October 23, 2013
Last week, in a court in Edmonton, Justice John Rooke, responding to a habeas corpus petition submitted in September by former Guantánamo prisoner Omar Khadr, issued a ruling ordering him to remain in a maximum security federal prison rather than being moved to a provincial prison, "limiting his chances for parole," as the Toronto Star described it.
Khadr, who was a juvenile — just 15 years old — when he was seized in July 2002 after a firefight in Afghanistan, where he had been taken by his father, was held at Guantánamo for eight years, and only left the prison after agreeing to a plea deal in October 2010, in which he accepted five charges — spying, conspiracy, providing material support for terrorism, attempted murder and murder (of a US Special Forces soldier, Sgt. Christopher Speer), even though that last charge was based on an extremely untrustworthy claim that he had thrown the grenade that killed Sgt. Speer. Under the terms of the plea deal, he received an eight-year sentence, with one year to be served in Guantánamo and the remaining seven in Canada.
Eleven months late, in September 2012, Khadr was eventually returned to Canada, where he was imprisoned in the Millhaven Institution, a maximum-security prison near Kingston, Ontario. In May this year, after he received threats from another prisoner, he was moved to another maximum security prison, the Edmonton Institution in Edmonton, Alberta, and in August his lawyer, Dennis Edney, sought his transfer to a provincial prison.
Khadr became eligible for parole this summer, but has not yet applied for it, because, as the Toronto Star noted, "It is rare that an inmate will be granted full parole from a maximum security federal facility." Edney argued that, as a sentence for murder in Canada, eight years would be regarded as a youth sentence (because a life sentence is mandatory for an adult murder conviction), and therefore Khadr should not have been sent to a maximum security prison.
However, although Justice Rooke agreed that eight years was not an adult sentence, he accepted eight years as an appropriate punishment for the other four war crimes that Khadr agreed to in his plea deal. As he wrote in his ruling, "Mr. Khadr’s sentence could have been a single youth sentence and four adult sentences. However, Mr. Khadr obviously cannot be in both an adult provincial facility for adults and a penitentiary at the same time." He added, as the Toronto Star put it, that "where there is ambiguity, the law dictates that the inmate should serve an adult sentence."
Justice Rooke began his ruling by stating that it was "important to understand what this Decision is about and what it is not about." Explaining that it was "simply and purely" about "statutory interpretation," he described it as "about the proper interpretation of legislation [the International Transfer of Offenders Act] to determine whether an offender, transferred from another country to Canada, will serve the remainder of the foreign sentence in a provincial correctional facility for adults or a federal penitentiary."
He added, "This Decision is not about a number of matters. It is not about Mr. Khadr’s background, other than that he is a Canadian citizen. It is not about his age when the offences were committed or since, except only insofar as specifically relevant to the legislation being interpreted. It is not about any of the circumstances pre-dating his transfer to Canada to complete his sentence — specifically, it is not about the appropriateness of his pre-sentence detention or the sentence Mr. Khadr received in the United States."
Technically, this may be an appropriate legal decision, but it only adds to the disgraceful treatment of Omar Khadr by the Canadian authorities over the last eleven years. The government’s lack of concern for Khadr, and its manipulation of racist and Islamophobic sentiment towards him, has been a disgrace, and the only bodies to emerge with any kind of honor are various Canadian courts, up to and including the Supreme Court, who, before Khadr’s return to Canada, ruled that the government had violated his rights by sending agents to interrogate him at Guantánamo.
Dennis Edney plans to appeal the ruling, but in the meantime the government has once more shown its continuing disregard for the truth, and its relentless instinct for cheap distortions. Responding to the ruling, the new Public Safety Minister Steven Blaney said he "welcomed" it, noting that the government "will continue to vigorously defend against any attempt to lessen his punishment." In this, he was reiterating what Prime Minister Stephen Harper said in September when Khadr finally had a day in a Canadian courtroom. On that occasion, Harper said, "This is an individual who, as you know, pled guilty to very serious crimes including murder and it is very important that we continue to vigorously defend against any attempts, in court, to lessen his punishment for these heinous acts."
Responding, in turn, to Steven Blaney’s ill-advised comments, Dennis Edney said that the the Public Safety Minister "should read the ruling before making comments that he will fight any effort to reduce Omar Khadr’s sentence. As the ruling stated it is not about reducing Omar’s sentence but an issue about what type of prison he should be lodged in."
Lies and distortions, however, continue to typify the government’s attitude to Omar Khadr. As Colin Perkel reported for the Canadian Press in March, the government’s file on Khadr contains "faulty information" — a better description might be "bare-faced lies" — which was included a key memo drafted for the former Public Safety Minister Vic Toews by Liliane Keryluk, a senior policy analyst working for him.
The memo, which influenced the treatment Toews authorized for Khadr on his repatriation, was drafted in October 2011, and, as Perkel put it, went "even further than American military prosecutors."
In particular, her memo asserted that "Mr. Khadr engaged US military and coalition personnel with small-arms fire, killing two members of the Afghan militia force. He threw and/or fired grenades at nearby coalition forces, resulting in numerous injuries to them."
This is patently untrue. As Perkel noted, "Although someone inside the compound where Khadr was staying shot the two Afghans, nowhere in his signed admission, which was drafted by military commission prosecutors, is there any suggestion he personally killed them." He added, "While his confession does say American soldiers were hurt 'as a result of Khadr and his conspirators’ actions in the firefight,’ the only grenade prosecutors said he threw was the one that killed Sgt. Christopher Speer."
Perkel also noted that the memo contained an assertion, later repeated publicly by Vic Toews, that Khadr "conspired with [O]sama bin Laden, Ayman al-Zawahiri, Sheikh Sayeed al-Masri, Saif al-Adel, [and] Ahmed Said Khadr, who is Mr. Khadr’s father," and also claimed that he had "several known accomplices," including bin Laden and al-Zawahiri.
As Perkel explained, however, "While Khadr’s father was a bin Laden associate, and their families spent some holiday time together, American prosecutors never claimed the teen had direct operational contact with bin Laden or al Zawahiri, current leader of the Al-Qaeda terrorist organization, or that they were his accomplices."
As Dennis Edney explained, not for the first time, "There is no evidence whatsoever to support these false allegations." He added, "Even the Canadian government is aware these accusations are baseless, as it had a representative from DFAIT [the Department of Foreign Affairs, Trade and Development] present throughout the sham trial."
Dennis Edney is correct, of course, but as those of us know who have been studying Omar Khadr’s case for many years, truth and justice are irrelevant to the darker forces responsible for the treatment of prisoners in the "war on terror" that President Bush established eleven years ago, and whose pernicious influence continues to erode the moral authority not just of the United States, but of Canada as well.
Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the "Close Guantánamo" campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, "Outside the Law: Stories from Guantánamo" (available on DVD here – or here for the US).
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