Defiance in Isolation: The Last Stand of Omar Khadr

In the last week, Omar Khadr, the only Western citizen still held in
Guantanamo, 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 Guantanamo, soon
after his 16th birthday on September 19. 2002. In Guantanamo, 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
Guantanamo, "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
Guantanamo, 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 Guantanamo 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 Guantanamo, and was also abandoned by the Canadian
government, which sent interrogators to Guantanamo 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 Guantanamo.

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
Guantanamo." 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 Guantanamo'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 Guantanamo 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 Guantanamo, 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.