Obama's Tragic Guantanamo Legacy: Prosecuting a Child Soldier and Victim of U.S. Torture

Since coming to power 15 months ago, promising to close Guantánamo within a year, and suspending the much-criticized Military Commission trial system for terror suspects, President Obama's zeal for repudiating the Bush administration's "War on Terror" detention policies has ground to a halt.

The rot set in almost immediately, when the new administration invoked the "state secrets doctrine" last February, to combat a lawsuit brought by several men subjected to "extraordinary rendition" and torture, and was sealed last May, when Obama delivered a major national security speech in which he announced that the Military Commissions were back on the table, and also announced his intention to continue holding some prisoners at Guantánamo without charge or trial.

In November, Attorney General Eric Holder set the seal on the administration's two-tier justice system for terror suspects at Guantánamo by announcing that five men would face federal court trials for their alleged involvement in the 9/11 attacks, but that five others would face trial by Military Commission, in a revamped version of the "terror courts," approved by Congress over the summer.

This year, Obama disappointed critics in the U.S., and those scrutinizing his activities around the world, by failing to close Guantánamo within a year as promised, and by failing to set a new deadline for the prison's closure, but last week his administration pressed ahead with what may well be viewed as the single most disappointing failure to repudiate the cruel, chaotic and unjust policies of the Bush administration's "War on Terror": the trial, by Military Commission, of Omar Khadr.

A Canadian citizen, Khadr was just 15 years old when he was seized by U.S. forces after a firefight in Afghanistan in July 2002, in which he allegedly threw a grenade that killed a U.S. soldier, Sgt. Christopher Speer, and was taken first to the U.S. prison at Bagram airbase, and then to Guantánamo, where he remains to this day. I have been covering his case since June 2007, when his first pre-trial hearing took place in the Commissions' first reincarnation, after the Supreme Court ruled in June 2006 that the original version, the brainchild of Dick Cheney and his legal counsel David Addington, was illegal.

For nearly three years, therefore, I have watched as a disturbingly shambolic and misconceived excuse for a judicial system has attempted, without success, to prosecute Omar Khadr, and the many failures of this endeavor have not been resolved through Congress tweaking the system last summer.

The shame and disgrace of prosecuting a child

Firstly, and most importantly, Khadr was a child when seized. This meant nothing to the Bush administration, but it is clear that it also means nothing to the Obama administration either. Back in May 2003, when the story first broke that juvenile prisoners were being held at Guantánamo (and research indicates that at least 22 juveniles were held in total), defense secretary Donald Rumsfeld impatiently told a press conference, "This constant refrain of 'the juveniles,' as though there's a hundred children in there -- these are not children," and General Richard Myers, the chairman of the Joint Chiefs of Staff, added that they "may be juveniles, but they're not on the Little League team anywhere. They're on a major league team, and it's a terrorist team, and they're in Guantánamo for a very good reason -- for our safety, for your safety."

This rhetoric played well with those who hold that everyone is accountable for their actions, whatever their age, but in a more enlightened world, of which the U.S. is technically a part, juveniles -- defined as those under the age of 18 when the crime they are accused of committing took place -- "require special protection" according to the Optional Protocol to the UN Convention on the Rights of the Child, on the involvement of children in armed conflict, to which the U.S. is a signatory. The Optional Protocol specifically recognizes "the special needs of those children who are particularly vulnerable to recruitment or use in hostilities," and requires its signatories to promote "the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict."