According to Phil Zelikow, under the Administration's "new paradigm," military commission trials are supposed to be reserved for the big fish directly involved in terrorist activities, against whom such trials have historically been used -- "for major war criminals and al Qaeda’s leaders."
That hardly describes this case.
In almost any other armed conflict, the military probably would not think to try even an adult for most of the sort of battlefield conduct at issue here. It appears that the only difference in this case is that Khadr was not in uniform -- which hardly seems a good enough reason to treat his battlefield combatancy as a war crime. (The spying charge, on the other hand, is similar to charges that have been tried by military tribunals in past conflicts.)
Moreover, Khadr was fifteen years old when we captured him. As Victor Hansen and Lawrence Friedman write:
"Even assuming that Omar Khadr did in fact throw a grenade at U.S. forces during a firefight in Afghanistan, he clearly does not fit into the category of the “worst of the worst” that the administration claims are being detained and prosecuted at Guantanamo. At most, he was a 15 year-old foot soldier doing the bidding of much more dangerous and culpable terrorists. . . . Why . . . is the U.S. spending time, effort and resources, and squandering what little international goodwill it may still enjoy, on prosecuting a 15-year-old alleged foot soldier of Al Qaeda? Why weren’t these foot soldiers “turned” and used to go after mid-level and senior members of Al Qaeda? . . . . It seems to us that this prosecution of Omar Khadr is really emblematic of the complete failure of Guantanamo and the military commissions system. While many of the “worst of the worst” remain at large, the U.S. seeks to prosecute a child by military commission who, if he were an American citizen would not be subject to courts-martial jurisdiction because of his age."
Dahlia Lithwick, at Slate, further notes, paraphasing and then quoting Phil Zelikow (executive director of the 9/11 commission and until recently a close adviser to Secretary of State Condoleezza Rice) that:
Of the nine elements of this "new paradigm" . . . one was to "close Guantanamo," and another was "employing these military commissions for major war criminals and al Qaeda's leaders, not Osama's driver." And who did Brownbeck and Allred see in their courtrooms yesterday morning? Osama's driver. And a Canadian kid who allegedly threw a grenade that killed a U.S. soldier.
Oh, and where was the courtroom? In Guantanamo.
Zelikow's moderate vision, which appears to be supported by both Secretary of Defense Gates and Secretary of State Rice, as well as moderate Democrats and Republicans in Congress, appears to have been trumped by Dick Cheney, the least popular politician on the national scene in the United States, whose former chief of staff is a convicted criminal. But, Cheney has the ear of the President, and the President has no moral backbone of his own, and only moderate intelligence.
The hard core conservative element of the Bush Administration has been mostly purged in favor of true reactionaries and those who are amoral and truly craven -- bar a few remaining leftovers like the Military Commission judges who were hand picked for their loyalty and conservatism.