This week, Omar Khadr, the Canadian citizen and former child prisoner, was supposed to leave Guantánamo after nine years and three months in U.S. custody.
No one thought that he would return to Canada as a free man because he has another seven years to serve in a Canadian jail as part of a plea deal he made at Guantánamo a year ago; but it was reasonable to expect that he would be transferred to Canadian custody this week, as the plea deal was for an eight-year sentence — with one year to be served in Guantánamo, followed by seven in Canada.
However, as canada.com explained last Friday, “It could be as many as 18 months before Omar Khadr steps foot in Canada even though he becomes eligible for transfer from Guantánamo Bay on Monday [October 31].”
Throughout this entire story, the behavior of the U.S. government, first under George W. Bush, and then under Barack Obama, has been disgraceful. Khadr was abused and was never rehabilitated according to the Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict, which stipulates that juvenile prisoners — those under 18 at the time the crime of which they are accused took place — “require special protection” and requires its signatories to promote “the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.”
Moreover, Khadr was put forward for a trial by military commission — a war-crimes trial — even though he was a child at the time of his capture, even though it is not clear that he had killed a U.S. soldier by throwing a grenade, as alleged, and even though the entire premise of the trial was wrong.
It was deeply disturbing that the U.S. government was willing to suggest to the world that those who raise arms against U.S. forces in wartime, and in a country where the United States is engaged in a war, can actually be defined as war criminals, even if their only targets are members of the U.S. military.
And yet that, of course, is exactly what happened to Khadr, when, a year ago, he signed the plea deal that was supposed to guarantee his release, in which he admitted to being an “alien unprivileged enemy belligerent,” who had no right, under any circumstances, to engage in combat with U.S. military forces, and who, as a result of doing so, was a war criminal.
That was shocking enough, and it was no more reassuring that, on October 31, 2010, Khadr was given a 40-year sentence by a military jury after a week of hearings at Guantánamo. The sentence was supposed to reassure supporters of Guantánamo and the military commissions that Obama was tough on terrorism, while the plea deal was supposed to send the message to critics of Guantánamo that he was fair. However, from the point of view of fairness and the law, the entire process was an abomination and represents a low point for U.S. justice and thoroughly undermines any reputation for fairness that Obama hoped to bring to his presidency.
For Khadr, the plea deal was obviously supposed to be a lifeline, which is what makes the news from Canada so upsetting. The Canadian government’s behavior has been shameful ever since Khadr was first captured. Intelligence agents were sent to interrogate him, even though that was a clear violation of his rights, given the disturbing circumstances of his confinement in Guantánamo, and a series of challenges in the Canadian courts culminated in the Canadian Supreme Court’s ruling that the government had indeed failed to protect Khadr’s rights, although the court refused to order the government to seek his return, and the government responded by ignoring the ruling.
Now, however, the signs are that the Canadian government looks set to fail Khadr again. Canada.com noted that the closest the government had come to guaranteeing that he would be coming back to Canada to serve the rest of his sentence was “a diplomatic note between U.S. and Canadian officials” that stated that the Harper government was “inclined to favorably consider” a request for Khadr’s transfer back to the country of his birth.
Several weeks ago, Khadr’s Canadian lawyers confirmed that “the transfer process had been initiated,” but Michael Patton, a spokesman for Public Safety Minister Vic Toews, said that securing the return of a prisoner from another country was a “big process.” He explained that the Correctional Service had to “determine whether the applicant is eligible for a transfer,” then the government holding the prisoner had to agree to it, and then the Correctional Service had to “put together a recommendation to the Minister who must review and approve it.”
Patton said, “These files normally take about 18 months to come to a decision,” and canada.com claimed that Khadr’s case was “unlikely to be expedited or treated differently,” even though the government has obviously had an entire year to prepare for his return.
In the Globe and Mail, Paul Koring discussed other options, noting that the Harper government could “approve and quickly facilitate” Khadr’s return, possibly within months, if he were to “agree to abandon any further constitutional challenges,” according to “lawyers familiar with his case.”
On the other hand, some lawyers told the Globe and Mail that Khadr could be free “in less than a year if he takes his case again to the Canadian courts.” They believe Khadr could challenge both his war-crimes conviction and the sentence he was given on the basis that “both were illegal under international law.”
Koring noted that a constitutional challenge by Khadr “could embarrass the government and force public disclosure of the role its agents played” in his interrogations at Guantánamo. On the other hand, such a challenge would also “cast him again in the spotlight” and might be damaging for his cause in Canada because part of the basis for treating him so shamefully has been that many Canadians have been prepared to ignore his immense ill-treatment by making him the object of punishment for the perceived sins of his father, Ahmed Khadr, who, it has been alleged, raised funds for Osama bin Laden.
Koring also noted that “the Harper government has so far shown no interest in getting Mr. Khadr freed or back in Canada.” This shameful situation must end as soon as possible, and Khadr, I believe, should be freed on his return to Canada, as a gesture of support from a government that shamefully abandoned him for the best part of a decade.
Khadr’s release from Guantánamo will also focus attention once more on what should be an abiding source of shame for Barack Obama, but has been largely overlooked — the continued presence of 171 prisoners at Guantánamo, even though the government conceded, after a year-long review in 2009, that it did not wish to hold more half of those men.
With their release blocked by Congress and by judges in the Court of Appeals in Washington D.C., who have gutted habeas corpus of all meaning when it comes to the Guantánamo prisoners, Omar Khadr’s release would also remind the world of some of the other prisoners, unjustly overlooked as the 10th anniversary of the opening of Guantánamo approaches.