"This Case is Far From Over" : Alex Neve on Omar Khadr and the Dysfunction that is Guantanamo Bay.

Alex Neve, Secretary General of Amnesty International Canada, has recently returned from Guantanamo Bay. In the role of NGO observer, he had the opportunity to take in, first-hand, the latest instalment in the fiasco that is the “trial” of Omar Khadr.

Neve perceives the Khadr trial to be a failure of justice for three distinct reasons. 

“First and foremost it is not an independent process.” says Neve.  “A hallmark of any fair trial is that it be independent. In all of the Guantanamo detainees’ cases, using this military process does not guarantee the level of independence that is necessary. What should happen is that they should be transferred into the regular, US, civilian court system. It has safeguards, strong standards to ensure rights are protected.

"That’s never happened here," says Neve. "Instead we have a military commission process which has a military judge, a military prosecutor, a military defense lawyer, and a jury made up of military officers. The only non-military person involved in this process is Omar Khadr.”

Accusations of torture, and self-incriminating evidence gathered under torture, also taint the proceedings.

“There are some very credible and disturbing allegations that prisoners, including Omar, have made about torture or/and ill-treatment at the hands of their US captors. They have never been taken seriously in this process,” says Neve. “Khadr’s legal team argued that statements and confessions that were extracted at that early time in his incarceration, in 2002, 2003, should be excluded from the trial because they bear the taint of torture. That was summarily dismissed by the judge, and that was very worrying.

"These processes don’t take torture seriously in the courtroom, and at the same time it’s not taken seriously outside the courtroom. Because when you have those kinds of allegations come forward, there should be impartial investigations launched. There should be a determined effort made to find out if the allegations are true. And those responsible should be identified, charged, prosecuted, and face justice, and none of that happens.”

Finally, there is the fact that Omar Khadr is the first child soldier to be tried as a war criminal since World War II.

“When he was apprehended he was only fifteen years old, and under international law, which both the Canadian and US governments have ratified, which in fact the Canadian government was a global leader in establishing ten years ago, he absolutely qualifies as a child soldier,” says Neve.

“That means that the entire process of how his case is handled, his conditions of detention, the nature of his trial, whether or not he should even be on trial, should at all times be viewing him not only as a potential perpetrator, but absolutely, also, as a victim of human rights abuse.”

In the Khadr case much has been made of the laws surrounding what defines a soldier, and what defines a child. In the eyes of the American military, Khadr is neither. He is a full-grown terrorist, fit and able to stand trial.

He is also a Canadian citizen. Three levels of Canadian courts, including the Supreme Court of Canada (twice), have already clearly indicated that Khadr’s human rights are being violated by the Canadian government.

“Much of this stems from the fact that in early days (of Khadr’s incarceration, in 2002 and 2003) the government chose to send CSIS and other intelligence officers down to Guantanamo Bay to carry out interrogations of Omar at a time when he was still young,” says Neve, “when he was not being given any access to a lawyer, not being given access to family visits, certainly had no advocate or family member present at the time, and was being held in circumstances that involved sleep deprivation and other ill-treatment.”

 “In January of this year, the Supreme Court of Canada came back to the case, again confirmed that that conduct had violated his rights under the Charter, and very importantly went on to say that those violations continue today. That was ten months ago, and there’s no remedy. And all that has changed in his case is a guilty plea, a conviction, and an eight-year sentence. Ten months later, the Canadian government stands, I would say, in contempt of a unanimous ruling from the Supreme Court of Canada that the rights of a Canadian citizen have been and are being violated.”

Surely the Canadian government has not just sat on the fence on this! Surely they have made some response to these court findings!

“They made a low-level, half-hearted, attempt to ask the US to refrain from making use of any of the information that had come out of those Canadian interrogation sessions, and had been provided by Canadian interrogators to American officials.” says Neve. “The response that came back from the United States was ‘No.’”

Yet through this, the trial of Omar Khadr, a Canadian boy, is seemingly held up as an example of the functionality of Guantanamo Bay by the Obama administration. Khadr can’t be the most clear-cut example of guilt in the joint?

“In January 2009 there was a remarkable and pretty exhilarating promise from newly inaugurated President Obama that Guantanamo was going to be closed by January 2010. That didn’t happen.” says Neve.  “At the time, people assumed that was the end of the journey of injustice for Omar Khadr and that his return to Canada was probably imminent.

"In October of 2009, when it became clear that the promise wasn’t going to be kept, instead the Obama administration began working on some reforms and improvements to the military commissions process. I think all of us were astounded to realize that one of the very first cases that the Obama administration was going to use was going to be the case of a fifteen-year-old child soldier who says he was tortured, and whose crime, even if he committed it, was not about terrorism; it was about throwing a grenade in the middle of a war that killed an active combat soldier.”

Now that Khadr has pled guilty, what does this mean?

“It’s hard to know what the guilty plea represents.” says Neve. “When a trial is unfair in so many ways, for so many years, as Omar Khadr’s was, you get across the finish line and what level of confidence can you have that what has happened represents the truth? Absolutely zero. And that’s what’s so unfortunate here. So does his guilty plea represent an honest admission of guilt? Does it really mean that Omar Khadr threw that grenade? Or does his guilty plea represent his own calculated assessment that the only way that he will ever be able to leave the injustice of Guantanamo Bay behind is by giving in, by pleading guilty, and at least opening up a doorway out of there in the foreseeable future?

"This case is not over. Even though we have a plea deal, a conviction, and a sentence, there are many human rights considerations in this case that have never been resolved and that we as individuals concerned with such issues need to remain vigilant and active upon the case.”

Is Khadr coming back to Canada any time soon?

“The deal is that he has to spend at least another year in prison in Guantanamo Bay. There has then been an exchange of diplomatic notes between the Canadian and American governments, with the American governments saying ‘If Omar Khadr wants to make an official application to the Canadian Government to be transferred back to a Canadian prison at the end of that one year, that the US government will support that application.’ The Canadian government has been less unequivocal.” says Neve.  “Their wording is that if he does make that application that they would be inclined to treat it favourably. It's positive language, but it also leaves open the possibility that they would be disinclined. We say we need to hear an unequivocal guarantee now. Because what needs to start happening is the Canadian government should be working closely with Omar’s legal team to start to plan what kinds of programming and measures need to be put in place upon his return, both for whatever period of time he may remain in a Canadian prison and for afterwards, to ensure that the rehabilitation, the treatment, the reintegration, the support services that he so very much needs, and has a right to, will be ready to go.”

How did Khadr seem?

“Just watching him, during that last week as this ridiculous facade of a process was playing out its last gasps, there were so many of us that were agitated, and distressed, and frustrated, at the process, and every time I looked at him he just seemed to have this sense of resignation, almost a sense of relaxation, as if obviously he too would recognize the fiasco for what it is, but perhaps because finally the fiasco had opened up a door for him through which he could see his eventual release, there was just a sense of resignation that seemed to be getting him through.”

Is Guantanamo completely dysfunctional?

“Guantanamo should be closed, there’s no question. Guantanamo in our view is beyond redemption, it’s beyond repair. Long has been. What needs to happen is that it should be closed immediately. If there are prisoners there against whom the US has sufficient and lawful evidence that merits charging them, that should be done within the US civilian system. Those cases should be brought before US Federal Courts, and everyone else should be released.”