Compensation and an Apology to Omar Khadr

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.”

 

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12 comments

  1. Doug F.

    Thanks Marion, I heard Ralph Goodale make the point also but your explanation presents the argument in a very clear nonpartisan way that I can support. WELL DONE.

    • Bob I.

      Non-partisan? Other than shifting responsibility from the Liberals who were in power when the violations occures, to the Conservatives, who were not? How big do Ralph Goodale’s balls have to be to claim this was done out of respect for the charter when he was a senior cabinet minister in the government responsible for the charter violations?

  2. Bob I.

    All well and good, but you would do well to actually read the SCC Khadr decision before opining on what it says. Your misunderstanding distorts your entire account of this fiasco.

    The court did not find that there were multiple breaches or that they continued past 2003 or 2004. On the contrary they only found Charter breaches occurred in 2003 and 2004 but that they had continuing effects past that date. For example, at para 29 of Khadr 2010 the SCC states:
“We have concluded that the Canadian government breached Mr. Khadr’s s. 7 rights in 2003 and 2004 through its participation in the then-illegal military regime at Guantanamo Bay.”

    Two points follow from this. First, contra your claim, the SCC did not find that the Harper government breached Omar Khadr’s rights. Indeed, it ultimately upheld the Harper government’s position that it had no legal obligation to seek to repatriate him and overturned the lower court’s decision ordering that he be repatriated. I know, I know, Harper is the devil, boo hiss. But in the accurate version of your little morality play the role of the bad guy is properly played by the Chrétien/Martin governments who were responsible for the breaches of Khadr’s rights.

    Second, this proper understanding of both the SCC’s decision and the history of the Khadr affair puts the Liberals’ egregious settlement in a whole new light. They aren’t “compensating” him (I’ll come back to this), they are buying his silence to cover up past Liberal misdeeds. The Liberals like to wrap themselves in the Charter – $10M of taxpayer money is a small price to pay to preserve that privilege. Indeed, seen in that light, I’m surprised that you’re on board with this settlement. Canada’s interests, one way or the other, would have best been served by a full airing of what Canada did and didn’t do.

    As for compensation. Two points should become clear. Omar Khadr can have no claim against the government of Canada for alleged acts of torture – his own claim that he was tortured before being interrogated by Canadian officials belies any claim that Canada’s involvement contributed to his torture. Had Canada done nothing – as we should have – he would still have been tortured.

    Second, it’s far from clear that the information obtained by Canada contributed to his continued detention. Indeed, in 2010 the SCC speculated that such evidence might be introduced at trial, in the event Khadr plead guilty. The facts have changed since 2010, there is a reasonable, I would say strong, basis for suggesting that Khadr would be unable to prove that Canada’s Charter breach materially contributed to his detention. In any event, given the blood on Khadr’s hand (below) he should have been made to prove it. Nor, even if his allegations were proved is it reasonable to believe that he would have received a damage award of $10M – similar awards in other countries have been closer to $1M. The Arar payment certainly wasn’t a precedent.

    Now, Canada’s refusal to make efforts to repatriate him may have contributed to his continued detention, but the SCC clearly found that Canada had no duty to ask the US to repatriate him and refused to order that Canada do so. Canada ultimately did so and, for its generosity, was sued for $10M. Lesson learned, next time leave terrorists to sweat in whatever hellhole they find themselves, save $10M.

    Finally, your post continues the misrepresentation that Omar Khadr is potentially innocent. He isn’t. He may or may not have killed Sgt Speers (though his failure to move to set aside the Speers family judgment against him likely means that he will be held civilly liable for his death) but there is no doubt that he was actively involved with Al Qaeda and there is ample evidence that he was a participant in their activities – he wasn’t an innocent goatherd picked on by allied forces in Afghanistan. If you want to understand the distinction between the settlement with Maher Arar – by all accounts a blameless man – and Omar Khadr, that’s it. And yes, yes, you can dress him up as a young offender. So what? In this country we prosecute youths who commit crimes. Having plead guilty and served his time for US charges relating to the same activity, it’s likely not in the interests of justice for Canada to prosecute him now, but let’s not pretend that he’s innocent.

    If Khadr were serious about being a changed man who wants to reintegrate himself as a productive member of Canadian society, he would give his ill-gotten settlement money to the Speers family. Call it blood money, a way of repurchasing his acceptance back into the society he had previously spurned. (He should do it now, since, owing to his continuing failure to contest the Speer’s family’s 2006 judgment against him, he’s likely to be made to pay it over anyhow). If he were to do that freely, I suspect many Canadians would be willing to give him the benefit of the doubt. If he doesn’t, well, that too is a comment on his character and integrity and the sincerity of his desire to be reaccepted into our society – and decent Canadians will continue to hold him in contempt.

    Justin Trudeau had better hope he pays over that money to the Speers family too – all it will take is one picture of Khadr climbing into his new BMW during the 2019 election to torpedo him.

    • Marion Lane

      The 2010 Supreme Court decision on Omar Khadr focuses on the 2003 and 2004 interviews, but the decision is more nuanced. At para 21, the court concluded that “Canada’s active participation in what was at the time an illegal regime has contributed and continues to contribute to Mr. Khadr’s current detention, thereby impacting his liberty and security interests.” At para 30, the Court writes that because the information obtained by his illegal interviews is still being used against him, and may be used against him in the US military proceedings, “we therefore find that the breach of Mr. Khadr’s s. 7 Charter rights remains ongoing.”

      It is true that the Supreme Court in 2010 overturned the decisions of the Federal Court of Appeal and the Federal Court to order that the federal government request the repatriation of Omar Khadr back to Canada. It did so out of deference to “the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada’s broader national interests.” (para 39). The Court had several specific concerns: the fact that Khadr was not under the control of the Canadian government; the likelihood that the proposed remedy would be effective was unclear; and the impact on Canadian foreign relations of a repatriation request could not be properly assessed by the Court (para 43). Where the record gave an incomplete picture of the ongoing negotiations between the Canadian and American governments over the future of Khadr, the Court concluded that “it would not be appropriate for the Court to give direction as to the diplomatic steps necessary to address the breaches of Mr. Khadr’s Charter rights” (para 44). Instead, the Court opted for “the prudent course at this point, respectful of the responsibilities of the executive and the courts” which was “to allow Mr. Khadr’s application for judicial review in part and to grant him a declaration advising the government of its opinion on the records before it which, in turn, will provide the legal framework for the executive to exercise its functions and to consider what actions to take in respect of Mr. Khadr, in conformity with the Charter.” The Court ordered costs of the appeal in favour of Omar Khadr.

      The Supreme Court of Canada dealt with the Omar Khadr case on three occasions. In 2008, to order that the federal government provide disclosure to Khadr of the interviews that Canadian officials conducted with him at Guantanamo Bay and of the information they shared with US officials, in 2010 to deal with his repatriation application and to give the declaratory relief discussed above, and in 2015 to confirm the decision of the Alberta Court of Appeal that he be housed in a provincial facility for adult young offenders rather than in a federal penitentiary for adults. All three of these cases were opposed by Stephen Harper’s government.

      • Bob I.

        Again, you are miscitng the SCC’s 2010 decision. You have cited paragraph 30 of that decision selectively in a manner that can only be intended to mislead. In the same paragraph the court said:

        “The first hurdle facing Mr. Khadr, therefore, is to establish a sufficient connection between the breaches of s. 7 that occurred in 2003 and 2004 and the order sought in these judicial review proceedings… Mr. Khadr’s Charter rights were breached when Canadian officials contributed to his detention by virtue of their interrogations at Guantanamo Bay knowing Mr. Khadr was a youth, did not have access to legal counsel or habeas corpus at that time and, at the time of the interview in March 2004, had been subjected to improper treatment by the U.S. authorities. As the information obtained by Canadian officials during the course of their interrogations may be used in the U.S. proceedings against Mr. Khadr, the effect of the breaches cannot be said to have been spent. It continues to this day.”

        Reading the full paragraph and not simply the single sentence you cite makes it clear that my interpretation of the court’s decision is correct, and yours is wrong. What is clear from the Court’s decision is that it believed the Charter breaches occurred in 2003 and 2004. It is also clear that the court emphasized that the EFFECTS of those breeches may well have continued until 2010, those effects arose from the initial charter breeches that occurred in 2003 and 2004, and the sharing of information by the then Chrétien/Martin government – they could not be undone by subsequent governments because you can’t unshare information.

        This is a Liberal mess. And either you should be pissed at them for making a 649 winner out of a terrorist, or pissed at them for violating the rights of a young Canadian (and terrorist) and using taxpayers dollars to cover it up. For either set of reasons Canadians are right to be mad. In either event, your summary does a nice job of burying responsibility for this affair. Non-partisan, indeed.

  3. Justus H.

    First-class analysis, Marion. I think at least half of the people who responded to that poll (and I’d love to see how the question was framed!) don’t understand that the government really had no other option, and that Khadr’s guilt or innocence are irrelevant.

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