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
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.