By Jane Sutton

GUANTANAMO BAY U.S. NAVAL BASE, Cuba, Feb 4 (Reuters) - A Canadian accused of killing a U.S. soldier in Afghanistan should not be tried as a war criminal because he was a child soldier for al Qaeda, too young to voluntarily join its forces, his military defense lawyer told a U.S. war court on Monday.

Navy Lt. William Kuebler asked a military judge to throw out the charges against Canadian defendant Omar Khadr, who was shot and captured at age 15 in a firefight at a suspected al Qaeda compound in Afghanistan in 2002.

"He is a victim of al Qaeda, not a member of al Qaeda," Kuebler said.

Khadr is the Toronto-born son of an alleged al Qaeda financier. He is accused of throwing a grenade that killed U.S. Army Sgt. 1st Class Christopher Speer in the firefight and planting roadside bombs intended to kill other U.S. or coalition soldiers in Afghanistan.

Khadr is charged in the Guantanamo war court with murder, attempted murder, conspiring with al Qaeda, providing material support for terrorism and spying by conducting surveillance of U.S. military convoys in Afghanistan. He faces life in prison if convicted.

Kuebler argued that U.S. and international law assume that children involved in an armed conflict are not there voluntarily, because they lack the experience and judgment to understand the risk of joining armed forces. Defense attorneys contend that any charges against Khadr should be pursued in a civilian court in a juvenile system where the goal is rehabilitation rather than punishment.

If the U.S. Congress intended to try children as war criminals, it would have explicitly authorized that in the 2006 law that serves as a framework for the Guantanamo court, Kuebler said.

But a U.S. Department of Justice attorney, arguing for the prosecution, said that if Congress intended to exclude juveniles from the Guantanamo war court, it would have explicitly written that, because lawmakers knew Khadr could face charges. Instead, Congress wrote the law using the term "person," which legally refers to "anyone born alive," Justice Department attorney Andy Oldham said.

LAST WESTERNER

Khadr is the last citizen of a Western nation among the 275 captives at Guantanamo as part of the Bush administration's war on terrorism.

Charges are now pending against five of the Guantanamo prisoners. The Pentagon plans to try about 80 of them. But six years after the detention camp opened, only one captive has been convicted in Guantanamo's widely criticized tribunal system and that was through a plea deal.

If the military judge, Army Col. Peter Brownback, refuses to drop the charges, he "will be the first in Western history to preside over the trial of alleged war crimes committed by a child," Kuebler said.

Khadr sat quietly during the hearing, clad in a white tunic and trouser uniform signifying that he complies with camp rules. In his more than five years at Guantanamo, the once pimply faced boy has grown into a 21-year-old man with a short, bushy beard.

The judge did not indicate when he would rule on the request to drop the charges. The case is scheduled for trial in May. (Editing by Tom Brown and Eric Beech)

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