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

by Kevin Jon Heller

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.

http://opiniojuris.org/2010/10/26/did-khadr-admit-to-being-a-murderer/

22 Responses

  1. 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.

  2. I realise that holding NSD to basic standards of accuracy is futile, but it’s worth pointing out that Stewart did not confess to obstructing justice or conspiring to provide material support to terrorism, the charges of which she was convicted.  She admitted only to intentionally violating prison rules in an effort to zealously represent her client, as this New York Times article makes clear.

  3. 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.

  4. 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.

  5. 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.

  6. 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

  7. 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.

  8. 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 current form are constitutional and/or whether they constitute a “regularly constituted court” that provide all the requisite judicial guarantees under Common Article 3 of the Geneva Conventions.

  9. 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 you complain about a trial that never happened before a system that hasn’t been tested, if you want to claim that he didn’t commit the murders (as a fact, not as a verdict) then you have to explain where there is a basis for reasonable doubt.

    He was the only one in a position to throw the grenade. When he was captured he was next to a pile of additional grenades identical to the one that was thrown. He had means, motive, and opportunity. He was captured on the spot. There are over a dozen witnesses. Even without any confession, and in a trial held in Federal civilian criminal court, he could easily be convicted based on just the eye witness testimony.

    A murderer is still entitled to a fair trial. You may assert that he is entitled to be treated as innocent until proven guilty, but that is different from claiming that he is actually innocent as a matter of fact. I know that there is a burden of proof, but I still have not seen anyone advance a plausible argument that it is remotely possible that he is actually innocent of the act of murder as it is defined under international law in this case. So I do not find it particularly surprising that he plead guilty and in his stipulation of the facts admitted that he threw the grenade. Has someone here got a different explanation?

  10. “He was the only one in a position to throw the grenade.”

    Yeah, right:

    Prosecutors said Khadr, who is now 21, was the only person alive at the compound (which had been hit by U.S. air strikes), and so was the only person who could have thrown the grenade that fatally wounded Speer.

    On Monday, reporters attending the tribunal were handed a packet of pretrial motions by a spokesperson for the Office of Military Commissions, which included previously classified testimony by an unnamed witness who said Khadr wasn’t the only living person at the scene, and may not even have been in a position to throw a grenade at all.

    The 5-page document was based on an interview with an eyewitness identified as “OC-1,” who shot Khadr twice in the back.

    In the testimony, OC-1 states that upon entering the compound he saw a man lying on the ground, facing him and moving, with an AK-47 next to him. OC-1 fired one round, striking the man in the head, killing him. Afterwards, OC-1 spotted a second figure (Khadr) facing away from him. OC-1 fired two rounds, which struck Khadr in the back.

    A Pentagon spokesperson would not identify to what unit or agency OC-1 belonged.

    Tell us, Howard, how many of your “eyewitnesses” testified at Khadr’s trial?

  11. And then, of course, there is this:

    A mysterious witness has raised further doubt about the Pentagon’s claim that Omar Khadr threw a grenade that fatally wounded an American soldier. But Khadr’s lawyers say the U.S. government is denying access to him.

    With just weeks to go before his war crimes trial, Khadr’s lawyers told a military judge here yesterday that at least three American witnesses at the July 2002 firefight in Afghanistan reported the 15-year-old Canadian wasn’t the only one alive when the grenade was thrown. Khadr’s defence team has known about the witnesses since late last year.

    One witness, identified only as “Lt. Col. W,” was accused last March of doctoring a report to implicate Khadr in Sgt. Christopher Speer’s killing. The second witness remains unnamed. (It is unknown whether either could help Khadr’s defence.)

    But the identity of the third witness was revealed publicly for the first time yesterday: U.S. government employee Jim Taylor.

    Taylor has not met with Khadr’s defence team due to instructions from his “employer.”

  12. And this:

    The U.S. government “manufactured” evidence against Omar Khadr when it changed a document two months after his arrest and blamed him for throwing a grenade during a firefight that killed a soldier, his lawyer said yesterday.

    The defence made public two documents in a U.S. military war crimes court showing that the on-scene commander altered official documents recounting the events of July 27, 2002, when Khadr was arrested in Afghanistan following a firefight with U.S. forces.

    Those documents were received from the prosecution as part of the discovery process.

    The information casts further doubt on the culpability of the 21-year-old Toronto man, who was arrested at an Al Qaeda compound at the age of 15.

    Khadr is currently detained at the U.S. naval base in Guantanamo Bay, Cuba, which is used as a prison for terrorism suspects.

    “The government manufactured evidence to make it look like Omar was guilty,” Khadr’s military lawyer, U.S. Navy Lt.-Cmdr. Bill Kuebler told reporters after a pre-trial hearing.

    He went on to say the government did so “to reflect the reality that was most convenient to the United States government at that time.”

    The tribunal heard that in one official report dated July 28, 2002, the commander “Lieut. Col. W” wrote that the person who threw the grenade at Sgt. Christopher Speer had died, which would rule out Khadr as the suspect.

    Yet, in a near-identical report written two months later, but also dated July 28, the commander changed a single line to read the grenade thrower did not die.

  13. Howard,

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

  14. You don’t have to worry, Howard.  Unlike NSD, you offer actual arguments, not substance-free ranting.

  15. 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.

  16. When NSD offers a substantive argument, I will leave it up.  Rants and fact- and substance-free invective will be deleted. I am tired of him degrading — anonymously, of course — the quality of discussion on this blog.

  17. 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 was originally reported as dead, then the killer could not be Khadr. However, if the twenty or so people who were there all testify that the after action report was premature in reported the death of someone who was really only seriously wounded, and that Khadr was really the person referred to by the report, then I believe that anyone who makes a big deal of the discrepancy has an axe to grind and isn’t much interested in weighing the evidence and finding the truth.

    The reports all agree that first a gunman with an AK-47 was killed and later Khadr was engaged. There is nothing in the reported documents that clearly states how much time separated the two. Obviously the prior existence of a live gunman does not prove anything if he was dead before the grenade was thrown.

    From the Stipulation: “After entering the compound the unit began taking direct fire from an AK·47. One soldier saw the individual firing the AK· 47, engaged and killed him.” There is nothing in this part of the narrative that says anything about the grenade attack, and if someone is seen firing an AK-47 and kept under observation until killed he cannot be the thrower.

    There is no version of the narrative where the grenade is thrown, then the AK-47 gunman starts firing and is killed, and then Khadr is engaged and wounded. If you believe this to be the case, then the only way to sort it out is to get the testimony of all the witnesses in the fire fight. This plea agreement precludes getting testimony in court, but they have been and presumably still can be interviewed to clarify the timeline.

  18. Sounds like reasonable doubt to me.  The fact that one extremely strained version of events is consistent with guilt does not proof make.

  19. Still having my posts deleted ….

  20. 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

  21. 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.

  22. Howard,

    But that is exactly my point!  He is much better off being found guilty — and that is true whether the is factually guilty or not.  Even if he was innocent, as I believe, he had no incentive whatsoever to go to trial.

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