Khadr Admitted to Being a Murderer — But Did He Mean It?

Khadr Admitted to Being a Murderer — But Did He Mean It?

Omar Khadr accepted a plea deal yesterday that called for him to plead guilty to all of the charges against him in exchange for serving one more year at Gitmo and then being repatriated to Canada to serve another seven years in prison.  Predictably, the government is claiming that the guilty plea is proof that Khadr is factually guilty; as the chief prosecutor at Guantanamo colorfully put it after the hearing, “Omar Khadr stands convicted of being a murderer, and also an al-Qaida terrorist. The evidence… came from a source that the law recognizes as the most powerful evidence known to the law, and that is his own words,”

I don’t know whether Omar Khadr is innocent, although I suspect that he is — the government’s evidence that he committed murder has always been extremely weak, relying primarily on testimony elicited through coercive interrogation techniques, if not outright torture.  But I do know that his willingness to plead guilty in no way indicates that he is factually guilty, given the unfairness of the military-commissions system:

Yesterday, when reporters asked Edney why Khadr might plead guilty, he said, “There’s not much choice.” Edney added, “He either pleads guilty to avoid trial or he goes to trial, and the trial is not a fair process.”

Indeed, the prospect of trial in the illegitimate military commissions system was an awful one. Khadr could have faced life imprisonment if convicted. Self-incriminating statements that were coerced out of him by interrogators at Bagram and Gitmo were to be used against him at trial. And under a new military commisions rulebook issued in the spring, he could not get credit for the eight years he has already served. Omar Khadr’s entire military commissions experience thus far has been a circus spanning several years, 11 lawyers, more than three arraignments, and multiple sets of rules since he was first charged in 2004. It has been plagued by legal and procedural problems since the beginning, and any result at trial would probably have been subject to years of appeals.

One of the dirty secrets of the domestic criminal-justice system is that innocent people often plead guilty, either because they are convinced they will be convicted if they go to trial or because a plea offer is so good that they are not willing to run the risk of a conviction.  Khadr faced the same pressures — and the additional pressure of the Obama administration’s position that individuals acquitted in civilian courts or military commissions remain subject to indefinite detention under the “laws of war.”

Given the near-certainty that Khadr would be convicted, the possibility of a life sentence, the fact that any sentence would be in addition to the eight years he had already served, and the threat of indefinite detention, an eight-year sentence that would be primarily served in Canada was an excellent deal, especially as the Canadian government has already acknowledged that Khadr might be able to serve some of his sentence in home detention, where conditions are presumably a bit nicer than at Gitmo.  Under the circumstances, Khadr had to take the deal — even if he was innocent.

In the weeks that come, we will no doubt hear many triumphant claims by the Obama administration that Khadr’s plea means that he is guilty and that the military commissions work.  Unfortunately, nothing could be further from the truth.

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Foreign Relations Law, International Criminal Law, International Human Rights Law, National Security Law
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NewStream Dream
NewStream Dream

Professor Heller,

That is a very interesting post.  The problem with your argument is that I cannot imagine any scenario in which you would accept a confession.  For example, you have been a staunch defender of Lynne Stewart — the lawyer in the Blind Sheik case — notwithstanding the fact that she admitted in open, civilian court that she had broken US law.  If a career lawyer, in a civilian court, with significant support from the legal community, admits that she has done wrong, and you will not accept that, then I fail to see how any confession would be valid in your book.  (I refer any curious reader to previous discussions on this blog for evidence of the confession and Professor Heller’s views).

You remind me of a skit I once show on the Dave Chappelle show.  Seriously, type in “Dave Chappelle” and “jury duty.”  You are Dave Chappelle in the last skit.

Sameera Daniels
Sameera Daniels

Gee, ‘pleading guilty’  is so encouraging for the rule of law projects. It seems the momentum in shaping the law to get any justice has been lost, in great measure.

John C. Dehn

To more fully inform the readers about how this works, I provide the below from the military commissions manual, Rule 910:

The military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the military judge that either there is a factual basis for the plea or the accused voluntarily agrees that, having viewed the evidence the Government intends to introduce against him, the accused is personally convinced that the Government could prove the accused guilty of the offenses to which he is pleading guilty, beyond a reasonable doubt….The accused shall be questioned under oath about the offenses and/orthe Government’s averment of evidence, to ensure that there is a factual basis for the plea(s) or that the accused has voluntarily elected to plead guilty because he is convinced that the government could prove its case beyond a reasonable doubt.

Howard Gilbert
Howard Gilbert

The Stipulation of Fact seems pretty clear. Khadr admits to being a murderer (an unprivileged belligerent who threw a grenade and killed an American soldier). His signature is on the document. He signed this with legal advice and not under duress.

You may have various objections to the prior evidence or the plea arrangement. You may point out that he was given a pretty sweet deal in order to get him to sign this document,

You may even imagine that he is not guilty, and the grenade was actually thrown by the “second shooter from the grassy knoll”. However, it is not reasonable to dispute, as the title of the post does, that Khadr admitted to being a murderer.

Benjamin Davis
Benjamin Davis

Shape the crime, shape the evidence, get the conviction – hermetically sealed process whether a guilty plea or not.

Now, if we are seeing this as vindicating the rule of law, how about prosecuting the people that tortured him? Oh sorry, being so passe.

Best,
Ben

Lenore Horton
Lenore Horton

Recalling the last two sentences in KJH’s post, I think the true test of how well these commissions work from a due process standpoint will depend more on the acquittals gotten, not the convictions.

Milan
Milan

I actually think this was a reasonable outcome for all concerned. Khadr gets out of Gitmo and back to Canada within the year, where he will may be able to launch a collateral attack on his plea agreement (or at least obtain an early release). There has been a ton of litigation in Canada concerning Khadr’s “confessions” and alike so that will certainly be interesting to follow.   We may even hear more about the kind of treatment he was subjected to.   Conversely, if he had been found innocent, the Obama administration would have likely asserted that it still had the authority to hold him until the conclusion of “hostilities.” As for the Obama administration, it gets to avoid the spectacle of trying someone who was 15 at the time of his alleged crimes.  I think that the military commissions are marginally improved from their previous incarnation but clearly no one would compare their neutrality to civilian courts, and the Khadr trial would have been a public relations disaster. As for what to make of Khadr’s admission to be a “terrorist” and “murderer” presumably one’s feeling about that issue depend on whether one thinks that military commissions under their… Read more »

Howard Gilbert
Howard Gilbert

I see nothing in Khadr’s statement that indicates that he was a “terrorist”. He was trained and participated in attacks on US forces, not civilians. He admitted to being a civilian who directly participated in combat and killed an American soldier when he did not have combatant privilege. It doesn’t matter what you think about the Military Commissions system. It doesn’t matter whether he would or would not have received a fair trial. It doesn’t matter whether his previous confessions were coerced or not. It doesn’t matter if he was 15. All of these things may mitigate the crime or attack the system of justice, but they have nothing to do with the question of whether he threw the grenade and whether he had combatant privilege. Someone threw a grenade from a concealed position and killed a US soldier. There were several dozen witnesses. Khadr was engaged and captured. There is no evidence that there was anyone else in the compound in a position to throw the grenade, although nobody actually saw Khadr throw it. I may be helpful that he subsequently confessed to throwing the grenade, and that he admits in this statement that he threw it. Still, before… Read more »

NewStream Dream
NewStream Dream

Howard,

Don’t bother replying, Heller will just delete it.

NewStream Dream
NewStream Dream

I just want everybody to know that I have been trying to respond to Professor Heller’s arguments, but he keeps deleting my posts for no reason.

Howard Gilbert
Howard Gilbert

As has been pointed out many times, in war the soldiers do not keep the kind of precise records that police are trained to prepare in anticipation of a court review. When the police are done at a location, there are lots of commanders and detectives to gather the note and then return to the station and fill out all the paperwork. In this firefight you have soldiers who were on their own, engaged the enemy, took casualties, evacuated the wounded, and then went back to combat duties. Later on they wrote up a report. So given that Khadr had been bombed and shot twice and had severe wounds including one to the head, it is not surprising that someone writing up an after action report might indicate that he had been killed when, in fact, he was only seriously wounded. Since an after action report is not a court document, and the difference between killing and seriously wounding is not a significant military matter, there was no reason to make sure the report correctly stated every single fact. It is certainly within the scope of a lawyer to point to the original document and say that because the killer… Read more »

NewStream Dream
NewStream Dream

Still having my posts deleted ….

Benjamin Davis
Benjamin Davis

Res ipsa on military commission fairness.

Marc Thiessen (apologist for torture at the Washington Post) October 11, 2010 on Kaplan excluding in federal court evidence in the Ghailani.

Start quote
Kaplan barred the witness because in federal court his testimony is considered the “fruit of the poisonous tree.” But even under the Obama administration’s revised military commission rules, evidence obtained through involuntary statements can be admitted if the government can show that it would have discovered the evidence anyway, or if the court finds the “interests of justice” favor it. As Lt. Col. David Frakt, a Guantanamo defense lawyer and advocate for civilian trials for terrorists, told me, “because the Military Commission Rules of Evidence are more permissive regarding evidence derived from coerced evidence, I do think it is possible that the witness might have been allowed to testify in a military commission.”

The Ghailani prosecution is hanging by a thread today not because of the interrogation techniques employed against him, but because of the Obama administration’s ideological insistence on treating terrorists like common criminals and trying them in federal courts.

End quote

Holder’s terror trial catastrophe

By Marc Thiessen
Terrorists should not be treated like common criminals

Howard Gilbert
Howard Gilbert

Kevin, I think you are missing the most obvious problem. If the government did not charge Khadr with anything, he would probably spend an indefinite time at Gitmo because, whether he is or is not a murderer, he clearly was an unlawful enemy combatant (a civilian engaged in combat). So in this particular case, he is better off being found guilty, with an agreement to repatriate him to Canada at a certain date, than to be found innocent and then remain at Gitmo forever.

I bet you can clear a lot of cases if you go to any Federal or state prison and offer each inmate a chance to cut their sentence in half if they plead guilty to some additional charge. So yes, in that sense the guilty plea doesn’t prove anything.