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

                                             

Omar Khadr who was born in Canada and hence is a Canadian citizen, had been detained by the U.S. military at Guantanamo Bay, Cuba, since 2002, While he was still a minor.  In 2004, he was charged with war crimes.

In 2003, agents from two Canadian intelligence services, CSIS and DFAIT, (part of  Canada’s Department of Foreign Affairs) questioned Omar on matters connected to the charges pending against him and shared the product of these interviews with U.S. authorities.  In 2004, a DFAIT official interviewed Omar again, with knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique, known as the “frequent flyer program”, to make him less resistant to interrogation.  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.) His American military lawyer  had requested copies of the transcripts of the interviews Omar had with  CSIS and DFAIT.  After repeated requests by Omar’s lawyer that the Canadian government continued to refuse to adhere to Omar’s lawyer’s request.  Prime Minister Harper (truly one of Canada’s worst prime ministers) announced his decision not to do so.  Omar’s lawyer then applied to the Canadian Federal Court for a judicial review, alleging that Harper’s decision violated his rights under s. 7 of the Charter.  The Federal Court ruled that under the special circumstances of Omar’s case, Canada had a duty to protect him under section 7  of  the Charter  and then the court ordered the government to request his repatriation.  The Federal Court of Appeal upheld the order, but stated that the section 7 breach arose from the interrogation conducted in 2004 with the knowledge that Omar had been subjected to the “frequent flyer program.”

I should point out that depriving a prisoner sleep is considered a form of mental abuse as per 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.

Canada is bound by the principles of fundamental justice and is under a duty of disclosure pursuant to s. 7 of the Charter.  The content of this duty is defined by the nature of Canada’s participation in the process with respect to Omar’s case when the government clearly violated his international human rights  and obligations to him. Canadian officials wrongfully actively participated in a process contrary to its international human rights obligations and contributed to Omar’s ongoing detention so as to deprive him of his right to liberty and security of the person that is  guaranteed by s. 7 of the Charter, which in Omar’s case,  was definitely not in accordance with the principles of fundamental justice.

The Charter applies to the participation of Canadian officials in an American regime later found to be in violation of fundamental rights protected by international law.  There was a sufficient connection between the Canadian government’s participation in the illegal process and the deprivation of Omar’s liberty and security of the person.  While the U.S. was the primary source of Omar’s deprivation of his liberty, it is reasonable to infer from the uncontradicted evidence before the Court that the statements taken by Canadian officials were contributing to Omar’s continued detention.

Omar’s father, Ahmed Khadr, was a friend of Osama bin Laden and a leading fundraiser for al-Qaida. Omar’s older brother, Abdurahman Khadr, once told PBS fhat he had grown up in an al-Qaida family. The fact that family was able to immigrate to Canada is deeply troubling.

After Omar was later taken to Afghanistan by his father, he followed in his father’s footsteps when he began building roadside bombs and in doing so, he was doing what he could to kill Americans. During that time, that by itself made him into a terrorist. However, in my opinion, Omar had become a victim of circumstance that was beyond the mind of a 15-year-old child. He was literally brainwashed by his terroristic father into being a terrorist.

I am not saying that he made bombs because he wanted to kill human beings. If that was the case, he would be a dangerous sociopath. He wanted to kill American soldiers because he was told by his father that the Americans were invading their country. (Afghanistan)

Because Omar  had previously been abused by the US military, he had refused to take part in the proceedings against him because, as he wrote in a letter released, “The (Military) Commission, has been constructed solely to convict detainees and not to find the truth. How can I ask for justice from a process that does not have it or offer it?”  ubquote

The foreordained decision to accept as evidence Omar Khadr’s confession to having killed an American soldier was arrived at after the fifteen-year-old boy was threatened with a 40-year prison sentence to be served in Guantanamo. The verdict by the military jurors was rubber-stamped by the Commission’s judge.  Many people suspect that the Commission was operating under the new and improved guidelines designed to ensure convictions of its defendants.  

Did Omar really kill the American medic on the other side of the wall of the compound he lived in when a grenade was suddenly tossed over the wall? There were two people on Omar’s side of the wall when the grenade was thrown. Which one of them tossed it over the wall? The Americans wanted to punish the person who threw it and they couldn’t punish the man who was beside Omar because he was by then shot dead. Omar was seen crawling away so they shot him and because Omar was still alive, they chose him to be the person who threw the grenade over the wall.

Would that evidence hold up in a legitimate court? Highly unlikely. Further, even if he did throw it, he would have done it because he was afraid of the American soldiers approaching him.  The small compound he lived in had just been obliterated by rocked fire and a bomb that had been dropped on the compound. By then, Omar was probably terrified for his life.   

Omar was during that moment in what is referred to as the fog of war—a term that seeks to capture the uncertainty regarding one's own capability, adversary capability, and adversary intent during an engagement, operation, or campaign. As a 15-year-old combatant, he must have been deep in that fog of war.

Omar’s Defence lawyer Lt.-Col. Jon Jackson told the military commission that his client had been coerced into going to Afghanistan by his father and deserved "not a second chance" but a "first chance," because Khadr had never had that before. Jackson didn’t make a recommendation in terms of the number of years for a prison sentence, but instead he asked the jury of military officers to consider the time Khadr had already spent in detention.

Omar finally agreed to plead guilty to five charges: which were: murder, attempted murder, conspiring with terrorists, spying and providing material support to terrorists. The plea came as part of a deal with prosecutors at the U.S. military commission at Guantanamo Bay, Cuba.

It was understood by Omar and his lawyer the deal would let him serve the first year of his eight-year sentence in U.S. custody in Guantanamo in Cuba, and then be transferred to serve the rest of his sentence in Canada if the American and Canadian authorities agreed, which they did.

Of course Omar was also aware by then that because of the way Canada deals with sentences, a prisoner can be released either after serving as little as a third of his sentence and definitely after serving two-thirds of his sentence. The deal was a good one. He was smart enough to take the plea and admit that it was he who threw the grenade that killed the medic.

His lawyer filed an appeal of his conviction in Washington D.C.  Now normally, if you plead guilty to a crime, you can’t appeal. However, his circumstances may justify the appeal being heard.

Part four will deal with his trial and sentence and incarceration in  Canadian prisons, and his release from prison.