There is a strange and ill wind that blows across Canada these days. It brings with it ignorance and a blind rage that feeds our lowest and least noble impulses.
The rage over the decision by the federal government to settle a lawsuit with Omar Khadr – a settlement which netted Khadr $10.5 million – is puzzling in its intensity while revealing something ugly lurking in the underbelly of the Canadian political character.
At its most extreme, reaction to the settlement has included cries that Prime Minister Justin Trudeau is a traitor who is now funding terrorism. At its most muted, the outrage is focused on the idea that a “convicted terrorist” has escaped justice and given millions of tax dollars while regular Canadians work minimum wage jobs.
There is even polling about it – for whatever polling may be worth these days – that shows that most Canadians are unhappy with the settlement. That polling reflects past studies which showed a significant number of Canadians feel no sympathy for Khadr’s plight and – in what can only be described as a shocking display of cruel ignorance – the number of Canadians who think Khadr is a threat to the country is growing.
There isn’t any evidence to suggest that Khadr is a threat, is a jihadist, or is a criminal of any sort. But evidence be damned. Outrage is winning the day.
If you are unfamiliar with the Khadr case, there is no shortage of news coverage to read going back to his arrest by the U.S. military following a fire fight in Afghanistan. But the Readers Digest version is this:
Khadr is a Canadian citizen whose father, Ahmed, was a jihadist – a violent Islamist bent on imposing his tyrannical theology on the world – keen on his son following in his footsteps. When Khadr was still a teenager, Ahmed brought him to Afghanistan which, leading up to the 9/11 attacks on the United States, was the global hotbed of jihadism thanks to the Taliban and its infamous ally al-Qaida.
While there Khadr was pressed into combat as a child soldier and was present during a 2002 battle between U.S. troops and al-Qaida fighters. In the course of that battle, a grenade blast killed one U.S. soldier and blinded another.
Khadr was captured, brought to the extrajudicial detention centre in Guantanamo Bay where he was illegally held, tortured and interrogated for a decade. There, during a drumhead trial, he confessed to throwing the grenade and plead guilty to terrorism charges and murder.
He was released and returned to Canada in 2012.
During his incarceration, the Supreme Court of Canada found the Canadian government acted illegally when Canadian government agents interrogated Khadar while he was in Guantanamo and turned over the results of that interrogation to the Americans, who used that information against Khadar at military tribunals.
In 2010, the court found that, because of that action, the federal government violated Khadr’s charter rights:
This should have come as no surprise as the United States Supreme Court had already found that the procedures in place at Guantanamo Bay violated the Geneva Conventions. Consequently, Khadr was detained in violation of his fundamental human rights protected by international law and Canada’s actions contributed to his ongoing detention.
So it is clear that the Charter does indeed apply. Khadr’s critics say, however, that any violations were minimal — Canadian officials did not set up and run Guantanamo Bay, they only travelled to Cuba to ask Khadr some questions.
Except that is not what the Supreme Court found in 2010.
Canada interrogated Khadr with the full knowledge that he was being detained in a prison camp that violated international law and that Khadr had been subjected to a program of sleep deprivation designed to make him less resistant to interrogation.
(Some argue, incorrectly, that the Supreme Court has said that the charter doesn’t apply to events that happen off Canadian soil, citing a 2007 ruling. However, that ruling actually says that the charter does apply if Canadian officials are “participating in activities that, though authorized by the laws of another state, would cause Canada to be in violation of its international obligations in respect of human rights.”)
In other words, Khadr was tortured in a prison camp that violated the Geneva Conventions and eventually pleaded guilty to murder, and Canada played an illegal role in his detention.
As a result, we don’t know if he threw that grenade. The evidence that he did is thin at best and his guilty plea was made under extreme duress, which would make it a poison pill in any Canadian court room.
And even if one is inclined to believe that did throw the grenade, the fact that he was a 15-year-old raised by a fanatical zealot who turned him into a child soldier, can’t be ignored by a thinking person.
It is worth pointing out here that as a basic principle of international law, child soldiers (combatants under 18) are not held culpable for war crimes in the same fashion as adults. We have long recognized that child soldiers are victims of abusive adults, who press children into combat as inexpensive cannon fodder. As a result, Article 37 of the United Nations Convention on the Rights of the Child limits punishments given to child soldiers and guarantees they will not be treated in an unethical fashion:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
(It is worth noting that every member of the United Nations, including Canada, is a signatory of this convention save for the United States of America.)
After his return to Canada, Khadr launched a $20 million lawsuit against the Canadian government for violating his charter rights.
Settling that lawsuit is what lead to Khadr getting that $10.5 million.
Undoubtedly, the government’s lawyers advised the Prime Minister that the case was a loser and, given past Supreme Court rulings on the issue, would result in Khadr getting most of what he was suing for. The price for violating a citizen’s charter rights is and should be, very costly. So the least expensive route – financially and perhaps politically – was to settle the issue now rather than let it go to trial.
Those not wailing and gnashing their teeth over the settlement purely on outrage have argued that since this was a legal matter, the government should have allowed it to go to trial and let the courts decided what Khadr deserved.
The trouble there is that going to trial would require the government to defend its actions on the Khadr case – which the Liberal government may not wish to do on moral grounds, and might find it rather awkward politically since it was under a past Liberal government that Khadr’s rights were violated.
What this all means, ultimately, is that much of the rage directed at the settlement is misplaced. What those upset at the price tag aren’t asking is a very basic, and fundamentally important question: What should be the price of the Canadian government violating the rights of one of its citizens? What is the price of that violation results the torture of a citizen? Upon what criteria do you make that decision?
The rage directed at Khadr himself is similarly rooted in shallow thinking. particularly the idea that he is a terrorist and a threat.
The man has committed no crimes since returning to Canada. Even if you believe he threw that grenade, you cannot ignore the circumstances that brought him to Afganistan in the first place. That he was a child soldier is a fact as unavoidable as gravity. And even if you believe he threw the grenade, it does not absolve the federal government for having violated his charter rights.
And even if you believe he threw the grenade, it does not absolve the federal government for having violated his charter rights.
To put that last point another way – we provide that serial killers like Paul Bernardo receive fair trials and are convicted upon evidence, proper due process and the rule of law. Yet, in the case of Khadr, many Canadians are unconcerned with the dismissal of these principles.
None of these facts, by the bye, will make the families of the U.S. soldier killed in that battle, nor the soldier who was blinded in it, feel any better. They shouldn’t. Nothing about the Khadr case, from its genesis until now, should make anyone feel anything but nauseous.
A teenager forced into combat by a jihadist father. One American soldier dead and another blinded. That teenager was sent to an illegal military prison where he was tortured and the Candian government abetted in that torture. What is there to feel good about? The entire thing is a hideous, morally corrupt swamp.
However, what underpins the rage over the Khadr settlement, beyond the crass calculation of conservative politicians eager to find an issue that taps into Trump-esque populism, isn’t a concern for justice, sympathy for fallen American soldiers or their families, or the safety of Canadians.
It’s about revenge. A pure, unadulterated desire for vengeance.
From a certain point of view, the war on terrorism has been something of a failure. Despite the war in Afghanistan – a war that cost the lives of 159 Canadian soldiers – the Taliban still exists and the country’s freedom from Islamist rules is, at best, fragile. Al-Qaida isn’t what it was in 2001, but Islamism has mutated further giving rise to ISIS, a murderous jihadist army that commits nightmarish atrocities on a regular basis.
Canadians feel helpless. We’ve been unable to stop the spread of Islamism. We’ve been wounded by incidents of home-grown terrorism. We watched jihadist attacks in Europe that feel like they occur with startling regularity.
We want to do something. Someone, somewhere, has to pay for this cancer upon the world. Justice has to be done, and we feel helpless to make it so.
But Omar Khadr isn’t a faceless jihadist organisation an ocean away. He is a man. He is here in Canada. He may well have thrown a grenade that killed a U.S. soldier who was fighting al-Qaida. That, in the eyes of many, make him a terrorist now and forever. Extenuating circumstances don’t matter because they quickly dampen blind outrage.
We might not be able to make the Tablian, and al-Qaida and ISIS pay, but we can make this one man pay a price. From him, we can get our pound of flesh and far too many of us seem eager for it.
Putting aside, for a moment, that this perspective requires a willful embrace of ignorance, an eye-for-an-eye – that most primitive of Biblical maxims – rarely gets us very far. In 1914, Canadian parliamentarian George Perry Graham, made this point when the House of Commons was debating capital punishment:
“If in this present age we were to go back to the old time of ‘an eye for an eye and a tooth for a tooth,’ there would be very few honourable gentlemen in this House who would not, metaphorically speaking, be blind and toothless.”
We should demand better from ourselves and understand that our natural and explicable moral outrage over terrorism does not now, and should never, be the guiding force behind the administration of justice.
PS. Remember that poll I mentioned earlier, the one that showed that most Canadians are unhappy with the Khadr settlement? It’s irrelevant. Our civil rights and our justice system are not decided by polling. We don’t turn suspected criminals over to a mob for summary justice, and our judges don’t ask the public who is guilty and who isn’t, nor what the appropriate penalties are.
Justice by polling would be mob justice, and mob justice is no justice at all.
Politicians who cite these polls as justification for their position on the issue should be held with deep suspicion because it demonstrates they are not committed to the Constitution, the Charter of Rights and Freedoms or the rule of law, but rather to pandering to the most base angels of our natures in order to win votes.