Vincent J. Curtis
25 July 2017
I am long familiar with the Khadr case and the matter of
Gitmo, having written about both beginning in 2008. My piece entitled “The Most Famous Canadian
in Cuba”, for example, appeared in the June, 2008 edition of Esprit de Corps. (Vol 15.5)
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 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 possess. 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, 2004, and the Military Commissions Act, 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 that 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 Chretien 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 favor Khadr. That meddling, and
our political branch’s craven apology and pay-out in the face of it, is leading to diplomatic
issues because Canada is seen as officially unmindful of Khadr’s illegal act of
war.
-30-
A version of this appeared in the Sept 2017 edition of Esprit de Corps magazine.
No comments:
Post a Comment