Just another opinion (and legal questions) on the Omar Khadr issue

Just another opinion (and legal questions) on the Omar Khadr issue

Double jeopardy, the child soldier argument and the rampant hypocrisy of those defending the government’s apology

Much has been made about the payment to Omar Khadr, who is deemed responsible for a death and a life-altering eye injury of US armed service members during the US-led invasion of Afghanistan. The payment to Khadr, made quietly and cashed immediately has hindered a legal effort by the victims to get access to damages ordered by a US court. An Ontario court has subsequently dismissed the request made by Tabitha Speer, widow of Sgt Christopher Speer, and Sgt Layne Morris, who suffered a life-altering eye injury, allegedly by the grenade thrown by a young Omar Khadr in Afghanistan.

These issues are always a hotbed for discussion, much of it ill-informed and some of it downright ignorant. Initially, I was hesitant about posting a public opinion piece about where I stood on this issue. Regardless of which side I came down on, someone was bound to call me out unfairly. I was either going to be a racist or a terrorist sympathizer, depending on which side of the coin my views fell on.

Many have argued for and against the payout, and in an article written in Macleans magazine, Evan Solomon simplistically breaks down public opinion along partisan lines: Conservatives who disagree with the payment; Liberals who hold they had to make a payment; and the NDP who fully supports a payment to Omar Khadr. It’s not that he’s entirely wrong — an argument could be made that in general, he’s correct — but that as with those who support the Khadr apology and compensation package so often do to try and shutdown debate, it is overly simplistic and it doesn’t represent where a good portion of Canadians, those such as myself, stand.

I’m a card-carrying member of the Liberal Party of Canada, and in the 2015 federal campaign, I was one of those Canadians excited at the prospect of a Justin Trudeau premiership. His father, a master of real-talk, was and remains my political hero, though in fairness there are many areas in policy that we would likely have disagreed upon. At the time, the thought was that surely son Justin would have learned the lessons of his father’s political failures and come to power surpassing even his father’s legacy. In recent months, with the about-face on electoral reform, the cash-for-access stories and now the Khadr payment, the prime minister has made it difficult for me to support him. Come the next election, my vote shouldn’t be taken for granted — it’ll have to be earned with a compelling electoral sales pitch.

All of that to say that support or opposition to the Khadr payment can’t be broken down partisan lines. In fact, an Angus Reid poll shows that 71 per cent of Canadians oppose the government’s decision to apologize and dole out $10.5-million to Omar Khadr. I happen to be one of those people.

I neither agree with compensating Khadr, nor the manner by which it was executed. I will; however, freely admit that my investment into this issue is a political one — one which might be swayed if I had answers to certain high-level legal questions. The Khadr case is a complex one and I don’t pretend to know all of the facts or all of the intricacies in the questions of law this case has raised. For instance, if it could be proven that Mr. Khadr did not commit the actions for which his life was forever changed, then I’d certainly be the first to applaud the actions of our political leaders in compensating a man who has endured a gross miscarriage of justice.

On the payout

I disagree with the Liberal position that a payout was necessary, not because I deny that Omar Khadr’s rights were violated — they clearly were and the Supreme Court has established that in law. I simply do not understand why compensation was appropriate for someone who, at one point, admitted to the very crime for which he was detained.

Naturally, those who support the Khadr payout will cite that the guilty plea was made by someone who had been tortured and under the promises of being repatriated back to Canada. This is not under scrutiny. I agree with the notion that the admission of guilt was made after US officials deliberately employed tactics to secure a confession, but that does not answer any questions at the heart of the issue itself: did Omar Khadr commit the crimes for which he was accused and spent time in prison for?

The other argument people make is to cite the controversial existence and the questionable legal status of the Guantanamo Bay facility itself, which was, by large measure, at the heart of rulings by the Supreme Court of Canada in Khadr’s favour. Many have characterized the military tribunals at Guantanamo Bay as a “kangaroo court” — a characterization that, all things considered, is a legitimately debatable assessment. The judicial process, or what some would consider the lack thereof, was unquestionably flawed. At best, it is legal but taboo (precedents exist to have enemy combatants face military trials but few endorsed or utilized torture) and at worst it violates the very basic standards, expectations and protections of due process. On this point, on the basis of what is most probable, my view is that the process employed at Guantanamo Bay should not be standard which determines the guilt or innocence of Mr. Khadr. Which leads me to my first legal question:

The Canadian Charter of Rights and Freedoms, specifically section 11(h), protects Mr. Khadr from what is legally known as double jeopardy — plainly defined as being tried for the same offence on more than one occasion. The charter states that:

Any person charged with an offence has the right …
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;

QUESTION ONE: Given that politicians and the legal systems both in Canada and the United States, through cases adjudicated in either country, have made judgments consistent with the notion that the legal status of the US military tribunal at Guantanamo Bay is questionable at best, and at worst unconstitutional, does that not invalidate Omar Khadr’s double jeopardy defence?

If it does not, and many have used this argument to suggest that Omar Khadr has paid for his crimes, then there must be some recognition of what that ultimately means: it validates the findings of a kangaroo court. It would suggest that Mr. Khadr ought to be deemed guilty of the crimes for which he was imprisoned.

If; however, double jeopardy is an indefensible legal strategy for Khadr, it would be a statement of great legal ramifications. It would ultimately send the message that the Government of Canada does not recognize the legal authority of the military tribunal and that Omar Khadr has been wrongfully and illegally imprisoned. In these circumstances, the government ought to apologize to Mr. Khadr, and provide him with the compensation akin to what others in Canada have received for miscarriages of justice. David Milgaard (23 years in prison) received $10-million; Steven Truscott (initially sentenced to death, commuted to life imprisonment, served 10 years) received $6.5-million.

While in this scenario an argument could be made to compensate Khadr, and in this instance I’d probably be on side with a reasonable amount of compensation, it also does presumably allow the Crown to pursue terrorism charges, perhaps even charges as extreme as treason. According to section 46 of the Canadian Criminal Code, a person commits high treason by, among other things:

(c) assists an enemy at war with Canada or any armed force against whom Canadian forces are engaged in hostilities, even if no state of war exists.

I’m no lawyer, but this seems to fit the bill of what Mr. Khadr is accused of allegedly doing. Although the victims in question were US servicemen, Khadr is accused of aiding an enemy which Canadian Forces were actively engaged against in Afghanistan. In other words, it matters not if the victims are Americans — the enemy of the Americans was the enemy of Canadian Forces in this instance. This leads me to:

QUESTION TWO: Shouldn’t Omar Khadr confront the Canadian legal system to have his case tried?

Let us travel to the magical land of hypotheticals. If Canadian courts were to try and charge Omar Khadr under Canadian law, no doubt one of the first questions raised would be the one regarding whether Mr. Khadr is considered to be a child soldier. The argument has been hashed out and debated by lawyers and academics, but much of it has revolved around what the applicable law ought to be, not what it actually is.

Howard Anglin, a respected international lawyer, testifying before the House of Commons subcommittee on International Human Rights, discussed the Khadr case as it pertains to the question of whether Mr. Khadr ought to be considered a child soldier. In his testimony, he stressed that the that the Convention on the Rights of the Child asserts that the international legal definition of “child soldier” are those aged under 15 years. The prohibition on recruitment of soldiers under the age of 18 is outlined in the Optional Protocol to the Convention on the Rights of a Child. As Mr Anglin stated in his testimony, “there is nothing in the Optional Protocol… that bars the prosecution of a juvenile for war crimes.” The United Nations explicitly allows for persons 15 and over to be prosecuted for war crimes, further dismantling the child soldier argument.

In fact, in addition to the child soldier question, Anglin systematically demolishes many of the arguments made by Khadr supporters, including the citation of Geneva Convention protections and the suspension of habeas corpus (the latter of which I base my assertion that the military tribunal at Gitmo was, as many have called, a kangaroo court).

On Geneva protections, Anglin argued that:

They were clearly designed to deal with two armies of civilized western countries who respect certain basic norms of warfare… Mr. Khadr, as a member of al-Qaeda, is not a member of a contracting party to the Geneva conventions. He does not participate in a militia or an army that follows the laws of war, including distinguishing marks to distinguish them from civilians, bearing arms openly, otherwise complying with the laws of war, a recognized hierarchy of leadership. So he is not entitled to the full panoply of rights under the Geneva conventions, which in any way are anachronistic. The Geneva conventions really conveyed a Hogan’s Heroes sort of detention camp of gentlemen soldiers. Whatever you want to say about Mr. Khadr, he is not a gentleman.

(Mr. Howard Anglin, Hansard, 27 May, 2008)

It is noteworthy that these citations are not opinions, they are facts. In fact, the gist of Mr. Anglin’s testimony was that Mr. Khadr should not be repatriated to Canada because his actions could not reasonably be adjudicated in a Canadian civilian court. He would likely disagree with the point I’m trying to make, in that Omar Khadr face justice in the Canadian legal system.

On the manner which the payout was conducted

Let me set this up: the leader of the government out of town, on a holiday-filled week in North America (first Canada Day and then July 4th) in the middle of the summer. You could not have picked a more perfect time to try and sneak some bad news past Canadians. Luckily for the concerned public, a journalist at the Globe and Mail broke the story, forcing the Trudeau government into providing the few details it did offer up to the public.

Perception is everything in politics, and while the Trudeau government may have been trying to differentiate itself from its predecessor — a government that was unapologetic in terms of keeping Mr. Khadr locked up and making his life difficult — providing a payment of this size and an apology at a time when Mr. Khadr has yet to extricate himself from his conviction seems to play more like partisan politics rather than what’s actually best for the country’s taxpayer.

The government’s rationale — that it was fighting a legal battle it was destined to lose — might, in actuality, be true in the circumstances being dictated by the accused’s legal team. Under the circumstances, it is reasonable to see the government’s logic on this one. What dumbfounds most Canadians is that the prime minister is refusing to spend any considerable time defending his government’s decision and sitting down with Canadians to explain their thought process. At the end of the day, the prime minister is still the Canadian political salesman-in-chief, and on the Khadr matter, 71 per cent of Canadians aren’t buying.

A Closing Thought

I mentioned earlier in the article that I had gone through several drafts of what I wanted to express on this issue. When the story broke, there weren’t many details and little in terms of official confirmation from the Trudeau government. Much of the content of my earlier musings on this issue were formulated by relying on the general knowledge that I possessed at the time the story broke. It was pure knee-jerk reaction to the story.

As the story evolved, I began to get more hesitant about writing out an opinion on the issue. I’m not a member of any bar association, though I have some understanding of international law through my university studies. The facts of this case are so complex and difficult to prove, as is always the case when gathering evidence in a war zone. I decided to channel my inner student and familiarize myself with some of the legal arguments being thrown around in the media and on Twitter. The questions I pose in this article are legitimate and I’d hope that someone with some legal training comment with some answers. The best way to make people understand something and ultimately support one viewpoint over another is to take their viewpoint, answer questions with fact and evidentiary support and show them the error of their ways.

Sadly, the kind of attention this issue has generated is of the sort where those who are in favour hop on their high horses, claim moral superiority and label those who are opposed to their view as a racist; a bigot; a Canadian who does not espouse fundamental virtues of diversity and inclusivity. While there are many examples of this, I’ll show just one of them:

What’s truly sad about the racism argument, especially from Maher Arar, himself a recipient of a government apology and compensation for the Canadian government’s failures at the consular level, is that it buckets Canadians  who have serious, legitimate reservations with the Khadr payout as racist. Such a shutdown is not only unintelligent, but more reminiscent of the kind of tactics used in countries where public debate and discussion is suppressed.

Though Twitter isn’t perhaps the best forum to engage in intelligent debate given you’re limited to arguments of 140-characters in length, to suggest that it is futile to argue with those who have reservations about this issue is to suggest you have nothing intelligent to contribute to the conversation. To claim that all those who disagree with you are bigots is to be bigoted yourself. I would have expected better of Mr. Arar — this kind of statement is truly disappointing.

In another post, this time on Facebook from someone I’ve never heard of (it appeared on my feed through a friend sharing it, and I took an interest because it was written by a Canadian veteran supporting the government’s apology to Khadr) who suggested that those who disagree with the Trudeau government’s measures vis-a-vis Khadr are part of a group of “cowards” he says he pities. The post was written by someone named Troy Hoyt, who goes to say:

I pity you, because you have lost the joy which comes from simply being Canadian. For without possessing an uncommon level of tolerance, acceptance and understanding, you are, in essence, nothing more than a hate-filled, war-loving, racist, hell-bent on revenge. Or, in other words… An American.

(Troy Hoyt, from Facebook)

To profess the virtues of tolerance by being intolerant towards an entire country of people isn’t being tolerant at all. They are the same kinds of people who bash people for, to steal a line from Justin Trudeau, “wrapping themselves in the flag” while making the same kind of patriotic, nationalistic argument. This kind of hypocrisy is rampant.

Yes, there are those who disagree with this apology for reasons based on hate, fear and intolerance of those they feel don’t belong in this country. No one ought to dismiss the fact that race does play big in the minds of a minuscule portion of Canadians. That is indeed, and sadly, a legitimate debate to be had. Those who wish to have it are out there going about it the wrong way… using intolerance and generalizations to call out intolerance.

 

 

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