The Supreme Court of Canada is currently hearing the second appeal by the Harper Conservatives on a Federal Court ruling that found that the fundamental human rights of Torontonian Omar Khadr have been violated during his illegal detention at the infamous U.S Bagram air base and Guantanamo Bay facilities. The court has, yet again, ordered the government to seek Khadr’s repatriation. The original Federal Court ruling emphasized CSIS violations of Khadr’s rights, and would have forced Harper to fulfill his constitutional responsibility to the lone Western national remaining in Guantanamo (and the only child soldier charged with war crimes in modern history) had the government not appealed, again.
Simultaneously, U.S. Attorney General Eric Holder announced that Khadr’s case would be heard by internal military commissions, condemned by human rights groups such as Human Rights Watch as “kangaroo courts”—courts where verdicts are predetermined—while the five 9/11 suspects held at Guantanamo would be tried fairly in civilian court.
The logic behind this bizarre disparity is simple: while tenable charges can be brought against the 9/11 suspects, it is correctly expected that Khadr would be instantly acquitted in constitutional court. Hence, he is being tried in a forum that will yield the authorities’ preferred result—a conviction.
The decision to render Khadr to these farcical and secretive commissions—which admit they gather evidence through torture—rather than the constitutional, transparent civilian courts which are to try the 9/11 suspects, translates as a blithe admission that the Pentagon has absolutely no case against Khadr, and knows it.
Military officials argue that Khadr’s alleged 2002 battlefield killing of U.S. medic Sgt. Christopher Speer constitutes “murder in violation of the laws of war” because Khadr was not part of a regular military force. But at the same time, these officials refuse Khadr his Geneva and child-soldier rights. Incidentally, many aspects of his detention constitute serious war crimes, and the evidence against him is circumstantial at best.
Although prosecutors maintain that Khadr killed Speer, no witnesses claim to have seen him throw the deadly grenade. Furthermore, there were battlefield reports—suppressed by the Pentagon—that exonerated him of the killing, before being secretly “updated” to implicate him after he was charged, said the Criminal Investigation Task Force Witness Report from March 2004. According to the Los Angeles Times. his defence lawyers have been groundlessly refused access to exculpatory documents and key witnesses.
Reporting his capture, a U.S. soldier claimed to have shot Khadr (then 15 years old) twice in the back while Khadr knelt, unarmed and wounded, in the wreckage of a bombed-out house.
The “case” against Khadr relies on his “confession” which was coerced illegally at Bagram, one of the world’s most notorious torture labs, under the chief interrogation of Sgt. Joshua Claus. Claus later pled guilty to the beating-death of an Afghani civilian, whom he “interrogated” until the civilian’s legs were so swollen that his heart stopped. According to The New York Times, his torturers believed the civilian had “simply happened to be driving his cab past the U.S. base at the wrong time.”
Needless to say, no civilian court would admit a confession that was given while the defendant was being tortured by a murderer, although the military commissions, ghoulish relics of the Bush-Cheney era, make no such quibble. It is also suspect that the commissions punished Sgt. Claus with five months imprisonment, whereas Khadr faces a life sentence.
Were justice universally applied, Omar Khadr’s kidnappers and torturers would be on trial in civilian court for a list of war crimes, and Khadr would be freely collecting reparations from the U.S. and Canadian governments. Holder has therefore opted to prosecute Khadr via courts established “to secure convictions where prisoner mistreatment would otherwise preclude them,” as they have been described by former commissions prosecutor Lt.-Col. Darrel Vanderveld. Assuming that the commissions are willing to overlook international law and total lack of evidence as well as “prisoner mistreatment,” it appears that repatriation is Khadr’s only chance at something reminiscent of justice.
On the heels of Holder’s stark condemnation, the Harper Conservatives genially “acknowledged the decision…to prosecute Omar Khadr through the U.S. military commission system,” arguing to the Canadian Supreme Court that it has no jurisdiction over the case, according to the Associated Press.
While it is disconcerting that our leadership readily endorses Geneva violations against a national while refuting the judiciary’s authority to enforce the Charter of Rights and Freedoms, the opinions of Harper’s followers on the matter are explicitly irrelevant, if not morally suspect. The executive’s prerogative of diplomatic discretion does not supersede the human and constitutional rights of its citizens—or international law, for that matter.
It is worth noting that Omar Khadr, 23 and a Toronto native, might plausibly be now beginning his undergrad education at U of T had the Pentagon had the merest respect for international law, or Steven Harper any sense of duty to uphold the basic rights of Canadian citizens. Assuming that Harper’s abandonment of Khadr is not racially prejudicial, the precedent that he is setting would leave all Canadians vulnerable to torture and arbitrary life-imprisonment abroad. Hopefully, the Supreme Court will rebuff Harper’s efforts.
