Omar Khadr: a political inkblot test

The political positions on the Khadr payout reveal the difficulties of separating partisan loyalties from the principles of fairness

Omar Khadr walks to meet the press before a news conference after being released on bail in Edmonton, Alberta, May 7, 2015. Khadr, a Canadian, was once the youngest prisoner held on terror charges at Guantanamo Bay. (Todd Korol/Reuters)

Omar Khadr has become a political inkblot, a Rorschach test for Canadian politicians onto which they project their own agendas. Revelations about the government’s apology and reported payment of $10.5 million to Khadr sparked furious reaction that breaks down along political lines. There are the “Never Pay” Conservatives, the “Had to Pay” Liberals and the “Must Pay” NDP. Each has a justification for their position and each has revealed how difficult it to separate partisan loyalties from the principles of fairness.

“Justin Trudeau should never have agreed to a secret deal that gave a convicted terrorist millions of dollars,” Conservative leader Andrew Scheer quickly declared. “As prime minister, I would have fought against this payout in court.” Fair enough. Unless the court actually ordered a payment, Conservatives would not give Khadr a dime. According to an Angus Reid poll, Scheer has the support of most Conservatives and 71 per cent of all Canadians. What is most galling to those opposed to the deal is the amount of money paid to someone who was once videotaped building IEDs and who allegedly threw a grenade that killed American special forces soldier Christopher Speer.

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Stephen Harper and his wife Laureen have also been vocal adversaries of the payment, and are even raising money for Speer’s widow. Another former U.S. soldier, Layne Morris, who was blinded in one eye during the 2002 battle in Afghanistan, has worked with Speer’s widow Tabitha to freeze the money given to Khadr so they can proceed with their $134.1 million dollar claim against him. (A judge just turned down their request.) Still, the politics around Khadr are much more straightforward than his actual case—as the thinking goes, you’re either with the criminal or the victims.

The reduction of the case to this binary viewpoint may well be based on principle, but it also happens to be good politics. The Khadr payment helps Scheer unify and galvanize the Conservative base. This is a defining issue for his members and allows him to double down on the claim that Liberals are soft on crime and terror.

The problem with the Conservative position is not that it lacks a general principle, it’s that it has wilfully ignored the specific facts of the Khadr case. When Khadr allegedly threw the grenade—it’s all a very hazy account—he was 15 years old, the international definition of a child soldier. His subsequent confession to killing Speer at a military tribunal took place at Guantanamo Bay prison, where Khadr was, according to international standards, tortured.

READ MORE: Yes, sleep deprivation is torture

This is not a subjective view.  As early as 2008, the Supreme Court of Canada concluded that because Canadian officials knew about Khadr’s situation and what was happening to him, and they were aware that he was a minor, the “regime providing for the detention and trial of Mr. Khadr at the time of the CSIS interviews constituted a clear violation of fundamental human rights protected by international law.” In a later unanimous 2010 decision, that court went further, concluding that Khadr’s Charter rights were violated—the Charter does apply to citizens abroad if the government was involved in the actions that took place—and that the government would have to offer some form of compensation. In the wake of these decisions, Khadr recanted his confession.

Here are the inconvenient facts: starting with the Chrétien and Martin governments and continuing under the Harper government, Canadian officials were aware that Khadr’s rights were being violated at Gitmo and did nothing to stop it. As bad a guy as Khadr might be, rights are rights and must be protected. That’s not a line you hear much in the Conservative view because the politics has taken over the principle. But being tough on crime should not come at the expense of being easy on Charter violations.

The Liberals’ “Had to Pay” position is founded on this argument, but they have their own problems—the most obvious being that the majority of Canadians believe the government did the wrong thing. “The measure of a society, a just society, is not whether we stand up for people’s rights when it’s easy or popular to do so, it’s whether we recognize rights when it’s difficult, when it’s unpopular,” Trudeau said this week, trying to deal with the severe blowback his government is getting. It was interesting that he invoked his father’s old “just society” idea as a way of lending legitimacy to the Khadr deal. Later in the week, the Prime Minister reiterated that violations of the Charter are costly, and said he hopes future governments will learn a lesson from the payment.

RELATED: In the Khadr settlement, the Conservatives find their fight

Trudeau might be not wrong on principle, but his government has been sloppy and obstructive on the explanation. The story of the apology and payment emerged in the middle of the summer while the PM was away at the G-20 summit, just a day before the Fourth of July celebrations in the U.S. That’s a classic way for a government to bury an unpopular story and hope it goes away. It didn’t. Instead, Robert Fife of the Globe and Mail broke the story. There was no press conference where the Liberals proudly waved the “Just Society” banner until after the story was in the media. I had heard about the pending deal from a source, but not a single government official would confirm it. They clearly knew the public would be angry about this, and they didn’t really have good answers to some fundamental questions: why did they settle on $10.5 million? How much money goes to the Khadr lawyers? Why now? Why was it all done so secretly? There are many questions.

The government then tacked from principle to prudence. It was really about saving money. “If we had continued to fight this,” Trudeau said, “not only would we have inevitably lost, but estimates ranged from $30 to $40 million that it would have ended up costing the government. So this was the responsible path to take.” That’s a very different explanation of the deal, and it sounds like the Prime Minister is putting a price on principle. And how does Trudeau know the government would have lost in court? How does he know what the court would order the government to pay? If the idea is that in a Just Society, a government must compensate people for rights violations, then so be it. Stand for that. Set the benchmark, pay and defend it. There is case law to back that up. But don’t then claim it was all about saving money. It is hard to have it both ways.

The politics of this will stick to the Liberals for a long time. Even staunch members, people like Warren Kinsella, didn’t like how all this rolled out. He told me his old boss Jean Chrétien would never have proactively paid, but simply waited for the Supreme Court to order it so he wouldn’t have to wear it. It is a lose-lose scenario, but Chrétien at least would have signalled that sometimes in a Just Society, the courts ought to do the job of upholding justice. Interestingly, there are legal scholars I’ve spoken to who are relieved the government took the political heat on this decision rather than the courts. This decision costs anyone political capital.

OPINION: The shady business of paying Omar Khadr

The NDP’s position is righteous and had a legal justification—you must pay for the violations of the rights of citizens—but it can come off as tone deaf to the politics of the decision and sometimes insensitive to the losses suffered that day on the battlefield. Omar Khadr might be a victim, but lionizing him also distorts the picture. He was on the wrong side of the fight, and the fight, in this case, is for the right side of history. That should never be forgotten.

The casualty here is that in fighting to be on the right side of history, Canada abdicated the very principles our men and women in uniform were defending. That has proved morally and now financially costly. It is tempting to use the Khadr case to further the aims of a partisan agenda, but that makes it all worse. No one has won in this farrago—not those demonizing Khadr, not those paying him, and not those lionizing him. Project what you want onto this case, but what reflects back is a collective failure by all sides to live up to the basic values Western democracy represents. Taking back the money from Omar Khadr won’t fix that any more than paying him did.