RSS FeedSecret evidence
Lifting the cover on Canada’s spy files
Michelle Shephard writes for the Toronto Star:
But beyond answering questions that have lingered for years about Khadr’s case, John’s testimony was a remarkable example of how the Canadian Security Intelligence Service is being forced into public.
“There really has been a paradigm shift in what is being disclosed and what’s not,” noted Toronto lawyer Lorne Waldman, who represented Maher Arar during a multi-million dollar federal inquiry.
Jameel Jaffer of ACLU is a Canadian!
Today’s Toronto Star profiled a Canadian lawyer who has taken on the Bush Administration through the ACLU, and was key in helping discover the torture memos.
Jameel Jaffer, only 39 years old, was born in London, Ontario, before graduating from Williams College, Cambridge University, and Harvard Law School and serving as a law clerk to Hon. Amalya L. Kearse, United States Court of Appeals for the Second Circuit, and the Rt. Hon. Beverley McLachlin, Chief Justice of Canada.
What makes Jaffer unique is that he was co-lead counsel for ACLU v. Department of Defense, which released thousands of documents about prisoner abuse in Iraq, Afghanistan, and Guantánamo Bay.
He was also lead counsel in Doe v. Ashcroft, which challenged National Security Letters (NSLs) under the PATRIOT Act, and counsel in MCA, et al. v. Ashcroft and Mueller, challenging the “chill” in donations to mosques as a result of the PATRIOT Act.
Jaffer might just be the Canadian who has done the most for civil rights in the U.S. during this crucial time, and should probably be better recognized and celebrated in his home country.
Here’s a clip from him via the ACLU:
Government loses again in Khadr case
Ottawa must seek Khadr’s return: Court
The Federal Court of Appeal ruled today that the government offered no compelling reasons why it should not comply with an order to request that Khadr, 22, be repatriated to Canada.
Government argued that foreign policy is its exclusive prerogative. The court held that a court’s order to ask for Khadr’s repatriation is a “relatively small intrusion into the conduct of international relations.”
Omar Khadr’s Guanatanamo Trial Suspended!
It’s over!
For now, anyway.
Staying true to his promise, Barack Obama has made it one of his first official acts as President to request a suspension of the military tribunal process in Guantanamo.
Omar Khadr is the first beneficiary of the directive. His “trial” was suspended this morning.
The suspension will last for 120 days so that the government can explore alternatives.
The legal maneuver appears designed to provide the Obama administration time to refashion the prosecution system and potentially treat detainees as criminal defendants in federal court or have them face war-crimes charges in military courts-martial. It is also possible that the administration could re-form and relocate the military commissions before resuming trials.
…
President Obama has acknowledged in recent interviews that shutting the facility is likely to be prolonged and complex. And the administration now faces a number of potentially daunting challenges to following through on the president’s campaign promise. Obama is expected to sign an executive order soon that will lay out in detail his plan to empty the facility.
(source: Washington Post)
The military tribunal process has been roundly criticized by human rights groups, lawyers and lay people alike as a violation of the rule of law.
In his inaugural address, Obama spoke these inspiring words, which I leave you with:
Recall that earlier generations faced down fascism and communism not just with missiles and tanks, but with the sturdy alliances and enduring convictions. They understood that our power alone cannot protect us, nor does it entitle us to do as we please. Instead, they knew that our power grows through its prudent use; our security emanates from the justness of our cause, the force of our example, the tempering qualities of humility and restraint.
We are the keepers of this legacy. Guided by these principles once more, we can meet those new threats that demand even greater effort – even greater cooperation and understanding between nations.
Law Students Demand Repatriation of Omar Khadr
Hundreds of law students from across the country have added their names to the growing list of people calling for the repatriation and fair trial of Omar Khadr, as well as the closure of the Guantanamo Bay detention facility where he is currently held.
Canadian law students created the Omar Khadr Project last fall, pursuing the goal of repatriation and fair treatment for Omar Khadr. The organization is composed of law students and young lawyers from across the country who believe that respect for human rights is a fundamental Canadian value.
In May 2008, the Supreme Court of Canada unanimously found that the conditions under which Omar Khadr was being detained “constituted a clear violation of fundamental human rights protected by international law” (Canada (Justice) v. Khadr, 2008 SCC 28, at para 24.)
The Court found that Canada’s participation in Khadr’s case breached our own obligations under the Canadian Charter of Rights and Freedoms and the Geneva Conventions.
Below is a press release (abridged) sent to us by the Omar Khadr Project discussing the strategies that the group has been pursuing.
Canadian Law Students Take Actions Calling on Harper, Obama to Ensure Repatriation of Omar Khadr, Closure of Guantanamo Bay
This week, the Omar Khadr Project launches a series of actions calling on Prime Minister Stephen Harper and President-elect Barack Obama to ensure Khadr’s repatriation as a key step in the closure of the illegal Guantanamo Bay detention centre.
It is expected that one of President-elect Obama’s first executive actions will be to begin shutting down Guantanamo Bay. But, “the looming questions for Omar Khadr,” explains Project member Kate Oja, “are whether the new President will act in time to stop Omar’s deeply flawed ‘trial’, and whether Prime Minister Harper will agree to bring Omar back to Canada.”
This week, the Omar Khadr Project joins with groups across Canada, the U.S. and beyond to put pressure on both Canadian and American governments to act quickly in the spirit of justice. We are launching 4 actions:
- Hundreds of law and articling students signed a petition calling on the Canadian government to repatriate Omar Khadr and protect his human rights. The petition will be officially presented to Parliament once it resumes.
- A letter was written to President-elect Obama to draw his attention to the urgency and injustice of Khadr’s case.
- As a Christmas present, and in honour of the 60th anniversary of the UN Declaration on Human Rights, the Omar Khadr Project sent Prime Minister Harper, the Minister of Foreign Affairs and the Minister of Justice copies of a children’s picture book on basic human rights, emphasizing sections on fair trial rights and the rights of the child.
- On Saturday 17 January 2009, a rally is being held outside the U.S. Consulate in Toronto, along with Amnesty International, the Coalition to Repatriate Omar Khadr, and other
supporters.
Omar Khadr, a Canadian citizen detained at age 15, remains the only national of a Western country to be held at Guantanamo. His trial before the internationally-condemned military commission system is scheduled to begin on January 26th, just 6 days after Obama’s inauguration.
Note: Law students interested in assisting Khadr’s legal defence team can contact us for more information.
Obama: End of Guantanamo and Good News for Omar Khadr
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.”
One thing is clear: Omar Khadr’s languishing in that deplorable offshore prison will soon be at an end.
CBA Joins Fight to Repatriate Omar Khadr
The Canadian Bar Association has announced that it is joining with a number of other agencies to fight for the repatriation of Omar Khadr to Canada.
Omar Khadr, a 15-year-old boy at the time of his capture in Afghanistan, has been languishing in Guantanamo Bay since 2002.
Though the CBA has spoken out against Omar Khadr’s detention in the past, and has joined with other groups to call for the closure of Guantanamo Bay entirely, the Association has made the repatriation of Khadr one of its top priorities for this year.
In a statement to the House of Commons International Human Rights Subcommittee, the Bar Association explained that:
“Our commitment to justice is challenged where the individual is unpopular and accused of terrible crimes. It’s at times like this that we must speak out, and defend those rights. This is what the rule of law requires – that we recognize the rights of all, not just the favoured few.”
The CBA represents about 37,000 lawyers and law students across this country.
Follow-up: Reply Letter from Foreign Affairs Minister regarding Omar Khadr
On July 15, I posted a letter that I had written to Prime Minister Stephen Harper regarding Omar Khadr’s continued detention at Guantanamo Bay, Cuba.
The letter was signed by myself and 10 other law students.
On September 16, 2008, I received a reply letter from the Prime Minister’s Office indicating that the letter would be passed along to the Minister of Foreign Affairs who would “certainly be interested in [our] views” regarding Omar Khadr.
I looked upon that letter as a Prime Ministerial brush off. I thought it would be the end of the matter.
To the government’s credit, I today received a follow-up letter from The Honorable David Emerson, Minister of Foreign Affairs.
The entire text of the letter is reproduced below:
September 24, 2008.
Dear Mr. Gridin and Co-signatories:
The office of the Right Honourable Stephen Harper, Prime Minister, has forwarded to me on September 16, 2008, a copy of your letter (Folder: 664583) concerning the case of Mr. Omar Khadr, Canadian citizen detained at the U.S. military prison at Guantanamo Bay, Cuba.
I understand your concerns and I can assure you that the Government of Canada has an interest in Mr. Khadr’s case and in his treatment. Canadian observers have been present at his hearings before the Military Commission in Guantanamo Bay and the Court of Military Commission Review in Washington D.C. Furthermore, officials of Foreign Affairs and International Trade Canada have carried out several visits with Mr. Khadr and will continue to do so. The visits allow access to Mr. Khadr to assess his welfare and treatment, and to obtain information about his mental and physical condition.
Although Mr. Khadr is no longer a juvenile, he was 15 years old when he was alleged to have committed crimes in Afhanistan. Canada has sought to ensure that the treatment of Mr. Khadr is consistent with internationally recognized norms and standards for the treatment of juvenile offenders, and that his age at the time the alleged events occurred is considered in all parts of the process. Canada has also consistently sought to ensure that Mr. Khadr receives the benefits of due process, including access to Canadian counsel of his choice. The Canadian government has received unequivocal assurances from U.S. authorities that Mr. Khadr will not be subject to the death penalty, and indeed the charges against him were referred to the Military Commission on a non-capital basis.
In keeping with Canada’s long-standing policy, the Canadian government strongly believes that the fight against terrorism must be carried out in compliance with international law, including established standards of human rights and due process.
With respect to Mr. Khard’s repatriation to Canada, it is premature to discuss this issue since his case is still before the courts.
Thank you for taking the time to write and share your concerns.
Sincerely,
[sgd]
The Honourable David L. Emerson, P.C., M.P.
While I do appreciate the reply from Mr. Emerson, I do not accept that the government is doing enough.
Omar Khadr has been in detention for 6 years. The “several visits” during this period to check up on his well being are virtually meaningless. He has been the victim of serious psychological and possibly physical abuse at the hands of his captors.
The extreme isolation of growing up inside a military prison is unimaginable. Omar Khadr’s development from a child to an adult has been stifled, and at this point, it is unlikely that he will ever be a normal, adjusted individual.
The assurances of due process are also hollow. Omar Khadr is being tried by a kangaroo court, in proceedings that have been the subject of problems and numerous complaints. Most recently, a military prosecutor at the Guantanamo Bay tribunals resigned over “ethical qualms.”
Lt. Col. Darrel Vandeveld quit, allegedly after the government withheld exculpatory evidence from the defence.
The U.S. government denies this allegation. But internal documents obtained by the Associated Press indicate that Col Vandeveld declared to the tribunal that that “potentially exculpatory evidence has not been provided.”
He is the fourth prosecutor to quit.
In the Khadr case specifically, there have been claims that the government “manufactured evidence” against the accused.
The culture of secrecy and political implications of this case are reasons why ultimately, the military tribunal is not the appropriate forum to hear Omar Khadr’s case. Mr. Khadr needs to be repatriated to Canada immediately to face trial at home. This should be a trial subject to Canadian legal protocols and consistent with the values that we hold dear, including those enshrined in the Charter of Rights and Freedoms.
Law students across the country are organizing to put further pressure on the government on this issue. Stay tuned for more.
Omar Khadr: A Hero of Canadian Values?
by Hicham Safieddine and Diana Younes
Development of violence among the colonized people will be proportionate to the violence exercised by the threatened colonial regime
Frantz Fannon
A lot of ink has and is being spilled on upholding the legal rights of Omar Khadr in the face of the American extra-legal war on terror. Khadr has to come home to save and serve our Canadian values the argument goes. In essence, this discourse seems to be not about Omar Khadr, but about Canadian values.
It is the country’s conscience that is hurting, not the body of the accused. It is the Canadian government’s authority and international reputation that is being violated, not the humanity of the accused.
It is our sensibilities for due process and fair trial that are under attack, not the sanity and dignity of the accused. For supporters and opponents alike, bringing Khadr back or keeping him at Guantanamo is about one thing: saving our values, not his life.
We talk about what these values are, but we leave out the values of those we constantly claim to empathize with, values ascribed today to the realm of radical or imagined politics but that are in fact enshrined in international law[1], which we uphold in the highest regard: the right of all peoples to fight for self-determination against colonial domination and alien occupation and to carve out their own path to economic, social and cultural development; the moral duty of all nations to eradicate the evil of colonization and alien subjugation.
If we really support those universal values, then we need to possess the moral courage to accept the cost in practical terms- a cost that Canada was more than willing to pay when its own or its allies’ rights were threatened.
A right to self defense means in practical terms a right to carry arms and a right to counter violence with violence. For the same violence inflicted by occupying powers (invited by colonially-instituted puppet regimes or not) will be claimed by the occupied. From the legitimacy of the law of war that endows people to put trust in their armed forces and the necessity at times of armed conflicts, Canadians should understand if not accept the violence inflicted against their or their allied troops at war. Canadian troops do what they are told, we are constantly reminded. “Enemy” troops are no different.
Omar Khadr, 15 years old or 45, was doing what he was told and possibly what he believed to be defending an occupied land. And yet, he is denied Prisoner of War status, something even Nazi foot soldiers were not. He is charged with murder; a crime constantly committed by American and Canadian troops in Afghanistan[2]. Under The Hague Regulations and Protocol I additional to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts,
Khadr is entitled to POW status for a reason, he is classified as a soldier or belligerent. But we do not want to think of Khadr as a soldier (let alone a child), and all the universal values attached to that label regardless of the side one is fighting against. The same way we would rather stick to a debate about some values and not others, and ultimately in isolation of the person in question or his alleged actions.
This is how drastic the debate has shifted in Canada away from what this war is all about and into the abstract sanitized space of moral values and legal rights. And that should not come as a surprise; given that the debate is not about Khadr, but rather about our ….values.
[1] United Nations General Assembly, Resolution 1514 adopted in 1960, which all countries are obliged to respect.
[2] Human Rights estimates dozens of children killed by ISAF since the invasion of Afghanistan.
Omar Khadr Video Round-up
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.”
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:
Letter to Harper regarding Omar Khadr
Below is a letter that I have written to Mr. Harper to protest the Canadian government’s treatment of Omar Khadr, one of its citizens. If you are not familiar with the story, you can find some excellent background at The Globe and Mail.
credit where credit is due: I received assistance from the staff of this blawg, but because this letter does not necessarily reflect their views, I have respected their wishes and not added their names.
A Letter to the Right Honourable Stephen Harper
Office of the Prime Minister
80 Wellington Street
Ottawa K1A 0A2
Dear Mr. Prime Minister Harper:
Re: Repatriation of Omar Khadr
I am writing to you to ask that you immediately issue a request to the relevant American authorities to have Omar Khadr repatriated to Canada.
Facts bearing on the problem:
- Omar Khadr holds Canadian citizenship;
- he was a minor at the time of his detention by American authorities;
- he has been detained at Guantanamo Bay since 2002;
- during his six years in custody, Omar Khadr has been denied habeas corpus and the due process of law; and,
- he has been subjected to, at the very least, psychological abuse amounting to torture.
The right of any person to be presumed innocent until proved guilty is fundamental to our justice system and is a principle embodied in our constitution. Thus, Mr. Khadr is an innocent Canadian citizen being tortured at the hands of the American authorities.
In addition, a number of incidents have exacerbated the situation further. Military interrogators have been caught destroying important evidence. And alternative reports have indicated that Khadr was not alone at the time of his capture, undermining the assumption that he was directly responsible for any deaths.
Ultimately however, the question of Mr. Khadr’s guilt or innocence is not relevant to whether Canada should request his repatriation. This is a question of Canada’s prestige and credibility on the international stage. Canada remains the only industrialized nation that has failed to intervene on behalf of its citizens.
There is no benefit to be gained from allowing Mr. Khadr to remain in American custody. There would be no diplomatic cost to requesting repatriation. The United States has explicitly indicated its willingness to hand over Mr. Khadr should Canada issue a request.
Conversely, the costs of failing to act are significant.
By failing to take action, when all that would be required to put an end to Mr. Khadr’s torture is a simple diplomatic request, Canada is being complicit in the gross violation of the basic human rights of one of its citizens.
In 1948, Canada became a signatory to the Universal Declaration of Human Rights. It is a source of great national pride that a Canadian, John P. Humphrey, was the principle drafter of the Declaration. Because of our extensive history of contributions to the field, Canada has been recognized as a worldwide leader in human rights.
Our policy with respect to Omar Khadr is a tarnish on this international reputation. Our inaction is interpreted by the international community as a silent endorsement of the activities at Guantanamo, including controversial acts of torture. Domestically, the faith of Canadians in this country’s commitment to human rights and the protection of its own citizens is undermined. History will judge us harshly for failing to act.
I therefore ask that Canada request repatriation of Omar Khadr and that he be tried for his alleged crimes in this country.
As a Canadian citizen and a strong believer in human rights and dignity, I cannot ignore what is happening to Mr. Khadr. Respectfully, I feel that a vote for the Conservative party in the next election would represent my own sanctioning of the policy towards Mr. Khadr. I refuse to condone the inaction of this government. Today, I am ashamed of the country I so dearly love.
Yours very truly,
[signed]
Lawrence A. Gridin,
Law Student
The Khadr Conundrum Raised at UofO
“Omar Khadr is a Canadian citizen who was captured by U.S. forces in July 2002 when he was 15 years of age after allegedly throwing a grenade that fatally wounded a U.S. soldier. He is currently being detained and prosecuted by the U.S. at Guantánamo Bay.”
On May 28, 2008, six common law students from the University of Ottawa appeared before the Subcommittee on International Human Rights of the Standing Committee on Foreign Affairs and International Development, to testify that there are a number of legal avenues that may be taken if Khadr is returned to Canada and the evidence against him is found to be admissible.
“Canadian courts are fully able to administer justice in the Omar Khadr matter in a manner that complies with international law and the rule of law.” said the group.
Catherine Archibald, Clare Crummey, Andrew Harrington, Miguel Mendes, Ajmal Pashtoonyar, and Sean Richmond based their argument on a 150 page brief prepared for the Foreign Policy Practicum class of Prof. Craig Forcese.
The complete report is available here: 150-page brief.
Click here to see the team’s testimony before the House of Commons Subcommittee on International Human Rights.
Torwoli S. Dzuali
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