Bringing Khadr Home – Not Worth the Political Cost to Harper

Yesterday marked another significant delay in the trial of Omar Khadr before a U.S. Military Commission. Despite this, it is virtually certain that our Prime Minister will continue to refuse to take any action to help secure Khadr’s release. Why is that? The answer, as one might expect during a federal election, is pure and simple politics.

By this point the story of Omar Khadr is well known to Canadians. Khadr, a Canadian citizen, was taken prisoner by American forces in Afghanistan on July 27, 2002. He was fifteen at the time. His arrest followed a battle with American forces. Khadr was transported to Guantanamo Bay, Cuba where he has been charged with a number of offences that were to be tried before a U.S. Military Commission. The principal charge against him is murder. The U.S. alleges that near the end of the firefight that preceded his capture, Khadr threw a grenade which killed an American soldier.

Khadr has been in the custody of U.S. forces for over six years. During that period, the United States Supreme Court has characterized the Military Commission system, created by an executive order that was signed by President Bush in the aftermath of the September 11 attacks, as contrary to both the Uniform Code of Military Justice and the Geneva Conventions. In plain English, illegal both under American and international law. See Rasul v Bush, 542 U.S. 466 (2004), Hamden v Rumsfeld, 548 U.S. 557 (2006).

Khadr’s case has prompted intervention by the Supreme Court of Canada. This past year our high court, pointing to the decisions of its American counterpart, also concluded that the circumstances surrounding Khadr’s detention have “constituted a clear violation of fundamental human rights protected by international law” (see Canada (Justice) v Khadr, [2008] 2 SCR 125, para 24). Given this conclusion, the Court took the rather unusual step of ordering CSIS to provide Khadr’s defence lawyers with records relating to interviews it conducted with Khadr during his detention at Guantanamo Bay.

Despite all of this, Khadr continues to remain in U.S. custody at Guantanamo Bay. His trial before a U.S. Military Commission had finally been scheduled to commence on October 8th. That was until yesterday, when the presiding judge, Colonel Patrick Parrish, ordered a further postponement. The reason? Delay on the part of U.S. military lawyers in handing over information to Khadr that he requires in order to effectively answer the charges.

Khadr’s U.S. military lawyer, Lieutenant Commander Bill Kuebler, has complained about his inability to gain access to a witness to the 2002 firefight. The witness, who was identified for the first time this week as a “U.S. government employee” named Jim Taylor, reported at the time, contrary to the official version of events that that U.S. Government has been relying upon, that Khadr was not the only person alive inside the compound at the time the grenade was thrown. It is, quite frankly, astonishing, that at this very late stage in the process the U.S. Government has still not furnished Khadr’s lawyers with information that it has long possessed that may be critical to establishing that he is in fact innocent of the most serious charge leveled against him, murder.

Until now, Prime Minister Stephen Harper has refused to intervene on behalf of Khadr to secure his release from Guantanamo Bay. Leaders of other Western countries took action on behalf of their nationals long ago, with the result that Khadr is now the only citizen of a Western country still detained at Guantanamo Bay. In justifying his refusal to get involved, Harper has maintained that Canadian Government intervention would be premature and he has insisted that the American legal process should be permitted to play itself out. Harper has not suggested that there should be any time limit on how long that process should be allowed to take. Sadly, no amount of delay and unfairness seems capable of changing our Prime Minister’s view of the Khadr case.

Despite a clear and judicially recognized pattern of illegality and unfairness in the U.S. Military Commission process, our Prime Minister appears rather willing to let politics trump principle. Harper of course knows that amongst most Canadians the plight of Omar Khadr does not attract very much sympathy. The truth is, Omar Khadr’s father was indeed an Al Qaeda terrorist. Members of his family, including his mother and sister, in a well-publicized CBC documentary, have expressed strong and unapologetic support for the 9-11 terrorist attacks on the United States. Given this, doing the right thing when it comes to Omar Khadr would undoubtedly come at some political cost. For Stephen Harper, whose political inclinations make him a natural supporter of U.S. foreign policy in the aftermath of 9-11 (remember his strong criticism of the Liberal Government’s refusal to join in the U.S. invasion of Iraq), this is a cost he is clearly not willing to pay.