Negotiations in the Omar Khadr case involve senior members of the Obama administration, as the White House continues to push for a plea deal and avoid a trial of Guantanamo’s youngest detainee, U.S. and Canadian sources have told the Toronto Star.
While news of the deal leaked only Thursday, hours before the Pentagon official delayed Khadr’s trial, lawyers and government officials both in Washington and Ottawa have been working behind the scenes for weeks.
One source said diplomatic notes between the countries have dealt with the possibility of Khadr serving part of his sentence in Canada.
An agreement that proposes the Toronto-born captive serve eight years on top of the eight he has already spent awaiting trial, has reportedly been approved by the Pentagon’s top Guantanamo official.
Yet there are factors that could scuttle a plea. Namely, Khadr.
The 24-year-old detainee has in the past refused offers by the prosecution if it meant pleading guilty to murder or included a sentence to be served in the U.S.
And no deal is official until it is accepted by Army Col. Patrick Parrish, the judge presiding over the Khadr case. A hearing before Parrish is now scheduled for Oct. 25 and Khadr’s Canadian lawyer, Dennis Edney and Pentagon-appointed lawyer, Lt.-Col. Jon Jackson, are meeting with Khadr this weekend.
Prime Minister Stephen Harper again rebutted claims Friday that Ottawa was involved in the negotiations.
Which is true, said Khadr’s Canadian lawyer Nathan Whitling.
But those with knowledge of the case, who spoke to the Star this week on condition of anonymity, said that behind the scenes the Prime Minister’s Office and officials with the departments of foreign affairs, justice and the Canadian embassy in Washington are unofficially part of the process.
Harper has always stated Canada will not intervene in Khadr’s Guantanamo trial — reiterating that stance even when Canada’s Supreme Court strongly suggested earlier this year that his government should.
But that doesn’t mean Ottawa is not engaging in what the former head of the Department of Foreign Affair’s consular division described as a “nod and a wink arrangement.”
“Harper is quite correct in what he’s been saying,” Gar Pardy said in an interview Friday.
“You have to have a legal authority to put somebody in jail.”
In other words, Canada cannot consent to Khadr’s Canadian prison term until a military court in Guantanamo actually convicts and sentences him. Then, presumably Khadr could apply to come here under the International Transfer of Offenders Act, which allows Canadian citizens to serve their foreign criminal convictions at home.
Ottawa would then have to accept his request.
But would Khadr agree to a plea without a specific guarantee that Ottawa would not turn down his application?
And would Canada and the U.S. agree to the transfer if they feared Canadian courts would throw out a deal made in Guantanamo?
What does seem clear is that Washington is eager to dispense of what has often been a politically divisive case. Khadr was 15 when shot and captured in Afghanistan following a firefight with U.S. Special Forces soldiers in 2002, which means his war crimes trial would be the first modern-day prosecution of a child soldier.
The Pentagon claims he threw a grenade that killed U.S. Sgt. Christopher Speer. But Khadr is the only “enemy combatant” the Pentagon has charged with “murder in the violation of war” for allegedly killing a soldier in combat. More than 1,000 U.S. forces have been killed since 2001.
Speer’s widow, Tabitha, is expected to testify at Khadr’s sentencing, as are Special Forces members injured in the battle when Khadr was captured. In past interviews with the Star, they said they would be angered by a plea deal if it afforded Khadr a light sentence.
The Pentagon has scheduled a Thursday military flight to shuttle journalists, court observers, witnesses and lawyers to Guantanamo for what will either be a sentencing hearing, or the continuation of Khadr’s war crimes trial.
Pentagon spokesperson Maj. Tanya Bradsher sent an email to journalists saying the return date for the military flight out of Guantanamo “has not been scheduled.”
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