Canada’s Supreme Court has chosen to hear the Conservative government’s appeal of a lower court ruling that US torture victim Omar Khadr should be considered a “young offender.”
Khadr, who was just 15-years-old when he was captured by US forces in Afghanistan, was held at the US’s illegal Guantanamo Bay concentration for a decade. Thanks to the complicity of Canadian Liberal and Conservative governments, he was long the last remaining citizen of a Western country held at Guantanamo Bay.
Khadr was grievously wounded by US forces in the firefight that left his father, a senior al-Qaeda operative, dead. Although he was a child, the US military subjected him to torture and indefinite detention without trial.
In a further violation of international law, the US dragged him before a drumhead military commission, in which elementary judicial principles were set aside, and tried him as an adult, even though by any standard he should have been deemed a child-soldier and, consequently, exempt from prosecution. With the military threatening him with life imprisonment, Khadr entered into a plea-bargain in which he pled guilty to having killed a US soldier during the Afghan firefight.
After objections and foot-dragging by Stephen Harper’s Conservative government, Khadr was returned to Canada at Washington’s insistence in 2012. On his arrival, the government rejected calls for Khadr to be considered a young offender under Canadian law, which would have made him eligible for immediate, or at the very least, early release. Instead, it vilified him as a “hardened terrorist” and had him incarcerated as an “adult” in a federal prison far from his family in Innisfail, Alberta.
By challenging the unanimous ruling of the Alberta Court of Appeal that Khadr should be considered a young offender, the Harper government ensures that Khadr’s ordeal will continue for months or even years to come.
A spokesman for Public Safety Minister Steven Blaney welcomed the Supreme Court’s decision to hear the government’s appeal. The government, said Jason Tamming, wants to keep Khadr “where he belongs,” in federal prison.
Canada’s Supreme Court has already been forced to concede that the Canadian state has violated Khadr’s constitutional rights, but, reprising its earlier decision, it continues to allow the government to abuse him.
In 2010 Canada’s highest court found that Khadr’s constitutional rights under the Canadian “Charter of Rights and Freedoms” were violated during the course of his imprisonment and interrogation at Guantanamo Bay. In a decision that underlines Canada’s complicity in the brutal program of torture administered by the CIA and US military, the Supreme Court ruled that agents of the Canadian Security and Intelligence Service (CSIS) and the Department of Foreign Affairs had violated Khadr’s basic rights by interrogating him while he was indefinitely detained, had no access to legal counsel, and had been subjected to weeks of sleep deprivation in order to “soften him up.”
Despite ruling that Khadr’s democratic rights had been violated, the Supreme Court allowed the Canadian government to continue its support for Khadr’s illegal detention at Guantanamo Bay and his prosecution by the US drumhead military commissions, saying that it did not want to interfere with the government’s prerogative to conduct foreign policy. (See: Canada’s Supreme Court rules foreign policy trumps citizen’s rights)
By agreeing to hear the government’s latest appeal, the Supreme Court has ensured that Khadr’s harsh treatment at the hands of the federal government will continue as the legal wrangling over his “young offender” status drags on.
Khadr’s lawyers reacted with shock to the Supreme Court decision. “I’m stunned,” said Nate Whitling, one of Khadr’s lawyers. “We’re of the view there’s no merit whatsoever to the government’s position.”
Dennis Edney, also a lawyer for Khadr, characterised the latest appeal as “a continuation of spiteful acts taken by this government to demonstrate it is tough on crime. We will be going back to the Supreme Court for a third time to continue the fight.”
Meanwhile, Khadr’s physical condition has deteriorated. Having already lost sight in one eye due to shrapnel from the firefight in Afghanistan, he has begun to lose sight in his remaining eye to the point that he has been unable to continue his high school studies. A doctor has confirmed that his failing eyesight, a result of shrapnel embedded in his eyes since 2002, can only be saved by surgery.
While the Conservatives and the most right-wing sections of the media have sought to justify the state’s continuing persecution of Khadr by demonizing him as an “unrepentant” terrorist who “confessed” to “heinous crimes”, there is much more to this than just vindictiveness or Conservative “tough on crime” electioneering.
By supporting Khadr’s indefinite detention in Guantanamo, participating in his interrogation after he had been tortured, and supporting the widely denounced Military Commission that convicted him, the Canadian government was able to shore up its relationship with Washington and support its US ally as it undertook actions in the name of the “war on terror” that egregiously violated international and US law.
In addition to this foreign policy objective, the Canadian government’s treatment of Khadr under both Liberal and Conservative governments, has created reactionary legal precedents where, in the case of a Canadian accused of “terrorism” by an allied government, the state can deny citizens their basic democratic rights: refusing them support and counsel; colluding in their indefinite detention without charge; and conniving in their torture.
The illegal measures taken in the case of Omar Khadr occurred as the Canadian government, following in the US’s footsteps passed harsh anti-terrorist legislation that undermined key legal protections for suspected “terrorists,” participated in the rendition and torture of Canadian citizens like Maher Arar, and engaged in a massive espionage program through the “Five Eyes” collaboration with the American NSA (National Security Agency) and its equivalents in Britain, Australia and New Zealand.
While supposedly aimed at alleged “terrorists” like Omar Khadr, these serious violations of the democratic rights that are ostensibly guaranteed by Canada’s constitution have provided the legal precedent for the government to treat anyone it deems a “terrorist” in the same manner. In a context of massive social inequality, a resurgence of imperialism, and an ever-wider assault on public services and worker rights, the ruling class is breaking with bourgeois legality and increasingly turning toward authoritarian methods of rule.