Photo: Amnesty.ca

Part I of this article, examining the politics of this issue in Canada, can be read here.

The question that many people also continue to ask is why the Canadian government would agree to accept Mr. Khadr back and then stall on carrying through? Some argue that it could have simply been an item on an agenda that had to be dealt with at the time and that the American government may have engaged in some “arm-twisting.” Others point out that the agreement isn’t binding. Nonetheless, those watching from the US are wondering just what is going on.

They include Andrea Prasow, an American human rights lawyer, and Professor Lisa Hajjar, from the University of California’s Sociology department. Both women attended the plea hearings and say Canada’s actions have left many south of the border questioning Canada’s commitments to human rights and the rule of law.

Andrea Prasow, senior counter-terrorism counsel and advocate in Human Rights Watch’s US program

“I think it’s pretty sneaky,” says Ms. Prasow from her office in New York. “It’s clear from the precise words of the diplomatic notes and the plea bargain that Canada is not legally required to repatriate Omar Khadr under that agreement. But everyone’s understanding at the time is that that’s what would happen. That was the purpose of the exchange of the diplomatic notes. The U.S. relied on that in negotiating a plea agreement with Omar Khadr, Omar Khadr relied on that in negotiating a plea agreement in the military commissions. So I think it’s really disgraceful that Canada hasn’t moved forward to repatriate him, as disgraceful as it is that it hasn’t done so for the last [10] years.”

Ms. Prasow noted that over the summer, a Sudanese detainee, Ibrahim al-Qosi was repatriated to Sudan as part of his plea agreement. “What I find so shocking about that is that when you look at the human rights record of countries like Sudan and Canada and you see that Sudan will take back its citizen who was imprisoned in Guantanamo and Canada won’t,” she says.

As for Canada requesting and now obtaining the interview tapes, Ms. Prasow questions why the government would attach much weight to Dr. Michael Welner’s now infamous conclusions considering how he was widely discredited.

“I was there in the courtroom when Dr. Welner testified and found his testimony really shocking. It was clear from the cross examination that he relied on evidence from a confirmed xenophobe. The idea that anything that came out of his mouth would be deemed credible is really ridiculous.”

“In terms of the conviction, the Canadian government knew that Omar Khadr was about to plead guilty when it exchanged these diplomatic notes with the U.S. The fact that he then pled guilty, as they knew he was going to, then doesn’t make any difference. . . It’s just an excuse, the Canadian government has been making excuses for the past [ten] years about why it won’t bring Omar Khadr home. Time and time again, the Canadian government has contributed to violating his fundamental rights, has violated its obligations under international law, and I think it just really continues to do that.”

Lisa Hajjar, Professor of Sociology at the University of California, Santa Barbara

 “Dr. Welner’s testimony was laughable,” recalls Professor Hajjar who also attended the plea hearings as a journalist on behalf of Middle East Research and Information Project (MERIP). “He is standard fare for government cases of various sorts,” she explains on Skype from her home.

“[Dr. Welner] tried to cultivate a perception of expertise about terrorism, and that is what came up in his testimony in the hearing, and of course his lack of expertise … the government just keeps relying on people whose qualifications are absolutely ridiculous.”

“I think [the Canadian government] should read the court transcript in which the defense demolished Dr. Welner,” says Professor Hajjar, adding that  Dr. Welner was relying on information and attitudes clearly rooted in Islamophobia. Dr. Welner has vociferously argued otherwise, insisting that his conclusions about Mr. Khadr’s continued dangerousness were rooted in forensic psychiatry that focuses on context.

Beyond the different interpretations of Mr. Khadr’s mental state, Professor Hajjar notes that there were those in the human rights community who believed that once Mr. Khadr was finally returned to Canada, the entire plea bargain might be set aside anyway, simply based on the fact that it was concluded in a setting where Mr. Khadr’s fundamental rights were violated.

“There was some expectation that Canada, given its vastly superior commitment to international law may very well set aside the verdict, the plea bargain, on the basis of how he’d been treated …,” says Professor Hajjar.

“Canada has law on the books that is better and more committed to international law. The presumption among close Guantanamo watchers … was the fact that Omar Khadr had been subjected to cruel and inhumane degrading treatment, arguably rising to the level of torture both at Bagram and at Guantanamo, would be something that back in the Canadian context [could be dealt with].”

That Mr. Khadr, or others on his behalf, would challenge the legality of the plea bargain here in Canada seems a long way off considering he remains in Guantanamo Bay with no clear end to his detention there in sight.

Where things now stand

Away from the legal arena, Canadians remain divided about Mr. Khadr’s return. Polls commissioned by the Sun media chain indicate that a majority of Canadians are opposed to his transfer.

And yet, a petition to keep him out of Canada has so far garnered just over four thousand signatures as compared to the over thirty thousand people who have already signed on to Senator Dallaire’s call to bring Mr. Khadr home.

For its part, the government insists it will make a decision on his application based on “Canadian law.” In an email to Prism, Julie Carmichael, spokesperson for the Minister of Public Safety adds that changes to the International Transfer of Offenders Act are intended to give the Minister more factors to consider before “rubberstamping” applications of dangerous offenders. “At all times, we put the safety of Canadians first,” she writes. But it is unclear how the government will weigh Dr. Welner’s interviews, discredited as they were by other experts, including a military psychologist who spoke with Prism earlier this summer.

What is clear is that Mr. Khadr’s story, and what it means for Canada, remains unfinished.

“It’s sad because it’s not just about Harper and the government,” concludes Mr. Edney. “It’s also about you and me and who we are as Canadians. What does being a Canadian stand for? Omar Khadr’s story is about many things, but it’s also about who are we as a people.”

“It’s not about, if you will, whether or not you like any of these particular individuals,” echoes Mr. Dewar, referring to Mr. Khadr, as well as other Canadians held abroad. “It’s about what our role is as a modern democracy. And if we are going to claim to be leaders on the world stage, then we are going [have] to be a responsible nation-state. Then it matters we demonstrate that not just in words, but in deeds, and the most basic responsibility that a nation-state has is to its citizens…”

 

Amira Elghawaby is a freelance journalist, human rights activist and a contributing editor to rabble.ca

This article was originally published in Prism Magazine and is reprinted here with permission. 

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Amira Elghawaby

Amira Elghawaby

Amira Elghawaby is a journalist and human rights advocate living in Ottawa. Her work has appeared in various publications and online including the Globe and Mail and the Toronto Star. Her stories have...