End 12 Years Of Injustice

Omar Khadr's Lawyers Demand His Return to Canada from Guantánamo

Omar Khadr, photographed before his capture, and in 2009.

Omar Khadr, photographed before his capture, and at Guantánamo in 2009, in a photo taken by the International Committee of the Red Cross.

By Andy Worthington

Frustrated that Omar Khadr, the only Canadian citizen in Guantánamo, is still detained, eight months after he was supposed to be returned to Canada under the terms of a plea deal negotiated in October 2010, his U.S. and Canadian lawyers -- and the Canadian Senator Romeo Dallaire -- held a press conference in Ottawa on Thursday to demand that the Canadian government honors its part of the agreement and secures Khadr's return to Canada, the country of his birth.

Khadr was seized in July 2002 after a firefight in Afghanistan where he had been taken by his father, Ahmed Khadr, who is generally described as a fundraiser for Osama bin Laden. At the time of his capture he was just 15 years old, and should have been rehabilitated, under the terms of the Optional Protocol to the U.N. Convention on the Rights of the Child on the involvement of children in armed conflict, to which both the U.S. and Canada are signatories.

Instead, however, he was horribly abused in U.S. custody, and abandoned by the Canadian government. In October 2010, under the terms of the plea deal, he accepted that he had killed U.S. Special Forces soldier Sgt. Christopher Speer, who died in a grenade attack during the firefight, and that he was an "alien unprivileged enemy belligerent," who had no right to engage in combat with U.S. forces at all, even though there is serious doubt about the claim that he threw the grenade that killed Sgt. Speer, and even though his confession effectively established a scenario in which the U.S. claimed that it was illegal to raise arms against U.S. forces in a war zone.

Nevertheless, in exchange for his confession, Khadr was assured that he would serve an eight-year sentence, and would be returned to Canada after the first year of that sentence was served in Guantánamo.

That is the agreement that has not been honored by the Canadian government, and that led Khadr's lawyers, and Senator Dallaire, to complain publicly on Thursday.

John Norris, one of his Canadian civilian lawyers (along with Brydie Bethell), told the press conference, as CBC News described it, "The Canadian government has consistently failed to live up to its obligations to Omar Khadr. While Omar, a child, was trapped in a place that has been condemned around the world, the Canadian government stood idly by and said simply, 'We will let the process run its course.' Well, that process has now long run its course. In October of 2010, Canada committed to return Omar to complete his sentence in Canada after he served one additional year in Guantánamo Bay. Yet today, he still sits in a cell in Guantanamo, eight months after he was eligible to return to Canada."

His Pentagon-appointed defence lawyer, Lt. Col. Jon Jackson, launched what the Toronto Star described as "a scathing critique of Ottawa’s behavior in the case."

“The ‘Khadr effect’ is alive and well in Guantánamo Bay,” he told the press conference, explaining that Canada’s “stonewalling” on what he and the other lawyers described as "a commitment in a diplomatic note to the U.S.," at the time the plea deal was signed, "amounts to failing an ally as well as a dereliction of its duty to a Canadian citizen."

Lt. Col. Jackson also reiterated an important diplomatic point that has been repeatedly mentioned in reports about Khadr over the last few months -- that Canada's stance means that U.S. military prosecutors and defense lawyers "are unable to secure plea bargains with other detainees who don’t believe deals will be honoured because of Canada’s inaction."

In Lt. Col. Jackson's words, “There is a great deal of frustration” amongst U.S. personnel at Guantánamo. He said that a senior U.S. official had said to him, “When the hell is Omar going back to Canada?” and he added, “You made a deal. Honor the deal.” He also said, "Canada must honor the agreement it had with Omar Khadr and return him immediately to Canada."

Lt. Col. Jackson also took the opportunity to humanize Khadr, which is hugely important in breaking through the wall of horrendous prejudice that exists in Canada, where the Canadian people's often-claimed differences with the U.S. are not at all apparent in Khadr's case. His humanity is something that his lawyers have worked at explaining over the years, and it has also been revealed in the extraordinary exchange of letters between Khadr and Canadian university professor Arlette Zinck, and runs through the new book, Omar Khadr, Oh Canada, edited by Janice Williamson, featuring 400 pages of contributions by "leading legal experts, poets, novelists, sociologists, political scientists, essayists, playwrights, documentarians, military experts, diplomats, human rights activists, communications scholars, and literary critics."

“He is not a threat,” Lt. Col. Jackson told reporters, adding, “My 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 also explained, "I've spoken to dozens of guards and staff at Guantánamo Bay and they all say the same thing about Omar Khadr. It needs to be clear to Canadians: He's a good kid and he deserves a chance at life." He also noted that he didn't know why Ottawa was dragging its feet, but that he "understands public skepticism" because, as he put it, “the politics of fear work. Scaring people works.”

Explaining that they were painting "a more personal portrait" of Khadr "to show Canadians he deserves their support," the lawyers pointed out that, since agreeing to his plea deal, Khadr has been "in restrictive post-conviction custody," providing him with "limited movement or interaction with other inmates." As they also noted, "He sits shackled by his feet in a cell most of the day," and John Norris explained that he was "trying to pursue an education as part of his rehabilitation."

The two U.S. military lawyers -- Maj. Matthew Schwartz as well as Lt. Col. Jackson -- "have more access" to Khadr, and have spent hundreds of hours with him. They described him as "an intelligent young man" who is quick to learn and has a “love of learning," which corresponds exactly with Arlette Zinck's findings.

As the Toronto Star put it, "Schwartz taught him geography, history and practiced singing O Canada and the American anthem with him," and "Jackson taught science and mathematics, and read Shakespeare, The Hunger Games and The Road [by Cormac McCarthy] with him." Lt. Col. Jackson explained, “His insights into those books shows he gets it, he gets what it means to be a useful member of society."

In a CTV News article, it was noted that Lt. Col. Jackson also said, "It's been a joy to see him as a student, he has such a love of learning which is something I think is important when you look at what someone's going to be like when they do get out of prison."

Lt. Col. Jackson also said, "I believe actions speak louder than words," and explained that, in 15 years as a military lawyer, he had "represented radical jihadis and soldiers who’ve committed crimes," but Khadr was not like them. “He is a good person with a good heart and he wants to get an education and make a positive difference in society,” he said. “Could he fool me and could he fool hundreds of guards over a 10-year period? I guess it’s possible. But at the end of the day we rely on what we see and how we interact with Omar.”

In responding to the lawyers' appeal, the Canadian government still showed no signs of doing anything other than dragging its heels for as long as possible. Spokespeople for the Canadian government have long contended that the government "never gave a guarantee, only that it would 'favourably' consider Khadr’s transfer," and Khadr's lawyers were advised in a letter on Wednesday that the government still hasn't made a decision regarding Khadr's repatriation. As the CBC website described it, Public Safety Minister Vic Toews "said again Wednesday there was nothing new to say about the case.," and stated, "I've made no decision in that. I'll make a decision in due course, in accordance with the law."

Khadr's lawyers said this was "the first word … they’d heard in months of trying to determine the reason behind the delay," but were unimpressed. The diplomatic note between the U.S. and Canada, they say, "may have been couched in the language of legal treaties," but Lawrence Cannon, who was the Foreign Affairs Minister at the time of Khadr's trial, vowed to “implement the deal" in a statement to Parliament in November 2010.

John Norris added that Khadr’s legal team were "now considering launching another legal action in Federal Court to force the Canadian government to live up to its word."

Lt. Col. Jackson also lamented, "The United States and Canada are supposed to be the good guys. We're supposed to stand for human rights, dignity and the rule of law, and the cornerstone of the foundation on which the rule of law is built is honoring your agreements."

In addition, Senator Dallaire, who, as CBC News put it, "has advocated on behalf of child soldiers," pointed out that Khadr "was recruited as a 13-year-old and since his arrest following the Afghan battle has clearly had his human rights violated." He also "called on the government to explain the delay in bringing him back," asking, "Why not tell us outright why you don't want him back?"

We all know why, I'm sure. No one in the government is in a hurry to repatriate Omar Khadr, because they don't want to. Forget Khadr's rights, trampled by his government. Forget Canada's obligation to rehabilitate child soldiers, and its work doing just that with child soldiers from other countries. Omar Khadr was a child and a victim of his father's militancy when he was shot, tortured and taken to Guantánamo, but the Canadian government doesn't want to know.

Thursday's press conference was a useful reminder to the world of the Canadian government's disgraceful and unjustifiable position regarding Omar Khadr. I can only wonder how much more shame and indignation must be expressed before ministers finally fulfil their obligations and free him from his long ordeal in U.S. custody.