The other side of the story: Liveblogging the Khadr committee


11:51:11 AM
Okay, I know every other journalist in the country is chasing the shooting star that is the Bernier Affair. But just because we have our first genuine political sex scandal in possibly ever—I don’t think Gerda ever did the deed, did she? Just lots of long, lingering looks?—doesn’t mean that we can ignore fundamental issues of human rights, international law and all that stuff, right? And today is a very special day at the Subcommittee on International Human Rights: We’re going to hear from witnesses who think the government should leave Omar Khadr to rot in an American military detention camp! Won’t that be… different?

Leading the charge: Canadian-born lawyer, Howard Anglin, who currently practices law in DC, and is, let’s say strident in his views, even for a right-wing, Bushian Sakiesque conservative. Google him if you’re curious. I did, and it made for fascinating reading.

So what’s he doing up here? Funny story. Turns out he has done some work for the Foundation for the Defense Democracies, which, as it happens, is the former employer of one Alykhan Velshi, who now works for Jason Kenney. Small world, isn’t it? The two have even collaborated on articles together, most of which can be summarized thusly: America: good! Terrorists, suspected and otherwise: bad! Geneva Conventions: depends on the context!

Right now, the chair, Scott Reid, is chatting with the witness about our quaint parliamentary practices. Mario Silva is gazing intently in their direction, and the lunch buffet is being unloaded in the background.

12:01:41 PM

The rest of the committee members are starting to roll in. Vivian Barbot is here, and seems to be engaged in a quiet, but intense discussion with Wayne Marston. Irwin Cotler is hanging over someone’s chair, but he may just be dropping by to say hi. Oh, and there’s the Secretary of State for Baiting Retired UN Generals himself! He looks much more relaxed than usual. I wonder if he thinks this witness will be less stubbornly pro-Khadr than pretty much everyone they’ve heard from so far.

12:05:27 PM
Okay, the meeting is slowly but surely getting underway; Reid is, as always, fretting about time. Apparently there are motions that have to be dealt with or something like that—in camera, unfortunately.

12:06:31 PM
Housekeeping over, now the fun begins. Howard Anglin gets things started by saying that he’s the first witness to disagree with the proposal to repatriate Khadr. But he wants to make it clear that he’s not “carrying a brief” for the US government, with which he often disagrees. Basically, he thinks the law has been presented in a “shoddy” fashion during the hearings thus far and he aims to set the committee straight.

Oh boy.

12:09:02 PM
According to Anglin, there is nothing in the Optional Protocol that prevents the prosecution of soldiers under the age of eighteen—it’s more of a question of discretion and there is “good precedent” for prosecuting child soldiers for war crimes. Really? Good precedents? I’m intrigued! So is Jason Kenney, apparently. He has his serious face on and he’s paying close attention to the presentation. “The prosecution of minor children … is not expressly forbidden,” Anglin points out. Well, that’s a ringing endorsement.

Now he’s reading from a report from the International Red Cross—a long quote, he warns us—and then wraps it up by dismissing Dallaire’s claim that prosecution of child soldiers goes against international law.

Finally, he says he has yet to hear any “convincing arguments” that the current US system is illegal, and claims that, despite what we foreigners must think, his country the United States (Anglin is, of course, a Canadian) “does not conduct show trials.” As for provisions to protect unlawful combatants, it’s a “specious comparison.” To apply civilian rules of due process would be impractical. Or impracticable—I might have misheard him.

12:16:30 PM
Odd: David Sweet isn’t here. Instead, taking second chair for the government is Dave Mackenzie, who looks like an older, grumpier David Emerson, our new Foreign Affairs minister!

12:17:23 PM
Well, this is unexpected: a defense, or at least rationalization, of Trudeau’s move to suspend habeus corpus during the FLQ crisis. I can’t figure out if Anglin is agreeing with the decision or just making a weird “if it was okay for him, it’s okay for us” analogy.

If Khadr was being held in China or Saudi Arabia, Canadians would have reason to worry, Anglin says. (Because they’re Red Communists/Islamofascists, I’m assuming.) The US, on the other hand, is a beacon of liberty and freedom. “I hear snickers,” he says. “I can address those later.” The system now in place is working, and there’s no reason Canada should interfere, he concludes.

Questions, comments? Oh, somehow I think so.

12:22:11 PM
Irwin Cotler is here! This should be fun! And, hey, he’s reading from the very same article that I linked: the National Review piece Anglin co-wrote with Kenney’s communications director. Cotler wonders why he doesn’t think that basic rights should be extended to unlawful combatants and why they should be treated differently.

Anglin says the laws of armed conflict are “problematic” when dealing with asymmetrical warfare, which is such a clinical, almost hermetically sealed way to describe it. As a member of al-Qaeda, Khadr is not party to the Geneva Conventions, he notes, and is not… Wait, did he just call the Geneva Convention anachronistic? He did. Apparently, it works fine with “gentlemen soldiers” like the Nazis, I guess. But “whatever you can say about Omar Khadr, he isn’t a gentleman.” True; he’s a teenager. And a child soldier.

Cotler wonders if Anglin believes Khadr has been provided with the “minimal protections” that he should be afforded. Anglin says he has. Cotler then brings up Hamid v Rumsfeld, which Anglin fumed against in the National Review, but his response here is slightly more measured. The process, he says, is “being refined,” which is what happens in a country that respects the rule of law. The procedures are modeled on the rights that would be provided to a US citizen, he notes, a statement with which Cotler takes issue. What about being subject to coercion, denied counsel and all that other stuff that has allegedly been experienced by Khadr? Anglin points to Kuebler, as counsel, noting that the committee was apparently “very impressed by him.” As for coercion, Anglin says he’s not going to defend the torture of detainees, which is refreshing. If it has been used, that can be taken to the courts, he notes.

12:30:18 PM
Vivian Barbot confesses to being “puzzled” by his testimony. Is Anglin claiming that Khadr isn’t a Canadian citizen? Regardless of how the question comes up, he was 15 years old when the events in question occurred. Does Anglin really think the treatment he’s received lives up to that prescribed by the Optional Protocol? Also, as for the US as a “model of justice,” she leaves that alone for the moment, but wonders why Canada can’t bring him home to face charges here?

Anglin begins by apologizing for having to respond to the translation and notes that he’s not telling Canada not to bring him home. That’s not his role. He’s just providing another perspective on the law. The fact the US has treated Khadr “differently” from the other—he hesitates for a moment—child soldiers, who have been kept at Camp Iguana, the funnest, most kidtastic military detention camp the US has to offer. Clearly there was a reason for that, he says, although he doesn’t tell the committee what it was.

12:36:03 PM
Wayne Marston takes over, and points out that his party opposed the introduction of the War Measures Act. He notes that Anglin did say Khadr “wasn’t a gentleman” and asks if he’s ever met him. He also wonders about those reasons for treating him differently from the other children at Gitmo. Isn’t Anglin giving the Americans the benefit of the doubt? He also doesn’t see repatriation as an interference in the legal affairs of another country; we’re all friends here, right?

12:38:25 PM
Anglin says something about how it is noble for a son—or in this case, a “family of sons”—to follow in their father’s footsteps. This prompts a chuckle from the man sitting behind me, who I suspect is the next witness. But in this case, the Khadr sons “chose the wrong side.”

As for the gentleman comment, he notes that “gentlemen” don’t take up arms against their country’s allies. Oh, and he gives a shoutout to the NDP for opposing the War Measures Act.

12:40:58 PM
And now Jason Kenney, who hands him a straight line. Some witnesses, he notes, have tried to suggest that the US is running a “kangaroo court” due to the lack of protection and habeus corpus. What does he have to say to that? Not surprisingly, Anglin is thrilled to answer that one: the current process has led to the release of over thirty enemy combatants. Does a kangaroo court do that? He thinks not.

(I’ve never noticed it before, but Kenney has a widow’s peak. That, or the lighting is playing tricks with his hairline.)

Anglin goes off on a lengthy explanation of all the provisions afforded to detainees—better than Geneva, in some cases, he notes.

12:44:39 PM
Another straight line from Kenney. Oh, man. He is not going there, is he? He is—he’s pulling out the Romeo Dallaire quote and asking Anglin to comment on the “as bad as the terrorists” comment. Offside! (The people behind me keep laughing at his bons mots.) Anglin notes that Dallaire made some “inelegant” statements and calls it “sophmoric radical relativism” that is “unworthy and puerile.” Oh, and something about berets.

I wonder if the senator is watching?

12:47:23 PM
One more round, and Barbot takes the first slot: she, too, is bristling over the “gentleman” comment, which she calls “gratuitous.” A lot of comments have been made about the Khadr family, but should a child be judged based on what his father does? Of course not, Anglin purrs, although it was his family that brought him in close contact with al-Qaeda and the Bin Laden family.

I think Anglin may have just realized that the “gentleman” crack was a mistake.

Barbot notes that everyone says he was just a child (15), that the point of reference should be Canada and that Khadr was not provided access to a lawyer. The law, however, does not require that, Anglin notes—and the law must be applied. The American law, that is. Canadian law does not apply to an unlawful combatant held by a foreign state.

12:51:30 PM
Kenney asks for details on the release of detainees that Anglin mentioned, including some who were transferred back to Albanian after being picked up in the “confusion” that followed the “liberation” of Afghanistan. Anglin seems a little puzzled, and Kenney appears to be following a train of thought for which he has not, sadly, bought a ticket.

Kenney wonders if there are any charges that could be brought against the Khadrs, as Omar’s “recruiters.” Anglin muses over whether it might, in theory, be possible, depending on whether his family could be considered members of al-Qaeda.

Kenney begins his last question with the dubious premise that Khadr could not be tried in a Canadian court—despite much evidence to the contrary—but even Anglin is cautious about making that assumption. He agrees it might be difficult, but declines to discuss the specifics, what with not being a Canadian lawyer.

12:56:22 PM
Marston takes the last slot, and notes the committee heard yesterday that Khadr could indeed be tried in Canada. He wonders if the process here would supply the necessary “sense of justice” if Khadr was brought back and treated as he would have been had the offence taken place when he was 15. Anglin says that you’d probably have to take a poll to find out if Canadians would be satisfied with that outcome.

Finally, back to Camp Iguana, and another attempt to elicit an opinion from Anglin on why Khadr was held at the adults-only camp. He suggests it may have to do with with the “rich intelligence” that he may have picked up.

And that’s all for Anglin. Up next: the Canadian Coalition for Democracies. Whee!

1:01:16 PM
Due to time constraints, there’s no break between witnesses; it’s right to Naresh Raghuhbeer, who tells the committee the Coalition is “concerned” about the Khadr case. He stresses that Khadr should be given access to consular service and that the Canadian government must ensure is treated in a constitutionally legitimate manner.

And now, a trip down memory lane—jurisdictional memory lane, that is. Apparently, there were two other countries with a stronger jurisdictional claim than Canada: Afghanistan, and the United States.

He then quotes the one line of last week’s Khadr decision that could be interpreted to support the position that the current process is outside Canadian jurisdiction. Must get full context there.

Like Kenney, he thinks the government should explore charges against the Khadr family, whether related to terrorism, or promoting hatred. In fact, he’s puzzled as to why no Canadian authorities—police, child services, you name it—are investigating the Khadrs’ parenting techniques and their promotion of jihad to Canadian children. Otherwise, Canadian islamic fascists may be “emboldened” to brainwash their children to follow in their footsteps.

Now he’s on to dual citizens, and I’m going to see if I can very quickly sneak a sandwich.

1:09:22 PM
(Sandwich) mission accomplished. Witness still on dual citizens. The conversation over how Canada treats them is long overdue, he notes.

1:10:17 PM
And… questions already? That was quick. Oh, they’re trying to wrap up by 1:40, I guess. Anyway, Cotler wonders whether the witness believes that Khadr has received appropriate treatment thus far. Yes, with an asterisk. There have “clearly” been violations of international law, but those were addressed by the Supreme Court and the current process seems to be working.

Jason Kenney looks bootfaced and he’s not looking at the witness. Interesting. Oh, and now he’s gone. I’m sure he’ll be back for the big finish.

The Canadian Coalition for Democracies does believe that Khadr has been treated “relatively well” compared to how other countries treat prisoners. It is the Supreme Court that will ultimately decide.

1:13:45 PM
Mario Silva admits to being somewhat baffled by the apparent contradiction in the Coalition’s position on whether international law has been respected, given that the US Supreme Court has found otherwise. Raghubeer tries to explain: the violations have been remedied and actions have been taken to ensure he’s being treated appropriately, but Cotler calls that retroactive legitimization—or sanitization—of things like coercion and depriving him of counsel that can’t simply be remedied by a subsequent decision. That’s his opinion, says Rughabeer.

1:17:24 PM
Vivian Barbot notes that there are “opinions and facts.” I’ll give you one guess as to what she thinks of Cotler’s position on retroactive legitimization, which is a fantastically hideous word. She wonders why it isn’t the role of the country to take responsibiity for trying Khadr, given that it was this country that failed to protect him from his family.

Rughubeer admits he’s no expert on the Geneva Conventions, nor did he pretend to be one. But if it’s true that his parents converted him, what responsibility does the Canadian government have to protect him and other children?

Raghubeer then reads from some of the Khadr family’s greatest hits but Barbot interrupts. We’re not here to judge the family, she notes, but was it not the role of the father to protect the children? It’s a mother’s role to protect the children, he argues, but Barbot is getting antsy. This is not about judging his family, it’s about Omar Khadr.

You know, I have to wonder how the whole “punish the parents for warping the children with hatred” argument would fly if applied to fanatics of a non-Islamic variety. Don’t small-c conservatives take great umbrage at the mere suggestion that government has the right to tell parents how to raise their children?

1:23:36 PM
Marston once again tries to get the witness to acknowledge that this was a child soldier, and that his treatment by the US authorities was not appropriate. He should be brought home, taken before the judicial system here, and rehabilitated. Rughubeer is getting frustrated too, I think—he agrees that the family has contributed to raising him as a “young Jihadist” and says that he should have been protected in Canada first, before that happened. If parents won’t perform their “duties,” he notes, the state must step in.

1:27:42 PM
David Sweet is back and, as usual, begins by listing the charges—the very, very serious charges—against Khadr. Even in Canada, a youth can be tried as an adult if the alleged crime is sufficiently serious. Sweet also has a list of… Hey, that’s the same list the last witness was using! It’s the countries with policies that flatly contradict the position that no child can be a soldier: the UK, the UN Security Council and the Optional Protocol. He even read the list in the same order. In response, Raghubeer helpfully condemns the comments made by Dallaire—it’s like they had it all planned out. Fed up, Mario Silva chides the witness for his remarks.

1:32:02 PM
Jason Kenney notes the subcommittee has tried to invite the Khadr family to appear, but they haven’t been willing to cooperate. He then asks a planted question so specific that even the witness can’t figure out exactly what he wants. Wayne Marston takes issue with what he thinks it is—basically, an opening to read more Khadr quotes into the record—and the chair reminds him to behave himself. Jason Kenney, incidentally, is claiming that he’s never heard any of those controversial comments from the Khadr family. I’m sorry, I find that a little bit hard to swallow.

Rughabeer, meanwhile, once again calls for the anti-jihad parenting police, and then does a quick recap of the Very Very Terrible Things that the rest of Omar’s family have said and/or done. He points out that even Kuebler has said that the US government would not want to repatriate him back into the arms of his evil, terrorist-loving family.

Which as far as I know, no one has actually proposed.

And with that, the meeting seems to be over. Or is it? No, it isn’t. Wayne Marston gets one more crack, and he notes that Canada does have hate crime laws. And Human Rights Commissions! (Sorry, I couldn’t resist.) The witness concurs, but notes that those hate crime laws “aren’t being enforced.” What a fascinating discussion that could be, given Kenney’s comments on other alleged hate speech issues. Sadly, though, we’re out of time.


The other side of the story: Liveblogging the Khadr committee

  1. “The prosecution of minor children … is not expressly forbidden,” Anglin points out.

    Straight out of John Yoo’s back of tricks. I hope the committee members are well prepared with questions about all the wheels that have come off over the last few weeks in Washington.

  2. “If Khadr was being held in China or Saudi Arabia, Canadians would have reason to worry, Anglin says.”

    Isn’t that sort of in line with the Government’s new position on capital punishment and extradition of Canadians in jail abroad: if we think the legal system provides due process, then the Canadian is SOL, but if it has a crummy legal system, we’ll do our best. ‘Cept it prob doesn’t help your case when you say, “hey, we think you’ve got a bad legal system, would you mind giving us our citizen back?”

  3. I remember Howard when he was at McGill — a “character” to say the least. Mostly comical. I can’t imagine anyone taking him seriously. Actually, I don’t think he even takes himself seriously.

    I don’t know Velshi, but I’ve followed him through his various blogs since he was at LSE. Consider him yet Pierre Poilievre-clone. Throw in Rob Anders and you realize that Canada produces a surplus of obnoxious young men.

    Velshi and Anglin certainly know each other from when Velshi lived in DC, interning for the American Enterprise Institute.

  4. Was Anglin claiming that Khadr is in Camp Iguana ( @ 12.30.18)? Because he isn’t and never was, as Marston seems to know.

  5. “I don’t think Gerda ever did the deed, did she? Just lots of long, lingering looks?”

    Ah, such innocence…

  6. I’ve asked before, and I’ll ask again: where does the Optional Protocol say anything about the trial of child soldiers? Folks seem to want to have fun with Anglin’s suggestion that the Optional Protocol doesn’t ‘expressly’ prohibit such trials (though Kady would oblige us by filling in her ellipse in Anglin’s quote); but where does the Optional Protocol even imply that such trials are unwarranted? In fact, since the new line seems to be that we just want to try Khadr here, shouldn’t we, you know, agree with Anglin’s reading of the OP? And if we decide simply to ridicule his interpretation, isn’t that a pretty strong sign that we’re not really serious about trying him at all?

  7. kady has a very and I mean very good point because let’s face it folks the next few weeks are going to be chalk full of questions regarding Bernier’s babes by the opposition knowing full well the gov’t can’t answer all the while real problems like Khadr will be slipping down the slope of media priority – ah well you gotta love democracy inefficient as h%ll but what choice do you have as there are few other reasonable options.

  8. I believe it was “.. for war crimes” … I just didn’t catch the full sentence in time, so I ellipsified rather than guessed. As for trying him here, it would almost certainly not be on “war crimes”, from what I can tell, but would probably involve at minimum material support for terrorism, and possibly murder/assault charges, depending on whether sufficient evidence against him could be assembled by Canadian authorities, since much of the current material might well be ruled inadmissible. If you’re curious about how that process might unfold, you should check out the factum put together by the University of Ottawa students who testified yesterday. They did a very thorough job of exploring the possibilities.

  9. David Mader, see the Optional Protocol, article 6 (3). That’s where. If you read David Crane’s earlier testimony to the subcommittee, you will learn that, after the extensive use of child soldiers in Sierra Leone, provision for special courts for child soldiers 15 to 18 years was made — courts staffed by specialists in juvenile justice, no punitive justice allowed, rehabilitation only — and even then, Crane, the chief UN prosecutor in Sierra Leone, decided not to prosecute anyone under the age of 18.

  10. Shall do; is it available online?

    Also, though we’ve been using the term ‘war crimes,’ it appears Khadr is being tried for more particular offenses – specifically, as noted in this notification of charges (pdf), he’s being tried for i) murder in violation of the law of war (10 U.S.Code 950v(b)(15); ii) attempted murder in violation of the law of war (10 U.S.C. 950t; iii) conspiracy (10 U.S.C. 950v(b)(28); iv) providing material support for terrorism (10 U.S.C. 950v(b)(25); and v) spying (10 U.S.C. 950v(b)(27).

    Point being, these are relatively particular charges – and they sound an awful lot like the “material support for terrorism, and possibly murder/assault charges” you suggest Khadr might face here. That being the case, it’s increasingly hard to avoid the conclusion that the real objection is that he’s being tried by Americans!

    Don’t mean to be a pest (well, a little bit I do), but you’ve opened up this whole new world of wonkery, and it’s hard not to partake.

  11. Skdadl – that’s fair enough; I can certainly see how demobilization and release from service, together with physical and psychological recovery and social reintegration, might suggest a reduced role for punitive justice. But – as I’ve argued here – surely there still needs to be a determination of whether each individual child soldier ought to be entitled to this sort of protection. Presumably we afford child soldiers additional protection not simply because they are/were children but because, being children, they are less likely to have been able to make the sorts of decisions that give rise to culpability. But that’s necessarily an individualized determination; some fifteen-year-olds will be perfectly able to make culpable decisions; some twenty-five-year-olds will not. David Crane may have been perfectly within his rights not to prosecute any minors, but I submit that his was a subjective decision and certainly not one that should bind us or our American allies. At the very least, shouldn’t child soldiers be subject to a preliminary hearing to determine whether or not they are entitled to the sort of deferential ‘juvenile justice’ Crane proposed?

  12. (Incidentally, though, while I can see how Article VI(3) can be read to militate against trying child soldiers, that seems to me to be a pretty tortured reading. On its face, the clause – which appears in an Article addressing implementation of an agreement banning the recruitment or use of child soldiers – simply exhorts the member parties to take necessary measures to remove child soldiers from their own ranks, and to ensure that children who had been recruited by the member party are reintegrated into civilian society.)

  13. David, I’m trying to answer, but a previous comment isn’t coming through, perhaps because it had links in it, so I’ll wait until that shows up (if it does).

  14. Skdadl, I’ve found that the Maclean’s blog software only allows two or three links per comment; I’ve had a few link-heaving comments get lost in the ether. One work-around is just to write out the URL.

  15. “At the very least, shouldn’t child soldiers be subject to a preliminary hearing to determine whether or not they are entitled to the sort of deferential ‘juvenile justice’ Crane proposed?”

    Sounds like a boffo idea to me, but given that it’s been six years, that doesn’t seem to be in the cards. Can you suggest a reason Omar Khadr might not meet the threshold for consideration as a child soldier?

    The difference between the charges he could face in Canada–there’s lots of them–and the charges he’s facing in the US is simply that he’d face them here under a system that all agree complies with international law. Well, and also, that he wouldn’t be facing a life sentence based on a reduced standard of evidence, but instead some sort of civilized punishment in line with what every single other western nation arranged for its own citizens who found themselves at Gitmo.

  16. Going back to my original post on the subject, Chris, I’d argue that the question is not whether an individual like Khadr meets the threshold for consideration as a child soldier, but rather whether an individual like Khadr, acknowledged to have been a child soldier, is entitled to heightened protection under the law. As I argue at the above link, we protect child soldiers (and other child defendants) not because they are children but because, as children, we assume they lack the capacity necessary to the mental state that culpability requires – absent contrary evidence. So if, in a prosecution of a child soldier like Khadr, the government could show that the defendant, far from being the victim of brainwashing, did in fact make a knowing and intentional decision to commit the charged offense, I don’t see why such a defendant shouldn’t be treated like any other culpable defendant.

    In truth, Chris, I’m not opposed to the repatriation and trial of Khadr as a political matter. My main interest in pressing the point has been simply to figure out the terms of the debate. Are critics opposed to the notion of Khadr standing trial at all? Or only to his being tried by an American court? Or only to his being tried by the military commission at Gitmo?

    As some of the comments here illustrate, many Canadians do seem to believe that Khadr should not stand trial if repatriated. I’m still not clear whether Sen. Dallaire is among that camp. To the degree that the critics mean only to see Khadr tried in a Canadian court under the laws and standards suggested by the UofO team, I have no strong political objection, except to say that as a simple matter of comity we might be wary of condemning foreign proceedings on the basis of a disagreement over substantive law.

  17. The Ottawa U Law Students brought up Sections 431.2, 83.18 and 83.2 of the Criminal Code relating to terrorist activity; and Sections 16, 17 and 20 of the Security of Information Act relating to terrorist influenced threats of violence and communicating information to terrorist groups;

    These are all jokes. Even they admit in their own report “Few people have been charged under the terrorism provisions of the Criminal Code. Of these charges, none have gone to trial. In some cases, the provisions have not been considered by the court at all. As a result, there is virtually no Canadian case law to guide interpretation of the provisions.” This is theoretical and should not serve as responsible testimony.

    I can go through these one by one if you would like.
    Should Canada have laws that would allow us to prosecute Khadr? Probably. Do we have them now? No.

  18. The Bush Presidency recently reported to the UN that it has only held 10 children in Guantanamo. This was in spite of the clear evidence of the captives’ estimated ages on the first official list of captives showed that they acknowledged holding at least 20 captives under 18.

    For the record only three of the youngest children were held in Camp Iguana. They were repatriated on January 29th, 2004, when Camp Iguana was closed. It was re-opened a year later, but was only used to detain 10 captives whose enemy combatant status was not confirmed by their Combatant Status Review Tribunals.

    Bryan Del Monte, when he was Deputy Assistant Secretary of Defense for Detainee Affairs, claimed Khadr was held in Camp Iguana, but this was clearly incorrect.

  19. WRT to trying Khadr. The US Congress screwed up big time when it passed the Military Commission Act. The Geneva Conventions proscribe trying captives from being tried for acts committed on the battlefield, unless a “Competent Tribunal” has determined they violated the criteria for being considered a “priveleged belligerent” who is entitled to the protections of the POW status if captured.

    Don’t be fooled. The Combatant Status Review Tribunals do not fulfill the USA’s Geneva Conventions obligations. I’ve read AR-190-8, the Army Regulation that lays out how the USA is supposed to conduct one of these competent tribunals.

    Outwardly the CSR Tribunals were modeled on the AR-190-8 Tribunals — except for one thing — they had a totally different mandate.

    That different mandate made all the difference in the world.

    The Tribunals that comply with the Geneva Conventions are authorized to reach one of three conclusions: (1) the captive is an innocent civilian, not a combatant; (2) the captive is a combatant, but one who is entitled to the protections of POW status, and can’t be tried; (3) the captive is a combatant, who has violated the Geneva Conventions’ criteria for privileged combatants, and thus can be tried.

    The Guantanamo Tribunals were only authorized to reach one of two conclusions: they could confirm or dispute the previous, secret determinations that the captive was an “enemy combatant”.

    British captive Moazzam Begg had been issued a POW card, and had requested some witnesses around his POW status. The CSR Tribunal’s legal advisor’s memo on the Tribunal was crystal clear that the CSR Tribunals were not authorized to consider whether a captive qualified for POW status.

    So, the USA is violating the Geneva Conventions by trying any of the captives.

  20. WRT to the Bush Presidency’s definition of an “enemy combatant”. In 2005 US District Court Jude Joyce Hens Green, while considering a couple of dozen of the captive’s habeas corpus petitions, had an opportunity to ask some tough questions of senior Department of Justice officials. Paraphrasing from memory here, she asked whether a little old lady, from Switzerland, who innocently donated her widow’s mite to what she thought was a legitimate charity could be considered an “enemy combatant” if some of that charity’s funds were diverted to a terrorist project.

    Justice Joyce Hens Green was told that widow could be considered an “enemy combatant”.

    And, if you read the transcripts you will see captive after captive who was alleged to be an “enemy combatant” based on wildly over-broad interpretations of combatant.

    The Geneva Conventions are clear. Veterans of earlier conflicts, who don’t engage in the current conflict, are civilians. But the allegations the captives faced stated that the captives were combatants because they fought against Afghanistan’s Soviet invaders.

    One old grandfather had served in the peace-time Army of the King of Afghanistan, during the early 1960s.

  21. Indieright,

    The current laws that apply to Khadr are no good because they’re untested, so we should make new laws that would apply to people like Khadr. Is that what you’re saying?

  22. If the USA had provided Khadr with a “competent tribunal” would it have determined he met the criteria for being considered a “privileged combatant”, who was protected from trial for acts committed on the battlefield?

    I don’t know.

    But I do know that apologists for the Bush Presidency policies frequently mislead their readers. They frequently claim “the Taliban never wore uniforms”. First, actually, the Geneva Convention doesn’t require combatants wear a “uniform”. It requires they wear a “fixed distinctive marking, visible from a distance.” Second, numerous captives had their detention justified based on what they were wearing. Numerous individuals were apprehended near skirmishes wearing “olive drab” jackets. Several captives faced the allegation that they had been issued “taliban uniforms”.

    Apologists claim the Taliban didn’t follow a chain of command. Well, one captive had been the Governor of Herat Province. One allegation offered as a justification for his detention stated:

    “Detainee was appointed the governor of Herat Providence in Afghanistan from 1999 to 2001. Detainee worked for Mullah Omar while serving as governor. The detainee had control over police and military functions in Herat to include administration of the Taliban’s two largest divisions. Detainee was required to route all decisions through Mullah Omar.”

    I think this allegation makes perfectly clear that the USA acknowledges that the Taliban followed a “chain of command”.

    We have now beem told that Khadr’s dad had sent him to serve as a translator for Abu Ghayth Al Libi, an al Qaeda leader. Does this strip Khadr of the protections of POW status? I dunno.

    But I have read the allegations against Bandar Ahmad Mubarak Al Jabri, one of which stated he was a member of the 55th Arab Brigade:

    “The al Qaida Force, or 55th Arab Brigade, is Usama bin Laden’s primary formation supporting Taliban objectives…includes willingness to give their lives for tactical objectives as declared by Usama bin Laden and the Taliban.”

    It seems to that the Bush Presidency has taken the position that foreigner fighters in this 55th Arab Brigade were integrated into the Taliban’s Army, similar to the Gurkhas, or the French Foreign Legion.

    It seems to me that Khadr is still in the position that a competent tribunal still has to establish that he does not meet the criteria for POW protection before the USA, or Canada, if he is repatriated, can try him.

    Many Americans have told me he has to be made to pay for fighting Americans. Well, if it can’t be established he violated the Geneva Conventions, then no, he doesn’t have to pay. He can be held, until hostilities cease. But he has to be kept in humane facilities.

  23. No. What I’m saying is that the testimony of the law students was presented in such a way to lead us to believe that he will be prosecuted if he is repatriated. This is irresponsible. More importantly, if he were sent here, he would almost certainly be barred from prosecution because he was a child solider. If not that, he was a minor. If not that, all evidence gathered in the US would be inadmissible in Canada… so why not call a spade a spade. I’m not advocating anything here but a fair understanding of what may actually happen in accordance within the context of Canadian law.

  24. Came to this late and, as I’m not a lawyer, don’t have anything helpful to contribute to the debate, but did want to follow up on a comment from an earlier poster.

    I don’t know Paul Secam but also knew Howard at McGill. I know what Secam means when he says he was a “character,” – he certainly often dressed and spoke to provoke or entertain and never took himself too seriously. But in his defense he was by far the smartest guy I met in my two years there and definitely one of the nicest. Always bought me an extra whisky when neither he nor I could afford it. I don’t know if his arguments are any good, but I would take him seriously if only for his intellect.

    Thanks for the interesting blog.

  25. According to Unicef, a child soldier is defined as any person under the age of 18 who is part of any kind of regular or irregular armed force or armed group. These child soldiers are viewed by most Governments and world institutions as victims who require varying degrees of trauma healing, rehabilitation and reintegration into their communities. According to the South African Society for the Prevention of Child Abuse and Neglect, the healing process for child soldiers involves an intensive three stage process:

    1. The establishment of safety

    2. A process of remembrance and mourning, and

    3. Reconnection with ordinary life

    According to their website, the overall focus of treatment is to “provide opportunities for restoring normal and whole-life childhood experiences, to experience loving and supportive communities and thus draw heavily on the cultural and social environment resources that have meaning to the individual child soldier.”

    Most sane and decent people would agree that a humane and compassionate response to child soldiers is most appropriate. And these types of rehabilitation programs have proven to be very effective when they are given adequate support and financing. One living example of this success is the story of Ishmael Beah. At 15 years of age he was rescued from the battlefields in Sierra Leone by UNICEF and rehabilitated in a facility run by a nongovernmental organization known as “Children Associated With the War.” Eventually, Beah made his way to the United States, where he graduated from college and wrote his poignant memoirs, which received international acclaim. Beah is now a UNICEF advocate for children affected by war and travels the world to lobby governments to rehabilitate and reintegrate former child soldiers into society.

    Now contrast this with the case of Omar Khadr, a Canadian citizen who was taken from Canada to the Middle East by his family when he was a teenager. Khadr was also removed from the battlefield when he was 15 after his father was killed and he was wounded during a firefight with U.S. troops. Instead of being returned to Canada for treatment and care, he was sent to Guantanamo Bay as an enemy combatant and held for years without charge in cruel and unusual conditions. And rather than coming to his aid, successive Canadian Governments ignored their moral and ethical responsibilities by leaving him to rot.

    In fact, Canada was aware as early as 2003 that Khadr had been subject to torture. We know this because the documents ordered released by the Supreme Court of Canada to Khadr’s defence team confirm it. As early as 2003, Khadr complained to Canadian interrogators that he had been tortured by American personnel in Afghanistan and that he was giving false statements and confessions out of fear that the torture would resume. The Canadian diplomat interviewing Khadr apparently had some kind of unmentioned psychic powers and dismissed his allegations out of hand and chose not to pursue the matter. The Canadian official, R.S. Heatherington, wrote in a report dated February 20, 2003:

    “On the second day…he was despondent, alleging that everything he had said was lie and only said because he feared a resumption of the torture he had undergone while in American custody in Afghanistan. To a non-professional interviewer Mr. Khadr’s allegations and protestations – including tears and the removal of his shirt to show the scars he said were inflicted in the course of the torture – did not ring true. Rather it looked as though he had been coached overnight to cast doubt on the things he had said the day before.”

    This was a colossal failure on the part of Foreign Affairs and the Canadian Government. Why did Canada send a so-called “non-professional” interviewer to assess Mr. Khadr’s condition? And why was this “non-professional” permitted to simply dismiss Khadr’s allegations of torture at the hands of his American captives? Why were these allegations not investigated further? Omar Khadr was a vulnerable and defenceless Canadian child being held in isolation outside of the normal course of justice and when he complained about torture, the Canadian investigator simply concluded he was lying. This response was shameful and woefully inadequate. Particularly when you compare it to the treatment that Brenda Martin received from the Canadian Government during her imprisonment in Mexico. Jason Kenney (Canada’s Secretary of State for Multiculturalism) personally visited the country in order to secure her release back to Canada.

    In another report by Foreign Affairs dated February 17, 2003, Khadr stated that he didn’t want to fight the Americans but that “he had to”. This is not difficult to envision. Surrounded by adults with guns in a foreign land would naturally make a child vulnerable to manipulation and intimidation. That is all quite logical. Khadr also stated that he was staying with “bad people” in Afghanistan who were killing Americans instead of fighting the Northern Alliance. This hardly sounds like the hateful rhetoric of a jihadist and a terrorist.

    A report filed by Canadian officials on April 20, 2004 describes Khadr in a way that suggests he was emotionally and psychologically disturbed by his long captivity. The diplomats report that when he was given a picture of his family and left alone, he managed to undo his pants and urinate on the picture. After he was cleaned up and his shackles were tightened, Khadr manged to remove his pants again and urinate on the picture a second time. Later that day, he put his head down beside the picture and appeared to express affection towards the image. In a videotape of one of Mr. Khadr’s interrogation by Canadian officials, it appears that Khadr is repeating to them, “Kill me, kill me”. He also states that he didn’t kill anyone and he pleads with the Canadian visitors to “protect him from the Americans”. This doesn’t sound like a child who is enjoying optimal mental health and Canadian interrogators suggested it may be an issue if he was ever returned to Canada.

    These reports also confirm that Khadr was placed in the “frequent flyer” program before one visit by Canadian interrogators in order to “soften him up”. The “frequent flyer” program involved weeks of isolation and extreme levels of sleep deprivation. In other words, he was tortured. Why the Canadian Government did not step up its efforts to protect Omar Khadr is a complete mystery. They simply abandoned him to several additional years of imprisonment.

    And what is the position of Canadian Prime Minster Stephen Harper today? He takes the view that Canada has no option other than letting Omar Khadr face the sham of a military tribunal conducted by the Americans. No attempt to repatriate Khadr to Canada will be made and the Government is not eager to discuss the matter any further. This position flies in the face of many expert opinions that the Canadian government does have options when it comes to Omar Khadr. It is also worth nothing that all other “Western Nations” have managed to have their citizens who were imprisoned at Guantanamo brought home. Canada stands shamefully alone in this regard.

    In response to Harper’s comments, Kadhr’s military appointed lawyer (U.S. Navy Lt.-Cmdr. Bill Kuebler) has lashed out with great force. He has made the following statements in recent days:

    “I think it’s deplorable that he would say that there’s nothing to be done. This Canadian prime minister refuses to stand up to the Bush administration and protect the rights of a Canadian citizen.”

    “You (should) stand up for the rights of a Canadian citizen, you follow the law, you do the right thing, you stop taking your orders from the Bush administration. You should also stop being the last Western leader to subsidize a clearly failed policy at Guantanamo Bay.”

    “The prime minister, through his cabinet members, particularly Mr. (Peter) MacKay, have long said that they have been assured that Omar Khadr was being well treated, when in fact the Canadian government well knew that was not the case.”

    Indeed, they did know that this was not the case. The Government has known since 2003 that Kadhr was being mistreated and they chose to do nothing. The question is why. And will anyone be held accountable for this miserable failure? The life of a Canadian child lies in ruins because of their inaction. Shame on them.

    Spencer Spratley

  26. I don’t blame him in the least for what he did to the photograph : well he is going to court in October so knowing the Yanks he will be judged guilty shortly after that and then no doubt he will be back in here in prison with us picking up the tab again. The craziest thing about all of this is that his father used his Canadian disability pension to pay for their trip to help Al Qaeda – then they lost their passports 3 times? (Yeah Right – do you know how much you can sell a Canadian passport for?) … good grief is all I have to say.

  27. I just watched the CPAC replay of Howard Anglin’s testimony before the committee last night. My god, you egregiously misrepresent his arguments repeatedly. Are you dishonest or cognitively challenged? But that fact that you begin with some good old fashioned ad hominem argument maybe is fair warning to the reader, except, of course that raising logical fallacies to the level of methodological virtues is pretty much par for the course among our deep thinking media elite these days.

    Oy vey.

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