Omar Khadr fact check paints a clearer picture of the case and the incident underlying it, Michelle Shephard, 10 juillet 2017
The Liberal government wants the story to go away.
Conservative parliamentarians, past and present, want to keep the news cycle going.
The lawyers have gone silent.
And social media has gone into hyper drive.
The saga of Omar Khadr, and all the political baggage his case drags with it, has been going on long enough that Canada has had four different prime ministers: Jean Chretien, Paul Martin, Stephen Harper and Justin Trudeau. July 27th will mark the 15-year anniversary of the firefight in Afghanistan during which Khadr, at the age of 15, was shot and captured and U.S. Delta Force soldier Sgt. First Class Christopher Speer was fatally wounded.
But last week’s news of a $10.5-million settlement and the Canadian government’s apology sparked unprecedented debate across the country.
Some questions remain unanswered. Many of the purported facts fueling arguments either in support of the settlement or against it have been wrong.
Here’s what we know and what we don’t:
Khadr’s status in Canada: Khadr was born in Canada on Sept. 19, 1986, at Scarborough’s Centenary Hospital. Both his parents were Canadian citizens. His mother was born in Egypt to Palestinian parents and moved to Mississauga as a teenager. Khadr’s father grew up in Cairo and moved to Ottawa to attend university.
Liberal MP Ken Hardie tweeted last week: “(T)he U.S. was invading his country. He was pressed into service at 15, improperly treated medically and legally; Canada was complicit.” Khadr was brought by his parents to Afghanistan and Pakistan at the age of eight, but is not Afghan. Hardie later issued a correction.
The Charter rights of Canadians do not extend to foreign countries; citizens must comply with the laws of the country where they travel.
However, the main claim in Khadr’s $20-million civil suit is that Canadian officials violated his rights when they interrogated him in Guantanamo in 2003 and 2004, knowing he was a minor, without legal representation and had been subjected to torture.
A unanimous Supreme Court ruling in 2010 said they had.
Details of the firefight: The claim in Khadr’s civil suit is narrow: Canadian officials had breached his rights as a citizen. That means details of the firefight and what may or may not have happened in Afghanistan 15 years ago are not at issue.
However, this has been one of the political talking points. “Khadr confessed to murdering Christopher Speer, a medic who rushed to his aid,” tweeted Jason Kenney, leader of the Progressive Conservative Association of Alberta.
That is incorrect according to testimony from the American soldiers who were there.
“I just remember being dumbstruck that there was someone being alive in there,” a Delta Force soldier told the Star during an interview for the CBC documentary Guantanamo’s Child. “After all that bombing, after all the ordinance we dropped in there, somebody was still alive.”
As the soldiers cleared the compound, their weapons were drawn. They did not expect any survivors.
A Pentagon report written after the firefight interviewing the soldier who shot Khadr, identified only as OC-1, raises the possibility that someone else was alive in the compound when the grenade that ultimately killed Speer was thrown. “He heard moaning coming from the back of the compound. The dust rose up from the ground and began to clear. He then saw a man facing him lying on his right side,” the report states. “The man had an AK-47 on the ground beside him and the man was moving. OC-1 fired one round striking the man in the head and the movement ceased. Dust was again stirred by this rifle shot. When the dust rose, he saw a second man sitting up facing away from him leaning against the brush. This man, later identified as Khadr, was moving . . . . OC-1 fired two rounds both of which struck Khadr in the back.”
Randy Watt, the commander who wrote that report after the action, later revised it to state that only one person was alive when the grenade was thrown. In an interview, he attributed the confusion to the “fog of battle.” He changed the report, he said, because he thought Khadr had been killed due to the severity of his injuries.
The report, and testimony from Watt and OC-1, would have been key evidence at Khadr’s Guantanamo trial, which was halted when the Pentagon offered him a plea deal.
A condition of the deal was that Khadr confess to killing Speer, which he did during an emotional 2010 hearing at Guantanamo where Speer’s widow Tabitha was present. Once released, Khadr did not deny throwing the grenade as his lawyers have insisted.
He said he simply does not know and hopes he didn’t.
Speer as a medic: Speer was a decorated soldier and the medic on his elite Delta Force team. According to fellow soldiers, weeks before his death, he saved the lives of two wounded Afghan children lying in a minefield. His wife, Tabitha, told me he wanted to be a doctor and joining the military would pay for his education and provide him with basic medical training.
Medics (unarmed civilians) have always been considered “protected persons” in conflict. Since the drafting of the Geneva Conventions, killing a medic is punishable as a war crime. But that is not what the Pentagon considered Speer. And it was not what Khadr was prosecuted for.
Khadr was charged under the Military Commissions Act, drafted by the U.S. after the Sept. 11, 2001, attacks, which introduced an offence called “murder in violation of the laws of war.” Despite the deaths of thousands of U.S. service members in Iraq and Afghanistan, Khadr remains the only captive charged with killing a soldier.
His conviction is under appeal in Washington, D.C. There have been eight Guantanamo convictions and the D.C courts have so far overturned four.
Utah wrongful death suit: On June 8, a Toronto lawyer for Speer’s family and the family of retired Sgt. Layne Morris, who lost sight in one of his eyes during the 2002 firefight, filed an application to the Ontario Superior Court to enforce a $134-million Utah wrongful death claim against Khadr. It was a default claim, which means Khadr did not offer a defence. He was still in custody when the case was heard.
The claim does not mention the Canadian government; it is between Khadr and the plaintiffs. However, the application also asks that, if required, the court order Khadr’s assets frozen.
Neither Khadr, nor his lawyers, were served notice of the application when it was filed.
On June 22, lawyers for Khadr and Canada’s Department of Justice concluded their court mediation and reached a deal: the government would apologize and compensation would be $10.5 million. But the government did not immediately issue the funds, nor announce the deal.
The evening of July 3, media reported the deal. Sources say the settlement money was given to Khadr and his lawyers July 5.
David Winer, who represents Speer and Morris, told a court July 7 that he did not reach Khadr’s lawyer Nathan Whitling by email until Thursday, after earlier attempts to contact Khadr’s lawyers by fax failed.
The case continues in a Toronto court July 13.
Settlement amount: In 2007, Canadian Maher Arar was given $10.5 million in compensation, plus legal fees. Then-prime minister Stephen Harper formally apologized to Arar for the actions of Canadian officials, which contributed to his detention and torture in Syria.
The Khadr and Arar cases are very different, but some lawyers argue the precedent of the settlement amount is significant for Khadr’s case and his lawyers would not settle for less.
Speaking from Germany this weekend, Prime Minister Justin Trudeau would not confirm the amount, but defended the settlement, saying the Charter of Rights and Freedoms protects all Canadians, “even when it’s uncomfortable.”
Public Safety Minister Ralph Goodale noted that the government had spent nearly $5 million in legal fees unsuccessfully fighting three Khadr cases all the way to the Supreme Court and this cost to taxpayers would continue with “virtually no chance of success,” and the possibility of an even larger payout.
Conservative MP and lawyer Erin O’Toole, among others, has argued that a payout was not inevitable and government lawyers should have continued to fight the lawsuit.
Treason: There were calls last week to retroactively charge Khadr, now 30, with treason or other crimes punishable in Canada.
In 2008, Ottawa law students, under the supervision of Professor Craig Forcese, wrote a 153-page report given to a Senate Committee on Human Rights outlining the law. They later testified before a House of Commons committee.
The report concluded: “There is good reason to believe that Omar could be prosecuted under Canadian law. Repatriation, therefore, is not tantamount to impunity.”
Had Canada demanded Khadr’s repatriation after his capture, rather than deferring to the U.S., there was a greater possibility he could have been successfully prosecuted here.
Now that is likely impossible due to protections against double jeopardy and the fact that Canada’s courts have denounced the illegality of Guantanamo.
Michelle Shephard is the author of a 2008 book on Omar Khadr’s case and co-directed and produced the Emmy-nominated documentary Guantanamo’s Child, which premiered at TIFF in 2015. Follow her on Twitter @shephardm.
Pour lire l’article original, cliquez ICI