Warning: Swearing Ahead: Viral Facebook Post Rips Right-Wing Arguments Against Omar Khadr Settlement, “Do you believe that you, as a Canadian, have the right to be presumed innocent, until proven guilty, as well as the right to a fair and quick trial?” by Jake Johnson, July 12, 2017, Common Dreams
A Canadian entrepreneur has some striking words for right-wing politicians, pundits, and citizens who have argued that the Canadian government’s decision to settle with and apologize to Omar Khadr—a Canadian citizen who was detained by the United States at age 15 and subsequently spent 10 years at Guantanamo—is tantamount to compensating “a terrorist.”
In a recent Facebook post that quickly went viral, Ben Feral Selinger confronted those denouncing the settlement, calling their arguments “willfully ignorant and hypocritical.”
Following the introduction of crucial background information—like the fact that Khadr was detained for years without charge, denied access to a lawyer, and tortured—Selinger highlighted the hypocrisy of those who presume Khadr is guilty of the charges leveled against him despite the fact that there was no fair trial.
“Do you believe that you, as a Canadian, have the right to be presumed innocent, until proven guilty, as well as the right to a fair and quick trial?” Selinger asked.
Khadr pleaded guilty to a number of charges in 2010, but Canada’s Supreme Court later ruled that the guilty plea was obtained under “oppressive circumstances.”
“Seriously consider this,” Selinger wrote. “Do you believe you have, as a Canadian, the inalienable right to everything laid out in the Canadian Charter of Rights and Freedoms?”
If you do, but still think Khadr does not, because he is a terrorist, let me ask you; “How do you know he is guilty?” There was no trial for 10 years, and he was only offered a trial on the condition that he plead guilty. How do we, as Canadians, determine guilt? Have you read and understood the Charter of Rights and Freedoms? Its entire purpose is precisely to ensure that what happened to Khadr, is not allowed to happen. Period.
[It is not supposed to happen, but it does, even in Canada and enabled by our courts. The Supreme Court of Canada allowed it to happen to Ernst, by denying her the right to sue the AER to try to seek remedy for the regulator violating her Charter rights. Worse, the court defamed her in the process. The Court took a year to made shit up about Ernst and publish it in their ruling, repeating it in their summary, resulting in media broadcasting the Court’s Trump-style “facts” and defamation of Ernst.
Why allow Khadr his Charter rights, but not Ernst? ]
Now I know many of you still can’t get past the “but he’s a traitor so he doesn’t deserve a trial” even though neither you, nor me, nor the U.S. or Canadian government were able to provide ANY evidence whatsoever, of his guilt (no evidence was submitted during his trial, presumably because none exists), but that doesn’t matter. Let me explain the problem to you.
You are worried that terrorists are trying to take away your freedoms as a Canadian right? They’re trying to force their way of life upon us and we as Canadians, won’t stand for that right?
Do you see where I’m going here? Presuming Khadr’s guilt, with no evidence and without trial, is precisely what the terrorists want to do to Canada. [And is what the AER and Supreme Court of Canada did to Ernst. They presumed her guilty “with no evidence and without trial” and punished her.] Isn’t that your concern? Does it not strike you then, that by saying that Khadr doesn’t deserve a fair trial because he is a terrorist, with absolutely no evidence, nor a trial to prove the charges, that you are doing precisely what you are worried the terrorists are trying to do do us? A presumption of guilt, no trial, a decade of detention and torture. Is that not EXACTLY what you are worried terrorists are trying to do to us?
Rights groups celebrated the Canadian government’s decision to apologize to Khadr. Amnesty International called the move “welcome and long overdue.”
Moazzam Begg, a British man who was compensated by the United Kingdom after being detained and tortured at Guantanamo for close to three years, likewise applauded the settlement.
“The nation shouldn’t be upset about issuing an apology for something that’s right,” Begg said in an interview with The Canadian Press. “If people are getting upset about that, I think they need to revisit what their morals and values are about.”
Read Selinger’s Facebook post in full:
“Okay, I’m fucking sick of the idiocy and done with writing a diatribe every single time a friend posts about how they’re upset that Trudeau is giving a terrorist $10m. You people are…. willfully ignorant and hypocritical. Here’s why. (And I thoroughly suggest reading the entire post. If you know me, you know I’m neither stupid, nor an apologist. I am pure fucking science, and this post is such. Read it before making an ass of yourself by posting about how we just gave a terrorist money).
The story (the facts we know).
- Canadian born Khadr was taken to Afghanistan at age 9, by his father. We don’t know if he wanted to go, and we don’t know why they went. There has been zero evidence put forth to suggest the trip had anything to do with terrorism. Regardless, as he was only 9, he had no choice in the matter.
- Khadr, aged 15, was found in critical condition following a firefight. The mission debrief report filed by the U.S. troops stated that a middle aged man threw a grenade, which killed one US soldier. The grenadier was shot in the head and confirmed killed.
- Khadr was taken to Guantanamo Bay prison. No charges were filed against him at that time.
- Several years later, formal charges were filed. These charges were technically not even charges of war crimes, as if they were true, Khadr would be considered an enemy combatant during a time of war, and thus everything he was accused of doing, was legal under rules of engagement. He was denied access to a lawyer at this point and no trial date was set. He was held in detention and tortured for nearly 10 years.
- Nearly a decade later, an addendum to the original mission debrief was submitted, which identified the grenadier as Khadr by name. The original report was not rescinded. No one knows who made the addendum. No U.S. personnel present during the firefight confirms the addendum. (at least I’ve not been able to find any).
- A week later, Khadr is offered a plea deal. The terms of the deal were to admit guilt to all charges and serve a few more years in a Canadian prison, or refuse to admit guilt and be denied trial indefinitely. (the latter portion is not confirmed by the U.S. government, but let’s be realistic here…)
- Khadr takes the plea deal, is transferred to Canada.
- Khadr sues the Canadian government for their involvement in his illegal detention, torture, and lack of a trial.
All of the above is true as far as anyone knows. That is the official story, from both the Canadian and US governments. They have said straight out that Khadr would not be offered a trial unless he took the plea deal. Just let that sink in for a moment.
Now let me ask you a question.
As a Canadian, what do you stand for? Do you believe that you, as a Canadian, have the right to be presumed innocent, until proven guilty, as well as the right to a fair and quick trial? I know this is hard for many of you to consider without jumping to “oh, but he’s a terrorist, so fuck him [In 2012, AER, without any proof and there having been no trial, argued in briefs filed in court that Ernst is a terrorist and thus has no Charter rights to protect — let that sink in for a month or two — AER/NEB can do the same to anyone. And Supreme Court justices are allowed to make shit up.], he’s a traitor and doesn’t deserve anything”, but we’ll get to that in a minute. Seriously consider this. Do you believe you have, as a Canadian, the inalienable right to everything laid out in the Canadian Charter of Rights and Freedoms?
If you do, but still think Khadr does not, because he is a terrorist, let me ask you; “How do you know he is guilty?” There was no trial for 10 years, and he was only offered a trial on the condition that he plead guilty. How do we, as Canadians, determine guilt? Have you read and understood the Charter of Rights and Freedoms? It’s entire purpose is precisely to ensure that what happened to Khadr, is not allowed to happen. Period.
Now I know many of you still can’t get past the “but he’s a traitor so he doesn’t deserve a trial” even though neither you, nor me, nor the US or Canadian government were able to provide ANY evidence whatsoever, of his guilt (no evidence was submitted during his trial, presumably because none exists), but that doesn’t matter. Let me explain the problem to you.
You are worried that terrorists are trying to take away your freedoms as a Canadian right? They’re trying to force their way of life upon us and we as Canadians, won’t stand for that right?
Do you see where I’m going here? Presuming Khadr’s guilt, with no evidence and without trial, is precisely what the terrorists want to do to Canada. Isn’t that your concern? Does it not strike you then, that by saying that Khadr doesn’t deserve a fair trial because he is a terrorist, with absolutely no evidence, nor a trial to prove the charges, that you are doing precisely what you are worried the terrorists are trying to do do us? A presumption of guilt, no trial, a decade of detention and torture. Is that not EXACTLY what you are worried terrorists are trying to do to us?
At this point, I don’t think any of us should even be concerned about Khadrs innocence or guilt. He is inconsequential at this point. The REAL concern for all Canadians, is that our government denied a Canadian citizen his inalienable rights, guaranteed to him under the Charter of Rights and Freedoms. They did EXACTLY what you are worried the terrorists are trying to do. If Khadr was guilty, a trial probably would have proven such, so why was he denied a trial?
For your information, the Canadian government did not simply offer up an apology and $10m for no reason. They were sued. Khadr filed a civil suit with the supreme court of Canada, and that court found in favour of Khadr, in that the Canadian government was in breach of Canadian and International law. Over half the money awarded will be going toward legal fees.
Think about it this way. Your government, was just successfully sued for war crimes. Crimes they committed not only against Khadr, but against the entire Canadian public. They assured us that we would all be given a fair trial, but now we know that is not true. They assured us that we will always be presumed innocent until proven guilty. We know that is not true. They took your money, money which could have been spent on building half a hospital or something, and spent it instead, on committing war crimes, and crimes directly against the Charter for which our country stands.
Now I don’t know if Khadr is innocent or guilty and I don’t know if that money will end up right back in the middle east, but before you get upset about that, I want you to consider this: Had the Canadian government offered Khadr a fair trial, regardless of his guilt, there would have been no civil suit and we’d have $10.5m more Canadian Pesos to spend on Moose shirts, or maple syrup flavoured hockey sticks.
All they had to do, was abide by our own legal doctrine, and this whole mess would have never happened.
If you believe Khadr did not deserve a fair and quick trial, you are not Canadian. You do not stand for what Canada stands for. You are saying very clearly, that you don’t care about evidence, treating people (who we presume are innocent until proven guilty) with basic decency, or your own or anyone else’s right to a fair trial. You are, quite literally, openly supporting about half of Sharia law. You fuckwits.” [Emphasis added]
On Khadr, Trudeau says Charter protects all Canadians ‘even when it is uncomfortable’ Former Guantanamo Bay detainee received $10.5M this week, sources tell CBC News by CBC News, Jul 08, 2017PM Justin Trudeau:
The Charter of Rights and Freedoms protects all Canadians, every one of us, even when it is uncomfortable.
This is not about the details or merits of the Khadr case.
When the government violates any Canadian’s Charter rights we all end up paying for it. [But it’s OK for the AER to violate Ernst’s Charter rights and the Supreme Court of Canada letting the regulator get away with it? Canada’s Attorney General had automatic right to intervene at the Ernst vs AER Supreme Court hearing and could have stood in support of all Canadians’ Charter rights when violated by oil and gas industry regulators. Canada’s Attorney General chose silence and did not attend.]
It is not about previous behaviour on the battlefield in Afghanistan; it is about the acts and other decisions the Canadian government took against Mr. Khadr after he was captured and detained,” Public Safety Minister Ralph Goodale said Friday. “Those facts are not in dispute and there is no doubt about how the Supreme Court views them. The government of Canada offended the most basic standards.
What if Khadr was innocent of the murder of Sgt. Christopher Speer this whole time, and we didn’t lift a finger while he sat in a hell-hole for a decade?
For almost 15 years, Canadian treatment of the Khadr case has been dominated by the presumption of guilt. Yet the evidence tells a different story.
For all the fury boiling up over news of his settlement, there’s precious little insight or knowledge about the facts. As a former prosecutor, something has always troubled me about this case, and my deep unease hasn’t abated with time.
Any experienced trial lawyer would be troubled to open this file. With the exception of Khadr’s “confession,” wrung from a traumatized and severely wounded teenager under an abusive interrogation, the evidence against him was remarkably thin.
Examined closely, it appears more consistent with his innocence than guilt.
Khadr’s case a ‘Canadian tragedy’
What evidence exists appears confused, inconsistent or contradicted elsewhere. Photographs of the attack scene released in 2009 appear to directly conflict with the prosecution’s summary of its own case.
Had the events happened under Canadian jurisdiction, they would not have been enough to lay a charge, let alone secure a conviction.
This case represents a Canadian tragedy and failure of moral courage on the part of our government. When Canada should have championed transparency, due process and the rule of law in the Khadr proceedings, we stood mute or actively participated in his abusive interrogation in custody. [We aren’t “legally” clean in courts within our own country and we enable abuse of power by our authorities to cover-up pollution and harms by the oil and gas industry. The Supreme Court of Canada made “facts” up and intentionally published them in their Ernst vs AER ruling to enable Alberta’s Charter-violating Energy Regulator. Due process? Rule of Law? To defame Ernst for daring to expose Encana’s community-wide drinking water contamination and trying to seek justice for harms done in Canada? We aren’t capable of providing transparency, due process and the rule of law in our own country, no wonder we fail our citizens elsewhere.]
Had the Canadian government done so, any criminal trial in open court would most likely have ended in a humiliating defeat for the U.S. government, and public perception would be very different from what it is today. [Had the SCC allowed Ernst to sue the AER for her valid Charter claim against the rogue regulator, Ernst would most likely have brought public humiliating defeat for the grossly over-paid, arrogant, abusive, law-violating, pollution covering-up AER.]
To any trial lawyer, it’s plain that Khadr pled guilty for a very simple reason: his plea deal offered a return to Canada and eventual freedom — clearly a better alternative than a lifetime of suffering in Guantanamo.
That bargain was a successful legal maneuver, but a personal tragedy. It was successful because it returned him to Canada, where his prospects for justice were a vast improvement on Guantanamo Bay and U.S. military tribunals. It was tragic because he will forever wear the stain of pleading guilty to murder.
Today Canadians are paying a hefty price because successive Liberal and Conservative governments sacrificed principle to political expedience, traded away due process, and turned on their own child citizen, a trapped and helpless teenager. [Just like SCC did in Ernst to keep the oil industry happily polluting?]
Evaluating the evidence from the prosecution’s perspective
Here’s how a prosecutor would look at the evidence against Khadr in a civilian criminal trial. Remember, this was a criminal prosecution subject to evidentiary rules supposedly designed not only to protect the innocent, but the integrity of the justice system itself. [“Justice” system? Where in the world is there one of those? The courts manage “justice” but for a few criminals, the rich, corrupt law-violating politicians, polluting law-violating multinationals. The rest of us get exorbitantly expensive abusive “legal” systems that perpetuate phenomenal waste of time and money, and cause incredible stress, most often for no reason but apparently to punish those who dare try to seek justice, and keep judges, court staff, lawyers and their staff well fed to keep them subservient to and feeding the “system.”]
The first step is to ensure the prosecution can prove each element of the charge beyond a reasonable doubt; and that the evidence is probative, consistent, credible, and reliable.
Any obvious defences, such as mistake of identity, self-defence, temporary loss of control or accident, should be anticipated and closed off by cogent evidence before charges are laid.
One more thing: in a circumstantial case, (which this was, because nobody saw Khadr throw the grenade that killed Speer), the evidentiary bar is even higher. In such a case the test is not merely proof beyond a reasonable doubt, but that the evidence pointing to guilt is inconsistent with any other rational conclusion.
First the context. This firefight was no small village confrontation, but an all-out military assault on a small compound.
The suspected Al Qaeda compound was identified by U.S. and Afghan forces in the early morning of July 27, 2002. Two Afghan militia members approached the small compound, estimated at “100 to 120 feet square.” They were immediately shot and killed by occupants inside.
Compound bombed and strafed by U.S. air assault for hours
That shooting drew an overwhelming response. More than 100 U.S. troops assembled on the site, and for the next four hours the compound was pounded with cannon, missile, and rocket fire from a coordinated air assault involving Apache helicopters, A-10 warplanes and F-18 fighter jets. Multiple 500-lb. bombs were dropped on the site.
When American forces believed everyone inside had been killed, a U.S. Special Forces team entered the compound.
Whatever happened next took less than a minute, according to reports. At the end of it, Sgt. Christopher Speer, who was not wearing a helmet, was mortally wounded in the head from a grenade, and Khadr was captured alive.
So what was the prosecution’s case against Omar Khadr?
Inconsistent and inaccurate statements from the prosecution
There was lots to choose from. The U.S. military reports and filed statements describe a hodge-podge of confusing and inconsistent positions, including the following range of scenarios:
(1) The assault team entered, encountered and returned enemy fire and killed the shooter. Omar Khadr, positioned behind a crumbling wall, then threw a grenade at a group of soldiers who were talking. He did not consider them a threat to his safety, but just planned to kill as many Americans as he could (U.S. government stipulation of facts, 2010, paragraphs 41-43, agreed to by Khadr in his guilty plea);
(2) The assault team entered, encountered enemy fire, including a thrown grenade. They shot and captured Khadr, who was the only survivor in the compound during the exchange. Being the only survivor, Khadr must have killed Speer (false public position of U.S. military until 2008, as per CBC report);
(3) The assault team entered, encountered enemy fire, including a thrown grenade. They killed the shooter who also threw the grenade. They then captured Khadr, who did not throw the grenade (Report by Maj. Randy Watt, senior U.S. officer at battle, July 28, 2002);
(4) The assault team entered, encountered enemy fire and a witness identified as OC-1 saw a grenade thrown over a wall. Because of the timing of the shooting and grenade, he did not believe one person could have done both. OC-1 killed the shooter. He then found Khadr seated and facing away from the assault team and shot him in the back. According to OC-1, Khadr was the only person who could have killed Speer (Statement by witness OC-1, dated March 17, 2004, almost two years after the event);
(5) The assault team entered, encountered enemy fire and saw a grenade thrown over a wall. They killed the shooter and two Delta Force members confronted Khadr, who was armed and stood facing them. They shot him in the chest (per summary of statements, originally reported by Michelle Shephard in the Toronto Star);
(6) The assault team entered, encountered enemy fire and saw a grenade thrown over a wall. Soldiers outside the compound were also throwing grenades in response to the firefight. U.S. forces first killed the shooter, then shot and captured Khadr (per Los Angeles Times report of statement evidence). This opens the possibility that friendly fire accidentally killed Speer.
(7) The photos:
Clearly, the multiple positions and reports advanced by the prosecution can’t all be true. In all, either the shooter, or Khadr, or possibly American forces threw the grenade that killed Speer. Some of the reports make no sense at all, and some are clearly false.
Consistency, credibility and reliability are essential to a strong prosecution, and this case was on thin ice.
Photo evidence disastrous for the prosecution
Then came the photographs of the combat scene obtained by the Toronto Star in 2009, which can only be seen as disastrous for the prosecution.
The two photos above apparently depict the scene as found by the assault team in the area where the shooter was killed. The first photo on the left shows the body of the shooter killed in the firefight next to what appears to be a pile of rubble and brush. Omar Khadr was found alive beneath that rubble.
According to the Star, military documents indicate that “a soldier stood on top of Khadr’s body before realizing someone was buried.”
The second photo on the right—enhanced by the Star for clarity—shows the brush and rubble pulled back to expose Khadr, with bullet entry wounds clearly visible on his back.
In the third photo below, which shows Khadr receiving battlefield first aid (the graphic damage of his exit wounds are obscured), clearly visible is the dried blood from the shrapnel wound to his left eye. Khadr’s face is coated in dirt, consistent with being buried in rubble.
Khadr could not have thrown the grenade and then completely buried himself under rocks and debris in just a few seconds before the special forces team arrived.
Of all the positions taken by the prosecution above, only (3) and (6) are consistent with the photographs taken in the immediate aftermath of the firefight. Neither version implicates Khadr. Version (3) is the incident report submitted by the senior officer on site the day after the battle, which completely exonerates him.
The only evidence that ties Khadr to the grenade is the statement of OC-1 in version (4), given to investigators almost two years after the event. But OC-1’s statement that he found Khadr sitting up and leaning against brush is sharply at variance with photograph 1, in which Khadr lies completely buried under rocks and brush.
That’s not a small problem for the prosecution. It’s a big one.
If the photograph is an accurate depiction of the scene as the special forces team found it, OC-1’s statement can’t be true. It’s more likely that OC-1 discovered Khadr under the rubble after he shot the other combatant, then shot him in the back as he lay there.
It gets worse. The prosecution’s bigger problem is that its official version (1) makes no sense at all when read with the photographs. Below is the relevant text of the U.S. government’s stipulation of facts:
Clearly, paragraphs 42 and 43 are drafted to defeat any argument that Khadr threw the grenade in self-defence. It’s drafted to cast him as the aggressor who, unprovoked, attacked a peaceful group of soldiers clearing up a battle site after a firefight with the other combatant. But that is wholly inconsistent with a photo of Khadr buried in rocks and rubble, lying within inches of his dead compatriot.
Unless the shooter’s body had been moved, Khadr was lying under the debris immediately next to him during the firefight. According to OC-1, he shot both the shooter and Khadr within a few seconds of each other.
This doesn’t make sense either. Khadr didn’t watch his compatriot get killed, throw a grenade, then cover himself in rocks and sticks and wait to be discovered. And what about the Star‘s account of military documents reporting that a soldier didn’t even realize Khadr was there until he stood on him?
Military evidence makes a better case for innocence than guilt
So far, this is all the prosecution’s own evidence, and it’s a mess before the defence calls a single witness. Without Khadr’s confession, obtained essentially by force, there is no compelling evidence that he threw any grenade at all. No one saw him do it, and from all appearances he’d been under that rubble the entire time.
From what’s publicly available at this point, the evidence pointing to guilt is weak and speculative. Taken as a whole, it doesn’t really make sense. Multiple statements contradict each other and run all over the map.
These are not small inconsistencies. Something is seriously wrong with the prosecution’s account.
Without Khadr’s confession, the evidence fails its first and most basic test: that of establishing beyond a reasonable doubt through credible, reliable and consistent evidence that Khadr threw the grenade that struck and killed Sgt. Speer.
So what about that confession?
As is well known today, false confessions are common, especially with malleable young people under duress. The intensity and abusiveness of Khadr’s interrogation is unprecedented in law-abiding countries. It’s probably fair to say that in 2002 the U.S. military was far more concerned with learning whatever it could about Al Qaeda from Khadr than with getting an admissible voluntary statement for a criminal trial.
The priority was to find and kill Osama bin Laden, and to defeat Al Qaeda and the Taliban.
That interrogators went too far is now common knowledge. But the problem with torturous or abusive questioning isn’t just that it violates the prisoner’s rights, but that subjects will give false information to escape the agony.
Today, Khadr says that he confessed to false things just to please his interrogators and stop the pain, and there’s evidence to back that up. For instance, we know that under pressure Khadr falsely identified Maher Arar as having stayed at terrorist safe houses in Afghanistan, when Arar had never been to the country.
It’s far more believable that Khadr confessed to stop the pain than that his confession is true. The photographs and the known chronology make it extremely unlikely that he could have thrown the grenade.
Yet without that confession, the prosecution had no case.
First, freshest and best military report points to innocence
The U.S. military’s first, freshest and probably best report of the incident, based on contemporaneous eye-witness accounts by the soldiers involved, was submitted by Maj. Randy Watt the day after the firefight. That report described scenario (2), in which it was believed that the grenade was thrown by the shooter.
It’s also consistent with and corroborated by the photographs taken at the scene, where only the shooter would have been in a position to throw the grenade.
However, according to the CBC (at 15:30 in the video), that report was itself subsequently altered without documentation or explanation.
That first report, which contains the best evidence exonerating Khadr, remains today the most coherent account of the events of that day.
Even if it could be established that Khadr did throw the grenade in the middle of a firefight, given his proximity to the shooter it’s impossible to rule out self-defence. The stipulation of facts cannot be true.
After all these years and coverage, it’s plain that any competent defence lawyer could run a Mack truck through this case in a conventional criminal court.
It was Canada’s job to raise hell about the railroading of a Canadian teen
Know who else should have run a Mack truck through it? The Canadian government.
It was Canada’s job to raise hell about the railroading of a Canadian teen based on a lousy case. It was Canada’s job to raise hell about the torture of a Canadian kid in U.S. custody. Instead, we presumed he was guilty.
Successive Liberal and Conservative governments washed their hands of Khadr, only to aid and abet his Kafka-esque ordeal and trial by torture. Precious few stood up to take his side as he was convicted in the court of public opinion without a trial.
We were happy—eager, in fact—to strip him of his rights, judge him without even looking at the facts, and allow the American military and politicians to malign him mercilessly as they took every step to suppress the truth.
And though many reporters distinguished themselves, there was no shortage of media commentators piling on, sneering at the doubters and skeptics as do-gooding sissies.
The American torture program was a disaster. Extraordinary rendition to torture sites was a disaster. Guantanamo is a continuing disaster.
Instead of playing along as America’s trusty lapdog, the Canadian government should have stood squarely on the side of due process, demanding an accounting of the staggering cruelty and appalling ineptitude (or worse) behind this whole affair.
At every turn we should have called for a full, fair, open and transparent proceeding. We should have challenged the bad faith, the secrecy, the doctored reports, the contradictory witnesses, the changing stories, and the procedural bullying. [Sounds like an Alberta investigation of drinking water contaminated by Encana’s illegal fracking and goings on at the AER]
We should have demanded Khadr’s immediate return to Canada from Guantanamo, pending a full investigation.
If you still think the U.S. wouldn’t fudge its reports to get the result it wants [like Supreme Court of Canada getting the results it wanted by fudging “vexatious litigant” out of AER, in writing, judging Ernst a criminal.], google ‘Pat Tillman.’ Then consider whether the biggest clue to this whole mystery is the long suppression of reports that American soldiers in the special forces assault team also threw grenades during the firefight.
We had plenty of notice how this would all end, because we’ve been here before with Maher Arar. The day after Khadr, compelled by fear and abuse, falsely pegged Arar as an Al Qaeda associate, U.S. authorities spirited him to Syria by extraordinary rendition, where he too was tortured and imprisoned for a year.
That lesson cost us a cool $10.5 million in foreshadowing, but didn’t teach us a thing. We turned around and did it again. To a kid.
Khadr was left virtually alone and helpless to fight the awesome force of American power from a cell in Guantanamo. He should have had the full weight of the Canadian government behind him pushing for the truth. [In make believe Supreme Court of EnCanada Land?]
Plea deal bought freedom at a high price
Khadr’s guilty plea bought his freedom, but at a heavy price. For that freedom Khadr traded, perhaps forever, the chance to clear his name and turn public scrutiny on those who abused him, who doctored records, who changed their stories. [Had Khadr not taken the forced deal, he might have been tortured to death in Guantanamo.]
As part of his plea deal, Khadr agreed to a statement of facts admitting to killing Sgt. Speer, and promised never to seek forensic review of the evidence which might one day prove his innocence. He also agreed to permit the U.S. government to destroy all evidence following sentencing.
As a teenager Omar Khadr was betrayed and exploited by every adult who owed him a duty of care, including his father who conscripted him into a terrorist group, and his mother who let it happen. Then he was abandoned by the one government that should have protected his right to a fair trial.
Khadr’s ticket out of Guantanamo should never have been a guilty plea extracted by torture, fear and despair. Every other western country was getting its citizens out, while Canada let a teenager rot there.
Khadr’s passport out should have been the birthright he was born with—his Canadian citizenship. [Emphasis added]
Wow! Exactly the info I was looking for. Great article!
Congratulations , Sandy Garossino. This is not a only detailed discussion of so many issues around the Omar Khadr saga but in addition a comprehensive analysis of many scenarios exploring whether Omar Khadr threw the grenade. Even my less particular reflection on the events as they were described around the time this story broke led me to conclude that his having done this was most improbable–the chaos, and exactly who, in the midst of this madness, is observing a grenade’s trajectory from the hand of one person to its final landing?
Yes, Omar Khadr was betrayed over and over–and not the least so jarringly by his and our own government.
I celebrate the court’s finding and all that issues from it: the government’s apology, the settlement. I am very pleased today to call myself Canadian. With your article I had avenues to explore, all directing me to why I could have been more celebratory on Canada 150–not because of our government, which successively
betrayed a fifteen year old Canadian who was tortured in Guantanamo and there further abused by CSIS, but because of Dennis Edney, his lawyer and eventually a fatherly friend to him, and now because of the view you’ve provided for me through your research and perspective.
Twelve Points about the Khadr Saga by Craig Forcese (Full Professor Faculty of Law, U Ottawa), July 7 , 2017, National Security Law
I have been buried in a book project, and trying to stay away from 2017. But against my better judgment, I thought I’d take a moment to distill a few thoughts on the Omar Khadr damages settlement. As most people likely know, Omar Khadr — the boy who was captured in a firefight in Afghanistan and grew to a man in detention at the United States’ infamous Guantanamo Bay prison — has been paid $10.5 million by the Canadian government.
This is compensation for the Canadian govenments own (mis)conduct in that matter faced with a lawsuit for a much larger amount, not some sort of holiday present. But that fact is lost on social media.
My colleague Audrey Macklin has an excellent piece in the Globe responding to the waves of outrage — and especially the wave of outrage from Jason Kenney. (I am sure Audrey’s mailbox is full of hate mail in consequence — mine certainly was when Audrey and I and others worked with students a decade ago to help Khadr’s then-military lawyer, Lt Cmdr Bill Kuebler, navigate the Canadian legal scene. Some of those students went on to produce some excellent analysis, noted below. Tragically, Bill passed away two years ago, a young man and father and victim of the disturbing cancer cluster among those who worked at the Guantanamo court complex).
But I offer a few additional thoughts to Audrey’s.
First, unlike others caught in acts of tacit complicity with maltreatment by the Canadian government, Omar Khadr is not a blameless victim. He was an unprivileged belligerent when captured in 2002 in what was, by then, a non-international armed conflict between the new Afghan government and its allies and the Taliban and remnant AQ. Being an unprivileged belligerent is not, itself, a war crime — that is reserved for more serious conduct. But nor does an unprivileged belligerent enjoy combatant’s immunity: he or she can be held accountable for their conduct.
Second, Omar Khadr was prosecuted at Guantanamo after being mistreated, in a patently delinquent process for, in some instances, crimes made up after his conduct (and thus applied retroactively). Put another way, the United States took a clean case and screwed it up. (Being a child soldier is not and never has been an absolute bar to prosecution for crimes. But it does matter and the US completely ignored that as well.)
Third, along the way, for transparently political reasons, the Chrétien, Martin and Harper governments refused to seek Khadr’s repatriation. And the Harper government in particular made an art of this refusal, claiming falsely Khadr could not be prosecuted in Canada. My students wrote a 150 page paper laying out how this was wrong (when they presented that brief before a parliamentary committee certain Conservative MPs derided them, just because). The Obama administration would have been happy to be rid of Khadr.
Four, but still the government stuck to its guns, and was slapped with two Supreme Court and several lower court holdings collectively finding that the government had violated its obligations — including under the Charter — in using Khadr’s detention in a system violating international law as an interrogation opportunity.
Five, that meant that the government now had its own legal exposure for, essentially, a form of complicity, as it did in other cases and still does for still others before the courts.
Six, the government will eventually lose such cases. For one thing, as with Arar, Almalki, Elmaati, Nureddin and (likely in the future) Abdelrazik, there were ample court or commission of inquiry findings setting out its wrongful conduct in graphic detail. The government can (and often has) engaged in procedural trench warfare in court to try to stuff Pandora back into her box — but it takes a particularly unedifying government to dispute a meritorious case with endless legal chicanery. Plus, the ultimate legal costs will likely exceed any settlement.
Seven, even where a government case has merit, the evidence of that merit may be clothed in secrecy, leading to a form of gray mail: you cannot prove the merit. And whether your case has merit or not, it is usually not a great idea to allow the plaintiff’s lawyer to get a bunch of senior government and security agency officials on the stand in open court and rip them to shreds.
Eight, and so that is why it is a very smart idea to settle cases like Omar Khadr’s.
Nine, but that is not to say, again, that Khadr was a blameless victim. Whatever may have happened in that 2002 firefight, he was an obvious unprivileged belligerent. There is now no prospect of a Canadian prosecution — the record is likely irremediably tainted by the maltreatment in Guantanamo, a prison that has become the world’s largest poison pill to justice. (And that sets aside the interesting double jeopardy issue.)
Ten, nor would prosecution now meet any of the purposes for which the criminal law serves.
But, eleven, when someone hurts another person, tort law is available to compensate for injury. Put another way, it is perfectly reasonable, in my view, that there be a civil suit in this case. I know nothing more than I have read in the media about its particulars, but the issue with the lawsuit brought by Tabatha Speer and Layne Morris may be that the default Utah judgment for $134M is also irredeemably tainted by events at Guantanamo, including the so-called confession. What happened in that 2002 firefight has never been adjudicated in a proper adversarial process in front of a real court using real rules of evidence.
Twelve, that will make enforcing the judgment in Canada difficult. And it may now be too late for a proper action, given limitations periods. (Although maybe not — limitations periods and rules differ).
But bottom line: the lesson learned, once again, is that taking off the gloves and playing footsie with some basic legal principles has blowback.
The interests of justice would have been much better served had Khadr been repatriated earlier from Guantanamo. I wonder why that never happened? [Emphasis added]
We all lose when government fails to protect civil rights by Kelly Ernst, July 7, 2017, Calgary Herald
[What when our courts fail to protect civil rights to enable abuse of power and Charter violations by energy regulators? And what when the Supreme Court of Canada damages Canada’s Charter so as to enable irresponsible fracking in every jurisdiction and defames ordinary Canadians (not alleged to have killed anyone in a war) seeking their guaranteed right to remedy for Charter violations?]
I do not condone the killing of anyone, for any reason. Nor do I condone the conscription of children into their parent’s wars. I completely disagree with the use of torture, coercion and threats of life-long imprisonment to extract confessions. And I get angry when governments pay out millions to anyone, as consequences for their bumbling efforts to “speak to their base.”
The Omar Khadr case raises all of these issues: terrorism, child soldiers, government use of torture, bad legislation, restriction of civil liberties to protect safety, and poor adherence to the rule of law.
Fundamentally, the case is about consequences that result when governments fail to follow — or simply ignore — the rule of law and fail to uphold all citizens’ rights and civil liberties. It is this issue the Rocky Mountain Civil Liberties Association finds most troubling.
… The 2010 Supreme Court of Canada decision regarding Khadr’s imprisonment and treatment in Guantanamo is clear: the Canadian government was complicit in his torture and ongoing imprisonment to obtain a confession.
Under the Harper government, Khadr returned to Canada. He has since filed a $20-million claim for the abrogation of his civil liberties. Now, the current Government of Canada has settled out of court for over $10 million, the same amount the Harper government paid to settle the Maher Arar case of wrongful imprisonment and torture.
In both cases (and others), the Government of Canada did not do its job to uphold human rights and civil liberties of all of its citizens, and Canadians have to pay for that.
The result might have been very different if the rule of law and civil liberties had been upheld. One scenario is Khadr returned to Canada where he faced a proper trial and was found guilty. If so, he would likely still be in jail and no payout would have occurred. Another scenario is that Khadr was not guilty of the charges and released from jail. Again, no payout would have occurred.
In both of these scenarios, the government would have upheld all of our rights and liberties — Khadr’s included, and the government would not now be paying millions in compensation.
This case is an unfortunate, but very real example of what happens when human rights, civil liberties and the rule of law are not protected. Rather than do the right thing, and in a rush to appeal to its political base, the government chose to undermine rights and liberties. The consequence is that all Canadians are now paying the price. It angers many and no one comes out as a winner. A further consequence is that we might never know if the 15-year-old Khadr is truly guilty or innocent of the charges.
A true test of a healthy and free democracy is whether its elected representatives [and courts!] stand up to protect the rights and liberties of its citizens, even in the face of immense pressure to do otherwise. Paradoxically, when governments fail in this obligation, individual liberties are eroded, those fighting against democracy seem to win, and the rest of us all lose, and are simply left feeling outraged.
Kelly Ernst is president of the Rocky Mountain Civil Liberties Association
[Refer also to:
Slides from Ernst presentation, ACORRDS Frack Conference, May 13, 2017, Cochrane
2017 01 21: Damaging the Charter: Ernst vs Alberta Energy Regulator by Lorne Sossin, Dean Osgoode Hall Law School, York University. Comment: “It causes one to question how much both the plurality and the dissent were driven by the desired end-state of the judgment, rather than consistency in applying principles of public law.”
The “fudging” (not judging) in Justice Abella’s ruling in Ernst vs AER remains uncorrected as of July 13, 2017
Re: Clarifications to Kevin Van Tighem’s “Betrayed, The Jessica Ernst Decision,” Alberta Views April 2017.
Thank you for the support. I’d like to clarify a few things.
Mr. Van Tighem wrote: “By the time the case migrated up the judicial food chain to the Supreme Court of Canada, Ernst added another complaint: that her rights under Canada’s Charter of Rights and Freedoms had been violated by the regulator. … Another [justice] rejected her case because, in his view, the Charter rights question had been added too late and should have been considered by lower courts first.”
To clarify, I didn’t add another complaint. The Charter claim against the Alberta Energy Regulator (AER) was in my first 2007 court filing, and argued at Alberta’s Court of Queen’s Bench and Court of Appeal before it was argued at the Supreme Court. Gowlings law firm – Agent for the AER – summarized Supreme Court Rule 60 regarding my case: “the Chief Justice on motion stated a constitutional question for [my] appeal which in the end she herself declined to answer in dissent, as did Justice Abella for other reasons, leaving only 4 of 9 members of the Court providing an answer.” Rule 60 was removed on January 1, 2017, two weeks before the court released my ruling. Notably, parties are now “expected to identify and frame their own constitutional question at the leave and appeal stages.”
Mr. Van Tighem wrote: “Four justices said Ernst should have simply sought a judicial review of the original well approvals.”
To clarify, my case before the Supreme Court was not about well approvals. It was about whether or not the Alberta government’s legislated legal immunity for the AER trumps Canada’s supreme law – our Charter of Rights and Freedoms. In 2005, the regulator abused their powers, judged me a criminal, punished me without due process and without any evidence, cut off communication and banished me from energy regulation in a malicious attempt to intimidate and silence me. The next year, the regulator admitted in a witnessed, recorded meeting that the real reason they did this was because they felt humiliated by my speaking out, but still argued in 2012 court documents that I was a criminal – an eco-terrorist: “By ceasing communications and reporting the Plaintiff to the RCMP, the ERCB was responding appropriately to a real threat of violence. The ERCB ceased communication in order to protect its staff, the Alberta public and the Alberta oil and gas industry from further acts of eco-terrorism.”
Chief Justice Wittmann of Court of Queen’s bench ruled in 2013 that I have a valid Charter claim against the AER (previously ERCB). He also ruled: “I agree with Ernst that the ERCB cannot rely on its argument on the Weibo eco-terrorism claim, in the total absence of evidence. There is none.” But using the immunity clause, and to prevent citizens from seeking justice for Charter violations “dressed up in their Charter clothes,” Justice Wittmann ruled I can’t sue the industry-funded regulator (AER). Stunningly, he ruled a year later that I can sue the taxpayer-funded regulator (Alberta Environment), even though they too have an immunity clause.
After a long stressful process, great expense to me and the generous Canadians who graciously sent donations, and the constitutional issue not being addressed – the Supreme Court confused the law. Four justices say the AER’s immunity clause bars Charter damage claims, one says “not sure yet,” and four say it doesn’t. And in a chilling twist, the swing judge, Justice Rosalie Abella, introduced unsupported “facts” into her ruling. Rather than use the AER’s fabricated argument that I was banished for being an eco-terrorist – or even their admitted reason of feeling humiliated – Justice Abella injected something new and untrue, and attributed it to the regulator: “When the Board made the decision to stop communicating with E, in essence finding her to be a vexatious litigant, it was exercising its discretionary authority under its enabling legislation.”
Of note, I was not a litigant in 2005 when the regulator judged me a criminal and banished me. As well, to this day, the regulator has never filed a motion in any court or sent me a letter accusing me of being a “vexatious litigant.” None of the defendants in my case have. Justice Abella’s unfounded statement published by the Supreme Court and media, is extremely concerning and damaging. Now that I am a litigant (as of 2007), the “vexatious litigant” designation by a Supreme Court justice could harm my ongoing lawsuit against Encana and Alberta Environment. It’s very serious when a court declares a claimant to be a “vexatious litigant,” and could result in restrictions or no further access to the courts, so I have filed a complaint with the Canadian Judicial Council regarding Justice Abella’s conduct. It can be read on the lawsuit page at ernstversusencana.ca. Anyone can challenge the abuse of power by our regulators, governments and courts. This from the Canadian Judicial Council website: “Any member of the public can make a complaint to the Council provided the complaint is about judicial conduct, is made in writing, and is about a specific federally appointed judge. ….most complaints come from the general public. … Every complaint is considered seriously and conscientiously. You do not have to be represented by a lawyer…. There is no fee charged and no deadline….”
The valid Charter claim against the AER was not struck by the Supreme Court, but the justices left me with no way to seek our right to remedy. They also confirmed for me that when it comes to the oil and gas industry, abuse of power in Canada is rampant – and overlooked or ignored. Only four of our Supreme Court justices, including Chief Justice McLachlin, acknowledged that Justice Abella’s statement had “no basis” – the other four were silent.
Mr. Van Tighem wrote that we all lost at the Supreme Court. He couldn’t be more right.
References & Additional Information:
Making a complaint to the Canadian Judicial Council: https://www.cjc-ccm.gc.ca/english/conduct_en.asp?selMenu=conduct_complaint_en.asp
The Lawsuit, Ernst v. Encana Corporation: http://ernstversusencana.ca/the-lawsuit/
Jessica Ernst Complaint to the Canadian Judicial Council: http://ernstversusencana.ca/jessica-ernst-open-letter-to-chief-justice-beverley-mclachlin-regarding-false-and-seriously-damaging-statements-in-justice-rosalie-abellas-ruling-ernst-vs-aer/
Supreme Court of Canada ruling in Ernst vs AER (para 64): http://ernstversusencana.ca/wp-content/uploads/2017-01-13-SCC1-Supreme-Court-of-Canada-Ruling-Ernst-v-AER-Alberta-Energy-Regulator.pdf
SUPREME COURT’S FIRST DECISION OF 2017: STRIKING SECTION 24(1) CHARTER DAMAGES CLAIM AGAINST A REGULATOR: https://gowlingwlg.com/en/canada/insights-resources/supreme-court%E2%80%99s-first-decision-of-2017-striking-section-24(1)-charter-damages-claim-against-a-regulator
One final point of interest to those who follow the Supreme Court’s practice and procedure – in this case the Chief Justice on motion stated a constitutional question for the appeal which in the end she herself declined to answer in dissent, as did Justice Abella for other reasons, leaving only 4 of 9 members of the Court providing an answer. Effective January 1, 2017, the Amended Rules have dispensed with the former Rule 60 motions to state constitutional questions. Instead, under new Rule 33, parties are expected to identify and frame their own constitutional question at the leave and appeal stages. This new procedure is bound to require more scrutiny by Attorneys General looking to decide whether to intervene in a constitutional question that the Court itself has not yet defined.
The Constitutional Question in Ernst vs AER Ordered by Chief Justice Beverley McLachlin: http://ernstversusencana.ca/wp-content/uploads/2015-06-29-Ernst-vs-AER-service-of-Notice-of-Constitutional-Question-to-Attorney-Generals-Federal-Provinces-and-Yukon.pdf
IT IS HEREBY ORDERED THAT THE CONSTITUTIONAL QUESTION BE STATED AS FOLLOWS:
- Is s. 4 3 of the Energy Resources Conservation Act, R.S.A. 2000, c. E-1 0, constitutionally inapplicable or inoperable to the extent that it bars a claim against the regulator for a breach of s. 2(b) of the Canadian Charter of Rights and Freedoms and an application for a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms
ERCB Brief filed in 2012 (para 133): http://ernstversusencana.ca/wp-content/uploads/2013/01/2012-12-05-Brief-of-ERCB.pdf
J Wittmann’s ruling in 2013 granting AER immunity (para 42): http://www.canlii.org/en/ab/abqb/doc/2013/2013abqb537/2013abqb537.html?searchUrlHash=AAAAAQASaSBhZ3JlZSB3aXRoIGVybnN0AAAAAAE&offset=1506
J Wittmann’s ruling in 2014 denying Alberta Environment immunity (para 71): https://www.canlii.org/en/ab/abqb/doc/2014/2014abqb672/2014abqb672.html
This Land: Betrayed, The Jessica Ernst decision by Kevin Van Tighem, March 29, 2017, in Alberta Views April print issue.
But Ernst won a victory of sorts: She got the AER to show its true colours. That same day, the agency posted a smug and tone-deaf media release congratulating themselves. Among other things, the release stated: “The court did not find there was a breach of Ms. Ernst’s Charter rights, and made no findings of negligence on the part of the AER or its predecessor the ERCB.”
That statement was a complete and almost certainly deliberate misrepresentation of the legal decision. The Supreme Court actually chose to be silent on Ms. Ernst’s Charter rights and never addressed the question of negligence. If ordinary citizens were the audience for that media release, the AER’s gloating and post-truthy response makes no sense. But we weren’t the audience.
Where the AER is concerned, it was never about us. The AER is staffed by oil-industry insiders and entirely funded by oil and gas revenues. They know who butters their bread. Given the real audience for that media release, it wasn’t tone-deaf at all; it was meant to reassure.
Jessica Ernst may have lost her legal battle, but she got the AER to prove that it is—as has long been argued by its critics—a captive agency almost fully in the service of the very industry it’s supposed to regulate.
In the early 1990s the AER’s predecessor, the Energy Resources Conservation Board, approved a number of coalbed methane wells around Ernst’s home near Rosebud. Encana, which drilled the wells, used fracking to release methane from shallow coal seams. Water wells in the area promptly began to go sour. Ernst’s was among them. Her taps began to spew foam. The bubbles were natural gas. She couldn’t drink the water anymore—but she could light it on fire.
When a gas or oil company contaminates groundwater in Alberta, they usually cut private deals to make the problem disappear. In exchange for cash, a new water well or a commitment for trucking potable water in from far away, the landowner signs a non-disclosure agreement with the company. With no public record of the transaction, the industry and its regulator continue blithely to assure us that no evidence exists of oil and gas drilling poisoning our groundwater.
Ernst, however, wouldn’t play the cover-up game. She refused to sign a non-disclosure agreement. She refused to be bullied by threats from lawyers. She kept asking awkward questions. She simply refused to behave like a nice, tame Albertan properly subservient to Big Oil.
She’s an Albertan who had the gall to stand up for her rights. The court’s majority ruling dodged the question of whether the AER abused its powers.
Finally the agency simply slammed the door on her. For months, Ernst was denied all access to a public agency set up to address public concerns. So she sued them. The AER insisted they can’t be sued, because their enabling legislation grants them immunity. By the time the case migrated up the judicial food chain to the Supreme Court of Canada, Ernst added another complaint: that her rights under Canada’s Charter of Rights and Freedoms had been violated by the regulator.
January’s decision was a close split. Four justices said Ernst should have simply sought a judicial review of the original well approvals. Another rejected her case because, in his view, the Charter rights question had been added too late and should have been considered by lower courts first. Combined, the five were a majority; they dismissed Ernst’s case on technicalities without looking at the evidence.
Chief Justice Beverley McLachlin and three other justices, however, found in support of Ernst. The dissenting justices pointed out that while the AER might be immune from liability for regulatory decisions “…there is nothing in the record which indicates that the board was acting in an adjudicative capacity in this case… here, the impugned conduct is said to have been punitive in nature.” Exactly. Jessica Ernst is an Albertan who had the gall to stand up for her rights. The majority ruling dodged the question of whether the AER—appointed to impartially consider and respect the interests of all Albertans—abused its powers in locking her out.
So the core issue was never decided. But instead of a sophisticated and respectful response, the AER’s self-congratulatory media release conceded nothing to those of us who expect them to keep our water safe. Why?
Because that media release wasn’t written for us. It was written for the oil and gas industry that captured the regulator years ago. The message to the AER’s corporate buddies was: “Don’t worry about uppity Albertans. We’ve still got your back, and nothing’s going to change.”
Jessica Ernst fought for all of us. We lost. And we learned just how alone we really are. #
PDF of the print version of Van Tighem’s article
Kevin Van Tighem spent three decades studying, interpreting and managing nature in Canada’s western national parks.