The answer to your two sub-questions is yes. We know that the U.S. government has detained children in connection with the armed conflict in Afghanistan, both in Afghanistan and at Guantánamo Bay. As I sit here, I have no idea what the numbers are in Afghanistan. I think there may be other witnesses who will be testifying before this panel who can answer that question, as they will have extensive experience with child soldier issues and, in particular, child soldier issues in Afghanistan. But we know that they have detained some number in Afghanistan and probably hold as many as a dozen at Guantánamo Bay.
Although the U.S. government does not acknowledge, and has not acknowledged, that the Child Soldier Protocol affects in any way the circumstances of detention at Guantánamo Bay, it appears nonetheless to have made an effort to comply with it, without acknowledging its obligation under it. As a result, a number of the children detained at Guantánamo Bay—all except Omar, to our knowledge—were kept or segregated in a separate facility for children, known as Camp Iguana. They were afforded special treatment, special access to educational and other rehabilitative services, and eventually were repatriated to their home countries from Guantánamo Bay.
In contrast, Omar Khadr, literally from day one, after being shot by U.S. forces on the battlefield in Afghanistan, has been detained as an adult, without regard to the fact he was a child under international law and entitled to special protections under the protocol. Not only has he been detained with adults, but he's also been subject to the same interrogation and detention regime as adult detainees. So the U.S. government, in its treatment of Omar—and again, in contrast to other children—has consistently failed to comply with the protocol.
Of course, the current manifestation of that is his anticipated trial by military commission. This military commission process does not differentiate at all between children and adults, so Omar is going to be tried, if he is tried, as an adult on the same terms and under the same procedures applied to adult detainees.
Omar's case is obviously somewhat notorious in that he's alleged to have killed a U.S. soldier in the course of hostilities in Afghanistan. I think it's worth noting that one of the first, if not the first, U.S. soldier killed in the course of the Afghan conflict was a man by the name of Nathan Chapman, who was shot by a 14-year-old Afghan boy, who was then detained by the U.S. for some period of time and then, again, consistent with the protocol, ultimately released and reintegrated into Afghan society. Again, the point is that the U.S. has made some effort to comply with respect to other children.
With respect to your second question, my own view is that if you go back to November 2005.... And it's important to keep in mind when we're talking about military commissions that there have been three versions of this process since 9/11: two versions under a presidential executive order; and then after the Supreme Court struck down those military commissions that had been authorized by executive order as a violation of the Geneva Conventions, there is now another system, the current system authorized by statute.
So Omar was one of the detainees charged in the first military commission system. At that time, the so-called high-value detainees, Khalid Sheikh Mohammed and the other alleged 9/11 conspirators, were in secret detention in some other place. They weren't in Guantánamo and probably weren't going to be in Guantánamo for some period of time, so all of the detainees who could potentially be charged by the United States were these low-level people.
I think that if you put two and two together, the chief prosecutor at the time looked at the allegations in Omar's case, the fact that he had allegedly killed a soldier, that there was a real victim, that there was a family, and so forth, and saw that this case might be one with more media appeal and might serve to publicly legitimate the military commission's process when compared with the cases of the other prospective defendants.
So what we find is that Omar was charged initially in November 2005 and that the majority of the actual investigation, whose defects have come to light in the last several months, was conducted after that initial charging decision. I think that explains why he was initially charged and the fact that the U.S. government is now invested in it because of that decision. This explains why it goes on.