I have a few moments this morning for a “once more unto the breach” post on the Khadr settlement. Please read my prior one, because I will try to make a few other points in this one, given how the discussion has evolved. (This will be my last foray, hopefully for a long time, as I need to finish writing my book for my anticipated audience of 4.)
In the interest of disclosure, I provided minor assistance to Khadr’s US JAG defence lawyer a decade ago, and was co-counsel in the amicus brief by law professors and parliamentarians in the US Supreme Court case of Boumediene, which had a Khadr angle. I also supervised law student directed research projects on the Khadr matter.
These were small involvements. I don't raise them because of some excessive sense of importance, but because people will want to know where I come from.
I am mad as hell and so should you be
I may be mad for different reasons than you are, but here are my reasons:
1. As an excellent team of law students discussed here in detail, Khadr could have been (and, in my view, should have been) Canada’s first modern terrorism case. By summer 2002, Canada had a whole raft of new, shiny, extraterritorial terror offences. They were available, and would not (all) have required adjudicating who did what in the 2002 firefight: no need to debate grenades. Participating with Al Qaeda would have been enough, and the evidence of that would have been straightforward and required no extreme detention, maltreatment, or doubtful confession. Nor would we have had to resort to made-up retroactive crimes, like in the US military commission process, or a patently flawed commission structure. We could have used real courts, with real judges, adjudicating real crimes, using real evidence.
- Further addendum: no, the fact that Khadr was in the midst of an armed conflict would not have immunized him. Under the laws of armed conflict, he would have been an unprivileged belligerent, disentitled to what is known as “combatant’s immunity”. Basically, he was a civilian who fought. That can be treated as unlawful (although is not in itself a war crime), whether done in Afghanistan for AQ or in Syria for ISIS.
- As a prosecutor, I would not have sought treason charges for one reason in particular: our treason crime is so antiquated that it hasn’t been used since the 1950s, and would be really complicated. And I wouldn’t need it, because of the terror charges. (In recent cases, we have not used treason. See Ribic.)
2. The youth offender issue was one our system could grapple with, and often does. This didn’t need to be a overstated debate about a “child soldier”. And any other extenuating or mitigating issues could have been part of sentencing.
3. It was past negligent for Canada to not only be the only Western country that left one of its nationals at Guantanamo, but then send CSIS [and DFAIT] interrogators to interrogate/inteview Khadr (softened up by the Americans through maltreatment that was probably torture, and if not torture, the equally unlawful cruel, inhuman or degrading treatment).
4. And then to top it off: Sharing the fruits of that interrogation for use in a military commission system the United States Supreme Court itself concluded was unlawful, compounded the Canadian delinquency. It also meant that Canada was contributorily tied to the whole Guantanamo mess, running up the meter on Canada’s moral and legal culpability.
5. And then to have the gall to claim that we had no choice, because our legal system could not have dealt with Khadr (which, if true, will be tremendously happy news to Canadians now fighting for ISIS. Fortunately, it was never true). The other doubtful argument: the Americans would be angry at us if we asked for Khadr back. By the end of this saga, the Americans really wanted us to take Khadr back. There are even Hilary Clinton emails.
In sum, the Government of Canada screwed this up. Massively. And now a criminal trial is impossible because of tainted evidence, maltreatment, double jeopardy (from the US process that may, ironically, end up overturned on appeal in DC because of all the retroactive crimes). Nor would a trial serve any purpose: even with a conviction, hard time in Guantanamo (in pre-trial detention, no less) exceeds anything a Canadian court would hand out.
What about Khadr’s lawsuit: Shouldn’t the government have fought it?
It did. Since 2004. Here’s the Federal Court docket. It got to the point that the government’s legal tactics were costing it. For instance, in resisting Khadr’s amendment of his statement of claim, the government skated past the point of credibility. And here’s what the judge ordered in 2014:
The Plaintiff [Khadr] was successful on nearly every aspect of this motion. Only a handful of the Defendant’s [Canada’s] myriad arguments had any merit. By opposing this motion, the Defendant considerably increased the costs and delay of this complex action, which has occupied this Court for ten years now. Consequently, I exercise my discretion to award costs in favour of the Plaintiff, pursuant to Rules 400 and 401
In the end, Khadr was suing Canada for a lot of things, not just the Charter breaches everyone is talking about:
$20,000,000 in compensatory damages alleging negligence, negligent investigation, conspiracy with the United States in the arbitrary detention, torture, cruel, inhuman and degrading treatment, false imprisonment, intentional infliction of mental distress and assault and battery of the Plaintiff, failure to comply with domestic and international obligations with regard to treatment while confined, and misfeasance in public office. In the alternative, he sought an award of damages pursuant to s 24(1) of the Charter and a declaration that the Defendant violated the Plaintiff’s ss 7, 8, 9, 10, 12 and 15 Charter rights.
Would he have won? On the Charter breaches, the Supreme Court of Canada had already concluded (twice) that Canada had breached Khadr’s Charter s.7 rights through the CSIS/DFAIT interrogations and sharing of resulting information with the Americans. The issue of what damages should be paid for that had not been decided – it was not before the Supreme Court and that was what the Federal Court lawsuit was about. But the existence of the constitutional breach was probably governed by “issue estoppel” – it had already been decided by the Supreme Court, and so that legal question was decided (although, per its habit, the government would have likely contested this, racking up more costs).
I don’t underestimate the complexities of the Ward case and its standard for damages in Charter cases. But basically, the Khadr case was probably mostly just a question of quantifying the damages.
On the other causes of action, well, there was a good chance for some of them -- although suing government for negligence can be tough. And some of them would have required some really interesting (and uncomfortable evidence). Which brings me to…
But no one really can say how litigation should unfold. So perhaps the government should have fought it. Why not?
Well, if I had been advising the government, I would have urged them to settle. Here’s why. First, don’t underestimate the cost to the taxpayer of fighting:
1. Maybe if you do not care about sharp legal practice, you can wear the plaintiff down through stalling tactics. Let injustice be done, though the sky fall! But sooner or later, you will end up in front of a judge, probably now very irritated and happy to assess costs against you.
2. You won’t win everything in this case. You are almost certain to pay some damages, and quite possibly a lot of damages.
3. Either way, if you fight a trial, here’s what will happen:
- Because of what he needs to prove for the negligence and misfeasance causes of action especially, plaintiff will call the former Prime Ministers Chrétien, Martin and Harper, and all of their former foreign affairs and public safety ministers, CSIS, DFAIT and RCMP officials (former and present) and any number of other officials.
- Former officials will have their own reputational exposure (at minimum), and will likely want independent legal advice, indemnified by the government of Canada.
- Departments will divert resources, as they did during the commissions of inquiry of the last decade. There will be oodles of lawyers and staff time on this – do not underestimate the resources poured into this.
- Plaintiff will be seeking confidential information, on top of what is on the public record. Some of that will raise national security interests. It will need to be fought, probably in Canada Evidence Act s.38 proceedings. Those are long and arduous and costly. See above about staff resourcing.
- The trial will be several weeks long, and the costs skyrocket. (There is a reason most civil cases settle).
Put another way, this will cost a bundle. And that’s not including resources expended by the court itself. And that’s assuming in the end the government isn’t stuck with the plaintiff’s legal costs (which, as noted, was already starting to happen).
The Arar commission cost $20 million. Commissions and courts are different, but the Khadr case has been a longer process. All costs in, I suspect a full trial in the Khadr matter would have been close to Arar number – certainly more than $10 million. The government had already spent $5 million – and the process looks like it had not yet reached the full discovery process (let alone trial), or resolved the section 38 issues.
So I think an all-in number in the $30-40 million range, including damages, costs to the court, etc was very possible, even likely, and maybe even low-balling.
But then there are the more intangible (but perhaps even more pressing) costs:
- Some of these section 38 proceedings would probably mean some information would come out the government does not want out for plausible security reasons (in this case, outweighed by the fair trial interest). You may not care, but the security services do, passionately.
- Since the lawsuit (by definition) implicates the Americans, they will have an interest and perhaps reaction, especially if some of their confidential information was potentially in play. This is an unpredictable US administration. This trial pokes a hornet’s nest.
- The last thing the security services need is for graphic exposure concerning misdeeds of the prior decade. It diverts resources, and diminishes morale and public confidence and makes it very difficult to do their jobs if the public believes that they are rogue operators. (Losing a misfeasance claim would be disastrous; we are getting into intentional malice territory there.)
If I were the security services, I would have wanted this case settled, badly.
In sum: You can still wish there had been trial for a lot of different reasons. Maybe you’d like all this to have come out in open court – certainly, I would have found it interesting as a national security law academic. Maybe it would have been good to expose the government malfeasance. Maybe the responsible should be exposed, and heads put on spikes. Maybe all that would serve as a cautionary tale for security services, on the (unlikely) assumption they would do a repeat in the same manner. Maybe you don’t care about any of the reasons, but do care about the symbolism.
That is your prerogative. But none of your reasons for supporting a full civil trial in Khadr should be “because it would have been cheaper” or “because it would be a good way to support the security services”.
But was this really worth the $10.5M, and wasn't this too secretive?
I wasn't part of the process, but a couple of thoughts: First, a settlement depends on what you negotiate. The negotiations are confidential, and so too (often) is the settlement. (Public settlements advertise to all future plaintiffs what the going rate is, leading to a bidding war).
Why $10.5 million? Probably because the (public) Arar matter set that as the benchmark for the cost of participating, however indirectly, in maltreatment with a foreign government. Legally, I don’t think it make a difference that Mr Arar was picked up and rendered from JFK airport, and Khadr from the battlefields of Afghanistan. I don't see how their relative virtues would affect the lawsuit. An “eye for an eye” is ancient Sumerian law, not Canadian.
Maybe the government should have negotiated a better deal – $10.5M is several million more than wrongful convictees have typically received. Maybe the government should have conceded liability and gone to court on damages. Personally, I am not sure that would have obviated all (or even many) of the problems with going to trial, noted above, since the conduct of those same officials would have been what compounded damages.
But bottom line: the current government made a judgment call, burdened with the conduct of 3 prior governments and lingering legacy cases that continue to cast a shadow over the security services.
Perhaps there were other more partisan political reasons for settling. This is not my area. I leave it to others to discern the partisan political upside of this settlement for the Trudeau government. It is not immediately apparent to me.
What about Canada paying Ms Speer and Mr Morris?
I certainly know what I hope for on this question, as a human being.
But a couple of lawyerly points:
As a principle, the Canadian government has no legal exposure for Khadr’s (alleged) conduct in the 2002 firefight. Canada is not responsible for the conduct of its private citizens overseas – if that were a principle, I imagine there would be many fewer passports issued.
Whether Khadr is himself liable for the 2002 firefight is a question that has never been adjudicated in an adversarial process in front of a real court, applying real evidence. Basically, we have no idea what happened in 2002. Anyone with clarion vision on this point is exhibiting motivated fact-interpretation.
As I understand it, the Utah default judgment (in which Khadr’s side did not appear) was built on the Guantanamo record. Enforcing that judgment in Canada will be hard, although perhaps aspects of it can be teased away from the tainted Guantanamo process.
(Unfortunately, a new “clean” civil proceeding is likely precluded by expiry of limitations periods. Too bad Khadr wasn't repatriated sooner.)
If there can be enforcement, whether there are assets to be seized is a question beyond my knowledge. (The negotiated settlement may be structured so that the money is paid out in increments, not as a lump sum. This is not my area, at all, so I defer to others on the civil procedure and civil action components of this case.)
Finally, whether the Speer and Morris proceeding itself will settle remains an open question. It may be a good way to judge character.
So to sum up: there are many villains and few heroes in this saga. There are degrees of victimization, and there are stages in it. There is too much “eye for an eye”, and too little “rule of law”. None of this had to be this way. Justice could have been served. Be angry at your government, but make sure you are angry at them for all the right reasons.
It is possible to believe:
- Khadr is not a folk hero and should have been held to account and he should not have been maltreated and railroaded in a patently flawed process.
- Khadr should have been repatriated much earlier and held to account.
- Khadr was wronged and was in the wrong, with the degree of that error something that deserved careful, evidence-based inquiry.
- That settling this case was smart for financial and security reasons, and that others may deserve compensation.
I want to end with a nod to Dennis Edney and Nate Whitling, Khadr’s chief lawyers on the criminal side (who will not agree with all I have said here). They represented the country’s most unpopular client for almost two decades, without any real prospect of compensation and in the face of public vitriol. If any of us are ever targeted by governments willing to toss centuries of due process into the dumpster, we would be fortunate to be represented by two such dogged advocates.
And while I am less familiar with the civil side, I have reason to believe that similar credit is owed to John Kingman Phillips. And there are any number others that I risk damning by not mentioning, for which I apologize. These would include many of the US JAG defense lawyers who I knew in person or by reputation, and who stand out as defending fidelity to the rule of law.