I’ve been asked to comment on the current Omar Khadr controversy. I wrote about the Omar Khadr case in an earlier post which will give the essential background. (It can be found here.) Apparently over 70% of Canadians oppose the federal government’s compensation payment of $10.5 million to Khadr, yet over 40% do not know whether he was fairly treated or not. If they don’t know, how can they have an opinion on the wisdom, or not, of the compensation? The Trudeau government paid to Khadr the same amount the Conservative government under Stephen Harper in 2007 paid to Maher Arar, who had been tortured in Syria after being sent there by the United States on the basis of false information from Canada. I agree with the Globe and Mail that compensation in both cases was the right thing. In my view, with respect to Omar Khadr at least, the government got off lightly.
In 2010, the Supreme Court of Canada reviewed the actions of the Canadian government towards Khadr at Guantanamo Bay and found that the Canadian government had clearly breached his rights under Canadian law, the Charter, and various international treaties. The breaches were multiple, grievous, with continuing effects at the time of the Supreme Court decision and into the future. He was a Canadian citizen, born in Toronto, 15 years of age when in July 2002 he was found very seriously wounded and the only survivor of a firefight that destroyed an al-Qaeda compound during the war in Afghanistan. Under Canadian law, he was a young person at the time, yet he was incarcerated indefinitely, refused repatriation back to his native country (unlike British and Australians similarly situated), denied access to counsel, tortured and interrogated repeatedly, including by Canadian intelligence agents and diplomats who shared the fruits of those interviews with US authorities. The videotapes of those interviews by Canadian officials were before the Supreme Court of Canada. Although he later pleaded guilty to having thrown a grenade which killed an American military medic and wounded another soldier, his guilty plea was extorted from him after he had been imprisoned for eight years, tortured and offered a resolution as the only way to escape indefinite incarceration without trial in Guantanamo Bay. In Canadian law, his “confession” would not be admissible and, according to reports, there is little other evidence by which he could be found guilty of the offences alleged against him. When he finally was returned to Canada in 2012, he served further time in a maximum security federal penitentiary until he was moved to a provincial facility and, finally, in 2015, freed on bail.
The Supreme Court of Canada found that multiple breaches of Khadr’s rights violated “the most basic Canadian standards about the treatment of detained youth suspects.” There is no need for any further court action to establish those facts. Those are the facts which call for compensation and an apology. People who insist that the Liberal government has settled this case prematurely apparently do not appreciate that the issue has already been decided by the highest court in the country. Both the Liberal government in power at the time of the interrogations and the Conservatives who resisted later efforts to assert his rights and repatriate him back to Canada were responsible. In the circumstances, settlement is the prudent course of action.
I agree with the Globe and Mail that a civilized justice system does not torture people, even people who are fighting for the other side in a military conflict. “A legal justice system, one operating under the rule of law, does not coerce confessions with violence or threats,” does not single young people out for mistreatment, does not deny habeas corpus or access to a lawyer. The case is about “the rule of law” and the duty of the Canadian government to adhere to the rule of law in its interactions with all its citizens, including those abroad. We are all beneficiaries of the rule of law, never more so than when we find ourselves or our family or friends the focus of unproven allegations or alone, abroad, in trouble. The Canadian military fought for the rule of law in two World Wars, in Afghanistan and in various peacekeeping missions which continue today. Preserving the rule of law sometimes takes lives and sometimes takes treasure.
And I also agree with Colby Cash, writing in the National Post on July 6th:
“The intractable problem with Omar Khadr is simply his existence. The politicians who seem to crave (more of) his blood are… trying to punish the behaviour of his father, and to retroactively abnegate the slack application of dual-citizenship principles that allowed Khadr Sr. to become Canadian while leading a double life as an international terrorist. No one who has read Sophocles or the Old Testament can fail to recognize the mentality at work here. Omar Khadr is the manifestation of a curse upon the state. His personal activity and his ethical culpability are not really the point… It is the Khadr-frenzy crowd… who seem to own magic glasses that can see through time and penetrate the fog of war. They state confidently, as a fact, that Khadr was personally caught using violence against Canadian allies. This proposition seems untried by any forensic method we would expect to receive the benefit of, ourselves… Maybe you believe, to a moral certainty, that he threw the grenade… maybe you believe that Khadr deserves to be treated as if he had been a responsible, independent adult at the time. That is a fair amount of compounded confidence. But even granted all of that, don’t the legal traditions of Canada and the United States, whose courts have both condemned the regime under which he was tried and held, still require him to be given some credit for time served in an extra-national torture shop? Indeed, wouldn’t a non-legal idea of common justice require it? I am not a Christian, so I won’t invoke mercy. That concept does not seem necessary to the argument. But I do notice that no one seems very interested in adding it.”