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Omar Ahmed Khadr
Omar Khadr - PD-Family-released.jpg
Khadr at the age of 14
Born September 19, 1986 (1986-09-19) (age 23)
Toronto, Canada
Detained at Guantanamo
ISN 766
Charge(s) Charges dropped three times, currently suspended
Status Held in extrajudicial detention
Parents Ahmed Said Khadr
Maha Elsamnah

Omar Ahmed Khadr (in Arabic عمر أحمد خضر) (born September 19, 1986) is the fifth child in the Canadian Khadr family. He was captured by American forces at the age of 15 following a four-hour firefight with militants in the village of Ayub Kheyl, Afghanistan.[1] He has spent seven years in the Guantanamo Bay detention camps accused of war crimes and providing support to terrorism after allegedly throwing a grenade that killed a US soldier.[2]

In February 2008, the Pentagon accidentally released documents that revealed that although Khadr was present in the house, there was no other evidence that he had thrown the grenade. In fact, military officials had originally reported that another of the surviving militants had thrown the grenade just before being killed, and later rewrote their report to implicate Khadr instead.[3] Defence lawyers have also suggested that the soldier may have been killed by friendly fire by his own comrades.[4] It was later determined that Khadr had been crippled, blinded and trapped beneath rubble at the time, and American soldiers weren't even aware of his presence until one stepped on his prone body.[5]

A Canadian citizen born in Toronto,[6][7] he is the youngest prisoner held in the Guantanamo Bay detention camp by the United States and has been frequently referred to as a child soldier.[8][9] The only Western citizen remaining in Guantanamo, Khadr is unique in that Canada has refused to seek extradition or repatriation despite the urgings of Amnesty International, UNICEF, the Canadian Bar Association and other prominent organisations.[10][11][12][13] In 2009, it was revealed that the government had spent over $1.3 million to ensure Khadr remained in Guantanamo.[14]

A 2009 review determined that Canada had failed Khadr, by refusing to acknowledge his juvenile status or his repeated claims of being abused.[15][16] In April 2009, the Federal Court of Canada ruled that the Charter of Rights and Freedoms made it obligatory for the government to immediately demand Khadr's return. After a hearing before the Court of Appeals produced the same result, the government announced they would argue their case before the Supreme Court of Canada.[17][18] In January 2010, the Supreme Court ruled that Khadr's constitutional rights had clearly been violated, but it stopped short of ordering the government to seek his return to Canada.[19]

Khadr was the only person charged under the 2006 Military Commissions Act who did not boycott the Guantanamo proceedings.[20] Canadian authorities also determined that Khadr had little knowledge of his father's alleged activities, since "he was out playing or simply not interested".[15]

A series of visits by Foreign Affairs officials led Karim Amégan and Suneeta Millington to report that Khadr was "salvageable" if allowed to return to Canadian society, but that keeping him in the prison would risk radicalizing him.[21] As of January 2009, 64% of Canadians supported repatriating Khadr to Canada,[22] up from 41% in June 2007.[23]

Contents

Early life

As a child, Khadr claimed his vision of Jannah involved a swimming pool filled with Jell-O.[24]

Because his father, Ahmed Said Khadr, had raised his family in Peshawar, Pakistan since 1985,[24][25] Omar spent his childhood moving back and forth between Canada and Pakistan. His mother also wished to raise her family outside of Canada due to her animus for western social influences.[26] Khadr was enrolled in a madrassah in Peshawar.[25]

In 1992, Khadr's father was severely injured while in Logar, Afghanistan; the Khadr family moved back to Toronto so he could recuperate. After the move, Omar became "hypersensitive to tension in the family" and would often quote Captain Haddock from The Adventures of Tintin.[25] Enrolled at ISNA Elementary School for Grade 1, Omar's teachers described him as "very smart, very eager and very polite".[25]

Khadr was known as his mother's "favourite" child among the siblings[24][27]
Khadr at the Metro Toronto Zoo.

After the family's return to Pakistan, Omar and his siblings attended a private school in Peshawar, and were homeschooled for two years returning to write their exams at the Ansar Scientific Institute.[citation needed] While he was not fond of math, his favourite subjects were English and Islamic Studies, as he already knew the topics well.[citation needed]

In 1995, Ahmed Khadr was arrested following Ayman al-Zawahiri's bombing of the Egyptian embassy in Pakistan, and accused of financially aiding the conspirators.[25][28] Ahmed was hospitalised after engaging in a hunger strike, and 9-year old Omar spent every night sleeping on the floor beside his father's bed until his release a year later for lack of evidence.[25]

Khadr's father moved his family to Jalalabad, Afghanistan in 1996,[29] where they lived in their father's NGO office. The family often visited the compound of Osama Bin Laden, and the Khadr and bin Laden children played together.[30] During a trip home to Canada in the spring of 2001, Khadr attended the International Auto Show at the Toronto Convention Centre where he got his photo taken with the batmobile.[citation needed]

An early photo of Khadr's mother and siblings.

Following the 1998 embassy bombings, the United States had retaliated by bombing camps in Afghanistan. Thus, expecting a similar retaliation following the September 11, 2001 attacks, the Khadr family retreated towards the Pakistani mountains, where Omar went shopping, washed laundry and cooked meals.[25][27]

In early 2002, he was living in Waziristan with his mother and younger sister while his father visited infrequently, and took up beading his mother's clothes as a hobby.[24] At one point, he was forced to wear a burqa and disguise himself as a daughter to avoid scrutiny, an act that upset him.[24] When his father returned, he asked to be allowed to stay at a group home for young men, despite his mother's protests. His father agreed, and a month later allowed him to accompany a group of Arabs associated with Abu Laith al-Libi, who needed a Pashto translator during their stay in Khost.[24] Khadr promised to check in regularly with his mother.[11][24][31][32]

A later collection of biographies written by al Qaeda praises the elder Khadr for "tossing his little child in the furnace of the battle", and likens his son to a lion cub.[1] According to charges signed by military commission officer Susan J. Crawford, Khadr received "one-on-one" weapons training in June,[33] as his visits home became less frequent.[24]

Capture

Khadr handling explosives.

Khadr had accompanied three of the men he was staying with, as they went to the village to meet with several other militants. Neither of his parents were told about the meeting, and his father shouted angrily at Abu Laith al-Libi following reports of the battle, for not taking care of his son properly.[11][24][32]

From approximately February 2002, a team of American soldiers were using the abandoned Soviet airbase in Khost, Afghanistan as an intelligence-gathering outpost, as they tried to blend in and gain the trust of the local community.[31]

Khadr appears on video.

In the early morning of July 27, 2002, a team composed of 19th Special Forces Group, the 505th Infantry Regiment and a "militia", composed of approximately twenty[34] Afghan fighters loyal to mercenary warlord Pacha Khan Zadran and led by Zadran's brother Kamal, had been sent from the airbase in a tan Toyota Tacoma to the Ab Khail house where an elderly wheelchair-using man alleged to be a bomb-maker who had hidden anti-tank mines several weeks earlier, was believed to be hiding.[31][34][35][36][37] The search turned up no evidence against the occupants of the house.[38][39]

While at the house, a report came in that a monitored satellite phone, possibly one owned by the Khadrs,[40] had just been used 300–600 metres from the group's present location.[34][37][38] Seven soldiers were sent to investigate the site of the phonecall.[31][34]

The group was led by Major Randy Watt, and also included XO Captain Mike Silver, Sgt Christopher Speer from Delta Force, Layne Morris and Master Sgt. Scotty Hansen, both from the 19th Special Forces Group, Spc. Christopher J. Vedvick from the 505th and one other man.[31][34][41]

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The firefight

File:Khadr's Colleague.png
One of Khadr's colleagues seen in the video with him.

Arriving at a series of mud huts and a granary filled with fresh straw surrounded by a 10-foot (3.0 m) stone wall with a green metal gate approximately 100 metres radius from the main hut, the Special Forces team saw children playing around the buildings[24][39][42][43] and an old man sleeping beneath a nearby tree.[34]

Seeing five "well-dressed" men sitting around a fire in the main residence,[43] with AK-47s visible in the room, Morris has claimed that he either approached and told the occupants, who had seen him, to open the front door[43] or that he snuck quietly back without being seen and a perimeter was set up around the complex.[34] Either way, the team waited 45 minutes for support from the soldiers searching the first residence, and at one point Morris chided the soldiers from the 82nd for setting up a defensive perimeter with their backs to the house, rather than properly covering the house itself.[34][37]

During this time, the elderly man sleeping beneath the tree awoke and began screaming loudly in Pashto, causing a number of local children to run over and interpret for the Americans, explaining that the man was "just angry". Morris took a photograph of the children standing on the road outside the compound.[34] A crowd of approximately a hundred local Afghans had gathered around the area to watch the incident unfold.[43] An Afghan militiaman was sent towards the house to demand the surrender of the occupants, but retreated under gunfire.[38]

Capt. Christopher Cirino

Reinforcements from the 3rd Platoon of Bravo Company, 1st Battalion 505th Infantry Regiment arrived under the command of Captain Christopher W. Cirino,[42][44] bringing the total number of Americans and Afghan militia to about fifty.[45] Two of Zadran's militiamen were sent into the compound to speak with the inhabitants, and returned to the Americans' position and reported that the men inside claimed to be Pashtun villagers. They were told to return to the huts, and inform the occupants that the Americans wanted to search their house regardless of their affiliation.[44] Upon hearing this, the occupants of the hut opened fire, shooting both militiamen.[39][46]

Several women immediately fled the huts and ran away while the occupants began throwing grenades at the American troops, with intermittent rifle fire. After the firefight, a statement by one of the soldiers would contradict this and say that there had only been one woman and one child present, and both were detained by US forces after exiting the huts.[38]

Morris and Silver had now taken up positions outside the stone wall, with Silver "over Morris's left shoulder explaining where he should try to position his next shot",[31] when Morris fell back into Silver, with a cut above his right eye and shrapnel embedded in his nose. Both Silver and Morris initially believed the wound was due to Morris' rifle malfunctioning, though it was later attributed to an unseen grenade.[31][40] In an alternate account of the injury, Morris has also claimed that he was inside the compound and hiding behind the granary preparing to fire a rocket-propelled grenade into a wall of the house when he was shot.[34]

Rewakowski and Worth convalescing in hospital from their grenade injuries.

Morris was dragged a safe distance from the action, and was shortly after joined by Spc. Michael Rewakowski, Pfc. Brian Worth and Spc. Christopher J. Vedvick who had also been wounded by the grenade attacks.[47]

File:Med57th July 2, 2002 Citation team.jpg
The 57th Medical team that ran the MedEvac, later awarded "Rescue of the Year".

At 0910 a request for MedEvac was sent to the 57th Medical Detachment. Ten minutes later, DUSTOFF 36 and Wings 11, a pair of UH-60s, were deployed as well as AH-64 Apaches Widowmaker 23 and Widowmaker 26 as escort. Arriving at the scene, the Apaches strafed the compound with cannon and rocket fire, while the medical helicopters remained 12 miles (19 km) from the ongoing firefight.[35] The helicopters finally landed at 1028 to load the wounded aboard DUSTOFF 36, while Brian Basham switched helicopters to take a wounded prisoner aboard WINGS 11, leaving Cpt. Michael Stone, CWO Ezekial Coffman, Spc. Jose Peru and Sgt. Frank Caudill aboard DUSTOFF 36,[48] as a pair of F-18 Hornets dropped Mark 82 bombs on the houses.[31][35]

American soldiers standing outside the compound.

At this point,[38] a five-vehicle convoy of ground reinforcements arrived including a rifle squad from the 82nd Airborne, bringing the number of troops to approximately a hundred.[45] Two of these vehicles were damaged beyond use by the militants.[38] Ten minutes later,[38] the MedEvac left for Bagram Airbase and a pair of A-10 Warthogs arrived on-scene and began attacking the houses along with the Apaches. The MedEvac arrived at Bagram Airfield at 1130.[34] [35]

Unaware that Khadr and a militant had survived the bombing, the ground forces sent a team consisting of OC-1, Silver, Speer and three Delta Force soldiers[49] through a hole in the south side of the wall, while at least two other American troops continued throwing grenades into the compound.[4]

Speer being unloaded at Bagram.

The team began picking their way over the bodies of dead animals and three fighters.[31] According to Silver's 2007 telling of the story, he then heard a sound "like a gunshot", and saw the three Delta Force soldiers duck – as a grenade flew past them and exploded near Speer, who was at the rear of the group and not wearing his helmet.[31][50]

OC-1 reported that although he didn't hear any gunfire, but the dust being blown from an alley on the northside of the complex led him to believe the team was under fire from a shooter between the house and barn. He reported that a grenade was also "lobbed" over the wall that led to the alley and landed 30–50 metres from the alley opening. Running towards the alley to escape the grenade which he also didn't hear detonate, OC-1 fired a dozen M4 Carbine rounds into the alley as he ran past, although he couldn't see anything due to the rising dust clouds. Crouching at the southeast entrance to the alleyway, OC-1 could see a man with a holstered pistol moving on the ground next to an AK-47, with two chest wounds. From his position, OC-1 fired a single shot into the man's head, killing him.[38]

Khadr being treated by medics.
Two soldiers kneel over the wounded Khadr.

When the dust cleared, OC-1 saw Khadr crouched on his knees facing away from the action and wounded by shrapnel that had just permanently blinded his left eye,[39] and shot him twice in the back.[38]

OC-1 estimated that all the events since entering the wall had taken less than a minute up until this point, and that he had been the only American to fire his weapon, although an American grenade had also been thrown into the living quarters after initially entering the complex.[38]

Khadr (foreground) after being pulled out from under rubble, shot twice in the back.[5]

Silver initially claimed that two Delta Force troops had opened fire, shooting all three of the shots into Khadr's chest, after the youth was seen to be holding a pistol and facing the troops.[31][39] These claims all directly contradict OC-1's version of events as the only eyewitness. OC-1 did agree however, that something was lying in the dust near Khadr's end of the alley, although he couldn't remember if it were a pistol or grenade.[38]

Entering the alleyway, OC-1 saw two dead men with a damaged AK-47 buried in rubble who he believed had been killed in the airstrikes,[38] and confirmed that the man he had shot was dead. Moving back to Khadr, OC-1 tapped the motionless youth's eye, confirming that he was still alive. Turning him over onto his back, for entering troops to secure, he began exiting the alleyway to find Speer, who he was unaware had been wounded. While leaving the alleyway, he saw a third AK-47 and several grenades.[38] Contradicting Morris' report of five well-dressed men, OC-1 maintained that a search of the rubble determined that there had only been four occupants, all found in the same alleyway.[38]

Khadr was given on-site medical attention, during which time he repeatedly asked the medics to kill him, surprising them with his English. An officer present later recorded in his diary that he was about to tell his Private Second Class to kill the wounded Khadr, when Delta Force soldiers ordered them not to harm the prisoner.[51]

He was then loaded aboard a CH-47 helicopter and flown to Bagram Airbase, losing consciousness aboard the flight.[38][52]

Aftermath

Remains of the structure after bombing

The following day, soldiers including Silver returned to search the premises.[38] Local villagers were believed to have taken away two bodies and provided them an Islamic burial, but refused to disclose their location to the Americans who wished to identify the fighters.[24]

Believing that the wooden boards beneath the last-killed rifleman could have been used to cover an underground chamber,[38] an excavator was used to tear down the walls of the buildings. This demolition uncovered five boxes of rifle ammunition, two rockets, two grenades and three rocket-propelled grenades in the huts. Some of them had accidentally detonated while lying in the smouldering ruins.[24][53] A plastic bag was discovered in the granary, containing documents, wires and a videocassette.[24] OC-1's report claims the videotape was found in the main house, rather than the granary, and also mentioned detonators modeled as Sega game cartridges.[38]

Another view of the buildings

The video shows Khadr toying with detonating cord as other men including Abu Laith al-Libi assemble explosives in the same house as had just been destroyed, identifiable by its walls, rugs and the environment seen out the windows in the video,[31][38] and planting landmines while smiling and joking with the cameraman.[24][43][54] It has been suggested that these were the same landmines later recovered by American forces on a road between Gardez and Khowst.[38]

The firefight, originally labeled an ambush,[55] was hailed as the first major engagement since Operation Anaconda had ended four months earlier.[47] Hansen and Watt were both awarded a Bronze Star, for running forward under fire to retrieve two fallen bodies. Sources differ on whether these were wounded American soldiers including Layne Morris or the two Afghan militiamen shot at the outset.[31][56] The five wounded men were all awarded Purple Hearts.[47] Speer was moved from Bagram airbase to Ramstein Air Base in Germany, where he was removed from life support on August 7, with his heart, liver, lungs and kidneys all being donated.[24]

Time at Bagram

The hospital on-base, where lawyer Dennis Edney alleges the abuse of Khadr began.[57]

The unconscious Khadr was airlifted to receive medical attention at Bagram, where interrogations began immediately after he gained consciousness approximately a week after his arrival, although he remained stretcher-bound for several weeks.[52] Col. Marjorie Mosier operated on his eyes after his arrival,[58] though fellow detainee Rhuhel Ahmed later stated that Khadr had been denied other forms of surgery to save his eyesight as punishment for not giving interrogators the answers they sought.[59] Later attempts to acquire darkened sunglasses to protect his failing eyesight were denied for "state security" reasons.[60]

On August 20, the United States informed Canada of the capture and asked them to confirm the identity of their prisoner.[61] Ten days later, Canadian officials sent a diplomatic query to the United States requesting consular access to their citizen being held at Bagram. The request was denied ten days later, with a statement that Canada would be notified only if Canadian citizens were transferred to Guantánamo Bay.[62] Around this time he was visited by the Red Cross.[63][64]

Khadr states that he was refused pain medication for his wounds, that he had his hands tied above a door frame for hours, had cold water thrown on him, had a bag placed over his head and was threatened with military dogs, was flatulated upon, forced to carry 5-gallon pails of water to aggravate his shoulder wound. Unallowed to use washrooms, he was forced to urinate on himself.[52][62] His chief interrogator was Joshua Claus, who later pleaded guilty to abusing detainees to extract confessions following the in-custody death of wrongly accused Dilawar that same year.[65]

A letter from the Canadian embassy was sent on September 13, stating that "various laws of Canada and the United States" required special treatment of Khadr due to his age, and requesting that the United States not transfer Khadr to Guantanamo.[66][67]

Khadr was interrogated again on September 17, and stated that he helped the militants because he had been told the United States was fighting a war against Islam.[68] When asked if he knew of a $1500 bounty being offered for each American soldier killed in Afghanistan, he responded that he had heard the story, but didn't know who was offering the reward. When asked how that made him feel at the time, the 15-year old stated "I wanted to kill a lot of American[s] to get lots of money".[68] Defence attorney Nathan Whitling later argued that it was "hardly convincing for the U.S. to suggest that in the midst of this battle, and after the entire site had been flattened by 500-pound bombs and everyone else in the compound killed, Omar was lying under the rubble thinking about how to earn himself $1,500."[68]

On October 7, FBI agent Robert Fuller showed Khadr a black-and-white photograph of Maher Arar, a Canadian who had been detained at a New York airport following a family vacation, and demanded to know if he recognised him. Khadr initially stated that he did not recognise Arar, but when further pressured by Fuller, confessed he had seen him at a Kabul safehouse run by Abu Musab al-Suri or Abu Musab al-Zarqawi, leading to Arar's rendition to Syria the following day, where he was tortured extensively before being returned to Canada and suing the government.[69][70][71][72] Arar was alleged to have been in the country when Khadr would have been 6–12 years old, and to have attended Khalden training camp which had no ties to al-Suri or al-Zarqawi.[73]

Khadr spent three months recuperating at Bagram. During that time he was often singled out for extensive labour by American soldiers who "made him work like a horse", referring to him as "Buckshot" and calling him a murderer. They claimed that he had thrown a grenade at a passing convoy delivering medical supplies.[74] He shared a cell with Moazzam Begg and ten others. He became conversational with guard Damien Corsetti, who was also one of his interrogators, and often spoke about basketball.[24]

Captives being flown to Guantanamo

He was transferred to Guantanamo along with Richard Belmar, Jamal Kiyemba and other captives on October 28, 2002, although Canadian officials were not notified as promised.[74][75] Shackled and fitted with surgical masks, painted-over goggles and ear protectors to ensure sensory deprivation, he recalled being kicked when he tried to stretch his legs.[24][52]

Time at Guantanamo

Muslim chaplain James Yee recalled Khadr had been given an English Mickey Mouse book by an interrogator, and that he slept with it clutched to his chest.[24]

Khadr arrived at Guantanamo Bay on October 29 or October 30, 2002, to face charges of terrorism and war crimes for his actions. He was recorded as standing 170 centimetres (5.6 ft) and weighing 155 lb (70 kg),[24] and recalled being greeted by guards with the phrase "Welcome to Israel".[76]

Despite being a minor under 18, he was now treated as an adult prisoner at Guantanamo.[24] Officials considered him an "intelligence treasure trove" not only because his father was Ahmed Said Khadr, but because he had personally met Osama bin Laden and might be able to offer answers about the al-Qaeda hierarchy despite having been only ten years old at the time.[24]

At first, he still spent much of his time in the prison hospital where he spoke with Muslim chaplain James Yee, although he didn't seek any religious counselling.[24] In February 2003, he wrote to his grandparents in Scarborough, Ontario, saying "I pray for you very much and don't forgat me from your pray'rs and don't forget to writ me and if ther any problem writ me".[77]

On January 21, 2003, a new standard operating procedure was put in place for American military interrogators who were told they would have to "radically create new methods and methodologies that are needed to complete this mission in defence of our nation".[24]

Khadr demonstrates his wounds to Canadian interrogators

In February 2003, Canadian Foreign Affairs intelligence officer Jim Gould and an official from the Canadian Security Intelligence Service (CSIS) were allowed to interrogate Khadr themselves.[78] For three weeks prior to the Canadian visit, Khadr was deprived of sleep and moved to a new cell every three hours for 21 days in order to “make him more amenable and willing to talk”.[79]

Omar Khadr interrogated (full 10 minutes)-1.ogg
Video of February 2003 interrogation by CSIS agents.

The presence of Gould, who brought Khadr a Big Mac value meal,[77] allowed the government to claim that the purpose of the visit was to "to ascertain Khadr's well-being", while his attorney Nate Whitling argued that "(Foreign Affairs) is suggesting that the visit was actually for (Khadr's) benefit, but this is not the case". His attorneys applied for and obtained an injunction from Mr. Justice Konrad von Finckenstein of the Federal Court of Canada to prevent CSIS from interrogating their client in the future.[80][81] The following month, a briefing from the Foreign Affairs department summarised Gould's findings stating that Khadr was a "thoroughly `screwed up' young man". All those persons who have been in positions of authority over him have abused him and his trust, for their own purposes."[24] In protest of the fact that DFAIT and CSIS had been allowed to interrogate Khadr, but not the RCMP, Supt. Mike Cabana resigned his post in Project O Canada.[82]

Assistant Director of CSIS William Hooper assured the Canadian public this interrogation was not intended to secure intelligence for an American prosecution, but admitted that the information was all freely shared with his American captors – without securing any guarantees, such as foregoing potential death penalty charges.[80]

For most of 2003, Khadr had a cell next to British detainee Ruhal Ahmed and the two often discussed their favourite Hollywood films, including Braveheart, Die Hard and Harry Potter.[24] Ahmed later recalled that while some interrogations would see Khadr return to his cell smiling and discussing what movies he had been shown, other times he would return crying and huddle in the corner with his blanket over his head.[24]

In the early spring of 2003, Khadr was told "Your life is in my hands" by a military interrogator, who spat on him, tore out some of his hair and threatened to send him to a country that would torture him more thoroughly, making specific reference to an Egyptian Askri raqm tisa ("Soldier Number Nine") who enjoyed raping prisoners. The interrogation ended with Khadr being told he would spend the rest of his life in Guantanamo.[25] A few weeks later, an interrogator giving his name as Izmarai spoke to Khadr in Pashto, threatening to send him to a "new prison" at Bagram Airbase where "they like small boys".[25]

In all, Khadr has been reported to have been kept in solitary confinement for long periods of time; to have been denied adequate medical treatment; to have been subjected to short shackling, and left bound, in uncomfortable stress positions until he soiled himself.[62][83][84] Khadr's lawyers allege that his interrogators "dragged [him] back and forth in a mixture of his urine and pine oil" and did not provide a change of clothes for two days in March.[85]

At the end of March 2003, Omar was upgraded to "Level Four" security, and transferred to solitary confinement in a windowless and empty cell for the month of April.[25]

In 2003, Khadr began leading prayer groups among the detainees.[77] At one point, a year after he confided in Moazzam Begg that his brother Abdurahman Khadr was working for the Americans,[24] he was able to have a brief discussion with his brother who was also now being held at Guantanamo, and was just 50 feet (15 m) away in a separate enclosure. The two shouted to each other in Arabic, and Omar told his older brother not to admit their family's dealings with al-Qaeda, and mentioned that he was losing his left eye.[30] During his stay, he also memorised the Quran.[86]

Canadian intelligence officer Jim Gould returned to Guantanamo in March 2004, but was met by an uncooperative Khadr. The Foreign Affairs office claimed that Khadr was trying to be a "tough guy" and impress his cellmates, while his attorney Muneer Ahmad said that Khadr had originally believed Gould "had finally come to help him" in 2003, but by 2004 had realised that he was being interrogated, not aided, by the Canadian government.[77]

In all, Khadr was interrogated by Canadians six times between 2003–2004,[87] and ordered to identify photos of Canadians believed to have ties to terrorism, including Maher Arar, who had been flown by Americans to Syria and tortured for a year before being found innocent.[87] When he told Canadians that he had been tortured into giving false confessions by the Americans, the Canadian authorities called him a liar, causing him to cry. He later recalled that he had "tried to cooperate so that they would take me back to Canada".[87]

In January 2004, Lieutenant-Commander Barbara Burfeind stated that the United States had decided not to hold juveniles at Guantanamo any longer, leading Clive Stafford Smith to question why Khadr was not only being held, but facing a military tribunal.[88]

On June 18, 2004, Khadr wrote a letter home to his mother who had moved back to Canada to seek medical attention for his younger brother Abdulkareem. Four months later he wrote another, as well as one to his brother Abdurahman Khadr.

In August, attorneys Rick Wilson and Muneer Ahmad submit an "emergency motion" asking for the release of Khadr's medical records. Rebuffed, they were instead granted a declaration from the Guantanamo naval hospital commander Dr. John S. Edmondson stating that Khadr was "in good health", and given a two-page document entitled "Healthcare Services Evaluation".[89]

In November 2004, following a meeting with Ahmad and Wilson, Khadr was interrogated for four days about what he had discussed with his defence lawyers; during this time he alleges that interrogators used "extreme physical force" and refused to allow him to say his daily prayers.[90] During this visit, the lawyers had administered a psychological questionnaire known as the "Mini-mental state examination", which they later turned over to Dr. Eric W. Trupin, an expert in the developmental psychology of juveniles in confinement. Trupin ruled that Khadr was suffering from "delusions and hallucinations, suicidal behaviour and intense paranoia", and that his abuse had left him "particularly susceptible to mental coercion",[89] and at moderate to high risk of committing suicide.[25] Efforts to secure an independent medical examination have not met with any success.[91][92] [93]

On March 19, 2005 Canada began a series of regular "welfare visits" to monitor Khadr's behaviour, as he was being held in Camp V, the maximum security isolation camp – and there had been reports he had thrown urine at guards and was refusing to eat.[94] That year, his older sister Zaynab moved back to Canada from Pakistan to demand better treatment for Omar and his brother Abdullah.[95] At some point before May 2005, Khadr requested his attorney Rick Wilson bring him back Canadian magazines with "new model cars" for reading material,[77] and later spoke enthusiastically to Canadian officials about his like of Mercedes-Benz and Bentley models.[94]

Khadr participated in a hunger strike, lasting 15 days before he was force fed by prison guards. He reported collapsing as he left the hospital, and that prison guards assaulted him violently.[96] On July 20, 2005, Guantánamo detainee Omar Deghayes wrote "Omar Khadr is very sick in our block. He is throwing [up] blood. They gave him cyrum [serum] when they found him on the floor in his cell", and his extract was subsequently published in The Independent.[97]

In April 2005, Khadr was again given another written psychiatric test by lawyers Ahmad and Wilson, which was turned over to Dr. Daryl Matthews, a forensic psychologist who had previously been invited to Guantanamo two years earlier by The Pentagon.[98] Matthews concluded that Khadr met the "full criteria for a diagnosis of Post-Traumatic Stress Disorder".[89]

Khadr also participated in the July 2005 200-detainee hunger strike, and went fifteen days without eating.[99] He was twice taken to the on-site hospital and force-fed – on July 9 he was kicked and assaulted repeatedly by Military Police after collapsing from weakness.[89]

In May 2005, Khadr announced that he would no longer cooperate with any of the American attorneys on his case, including Colby Vokey, Rick Wilson and Kristine A. Huskey. His Canadian lawyers convinced him that he had to retain Lt. Cmdr. William C. Kuebler due to the tribunal regulations. Three months later, Canada upheld the injunction banning any further interrogations by CSIS.[100][101]

In September 2005, he was transferred out of the Camp V facility into Camp IV.[94]

Canadian demonstrators demanding Khadr's repatration.

In 2006, the Army began an investigation into alleged abuse against Khadr while he had been held in Bagram.[102] In July he was transferred back to the isolation cells in Camp V after he expressed distrust of his military lawyers and called the guards "idiots".[94]

On March 6, 2006, he met Clive Stafford Smith in the visitation area of Camp V, and stated that he had been knocked unconscious by an American grenade blast and didn't recall ever throwing any grenades while the battle raged around him.[88]

Khadr was permitted to speak with his mother by phone for the first time in March 2007, nearly five years after his capture.[103] He was allowed one other phone call to his family, but has had no contact since June 2007[60][104] when he was put into the harshest section of Guantanamo, Camp VI, for "disciplinary reasons" which Canada argued was unfair as Khadr's behaviour largely depended on which camp he was held within, and the United States transferred him back to Camp IV.[94]

On April 9, 2008, a box of Khadr's documents was seized, ostensibly because items like a Lord of the Rings screenplay were prohibited, and the legal documents taken were returned a few days later. He was also ordered to cease playing dominoes or chess with his attorneys.[105]

Kuebler was able to arrange for a psychological evaluation from Kate Porterfield, who was able to visit Khadr three times in November 2008. Porterfield reported that she was finding it hard to establish trust with Khadr, which was cited as "to be expected in cased like Khadr's where young people had been abused".[106]

Legal trials

Combatant Status Review Tribunal

Combatant Status Review Tribunal notice read to a Guantanamo captive.
The trailer where CSR Tribunals were held.

The Supreme Court of the United States ruled in June 2004 Hamdi v. Rumsfeld that detainees are entitled to limited rights of due process. Consequently, the Department of Defense instituted "Combatant Status Review Tribunals".[107]

The Tribunals were not themselves authorized to determine whether the captives were lawful combatants – simply to determine whether or not the captives have already been correctly proven to match the administration's definition of an "enemy combatant". Participation by the captives was voluntary, and Khadr chose not to be involved in his tribunal.

On August 31, 2004, a Summary of Evidence memo was prepared for Khadr's Combatant Status Review Tribunal. The summary alleged that he had admitted he threw a grenade which killed a U.S. soldier, attended an al Qaida training camp in Kabul and worked as a translator for al Qaida to coordinate land mine missions. In addition, he was accused of helping to plant the landmines between Khost and Ghardez, and having visited an airport near Khost to collect information on U.S. convoy movements.[108]

His actual tribunal was convened on September 7, as Panel #5 reviewed his status in the detainment camp. The tribunal concluded that Khadr was an "enemy combatant" and a one-page summary of conclusions was released on September 17.[109]

O.K. v. George W. Bush

Following the successful Supreme Court ruling in Rasul v. Bush which allowed detainees to make habeas corpus arguments over the legality of their detention, Khadr's grandmother Fatmah Elsamnah, acting as next friend, filed a civil suit against the United States on Khadr's behalf on July 2, 2004 challenging his detention.[110]

# Recorder Exhibit List title[111] Pages Classification
R1 Unclassified Summary 1 Unclassified
R2 FBI Certification
Re: Redaction of National Security Information
dtd Sep 03, 04
1 Unclassified
R3 FBI FD-302 25-NOV-02 2 FOUO//LES
R4 CITF Form 40 05-NOV-02 4 FOUO//LES
R5 CITF Form 40 17-MAR-04 6 FOUO//LES
R6 FBI Memorandum 03-SEP-04 1 SECRET//NOFORN
R7 IIR 6034025103 07-OCT-02 3 SECRET
R8 FBI FD-302 06-DEC-02 3 FOUO//LES
R9 CITF Form 40 28-OCT-02 5 FOUO//LES
R10 JTF GTMO Baseball Card 2 SECRET//NOFORN
R11 JTF GTMO Memo 05-JAN-04 3 SECRET//NOFORN
R12 CITF KB Mar-02 3 SECRET

The suit was named O.K. v. George W. Bush since Khadr was still a minor at the time of its filing.[112] It was at this time that Rick Wilson was added to Khadr's defence team.[113]

On September 21, more than sixty Habeas motions subsequently filed by Guantanamo detainees were transferred to a single suit before senior Judge Joyce Hens Green for coordination. The remaining issue in the suit, having Khadr's medical records released to his attorneys and gaining an independent medical review of his health while in custody, remained with Judge John D. Bates.[112]

On October 26, Bates rejected the motion, stating that "no charges have been brought against petitioner, and accordingly there is no reason to undertake any inquiry into petitioner's mental competence".[112]

On August 4, 2008 Department of Justice officials responded to a motion that Khadr should not stand trial because he was a child soldier.[114]

First tribunal

The original Military Commissions were convened in the unused airfield terminal.

In 2005, the United States announced that they were assembling the necessary framework to hold newly crafted Guantanamo military commissions. Believing that Khadr's case represented one of the "easiest" cases to prove, the United States selected him as one of ten detainees to be charged under this new system.[115]

Fred Borch
Col. Morris Davis

The chief prosecutor Fred Borch quickly garnered criticism for allegedly corrupting the trials,[116][117][118] and was replaced by Robert L. Swann,[119] who was himself replaced by Col. Morris Davis in September 2005.

On November 7, 2005, Khadr was formally charged with Murder by an Unprivileged Belligerent, Attempted Murder by an Unprivileged Belligerent, Aiding the Enemy and Conspiracy with Usama bin Laden, Ayman al Zawahiri, Sayeed al Masri, Muhammad Atef, Saif al adel, Ahmed Said Khadr "and various other members of the al Qaida organization".[120] The United States informally indicated they would not seek the death penalty for Khadr.[121]

On December 1, 2005 the officers were appointed to Khadr's specific commission.[122]

Capt. John Merriam was made Khadr's official defence attorney, but agreed with counsel Muneer Ahmad that he lacked trial experience as a defence attorney, and both men requested that he be replaced.[123][124] Lt. Col. Colby Vokey was named as Merriam's replacement.

Prosecutor Morris Davis became known for his "often-flamboyant quotes" about Khadr, referring to media coverage of the tribunal as "nauseating", and noting that Khadr didn't spend his time in Afghan camps "making s'mores and learning how to tie knots".[125]

On January 11, 2006 Khadr appeared at his pre-trial hearing wearing a Roots Canada t-shirt, leading judge Robert Chester to order him to wear more suitable attire in the future.[123] The following day, he wore a blue-checkered shirt.[126] Chester also insisted that both the prosecution and defence stop referring to Khadr as "Omar" and instead use "Mr. Khadr" to denote the serious nature of the charges facing him.[126]

Defense attorney Vokey retired after he was disciplined for calling the tribunals a "sham" that left him feeling "disgusted".[127]

Khadr and the other nine detainees who faced charges were transferred to solitary confinement on March 30.[128] Six days later, Khadr read a note to the court saying "Excuse me Mr. Judge,.. I'm being punished for exercising my right and being co-operative in participating in this military commission. For that, I say with my respect to you and everybody else here, that I'm boycotting these procedures until I be treated humanely and fair."[128]

The commissions were struck down as unconstitutional on June 29, by the Supreme Court ruling in Hamdan v. Rumsfeld which stated that "The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949."[129]

Davis resigned as Guantanamo prosecutor on October 6, hours after William Haynes was made his superior officer, stating that he was not going to take orders from "the guy who said waterboarding is A-okay".[130] He was ordered to silence his criticisms by his superiors.[125]

Second tribunal

The interior of the courtroom where the tribunal hearing is held.

After the Military Commissions Act of 2006 was signed in October 2006, new charges were sworn against Khadr on February 2, 2007. He was charged with Murder in Violation of the Law of War, Attempted Murder in Violation of the Law of War, Conspiracy, Providing Material Support for Terrorism and Spying.[29] Canadian attorney Dennis Edney was barred from appearing at the October arraignment, after he criticized Keubler's efforts, stating that the military lawyer had focused his energy on lobbying Canadian authorities to have Khadr repatriated, at the cost of preparing for the actual trial.[131][132]

Khadr petitioned the US Supreme Court to review the legality of the military commission and his detention, but this request was denied in April.[133]

On June 1, Edney said that he would not seek any plea bargain for Khadr that would likely see him serve 30 years in prison.[134] Peter Brownback dismissed the charges three days later, stating that Khadr had been previously classified as an "enemy combatant" by his Combatant Status Review Tribunal in 2004, while the Military Commissions Act only granted him jurisdiction to rule over "Unlawful enemy combatants".[135][136]

On September 9, 2007, charges were reinstated against Khadr after the Court of Military Commission Review overturned Brownback's dismissal, stating that the tribunal could determine the legality of a detainee's status for itself.[137]

On October 9, Groharing argued that the prosecution should not be required to identify their witnesses, stating that Khadr was "certainly capable of exacting revenge" against witnesses if he were allowed the right to face his accusers. Brownback ruled that while the defense attorneys had the right to know the identity of the witnesses, that information could not be given to Khadr himself.[138]

Khadr burying landmines in the video.

In November, while prosecutors were "desperately" trying to introduce the 27-minute video found in the wreckage,[69] the tape was leaked to the media by an unknown source and shown on 60 Minutes. Four months later, Kuebler stated that following conversations with the show's producers, he believed that the video was leaked by Vice President Dick Cheney's office.[139]

The United Nations requested that Radhika Coomaraswamy, special representative for children in armed conflict, be allowed to watch the tribunal, but was denied.[140]

In January, the defence put forward three separate motions to dismiss the trial, arguing that it violated the Constitutional prohibition against bills of attainder, that the commission lacked jurisdiction because Khadr had been a minor when the incident occurred and that there was a lack of subject matter jurisdiction. Sixteen days after the February 4 hearing on the motions, Brownback dismissed the first claim. He dismissed the second claim in April,[141] but has reserved judgment on the third.[142][143][144]

February also saw the accidental release of a five-page "OC-1" witness report to reporters, which revealed that Khadr had not been the only survivor in the compound, as previously claimed, and that nobody had seen him throw the grenade. Officials insisted that the reporters all had to return their copies of the document or face expulsion from the hearings, but after a 90-minute standoff between reporters and military officials, it was agreed that they could retain their copies of the report, but had to redact three names from the report.[144][145]

A new tent-city is being built at Guantanamo to house the upcoming trials.

In March, Kuebler insisted that "Lt. Col. W." had initially written in his report the day after the firefight that "the person who threw a grenade that killed Sgt. 1st Class Christopher J. Speer also died in the firefight", implying that the grenade had indeed been thrown by the surviving Mujahideen, and not by Khadr. The report was rewritten months later to say that the grenade thrower had been "engaged", rather than "killed", changing the wording that exonerated Khadr.[146] In response, Brownback ordered that the commander be made available for an interview by the defence counsel no later than April 4.[147] and postponed the scheduled May 5 date for the murder trial to begin,[148] while prosecutor Groharing urged Brownback to begin the trial as soon as possible, stressing a "need for justice" for Speer's widow.[149]

The following month, Kuebler suggested it was possible that the fatal grenade had actually been one of those being thrown into the compound by American troops while the small team searched the interior.[4]

Kuebler accused the military of encouraging interrogators to "minimize certain legal issues" by keeping as few records as possible and destroying their notes, and suggested he would seek a dismissal.[150]

On May 8, 2008, Brownback threatened to suspend the military hearing if prosecutors did not provide the defense with a number of documents, including an al-Qaeda membership list, documents on the relationship between al-Qaeda and al-Libi's Libyan Islamic Fighting Group, copies of the Detainee Information Management System records related to Khadr's treatment in Guantanamo, documents on the use of children by al-Qaeda, investigator notes of witness interviews, details about the militants who were killed in the 2002 firefight, and others.[151][152] Prosecutors did agree to turn over the videotape of Canadian intelligence official Jim Gould and Canadian Security Intelligence Service (CSIS) agents interrogating Khadr in February 2003, but said they would alter the tape to hide the identity of the interrogators.[151] Following Brownback's "ruling against the government", the Pentagon announced that he was being removed from the trial in favour of Patrick Parrish, leading critics to highlight what they believed was "more evidence of the illegitimacy" of the tribunal and that official explanations of the timing as being coincidental were "unconvincing".[153][154][155] Parrish, known as "Rocket Docket" for his tendency to speed through trials, immediately ordered a court date of October 8, 2008.[156]

On September 4, Parrish barred Brigadier General Thomas W. Hartmann from participating in the Tribunal because of his "undue command influence", the third such trial Hartmann was alleged of trying to corrupt.[157]

On October 22, 2008 it was revealed that the Prosecution had given the Defense team an incomplete version of Khadr's medical records five months earlier, and Parrish granted a delay citing the "consequences" of the decision for the prosecution..[158]

In December, the Prosecution announced it was withdrawing its intended witness who was to testify that Khadr had confessed to the crimes in December 2004 during interrogation; ostensibly to "cover up" the abusive methods used to make the youth confess.[159]

In the week before the Tribunal was scheduled to sit, FBI agent Robert Fuller was called to testify against Khadr and stated that the 15-year old had identified Maher Arar "by name" as having attended "terrorist safehouses and camps", implicating both Khadr and the vindicated Arar as having connections to al-Qaeda. However, it was later revealed that the actual interrogation notes from the incident showed that Khadr had denied recognising the black-and-white photograph he'd be shown and it wasn't until Fuller pressured him that he agreed the man in the picture "looked familiar", even though Khadr would have been only six or seven years old at the time Arar was alleged to have been in Afghanistan.[160] Fuller suggested that Khadr confessed to having seen Arar in August or September 2001 in Afghanistan, but it was quickly pointed out that Arar was living in the United States in August, and was under constant police surveillance throughout September when he returned to Canada and couldn't possibly have flown to Afghanistan.[161]

On March 8, 2010 Steven Edwards of the Canwest News Service reported that US officials were quietly putting pressure on Canada to accept repatriation of Khadr.[162] Edwards didn't name the official he quoted, who told him elements within the Obama Presidency "don't have the stomach to try a child for war crimes". He did identify Samantha Power, Michael Posner and Harold Koh as three political appointees with a background in human rights. He pointed out that Posner was the founding director of Human Rights First, which had advocated for Khadr's repatriation. He stated that he had been told that US efforts to repatriate Khadr would remain unofficial, because, for political reasons, the Obama administration wanted to publicly agree to a request that officially was initiated in Canada.

Canadian documentation

The video of Khadr's interrogation obscured the faces of interrogators.

Khadr's defence attorneys claimed that the Canadian government acted illegally, sending its counsel and CSIS agents to Guantanamo Bay to interrogate Khadr and turning their findings over to the Tribunal prosecutors to help convict Khadr,[163] and that the release of the documents might help prove Khadr's innocence.[66]

A child at a 2008 demonstration demanding Khadr's repatriation

In 2007, the Federal Court of Appeal ordered the Canadian government to turn over its records related to Khadr's time in captivity, as judge Richard Mosley stated it was now apparent that Canada had violated international law.[79] The government appealed to the Supreme Court of Canada in 2008, arguing that Khadr was just "fishing" for information and that disclosing their records, which include an initial account of the firefight which differs from all previously seen reports,[164] could jeopardise national security.[165]

Critics alleged that the refusal to release the classified documents was due only to the "embarrassment" they caused the government,[165][166] and on May 23, 2008, the Supreme Court of Canada ruled unanimously that the government had acted illegally, contravening §. 7 of the Charter of Rights and Freedoms, and ordered the videotapes of the interrogation released.[167]

In April 2009, the Federal Court of Canada ruled once again that Khadr's rights under the Charter of Rights and Freedoms had been violated. It concluded that Canada had a "duty to protect" Khadr and ordered the Canadian government to request that the U.S. return him to Canada as soon as possible.[168] In August 2009, the Federal Court of Appeal upheld the decision in a 2–1 ruling.[169] Finally, in January 2010, in a unanimous 9–0 decision, the Supreme Court of Canada ruled that the participation of Canadian officials in Khadr's interrogations at Guantanamo clearly violated his rights under the Charter. In its sharply worded decision, the Supreme Court referred to the denial of Khadr's legal rights as well as to the use of sleep deprivation techniques to soften him up for interrogation:

The deprivation of [Khadr's] right to liberty and security of the person is not in accordance with the principles of fundamental justice. The interrogation of a youth detained without access to counsel, to elicit statements about serious criminal charges while knowing that the youth had been subjected to sleep deprivation and while knowing that the fruits of the interrogations would be shared with the prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.

However, the Supreme Court stopped short of ordering the government to seek Khadr's return to Canada. Instead, it left it to the government to determine how it would exercise its duty to conduct foreign affairs while also upholding its obligation to respect Khadr's constitutional rights.[170]

Civil lawsuit

Judge Paul Cassell

Sgt. Layne Morris and Sgt. Speer's widow Tabitha, both represented by Donald Winder,[171] filed a civil suit against the estate of Ahmed Said Khadr – claiming that the father's failure to control his son resulted in the loss of Speers' life and Morris' right eye. Since American law doesn't allow civil lawsuits against "acts of war", Speer and Morris relied on the argument that throwing the grenade was an act of terrorism, rather than war. In February 2006, Utah District Court Judge Paul Cassell awarded the plaintiffs $102.6 million in damages, approximately $94 million to Speer and $8 million to Morris,[172] in what he said likely marks the first time terrorist acts have resulted in civil liabilities.[173] It has been suggested that the plaintiffs might collect funds via the U.S. Terrorism Risk Insurance Act,[174] but since the Federal government is not bound by civil rulings, it has refused to release Khadr's frozen assets.[175]

See also

References

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