Last week, in a court in Edmonton, Justice John Rooke, responding to a habeas corpus petition submitted in September by former Guantánamo prisoner Omar Khadr, issued a ruling ordering him to remain in a maximum security federal prison rather than being moved to a provincial prison, “limiting his chances for parole,” as the Toronto Star described it.
Khadr, who was a juvenile — just 15 years old — when he was seized in July 2002 after a firefight in Afghanistan, where he had been taken by his father, was held at Guantánamo for ten years, and only left the prison after agreeing to a plea deal in October 2010, in which he accepted five charges — spying, conspiracy, providing material support for terrorism, attempted murder and murder (of a US Special Forces soldier, Sgt. Christopher Speer), even though that last charge was based on an extremely untrustworthy claim that he had thrown the grenade that killed Sgt. Speer. Under the terms of the plea deal, he received an eight-year sentence, with one year to be served in Guantánamo and the remaining seven in Canada.
Eleven months late, in September 2012, Khadr was eventually returned to Canada, where he was imprisoned in the Millhaven Institution, a maximum-security prison near Kingston, Ontario. In May this year, after he received threats from another prisoner, he was moved to another maximum security prison, the Edmonton Institution in Edmonton, Alberta, and in August his lawyer, Dennis Edney, sought his transfer to a provincial prison.
Khadr became eligible for parole this summer, but has not yet applied for it, because, as the Toronto Star noted, “It is rare that an inmate will be granted full parole from a maximum security federal facility.” Edney argued that, as a sentence for murder in Canada, eight years would be regarded as a youth sentence (because a life sentence is mandatory for an adult murder conviction), and therefore Khadr should not have been sent to a maximum security prison.
However, although Justice Rooke agreed that eight years was not an adult sentence, he accepted eight years as an appropriate punishment for the other four war crimes that Khadr agreed to in his plea deal. As he wrote in his ruling, “Mr. Khadr’s sentence could have been a single youth sentence and four adult sentences. However, Mr. Khadr obviously cannot be in both an adult provincial facility for adults and a penitentiary at the same time.” He added, as the Toronto Star put it, that “where there is ambiguity, the law dictates that the inmate should serve an adult sentence.”
Justice Rooke began his ruling by stating that it was “important to understand what this Decision is about and what it is not about.” Explaining that it was “simply and purely” about “statutory interpretation,” he described it as “about the proper interpretation of legislation [the International Transfer of Offenders Act] to determine whether an offender, transferred from another country to Canada, will serve the remainder of the foreign sentence in a provincial correctional facility for adults or a federal penitentiary.”
He added, “This Decision is not about a number of matters. It is not about Mr. Khadr’s background, other than that he is a Canadian citizen. It is not about his age when the offences were committed or since, except only insofar as specifically relevant to the legislation being interpreted. It is not about any of the circumstances pre-dating his transfer to Canada to complete his sentence — specifically, it is not about the appropriateness of his pre-sentence detention or the sentence Mr. Khadr received in the United States.”
Technically, this may be an appropriate legal decision, but it only adds to the disgraceful treatment of Omar Khadr by the Canadian authorities over the last eleven years. The government’s lack of concern for Khadr, and its manipulation of racist and Islamophobic sentiment towards him, has been a disgrace, and the only bodies to emerge with any kind of honor are various Canadian courts, up to and including the Supreme Court, who, before Khadr’s return to Canada, ruled that the government had violated his rights by sending agents to interrogate him at Guantánamo.
Dennis Edney plans to appeal the ruling, but in the meantime the government has once more shown its continuing disregard for the truth, and its relentless instinct for cheap distortions. Responding to the ruling, the new Public Safety Minister Steven Blaney said he “welcomed” it, noting that the government “will continue to vigorously defend against any attempt to lessen his punishment.” In this, he was reiterating what Prime Minister Stephen Harper said in September when Khadr finally had a day in a Canadian courtroom. On that occasion, Harper said, “This is an individual who, as you know, pled guilty to very serious crimes including murder and it is very important that we continue to vigorously defend against any attempts, in court, to lessen his punishment for these heinous acts.”
Responding, in turn, to Steven Blaney’s ill-advised comments, Dennis Edney said that the the Public Safety Minister “should read the ruling before making comments that he will fight any effort to reduce Omar Khadr’s sentence. As the ruling stated it is not about reducing Omar’s sentence but an issue about what type of prison he should be lodged in.”
Lies and distortions, however, continue to typify the government’s attitude to Omar Khadr. As Colin Perkel reported for the Canadian Press in March, the government’s file on Khadr contains “faulty information” — a better description might be “bare-faced lies” — which was included in a key memo drafted for the former Public Safety Minister Vic Toews by Liliane Keryluk, a senior policy analyst working for him.
The memo, which influenced the treatment Toews authorized for Khadr on his repatriation, was drafted in October 2011, and, as Perkel put it, went “even further than American military prosecutors.”
In particular, her memo asserted that “Mr. Khadr engaged US military and coalition personnel with small-arms fire, killing two members of the Afghan militia force. He threw and/or fired grenades at nearby coalition forces, resulting in numerous injuries to them.”
This is patently untrue. As Perkel noted, “Although someone inside the compound where Khadr was staying shot the two Afghans, nowhere in his signed admission, which was drafted by military commission prosecutors, is there any suggestion he personally killed them.” He added, “While his confession does say American soldiers were hurt ‘as a result of Khadr and his conspirators’ actions in the firefight,’ the only grenade prosecutors said he threw was the one that killed Sgt. Christopher Speer.”
Perkel also noted that the memo contained an assertion, later repeated publicly by Vic Toews, that Khadr “conspired with [O]sama bin Laden, Ayman al-Zawahiri, Sheikh Sayeed al-Masri, Saif al-Adel, [and] Ahmed Said Khadr, who is Mr. Khadr’s father,” and also claimed that he had “several known accomplices,” including bin Laden and al-Zawahiri.
As Perkel explained, however, “While Khadr’s father was a bin Laden associate, and their families spent some holiday time together, American prosecutors never claimed the teen had direct operational contact with bin Laden or al Zawahiri, current leader of the Al-Qaeda terrorist organization, or that they were his accomplices.”
As Dennis Edney explained, not for the first time, “There is no evidence whatsoever to support these false allegations.” He added, “Even the Canadian government is aware these accusations are baseless, as it had a representative from DFAIT [the Department of Foreign Affairs, Trade and Development] present throughout the sham trial.”
Dennis Edney is correct, of course, but as those of us know who have been studying Omar Khadr’s case for many years, truth and justice are irrelevant to the darker forces responsible for the treatment of prisoners in the “war on terror” that President Bush established eleven years ago, and whose pernicious influence continues to erode the moral authority not just of the United States, but of Canada as well.
Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and 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. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).
To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the four-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list and the chronological list of all Andy’s articles.
On Facebook, Giacomella Jackie Milesi Ferretti wrote:
what a shame!! Poor man, facing such injustice!
Yes, Giacomella, and so many people in power and authority delighting in keeping him imprisoned for as long as possible. Such a disgrace.
Aaf Post wrote:
The judge’s decision is terribly saddening. It’s true that Omar’s case is terribly affected by lies. That is by the government and, just as infuriating, by the mainstream media. They branded Omar as a convicted terrorist who pleaded guilty on warcrimes, without any explanation. Please read: http://freeomarakhadr.com/2013/10/19/the-silence-surrounding-omar-khadr/
Thanks, Aaf. Yes, I will be providing some proper publicity of my own for Heather’s excellent article soon.
I’d also like to recommend a couple of good articles about Retired US Brig. Gen. Stephen Xenakis, a psychiatrist, who spent hundreds of hours with Omar, and who visited Canada for an event this week. Here’s the first: http://www.edmontonjournal.com/news/Retired+general+says+Khadr+danger+society/9062678/story.html
And a report after the event: http://www.edmontonsun.com/2013/10/22/omar-khadr-ready-to-be-a-part-of-society-psychiatrist
J.d. Gordon wrote:
Thanks for sharing, Andy. Incredible as it is, under the Obama administration, where up is down, and down is up, Omar actually has it a lot better than U.S. soldiers, also convicted of murder. Here’s my column on it from a few months back, hope you like & share.
Shoubhik Bose wrote:
Even if he has really thrown a grenade, it was completely according to the rules of engagement.
Yes, exactly, Shoubhik. What’s so horrible abut this whole story is (a) how the US and Canada ignored their requirements under a UN treaty (on the rights of the child in armed conflict) to rehabilitate juveniles rather than punish them, and (b) how the US managed to convict Omar of war crimes, when soldiers fighting a battle in a war zone isn’t a war crime. Under Obama’s watch, the US convicted a former child prisoner of committing a war crime because a US soldier died in battle – and, almost certainly, added insult to injury by fabricating the supposed evidence demonstrating that it was Omar who threw the grenade. Absolutely disgraceful, and a source of undying shame until the conviction against Omar is quashed.
David Knopfler wrote:
I see Commissioner Gordon is at it again. Quoting from Faux News as a source frankly isn’t the best way to earn credibility for your argument but leaving that to one side: This is comparing apples to pears. A real court rather than a faux court would lend the case more weight and a 15 year old is not an adult. Usually sentences for children (in the UK justice system at least) reflect that reality – I’ll spare the chapter and verse on that point which aught to be self-evident. It seems to me that a person of authority in a uniform, trained to uphold certain ethical principles, who then betrays that trust, should expect the full weight of the legal system to come down on them pretty hard unless mitigating factors PTSD etc can be found to apply by his defense attorney.
There are no shortage of cases never brought to prosecution of military misadventures, that should have been, or when the entire judicial system has bent over backwards to minimize time served to contrast with the 25 year sentence case referenced by Faux News. And while I do concur that there are double standards at play in the illegal killing of civilians with drone attacks and the treatment of the detainees at GTMO, I’d merely add the adage, two wrongs don’t make a right. Both are an utter disgrace and both make the job of homeland security more difficult.
J.d. Gordon wrote:
David… I’m not quoting from Fox News… though now quoting Morrissey, “Reader, Meet Author” http://www.youtube.com/watch?v=kZr5ZDXZU3A
Thanks also, David. Yes, “a 15-year old is not an adult.” It’s not rocket science, is it? But Omar’s case demonstrates the west at its worst – demonizing a child for the perceived sins of his father, and then having the nerve to bully him into accepting that he committed war crimes when he did no such thing. I really do think that the majority of people haven’t recognized the cruel absurdity of trying to convince the world that, if you raise arms against the US on a battlefield in a country occupied by the US, you’re a war criminal, while US soldiers, of course, can do wrong. The framers of the Geneva Conventions must be turning in their graves …
Willy Bach wrote:
Andy, thanks for bringing Omar Khadr to our attention again. It fills me with deep despair that such delusional US thinking can inflict so much harm and that the Canadian government that has no conscience plays along with this. Shared.
Thanks, Willy. Much appreciated. Yes, you would think that there was some sort of unassailable justification for Omar Khadr’s treatment, the way that so many senior US and Canadian figures have treated him. It’s a sad indictment of how far we have fallen when so many people don’t care that he was a child when he was captured, and don’t realise that you can’t be a war criminal when you didn’t commit a crime. All those responsible for continuing to hold Omar in Canada – and to publicly tell lies about his “crimes,” as though (a) the military commissions bear any relation whatsoever to justice, and (b) Omar’s plea deal can be regarded in some way as voluntary – are a disgrace to their office.
I admire the work you are doing and appreciate that you have continued to follow the story of Omar Khadr since his transfer to Canada.
Maybe you know Canada’s federal ombudsman for prisons, Ivan Zinger, the executive director of the Office of the Correctional Investigator, criticized Khadr’s placement in federal prison where his access to rehabilitation and chance of parole is reduced. He pointed out that the US case was “unique and exceptional” and the government is ignoring info in the file and Khadr’s age at the time. (Toronto Star)
The transfer law says a Canadian convicted in the US and transferred to Canada to serve their sentences will be treated as if they were sentenced for a comparable offence in Canada. The Harper Government is treating Khadr as if he was convicted in a normal court for first degree murder, attempted murder, conspiracy, spying and terrorist activities in Canada as an adult. As you know, aside from all the legal issues with Khadr’s trial, his charges boil down to normal acts war characterized as war crimes and terrorism based on his status (not a soldier), same as the rest on the other side of the war and the Afghan allies in the early part of war, and the fact that he was on the wrong side, at age 15, obviously influenced by his father and others in the place he was mainly raised. (See David Glazier’s paper – Court Without Jurisdiction – Omar Khadr). I’m not aware of any similar US conviction and no minors have been convicted for war crimes, even real ones, since WWII. The Prosecution referred to two precedents from that era. What they did was worse and they served less time. (Transcripts)
The judge said no discretion was used in applying the legal formula to Khadr. Clearly, discretion should have been used. This approach is not even the best one from a security point of view. Surely rehabilitation and gradual release under the parole system with close supervision would be better from that angle and certainly more just and fair based on the facts of the case.
Unfortunately the government is encouraging, and making a political appeal to, vindictiveness, hatred and ignorance. Canadians have been widely misinformed about this case for years and there is a right wing element in the media that has generated a kind of lynch mob mentality.
Thanks for your very thoughtful contribution to the conversation about Omar, Diane. I referred to Ivan Zinger’s important complaints in a previous article: http://www.andyworthington.co.uk/2013/09/19/its-omar-khadrs-27th-birthday-hes-free-from-guantanamo-but-still-unjustly-imprisoned-in-canada/
I was not aware of David Glazier’s paper, though, which is available here, and looks to be a very powerful analysis: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1669946
Sadly, your comments about “vindictiveness, hatred and ignorance” in Canada and a right-wing element in the media reflect a widespread and profoundly unpleasant change in people’s perceptions that is, of course, widespread in the US and also mirrored in the UK and elsewhere.
Andy, I too will thank you for bringing Omar’s current status to the public’s attention. Several of your readers made excellent points. (I’ll take the liberty of commenting on Commander Gordon’s attempts to mislead in a later comment.)
With regard to whether Omar is “convicted” and whether this implies he is genuinely guilty — may I repeat something I don’t think can be repeated often enough?
It was the position of the Bush Presidency that the USA could continue to hold captives who once faced charges — even if they were acquitted of all charges. In a fair court system anyone who is acquitted can count on being released. We have confidence that those who faced a truly fair trial, who nevertheless reach a deal with the prosecution that they will agree to plead guilty, in return for a reduced sentence, or some other consideration, are actually guilty — because, if they were truly innocent they should be able to count on acquittal and an unconditional release.
But, under the Guantanamo system, where they could still face a lifetime of imprisonment, even if they were acquitted, agreeing to a plea deal is the only way a suspect can look forward to an eventual fixed release date.
So I think everyone should discount that guilty plea, and continue to see him as someone who might be completely innocent.
Commander Gordon, the letter you wrote to the management of the Miami Herald has been made public. Anyone who cares to look it up can see you claimed that you had been abused worse than the Guantanamo captives, when a reporter addressed you with what you regarded as rude language.
So, how is it that you think you retain an ounce of credibility?
With regard to Majid Khan’s plea agreement, absolutely zero evidence, beyond his own confessions, has ever been made public. For all anyone knows he lost his mental stability in the CIA’s torture prisons, and his confessions are compete nonsense. We know that Khan, Binyam Mohammed and Jose Padilla were initially accused of forming a cell that was going to (1) blow up a “dirty bomb” in the downtown of a US city; (2) blow up residential apartments in the USA, by sabotaging their natural gas inflows. And we know that when it came time for the USA to substantiate these allegations against the other two men they were quietly forgotten.
Why were they forgotten? I suggest that the reason is there was never a speck of evidence beyond the confessions of men tortured to the point they would say anything to believe there ever was a dirty bomb plot.
So why did Commander Gordon’s article treat the allegations against Khan as if they were meaningful?
Thanks, arcticredriver, for the powerful explanation of how a plea deal is a mechanism for release, rather than any proof of any sort of guilt. We are waiting, of course, to see if Noor Uthman Muhammed’s plea deal will be honored, and he will be released in December this year, as he is supposed to be, or if, for the first time at Guantanamo, a prisoner will continue to be held after their agreed sentence comes to an end. If so, that will be another horrendous novelty appropriate only for a totalitarian regime with a complete disregard for the law.
Thanks, arcticredriver, for the comments re: Majid Khan. It’s always worth remembering too that Paul Wolfowitz conceded publicly, at the time of Jose Padilla’s arrest in Chicago in June 2002, that there was no dirty bomb plot, and that nothing had proceeded further than an internet search. I wrote about it here, when, over six years later, the non-existent plot was still being used by the US government as part of its fictional narrative of terror plots: http://www.andyworthington.co.uk/2008/10/16/us-justice-department-drops-dirty-bomb-plot-allegation-against-binyam-mohamed/
A few days after Majid Khan’s plea bargain was made pblic the Washington Post’s editorial board published a disgraceful editorial, that called his 20 year sentence “tough but appropriately fair”.
The plea calls for Mr. Khan to remain incarcerated for no more than an additional 19 years as of the date of the plea bargain, but only if he testifies truthfully against other high-value detainees, including, most likely, Mr. Mohammed. He could face 25 more years behind bars if he does not hold up his end of the bargain.
Mr Khan’s plea deal was far worse than Mr Khadr’s which makes me wonder how badly his mental health was damaged in the CIA’s torture prisons. KSM seems to have survived some of the worst torture with his sanity more or less intact, but I think the literature on stuff like this is that cruel and arbitrary punishment is far harder on totally innocent people, who have no reason to anticipate it, which could explain why Khan’s sanity cracked and KSM’s didn’t.
Note how the Wapo editorial crows about how the plea bargain can be rescinded if Mr Khan’s testimony against the real terrorists doesn’t satisfy the prosecution. The Wapo editorial writers characterize this as whether he “testifies truthfully”. But those of us who have followed the public record of how the Guantanamo prosecution has tried to mis-use secrecy to get away with bizarre fantasy narratives have profound distrust over the Wapo editorial board’s trust that his plea bargain represents “the truth”.
The Washington Post did publish a letter to the editor a few days later from Melina Millazo, a lawyer for Human Rights First.
Three of the eight reader comments to the original editorial are from me.
Thanks arcticredriver. Always a pleasure to hear from you. perhaps one day we will succeed in getting many, many people to understand that, whenever they hear anything about evidence and confessions from Guantanamo or elsewhere in the “war in terror,” they should examine that information extremely carefully, and must understand how much pressure was exerted on prisoners to make them say things that were not true.
Andy, we have discussed before Prime Minister Stephen Harper’s repeated claims that Omar Khadr didn’t deserve to have Canadian diplomats try to work to make sure he was treated humanely in Guantanamo, or try to work to make sure he saw a fair trial — all on the justification he faces “serious charges”.
Well, some commentators are suggesting Harper’s time in power will soon come to an end because he too now faces “serious charges”.
I don’t personally agree with Andrew Coyne, the columnist who wrote this piece, but it is quite funny. It is entitled In the Duffy affair, there’s just no honour among liars any more
The portrait that emerges from these claims and counter-claims — not only involving Duffy, but senators Pamela Wallin and Patrick Brazeau — is revealing. Some of the fiercest disputes seem to turn on deals in which the two sides would arrange to tell a mutually agreed upon lie to the public (Duffy repaid, Wright resigned, Wallin “recused” herself from caucus) only to have one side renege, i.e. tell the truth. This is then presented by the other side, without evident irony, as evidence of their perfidy. There’s just no honour among liars any more.
Thanks arcticredriver. Ah, the dirty games that politicians play … Honestly, why does anyone take them seriously?
The Edmonton Journal reported today that the warden of the Maximum security institution where Khadr is held now recently reclassified him as a medium security risk. https://web.archive.org/web/20131214203833/http://www.edmontonjournal.com/Khadr+reclassified+likely+transferred+Bowden/9285742/story.html
Great news, arcticredriver. Thanks for the notification!
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