Conflict Heating Up Over U.S. War Crimes Trials of Children

The United States could be the first Western nation in recent years to try a prisoner for war crimes allegedly committed as a child.

So says the ACLU, which is calling on the U.N. Committee on the Rights of the Child and the U.N. Special Representative for Children and Armed Conflict to stop the military commission war crimes trial of Omar Khadr, the 22-year-old Canadian national who the Bush administration wants to try at Guantánamo Bay for war crimes he allegedly committed when he was 15. Khadr’s trial is scheduled to begin Jan. 26.

Will Obama let it happen?

The ACLU wrote yesterday to the UNCRC, urging it to stand up to the United States and oppose the trial: “while such a public statement is an exceptional measure for the Committee to adopt, it is warranted by the urgent circumstances. If the trial of Omar Khadr goes forward, it would establish dangerous precedent for the United States and the entire world.”

The ACLU’s letters ask the organizations to call on President-elect Barack Obama to suspend the trial. But it raises an interesting question: Even if he stops the military commissions from going forward, what’s Obama going to do with these guys?

As I noted yesterday, a U.S. District Court judge Wednesday ordered another Gitmo prisoner, picked up as a 17-year-old, released. He’d been held for support he allegedly offered to Al Qaeda when he was 11.  And the judge found there wasn’t any credible evidence to support the charges.

Khadr would be very lucky if a judge in a habeas proceeding were to dismiss his case, too.  But what if a judge decides there’s enough evidence to keep holding him? And even if a court orders him released, as we’ve seen from the cases of about 60 other prisoners already cleared to leave, that doesn’t guarantee he’ll actually get to go home.

The ACLU has also protested the trial of Mohammad Jawad, who I’ve written about before, who’s been accused of throwing a grenade when he was 16.  He’s been stuck at Gitmo without a trial for six years. The ACLU is also representing him in a habeas case.

At this point, it’s hard to imagine that Obama will allow the military commission trial to go forward for either of these prisoners, given his criticisms of the system.  But the continued imprisonment of young men in their twenties accused of committing war crimes as children only adds to the pressure Obama will face about how to ensure justice is served for all these Gitmo prisoners once he takes over.

Given that Khadr’s trial is scheduled to start just six days after Obama’s inauguration, the new president will have a lot of decisions to make — fast.