In this Pentagon-approved photograph of a sketch by artist Janet Hamlin, Prosecutor Jeffrey Groharing addresses the military panel, seen as blue numbered cards, in closing arguments Oct. 30, 2010. Toronto-born detainee Omar Khadr, who pleaded guilty to five war crimes, listens at the top left.
Send Omar Khadr back to Canada because he has already spent more than eight years in prison, defence attorney Lieutenant Colonel Jon Jackson urged the war crimes tribunal panel sentencing the confessed Canadian terrorist.
The military panel - roughly equivalent to a jury - reconvened this afternoon, after several of its seven members attended church services and then had brunch at Bayview, an officers' club overlooking the harbour. On Saturday they deliberated for more than five hours in the sentencing phase of Mr. Khadr's war crimes case. He has pleaded guilty to murder, terrorism and spying.
The panel returned to the courtroom Sunday afternoon and asked for a replay of a video testimony from Kabul in which a senior U.S. legal officer had said he believed Mr. Khadr was a good candidate for rehabilitation. That witness, Capt. Patrick McCarthy, had told the court wednesday the he didn't believe 15-year-olds should be held to the same standards of accountability as adults.
"His age, lack of experience and the fact that his father took him to Afghanistan leads me to believe he has rehabilitative potential," said Capt. McCarthy, who was the senior legal office in Guantanamo for two years and had weekly interaction with Mr. Khadr. He described him as quite unlike the hardened, violent jihadists in the Guantanamo detainee population.
"Send him back to Canada, there is no good in him staying here. Send him home," Col. Jackson said, referring to the notorious prison complexes set up by the United States for al-Qaeda suspects.
In an impassioned argument attempting to get the shortest possible sentence for Mr. Khadr, who has already spent eight years in U.S. military prisons, Col. Jackson said the teenage jihadist was "misled by his father" and had no option but to fight in the fierce gun battle in Afghanistan in July 2002 where he was severely wounded and a U.S. special forces medic was killed.
"That's what happens in war, soldiers die," Col. Jackson said.
Prosecutors called for Mr. Khadr to be sentenced to at least 25 years in prison, in their closing argument on sentencing at his war crimes trial.
"The world is watching," said a U.S. Justice Department lawyer and former U.S. Marine, Jeffrey Groharing, who led the prosecution of Mr.
Khadr, the only Canadian held in Guantanamo.
Col. Jackson said even military prosecutors at Mr. Khadr's trial had referred to "marinating in the jihad sauce" referring to the radical and violent inmates, many of whom remain implacably determined to wage war against the west.
"Omar has shown you he has changed from the person he was in 2002 to the person he is today," Col Jackson said.
"Omar Khadr was a lawful target but he didn't have the right to fight back," Col. Jackson said.
"Al-Qaeda uses kids, they had radicalized him," Col. Jackson said, reminding the panel that Mr. Khadr is considered internationally to be a "child soldier," a victim, rather than a combatant who can't, under United Nation's protocol's be held accountable for war crimes.
Prosecutors wanted a tough sentence to send a message.
"He must be punished severely ... he doesn't fight for a country, he fights for a religion," Mr. Groharing said. "He is a terrorist."
Mr. Khadr watched pensively, sipping water from a plastic bottle in the courtroom in a heavily guarded air terminal building on a disused Cold War airfield at this leased U.S. naval base in Cuba.
"The accused is not a victim in this case ... the government recognizes that the accused was only 15 years old at the time of his offences ... But that does not mean that he cannot be held accountable and should not be punished," Mr. Groharing said.
The U.S. officers on the military panel - the equivalent of a jury - know Mr. Khadr has pleaded guilty to murder, terrorism and spying but they don't know he has cut a plea-bargain deal that could send him back to Canada a year from now.
The panel retired to consider sentence.
The seven-member panel of senior U.S. officers - whose names cannot be disclosed - includes a Navy Captain, the most senior ranked panelist who serves as its president or foreman, a Marine Colonel who was wounded in 2003 in a firefight in Iraq, an Army Lieutenant-Colonel who served more than a year at an unnamed detainee prison, a Navy Commander, an Army Lieutenant-Colonel who is an ex-military policeman, a Navy Lieutenant-Commander who is a submarine officer and an Army Major in military intelligence. Four of the panelists are men; three are women.
"Send a message to al-Qaeda," Mr. Groharing said to the panel. "Tell them we will meet you any day on the battlefield and that ... if you continue to fight like cowards ... tell them you will be tried in a court of law ... tell them your jihad is over."
In his last statement to the panel, Mr. Khadr, now a confessed war criminal and terrorist, said he hoped they would consider that a U.S. military interrogator threatened to have him gang-raped to death.
"This story scared me very much and made me cry," the burly Mr. Khadr, now 24, said in an unsworn statement read by his lawyer to the panel on Friday.
Joshua Claus, a former U.S. army interrogator, convicted of assault in connection with the beating death of an Afghan detainee at the U.S. detention centre in Bagram, Afghanistan, boasted under oath that he told young detainees a horrific tale of an Afghan boy gang-raped to death by "four big black guys" to persuade them to confess.
Mr. Khadr, then a gravely wounded 15-year-old shot twice in the back and half-blinded by shrapnel, was captured after a firefight during which a U.S. special forces medic Sgt. Christopher Speer was killed.
Mr. Claus's testimony at a pretrial hearing last April will never be heard by the military panel because Mr. Khadr pleaded guilty in a pretrial deal that will likely result in his return to Canada next year.
Mr. Khadr can't be cross-examined on his unsworn statement. The manoeuvre, however, made the panel aware of the threats of gang-rape and the clear - but unsubstantiated - suggestions that Mr. Khadr was abused and tortured while in U.S. military prisons.
"I ask that you consider this letter about what happened to me at Bagram in 2002," Mr. Khadr's statement begins. "I know it doesn't change what I did but I hope you will think about it when punishing me."
The military panel also knows Mr. Khadr has agreed to a long set of facts; including admitting he was an al-Qaeda terrorist, wanted to kill Jews and Americans, built roadside bombs and tried to kill civilians.
Ottawa still insists it has no role in the repatriation elements of the deal, but Colonel Patrick Parrish, the military judge in the case, has said he will release the exchange of diplomatic notes regarding Mr. Khadr between the Harper government and the White House.