Canadian Judge: Omar Khadr’s Brother Was Illegally Held and Interrogated

/in , /by

Omar Khadr is set to go on trial starting Monday, August 9.

Today, his brother went free in Canada.

A judge ruled that he could not be extradited to the US because the confessions on which his extradition request was based had been collected when he was illegally held and interrogated in Pakistan.

Abdullah Khadr walked out of a Toronto courtroom a free man Wednesday after an Ontario judge denied a U.S. request to send him to Boston to face terrorism charges.

[snip]

Reading passages from his 62-page decision, [the judge in the case, Christopher] Speyer told a Toronto court that setting aside the extradition order was a “remedy of last resort” required in this case due to the fact that Khadr was illegally held and interrogated.

Khadr’s lawyers Nathan Whitling and Dennis Edney had argued that extraditing Khadr would mean Canada supports countries that violate international law.

Pakistan was paid a $500,000 (US) bounty to arrest Khadr in 2004. He was held without charges for 14 months and interrogated by intelligence and police agents from the U.S., Pakistan and Canada.

The Boston case against the 29-year-old Khadr was based on his own statements made in Pakistan and then repeated in Toronto upon his return in 2005.

Abdullah Khadr, like his brother Omar, said he made the confession only after suffering from abuse.

This decision may be appealed. But for the moment, Abdullah Khadr’s fate sets up an interesting contrast with the likely fate of his brother before the Gitmo show trials.

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  1. skdadl says:

    The extradition isn’t the only issue here imho. This is a clear case of Canadian complicity (if not worse) in U.S. war crimes.

    The government lawyers’ argument came down to something like “But the ISI were in charge of incarceration conditions. Who could have known, who could have predicted?”

    However the appeals game goes, I don’t think any of our courts will fall for that. The worse problem is that crimes indeed were committed, but the wrong people are in court.

  2. b2020 says:

    Wait until the US kidnaps him, now that he is no longer in Canadian custody. To really hammer the point home, Obama could have his minions kidnap him right out of Toronto, and point to “Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities.”

  4. manys says:

    And the US is marginalized once again. When it comes to this stuff, I bet much of the world looks at us like we look at Turkish prisons.

    • Rayne says:

      Uh, no, because now the U.S. looks at Turkish prisons in the same way they looked at Polish, Romanian and Mauritanian prisons — places to operate black sites for indefinite detention and enhanced interrogation.

      Although I do agree we are marginalized. We have no moral leadership whatsoever.

  5. earlofhuntingdon says:

    This court’s decision smacks of rule-of-lawism; that’s sooo late 20th century. It may order Khadr’s release from Canadian detention, let’s see whether Mr. Harper complies. Fortunately, this case doesn’t raise foreign affairs issues, as is the case with his brother, so Harper can’t use that to justify its failure to do the right thing.

    I wonder how the US will respond. Will it threaten to close the border, shut off all intel cooperation with Canada, raise duties or prohibit the import of lumber or pulpwood or, heavens, beer? Or will it do something constructive?

    • skdadl says:

      Abdullah has already walked free, if that’s the Khadr you’re thinking of.

      We need a Canadian lawyer here. I am trying to figure out (and asking everywhere I can) how this case got to the Ontario Superior Court. (Appeals from there go to Ontario Court of Appeal and then the Supremes.) I’m not sure on whose authority the “government” lawyers are speaking, and it would make a difference. I’m also not sure who the U.S. made their approach to. (Well, ok, I am, but I don’t know how to describe the legal channels.)

        • skdadl says:

          Is that what keeps him so, ah, sleek, Petro?

          I guess the plus side is that we seem to have a lot of good judges, whenever we can manage to get things to them, and every once in a while, like today, one of their decisions actually has a practical result. A guy walked out of court. I mean, I’m still recovering.

        • Petrocelli says:

          Word is, Steve never saw a Big Mac he couldn’t love …

          What’s even better is, our Courts get less Conservative, the higher up you go.

          BTW, Prop H8 is overturned ! Linky

      • earlofhuntingdon says:

        Thanks for filling in for me that essential fact.

        I can only describe extradition in general. Ordinarily, a request for extradition goes to the senior trial court/court of first instance with jurisdiction over crimes in the state or province where the target of the extradition proceedings lives or is in custody. That requirement is either laid out in the treay or a function of the judicial/jurisdictional rules of the home state.

        It is a purely domestic proceeding, in this case involving only provincial and federal law. The home state government’s lawyers lay out their case to the court: there exists a valid treaty of extradition with the state seeking extradition; the requesting state and home state have complied with the notice and procedural requirements in that treaty; the facts and circumstances of the defendant fit one of the crimes enumerated in the treaty for which he may be extradited.

        The defense can raise several challenges. Whether the treaty exists and is valid; whether procedures have been correctly followed; whether all the required circumstances exist to make extradition valid, including whether it would violate Canadian public policy to release the defendant into the foreign state’s hands.

        The charge against the defendant ordinarily has to be a crime in the home state, not just in the foreign state. And the process the requesting state used to investigate and/or prosecute the defendant has to have met minimum standards of due process as interpreted by the home state.

        The punishment the defendant can expect to receive at the hands of the extraditing party must also be deemed reasonable by Canadian standards. Most states, for example, prohibit extradition where the aniticpated punishment is death or torture. If there is some question about that, the home state lawyers have to obtain credible assurances from the extraditing state that it would not impose such impermissible penalties. In the case of the US, that would include assurances from the state as well as the feds, since some states allow, eg, the death penalty and others do not.

  6. Cujo359 says:

    Omar Khadr around the time of his capture eight years ago;

    Just a kid.

    I suppose that after eight years of prison I should add “not anymore”.

  7. skdadl says:

    Fascinating, eoh. I’m going to read that over and over again before I say much more. And then I’m going to track down the “government” lawyers and see where they usually work.

    I love this place.

  8. fatster says:

    What a day! The sun’s Surge kept me off most sites except for an occasional viewing opportunity, Abdullah Khadr is free, and Prop 8 meets with a most appropriate fate. The sun rules and courts on both sides of the great dotted Canada-US line have ruled righteously, too. What a day!

  9. earlofhuntingdon says:

    I should add that an extradition order is usually issued by the executive, on application by the foreign state seeking extradition, but may ordinarily, as here, be challenged in court by the defendant.

    Wiki has a short essay on extradition here. It includes a non-exhaustive list of examples where the home state court ought to refuse extradition:

    Common bars to extradition include:

    * Failure to fulfill dual criminality – generally the act for which extradition is sought must constitute a crime punishable by some minimum penalty in both the requesting and the requested parties.
    * Political nature of the alleged crime – most countries refuse to extradite suspects of political crimes.
    * Possibility of certain forms of punishment – some countries refuse extradition on grounds that the person, if extradited, may receive capital punishment or face torture. A few go as far as to cover all punishments that they themselves would not administer.
    * Jurisdiction – Jurisdiction over a crime can be invoked to refuse extradition. In particular, the fact that the person in question is a nation’s own citizen causes that country to have jurisdiction.
    * Citizenship of the person in question – some nations refuse to extradite their own citizens, holding trials for the persons themselves. In some cases, such as that of Hafiz Muhammad Saeed, the suspect will not face criminal charges at all.

    Since 9/11 especially, extradition rules have gone through turmoil, with some states being over-eager to accede to US demands for immediate, process-less extradition on the grounds that they ought to trust that the US has “a fair legal system”.

    The UK in 2003, for example, greatly “simplified” its extradition rules pertaining to the US (and other EU countries), in a way that advocates for civil rights consider fail to assure that the interests of justice will be served. It imposes a “fast-track” system that precludes access to the courts.

    This means that a British court never gets to consider whether there is evidence to justify the charge.

    The Extradition Act 2003 has eroded traditional protections in British law against summary and unfair extradition. Extradition law should have safeguards that ensure extradition always serves the interests of justice, that the complaint against the accused is genuine and backed up by evidence.

    The US likes its one-sided arrangement with the UK so much that it recently blocked David Cameron from fulfilling his campaign pledge to revise it. Which suggests, in general at least, that Ontario’s superior court was prudent to be skeptical about US claims concerning its pre- or post-extradition treatment of Mr. Khadr would serve the interests of justice. And Mr. Khadr is bloody lucky he wasn’t resident in the UK when this request for extradition arose.

  10. Mary says:

    The article is pretty interesting for what it says as well as for what Speyer was careful to not say.

    One thing you have to keep in mind is that the foreign gov contacts aspect is one of the Exec non-disclosure issues that the US has been pushing as a reason for dismissal of cases like el-Masri and Arar. Not just the national security aspect of the torturee, but the overall national aspects if the Exec is forced to reveal information about its secret (and often illegal under that country’s law) interactions with foreign nations and their institutions.

    So if the ruling (I’d like to see) really does go into the issues of Pakistan getting the payoff and having Mohamed and coordinating his paid for detention, etc. then it’s not just in the US and Canada that the case will get attention.

    The court in Pakistan recently dismissed motions involving Aafia Siddiqui because the defendants had no direct proof that the Pakistani gov was involved in her abduction and disappearance with her children or that the US did actually abduct and disappear her.

    But what the Canadian ruling does in this case is to put it in the public record that elements of the Pakistan government were working with the US for a 1/2 million payoff (and probably more for the actual continuation of detention and interrogation assistance after the capture) to secretly disappear people off the street and treat them very very badly.

    So Speyer is willing to say no to the extradition (which is pretty big) but he really really really carefully says he’s not finding torture by Pakistan or the US – which would trigger a whole slew of other reactions under treaties.

    So it’s an interesting effort to walk the line and it does leave something on the table for the US to mull over if they push for an appeal (it’s not likely given the politics of all of it, but if an appellate court were less reticent on the torture front, that would have an impact on the US and Pakistan both).

    OTOH, anyone who may live near Speyer, just remember that Obama has asserted and the Dems and Holder and Koh et al have gone along with, Obama’s power to just use an assassination squad and/or drone bomber to take out grocery store while Khadr is there, and now I guess the Kagan-doctrines are going to support Obama’s power to declare Speyer a terrorism supporter and designate his courthouse as a target and …

    Of course, no one will be asking Obama about his assertions in the context of the UK and Canada et al – and it doesn’t count if he’s assassinating pregnant women and covering it up in Afghanistan, bc, well, you know, no one bothers to ask about it.

    • bmaz says:

      Canadian judges are terrists! They should be scheduled for extrajudicial termination just like Awlaki! Seriously, you cannot let teh Canucks run amok like that. I am sure that Harper would concur…….

      • bell says:

        is there any way we can get harper to sit in for khadr in the extradition? i think a lot of us canucks would be quite happy with that…

      • Mary says:

        NOt a lot about him, is there? You never know how much that might be due to spelling and other issues (Hameed, Mansour, etc.) or something a little more odd. Who/what sponsors his research fellowship and how is it that, residing in Denver as he does, he’s in such close contact with ISI operatives privy to Siddiqui’s case?

        The US used to have laws about propaganda that would be used in domestic markets. Not so much under Bush and Obama.

        The real weird crap on her is the wildly divergent stories, each being sotto voce, and all being basically ignored by the US press. Missing kids – mysteriously showing up – a pistol packing terrorist mama (maybe) – etc., and no one ever asks anything or prints much; very much like KSM’s children/wife and the lack of questions and print.

        Deafening silence.

  11. fatster says:

    Prison to [Afghanistan] parliament? Ex-Guantanamo detainee runs for office

    “Yar has set out to become the first “enemy combatant” from Guantanamo Bay to become an elected Afghan lawmaker in this fall’s legislative elections.

    “After nearly five years in America’s controversial prison . . . ”

    LINK.

    • bobschacht says:

      Prison to [Afghanistan] parliament? Ex-Guantanamo detainee runs for office

      “Yar has set out to become the first “enemy combatant” from Guantanamo Bay to become an elected Afghan lawmaker in this fall’s legislative elections…

      Does this mean Yar is now on the CIA’s hit list?

      Bob in AZ

      • fatster says:

        Mary @ 24 has the most logical answer. I wondered if the entire Parliament will have to meet in deep underground caverns somewhere, but then there’s always the “bunker busters”, sooooo. . . .

  14. Mary says:

    It means that if he’s elected, the Afghan Parliament will be a front for al-Qaeda and will have to be eliminated.

    Um, /s?

  15. Mary says:

    OT – but not by much

    http://www.rttnews.com/Content/GeneralNews.aspx?Id=1374334&SM=1

    Kidnapping Muslim Khalid el-Masri for torture? No big deal. Kidnapping Muslim Maher Arar for torture? No big deal.

    Kidnapping by Muslims w/o torture – helluva big deal life sentence.

    Philippine national who was formerly the second-in-command of the dreaded Abu Sayyaf Islamist group has pleaded guilty to the 1995 kidnapping of 16 people

    We get this reassurance:

    “Haipe is finally being held accountable for his actions,” said David Kris, the US assistant attorney general for national security

    I don’t remember Kris having anything remotely similar to say about the US torture-nappings. The DOJ pretty much exists these days to make sure there is no accountability for them or for anyone in the WH.

    It’s what came to mind when I was reading about the flap over Karzai “taking control” over the “major crimes” crew that arrested his pal. Rove, Cheney, CIA torturers, massive FISA felonies and felons, assasinations, threats to UK courts to enable torture and torture cover up, hiding torture conspirators from Italy and Spain and Germany, huge payoffs to war criminals – all directed out of our WH and acquiesced in over and over by the likes of Kris and Ashcroft and Gonzales and Comey and Goldsmith and Yoo and Philbin and Olsen and McNulty and Chertoff and Wainstein and Haynes and Thompson and …

    And now our nose is out of joint that Karzai watched and learned and decided to own his prosecutors and investigators they way they line up to be owned here in the states.

    • bobschacht says:

      I guess you must have missed the memo.
      The one about American Legal Exceptionalism: Its OK if our guys do it. Because of course they did it with pure motives to Protect and Defend the Safety of Americans. Which, after all, has become the Prime Directive, superseding and replacing the old discarded “Protect and defend the Constitution of the United States.” /s

      Bob in AZ

  16. fatster says:

    The US isn’t leaving Iraq, it’s rebranding the occupation
    Obama says withdrawal is on schedule, but renaming or outsourcing combat troops won’t give Iraqis back their country

    LINK.

    • earlofhuntingdon says:

      Exactly my reaction to Obama’s speech. We are staying in Iraq – 50,000 is hardly “leaving”. And there was a deafening silence about the 86,000 or so mercenaries who will also be “left behind”.

      NPR made great noises about their being comprised of clerks, cooks and bottle washers, some from many nationalities – without analyzing the utility or cost of that outsourcing – as well as fighting troops. Given that they cost several times what an equivalent person in the Army or Marine Corps would make, that cost, that presence, that commitment seems little changed.

      NPR also touted the military’s claim that it won’t – and hasn’t for a long time – be leading military operations, that its men and women will be left behind in an advisory capacity. That worked out well in Viet Nam, didn’t it?