Omar Ahmed Khadr in a courtroom sketch in August. Analysts have debated… (Janet Hamlin / MCT )
Reporting from Guantanamo Bay, Cuba — Rumors are swirling that a plea deal may be reached in the case of a young terrorism suspect, perhaps sparing the United States from becoming the first nation to try a former child soldier on war crimes charges.
Omar Ahmed Khadr of Canada was 15 when he was captured in Afghanistan in the company of hardened Al Qaeda fighters with whom his militant father had apprenticed him in 2002. His trial, on charges that include the murder of a U.S. Army special forces soldier, is set to resume Monday.
Whether a plea agreement will be reached was unclear Saturday, but speculation about a deal has engulfed the Guantanamo Bay military tribunal for more than a week.
One key factor is whether the Canadian government would be willing to participate, because the Obama administration has reportedly offered Khadr an eight-year sentence, all but one year to be served in Canada, if he pleads guilty to all charges.
But this much is clear: The trial by military commission — the first at Guantanamo Bay since President Obama suspended the controversial court's work after his inauguration — has brought into sharp focus the president's failure to close the detention camp here as he has vowed.
Political push-back in Congress has thwarted White House plans to move the terrorism suspects from the remote U.S. military compound in southern Cuba to the United States for "preventative detention."
Khadr, now a bearded, strapping 24-year-old, is one of the few among the 174 prisoners still here facing formal charges for alleged anti-American aggressions. In addition to the murder count, charges against Khadr include attempted murder and spying. He faces life in prison if convicted.
Tribunal officials have rejected challenges to the court's right to prosecute Khadr on war crimes charges. International conventions to which the United States is a signatory call for rehabilitation for child soldiers instead of prosecution, but officials said they were not applicable here.
Also, the military judge presiding over the case, Army Col. Patrick Parrish, has dismissed defense motions to exclude reported confessions the youth made to interrogators who used harsh techniques, including threats of rape, in getting him to say he threw the grenade that killed Sgt. 1st Class Christopher Speer.
Some legal analysts say the war crimes tribunal was created precisely for prisoners like Khadr, who was captured after a July 27, 2002, firefight at an Al Qaeda hide-out. Evidence elicited from the wounded teen during interrogation at Bagram air base in Afghanistan has been judged admissible at the tribunal, although similarly obtained confessions have been barred from civilian courts trying other terrorism suspects.
Other legal experts, however, contend that the tribunal has no jurisdiction to try Khadr, whatever his age at the time of the alleged crimes.
They warn that prosecuting Khadr through a military commission could jeopardize the "belligerent's privilege" of U.S. soldiers fighting against Al Qaeda, a protection recognized by international treaties as necessary to shield from criminal charges those who kill or maim in wartime.
"If the United States desires to lawfully punish Khadr for his role in Al Qaeda operations, it must do so through the application of domestic criminal law in a trial in a regular U.S. federal court or before a national Afghan tribunal," said Loyola Law School professor David Glazier, a national security law expert who served 21 years as a U.S. Navy surface warfare officer.
"It is unprecedented for one side to prosecute the other for something it is doing itself," Glazier said of the Pentagon's treatment of Al Qaeda fighters as unlawful combatants for their failure to wear identifying insignia or abide by the law of armed conflict.
Under that interpretation, Glazier said, CIA drone strikes and clandestine operations in the Afghanistan war zone could subject U.S. troops and their commanders to war crimes charges.
Glazier contends that the Guantanamo tribunal is empowered to try only lawful combatants for violations of the international covenants governing armed conflict.
Glenn Sulmasy, a military lawyer who teaches law at the U.S. Coast Guard Academy, disagrees.
"According to the laws of war, he is an illegal belligerent and should be tried in a military commission," Sulmasy said of Khadr. Polls suggest that U.S. public opinion has been largely supportive of the tribunals, although foreign allies tend to see the operations as expressions of U.S. arrogance in refusing to abide by the Geneva Convention.
As for the possibility of a plea deal, it might hinge in part on Canada.
Canadian Prime Minister Stephen Harper has been adamant in refusing to accommodate a deal that would send Khadr to his country. The Khadr family has been a political albatross for the Canadian government for decades. Khadr's father, Ahmed, who was killed in a clash with Pakistani security forces in 2003, was a high-ranking financier and organizer for Al Qaeda.
The U.S. government may also find it difficult to seal the plea deal with Khadr after reneging on an agreement with a Guantanamo prisoner who pleaded guilty this year. Ibrahim Ahmed Mahmoud Qosi, who worked as a cook for Al Qaeda, was told he would serve his two-year term at the communal living facility where well-behaved detainees live in barracks.
Two months after Qosi's sentencing, the Guantanamo detention camp commander vetoed that arrangement on grounds that terrorism convicts can't be mixed with those under preventative detention. Qosi was moved into a solitary high-security cell Oct.11.