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

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.