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Omar Khadr and values in a time of ‘war’

By Gar Pardy      

With the Conservatives looking to resume hammering the government on its $10.5-million payment to Omar Khadr when Parliament returns Sept. 18, there’s room for more context in this debate.

Public Safety Minister Ralph Goodale, pictured earlier this year, took the lead this summer defending the government's $10.5-million payment to Omar Khadr after they reached a settlement over Mr. Khadr's lawsuit that alleged the government had violated his rights while he was in prison in Guantanamo Bay.
The Hill Times photograph by Jake Wright

Societal values, especially “Canadian” ones, have had recent public airings. In the 2015 election and the subsequent leadership campaign for the Conservative Party there were a variety of comments offered on the values that should be associated with Canadian society. Those debates offered little since they were largely abstractions, far removed from the preoccupations of most Canadians.

But the public debate over the government’s decision to agree to compensation and a public apology for Omar Khadr has, in both direct and indirect ways, ignited issues that are fundamental to our societal values. These values—which rise above the partisan comments of the past two years (which had more to do with national characteristics than values)—provide the cement essential for any free, open, and democratic society.

Central to those values is the rule of law. And key to the rule of law is its commonality to all.

The importance of the rule of law

In our phantasmagorical world, it is adherence to the rule of law that remains the essential point on which governments can be judged and freedoms measured.

Unfortunately, during times of war, governments adjust values on the temporal altar of necessity.

In the nearly first two decades of the 21st century, Canada along with many other democratic societies where the rule of law is paramount, have been in a state of war and have been prepared to make less common the application of the rule of law.

The plasticity of the concept of war has made matters worse. Our public discourse is crowded with talk of wars on terror, drugs, people smuggling, diamonds, and more. These concepts have usurped the historical concept of war that before now was restricted to dangers to national survival. Today, war is used indiscriminately, often to convince people of the dangers of the dust balls lurking under their beds.

Sadly, many Western governments in the aftermath of 9/11 sought to redraw the balance in law between the state and its people.

The United States, supported by a phalanx of countries that should have known better, led the world in such actions. The new standards still roil the values that most countries used to consider fundamental.

Context on the Khadr case

It is this rebalancing that is central to the treatment of Omar Khadr by both the governments of the United States and Canada since 2002. This includes: the creation of a prison at Guantanamo Bay, Cuba, outside the rule of law as understood within the territorial limits of the United States; the denial of long-established international norms in the classification and treatment of captured persons; the denial of the recently established norm in international law concerning the treatment of child soldiers; the indiscriminate use of torture to intimidate and extract information; the limitation of medical treatment for wounded combatants; and an unwillingness to allow independent legal counsel in the jury-rigged adjudication system as represented by the American military commissions at Guantanamo.

All of these factors presented Khadr with an enormous dilemma. If he fought the Americans within the system available at Guantanamo, as he wanted to do, he faced the almost certainty of spending up to 40 or so years in an American prison. Equally, he could expect no assistance from the government of Canada, especially in the aftermath of a 2010 Supreme Court decision that imposed no obligation to provide help.

His Canadian lawyer strongly argued he should plead guilty with the condition that he be transferred to a Canadian prison. This Khadr did and in 2012 was transferred to a Canadian prison. This triggered the substantive involvement of the rule of law as understood and practised in Canada and his release on bail.

In the meantime, Khadr sought compensation from the Canadian government largely based on another aspect of the 2010 Supreme Court decision. This firmly stated Khadr’s rights under the Charter were abused by Canadian officials who sought information from him while he was still a prisoner at Guantanamo.

Most legal experts familiar with the matter agree Khadr had an ironclad case for compensation. After many months of negotiations, Khadr’s lawyer and government lawyers reached an agreement for compensation and an apology. It was then sanctioned by the court.

The family of an American soldier killed during the firefight that led to Khadr’s capture in 2002 had initiated action in American courts seeking compensation from Khadr. The court, using evidence largely generated by the torture-based process at Guantanamo, agreed that compensation was appropriate.

In judicial terms, this was the sound of one hand clapping. Khadr was not represented in the proceedings and no one questioned the quality or legitimacy of the evidence used.

There is no value in the decision of this American court and no Canadian court should give it recognition.

Canadians have expressed strong views both for and against the government’s decision to agree to compensation for Khadr. But in its faithfulness to the fundamental value of the rule of law, it is a decision that all Canadians will come to appreciate in these dark days when governments often are too ready to limit its universality.

Gar Pardy as director general of consular affairs at Foreign Affairs dealt with many aspects of Khadr family troubles including the arrest of Omar’s father Ahmed Khadr by Pakistani authorities in 1996 and Omar Khadr’s capture in Afghanistan in 2002 and transfer to Guantanamo. He retired in 2003 but has since written extensively on the matter.

The Hill Times

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