Shaky Conviction, Ongoing Punishment: Canada v. Omar Khadr

Clockwise from upper left: an undated photo of Omar Khadr, a detainee at the Guantanamo Naval Base; three frame grabs from a video released July 15, 2008, by Khadr's defense attorneys reportedly taken in an interrogation room at Guantanamo while being questioned by members of the Canadian Security Intelligence Service. (Clockwise credit: Khadr family handout/Khadr's attorney)Clockwise from upper left: an undated photo of Omar Khadr, a detainee at the Guantanamo Naval Base; three frame grabs from a video released July 15, 2008, by Khadr’s defense attorneys reportedly taken in an interrogation room at Guantanamo while being questioned by members of the Canadian Security Intelligence Service. (Clockwise credit: Khadr family handout/Khadr’s attorney)

The past year has been successful overall for former Guantánamo child prisoner Omar Khadr, who returned to his native Canada in late 2012 to serve the remainder of his military commission sentence there following conviction in 2010.

In March 2014, he received essential surgery to his left shoulder on a wound he sustained when he was shot and captured in Afghanistan in 2002 at age 15. Left untreated for over a decade during his imprisonment at Guantánamo, there was a risk of paralysis on one side of his body.

In spite of the huge odds stacked against him, Khadr has emerged as a “model prisoner” and student since his transfer to the medium-security Bowden Institution in Innisfail, Alberta, in 2013: He has played for the prison soccer team, and – pending a successful bail application in March 2015 – has been offered a place to study as a mature student at the King’s University in Edmonton. Treated as an adult throughout his incarceration at Guantánamo Bay, Khadr was denied the right to an education during his teens. He has since worked hard to make up for the lost time with a team of professors from King’s University, who taught him via correspondence when he was at Guantánamo and have continued in person during his time in jail in Canada.

Khadr is currently appealing his US conviction, which was carried out under a secret plea bargain for crimes allegedly committed as a minor, and involved the use of confessions elicited through torture. Like most of the evidence in such cases, it is tenuous and circumstantial at best and would not qualify, let alone stand, in a real court of law. No greater proof of that exists than the discrediting of other convictions under military tribunal plea agreements by the US federal courts.

In 2015 alone, two such convictions have been quashed. In January, Sudanese former prisoner Noor Uthman Muhammed, who had served his sentence and was repatriated in 2013, had his sentence “disapproved” and the charges against him dismissed. In February, Australian former prisoner David Hicks had his 2007 conviction, the first at Guantánamo, quashed on the sole charge of material support for terrorism, which is not a recognized war crime following an important decision on military commissions in 2014. Both original convictions were obtained through plea bargains.

This news should certainly be encouraging for Khadr – the quashing of his own conviction may be only a matter of time. Although the treatment of child prisoners was redacted in the publication of the US Senate’s report on CIA torture in December 2014, it is well known and documented that Khadr, as a minor when held at the Bagram Airbase and at Guantánamo, was subject to many of the forms of torture contained in the report, including waterboarding.

The United States obtained the result it sought through the persecution of Khadr: a conviction for the death of US Sgt. Christopher Speer, who was hit by a grenade that Khadr was alleged to have thrown in Afghanistan, in an incident without eyewitnesses, on July 27, 2002. Speer died of his injuries a fortnight later in Germany. After the conviction in 2010, the United States was ready to wash its hands of Khadr and forget about him with his repatriation to Canada.

Canada’s complicity with the United States in the torture and abuse of Omar Khadr was highlighted in the 2010 award-winning documentary Four Days in Guantánamo, which shows footage of Canadian intelligence officers interrogating him at Guantánamo. That same year, the Canadian Supreme Court found the Canadian government guilty of violating Khadr’s constitutional rights. Ironically, Canada is a state that has long championed the rights of child soldiers, including the right to rehabilitation.

With a dogged faith in the Guantánamo military commission system, unparalleled even in the United States, the Canadian government continues to hide its human rights abuses and violations of domestic and international law with regard to Omar Khadr by portraying him as an unrepentant war criminal, in spite of a complete absence of substantive evidence to back that contention.

The one-sided image of Khadr presented by the Canadian government is largely fed through the Canadian corporate media, yet no journalist has ever had the opportunity to meet or interview Khadr, owing to a media ban. On February 13, 2015, a Canadian federal judge rejected an application by a number of media outlets requesting to interview Khadr in prison. At a time when many are particularly sensitive about issues of press freedom and freedom of expression, such a ruling flies in the face of both the public’s right to know and the check-and-balance role a free press should play in a democracy.

Deeming Khadr an “unrepentant terrorist,” the Canadian government continues to thwart his attempts to seek justice at all levels. In 2014, his lawyers won a case for Khadr to be held as a juvenile prisoner given that his alleged crimes took place when he was a minor, granting transfer to a provincial facility. This will be appealed by the Canadian government at the Canadian Supreme Court in May 2015, even though the ruling on the issue was very clear.

On top of his silencing at the hands of the government, Khadr is now quite literally going blind. The 2002 attack in which he was captured by US troops in Afghanistan left him blind in his left eye and with shrapnel lodged in his right eye. He has never received adequate treatment. As a result, his eyesight has continued to deteriorate and by mid-2014, he was no longer able to read independently. His studies have been put on hold, and if he doesn’t receive adequate medical care soon, he could be permanently blinded. His lawyers have put in an application for urgent medical attention.

Demonstrating their confidence in the success of Khadr’s US appeal, in March, Khadr’s lawyers will apply for bail pending the outcome of that case, which will aid his physical and mental rehabilitation. Confident in the innocence of his client, Khadr’s long-term Canadian lawyer Dennis Edney QC has offered him a home in Edmonton. Now eligible, Khadr will also apply for parole later this year.

It is likely, however, that the Canadian government will fight Omar Khadr and his lawyers all the way, as it has done since 2002, at the expense of the Canadian taxpayer. Khadr’s statutory release date is in 2016, and his sentence will be served by 2018 at the latest, if his appeal is not successful before that. Should Khadr have his conviction quashed as well, one can only imagine what tune the Canadian government will then sing to conceal its lies and violations of international law.