Khadr must be kept out, Tories insist

Jun 18, 2008 04:30 AM

TONDA MACCHARLES
OTTAWA BUREAU

OTTAWA–Calling the Omar Khadr case a "litmus test" for Canada's commitment to the fight against global terrorism, the Conservative government says it opposes any attempt to bring back the Guantanamo detainee before the U.S. military tries him for murder.

In a dissenting report to the Commons, Conservatives on the foreign affairs committee outlined for the first time the political and legal arguments behind the government's refusal to have Khadr, 21, return to face charges or rehabilitation here.

The report says a criminal trial with the usual evidence standards is all but impossible in a battlefield arrest, and doubts Khadr will ever cut ties with his family of "suspected terrorist-sympathizers."

"The official opposition has taken up Mr. Khadr's banner," the report says, because of "nothing more than a recent sway in public opinion and the potential for political gain."

The Conservatives' report says the majority of opposition members disregarded testimony that said there is nothing in international law – including a treaty that deals with child soldiers, nor in Canadian or U.S. federal law – "that bars the prosecution of a minor for war crimes."

That majority report, endorsed by members of the three opposition parties on June 10, said witnesses supported the conclusion that Khadr was a "child soldier" under international law; and that Canada would be able to prosecute Khadr for acts of terrorism committed abroad, and assess whether he should be given legal protections generally accorded to youthful offenders.

It also called on the government to institute a plan that would see Khadr reintegrated into Canadian society.

Khadr was 15 when he was captured by U.S. forces after a firefight in Afghanistan in July 2002, and charged in the death of Sgt. Christopher Speer.

The Conservatives' report cites testimony by American lawyer Howard Anglin, a government witness at the committee's hearings, who said Canada has no legal obligations to Khadr, but merely "moral obligations at best."

It quotes Anglin's testimony in support of military commissions, such as the proceedings Khadr is now facing in Guantanamo Bay, Cuba, on murder and terrorism conspiracy charges.

It pointed to Anglin's view that traditional courtrooms are inadequate because in battlefield arrests, "many witnesses are dead, there's no forensic detective squad to document the scene, and most of the surviving witnesses are serving overseas at the time of the trial."

In Edmonton, Khadr's Canadian lawyer, Dennis Edney, said the Conservatives' conclusion "flies in the face" of findings by the U.S. Supreme Court, which said individuals arrested on the battlefield "need to be brought before a properly constituted court" to have the constitutionality of their detentions determined.

The Tories' report, tabled in the Commons yesterday by committee chair Kevin Sorenson, rejects the idea that a "peace bond" under Section 810 of the Criminal Code would impose strict limits on Khadr's freedom here, and ensure any security concerns are met.

"The government believes Mr. Khadr would have no other recourse than to re-establish his ties with his family, a group of suspected terrorist-sympathizers espousing an extremists (sic) ideology."

The report states that resorting to a peace bond "is indicative that he posses (sic) a risk to society despite the fact that it is unlikely he will ever face conviction in Canada."

The Conservatives argue that since Canada signed the Transfer of Offenders Treaties in 1978, 1,351 Canadians who were tried and convicted abroad have been repatriated to Canada, but only after courts abroad dealt with them.

The Tories' report says the opposition selectively highlighted testimony to downplay Khadr's "alleged crimes and ties to terrorism" and to portray him "as a victim."

"It is important that a balance be struck between individual rights and national security considerations – not to mention obligations to the international struggle against terrorism.

"Mr. Khadr could become a litmus test on Canada's commitment to impeding global terrorism," it states. "The results of our actions today could result in consequences that are not in the long-term interest of the country."

Reached by email last night in Guantanamo Bay, Cuba, Khadr's military defence lawyer, navy Lt.-Cmdr. William Kuebler, said the report "completely misses the mark."

He said Khadr's case doesn't present any question of striking the right "balance" between individual rights and national security because "Omar isn't alleged to be one of our `terrorist' enemies.

"He's alleged to have been unlawfully used as a child soldier by Al Qaeda and is therefore a victim of those enemies."