Monday, 7 November 2016

Omar Khadr should have been treated properly                  

When I read that a 15-year-old boy had lobbed a hand grenade over a wall towards the advancing American soldiers at a village in Afghanistan on July 27, 2005 I asked myself, “Why was he fighting the Americans?  He was captured and treated for his serious wounds. When he was sent to Guantanamo, I thought to myself, “Good! That’s where terrorists should be sent.” 

But then I began thinking about his background. Why was this Canadian 15-year-old boy fighting American soldiers in Afghanistan in the first place? Was he a home-grown terrorist? Actually he was. Members of his family in Canada had been noted for their ties to Osama bin Laden and alleged connections to al Qaeda.

His father, Ahmed Khadr (1948-2003), was an Egyptian-Canadian who was killed by Pakistani security forces. In 1995, Ahmed Khadr was arrested in Pakistan following Ayman al-Zawahiri's bombing of the Egyptian embassy there, and he was also accused of financially aiding the conspirators. His oldest son, Abdullah Ahmed Khadr was (born April 30, 1981) and is the oldest of five boys and two girls and is also a Canadian citizen.

It was alleged that Ahmed Khadr was a terrorist and an al-Qaeda member. Ahmed had admitted buying weapons for al-Qaeda, but maintained that he was on friendly terms with its leaders due to his father's prominence in Pakistan and Afghanistan. He claimed that he was not a member of that terrorist organization. He was arrested in Pakistan in 2004 and returned to Canada in December 2005. He fought a lengthy case resisting extradition to the United States, which was finally concluded by an appeal to the highest court in Ontario where the judges unanimously decided in October 2011 in favor of the lower court to refuse the American’s extradition request.    

The court arrived at its decision because Abdullah Khadr had been secretly held in detention for fourteen months while being beaten and interrogated by the Pakistani Inter-service Intelligence (ISI) investigators. Even though Abdullah Khadr was a Canadian citizen, he was denied consular access and had limited contact with a Canadian Security and Intelligence Service (“CSIS”) official. Furthermore, ISI allegedly refused to bring the charges against Khadr before the Pakistani courts.

Justice Sharpe wrote, “This appeal raises fundamental issues concerning the appropriate judicial response to a violation of the human rights of an individual sought for extradition on terrorism charges.” Canada does not condone that kind of injustice against its citizens. Technically, Canadians arrested in foreign countries cannot seek the protection of the Canadian Charter of Rights and Freedoms while they are still in foreign countries.

The family grew up mostly in Pakistan after 1985, where their father worked for charities aiding Afghani refugees. Abdullah and his brothers did some arms training there.

With his kind of background, it doesn’t surprise me a bit that by the time Omar Kadhr was age fifteen, he had leanings towards fighting for a cause, the cause being; the eviction of all American forces out of Afghanistan.

Now had he not been home schooled and had lived amongst people who advocated fighting the Americans and had alternatively been a reasonable thinking teenager appreciating the ways of the Western world, he might very well not have been fighting the Americans in an attempt to get them to leave Afghanistan.                 

On July 27, 2002, a US Special Forces unit stationed in Khost, in south eastern Afghanistan, received a tip-off from an Afghan villager that a group of al-Qaeda terrorists was operating out of a compound near Ab Khail, a small town in the hills near the Pakistani border. Although the Americans found nothing there, one member of the unit, Sgt. Layne Morris, decided to check another compound nearby. Taking five other soldiers with him, Morris spied, through a chink in the gate, five Arab men, all heavily armed. When they refused his call to surrender, he summoned reinforcements. Forty-five minutes later, when the reinforcements arrived with Pashtu translators, they began attempting to negotiate with the men. They responded by firing their guns and hurling grenades. Wounded in one eye, Morris was evacuated by helicopter, but the battle continued for four hours, and the five men refused to give up even as American planes bombed the compound relentlessly.

When the shooting finally stopped, the remaining soldiers (Sgt. Christopher Speer and four others) entered the shattered compound, intending to collect arms and intelligence. They were not expecting to find anyone alive, and were therefore caught off-guard when Omar Khadr, who was hidden between the remains of two buildings, apparently threw a grenade at them. Wounded in the head, Speer was also evacuated, but later he died from his injuries at a military hospital in Germany.

It is alleged that fifteen-year-old Omar Khadr did in fact kill a human being and that charge could not go unanswered. Even a child has to face a murder charge unless he is really young or deemed unfit to go to trial in which Omar Khadr was neither. The problem facing him was that this fifteen-year-old young offender was denied a trial until eight years after his arrest. It is beyond all reason as to why he had to wait that long before he was put on trial. The delay was not caused because they were searching for evidence. They had all the evidence they needed to prosecute him. Was the real reason that it might look bad putting a 15-year-old on trial for his life after he killed a soldier in a firefight? In the United States, children under 18 cannot be executed.

The United States is one of only two states that have not ratified the UN Convention on the Rights of the Child and the United Nations Standard Minimum Rules on the Administration of Juvenile Justice (of which I am the precursor of the latter). Both Conventions recognizes that children need special safeguards and care. Instead, it feels free to trample on the human rights of juveniles in its ‘war on terror” and trample on this 15-year-old which the Americans in Guantanamo did.

Omar’s torture continued with impunity in Guantánamo. On his arrival, in October 2002, just a few weeks after his 16thbirthday, he was immediately subjected to a regime of humiliation, isolation and abuse that included extreme temperature manipulation, forced nudity and sexual humiliation which had just been introduced in an attempt to increase the meager flow of “actionable intelligence” from that particular prison.

He told his lawyers that he was “short-shackled by his hands and feet to a bolt in the floor and left for five to six hours at a time and that occasionally a US officer would enter the room to laugh at him. He also said that he was kept in extremely cold rooms, lifted up by the neck while shackled, and then dropped to the floor, and beaten by guards. In one particularly notorious incident, the guards left him short-shackled until he urinated on himself, and then they poured a pine-scented cleaning fluid over him and used him as a human mop to clean up the mess. As if further humiliation was required, he added that he was not provided with clean clothes for several days after this degradation. Even adults in a regular prison are not treated in this fashion so it is shocking to treat a young offender that way in this century especially in a country like the United States. But then, the apologists will say, Guantanamo isn’t in the United States—it is in Cuba. That argument like that will stand up in a proper trial like a wet noodle.  

Omar’s lawyers, Muneer Ahmad and Rick Wilson, who run the International Human Rights Law Clinic at an American University, first visited Omar Khadr in October 2004, following a crucial ruling in the Supreme Court in June 2004, when, in a landmark case, Rasul v. Bush, the Justices ruled by 6 to 3 that the detainees had the right to challenge the legal limbo in which they had been held for nearly two and half years, thereby demolishing, along the way, the administration’s long-cherished belief that Guantánamo did not count as US territory. Had they put that prison in Guam, which is a US territory, then the decision would be different.

Confirming its disregard for the rights of children, the administration proceeded, in November 2005, to designate Omar as one of ten Guantánamo detainees to be tried by a Military Commission. Under this new process, suggested by Dick Cheney and his senior counsel, David Addington in November 2001, the detainees could be tried and even sentenced to death after using secret evidence that would never be revealed to either the detainees or their government-appointed defense lawyers.

In 1985 when I was addressing the UN Congress (conference) on the prevention of crime and the treatment of offenders held in Milan, I said that terrorists should have fair trials and if they are sentenced to death, an appeal to the highest court of the land should be automatic to the condemned to make sure that they had a fair trial. Were the American delegates at that conference asleep when I was giving my speech or were they listening but didn’t really care that much about the fundamental rules of fair trials?

Section 37 (c) of the UN Convention on the Rights of the Child states that; “Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances”                                                                                    

Subsection (d) of section 37 states; “Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”

The US authorities felt that they didn’t have to adhere to those aspects of the Convention (or any other aspect) because they were never signatories of it.

In the Commentary of the United Nations Standard Minimum Rules on the Administration of Juvenile Justice, it says; “The Standard Minimum Rules are deliberately formulated so as to be applicable within different legal systems and, at the same time, to set some minimum standards for the handling of juvenile offenders under any definition of a juvenile and under any system of dealing with juvenile offenders. The Rules are always to be applied impartially and without distinction of any kind.”

With respect to Section 5, in the Commentary, it says; “The second objective is the principle of proportionality. This principle is well-known as an instrument for curbing punitive sanctions, mostly expressed in terms of just deserts in relation to the gravity of the offence. The response to young offenders should be based on the consideration not only of the gravity of the offence but also of personal circumstances. The individual circumstances of the offender (for example social status, family situation, the harm caused by the offence or other factors affecting personal circumstances) should influence the proportionality of the reactions (for example by having regard to the offender's endeavour to indemnify the victim or to her or his willingness to turn to wholesome and useful life).”                               

It is obvious that the authorities in Guantanamo didn’t give a hoot with respect to the fact that their young prisoner had been brainwashed by his father to be a young terrorist.                                                                                                             

With respect to the rights of juveniles, Section 7.1 states; “Basic procedural safeguards such as the presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross-examine witnesses and the right to appeal to a higher authority shall be guaranteed at all stages of proceedings.”  Well that certainly didn’t happen while this young offender was in Guantanamo.

Now one is forced to ask this question, “Why isn’t the United States a signatory to these two conventions?” The answer is an easy one to answer. The US has fifty states and several territories elsewhere and because of this, the US federal government cannot sign UN Conventions that would only be particularly applicable to the individual states and territories of the United States.

This does not mean that the government of the US doesn’t approve of those two Conventions. In fact, they played an important role at the UN  by bringing about the fruition of the latter Convention. In 1980 when I addressed the United Nations Congress held in Caracas; I described some of the abuses against young offenders in correctional institutions in the United States and I then proposed the creation of a UN bill of rights for young offenders. The head of the American delegation upon hearing my speech immediately stood up and said that the US delegation was in total agreement with me and told the delegates from well over a hundred nations attending that session that they were going to bring in a resolution the following morning instructing the UN to hold conferences world-wide for the purpose of drafting the said rights for young offenders. Their resolution (of which I was asked to help draft up) was passed the next day. In November 1985.the General Assembly passed that Rule of rights which is titled as the United Nations Standard Minimum Rules on the Administration of Juvenile Justice.

It is a sad commentary on justice in the United States that in Omar Khadr’s case, the statute of justice was not only blindfolded, it was also gagged. And during his trial which eventually came about, the gag on the mouth of the statue of justice was thrust down her throat.

In June 2006, the Supreme Court of the United States ruled that the Commissions were illegal under US law and the Geneva Conventions, and highlighted the relevance of Common Article 3 of the Geneva Conventions, which forbids “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” Justice Anthony Kennedy even went so far as to warn the administration that “violations of Common Article 3 are considered ‘war crimes,’ punishable as federal offences, when committed by or against United States nationals and military personnel.”

However Khadr wasn’t a US national or a member of the American forces. But despite that, it doesn’t mean that he could be subjected to torture or humiliation etc., by members of American armed forces. If he was, it was a war crime.                                      

Omar’s third trial began with the kind of unpredictable challenges that observers of the ad-hoc legal system have come to recognize from previous attempts to re-write the law. His tenacious military lawyer, Lt. Cmdr. William Kuebler, who has traveled to Canada to publicize his client’s plight, described the Commissions as rigged, ridiculous, unjust, farcical, and a sham. He also tore into the judge by challenging Col. Brownback’s independence, and arguing that he was too involved in the system to make impartial decisions. Referring to a comment that Brownback had made, in which he admitted taking “a lot of heat” over his decision in June, Kuebler forced the judge to fight back, admitting that he made the comments, but denying that anyone in authority had put pressure on him.                     

After a two-hour hearing, the trial turned out to be nothing more than an arraignment. To the dismay of the prosecutors, who had hoped to show a video, retrieved from the Ab Khail compound that purportedly showing Omar making and planting roadside explosives, Col. Brownback refused to allow the video to be shown, and postponed the trial to allow time for the defense to examine the new evidence.

The real reason why Col. Brownback postponed the trial was that after he ruled that Omar Khadr was indeed an “unlawful enemy combatant” which was only revealed after the arraignment when deputy chief defense counsel, Mike Berrigan announced that, just 36 hours before the trial began, that the lead prosecutor, Marine Corps Major Jeff Groharing, had informed Khadr’s defense team of the existence of “potentially exculpatory evidence” from a “US government employee,” who was an eye-witness to the gunfight in Afghanistan that led to Khadr’s capture. As it turned out, the eye-witness’ account contradicted the government version of events and that testimony could exonerate Khadr of the war crimes with which he is charged, to wit;  murder, attempted murder, conspiracy, spying and material support for terrorism.”

Those charges were ridiculous. The young man of 15 years had been fighting soldiers whom he believed were the American invaders of Afghanistan. Supposing he hadn’t lobbed the grenade at the man he killed, would be still be charged with attempted murder, conspiracy and giving material support to terrorists?                                                                                                                               

In the legal netherworld of Guantánamo, which was beyond US criminal law and the Uniform Code of Military Justice, the failure to disclose potentially exculpatory evidence for five years is, of course, no surprise. The administration’s many attempts to prevent all evidence of torture and ill-treatment, while securing convictions at all costs relied specifically on the right to withhold classified evidence from the detainees and their lawyers, and, moreover, to impose protective orders shielding the identities of witnesses, interrogators and informants. Although little was actually reported, the imposition of protective orders which was described as “draconian” by Lt. Cmdr. Kuebler had led to a situation that affidavits sworn by bounty hunters in Pakistan who turned over more than 200 of Guantanamo’s detainees in exchange for sums upwards of $5,000 are among the classified documents that neither defendants nor trial observers were allowed to see.                       

Quite frankly, I am suspicious about the monetary motivation that resulted in the possibility that some of the detainees may have been innocent all along. If the bounty hunters were subpoenaed and had given evidence, their evidence may have appeared to the tribunal as being highly suspect. But denying access to copies of the documents; flies in the face of justice. It makes the word, railroaded seem innocuous.

Finally a deal was proposed to Khadr’s lawyer. In October 2010, Khadr pleaded guilty in a plea agreement to the charges of war crimes, including murder in violation of the law of war and providing material support for terrorism. I can understand why he was willing accept the deal. He had already been incarcerated for 64 months in Guantanamo and this plea would make it possible  that he would only have to spend one more year in that hell hole before being transferred to Canada where he would serve the remainder of the sentence. That possibility was available because of an American/Canadian Agreement signed many years ago   

Subsequently, series of visits by Canadian Foreign Affairs officials led them to report that Khadr was “salvageable” if allowed to return to Canadian society, but that keeping him in the prison would risk radicalizing him further. As of January 2009, 64% of Canadians supported  repatriating Khadr to Canada, up from 41% in June 2007.

The transfer was made on September 29, 2012, where he was to serve the remainder of his sentence. He was incarcerated at a federal maximum-security prison called the Millhaven Institution near Bath, Kingston in Ontario upon his arrival. He had six years remaining on his eight-year sentence. That particular prison was built for dangerous and incorrigible prisoners however, under Canadian law; he was eligible for parole in mid-2013, however, he wasn’t paroled then.

His Canadian lawyer wanted him transferred from the federal prison to a provincial prison. Now if an adult commits murder, he is sent to a federal prison but if a young offender commits murder, he is sent to a provincial prison. Khadr was a juvenile when he killed Captain Speers so he should have been sent directly to a provincial prison. Canadian authorities were at fault for this mistake of sending him directly to a federal prison. 

This wasn’t the first mistake that the Canadian authorities made in this matter. Khadr's defence attorneys claimed that the Canadian government acted illegally, sending its counsel and CSIS agents to Guantanamo Bay to interrogate Khadr and then turning their findings over to the Tribunal prosecutors to help them convict Khadr.

This brings to mind the American case of  Barbara Graham, She was convicted of murder partly on her own statement she had mistakenly given to a police officer who visited her in her cell under the guise of being a lawyer there to represent her at her trial. Her trial judge permitted the fake lawyer’s testimony to be presented to her jury and she was subsequently executed.

Was this young man really guilty of murder? Lt. Col. W. (name not disclosed) had initially written in his report the day after the firefight that "the person who threw a grenade that killed Sgt. 1st Class Christopher J. Speer also died in the firefight.” This implied that the grenade had indeed been thrown by the surviving Mujahideen, and not by Khadr. However, for some reason I can’t explain, the report was rewritten months later to say that the grenade thrower had been ‘engaged later’, rather than ‘killed’, changing the original wording that exonerated Khadr to those now convicting him of murder. Further, Khadr had not only been the only survivor in the compound, as previously claimed and further, nobody had even seen him throw the grenade. 

 Omar Khadr’s trial was a farce. Actually, it was a disgrace. The  United Nations requested that Radhika Coomaraswamy, special representative for children in armed conflict, be allowed to watch the tribunal, but the UN’s request was denied. The reason for the denial was patently obvious. The American authorities didn’t want a UN representative witnessing the proceeding as the farce it was.        

The Alberta Court of Appeal ruled on July 8th, 2014 that Omar Khadr was to be transferred to a provincial correctional Institution for adults. The institution he was sent to was the Bowden Institution in Innisfail, Alberta. There he was treated decently. I know that for a fact because in the mid-1950s, I was the director of programming in the young offenders facility in that particular correctional institution.  He was eventually paroled

Hopeful, Omar Khadr, who is now 26 years old, will learn and believe that Canada can be a pleasant place to live in despite its faults and that he will eventually come to realize that the American people for the most part are not as bad as those that so horribly mistreated him. Irrespective whether he loves them or hates them, he will never be permitted to enter the United States or even fly over the US to get to Mexico or destinations further south.

It is extremely difficult to change the thinking of someone who as a teenager has been previously brainwashed into believing that the Western ways are inferior to the ways of the Taliban and other undesirable factions like the al-Qaeda and ISIS etc. However, with proper handling of this young man while he was at the Bowden Institution and during his stay at a half-way house and while living with his lawyer, it is possible that Omar Khadr will, become a decent citizen of Canada and appreciate the Western ways of living in a peaceful environment. 

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