Washington Post Staff Writer
Wednesday, February 10, 2010

Omar Khadr, the youngest detainee at Guantanamo Bay, Cuba, was 15 when he allegedly threw a grenade that killed a U.S. Special Forces medic in Afghanistan. Now, more than seven years later, Khadr is drawing the Obama administration into a fierce debate over the propriety of putting a child soldier on trial.

When the dust settled, American forces approached the ruined compound, only to be blasted by a grenade thrown by someone inside. Delta Force 1st Sgt. Christopher Speer, a father of two, would die more than a week later at a military hospital in Germany. Another Special Forces soldier, Sgt. Layne Morris, was blinded in one eye by another grenade.

Inside the compound was one survivor, Khadr, who had been shot twice in the chest.

Military prosecutors, who charge that Khadr threw the deadly grenade, said the Canadian’s age does not excuse his actions. They note that a military judge in 2008 rejected a defense motion that the commissions did not have jurisdiction over the crimes of a child soldier.

“His age, family background, the culture he grew up in are all going to be part of a trial, and they are all going to be factors that the members can consider,” said Navy Capt. John F. Murphy, the chief military prosecutor at Guantanamo Bay, referring to the military term for jurors. “We’re not hiding from the fact that he was 15 years old. . . . Even in our traditional court system, we try 15-years-olds, and we try them as adults.”

There is no strict international prohibition against prosecuting child soldiers, but there is a general consensus on the issue. The U.N.-backed Special Court for Sierra Leone, for example — which was set up to try people accused of grave human rights violations — allowed the prosecution of people 15 and older, but no minors were put on trial.

“I could have prosecuted anyone under the age of 18 for war crimes and crimes against humanity, but I chose not to,” said David M. Crane, the former chief prosecutor for the Sierra Leone court and a law professor at Syracuse University. “I didn’t think any person under that age had the requisite mens rea, the evil-thinking mind, to commit a war crime. It’s a rare thing, almost unheard of, that we prosecute children.”

But Michael A. Newton, a former State Department official who helped set up the Sierra Leone court, said Crane’s exercise of prosecutorial discretion carries no weight in other legal settings.

“The key issue is: Does international law prohibit the prosecution of people below the age of 18? And the answer is no,” said Newton, a professor of law at Vanderbilt University. “It’s disfavored but not prohibited. Remedial training and rehabilitation is the norm. Prosecution is the exception, but prosecution is not prohibited.”

Murphy also pointed out “a historic basis to charging minors and prosecuting them in commissions.” He noted that the United States and Britain prosecuted Nazi minors in military tribunals after World War II, and that some were imprisoned.

American attorneys for Khadr, now 23, said they will continue to press the argument that their client, as an alleged juvenile offender, should not be tried in a military tribunal.

“Omar Khadr is not in Afghanistan but for his father,” said Kobie Flowers, one of Khadr’s attorneys. “He conscripted the boy — and what choice did Omar have?”

Living with al-Qaeda

Khadr’s father, Ahmed Said Khadr, immigrated to Canada from Egypt as a young man, and his mother, Maha Elsamnah, a Palestinian raised in Egypt and Saudi Arabia, moved to Canada with her family when she was 17. Drawn first to the anti-Soviet jihad, Ahmed Said and his kin shuttled back and forth between Canada and Pakistan, where the family patriarch worked for an Islamic charity. In 1995, the father was detained in connection with a bomb attack on the Egyptian Embassy in Islamabad, but the charges were eventually dropped.

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