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

                                         

In September 1975, while I was participating at a UN crime conference being held at the UN headquarters in Geneva, Switzerland, I had the opportunity to address the representatives of 190 nations in attendance with respect to my own views on the subject of torture. 

Torture can be defined as; ‘the officially sanctioned infliction of intense suffering, aimed at forcing someone to do or say something against his or her will.’

I decided not to present my views on that subject. The reason was that I had mix emotions on that issue. I was asking myself, “Was it morally right to torture a known terrorist to make him tell his torturers where and when the terrorist’s next bomb is going to explode?”

Many people will say with no qualms about the immorality of torture, “Torture the bastard.” Officials in the George W, Bush  Administration maintained that the information wrung from terror detainee, Abu Zubaydah (whom the CIA water-boarded ((a simulation of drowning that produces panic and pain) at least 83 times) led to the capture of Khalid Sheikh Mohammed, the blind self-proclaimed architect of the 9/11 attacks. His capture, in turn, helped prevent future terror strikes of the magnitude of the 9/11 attacks in the United States. Ironically, the architect of the 9/11 terrorist act was water-boarded 100 times and he told them nothing.

A May 2005 memo from a CIA lawyer said that waterboarding could be used on a detainee up to 12 times daily for as long as 40 seconds per event. Then-CIA director George Tenet, in his 2007 memoir, said that tough interrogation of al-Qaeda members and documents found on them, thwarted more than 20 plots against U.S. infrastructure targets, including communications distribution points, nuclear power plants, dams, bridges, and tunnels. A future airborne attack on America's West Coast was likely foiled only because the CIA didn't have "to treat the terrorist like a white collar criminal.”

OK. Torture can be useful but it should never be used to extract a confession from anyone. To confess to committing a crime is a sure way of stopping the torture. That being as it is, the person being tortured will admit to committing a crime he or she never committed just to stop the pain being inflicted on that person.

I remember back in 1962, watching a trial of an accused criminal. He said he confessed because the police tortured him. The judge then said, “You probably deserved it.”  No judge nowadays would ever say that but in those days, the judges weren’t held to higher standards as they are today.

Is it morally permissionable to torture a child? Absolutely not. Then why was 15-year-old Omar Khadr mentally and physically tortured at the American prison at Guantanamo Bay?

In January 2002, twenty men were selected from a much larger population of prisoners because they were suspected of terrorism to their American captors. They were transported to Guantanamo Bay with its electrified fences and the heavily armed military personnel to watch over them day and night.  The prisoners were exhibited to junketing politicians, diplomats, and other elites. Even the press was given a glimpse of the shackled men in orange jumpsuits. Over the course of months and years, the military base in the southeastern corner of Cuba was transformed into a prison camp housing approximately seven hundred captives. The men, (some just boys) were subjected to a wide range of sophisticated physical and psychological tortures and held incommunicado from their relatives. 

The George W. Bush  administration’s decision to imprison some seven hundred of the tens of thousands of prisoners captured in the war in Afghanistan at Guantánamo Bay Naval Base is not unprecedented. Although rarely, other liberal democratic governments have also held and mistreated populations of exceptional captives in this same spectacular isolation.

This is part of the story of the George W. Bush administration's response to the attacks of September 11, 2001 and of how Americans have been led down a path of executive abuses, human tragedies and the abandonment of the Eighth Amendment of the US Constitution, plus the erosion of due process and liberty. 

In my view, the George W Bush Administration’s legacy of torture has tarnished what remains of the reputation the United States maintained as a “beacon” of democratic values. It is highly conceivable that profitable political business relationships with former political leadership in the United States now sully the reputation of Canada’s judiciary as an independent body working to secure justice, fairness and equity for all.

People around the world need the United States to be a defender of human rights, not a country that conveniently forgets its principles when those accused of authorizing torture,  

It has been the black hole of the American judicial system from 2001 to the present, providing proof of exactly what Americans have lost over the past years and where Americans are headed under the Trump administration.

The prisoners in Guantánamo Bay were essentially held in solitary confinement. Hunger strikers at Guantánamo were restrained and force-fed through tubes up their nostrils. They were often physically and psychologically abused night and day. They had been prisoners longer than World War II, longer than World War I, longer than the American Civil War. Only one has received a trial. That was Omar Khadr. It was in this black hole that 15-year-old Omar Khadr, then an alleged terrorist who was put into and processed in an American military court.

Before the United States permitted a terrifying way (water-boarding) of interrogating prisoners, government lawyers and intelligence officials assured themselves of one crucial outcome. They knew that the methods inflicted on terrorism suspects would be painful, shocking and far beyond what the country had ever accepted. But none of it, they concluded, would cause long lasting psychological harm. Fifteen years later, it is clear they were wrong. Beatings, sleep deprivation, menacing and other brutal tactics have led to persistent mental health problems among detainees held in secret C.I.A. prisons and at Guantánamo.

After enduring agonizing treatment in secret C.I.A. prisons around the world or coercive practices at the military detention camp at Guantánamo Bay, Cuba, dozens of detainees developed persistent mental health problems, according to previously undisclosed medical records, government documents and interviews with former prisoners and military and civilian doctors. Some prisoners emerged with the same symptoms as American prisoners of war who were brutalized decades earlier by some of the world’s cruelest regimes.

At least half of the 39 people who went through the C.I.A.’s “enhanced interrogation” program, which included depriving them of sleep, dousing them with ice water, slamming them into walls and locking them in coffin-like boxes, have since shown psychiatric problems according to a New York Times article. Some of those detainees have been diagnosed with post-traumatic stress disorder, paranoia, depression or psychosis. Would it surprise you that some of them would choose to be suicide bombers as a means of ending their suffering?

Hundreds of more detainees were moved through C.I.A. “black sites in certain areas of the world or at Guantánamo, where the military inflicted sensory deprivation, isolation, menacing with dogs and other tactics on men who now show serious psychological damage. Nearly all have been released since then. Those released no doubt have a hatred for Americans which is not in the best interest of the United States. There can be no question that these tactics used on the detainees were entirely inconsistent with the values encompassed by the American people. The moral consequences present lasting challenges for Americans who profess that their country believes in justice for all and fair treatment for all their prisoners no matter how bad they may be. 

 When Omar Khadr first arrived at Guantanamo Bay in 2002, he was a baby-faced 15-year-old and one of the military prison’s youngest detainees. He had previously been severely wounded in a firefight in Afghanistan having been shot in in his chest and his back by an American soldier while Omar was trying to crawl away from a wall in his village.

According to the American’s interrogator’s train of thought, before Omar would be put on trial for acts of terrorism, he had to be softened up and made to confess to his terrorist crimes. However, no matter how brave a child may be, he can be softened up by adults who willingly choose to ignore the pertinent elements of the U.S. Constitution and its Eighth Amendment forbidding torture.  

He was interrogated while strapped to a stretcher in a helicopter and said he was spit in his face and threatened with anal rape if he refused to tell his interrogators what they wanted to hear. At Guantanamo, he said, he was shackled in painful positions and told he would be sent to Egypt, Syria, or Jordan to be tortured.  He told his lawyers that after one interrogation session where he urinated on the floor, he was used as a human mop and on occasion, he was prevented from sleeping. Notwithstanding what he went through, I cannot find any evidence that he was water-boarded or beaten. However, there is no doubt in my mind that he was actually tortured and otherwise was physically and emotional abused, of that there can be no doubt. No child in any country should be abused in the manner that Omar Khadr was while he was in the custody of the American military.  

The rights of civilian and military prisoners are governed by both national and international law. International conventions include the International Covenant on Civil and Political Rights; the United Nations' Minimum Rules for the Treatment of Prisoners, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

I am the precursor of the United Nations Standard Minimum Rules on the Administration of Juvenile Justice which was passed in November 1985 by the UN General Assembly. (Type in Google—then type Standard Minimum Rules on the Administration of Juvenile Justice. Then later go back to Google and type in Beijing Rules.  The Rules will then appear. I will now refer you to pertinent parts of those Rules.

7.1: 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.

None of these rights were given to Omar other than he was informed that he was being accused of murder and being a terrorist. I will first refer you to section 9.1 of those Rules.

Rule 9.1: Nothing in these Rules shall be interpreted as precluding the application of the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations and other human rights instruments and standards recognized by the international community that relate to the care and protection of the young.

I will now refer you to Rule 1 of the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations.

Rule 1: 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, for which no circumstances whatsoever may be invoked as a justification.

That means that even if the prisoner is believed to be a terrorist, he or she cannot be subjected to torture or degrading treatment or suffer from use of restraints to keep a prisoner in a painful position (which Omar Khadr was) especially if he or she is a child of 15. Note that article 1 of the Convention on the Rights of the Child specifies that, for the purposes of that Convention, a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier. In the United States, the age at which one is considered a legal adult is typically 18.

I will now refer you to the UN Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

Articles1 and 3 contains a definition of torture (Article 1), and commits parties to taking effective measures to prevent any act of torture in any territory under their jurisdiction and are barred from deporting, extraditing, people where there are substantial grounds for believing they will be tortured (Article 3).

Omar was threatened that if he didn’t cooperate, he would be sent to Egypt, Syria, or Jordan for the purpose of being tortured.

Was Omar really actually tortured? To answer that question, look at the United Nations Convention Against Torture.

Article1.1: For the purpose of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.

Article 2 prohibits torture, and requires parties to take effective measures to prevent it in any territory under their jurisdiction. This prohibition is absolute and non-derogation (suppression of the law) . No exceptional circumstances whatsoever may be invoked to justify torture, including war, threat of war, internal  political instability,  public emergency, terrorist acts, violent crime, or any form of armed conflict. In other words, torture cannot be justified as a means to protect public safety or prevent emergencies. Subordinates who commits acts of torture cannot abstain themselves from legal responsibility on the grounds that they were  following orders rom their superiors.

The prohibition on torture applies to anywhere under a party's effective jurisdiction inside or outside of its borders, whether on board its ships or aircraft or in its military occupations, military bases, peacekeeping operations, health care industries, schools, day care centers, detention centers, embassies, or any other of its areas, and protects all people under its effective control, regardless of nationality or how that control is exercised.

The U.S. Supreme Court has held since at least the 1890s that punishments which involved torture are forbidden under the Eighth Amendment of the U.S. Constitution.

The Canadian Federal Court of Appeal and the Canadian Supreme Court have in some ways acknowledged that the Bush Jr. regime authorized acts in violation of both the Convention against Torture and § 7 of the Canadian Charter of Rights and Freedoms, if not § 269.1 itself. This occurred with respect to the conditions of detention and interrogation of Omar Khadr, a Canadian citizen detained at Guantánamo. The Canadian Supreme Court also made the following clear, at paragraph 50 of a 2002 decision, Suresh v. Canada (Minister of Citizenship and Immigration) in which the court said in part;

“It can be confidently stated that Canadians do not accept torture as fair or compatible with justice. Torture finds no condonation in our Criminal Code; indeed the Code prohibits it section 269.1). Offenders can be subjected to imprisonment for 14 years) The Canadian people, speaking through their elected representatives, have rejected all forms of state-sanctioned torture. Our courts ensure that confessions cannot be obtained by threats or force.” unquote

It is most unfortunate that torture has been commonplace in the U.S. military and the CIA to get confessions from those whom they believe are a danger to the United States. I hate terrorists and they should be punished but torture is beyond the realm of governments who choose to use torture as a means of obtaining information from suspects. I would be less than honest if I didn’t mention that President Obama forbade the use of torture. On the other hand, that thug, President Trump wants to bring back water-boarding.

An act of torture committed outside the United States by a U.S. national or a non-U.S. national who is present in the United States is punishable under 18 U.S.C. § 2340. The definition of torture used is as follows:

(1) “torture” means an act committed by a person acting under the color of laws specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

(E) “United States” means the several states of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

I believe that the military prison at Guantanamo Bay is in a territory of the United States.

In Part Three, I will deal with Omar Khadr’s confession, trial and sentence.