An Inarticulate Case for Omar Khadr

November 14, 2009

US Attorney General Eric Holder announced yesterday that Canadian detainee will be prosecuted by a US military tribunal for his alleged role in the murder of a US soldier in Afghanistan more than seven years ago.

At the same time, the Supreme Court of Canada heard arguments to determine whether the federal government has any responsibility to press for Khadr’s repatriation to Canada in light of the violation of his Charter rights at the hands of American interrogators during his detentions at Bagram and Guantanamo.

Personally, I find Stephen Harper’s repeated and determined efforts to convince the courts to not obligate him to press for Omar Khadr’s rights utterly reprehensible.  Every other American ally has seen its detained nationals returned when they pressed Washington, why has Ottawa refused to act on Khadr’s behalf?

Yes, unlike most other released Guantanamo inmates Omar Khadr was not only detained for providing material support to an enemy but faces the additional charge of killing a US Army medic, a violation of the laws of war (let’s ignore the fact that the United States never legally declared war and whether Osama bin Laden’s 1998 fatwa against “Jews and Crusaders” qualifies as a declaration of war on America). However, Khadr’s role in that murder, the alleged lobbing of a grenade at US soldiers, has become quite murky as more eye witness reports have been published. The facts as we now know there are as follows:

1.  US Sgt. Christopher Speer, the US Army medic fatally wounded at the engagement where Khadr was captured was not a clearly marked medic.  Speer was in fact a member of Delta Force and was sent into the compound, weapon in hand, where Khadr was holed up to clear the area of combatants.  It was shortly after entering the compound that Speer was wounded.  Why is this important?  It shows that the media (and prosecution’s) constant labeling of Speer as a “US Army medic” is a misnomer designed to sway public opinion against Khadr and in a way justify his continued detention.  It would be far more difficult to hold Khadr on the basis of his connections to al Qaeda as individuals accused of providing equal or far more substantial aid to al Qaeda and the Taliban have been set free.

The facts more pertinent to Omar Khadr’s case are as follows:

2.  Omar Khadr was blinded in one eye and suffered severe injuries to his legs during the four hour engagement when his position was: i) attacked by two apache helicopters with cannon fire and hellfire missiles, ii) strafed by an A-10, iii) bombed by a pair of F-18 Hornets, iv) saturated by grenades from the Delta Force team sent to inspect the position.

 3. Omar Khadr was not the lone survivor of the four-hour fight.  A US soldier identified an adult male with an AK47 moving in the alcove where Khadr was found.  The soldier shot unidentified man, killing him.

Clearly there is a reasonable doubt about whether Khadr even threw the grenade that killed Sgt. Speer as he may have been physically incapable of doing so.  Whether that reasonable doubt will hold up in a military commission is questionable.  In US military tribunals evidence that was obtained by coercion (last month Obama eliminated the use of evidence attained through torture, though gave no precise definition as to what falls under “torture” and what is considered “coercion”) is permissible and Khadr has already admitted in two separate occasions to having thrown the grenade that killed Speer.  The fact that these “confessions” may have come under the duress of severe sleep deprivation, detention in isolation, detention in stress positions, denial of medical treatment for his wounds, intimidation, threats of violence and general degrading treatment, as Khadr, his lawyers and even some of his interrogators have reported, may not sway those who will decide his fate.

The bigger issue, beyond Omar Khadr’s innocence or guilt, is his rights as a child soldier and as a Canadian.  Omar Khadr is a born and bred Canadian citizen and deserves all the protections afforded to him as such, including the right to not be tortured (as he has been repeatedly) and the right to a speedy trial (he’s been in prison for seven years).  The Canadian government is supposed to protect its citizens when their rights are being violated no matter where in the world they are.  The fact that Ottawa had first hand knowledge from a February 2003 interrogation by CSIS agents that Khadr was being tortured along with reports of the systematic abuse perpetrated by the American military and CIA from Bagram to Abu Ghraib to Guantanamo Bay should have compelled the federal government to act on Khadr’s behalf. 

More than that, Khadr deserves the same safeguards that have become the norm in Western society with regard to child soldiers.  Omar Khadr has been exploited.  He didn’t decide what company to keep – it was his father’s decision to send him to Khost to act as a translator for a group of Arab fighters.  Though it didn’t appear as though he was cooperating with those militants against his will, at 15 years old Omar was quite susceptible to manipulation.  International conventions identify anyone, without exception, under the age of 18 as a child precisely because they are not deemed to have attained the capacity for independent thought.  Omar Khadr should be pitied for being put in the horrific situation that he was subjected to since 2002 and should be provided the same treatment that we provide to all child soldiers.  That is, he should be rehabilitated, not punished.

Without a strong ruling from the Supreme Court of Canada, something that is not expected until next year, it is extremely unlikely that the Harper government will show a change of heart and press Washington to end Omar Khadr’s frighteningly long ordeal.  This is part of a trend we’ve seen from Ottawa since 9-11. The Liberal and Conservative governments’ failure to ensure Omar Khadr’s rights were protected, their complicity in the torture of Maher Arar, and their willingness to hand over prisoners captured in Afghanistan to prisons where torture is known to be a widespread practice, reveals the amoral depths the federal government has prepared to sink to in confronting so-called global Salafism jihadism.   Canadians must demand an end to this disheartening and disgusting pattern and seek Omar Khadr’s repatriation now.