News  Omar Khadr pleading guilty

Guantánamo detainee faces stiff challenge to repatriation

After eight years of legal wrangling and delays, Omar Khadr’s military sentencing hearing is finally underway at Guantánamo Bay. On Monday, Khadr pleaded guilty on five charges – including murder, espionage, and supporting terrorism. A military panel of seven officers will conclude proceedings that have come under fire as both illegal and flawed.

Khadr, the first child soldier to be tried for war crimes since the Nuremburg trials after World War II, and the first terrorism suspect to be charged under an Obama-led military commission, has vehemently denied all accusations in the past. His reversal has been attributed to news of a plea bargain that would see him serve an eight-year sentence, and allow him to seek repatriation to Canada after one year.

Wayne Marston, NDP Human Rights critic and MP for the Ontario riding of Hamilton East–Stoney Creek, was hesitant to call the plea bargain an improvement in Khadr’s case.

 “It depends what you call progress. … He had two choices: eight years or life in prison. There was no third option. What would you have done?” said Marston, adding that in the U.S. plea bargains are used as a matter of expediency to keep the number of cases to a minimum.

According to Marston, Khadr’s admission of guilt could not be used to overlook the illegality of Khadr’s detention at Guantánamo Bay and of the military proceedings.

“When you take a plea bargain you have to acknowledge the facts of the plea bargain. You have a young man saying he is guilty, who may or may not be. But put all this discussion aside, and you come down to one thing. He was a child combatant protected under the Conventions on the Rights of [the] Child, and the Harper government failed drastically on this fact,” said Marston.

 According to Marston, Canada’s behaviour toward Khadr has not only cost him eight years of his life, it has also impacted the perception of Canada within the international community.

 “We just lost a seat at the United Nations. Do you mean to tell me that when the [UN] Secretary General asked Canada to repatriate Omar Khadr, and Canada refused, that that doesn’t have an impact on our seat at the UN?” asked Marston.

“The United Nations will look at how you support UN Resolutions and Conventions. We clearly weren’t abiding by them. … He is [a] Canadian citizen, and the government had an obligation to provide him with consular support, to protect his rights,” he added.

The U.S. State Department indicated this week that it would support a future request by Khadr to be returned to Canadian custody. The Canadian government has not acknowledged the existence of an agreement, or that negotiations are underway. A statement issued by Canadian Foreign Affairs minister Lawrence Cannon addressed the matter as one “between Mr. Khadr and the U.S. government.”

It has been widely reported, however, that Cannon and U.S. Secretary of State Hillary Clinton are involved in negotiating an agreement that would see Khadr returned to Canada.

Sukenya Pillay of the Canadian Civil Liberties Association speculated on the existence of an agreement, insisting that the Canadian government ensure that any future transfer of Khadr be conducted smoothly.

“We expect that the Canadian government should do nothing to obstruct a smooth transfer. We have been saying all along that the Canadian government should repatriate him and they should not do anything to thwart that,” said Pillay.

“Moreover, they should do everything possible to rehabilitate him, and they should provide him with adequate remedy as the Supreme Court of Canada has said, for the breach of his Charter Rights,” she added. 
The Supreme Court of Canada ruled last year that the Canadian government was complicit in violating Khadr’s human rights under the Charter, and basic standards on the treatment of detained youth. Khadr was subject to abusive interrogation practices while detained at Guantanamo.

According to McGill Law Professor François Crepeau, if repatriated to Canada, Khadr and his lawyers could apply on these grounds to have the U.S. military court sentence reduced or overturned completely.

“It is difficult to make predictions, but since the U.S. Supreme Court and Canadian Supreme Court have said the military commissions are not appropriate for Omar Khadr…[he] and his lawyers may apply to have the whole proceeding quashed, arguing that he was tortured, detained as a child soldier, and should not have been treated as an adult,” said Crepeau.

Canadian public opinion may be the greatest obstacle to federal action on Khadr’s file. Recent media coverage has indicated a clear opposition to Khadr’s right to repatriation. 
Crepeau attributed the division to a number of factors: the Conservative belief that individuals are responsible for their actions abroad, the total confidence of some Canadians in the American judicial system, and the belief that Khadr and his family are not deserving of Canadian citizenship.

“It’s not really racism I think, but if the person were blonde, blue-eyed, and called Tremblay, the situation would be different,” commented Crepeau. “The fact that he is Omar Khadr means that he should not be called Canadian, and not only should we not be calling him Canadian, but that we could strip him of his citizenship. The fact that he was born here does not matter,” he added.