Defiance in Isolation: The Last Stand of Omar Khadr
In the last week, Omar Khadr, the only Western citizen still held in Guantánamo, has sacked his US lawyers and stated that he will boycott his forthcoming trial by Military Commission, scheduled to begin on August 10. He has also refused to have anything to do with a plea deal that was being negotiated between the prosecution and defense lawyers, which apparently involved him serving five years of a 30-year sentence if he were to plead guilty to throwing a grenade that killed a US Delta Force soldier, Sgt. Christopher Speer, on the day of his capture after a firefight in Afghanistan nearly eight years ago, on July 27, 2002.
From a legal point of view, Khadr's decision to boycott his forthcoming trial appears resolutely counter-productive. Of the three prisoners convicted in the Commissions' miserable eight-year history (a fourth, Ibrahim al-Qosi, awaits sentencing after a plea deal last week), only one - Ali Hamza al-Bahlul - received a punitive sentence, being sentenced to life in prison in November 2008, after a one-sided trial in which he refused to mount a defense.
Khadr's rebellion may yet play to his advantage, but before considering that, it is worth recounting how he reached this point, and what his rebellion means.
At the time of his capture, Khadr was just 15 years old. Seriously wounded after the firefight in which Sgt. Speer - and all of Khadr's companions - were killed, he was then accused of having thrown the grenade that killed Sgt. Speer, even though subsequent accounts have indicated that he was face-down and unconscious under a pile of rubble at the time, and was subjected to interrogations, threats and insensitive and sometimes abusive treatment until his transfer to Guantánamo, soon after his 16th birthday on September 19. 2002. In Guantánamo, the same pattern of interrogations, threats and abusive treatment continued.
Khadr's abuse as a juvenile, in defiance of international treaties
At no point was Khadr treated as a juvenile prisoner (those under 18 years of age when their alleged crimes take place), caught up in war at the instigation of an adult - in this case, his father, Ahmed Khadr, an alleged financier for Osama bin Laden, who had repeatedly shuttled his family from Canada to Afghanistan and Pakistan during Khadr's childhood. It was, after all, Ahmed Khadr who bore the ultimate responsibility for letting his son spend time with a group of men who, on July 27, 2002, took him with them when they went to visit colleagues in Ab Khail, a small village outside Khost, where they were subsequently ambushed by US soldiers.
Of particular relevance here is the Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict, which was adopted by resolution of the General Assembly of the United Nations on May 25, 2000, and entered into force on February 12, 2002. The US ratified the Optional Protocol on December 23, 2002, five months after Khadr was seized, but then spectacularly failed to fulfill its obligations, which includes the agreement that all States Parties who ratified the Protocol "[r]ecogniz[e] the special needs of those children who are particularly vulnerable to recruitment or use in hostilities," and are "[c]onvinced of the need [for] the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict."
The US also ignored a detailed plan for the care of juveniles in Guantánamo, "Recommended Course of Action for Reception and Detention of Individuals Under 18 Years of Age" (PDF), dated January 14, 2003, which was drawn up by four doctors at Guantánamo, and provided detailed guidance on how juveniles should be treated. The document, which I discussed in an article in October 2008, began by noting, "All efforts should be made to keep those in the pediatric age range [those under 18] from undergoing detention at Guantánamo Bay, Cuba," and pointed out, "People less than age 18 years are emotionally, psychologically, and physically dynamic and complex. If it is determined that they must be detained, then all aspects of their transport, in-processing, and detainment should be specific for this age group." Much of the rest of the document described, in detail, how juvenile prisoners must be housed and treated, and how to meet their psychological and educational needs.
However, instead of being rehabilitated, Khadr was subjected to the full weight of the oppressive and illegal regime at Guantánamo, and was also abandoned by the Canadian government, which sent interrogators to Guantánamo in February 2003. As his Canadian lawyers, Nathan Whitling and Dennis Edney, noted when they released a video of the interrogations in July 2008 (which was provided to them during Canadian court proceedings), although Omar was clearly "suffering from severe emotional problems connected with his detention and interrogation, crying heavily on more than one occasion," the Canadian officials "dismissed his claims of abuse on the flimsiest of pretexts," writing, in one of the reports, that his allegations of torture at the US prison in Bagram, Afghanistan "did not ring true," even though, as we now know, at least two prisoners were killed by US soldiers just months after Khadr was transferred to Guantánamo.
Khadr's only power - the power to dismiss his lawyers
As a result of all these factors, when two US lawyers, Muneer Ahmad and Rick Wilson of the International Human Rights Law Clinic at American University, finally got to meet him in October 2004, following the Supreme Court's ruling, in June 2004, that the prisoners had habeas corpus rights, "[s]ecuring [his] trust did not prove easy," as I explained in a profile of Khadr in November 2007, "primarily because suspicion and paranoia were built into the fabric of Guantánamo." Ahmad recalled that, when he finally met Omar, his first thought was, "He's just a little kid." In August 2006, an article in Rolling Stone explained, "Omar was gaunt and pale, in a state of everlasting exhaustion, his senses starved by solitude. He had large gunshot-wound scars on his back and chest, and smaller scars over most of his body, several parts of which still held shrapnel."
Significantly, as Ahmad also explained, although Khadr gradually opened up to them, "reveal[ing] himself to be very shy and curious and, in most ways, still a child, with a child's sweetness and credulous charm," he also realized, as Michelle Shephard explained in the Toronto Star on Wednesday, that "the only control [he] could wield in prison was whether he saw his lawyers, and if he would let them represent him. Interrogations and daily routines were non-negotiable. Even hunger strikes were unsuccessful due to Guantánamo's policy of force-feeding striking detainees."
In November 2005, just over a year after his first visit from his lawyers, Khadr was charged in the first incarnation of the Military Commission trial system, which, in November 2001, Vice President Dick Cheney and his close advisors thought would be a useful method for trying terror suspects without due process, using material derived from torture, and, if required, subjecting them swiftly to the death penalty. It didn't work out that way, of course, In June 2006, the Supreme Court ruled that the Commissions violated the Geneva Conventions and the Uniform Code of Military Justice, but they were then revived by Congress, and in February 2007 Khadr was charged again. This time around, proceedings limped on until January 2009, when, on his first day in office, President Obama suspended the Commissions, but by May he had concluded that they ought to be revived with the aid of Congress, and in November last year Khadr was charged for the third time.
As the Commissions have struggled to establish their legitimacy, and have stumbled from one disaster to another, plagued by resignations, internal problems and inconsistencies, and a fundamental misconception that any of the charges faced by the prisoners are recognizable as war crimes, Khadr has repeatedly resorted to the only power he has - the power to dismiss his lawyers - even as those men and women did their best to defend him, both in court hearings and in the media, pointing out that he was a child when seized, that he was tortured, that he did not throw the grenade that killed Sgt. Speer, and that the United States ought to be ashamed for even contemplating putting a former juvenile prisoner on trial for war crimes.
Khadr's defiance and his sense of justice
Khadr's actions may seem counter-intuitive, and in some ways may be nothing more than a frustrated child in a man's body lashing out in a manner that reveals the anguish beneath his generally calm exterior. Looked at another way, however, it is easy to understand why Khadr has just sacked his US lawyers (again), and why he believes that the Commissions are rigged and that the US government is incapable of delivering justice in his case. His reasoning permeates the statement he read out in court on Monday, in which he declared:
[Y]our honor I'm boycotting this Military Commission because:
* Firstly the unfairness and unjustice of it. I say this because not one of the lawyers I've had, or human rights organizations, or any person, ever say that this commission is fair or looking for justice, but on the contrary they say it's unfair and unjust and that it has been constructed to convict detainees, not to find the truth (so how can I ask for justice from a process that does not have it or offer it) and to accomplish political and public goals. And what I mean is when I was offered a plea bargain it was up to 30 years which I was going to spend only five years so I asked why the 30 years. I was told it makes the US government look good in the public's eyes and other political causes.
* Secondly: The unfairness of the rules that will make a person so depressed that he will admit to all[e]gations made upon him or take a plea offer that will satisfy the US government and get him the least sentence possible and l[e]gitimize this sham process. Therefore, I will not willingly let the U.S. gov use me to [fulfill] its goal. I have been used [too] many times when I was a child and that's [why] I'm here taking blame and paying for things I didn't have a choice in doing but was told to do by elders.
* Lastly I will not take any plea offer because it will give excuse for the gov for torturing and abusing me when I was a child.
It's all there: Torture and abuse by the US when he was a child; the refusal by the US authorities to recognize that he was manipulated by those older than him; and a refusal to accept a plea deal that would make the US look good, that would appear to validate an unjust process, and that would involve him confessing to a crime he didn't commit.
US discomfort, Canada's shameful history - and why the Harper government needs to act now
I don't doubt that Khadr's defiance is mixed with confusion, but it just may be that boycotting his pending trial will force both the American and the Canadian governments to think long and hard about what to do now.
For Barack Obama, the boycott threatens to turn a situation that is already problematical into one that is beyond contemplation. When Ali Hamza al-Bahlul refused to mount a defense and was convicted in the dying days of the Bush administration, no one cared, but in Khadr's case it is different. As Michelle Shephard explained on Wednesday, his status as a child soldier "has already made many in Washington uncomfortable," and a decision to boycott his trial may make it "politically untenable." Jennifer Turner, a researcher who was observing Khadr's hearing for the American Civil Liberties Union, told Shephard by email, "Politically, it's a nightmare. Instead of restoring the rule of law, Obama would be presiding over the one-sided prosecution of a child, taken to a conflict zone by his family and mistreated for years in US detention."
Even more pertinently, Khadr's boycott may finally provoke action from the Canadian government, which, throughout this whole sordid story, has behaved appallingly. Despite signing the Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict on July 7, 2000, and advocating on the world stage for the rights of child soldiers from other countries, the government has persistently refused to call for the return of Khadr to Canada, and has, over the years, faced mounting condemnation in the courts.
In April 2005, critics of the government's stance in Canada were appalled when William Hooper, the assistant director of operation for the Canadian Security Intelligence Service, admitted that the information obtained from Khadr's interrogation at Guantánamo had been shared with the US authorities, without any attempt having been made to ascertain whether it would be used in a case involving the death penalty, and in July 2008, when Nathan Whitling and Dennis Edney released the video of Khadr's interrogations by Canadian agents, they were able to do so because, on May 23, 2008, the Supreme Court of Canada ruled unanimously that the government had acted illegally, contravening Article 7 of the Charter of Rights and Freedoms, which guarantees that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice," and ordered the videotapes released.
A month later, on June 25, 2008, there was more trouble for the government, when Mr. Justice Richard Mosley of the Federal Court of Canada ruled (PDF) that a report from a visit to Khadr in March 2004 by Jim Gould of the Canadian Department of Foreign Affairs, which nonchalantly mentioned how Khadr had been subjected to prolonged sleep deprivation for three weeks before his visit, "in an effort to make him more amenable and willing to talk," constituted a breach of the UN Convention against Torture and the Geneva Conventions.
In April 2009, the Federal Court of Canada revisited the case, reiterating that Khadr's rights had been violated, and concluding that the government had a "duty to protect" Khadr and should request his return to Canada as soon as possible. In August 2009, the Federal Court of Appeal upheld the ruling, and in January 2010, in another unanimous 9-0 decision, the Supreme Court of Canada also upheld the ruling, concluding:
The deprivation of [Khadr's] right to liberty and security of the person is not in accordance with the principles of fundamental justice. The interrogation of a youth detained without access to counsel, to elicit statements about serious criminal charges while knowing that the youth had been subjected to sleep deprivation and while knowing that the fruits of the interrogations would be shared with the prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.
The Supreme Court stopped short of ordering the government to seek Khadr's return, accepting, lamely, that it was up to senior officials to ascertain how to balance foreign policy requirements with the need to respect Khadr's constitutional rights. Predictably, given its past behavior, the government decided that Khadr's rights counted for nothing, prompting another round of litigation. Last week, Mr. Justice Russell Zinn gave the government seven days to come up with a list of ways in which they intended to protect Khadr's rights, but on Monday, as Khadr prepared to deliver his statement in Guantánamo, the government filed another last-minute appeal.
Whether evasion on the part of the government is endlessly possible remains to be seen, but it now seems likely that, with Khadr's boycott looming, the Obama administration may finally seek to exert pressure on Prime Minister Stephen Harper. As Michelle Shephard explained on Wednesday, such has been the Canadian government's aversion to dealing constructively with Khadr's case that government officials were not even involved in the discussions regarding a plea deal, meaning that the whole arrangement of serving five years of a 30-year sentence "was never guaranteed."
Khadr may not have known this when he sprang his surprise on his latest lawyers, but, as Dennis Edney explained, "The deal was dependent on a number of things, including whether Canada would take him. And Canada was never at the table."
With a chronic travesty of justice looming, it is time for Canada to sit at the table with the Americans, and to work out how to secure Khadr's release without the embarrassment of a war crimes trial. Unlike every other Western citizen, Omar Khadr has been spurned for too long by his home country, and it is time for Stephen Harper to secure his return, and to bring to an end the desperate defiance, born of frustration and isolation, of a former child prisoner who has lost a third of his life in an experimental prison outside the law.