Omar Khadr to Return to Canada from Guantánamo by End of May

29.3.12

Finally, five months after the Canadian citizen and former child prisoner Omar Khadr was supposed to leave Guantánamo, to be returned to Canada as a result of a plea deal agreed in October 2010, it appears that he may be back in the country of his birth by the end of May.

The delay has been a disgrace, as the plea deal was supposed to guarantee that Khadr, who is now 25, would be held for one more year at Guantánamo, and would then return to Canada, to serve seven more years in prison, although it is widely expected that he “will serve only a short time in a Canadian prison before being released,” as London Free Press described it, primarily because lawyers will be able to point out the court rulings in which judges ruled that the Canadian government had persistently violated Khadr’s rights.

That first year of Khadr’s post-plea deal detention ended on October 31 last year, but he was not repatriated from Guantánamo, primarily, it seemed, because of an unwillingness to speedily facilitate his return on the part of the Canadian authorities, who have a dreadful record when it comes to doing anything to secure his return since his capture at the age of 15, when he was severely wounded, in Afghanistan in July 2002.

However, at an international press conference in Ottawa on Tuesday, US defense secretary Leon Panetta indicated that the delay in transferring Khadr to Canada — made all the more unacceptable because, in Guantánamo, he is kept separate from all the other prisoners except the few men who have also accepted plea deals or been convicted in the military commission trials — might be close to an end.

As London Free Press described it, he “said he will soon be signing papers that would clear the way to return” Khadr. “I don’t have a specific timeline for signing it,” he said, “but once those arrangements have been made, we will approve the transfer to Canada.” He added, “It’s an important step. We have others there that we would like to be able to move as well, but the steps we’ve taken here and the precautions we’ve taken are an example we would like to follow in the future.”

The article added, “Once the American officials sign the papers, it will be up to Public Safety Minister Vic Toews to repatriate Khadr.” This is not entirely encouraging, because, as I explained in November:

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.

However, as The Canadian Press explained yesterday, the US desire to release Khadr is obviously real. A source told reporter Colin Ferkel that Leon Panetta “was expected to sign off on the transfer within a week.” The source explained, “It’s on his desk, it’s ready. The US has no concerns about [Mr. Khadr].”

As Ferkel described it, Khadr “has been caught up in a bureaucratic ‘Catch-22′ since becoming eligible to leave” Guantánamo last October. He explained:

Prime Minister Stephen Harper’s government has been in no hurry to approve the transfer request, which Mr. Khadr’s lawyers submitted to both governments a year ago. Instead, the source said, Ottawa has been scrutinizing the application far more closely than required, looking at issues such as his parole eligibility, which would essentially be almost immediate.

The source added, “I think they have stalled the proceedings — the US would have sent him home a lot earlier if things had been worked out in Canada. The US does not want to act summarily and sign off on his transfer without Canada having everything prepared and ready. It’s a matter of diplomatic courtesy.”

Pentagon spokesman Lt. Col. Todd Breasseale also confirmed that Leon Panetta “was waiting for Ottawa to agree to Mr. Khadr’s transfer, and the process was moving forward.” Breasseale said, “It’s a matter of ongoing, very sensitive discussion and consideration that involves everything from public safety to diplomacy.”

The Canadian Press also shed more light on the caginess of Vic Toews, which must remain a source of some concern. In the Canadian Parliament on Wednesday, Toews “said only that the Americans had made no formal application for Mr. Khadr’s transfer, and no decisions had been made,” as The Canadian Press put it. Vague as ever, Toews said, “If an application were received, it will be determined in accordance with law.”

Nevertheless, it is almost certain that the Canadian government’s delaying tactics cannot be maintained indefinitely. Khadr’s US military defense attorney, Lt. Col. Jon Jackson, said bluntly that his client “has had more difficulty dealing with the transfer delay than he did when he agreed to admit guilt.” From Washington D.C., Lt. Col. Jackson explained, “Omar is very frustrated — it doesn’t matter to him who’s arguing about it. He just knows he’s still at Gitmo, and that’s all that matters to him.”

Regarding Guantánamo, he added, the problem is that “‘no matter what you have in writing,’ getting anything done is going to be ‘problematic’ once governments get involved” — a comment that appeared to be a thinly-veiled, and thoroughly understandable dig at Canada’s refusal to take responsibility for Khadr, even over a year and half after the plea deal was negotiated with the knowledge of the Canadian government.

The Canadian Press article also noted that although, since his plea deal, Khadr has been held in Camp 5, the maximum security block consisting of solid-walled cells that substantially isolate prisoners from each other, he “has earned some privileges, such as recreation time and access to a media room, and has contact with a few other inmates.”

More alarming, for the US authorities, was the statement that, “Privately, some defence lawyers say their Gitmo clients have become leery of striking their own plea deals given the delay in returning Mr. Khadr,” and that is obviously important to the Obama administration, which has only secured plea deals in military commission trials — four in total, including Khadr’s, and most recently in the case of the Pakistani prisoner Majid Khan, who was held for three and a years as a “high-value detainee” in secret CIA prisons.

In the New York Times last week, Charlie Savage discussed this very problem, noting that, since he took the job in the fall of last year, the new chief military prosecutor, Army Brig. Gen. Mark S. Martins, “has sharply increased efforts to strike plea deals with low-level detainees in return for agreements to provide voluntary testimony against more significant terrorist suspects, adopting a familiar tactic in the traditional civilian criminal justice system.”

Savage described the delay in Khadr’s release as prompting his fellow inmates to grow “distrustful that the main inducement prosecutors can offer them — the prospect of leaving by a defined date — is meaningful,” according to defense lawyers, and that mistrust “is complicating efforts to win more plea deals.”

Savage also explained that, “[a]mong the low-level detainees who have hesitated” is Sufyian Barhoumi, an Algerian seized in a house raid in Faisalabad, Pakistan on March 28, 2002, with Abu Zubaydah, the gatekeeper for an independent training camp, Khaldan, that was closed down by the Taliban in 2000 because its emir, Ibn al-Shaykh al-Libi, refused to allow it to be taken over by Osama bin Laden. Zubaydah was regarded as such an important “high-value detainee” that he became the guinea pig for the Bush administration’s entire torture program, although unfortunately he turned out not to be an al-Qaeda operative at all. However, the US authorities are desperate to cover their tracks, and are hoping that Barhoumi (who lost his habeas corpus petition in June 2010, in large part because of his alleged association with Zubaydah) will help them by testifying against Zubaydah on other charges.

To be honest, I find the intention of using Sufyian Barhoumi against Abu Zubaydah to be almost breathtakingly cynical, given the almost total collapse of Zubaydah’s mental and physical health as the result of his torture (which included being waterboarded 83 times and led to over 300 seizures between 2008 and 2011), but perhaps what Barhoumi’s military defense lawyer, Air Force Lt. Col. Richard Reiter calls the “Khadr problem” will scupper the plan.

Lt. Col. Reiter explained that Barhoumi “was talking with the military about a plea deal in exchange for testifying against Mr. Zubaydah,” but the “Khadr problem” had “made him demand a guarantee that he will be repatriated to Algeria by a certain date, something that prosecutors say they are unable to provide.”  He added, “The fact that Khadr remains at Guantánamo beyond when he was supposed to be transferred is a significant hindrance in my client’s willingness to participate in negotiations with the government.”

In response, Brig. Gen. Martins said he was unable to discuss specific detainees, but “he acknowledged that the inmate population was aware of what was happening to other detainees who went through the tribunal system,” as the Times described it. “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.

This, then, explains the desire, on the part of the Obama administration, to secure the return to Canada of Omar Khadr, as agreed, and as The Canadian Press article yesterday also noted, there are no significant obstacles in the US. “Once the Defence Secretary signs off,” the article stated, “US President Barack Obama is required to give 30 days notice to Congress of the pending transfer,” although lawmakers, who have been obstructing the release of any prisoners from Guantánamo over the last 15 months, cannot prevent Khadr’s release because of the plea deal.

Khadr’s legal team, including John Norris, a civilian lawyer from Toronto, is eagerly awaiting his client’s release, given the unjustifiable delay. The Canadian Press noted that the lawyers had “refrained from launching any court action to force the governments to expedite the move on the grounds that doing so would only cause further delays,” but that their “patience is wearing thin.”

Lt. Col. Jackson said, “We’ve been patient enough. If he’s not back by the end of May, I think there are going to be serious problems.”

Another unidentified source said that, “[m]ore than anything,” Khadr “wants to be reunited with his mother and other family members in Toronto.” The source said, “The most important thing for Omar is family – to be with [his] mom, to be with his grandma” — and that, of course, is perfectly understandable after his long isolation, although it also involves regarding him as a young man who has lost nearly half his life in US custody, and who wants only to be allowed to live again — and not as an “enemy combatant,” or the threat that some in Canada would like to portray him as, but as a young man seeking to start his life again, with all the interests in literature and philosophy that some who know him have been nurturing for the last three years.

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 please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.

11 Responses

  1. Andy Worthington says...

    On Facebook, Louise Gordon wrote:

    Good news indeed!

  2. Andy Worthington says...

    Shimon Ein-Gal wrote:

    Louise, it’s such a shame that you and others should waste their concern over a piece of excrement like Omar Khadr, a traitor to Canada who fought for a Pakistani terrorist force that was occupying Afghanistan and murdered a medic. Aren’t there enough innocent people to worry about?

  3. Andy Worthington says...

    Louise Gordon wrote:

    With all due respect, Shimon, I don’t think you know what you are talking about.

  4. Andy Worthington says...

    Agreed. Thanks, Louise. This “piece of excrement,” Shimon, was a 15 year old, a juvenile, who was taken to a war zone by his father and not therefore responsible for his actions. He should have been rehabilitated not punished, as both the US and Canadian governments know, because they are signed up to the UN optional protocol on the rights of children in armed conflict. The medic was a soldier, a member of US Special Forces, and there’s no proof that Khadr was responsible for killing him. He agreed that he did so as part of his plea deal, but that was to secure his release. I also wonder why you think it appropriate for acts of warfare conducted against US forces to count as war crimes. War crimes traditionally involve civilians, not combatants, and yet, in Omar Khadr’s case, a child in a combat situation has been judged to be a war criminal, and someone entirely responsible for their own actions, when both decisions ought to bring shame on both the US and Canada.

  5. Mark Erickson says...

    Compared to the usual coming from Gitmo, this is outstanding news. Of course, “democratic” governments living up to their commitments shouldn’t have to be considered anything but routine. Hopefully this nightmare is coming to an end.

  6. Andy Worthington says...

    Agreed, Mark, but I guess you figured out that this isn’t for Omar Khadr’s benefit, or for any commitments as such. The US is pushing Canada because some of its potential plea deals are regarding their captors as untrustworthy, and the Obama administration wants pliant prisoners who’ll rat on others — sorry, be witnesses — in exchange for a finally-get-out-of-jail card.

  7. arcticredriver says...

    A week or so ago there was an American press report as to how the prolonged delay in repatriating Omar was impeding the prosecutors from getting other low-level captives from agreeing to accept plea deals.

    CP is reporting that officials who decline to be named have asserted that Panetta will sign paperwork certifying that it will be safe for the USA to return Omar to Canada.

    It has also been reported that the delays were caused by the USA — not Canada. And this I don’t believe.

    Rather, I suspect that, behind closed doors, Panetta twisted some arms to get the Harper government moving, and that to make the inevitable repatriation go more smoothly it was agreed to pretend the delay was the USA’s fault.

    It had been suggested that Omar should be held in a minimum security facility. But it now seems he will be held in a high security facility. If that is the case I hope it is only temporary.

    About a year and a half ago I was on my way to Toronto premiere of the film “You don’t want the truth” — which was focussed around tapes of his heartbreaking first “interviews” with Canadian officials, when he was 15 years old. He thought they were Canadian consular officials, there to help him. But the Americans weren’t letting any of the captives see diplomats. The Canadians were intelligence officials, who bullied him, and wouldn’t believe him when he told them his confessions were false and had been coerced through torture.

    Anyhow, I fell into conversation with the guy sitting next to me on the streetcar. He turned out to be a young lawyer. So I asked him what he thought of Omar’s case. Although he wasn’t informed he nevertheless said something harsh. I’ve encountered other Canadians, with similar views, and I wasn’t going to try to re-educate this guy when I was going to get off soon. But there was a woman sitting behind me who weighed in.

    Weighing in on someone else’s conversation is not typical Canadian behaviour. But she had views as strong as my own — and she was very well informed, articulate, and gave a very good expanation as to why the US claims, and the US and Canadian treatment of Omar was so wrong-headed.

  8. arcticredriver says...

    I wish the press would stop describing Sergeant Speers as a “medic”. From what I have read about him he sounds like a brave honorable soldier. His colleagues say he knowingly entered a minefield to rescue and treat some Afghan children.

    But, while he had medical training, he was nothing like what most members of the public think of as medics.

    During World War 2 the USA fielded medics who were non-combatants. The Geneva Conventions protect medical personnel who are non-combatants. They are supposed wear a red cross on their helmet and a red cross armband. And knowingly shooting at them is a war crime.

    But for decades all the GIs who provide medical care in combat are not non-combatants. They are regular soldiers, who are cross-trained so they can provide emergency medical care. They are soldiers first.

    The official term for them is not “medic”, but “combat medic”.

    I remember how confused I was, back in 2004 or 2005, when I first heard about Omar, and how he had killed a “medic”. I tried to imagine how he could have managed that. The only way I could imagine it was that (1) he had pretended to surrender; (2) pretended to be wounded; (3) and waited until the unsuspecting noncombatant medic got close enough to pull out a concealed weapon.

    I suspect most Americans will never consider the possibility he didn’t murder a medic. And I suspect a large part of the Canadian public will also never be able to consider that he didn’t kill Speer.

    He was so heavily bombarded he may not actually remember anything from the skirmish. But as you have noted Andy, there is, or was, strong circumstantial evidence that Speer was a victim of friendly fire.

    Andy, I think you previously covered that part of the plea deal Khadr had to agree to in order to get an assurance of eventual release was first, that he would never initiate an appeal; and second, he had to agree that all the evidence would be destroyed, so there could be no appeal.

    I am not a lawyer, but I have never heard of the prosecution demanding that the evidence be destroyed.

  9. arcticredriver says...

    When I first heard of John Walker Lindh, “the American Taliban”, and recognized the American anger at him, I tried to figure out what he could have done on 2001-09-12 in order avoid that rage.

    I assumed he had no idea that his hosts planned to attack his country. I figured he didn’t speak any of the local languages. I figured he would have had to try to sneak past the sentries, and try to make his way hundreds of miles through hostile territory.

    In World War 2 movies when allied soldiers and airmen escaped at least they weren’t of a visibly different ethnic group.

    I figured JWL escaping from his Afghan hosts would have been tantamount to suicide.

    I think people like respondent Shimon Ein-Gal who commented above have a completely unrealistic expectation of Omar. Does he think that after his father left him with the foreign fighters Omar, a child, with no money, and no adults he could trust, should try to sneak away, and hitchhike back to Canada?

    In the documentary “Son of al Qaeda” his older brother Abdurahman described trying to run away from the training camps his father sent him to. That was peacetime, but Abdurahman’s attempts to run away were unsuccessful.

  10. Andy Worthington says...

    Hi arcticredriver,
    There is a wealth of information in your comments, some of which I had not heard before, so thanks very much for that.
    In your first comments, I am glad that there was humanity on display from the woman on the streetcar, to combat the hatred of Omar that you encountered from the young lawyer, and that I encounter so often in the commentary of many Canadians. I too hope that Omar will be not be held for long in a high-level security — if at all — as he has suffered enough.
    In your second comment, I agree about the deliberate confusion sown regarding Sgt. Speer’s status as a medic, and also thank you for repeating the doubts about whether Omar actually did kill him. I had long thought it may have been one of the men Omar was with, but friendly fire is, of course, also another possibility.
    I had not heard before about evidence being destroyed as part of the plea deal. If so, that sounds specifically like a cover-up, as we know that one of the reports fro the time was tampered with afterwards, to implicate Omar. I did know that he wasn’t allowed to appeal which is, of course, convenient for the US authorities, but destruction of evidence — if true — is a new low.
    And in your third comment, thanks for drawing on a comment made by Abdurahman. It’s the kind of attention to detail that is completely opposite to the knee-jerk venom on display in so many circles.

  11. George Miller says...

    You’re a stupid idiot Worthington who has no facts at all about Khadr.

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