roger hollander

Harper, federal lawyers at odds over Khadr trial January 12, 2009

Michelle Shephard

NATIONAL SECURITY REPORTER

Toronto Star, january 12, 2009

Canadian government lawyers have repeatedly raised concerns about the U.S. prosecution of Omar Khadr because he was only 15 when captured, while publicly, Prime Minister Stephen Harper has supported the war crimes trial of the Toronto-born detainee.

Internal government documents obtained by the Toronto Star state that “Canada considers that Omar Khadr’s juvenile status should be taken into account in all aspects of his detention, treatment, proceedings and possible sentence.”

The Star made the request for documents through the Federal Access to Information legislation 17 months ago.

The more than 100 heavily censored pages of documents from Canada’s Justice and Foreign Affairs Departments include legal opinions about Khadr’s case and Guantanamo’s war crimes trials. One report concerning Canada’s law for young offenders and titled “Youth Criminal Justice Act” is completely blacked out.

But concerns about Khadr’s age are repeatedly noted and appear to reveal a schism between Harper, who has not publicly challenged the legality of the Bush administration’s military commissions, and the bureaucrats providing legal advice. One undated report to Canada’s former Minister of Foreign Affairs, Maxime Bernier, states that Canada has “continuously demanded that the U.S. government take Mr. Khadr’s age into account.”

The Pentagon has stated that Khadr’s age could be a factor during sentencing if he’s convicted, but that it has not influenced the conditions of his detention for the past 6 1/2 years and will not affect his prosecution.

Khadr’s lawyers have unsuccessfully argued that his case is in violation of international law since the Optional Protocol to the Convention on the Rights of the Child – which Canada has ratified – stipulate that children under the age of 18 who are caught in armed conflict must be handled differently than adult captives. Rehabilitation, not prosecution, is the goal.

Now 22, Khadr was shot and captured in Afghanistan on July 27, 2002 following a firefight with U.S. forces.

The Pentagon charged him with five war crimes, including murder for allegedly throwing a grenade that fatally wounded Delta Force soldier Christopher Speer.

His trial is scheduled to begin in two weeks.

This morning, Canadian Liberal Senator Romeo Dallaire will join American child rights advocates in Washington in an effort to put Khadr’s case on the top of the Obama administration’s agenda. Speakers at the press conference will include former child soldier and UNICEF Ambassador Ishmael Beah and David Crane, a Syracuse law professor and former prosecutor for Sierra Leone’s war crime trials.

“I think one of the problems with this case is the reason people don’t have compassion for Omar Khadr, but have compassion for people like me … It’s easy for people here to say, `Oh we forgive child soldiers,’ because it’s not affecting them directly,” Beah said in an interview with the Star last year.

“But you can’t say that one person’s life is more valuable. So, if a 15-year-old kid in Sierra Leone, in Congo, in Uganda, in Liberia, if they kill somebody and shoot somebody in the war it’s fine, but as soon as that kid kills an American soldier … they are no longer a child soldier, they are a terrorist.”

During an interview aired yesterday with ABC’s This Week, Obama said it was unlikely he would be able to shut Guantanamo’s prison within the first 100 days of his presidency, due to the complex legal situation of some of the remaining 250 prisoners.

But sources told the Star that Obama’s transition team had specifically requested information concerning Khadr’s case and that of Mohammad Jawad, an Afghan detainee who was also under the age of 18 when captured. Khadr’s Pentagon-appointed lawyer, Navy Lt. Cmdr. Bill Kuebler, confirmed Friday that the transition team is “aware of the case, the key dates, and the procedures for turning it off.”

As Dallaire takes his message to Washington today, a grassroots movement is planning to inundate Ottawa MPs with more than 5,000 postcards calling for Khadr’s repatriation. However, Canadians generally remain divided on the case largely due to the unpopularity of Khadr’s siblings and mother.

In a 2004 CBC documentary, family members admitted to knowing Osama bin Laden when they lived in Afghanistan and Pakistan.

For the past two years, Harper’s government has steered clear of the politically unpopular Khadr case, as did the Liberals before them.

But with Guantanamo’s prison set to close, Obama will be reaching out for countries to accept detainees who will not be tried. If the Toronto detainee’s case is not moved to a criminal trial or court martial on U.S. soil, it’s likely he will request that Canada take Khadr back.