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Possible Plea Deal for Canadian Detained in Guantánamo Bay

Omar Khadr, a Canadian citizen held in the U.S. detention facility in Guantánamo Bay, Cuba, was set to be the second detainee tried under the Obama administration.  Khadr was detained after a firefight near Khost, Afghanistan, and was accused of lobbing a grenade that killed a Special Forces medic, in violation of the laws of war.

Khadr was 15 years old when detained, and his detention and trial in Guantánamo have created world-wide backlash.  The first detainee trial during the Obama administration, the guilty plea of Ibrahim al Qosi, was a very easy case, with very little public controversy.  (Besides a sealed plea dealex post facto issues, problems with the pre-trial agreement, and confusion over whether material support of terrorism is a violation of the laws of war.)  It is unclear why the administration decided to bring forward Omar Khadr’s trial as the first detainee trial that might actually have to be litigated, as the age of Khadr when he was detained and the crime of which he is charged—murder is not a traditional violation of the law of war, but is normally tried under domestic law.

However, there might be a plea deal in the works.  Khadr’s trial started in August, but was suspended after Khadr’s military counsel collapsed in court, due to complications with gallbladder surgery.  During that initial hearing, the military judge had ruled that evidence of Khadr’s involvement in the death of the SF medic would be admitted, despite allegations of torture and mistreatment.  It now appears that Khadr and his lawyer are seeking a pretrial agreement under which he would serve eight more years, seven of those in Canadian custody.  The court date is scheduled for October 25, and if it is true that there will be a guilty plea and pretrial agreement, the Military Commission Act of 2009 will remain untested by litigation.  (Al Qosi’s pretrial agreement, in part, prevents al Qosi from challenging or appealing the decision of his Military Commission, and it is likely that Khadr’s potential agreement will contain similar language.)

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