This week, Omar Khadr, the Canadian citizen and former child prisoner, was supposed to leave Guantánamo after nine years and three months in US custody.
No one thought that Khadr would return to Canada as a free man, as he has another seven years to serve in a Canadian jail as part of a plea deal he made at Guantánamo a year ago, but it was reasonable to expect that he would be transferred to Canadian custody this week, as the plea deal was for an eight-year sentence — with one year to be served in Guantánamo, followed by seven in Canada.
However, as Canada.com explained last Friday, “It could be as many as 18 months before Omar Khadr steps foot in Canada even though he becomes eligible for transfer from Guantánamo Bay on Monday” (October 31).
Throughout this entire story, the behavior of the United States government, first under President Bush, and then under President Obama, has been disgraceful. Khadr was abused, and was never rehabilitated according to the Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict, which stipulates that juvenile prisoners — those under 18 at the time their alleged crime takes place — “require special protection,” and obliges its signatories to promote “the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.”
In addition, Khadr was put forward for a trial by military commission — a war crimes trial — even though he was a child at the time of his capture, even though it is not clear that he had killed a US soldier by throwing a grenade, as alleged, and even though the entire premise of the trial was wrong.
It was deeply disturbing that the US government was willing to suggest to the world that those who raise arms against US forces in wartime, and in a country where the US is engaged in a war, can actually be defined as war criminals, even if their only target is members of the US military.
And yet this, of course, is exactly what happened to Khadr, when, a year ago, he signed the plea deal that was supposed to guarantee his release, in which he admitted to being an “alien unprivileged enemy belligerent,” who had no right, under any circumstances, to engage in combat with US military forces, and who, as a result of doing so, was a war criminal.
That was shocking enough, and it was no more reassuring that, on October 31, 2010, Khadr was given a 40-year sentence by a military jury after a week of hearings at Guantánamo. This was supposed to reassure supporters of Guantánamo and the military commissions that Obama was tough on terrorism, while the plea deal was supposed to send the message to critics of Guantánamo that he was fair. However, from the point of view of fairness and the law, the entire process was an abomination, and represents a low point for US justice and for any reputation for fairness that President Obama hoped to bring to his Presidency.
For Khadr, the plea deal was obviously supposed to be a lifeline, which is what makes the news from Canada so upsetting. The Canadian government’s behavior has been shameful ever since Khadr was first captured. Intelligence agents were sent to interrogate him, even though that was a clear violation of his rights, given the disturbing circumstances of his confinement in Guantánamo, and a series of challenges in the Canadian courts culminated in the Supreme Court ruling that the government had indeed failed to protect Khadr’s rights, although the Court refused to order the government to seek his return, and the government responded by ignoring the ruling.
Now, however, the signs are that the Canadian government looks set to fail Khadr again. Canada.com noted that the closest the government had come to guaranteeing that Khadr would be coming back to Canada to serve the rest of his sentence was “a diplomatic note between US and Canadian officials,” which stated that the Harper government was “inclined to favourably consider” a request for Khadr’s transfer back to the country of his birth.
Several weeks ago, Khadr’s Canadian lawyers confirmed that “the transfer process had been initiated,” but Michael Patton, a spokesman for Public Safety Minister Vic Toews, said that securing the return of a prisoner from another country was a “big process.” He explained that the Correctional Service had to “determine whether the applicant is eligible for a transfer,” then the government holding the prisoner had to agree to it, and then the Correctional Service had to “put together a recommendation to the Minister who must review and approve it.”
Patton said, “These files normally take about 18 months to come to a decision,” and Canada.com claimed that Khadr’s case was “unlikely to be expedited or treated differently,” even though the government has obviously had an entire year to prepare for Khadr’s return.
In the Globe and Mail, Paul Koring discussed other options, noting that the Harper government could “approve and quickly facilitate” Khadr’s return, possibly within months, if he were to “agree to abandon any further constitutional challenges,” according to “lawyers familiar with his case.”
On the other hand, some lawyers told the Globe and Mail that Khadr could be free “in less than a year if he takes his case again to the Canadian courts.” These lawyers believe Khadr could challenge both his war crimes conviction and the sentence he was given, on the basis that “both were illegal under international law.”
Koring noted that a constitutional challenge by Khadr “could embarrass the government and force public disclosure of the role its agents played” in his interrogations at Guantánamo, although it would also “cast him again in the spotlight,” which might be damaging for his cause in Canada. This is because part of the basis for Khadr’s shameful treatment has been that many Canadians have been prepared to ignore his immense ill-treatment by making him the object of punishment for the perceived sins of his father, Ahmed Khadr, who allegedly raised funds for Osama bin Laden.
As Paul Koring also noted, “the Harper government has so far shown no interest in getting Mr. Khadr freed or back in Canada.” This shameful situation must end as soon as possible, and Khadr, I believe, should be freed on his return to Canada, as a gesture of support from a government that shamefully abandoned him for the best part of a decade.
Khadr’s release from Guantánamo will also focus attention once more on what should be an abiding source of shame for Barack Obama, but has been largely overlooked — the continued presence of 171 prisoners at Guantánamo, even though the government conceded, after a year-long review in 2009, that it did not wish to hold over half of these men.
With their release blocked by Congress, and by judges in the Court of Appeals in Washington D.C., who have gutted habeas corpus of all meaning when it comes to the Guantánamo prisoners, Omar Khadr’s release would also remind the world of some of these other men, unjustly overlooked as the 10th anniversary of the opening of Guantánamo approaches.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.
As published exclusively on the website of the Future of Freedom Foundation.
On Facebook, Zaynab Khadr wrote:
Trying to stay hopeful and positive
I think you’re right to, Zaynab. because a deal is a deal, and if Harper tried to worm his way out of it completely, both he and Obama would face some serous and sustained criticism. But, as ever, I think it’s important to try and keep his story alive in the media, and in people’s harts and minds. A year’s a long time, in this age of rolling 24-hour news and short attention spans …
John Lovell wrote:
How can the United States renege on a court-negotiated plea bargain? What kind of nation of law have we become?
One in which the law appears to have become optional, sadly, John — although at this point in Omar’s story, the ball is really in Canada’s court when it comes to doing the right thing. What’s particularly sad about Omar’s story is how he was screwed over by BOTH the US and Canada, while the rest of the world’s supposedly civilized countries, who have championed the rights of child soldiers elsewhere, also largely ignored his plight.
John Lovell wrote:
I have shared your post, Andy, along with a few more thoughts of my own. As a former newspaper reporter, I admire your thorough journalism.
Thank you, John. That is very much appreciated!
David J. Clarke wrote:
The logic and reasoning of this case is entirely Orwellian. But as has been documented by Howard Zinn in his ‘A People’s History of the United States’ American Justice is an oxymoron. The complicity of Canada, Great Britain and the rest of the European imperium in crimes against humanity has a long and ignoble pedigree. Today there is a glimmer of hope in that the Supreme court of Canada has blocked the extradition of Abdullah Khadr, Omar’s brother:
Thanks, David. Abdullah was accused by the US of “supplying missiles to al-Qaeda in Pakistan and conspiring to murder Americans abroad,” but as Reuters explained:
The Supreme Court refused on Thursday to hear an appeal – launched on behalf of the United States – of lower court decisions that had stopped proceedings for his extradition. That brings the United States to the end of the legal road in Canada.
The high court did not give a reason for its decision. But the Ontario court that first quashed his extradition had ruled that Khadr’s human rights, including access to Canadian diplomatic counsel, had been unjustifiably violated after his arrest by Pakistan’s Inter-Services Intelligence Directorate.
The United States paid $500,000 to the Pakistanis to abduct him in Pakistan in October 2004. For 14 months he was held secretly in that country, where he alleges he was tortured.
Khadr’s lawyer, Dennis Edney, said the United States presented no other evidence than that which had been obtained through Pakistani mistreatment of him.
“This is a triumph for justice. Courts have shone by indicating that the rule of law and fundamental human rights are not trumped by security concerns,” Edney said in a phone interview.
According to documents before the Supreme Court, after the Pakistanis had exhausted Khadr as a source of anti-terrorism intelligence, they were ready to free him. But Washington insisted they hold him for another six months, while it held an investigation and started the extradition process.
He was allowed to return in December 2005 to Canada, where he was soon arrested at the request of the United States.
The Canadian government was the actual party that appealed the lower court decisions to the top court, acting on behalf of the United States.
Khadr was freed in August 2010 after the initial court ruling that he should not be extradited.
On Digg, wanacare wrote:
Knowing that the President Buddies Bush & Obama are corrupt together and have worked together in torturing a child in Guantanamo, who may now be an orphan, I would like to adopt him. Of course I realize they have kept Omar in prison until he has grown up, but I’ll have to see if there is an age cut off to adoption. I suspect not being one of the wealthiest most powerful people in the U.S. I have only a house, garden, some home canned food and a loving family to share with what my taxes have paid for which is abusing this and 21 other children. My father fought in WWII to free tortured people and I don’t want to fight in a war for a pipeline or gas/oil profits, but would like to help a victim from the invasion of my country. I can’t really think of it as the same as the war my father fought in because the leaders of these countries did not declare war on my country before my country sent Weapons of Mass destruction and soldiers into their countries.
Thanks, wanacare. Always good to hear from you — and I appreciate the principles behind your offer to adopt Omar. However, he has a mother and family in Canada, so we really do need to push for his repatriation, and then to push for his sentence to be quashed in Canada, so that he can return home to his family.
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