Omar Khadr and the Validity of Guantanamo Military Commissions

By Aisha Maniar | August 31, 2014

Omar Khadr’s appeal case against his conviction by a Guantánamo Bay military commission has been the subject of court action in the U.S., both directly and indirectly, in recent weeks.

In the first instance, a redacted memo by the U.S. Office of Legal Counsel (OLC), released in June under a Freedom of Information order and dated shortly before Omar Khadr’s 2010 military commission hearing, shows that the U.S. deliberately designated Khadr an “unprivileged belligerent”. This enabled the U.S. to charge him with offences it knew did not exist under domestic or international law and to deny him protection under the Geneva Conventions.
(Gail Davidson of Lawyers’ Rights Watch Canada reported on the bogus nature of the charges against Omar Khadr in detail here.)

Following this revelation, on 30 June 2014, Khadr’s legal counsel in the U.S. filed a motion with the U.S. Court of Military Commission Review (CMCR) to have the stay on Khadr’s case lifted and his conviction quashed on the basis that “the disclosure of a previously secret memorandum […] which provided authoritative legal guidance to the Department of Defense several months prior to Mr. Khadr’s guilty plea, invalidates the theory of criminality underlying this prosecution and therefore defeats the premise of the Court’s order.” The motion sets out that the memo made it clear to the U.S. authorities that there was no legal basis for the case against Omar Khadr and that the U.S. was fully aware of this.

On 7 July, counsel for the U.S. government filed a motion asking the court to deny the motion filed by Khadr’s lawyers “because there has been no change in the underlying basis” of the court’s original stay of the case in March 2014 and because the memo is “irrelevant” to Khadr’s case. However, the CMCR denied Khadr’s motion before his lawyers had an opportunity to respond. Khadr’s U.S. lawyer Sam Morison called this response predictable. As a result, according to Morison, “the issue is not going away any time soon”. Indeed.

Four months earlier, in March 2014, Khadr’s case (and that of Australian former prisoner David Hicks) was stayed by the CMCR pending a judgment in an appeal by another Guantánamo prisoner, Ali Hamza Al-Bahlul from Yemen. Bahlul had been given a life sentence in 2008 for conspiracy, providing material support for terrorism, and soliciting others to commit war crimes. Following the successful appeal by fellow Yemeni Salim Hamdan in 2012, in which Hamdan’s conviction was quashed on the basis that his offence, providing material support for terrorism, “did not constitute a war crime,” Bahlul saw his three convictions quashed in January 2013, but the U.S. government was granted a retrial en banc (whereby all the judges in the appeal court make a ruling). The judgment in this long-awaited appeal was handed down on 14 July 2014. It essentially ruled to “reject Bahlul’s ex post facto challenge to his conspiracy conviction and remand that conviction to the original panel of this Court for it to dispose of several remaining issues. In addition, we vacate his material support and solicitation convictions.”

Bahlul’s case has a knock-on effect on pending and future military commissions as well as on other appeals, such as those of Khadr and Hicks. The en banc rehearing was largely admitted on the basis that, while the U.S. government conceded that the quashed convictions of Hamdan (this ruling was also reconsidered by the seven-judge panel) and Bahlul were not recognized under the international laws of war prior to 2006, when the Military Commissions Act 2006 came into force, they were recognized under the “U.S. common law of war.” On this basis, the court quashed two of Bahlul’s convictions (material support and solicitation of others to commit war crimes), finding that the government did not provide historical evidence so that such charges could be upheld in a U.S. domestic context. But, the court decided that there was sufficient precedent in the case of conspiracy and, hence, this conviction was upheld.

Nonetheless, that does not settle this key issue or the other key point of the rehearing – whether the U.S. common law of war can provide a basis for these alleged war crimes – as the court then sent the conspiracy issue back to the three-judge panel, who heard the original appeal, to consider arguments. This granted them the possibility of overturning this ruling before the entire case is returned to the CMCR to assess the effect of the judgment on Bahlul’s life sentence. Essentially, in a confusing 150-page sentence, the court failed to settle the key questions put to it, and its judgment paves the way to further arguments and appeals.

The 4–3 decision by the seven-judge panel overhauled a major aspect of the Hamdan ruling by deeming that the Military Commissions Act 2006 can have retroactive effect. Thus it can be used to charge and try crimes committed prior to it – as it claims that the Act is unambiguously intended to try any offence punishable by it committed “before, on, or after September 11, 2001” and to prosecute individuals allegedly involved in the 9/11 attacks that took place in 2001. In spite of this, the court dismissed Bahlul’s claim on his ex post facto conspiracy conviction, finding that engaging in a conspiracy to kill a national of the United States is already criminalized under the U.S. Constitution and that a precedent for this already exists in U.S. case law.

While the court clearly established that material support and solicitation are not war crimes under international or domestic law, the decision on conspiracy is couched in such vague terms that it is not clear how it will apply to other prisoners, including Omar Khadr, who was also convicted of this charge under his secret plea bargain. Al-Bahlul’s lawyers now have the option of appealing to the U.S. Supreme Court or waiting to see what the original panel has to say on the outstanding matters. In either case, nothing will be settled before next year.

The decision was always going to be complicated and highly politicized, with the largest ramifications for Al-Bahlul himself, who even if cleared, may remain held in limbo at Guantánamo. The impact on other cases is also unclear. In Hicks’s case, the judgment should mean that his sole conviction of material support for terrorism is now quashed; his Australian lawyer has stated that overturning the conviction should now be “a purely administrative matter.” The U.S. Centre for Constitutional Rights announced that it will assist David Hicks in filing of the motion to get his Guantanamo conviction overruled.

For Omar Khadr, the implications are vaguer and indirect. While his conspiracy conviction is affected, the U.S. government has nonetheless conceded, “Khadr did not violate either a pre-existing statute or the international law of war.” Both Khadr and Hicks may have to await the final outcome in Al-Bahlul’s case, which could take years, in order for the CMCR to progress with their own appeals. The waiting game continues.

The only two things that can be concluded are that the web of deceit spun by the use of military commissions and their extralegal devices can only become further tangled, and that the procedure itself is designed only to waste the time of prisoners who the U.S. knows in many cases to be innocent of the charges against them. Responding to the judgment, the Center for Constitutional Rights, stated: “The court merely deferred the inevitable by failing to recognize that conspiracy is no more appropriately tried in a military commission than material support. We urge the Supreme Court to review today’s ruling regarding conspiracy and dispense with all fabricated war crimes charges once and for all.”

 


Aisha Maniar is a human rights activist who works with the London Guantánamo Campaign.

The London Guantánamo Campaign has been campaigning since 2006 for the release of all prisoners held at Guantánamo Bay, the closure of Guantánamo and other similar prisons and an end to the practice of extraordinary rendition.


 

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The Trials of Omar Khadr

By Aisha Maniar, Truthout | July 26, 2014

On July 27, 2002, 15-year old Canadian Omar Khadr was captured by the United States following a battle between American soldiers and local militias in Afghanistan. He was shot in the back by the soldier who found him unconscious, unarmed and face down near the compound where he was staying.

Khadr survived and was taken to the Bagram Airbase where he was held for three months, during which he was threatened with rape and other forms of physical and psychological abuse, including waterboarding. Torture evidence obtained from a child and a doctored field report would later be used to implicate Khadr in the death of a US Special Forces soldier in that battle.

He was taken to Guantánamo Bay in October 2002, where his torture continued. First charged with war crimes in 2005, Khadr’s 2010 military tribunal was unique for two reasons: It was the first one under Obama and his revised Military Commissions Act, and, more importantly, he is the only person to have been tried by military tribunal since World War II for war crimes allegedly committed as a minor.

Up against a kangaroo court and the prospect of at least a life sentence, Khadr later admitted that he agreed to plead guilty to all the charges against him in a secret plea bargain in October 2010 as it was his only way out of Guantánamo. Under the deal, Khadr was to serve one more year at Guantánamo and the remainder of his sentence – seven years – in Canada. Throughout his US incarceration, he was never once treated as a minor or a child soldier, but as an “enemy combatant.”

The Canadian government, having been found in 2010 by the Canadian Supreme Court to have acted in breach of its own human rights obligations in its treatment of Khadr, put up stiff resistance to his release, which took place almost a year later than anticipated in September 2012. A minimum security-risk prisoner at Guantánamo, he was promptly imprisoned at a maximum security facility. This risk was only downgraded by the prison board in December 2013, and he was moved to a medium-security prison in February 2014. During that period, and since his conviction, he spent almost all of his time in solitary confinement. Over the past few months, for the first time, Khadr has had access to rehabilitation and counseling.

Undeterred, Omar Khadr has been making up for lost time since his return to Canada, and then some. At Guantánamo Bay, many basic things were out of his reach, including justice. Khadr has brought court cases pending against both the United States and Canada. Over the past year, since reappointing Dennis Edney, who represented him at Guantánamo, Khadr’s quest for justice has rapidly accelerated.

Canada, on the other hand, given its abuses of him, has opted for trial by media, with Canadian politicians and journalists, none of whom have ever met Khadr, demonizing him in the public imagination. Since his return to Canada, he has more or less been completely forgotten elsewhere.

Nearly 11 years in the making, on September 23, 2013, Omar Khadr had his first real day in court when he appeared before an Edmonton court for consideration about whether he should be moved to a provincial prison to serve his sentence as a youth offender. Khadr lost that particular case. Nonetheless, it was a first public appearance and the first time he saw his supporters, who packed out the courtroom. For them, Khadr was nothing like the image portrayed by journalists who had never met him.

On appeal, appeal, on July 8, 2014, the decision was reversed in a clear judgment that stated under Canadian law the sentence could only have been a youth sentence, given his age at the time. Nonetheless, he remains where he is for now, having agreed to a stay of the decision pending an appeal by the Canadian government to the Canadian Supreme Court.

This judgment came just days after the first of two important pieces of recent news concerning Khadr’s appeal against his military commission conviction in the United States. On June 30, 2014, following the release of a secret memo that shows that the United States deliberately designated Khadr an “unprivileged belligerent” to charge him with offenses it knew did not exist under domestic or international law, Khadr’s lawyers filed a motion to have the conviction vacated. Following a counter-motion by the US government, this was dismissed.

Khadr’s appeal, filed in 2013, was stayed in March 2014 pending a decision in the retrial of an appeal by another Guantánamo prisoner, Yemeni Ali Hamza Al-Bahlul. Convicted on some similar charges to Khadr, a confusing judgment was handed down on July 14, 2014. The impact this will have on Khadr’s own appeal remains unclear, but it is likely that Khadr will have to continue to wait.

Meanwhile, in Canada, in December 2013, Khadr’s lawyers brought a second case before the courts, suing the Canadian government for damages for violations of his human rights at Bagram and Guantánamo, as well as conspiring with the United States in the violation of Canadian and international laws. This case is expected to be heard at some point in 2014.

Having abused his legal rights for over a decade, justice is not tipped in the balance of either the US or Canada. Consequently, the only case that received worldwide media attention was an application filed by the wife of the man Khadr is alleged to have killed and the soldier he is alleged to have injured suing him for damages of over $45 million in a Utah court. The case has yet to even be admitted.

Now aged 27, Omar Khadr has spent almost half his life behind bars for a crime no concrete evidence has substantiated. Unlike government lawyers, he is constantly looking forward rather than back, and it is not just in the courts Khadr has something to look forward to. For those who believe media claims that Guantánamo has superb medical facilities, it was only in March this year that Khadr received surgery to his shoulder, injured when he was shot in that fateful battle 12 years ago. Blinded in one eye that day, he has yet to receive treatment to the other eye, in which shrapnel remains lodged.

Khadr’s main concern right now is a basic right most Americans and Canadians take for granted; having been held as an adult, Khadr was never given an opportunity to study. He is currently working hard to get his high school diploma. His lawyer told me: “Omar has no bitterness; he has nothing but forgiveness.”

This view was seconded by Archbishop Desmond Tutu, who called Khadr during a visit to Canada earlier this year. Regarding their conversation, he said he was “pleasantly surprised at how calm and un-bitter” Khadr sounded. “We just exchanged pleasantries. But he really impressed me in that short conversation as a gentle and sensitive person.”

It is unclear how long the United States and Canada intend to keep selling the myth of Omar Khadr as an unrepentant war criminal without any substantive evidence, but they must realize that the end game has begun and is picking up pace. Omar Khadr will never get back what he has lost, but the opportunity to tell his side of the story, denied to him for so long, is a huge step in the right direction.
Copyright, Truthout.

Link to Truthout article: http://truth-out.org/opinion/item/25161-the-trials-of-alleged-tween-terrorist-omar-khadr-of-canada

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Nobel Prize winner Tutu: “Why I called Omar Khadr”

By Stephen Coan, The Witness – South Africa | 10 Jul 2014Witness - Why I called Omar Khadr

ARCHBISHOP DESMOND TUTU: “It has been galling in the extreme to discover that those in other countries who even helped us overthrow our oppressive system of apartheid, should have no qualms it seems in employing the same discredited methods as those of a system they purported to oppose.”

ON May 30 while attending the “As Long As the Rivers Flow: Coming Back to the Treaty Relationship In Our Time” conference in northern Alberta, Canada, Archbishop Desmond Tutu took time out to telephone Omar Khadr, who is currently ­being held in Bowden prison after spending 10 years in the Guantanamo Bay ­detention camp.

Khadr is a Canadian citizen who at the age of 15 and severely wounded was captured following a firefight in the village of Ayub Kheyl in Afghanistan on July 27, 2002. He was subsequently held and interrogated at the Guantanamo Bay detention camp, the U.S. military prison located within the Guantanamo Bay ­Naval Base in Cuba.
After lengthy interrogation, Khadr was accused of killing an American soldier and planting mines targeting U.S. convoys.

In 2010 a U.S. military tribunal sentenced Khadr to 40 years in prison but thanks to him pleading guilty in a plea agreement to charges of war crimes, including murder of a American soldier “in violation of the laws of war”, spying and aiding terrorism, he was given an eight-year sentence, which did not include time already served. This included a transfer to Canada to serve the remainder of his sentence after a year according to a diplomatic agreement between the U.S. and Canada.
At the time his lawyers said a guilty plea was the only way he could get out of Guantanamo, where he otherwise faced indefinite detention even if he was acquitted.

The Toronto-born Khadr has since appealed his convictions on the basis that what he was convicted of doing as a 15-year-old was not a war crime under either American or international law.
Khadr’s case has divided Canada — where he was moved to in 2012. There Khadr is either viewed as an unrepentant terrorist or as a child soldier who underwent a mockery of a trial totally at odds with international law on how child soldiers should be treated. The “Free Omar Khadr Now” campaign is calling for his release and rehabilitation.

Khadr is currently being held in Bowden Institution, a medium security prison in the province of Alberta.
On Tuesday the Alberta Court of ­Appeal ruled that the now 27-year-old Khadr should be serving a youth sentence in Canada, and should not be in a federal prison. However, the federal government said it plans to appeal the ruling and will apply to delay the transfer while it asks the Supreme Court to hear the case.

It was at Bowden that Khadr received the telephone call from Tutu.

Tutu told The Witness that he had been asked to contact Khadr by ­Arlette Zinck, Associate Professor of English, King’s University College, ­Alberta, who has been teaching Khadr in prison, but “more fundamentally, I would be interested in anyone I think has been dealt with unjustly”.

Tutu has been a vocal critic of the existence of Guantanamo prison and the U.S. use of non-judicial procedures to imprison people there, frequently comparing this to similar practices of detention without trial in South Africa under apartheid. “Many people were incarcerated [in South Africa] for endless periods, held in solitary confinement simply on the say so of some lackey of an unjust and oppressive system. It has been galling in the extreme to discover that those in other countries who even helped us overthrow our oppressive system of apartheid, should have no qualms it seems in employing the same discredited methods as those of a system they purported to oppose,” he said.

“One reason why President Obama was elected the first time round was that he promised he would shut down Guantanamo Bay,” said Tutu. “I am hugely disappointed that he has not fulfilled a very important promise.”
Asked if he thought Khadr was innocent or guilty, Tutu said his views were “quite irrelevant”.
“The point is that he was tried not in an open court, where he could been represented by a lawyer of his choice. This is apart from the fact that when he was arrested, he was only 15 years of age, a minor by every credible assessment and at the very least to have been charged as the minor that he was.”

Tutu said it was “unconscionable” that Khadr, following a “travesty of a trial, where he was treated as an adult in a vicious kangaroo court”, should be languishing in jail and that his own country Canada should be an accomplice in holding him in prison.
“This is an example of a horrible miscarriage of justice and that in a modern democratic state.”
Speaking to Khadr on the telephone, Tutu said he was “pleasantly surprised at how calm and un-bitter” Khadr sounded. “We just exchanged pleasantries. But he really impressed me in that short conversation as a gentle and sensitive person … “

“He later wrote a very nice note thanking me for taking the trouble to call him … He struck me as a very gentle and caring and courteous human being who does not belong where he is at present. The Canadian authorities would do their stature much good if they released him immediately.”

Today the appeal decision regarding a judgment given last year denying Khadr’s transfer to a provincial (non-maximum security) institution and access to educational and parole opportunities will be filed online from the Alberta Court of Appeal.

WHO IS OMAR KHADR:

OMAR Khadr was born in Toronto in 1986. His parents Ahmed Khadr and Maha el-Samnah, were Egyptian and Palestinian immigrants who became Canadian citizens. His father worked for various NGOs bringing aid to Afghanistan and Khadr spent his childhood moving back and forth between Canada and Pakistan.

In 2002, his father left the 15-year-old with a group associated with Abu Laith al-Libi — a senior leader of the Al-Qaeda movement in Afghanistan who was subsequently killed in a 2008 drone strike. Khadr is said to have received weapons training with the group.

On July 27, 2002, a military force comprising American soldiers and Afghan militia were on a reconnaissance mission in the village of Ayub Kheyl during which five men were seen in a house with AK47s. A call to surrender was met with gunfire. Reinforcements were called for and in a subsequent firefight four U.S. soldiers were wounded. An air strike was called in and the houses were strafed and bombed by Apache helicopters and F-18 Hornets.
Meanwhile more reinforcements had arrived that saw the ground troops number around 100. Investigating the ruins of the bombed houses it was found that two wounded people had survived, one was Khadr. At some point a grenade was thrown that wounded Sergeant Christopher Speer, who subsequently died of his injuries.

One of the wounded men was later killed while Khadr, who was wounded by shrapnel and subsequently lost the sight in his left eye, was shot twice in the back. Initially he was thought to be dead but when it was ascertained he was still alive he was taken by helicopter to Bagram Airbase in Afghanistan.
During the 11 years Khadr spent at Guantanamo, he spent the majority of that time in solitary confinement shackled to the floor of his cell and medical treatment was withheld that could have prevented the loss of sight in his left eye. According to one source, while his severe chest wounds were “still raw, Khadr was hooded, his wrists shackled to the ceiling and made to stand for hours”.

For the last 10 years Khadr has been represented pro bono by lawyer Dennis Edney.

After Khadr was telephoned by Archbishop Tutu in May, Edney said that “Omar was delighted and honoured” to speak to Tutu. “The conversation was a spiritual discussion between them that helped to further strengthen Omar’s belief in humanity, notwithstanding all he has suffered.”
It was further reported that Edney said that through his studies, Khadr is familiar with Tutu’s critical role in ending apartheid in South Africa and then running our Truth and Reconciliation Commission.

Kathleen Copps, a member of the Free Omar Khadr Now committee, told The Witness that Khadr felt “extremely blessed to have had the opportunity” to talk to Tutu. “As part of his reading programme, Omar had been inspired by Nelson Mandela’s Long Walk to Freedom and the struggle to end apartheid, so speaking with Tutu was especially significant for him.”


[PDF] of original article by Stephen Coan, Tutu: Why I called Omar Khadr, The Witness – South Africa | 10 Jul 2014


Article in Edmonton Journal during visit Tutu in Canada | June 7, 2014:

When Archbishop Desmond Tutu came to Fort McMurray last weekend, Alberta’s oilsands and native rights were his major concern. But in the days before the conference, the Nobel Peace Prize winner and human rights activist added a small personal task to his busy schedule.

After a press conference on Friday May 30, Tutu found a quiet corner and placed a phone call to Bowden prison where Omar Khadr, 27, held in Guantanamo prison for 10 years, was waiting …  → Read more here.

via spratt@edmontonjournal.com


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Dallaire says bye to Senate, will advocate for child soldiers like Khadr

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Romeo Dallaire Omar KhadrOn the occasion of Senator Roméo Dallaire’s announcement that he is leaving the Senate, the Free Omar Khadr Now Campaign would like to thank him for his unwavering support for Omar Khadr and his strong moral convictions in speaking up for the rule of law and human decency.

Not many in our government have had the courage to speak on behalf of Omar Khadr who continues to be unlawfully imprisoned.

Thank you Romeo Dallaire, you are a true hero in every sense.


Roméo Dallaire spoke out in the Senate (June 29, 2012) about the abuse and mistreatment of Omar. He said the following:

Honourable senators, I am rising now to put on the record the case of the only child soldier prosecuted for war crimes.

Canada has been the world leader in drafting and promoting the Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, specifically addressing child soldiers. This convention entered into force in 2002 and has been signed by 130 countries.

That same year, Canada again led the charge in developing that optional protocol, and now 150 countries have signed to it. This protocol prohibits the use and recruitment of children under the age of 18 in armed conflict. The Optional Protocol led to the drafting of the Paris Principles, which clearly established the definition of a child soldier. I have read this definition in the chamber previously, but I wish to do so again simply to remind us:

Any person under 18 years of age who is compulsorily, forcibly or voluntarily recruited —

Of course, in conflict zones, the term “voluntary” is questionable.

— or used in hostilities by any kind of armed forces or groups in any capacity, including, but not limited to, soldiers, cooks, porters, messengers, sex slaves, bush wives and those accompanying such groups. It includes girls recruited for sexual purposes and forced marriage. It does not, therefore, refer exclusively to a child who is carrying or has carried arms.

Imagine, honourable senators, that you are a 13-year-old boy. For your whole life your family has moved around, never settling for very long. You live in a culture where your father is never questioned. If he says “Jump,” you ask “How high?” No matter what he asks you to do, you comply. You are barely an adolescent; you cannot fully grasp the meaning or consequences of your tasks. You live in a country where armed conflict surrounds you. Listening to your father is, in fact, your survival.

Your father sends you to live and work with his associates. He tells you to stay there and to listen to what you are told. As you are working one day, the compound you are in comes under attack by U.S. Special Forces. In the firefight frenzy, you are shot three times. Then you are wrenched from the rubble and accused of killing an American soldier. It is 2002, you are 15 years old, and your name is Omar Khadr.

To produce a professional soldier, the minimum standard in NATO is about one year. That is a basic infantryman. To produce a Special Forces soldier, the minimum time and experience is four years of service, plus up to another year to year and a half of special training.

This compound was first, as we say, softened up by air attacks, bombed by 500-kilogram bombs from the air, and then assaulted by a full-fledged Delta Special Force, which Omar Khadr finds himself in the middle of.

Today, honourable senators, I speak about the case of Omar Khadr, a Canadian citizen and former child soldier currently held in prison at Guantanamo Bay. It is my intention to speak about the nightmares this now man has suffered, the failures of our government to protect him, and the immediate necessity for this government to sign the transfer agreement and bring Omar back home.

It is believed that during the firefight, Omar Khadr threw a grenade, killing Sergeant Christopher Speer, a Delta Force strategic forces soldier and special forces medic. He was sent to the Americans’ notorious Bagram prison. Once identified, the Canadian government sought and was denied consular access.

In September 2002, Foreign Affairs sent a diplomatic note to the U.S. Department of State. The note made three points.

  • First, there was “ambiguity as to the role Mr. Khadr may have played” in the battle of July 27, 2002.
  • Second, Guantanamo Bay “would not be an appropriate place for Mr. Omar Khadr to be detained,” since “under various laws of Canada and the United States,” his age provided “for special treatment of such persons with respect to legal or judicial processes.”
  • Finally, the diplomatic note went on to ask for “discussions between appropriate officials on Mr. Khadr prior to any decisions being taken with respect to his future status and detention.”

In spite of our government’s concerns, Omar was transferred to Guantanamo Bay, where he has remained a prisoner for the last 10 years. Despite the best efforts of the truth, what has followed in the last 10 years has been a nightmare for this ex-child soldier, a stain upon our society, and a fundamental reproach upon our respect for international law and conventions that we have signed.

We have since learned that after being hospitalized at Bagram, this seriously injured 15-year-old was pulled off his stretcher onto the floor and his head was covered with a bag while dogs barked in his face. Cold water was thrown on him; he was forced to stand for hours with his hands tied above his head and to carry heavy buckets of water to aggravate his wounds. He was threatened with rape, and bright lights were shone on his injured eyes. In fact, he has lost one eye.

We have learned that, while prepping him for American and Canadian interrogators at Guantanamo Bay, this boy was subjected to further tortures, such as extreme sleep deprivation and endless hours of standing up, designed to exhaust him. After being held without charge for three years, Omar is charged by the U.S. as an “enemy combatant” in November 2005 and put to trial through the Military Commissions Act.

During the 10 years that this nightmare has gone on, we have realized that the most serious violations of Khadr’s rights have been covered up—violations of the right to due process, the right to protection from torture, the right to protection from arbitrary imprisonment, the right to protection from retroactive prosecution, the right to a fair trial, the right to confidential legal representation at the appropriate time and place, the right to be tried by an independent and impartial tribunal, the right to habeas corpus, the right to equality before the law and the rights stemming from the Convention on the Rights of the Child.

The status of child means that the person concerned is unable to understand the world into which he was thrown. The need to protect and take care of children has always been the code of humanity. The use of child soldiers is a violation of that code. The status of child soldier means that the person concerned is subject to the most atrocious form of indoctrination, to physical and psychological torture and to the most poignant mental poverty into which an innocent child can be thrust.

For too long, we have done nothing. We must remember that the substance of the Khadr case involves children’s rights. In this type of case, we must demonstrate wisdom, compassion and a true willingness to take into account the overall context and remember that all children have inalienable rights, even if they or their families have done things of which we disapprove. These rights are meaningless if we respect them only selectively.

When the military commission in Guantanamo dismissed the charges on a technicality in June 2007, the Government of Canada could have exerted pressure to have Omar repatriated, particularly given the Kafkaesque possibility that the United States government would, as it had promised, appeal the decision before a tribunal that had yet to be set up.

I went to Washington to talk to members of Congress, the Senate and the State Department. They said that the only entity refusing to go ahead with Omar’s departure was the Pentagon, backed by the Canadian government’s lack of action.

From the outset, the U.S. administration adopted rules as the need arose whereas Canada’s representatives shirked their responsibilities towards a citizen. The charges of murder, attempted murder, conspiracy, material support for terrorism and espionage under the Military Commission Act are reiterated in the appeal.

While Omar was waiting for his trial to begin in Guantanamo Bay, the Canadian courts studied his case. In May 2008, the Supreme Court of Canada ruled that Canada’s representatives had violated Omar Khadr’s rights, which were guaranteed by the Canadian Charter of Rights and Freedoms, when he was illegally interrogated in 2003.

The court ordered that the fruits of the interrogations sent to the American authorities be disclosed to Omar. Canada complied with the order to disclose the information, but it has done nothing to put an end to this nightmare.

In January 2010, once again, the Supreme Court of Canada concluded that the Government of Canada had continued to infringe Omar’s rights under the Canadian Charter of Rights and Freedoms, finding that the treatment Omar was subjected to offended the most basic Canadian standards. The court stopped short of ordering the government to repatriate Omar, because of the Crown’s prerogative over foreign affairs.

Therefore, the situation is focused specifically on the Crown.

The government sent a diplomatic note to the United States to ask the Americans not to use the fruits of the Canadian interrogation. This was nothing but a symbolic gesture that did nothing to compensate for the serious, fundamental violation of Omar’s rights by Canadian agents.

In August 2010, Omar Khadr’s trial started in Guantanamo Bay, even though he was a child soldier. He decided to plead guilty because he wanted a chance to live. Ultimately, he is the one who took responsibility.

Canada was intimately involved in the pre-trial plea deals and negotiations. In October 2010, Canada committed to return Omar to complete his sentence in Canada after he served one additional year in Guantánamo Bay.

On November 1, 2010, in the House of Commons, then Minister of Foreign Affairs Lawrence Cannon said that Canada will implement this deal; yet, eight months later, he was eligible to return to Canada and we have seen nothing from the government. Why the delay?

This government has turned what should have been a technical, bureaucratic decision into a political game, a political football. The Americans have held up their end of the deal. Omar Khadr has held up his end of the deal. The Americans have signed his release, dated April 16, so that the Canadian government can take him and incarcerate him in appropriate establishments in this country in order that he can receive, as other prisoners do, rehabilitation and reintegration into our society. Why is the Canadian government refusing to follow through on its word? If this is a political decision, what is the political impediment for bringing him here?

The U.S. government is not known for being soft on terrorism. The U.S. would never agree to transfer a detainee, especially to an ally, if they believed that that detainee was in any way a threat.

He will not be walking the streets; he will be going to a Canadian prison. Despite this, our government continues to stonewall the United States’ efforts to return Omar Khadr to Canada. In fact, the Canadian specialist or technocrat in Washington refused to meet with the Americans to even start discussing the details of how to bring him back, under what means and under whose control.

The Minister of Public Safety tells us that the matter is under consideration. That is not a particularly good response. Perhaps, as Mr. Khadr’s Canadian lawyers have said, the minister thinks that it has not been that long, but the minister has not been in Guantánamo Bay for a decade under less than appropriate conditions, even compared to our jails. The minister does not sit shackled to a floor waiting for the decision to return him to Canada. Khadr does.

There is a great deal of frustration in the American government towards Canada. Not only is the patience of our closest ally wearing thin, but the world has been watching Canada’s missteps in this case. Just this month, the UN Committee against Torture in its report urged Canada to promptly approve Omar Khadr’s transfer application. Canada’s reputation as a defender of human rights continues to be sullied the longer this process and his detention in Guantánamo Bay continue. It is a simple fact of fulfilling a promise; you either sign the deal and you implement it, or you go against the deal and lose your credibility as being a fair negotiator with your closest ally.

As Omar Khadr’s defence lawyer put it last week in a press conference:

The United States and Canada are supposed to be the good guys. We’re supposed to be the people that the other places in the world who are looking for freedom look at for how things are supposed to be done the right way. We’re supposed to stand for human rights, dignity and the rule of law. The cornerstone of the foundation on which the rule of law is built is honouring your agreements.

Canada must honour the agreement it has with Omar Khadr and return him immediately to Canada. There are all kinds of planes waiting to bring him back. There is a whole program already in place through the university in Edmonton where he has already commenced his rehabilitation while incarcerated in Guantánamo Bay.

There can be no doubt, and I conclude, that the case of Omar Khadr taints this government, this country and all of its citizens. Our credibility in attempting to extricate, demobilize, rehabilitate and reintegrate child soldiers, as I recently was doing in the Congo and South Sudan, is affected by the fact that we are not playing by the rules that we have instituted and want other people to play by. They are not stupid. They know we are not playing by the rules. It was put into my face that the Khadr case is an example where we sign the papers, we even make deals with our allies, but we do not have the guts to implement them.

 

 

 

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Close Guantánamo. No More Excuses. | May 23, Global Day of Action, Toronto

Omar Khadr, Guantanamo's Child - Still in a Canadian Prison.

Toronto Event: May 23, Dundas Square at noon


The Canadian Close Guantanamo event on Dundas Square will have a special focus on Canadian Omar Khadr, who – after 93 days Bagram and 3624 days Guantanamo – is now held in a Canadian jail for 601 days, based on an illegal Guantanamo conviction.

On Facebook: Close Guantánamo. No More Excuses. | May 23, Global Day of Action, Toronto.


The story of Guantánamo remains that of nearly 800 men and boys thrown into an island prison designed to exist beyond the rule of law. Most were simply in the wrong place at the wrong time, refugees fleeing the chaos of war in Afghanistan. The U.S. military captured only one in twenty; many were sold for significant sums of money to the U.S. by local authorities in Afghanistan and Pakistan. Of the 155 men who remain at Guantánamo as of January 2014, approximately half were cleared for release years ago. The vast majority will never be charged with any crime.

On his second day in office, President Obama pledged that he would close the prison within a year. He has reiterated his promise many times since then, and under current law, he has the power to make it a reality, But in 2014, Guantánamo is still inexcusably open and entering its thirteenth year. No more excuses. Guantánamo must be closed.

The men detained at Guantánamo brought the prison back into the consciousness of the world through their mass hunger-strike in 2013. They effectively helped pressure the Obama administration to begin releasing men, after nine months without a transfer. But today, the base is looking more and more like an internment camp for Yemen men. Yemenis now constitute more than half the population at Guantánamo, and most have long been cleared for release.

– Courtesy of the Centre for Constitutional Rights, New York, USA

The May 23rd Day of Action is being coordinated by Witness Against Torture in collaboration with the Free Omar Khadr Now Campaign and many others in 38 cities around the world.

Read more: May 23 2014 Global call to action to Close Guantanamo.


Omar Khadr, innocent and illegally detained for 4318 days, since the age of 15.


 

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After 12 years, finally some relief for war crimes committed against Omar Khadr

Omar Khadr, who was 15 at the time, was shot twice in the back by a US Special Forces soldier who found him unconscious and lying in rubble. It is only now, 12 years later, that Omar Khadr has begun to receive proper medical treatment for his damaged shoulder. Hopefully his surgery and rehabilitation will be successful and the chronic pain and infection over these past 12 years will be over. His deteriorating eyesight still demands urgent treatment.

The war crime committed by the US soldier when -after the battle-, he shot Omar Khadr at point blank range, twice in the back still goes unaddressed. Khadr’s Pentagon lawyer has spoken about this war crime in a lecture given in Edmonton. The video of that lecture is on our website: Omar Khadr Did Not Commit a War Crime

Omar Khadr found under the rubble and then shot in the back

Omar Khadr (front) found in the rubble and then shot in the back

Omar Khadr (15) was shot in the back twice after he was found as an unconscious and wounded

Omar Khadr, who was 15 at the time, was shot twice in the back by a US soldier who found him unconscious and wounded.

 

Read more about Omar’s shoulder surgery here: Colin Perkel in Globe and Mail Omar Khadr in Sask. prison hospital after surgery on damaged shoulder

 

Omar Khadr and the Rule of Law

March 24, 2014
.
Dear Member of Parliament:
.
Do tortured child soldiers belong in Canadian prisons? On behalf of all Canadians who believe in the rule of law, we urge you to take a stand against the ongoing violation of Omar Khadr’s legal and human rights. The silence of Canadians inside and outside Parliament makes us complicit in a gross miscarriage of justice against a fellow Canadian. 
.
“Some cases enshrine the defining moments of their time. Omar Khadr’s is one. Future generations will rightly judge our shocking dereliction of responsibility in this matter [and] our collective Canadian failure to extend justice and humanity.” – Constance Backhouse, Distinguished University Professor of Law, University of Ottawa.
.
A Brief Overview of Omar’s case:
.
  • At 27, Omar suffers the ongoing effects of his torture and mistreatment: physical injuries, PTSD, chronic pain from infection in old wounds, and potential total blindness.
  • Omar has spent 4258 days in prison since the age of 15; including 93 days in Bagram, 3624 days in Guantanamo and 541 days in Canadian detention.
  • Although a number of children were detained in Gitmo, all were repatriated by Human Rights Watch. Omar was the only child left abandoned by his country and a decade later he was the last citizen of a Western country to be repatriated.
  • The Canadian government reluctantly transferred Omar to Canada in September 2012 and continues to issue prejudicial statements which demonize him as a “heinous terrorist”.
  • While every other Western nation released their citizens upon transfer from Guantanamo, Omar was immediately incarcerated in his native country. Instead of reintegrating him into society, Canada insists on his imprisonment under harsh conditions.
  • In 2013, the Canadian Office of the Correctional Investigator pointed out Omar Khadr showed no signs of aggressive or dangerous behaviour, and “consistently verbalized his goal to conduct a peaceful, prosocial life as a Canadian citizen.” In Guantanamo, Omar had been classified as “minimum security”.
  • Omar was offered his only chance to leave “Gitmo” by signing a “get-out-of-Guantanamo plea deal” before a universally-condemned U.S. military commission.
  • Omar’s ongoing imprisonment ignores that his plea deal was extracted with evidence obtained under torture and the Guantanamo sentence was imposed in violation of the Geneva Conventions, the Rome Statute and the Crimes Against Humanity and War Crimes Act.
  • Omar is the only child convicted of a war crime in modern history and the only person found guilty in the death of a U.S. soldier in the recent Afghanistan and Iraq wars.
  • Canada knows there is no proof of guilt, and that Omar was ‘charged’ retroactively with newly created war crimes not recognized by international or Canadian law. Any legitimate court of law would not have tried or convicted him.
  • Reports about Omar’s capture were doctored by the military and conflicting evidence does not support his charges. The only available evidence points to the innocence Omar consistently maintained. Yet he was forced into a confession of guilt, as explained by former Chief Prosecutor of Guantanamo military commissions, U.S. Colonel Morris Davis: “Our joke at Guantanamo was you gotta lose to win, cause if you get charged as a war criminal, convicted and lose you might go home. If you don’t get charged, you can sit there for the rest of your life.”
  • The Supreme Court of Canada, the Federal Court, the Federal Court of Appeal and the U.S. Supreme Court have all ruled that Omar Khadr’s rights were violated by the U.S. and Canada.
.
For further background on Omar’s case, please : 
.
  • See the November 2013 talk [ > link to video ]: U.S. Department of Defence lawyer, Sam Morison discusses his recent appeal of Omar’s U.S. ‘conviction’ and explains why there is no legal basis for his imprisonment.
.
After viewing the above, please answer the following question (with any additional comments you would like to add) and email your answer to: freeomarkhadrnow@gmail.com by April 22 2014.
.
  • Do you agree the Canadian government should release Omar Khadr as soon as possible and provide him with the necessary transitional programs to allow for his full participation in Canadian society? Yes/ No/ Don’t know
.
All MPs’ responses and non-responses will be shared with media and added to our website page: Politicians Speaking Out! 
.
Thank you for making your position, on this defining case, clear to your constituents and all Canadians.
.
.
Yours truly,
Members of the Free Omar Khadr Now Committee
W       www.freeomarakhadr.com
.
Contacts: Helen Sadowski and Kathy Copps
 .
.
FREE Omar Khadr Now Campaign 

The Free Omar Khadr Now Committee is a diverse group of citizens who advocate on behalf of Omar Khadr and raise awareness about the loss of his legal rights and protections.
.

Omar Khadr and the Rule of Law

March 10, 2014
.
Dear Member of Parliament:
.
Do tortured child soldiers belong in Canadian prisons? On behalf of all Canadians who believe in the rule of law, we urge you to take a stand against the ongoing violation of Omar Khadr’s legal and human rights. The silence of Canadians inside and outside Parliament makes us complicit in a gross miscarriage of justice against a fellow Canadian. 
.
“Some cases enshrine the defining moments of their time. Omar Khadr’s is one. Future generations will rightly judge our shocking dereliction of responsibility in this matter [and] our collective Canadian failure to extend justice and humanity.” – Constance Backhouse, Distinguished University Professor of Law, University of Ottawa.
.
A Brief Overview of Omar’s case:
.
  • At 27, Omar suffers the ongoing effects of his torture and mistreatment: physical injuries, PTSD, chronic pain from infection in old wounds, and potential total blindness.
  • Omar has spent 4258 days in prison since the age of 15; including 93 days in Bagram, 3624 days in Guantanamo and 541 days in Canadian detention.
  • Although a number of children were detained in Gitmo, all were repatriated by Human Rights Watch. Omar was the only child left abandoned by his country and a decade later he was the last citizen of a Western country to be repatriated.
  • The Canadian government reluctantly transferred Omar to Canada in September 2012 and continues to issue prejudicial statements which demonize him as a “heinous terrorist”.
  • While every other Western nation released their citizens upon transfer from Guantanamo, Omar was immediately incarcerated in his native country. Instead of reintegrating him into society, Canada insists on his imprisonment under harsh conditions.
  • In 2013, the Canadian Office of the Correctional Investigator pointed out Omar Khadr showed no signs of aggressive or dangerous behaviour, and “consistently verbalized his goal to conduct a peaceful, prosocial life as a Canadian citizen.” In Guantanamo, Omar had been classified as “minimum security”.
  • Omar was offered his only chance to leave “Gitmo” by signing a “get-out-of-Guantanamo plea deal” before a universally-condemned U.S. military commission.
  • Omar’s ongoing imprisonment ignores that his plea deal was extracted with evidence obtained under torture and the Guantanamo sentence was imposed in violation of the Geneva Conventions, the Rome Statute and the Crimes Against Humanity and War Crimes Act.
  • Omar is the only child convicted of a war crime in modern history and the only person found guilty in the death of a U.S. soldier in the recent Afghanistan and Iraq wars.
  • Canada knows there is no proof of guilt, and that Omar was ‘charged’ retroactively with newly created war crimes not recognized by international or Canadian law. Any legitimate court of law would not have tried or convicted him.
  • Reports about Omar’s capture were doctored by the military and conflicting evidence does not support his charges. The only available evidence points to the innocence Omar consistently maintained. Yet he was forced into a confession of guilt, as explained by former Chief Prosecutor of Guantanamo military commissions, U.S. Colonel Morris Davis: “Our joke at Guantanamo was you gotta lose to win, cause if you get charged as a war criminal, convicted and lose you might go home. If you don’t get charged, you can sit there for the rest of your life.”
  • The Supreme Court of Canada, the Federal Court, the Federal Court of Appeal and the U.S. Supreme Court have all ruled that Omar Khadr’s rights were violated by the U.S. and Canada.
.
For further background on Omar’s case, please : 
.
  • See the November 2013 talk [ > link to video ]: U.S. Department of Defence lawyer, Sam Morison discusses his recent appeal of Omar’s U.S. ‘conviction’ and explains why there is no legal basis for his imprisonment.
.
After viewing the above, please answer the following question (with any additional comments you would like to add) and email your answer to: freeomarkhadrnow@gmail.com by April 22 2014.
.
  • Do you agree the Canadian government should release Omar Khadr as soon as possible and provide him with the necessary transitional programs to allow for his full participation in Canadian society? Yes/ No/ Don’t know
.
All MPs’ responses and non-responses will be shared with media and added to our website page: Politicians Speaking Out! 
.
Thank you for making your position, on this defining case, clear to your constituents and all Canadians.
.
.
Yours truly,
Members of the Free Omar Khadr Now Committee
W       www.freeomarakhadr.com
.
Contacts: Helen Sadowski and Kathy Copps
 .
.
FREE Omar Khadr Now Campaign 

The Free Omar Khadr Now Committee is a diverse group of citizens who advocate on behalf of Omar Khadr and raise awareness about the loss of his legal rights and protections.
.

Government Interference vs the Rule of Law | Omar Khadr

The unacceptable government interference in the case of Omar Khadr first came to surface in 2009 when the Supreme Court of Canada ruled that the Canadian government was responsible for the violations of Omar Khadr’s rights under Article 7 of the Charter of Rights and Freedoms.

Many Canadians clearly understand that Omar Khadr is wrongly imprisoned, as also this recent tweet indicates :

“When people say “Omar Khadr is a terrorist, etc” then I know they’re ignorant (or sadistic) without too much examining.”

And again today, the Government of Canada is criticized, from three different angles, for their continuing interference and the unjustified detention of Omar Khadr:

1) Why is Omar Khadr still in jail? – Kathy Copps for Rabble.ca

Do tortured child soldiers belong in Canadian prisons? The fact that Omar Khadr has spent 4254 days in prison, 537 of those days in Canadian detention, should make every Canadian question the essence of our humanity and respect for the rule of law.

Omar’s recent transfer from a maximum to a medium-security prison is a hopeful indication that Correctional Service Canada (C.S.C.) is making decisions independent of prejudicial government pressure, but we have to ask ourselves why Omar is still in jail? Unfortunately for Omar, political interference in the judicial process has a disturbing history, and since his repatriation the intervention of right-wing, Islamophobic government officials, foreshadowed an unjust delay or even a complete denial of his freedom.

… read more

2) Prisons ombudsman raps officials over Omar Khadr | 3rd complaint since Omar’s return – Colin Perkel

Canadian correctional authorities have unfairly classified former Guantanamo detainee Omar Khadr even though they lowered his risk rating from maximum to medium security, the federal prisons ombudsman complains. The Office of the Correctional Investigator urges prison authorities to take into account evidence that Khadr poses minimal threat and should be classified as such.

“(Correctional Service of Canada) officials also note that there is no evidence Mr. Khadr has maintained an association with any terrorist organization,” the letter to CSC’s senior deputy commissioner states. “It is well documented by CSC officials that Mr. Khadr is fully engaged in his correctional plan and he has actively developed a strong, pro-social network of support since his incarceration.”

… read more

3) Canada: Open Letter to Ministers Peter MacKay and Steven Blaney on the Omar Khadr case -Amnesty International

We are writing to express Amnesty International’s ongoing concern that numerous, serious human rights matters remain unresolved in Omar Khadr’s case, in both Canada and the United States. A substantial amount of time has passed in his case.  It has been more than eleven years since Mr. Khadr was taken into US custody in July 2002.  It has been over four years since the second of two important Supreme Court of Canada rulings in his favour.  And it has been almost eighteen months since Mr. Khadr was transferred to Canada to serve the balance of his sentence.  It is time to resolve the outstanding human rights concerns.

As such, we urge the Canadian government to take steps to ensure full and proper review and resolution of the outstanding human rights concerns and related legal matters in Mr. Khadr’s case.  Specifically, we call on the government to appoint a sitting or retired judge and provide him or her with a mandate to examine the range of outstanding human rights and other legal concerns in Omar Khadr’s case and make recommendations to the government as to how those concerns should be resolved.

… read more