By Vincent J. Curtis
I am long familiar with the Khadr case and the matter of Gitmo (aka the U.S. prison camp at Guantanamo, Cuba), having written about both beginning in 2008. My piece entitled “The Most Famous Canadian in Cuba,” for example, appeared in the June 2008 edition (Volume 15 Issue 5) of Esprit de Corps.
Permit me to shed some unwelcome light on the Omar Khadr matter, as none of the opinions published that I have seen appear to have taken into account the laws of armed conflict and, in particular, the third and fourth Geneva Conventions.
The purpose of the Geneva Conventions is to minimize destruction, death and suffering in war by placing legal boundaries. One of the boundaries is meant to clearly identify who is a combatant and who is not, and therefore who are attackable and who are not. Monte Cassino in Italy, for example, would not have been destroyed by the Allies during the Second World War but for the (erroneous) impression that the Germans were using it as a defensive post. Being a defensive position made Monte Cassino attackable, despite its being otherwise protected by the Convention. Chiselling with the Convention on the margins is no small matter.
Even by the generous standards of the fourth Geneva Convention, Omar Khadr was not a lawful combatant, though combatant he was. This does not make him a “child soldier” because he was not a soldier in the first place. Khadr in Afghanistan was a foreign national, and a civilian at the time he threw the grenade that killed Sgt Chris Speer on the battlefield. Khadr’s violating the Convention endangered the lives of lawful non-combatants.
By rights, Khadr could have been summarily executed on the battlefield, as some Germans were in WWII. He was not, because of the intelligence value he might have possessed. His intelligence value was all his life was worth until he was transported to Gitmo, where he fell under a different legal regime.
The detainees at Gitmo were called “detainees” and not “prisoners of war” because they did not qualify as POWs under the Geneva Convention. They were all either unlawful combatants or war criminals of some sort, but that they were all alive is due to the decisions of President George W. Bush. There were no legal precedents for fighting this kind of conflict.
Because of lack of precedents, the U.S. Congress enacted The Detainee Treatment Act (in 2005) and the Military Commissions Act (in 2006), which established military tribunals as a means of disposing of the cases of some of the Gitmo detainees. These Acts were consistent with the Eisentrager decision of 1950, which held that U.S. Courts had no jurisdiction over the handling of German POWs.
The price of Khadr’s release to Canada was that he admit he killed Chris Speer; we ask for nothing less from murderers under Canadian law before parole. Khadr admitted his guilt, and so was released to Canadian custody to serve out the sentence he received from the legally competent tribunal. That Khadr now recants his admission while safe in Canada impresses me not at all.
Regardless of what the Bush haters say, Khadr was not tortured — if that word is to have real meaning. He was not waterboarded, the most extreme practice, which was retrospectively determined by the Obama Administration to be torture. Khadr says he was heavily interrogated and frightened in order to deliver what intelligence he might possess, but that intelligence was why he was still alive. (The Manchester Document makes me skeptical of his claims.) That strong measures were employed during his interrogation is a sign to me that he resisted answering questions. His treatment would have been different had he been forthcoming with answers.
The business of Khadr’s receiving $10-million from Canadian taxpayers is connected to the Supreme Court of Canada’s distaste for Gitmo and that Khadr was interrogated there by CSIS agents.
The Supreme Court of Canada weighed in on the Khadr matter in a way that demonstrated fatuousness in my eyes. It opined that Khadr’s rights under the Canadian Charter of Rights and Freedoms were violated. I’m sorry, but Khadr was in the custody of Uncle Sam, who is under no obligation to uphold Canadian rights. One reason for using Gitmo was to prevent the American legal system from meddling in these military matters per Eisentrager, and as the U.S. Supreme Court largely upheld in its Hamdi v. Rumsfeld decision of 2004. (Hamdi was a U.S. citizen, which gave U.S. courts some jurisdiction, and a condition of his Habeas release was that he renounce his citizenship and accept deportation to Saudi Arabia. Hamdi departed without money or apology.)
As for Khadr’s interrogation by CSIS agents, under what conditions could the Canadian government ascertain for itself Khadr’s condition in Gitmo? Khadr, a Canadian citizen who committed an act of war against America, represented a delicate diplomatic matter between the Bush administration and the Chrétien government, and demanding he be visited by a Canadian diplomat would have been unproductive. The CSIS route was workable because it did not impugn the Bush administration. Khadr’s prior treatment at American hands immediately before he was questioned by CSIS does not make Canada complicit.
The Nuremburg trials gave the legal profession the idea that war ought to be brought under the jurisdiction of the legal profession. We saw in Yugoslavia and the Kosovo campaign how disastrous meddling lawyers can be in war.
In his Boumediene dissent, Supreme Court Justice Antonin Scalia complained of “an inflated notion of judicial supremacy” and mocked the majority’s worry about “areas in which the legal determination of the other branches will be (shudder!) supreme.”
Inflated notions of its importance is what led our Supreme Court to favour Khadr. That meddling, and our political branch’s apology and payout in the face of it, is leading to diplomatic issues because Canada is seen as officially unmindful of Khadr’s illegal act of war.