Canadian Government Guilty of Violating Khadr's Rights

[CANADIEN]

Do you think you're being funny, or something? It's hardly that simple. The article itself plainly states that the CCRF doesn't apply to Canadian abroad, except in rare circumstances. I'd like to know what those circumstances are. The Khadr case is clearly an exceptional circumstance. Was the Canadian Foreign Affairs official supposed to bring a lawyer along when interviewing Khadr? I'm also unsure why he needs a lawyer if the Foreign Affairs official wasn't an investigator. The FA official wasn't there in a law enforcement capacity, I don't think, so why would Khadr have needed a lawyer? Again, what type of lawyer(s) should he have had? The very concept of a lawyer seems to imply that he's a civilian criminal (if that's a term I can use) rather than an enemy combatant. Is it standard for POWs (and he's not even a conventional soldier, but a non-uniformed terrorist) to be given lawyers when captured? It'd be interesting to get more insight from somehow familiar with the relevant laws of this case, if such a person exists on this forum.

The only funny is your (wilful?) ignorance of certain basic facts.

When Canadian officials interrogated Khadr, he was held as a person accused of a crime. The interrogations were taped and monitored, and information gathered was given to U.S. authorities to use in its prosecution of Khadr.

As for you statement about the facts that POWs are not given lasyers, it ignores two fact. First, the US government has consistently refused to grant Khadr and others in his situation POW status. Second, POWs do not stands are prisoners, not accused of a crime, and when they are are entitled to legal representations.

[Smallc]

How can the Charter apply when Khadr is in American custody, and at Gitmo, for that matter?

Because a Canadian official interrogated him, while knowing that what the US did to him would have violated Canadian law. The official basically participated in a contravention of the Canadian Charter of Rights and Freedoms. Khadr should have been offered a lawyer while being interrogated by the Canadian official and he should not have been interrogated after being sleep deprived.

The Charter doesn't apply to Gitmo. It does apply to a Canadian official dealing with Canadian citizens (or perhaps even others, of that I'm not sure) at that facility.

[Born Free]

Correct....unlawful combatants from Afghanistan (or Canada for that matter) do not enjoy US constitutional rights. Further, the Obama administration continues to maintain detention until war's conclusion as lawful...it's not just a Bush joint.

Canada is free to adjudicate the "fundamental rules of justice" and how many Khadrs can dance on the head of a pin.

...but you dont know if they are unlawful combatants. You only have a specualtive opinion based on an administrations propensity to lie like a rug.

Believing that Obama's policy is to maintain the existance of Guantanamo is simply not true.

[Gabriel]

Since the Courts have made clear that actions of Canadian officials when interrogating Canadians accused of crimes are subject to Canadian laws, including the Constitution.

Since US COURTS said so.

In all honesty. I don't care much about Khadr. What I care about is the Canadian Government and Canadian officials respecting Canadian law.

When did the Canadian courts make it clear that Canadian laws apply to Canadians held in another country's custody? Since when did Canada ever interrogate Khadr, either? This article states he was interviewed by a Canadian FA official, and doesn't say that he was interrogated by any Canadians on some sort of investigatory capacity. Being interviewed by a Canadian FA official for diplomatic purposes isn't the same as an interrogation conducted with the intent of unearthing evidence of Khadr's crimes.

And the American courts NEVER stated that enemy combatants or POWs are entitled to standard due process. After checking online, the SCOTUS decision was to guarantee minimal freedoms to those captured and held at Gitmo under the third section of the Geneva Conventions. They absolutely are NOT guaranteed the full rights of those on American soil. You're just plain wrong on that one.

I also care about Canadian law being respected.... in Canada. You seem to think that our jurisdiction extends beyond our borders.

Edited January 30, 2010 by Gabriel

[Gabriel]

Because a Canadian official interrogated him, while knowing that what the US did to him would have violated Canadian law. The official basically participated in a contravention of the Canadian Charter of Rights and Freedoms. Khadr should have been offered a lawyer while being interrogated by the Canadian official and he should not have been interrogated after being sleep deprived.

The Charter doesn't apply to Gitmo. It does apply to a Canadian official dealing with Canadian citizens (or perhaps even others, of that I'm not sure) at that facility.

Did you ever think that perhaps the Canadian official had to operate within the rules of Gitmo? What if Gitmo official wouldn't permit a non-recorded interview? Since when can Canadian officials go to Gitmo and dictate how Khadr should have been treated? If Khadr was in the midst of investigation by Americans, and undergoing interrogation techniques such as sleep deprivation, what do you expect the Canadian government to do? To demand that the Americans cease their procedures so that Khadr might be well-rested prior to his interview with the Canadian FA official? Should Americans put their national security on hold while we uphold Khadr's Charter freedoms to have a nap? Khadr is under American jurisdiction at Gitmo, and Canada doesn't have much of a say in that matter. You can't force the Canadian Charter into a place that isn't under Canadian jurisdiction. What you're saying makes no sense. And to suggest that the official who interviewed Khadr is somehow complicit in Charter violations is absurd. What else was the official to have done - NOT conduct the interview because Khadr's Charter rights weren't being afforded to him at Gitmo?

Edited January 30, 2010 by Gabriel

[Smallc]

You seem to think that our jurisdiction extends beyond our borders.

I'm not sure what is hard about this. Our officials have to comply with the Charter and Canadian law no matter where they are. That's it. End of story.

[Gabriel]

I'm not sure what is hard about this. Our officials have to comply with the Charter and Canadian law no matter where they are. That's it. End of story.

But they're not in the position to make the environment comply. Don't you get it? How can the Canadian government be expected to make the rules at Gitmo? Khadr could only be afforded a lawyer at America's discretion. Khadr could only be well-rested at America's discretion. These decisions were not to be made by the Canadian government. If Khadr is in American custody, they make the rules, not us. If America wanted him to have a lawyer, he would have been provided one at the time. He's not protected by the Charter when apprehended by Americans as a terrorist in Afghanistan. There's no Canadian government complicity in violating Charter rights and freedoms when interviewing Khadr while in American custody. Why is that so hard for you to understand?

[Born Free]

But they're not in the position to make the environment comply. Don't you get it? How can the Canadian government be expected to make the rules at Gitmo? Khadr could only be afforded a lawyer at America's discretion. Khadr could only be well-rested at America's discretion. These decisions were not to be made by the Canadian government. If Khadr is in American custody, they make the rules, not us. If America wanted him to have a lawyer, he would have been provided one at the time. He's not protected by the Charter when apprehended by Americans as a terrorist in Afghanistan. There's no Canadian government complicity in violating Charter rights and freedoms when interviewing Khadr while in American custody. Why is that so hard for you to understand?

I'm going to suggest that you dont understand the decision by Canada's Supreme Court.

[Smallc]

Khadr could only be afforded a lawyer at America's discretion.

While being interrogated by Canadian? I doubt it.

Khadr could only be well-rested at America's discretion. These decisions were not to be made by the Canadian government.

Then they shouldn't have questioned him. It's that simple. They knew that he didn't have council, and they knew he was sleep deprived. They ignored that and questioned him anyway, a violation of his Canadian rights, which they are charged to uphold.

[Born Free]

Then they shouldn't have questioned him. It's that simple. They knew that he didn't have council, and they knew he was sleep deprived. They ignored that and questioned him anyway, a violation of his Canadian rights, which they are charged to uphold.

Bingo!

[CANADIEN]

Hey there CANADIEN, I'm not quite certain you've got your facts in order. As I recall, the USA Supreme Court ruled that detainees at Gitmo were entitled to certain basic protection under the Geneva Convention. I do not believe those protections include access to a lawyer.

Actually, the U.S. Courts has never stated that Khadr or other Guantanamo detainees are to be considered prisoners of wars. It has stated that under the Geneva Convention they cannot be considered unlawful ennemy combattants (and therefore not subject to the protection given prisoners of war without a hearing by an independant tribunal). Also,they have on a number of occasions ruled that detainnes accused of a crime were entitled to all rights and protections guaranteed by the U.S. Constitution, inckuding access to a lawyer.

Your use of the fact POW do not have lawyers does not fly very high. Prisoners of wars do not stand trial unless they're accused of a crime. Further, the Guantanamo detainees do not fit the definition of a prisoners of war.

Again you're bringing up Canadian rights, but my question is do they apply to Khadr at Gitmo? Canadian laws end at our borders. Canadian law doesn't have jurisdiction abroad. How can Canadian due process apply to an enemy combatant captured by America in a warzone? The CCRF doesn't follow Khadr around everywhere he goes. It applies to him when he's in Canada, not when he's outside of Canada, and certainly not when he's captured in a warzone.

I also don't know that Khadr was interrogated by a FA official. The article says he was interviewed, and doesn't suggest that the interview was executed with some sort of investigatory motive to gather evidence towards supporting a case to convict Khadr of his crimes. I'm aware that the article also states that some of the interview between Khadr and the FA official was handed over to the American authorities, but so what? He's under their jurisdiction.

Thanfully, the Justices of our Supreme Court have a better understanding of the law (and the facts) than you. Canadian officials operating abroad do not cease to be bound by the rules of Canadian law when interracting with Canadian citizens. In this case, they were not merely asking Khadr about his state of mind, or the conditions of his detention. They were interrogating him, gathering and sharing information to be sued in a subsequent criminal trial. Because of the conditions that surrounded the interrogation - later found to be illegal by US Courts. in case you forgot - this interview constituted a violation of the rights of a Canadian citizen by Canadian government officials. Period.

This case is baffling.

To you.

[Gabriel]

While being interrogated by Canadian? I doubt it.

Then they shouldn't have questioned him. It's that simple. They knew that he didn't have council, and they knew he was sleep deprived. They ignored that and questioned him anyway, a violation of his Canadian rights, which they are charged to uphold.

But he isn't guaranteed a full night's sleep when in American custody at Gitmo after being captured as an enemy combatant in Afghanistan. Your Charter rights don't follow you around the world, you know? They exist only within our borders. I still reject your use of the term "interrogate" when all I've seen are interview. Was there Canadian participation in an investigatory capacity to build a case against Khadr? Specifically, was Khadr's interview with the Canadian FA official done with intent to prove his guilt? If not, then he didn't need a lawyer. If this was the case, however, Canada still doesn't have the authority to enforce these standards of provision of a lawyer at Gitmo without America's permission. End of story.

[CANADIEN]

But they're not in the position to make the environment comply. Don't you get it? How can the Canadian government be expected to make the rules at Gitmo? Khadr could only be afforded a lawyer at America's discretion. Khadr could only be well-rested at America's discretion. These decisions were not to be made by the Canadian government. If Khadr is in American custody, they make the rules, not us. If America wanted him to have a lawyer, he would have been provided one at the time. He's not protected by the Charter when apprehended by Americans as a terrorist in Afghanistan. There's no Canadian government complicity in violating Charter rights and freedoms when interviewing Khadr while in American custody. Why is that so hard for you to understand?

They were in a condition to refuse to interrogate him or ask any question related to the crimes he is accused of unless he had first consulted with a lawyer of his choosing, and unless they were sure that the responses were not coerced.

As for your contention that Khadr's rights were not violated, what is difficult to understand in the fact that the Supreme Court of Canada has ruled that they were?

[Smallc]

But he isn't guaranteed a full night's sleep when in American custody at Gitmo after being captured as an enemy combatant in Afghanistan. Your Charter rights don't follow you around the world, you know?

A Canadian's rights were violated by Canadian officials and that violation is in fact what the court was speaking of. My rights don't follow me around....but if I have dealings with Canadian officials, they then apply while I am dealing with those officials.

[Gabriel]

Actually, the U.S. Courts has never stated that Khadr or other Guantanamo detainees are to be considered prisoners of wars. It has stated that under the Geneva Convention they cannot be considered unlawful ennemy combattants (and therefore not subject to the protection given prisoners of war without a hearing by an independant tribunal). Also,they have on a number of occasions ruled that detainnes accused of a crime were entitled to all rights and protections guaranteed by the U.S. Constitution, inckuding access to a lawyer.

Your use of the fact POW do not have lawyers does not fly very high. Prisoners of wars do not stand trial unless they're accused of a crime. Further, the Guantanamo detainees do not fit the definition of a prisoners of war.

You're wrong, they're not guaranteed access to a lawyer right off the bat. The third common article of Geneva Convention (which SCOTUS has stated applied to Gitmo detainees) includes a guarantee that prisoner not be convicted without having access to the standard methods of due process of a country. What that means is they're not to be tried or convicted without access to a lawyer. This doesn't mean they have access to a lawyer immediately after detention as would be the case for civilian criminals. Get your facts straight. You're making factual errors in every single post of yours.

Thanfully, the Justices of our Supreme Court have a better understanding of the law (and the facts) than you. Canadian officials operating abroad do not cease to be bound by the rules of Canadian law when interracting with Canadian citizens. In this case, they were not merely asking Khadr about his state of mind, or the conditions of his detention. They were interrogating him, gathering and sharing information to be sued in a subsequent criminal trial. Because of the conditions that surrounded the interrogation - later found to be illegal by US Courts. in case you forgot - this interview constituted a violation of the rights of a Canadian citizen by Canadian government officials. Period.

I never said or implied that Canadian officials are not bound to Canadian laws when abroad and interacting with other Canadians. What I did say was that Canada doesn't make the rules outside of Canada. So when the Canadian FA official went to interview (which Smallc claims was an interrogation) Khadr, they were doing so within the realm of American jurisdiction. As I've already told Smallc, Canada cannot go into Gitmo and dictate to the USA how Khadr must be treated. Canada cannot dictate that Khadr be given the chance to nap prior to speaking with the Canadian FA official. Khadr is under American jurisdiction and Canadian officials need to operate within that framework when going to Gitmo to speak with Khadr. If Americans were using sleep deprivation during their interrogation process, we cannot tell them to cease their operations on such a sensitive matter as national security to permit Khadr to sleep prior to speaking with our Canadian FA official. Since you've already made several factual errors, I cannot take your word for it that Khadr's interview with the Canadian FA official was thrown out by "US courts" (which court?).

You seem to make up stuff as you go along.

Edited January 30, 2010 by Gabriel

[Gabriel]

A Canadian's rights were violated by Canadian officials and that violation is in fact what the court was speaking of. My rights don't follow me around....but if I have dealings with Canadian officials, they then apply while I am dealing with those officials.

But the Canadian officials didn't deny him any rights. Canada wasn't even in a position to deny those rights, he was in American custody. Obviously those rights are potentially impacted (limited) by the context in which you are having these dealings with Canadian officials. It's not like the room where Khadr was interviewed by the Canadian FA official was a little piece of Canada. Of course the Canadian FA official cannot deny a lawyer to Khadr if he is permitted one, but the Canadian official cannot guarantee a lawyer either since it is American jurisdiction. Again I ask you to think of a similar hypothetical scenario. Remember Maziar Bahari, the Canadian journalist who was imprisoned in Iran not to long ago for months? If a Canadian FA official was permitted to get in contact with him to interview him, would this official be complicit in violating his Charter rights? Obviously the Iranian system is cruel and doesn't subscribe to the basic standards we expect, such as protections from torture and access to a lawyer. I'm so bored of this conversation, hopefully this last hypothetical scenario will help you understand what I'm getting at.

Edited January 30, 2010 by Gabriel

[Smallc]

But the Canadian officials didn't deny him any rights.

No. They participated in a violation of the rights guaranteed by the Charter.

Edited January 31, 2010 by Smallc

[eyeball]

By your measure, any 15 year old child who belongs to a street gang is not responsible for his actions.

Are you trying to equate a religious upbringing to gang recruitment? What do you mean by gang? A bunch of kids wearing hoodies or the Bloods and Crips? Like terrorist, soldier, conflict, child and street-gang etc these definitions are too loosely used to be of much use these days. This uselessness is made infinitely worse when the legal domain is diddled with or suspended by the politicians. Anything goes, and quickly, in the absence of any consistent rule of law.

Khadr is respnsible for his actions.

How does this square with societies expectations that kids obey their parents or the people parents tell their kids to listen to? When did Canada start educating kids to question the authority of their parent's moral teachings or how to differentiate between appropriate or inappropriate one's? How exactly was Khadr supposed to be responsible for knowing right from wrong let alone how to act appropriately on that knowledge?

What do you mean by is responsible? Are you sure you don't mean is guilty? What do you mean by actions? Does these include his absorbing, accepting and obeying the twisted teachings of his parents - teachings that he'd been exposed to long before he'd reached the age of 15? Khadr should certainly be given the chance to account for his actions. I think the law is pretty clear on why kids and their responsibility for actions are on a very different playing field than adults, especially when parental or other adult abuse is involved.

If the War on Terror was just a case of us against a bunch of kids recruiting kids you might have a legitimate case to make but since it isn't, you've got nothing.

If one day the U.S. Government decides to do the right thing and have a REAL trial for Khadr, his lawyers will be free to bring in the "he was not responsible for his actions" defence.. and lose.

Maybe they'd lose in the U.S. but in Canada? I doubt very much if these considerations would be ignored. I'm also quite certain that these plus his maltreatment at the hands of the authorities including our's following his arrest/capture would lead to his immediately being transferred from a prison to a treatment facility and subsequent release once his team of doctors and psychologists gave him a clean bill of health.

By that time I suspect his lawyers would have justifiably filed claims for several tens if not hundreds of millions of dollars in compensation.

Edited January 30, 2010 by eyeball

[CANADIEN]

You're wrong, they're not guaranteed access to a lawyer right off the bat. The third common article of Geneva Convention (which SCOTUS has stated applied to Gitmo detainees) includes a guarantee that prisoner not be convicted without having access to the standard methods of due process of a country. What that means is they're not to be tried or convicted without access to a lawyer. This doesn't mean they have access to a lawyer immediately after detention as would be the case for civilian criminals. Get your facts straight. You're making factual errors in every single post of yours.

Due process in the US mandates that a lawyer be present in the interrogation of a suspect of a crime if the suspects requests one. Get YOUR fact straight.

I never said or implied that Canadian officials are not bound to Canadian laws when abroad and interacting with other Canadians.

Only that they can excuse themselves from their responsibilities if they can convenienctly blame others.

So, if I walk in a convenience store being roobed, and the robber tells me "Go ahead, here's tenty dollars", I won't be able to claim "hey, but I am not the onw who was robbing the place". The Supreme Court got it. You don't.

Edited January 31, 2010 by CANADIEN

[CANADIEN]

But the Canadian officials didn't deny him any rights. Canada wasn't even in a position to deny those rights, he was in American custody. Obviously those rights are potentially impacted (limited) by the context in which you are having these dealings with Canadian officials. It's not like the room where Khadr was interviewed by the Canadian FA official was a little piece of Canada. Of course the Canadian FA official cannot deny a lawyer to Khadr if he is permitted one, but the Canadian official cannot guarantee a lawyer either since it is American jurisdiction. Again I ask you to think of a similar hypothetical scenario. Remember Maziar Bahari, the Canadian journalist who was imprisoned in Iran not to long ago for months? If a Canadian FA official was permitted to get in contact with him to interview him, would this official be complicit in violating his Charter rights? Obviously the Iranian system is cruel and doesn't subscribe to the basic standards we expect, such as protections from torture and access to a lawyer. I'm so bored of this conversation, hopefully this last hypothetical scenario will help you understand what I'm getting at.

What you do not understand, or claim to not understand, is that there is a difference between checking the condition of a Canadian detained abroad and participating in his interrogation. At least the Suepreme Court knows the difference.

[bush_cheney2004]

They were in a condition to refuse to interrogate him or ask any question related to the crimes he is accused of unless he had first consulted with a lawyer of his choosing, and unless they were sure that the responses were not coerced.

...and that all such questioning and documentation be made available in Canada's official languages? What other Charter provisions do you think must be complied with in a foreign jurisdiction? What is the legal mechanism for doing this?

As for your contention that Khadr's rights were not violated, what is difficult to understand in the fact that the Supreme Court of Canada has ruled that they were?

Yet the court provided no remedy....very strange.

[Smallc]

Yet the court provided no remedy....very strange.

No, it isn't strange at all. They gave a very clear explanation as to why they did not make a decision.

[Argus]

What a curious statement. If the media gets involved, and the Government is shamed in to acting, does that not say that the media is correct, and therefore acting on the best interest of the person?

The media acts in the best interests of the media. Like the government of the day, it doesn't really care about anything else. If they think it makes a good story, they'll cover it and even campaign for the prisoner. If not, they'll ignore him. Government is pretty much the same. Unless it's politically necessary, they're not going to upset our relationship with the foreign government involved. In fact, the "government" that is to say, the political part of it, won't even hear about it because the bureaucracy will play down its importance. If you think the foreign minister gets a list from his bureaucrats of Canadians arrested abroad every night you're sadly mistaken.

[Peter F]

But the Canadian officials didn't deny him any rights. Canada wasn't even in a position to deny those rights, he was in American custody. Obviously those rights are potentially impacted (limited) by the context in which you are having these dealings with Canadian officials. It's not like the room where Khadr was interviewed by the Canadian FA official was a little piece of Canada. Of course the Canadian FA official cannot deny a lawyer to Khadr if he is permitted one, but the Canadian official cannot guarantee a lawyer either since it is American jurisdiction.

From the SCC decision (the original and not a 2nd hand dogs breakfast from the media) available at

Supreme Court of Canada website

Canada actively participated in a process contrary to its international human rights

obligations and contributed to K’s ongoing detention so as to deprive him of his right to liberty and

security of the person, guaranteed by s. 7 of the Charter, not in accordance with the principles of

fundamental justice.

and further

The deprivation of K’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.

They base that conclusion upon the following (again from the SCC decision linked above):

(15) The question before us, then, is whether the rule against the extraterritorial application

of the Charter prevents the Charter from applying to the actions of Canadian officials at

Guantanamo Bay.

(16) This question was addressed in Khadr 2008, in which this Court held that the Charter

applied to the actions of Canadian officials operating at Guantanamo Bay who handed the fruits of

their interviews over to U.S. authorities. This Court held, at para. 26, that “the principles of

international law and comity that might otherwise preclude application of the Charter to Canadian

officials acting abroad do not apply to the assistance they gave to U.S. authorities at Guantanamo

Bay”, given holdings of the Supreme Court of the United States that the military commission regime

then in place constituted a clear violation of fundamental human rights protected by international

law: see Khadr 2008, at para. 24, Rasul v. Bush, 542 U.S. 466 (2004), and Hamdan v. Rumsfeld, 126

S. Ct. 2749 (2006).

They also determined that the actions of CSIS and DFAIT functionaries were in violation of his

charter rights (same link):

A report of the Security Intelligence Review Committee titled CSIS’s Role in the Matter

of Omar Khadr (July 8, 2009), further indicated that CSIS assessed the interrogations of Mr. Khadr

as being “highly successful, as evidenced by the quality of intelligence information” elicited from

Mr. Khadr (p. 13). These statements were shared with U.S. authorities and were summarized in

U.S. investigative reports (Report of Investigative Activity, Exhibit “AA” to Affidavit of Lt. Cdr.

William Kuebler, February 24, 2003 (J.R., vol. III, at pp. 289 ff.)). Pursuant to the relaxed rules of

evidence under the U.S. Military Commissions Act of 2006, Mr. Khadr’s statements to Canadian

officials are potentially admissible against him in the U.S. proceedings, notwithstanding the

oppressive circumstances under which they were obtained: see United States of America v.

Mohammed Jawad, Military Commission, September 24, 2008, D-008 Ruling on defense Motion

to Dismiss — Torture of detainee (online: SCC link and very much worth reading too I might add).

The above interrogations also provided the context for the March 2004 interrogation, when a DFAIT

official, knowing that Mr. Khadr had been subjected to the “frequent flyer program” to make him

less resistant to interrogations, nevertheless proceeded with the interrogation of Mr. Khadr

So you see, your example of Maziar Bahari is irrelevant. Canadian FA officials were not interviewing her to gain information to be used against her in criminal proceedings in Canada or Iran. If they had have been then they too would have been violating her GodGiven charter rights as a Canadian citizen.

Bottom line: CSIS and DFAIT f*cked it up again. They should never have questioned Khadr. CSIS flunkies should never have even got on the plane.

Edited January 31, 2010 by Peter F

[bush_cheney2004]

No, it isn't strange at all. They gave a very clear explanation as to why they did not make a decision.

As I stated...the court provided no remedy, realizing that it couldn't.