This is a pretty dramatic story. For those of you who aren’t too familiar with the situation, Omar Khadr is a Canadian who is still being held at Guantanamo. He was picked up for fighting with Al-Qaeda in Afghanistan when he was 15 years old. Apparently, they think he threw a grenade which killed a US solider, and has been involved in planting roadside bombs and other explosive devices.
Seems pretty cut and dry, no? He fought with Al-Qaeda, killed people, and should therefore face justice, correct? I agree. But then again, I’m not entirely sure the secret military tribunals set up to try prisoners from Guantanamo is justice. First of all, being held for 6 years in Guantanmo before you even face any kind of trial seems like a bit of a travesty of justice. And I know that there may be special circumstances involved, but the Western world’s legal system seems to be predicated on the notion of justice, and a reasonable time limit to accessing that justice. So without that, it seems the rule of law isn’t nearly as vibrant and stout as we once thought it was.
Under Canadian law, for example, citizens are guaranteed the right to the a speedy trial. S. 11(a) of the Canadian Charter of Rights and Freedoms guarantees some rights to Canadians that are pretty obviously not being met in Guantanamo.
Section 11(a) enshrines the rights contained in s.510 of the Criminal Code. As noted in R. v. Toth, (1959) 29 C.R. 371 (Ont. C.A.), it has always been a fundamental principle of our law that an indictment must charge an offence in such a manner as clearly to bring home to an accused an accurate knowledge of the offence with which he is charged.
I think we can all agree that that’s definitely not going on. One of the biggest criticisms of the treatment of Guantanamo prisoners, and especially about the tribunals, is that the charges they face are unclear, as are their rights under the law. S.11(a) directly states that
11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
I’d go out on a limb and say 6 years is unreasonable. But, then again, technically the language of the section is such that it only applies when someone has been charged with an offence. Since they don’t tend to charge those in Guantanamo, at least not right away, strict constructionists may not even think it applies. But, even if it does, while this may in general violate Canadian principles of fundamental justice, let’s not forget that Canada has pretty much done nothing to influence the US to release this kid, who happens to be the last citizen of a Western country that is still being held at Guantanamo. The Australians had someone released, the Germans, the Brits, all had citizens released to be tried back in their respective countries of citizenship. So why then, does Canada not act?
Regardless of all of that, perhaps the thing to focus on is Khadr’s age. At 15, by most international law standards, Khadr would have qualified as a child solider. I’m sure you’ve all seen pictures or at least read of these kids, most often shown in the context of African civil wars. These poor kids are manipulated and drafted into conflicts they should have no part in and forced to do horrific things. For the obligatory current culture reference, those of you who’ve seen Blood Diamond you may remember the non-Leo-main-character’s kid being forced into a similar circumstance.
And this brings the key issue up. How can the US justify trying someone who, by international standards, supposedly lacked the ability to actually volunteer to join the enemy? That’s the defence his assigned military lawyer took, which was not persuasive to the tribunal. Part of the issue is the language used by Congress in drafting the law the tribunals are based on. Since they used the term “person”, it apparently is all-inclusive. The argument was that if Congress had intended to exclude children, they could have done so. Personally I don’t think that argument really holds a lot of water, because there are umpteen examples of legislatures using ambiguous/vague terms because they simply didn’t think the legislation through. No one pretends elected legislatures are infallible, since their members are only human after all. But
I’d like to think that we’d be reasonable enough to try and focus on rehabilitation for someone like Khadr. Instead of being a hardened and lifelong militant, I think there are strong arguments that may end up reforming this kid. At least, there could have been if someone had acted during the last six years. What’s especially tragic may be that it could be too late to rehabilitate in any meaningful way. After 6 years in a prison camp that is known for it’s questionable interrogation tactics, the ideology that had been adopted by Khadr may have further been twisted and engrained. Still, one must question the wisdom of charging a man for their actions as a child.
What’s interesting is that other child soldiers who’ve committed terrible acts (going all the way back to the Hitler Youth) have not necessarily been tried. The leaders of these groups may have been, but often the rank and file are ignored as being misguided and manipulated. If the Hitler Youth can avoid Nuremberg, (and no, this is truthfully not a case of Godwin’s Law) and children who commit serious violent crimes are still charged as children, one would have to wonder why these individuals are not given this same treatment.
In essence, this isn’t a matter of terrorism anymore. Instead it becomes a question of the role of justice in contemporary society. No one argues that terrorism poses a real and serious threat. Instead, we have to question the way we want to apply our justice system. Who deserves access to justice? What crimes are so serious they merit special consideration? Basically, should those imprisoned in Guantanamo have access to the same sort of justice system as everyone else? I’d like to argue yes. It seems to be the best way to uphold the values that the West was meant to be built on is to ensure that we don’t reduce our standards. I think having these secret trials and this questionable imprisonment is a terrible idea because it just reinforces the rampant anti-Americanism prevalent in areas of the world.
If nothing else, hopefully this case in particular will catalyze governments around the world into dealing with Guantanamo once and for all. And I really hope the presidential candidates make sure their positions are known.