Legal News and Commentary

Omar Khadr’s Bail Hearing in Progress

Over the next few days, watch the news for stories of Omar Khadr. If you’re unfamiliar with the details of his long story, or need a refresher, here’s a link to Wikipedia. The latest chapter (and perhaps, with luck, one of the last) is now playing out in an Edmonton bail court where Mr. Khadr, convicted of one count of “murder in violation of the laws of war” by an American court, is serving his sentence.

The story is so long and so difficult to summarize that I won’t even try. But it’s important to realize that Mr. Khadr was 15 at the time this supposed crime took place. U.S. soldiers had just stormed his family home and a number of his relatives were killed in that action. Mr. Khadr threw a grenade – or at least that’s the story – and an American soldier was killed. Then the teenaged boy, who was also badly wounded, inconveniently survived. And the U.S. government had to decide what to do with him. Cue the long, very winding, very bizarre, legal path he has followed ever since. Which now has him in Canadian custody in Edmonton.

There are two broad problems with the prosecution of Mr. Omar Khadr – and that’s ignoring whether they ever successfully proved, to criminal justice standards, that he did in fact throw the grenade. First, by any ordinary standard, he was a child soldier at the time of the event. The U.S. government wants to have it both ways. He was an “enemy combatant” and responsible for his actions, but also a minor at the time. In any other context we’d be trying to free him from his situation and treating him as a victim. But he’s only a victim in the story until a better victim, in this case a U.S. serviceman, comes along. Then the equation changes. And second, the whole idea of delegitimizing any military opposition to U.S. forces has always rung hollow. What does it even mean to say that people who are fighting back against the Americans who are shooting at and killing them are “violating the laws of war?” Any fair-minded observer knows it’s only semantics. Americans make the rules because they can. And they define the other side as criminal because they can. That doesn’t make it true.

I’ve been following Mr. Khadr’s story since before I entered law school. I’ve watched the news stories as he evolved from a fresh-faced young boy who couldn’t even grow a proper mustache to the large, bearded man he is today. Looking at current photos, it’s easy to imagine he is and should be responsible for his actions. But let’s remember when they actually occurred. Frankly, after all he’s been through, it wouldn’t surprise me to learn he was unstable on some levels. If he isn’t, it’s more through the grace of God (and I’ll say the grace of Allah, to acknowledge his faith) than it is due to the authorities he has been subject to in detention.

These sorts of inconvenient cases are what test our values as a society. And in the case of Mr. Khadr, we have failed. Our Canadian government has sought at every turn to wash our hands of him, until finally through a negotiated deal we accepted custody of him to serve his U.S. sentence. And under our new (and grossly named) Strengthening Canadian Citizenship Act, the government has sought to ensure it will never have to deal with a similar situation again. Rather than deal with Mr. Khadr’s inconvenient Canadian citizenship, it will be so much easier to simply revoke it in the future. But for now, at least, he is still our fellow citizen and still our “problem.”

I won’t make full apology for Mr. Khadr’s family, for their actions, for the path that led him into conflict with U.S. military forces, or for the grenade he may or may not have thrown. But our values are not tested in easy cases where everything is simple and clear. Our values are tested in difficult situations, where men such as Omar Khadr stand before us and some outcome must be ordered. We can’t simply throw him in a hole (as the American government would favor) and hope he dies before anyone notices or remembers he’s there. We need to do something.

Mr. Khadr has been in custody for 13 years. Even if he were guilty of murder, at the age of 15, this sentence would satisfy most definitions of justice. And that’s before we discuss the conditions in which he has been held, the torture he has been subjected to, and the ever increasing difficulty he will face in rebuilding a life for himself. Enough is enough. It’s time for Canadian values to reassert themselves – even if we have to fly in the face of the American government and even our own to do the decent thing.

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