$134-million claim against Khadr is based on false information and should be thrown out, lawyer argues, by Michelle Shephard, 29 août 2017
A multimillion-dollar claim seeking damages against Omar Khadr for the death of a U.S. special forces soldier should be dismissed because it relies on false information and a conviction before Guantanamo’s controversial military courts, documents filed Tuesday state.
Nathan Whitling, Khadr’s lawyer, wrote in the statement of defence to the Ontario Superior Court of Justice that the Utah claim for $134.1 million (U.S.) “would never have existed but for the unlawful detention, abuse, torture, and other mistreatment of (Khadr) in Bagram and GTMO.”
Khadr, now 30, was shot and captured in Afghanistan by U.S. forces on July 27, 2002, at the age of 15. Delta Force soldier Christopher Speer was fatally wounded during the firefight AND Sgt. Layne Morris was hit by shrapnel and lost sight in one eye. Khadr, grievously wounded and also blinded in one eye, was transferred to the U.S. base in Bagram, Afghanistan, where he received life-saving medical treatment and was interrogated for nearly three months before his transfer to Guantanamo, also known by the acronym GTMO.
Morris and Speer’s widow, Tabitha, brought a wrongful-death suit against Khadr, winning by default in 2015. (Khadr was detained at the time in Canada.) They are appealing to the Canadian courts to enforce the ruling.
But Whitling wrote that part of their claim, stating that Khadr was the only person alive in the compound in Afghanistan when Speer was hit by a grenade, is false.
“The evidence before the military commission confirmed that there was a combatant alive in the compound and firing his weapon at the U.S. combatants entering the compound, which individual was . . . in the same area from which the grenade had been thrown.”
Khadr accepted a Pentagon plea deal in Guantanamo in 2010 for an eight-year-sentence and a chance to be repatriated to Canada in exchange for admitting that he threw the grenade. He said upon his return that he considered the plea deal the only way he would ever leave Guantanamo — and that he is unsure about his memories of the firefight. His lawyers have argued based on where he was in the compound, it would have been impossible for him to have thrown the grenade that hit Speer.
Whitling, in his statement of defence against the Utah suit, further argues that Canada cannot enforce a judgment based on a conviction under the military commissions at Guantanamo.
“The supposed U.S. common law of war relied upon by the U.S. prosecutors did not exist at the time of the alleged conduct (by Khadr), does not exist today, and is unknown to the international community of nations,” he wrote.
Khadr received an apology, and along with his lawyers was given a $10.5-million settlement from Ottawa for his mistreatment by Canadian officials while held as a minor in Guantanamo.
Canada’s Supreme Court has harshly condemned the federal government for its mistreatment of Khadr — under both past Liberal and Conservative governments.
Khadr lives now in Edmonton, was recently married and plans to attend courses this fall to become a nurse.
On Thursday, Whitling will ask an Edmonton judge to relax Khadr’s bail conditions to allow him to visit his sister, Zaynab, without supervision, when she visits Canada.
Khadr can only have contact with Zaynab if his lawyers or bail supervisor is present and he argued in an affidavit before the court that this restriction is no longer required. “I am now an adult and I think independently,” he writes in the affidavit. “Even if the members of my family were to wish to influence my religious or other views, they would not be able to control or influence me in any negative manner.”
He is also requesting fewer restrictions on his movement and access to the internet.
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