CALGARY - Calling his continued detention an affront to the rule of law, the Canadian Bar Association has decided to take action in the case of Canadian Omar Khadr, appealing to the government to negotiate the release of the 20-year-old from the United States naval base in Guantanamo Bay, Cuba.
The CBA’s letter to Prime Minister Stephen Harper is a result of a speech by Khadr’s designated military lawyer, U.S. Navy JAG Lt.-Cmdr. William Kuebler, at last week’s CBA conference in Calgary. Kuebler emphasized the importance of prompt reaction in the case, said outgoing CBA president Parker MacCarthy.
The CBA is urging that Khadr, who has been detained in Guantanamo Bay for five years without trial, be released to Canadian law enforcement officials to face due process under Canadian law.
Khadr, who lawyers noted is currently the only western citizen detained in the facility, is characterized as an enemy combatant and was captured by U.S. forces in Afghanistan in 2002 at the age of 15 for allegedly throwing a grenade that killed a U.S. officer.
In June, a military judge dismissed charges against Khadr over issues of whether the military commission had the jurisdiction to try him as an “unlawful enemy combatant” when he had been considered an “enemy combatant.” The prosecution has since appealed the case, which is set to go before a U.S. Court of Military Commission Review.
Kuebler added that Khadr is also petitioner in a case set to go before the U.S. Supreme Court, which will deal with whether courts can deny habeas corpus to a minor.
The CBA’s letter emphasizes the urgency of the fact that Khadr was a minor at the time of his capture, citing Canada’s obligation as a signatory to the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Combat. Kuebler told the conference that U.S. military commissions do not distinguish between adults and minors.
Toronto lawyer Lorne Waldman later told reporters that Canada “condemn[s] other states when they use child soldiers or other organizations when they use child soldiers, but when a Canadian is detained as a child soldier, we turn our back on him.”
Khadr’s Canadian lawyer Dennis Edney also told reporters that Khadr is suffering both mentally and physically in the prison, while Kuebler noted that the 20-year-old has not received any rehabilitation and is still functionally at age 15, at most.
Kuebler said other countries, such as the United Kingdom and Australia, have already decided that their citizens would not be tried by military commission, while adding that, “Canada, in contrast, has been virtually silent”.
In Australia, he said, the decision was partly a result of the efforts of various NGOs and the Australian Law Society, which was very active in studying, monitoring, issuing reports, sponsoring talks, and increasing public awareness. The CBA could be a key player in the matter, causing the government to act, he said.
“We think it’s time for this group to call for Omar to be returned, to follow the lead of countries like the United Kingdom and Australia that have said that it’s simply not acceptable for our citizens to be subjected to this kind of process,” he said.
Waldman referred to the difficulty of the case, because of the notoriety of the family and the resulting “Khadr effect” on the lack of public and media attention, which he said was also felt in the Maher Arar case. Noting that the CBA has never shied away from controversy, however, MacCarthy told reporters the association has not been subject to the “Khadr effect” in this case.
Last week does not mark the first time that the CBA has written to the government about Guantanamo Bay and the rule of law. In April 2006, former CBA president Brian Tabor sent a letter to the prime minister on behalf of the CBA, urging the government to call on the U.S. to cease holding foreign combatants at the naval base without charge or fair trial.
MacCarthy told Law Times the association received no response to its April 2006 letter.
MacCarthy said he did not want to leave the impression that the CBA will be sitting on its hands regarding the issue. In addition to last week’s letter to the government, he said Waldman has also agreed to put together in the next two weeks a brief containing background information.
He said he expects the CBA will be making contact with international bar associations, such as those in Australia as well as the American Bar Association and the American College of Trial Lawyers.
“The question would be for us, how can we be most effective in advancing the rule of law in this particular situation and how can we be effective in raising these concerns with the general public in Canada?” he said.
“The response that I’ve heard to [the] full disclosure would give me comfort in saying that our association will be taking a larger role in this matter,” he said.