Canadian courts are shaming the government into standing up for the rights of a Canadian in Guantanamo, reports Tamam Ahmed Jama from Ottawa In a string of victories in the legal saga of Omar Khadr, a Canadian citizen held at Guantanamo Bay, the Federal Court of Appeal upheld on 14 August a decision by a lower court, ordering the government to request his repatriation to Canada. Khadr, who was only 15 when he was captured by US forces, is the only citizen of a Western nation still languishing in the notorious off-shore military prison in Cuba. A federal court ruled in April that Canada has an obligation to take steps to "protect Khadr from further abuse" and that, by refusing to request his repatriation, Khadr's rights under the Canadian Charter of Rights and Freedoms were violated. The government appealed the decision, saying it could not be forced to act on Khadr's behalf. The Federal Court of Appeal agreed with the lower court and dismissed the government's case. "In the circumstances of this case, making request [for Khadr's repatriation] is the most appropriate remedy Canada can offer," states the ruling by the Court of Appeal. "There is no legal or factual foundation upon which this court can conclude that the decision not to request Khadr's repatriation is justified." Apart from Canada, all Western nations which previously had citizens held at Guantanamo Bay, including France, Britain and Australia, have secured the release and repatriation of their nationals. While other governments actively lobbied for the return of their citizens, Ottawa has long dragged its feet, turning a deaf ear to repeated calls for requesting Khadr's repatriation. The government's refusal to intervene in Khadr's case has caused consternation among many Canadians. One commentator wrote recently in the Toronto Star : "The Constitution may not oblige Khadr's repatriation, but every civilised country in the world protects its citizens from injustice overseas. That was the point of the Vienna Convention on consular affairs. That is why the US intervenes to protect Americans in North Korea, Iran, Burma, etc. When international human rights are being violated Canada offers refuge to foreigners, but wouldn't try to protect its own citizens! If a 'guilty' Canadian can be repatriated from Mexico for humanitarian reasons, why can't we seek the repatriation of a Canadian facing punishment illegal under international law [torture] before even being tried?" Khadr was the only person found alive following a raid by US forces of a suspected Taliban compound in Afghanistan in July 2002. He was shot multiple times and sustained serious injuries to his torso and head. He has since lost the sight of one of his eyes. The Pentagon alleges that, before being captured, Khadr threw a grenade that fatally wounded a US soldier. His American military lawyer, William Kuebler, says the only evidence against Khadr is what was "tortured" out of a badly wounded child. Khadr was 15 at the time. Prime Minister Stephen Harper has always insisted that the charges against Khadr are serious and that Canada should wait for the outcome of the military tribunals at Guantanamo Bay. The prime minister's intransigence moved one newspaper columnist to write recently that Harper wants to make sure that Khadr is the "last detainee" to leave Guantanamo Bay. Upon coming to office in January, US President Barack Obama pledged to close Guantanamo Bay within a year. A task force on detention set up by his administration released a preliminary report on 20 July, detailing the complexities of overhauling the US detention policy on terrorism suspects and saying it needed six more months to issue a final report. This prompted doubts about whether the Obama administration will meet the January 2010 deadline to close Guantanamo Bay. Only a few dozen detainees have left the infamous camp over the course of the seven months since Obama's inauguration. About 230 men are still held at Guantanamo Bay, a small minority of who have been formerly charged. Many of the remaining detainees are eligible for release, including a group of Uighurs who were cleared back in 2004, but could not be returned to China for fear of persecution by the Chinese authorities. The ethnic Uighurs are from the northern Chinese region of Xinjiang where Beijing alleges militants are fighting for independence. China asked for the return of all Uighur detainees, but the recent violent riots in Urumqi, the capital of Xinjiang, and the response by the Chinese authorities give new credence to fears that the Uighur detainees will be at risk of prosecution, even possible execution, if sent home. Efforts have been made to find third countries willing to resettle detainees who cannot be returned home for fear of further mistreatment. Albania resettled five Uighurs in 2006 and Bermuda, a British overseas territory, accepted another four in June. The Pacific island of Palau has recently said it would resettle the Uighurs remaining in Guantanamo Bay. Portugal, Germany and Sweden have also said they would take some of the other detainees to help speed up the process of shutting down Guantanamo Bay. It is expected that some of the detainees will be tried in "reformed" military tribunals. These will probably include men the Pentagon refers to as "high-value" detainees, including Khaled Sheikh Mohamed, the alleged mastermind of the 11 September 2001 terrorist attacks in New York and Washington. These men had previously been held in secret CIA-run detention centres for years where they were subjected to "harsh interrogation methods". These include waterboarding, a technique which involves immersing a prisoner in water to make him believe he is drowning, and is regarded as a form of torture under international law. The Bush administration had repeatedly refused to acknowledge waterboarding as a form of torture, calling it instead "an enhance interrogation technique". US Attorney-General Eric Holder says categorically that waterboarding is torture. Questions remain about the legal value of evidence gleaned from suspects through these methods. The preliminary report by the task force on detention recommends that the detainees at Guantanamo Bay be tried in US federal courts, adding that reformed military tribunals may be better suited for some of the detainees. Under the Military Commissions Act, set up in 2006 by the Bush administration, hearsay evidence and evidence obtained through torture were admissible in court at the trials of terrorism suspects. The Obama administration says this will no longer be the case under the "reformed" military tribunals. Rights groups, including the American Civil Liberties Union, are sceptical about the "reformed" military tribunals and say all the detainees should be tried in regular US federal courts. Which detainees will be tried in reformed military tribunals and which ones will be moved to the US mainland for trial will be determined on a case-by- case basis in the months ahead. The preliminary report concludes: "Justice cannot be done unless those who are accused of crimes are proved to be guilty beyond a reasonable doubt in a court of law that affords them a full and fair opportunity to contest the charges against them."
