It’s Over: Khadr Gets “Eight Years”

by Kevin Jon Heller

This according to AP:

The sentence was handed down Sunday under a plea bargain in which the young Canadian admitted to five war crimes charges, including killing a U.S. soldier in Afghanistan. Under the deal, the judge was limited to the eight-year sentence and had to ignore the recommendation of a military jury that Khadr serve 40 years.

The case attracted intense scrutiny and criticism because Khadr was 15 when he was captured after suffering serious wounds during a four-hour battle at an al-Qaida compound in Afghanistan in 2002.

Appearing relaxed, Khadr stared straight ahead as the judge read a sentence that calls for him to stay at the Guantanmo prison another year before he can ask Canada’s government to allow him to return to his homeland to serve out his sentence or seek early release on parole. He doesn’t get credit for the eight years he already spent at Guantanamo.

The Canadian government gave no indication how it might react. Melissa Lantsman, a spokeswoman for Canada’s foreign affairs minister, said only that a decision will be made when Khadr formally applies.

Anyone want to play over/under?  I say that Khadr serves no more than two years in a Canadian prison — just long enough for America to lose interest in him.

http://opiniojuris.org/2010/11/01/its-over-khadr-gets-eight-years/

18 Responses

  1. Legally, when an enemy combatant being detained during an armed conflict is convicted of a crime, he is transferred to a prison and held in close confinement until his sentence is completed. If the conflict ends, he continues to serve his sentence. However, if at the end of his sentence the conflict is still going on, he is transferred back to military detention and can continue to be held as a combatant.

    After a year, this becomes the problem of the Canadian government. Khadr did not just confess to the charges. His stipulation of fact provides overwhelming evidence (if accepted by a Canadian court) that he was an unlawful enemy combatant. So Canada has a legal basis to deny him parole and hold him both in prison and in military detention for as long as the elected Canadian government chooses to do so. Yes there will be litigation, but taking the stand against Khadr and his family appears to be politically popular in Canada, and will be more so when he is in a Canadian prison and the alternative is to release him onto the streets of Canada. Of course there are alternatives like supervised release and GPS monitoring, but I would not expect that even after eight years he will be simply free to return to jihad.

  2. Two years, tops.  Then home confinement at worst.

  3. Note the switch from “enemy combatant” to “unlawful enemy combatant” in Howard’s comment.

    We have been informed by successive administrations that the reason that it is permissible to try Khadr for crimes like murder (that are not violations of the laws of war) is because he is an unlawful enemy combatant.  But, when it comes to determining what should happen to Khadr after he serves his sentence, he should be treated as a regular old “enemy combatant” and held until the conclusion of hostilities.   This may be the US position, but I don’t think it will gain much traction in Canada.

  4. There are lawful and unlawful enemy combatants. Lawful enemy combatants (a.k.a privileged belligerents) are protected by the Third Geneva Convention and may not be tried in civilian courts or charged with murder for engaging in combat. Civilians who directly participate in combat are unlawful enemy combatants (a.k.a. unprivileged belligerents) who may be charged with murder for killing someone during combat. Both lawful and unlawful enemy combatants can be detained by the military.

    When a member of the military intentionally kills a civilian, that is a “war crime”. When a civilian intentionally kills a soldier, that is simple “murder” and is indistinguishable from him killing another civilian. Murder during war is not a violation of the laws of war, but simply a violation of the law that is not protected by the laws of war. Killing enemy soldiers in war may happen to violate the municipal law of the enemy country, but combatant privilege and the laws of war protect the lawful combatant and prohibit the enemy from making the charge against captured soldiers.

    So assuming that Canada accepts the Stipulation of Fact that Khadr signed, as far as Canada is concerned he is a Canadian citizen who traveled to Afghanistan and, while a civilian not entitled to combatant privilege, threw a grenade and killed a US soldier. For this simple murder, he is serving an 8 year sentence not legally different (though obviously shorter) than he might have received if he traveled to Toledo and threw a grenade and killed a policeman.

    In addition, Khadr admits to being trained by al Qaeda and participating in combat operations in Afghanistan against NATO forces. The US has detained in military custody US citizens who were captured in Afghanistan while participating in combat with enemy forces, but while Canada has agreed to honor the US sentence for murder, it is free to make up its own mind as to whether it can and should apply some type of detention for a Canadian citizen who was captured in Afghanistan fighting as a civilian against NATO troops. Someone familiar with Canadian law will have to predict that outcome.

  5. And part of this will be the Canadian assessment of the violation by Canadians of his rights under the Charter of Rights and Duties which may affect all of this.  The weight given to the stipulation of fact will no doubt be influenced by the Canadian view of its voluntariness.  That is Canadian internal law.  My bet is more around 4 years. 

    If he wasn’t one already at 15 after his family indoctrination and so many years of US torture and Canadian complicity in his torture – Khadr is a ticking time bomb now.  He will bear careful watching for the rest of his life I imagine.

    Does anyone know of equivalent cases where 40 years was ordered by the military jury in the court-martial setting?

    Best,
    Ben 

  6. Frontier justice out of the old West – nothing more nothing less.
    Best,
    Ben

  7. http://media.miamiherald.com/smedia/2010/10/29/14/Khadr-Written_Unsworn_Statement_DE_BB_29_Oct_2010.source.prod_affiliate.56.pdf

    Note the inflammatory racial trope allegedly played on Khadr in Bagram.  Instrumentalization of prison rape and legacies of slavery (see Michelle Alexander’s new book on the new Jim Crow) by the interrogator – drawing on old tropes in our society. Prison rape – as I understand – is illegal and one of the significant human rights complaints about American prisons.

    But what do I know.

    Best,
    Ben

  8. I’ve spent several hours trying to decipher the applicable Canadian statutes and here’s what I conclude:

    Under Canada’s “International Transfer of Offender’s Act,” an individual repatriated to serve their sentence in Canada is treated as if they were originally sentenced by a Canadian court.  Canadian law provides for the possibility of full parole after serving 1/3 of the sentence awarded.  For Khadr this would be 1/3 of 96 months, or 32 months from now, which would be 20 months after his return to Canada at the one-year point.  This is initial eligibility, not an assurance, and the National Board of Parole website indicates that parole is granted at a 44% rate.  (Unfortunately there is no explanation of how this figure is calculated, but I’m guessing it means 44% of parole hearings result in a decision to award parole.  It could also mean that only 44% of applicants ever get parole, however, meaning 56% serve their term until reaching statutory release).  In either case (sorry Kevin) it predicts just as a matter of mathmatical odds that Khadr does not get released at the 20 month point, but has to wait at least six more months until he is eligible to apply again.  So personally I would bet against release within 24 months of return.  

    The more certain outcome, which makes something of a lie of the prosecutor’s trumpeting of the eight year sentence, is that Canadian law entitles a defendant to “statutory release” after serving two-thirds of their sentence.  They remain under sentence until the full term is served, and can be returned to prison for actual misconduct during this period, but Khadr is assured  of release after serving a maximum of 64 months, or 52 months after returning to Canada even if he is unable to persuade the parole board to release him sooner.  So the way a lay person would view things, he really only got five years and four months.

    An irony of Canadian law is that for a murder conviction resulting in a life sentence, but only in that case as far as I can tell, the law mandates that time spent in “custody” prior to conviction and sentencing counts towards parole eligibility.  For second degree murder (which I presume a Canadian court would conclude is the closest equivalent to Khadr’s offense of “murder in violation of the law of war,”) parole eligibility exists after 10 years.  So if, but only if, Khadr had gotten a life sentence at GTMO, he should have gotten credit for the eight years he spent in confinement prior to his plea and would have been eligible for parole one year after his return to Canada — 10 months sooner than he will be after receiving an 8 year term!  

    Like Howard, I’m a believer in the practical application of the law of war/Law of Armed Conflict to the fight against al Qaeda, but I do not agree that Canada has a viable claim to preventively detain Khadr under those rules.  First, I don’t believe that Canada has any sort of unilateral commitment to hostilities against AQ similar to the U.S. AUMF, but rather has agreed to participate in NATO operations in support of the Afghan government; i.e. is engaged in a non-international armed conflict in which detention authority belongs to the Afghan government, not to individual participants.  And in any event, Canada has committed to withdraw from the conflict in 2011, so even if it had independent detention authority now, that would presumably terminate just as Khadr’s penal detention was reaching its earliest practical termination. 

  9. From today’s NYT:

    In murder cases, the Parole Board of Canada normally credits preconviction time served in custody to calculate when prisoners can apply for parole. Because Mr. Khadr was arrested just over eight years ago, he could be eligible as soon as he enters Canada.

    But murder convictions in Canada carry a mandatory life sentence, which may enable the parole board to alter its normal practice, said David M. Paciocco, a law professor at the University of Ottawa. And because Mr. Khadr was 15 at the time of his arrest, he is a youth offender under Canadian law. That could alter how the parole board handles his case, several lawyers said.


  10. I think I’d have to agree with you, Heller.

  11. Why, given the example of David Spencer and Christine Lamont, would the United States release Khadr to Canada?

  12. Khadr was not “arrested” eight years ago. He was captured in combat during a fire fight in which he killed a soldier and was himself seriously wounded. He was then detained as a type of prisoner of war. The time spent detained by the military as an enemy combatant is not pretrial detention. No trial is required or even typically expected. In a criminal case nobody is held unless he has been arrested and is pending trial, but during WWII around 435,000 Axis prisoners were held in the US without charge or trial or challenge.

    The Commission considered this and decided to not grant Khadr any credit for the time he was being held as an ordinary prisoner of war. Having now been convicted of a crime, he will be transferred and held under far more harsh conditions for his one year of punishment than the conditions he has been held in as a captured combatant.

    Padilla, on the other hand, was given credit for his time detained by the military against his conviction in civilian criminal court for his prior felonies, so this appears to be up to the court to decide.

    It seems unlikely that a Canadian Board can grant someone credit for time served in a foreign detention facility on an unrelated matter when the sentencing authority decided that this prior detention was unrelated to the sentence. Had Khadr committed a crime in the US and a completely different crime in Canada, been convicted and served time in the US for the US crime, and then be extradited and convicted in Canada, it seems unlikely that Canada would grant him credit on the Canadian sentence for his time served in the US prison on the unrelated US charge.

  13. Howard is of course right in principle, but the ugly reality is that there is nothing “principled” about the military commission system.  Nothing.  Hamdan was given credit for “time served” even though he, too, was formally being detained as a participant in an armed conflict and therefore should not have been.  Hicks and Khadr were not.  Al Bahlul – well, doesn’t matter as he got life, and al Qosi we don’t know because his sentence is still secret despite promises that the system would be “open.”  My guess is that he was not, and I further predict that he will be repatriated after a year, suggesting that Khadr’s year to be served at GTMO is intended in part to ensure that al Qosi, who was promised communal living which the government could not deliver because the folks running the detention center, as compared to the folks running the military commissions, actually know enough about the law of war to know that you can’t comingle convicts with those who are merely preventively detained, has someone to talk to.

    In any event, once Khadr is transfered to Canada it is up to that country to handle him in accordance with their domestic laws and it won’t matter how we might characterize Khadr’s detention in Cuba.  But having spent the better part of the day reading Canadian statutes, I can’t find any basis whatsoever on which he could be given credit for time served before his sentencing, media comments by leading Canadian lawyers to the contrary not withstanding.  I’ve emailed one of the quoted commentators in the hope that he can enlighten me, and if he responds I’ll share his insights in a future comment.

  14. I love Howard’s statement that Khadr was detained as a “type of prisoner of war.”  Differently put: we can deny him credit for pre-trial detention because he was a “type” of POW, but we don’t have to treat him like a POW because he was an “unlawful combatant,” not a real POW!

  15. There are two types of (lower case) prisoners of war. Lawful enemy combatants protected by the Third Geneva Convention are POWs. Others (enemy aliens detained for security reasons, civilians who participate in combat, some spies and saboteurs) have the lesser protection of the Fourth Geneva Convention and are classified in US Army Regulations as Civilian Internees (CIs).

    Maybe the US Army regulations on POW and CI detention needs to be updated with some other categories, but at the moment those are the only two categories formally recognized. Only someone who meets the criteria of Article 4 of the Third Geneva Convention can be a POW, but someone else held as a prisoner under the laws of war, like a civilian captured while engaged in combat who killed a US soldier, certainly seems to be a “type of prisoner of war” even though he is, by the definition of the term, not a POW.

    That said, I did not say he could be denied credit for pre-trial detention because he was a type of POW. I said that if he was being detained as a type of POW, then he wasn’t being detained as a criminal suspect and it was not pretrial anything. There were 500+ other guys at Gitmo who were held and weren’t charged or tried, so they also were not in pretrial detention. On the other hand, if someone is arrested, charged, and held for trial then he is in pretrial detention even if he is also a POW or CI.

    Someone commits a murder while sane, but then becomes insane and is found to be unable to stand trial. After several years committed to a mental institution, he regains his sanity, is tried for the crime, and is convicted. Although he was detained for years in a mental facility, that was not pretrial detention and he is not entitled to credit in his sentence for the period of time he was receiving medical assistance. Similarly, someone who is being held pending deportation, or held because he was found to be in contempt of court, or quarantined with a dangerous communicable disease, or as a POW or CI does not get credit in any subsequent criminal trial and sentence for the period of time he was detained on an unrelated non-criminal matter.

  16. I also found the emphasis on Khadr being a “type” of POW interesting . . .Khadr was not afforded even the minimal protections under Article 3 of the Geneva conventions and was coerced (many would say tortured) into giving incriminating statements to US (and Canadian) interrogators.

    These coercive interrogations were specifically intended to produce evidence for a subsequent criminal trial, and the statements made by Khadr established the bulk of the government’s case.  Consequently, I do not think it is easy to separate the question of Khadr’s detention as a “type of POW” from his detention as an unlawful enemy combatant awaiting trial.

    The only Canadian law note that I would inject to this interesting discussion is that the Canadian Supreme Court has already held that Khadr’s treatment at Gitmo, in which Canada was complicit, violated his rights under S.7 of the Charter of Rights and Freedoms.  It left it up to the Canadian government to determine how to remedy this breach.  The constitutional question – entirely separate from the question of whether Khadr should get credit for time served – is whether merely repatriating Khadr to serve his sentence in Canada remedies the breach of his rights.

    I doubt that the Supreme Court will say now that Khadr has confessed that the treatment he suffered at Gitmo is irrelevant.

  17. I have now heard back from the Canadian attorney quoted by the NY Times and after working through all the applicable statutes in detail, we conclude that the basic rules applicable to Khadr are that he should be eligible for parole after serving 1/3 of his total sentence (32 months) or 20 months after repatriation, and even if not paroled, should be eligible for “statutory release” after 2/3 of his sentence (64 months) or 52 months after repatriation.

    The only Canadian rule providing for credit for total time in custody is only applicable to life sentences and thus does not apply to Khadr.

    There is one remote possibility – IF Khadr’s conviction for “murder in violation of the law of war” was held to be the direct equivalent of Canada’s “first degree murder,” then the fact that Khadr only received an 8 year term for this offence would be treated as a “youth sentence” under Canadian law, and youthful offenders can be awarded an early release by a juvenile court on the recommendation of the appropriate provincial official.  But a killing in the flow of a battle seems extremely unlikely to qualify as first degree murder, and Canadian law provides that a sentence in excess of seven years for the equivalent of second degree murder is to be treated as an adult sentence, placing Khadr outside the reach of Canadian juvenile authorities.  The Canadian professor speculates that the government may thus have recommended the eight year sentence specifically to ensure this outcome (and it seems a bit of an odd term otherwise).

    He also told me that the generic experience with parole in Canada is that most offenders receive parole after serving about 1/2 of their sentence, but his opinion was (good news for Kevin’s prediction) that Khadr would likely be promptly paroled.

    Several commentors above talk about the possibility of Canadian Supreme Court intervention.  I would just note that the plea agreement, like that of Hicks which was previously made public, specificly proscribes any direct or collateral challenge to the conviction, sentence, or treatment in U.S. custody, and the Canadian law on inmate transfers requires that the foreign judgment be final, barring any challenge after repatriation.  Granted Canadian judges might find some pretense to review this case given its unique nature and the particular abuses Khadr was subject to.  But the letter of the law, and concerns that doing so might hamper the ability of Canada to get citizens back from other repressive countries, both argue against doing so, particularly if it is anticipated that the National Parole Board will take favorable action on his first application.  (I should be clear that this final paragraph reflects only my personal opinion and has not been discussed with anyone else).

  18. I note that the DoD seems to have confirmed the interpretation offered by David above.

    The possible hook for the Constitutional question is that there is already already an outstanding order from the Supreme Court of Canada to the Canadian government to remedy the breach of Khadr’s rights under S.7.  The order is notoriously fuzzy as it gives discretion to the government to determine the remedy in the first instance, but either the government has complied with the ruling by repatriating Khadr to serve his sentence in Canada or it has not.  I suppose one could argue that by taking the plea deal Khadr has waived his right to enforce Canada’s compliance with the Court’s order, but this is not an unassailable position.

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