Let me get this straight. Khalid Sheikh Mohammed, the self-proclaimed mastermind of the 9/11 terror attacks, gets a fair trial with all the constitutional trimmings. But Omar Khadr, the Canadian child-soldier accused of killing an American sergeant during battle, will still be tried before a kangaroo court.
Incidentally, the kangaroo court label isn't mine. That's how U.S. military lawyers describe the commission that is supposed to try the 23-year-old Toronto man.
As Lt.-Col. Darrel Vandeveld, a former military commission prosecutor, wrote last month in a letter to the Washington Post, these bodies were designed "to secure convictions where prisoner mistreatment ... would otherwise preclude them."
True, President Barack Obama has eliminated some of their worst elements. Under amendments passed into law last month, the military commission that tries Khadr will no longer be able to use information gained under torture. So that's something.
But as the American Civil Liberties Union has pointed out, the law still permits evidence obtained through both hearsay and coercion, as long as this coercion does not involve "cruel, inhuman or degrading treatment." Neither hearsay nor coercion will be permissible in the civilian trial of alleged mass murderer Mohammed. Neither is permissible in a military court martial. But both may be allowed in the trial of Khadr, who at the age of 15 was sent off by his father to aid pro-Taliban forces resisting the American-led invasion of Afghanistan.
Why the difference? U.S. Attorney General Eric Holder insists he merely wants to differentiate between those accused of attacking civilians and those charged with crimes against the military.
He says that's why Mohammed, accused of bringing down the twin towers, will be tried by a civilian court in Manhattan. And he says that's why Khadr and four others charged with attacking U.S. soldiers will be tried by military commissions.
This is the excuse. The real reason, I suspect, is that Washington knows that 9/11 ringleaders like Mohammed will be happy to publicly acknowledge their crimes, thus making their convictions a near certainty.
But Khadr is not angling for martyrdom. And in a real court of law, the case against him would almost certainly fail.
First there is his age. Fifteen at the time of his capture, he would be considered a child soldier under United Nations conventions (military commissions are specifically entitled to disregard this).
Second, as my colleague Michelle Shephard writes in her book, Guantanamo's Child, Khadr – seriously wounded in the Afghan firefight – was in such bad shape during questioning that even his U.S. interrogator feared he might die.
In civilian court, statements obtained under such circumstances would be dismissed as coerced.
Lurking behind all of this is the Canadian government's obdurate refusal, in Parliament and the courts, to request his repatriation.
It's not clear that the U.S. would agree to such a request if one were made. Holder was deliberately opaque when asked yesterday, saying only "we will, as that case proceeds, see how it should be ultimately treated."
What we do know, however, is that after seven years in custody in Afghanistan and Guantanamo Bay, this particular Canadian citizen is heading for a low-level show trial.
Shame on Obama for keeping the military commission farce alive. Shame on Canada for failing to object.
Thomas Walkom's column appears Wednesday and Saturday.
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