The Khadr Thread

[George Wallace]

By our own Constitution, what they did was illegal.

They questioned him. 

Police question suspects in jail all the time.  I guess by our own Constitution, you would interpret that as illegal as well?

Or are you insinuating that they water boarded or conducted some other form of physical and/or mental anguish on him?

Have you ever been detained by the Police or by an Enemy Force, for real or on Exercise?  It is not all sunshine and roses.  WAIT!  We have had this discussion already with a bunch of former CAF members seeking compensation for being treated badly on an Escape and Evasion Exercise in Wainwright back in the '80's......Silly me.  I really have to catch up with the times and start apologising for "all the sins of my fathers".  I am too old school......I have to change.



[PS:  As a member of 'Five Eyes' we share intelligence within the 'Five Eyes Community'.]

 

[Kat Stevens]

They questioned him. 

Police question suspects in jail all the time.  I guess by our own Constitution, you would interpret that as illegal as well?

Or are you insinuating that they water boarded or conducted some other form of physical and/or mental anguish on him?

Have you ever been detained by the Police or by an Enemy Force, for real or on Exercise?  It is not all sunshine and roses.  WAIT!  We have had this discussion already with a bunch of former CAF members seeking compensation for being treated badly on an Escape and Evasion Exercise in Wainwright back in the '80's......Silly me.  I really have to catch up with the times and start apologising for "all the sins of my fathers".  I am too old school......I have to change.



[PS:  As a member of 'Five Eyes' we share intelligence within the 'Five Eyes Community'.]

Water boarding?  You mean Freedom Baptism, right?

 

[Jarnhamar]

Damn milnews.ca ruined my fun again

 

[jmt18325]

They questioned him. 

Police question suspects in jail all the time.  I guess by our own Constitution, you would interpret that as illegal as well?

If the police are aware that the suspect they're questioning has in fact been tortured immediately before the questioning, then, yes.  These are facts and conclusions proven in an actual court.  They're not up for debate.

 

[The Bread Guy]

... Or are you insinuating that they water boarded or conducted some other form of physical and/or mental anguish on him? ...

Here's what The Supremes said in 2010:

... The interrogation of a youth detained without access to counsel, to elicit statements about serious criminal charges while knowing that the youth had been subjected to sleep deprivation and while knowing that the fruits of the interrogations would be shared with the prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects ...

The Supreme Court said his rights violation was information sharing between CSIS and US authorities after interviews with CSIS agents. Do not link Canadian intelligence agencies to Khadr's alleged torture. They are 2 completely separate discussions ...

Here's exactly what the court decision said about that ...

... The record suggests that the interviews conducted by CSIS and DFAIT provided significant evidence in relation to these charges.  During the February and September 2003 interrogations, CSIS officials repeatedly questioned Mr. Khadr about the central events at issue in his prosecution, extracting statements from him that could potentially prove inculpatory in the U.S. proceedings against him ... A report of the Security Intelligence Review Committee titled CSIS’s Role in the Matter of Omar Khadr (July 8, 2009), further indicated that CSIS assessed the interrogations of Mr. Khadr as being “highly successful, as evidenced by the quality intelligence information” elicited from Mr. Khadr (p. 13).  These statements were  shared with U.S. authorities and were summarized in U.S. investigative reports ... This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive  him of his  right to liberty and security of the person guaranteed by s. 7  of the Charter , contrary to the principles of fundamental justice ...

If it's any comfort, though, it was Team Red on the ice during 2003-2004 - I guess the Liberals screwed up then, too, right? 

 

[George Wallace]

If the police are aware that the suspect they're questioning has in fact been tortured immediately before the questioning, then, yes.  These are facts and conclusions proven in an actual court.  They're not up for debate.

"subjected to sleep deprivation and sharing contents of interviews with U.S. authorities"

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7842/index.do

You make it sound like he was placed on "the Rack" or in "the Iron Maiden".  He was sleep deprived.  He was interviewed.


Many of us have gone through this and we didn't have to go to Gitmo for it.

 

[FJAG]

Something that bothers me:

a) Khadr was an enemy combatant;

b) he had not indicated surrender (as far as one knows);

c) how then was his killing one of his American opponents (whatever the status as medic in the situation) in any way criminal?

Honest question.

Mark
Ottawa

Mark. It is a good question and the answer to it would in itself be a three-day seminar on the Law of Armed Conflict with detailed discussions on Additional  Protocol (I) to the Geneva Conventions, various laws passed in the US after September 11th and more legal opinion papers and articles on the subject than you would ever want to see.

For a brief precis turn to Wikipedia here: https://en.wikipedia.org/wiki/Enemy_combatant#Change_of_meaning_in_the_United_States

Suffice it to say that at the relevant time there was a specific definition at play in the US law that defined it as follows:

Enemy combatant’ shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed belligerent act or has directly supported hostilities in aid of enemy armed forces

For all intents and purposes the term has to be read in the following context:

to include an alleged member of al Qaeda or the Taliban being held in detention by the U.S. government as part of the war on terror. In this sense, "enemy combatant" actually refers to persons the United States regards as unlawful combatants, a category of persons who do not qualify for prisoner-of-war status under the Geneva Conventions. However, unlike unlawful combatants who qualify for some protections under the Fourth Geneva Convention, enemy combatants, under the Bush administration, were not covered by the Geneva Convention. Thus, the term "enemy combatant" has to be read in context to determine whether it means any combatant belonging to an enemy state or non-state actor, whether lawful or unlawful, or if it means an alleged member of al Qaeda or of the Taliban being detained as an unlawful combatant by the United States.

I know it's confusing, has been acknowledged as such and has been modified and argued amongst intellectual circles for a decade and a half.

:cheers:

 

[jmt18325]

"subjected to sleep deprivation and sharing contents of interviews with U.S. authorities"

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7842/index.do

You make it sound like he was placed on "the Rack" or in "the Iron Maiden".  He was sleep deprived.  He was interviewed.


Many of us have gone through this and we didn't have to go to Gitmo for it.

So, again, that he was tortured is not up for debate.  It happened. 

 

[Jarnhamar]

Anyway you look at it there are probably 10 million Canadians (that didn't murder one of our allies) who deserve compensation from the government a hell of a lot more than this guy. 

 

[George Wallace]

So, again, that he was tortured is not up for debate.  It happened.

Really?  Sleep deprivation.....I am having sleep deprivation just reading your posts.  That is torture in your eyes.  YOU owe me $10.5 million.

 

[jmt18325]

Really?  Sleep depravation.....I am having sleep depravation just reading your posts.  That is torture in your eyes.  YOU owe me $10.5 million.

This is the problem - facts aren't up for debate.  Court judgments are facts - settled.

 

[Brad Sallows]

Regardless what terms of art are used (legalese), court judgements are basically just opinions.

 

[FJAG]

There have been a number of posts above relating to two subjects:

1. Khadr was tortured; and

2. That his conviction/guilty plea therefore came as a result of a coerced confession.

That I think could use a little context.

1. Torture There is no doubt that Khadr was subjected to what the US calls "enhanced interrogation techniques". This appears to have included sleep deprivation, stress positions, threats of physical force and several other highly unpleasant activities. I'm not about to argue as to whether or not this constituted "torture" but it is quite clear that various courts have held that his initial confession came during the time that these "cruel and abusive" treatment took place (around the 2002-2004 mark) and when he did not have legal counsel. Based, in part, on his confessions he was determined to be an "enemy combatant" by a Combatant Status Review Tribunal and continued to be held at Guantanamo. (For those who aren't familiar with the Geneva Conventions, there is a similar process in use to determine if an individual is subject to be held as a POW under the Prisoner-of-War Status Determination Regulations.

See: http://laws-lois.justice.gc.ca/eng/regulations/SOR-91-134/FullText.html]http://laws-lois.justice.gc.ca/eng/regulations/SOR-91-134/FullText.html]http://laws-lois.justice.gc.ca/eng/regulations/SOR-91-134/FullText.html)

2. Guilty Plea The main problem that I have with some of the statements made by some of the posters above deals with the allegation that because he was "tortured" his 2004 confession is of no worth and that his guilty plea is therefore also worthless. In my humble opinion that is dead wrong.

Between 2004 and his Guilty plea there were two major changes. Khadr was given access to legal counsel and the Mohammad Jawad case had been resolved.

Khadr had legal counsel by the fall of 2004, both American and Canadian. In 2005 he was formally charged with "murder by an unprivileged belligerent" and other charges. In 2006 the commissions structure to try those charges were struck down in the USSC Hamdan v Rumsfeld decision. In response a new law was struck and a new commission created and in 2006 the charges were relaid. By the week prior to his preliminary hearing in July 2010 Khadr's legal team had been aggressively filing and arguing numerous motions for his defence when he suddenly fired them and said he would represent himself and a few weeks later engaged a new military lawyer who had apparently worked behind the scenes for a few months arranging a plea deal that would get Khadr back to Canada. Concurrently Khadr's Canadian legal team had been working for him in Canada including bringing his case before the SSC twice (2008 and 2010). (I've left out most of the numerous legal proceedings that took place for the sake of brevity)

What is noteworthy is that during the period 2005 to 2010, Khadr had a number of very competent legal counsel (including US military lawyers) who were representing his interests in the US/Guantanamo and Canada.

During this time the Mohammed Jawad case was also making its way through the system. Jawad is of particular relevance as the case concerned an underage teenager (somewhere between 12 to 17 at the time he was taken into custody) who was alleged to have thrown a grenade at a Special Forces Humvee in Dec of 2002 wounding two. He was also taken to Guantanamo, was "enhanced interrogated" and made a confession.

In Oct 2008 a military judge threw out the confessions because of the manner in which they were obtained. (The initial confession was made to the Afghan Police under "threats of severe physical or mental pain or suffering". The subsequent confession was made to US interrogators). Jawad was released from Guantanamo and repatriated to Afghanistan in 2009.

Wikipedia page here: 

https://en.wikipedia.org/wiki/Mohamed_Jawad#Release_order_and_possible_trial_in_a_civilian_court

A very enlightening article on the Jawad case and the Guantanamo Military Commissions by one of Jawad's lawyers here:

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1497&context=dlj

It is therefore in light of the very similar Jawad decision (and that tribunal's willingness to throw out coerced confessions) and with very expert legal counsel available to Khadr and preparing for his defence that Khadr decided to take a plea bargain where he freely and voluntarily admitted to the acts for which he was charged.

:cheers:

 

[GR66]

Really?  Sleep deprivation.....I am having sleep deprivation just reading your posts.  That is torture in your eyes.  YOU owe me $10.5 million.

I really didn't want to step into this debate, but according to Khadr's lawyer anyway he was subjected to both waterboarding and being placed in stress positions/hung from his arms as per this 2015 National Post article:

http://nationalpost.com/g00/news/canada/harper-government-will-seek-emergency-stay-of-bail-for-ex-guantanamo-bay-prisoner-omar-khadr/wcm/3766acb0-a49f-4039-9cf1-50bd2873f05b?i10c.referrer=https%3A%2F%2Fwww.google.ca%2F

Also, as to the questions of what could Canada do as it was the US that was holding him, Omar Khadr was the last western national to be held at Guantánamo.  All other western nations had previously negotiated with the US for the repatriation of their citizens.  Canada was the only western nation not to do so.

Now I'm NOT in favour of the $10mil settlement given to Khadr.  He was not treated in accordance with Canadian law, or in my personal opinion, how I'd like to see child soldiers treated but he was an enemy combatant.  The government should have in my opinion tried to repatriate him so that he could be dealt with under Canadian standards.  If the actions of our government lead to his being treated contrary to Canadian or International law, then they were in the wrong and should apologize and make reasonable reparations.  Under the circumstances I don't think $10mil is reasonable and if he is sincere about his regrets then I'd hope he would give at least most of the settlement to those that were truly victims of the war. 

Intellectually I understand the legal and moral arguments against Khadr's treatment as a "child", but given the nature of the war who am I to criticize those who had their lives on the line fighting it for us for not having any sympathy for his situation. 

 

 

[Lex Justitia]

Many of us have gone through this and we didn't have to go to Gitmo for it.

While under investigation for a serious offense? Were they deliberately deprived of sleep by government agents with the aim of extracting a confession, which would later be used against them?

The condemnation is not necessarily levied because Khadr suffered sleep deprivation while in custody; it is levied against a government that deprived him of sleep to extract a confession which it later used against him. It was the purpose of their mistreatment of Khadr (to extract a confession that opened a world of adverse legal determinations against him) that shocks the conscience.

As said prior, the use of sleep deprivation to extract confessions has been disallowed in the United States since the 1949 Watts decision. You don't need to adopt the belief that it equates to the rack-, the wheel-, dunking-, thumbscrew-style torture if you don't want to—but that still doesn't make it a legitimate method of obtaining voluntary confessions.


Edit: Just take it from Jim Smyth’s (for those who don't recall the name, he's the OPP interrogator who lawfully and masterfully extracted a confession from former Col. Russell Williams in 2010) performance that all you need to get a confession is preparation, behavioral profiling and wit. Hahaha. I don't understand the need for "enhanced techniques" that transcend the boundary of what is lawful.

 

[mariomike]

For reference,

Forces.ca

The Law of Interrogation

Sleep Deprivation:

As with other disorientation techniques, sleep deprivation clearly fall within the definition of ill-treatment. In their report, Human Rights First defined the practice as follows: “The prisoner is deprived of normal sleep for extended periods through the use of stress positions, sensory overload, or other techniques of interrupting normal sleep.” Sleep deprivation is used to break down the detainee's resistance by impairing cognitive functions. Its affect can be to cause physical as well as physiological burdens on the detainee.

The ECrtHR has concluded that this practice, when used in combination with other forms of ill-treatment, can constitute a violation of Article 3.275 CF doctrine specifically prohibits sleep deprivation or manipulation.

Interrogation can be an exhausting experience and can be lengthy “due to the suspect's failure to cooperate, the complexity of the information sought, or in light of the need to obtain information urgently and immediately.” For this reason, the Israeli Supreme Court accepted that in some cases a detainee will be deprived of sleep during the course of the interrogation process. As such, the Court concluded that this practice is only prohibited “if [it] shifts from being a 'side effect' inherent to the interrogation, to an end in itself.” If the purpose of the sleep deprivation is intentionally prolonged to break the prisoner's will, “it shall not fall within the scope of a fair and reasonable investigation.” Such means, the Court found, “harm the rights and dignity of the suspect in a manner surpassing that which is required.” Where sleep patterns are manipulated in order to break a detainee from exhaustion or where non-stop interrogations are used for that same purpose, the conduct is not permitted.
http://www.forces.gc.ca/en/about-reports-pubs-military-law-strategic-legal-paper/law-interrogations.page#s279

An example of a successful 40-hour non-stop interrogation,
https://www.youtube.com/watch?v=4MqgmCjO7I0

"The best way to establish guilt or innocence is non-stop interrogation."

 

[ModlrMike]

They should have taken a page out of this guy's book:

Hanns Scharff

 

[ModlrMike]

Allied airmen were generally well treated by the Luftwaffe. Including by Goring himself.

Not so well by German civilians, or the Gestapo and SS.

168 Allied airmen were sent to Buchenwald.

Clearly not the point I was making.

 

[mariomike]

Clearly not the point I was making.

ok I removed my post.

The point I was making was that before airmen were interrogated by the Luftwaffe, they had to worry about German civilians, local police, the SS and Gestapo.

They, regretfully, were not as professionally understanding as the LW.

The possibly of being sent to Buchenwald via Fresnes Prison- rather than a LW stalag - was a real possibility.

 

[Remius]

ok I removed my post.

The point I was making was that before airmen were interrogated by the Luftwaffe, they had to worry about German civilians, local police, the SS and Gestapo.

They, regretfully, were not as professionally understanding as the LW.

The possibly of being sent to Buchenwald via Fresnes Prison- rather than a LW stalag - was a real possibility.

My Grandfather was shot down over Italy.  Was well treated by the locals and the Italian regulars.  Especially the nuns that would smuggle in treats and the occasional flask.  He didn't enjoy the occasional visits by the fascists when they came by.  Roughed up a bit but I don't think he was truly tortured in the way we think of in today's terms.