Khadr Pleads Guilty at Guantanamo

Omar Khadr pleaded guilty to all charges against him Monday in his military commission trial at Guantanamo Bay, Cuba.

Under a plea deal, he will be repatriated to Canada within one year, where he will serve the balance of his still-undetermined sentence - and the Obama administration thereby avoids the major embarrassment of a protracted military trial against the former child soldier.

- Garry J. Wise, Toronto

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Goggles and Earmuffs

CTV News: Khadr refuses to attend hearing, citing 'humiliation'

Shameful.

Will they ever learn? Sensory deprivation en route to a courtroom?

(And... is there a reason CTV neglected to mention in its coverage that the van transporting Mr. Khadr from his jail to the courtroom is windowless?)

- Garry J. Wise, Toronto

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Canadian Bar Association: Repatriate Khadr

The Canadian Bar Association once again has called for the repatriation of Omar Khadr.  

An April 24, 2009 letter from C.B.A. Presient J. Guy Joubert to Canadian Prime Minister Stephen Harper and U.S. President Barack Obama references last week's Federal Court ruling in Omar Ahmed Khadr v. The Prime Minister of Canada et al., and calls upon both leaders to facilitate Mr. Khadr's prompt transfer from Guantanamo Bay to Canadian custody:

The CBA is a national association representing 38,000 jurists across Canada. We work to promote the Rule of Law and improve the administration of justice in Canada and around the world. It is in this light that we have protested Mr. Khadr’s subjection to the military tribunal process in Guantánamo Bay and called for his repatriation. We take no position on Mr. Khadr’s guilt or innocence. Our concern is that he receive a fair trial in accordance with all procedural protections and special considerations to be afforded a minor, as required by domestic and international law. Canada’s justice system is well equipped to fairly and openly assess Mr. Khadr’s criminal culpability, in a manner that reflects his status as a minor at the relevant time.

...Yesterday, Canada’s Federal Court ruled the ongoing refusal of the Government of Canada to request Mr. Khadr’s repatriation to Canada “offends a principle of fundamental justice and violates Mr. Khadr’s rights under s. 7 of the Charter”. It ordered the government to seek Khadr’s repatriation as soon as practicable.1

...Prime Minister, the time has come for the Canadian government to advise the U.S. that it is willing to negotiate the terms of Mr. Khadr’s repatriation to Canada to face Canadian justice. In turn, Mr. President, we urge the U.S. government to negotiate the terms of Mr. Khadr’s repatriation with the Canadian government and to transfer available evidence respecting his conduct to the Canadian government. We urge you to come to an agreement that recognizes international human rights obligations, due process and the Rule of Law, and the desirability of ensuring the national security of both countries.

(h/t:  Ken Chapman)

- Garry J. Wise, Toronto

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On Courts, Khadr and Canada's Conservatives

CTV News reports today that Stephen Harper's Conservative government continues to hedge on whether it will abide by an April 23, 2009 Federal Court ruling, require it to formally request the repatriation of Omar Khadr, a Canadian citizen confined at Guantanamo Bay since 2002:  

Foreign Affairs Minister Lawrence Cannon said Sunday the federal government is still pondering whether to appeal a Federal Court order on the Omar Khadr case.

On CTV's Question Period, Cannon reiterated the government is "looking very seriously" whether to appeal the order that it request the United States to send Khadr home from the U.S. military prison in Guantanamo Bay, Cuba.

In a ruling released Thursday in Omar Ahmed Khadr v. The Prime Minister of Canada et al., Federal Court Judge James W. O'Reilly ordered the Stephen Harper government to demand Mr. Khadr's return to Canada from Guantanamo "as soon as is praticable."  

Mr. Kadr was 15 years old when he was originally detained in Afghanistan and accused of throwing a grenade at an American soldier.

The court's ruling comes at a time when Americans are actively debating whether criminal or congressional investigations are warranted into the use of so-called "harsh investigation methods" in Guantanamo and elsewhere, on orders of the departed Bush administration.   The Federal Court, however, makes it clear that Canada's federal government was complicit in the American utilization of these investigative "techniques" upon Mr. Khadr.

In view of recent developments in Washington, the Prime Minister's apparent resistance to the Federal Court's ruling seems particularly perplexing.  U.S. Attorney General Eric Holder is "nearing decision" on the release of an initial group of Guantanamo detainees.  U.S. President Barack Obama's has pledged to close the prison by January, 2010.

In the Khadr ruling, Mr.  Justice O'Reilly pulled no punches in characterizing certain treatment afforded Mr Khadr at Guantanamo as torture, and noted that Canada's government "implicitly condoned" violations of international law by the U.S. government in its detention of Mr. Khadr.  

Excerpts from the Federal Court ruling follow:

[2] Mr. Khadr challenges the refusal of the Canadian Government to seek his repatriation to Canada. He claims that his rights under the Canadian Charter of Rights and Freedoms (sections 6, 7 and 12) have been infringed and seeks a remedy under s. 24(1) of the Charter. More particularly, Mr. Khadr asks me to quash the decision of the respondents not to seek his return to Canada and order the respondents to request the United States Government to repatriate him. Mr. Khadr also asks me to overturn the respondents’ decision on the grounds that it was unreasonable and taken in bad faith. Finally, Mr. Khadr seeks further disclosure of documents in the respondents’ possession.

[3] I am satisfied, in the special circumstances of this case, that Mr. Khadr’s rights under s. 7 of the Charter have been infringed. I will grant his request for an order requiring the respondents to seek his repatriation from the United States... 

...[56] Torture is defined under [The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment] as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession” (Art. 1). The Supreme Court of Israel has concluded that sleep deprivation “for the purpose of tiring [the suspect] out or ‘breaking’ him, … is not part of the scope of a fair and reasonable investigation” and harms “the rights and dignity of the suspect” (Public Committee Against Torture in Israel v. Israel, 38 I.L.M. 1471 at para. 31). Based on that decision, Justice Mosley concluded that the subjection of Mr. Khadr to sleep deprivation techniques offended the CAT.

...[61] Canada also has a duty to “take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts” (Art. 39).

[62] Finally, Canada has recognized “the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth” (Art. 40.1).

[63] The [Convention of the Rights of the Child] imposes on Canada some specific duties in respect of Mr. Khadr. Canada was required to take steps to protect Mr. Khadr from all forms of physical and mental violence, injury, abuse or maltreatment. We know that Canada raised concerns about Mr. Khadr’s treatment, but it also implicitly condoned the imposition of sleep deprivation techniques on him, having carried out interviews knowing that he had been subjected to them.

[64] Canada had a duty to protect Mr. Khadr from being subjected to any torture or other cruel, inhuman or degrading treatment or punishment, from being unlawfully detained, and from being locked up for a duration exceeding the shortest appropriate period of time. In Mr. Khadr’s case, while Canada did make representations regarding his possible mistreatment, it also participated directly in conduct that failed to respect Mr. Khadr’s rights, and failed to take steps to remove him from an extended period of unlawful detention among adult prisoners, without contact with his family. 

[65] Canada had a duty to take all appropriate measures to promote Mr. Khadr’s physical, psychological and social recovery.

...[68] Clearly, Canada was obliged to recognize that Mr. Khadr, being a child, was vulnerable to being caught up in armed conflict as a result of his personal and social circumstances in 2002 and before. It cannot resile from its recognition of the need to protect minors, like Mr. Khadr, who are drawn into hostilities before they can apply mature judgment to the choices they face.

...[91] I find that the Government of Canada is required by s. 7 of the Charter to request Mr. Khadr’s repatriation to Canada in order to comply with a principle of fundamental justice, namely,the duty to protect persons in Mr. Khadr’s circumstances by taking steps to ensure that their fundamental rights, recognized in widely-accepted international instruments such as the Convention on the Rights of the Child, are respected. The respondents did not offer any basis for concluding that the violation of Mr. Khadr’s rights was justified under s. 1 of the Charter.

[92] The ongoing refusal of Canada to request Mr. Khadr’s repatriation to Canada offends a principle of fundamental justice and violates Mr. Khadr’s rights under s. 7 of the Charter. To mitigate the effect of that violation, Canada must present a request to the United States for Mr. Khadr’s repatriation to Canada as soon as practicable.

Scruffy Dan has thorough coverage on the court's ruling and the Harper government's continued waffling: The ongoing refusal of Canada to request Mr. Khadr’s repatriation to Canada offends a principle of fundamental justice and violates Mr. Khadr’s rights.

UPDATE I:

Also see Dave at Galloping Beaver, who surgically dissects the case against Khadr, and notes:

The worst part is the part you have not yet gathered in.

The government of the United States of America has told the government of Canada that they are willing to release Omar Khadr to Canadian custody on Canadian soil. All that has to happen is that the Canadian government officially request repatriation. That's the only condition.

Think I'm making that up? Then ask them. I know it's a fact. The US, as a matter of saving face in four different directions, wants to rid themselves of Omar Khadr but they need to do it under the proper optics. All that needs to be done is to have the Harper government make a public request. No back-channels.

Think I'm wrong?

Ask them. Ask them, if the Canadian government made a formal request to the government of the United States for the repatriation of Omar Khadr would he be returned to his country of birth?

Because if that happened Khadr would be on his way to Canada, in custody, but at least where the rule of law still has some meaning.

So, why won' Lawrence Cannon do that?  Because the "conservative" voting base would go ape-sh*t.

Not much of a reason.

UPDATE II:

I'd  highly recommend the helpful analysis of this ruling from McGill University's Human Rights and Legal Pluralism blog:

This is quite a bold decision by Mr Justice O’Reilly, in that it recognizes for the first time a duty on the part of Canada to intervene to protect its citizens abroad under certain circumstances. 

...the Federal Court goes much further than these earlier court orders and finds that Canada’s decision not to seek Khadr’s repatriation in light of Charter violations is itself a breach of the principles of fundamental justice guaranteed in section 7 of the Charter....

... as a rule Canada is under no obligation to intervene abroad to protect its citizens maltreated by another state. The decision whether to do so or not is a royal prerogative, a discretionary power with which courts will normally not interfere unless a Charter right has been breached. This is why it is central to the judgment to find that the decision not to seek Khadr’s return was, in itself, a breach of constitutional guarantees.

- Garry J. Wise, Toronto

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SCC: Khadr Appeal May Consider Legality of Guantanamo Detentions

In a series of preliminary decisions, the Supreme Court Canada reiterated March 20, 2008 that it will allow a wide latitude of argument in its hearing of the Omar Khadr case as to "the legality of the detentions at Guantanamo in international law, and whether the Charter was breached by some form of Canadian complicity by interviewing [Mr. Khadr]and giving summaries of the interviews to the Americans."

The Court denied the Canadian government's motions to strike certain pleadings, to preclude the hearing of fresh evidence, and to revoke intervenor status granted to two parties, the University of Toronto, Faculty of Law — International Human Rights Clinic and Human Rights Watch and the British Columbia Civil Liberties Association, the Court .

Omar Khadr is a Canadian citizen who is imprisoned at the U.S. Naval Station in Guantanamo Bay, Cuba. He was 15 years old when he was captured in Afghanistan in July 2002. He is accused of five war crimes, including charges of murder in the grenade death of American soldier Christopher Speer. His trial before a U.S. military tribunal is scheduled for May 2008.

The Court's decisions were made in anticipation of its hearing on March 26, 2008 of an appeal by the Canadian government of a 2007 order of the Federal Court of Appeal granting wide disclosure rights to Khadr in his preparation for the U.S. military commission trial.

Khadr was granted disclosure of Canadian government's documentation for use in his defence at the military commission trial. The government's appeal will be conducted in a closed session of the Supreme Court of Canada.

As noted in The Court, a Canadian law blog that focuses Supreme Court of Canada matters:

It is settled law that the Crown is under an obligation to provide all relevant information to the defendant in a criminal trial, and also that "relevant" is very broadly defined: any information that has a reasonable possibility of being useful is considered relevant. It is also settled law that Canadian citizens are not uniformly entitled to information in the possession of the government of Canada. The question in this case is whether the Crown’s disclosure obligation applies to circumstances where (a) Mr. Khadr was captured abroad (in Afghanistan), (b) he was captured exclusively by the United States, and (c) he is being held by the United States without Canadian involvement.

In the decision under appeal, the Federal Court of Appeal held:

In these circumstances, the participation of Canadian officials in gathering evidence against the appellant at the pre-charge level raises, in my view, a justiciable Charter issue. They took an active role in interviewing the appellant and in transmitting summaries of the information collected to U.S. authorities. In doing so, they assisted U.S. authorities in conducting the investigation against the appellant and in preparing a case against him. Canada’s participation may have made it more likely that criminal charges would be laid against the appellant thereby increasing the likelihood that he would be deprived of his right to life, liberty and security of the person. I believe that in these circumstances the Charter applies.

In its rulings, the Supreme Court did allow the Crown's motion for a sealing order in relation to proposed fresh evidence which was given as disclosure in the U.S. proceedings. U.S. authorities indicated they would only allow the evidence to be tendered in the Supreme Court of Canada on condition of a sealing order being in place.

In an August 12,2007 letter, Canadian Bar Association President J. Parker MacCarthy, Q.C. called upon Prime Minister Stephen Harper to intervene to secure Khadr's release into Canadian custody:

I am writing on behalf of the Canadian Bar Association to urge you to negotiate with the U.S. government the release of Canadian citizen, Omar Khadr, from Guantanamo Bay. Khadr should be released into the custody of Canadian law enforcement officials, to face due process under Canadian law.

...In an April 2006 letter, the CBA urged you to condemn the failure of the U.S. to meet the underlying principles of the Rule of Law through its detention of “enemy combatants” at Guantanamo Bay. We remain convinced that the procedures for holding detainees, including denial of due process and the interference with privileged communications with their solicitors, constitute an affront to the Rule of Law. The fact that Omar Khadr was a minor at the time of his capture only makes his situation more urgent.

As a signatory to the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Combat, Canada has an obligation to ensure that the Protocol is being applied to its citizens.

- Garry J. Wise, Toronto

This article is cross-posted at BAR-eX

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