I have been buried in a book project, and trying to stay away from 2017. But against my better judgment, I thought I'd take a moment to distill a few thoughts on the Omar Khadr damages settlement. As most people likely know, Omar Khadr -- the boy who was captured in a firefight in Afghanistan and grew to a man in detention at the United States' infamous Guantanamo Bay prison -- has been paid $10.5 million by the Canadian government.
This is compensation for the Canadian govenments own (mis)conduct in that matter faced with a lawsuit for a much larger amount, not some sort of holiday present. But that fact is lost on social media.
My colleague Audrey Macklin has an excellent piece in the Globe responding to the waves of outrage -- and especially the wave of outrage from Jason Kenney. (I am sure Audrey's mailbox is full of hate mail in consequence -- mine certainly was when Audrey and I and others worked with students a decade ago to help Khadr's then-military lawyer, Lt Cmdr Bill Kuebler, navigate the Canadian legal scene. Some of those students went on to produce some excellent analysis, noted below. Tragically, Bill passed away two years ago, a young man and father and victim of the disturbing cancer cluster among those who worked at the Guantanamo court complex).
But I offer a few additional thoughts to Audrey's.
First, unlike others caught in acts of tacit complicity with maltreatment by the Canadian government, Omar Khadr is not a blameless victim. He was an unprivileged belligerent when captured in 2002 in what was, by then, a non-international armed conflict between the new Afghan government and its allies and the Taliban and remnant AQ. Being an unprivileged belligerent is not, itself, a war crime -- that is reserved for more serious conduct. But nor does an unprivileged belligerent enjoy combatant's immunity: he or she can be held accountable for their conduct.
Second, Omar Khadr was prosecuted at Guantanamo after being mistreated, in a patently delinquent process for, in some instances, crimes made up after his conduct (and thus applied retroactively). Put another way, the United States took a clean case and screwed it up. (Being a child soldier is not and never has been an absolute bar to prosecution for crimes. But it does matter and the US completely ignored that as well.)
Third, along the way, for transparently political reasons, the Chrétien, Martin and Harper governments refused to seek Khadr's repatriation. And the Harper government in particular made an art of this refusal, claiming falsely Khadr could not be prosecuted in Canada. My students wrote a 150 page paper laying out how this was wrong (when they presented that brief before a parliamentary committee certain Conservative MPs derided them, just because). The Obama administration would have been happy to be rid of Khadr.
Four, but still the government stuck to its guns, and was slapped with two Supreme Court and several lower court holdings collectively finding that the government had violated its obligations -- including under the Charter -- in using Khadr's detention in a system violating international law as an interrogation opportunity.
Five, that meant that the government now had its own legal exposure for, essentially, a form of complicity, as it did in other cases and still does for still others before the courts.
Six, the government will eventually lose such cases. For one thing, as with Arar, Almalki, Elmaati, Nureddin and (likely in the future) Abdelrazik, there were ample court or commission of inquiry findings setting out its wrongful conduct in graphic detail. The government can (and often has) engaged in procedural trench warfare in court to try to stuff Pandora back into her box -- but it takes a particularly unedifying government to dispute a meritorious case with endless legal chicanery. Plus, the ultimate legal costs will likely exceed any settlement.
Seven, even where a government case has merit, the evidence of that merit may be clothed in secrecy, leading to a form of gray mail: you cannot prove the merit. And whether your case has merit or not, it is usually not a great idea to allow the plaintiff's lawyer to get a bunch of senior government and security agency officials on the stand in open court and rip them to shreds.
Eight, and so that is why it is a very smart idea to settle cases like Omar Khadr's.
Nine, but that is not to say, again, that Khadr was a blameless victim. Whatever may have happened in that 2002 firefight, he was an obvious unprivileged belligerent. There is now no prospect of a Canadian prosecution -- the record is likely irremediably tainted by the maltreatment in Guantanamo, a prison that has become the world's largest poison pill to justice. (And that sets aside the interesting double jeopardy issue.)
Ten, nor would prosecution now meet any of the purposes for which the criminal law serves.
But, eleven, when someone hurts another person, tort law is available to compensate for injury. Put another way, it is perfectly reasonable, in my view, that there be a civil suit in this case. I know nothing more than I have read in the media about its particulars, but the issue with the lawsuit brought by Tabatha Speer and Layne Morris may be that the default Utah judgment for $134M is also irredeemably tainted by events at Guantanamo, including the so-called confession. What happened in that 2002 firefight has never been adjudicated in a proper adversarial process in front of a real court using real rules of evidence.
Twelve, that will make enforcing the judgment in Canada difficult. And it may now be too late for a proper action, given limitations periods. (Although maybe not -- limitations periods and rules differ).
But bottom line: the lesson learned, once again, is that taking off the gloves and playing footsie with some basic legal principles has blowback.
The interests of justice would have been much better served had Khadr been repatriated earlier from Guantanamo. I wonder why that never happened?