The CIA’s [redacted] Operations

As you read the Awlaki memo, it’s worth remembering why it was written, after David Barron had already written a memo authorizing Anwar al-Awlaki’s killing 5 months earlier. In April 2010, as newspapers reported that Awlaki had been added to the CIA Kill List (having been added to the JSOC one either in December 2009, before they tried to kill him on Christmas Eve, or in January 2010, when Dana Priest reported it), international law scholar Kevin Jon Heller wrote a blog post arguing that it would be murder for CIA to kill Awlaki.

The Obama administration has been savagely criticized for authorizing the CIA to use lethal forceagainst Anwar al-Awlaki, a US citizen who is allegedly a member of al-Qaeda in Yemen.  Glenn Greewald, for example, has described the decision — justifiably — as “unbelievably Orwellian and tyrannical.”  To date, however, critics have ignored what I think is perhaps the most important point:An American who kills an American outside of the United States is guilty of murder.  Not political murder.  Not figurative murder.  Legal murder.

18 USC 1119:

(a)Definition.— In this section, “national of the United States” has the meaning stated in section 101(a)(22) of the Immigration and Nationality Act (8U.S.C. 1101 (a)(22)).

(b)Offense.— A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 11111112, and 1113.

The foreign-murder statute has to be the starting point of any analysis of the Obama adminstration’s decision to authorize the CIA to kill al-Awlaki.  If the CIA does kill him — and even if it doesn’t; see below — any CIA operative involved in the killing who is American is presumptively a murderer.  The only questions would be (1) whether for some reason 18 USC 1119 would not apply, and (2) whether the CIA operative would have a plausible defense if he was charged with murder in federal court.

In response to this post, David Barron felt the need to reconsider the question.

The main point was to determine whether the CIA — not the government generally — could kill Awlaki.

And the memo seems to betray uncertainty about whether they’ve really proved their case.

Consider the length. Barron takes 10.5 pages to consider whether DOD could kill Awlaki, and somewhat unsurprisingly finds that soldiers whose job it is to kill the country’s enemies can kill someone who has been deemed an enemy to his country.

Barron spends just 5 pages considering the far more controversial question whether CIA can kill Awlaki. As was pretty clear Barron would do from the White Paper, he does so by collapsing the difference between soldiers (whose job is to kill our enemies) and CIA (who are prohibited from breaking US law and whose job is not, primarily, to kill our enemies). That is, the argument in favor of soldiers killing stands in for a considered argument for spies killing.

It seems to accomplish this by classifying CIA’s actions as military — though the classification is redacted. See this passage from page 18:

Screen shot 2014-06-23 at 4.24.44 PM

And this passage from page 32:

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Given debates that took place afterwards, I think the redacted language may either describe CIA’s actions as Traditional Military Activities or paramilitary activities. It appears by labeling the CIA’s job as such, Barron disappeared the other rules that govern CIA action. But his language in this footnote, doesn’t reflect great confidence his argument is very strong.

We note, in addition, that the “lawful conduct of war” variant of the public authority justification, although often described with specific reference to operations conducted by the armed forces, is not necessarily limited to operations by such forces; some descriptions of that variant of the justification, for example, do not imply such a limitation. See, e.g., Frye, 10 Cal. Rptr. 2d at 221 n.2 (“homicide done under a valid public authority, such as execution of a death sentence of killing an enemy in a time of war”); Perkins & Boyce, Criminal Law at 1093 (“the killing of an enemy as an act of war and within the rules of war.”)

Barron’s confidence in footnote 44 — especially where he argues that the US doesn’t think that unprivileged combatants (which include both CIA and al Qaeda members operating not in uniform) engaging in killing violates the law — appears even more shaky. If that’s true, then someone should go free Omar Khadr, because we argued that his self-defense attempted killing of Americans was illegal solely because he was unprivileged.

That is, it doesn’t appear even Barron believes his own argument.

One other thing that appears to be redacted is the authority for CIA’s actions, in the redacted language following “the CIA would carry out in accord with” …

That language probably refer to the Presidential Finding required before CIA engages in covert operations. That is, critical to this argument appears to be the formula that if the President deems the CIA a military force (and gives them drones) then they get treated — at least according to US law — just like soldiers, even when they’re killing Americans. 

That involves an extra step to the formula “if the President authorizes it,” requiring also that he call CIA spies soldiers. But it still amounts to the same argument.


Judge Kollar-Kotelly Sees No Evil, Hears No Evil

Yesterday, Colleen Kollar-Kotelly upheld the government’s right to withhold cables already released via WikiLeaks under FOIA (see my earlier posts on this FOIA here and here). Her logic seems to have a fatal flaw: she says the State Department has proven (and the ACLU has not rebutted the claim) that the US Government owns the cables.

The ACLU simply offers no rejoinder to the State Department’s affirmative showing that all the information at issue (1) was classified by an original classification authority, (2) is owned, produced, or controlled by the United States, and (3) falls within one or more of the eight relevant categories. [my emphasis]

But then she says (noting that ACLU made no mention that these cables had also been released via WikiLeaks and therefore pretending that they might be different) that the government has not officially acknowledged these cables are authentic.

No matter how extensive, the WikiLeaks disclosure is no substitute for an official acknowledgement and the ACLU has not shown that the Executive has officially acknowledged that the specific information at issue was a part of the WikiLeaks disclosure.

I guess they should let Bradley Manning go free, then, since the State Department isn’t prepared to say the cables he is accused of leaking were authentic?

But that’s not the most troubling part of this ruling. As I lay out below–and as Kollar-Kotelly presumably knows well–the cables are full of admissions of crime, including murder, torture, and kidnapping. Thus, had she reviewed them to see whether the government’s claims that they were properly classified are valid, she would have seen that–in addition to information properly classified to protect foreign relations–a lot of the original classification and the government’s refusal to officially release them (which would presumably make them admissible in a court) serve to hide confessions of criminal activity.

So Kollar-Kotelly chose not to review these cables in camera, choosing instead to rely on the State Department declaration that makes no mention of the criminal admissions included in the cables.

In this case, because the State Department’s declarations are sufficiently detailed and the Court is satisfied that no factual dispute remains, the Court declines to exercise its discretion to review the embassy cables in camera.

It was a cowardly ruling. But all the more cowardly, given that Kollar-Kotelly prevented herself from officially reviewing a bunch of evidence of criminal wrong-doing.

Here are details on the cables Kollar-Kotelly doesn’t want to read:

The famous meeting at which Ali Abdullah Saleh promised to lie about our strikes in Yemen

Kollar-Kotelly agreed to keep what has become perhaps the most famous cable ever, in which David Petraeus and Ali Abdullah Saleh discuss the missile strikes we conducted in Yemen in late 2009.

Mind you, the government likely has a very good legal reason to keep this cable secret. The cable makes it clear we were targeting Anwar al-Awlaki (as well as Nasir al-Wuhayshi) in those strikes. And releasing that would constitute official acknowledgement of the targeting of Awlaki that the government has tried so hard to avoid. Furthermore, as I’ll show in a follow-up post, it also shows that we targeted Awlaki for death before we had evidence implicating him in a crime.

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The Beat from Hell: Carol Rosenberg’s Decade Covering Gitmo

For the record, Carol Rosenberg has been covering Gitmo for more than the decade that has elapsed since she arrived there on January 9, 2002 to cover the impending arrival of the first war on terror detainees. She filed this story on March 22, 1999 and another a month later for the Charlotte Observer, when she covered the de-mining of the island.

This is “Gitmo,” 45 square miles of U.S.-controlled territory stranded in a time warp and shrinking in resources in the post-Cold War era. Two years ago, it had 6,000 residents, both military and civilian; it will have half that later this year.

Formally called the U.S. Naval Station at Guantanamo Bay, this hemisphere’s last outpost against Communism also is a curious island of Americana on the eastern end of Cuba.


Since [Base Commander Larry] Larson arrived two years ago from the Naval War College, the former test pilot has presided over a campaign of cutbacks and downsizing – in keeping with a military-wide austerity kick caused by the collapse of the Iron Curtain.

When he arrived, about 6,000 people – both civilian and military – lived and worked out of some 1,890 buildings, ranging from World War II vintage pump houses to bachelors’ quarters. Their budget was $41 million.

By October 1999, he plans to operate only out of 900 buildings, to cut the budget to $24 million and the population to about 2,500.

But it was 10 years ago today when Rosenberg first started covering the base’s use as a prison for alleged terrorists. As I’ve heard others who have made the trip explain, Rosenberg is now the institutional memory of the place, often describing what a space was used for years before DOD’s current press minders ever showed up. Or, as she described in a National Press Club speech last year, what the rules used to be for journalists and attorneys.

It’s a place the Pentagon likes to call the most transparent detention center on Earth. Hundreds of reporters have visited there, they say, since the first al Qaida suspects arrived eight years ago.

They skip the part about how few go back more than once — stymied by the sheer frustration at the rules, the hoops, the time, and the costs of doing basic journalism. Being a court reporter. Writing a feature story. Conducting an interview.

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How to Stage Manage a Show Trial

Michelle Shephard reports on an effort Omar Khadr’s military lawyers are making to win clemency for their client. (h/t JL) Much of it focuses on the role psychiatrist Michael Welner, who testified that his interview with Khadr proved he’d never give up violence, played. As Jeff Kaye showed at the time, Welner’s report on Khadr showed an anti-Muslim bias. Khadr’s lawyers were able to rip Welner’s testimony to some degree.

Thus far, the defense has shown Welner didn’t read one of the studies he relied on for his Khadr profile, shown his work was not peer reviewed, and challenged Welner on his research methods: “Your sample size was Omar Khadr?”

But they’re apparently arguing that they were told not to challenge Welner’s expertise more generally (presumably to exclude his testimony), because if they did it would endanger the plea deal they had negotiated for Khadr.

In a 40-page motion obtained by the Toronto Star, Khadr’s lawyers argue that testimony from Dr. Michael Welner was “unscientific” and “designed solely to inflame and mislead the jury.”

Lawyer Army Col. Jon Jackson and Air Force Maj. Matthew Schwartz also claim that prosecutors threatened to revoke Khadr’s plea deal if they challenged Welner’s credentials as an expert witness.


At a time when Guantanamo’s military commissions are under renewed scrutiny concerning the upcoming trial of the alleged 9/11 conspirators, one of the most damning allegations is a claim that the prosecutors had the convening authority’s permission to rescind Khadr’s plea deal, if defence lawyers tried to get Welner’s testimony excluded as unreliable.

In a separate memo, obtained by the Star, the convening authority denies any discussions or agreements were made with the prosecution. “Please provide a response limited to this allegation of prosecutorial misconduct,” states the March 29 memo to Navy Capt. John Murphy, Guantanamo’s Chief Prosecutor, written by Michael Chapman, the legal advisor to the convening authority.

So here’s what this suggests: The government made a plea deal with Khadr’s lawyers (eight more years, but after one year he’d be transferred to Canada, if they’ll take him). Then it had a show trial featuring a frothing psychiatrist arguing that Khadr would never give up his allegedly Muslim aggression. Normally, defense attorneys could easily exclude such testimony from a trial based on key scientific issues like peer review. But Khadr’s lawyers, allegedly, were put in the position such that if they wanted to preserve Khadr’s 8 year deal, they would have to limit their complaints about Welner.

In other words, the government made a deal: it’d release Khadr to Canada after a year, if his lawyers would pretend to go along with the trial at which a psychiatrist could make claims about Khadr’s innate violence, leading jurors to give Khadr 40 years. It wasn’t just the fake sentence: much of the trial was all for show. It was the appearance of antagonistic sides and the credentials of the frothing psychologist.

Can you imagine what fantastic frothing witnesses we’ll get to see in the 9/11 trial?

Update: Welner’s spelling and credential fixed, per JTMinIA.

The Boys of War

One more boy got dragged into the horror of our country’s war on terror today: Tanner Speer, the 8 or 9 year old son of Christopher Speer, whose death Omar Khadr confessed to. Tanner’s mother read a note the boy wrote for (I think) Memorial Day.

“Omar Khadr should go to jail because of the open hole he made in my family,” wrote Tanner. “Army rocks. Bad guys stink.”

Shortly thereafter, Khadr made an unsworn statement, confessing to killing Speer, but spending time too talking about his biggest dream, to get out of Gitmo, describing how he wanted to be a doctor to help heal the pain of others. He turned to Speer’s widow and apologized for the pain he caused her family; the widow shook her head no in response.

“I’m really, really sorry for the pain I’ve caused you and your family. I wish I could do something that would take this pain away from you,” he said, standing in the witness box and looking at the widow of U.S. Delta Force soldier Christopher Speer.

Also today, Josh Rogin got a copy of the memo the State Department wrote explaining why the US needed to tolerate Yemen’s recruitment of 15 year old boys–the same age Khadr was when we captured him.

Imposing the section 404(a) prohibition against Yemen at this time would harm the cooperative relationship we have begun to rebuild with Yemen at a pivotal point in the fight against terrorism and have a negative impact on U.S. national security.


Cutting off assistance would seriously jeopardize the Yemeni Government’s capability to conduct special operations and counterterrorism missions, and create a dangerous level of instability in the country and the region.

It’s not enough for the Speers apparently, for Khadr to apologize. Because that won’t fix the hole in the Speer family.

I believe that, and I am sorry for their loss.

But these boys conscripted by all sides into the war on terror are not the ones putting the holes in families.

“Profound Equities with Yemen in Terms of Counter-Terrorism” Justify Child Soldiers?

As the prosecutors in Omar Khadr’s sentencing hearing try to undercut the testimony of a defense witness who believes Khadr can be rehabilitated, not least because of his age, an anonymous White House official justifies to Josh Rogin Obama’s decision to undercut a law prohibiting the government from funding countries that use child soldiers.

As I suspected, the Administration rationale for exempting Yemen from sanction explicitly has to do with our counter-terrorism efforts there.

Yemen is a recipient of significant direct U.S. military assistance, having received $155 million in fiscal 2010 with a possible $1.2 billion coming over the next five years. Yemen is also a much needed ally for counterterrorism operations. The government is engaged in a bloody fight with al Qaeda (among other separatist and terrorist groups), and estimates put the ratio of child soldiers among all the groups there at more than half. Nevertheless, “the president believes there are profound equities with Yemen in terms of counterterrorism that we need to continue to work on,” the official told The Cable.

It’s bad enough that our assistance in Yemen will contribute to a war in which half the soldiers are boys.

But I really am saddened by the coincidence in this timing. At this very moment, we’re going to great lengths in Gitmo to villainize Khadr, at least partly to dismiss all the criticism about trying a child soldier (for a crime that is not a crime). It’s as if those involved are trying to convince themselves that their war on terror trumps international norms of decency.

And even as we’re doing that, the President is taking affirmative steps to make it more likely that another boy, like Khadr, will be put in the same situation as him, attacked for following the orders of the adults around him.

Khadr Prosecutors Trying Desperately to Hide Bigoted Article

I eagerly await Jeff Kaye’s take on the defense cross-examination of Dr. Michael Welner, whose anti-Muslim bias Jeff laid out here. Thus far, the defense has shown Welner didn’t read one of the studies he relied on for his Khadr profile, shown his work was not peer reviewed, and challenged Welner on his research methods: “Your sample size was Omar Khadr?”

But in the meantime, I wanted to point out something about this interview the prosecution is “fiercely” trying to prevent coming in as evidence. It reveals the anti-Muslim views of Nicolai Sennels, a Danish psychologist on whose work Welner relies. The interview as a whole is a pretty repulsive demonstration of bigotry. But I was particularly interested in the claims Sennels made about differences between “Western” and Muslim approach to anger.

Sennels: The most important characteristics that I found concerns aggression, self-confidence, individual responsibility and identity.

Concerning anger, it quickly becomes clear that Muslims in general have a different view on aggression, anger and threatening behaviour than Danes and probably most of our Western world.

For most Westerners, it is an embarrassing sign of weakness if people become angry. This view on anger is probably consolidated already in early childhood. I have been working as a school psychologist for several years and bullying is a continuous problem at the schools that I work in. The interesting thing is that the children who are most likely to be the target of being bullied are the children that get angry the easiest. If people get angry we have a tendency to lose respect for them and in many cases we try to tease them to provoke them even more – with the pedagogical aim of helping the person to realize the childishness of his or her behaviour. Trying to get one’s will by acting aggressively or using threats is seen as immature and our reaction is often to ridicule or simply ignore them. Thus, the shortest way to lose face in our Western culture is to show anger.

It is completely opposite in the Muslim culture. While most of my Danish clients who had problems with anger felt embarrassed about it, none of my Muslim clients ever seemed to understand our view on anger. I spent countless hours doing Anger Management therapy with both Danish and Muslim clients and hence I had very good opportunities to experience the cultural differences concerning this specific emotion, ways of handling it and reacting to it.

In Muslim culture, it is expected that one should show anger and threatening behaviour if one is criticized or teased. If a Muslim does not react aggressively when criticized he is seen as weak, not worth trusting and he thus loses social status immediately.

This cocktail of cultural differences has sparked the ongoing debate on free speech all over the world. [my emphasis]

Sennels claims to be making an observation about a distinctly Muslim approach to anger. But it seems laughable, reading it even as the right comes out in support of Rand Paul’s supporter’s attack. Not to mention so shortly after eight years during which George Bush sustained respect from his supporters by carefully performing anger.

If a willingness to express anger is a sign of dangerous anti-social behavior, then Sennels might as well be condemning a great number of angry Americans. If respect for those who become angry makes one Muslim, then I guess we’ve got a lot more sleeper Muslims in the states than even the fearmongers claim!

And given that much of our insistence on military commissions comes out of an anger-driven desire to humiliate our opponents, I can see why Khadr’s prosecutors want to prevent it from being introduced as evidence.

For more on this cross-examination, follow Carol Rosenberg, Muna Shikaki, and Michelle Shephard.

The Same Day US Gets Guilty Plea from Child Soldier, It Exempts Yemen and Others from Restrictions on Using Child Soldiers

The asshole in charge of shredding our Constitution has a really sick sense of humor. Yesterday, the same day the government got Omar Khadr to plead guilty to crimes that aren’t crimes that occurred when he was a child, Obama issued this memorandum.

By the authority vested in me as President by the Constitution and the laws of the United States of America, pursuant to section 404(c) of the Child Soldiers Prevention Act of 2008 (CSPA), title IV of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (Public Law 110 457), I hereby determine that it is in the national interest of the United States to waive the application to Chad, the Democratic Republic of the Congo, Sudan, and Yemen of the prohibition in section 404(a) of the CSPA.

This memo appears to waive the following restriction, thereby allowing the US to fund operations with or make weapons sales to Chad, DRC, Sudan, and Yemen, even though the State Department has reason to believe they use child soldiers.

(a) In General- Subject to subsections (c), (d), and (e), none of the funds appropriated or otherwise made available for international military education and training, foreign military financing, or the transfer of excess defense articles under section 116 or 502B of the Foreign Assistance Act of 1961 (22 U.S.C. 2151n(f) and 2304(h)), the Arms Export Control Act (22 U.S.C. 2751), the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2008 (division J of Public Law 110-161) or under any other Act making appropriations for foreign operations, export financing, and related programs may be obligated or otherwise made available, and no licenses for direct commercial sales of military equipment may be issued to the government of a country that is clearly identified, in the Department of State’s Country Report on Human Rights Practices for the most recent year preceding the fiscal year in which the appropriated funds, transfer, or license, would have been used or issued in the absence of a violation of this title, as having governmental armed forces or government-supported armed groups, including paramilitaries, militias, or civil defense forces, that recruit and use child soldiers.

So, one of the side benefits of Yemen’s cooperation with us on the war on terror is that it can conscript those under 18 and accept as volunteers those under 16 in its military.

This hopey changey thing is really beginning to overwhelm me.

Update: the State Department Report on Yemen last year described this use of child soldiers:

Reports of child soldiers increased in a number of armed conflicts across the country. According to the NGO Small Arms Survey, direct involvement in combat killed or injured hundreds of children annually.

The intermittent conflict in Saada, which began again in August, reportedly drew underage soldiers fighting for the government and the rebel Houthis (see section 1.g.). The Houthis reportedly used children as runners in between groups of fighters as well as to carry supplies and explosives, according to local children’s rights NGO Seyaj. Tribes the government armed and financed to fight alongside the regular army used children younger than 18 in combat, according to reports by international NGOs such as Save the Children.

Married boys, ages 12 to 15 years, were reportedly involved in armed conflict beginning in November 2008 in Amran governorate between the Harf Sufian and al-Osaimat tribes. According to tribal custom, boys who married were considered adults who owed allegiance to the tribe. As a result, half of the tribal fighters in such conflicts were children who had volunteered to demonstrate their tribal allegiance.

It also described the sex trafficking in girls.

There were reports of underage internal sex trafficking during the year. According to a local human rights NGO, an unknown number of women were trafficked from their homes to other regions within the country for the purposes of prostitution.

Though the report says most sex slaves worked in hotels, casinos, and nightclubs, if any of them were used by the armed forces, they would also count as child soldiers.

Update: See this exchange between harpie and powwow, who were discussing this earlier this month.

Khadr’s Confession and the Lies We Tell

Omar Khadr’s confession makes me sad. Sad that we insisted on prosecuting a child soldier for defending himself. But also sad for the lies we included in his plea deal to prop up the government’s dubious stories about Khadr and detainees generally.

For example, can anyone explain to me how Khadr could be an alien unprivileged enemy belligerent under the Military Commissions Act in 2000 (the first action of Khadr’s referenced in the document) when the MCA was first signed in 2006 and we’ve changed even the category since that time?

Omar Khadr is an alien unprivileged enemy belligerent, as defined by the Military Commissions Act of 2009 (MCA). Omar Khadr is, and has been at all times relevant to these proceedings, a person subject to trial by military commission under Section 948c of the MCA.

Then there’s the Afghan deaths the government included in this confession to add to the conspiracy charges, which Daphne Eviatar has written about here.

But the one that bugs me the most is this claim, which includes the assertion that Derunta and Khaldan were al Qaeda camps.

While in Afghanistan, Ahmed Khadr and members of his family, including Omar Khadr, visited many al Qaeda training camps, to include the al Farook camp (where al Qaeda trained in small-arms, map-reading, orientation, explosives, and other training), the Derunta camp (where al Qaeda trained members in explosives and poisons), and the Khaldan camp (where al Qaeda trained members in light weapons, explosives, poisons, sabotage, target selection, urban warfare, and assassination tactics). Omar Khadr knew that these camps were operated by and associated with al Qaeda. Khadr provided U.S. officials with significant details regarding the operation of the training camps, including the fact that his father was responsible for providing financing for these camps, other al Qaeda sponsored camps, and other sponsored activities.

Now, presumably the government did this because the training it is suggested that Khadr got at Farooq–small arms and map reading–is the kind of thing you get a boy scout camp. They had to tie Derunta and Khaldan to al Qaeda to make Khadr’s training seem more militaristic, perhaps. But I can’t help but wonder whether they’ve also crafted this to serve as one piece of “evidence”–confirmation from the son of the financier–to use against other detainees who trained as mujahadeen, but not al Qaeda mujahadeen.

The government is just writing its own novel about Gitmo detainees and the war on terror now. But hey! At least they won’t have to go through the motions of trying a child soldier in a war court.

For more on this confession, see Michelle Shephard, who notes,

Khadr has made history as the first child soldier to be convicted for war crimes and the only captive the Pentagon has prosecuted for murder in the battlefield death of a U.S. service member in either Iraq or Afghanistan.

Omar Khadr Pleads Guilty

As you may have heard on Twitter, Omar Khadr has plead guilty to all charges against him.

Omar Khadr, the only Canadian, only child soldier and only Guantanamo Bay detainee charged with battlefield homicide in the killing a U.S. soldier, pleaded guilty to all terrorism and murder charges on Monday.

“Yes” said Mr. Khadr, when Army Col Patrick Parrish, the military judge asked him if he understood what he was doing.


“You should only do this if you truly believe it is in your best interests,” Col. Parrish told Mr. Khadr.

“ Yes,” he replied again, his voice clear and direct in the hushed courtroom.

As part of his plea, apparently, Khadr will make a public confession to the terrorism and murder charges against him.

We have now, officially, made self defense terrorism.

Update: Carol Rosenberg describes the deal: one more year in Gitmo and then 7 more in Canada.

His 9 a.m. plea spared him a risk of life in prison, had he been convicted at trial to charges ranging from murder to conspiracy.

Instead, under a deal sealed through an exchange of diplomatic notes on Saturday, according to a government official, the United States will support a plan to transfer him to Canada at age 25 to serve the last seven years of an eight-year sentence.

The government of Prime Minister Stephen Harper has not pledged to receive Khadr even if Washington invokes the prisoner transfer treaty between the United States and Canada.