Omar Khadr and the Rule of Law

March 24, 2014
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Dear Member of Parliament:
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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. 
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“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.
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A Brief Overview of Omar’s case:
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  • 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.
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For further background on Omar’s case, please : 
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  • 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.
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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.
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  • 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
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All MPs’ responses and non-responses will be shared with media and added to our website page: Politicians Speaking Out! 
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Thank you for making your position, on this defining case, clear to your constituents and all Canadians.
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Yours truly,
Members of the Free Omar Khadr Now Committee
W       www.freeomarakhadr.com
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Contacts: Helen Sadowski and Kathy Copps
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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.
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Omar Khadr and the Rule of Law

March 10, 2014
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Dear Member of Parliament:
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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.
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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.
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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.
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  • 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
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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.
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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

Dennis Edney awareness tour in the UK for Omar Khadr

Omar Khadr Fund for Dennis EdneyDONATION BUTTON:  < PLEASE HELP FUND THIS AWARENESS TOUR FOR OMAR KHADR>Omar Khadr tortured Canadian Child

12 – 20 March 2014 – Omar Khadr’s lawyer Dennis Edney QC speaking tour hosted by the London Guantanamo Campaign.

Talks and events

Wednesday 12 March 
– Omar Khadr and the Betrayal of International Law: a public meeting with Dennis Edney, chaired by Professor Bill Bowring at Garden Court Chambers, London. Organised by CAMPACC, the Haldane Society of Socialist Lawyers and the London Guantánamo Campaign.

  • time: 6.30 -8.30 pm
  • place:  Garden Court Chambers, 57-60 Lincoln’s Inn Fields, London WC2A

Thursday 13 March 
– Defending Guantánamo’s youngest prisoner: The struggle to free Omar Khadr. Lecture with Dennis Edney at York University Centre for Applied Human Rights.

Friday 14 March 
– An audience with Dennis Edney QC, chaired by Dr Douglas Guilfoyle at the UCL Faculty of Laws.

and
– Where is the Law in War? An Analysis of Omar Khadr’s case. Organised by the Westminster Law Review.

Monday 17 March
– Afternoon lecture with Dennis Edney at Birkbeck College, University of London. Organised by a coalition of student societies.Omar Khadr 4250 days in jail

and
– Dennis Edney talk on Omar Khadr at the Veterans for Peace UK event.

Tuesday 18 March
– Lecture Dennis Edney at Queen Mary, University of London, organised by the Amnesty society.

  • time: 4.30 – 5.30 pm
  • place: Queen Mary University of London, Mile End Road, London E1 4NS

and
– Amnesty International event with Talks from: Dennis Edney, Aaf Post and Andy Worthington about Omar Khadr at the Human Rights Action Centre.

  • time: 7.00 – 9.00 pm
  • place: Human Rights Action Centre, 25 New Inn Yard, London EC2A 3EA.

Thursday 20 March
– Q&A with Dennis Edney QC lawyer of Omar Khadr former Guantánamo Bay prison inmate at Amnesty St John’s Wood event

Politicians Speaking Out!

CONSERVATIVES

Tory MP shares government’s prejudices about Omar Khadr

In November 2013 we contacted Tory MP, Laurie Hawn, informing him about the latest facts of Omar’s case and asking when his government will stop using Omar Khadr as a political scapegoat to win votes. His unsubstantiated response adds to the government’s prejudicial rhetoric and shows his lack of knowledge about the case. Helen Sadowski of the Free Omar Khadr Now campaign explains the falsehoods in his letter point by point. … Continue reading .

GREEN PARTY OF CANADA

Green Party of Canada

Press Release Oct. 28, 2013 | Omar: An Abuse of Human Rights and International Law

Last Friday, Omar Khadr, a former child soldier, was denied a request to be moved to a provincial prison to serve out the remainder of his highly questionable sentence. “It is sadly evident that even after more than a year of his being back in Canada, programming has not been put in place that recognizes his right to treatment and support for all he suffered as a child soldier,” said Elizabeth May, MP for Saanich-Gulf Islands and Green Party of Canada Leader.

Omar Khadr will now remain in a maximum federal prison and will not likely be able to meet parole requirements. In spite of his desire to learn, he may also be denied the opportunity of education.

read more here: Press Release | Omar: An Abuse of Human Rights and International Law, Oct. 28, 2013 and Green Party | Backgrounder – Omar Khadr

 
Our response:

Dear Elizabeth May and the Green Party of Canada:

The Free Omar Khadr Committee would like to thank the Green Party-in particular Elizabeth May and Joe Foster-for yesterday’s media release which highlighted the recent denial of Omar Khadr’s court application, the highly inflammatory statements of Stephen Harper, and many of the shocking violations of Omar’s fundamental rights in a decade-long history of abuse. Your ongoing commitment to justice for this vulnerable young Canadian is much appreciated.

Our committee seeks to remind Canadians that our government has a legal duty to release Omar who has been illegitimately imprisoned (largely in solitary confinement) since 2002 when he was only 15 years old.

We urge the Green Party and all fair-minded Canadians to:

1. Demand the immediate release of Omar Khadr and ensure violations of his rights are investigated and remedied.

2. Protest against the Canadian authorities who wrongly claim that the illegal Guantanamo Bay sentencing gives them the right to continue to imprison Omar.

3. Condemn all prejudicial statements and shocking interference in a judicial process by government officials particularly Prime Minister Stephen Harper, Public Safety Minister Stephen Blaney, and former Public Safety Minister, Vic Toews.

Without independent, impartial courts and the equal application of laws, the rights of all citizens are threatened. The struggle for justice for Omar Khadr is in the interest of all Canadians and we are hopeful it will be a topic for the Green Party in the upcoming session of Parliament.

Sincerely,

Free Omar Khadr Now Committee

P.S. Thank you so much for including the website in your release! (www.freeomarakhadr.com)

SENATOR ROMEO DALLAIRE

[+] Speech on Omar Khadr in the Senate by LGen the Hon. Romeo Dallaire, Senator
[+] Petition Senator Dallaire | Bring back Omar Khadr from Guantanamo Bay

Dallaire has been an outspoken advocate for Omar’s rights, as former child soldier. In July 2012, Dallaire set up a petition putting pressure on Public Safety Minister, at that time, Vic Toews, to honour the plea bargain deal Khadr agreed to in 2010.
35,000 concerned citizens signed the petition. Omar was repatriated in September 2012.

“Omar has been 10 years in jail already, in a jail so many have considered illegal and inappropriate. He’s been tortured to get testimony out of him and through all that has seen no support whatsoever.
Now that he’s back in Canada the government should simply clam up. It has no more duty in regards to this individual. He’s now within the process of our judicial system and in that context the executive has no right to interfere in the judicial process.” ~Dallaire, Sept. 2012.

LIBERALS

“Omar Khadr needs to be treated the way we treat Canadians according to the rules that exist, according to the laws and principles that govern. He should be treated like any Canadian who as been incarcerated outside of the country. We need to be fair to the way we treat Canadians.” ~Liberal Leader Justin Trudeau, Aug. 2013, Halifax.
Trudeau isn’t ruling out compensation for Omar for the time he served in Guantanamo Bay.

[+] Official Statement by Liberal Leader Bob Rae on Omar’s repatriation, Sept. 2012.

“Mr. Khadr, a Canadian citizen, was a child soldier. It is extremely unfortunate that it took the Conservative government this long to fulfil its responsibility to bring him back to Canada. Now Mr. Khadr will serve the remainder of his sentence under the supervision of the Canadian correctional system, and we can ensure that he receives proper treatment and rehabilitation.” ~Interim Liberal leader Bob Rae, Sept. 2012

“The over-the-top rhetoric that we’ve come to expect from this minister of Public Safety is most unfortunate, I hope it doesn’t influence the parole board’s deliberations.” ~Liberal MP Sean Casey, Sept. 2012.

NDP

ndp“Today, the Conservatives ended nearly a decade of unnecessary delays and allowed Omar Khadr to serve out the remainder of his sentence in Canada. Canada is the last Western country to repatriate their citizens from the discredited Guantanamo prison system.
Mr. Khadr’s return to Canada was inevitable, yet the Conservatives chose to drag this process out for years at great cost to taxpayers. Their mishandling has hurt our relationship with the United States, our closest ally, and tarnished Canada’s reputation on the international stage.
Both the Supreme Court of Canada and the U.S. Supreme Court, based on the full facts of this case, have found that the military commission proceedings in Guantanamo violated both U.S. domestic law and Canada’s international human rights obligations.
Conservatives have previously faced court judgments against them for their mishandling of the case and failure to respect human rights.
The government should now allow Mr. Khadr to be handled by Canadian authorities in accordance with Canadian law, free from interference.” ~[+] Official Statement from NDP foreign affairs critic Paul Dewar on Omar’s repatriation, Sept. 2012.

“This government decided to play politics with a straightforward foreign affairs case. Rather than simply bringing its citizen home from Guantanamo Bay as other countries did, they tried to polarize and turn this into something else.
They’ve obviously screwed up massively when it comes to this case, so hopefully they won’t do any further damage when it comes to our reputation as a country.” ~NDP foreign affairs critic Paul Dewar, Sept 2012.

“Mr. Khadr was the only Western citizen left in Guantanamo. And that’s because other countries, Australia for instance and others, had repatriated their citizens back to their countries. We had not done that, we had foot dragged. We’d frankly been pushed in the end by the Americans to take him back. The Conservatives were very stubborn on returning Khadr to Canada, not living up to their responsibility to deal with one of our citizens. Khadr’s prolonged detainment in Guantanamo Bay has already been established as a human rights violation and now the government should explain why they resisted bringing him back to Canada. The question now is, what’s the government’ s explanation for having waited so long to have him come home? Just what was it that made the government so intransigent on this issue? That’s going to be an issue for the next number of months for us to delve into” ~NDP foreign affairs critic Paul Dewar, CTV News Sept 2012.

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Lecture Nov 12 | Attorney Samuel Morison, US Department of Defence

The last in the series of three lectures in Edmonton about Omar Khadr.

OMAR KHADR | THE LAWMorison

With:     Attorney Samuel Morison, US Department of Defence
When:   Tuesday, November 12, 19:00
Where:  The Atrium at King’s University College, 9125 – 50 Street, Edmonton

Samuel Morison has practiced law for more than 20 years and is a national recognized expert on federal executive clemency and the restoration of civil rights. He will speak about Omar Khadr’s appeal before the US Federal Court.

[+] the poster of the lectures

[+] the video of the second lecture, by Brigadier General (ret) Dr. Stephen Xenakis

Edmonton Events, Do not miss them

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DENNIS EDNEY | PRESENTATIONDennis

With:     Mr. Dennis Edney, Q.C., Omar Khadr’s defense counsel.
When:   Thursday, October 17, 2013, 19:00
Where:  Room 231/237 U of A Law Centre, Edmonton

CLAIHR U of A is pleased to host a presentation by Mr. Dennis Edney, Q.C., Omar Khadr’s defense counsel. Mr. Edney has agreed to speak to Faculty of Law students concerning Omar Khadr’s highly publicized case. There will be an opportunity for questions following the presentation.

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OMAR KHADR | THE MAN 

With:     Brigadier General (ret) Dr. Stephen XenakisXenakis.
When:   Tuesday, October 22, 2013, 19:00
Where:  University of Alberta Building ETLC Rm-1001, Edmonton

Although Mr. Harper and the Canadian government have chosen to demonize Omar Khadr, there are significant faces from the U.S Military and Canadian public who have actually met and spent time with Mr. Khadr and find that he is a compassionate human being who poses no threat to anyone.

Brigadier General (ret) Dr. Stephen Xenakis is a psychiatrist who has spent hundreds of hours with Omar Khadr over the past 5 years. Come out and join the discussion about his experiences with Omar in Guantanamo Bay and raise your own questions and concerns. Refreshments will be provided.

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OMAR KHADR | THE LAWMorison

With:     Attorney Samuel Morison, US Department of Defence
When:   Tuesday, November 12, 19:00
Where:  The Atrium at King’s University College, 9125 – 50 Street, Edmonton

Samuel Morison has practiced law for more than 20 years and is a national recognized expert on federal executive clemency and the restoration of civil rights. He will speak about Omar Khadr’s appeal before the US Federal Court.

 

Canadian Omar Khadr to appeal terrorism convictions

By Paul Koring,  The Globe and Mail  Apr. 27 2013

Omar Khadr’s plea-bargained guilty plea and conviction on murder, terrorism and spying charges will be appealed to a U.S. civilian federal court that has tossed out similar Guantanamo military tribunal convictions for two high-profile al-Qaeda defendants.

If the appeal succeeds, Mr. Khadr could be freed immediately.

His lawyers expect the U.S. Court of Appeals for the District of Columbia Circuit to overturn Mr. Khadr’s conviction – just as it did in the cases of two of Osama bin Laden’s close personal aides, Ali Hamza Bahlul and Salim Hamdan, both also convicted at Guantanamo.

That would create consternation in Ottawa, where ministers have called Mr. Khadr a terrorist and successive Liberal and Conservative governments refused to extricate him from Guantanamo despite his Canadian citizenship and his hotly debated status as a child soldier under international law. He pleaded guilty in 2010 to multiple crimes committed in Afghanistan in 2002. As part of that plea, he confessed to throwing a grenade that killed U.S. Sergeant Christopher Speer.

The Pentagon’s Office of the Chief Defense Counsel has named an appellate team of attorneys for Mr. Khadr led by a civilian Sam Morison. Now armed with a formal go-ahead from Mr. Khadr, the team is expected to file the appeal soon.

They’re confident the military tribunal convictions will be overturned. “In our view there are serious questions about the validity of all these convictions,” Mr. Morison said, adding: “As the law now stands, I don’t see how his convictions can be affirmed.”

In rulings on Mr. Hamdan last October and again in January on Mr. al-Bahlul, the civilian appeals court overturned the terrorism convictions against the two. It concluded the military war crimes tribunal created by the George W. Bush administration after the 2001 terrorist attack that levelled New York’s twin towers and left the Pentagon ablaze had tried and convicted detainees on crimes that didn’t exist when the defendants were captured. President Barack Obama has opted to retain the military commissions and keep Guantanamo running, despite his pre-2008 election vow to close the infamous prison complex.

Mr. Khadr’s case is additionally complicated because, unlike Mr. Hamdan or Mr. al-Bahlul, he pleaded guilty at his week-long trial in October, 2010, that included a remorseful statement to Sgt. Speer’s widow. As part of that deal, Mr. Khadr waived his right to appeal.

Mr. Khadr admitted to murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy and providing material support for terrorism and spying.

But if the underlying acts weren’t crimes – at least not war crimes – then the waiver may also be unreliable and the appeal could still be accepted by the U.S. federal court.

“Not only weren’t they war crimes at the time of their commission but, I would argue,” Mr. Morison said, “that none of them are crimes today, not in international law.”

The exception is spying, which was so broadly redefined in the Military Commissions Act, it bears little resemblance to espionage as defined in international law.

It could be months before the appeal is formally launched, let alone heard.

In the meantime, Mr. Khadr, who has been held prisoner since 2002, will be eligible under Canadian law for a parole hearing in July this year, when he will have served one-third of the eight-year sentence he agreed to at his 2010 trial.

Mr. Khadr, near death, was dug out of the rubble of an Afghan compound bombed by U.S. warplanes in June, 2002, where the then-15-year-old son of a major al-Qaeda figure was living with a group of militants building and planting roadside bombs.

Even if Mr. Khadr threw the grenade that killed Sgt. Speer, killing a combatant on a battlefield isn’t a war crime except in narrowly defined cases. Those include shooting a defenseless descending parachutist, a wounded soldier or one indicating surrender.

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Source: http://www.theglobeandmail.com/news/national/canadian-omar-khadr-to-appeal-terrorism-convictions/article11587422/?cmpid=rss1

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MORE RELATED TO THIS STORY

Validity of Khadr’s guilty plea in doubt

By Paul Koring,  The Globe and Mail  Feb. 28 2013

OmarAppeals court rulings that tossed out the convictions of two al-Qaeda operatives mean that Omar Khadr was also wrongfully convicted and should be freed, his lawyer and rights experts say.

A court of appeals last month overturned the U.S. military court in Guantanamo Bay’s murder and terrorism convictions of Ali Hamza al Bahlul, a Yemeni who was Osama bin Laden’s publicist, on the grounds that the charges on which he was convicted were not internationally recognized as war crimes.

Mr. Khadr’s lawyer and others say such rulings raise grave doubts about the validity of Mr. Khadr’s guilty plea to terrorism and murder charges in the same court, because those were not war crimes in 2002 when the Canadian teenager was involved in a gun battle in which a U.S. soldier died.

Mr. Khadr, currently in a Canadian maximum security prison, wants his plea-bargained conviction appealed, said his lawyer, Dennis Edney.

And human rights experts believe he has a solid case, although the Canadian government seems keen to keep Mr. Khadr, now 26, locked up as long as possible.

Mr. Edney said Mr. Khadr was wrongfully convicted and wants the Pentagon to appoint counsel to appeal.

Mr. Edney wrote in a Jan. 29, 2013, letter to Bryan Broyles, deputy chief defence counsel for the U.S. war crimes tribunals, that Mr. Khadr wants to “appeal all of the convictions entered against him in October, 2010,” and asked for a legal team to launch the appeal. Mr. Broyles has yet to reply, and declined to respond to written questions from The Globe and Mail.

“It is astounding no notice of appeal was filed on behalf of Omar Khadr while other detainees have had their appeals filed and successfully appealed by military defence counsel,” Mr. Edney said.

After the U.S. Court of Appeals for the District of Columbia threw out the convictions against Mr. al Bahlul, Mr. Broyles denounced the original prosecution saying: “The only basis on which the United States relied was their fanciful notion of U.S. common law of war, something which doesn’t actually exist.”

The same appeals court had earlier tossed out the terrorism conspiracy conviction of Salim Hamdan, one of Mr. bin Laden’s drivers, on similar grounds, that the crimes he was convicted of did not exist until they were created by the Bush administration.

Mr. Khadr’s chance of having his convictions vacated are complicated by several circumstances, not least that, as part of his plea bargain deal, he waived his right to appeal. He is also now back in Canada, outside of U.S. jurisdiction.

Mr. Khadr also agreed to plead guilty to murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy and providing material support for terrorism.

Even if Mr. Khadr threw the grenade that caused the death of U.S. special forces Sergeant Christopher Speer, killing a combatant on a battleground is not a war crime under international law except in some circumstances. Even if Mr. Khadr should have faced charges for the killing, said Andrea Prasow, the senior counter-terrorism counsel and advocate at Human Rights Watch’s U.S. program, it should have been as a criminal homicide in Afghanistan.“These weren’t crimes in violation of the laws of war at the time they were committed,” Ms. Prasow said in an interview. “They weren’t then, and they are not now,” she added. That was the fundamental reason the U.S. appeals court tossed out the Guantanamo convictions of Hamdan and al-Bahlul.

That a child soldier – Mr. Khadr was 15 in 2002 – was charged at all, let alone by an offshore war crimes tribunal created by the Bush administration to skirt U.S. constitutional protections, has outraged rights groups for more than a decade. But unlike Britain and Australia, which insisted on the rapid repatriation of their citizens, successive Canadian governments wanted Mr. Khadr held and tried in Guantanamo.

Although the military jury sentenced him to 40 years, the plea deal added only another eight years to the eight Mr. Khadr had already spent in Guantanamo, and the chance to be sent to Canada, the country of his birth, to serve most of the remaining sentence. Under Canadian law, he is eligible for parole on July 1, but the Harper government is expected to opposed his release vigorously, arguing he is a dangerous, convicted terrorist.

Were a U.S. appeals court to overturn the conviction on the grounds that the crimes on which he was convicted didn’t exist in 2002, Mr. Khadr might be entitled to immediate release.

Source: http://www.theglobeandmail.com/news/national/validity-of-khadrs-guilty-plea-in-doubt/article9145486/

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IN CANADA | Omar Khadr: From Frying Pan to Fire

By  | Februari 25, 2013

Omar Khadr in 2002 and 2010

Omar Khadr, the youngest prisoner at Guantánamo Bay was released to Canada on 29 September 2012, ten days after his26th birthday. Captured in Afghanistan in July 2002 aged 15, his release should have been good news, ending a journey that started halfway across the world and has seen him spend almost half his life behinds bars. Instead, upon return, he was taken immediately to the Millhaven Institution in Bath, Ontario, a maximum security prison, where he remains imprisoned.

Omar Khadr in 2002 and 2010

Each of the almost 800 prisoners held at Guantánamo has a compelling tale to tell, yet Omar Khadr’s is unique in many ways: the most obvious distinction being his age. Unlike other child prisoners, he was always treated as an adult. Subject to torture, including waterboarding, this provided some of the evidence used to charge him for various war crimes shortly after he turned 19 in 2005.

Omar Khadr’s military commission has unique features: upon inauguration to his first term as president, constitutional lawyer Barack Obama signed a presidential decree to close Guantánamo and suspend military commissions. Neither has happened and with a revised Military Commissions Act in force by the end of 2009, Khadr was the first person to be tried in Barack Obama’s presidency. As the offences he is alleged to have committed took place when he was 15, he is also the only person to be tried by a military tribunal for war crimes committed as a minor since World War II. This disturbing development received international condemnation.

Facing a life sentence without proper due process, in a secret plea bargain in October 2010, he pleaded guilty to all the charges against him: the murder of an American soldier, attempted murder, conspiracy, material support for terrorism and spying. Possibly his only way out, under this deal, he would serve just one more year at Guantánamo Bay and the remaining seven years of his sentence in Canada. Although not a party to the bargain, the exchange of diplomatic notes to the effect that Canada would agree to repatriate him after an additional year in Guantánamo was a part of this agreement. Omar Khadr was due for release in October 2011; it took another 11 months for it to happen.

This is largely down to the Canadian government. Having only met all of Canada’s conditions for repatriation in April 2012, the US then formally submitted Omar Khadr’s transfer application. Vic Toews, the Canadian Minister of Public Safety, responsible for this transfer, sought medical reports and a video to help make his assessment of the security risk he posed. This video was an interview conducted with Omar Khadr by Dr Michael Welner, a psychiatrist and prosecution witness who described him as “highly dangerous” and having “rock star” status at Guantánamo. Influential during the trial, Welner’s evidence is known to be biased and has been discredited by other psychiatrists. Writing in the New York Times shortly after Khadr’s release, Dr Stephen N. Xenakis, a retired psychiatrist and former US army brigadier general, who had spent hundreds of hours assessing Khadr since 2008, stated that he was “emphatically not” the dangerous man Welner claimed.

In his own psychiatric report to Vic Toews, submitted in February 2011, Xenakis dismissed Welner’s findings and approach: “He based his opinion on clinical interviews and reviews of medical records from his capture and detention. His findings are questionable as his medical examination did not follow the standards of usual practice.” Xenakis’ own assessment is that “Mr. Khadr can successfully transition from Guantanamo because of his remarkably positive outlook, his talent for building positive relationships, and his optimistic temperament.” He further advised that “keeping him incarcerated and living under conditions of imprisonment provides little chance for rehabilitation or preparation to live in society.” This report was ignored.

Legal formalities and posturing aside, Canada could have demanded Omar Khadr’s return at any time. Indeed, this request for information was further stalling of the repatriation; having received the information in early September, Vic Toews’ request was accepted days after it was sent. Canada could have requested his return to the country at any time since July 2002. Omar Khadr stands out as the only western citizen whose country did not seek his repatriation.

Canada’s treatment of Omar Khadr has smacked of hypocrisy and duplicity throughout: a champion of the rights of war children, Canada was an early signatory of the Optional Protection of the International Convention on the Rights of the Child (ICRC) on the involvement of children in armed conflict in 2000. In 2008, a report by the Canadian House of Commons Subcommittee on International Human Rights recommended the Canadian government seeks Khadr’s immediate release and that “an appropriate rehabilitation and reintegration program is developed for Omar Khadr.” Also in 2008, it emerged that Canadian intelligence officers had interrogated him at Guantánamo in 2003 in a process that breached international law. The Canadian Supreme Court ruled in 2010 that the Canadian government’s refusal to repatriate him was unconstitutional and breached his rights under the Canadian Charter of Rights and Freedoms, but stopped short of ordering it to demand his release. As recently as October 2012, in its review of children’s rights in Canada, the ICRC recommended that Canada rehabilitate Omar Khadr.

In making his safety assessment, Vic Toews chose to rely on Dr Welner’s prejudiced analysis. In astatement he made upon Omar Khadr’s return to Canada, Toews called Khadr “a known supporter of the Al-Qaeda terrorist network and a convicted terrorist”. Dr Welner’s untested allegations about the Khadr family’s association with terrorism and Omar Khadr’s alleged fundamentalist fervour saw him transferred immediately to “Millhaven, one of the toughest prisons in the country. [which has…] been dubbed “Guantanamo North”.” These elements were picked up immediately by the Canadian media, keen to paint Omar Khadr as unrepentant, an image that, while feeding media hysteria, also successfully deflected the Canadian government’s own negligence and betrayal of a Canadian citizen.

His situation is as precarious as it has been over the past decade, and his fate lies in the hands of Canadian justice, specifically the Correctional Service of Canada (CSC), which is overseen by Vic Toews. In late December, it emerged that the CSC considers Omar Khadr a “maximum security” prisoner due to his murder and terrorism conviction, with his status due to be reviewed in December 2014. This assessment fails to take into account the dubious conditions that, involving torture and an unfair legal process, helped to obtain this conviction and as a result, day parole which otherwise would have been due next month is now almost completely unlikely. Applying the “Custody Rating Scale” point system, his first-degree murder conviction confers him with enough points to be considered a “maximum security” risk. With Khadr back home, the Canadian government’s attitude does not seem to be changing. Recognising some of these longstanding issues, Amnesty Canada launched a campaign action last year, Omar Khadr: The Case is not closed.

One of the most unfortunate aspects of Omar Khadr’s ordeal is the Canadian government’s singular and dogged faith in the military commission system at Guantánamo Bay. During his military commission, the Canadian government was satisfied with US assurances about proceedings, particularly with respect to his age at the time being taken into consideration, in spite of international condemnation of both the US and Canada in this regard. Canada’s blind faith in the lawfulness of such convictions is one not even shared by the US’ own federal courts.

On 16 October 2012, the US Court of Appeals for the District of Columbia Circuit overturned the 2008 conviction of former prisoner Salim Hamdan by military commission for “material support for terrorism”, one of the charges Omar Khadr was also convicted of, due to the retroactive nature of the offence, as the alleged offences took place years before the Military Commissions Act created them. This crucial judgment made just weeks before the US presidential election shattered the illusion of any legitimacy the few convictions obtained at Guantánamo Bay may have. The US government had until January to appeal but did not. Last month, based on this judgment, another conviction, the life sentence of Yemeni prisoner Hamza Al Bahlul was also overturned. Omar Khadr is likely to appeal too. The Canadian government’s faith in the military commissions is undermined further by the ongoing farce of the 9/11 military commissions, also affected by the Hamdan ruling.

The onus is now on the Canadian government and questions over its failure to meet its legal and moral obligations to one vulnerable citizen. Beyond its mantra of “Omar Khadr is a convicted terrorist”, there is very little to sustain its untenable position.

Omar Khadr is not the only prisoner to have been further incarcerated on his release from Guantánamo Bay. Australian David Hicks, the first person to be convicted at Guantánamo Bay, entered a similar plea bargain where he pleaded guilty in return for a seven-year sentence, which was suspended except for 9 months which he served in an Australian jail. He was released in 2007. One day after the Hamdan judgment, he said he would appeal his conviction.

Guantánamo Bay has created its own “refugee” situation: of the remaining 166 prisoner, more than half are unable to return home. For many of the prisoners cleared for release, the option of going home does not exist for fear of further persecution and imprisonment.  To deal with this “refugee” situation, various third states have accepted more than 40 prisoners. Slovakia agreed to resettle three such prisoners in a “”gesture of solidarity” in support of President Barack Obama’s foreign policy” in late 2009. However, by June 2010, six months after their arrival in Slovakia, the men went on hunger strike in protest at their continued detention at an asylum detention centre whose conditions they claimed were “worse than Guantánamo”. All three had been cleared for release years before arriving in Slovakia and were under the impression they would be resettled and rehabilitated. The situation improved following international awareness and criticism. After the Arab Spring in 2011, two of the men felt that the security situation in their home countries would be safe enough for them to return. Rafiq Al Hami returned to Tunisia where he is rebuilding his life with his family. Adel Al Gazzar, optimistic of the changes under the new regime in Egypt, was promptly arrested and imprisoned upon his return to the country in 2011 for a conviction made in his absence in 2002. He has since been released and reunited with his family. The third man, Polad Sirajov from Azerbaijan, remains in Slovakia.

Perhaps the worst case of post-return persecution is that of 29-year old Russian citizen Rasul Kudaev. From the Kabardino-Balkaria Republic (KBR) in the North Caucasus (southern Russia), he was arrested in Afghanistan aged 17* where he fled to avoid military service. Posing no risk, he was considered for transfer back to Russia by the US once the two countries had shared the intelligence beaten out of him at the end of 2002. He was released in February 2004. He returned home with a series of illnesses, a limp and physically unable to work. [Source: HRW].

Following militant attacks in October 2005 in the city of Nalchik where he lived, he was arrested with 58 others, and has been held since at a pre-trial detention centre where they are awaiting trial. Beaten as he was taken from his home, he had to be carried into court a few days later due to the severity of the beatings. By early November, pictures of his abuse and that of other prisoners circulated; Kudaev’s face was swollen and bruised. He was beaten so badly that human rights investigators fear he has permanent facial disfigurement. He was charged with various terrorism offences as a result. In 2006, his lawyers contested the evidence as it was obtained through torture but that was thrown out. His health has deteriorated progressively and his mother expressed serious concerns after a visit in January 2013.

The trial has been delayed for various reasons. The prosecution has given its evidence and Rasul Kudaev will be one of the last defendants to give his next month; the case should conclude later this year. His lawyers will also apply for bail until the judgment. In what has been largely a show trial, Amnesty International has expressed “little hope” in the outcome.

Years of abuse and injustice at Guantánamo Bay have so far resulted in a zero successful conviction rate and no credible evidence, just George Bush’s say-so that these are “bad men”. The least one may expect released prisoners to expect is rehabilitation and due process, and certainly not further imprisonment and persecution, especially of the most vulnerable. To deal with this pressing need,Reprieve, the human rights NGO which has and continues to represent dozen of prisoners, including the three men sent to Slovakia, set up the Life After Guantanamo project in 2010. Polly Rossdale from the project explains the needs former prisoners have and why such a project is so important:

There has been no justice, apology, or compensation to a single victim of US-sponsored torture in Guantanamo.  Former detainees are faced with the challenge of recovery from trauma in places and communities that are often either poorly resourced, lacking the necessary torture rehabilitation skills or are hostile to their presence.  The Life after Guantanamo project seeks to facilitate appropriate medical, psychological, legal and social support for these men and their families.  We assist with a range of issues including finding accommodation; family reunification; countering isolation; dealing with restrictions on freedom of movement and an uncertain legal status; and obtaining financial support to accessing education, training and employment.”

This year has seen some positive changes for Omar Khadr: last month, Dennis Edney, who previously acted as Khadr’s lawyer and championed his case far and wide, was reappointed to represent him in a case before the Canadian Federal Court against the Canadian government for breach of his constitutional rights. This move is likely to expedite his other demands and see the positive profile of his case rise again. Earlier this month, he was also moved out of solitary confinement, and is reported to be getting on well with other prisoners; this is the first time he has been out of solitary confinement since his conviction in 2010. A new petition has been put together calling on the Canadian government to release Omar Khadr and rehabilitate him, both a reasonable and the only viable proposition to deal with the current situation.

Many thanks to Reprieve and Amnesty International for their assistance. You can write to Omar Khadr at: Omar Khadr, Millhaven Institution, Hwy 33, PO Box 280, Bath, Ontario, K0H 1G0, Canada

* Rasul Kudaev was captured aged 17 (a minor) in Afghanistan, however by the time he arrived at Guantánamo in 2002 he was 18, a legal adult.

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Source: http://onesmallwindow.wordpress.com/2013/02/25/omar-khadr-from-frying-pan-to-fire/


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