The Pentagon will not seek the death penalty against Omar Ahmed Khadr, the Canadian detainee at Guantanamo Bay, Cuba, who has been charged with killing a U.S. army medic during a battle in Afghanistan in 2002.
The decision is a victory for the Canadian government's view that the al-Qaeda terrorism suspect should not face execution because he was only 15 when he is alleged to have committed the crime. The U.S. change of heart may also result from a Supreme Court ruling in March that bans the death penalty for minors.
"The case will not be referred as a capital case," a U.S. Defence Department spokesman said yesterday. "They have assured me that the death penalty will not be a consideration in his case." The same spokesman gave different information on Monday.
In Ottawa, the Pentagon's announcement was a pleasant surprise for Canadian officials.
"We have sought these kinds of assurances for some time now from the United States, that they would not seek the death penalty because of Mr. Khadr's age," said Dan McTeague, the Canadian parliamentary secretary for Foreign Affairs. "He was just 15 at the time of the alleged offence. But in addition, Canada opposes the death penalty in all instances as being inconsistent with Canadian values."
Ottawa will continue to press the Americans to allow Mr. Khadr to have access to Canadian lawyers and to have civilian lawyers representing him when the military tribunal is convened, Mr. McTeague added.
Mr. Khadr is charged with hurling a grenade that killed Sergeant 1st Class Christopher Speer during an armed fight with al-Qaeda terrorists in Khost, Afghanistan. The same grenade killed two Afghan militiamen and cost Sergeant Layne Morris the sight in his right eye, for which Mr. Khadr is also charged with attempted murder.
"He may have been 15 but he was trained to be a terrorist," said Donald Winder, a Utah lawyer who is representing the widow of Sgt. Speer and Sgt. Morris in a civil damage suit against the estate of Mr. Khadr's father. "I don't have a lot of sympathy for the kid."
Legal experts believe that the Pentagon has decided against seeking the death penalty, primarily because of the Supreme Court decision in March that barred executions of criminals under 18 as cruel and unusual punishment.
"My guess is that the Pentagon had decided that it doesn't need to fight this extra battle at this time," said Michael Byers, a professor of international law at the University of British Columbia. "They've got enough of a fight on their hands over the constitutionality of these [military]commissions."
On Monday, the U.S. Supreme Court agreed to hear a case challenging the right of President George W. Bush to convene such military commissions.
Michael Scharf, a law professor at Case Western Reserve University in Ohio, said the Supreme Court ruling on the death penalty was very broad, encompassing not just state and federal courts but also military commissions of the kind that will rule in Mr. Khadr's case.
"No U.S. authority could put people to death for crimes they have committed before they are 18," he said.
Canadian diplomats were allowed to conduct their first "welfare visit" with Mr. Khadr in March to see whether he was being treated well and whether he was in good health.
Ottawa is negotiating with the United States and Mr. Khadr's Canadian lawyers on the terms of a second such consular visit, Mr. McTeague said.
Mr. Khadr's Canadian lawyers want to make sure any such visit is not used to gather information that might be used against their client later in possible legal proceedings in Canada. They obtained a Federal Court of Canada order to that effect after Canadian intelligence officers sought to interrogate Mr. Khadr while he is in U.S. custody.
Prof. Scharf said that the commissions differ in several important aspects from civilian courts. Instead of a jury, the decisions are made by a panel of military officers. While the proceedings are held in public, they often go behind closed doors and testimony can sometimes be heard without the presence of defence counsel.
"There is no right of appeal," Prof. Scharf said, noting that appeals are discretionary and the ultimate decision on whether an appeal can be launched depends on the President of the United States.
In Toronto, Mr. Khadr's mother, Maha Elsamnah, lashed out at both Washington and Ottawa over the detention and treatment of her son.
"The Americans are gods now. The Americans can do anything. They make the law. Nobody can tell them anything. Nobody can disagree with them."
"The Canadians have not been trying anything," Ms. Elsamnah told The Canadian Press. "Ottawa is allied to the Americans, so what do you expect?"
She said she receives regular letters from her son, the last about two weeks ago. "He's fine," she said. "[But]I can't be of any help. Believe me, if I could, I would help my son."