The Omar Khadr case is again front-page news following the settlement of his longstanding lawsuit against the Canadian government. The news has elicited a wide range of comments from the usual suspects. I was among a small group in Foreign Affairs Canada who dealt with the Khadr case from 2002, when he was captured at the age of 15 following a firefight in Afghanistan, to his incarceration in Guantanamo Bay. I was also peripherally involved in the two Khadr cases that went to the Supreme Court of Canada, in which the Government of Canada came out on the losing side.
The logic of the Khadr case seems to have eluded the most rabid opponents of this settlement. When you do wrong, you sometimes end up in court. When you end up losing in court, you pay. That’s basically what’s happened here. The Trudeau government is merely seeking to tidy up several of the messy, costly litigation cases dating back to the early years after 9/11, which began with the settlement to Maher Arar in 2007 by Prime Minister Harper (which set the bar for the Khadr settlement).
I disagreed with some of the Supreme Court’s conclusions when it arrived at judgments in 2008 and 2010. I’m not alone in maintaining that Foreign Affairs Canada was inadequately represented in presenting its case to the courts. The shallowness of the government’s presentations contributed to the Supreme Court’s misunderstanding of some of the case’s finer details. The court got it wrong on the involvement of Foreign Affairs’ officials following Khadr’s detention in Afghanistan, when American officials refused to allow him consular access.
But that’s a trifling matter today. There can be little quarrel with the central point of the Supreme Court’s unanimous decision of 2010 in Khadr’s favour. It found that Canadian officials (namely CSIS officers) participated in a Guantanamo Bay incarceration regime “in violation of fundamental rights protected by international law.” Although the American government was responsible for Khadr’s detention, it noted that “it is reasonable to infer from the uncontradicted evidence before the Court that the statements taken by Canadian officials are contributing to K’s continued detention.” Because Canada “actively participated in a process contrary to Canada’s international human rights obligations and … contrary to the principles of fundamental justice,” the Supreme Court ordered as “declaratory relief” that the Canadian government respond to the violation of Khadr’s rights. That decision, which got it right, is the basis of Khadr’s claim.
It took time, but the Harper government eventually acted on Khadr’s repatriation to Canada. It’s now sad to read the outlandish statements of former ministers like Jason Kenny, who are at least partially responsible for the liabilities incurred by the Canadian government in the Khadr case. If he and others had any integrity, they would be owning up to their own share of responsibility in this and similar cases.
So what went wrong? Lots of things, including many errors not examined by the Supreme Court. At a time of fear after 9/11, a Canadian government preoccupied with security threats lost sight of the most fundamental rights of Canadians and failed to restrain the excesses of some CSIS officers (and to a lesser extent, the RCMP as well). It also deferred unduly to an American government bent on destroying decades of international law and co-operation. Like other American allies, Canada was virtually silent in the face of torture, secret prisons, and abusive detentions carried out by our closest ally. In several cases, the Canadian government failed many of its own citizens.
The American government has been loath to acknowledge its own responsibilities. Instead, its allies are paying the bills and accepting the political liability. Like the UK and others, not only didn’t Canada do enough to represent our nationals (whatever their situations), we took advantage of the abusive circumstances of Guantanamo Bay and other American prisons for so-called security purposes, without thinking through the implications and without the protocols on due process that might have made our interventions defensible. The price-tag is now high, but it’s even higher for the UK government, with more bills forthcoming. The Khadr case also isn’t the last in Canada.
The Khadr case was unique, and few of the current arguments are grounded in a dispassionate reading of the facts or in principles of law and justice. The main problems have always been the Khadr family heritage and the fog of the Afghan war. It’s tragic that an American soldier was killed in the incident in which Omar Khadr was wounded and captured. But whether Khadr played a role in Sargeant Christopher Speer’s death is doubtful, as Sandy Garossino argues in a review of the factual basis of the case. Moreover, while one must sympathize with the Speer family’s loss, that sympathy should not trump the facts of the case. What is beyond doubt is that Khadr paid the price for the allegations against him, spending a decade growing to adulthood in the abusive circumstances of detention in Guantanamo Bay.
There’s also a larger point to the Omar Khadr case. Whatever one’s views of the current settlement, the policy question now is whether anything has changed. Is the Canadian government now more capable of avoiding the errors identified by the courts in the years after 9/11?
On this point, the jury is still out. Only recently, a decade after the report of the O’Connor Commission, the Canadian government introduced legislation to revamp the accountability and review machinery for the Canadian security and intelligence community. It’s an important start, but it’s also no substitute for a full review of what went wrong after 9/11 and what needs to be done to keep Canadian agencies from running wild when opportunities call. We need systems in place to avoid what the Supreme Court rightly called “state conduct that violates the principles of fundamental justice.”
That’s the point of the settlement to Omar Khadr: it’s a wake-up call to clean up the Canadian government’s act.