Canadian Judge Grants Bail to Former Guantánamo Prisoner Omar Khadr

26.4.15

Former Guantanamo prisoner Omar Khadr in a recent photo taken at the medium-security Bowden Institution in Innisfail, Canada, where he has been held since February 2014.Over two and a half years since Canadian citizen and former child prisoner Omar Khadr returned to Canada from Guantánamo, a judge in Alberta, Justice June Ross, has granted his application for bail that was argued in Edmonton last month.

“He has a 12½ year track record as a model prisoner, and a release plan supported by educators, mental health professionals, and his lawyers,” Ross wrote in her opinion. Omar has an appeal ongoing in the US against his conviction, following a number of successful appeals by other prisoners convicted in Guantánamo’s deeply flawed military commissions process, and, as the BBC described it, Justice Ross “said the appeal was likely to succeed and keeping him in jail was not in the public interest.”

I cannot express sufficiently how heartening it is to hear that Omar’s bail application has been granted, after nearly 13 years in which he has been treated appallingly by both the US authorities and his own government.

Omar was seized after a firefight in Afghanistan when he was just 15 years old, but was never treated as a juvenile prisoner should have been treated, which is to be rehabilitated rather than punished. Abused in US custody, and having had his hopes of justice dashed by the Canadian agents who visited him at Guantánamo, he finally agreed to a plea deal in October 2010, in a trial by military commission that should never have happened, as the only method by which he could guarantee his release.

In exchange for accepting that he threw a grenade that killed a US soldier, which appears to have been untrue, he received an eight-year sentence, with one year to be served in Guantánamo, and the rest to be served back home in Canada.

However, it took nearly two years for the Canadian government to get him back, and when they did they imprisoned him in a maximum-security prison, and resisted all attempts to downgrade his status so that he could apply for bail. That disgraceful situation only came to an end in February 2014, when he was moved to a medium-security facility, which made him eligible for bail.

At his bail hearing last month, his model behaviour throughout his long imprisonment, and the norms of Canadian law were set against the government’s claims that Canada’s agreement with the US regarding Omar took precedence.

As the Toronto Star described it:

“Neither side is suggesting Mr. Khadr is a threat to anyone and I would suggest that’s a very, very important factor,” Khadr’s lawyer Nathan Whitling told Alberta Justice June Ross …

But what Department of Justice lawyers are arguing in contesting Khadr’s bail application is that Ross doesn’t have the jurisdiction to grant Khadr bail without violating an international treaty and jeopardizing relations with the United States.

“It’s critically important that Canada meet its international obligations,” lawyer Bruce Hughson told the court.

Canada’s duty under the International Transfers of Offenders Act is to enforce Khadr’s US sentence in Canada. There is no provision for bail. But … Whitling argued that Ottawa’s obligation under the act is to enforce the sentence in accordance with Canada’s laws. And Canada’s law respects the right to bail during an appeal, and the fundamental principle of habeas corpus, which gives prisoners the right to challenge the legality of their detention.

Khadr should be treated “no differently than any other prisoner in Canada,” Whitling said. If Ottawa is denying Khadr’s habeas rights then, Whitling argued, “it’s very much like we’re back in Guantánamo.”

On Friday, Justice Ross agreed with Omar’s lawyers, concluding that the “right to seek bail pending appeal is a principle of fundamental justice,” and that Omar’s right to seek bail was guaranteed under Canada’s Charter of Rights and Freedoms. She refused to accept the government’s argument that, as the Toronto Star put it, “granting Khadr bail would jeopardize Canada’s diplomatic relationship with the United States.”

As the Toronto Star also explained, looking at what the judge’s ruling means, Omar’s other longtime Canadian lawyer, Dennis Edney, along with his wife Patricia, “has offered to have Khadr live with them and provide whatever community supervision he may require.”

In addition, “A large community group in Edmonton — from imams and medical professionals, to professors at a Christian university where Khadr has been offered admission — has rallied around the 28-year-old.”

Dennis Edney and Nathan Whitling argued the bail application, and both men “said they were delighted by the news,” as the Star described it. Whitling said, “Omar is fortunate to be back in Canada where we have real courts and real laws,” and Edney added, “It has been a long time coming.”

Nevertheless, the Canadian government has said it intends to appeal the ruling, and, as the Star explained, the government “could argue that Khadr must remain in custody until that appeal is heard.” If that doesn’t happen, then a hearing scheduled for May 5 will set the conditions of Omar’s bail.

The Canadian government should drop its intention to appeal, and should accept that its demonization of Omar must now come to an end, but if that doesn’t happen it is to be hoped that the appeals court will recognize that it time for Omar to be freed to resume his life, and not to continue being used as a pawn in a racist game by the Canadian government.

Omar has spent almost half his life in prison for something he almost certainly didn’t do, and for which he should not, in any case, have been punished. It is time for this festering injustice to be brought to an end.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter. He is the co-founder of the “Close Guantánamo” campaign, the co-director of “We Stand With Shaker,” calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — 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 six-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, the full military commissions list, and the chronological list of all Andy’s articles.

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20 Responses

  1. Andy Worthington says...

    When I first heard the news, I wrote on Facebook:

    I’m delighted to hear that Alberta Justice June Ross has granted Omar Khadr’s bail application, 2½ years since he was returned to Canada from ‪Guantanamo‬ after agreeing to a disgraceful plea deal to secure his return home, and nearly 13 years since he was first seized, aged 15, in Afghanistan. “He has a 12½ year track record as a model prisoner, and a release plan supported by educators, mental health professionals, and his lawyers,” Ross wrote. His lawyer, Dennis Edney, has offered to take him in, but the Harper government, predictably, has appealed the decision.

  2. Andy Worthington says...

    Charmaine Dolan wrote:

    Fingers crossed for this young man. Why an earth did they appeal?

  3. Andy Worthington says...

    They are obsessed with Omar’s suppposed “guilt,” Charmaine, because they despise his family, and, I think it’s fair to say, because they are racist and Islamophobic.

  4. Andy Worthington says...

    Hanan Baghdadi wrote:

    What can u say to someone who suffered like this for nothing … I hope he has the best life possible now and lives a long happy life surrounded by love and faith. It gives others hope, his release, inshallah.

  5. Andy Worthington says...

    Very well put, Hanan. I think he is quite an exceptional young man, based on everything I have heard about him.

  6. Andy Worthington says...

    Aftab Ahmed wrote:

    Alhamdolillah

  7. Andy Worthington says...

    Thanks, Aftab. Good to hear from you.

  8. Andy Worthington says...

    Cindy Barg wrote:

    Here’s an excellent interview with DAMIEN CORSETTI (podcast available at this link: http://www.cbc.ca/radio/day6/episode-230-omar-khadr-gets-bail-mayweather-vs-pacquiao-death-doulas-and-more-1.3047873/military-interrogator-and-blinded-soldier-react-to-khadr-bail-decision-1.3048008)

    Q: Damien Corsetti, Layne Morris makes the case that Omar Khadr remains a real threat to security. Do you think he’s a threat?

    A: Personally I have serious doubts if he’s a threat. I can’t say, after the time he spent incarcerated in Guantanamo and in the Canadian penal system, what his current state of mind is. But I would lean towards no.

    Q: Layne Morris also dismissed the notion that Khadr should have been treated as a child he was 15 at the time of the incident in Afghanistan. How would you respond to Layne Morris’ claim that Khadr’s age doesn’t and shouldn’t matter?

    A: As far as my opinion on that matter is you either believe in international law or you don’t. You can’t only support it when it’s convenient to the cause that you believe in. As far as international law is concerned, I believe that it says very clearly that Mr. Khadr should be treated as a child soldier.

    Q: Take me back to the first time that you saw Omar Khadr when he came into the Bagram Detention Center in Afghanistan. What was his condition?

    A: The first time I actually came in contact with him was a field hospital at the Bagram Air Base. He was fresh off of the battlefield and there were nurses and doctors were doing what they could to save his life. At that time he had a very large wound in his chest. He looked pretty worse for wear.

    Q: Were you aware of how young he was?

    A: No I didn’t know that he was 15 but you could tell he was very young.

    Q: What was the impression that you were left with when you did realize how young he was, what was the conclusion you made?

    A: The conclusion that I made was that he shouldn’t be there based on his age and based on treaties that the United States has signed into on warfare concerning the treatment of prisoners

    Q: And was there anything about his behavior or the things that he said that indicated to you what his real age was?

    A: Just the things that interested him like you know he was he was interested in car magazines. He liked to talk about video games in basketball and…not typical Jihadi conversations.

    Q: But back to what you said earlier that you thought that he wouldn’t be a threat in the real world other. People who have been released from detention in Guantanamo have ended up in the battlefield again. Why would Khadr be any different?

    A: Well I’d like to clarify…I would like to say that I don’t I don’t know if he’s a threat and I don’t know because I haven’t spoken to Omar Khadr since 2002. And so I don’t know what being in Guantanamo and in a Canadian federal prison has done…it tends not to work wonders on most people, as far as their psyche and their beliefs. But my main issue with Khadr is not if he’s radicalized, it’s not did he do it. My issue with Omar Khadr is that it’s a violation of international law to charge him for war crimes.

    Q: Did you think about Omar Khadr after he left Bagram?

    A: I certainly do…I think about Omar Khadr a lot. I thank Omar Khadr because he definitely helped keep me, uh, I’m not going to say I was exactly a nice guy over there but he definitely kept me a lot kinder than I would have been had I not known him.

    Q: Why was that, what did he do…what did he bring to you that changed the way that you behaved?

    A: Humanity. And that’s a very rare commodity in a war zone. If it hadn’t been for him I think I would have lost even more than I already did. He made me have compassion for someone who was the enemy. It is something that I value today.

    Q: If you had a chance to speak with Omar Khadr again what would you say to him?

    A: I’d tell him I was sorry for having taken part in the U.S. campaign against him. For having anything to do with that. For not doing anything more, for not speaking up for him over there more than I did. I would just apologize to Omar Khadr and I would congratulate him if he is granted bail on his freedom however permanent or temporary it may be.

  9. Andy Worthington says...

    Excellent. Thanks very much for posting that, Cindy​. Damian Corsetti is a very powerful critic of those who try to defend Guantanamo and the “war on terror,” having been prosecuted and convicted for being part of the Bush administration-sanctioned brutality in Bagram in Afghanistan, and having turned against it. I published an interview with him back in 2007: http://www.andyworthington.co.uk/2007/12/21/former-us-interrogator-damien-corsetti-recalls-the-torture-of-prisoners-in-bagram-and-abu-ghraib/

  10. Andy Worthington says...

    When I posted my article on Facebook, I wrote:

    Here’s my article about the good news from Canada, where a judge has granted Omar Khadr’s bail request, three and a half years after he returned to his home country from ‪‎Guantanamo‬. The details will be finalized on May 5. This is welcome news indeed, even though the wretched Canadian government – which has persistently lied about and demonized Omar – has threatened to appeal. I very much hope that he will be released in a few weeks’ time to resume his life.

  11. Andy Worthington says...

    Monique D’hoohge wrote:

    yaaaaaaaaaaaaay

  12. Andy Worthington says...

    Thanks, Monique. Great to hear from you.

  13. Andy Worthington says...

    MJ Tallon wrote:

    Thank you so much for calling the Canadian government exactly what it is, Andy. We are hopeful here too, as it seems their only reason for appeal is that they don’t like the decision. Omar Khadr has suffered so much because of our government’s refusal to stand up for his rights — it’s time he might be allowed to try to rebuild a life, yes.

  14. Andy Worthington says...

    Thanks, MJ. Very good to hear from you. Throughout this disgraceful saga that has done so much to tarnish the reputation of the Canadian government, officials have behaved exactly as you describe – appealing against decisions they didn’t like, or, prior to Omar’s return to Canada, simply ignoring them, as when the Supreme Court criticized them for violating his rights, for example. Their behaviour has been absolutely disgraceful, and let us indeed hope that Omar is soon to be free of their terrible obstruction of his right to rebuild his life.

  15. Andy Worthington says...

    Bill Anderson wrote:

    Great news!

  16. Andy Worthington says...

    Yes indeed, Bill. It’s a disgrace that the Canadian government has treated him so disdainfully for so long. I only hope the government doesn’t appeal, but even if they do, I don’t imagine it will make any difference – except, perhaps, to keep Omar in prison for slightly longer, which would be a pointless, but typically vindictive gesture.

  17. arcticredriver says...

    Thanks Andy.

    Sadly and predictably, the Harper government will appeal.

    The CBC’s interview with Damien Corsetti was a good one. Unfortunately, they also gave that very misleading individual Layne Morris another fifteen minutes of fame.

    I am so sick of uncritical use of Morris for sound bites. He is routinely treated as if his comments on Omar are meaningful. He is routinely allowed to comment on Omar’s training, appearance, behavior, character, motivation and morals, when he never met Omar and his comments are no better informed than any random member of the public.

    Layne Morris was present on July 27, 2002. But he was injured prior to aerial bombardment, and would have been med-evaced hours before Omar was apprehended.

    I think I mentioned before how the two civil suits Layne Morris initiated took diametrically opposite positions. His first civil suit was against the estate of Omar’s father, Ahmed Said Khadr. Morris and Sergeant Speer’s widow suit against Omar’s father’s estate argued that, since he was only 15, his father was 100 percent responsible for everything he did.

    Foolishly, they thought the US government had seized tens of millions of dollars from Ahmed Said Khadr’s secret accounts.

    When they sued Omar, personally, they took the position that Omar himself was 100 percent responsible for himself.

    If I was the judge in that second case I would thrown out the case, and charged them for contempt of court, for launching a second suit that contradicted the first.

  18. Andy Worthington says...

    Good to hear from you, arcticredriver, and thanks for the analysis of Layne Morris’s repeated attempts to intervene in Omar’s case – and why he isn’t qualified to do so.
    I had a quick search for other commentary prior to responding to you, and recommend the Globe and Mail’s editorial, which I’m cross-posting below:

    Omar Khadr gets bail, and it’s about time
    Globe and Mail editorial, April 26, 2015
    http://www.theglobeandmail.com/globe-debate/editorials/omar-khadr-gets-bail-and-its-about-time/article24116009/

    Far from Guantanamo Bay, and its warped legal regime that undermined the most basic ideas of justice, Omar Khadr has finally been treated fairly. On Friday, Alberta judge June Ross ordered the 28-year-old, who in 2010 pleaded guilty to “murder in violation of the laws of war,” to be released from prison on bail while awaiting the results of his appeal of that conviction.

    This is the correct decision, and it is unfortunate that the Canadian government – which intends to appeal – remains unwilling to accept that Mr. Khadr is right to challenge the legality of his conviction before a U.S. military commission, and has the right to be granted bail in Canada in the meantime.

    As Justice Ross noted, Mr. Khadr’s appeal has “a strong probability of success” – and this despite the fact that Mr. Khadr secured his release from Guantanamo and his return to Canada in 2012 only after waiving his right to appeal.

    Mr. Khadr has been the victim of other people’s ideologies for far too long. The Canadian government wants him held to his U.S. plea agreement. But there is little about it that comes close to meeting the standards of the Canadian legal system. Captured as a 15-year-old child soldier in 2002, Mr. Khadr pleaded guilty under duress. After eight years in limbo, threatened with indefinite imprisonment if he did not co-operate, he told his captors what they wanted to hear in exchange for an eight-year sentence and the chance to finally get out of Guantanamo, where he had been tortured.

    It’s absurd Ottawa persists in denying that Mr. Khadr’s “conviction” was the result of a legal process that went against legal norms, including suppressed evidence and a coerced confession. There is no reason to believe that granting him the bail he is due, and allowing him to reside with one of his lawyers while waiting for his appeal to be heard, poses a threat to anyone. Mr. Khadr, Justice Ross noted, “has a 12 1/2-year track record as a model prisoner,” which is both a sad and a heartening statement, given what he’s been through.

    “We’re glad to be back in Canada where there are real courts and real laws,” said Mr. Khadr’s lawyer Nathan Whitling, “rather than in Guantanamo Bay.” If only the government of Canada could realize that the scene has shifted and the rules have changed, for the better.

  19. Andy Worthington says...

    And here are a few articles presenting Omar’s humanity:
    Dutch activist Aaf Post on visiting him with her son: http://rabble.ca/news/2015/04/what-has-happened-to-canada-speaking-omar-khadr-prison
    And a Canadian journalist on meeting his supporters at the bail hearing in March: http://metronews.ca/voices/footnotes/1326440/in-room-317-with-omar-khadrs-edmonton-family/
    Plus – well worth reading – Omar’s own words, in letters from prison, from the Free Omar Khadr NOW website: http://freeomar.ca/omar-speaks/omar-speaks-through-his-friends/

  20. Andy Worthington says...

    And a good article from Maclean’s:
    http://www.macleans.ca/news/canada/why-omar-khadr-isnt-a-free-man-just-yet/

    Excerpts below:

    Yet again, Omar Khadr has convinced a Canadian court to rule in his favour. And yet again, the practical result may be the same as always: the 28-year-old still locked behind bars, not quite sure when he’s getting out.

    His latest legal victory came Friday, when an Edmonton judge concluded the former Guantanamo Bay inmate—a “model prisoner” for nearly 13 years—deserves bail while he appeals his war-crimes convictions south of the border. Incarcerated for more than 4,600 days and nights, freedom suddenly seemed imminent.

    But while fellow citizens were still digesting the headlines, Stephen Harper’s Conservatives announced the inevitable: that Ottawa was “disappointed” with the ruling, and planned to appeal. “Omar Ahmed Khadr pleaded guilty to heinous crimes,” said a prepared statement from Public Safety Minister Steven Blaney, repeating the government’s media lines on the file. “We have vigorously defended against any attempt to lessen his punishment for these crimes.”

    Not so fast, in other words.

    Khadr is scheduled to appear at another court hearing May 5, when lawyers for both sides will debate the conditions of his bail, such as curfew and approved associates. With a government appeal pending, however, Ottawa could request a stay of Justice June Ross’s ruling, ensuring Khadr stays in a cell while Alberta’s Court of Appeal weighs in on the case (a process that will certainly drag on for many more months).

    Simply filing the appeal won’t be enough to postpone Khadr’s freedom. Federal lawyers would need to convince Justice Ross that their appeal raises a “serious issue,” and that releasing Khadr before that appeal is heard would trigger some kind of “irreparable harm.” If the judge refuses to issue a stay, the feds can then proceed one step higher, asking the appeal court to halt Khadr’s release until the matter is settled.

    Bottom line: despite Friday’s monumental decision, Khadr’s final day in prison is as much a mystery as it was on Thursday.

    “He, quite properly, is being cautious,” says his long-time lawyer Dennis Edney, who has famously offered Khadr a bedroom in his Edmonton home—whenever he gets out of his current residence at Bowden Institution, a medium-security institution in Innisfail, Alta. “He is saying to himself: ‘I’ll believe it when it happens.’ ”

    Nathan Whitling, another Edmonton lawyer who fought for years on Khadr’s behalf, is not the type to try to predict future court rulings. But he will say that proving “irreparable harm” would be a tall order for Ottawa. “That means some terrible harm is going to occur between his release and the completion of the appeal,” Whitling says. “That’s going to be difficult for them to show because they’ve never attempted to argue that he poses a threat to anyone.”

    […]

    Simply put, his lawyers argued that any Canadian prisoner with a pending criminal appeal has the right to apply for bail, and that Khadr’s U.S. case is inching along so slowly that a final ruling may not be issued by the time his sentence expires in October 2018. (As Whitling joked at the bail hearing: “We could all be retired by the time those appeals are done.”)

    […]

    “He knows very well that he’s not out yet and there’s more steps,” Whitling says. “He’s been through a heck of a lot of these things, and he knows better than to get his hopes up. None of us are counting our chickens.”

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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