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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