Obama: End of Guantanamo and Good News for Omar Khadr

By: Lawrence Gridin · January 12, 2009 · Filed Under Criminal Law, Ethics, International Law, Politics · Add Comment

125px-sumya8 I have previously expressed my shame at the Canadian Government’s failure to follow the example of every other Western nation in demanding the repatriation of our citizen at Guantanamo Bay.

The advocacy in favour of Omar Khadr’s return to Canada has come from many circles. The calls have come from Sen. Romeo Dallaire, UNICEF, Amnesty International, and the Canadian Bar Association, among many others. Most consider Khadr to be a child soldier, and consider his detention and the military tribunal process to be a violation of the rule of law.

This choir of voices has finally reached a crescendo. I have good news to report.

President-elect Barack Obama has signalled his intention to close Guantanamo Bay forever – and he intends to do it soon.

In an interview with ABC’s “This Week,” Obama said:

I don’t want to be ambiguous about this. We are going to close Guantanamo and we are going to make sure that the procedures we set up are ones that abide by our Constitution.”

Reuters is reporting that Obama intends to close the prison perhaps within his first week after taking office:

“There is going to be an executive order on closing down Guantanamo,” the adviser told Reuters, adding the move would probably be made during Obama’s first several days in office.

What this means for Omar Khadr remains unclear. It will no doubt take time before the prison can be closed and its inmates transferred to face trial elsewhere. Most likely, this will mean an end to the military tribunals, which were denounced by the U.S. Supreme Court, in favour of domestic trials in U.S. Federal Court.

Stephen Harper, meanwhile, remains staunchly committed to leaving Khadr to be dealt with by the Americans, whether or not their process violates the rule of law. This is in spite of serious concerns raised by his own government lawyers. Harper is unsure of whether Obama’s announcement will substantively affect Khadr, but he remains defferential:

“The promise that president-elect Obama made was that he would close down the facilities at Guantanamo. That’s primarily, as I understand it, because of the objection to the fact that many of the people at that facility aren’t charged with anything,” he told reporters in Vancouver.

“I don’t think you can necessarily leap to the conclusion that it will affect people who have in fact been charged, and who are facing a legal process.”

According to Canada’s Foreign Affairs Department officials who visited Omar Khadr several times, he is described as:

“an intelligent, humorous 21-year-old who is liked by his American captors and remains ’salvageable’ if not allowed to languish in the U.S. offshore prison.”

One thing is clear: Omar Khadr’s languishing in that deplorable offshore prison will soon be at an end.

Post tags: detainee, detainee abuse, guantanamo bay, harper, khadr, military tribunal, omar khadr, Stephen Harper, terrorism

International Law Conference Tackles Tough Contemporary Issues

By: Contributor · October 25, 2008 · Filed Under International Law · Add Comment

By Daisy McCabe-Lokos of Windsor Law.

The Canadian Council on International Law held their 37th annual conference last weekend in Ottawa. The conference ran three days and showcased a range of panels discussing a variety of issues.

I was surprised to see that a significant portion of the attendees were students from law schools across Canada. This being my first chance to attend I am unsure whether this student turnout was unprecedented, however it seemed to indicate to me the increasing relevance of international legal issues in young law students’ educational experiences.

The conference not only gave us a chance to get a sense of the professional opportunities that exist in the international sphere, but it also gave us a snapshot of the developing fields of contemporary international law.

The panel that I found most enlightening was entitled “Law Applicable to Overseas Government Operations”.

It was chaired by John Currie – Associate Professor, Faculty of Law, University of Ottawa, and attended by Paul Champ - Raven, Cameron, Ballantyne and Yazbeck LLP; Oonagh Fitzgerald – Senior General Counsel, Department of National Defense/Canadian Forces Legal Advisor; Joanna Harrington – Associate Professor, Faculty of Law, University of Alberta; Major General Lewis Mackenzie (retired); and Christopher Waters – Assistant Professor, Faculty of Law, University of Windsor.

The panel discussed the applicability of law – national and international – to international government operations. Much of the focus was on the debatable “hierarchy” of law present during overseas military operations.

The panel touched on questions such as – do and should Canadian Charter values and obligations follow our armed forces on international operations? Should the Canadian military be more susceptible to civilian oversight?

Professor Waters explored the courts’ deference to the military regarding issues of possible misconduct. He discussed the reluctance of Canadian, American and British courts to rule on the actions of their militaries that might be seen as conflicting with Charter values or other obligations to respect international human rights.

Paul Champ gave us a practical example how some of these issues play out by discussing the Afghan detainee case. This case deals with individual’s allegations of torture after being transferred (in Afghanistan) from the custody of Canadian military officials to the custody of Afghan military officials – where the alleged torture occurred. The complications of legal jurisdiction and civilian oversight of military operations are evident under these circumstances.

Major General Lewis Mackenzie provided a completely refreshing albeit troubling perspective.

Having been involved in numerous peace keeping and military operations with the Canadian Military, General Mackenzie was able to enlighten us civilians on exactly how the international legal initiatives sometimes pan out on the ground.

He clearly articulated his frustration with the sometimes impractical and unreadable legal mandates provided by the United Nations during peacekeeping operations. He expressed his concern about the bureaucratic and sluggish nature of legal process and its negative impact on the progress of UN missions and the ultimate safety of non-combatant civilians.

Overall the panel was balanced and informative. There were contrasting viewpoints and a variation of experience among speakers. Many of the other panels held by the CCIL were similarly enjoyable and did not disappoint.

Post tags: afghanistan, Canadian Council on International Law, charter, conference, Daisy McCabe-Lokos, detainee, detainee abuse, International Law, torture, war on terror

Review: Taxi to the Dark Side

By: Lawrence Gridin · July 29, 2008 · Filed Under Civil Rights, Criminal Law, International Law, Reviews · 1 Comment

This past week, I had the opportunity to check out the Oscar-winning detainee torture documentary Taxi to the Dark Side.

The film was written and directed by Alex Gibney, of Enron: The Smartest Guys in the Room and Who Killed the Electric Car? fame.

Taxi’s title refers to a young Afghan cab driver named Dilawar, whose plight was made public several years ago in a series of articles written by Tim Golden for the New York Times.

Shortly after picking up a fare in the eastern province of Khost, Dilawar was stopped by Afghan militiamen at a checkpoint. He and the three men he was chauffeuring were accused of being responsible for rocket attacks on an American army base in the region.

With nothing more than the word of the militiamen as evidence against them, the four were handed over to the American forces at Bagram detention center.

The men were questioned by poorly-trained interrogators that were given deliberately vague guidelines as to the kinds of techniques that they were allowed to employ.

Dilawar was handcuffed and chained to the ceiling of his small cell in a standing position, so that he could not fall asleep. The sleep deprivation was aimed at making him more pliable during interrogation.

The guards at Bagram believed they were explicitly authorized to use force to control detainees. It was thought that they were not allowed to strike the prisoners above the waist, but they were allowed to deliver strikes to pressure points in the legs in order to facilitate compliance. Guards were not impressed with Dilawar’s cries and pleas for help. They would take turns kneeing him in the thigh until they grew tired.

“He screamed out, ‘Allah! Allah! Allah!’ and my first reaction was that he was crying out to his god,” Specialist Jones said to investigators. “Everybody heard him cry out and thought it was funny.”

Other Third Platoon M.P.’s later came by the detention center and stopped at the isolation cells to see for themselves, Specialist Jones said.

It became a kind of running joke, and people kept showing up to give this detainee a common peroneal strike just to hear him scream out ‘Allah,’ ” he said. “It went on over a 24-hour period, and I would think that it was over 100 strikes.”

(Source: New York Times)

After five days of torture, Dilawar died. He was killed by heart failure due to “blunt force injuries to the lower extremities.” The army pathologist who examined him ruled his death a homicide.

the tissue in the young man’s legs “had basically been pulpified.”

“I’ve seen similar injuries in an individual run over by a bus,” added Lt. Col. Elizabeth Rouse, the coroner, and a major at that time.

(Source: New York Times)

When public scrutiny finally fell on the case several years after Dilawar’s death, the military was forced to lay charges. The toughest sentence imposed for the torture and murder of Dilawar was 5 months. Two of the soldiers responsible received sentences of two and three months, respectively. None of the other guards who were convicted in the Dilawar case received any jail time at all. Furthermore, to my knowledge, none of the officers giving the orders, let alone the administration officials who drafted the policies permitting detainee abuse, were ever prosecuted.

Since detainees were denied the fundamental right of habeas corpus, they had no way to challenge their detention. It was later discovered that the Afghan militia leader who turned the four men over to U.S. authorities had himself been launching rockets at the American base. He had been arresting and turning in innocent Afghan civilians to curry favour with the Americans.

Even more frightening, it was later discovered that Dilawar’s captors believed he was innocent from the start:

“Most of the interrogators had believed Mr. Dilawar was an innocent man who simply drove his taxi past the American base at the wrong time.”

(Source: New York Times)

The three occupants of Dilawar’s car were eventually released; it was of course too late for Dilawar.

He was one of the first prisoners to die in U.S. custody since the beginning of the War on Terror. He would not be the last.

While the taxi driver’s tragic tale sets the stage for the film, it is not the central focus. Dilawar becomes the anchor of a story that takes us all around the world from Bagram detention center in Afghanistan, to Abu Ghraib prison in Iraq, to Guantanamo Bay in Cuba, and finally all the way up the chain to the Oval Office in Washington.

Taxi to the Dark Side persuasively argues that the atrocities at Abu Ghraib and elsewhere were not the product of a “few bad apples.” Rather, the policies and attitudes that led to detainee abuse were implicitly and sometimes explicitly authorized at the highest levels of the Bush administration.

While the story has certainly been told before, Gibney has a talent for piecing it together succinctly and logically. That, coupled with the fact that the director managed to actually score interviews with Dilawar’s interrogators and abusers, makes this documentary an absolute standout.

I would highly recommend this film to anyone interested in the subjects of criminal law, the “war on terror,” war crimes and atrocities, and international law. While I think that any lay person with even cursory interest in the above subjects would find it disturbing, thought-provoking, and fascinating, the law student will appreciate it on a deeper level.

Trailer

Post tags: afghanistan, detainee abuse, dilawar, geneva conventions, taxi to the dark side, war crimes, war on terror

Omar Khadr Video Round-up

By: Lawrence Gridin · July 16, 2008 · Filed Under Civil Rights, Criminal Law, Ethics, International Law, Politics · 3 Comments

Early yesterday morning, the Canadian government, in compliance with court orders, released a video of Omar Khadr’s interrogation by Canadian Security and Intelligence Service agents at Guantanamo Bay, Cuba. The video, which is the first ever seen of CSIS agents in action, is already making waves internationally. Within hours of the release, front-page headlines were sparked everywhere from The New York Times to the BBC to Al Jazeera.

I can only hope that all of this international coverage will bring more pressure to bear on the Canadian government to step up and do something to protect this young man from the torture he faces in Guantanamo Bay. Canada must request Omar Khadr’s repatriation so that he can face trial in this country.

Below I have collected a number of videos relating to Omar Khadr:

The Interrogation Video

“Before the rage, the resignation and the tears, came the trust. Teenaged prisoner Omar Khadr seemed sure that his countrymen from Canada had come to Cuba to help him and spoke freely when they asked questions. On the second day, the reality almost visibly dawned on his face.

… Much of the material released shows Mr. Khadr — who is wearing an orange uniform — sobbing and repeatedly saying, in a moan, “Help me, help me.”

(The Globe and Mail)

Here is a short segment of the 8-minute interrogation video that has been released to the public so far. The full 7-hour video of the interrogation is scheduled for later release by the Canadian government. The audio quality is quite poor, but if you click the link to view the video at YouTube, you will find captions of the exchange.

There is no evidence of torture on the videotape, but it is reported that:

“Documents made public last week show that Mr. Khadr was subjected to weeks of sleep deprivation by U.S. military officials before being interviewed by Canadian officials, and that the Canadians were aware of the sleep deprivation.” (The Globe and Mail)

Opposition Parties Demand Action

On May 26, 2008, the NDP MP from Windsor-Tecumseh, Joe Comartin, challenged the government to respect the findings of torture by the Supreme Courts of Canada and the United States and to demand Khadr’s return:

On June 13, 2008, the Liberal MP from Davenport, Mario Silva, questioned the government as to how much longer it would sit on its hands and do nothing to repatriate Khadr:

Romeo Dallaire Weighs In

Arguments at the Supreme Court of Canada

In May of this year, the Supreme Court ruled on the (il)legality of withholding disclosure from Khadr’s defence team. The SCC’s ruling in Khadr is what precipitated the release of the interrogation video above.

In Canada (Justice) v. Khadr, 2008 SCC 28, the court ruled that the Canadian Charter of Rights and Freedoms has some limited application outside the borders of this country. A thorough analysis of the judgment can be found at The Court, Osgoode Hall’s blawg.

Below is a video (unfortunately, quite short) of some of the arguments made before the Supreme Court in that case: