Supreme Court: Khadr's Rights Violated

But the court, in a unanimous decision, did not order Khadr's repatriation from Gitmo.

...the court said that before stepping in to dictate a Canadian response on a sensitive question of foreign policy, the federal government must be given a chance to rectify Mr. Khadr's plight.

But should the government fail to act, the court warned that it has the power to move more overtly to aid Mr. Khadr.

[...]

if the government refuses to take adequate action to rectify the abuse of Mr. Khadr's rights, the Court warned, “courts are empowered to make orders ensuring that the government's foreign affairs prerogative is exercised in accordance with the constitution.”

Related:

The court's decision

Good News for Omar Khadr

As the Globe and Mail reports, a federal court has ruled that the Canadian government must seek the repatriation of Omar Khadr from the hell of Gitmo immediately.

No more stonewalling.

No more excuses.

No more fearmongering.

No more pushing the idea that he's guilty before he's even had a fair trial.

No more abandoning a child soldier who has allegedly been tortured while in US custody.

It ends now. Today.

Update:

According to the ruling (.pdf file) the judge decided that Khadr's Charter rights under Section 7 had been infringed.

[8] In his affidavit, Mr. Khadr describes various forms of mistreatment both at Bagram and Guantánamo Bay. For purposes of these proceedings, it is unnecessary for me to make any definitive factual findings about the conditions of Mr. Khadr’s imprisonment. However, there are three significant facts that are relevant to this application and on which there is agreement between the parties.

[9] First, on detention, Mr. Khadr was “given no special status as a minor” even though he was only 15 when he was arrested and 16 at the time he was transferred to Guantánamo Bay.

[10] Second, Mr. Khadr had virtually no communication with anyone outside of Guantánamo Bay until November 2004, when he met with legal counsel for the first time.

[11] Third, at Guantánamo Bay, Mr. Khadr was subjected to the so-called “frequent flyer program”, which involved depriving him of rest and sleep by moving him to a new location every three hours over a period of weeks. Canadian officials became aware of this treatment in the spring of 2004 when Mr. Khadr was 17, and proceeded to interrogate him.

The judge then details the history of Khadr's detention including so-called interviews (i.e. interrogations) by CSIS:

[17] By the spring of 2004, then, Canadian officials were knowingly implicated in the imposition of sleep deprivation techniques on Mr. Khadr as a means of making him more willing to provide intelligence. Mr. Khadr was then a 17-year-old minor, who was being detained without legal representation, with no access to his family, and with no Canadian consular assistance.

Let's not forget that these actions happened under both Liberal and Conservative governments.

Khadr and his lawyers have been looking for justice from our government for years on end, constantly coming up against the political concerns of the parties in power.

[23] Mr. Khadr has launched a number of other proceedings in Federal Court. In 2004, he commenced an action for damages and a declaration that his Charter rights had been infringed.

Justice Konrad von Finckenstein granted him an injunction against further interrogations by Canadian officials, but no further action was taken in the proceedings (Khadr v. The Attorney General of Canada and the Minister of Foreign Affairs, 2005 FC 1076, T-536-04).

[24] Also in 2004, Mr. Khadr applied for judicial review of a decision of the Minister of Foreign Affairs not to seek further consular access to him. Again, there has been no recent action taken on this file (Khadr v. The Minister of Foreign Affairs, 2004 FC 1145, T-686-04).

It's quite obvious upon reading the ruling that CSIS has a lot to answer for - again - in this case. The judge notes that the sleep deprivation technique used against Khadr was torture, as specified in the CAT (Convention Against Torture) and that CSIS, knowing it had garnered so-called evidence as a result of that torture had no right to hand it over to then be used against him in whatever quasi-judicial proceedings would be invented for Gitmo prisoners.

Additionally, the judge found that the government violated the CRC (Convention on the Rights of the Child) on several fronts - including the right not to be tortured.

[63] The CRC 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.

Our government failed Omar Khadr on a number of levels for far too long.

This ruling is a huge victory for him, his lawyers, his family and Canadian justice.

Update:

Asked about the ruling during Question Period, Harper stated that his government had been following the same policy as the previous government for years. He also said that he would review the ruling to decide if the government would appeal.
 

Documentary: The U.S. vs Omar Khadr

This past week, CBC's Doc Zone presented the documentary, The U.S. vs Omar Khadr. It will rerun tonite at 10 pm ET but you can watch it in its entirety here as well.

It makes for painful and frustrating viewing because Khadr's case has been so badly handled - from the fact that he's a child soldier who shouldn't be prosecuted in the first place, to allegations of torture, evidence that just doesn't add up and a Canadian government that refuses to repatriate him.

You can check out the Doc Zone's site (linked above) for links to the relevant documents and history.

Although both US presidential candidates have promised to close Gitmo, the fact that some countries don't want to repatriate their citizens being held there creates a major stumbling block since too many Americans are unwilling to see these detainees housed on American soil where they may also acquire some actual legal rights denied to them now while they're imprisoned in a foreign land.

There's no doubt that the Bush/Cheney "military tribunal" experiment has failed and that their administration's disregard for human rights has been abominable. That, more than the failure of the economy which has put US militarism and torture on the back burner, should be enough to make sure that the Republicans and any complicit Democrats who supported such overt, inhumane fascism are thrown out of office.

(Total run time: approximately 44 minutes in 5 parts - no commercials.)











(h/t reader ghostcatbce)

Related:

Amnesty likens Canadian held in Ethiopia to Khadr case
CAMPUS: Students protest for Khadr's release
Lawyers call for Omar Khadr's repatriation to Canada
 

Defending Omar Khadr

The US military may have unwittingly tripped itself up on Wednesday by offering these proclamations about a video they discovered allegedly containing boys recruited by al Qaeda in Iraq.

Here are some quotes from their news conference:

The insurgent group “wants to poison the next generation of Iraqis,” said Rear Adm. Gregory Smith, an American spokesman, at a briefing about the group’s use of women and children.

Military officials say they believe that the tapes are used during sessions with children in “the process of indoctrination and training that starts early to ensure they grow up to become future terrorists when they become of age,” he said.

If I was one of Omar Khadr's lawyers, I'd definitely grab onto those words along with these spoken by Major General Geoffrey Miller (torture-loving asshole that he is) back in 2003, referring to other juveniles held in Gitmo at the time:

Miller recommended that the Defense Department send them home because he had determined that they had been "kidnapped into terrorism," posed a low risk, and had no further intelligence to provide.

Saying that children are being indoctrinated or that they've been "kidnapped into terrorism" runs contrary to what government lawyers have claimed in their case against Omar Khadr as he languishes in Gitmo. To the contrary, they are more than willing to refuse to see Khadr as one of those indoctrinated children and are attempting to hold him responsible for crimes allegedly committed when he was a child soldier - just as the boys al Qaeda has recruited in Iraq would be labeled.

The US military and the Bush administration can't have it both ways. They release videos like this to point out how ruthless al Qaeda supposedly is towards children while trying to prosecute the one child soldier (that we know of) that they have in custody.

On top of that, new evidence in Khadr's case shows just how dishonest the US military has been in its zeal to prosecute him as they try to pile on even more charges against him:

The document inadvertently handed out to the media in a military courtroom here on Monday shows that, according to the U.S. witness who was closest to the action, there was one other fighter alive inside an Afghan compound during a 2002 gun battle when a grenade was lobbed at U.S. troops entering the compound, killing Sergeant First Class Christopher Speer. It had long been assumed that Mr. Khadr was the only person alive inside the compound at the time, and thus must have thrown the grenade. Sgt. Speer's killing is the basis of the murder charge against the Canadian.
[...]
The revelation that one other person was alive inside the compound when the grenade was lobbed cast doubt on whether Mr. Khadr was the only person who could have thrown the grenade. No U.S. personnel actually saw him toss it. The witness quoted in the document also says he saw two men dead under the rubble and debris when he entered the compound. Since the two men may well have been killed by the air strikes, they could have fired on the two Afghan soldiers.

And, check out this this stunningly arrogant piece of US propaganda:

U.S. NAVAL BASE GUANTANAMO, CUBA - The chief military prosecutor in the Omar Khadr case says the fact the Canadian terror suspect survived after a U.S. operative shot him twice is a testament to the "way America fights."

That's right: Khadr should be grateful that he's in Gitmo because some "U.S. operative" couldn't shoot straight. Anyone who believes he was actually spared as some sort of twisted show of compassion is a fool.

Frankly, this is just infuriating and shows just how completely convoluted the US military spin has been in this case:

"What does it show that he is alive today?" Morris told Canwest News Service Wednesday. "It shows how America fights; that we instantly go to the aid of somebody who is out of combat, as we did there.

"But for the instant vigilant response of our military and medical personnel he would not have lived."

He was shot - twice - in the back. The reason he was treated is because the "operative" didn't manage to kill him. Does anybody think he was somehow aiming at Khadr's toes to save him from death?

The Bush administration takes pride in the fact that it will be the first country to try a child soldier.

The longer this goes on, the worse it gets. I don't give a damn about "America's reputation" in all of this. That was soiled years ago, and rightly so. What I do care about however is justice - a concept totally foreign to this sham military tribunal system.
 

Random News & Views Roundup

- Did you know that Pakistan tested a medium range missile capable of carrying a nuclear warhead just a few days ago? If, like me, you wonder why this happened now - in the midst of political chaos in that country - you'll find this Asia Times piece quite interesting.

- And, while you're at the Asia Times, check out this article by Tom Englehardt: Bombs away over Iraq: Who cares?. It's an eye-opening look at the increased use of air power in Iraq and the tens of thousands of pounds of bombs being dropped.

- Speaking of bombs: U.S. Says It Accidentally Killed 9 Iraqi Civilians (again) and Editor & Publisher takes on the claim that mentally disabled women (which the Times of London has labeled "Down's Syndrome Bombers") were used as suicide bombers in the latest Baghdad market attack.

- Omar Khadr's lawyers are back in the so-called "court" at Gitmo on Monday:

GUANTANAMO BAY NAVAL BASE, Cuba - A U.S. military tribunal will hear arguments Monday on whether it has the right to try Omar Khadr, a Canadian captured as a 15-year-old while fighting against American forces in Afghanistan in 2002.

Lawyers for Khadr, now 21, argue in a challenge on the hearings' agenda that the judge would be the first in western history to preside over a trial for alleged war crimes committed by a child.
[...]
Khadr's trial is scheduled for May and is on track to be the first for a detainee at the U.S. naval base in southeast Cuba, where the Pentagon's efforts to hold the first war-crimes trials since the Second World War era have been stalled by legal setbacks.

A Pentagon spokesman, navy Cmdr. Jeffrey Gordon, said that Khadr's age may be considered during the sentencing phase if he is convicted - but it does not affect the trial.

While the deck is stacked against Khadr, pressure from international human rights group is mounting - urging Canada's heartless government to do the right thing. This weekend, UNICEF released a statement in support of Khadr's rights as well.

If in contact with a justice system, persons under 18 at the time of the alleged offense must be treated in accordance with international juvenile justice standards which provide them with special protection.

- The IAEA's Mohammed ElBaradei reports that Iran is cooperating with his agency's inquiry into Iran's nuclear facilities and that his report will be released later this month. The clock is ticking. Will Bush start one more war before he leaves office? Could the fact that Iran is without internet access right now be related? Here's more on that.

- Finally, this news in Afghanistan is reportedly causing strains between the Brits and Karzai: Revealed: British plan to build training camp for Taliban fighters in Afghanistan
 

Sunday Food for Thought: Child Soldiers

Chris Tenove writes for AlterNet:

Meeting Ishmael Beah is a disorienting experience. Here is someone who once competed with other child soldiers to see who could slash the throats of captured prisoners most quickly. Beah won. It's one of many chilling scenes in his book, A Long Way Gone: Memoir of a Boy Soldier.

And yet here was Beah when I met him, courteously holding the door of an elevator for me to enter. That was in March, during the Vancouver leg of his book tour. In our conversation, Beah proved to be charming, eloquent and humorous. He was also a publicist's dream: dressed in a hip maroon shirt and blue jeans, with Gap ad good looks and a smile that would make a room full of dental hygienists swoon.

It has been a remarkable year for Beah. His book rides high on bestseller lists. He has graced American talk shows and starred in Bling'd, a VH1 documentary that takes American rappers to the diamond mines of Sierra Leone. Even Jon Stewart has paid tribute.

And about Omar Khadr:

...whether Khadr was a lawful or unlawful combatant, one thing is certain: he was 15 years old when American soldiers captured him. Should a child soldier be tried for war crimes?

U.S. Army Sergeant First Class Layne Morris argues that Khadr should be treated as an adult. For proof, Morris described Khadr's behaviour in the battle in which Khadr allegedly killed an American soldier. (Morris was injured in the same clash.) Trapped in a compound besieged by American troops, Khadr chose not to escape with a group of women. The Americans then bombed the compound, killing most of Khadr's companions. When American ground forces entered, the injured Khadr threw a grenade at them. "Anyone who thinks those are the actions of a child, I can't even take them seriously," Morris told the Canadian Broadcast Company''s show The Current recently.

Had he read Ishmael Beah's book, Morris would know that this is exactly how a child soldier would act. They are fierce fighters and suicidally loyal to superiors -- that is why child soldiers are used. Moreover, international legal convention, psychological research, and common sense all tell us that most youths are easily manipulated and therefore not entirely responsible for their actions. Indeed, David Crane, the former chief prosecutor at the Special Court for Sierra Leone, said that he would not prosecute child soldiers because they were "as much victims as the people they raped, maimed and mutilated."

Ishmael Beah committed much more heinous acts than those attributed to Omar Khadr. Now Beah is on talk shows and Khadr remains in indefinite incarceration. Were their situations really different? Or is it just that Beah killed Sierra Leonean civilians, while Khadr allegedly killed a single American soldier?

I've had this discussion may times on this blog with people who believe Khadr, first of all, is already guilty without ever being tried and who, secondly, place absolutely no weight on the fact that he was an indoctrinated child soldier. Those who debate these points often then go on to refer to Khadr's sordid family history which, in the context of his alleged behaviour, ought to bring some light and understanding to his circumstances.

Instead, it is used by those who have written him off as a terrorist (having bought into Bush's rhetoric) as being indicative of the supposition that despite his young age he was fully in control of what he was doing and deserves to rot in Gitmo while some Canadians have even loudly proclaimed that he should be stripped of his Canadian citizenship. When asked why, they have no good reason. Perhaps it's that Khadr doesn't exemplify what a Canadian is supposed to be - whatever that is. It's an attitude that dismisses, as Tenove notes, all of the positive and difficult work done with child soldiers around the world.

Is he right in suggesting that it's because Khadr is accused of committing a war crime against an American - a soldier - a westerner - that gives license to this idea that he is forever hopeless and unable to be rehabilitated? That he should not even be allowed to come back to this country - his home? That he doesn't deserve any justice or compassion? Could it be that we devalue the lives of dead African civilians while elevating the life of an American soldier as somehow being more important? How do we judge the value of a human life? And how do we judge those who allegedly decide to end one in a war zone? Who is guilty of murder and who is guilty of self-defence? How were those fatal situations created in the first place? Those are fundamental questions that deserve some serious thought.

I haven't yet read Beah's book but I hope that people who have such staunchly negative opinions about Omar Khadr's worth as a human being and a Canadian would consider Beah's path:

Beah and the other children find themselves in a village protected by a government-aligned militia. The commander gives the boys a choice: join his forces and help fight the rebels, or continue to wander the countryside in fear of the next attack. Soon the boys are carrying AK-47s and sneaking through the jungle toward their first battle.

'Rambo' revived

In the months that follow, the new recruits are kept high on drugs, whether engaged in combat or watching war movies at base camp. Killing soon becomes a routine, and often a game. As the boys advance on one village, Beah's friend decides to use a tactic he learned from the Rambo movies. He smears himself in dirt and crawls toward the huts. Beah watches as his friend sneaks behind a man, covers his mouth and slices his throat open. (I felt like photocopying this page in the book and mailing it to Sylvester Stallone with the words: "Sly, you must be proud that so many kids look up to you.")

Then, one day, some men from UNICEF arrive and take the youngest child soldiers away to be decommissioned and rehabilitated. Beah is one of them. He was 15 at the time -- the same age as Omar Khadr was when captured. But while Khadr was put in a military prison, Beah was taken to a rehabilitation centre called Benin Home.

The staff at Benin Home are the real heroes of Beah's memoir. In the first weeks the former child soldiers suffer excruciating withdrawal symptoms, and they self-medicate with violence, attacking each other and the centre's staff.

When Beah returned to Sierra Leone last year, he visited Benin Home and thanked the counsellors. "Those people were amazingly strong," Beah told me. "We would do all kinds of things to them and they would come back and help us. Their only goal was to show us that we were trusted and that we could get hold of ourselves. They rekindled our humanity."

And that is the last thing being imprisoned indefinitely at Gitmo is doing for Omar Khadr. It's amazing he's survived there all of these years, especially if his tales of torture are true, while some people would rather sit back in their comfy Canadian armchairs and judge that he ought to be persona non grata - and that includes our own Conservative government officials who are playing faith-based games with the idea that the Bush administration will somehow treat Khadr appropriately. They haven't until now. Why would anyone expect that to change?

The bottom line is this:

He was a child in a war zone.

For some reason, that fact seems to make some people very uncomfortable. And so it should.