Omar Khadr’s Canadian Homecoming

On September 29th, Omar Khadr found himself on a flight from Guantanamo Bay to Canada. Khadr is a Canadian citizen, and his return was an uncomfortable homecoming. A commenter on a news story expressed a widely shared sentiment: “It does not seem right that Canada took him back into her arms after trying to cut one off.”

Omar Khadr’s story prompts us to revisit ideas about status, law, and belonging in the U.S. and in Canada. Khadr was the youngest of the Guantanamo Bay detainees. He was detained when he was 15, and was released to a Canadian prison at age 26. He is the last citizen of a NATO state to be released. How did this happen? Without the despicable legal constructions of the U.S. “war on terror,” a 15 year old who survived a firefight with U.S. troops would not have been detained for nine years or have pled guilty to homicide. Yet, his return would have been speedier were it not for the Canadian reluctance to recognize Khadr as a citizen. It took a 2010 Canadian Supreme Court decision and two years of pushing his file from desk to desk to facilitate his return.

Khadr found himself in a terrible predicament. The U.S. insisted that he was a war criminal, and the Canadian government, relying on this vilification, pretended it had no obligation towards him. After all, he was only an “accidental citizen” (Peter Nyers), not a “real” one.

Omar Khadr was born in Toronto, but his father was the “un-Canadian” al Qaeda associate Ahmed Said Khadr. Since the 1990s, the family spent much time in Afghanistan and Pakistan. On 27 July 2002, Omar Khadr was part of a group that was attacked by U.S. forces. He was seriously injured; all other members of his group were killed. Three coalition soldiers were killed, among them one U.S. service member: Christopher Speer. Khadr was charged with killing Speer. Khadr was captured and eventually transferred to the infamous detention camp in Guantanamo Bay.

In Canada, those who argue in favor of embracing Khadr as a citizen and neighbor cite the fact that he was only 15 when he was captured. He was a child soldier, and courts typically refrain from charging persons under 18 years of age for violence committed in war. This is true, and yet it is not even half the story. More importantly, Khadr’s status and “identity” as a terrorist and war criminal were produced by novel legal arguments backed with physical and psychological force. His fate shows in an exemplary way how law and power produce truths.

Like the other Guantanamo Bay detainees, Omar Khadr was classified as an “alien unlawful enemy combatant,” a very strange classification, developed by the U.S. military to produce a status of rightlessness.

Traditionally, the law of war distinguishes between two groups of people: civilians and combatants. Each group is subject to a specific and distinct set of rules. Civilians may not participate in war, and they cannot be targeted by combatants. Combatants are allowed to participate in the violence of war (within bounds, such as not targeting civilians), but they can also be legitimately targeted in war. In short: only those who may kill may be killed.

What, then, is an “alien unprivileged enemy combatant?” The phrase “enemy combatant” was coined by the U.S. Supreme Court in a 1941 decision on German soldiers who intended to commit sabotage in the U.S. wearing civilian clothing. This legal innovation allowed the government to treat some people as having none of the rights of civilians and none of the rights of combatants. It was recycled and extended in a series of court decisions. I have traced the history in detail elsewhere.

After 9/11, the Bush government wanted to detain, transfer, question, charge, and convict enemy combatants captured in Afghanistan and elsewhere. This desire plainly contradicted the established laws of war. Prisoners of war cannot be blamed for having participated in war.

In 2006, the government passed legislation establishing military commissions to try “alien unlawful enemy combatants.” “Alien” was a new modifier because U.S. citizens were entitled to rights that people like Omar Khadr weren’t. The rightless people were subject to detention, as well as trials by military commissions, until the “war on terror” ends. The military commissions did not include independent lawyers or judges, and they operated by rules of evidence that seemed to have been copied from Stalin’s playbook.

Omar Khadr was, in other words, rendered rightless by the country that captured him. He was also tortured. The conditions at Guantanamo Bay were so inhuman that nine detainees have committed suicide, and an untold number have attempted to do so.

What did the Canadian government do upon finding out about the legal black hole and physical torture to which a Canadian citizen, a minor, was subjected? It sent a delegation to visit and interrogate him.

In 2007, Omar Khadr was charged by a military commission with murdering U.S. soldier Christopher Speer by throwing a hand grenade, and with manufacturing IEDs, i.e. home-made explosive devices. The grenade was manufactured in the U.S., so experts have questioned whether it originated from the group around Omar Khadr.

In October 2008, as part of a plea agreement, Khadr admitted to killing Christopher Speer after the firefight had ended. Khadr, having received no assistance from the Canadian government, agreed to an eight years prison term, part of it to be served in Canada. Thus, Khadr’s “admission” of guilt is not a document of facts found by an independent court, but a statement obtained through torture, intimidation, and the sheer inequality of the parties at the military commission.

The commission proceeded on the basis of the law that had already designated Khadr unprivileged enemy combatant whose violence was by definition illegal. When the U.S. military rendered Omar Khadr an unprivileged belligerent who can be killed but may not kill, it simultaneously rendered Christopher Speer a hyper-privileged combatant who may kill, but whose death is prosecuted as murder. Because of this hierarchy between unprivileged and hyper-privileged combatants, Khadr returns to Canada as a murderer, a terrorist, a war criminal.

What awaits him? Public Safety Minister Vic Toews called him a “known supporter of the al-Qaeda terrorist network and a convicted terrorist.” Others are embarrassed for the Canadian inaction in his case. Khadr is imprisoned in high-security facility in Millhaven, Ontario. He will be eligible for day parole in January 2013, and for full parole later in 2013.

How will Khadr’s eligibility for parole be determined? The Parole Board considers an applicant’s “criminal and social history, the reasons for and type of offense,” their “understanding of the offense and any past offenses,” “progress,” for example “through participation in programs” and “behavior” in the institution.”

Khadr faces the board as a convicted murderer, not as a former child soldier who survived detention and torture at Guantanamo Bay. The Canadian legal system’s recognition of facts created by the U.S. military commission doubles the injury that the U.S. inflicted on him.

Omar Khadr was not only let down by his family that dragged him into war, but also by two countries that vilified and rejected him. A strange homecoming indeed.