He Was 15

Lawyers' group urges Ottawa to accept Khadr ruling

By: Peter O’Neil of CanWest News Service

Prime Minister Stephen Harper’s government will tarnish Canada’s global image if it doesn’t accept the latest court ruling ordering Ottawa to repatriate a Canadian-born terrorist suspect held in a U.S. military prison, the Canadian Bar Association said Saturday.

CBA President Guy Joubert said Omar Khadr is the only remaining western citizen being held at Guantanamo Bay after the governments of the United Kingdom, Germany, France, Belgium and Australia all used diplomatic pressure to successfully push for the return of their jailed nationals.

“We’re the last one, and I can’t help but think that it doesn’t help our image as a free and democratic society when we allow something like this to happen,” Joubert told Canwest News Service during an interview at the annual meeting of the body that represents Canada’s legal community.

The Federal Court of Appeal on Friday upheld a lower court ruling ordering Ottawa to repatriate Khadr, but the government has so far not indicated whether it will seek to challenge that decision before the Supreme Court of Canada.

Joubert said Khadr, who was captured by American forces at age 15 in 2002 and charged with murder, attempted murder, conspiracy and aiding the enemy, has the right to face the criminal justice system in Canada.

“It’s quite simple: He’s a Canadian citizen that has been incarcerated in another country, who has been denied basic procedural rights that any other Canadian would enjoy in this country,” Joubert said.

Khadr should be brought “back home to face justice here, to let our courts deal with his case.”

Harper noted Friday that the decision wasn’t unanimous, with one of the three Appeal Court justices not supporting Federal Court Justice James O’Reilly’s April decision.

O’Reilly ruled then that Canadian officials violated Khadr’s charter rights, as well as breaking various international laws, when they interrogated him at Guantanamo in 2003 and 2004. They then passed that information to American authorities.

O’Reilly said the actions of the officials, who knew Khadr was being subjected to torture techniques such as sleep deprivation, deprived him of “fundamental justice.”

Earlier Saturday, Jennifer Lynch, head of the Canadian Human Rights Commission, urged Canada’s legal community to help her defend federal, provincial and territorial human rights commissions and tribunals which she said are under attack by conservative critics.

She told the gathering that opponents of rights bodies have successfully created a “chill” that makes it difficult for anyone to defend those bodies without also becoming a target.

Lynch, saying some criticisms have been “troubling” and “at times scary, ” also read out a graphic anonymous letter she received stating that she should be shot dead.

“I’m here to ask for your help,” Lynch told CBA members.

She urged them to write “letters to correct misinformation,” encourage other experts to participate in the debate and promote public education of the role of rights commissions and tribunals in the justice system.

She said rights bodies have been under attack since 2007 after the Canadian Islamic Congress filed complaints over an essay published in Maclean’s magazine by conservative commentator Mark Steyn.

The complaints filed to the Canadian, Ontario and B.C. rights commissions were all eventually dismissed, though criticisms by those commissions against Steyn’s published views about Islam prompted accusations that his right to free speech was being violated.

Steyn, fellow conservative commentator Ezra Levant, various other bloggers, and politicians such as B.C. Conservative MP Russ Hiebert and retired former Tory cabinet minister Monte Solberg have all expressed harsh criticisms of rights commissions and tribunals.

Many of the critics have argued that Section 13 of the Canadian Human Rights Act, which prohibits the spreading of “hate messages” on the telephone and Internet, violates the right to free speech. Some have argued that hate crimes should be dealt with by police relying on the Criminal Code.

Lynch told the CBA that rights commissions are important components of the justice system, giving society’s “most vulnerable” minority groups access to a mechanism to deal with alleged rights violations.

Critics are trying “to destroy our investigators’ and litigators’ reputations and credibility with untrue accusations,” Lynch said during her appeal for help from Canadian lawyers and academics.

“For the moment the obligation to defend our existence monopolizes our energy.”

Terror suspect Khadr will get commission trial

By: Steven Edwards of Canwest News Service

Canadian-born terrorism suspect Omar Khadr will be tried by a military commission rather than a federal civilian court if the United States proceeds with his prosecution, a U.S. Justice Department document suggests.

A task force under U.S. President Barack Obama is in the midst of reviewing the files of all 229 Guantanamo Bay detainees, and insiders say they expect a decision on Khadr’s case by early September.

While the Obama administration could alternatively bow to Khadr’s defence team’s demand he be immediately repatriated, some close to the task force say it does not appear to be leaning toward that recommendation.

Khadr, 22, faces the charge of murder among five war crimes charges under the current Guantanamo system, which former president George W. Bush established in the wake of the Sept. 11, 2001, attacks.

The Obama administration has already angered activists on the political left by retaining the commissions, which he denounced as unfair during his campaign for the presidency.

But opinion is split even among the Pentagon-appointed lawyers that have been on Khadr’s defence team over where he would fare best: military commission or Federal Court.

One aspect of the military setting is that the commissioners — officers who serve as the jury — have total discretion over the length of sentence if he is found guilty. Mandatory sentencing guidelines for the charges he faces make that impossible in the federal system, if he is convicted.

Obama said in a May speech on security that his administration seeks to prosecute Guantanamo detainees facing charges in federal civilian courts if possible. It will send those whose cases are not appropriate for such a forum through the commissions system. Which detainees go where is determined using the Justice Department’s “forum-selection” criteria, released late Monday.

Obama’s administration also introduced, and continues to propose, various rule changes that it bills as making the commissions fairer for defendants than they were during the Bush administration. Circumstances surrounding Khadr’s capture by U.S. forces during a firefight in Afghanistan reflect criteria calling for trial by commission if repatriation is ruled out, a comparison shows.

Khadr shows Guantanamo 'legal aid' is among the best

By: Steven Edwards of Canwest News Service

The newest turnover in the legal team of Canadian-born terror suspect Omar Khadr shows the charged detainees at Guantanamo Bay enjoy the privilege of extensive high-value legal representation.

If it’s not the U.S. taxpayer footing the bill for Pentagon-appointed attorneys, civilian attorneys offer themselves pro bono – whether they be opposed on principle to the Guantanamo tribunals, or attracted to the high-profile, historically significant cases for less selfless reasons.

Lawyers are plentiful even for terror suspects who say they don’t want them – like Khalid Sheikh Mohammed (aka KSM) and his four accused co-conspirators in the September 11, 2001 attacks. Twenty-six lawyers sat at the defendant-attorney benches last Thursday during the first hearing for the 9/11-five under the Obama administration. An invited father of a 9/11 victim made the count, expressing disbelief. The attorney-turnout was on a day, even, that only three of the alleged terror group showed up – and one of them decided to leave early. The lawyer for Mustafa Ahmed Adam al Hawsawi later charged the terror suspect had been “tricked” into leaving his cell with a false promise he’d be allowed to address the court – but the judge said there had been a miscommunication.

As al Hawsawi left the courtroom, a guard rushed to retrieve the cushion he’d been sitting on. It was presumably needed for use in the van that took the accused co-financier of the 9/11 hijackers back to his cell. KSM, the self-confessed 9/11 mastermind, complained on the eve of Barack Obama’s January inauguration as president about the lack of cushions in the vans used to deliver him to court.

As last Thursday wore on, Walid bin Attash, one of the two remaining 9/11 defendants in the courtroom, showed his contempt for the proceedings by making a paper airplane, and tossing towards his accused cohort, Ali Abdul Aziz Ali. But it floated to the floor, where one of the 9/11 lawyers picked it up, and placed it on Aziz Ali’s bench. All in a day’s representation, one imagines.

The plane had contained a message written by Bin Attash, whose charge sheet says he helped to select and train several of the 9/11 hijackers, was Osama bin Laden’s body guard, and helped to prepare the 1998 East Africa embassy bombings and the 2000 bombing of USS Cole. But whatever the note said, Aziz Ali, the accused main moneyman of the 9/11 operation, never bothered to read it during the court proceeding.

It was at a separate hearing that Khadr, accused in the death of a U.S. soldier, picked a civilian as his new lead “court” attorney.

This follows his bid to dump his entire Pentagon-appointed team last month.

Barry Coburn of Washington has 28 years of experience as a criminal defence lawyer, and is listed by Super Lawyers magazine as having “attained a high degree of peer recognition and professional achievement.” So he’s no slouch.

Khadr, 15 when U.S. forces snatched him from an Afghan battlefield in 2002, said his military team had been squabbling too much. He burst into tears in March, so fierce were their recriminations of one another as each vied to convince him that their respective plan for his case was the best one.

But that group had been the second team he’s ordered fired. He gave most of the first one the push more than two years ago as he declared he planned to boycott proceedings. The Pentagon dutifully provided him with more lawyers.

Far from receiving too little representation, the indigent terror suspects at the U.S. navy base in Cuba may have access to too much.

Khadr began this year with three Pentagon-appointed military lawyers, two Pentagon-paid civilian lawyers, a military legal assistant, and two prominent Canadian human rights lawyers.

Before he fired team members more than two years ago, the group had included a Pentagon-appointed lawyer with the Marine Corps, two Washington law professors and another Washington lawyer. Another military lawyer had been transferred to Germany. There was a bid to bring on Gerry Spence, who came to fame in 1979 by winning a massive settlement for the family of Karen Silkwood – the nuclear plant worker whose story is told in the 1983 film “Silkwood.” There were even thoughts of getting the Irish rock star Bono involved.

Compare all that to the options available to a regular penniless accused-perp in the United States. In many state systems, such folks are likely to be assigned a single case-burdened public defender, who may or may not be any good.

To be fair, the row that split the second team Khadr fired was well beyond his control or influence.

Even the chief of the Pentagon’s Guantanamo defence office was involved in the squabbling, which has seen the protagonists of each side in the fight file ethics complaints against one another.

The new civilian lawyer emerged after Khadr spent the last month conferring with this two Canadian lawyers, Dennis Edney and Nathan Whitling, who continue to work on his case pro bono, and appear to have made many personal, as well as professional sacrifices on his behalf. Also involved was navy Lt. Cmdr. Bill Kuebler, Khadr’s pick as the single military lawyer the judge said last month he needed to retain under the military commission rules.

The tenacity of the Pentagon’s “detailed” lawyers long ago dispelled any claims they were just government lackeys toeing the line of a process that would inevitably lead to conviction for the accused.

For instance, the military-led team that represented Osama bin Laden’s one-time driver, Salem Ahmed Hamdan, famously brought down the whole military commission system in 2006 with its U.S. Supreme Court victory checking former President George W. Bush’s power. It took an act of Congress to recreate the commissions.

Now the Obama administration is moving to amend the commission rules after a campaigning Barack Obama agreed with critics who said they fall short of providing defendants all the protections given in U.S. civilian and traditional military courts.

One of five changes already made public gives terror suspects the power to personally pick their military representation as long as the person they are choosing is “reasonably available.”

Lack of clarity are the watchwords for the rest of the process as prosecutors scramble to keep up with rules changes in the preparation of cases, 66 of which are already on line.

“We are preparing these cases every day. We are ready to move forward, but we take our guidance from the president,” navy Capt. John Murphy, chief prosecutor, told reporters in Guantanamo this week.

Translation: the task of case preparation has become akin to trying to hit a moving target. On the defence side, however, they seem to have all the manpower they need.

Watchdog raps Canadian agency in Khadr case

Associated Press

TORONTO — Canada’s spy agency ignored human-rights concerns in deciding to interview a Canadian detainee who was then a teenager in the U.S. Guantánamo Bay detention center, a watchdog committee said Wednesday.

A report issued by the Security Intelligence Review Committee said there was no evidence the Canadian Security Intelligence Service took Omar Khadr’s young age into account.

Toronto-born Khadr is being held at the U.S. prison for allegedly throwing a grenade in Afghanistan when he was just 15, killing a U.S. soldier. Khadr is now 22 years old.

There was widespread media reporting on allegations of mistreatment and abuse of detainees in U.S. custody in Guantánamo and Afghanistan when the Canadian Security Intelligence Service interviewed Khadr in February 2003, the review committee report says.

Documents also surfaced earlier this year showing Khadr’s U.S. captors mistreated him through sleep deprivation and isolation ahead of an interview from Canada’s Foreign Ministry in 2004.

”SIRC believes that CSIS failed to take into account that, while in U.S. custody, Khadr had been denied certain basic rights which would have been afforded to him as a youth,” the report said.

The report says “the time may have come for CSIS to undertake a fundamental reassessment of how it carries out its work, and to shift its operational culture to keep pace with recent political and legal developments.”

The overview body hopes changes CSIS recently implemented would help to balance human rights issues with the need for investigation, as well as establish a policy framework to guide its interactions with youth.

Khadr has spent more than six years at Guantánamo, the lone remaining Westerner at the U.S. holding facility for prisoners in the war on terror.

A U.S. military commission is considering the charges against Khadr. Hearings have been suspended pending a review of his case.

Successive governing Canadian leaders, both Liberal and Conservative, have refrained from intervening in the case. The Tories have rejected a growing chorus of calls to repatriate Khadr and deal with him on Canadian soil.

The Federal Court of Canada ruled in April the government must ask the United States ”as soon as practical” to return Khadr home. The government is appealing that decision.

The 30-page SIRC report was given to Public Safety Minister Peter Van Loan, who issued a statement Wednesday saying that the government is “reviewing the report with interest.”

Its findings and recommendations will be nonbinding, but could be taken into account as the government appeals the federal court decision to have the Canadian detainee repatriated.

Canadian at Gitmo: No military lawyers wanted

GUANTANAMO BAY NAVAL BASE, Cuba (AP) — A Canadian charged with war crimes reaffirmed on Wednesday his decision to fire his military lawyers, saying he doesn’t trust them after an internal dispute over legal strategy.

The judge in the case at the Guantanamo jail for terrorism suspects agreed to appoint two new civilian lawyers for Omar Khadr, who declined an offer of a new attorney from the Pentagon.

“I don’t trust the office of military defense,” Khadr told the judge.

Khadr, 22, is accused of killing U.S. Army Sgt. 1st Class Christopher Speer of Albuquerque, New Mexico, with a grenade during a 2002 battle in Afghanistan. He is one of about 20 prisoners whose war crimes trials are on hold as President Barack Obama conducts a formal review of the system for prosecuting Guantanamo detainees in special military tribunals.

The Toronto-born Khadr has been represented by Navy Lt. Cmdr. William Kuebler, whose superiors in the Office of Military Commissions sought to fire him in an internal dispute over his handling of the case.

At a hearing in May called to resolve the dispute, Khadr said he wanted to dismiss all his military lawyers. Told he had to keep at least one military lawyer, he chose Kuebler.

If his case goes to trial, Khadr must eventually choose a military lawyer under tribunal rules, but the judge left that issue unresolved.

Khadr, the son of a slain al-Qaida financier, faces up to life in prison if convicted on charges that include murder and conspiracy.