daveberta.ca: speak out: edmonton for human rights and the return of omar khadr.

Saturday, November 08, 2008

speak out: edmonton for human rights and the return of omar khadr.

(h/t Elle Bee)

23 comments:

Concerned Albertan said...: Only a month late, these groups really do need to get politically active instead of just being actively protesting things.; Saturday, November 08, 2008 11:54:00 a.m.
kenchapman said...: It is not too late kyle. Omar's trial is postponed to Jan 23 - Obama becomes President Jan 20. Harper has to get with the program to return Omar NOW.

Thx for the post Dave - We at Cambridge Strategies are promoting an online petition to raise awareness and some political pressure to BRING OMAR HOME.; Saturday, November 08, 2008 12:21:00 p.m.
Concerned Albertan said...: Harper has said he won't ask to bring him back. The USA has said they won't send him back unless we ask.

The time to put pressure on was during the election.; Saturday, November 08, 2008 12:45:00 p.m.
Nastyboy said...: Where are the calls to have his family, who live freely in this country, thrown in jail for forcing him to attend terrorist training and fight as a child soldier?; Saturday, November 08, 2008 4:59:00 p.m.
Anonymous said...: Can someone explain to me why he needs to be "brought home" rather than simply receive a fair trial and whatever punishment is appropriate following such a fair trial?

If you don't think a fair trial is possible, fair enough, but please say so. The people advocating for his return don't seem to be articulating any messages other than "America is bad" and "under 18 = no consequences." It makes it hard to support calls for his return when the logic behind it is either flawed or unstated.; Sunday, November 09, 2008 9:19:00 a.m.
kenchapman said...: The US Supreme Court has said Gitmo detainees can't get a fair trial on a number of occasions. Bush/Cheney try to change the laws to avoid the protections of the US justice system instead of obeying the laws as they are with the well respected protections that are foundational to the American justice system.

No doubt Omar can't get a fair trial if it is under US military court system and in a Bush/Cheney White House.

As for pressing Harper during the election - no point- he would not even answer media questions during the campaign. It would simple be repressed by the Harper media strategy and a compacent MSM.

Besides we needed to wait for the Republicans to be defeated on Nov 4before any real chance for change existed.

Both McCain and Obama promised to close Gitmo. Now that can happen but Harper still has to ask for Omar to be returned to Canada. Now is the time to get him to ask especially if he wants a positive relationship with the progressive values of President Obama.; Sunday, November 09, 2008 12:34:00 p.m.
Anonymous said...: So if Omar Khadr did throw a grenade that killed a US soldier, what is the appropriate punishment? If this cannot be proven, but it remains clear he provided aid to people who were killing US soldiers, what is the appropriate punishment? Is it appropriate to return him to Canada before these issues are decided?

If Omar Khadr is returned to Canada, what next? If there are reasonable grounds to believe he remains committed to extremist, terrorist ideology, what should we do with him?

The US Supreme Court, incidentally, has not said that Guantanamo Bay detainees can't get a fair trial, and it is a fairly radical mischaracterization to suggest that they did say so. They have said:
- That the US courts have jurisdiction to hear challenges to the legality of detainees' detention, notwithstanding executive and legislative attempts to limit this right.
- That the military commission system at Gitmo needs to be authorized by Congress, not only by the executive.
- The Geneva Convention and/or Uniform Code of Military Justice apply to detainees in Gitmo. These rules require disclosure of evidence to the accused detainee, evidentiary rules that limit the use of hearsay and coerced statements, and mechanisms for appeal.

With these rights in place, I am not convinced that Mr. Khadr is unable to get a fair trial. The experience within the US Military and civilian justice systems has also demonstrated that he has very real avenues to contest the rules that apply to him and provide full answer and defence to the charges he is facing. While reasonable people can disagree as to whether the rights he has been afforded are sufficient, we don't demand that sovereign countries return detainees just because we have differences of opinion about the full spectrum of legal rights afforded to these detainees.

If the issue is the severity of punishment he faces given that he is a youth, there are ways to address these concerns without demanding his immediate and unconditional return. The Harper government could ask for assurances that any sentence ultimately imposed be permitted to be served in Canada, for example.

Broad, ill-justified comments about Khadr being unable to receive a fair trial under the Bush administration and blanket indictments of the "main-stream media" convince me that these calls for the return of Khadr are little more than the usual anti-Bush forces seizing on another cause celebre they can use to attack their political opponents, without any deep consideration of the issues in question. There are two sides to this issue, but those calling for the immediate return of Khadr are the flip side of the "my country, right or wrong" coin that would write the president a blank cheque to run roughshod over civil liberties.; Sunday, November 09, 2008 1:55:00 p.m.
Anonymous said...: Khadr is a terrorist and should face the music. His family is only Canadian because of our joke of an immigration system. We should be looking to get rid of these people, not sheltering their gernade throwing child from the justice he is owed.; Sunday, November 09, 2008 2:10:00 p.m.
Anonymous said...: How be we go for the Human Rights part - like remove the Free Speech sections from the AB Human rights act - and forget about the "and ....part?; Sunday, November 09, 2008 8:52:00 p.m.
Anonymous said...: Reply to anonymous "We should be looking to get rid of these people, not sheltering their gernade [sic] throwing child...
1. Nice to see that you believe in the presumption of innocence until proven guilty.
2. There is evidence readily available online that Omar may not have been the one who threw the grenade. Open your eyes and look - if you hope for justice and mercy from God.
3. Omar would be very pleased to get a fair trial. There is evidence readily available online that many legal authorities including three Supreme Court judges agree that he is not going to get one at Gitmo.
4. There is plenty of eye-witness testimony that Omar was tortured at Bagram Airbase and at Gitmo. Whether he is guilty of murder or not, civilized people do not use a presumption of guilt to justify torture.
Marnie Tunay
http://fakirscanada.googlepages.comm
P.S. I have posted notes from the rally, which I attended on my site at: http://fakirscanada.spaces.live.com/blog/cns!BCDFFB6F4CF5AAB!505.entry
The rally was well-attended and I know the speakers were pleased. It is Edmonton that has shown leadership on this critical issue - and what is needed now is a rally in Calgary - Harper's home turf.; Monday, November 10, 2008 12:48:00 a.m.
Party of One said...: Does anyone know what a "terrorist" is anymore? I think the word's meaning has been subverted for political ends.

I always understood that the target of terrorists is usually civilian, in order to generate a climate of uncertainty and fear in the civilian population, which would in turn (in theory) put pressure on their government to resolve whatever issue is at hand.

So, how is throwing a grenade while engaged in combat with military personnel a "terrorist" act, Anon 2:10?

As far as I know, Khadr is charged with being an "illegal combatant"( a rather nebulous concept in times of war, IMO). He may or may not have thrown a grenade that killed an American military medic; there is actually some doubt about this,including the possibility of "friendly fire". Hence the need for a trial.; Monday, November 10, 2008 5:00:00 a.m.
Anonymous said...: On May 23rd, in a 9-0 ruling the Supreme Court of Canada ruled that the Canadian government was complicit in the abuse of Omar Khadr and that his rights as a Canadian citizen were violated. As well the United States Supreme Court has issued rulings that Mr. Khadr's rights under international law have been violated. In addition 34 bar associations around the world signed a petition denouncing the military commissions and demanding that the prison in Guantanamo be shut down.
We are a society that has to live by the rule of law if we have any hopes of being civilized, fair-minded and compassionate. Omar Khadr has the right to be treated fairly just like any other Canadian citizen regardless of race or religion. We can aspire to be a better society and the treatment of Omar Khadr is certainy a litmus test for us as Canadians. Isn't it in our best interest to respect our laws and individual rights in this case?; Monday, November 10, 2008 11:57:00 a.m.
Feynman and Coulter's Love Child said...: I am fully in favour of returning Omar Khadr to Canada. I will even donate the 14"x9"x4" container to return him in.; Monday, November 10, 2008 3:53:00 p.m.
Anonymous said...: Reply to Anonymous Sunday Nov 09 1:55:00 PM "So what if Omar did throw a grenade..."
1. That would be for a trier of fact to decide within the context of a fair trial and due process, wouldn't it, sir? You say that that the US Supreme Court did not say that" Gitmo prisoners can't get a fair trial. With respect, sir, I disagree: "in Hamsfield v Rumsfield, that is precisely what the court says: 4. The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949. Pp. 49–72."
URL: http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf
page 4
And the Supremes of Canada concur with my view, in Canada v Omar Khadr: "The principles of international law and comity of nations, which normally require that Canadian officials operating abroad comply with local law and which might otherwise preclude application of the Charter to Canadian officials acting abroad, do not extend to participation in processes that violate Canada’s binding international human rights obligations. The process in place at Guantanamo Bay at the time Canadian officials interviewed K and passed on the fruits of the interviews to U.S. officials has been found by the U.S. Supreme Court, with the benefit of a full factual record, to violate U.S. domestic law and international human rights obligations to which Canada subscribes. The comity concerns that would normally justify deference to foreign law do not apply in this case. Consequently, the Charter applies. [2-3] [21] [25-26]"
The URL for that decision:
http://scc.lexum.umontreal.ca/en/2008/2008scc28/2008scc28.html
Morever, sir, there are significant Charter issues, because Canadian Foreign Affairs officials turned a blind eye to the serious violations of Omar's rights, and acted as agents of the U.S. government by relentlessly interrogating a Canadian minor on behalf of the U.S. You can read the report of the Canadian delegation yourself. It's posted on the Toronto Star site:
http://www3.thestar.com/static/PDF/khadr.pdf
You talk a good show, sir, just like a politician, about "broad, ill-justified comments;" and you sound like someone who is used to giving sound bites. But the facts don't support your position.; Monday, November 10, 2008 6:19:00 p.m.
Anonymous said...: Part 2 of Repy to Sunday Anonymous: "What should we do with him?"
A rehabilitation plan has been submitted to the Canadian government. It has been outlined in an article by Michelle Shephard on the Toronto Star site: http://www.thestar.com/comment/columnists/article/444464
In any case, your reasoning that we can't bring him back before we have a plan for trying him is specious: In any court in Canada, his case would have been summarily thrown out years ago. The boy spent three years in custody before he was even charged. He has spent six years without going to trial. Hell's Angels have done more and walked away on the grounds of less abuse of process than Omar has seen. No judge in Canada would even look at the issue of whether or not a fair trial was now going to proceed - given the evidence of serious mistreatment - including the links I have given you and also well-published testimony from former Bagram interrogator Damien Corsetti. His case would have been tossed long ago. Your arguments remind me of the old adage "There are none so blind..."; Monday, November 10, 2008 6:30:00 p.m.
Anonymous said...: Marnie, while I suspect there is little point to us debating this issue here, I will sketch out a reply. (Incidentally, why do you assume I'm a "sir"?)

First, in Hamdan, they said the military commissions as they were then constituted offended certain procedural requirements. These military commissions were subsequently brought into compliance with the Geneva Conventions. Even if I accept that what the US Supreme Court was "saying" was that a fair trial was impossible, they were making this comment about a set of military commissions that don't exist anymore. If they still believed it was impossible for Khadr to get a fair trial, they could strike down the current commissions. They haven't done so, and are unlikely to do so, because the new commissions follow the rules the Court itself set out in Hamdan, Hamdi, Rasul, etc., as the basic requirements for a fair trial and habeas corpus. Similarly, the Canadian Supreme Court was making comments about the legal situation facing Khadr before the USSC rulings. (And Khadr is now subject to a detention regime the USSC (apparently) deems is in accordance with international and US law, and the principles of comity regarding Charter violations would apply.) So again, neither the USSC or the SCC have said that Khadr "can't get a fair trial" under the current system.

I don't quite understand your reference to the other "Charter issues." If you're suggesting that Foreign Affairs officials screwed up, I don't see how that leads to the conclusion that Khadr should be returned to Canada without standing trial. The Charter doesn't apply extraterritoriality. If you're arguing that the mistakes by Foreign Affairs give rise to some kind of moral obligation on the part of our government to demand his return, then I disagree. Even in a Canadian criminal context a coerced confession from a young person in the context of a murder charge is likely to result in the exclusion of evidence, not the dismissal of charges. And this isn't a Canadian criminal trial.

I am not excusing those involved with Guantanamo Bay detentions for any human rights abuses that might have occurred, and I think the USSC was right to give the detainees the ability to challenge their detention in federal courts. I don't condone torture or indefinite detention without recourse to law, and frankly, I'm not such a big fan of Guantanamo Bay in general. But the proper remedy for these abuses is the exclusion of any evidence obtained through any breaches of law and punishment, if appropriate, of the perpetrators. My distaste for several elements of the Guantanamo Bay system (both past and present) does not lead to the inescapable conclusion that Khadr must come back to Canada without standing trial.

I too have concerns about how long it is taking for his case to go to trial. But once again, I don't think it has reached the point where he should be returned without trial, and I think his legal team bears some of the responsibility for the length of the pre-trial detention. (This isn't to suggest they did anything wrong -- but pre-trial detention on serious charges is a fact of life, and the length of this detention can be unavoidably extended by defence legal tactics.)

I'm not reasoning, as you suggest, that "we can't bring him back before we have a plan for trying him." I'm suggesting that we should wait for his American legal proceedings to conclude before we take any action regarding his return to Canada.

You've responded to my question about how we should handle Khadr if he is returned. Now can you respond to my questions about why he needs to be returned before the conclusion of his US trial?

I'll ignore your cheap shot about "sound bites" and your suggestion I am being willfully blind to the facts, except for making this comment: people who take the time to write posts for relatively low-traffic blogs, and whose posts directly address the substantive issues in question, probably can't in all fairness be accused of ignoring facts or posturing for the cameras.; Monday, November 10, 2008 11:37:00 p.m.
Anonymous said...: Reply to "Anonymous"
Let's take this one step at a time, shall we?
1. You're a 'sir', alright. And you're a lawyer. Your reasoning and smooth delivery are precisely the same as those of the lawyers for the Harper govt, and I'm guessing you're one of them. You are very well-spoken, but you write anonymously. You don't even have an online pseudonym. Smooth, true-sounding phrases continually fall off your tongue, like: "posturing for the camera," "broad, ill-considered opinions," "those calling for the immediate return of Khadr are the flip side of "my country, right or wrong." All of that says "government lawyer" to me. True, you're not "posturing for the cameras" - you have correctly guessed that if the latest admin hearing doesn't order Harper to request Omar's return, then it will be in the court of public opinion that the issue is finally settled. Your job, as you see it, is to help the tide of public opinion go the way you want it to. And daveberta is one of the most influential blogs in Alberta the conservative bastion of support for Harper.
(more to come after I get my morning coffee); Tuesday, November 11, 2008 8:28:00 a.m.
Anonymous said...: Part 2 to Anonymous: Your post is permeated with statements that sound true but aren't true.
Just for starters, how does saying "I'll ignore your cheap shot about sound bites" constitute an act of ignoring it?
2. You said the Charter doesn't apply "extraterritoriality." In fact, both Supreme Court of Canada and the Federal Court of Canada, have said that it does apply. For starters, I refer you to:
OMAR AHMED KHADR
v
THE MINISTER OF JUSTICE AND ATTORNEY GENERAL OF CANADA,et al 2007 FCA 182
URL: http://decisions.fca-caf.gc.ca/en/2007/2007fca182/2007fca182.html
where the judgment says:
"[28] In R. v. Cook, [1998] 2 S.C.R. 597, the Supreme Court of Canada has recognized that there may be rare circumstances in which the Charter may apply outside Canada, namely where (1) the impugned act falls within subsection 32(1) of the Charter; and (2) the application of the Charter to the actions of the Canadian detectives in the United States does not interfere with the sovereign authority of the foreign state and thereby generate an objectionable extraterritorial effect (paragraph 25).

Does the Charter have an extraterritorial reach in the circumstances of this case?

[29] In United States of America v. Kwok, [2001] 1 S.C.R. 532, the Supreme Court of Canada explained that “[o]nly where a justiciable Charter issue can arise from the potential involvement of the Canadian authorities in the gathering of evidence is it necessary to consider the degree of disclosure that might be required of the Requested State” (paragraph 106). [Emphasis added.] In doing so, the Supreme Court of Canada distinguished its earlier decision in United States of America v. Dynar, [1997] 2 S.C.R. 462 where it had stated that the disclosure requirements of Stinchcombe only applied to domestic criminal proceedings: “In Dynar, the fugitive was not entitled to disclosure from Canadian authorities because no justiciable Charter issue arose. Canadian authorities had not provided any assistance to the Americans in gathering evidence and, in any event, the latter were not relying on anything but their own evidence.” (paragraph 106). [Emphasis added.]

[30] In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paragraph 54, the Supreme Court of Canada reaffirmed a principle previously recognized in United States v. Burns, [2001] 1 S.C.R. 283:

… the guarantee of fundamental justice applies even to deprivations of life, liberty or security effected by actors other than our government, if there is a sufficient causal connection between our government's participation and the deprivation ultimately effected. We reaffirm that principle here. At least where Canada's participation is a necessary precondition for the deprivation and where the deprivation is an entirely foreseeable consequence of Canada's participation, the government does not avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else's hand."
and where the same judgment says:

"Is section 7 of the Charter engaged?

[37] It is uncontested that as a Canadian citizen the appellant falls within the purview of the word “everyone” in section 7 of the Charter. He has the right under section 7 of the Charter not to be deprived of his right to life, liberty and security of the person except in accordance with the principles of fundamental justice."
And last, I note that in that the above case, Omar's appeal was allowed with costs, which suggests that the judges were none too pleased with the respondents (the Minister of Justice).
(More to come after I finish my coffee.); Tuesday, November 11, 2008 9:02:00 a.m.
Anonymous said...: Reply to "Anonymous"
Part 3. I note you say "frankly,I'm not such a big fan of Guantanamo Bay in general."
Well, how much of a fan are you, sir? Are you aware that every country in the West except Canada has unilaterally condemned Gitmo - and every other Western country with "detainees" there, including Britain, France, Germany and even deeply right-wing Austria, successfully demanded the repatriation of their citizens from Gitmo - because those countries had no faith whatsoever in the prospect of fair trials or due process there?; Tuesday, November 11, 2008 9:13:00 a.m.
Anonymous said...: more to anonymous:
4. You said "." If you're suggesting that Foreign Affairs officials screwed up, I don't see how that leads to the conclusion that Khadr should be returned to Canada without standing trial."
Nobody has said that Khadr should be returned to Canada without standing trial." I said, in essence, that the issue of whether or not he stood trial was moot with respect to the issue of whether or not a Canadian judge would find that the rights violations were so severe as to effectively rule out the possibility of due process and a fair trial where he was - and second, whether or not the fact that Canadian officials acted illegally as agents for a foreign power constituted such a severe violation of Omar's rights as to cast the administration of justice into disrepute if the trial at Gitmo continued.; Tuesday, November 11, 2008 9:21:00 a.m.
Anonymous said...: reply to Anonymous:
5. You said: "because the new commissions follow the rules the Court itself set out in Hamdan, Hamdi, Rasul, etc., as the basic requirements for a fair trial and habeas corpus."
Well, sir, Obama is shutting down Gitmo, isn't he, so I think that train has left the station.
Much as I'm eager to continue this verbal battle to arrive at truth, I feel I should pause and give you or someone else a chance to reply at this point, before I proceed any further - or at least give Dave a chance to sort through the comments. (I'll be back.); Tuesday, November 11, 2008 9:28:00 a.m.
Anonymous said...: Marnie, thanks for providing so much background on the Omar Khadr situation. I would like to say to Anonymous....now you are obviously someone who prefers to have a "bag over your face" when you express your opinion..could you let us know why? are you fearful? will you lose your job? will you lose respect? "Anonymous"--is just that...you don't really count because you don't have the courage to say who you are.; Tuesday, November 11, 2008 3:12:00 p.m.
Anonymous said...: Reply to Anonymous:
6. You said: "You've responded to my question about how we should handle Khadr if he is returned. Now can you respond to my questions about why he needs to be returned before the conclusion of his trial?"
Okay, this is the crux of the matter, isn't it. And the answer comes down to the Charter of Rights and administrative law:
The appplicable administrative law, in short:
Harper has given reasons for not repatriating Omar. Under administrative law, Harper's power to call Omar back to Canada or not do so is discretionary. (I'm not explaining this for the benefit of Anonymous, who knows it very well.) A minister/prime minister does not have to give reasons for refusing to exercise a discretionary power. But if he does give reasons - and Harper has done so with respect to Omar's case - then he/she can be called to account for the reasonableness of those reasons (excuse me, I didn't make up the language used in admin law and I can't help the way that sounds.) So Harper's reasons: the charges are serious, due process is in place at Gitmo, we're not going to interfere in a foreign power's adminstration of justice - are patently unreasonable. The Supremes have already said that Canada owes no deference to the process at Gitmo, and the provable, systematic and continued violations of his rights, aided and abetted illegally by Foreign Affairs/aka CSIS officials, make Harper's claim of due process laughable, or in the language of the court: patently unreasonable, that is to say, unreasonable on the face of it. S. 24 of the Charter gives broad authority to the Court to do whatever it thinks best to remedy in-your-face violations of Charter rights. A finding of patent unreasonableness will lead the Court to conclude that Harper acted outside of his jurisdiction, that is to say, outside of his authority when he chose not to repatriate Omar. It follows that an ex juris decision is null and void, and the court won't be shy about ordering a remedy.
In my opinion: what Harper is really thinking is that if Omar comes home, he's going to sue the pants off of the Harper government, Harper himself, and especially, Scott
Heatherington, who signed off on the "Canadian delegation's" report of its interrogations of Omar.
P.S. Anonymous, would you like me to tell you what clinched the identification of you as being a lawyer? Of course you would. Anonymous, nobody, but nobody, would comfortably toss of the word "substantive" in an online comment about the legal aspects of Omar's predicament - except a lawyer. The non-lawyers who would evem know what that means are few. (Here's a fast def from Encarta, for the curious: "law relating to legal principles: relating to the essential principles that a court applies in its work, not to the rules of procedure and practice.")
You're welcome. And be sure to let me know if this doesn't satisfactorily answer your question about why Omar should be repatriated.; Sunday, November 16, 2008 2:52:00 a.m.