy said, but one of the other combatants killed. Murphy said the photo shows a rope around the combatant’s neck, which would only be present if he were already confirmed dead (bodies are removed by rope in case they are booby trapped).
But the defence theories — and the prosecution’s explanations — remain unchallenged in court.
Khadr confessed he did. Others suggest he might not even know himself.
IS IT A CRIME?
“Murder in violation of the laws of war,” is a crime under the U.S. Military Commission Act — legislation introduced by the Bush administration, sanctioned by Congress, and revised under Barack Obama. Khadr’s is the first murder conviction.
Traditional laws of war do include murder as an offence, but only if killing a protected person of war such as an injured combatant or unarmed medic (while Speer was trained as a medic he was in Afghanistan as part of a special forces unit).
Despite the deaths of more than 1,300 U.S. service members and eight years since the war in Afghanistan began, the Pentagon has charged only one captive.
So why Khadr?
“I would love to know the answer,” said Andrea Prasow, a former Pentagon defence lawyer and now attorney with Human Rights Watch.
Prasow said she believes Khadr may have been chosen because of his family background, the fact that he survived when many die in battle and because Speer was member of an elite unit.
“But if Khadr was a test case, the U.S. failed the test,” she said. “I don’t think anyone looking from the outside can say it was a fair trial and that justice was served.”
Prasow, along with other international and civil right law experts have argued that military commissions are unnecessary when civilian courts could try terrorism suspects. Khadr could have theoretically been tried under domestic laws in Afghanistan, the U.S. or Canada.
But the world and its laws changed after 9/11. As a convicted war criminal, Khadr has now joined the ranks of Nazi commanders and former Liberian president Charles Taylor.
THE SENTENCE
Prosecutors asked for 25 years, they got 40, but were happy with 8 and a deal which means Khadr could be released soon after arriving in Canada next year.
When asked if it was unprecedented for a jury to deliver a sentence that goes beyond a prosecution recommendation, Guantanamo’s chief defence counsel just shook his head.
“Let’s just say I’ve never seen it before,” said Marine Col. Jeff Colwell, who served as a military judge for three years.
But Murphy, the prosecutor, said he was pleased by the jury’s stiff sentence. He had pushed for the plea deal for two important reasons: the certainty of a conviction and no chance of appeal.
“The victim widow Tabitha Speer had said to us that one of the most important things to her is total resolution in this case,” Murphy said.
With the U.S. courts now unable to scrutinize the conviction, the plea also eliminates further headaches for the Obama administration that clearly just wanted the Khadr case to go away.
HIS AGE
While teenagers are often tried as adults in criminal cases, international laws protect juveniles in armed combat. The theory is that a 15-year-old should know it’s wrong to throw a grenade in a shopping mall, but if indoctrinated or kidnapped at a young age, can they comprehend that it’s not legal at war for some to fight back?
The UN and advocates such as Senator Romeo Dallaire and David Crane, the former U.S. prosecutor for war crimes in Sierra Leone, warned that the Khadr conviction will be a dangerous precedent for child soldiers worldwide. Others say Khadr cannot be compared to kidnapped children and had a chance to surrender rather than fight.
Following the jury’s verdict Sunday, Murphy spoke for the first time of Khadr’s age and upbringing as a mitigating factor. While he maintains that Khadr did not deserve any special consideration at trial — he concedes that it was important in sentencing.
“I think good prosecutors don’t always strive to get the greatest possible sentence but they balance interests,” Murphy said.
“I was very comfortable that the result we achieved was fair to everyone.”
NOW WHAT?
Khadr will spend the next year in solitary. Next fall, he will be transferred to Canada if the deal struck between Ottawa and Washington is honoured.
If he is given time for his pre-trial custody, Khadr could be released by a parole board almost immediately.
Obama pledged as his first act as president to close Guantanamo.
The prison remains in operation.
Ferries running from the airport across the bay depart eight times a day.
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