Omar Khadr and $10 million

 Western Canadian Conservatives love to hate Justin Trudeau. Partly because they hated his father and partly because he is a Liberal. They have tagged him as “soft on Muslims” and “favouring introduction of Sharia Law in Canada”. It is safe to say, paraphrasing John Stuart Mill, that not all Conservatives are racist bigots, but all racist bigots are Conservatives. They need someone to hate, preferable a readily identifiable minority. Their racism and bigotry have led to a rise in hate crimes against Muslims.

One of the accusations against Justin Trudeau is that he “gave $10 million of taxpayer money to a Muslim Terrorist”. This “Fox News headline” has been repeated often enough that some people actually believe it. The facts around this 10% truth are conveniently ignored though the information is out there. This post will attempt to clarify the situation.

Omar Khadr was born in Toronto to immigrant parents from Egypt and Pakistan. His father, Ahmed Khadr worked for charitable organizations in Pakistan and Afghanistan, where he became friendly with Osama bin Laden. In 2002, after 9/11 and the subsequent American invasion, Omar’s father sent him to Afghanistan to act as a translator. Later that year, a badly wounded 15 year old Omar was captured by American troops as the only survivor of a group of al-Qaeda in a major firefight. He was accused of throwing a grenade that killed one American soldier. He was taken to the hospital at Bagram Air Base and when he recovered, at age 16, he was sent to the prison at Guantanamo Bay in Cuba.

The Canadian government initially opposed Khadr's transfer to Guantanamo Bay. It also urged the US to take into account his juvenile status. The Americans ignored Canada's requests. For reasons that remain unclear, attitudes in Ottawa then hardened, and the Liberal government under Jean Chrétien began playing down Khadr’s age. A number of factors led to a polarization of opinion about Omar Khadr, not the least of which was that male family members were heavily involved with al-Qaeda and his mother and sister, in 2004, spoke to CBC in favourable terms about al-Qaeda and unfavourable terms about the Canadian government.

The only thing Omar Khadr had in his favour were his youth and the fact he was not in Afghanistan of his own volition. Amnesty International and several Canadian NGOs took his case to the courts to have him repatriated to Canada and eventually freed. The Liberal government was not interested, and a majority of Canadians opposed it but said he should at least be treated as a child soldier.

Canadian Intelligence (CSIS) got American permission to interrogate Khadr in 2003 and again in 2004, if they shared information with the Americans. His captors softened Khadr up for interrogation by depriving him of sleep for several days prior. His problems only increased under Harper’s “tough on terrorism’” Conservative government, fighting in court every move to repatriate Khadr.

In 2008, the Supreme Court of Canada forced CSIS to turn over the video tapes of the interrogations which caused a huge outcry among Canadians. In 2010, Wikileaks (still the good guys in those days) release emails from the Canadian government and CISIS indicating they did NOT want Khadr repatriated. In 2010, the Supreme Court again ruled against the Canadian Government, declaring that: CSIS agents who participated in the interrogations "offended the most basic Canadian standards of detained youth suspects." The court barred Canadian officials from any further such questioning, but refused to demand Khadr's repatriation.

Khadr and all Guantanamo captive were tried by military commission, based on military courts-martial. However, human-rights and legal groups — even the United States Supreme Court — criticized the commissions for lack of due process and for criminalizing conduct retroactively. The commissions made no distinction between youths and adults, and their rules allowed for indefinite detention even after an acquittal.

In October 2010, Khadr pleaded guilty before a military commission to five war crimes, in exchange for a further eight-year sentence. He signed a lengthy stipulation of facts in which he admitted killing Sgt. Christopher Speer, trying to kill Sgt. Layne Morris, and to being a member of al-Qaeda. He would later say that the guilty plea, urged on him by his lawyers, was the only way for him to be returned to Canada. The US would have had the power to keep him at Guantanamo even if he had been acquitted. (Some of you may remember David Milgaard who spent 22 years in prison for a murder he did not commit because he refused to acknowledge his guilt or he would have been out on 12.)

He was eventually transferred to Canada in 2012 to maximum security prison, eventually in Aberta. Harper’s conservatives used his guilty plea to beat anyone who took up Khadr’s case. “Omar Khadr pled guilty to very serious crimes. It is very important that we continue to vigorously defend against any attempts in court to lessen his punishment for these heinous acts.”

In 2013 Alberta Courts sided with the federal government that that the eight-year sentence handed him by the US military commission could not be interpreted under the International Transfer of Offenders Act as a youth sentence but that Khadr should be treated as an adult offender. The case went to the Supreme Court which took 30 minutes to throw out the federal governments arguments and confirm Khadr’s youth status under Canadian Law. In 2015 he was released on bail, wearing a tracking device.

Harper continued to spout the “convicted, confessed terrorist” line. Khadr appealed his conviction by the American Military Commission on the legal grounds that the offenses were declared war crimes retroactively. A similar case is currently before American courts and Khadr’s case will not be heard until after it is decided.

Khadr also sued the Canadian government beginning in 2004, for violating his constitutional rights when its agents interrogated him in Guantanamo. In 2014, it was amended to $20-million and included the allegation that Canada had conspired with the US to breach Khadr's constitutional rights. In 2017, the Liberal government of Prime Minister Justin Trudeau settled the Khadr lawsuit by apologizing to Khadr and compensating him for what Liberal cabinet ministers described as the "wrongdoing of Canadian officials…a Canadian citizen's Charter rights were violated; as a result, the government of Canada was required to provide a remedy." Compensation was reported as $10.5 million CAD which was better than spending millions defending the case and losing anyhow. In 2019 an Alberta judge ruled that Omar Khadr’s sentence was complete and he was free to go.

The feces immediately hit the fan, led by Scheer’s Conservatives, and was unequally distributed. The “taxpayers’ money” and “convicted, confessed terrorist” meme worthy of Fox News circulated widely.

The above is more or less a factually summary of what should be generally agreed on.

Now the question arises, “What if Omar Khadr was not guilty of anything the Americans accused him of doing?”

Other than a coerced confession, there is little evidence against him. Under Canadian jurisdiction there would not have been enough evidence to lay a charge much less get a conviction. Had the Canadian Government insisted on transparency, due process, and rule of law in an open court, the result would have been a defeat for the American government. But they sacrificed principle to political expediency. Khadr pleaded guilty for the opportunity to return to Canada. It was successful in that regard but was turned into a personal tragedy because he “pleaded guilty to murder”.

This was no small firefight, but an all out assault on a 100 to 120 foot square compound. On July 27. 2002, more than 100 American troops pounded the compound with cannon and mortar fire; fighter jets and helicopters dropped multiple 500 lb bombs. When they assumed everyone was dead, the Americans approached the compound. A grenade killed an American Sergeant and Omar Khadr was captured alive.

There are several versions of events all of which cannot be true.

1.    The assault team entered, encountered enemy fire, including a thrown grenade. They killed the shooter who also threw the grenade. They then captured Khadr, who did not throw the grenade (Report by Maj. Randy Watt, senior U.S. officer at battle, July 28, 2002);
2. The assault team entered, encountered enemy fire and a witness identified as OC-1 saw a grenade thrown over a wall. Because of the timing of the shooting and grenade, he did not believe one person could have done both. OC-1 killed the shooter. He then found Khadr seated and facing away from the assault team and shot him in the back. According to OC-1, Khadr was the only person who could have killed Speer (Statement by witness OC-1, dated March 17, 2004, almost two years after the event);
3. The assault team entered, encountered enemy fire, including a thrown grenade. They shot and captured Khadr, who was the only survivor in the compound during the exchange. Being the only survivor, Khadr must have killed Speer (false public position of U.S. military until 2008, as per CBC report);
4. The assault team entered, encountered enemy fire and saw a grenade thrown over a wall. They killed the shooter and two Delta Force members confronted Khadr, who was armed and stood facing them. They shot him in the chest (per summary of statements, originally reported by Michelle Shephard in the Toronto Star);
5. The assault team entered, encountered enemy fire, and saw a grenade thrown over a wall. Soldiers outside the compound were also throwing grenades in response to the firefight. U.S. forces first killed the shooter, then shot and captured Khadr (per Los Angeles Times report of statement evidence). This opens the possibility that friendly fire accidentally killed Speer;
6. The assault team entered, encountered and returned enemy fire and killed the shooter. Omar Khadr, positioned behind a crumbling wall, then threw a grenade at a group of soldiers who were talking. He did not consider them a threat to his safety, but just planned to kill as many Americans as he could (U.S. government stipulation of facts, 2010, paragraphs 41-43, agreed to by Khadr in his guilty plea);
7.  Classified photographs taken at the scene and obtained in 2009 by the Toronto Star:

 

Photo 1 shows the dead shooter and Omar Khadr buried under a pile of rubble. Photo 2 (enhanced) shows the rubble cleared away and Khadr lying with a bullet hole in his back. According to the Star, military documents indicate that "a soldier stood on top of Khadr's body before realizing someone was buried." Obviously an already wounded Khadr did not have time to throw the grenade and then cover himself in debris in a few seconds. OC-1’s statement cannot be true. He most likely killed the shooter and then finding the buried Khadr, shot him in the back.

The prosecutor’s case rests almost entirely on a coerced confession which is easily obtained from young people especially under duress and willing to confess to end the pain. Khadr had already confessed that Maher Arar (more on him later) had stayed at terrorist safe houses in Afghanistan when he had never been to the country.

The only report consistent with the photographs is that of Major Randy Watt, the day after the firefight. That it was altered after the fact to fit the official story is not inconsistent with the American Military (see Pat Tillman). Any competent defense lawyer could easily have destroyed the prosecution’s argument. 

And Canada should have been on side. It was Canada’s job to raise hell about the railroading of a Canadian teen based on a lousy case. It was Canada's job to raise hell about the torture of a Canadian kid in U.S. custody. Instead, we presumed he was guilty. He was tried and found guilty in the court of public opinion without a trial. The few who defended him were sneered at as bleeding heart terrorist lovers.

Khadr's guilty plea bought his freedom, but at a heavy price. For that freedom Khadr traded, perhaps forever, the chance to clear his name and turn public scrutiny on those who abused him, who doctored records, who changed their stories.

As part of his plea deal, Khadr agreed to a statement of facts admitting to killing Sgt. Speer, and promised never to seek forensic review of the evidence which might one day prove his innocence. He also agreed to permit the U.S. government to destroy all evidence following sentencing. Which means to me that the Americans knew it was all lies in the first place.

As a teenager Omar Khadr was betrayed and exploited by every adult who owed him a duty of care, including his father who conscripted him into a terrorist group, and his mother who let it happen. Then he was abandoned by the one government that should have protected his right to a fair trial. Khadr's passport out should have been the birthright he was born with—his Canadian citizenship.