Three months ago, Omar Khadr, the Canadian citizen seized as a child and held and abused by the US government in Guantánamo for ten years, was returned to Canada, where he now languishes in a maximum-security prison.
Technically, the Canadian government is entitled to imprison him for another five years and ten months, according to a plea deal Khadr agreed to in October 2010. Under the terms of that deal, he received an eight-year sentence for his role in a firefight in Afghanistan that led to his capture in July 2002, with one year to be served in Guantánamo and seven more in Canada.
Notoriously, however, the Canadian government dragged its heels securing his return, which only happened at the end of September last year, instead of in November 2011. This was typical, given that, throughout Khadr’s detention, his government ignored its obligations to demand his rehabilitation under the Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict, to which both the US and Canada are signatories, as did his US captors.
So grave was the Canadian government’s violation of Khadr’s rights as a citizen that, in 2010, the Canadian Supreme Court ruled that his rights had been violated when Canadian agents interrogated him at Guantánamo in 2003, when he was just 16. The Court stated, “Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the US prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.”
For many people — lawyers included — who have been watching Khadr’s case, it was hoped that, although the Canadian government ignored the Supreme Court’s ruling, ministers would face legal challenges on his return, which would lead to his speedy release, and the chance to resume his life after what is now nearly ten and a half lost years.
However, as the Toronto Star noted in an article on December 20, rather than being released, Khadr, who is currently held in the Millhaven Institution, a maximum security facility, will remain incarcerated there “with little chance of rehabilitation or parole for at least two years.” Held in the hospital since his return on September 29, he “is now expected to be moved to a range in the general population with other maximum security inmates.”
The Toronto Star obtained a report by the Correctional Service of Canada, which stated that, “due to his Guantánamo conviction, Khadr was assessed as an inmate convicted of first-degree murder and terrorism and therefore is automatically designated ‘maximum security.’” This means that, although, in theory, he will be “eligible for day parole in March,” it is unlikely that his parole will be granted. As the Star explained, “it is extremely rare for anyone with this designation to be approved,” and it is far more likely that he will remain imprisoned without parole until at least 2015, as his status will not be reviewed until December 2014.
Anthony Doob, a criminologist at the University of Toronto, told the Star he was “dismayed” that the Correctional Service had chosen to “apply the standardized ‘Custody Rating Scale’ for Khadr, which automatically designates him maximum security, despite the unique aspects of his case and reports of his good behaviour during his 10-year incarceration at Guantánamo.”
Doob said, “They should be looking at his past, the circumstances of his offence, how old he was.” He added, “It’s perpetuating this view that he’s the same as the guy who is a terrorist or member of organized crime who killed somebody on the streets of Toronto yesterday. The thing about approaching this the way they did ensures the outcome. I’ve never met Omar Khadr, I know nothing about him and I can go to the web and see that he’s going to be classified as maximum security.” Adding criticism of the fact that the Correctional Service took three months to reach its decision, he also asked, “Isn’t that a little bizarre? Why didn’t it take three minutes instead of three months if that is all they were going to do?”
His comments provide a good summary of how, in the so-called “war on terror,” the fundamental notions that anyone accused of a crime should be arrested, given their rights, and then, if tried, convicted and sentenced, should serves their sentence and be allowed to return to society, have been discarded. When the word “terrorism” is invoked — and especially when it is accompanied by the word “Guantánamo” — the notion of serving time and paying one’s debt to society has been replaced by a hysterical notion of people being a permanent peril, a designation that previously would only have applied to a very small number of people with a deep-rooted violent psychosis.
In Omar Khadr’s case, this is ridiculous, as the success of his rehabilitation, even at Guantánamo, is clear from the role played by Edmonton professor Arlette Zinck, who spent several years communicating with Khadr, and was even allowed to visit him prior to his release, to help facilitate his transition from Guantánamo to life back in Canada, as I related here.
However, Anthony Doob’s words also accurately describe how, yet again, the Canadian establishment is dragging its heels when it comes to dealing fairly with Omar Khadr. A three-month wait for a decision that was already made is typical of the disdain for Khadr that has been persistent since 2002.
Doob’s criticisms were echoed by Khadr’s lawyer, John Norris, who, as the Star put it, said that he was disappointed that the designation will limit the Correctional Service’s ability to “provide rehabilitation options,” with the exception of the “education and religious counselling” that he is receiving “from a prison-approved imam.” Norris said, “Their hands really are tied by the fact that he’s stuck in max, because they can’t help him get ready to return to the community.”
Norris added that he was “weighing the options” regarding legal challenges, and also said, “What he really needs is the ability to re-integrate into the community. Re-integration is one of the cardinal principles of dealing with child soldiers. It’s also a key principle in dealing with young people in general.”
Shorn of his right to be treated, however belatedly, as a child who was manipulated by his father and then punished by both the US and Canada, in defiance of their obligations regarding child prisoners, it seems that Khadr will only receive the same rights as other adult inmates, although this will include the right to have visitors — a contrast to Guantánamo, of course, where, in eleven years, Khadr is the only prisoner to have received a visit from a civilian, when Arlette Zinck visited him in May last year.
Elaborating, Norris told the Star that Khadr’s mother, Maha Elsamnah, had been allowed to visit him, as had Arlette Zinck.
The lawyer also explained how Khadr’s “maximum security” designation was worked out, and why it was so misleading. A rating over 134 points automatically defines a prisoner as maximum security, and Khadr has 139 points — “69 points for a murder conviction, 20 points for a terrorism offence, 30 points for his age at the time of conviction (he was 25) and 20 points for his sentence length (eight years).” As Norris pointed out, however, “This says absolutely nothing about whether Omar is a danger to the public and it’s critical people understand it’s completely divorced from that.” He added, crucially, that the scoring method actually required the Correctional Service to ignore any evidence establishing that he is “not a danger.”
Ludicrously, the assessment report recommended that Khadr be kept in a “highly structured environment in which individual and group interaction is subject to direct and constant supervision,” as though he is at risk of being influenced negatively. The report noted that, “During the intake assessment interview Khadr emphasized that his current sentiments/beliefs reflect pro-social changes in attitudes promoting peaceful resolution to conflicts,” but added that, “given Khadr’s limited access to other inmates since his arrival,” it was “difficult to assess” how he would interact with other prisoners.
The report added, “Not to negate the length of time he has spent in custody (in Guantánamo) with no evidence of attitudinal or behaviour problems, Khadr is a new arrival to the Canadian federal correctional system … Correctional Services Canada has not had the opportunity to assess the risk he may pose to the security of the institution, other offenders or the risk to his own safety.”
To their credit, the Correctional Service noted “positive assessments” of Khadr by Katherine Porterfield, a clinical psychologist at New York’s Bellevue Hospital and forensic psychiatrist and retired US Army Brig. Gen. Stephen Xenakis, who both spent hundreds of hours with Khadr at Guantánamo, adding, “it would appear that Khadr demonstrated the ability to develop positive interpersonal relationships.”
The report’s authors also ignored negative assessments by other supposed experts, like the psychiatrists Michael Welner or Alan Hopewell, whose bleak and biased assessments were requested from US defence secretary Leon Panetta by the Canadian Public Safety Minister Vic Toews, “delaying Khadr’s expected transfer to Canada and infuriating Obama administration officials eager to transfer” him, as the Star described it — not out of kindness, it should be noted, but because of a desire to persuade other Guantánamo prisoners that it is worth making plea deals.
Typically, the Correctional Service reported that the authorities at Guantánamo had failed to provide any information to them “pertaining to his behavior while detained at the facility.” Nevertheless, although the Canadian prison authorities are obliged to follow their rules, it remains apparent that the Canadian government continues to think that, when it comes to Omar Khadr, their own actions should not be subjected to any rules whatsoever.
For anyone concerned with fairness and justice, the Canadian Supreme Court’s 2010 ruling ought to provide the basis for securing Omar Khadr’s swift release and return to a life of freedom, and I hope that a legal challenge will be mounted if the delays continue. It is time for Omar Khadr to be released.
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