The US supreme court verdict on June 12 that detainees at Guantanamo Bay are entitled to habeas corpus (the right to be free from illegal detention and, if held without charge, to challenge it in a civilian court) was welcome to human-rights activists and lawyers, but so far appears to have left the US government unmoved. In a 5-4 verdict, the court said thatGuantanamo Bay detainees could challenge in US civil courts the reasons for their incarceration, something US president George Bush and his neocon allies had flatly refused earlier. In particular, the 21-year-old Canadian-born Omar Khadr’s lawyers were especially pleased because his case has become a litmus test of how well the US’s new laws work.
For years defence lawyers have argued that, because when Khadr was captured by US soldiers in Afghanistan in August 2002 he was barely 15, he should be treated as a child-soldier. This entitles him to special protection under international law and the Geneva Conventions. Both the US and Canada are signatories to a UN protocol that states fighters under the age of 18 are to be considered child-soldiers. His prolonged incarceration in the Guantanamo Bay gulag is an affront to human dignity and decency.
Outside Canada, not many people have heard of Khadr or know who he is. His case has important implications for how people, especially child-soldiers, are treated by the US as it wages wars worldwide. Khadr was captured after an attack by US troops on a house in Ayub Khel village in eastern Afghanistan on July 27, 2002. The Americans arrived in the village and, peeping through the door, saw some children playing in the yard while five men, with their AK-47s beside them, sat chatting. The American soldiers sent their Afghan interpreters into the house, ordering the men to surrender and come out with their hands up. Instead of complying, the men shot and killed the two interpreters. In the fight that ensued, the Americans called on attack planes and helicopters, which bombed the house, virtually destroying it. When the shooting stopped and it was presumed that everyone inside the house had been killed, the Americans went in to search the place. It was during this search that someone in the house threw a grenade, killing sergeant Christopher Speer. The Americans alleged that Khadr had thrown the grenade: he happened to be in the house and was shot twice in the back, suffering serious injuries.
His left eye was lost in a US grenade attack while his right eye was badly injured with shrapnel embedded in his face and body. Earlier this year, when the Toronto Star published Khadr’s photograph as he lay bleeding on the ground with gaping holes in his chest, it shocked many readers. He barely survived those injuries. Going berserk over the death of Speer, the USaccused Khadr of killing him; he was also charged with spying, participating in a conspiracy, and supporting terrorism.
Khadr has appeared before a military tribunal in Guantanamo Bay several times since 2005 but last year (June 4, 2007) at a preliminary hearing the presiding judge, Colonel Peter Brownback, dismissed the charges, saying the court did not have jurisdiction to try an individual designated as an “enemy combatant”. That should have automatically resulted in Khadr’s case being dismissed and he should have been returned to his family in Canada. That Washington would want to put an enemy combatant on trial is disingenuous; who else would fight the US: a “friendly” combatant? The Bush regime, however, was undeterred and pressed on with its so-called “war on terror”, changing the rules by redesignating Khadr as an “alien unlawful” enemy combatant. This is a new designation concocted by the American neocons who want convictions for Guantanamo detainees regardless of whether or not there are any laws to uphold such charges.
That, however, was not the only change as Washington went about making new rules to subvert legal impediments. On May 30, Guantanamo’s military commission made a surprise announcement, that Colonel Patrick Parrish would replace Colonel Brownback as the presiding judge, without giving any reason. While Brownback has refused to answer questions about his sudden removal, especially when he was brought back from retirement in 2004 to preside over these tribunals, it is widely believed that the neocons were not sure he would deliver the verdict they wanted. His removal was a political act, say defence lawyers. The military tribunal system has been widely criticised. While somewhat improved because of court challenges, the original rules allowed the military to exclude the defendant from his own trial, allowed statements to be made under torture, and forbade appeal to an independent court. The USsupreme court struck down that system in 2006.
There are other problems with the case as well. Lieutenant commander William Kuebler, Khadr’s American-appointed lawyer, has alleged that a US military commander “retroactively altered” a report on the gunbattle in Ayub Khel village on July 27, 2002, in order to blame Khadr for Speer’s death. Kuebler made the allegation during Khadr’s pre-trial hearing on March 13, saying that a US commander identified only as “Colonel W” wrote an on-site report immediately following the firefight that stated that a US soldier had killed a man identified as the suspect in the slaying of Speer. This report was revised months later to say that an American soldier had only “engaged” the assailant, according to Kuebler, who said the later version was presented to him by prosecutors as an “updated” document. “What we have is, as I said at the outset, this manufactured story about Omar’s participation in the event, or this myth about Omar’s participation in the event, which appears to have been manufactured at some point during his detention,” Kuebler said. “And then you have government records, official government records, being retroactively altered to be consistent with that manufactured story.” American prosecutors have not contested Kuebler’s account, yet the military tribunal continues.
When first captured in Afghanistan, the badly-wounded Khadr was moved to Bagram Airbase, which swiftly became notorious as a torture centre. It was at Bagram that sergeant Joshua Claus beat Dilawar Khan, an Afghan taxi-driver, to death in April 2002. He had driven nearby soon after a roadside bomb-explosion that had killed an American soldier. Arrested and taken into Bagram, Dilawar was suspended from the ceiling; Claus then started to beat him on his legs using a thick wooden club. After several days of beatings, during which Americans laughed while he screamed in pain, Dilawar died. The autopsy report said his legs were so badly shattered that they appeared “as if he had been run over by a truck.” Claus was later court-martialled but he was still at Bagram when Khadr was brought in.
Subjected to endless hours of interrogations that were augmented by sleep-deprivation, withdrawal of pain-killing medication, lack of medical treatment for his life-threatening injuries, and physical and psychological torture, Khadr was threatened with rendition to a place where he would be raped. Court documents show that interrogators used attack dogs and hung prisoners by their wrists in order to extract confessions. In November 2002, Khadr was flown to Guantanamo while shackled in a painful position, blindfolded and with ear-muffs to disorient him on the long flight. Statements extracted under such conditions from a 15-year-old boy have been presented in the kangaroo court in Guantanamo to try him on charges of murder and terrorism. His legal team requested the names of Khadr’s interrogators at Bagram and the opportunity to cross-examine them, but on June 20 a US appeals court rejected that request under the pretext of “national security”.
Khadr’s real crime is not what he is alleged to have done but who he is. His father, Ahmed Saied Khadr, an Ottawa-based engineer, was involved in raising funds for the Afghan jihad. In the early nineteen-eighties he moved to Afghanistan and a little later took his entire family there. Omar was born in Ottawa on September 19, 1986, but while still a child he was moved toAfghanistan. His father cultivated close links with other Arabs, including Osama bin Laden, who had flocked to Afghanistan to fight the Soviet invasion. Such activities were supported and financed by other countries, including the US, Pakistan, Saudi Arabia and Egypt. These volunteers were described as mujahideen fighting “godless” communists. It was only after the Soviets withdrew from Afghanistan in February 1989 that they suddenly became first “rebels” and then “terrorists” to be hunted down and killed. During the US onslaught on Afghanistan in 2001, the Khadr family moved to Pakistan. Ahmed Saied Khadr was killed by Pakistani forces in October 2003 in Waziristan. The other brothers—Abdurrahman, Abdullah and Abdulkareem—spent time in Afghanistan while their sister Zaynab stayed with her mother in Pakistan. The youngest brother, Abdulkareem, was paralysed after a bullet pierced his spine in the shootout that killed his father. Abdurrahman was recruited by the CIA, sent to Bosnia and later transported to Guantanamo Bay to build his credibility. When released in 2004, he admitted to working for the CIA. His other brother is in jail in Toronto, awaiting an appeal hearing to prevent his extradition to the US to face terrorism charges.
While in Afghanistan, Omar lived in the same compound in Jalalabad as Osama bin Laden and played with his children. Omar spent all his childhood in Afghanistan and was therefore completely under the influence of his father. He had little choice; as a child, where could he go if he did not stay with his parents? In radio and television interviews, his niqab-clad mother and sister have expressed strong views against the immorality prevalent in Western societies. It would appear that Omar is being punished for his father’s association with Osama, and for his mother’s and sister’s outspoken views about Western immorality.
Successive governments in Canada, first the Liberals and now the Conservatives, have refused to intervene in his case. Most observers believe that this is the direct result of Ottawa’s fear of upsetting Washington. Other Western governments (Britain, Australia and Germany, for instance) have secured the release of their citizens from Guantanamo Bay, but Canada has remained completely indifferent. This is not because there is no interest in Khadr’s plight. A number of legal professionals—Lawyers against the War, the American Civil Liberties Union, the British legal fraternity as well as the Australian legal profession—have all urged the Canadian government to intervene and end this travesty of justice. Even schoolchildren have rallied in his support. The Conservative government in Ottawa, however, remains unmoved. The three main opposition parties have also now joined in demanding Khadr’s release fromGuantanamo Bay and his return to Canada to face charges under Canadian law, if he is guilty of any crime. There is universal acceptance that Canada’s reputation has been tarnished by the shabby manner in which the government has failed to respond to Khadr’s plight.
The Canadian government makes various excuses for its indifference: Khadr faces “serious charges”; Ottawa has sought and received assurances that he is being treated humanely and the government will not intervene in the US legal process. The charges against Khadr are manufactured, according to his American lawyer; and as for his humane treatment, Guantanamo is a torture chamber that is no place for a child, even if Khadr is now 21. The US legal process is a work in progress that has been declared patently unfair not only by American lawyers but also by the US supreme court. No wonder Larry Bagnell, a Liberal MP, was forced to ask in the House of Commons: “How can the government continue to show confidence in this process when the deck is so clearly stacked against Mr. Khadr ever receiving a fair trial?” Liberal Senator Romeo Dallaire, a retired lieutenant-general and former commander of UN forces inRwanda, has used even stronger language in condemning Khadr’s continued detention and mistreatment. “It makes us look like a damn bunch of hypocrites, nothing less. It emasculates all of us who are Canadian, who are trying to work in areas like eradicating child soldiers,” said Dallaire. “We’re sinning against our own beliefs.”
Hypocrites or not, the Canadian Conservatives are adamant that they do not wish to upset their American neocon allies, with whom they share a lot more than trade: they share a common outlook on life and how Muslims should be treated or mistreated. Omar is basically a pawn in this larger game of Islamophobia that has gripped much of the West.