The story begins with the shameful case of Maher Arar, a Syrian-born Canadian who was kidnapped by US agents as he changed planes in New York in 2002, and rendered to Syria, where he was tortured for a year on behalf of the Americans before being released.
Mr. Arar — who was awarded millions of dollars in compensation by the Canadian government in January 2007, but has yet to receive even an apology from the US administration — had been wrongly fingered by Canadian intelligence, and his case his one of many chilling examples of the damage caused by failed intelligence in the American’s program of “extraordinary rendition.”
In an attempt to prime diplomats about how to spot the signs of torture when they visit Canadians in foreign jails, the Canadian government’s Foreign Affairs Department instigated a “torture awareness workshop,” which also informed the diplomats of where they could expect to find what CTV in Canada described as “countries and places with greater risks of torture.”
The list, in a training manual issued by the Foreign Affairs Department, included traditional offenders — Afghanistan, China, Egypt, Iran, Mexico, Saudi Arabia and Syria — but also included some torturers that are not generally mentioned in polite Western company: Israel and the United States. Specific mention was made of Guantánamo Bay, where, to drive the point home, the manual noted specific “US interrogation techniques,” including “forced nudity, isolation, and sleep deprivation.”
The manual was never supposed to have been publicly released, of course, but the Canadian government inadvertently released it to lawyers for Amnesty International as evidence in a court case relating to the alleged abuse of Afghan detainees, after they were handed over by Canadian soldiers to the local Afghan authorities. After realizing their mistake, government officials desperately tried to get the manual back, stating, as CTV put it bluntly, that they “wanted to black out sensitive parts that may anger allies.”
It’s too late for that, of course. While US ambassador David Wilkins declared, “We find it to be offensive for us to be on the same list with countries like Iran and China,” adding, “Quite frankly it’s absurd,” lawyers and human rights activists have seized upon the documents to insist, for the second time in only a few months, that the Canadian government is guilty of double standards in its refusal to act on behalf of Omar Khadr, the Canadian Guantánamo detainee who was just 15 years old when he was captured in Afghanistan in July 2002.
And they’re right to do so. The first set of double standards was highlighted in September, when, during a visit to Canada to publicize Mr. Khadr’s plight, his US military lawyer, Lt. Cmdr. William Kuebler, contrasted the Canadian government’s “leadership in international efforts to recognize child soldiers as victims in need of special protection and rehabilitation” with its “virtual silence” in the case of his client. Just two weeks ago, David Crane, the former US prosecutor for Sierra Leone’s war crimes trials, who is now a professor at Syracuse University, revived this argument, telling Michelle Shephard of the Toronto Star that he failed to understand how Canada and the United States “could be sympathetic to the plight of Africa’s child soldiers, who are forced to commit atrocious crimes,” but not to Khadr, whose circumstances were the same. “I’m just not sure why the Canadian government, which was tremendously important in my work in West Africa — they were incredibly supportive — is not making a bigger deal of this,” he said.
This latest revelation only adds to the government’s self-inflicted woes. As Amir Attaran, a law professor at the University of Ottawa, explained to CTV, the new developments cast doubt on the government’s assertion that Khadr is being treated fairly in US custody. “Canada has just admitted we believe torture is possible in Guantánamo Bay,” he told the broadcaster’s Canada AM show. “That clashes terribly with what Prime Minister Stephen Harper has said, that Mr. Khadr, who is in Guantánamo Bay and was a child at the time he was put there, is being given a (quote, unquote) appropriate judicial process. Torture is not an appropriate judicial process.” Attaran went on to suggest that the Canadian government’s refusal to demand Khadr’s release from Guantánamo was purely political. “Out of a desire to appear tough on the war on terror, Mr. Harper has put this set of considerations out the window, and that’s not appropriate,” he said, adding, “We have to obey the law.”
Lt. Cmdr. Kuebler also spoke to CTV, reinforcing Amir Attaran’s statement that the documents relating to the “torture awareness workshop” contradict Prime Minister Stephen Harper’s assurances that Khadr is receiving fair treatment. “Omar has been there for five and a half years,” he said, “and at some point in the course of [his] detention the Canadian government developed the suspicion he was being tortured and abused. And yet it has not acted to obtain his release from Guantánamo Bay and protect his rights, unlike every other Western country that has had its nationals detained in Guantánamo Bay.”
Kuebler added that the suspicions that his client has been tortured at Guantánamo undermined any claims that he could receive a fair trial in his Military Commission — the novel system of show trials invented by Dick Cheney and his advisors in November 2001, which are empowered to use evidence obtained through torture, and to prevent this evidence from being revealed to either the defendants or their lawyers.
He explained that he and the rest of his legal team want Khadr to be sent back to Canada to face justice there, and pointed out the absurdity of the Canadian government’s claims that they were waiting for the US judicial process to play itself out. “Omar has certainly been abused, his rights have been violated under international law, and apparently the Canadian government has reason to believe that’s true, and yet, they’ve acted not at all to assist him,” he told CTV.
While the Canadian government attempts to repair its relations with the United States and Israel, the next phase of Omar Khadr’s trial by Military Commission is scheduled to take place early next month, and several motions have already been filed on his behalf. One argues that the Commissions are unconstitutional because they are designed only for non-Americans, and another — relating specifically to Mr. Khadr — argues that they have no jurisdiction over him because trying a detainee who was 15 years old at the time of his capture would violate the Optional Protocol to the Convention on the Involvement of Children in Armed Conflict, a United Nations measure ratified by the United States in 2002, which safeguards juveniles (those under 18 years old) from prosecution. As his lawyers have pointed out, “No international criminal tribunal established under the laws of war, from Nuremberg forward, has ever prosecuted former child soldiers as war criminals,” adding that, if Commission judge Col. Peter Brownback pursues Khadr’s case, he will be “the first in western history” to preside over a trial of alleged war crimes committed by a child.
Adding to the Canadian government’s embarrassment, at almost the same time that the contents of the Canadian government’s training manual were made public, it was revealed that 55 law professors and 22 members of Parliament, including Canada’s former attorney general, Irwin Cotler, had signed the defense lawyers’ motion, stating unequivocally, “It is a principle of customary international law that children are to be accorded special protections in all criminal proceedings, and in any prosecution for participation in warlike acts.”
In the pipeline, undoubtedly, are numerous references to the Canadian government’s latest gaffe, in documents to be filed by Omar Khadr’s lawyers, which would be laughable if the result of the government’s contradictions and cowardice were not so heartless.
You could ask Omar Khadr himself, if you could get anywhere near him.
ANDY WORTHINGTON (www.andyworthington.co.uk) is a British historian, and the author of ‘The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison’ (to be published by Pluto Press in October 2007).
He can be reached at: firstname.lastname@example.org