Why is Harper Dragging his Feet on Omar Khadr?

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They have perhaps become the most famous videotapes never seen.

Footage of a pentagon-hired psychiatrist’s interviews, and of others’ tasked with gauging Omar Khadr’s mental state, are now in the hands of the Canadian government. It’s the latest step towards a final decision as to whether or not Canada will honour its own commitment to bring him home.

But it’s been almost one year since Mr. Khadr was due to be transferred back into Canada and even if the transfer goes ahead, questions remain as to why it’s taken so long for the government to fulfill the promise it made during Mr. Khadr’s 2010 plea bargain.

In fact, it was only after Mr. Khadr’s current lawyers publicly called on the government to act, announcing their intention to file an application with the Federal Court to compel the government to make a decision, that the videotapes were even requested. So what’s really been behind the delay?

It’s a question Prism Magazine recently put to politicians, academics, and legal experts. Several key themes emerged. Here’s the rundown.

Politics, pure politics

Elizabeth May, Leader of the Green Party of Canada

Ms. May argues that Prime Minister Stephen Harper, unlike other politicians who seek out the mainstream, is actually more interested in seeking out “his base”. Rather than listening to prominent human rights organizations, the legal community, academics and others (including the Supreme Court of Canada) who support Omar’s return on the pure basis of his rights – Harper will “slice and dice” the map to put together a majority.

“Omar Khadr has been an ideal proxy for unsavoury attitudes of the Conservative base,” explains Ms. May who was viciously attacked on Twitter when she retweeted Senator Roméo Dallaire’s petition to return Mr. Khadr to Canada. She refuses even to repeat some of the things that were written to her, though she says the negative tone around Omar’s repatriation underscores the divisiveness that the current government is creating between its ardent supporters and everyone else.

Listen to interview with Elizabeth May

“The reason I think Omar Khadr has become essentially a pawn in a political calculation of Stephen Harper’s, is that Stephen Harper wants to communicate to his base – the most intolerant and vicious of that base, which is what I encountered in social media – that we are not going to let this guy in no matter what. It has very little to do with Omar Khadr as a person, it has everything to do about making sure that a hardcore group . . . will be highly motivated to come out and vote.

“. . . In other words, you can’t reason with Stephen Harper to get him to see that Omar Khadr’s civil liberties, human rights violations of treaties, create an overwhelming case that Canada must accept him back. Those arguments don’t work, and that’s why they’re stalling, dragging.  They’d love to drag it out to make it increasingly difficult. The more they do to prevent his return to Canada, the more they feel they have solidified their base.”

Dennis Edney, Mr. Khadr’s former lawyer

Mr. Edney has been watching his former client’s case closely, even though he officially stopped representing him in 2011.

He says he isn’t surprised by the Conservative government’s stalling. He says he never found the Harper government to be very interested in Mr. Khadr’s rights (though leaders from the previous government, including former prime minister Paul Martin and former foreign minister Bill Graham would go on the record saying they had wished they had handled the case differently once more of the facts had come to light).

“This is also a government that is really not committed to human rights,” says Mr. Edney on the phone from Edmonton. “The Canadian Supreme Court of Canada held that Guantanamo was beyond the rule of law; it was in violation of international law and international human rights . . . Within a week, Canada said ‘forget it’.

“Anybody who had been smart enough would have communicated with us to find a reasonable approach - not the Harper government. The Harper government is tough. It is mean and bigoted. . . We fought assiduously, year after year after year, appeal after appeal after appeal, and not once did we receive a conciliatory approach from the government saying ‘can we talk about this?’. I used to write letters to the government suggesting we’d talk, to see if we can work together to seek the release of Omar Khadr from the hellhole of Guantanamo Bay – it was always antagonism.”

Tough on crime = take no prisoners

Paul Dewar, MP (NDP, Ottawa Centre)

Another common theme that arose during conversations with various observers was that of the government’s tough on crime strategy and how Mr. Khadr fits into that. Paul Dewar, the NDP MP for Ottawa Centre, says it’s ironic that while the government adopts an approach that appeals to those who believe in a ‘lock’em up’ strategy, in the end, preventing prisoners from serving out sentences in Canada means the government loses the opportunity to monitor them and ensure successful reintegration.

“I think it’s vindictive,” argues Mr. Dewar.  “I think they think our prisons are too soft. We’ve heard comments from members of government on this. They’d be happy to just let them stay, in this case, in the U.S., or for that matter, in other countries.  .  . It’s negligent to start with and it’s not very smart because you’re giving up that opportunity to actually monitor that person upon their return to the country which is inevitably going to happen [once they’ve served out their sentence and are free to return to Canada].

Listen to interview with Paul Dewar

“It’s an ideological point of view that the Conservatives are consistent on, and let’s give them credit for that; where they don’t really take into account is what is the role of the state of Canada when it comes to citizens, be it incarcerated or not, abroad.  And that we’d be better off using this as an opportunity to show that continuing mantra of how ‘we’re tough on crime we’re going to make prisoners pay’ and this kind of ideological nonsense . . . I think people believe in the notion of the old idea of punishment, and that is something that we thought we’d gotten rid of in the Victorian era; this is something that gives their base something to get riled up about.”

Mr. Dewar points to amendments made to the International Transfer of Offenders Act last spring which now gives further discretion to the Minister of Public Safety in accepting or denying a Canadian citizen’s appeal to serve his or her sentence in Canada. “They crafted amendments where they get to decide who comes and goes, and it is torqued by their ideological point of view and world view,” says Dewar.

Paul Champ, Human Rights & Constitutional Lawyer

Paul Champ has been a frequent commentator on Mr. Khadr’s case since serving as a lawyer on behalf of the British Columbia Civil Liberties Association in the 2008 Supreme Court challenge regarding the legality of Canada’s involvement in interrogations at Guantanamo Bay.

He, too, has noticed the amendments made to the International Transfer of Offenders Act and agrees it gives further discretion to the Minister. However he doubts government arguments preventing transfers will hold up against legal challenges.

“It will be interesting to see how that plays out in court because in recent cases, over the last couple of years, the court has also held that decisions made by the federal government regarding the transfer of offenders back to Canada also engages Charter rights. So the government has changed the act to hopefully, from their perspective, give them more discretion to decide whatever they want – and if they want to be unfair and arbitrary and violate your rights, they can do that, [or so] that is what they say,” posits Mr. Champ from his office in Ottawa.

Listen to interview with Paul Champ

“But I think the changes in the act ultimately are not going to change very much how the courts interpret these kinds of decisions because at the end of the day, mobility rights –  the rights of Canadians to return to their country of citizenship-  is paramount here. And the government would have to have very compelling reasons to refuse the requests of offenders regardless of what the act says.”

Both Mr. Champ and a former diplomat also contacted by Prism confirmed that previous governments would normally approve over 95 % of such transfer applications. The Conservative government, on the other hand, “systemically” rejects at least a third of them, according to a recent article in the Globe and Mail. When requested, the Public Safety Ministry did not provide official figures on this.

Mr. Champ and others note that offenders have a better chance at reintegrating into society if they carry out the remainder of their sentences in Canada, where they can reconnect with family and have greater access to rehabilitation services. It gives them “a fighting chance” at success. But since the Conservative government came into power, offenders being held overseas are increasingly taking the government to court – at huge expense to taxpayers – in what has become a “cottage industry” within the legal community.

Mr. Champ calls the whole thing completely “illogical”, much like the Canadian government’s entire stance on crime which paints a picture that it is only through their policies that Canadians are safer, when in fact statistics show crime has consistently been on the decline prior to the government’s amendments to the Criminal Code which keep offenders behind bars for longer periods of time.

“In the same way with this transfer policy, they are going to say they are trying to make Canadians safer when in fact, I think the opposite is going to happen but people viscerally respond to that kind of argument, that ‘let’s treat these prisoners badly because they’re really bad guys, and that shows we’re really tough guys’.  People really respond to that kind of political grandstanding unfortunately, but any fair minded person who looks at the research and the data on these kinds of decisions will understand this is a very bad policy for Canadians because it is going to make Canadians less safe.”

Mr. Champ adds that in such a climate, Mr. Khadr’s chances of returning to Canada anytime soon are slim.

“It appears that they are making all the noises to actually turn down the transfer request, and I think they are already calculating that is going to play very well to their base, people who will see them as ‘tough on terror, tough on terrorists’. But in fact, ultimately what they are doing is they are just exploiting someone who was a child soldier for political gain. . . I think it’s a real sad day for Canadian politics when human rights are turned into a popularity contest, and someone who was abused as a child is exploited for political gain. But this is the political environment we have in Canada right now.”

US vs. Canada

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.

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