WASHINGTON — When Omar Khadr, a former child soldier for al-Qaida, agreed to plead guilty in a high-profile case before a military commission 17 months ago, the terms of his plea deal strongly signaled that after November 2011 he would be transferred to his native Canada to serve the remainder of his sentence.
But that date has come and gone, and a frustrated Khadr remains at the military prison at Guantanamo Bay, Cuba.
Officials say his limbo status is the result of bureaucratic delays in processing his application to transfer, especially within the Canadian government.
“He’s ready to go home,” said Lt. Col. Jon Jackson of the Army, Khadr’s military lawyer. “He’s upheld his end of the bargain.”
Khadr’s predicament has broader consequences. He is the first inmate who appeared ready to be transferred home as a result of a plea deal under the Obama administration’s revised system of tribunals, a prospect that prosecutors are now aggressively dangling before other Guantanamo detainees.
Since taking over as chief military prosecutor last fall, Mark Martins, a brigadier general in the Army, has sharply increased efforts to strike plea deals with lowlevel detainees in return for agreements to provide voluntary testimony against more significant terrorist suspects, adopting a familiar tactic inthe traditional civilian criminal justice system.
But as months pass and Khadr, now 25, remains at Guantanamo, his fellow inmates are growing distrustful that the main inducement prosecutors can offer them - the prospect of leaving by a defined date - is meaningful, defense lawyers say. That mistrust, in turn, is complicating efforts to win more plea deals.
Among the low-level detainees who have hesitated is Sufyian Barhoumi, an Algerian who was arrested at an al-Qaida-linked guesthouse in Pakistan in 2002 during the raid that also netted Abu Zubaydah, who is accused of being an important terrorist facilitator.
His military defense lawyer, Lt. Col. Richard Reiter of the Air Force, said Barhoumi was talking with the military about a plea deal in exchange for testifying against Zubaydah.
But the “Khadr problem,” as Reiter called it, has made him demand a guarantee that he will be repatriated to Algeria by a certain date, something that prosecutors say they can’t provide.
“The fact that Khadr remains at Guantanamo beyond when he was supposed to be transferred is a significant hindrance in my client’s willingness to participate in negotiations with the government,” he said.
In an interview, Martins said he could not discuss Khadr or any other specific detainee, but he acknowledged that the inmate population was aware of what was happening to other detainees who went through the tribunal system.
“The outcomes of cases are important signals to others who are watching, and they bear upon what decisions they then make about whether to cooperate,” he said.
Khadr, who was born in Toronto and comes from an al-Qaida-linked family, was 15 years old when he was captured in Afghanistan in 2002 after a firefight with U.S. troops.
He was accused of throwing a grenade in that battle that killed an American, Sgt. 1st Class Christopher Speer, and of planting roadside bombs.
After pleading guilty to all five charges against him, including murder in violation of the laws of war and providing support to terrorism, Khadr was formally sentenced to 40 years in prison. But under the terms of the deal, his prison time was capped at eight years, and after one year he became eligible to apply to transfer to Canada to serve the remainder of that sentence - and possibly be released on parole.
As part of the deal, the United States and Canadian governments exchanged diplomatic notes pledging to support his application to transfer, with Canada saying it was “inclined to favorably consider Mr. Khadr’s application to be transferred toCanada to serve the remainder of his sentence.”
Last spring, lawyers for Khadr on both sides of the border submitted his application to be transferred, andboth countries began processing it.
U.S. officials acknowledge that they were not done reviewing that application by November, but say it has since been finished. All that remains is for Defense Secretary Leon Panetta to sign the final paperwork and give Congress a legally mandated 30-day notice of a pending transfer.
But before Panetta can sign those papers, the Canadian minister of public safety, Vic Toews, must formally ask for Khadr. Despite the diplomatic note, he has not done so. The Khadr family is unpopular among many in Canada, and the administration of Prime Minister Stephen Harper has been ambivalent about his case.
Michael Patton, a spokesman for Toews, said that the average time between an application and the arrival of a prisoner in Canada was 18 months, and that the minister would not make any decision until he received a report from the Canadian prisons agency about matters such as whether Khadr would pose a threat to public safety.
“The file has not come to the minister’s office for review yet,” Patton said in an interview. “Where it is in the system, I don’t know.”
Matthew Waxman, a Columbia Law School professor and formerly the top detainee policy official at the Pentagon during the Bush administration, said the delay risked undermining the ability of military prosecutors to secure other plea bargains.
“Plea deals, including transfer to a home country,can be a very useful tool for the government,” Waxman said. “But these bargains depend on the credibility of the governments’ offers. The less detainees can count on the governments to follow through, the less inclined they’ll be to accept such arrangements.”
The importance of plea bargains was underscored last month when prosecutors struck a deal with a former resident of the Baltimore area, Majid Khan.
He agreed to testify against Khalid Shaikh Mohammed, accused of being the architect of the Sept. 11, 2001, attacks. (Jackson also represents Khan.)
Under the deal, Khan will be sentenced in about four years. If he lives up to the agreement, he will receive a maximum sentence of 19 years, and perhaps significantly less, compared with the 25 to 40 years he otherwise faces.
At a hearing, before accepting Khan’s guilty plea, a military judge made sure he understood that there was still no guarantee that he would ever be released; the U.S. government has reserved the right to continue to detain terrorism suspects, even after they serve their sentences or are acquitted at trial.
“I’m making a leap of faith here, sir,” Khan replied. “That is all I can do.”
Front Section, Pages 5 on 03/25/2012