Friday 14 July 2017

OMAR KHADR: Was he really a terrorist?  (Part Five)

I have participated in the debates in United Nations conferences around the world on the subject of terrorism and after listening to the comments of the experts and other conferees on this subject, I have become knowledgeable to some degree on terrorism and terrorists.

There are six activities that can be classed as acts of terrorism. They are:

1.      Financing terrorist organizations. 

2.     Assisting terrorists in any capacity such as providing food and shelter, transportation, ammunition, guns, bomb-making parts, along with communications equipment, , etc.  

3.   Advocating acts of terrorism and soliciting citizens to join terrorist organizations.

4.   Raping and murdering unarmed citizens.

5.    Spying for terrorists.

6.   Making road-side bombs (improvised explosive device).

It is my honest opinion that the only acts of terrorism that Omar Khadr actually committed is that he did make road-side bombs (IEDs) and planted them on the roads. I say this because I have seen the video of him making these bombs and planting them on roads.  There is no doubt in my mind that he really knew what these bombs were intended for. What I don’t know is if any of these bombs actually injured or killed anyone.  It is highly unlikely that anyone can answer that question.

Let me be very clear on one aspect of the Omar Khadr matter. It is my honest opinion that even if that 15-year-old boy threw the grenade that killed the American soldier and seriously injured a second soldier, that particular act wasn’t an act of terrorism. He was defending himself from Americans who had attacked his village.

Imagine if you will that you are living in a small village and suddenly rockets and bombs hit the houses of village and villagers are dying all around you and you want to escape the village so you run to a wall that separates you and soldiers coming to kill those people who are still alive. You see a grenade near you and you pick it up and throw it over the wall to stop the soldiers you believe intend to kill you. What would you do?

As a 15-year-old having been told that the American soldiers are going to kill everyone in the village and villagers are dying from the explosions, would you believe that the oncoming soldiers won’t shoot you?  Well in fact this 15-year-old boy was actually shot once in the chest and while crawling away from the wall, he was shot twice in his back. His fears and beliefs were valid.

If he did throw the grenade over the wall, he did it as a child soldier fighting for his life. Does that make him a terrorist? I hardly think so notwithstanding that he hated Americans per se.

Suppose no grenade was thrown over the wall and the soldiers saw the 15-year-old child crawling away from the wall—would he still would have been shot and later captured and sent to  the American military prison at Guantánamo Bay in Cuba as a suspected terrorist. After all, that is why the village was bombed. The American military believed that it was full of terrorists. Omar was treated as a terrorist from the moment just prior to him being shot and thereafter.

I have not seen any proof that he did or didn’t throw the grenade over the wall. Omar Khadr told his interrogators that he didn’t know if he actually threw the grenade over the wall.

Now that remark may seem suspicious but it is a known fact that in the fog of war, events can be so tense, many such events are blocked from a soldier’s mind and can never be recovered. Further, Omar was being abused prior to and after the questioning, For three weeks prior to a Canadian visit by Canadian intelligence officers,  the American guards deprived Khadr of sleep, moving him to a new cell every three hours for 21 days in order to `make him more amenable and willing to talk"

Such treatment could have easily confused the 15-year-old boy soldier during his interrogation. In November 2004, following a meeting with his attorneys, Khadr was interrogated for four days about what he had discussed with his defence lawyers. That demand was an illegal demand being made. What was discussed between Omar and his attorney is privileged. Omar has said that during this time, interrogators used "extreme physical force" and refused to allow him to say his daily prayers. During the visit with his lawyers, they had administered a psychological questionnaire known as the “Mini–mental state examination” which they later gave to Dr. Eric Trupin, an expert in the developmental psychology of juveniles in confinement. Trupin stated that Khadr was suffering from “delusions and hallucinations, suicidal behaviour and intense paranoia, and that his abuse had left him particularly susceptible to mental coercion.”

On November 7th, 2005, Omar Khadr was formally charged with murder by an unprivileged belligerent (an unlawful combatant),  attempted murder by an unprivileged belligerent, aiding the enemy and conspiracy with Osama bin Laden, Ayman al Zawahiri, Sayeed al Masri, Muhammed Atef, al-Adel, Ahmed Khadr (Omar’s father) and various other members of the al Qaida organization.”

As I mentioned in the previous article, a plea deal was made to this young man who was by then an adult.  According to the plea deal,  to the Instead of serving another forty years in prison, he would only serve one year in U.S. custody and serve the remaining seven years  in a Canadian prison. Part of the deal was that he was to plead guilty to murder, attempted murder, providing material support for terrorism, spying and conspiracy. He agreed to the terms of the deal. I should also mention that both his conviction and sentence were widely denounced by civil rights groups, as well as the United Nations.

If you go to my previous article on Omar Khadr, you will see how he served his sentence in Canada.

And now, I will tell you about the extremely contentious issue of this now thirty-year-old man being given $10.5 million dollars and an official apology from the government of Canada.

Layne Morris and Tabitha Speer, Christopher Speer's widow, both represented by Donald Winder, filed a civil suit against the estate of the deceased Ahmed Khadr, claiming that the father's failure to control his son resulted in the loss of Speer's life and Morris'right eye.

Since United States law does not allow civil lawsuits against acts of war, Speer and Morris relied on their lawyer’s argument that when Omar Khadr' threw the grenade over the wall, it was an act of terrorism, rather than an act of war. In February 2006, the Utah District Court Judge Paul Cassell awarded the plaintiffs $102.6 million in damages, $94 million to Speer and $8 million to Morris. The judge said it was likely the first time terrorist acts had resulted in civil liabilities. It had been suggested that the plaintiffs might collect funds via the U.S. Terrorism Risk Insurance Act, but the Federal government is not bound by civil rulings, and the court  had refused to release Khadr's frozen assets, whatever they may be.  

In 2014, Layne Morris and Tabitha Speer filed a wrongful death and injury lawsuit against Omar Khadr. In 2015, a Utah judge granted them a $134 million default judgment after Khadr did not respond to the suit.  

Not responding to the claim that was served on him was really stupid. After being served with the claim, he refused to file a defence because he didn't want to deal with the issue while he was still in jail. I don’t know why Omar Khadr’s lawyer didn’t respond to the claim by filing a defence on his client's behalf. Was the lawyer even aware that the civil claim had been filed against his client? 

In 2017, Morris and Speer filed an application in an Ontario Superior Court to make the judgment enforceable in Canada. The application has not yet been heard.

What the Canadian court has to decide is whether or not it will permit Omar to file a defence to the claims. From my observations in courts when I was practicing law, it is a common practice in courts to not permit a defendant to file a defence if the defendant had no valid excuse for not filing the defence in the first place.

Many years ago when I was a process server, I received permission from a Texas civil court to serve  a  man’s secretary in his office since he wasn’t in his office when I made three previous attempts. He didn’t file a defence. Judgment was signed against him. I finally met him in his office to officially inform him that the judgment had been passed onto the Ontario Superior Court for enforcement.  He was shocked. He said that he never received the claim. I told him that I gave it to his secretary. Apparently, she didn’t give it to him. He immediately fired his secretary and applied to the Texas court for permission to file a defence. His request was denied and he then had a judgement against him for over a million dollars.

If Omar is given leave to file a defence, his lawyer may ask for a delay in filing a defence until the Court in Washington D.C. has ruled whether or not the verdict of the military court will be overturned in its entirety.

I don’t think his plea will be held against him considering the threat of forty years in the military prison at Guantánamo Bay induced him to plead guilty to the charges laid against him—charges that may not be valid.

Was the payment of $10.5 million justified?

Wikileaks Cablegate disclosures in 2010 revealed that the Canadian government had originally decided against seeking Khadr's repatriation, a decision supported by the American government. This made it "politically impossible to repatriate Omar back to Canada. That meant that he would be submitted to more physical and mental abuses.  

An official from the Canadian Security Intelligence Service (CSIS) was allowed to interrogate Khadr. For three weeks prior to that particular Canadian visit, the US guards deprived Khadr of sleep by moving him to a new cell every three hours for 21 days in order to “make him more amenable and willing to talk.”

Omar recalls being kicked for trying to stretch his arms while shackled and being fitted with surgical masks, painted-over goggles and ear protectors for sensory deprivation.

In the early spring of 2003, Khadr was told “Your life is in my hands” by a military interrogator, who spat on him, tore out some of his hair and threatened to send him to a country that would torture him more thoroughly, making specific reference to an Egyptian called Askri Raqm Tisa (Soldier Number Nine) who enjoyed raping young prisoners.

A few weeks later, an interrogator giving his name as Izmarai spoke to Omar in Pashto, (the language he was competent in) threatening to send him to a new prison at Bagram Airbase where they like small boys.

Omar had been reported to have been kept in solitary confinement for long periods of time; to have been denied adequate medical treatment; to have been subjected to short shackling, and left bound, in uncomfortable stress positions until he soiled himself.

Khadr's lawyers allege that in in March 2003, his interrogators dragged him back and forth in a mixture of his urine and pine oil" and did not provide a change of clothes for two days. 

At the end of March 2003, Omar was upgraded to "Level Four" security, and transferred to solitary confinement in a windowless and empty cell for the month of April.

In November 2004, following a meeting with his attorneys, Khadr was interrogated for four days about what he had discussed with his defence lawyers. He has said that during this time, interrogators used "extreme physical force" and refused to allow him to say his daily prayers.

Omar stated that he was refused pain medication for his wounds, that he had his hands tied above a door frame for hours, had cold water thrown on him, had a bag placed over his head and was threatened with military dogs, was farted in his face and forced to carry 5-gallon pails of water to aggravate his shoulder wound. Further, on occasions, he was not allowed to use a washroom so he was forced to urinate on himself.

This kind of conduct conducted against this then young child by his American captors is against the dictates of the United Nations Standard Minimum Rules on the Administration of Juvenile Justice in which I am the precursor of those UN Rules. Further, the America delegation in the UN Congress held in Caracas in 1980, immediately adopted my proposal to the Congress and subsequently, the American delegation was instrumental in bringing the Rules into fruition.

Further, the abuses he suffered under the auspices of the military, is against the United Nations Standard Minimum Rules for the Treatment of Prisoners in which Rule 1 states that all prisoners shall be treated with the respect due to their inherent dignity and value as human beings. No prisoner shall be subjected to, and all prisoners shall be protected from, torture and other cruel, inhuman or degrading treatment or punishment.

In 2008, the Supreme Court of Canada  ruled that those procedures in place at Guantanamo Bay constituted a clear violation of Canada’s international human rights obligations, and, under s. 7 of the Canadian Charter of Rights and Freedoms, (  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.)

By then, Omar was suffering from "delusions and hallucinations, suicidal behaviour and intense paranoia", and that his abuse had left him "particularly susceptible to mental coercion" and at moderate to high risk of committing suicide.

All the time that Omar while as a child was submitted to these abuses by his American military captors and during those times, the Canadian federal governments under the auspices of Prime Ministers,  Jean Chrétien, Paul Martin and  Stephen Harper while all sitting on their bums did nothing to put an end to the abuses Omar was being  submitted to.

Now you can understand why Prime Minister, Justin Trudeau officially apologized to Omar on behalf of the Canadian Government.

But why was Omar given $10.5 million dollars by the Canadian government. The government had no other choice. I will explain why.

Omar sued the Canadian government for $20 million dollars. The government appealed and the matter finally ended up in the Supreme Court of Canada. The court recognized the failure of the federal government to put an end to the abuses that Omar was being subjected to and its initial refusal to bring him back into Canada. The court was convinced that the failure of the government was wrong in their conduct in this sorry matter but at the same time, they felt that twenty million dollars was too much as an award. They reduced the amount to be given to Omar as $10.5 million. The government of Canada had no other choice but to give Omar that sum of money as per the decision of the Supreme Court of Canada.

I hope that you have found my five articles on the Omar Khadr matter interesting and informative. 

This matter hasn't ended. It may not be finally resolved for several years. However, whe I get new information, I will put it at the end of this article as an update. 

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