There is no shortage of outrage and opinion going around after the public learned Canada has paid $10.5 million to confessed terrorist Omar Khadr. There’s a lot of half-truths and misinformation being thrown around,
Here are the Facts, the Politics & the Scandal. If you don't have time for a long read, skip to the end for the question Prime Minister Justin Trudeau must answer.
For those who don't already know: Omar Khadr is a Canadian citizen who, in 2002, was a 15-year old fighter for al Qaeda and/or the Taliban in Afghanistan. His father was a senior al Qaeda commander and associate of Osama bin Laden. Omar Khadr was involved in a battle against United States special forces in which US Army Sergeant Christopher Speer was killed and Khadr was mortally wounded. His life was saved by US medics, he was captured and spent 10 years in the US detention facility at Guantanamo Bay, Cuba – then three more years in a Canadian prison. He was released in 2015. It recently became known, through an unauthorized leak, that the Canadian government has apologized to Khadr and paid him $10.5 million.
If only Canada treated its veterans as well as it treats terrorists and traitors.
1. Khadr was a child soldier
When he was wounded in 2002, Omar Khadr was a child soldier. Some argue he wasn't, pointing to a a 1977 protocol (adopted by Canada) to the 1949 Geneva Convention that established 15 as the minimum age for recruitment and participation in hostilities. But, that protocol was not the last word on child soldiers. In 1990, Canada signed the UN Convention on the Rights of the Child and, in 2000, signed its Optional Protocol which set 18 years of age as the minimum age for "any person participating in hostilities and for recruitment..." There is no doubt, then, that Canada agreed in 2002 that a child soldier was someone under the age of 18.
So what? The protocols that define "child soldiers" impose a burden on signatories to not recruit child soldiers or, if they recruit soldiers under the age of 18 (as Canada currently does), not to employ them in combat. It does not impose a burden on anyone not to fight against child soldiers. That would be unworkable. If you accept Khadr was a child soldier, that may mitigate his culpability for his actions, or the punishment meted out for them.
But, even at home in Canada there are many examples of children being treated as adults for serious crimes. Canadian courts often sentence young offenders under the age of 18 to life sentences in prison for murder. Just last week, 19-year old Canadian Skylar Prockner was sentenced as an adult for murdering his 16-yr old girlfriend when he was just 16. In 2008, Justin Morrow was sentenced as an adult to life in prison for a murder he committed when he was 14. A Nunavut man was 16 in 2012, when he committed a murder: he was found guilty and sentenced as an adult to life in prison.
Even though Omar Khadr was a child soldier, it does not excuse his actions. It may, however, mitigate the consequences.
2. Khadr is not a murderer
He can't be. He was a soldier engaged in armed conflict on a battlefield when he was wounded and others, including Sgt Speer, were killed. Killing a combatant on the battlefield is not murder.
Still, Khadr "confessed" to killing Speer and pled guilty to "the war crime of murder" as part of a plea arrangement that enabled him to be repatriated to Canada. There is concern his confession was induced by "torture-like" interrogation methods and its broadly accepted that plea deals often result from less than wholehearted admissions.
But, if we start convicting soldiers of murder for everyone they kill in battle, we'll very quickly run out of soldiers. That's why we have international laws of armed combat.
3. Khadr is not a war criminal
There is no evidence Khadr committed a war crime. Those who argue he is a war criminal typically do so on the basis that Sgt Speer, who was killed, was a medic. These people misunderstand the laws of war. Sgt Speer appears to have been a special forces operator – a combat soldier – whose secondary specialty (all special forces team members have specialities) was as a medic. Like his teammates, Speer carried and used weapons and actively engaged in offensive combat action. When someone was injured and required medical aid, Speer was highly trained in combat medicine and provided that aid. Shooting or throwing grenades at Speer, in the course of a battle, was not a violation of the laws of war.
It is a war crime to intentionally or negligently target a non-combatant person, vehicle or facility on the battlefield including, and especially, any unarmed non-combatant(s) displaying the red cross or red crescent symbol. This does not describe Sgt. Speer, if he was a special forces operator, nor his role on the battlefield. In fact, Sgt. Speer was not in uniform or displaying a red cross when he was killed.
The fact Speer was armed is irrelevant. All Canadian and US military medics carry weapons and use them for their own defence – even if they are performing non-combatant functions.
Even if Sgt. Speer was a non-combatant, wearing a uniform displaying the red cross (not the case), the circumstances of his death still do not support a conclusion his death was a war crime. Coalition forces had bombarded Khadr's position extensively, causing enormous damage and great loss of life. So much, in fact, that US soldiers who fought alongside Speer to clear the compound were surprised anyone was left alive inside. There is no doubt that coalition forces were actively engaged in attacking the compound. They were, by every definition, combatants. Eyewitness accounts suggest the grenade that killed Speer was thrown while he and his team were entering and clearing a building. Photographs show Khadr buried under rubble in one room of the building. It is possible, even likely, Khadr threw the grenade that killed Speer from where he fell – in an adjoining room at the same time as, or immediately after, a US soldier shot dead another Taliban/al Qaeda fighter immediately beside Khadr. It was close-quarter combat. If Speer was a non-combatant, he should not have been present in the room at that time.
4. Khadr was not tortured
The suggestion Khadr was tortured is limited to evidence of coercive interrogation, involving sleep deprivation and stress-restraints. Many people may consider this to be "torture." I consider having to listen to my son's "Kanye" album while driving to be "torture." We're both wrong. There is a spectrum of interview techniques that begins with what we would all describe as very civilized discussion and ends with what we would all agree is brutal torture. Khadr's treatment, while a prisoner at Guantanamo, was somewhere on that spectrum. Whether, or not, it amounted to illegal torture is a matter of opinion and law. I do not believe sleep deprivation is torture, though it is unpleasant. Every soldier in every army everywhere has been subjected to sleep deprivation in training and on operations – none of them was tortured. Nor, do I think stress positions are necessarily torture, though they could be – dependent on the position and its duration. Torture is removing fingernails, cutting off fingers, electrocuting genitals, perhaps even waterboarding – intentionally inflicting pain.
If US interrogators followed the rule book laid out for them by the US Justice Dept., nothing they did will be legally considered torture. There is no evidence they did not.
5. Khadr should have been treated as a Prisoner of War
There is no doubt that the US, Canada and its coalition partners were waging war in Afghanistan with the Taliban and al Qaeda. There is no doubt Khadr was fighting for the Taliban and al Qaeda, against the US, Canada and the coalition. When he was captured, there is no doubt in my mind, he was entitled to the protections accorded to prisoners of war under the laws of armed conflict.
Some argue he was not entitled, because he wasn't fighting for a state, nor wearing a uniform. Bullshit. Canada and the US were fighting an organization – al Qaeda – not a state. The Taliban was the government of Afghanistan until 2001 – so its fighters were "state forces" in that regard, even if they may be classified as "irregular forces." The uniform of al Qaeda and the Taliban was the same as everyone else in Afghanistan: whatever clothes you had, possibly topped off with a black turban (if you were Taliban). Khadr was wearing the uniform of his peers.
Sgt. Speer and his special forces team were dressed the same way. Their mission that day had them wearing indigenous clothing, not US Army uniforms.
The US created a fantastical argument to classify its worst prisoners as "unlawful combatants" – a definition that stretches the imagination. It was always bullshit. These prisoners should have been treated as POWs. The US was wrong to do otherwise and Khadr may have legal recourse against the US in an appropriate court. The practical realities are such, however, that there is no appropriate court. Frankly, the loss of POW rights does not outweigh the evils of terrorism.
6. Khadr would not "have won in court anyway"
The argument Khadr "would have won in court anyway," or "would have won more money in court," is based on mistaken assumptions about the Supreme Court of Canada's rulings. There was not one ruling; there were several. The SCC ruled that Omar Khadr's Charter rights were violated in Guantanamo. I agree. But, they were violated by the United States – not by Canada. The SCC ruled it was wrong of Canada to send RCMP and CSIS agents to Guantanamo to interview Khadr, for them to share information from those interviews with the US, or to use information gleaned from the US which may be fruit of Khadr's loss of his rights. On this, I will not attempt to dispute the court's interpretation of Canadian law.
However, the SCC also ruled the Government of Canada had no duty to advocate for the release of Khadr from US custody. The court felt such advocacy was a matter of foreign policy and in the proper domain of politics and government. So, if the court ruling is evidence of any "guilt" on the part of the Canadian government, it is limited to sending investigators in suits and ties to talk with Khadr in Guantanamo. No doubt, those meetings were the most pleasant part of Khadr's days in that prison. The remedy due Khadr for the violation of his rights was freedom. He has that. If further punitive compensation is appropriate, then the amount of that compensation must be weighed by the court.
The case of Maher Arar is oft-cited as a precedent for paying $10.5 million to Khadr. But, if anything, it's a precedent that argues the compensation owed to Khadr should be much less. Consider the two cases:
- Maher Arar was a completely innocent man, abducted by the US with the active assistance and encouragement of the Canadian government and sent to Syria where he was, by anyone's definition, brutally tortured. Canada was guilty. Arar was innocent. For that wrongdoing, Canada paid Arar $10.5 million.
- By his own admission backed up by overwhelming evidence, Omar Khadr was a terrorist actively engaged in combat with US, Canadian & Coalition forces. Those forces saved his life. The Canadian government requested his release, was rebuffed by the US, then sent people to interview him. Ultimately, the Canadian government was able to repatriate him to Canadian custody and then released him from prison. And he gets the same award as Arar? That is a travesty of justice.
Even if Minister of Public Security Ralph Goodale is correct and the government would, ultimately, have been ordered by a court to pay Khadr significantly more than $10.5 million – I believe it would be worth the fight. The principles of justice must be seen to apply here. A recent survey by Angus Reid suggests most Canadians agree with me. Better a court weigh all the facts, apply the law and decide that Khadr should be rewarded for his crimes – than our politicians conspire behind closed doors to enrich a terrorist.
So what? This is a government that runs $30 Billion deficits because they feel it's important to do what's right, no matter the cost. Not this time, apparently. It's also a government that (along with the previous Conservative government) continues to fight its own veterans in court over how much veterans benefits should cost – the same Canadian veterans Khadr was actively fighting to kill. If only Canada treated its veterans as well as it treats terrorists and traitors.
7. Khadr is a free man
Valid or not, coerced or not, just or not, Khadr was sentenced in 2010 by a lawful US court to eight years in prison for "the war crime of murder." If he had served the entire sentence, after it was impose, he would be eligible for release without parole in 2018. In Canada, though, he would be (and was) eligible for release after serving 1/3 of the sentence – or 32 months. He would be out by now, regardless.
Add in the fact he was in custody, under the maximum imaginable security, from his capture in 2002 until being transferred to a Canadian prison in 2012 – 10 years. He remained in a Canadian institution until 2015, when he was released on bail.
Guilty or not – Khadr is, today, entitled to his freedom.
8. Khadr does not deserve an apology
I don't believe Khadr is owed an apology from Canada. Canada did nothing wrong – barring what is, essentially, a technical issue related to his questioning by Canadian authorities. If we were to apologize for anything, that should be it: "Sorry, Omar, we shouldn't have talked to you in Guantanamo."
9. Khadr doesn't deserve to be enriched
Khadr was a terrorist. He fought against his own country. He was grievously wounded and would have died on the battlefield if the US Army hadn't saved his life. He's a lucky man.
Khadr should have been tried for treason – the act of taking up arms against his own nation. He wasn't. He's a lucky man.
Khadr should have been treated as a Prisoner of War – a prisoner of the war on terror, which is not yet over. POWs are normally detained until the end of the war. He wasn't. He's a very lucky man.
Under no circumstances does anyone owe him a life of riches for taking arms against his own country.
You and I were never supposed to know about this $10.5 million payout. It was supposed to remain secret, under the terms of the deal agreed to by Khadr and the government. But, someone leaked it.
Fortunately for the Trudeau government, the information leaked in the summer doldrums of 2017 when they might have hoped people were not paying attention (Oops! They were) and not, say, just before the next federal election when people would still remember it at the ballot box. Trudeau's a lucky man. And, by what I am *cough* certainish was purely a fluke of coincidence, it leaked while the Prime Minister was out of town. Trudeau's a very lucky man.
Surprised by the overwhelming, negative attention this deal has gotten, the Trudeau government appointed battle-tested bulldog Ralph Goodale as its point man. Under attack from the Conservative Party, Goodall tried to argue "The Harper government could have repatriated Mr Khadr, or otherwise resolved the matter. They didn't." No doubt, Mr. Goodale has forgotten the long political history of the Khadr case. To remind him:
- 1996 – Liberal Prime Minister Jean Chretien appealed personally to Benazir Bhutto, Prime Minister of Pakistan on behalf of Ahmed Khadr, an Egyptian citizen, Canadian resident and Omar's father. The elder Khadr was charged with terrorism and on a hunger strike in a Pakistani prison hospital. Bhutto acceded to Chretien's request, Khadr was released and returned to Canada. Chretien took a victory lap in the media.
- 1997 – Ahmed Khadr's stay in Canada was brief; he soon returned to Pakistan with his family (including Omar) and renewed his work as a senior al Qaeda commander and close associate of Osama bin Laden. Oops! Turns out, Pakistan was right: Ahmed Khadr was a real terrorist.
- July 27, 2002 – US Sgt. Christopher Speer is killed in combat in Afghanistan. Omar Khadr is wounded in the action, US army medics save his life and he is taken prisoner.
- 2002-06 – Once bitten, twice shy, the Liberal government is not that keen on intervening on the younger Khadr's behalf. They meekly ask the US not to send him to Guantanamo. The US sends him to Guantanamo. The Liberal government does little or nothing else to secure his release for the rest of their time in government.
- 2003 – The Liberal government does, however, send CSIS and RCMP investigators to interview Omar Khadr in Guantanamo. In 2005, the Supreme Court of Canada rule this violated the younger Khadr's rights.
- 2004-15 The new Conservative government of Stephen Harper continues to do nothing to help Khadr. Eventually, they are pressed by the US to repatriate him, as the new Obama presidency looks for ways to dispose of the Guantanamo prisoners and close the prison. Khadr returns to Canada in 2012 and is released on bail in 2015.
- 2008 – SCC rules Canada should not have shared information with the US about Khadr.
- 2010 – SCC rules Canada was not obligated to repatriate Khadr.
- 2012 – Khadr returns to Canada.
- 2015 – SCC rules Khadr was sentenced as a young offender. He is released on bail. The Liberals form government again.
- 2017 – The Liberal government agrees to a secret deal to pay $10.5 million to Omar Khadr. Canadians are upset. The Liberals try to blame it all on the Conservatives.
The real scandal in all this is not, "should Canada have paid $10.5 million to Khadr?" Nor, is it "would we have had to do so anyway?" The real scandal is that The Government of Canada agreed to make a secret payment to Omar Khadr.
Why did Prime Minister "Sunny Ways" Justin "New Era of Transparency and Accountability" Trudeau agree to hide this from Canadians?
It's clear why Omar Khadr wanted the windfall payout to be secret: in 2015, a US court ordered him to pay $134.2 million to the family of Sgt. Christopher Speer. You may or may not like that judgment. I may or may not like the Supreme Court of Canada's judgment that Khadr's rights were violated. But, these are both decisions taken by lawfully constituted courts in mature democracies operating under the rule of law.
Of course, the family had no expectation of seeing much, if any, of that $134 million, because Khadr was broke. He's not broke anymore. But, boy, wouldn't it be nice if no one knew that? Of course, Khadr was going to ask to be paid in secret.
But, why would Justin Trudeau agree to that? How does it serve the interests of Canada to conspire with Omar Khadr to hide his new wealth from a US judge?
Answer me that, Mr. Prime Minister.