WikiLeaks and Omar Khadr

The most recent release of WikiLeaks has contained information on Omar Khadr, the Canadian youth detained at 15 years of age, who pled guilty in a tainted military tribunal process and now suffers in near-isolation in a detention facility in Guantanamo Bay, Cuba under the watchful eye of the United States and with the tacit acceptance of the Canadian government.

One question which arises from this WikiLeak is whether the outcome of Khadr’s trial would have been any different had these documents been released earlier .  

To quickly reconstruct the facts, Omar Khadr is a Canadian citizen born in Ontario, in 1986. He has been in the custody of the United States Department of Defense since being apprehended in Afghanistan at the age of fifteen and detained at Guantanamo Bay, Cuba since he was 16 years old. He is presently 24 years of age.  He is the youngest prisoner held in the Guantanamo detention camp. He is the first child to have been prosecuted by a military commission for war crimes since World War II.

On October 25, 2010, Omar Khadr accepted a plea bargain of eight years with one year to be served in Guantanamo and the remainder to be served in a Canadian prison subject to Canadian parole conditions.

So, would the outcome of Khadr’s trial have been any different with the information contained within the recent WikiLeaks.  The answer is a cynical “no”.  

Why?  Because the tribunal process that convicted Khadr wasn’t committed to important tenets of the rule of law, including access to relevant evidence.  There were serious departures from accepted legal procedures and safeguards.  The trial lacked independence and impartiality.  There were questionable trial tactics.  Expert defense witnesses who were approved by the prosecution (a questionable requirement of the military tribunal process) and prepared to testify on behalf of Khadr were called off, leaving Khadr bereft of any meaningful defense.

The military commission judge denied all motions to suppress Omar’s confessional statements, despite these statements being made while being abused and tortured and without access to legal advice or to a lawyer, all the while recovering from recent life-threatening injuries.

Had Omar Khadr refused the plea bargain, he faced an almost guaranteed outcome of a guilty finding with the possibility of life imprisonment by a handpicked jury of soldiers.  Not only was the jury exclusively made up of soldiers, but the judge, prosecution team and the American lawyers appointed to defend him were also all from the military, further evidence of the biased nature of the military process.

And finally, despite having completely tipped the odds all in the favour of a finding of guilt, if Khadr was found not guilty, the U.S. administration maintained the right to indefinitely detain Khadr.

So what does this have to do with Canada, other than the obvious fact that Omar Khadr is a Canadian?  Well, in April 2009, the Canadian Federal Court of Appeal held that the United States had violated the Convention on Torture and the Geneva Conventions with regards to Omar Khadr and that Canada had been complicit in that misconduct.  This is a very serious finding.  The Canadian government, despite being aware of the abuse and other mistreatment Khadr has suffered in Bagram and in Guantanamo Bay, has been intransigent in refusing to assist this young Canadian citizen or to condemn Guantanamo Bay.

So WikiLeaks or not, Omar Khadr has not and would never have received a fair trial in Guantanamo Bay.  

What do we do now?  As we approach our federal election, we need to ensure that we elect federal politicians that have a solid respect for the rule of law and aren’t afraid to stand up for the Canadian constitution and Canadian values. I, for one, will not be voting for a Harper government.