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Canada: The time to speak on Khadr is now

Posted in the database on Wednesday, January 11th, 2006 @ 11:36:40 MST (967 views)
by Rick Wilson and Muneer Ahmed    The Toronto Star  

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As the new year begins, 19-year-old Canadian Omar Khadr continues his fourth year in American captivity at Guantanamo Bay, Cuba.

Only 15 at the time U.S. troops took him prisoner, for the past three years Khadr has been held in solitary confinement, virtually incommunicado, without charge, and subject to torture and abuse during continuous interrogation by his captors.

The U.S. has now charged Khadr with alleged war crimes, and plans to try him before a military commission beginning Wednesday. Despite international condemnation of the commission as fundamentally unfair, the Canadian government, regrettably, has kept silent on Khadr's prosecution.

What is at stake on Wednesday is not only Khadr's future, but Canada's reputation as a defender of human rights and the rule of law.

When the military commission commences, Khadr will become the first individual in the modern history of any international tribunal, to be tried for war crimes for conduct allegedly committed as a juvenile.

This ignoble precedent of prosecuting children for war crimes — something not done at Nuremburg after World War II, in the former Yugoslavia, Rwanda, or Sierra Leone, Kosovo or East Timor — will be established through American prosecution of a Canadian child.

As Khadr's American lawyers, we are well aware of the negative publicity that swirls around the Khadr family. But we have seen something that few in Canada ever have: Khadr himself.

For all the stories about the Khadrs, it is easy to forget that Omar was just a boy when he was taken prisoner, and is still a boy now. He wears a scraggly beard — something he couldn't even grow when he first got to Guantanamo — and like any adolescent, he has gone through a rapid growth spurt.

The image of Khadr as a trained terrorist and a hardened killer doesn't square with the soft-spoken boy who has been trapped at Guantanamo for nearly a fifth of his young life.

Just as the Bush administration insists that neither domestic nor international law apply to Guantanamo, it defends a military commission process that fails to comport with basic standards of due process. Rather than use an established court or even a court martial, the administration has fashioned the commissions from whole cloth, making up the rules as it goes along.

The U.S. attempts to disguise the unfairness of the commission process with a presumption of innocence and the provision of counsel. But the commission rules permit the use of evidence obtained through torture of Khadr and others.

They also allow the exclusion of Khadr from portions of his own trial and deny him the opportunity to confront his accusers. The rules authorize the government to eavesdrop on attorney-client communications and allow evidence to be withheld from civilian counsel, despite security clearances.

To date, no Canadian lawyer has been permitted to see Khadr. His appointed military counsel is a 31-year-old U.S. army captain who has never represented a defendant at trial.

These deficiencies in the military commission, and many others, expose the lie of the Bush administration's promise that Khadr is innocent until proven guilty. No matter how they dress it up, the military commission is still a sham.

The military commissions have been roundly condemned by human rights organizations, and even by foreign governments.

Britain stated unambiguously its belief that the commissions were "unacceptable" for their failure to meet international standards. As British Attorney General Lord Goldsmith said, "There are certain principles on which there can be no compromise ... Fair trial is one of those." Subsequently, all nine Britons at Guantanamo, including two designated for military commissions, were released.

Are Britain's standards for due process higher than Canada's?

Private diplomacy may have been warranted in the past, but the time has come for the Canadian government to speak out on behalf of Khadr.

The window of opportunity for Canadian influence is about to close: Once the hearings begin, Canada's public silence will properly be interpreted as tacit approval of the use of an illegal, fundamentally unfair process against one of its citizens.

In the days remaining before Khadr's commission begins, Ottawa must answer publicly one simple question: Does it believe that the military commissions meet Canadian standards of due process for the trial of its child-citizen for war crimes?

For Canada to remain silent now is to be complicit in the show trial of one of its citizens, and to abandon Canadian claims to leadership on human rights and the rule of law.

Rick Wilson and Muneer Ahmed are Khadr Khadr's two civilian attorneys.



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