Between the Pundits: "Moral obligations at best"

Not surprisingly, yesterday’s report from the Foreign Affairs committee, recommending that the government demand Omar Khadr’s repatriation to face charges under Canadian law, features a written dissent from the government. It complains that the report “downplays Mr. Khadr’s alleged crimes and ties to terrorism while framing the government’s failure to repatriate him as a violation of Canadian laws,” and that it exaggerates the feasibility of trying him under Canadian law and restricting his movements, associations and activities once he returns. As position papers go, it’s not particularly substantial or groundbreaking—its basic message is “that a balance [must] be struck between individual rights and national security considerations.” But given that it’s not Peter Van Loan accusing Stéphane Dion of making sweet love to Mullah Omar, it’s pretty much the best we have to go on. So, a few thoughts:

The dissent raises the “child soldier” issue only to note that “there is nothing in the optional protocol on the involvement of children in armed conflict, customary international law, Canadian law, or U.S. federal law that bars the prosecution of a minor for war crimes.” This is true, though, since the government brought it up, it’s worth noting the optional protocol also demands that child soldiers be offered “all appropriate assistance for their physical and psychological recovery and their social reintegration.” Which brings us to this: “If returned to Canada, the government believes Mr. Khadr would have no other recourse than to reestablish his ties with his family, a group of suspected terrorist-sympathizers espousing an extremists [sic] ideology.”

This is indeed a legitimate concern—which Khadr’s lawyers are trying to address. But sadly, this is the sort of thing that happens when your father takes you to Afghanistan at age 10, moves you into Osama bin Laden’s compound at age 12, enrolls you in terrorist training and then dies in a firefight with invading infidels. Eventually you find yourself alone in a mud hut besieged by American soldiers with two bullet holes in your chest, praying for death. Beyond outfitting Omar in a boy scout uniform with a slingshot in the back pocket, it’s difficult to imagine what more Ahmed Said Khadr could have done to make his son eligible for the full slate of child soldier protections. If the government simply doesn’t believe in the concept of child soldiers, it should probably set about un-ratifying the protocol. In the meantime, given its justifiable concerns over the remaining Khadrs, perhaps it could explain why it (and its hideous Liberal forbears, of course) has allowed Karim Khadr—who was paralyzed at age 14 in the same 2003 firefight that killed his father—to live with his mother in Toronto for the last four years.

The government is also very perplexed by the short shrift the committee gave to Washington lawyer Howard Anglin, the witness who argued (in the government’s words) “that Canada’s obligations to Omar Khadr are moral obligations at best”—phew!—and that “leaving his fate in the hands of the United States should not linger negatively in the moral conscious [sic] of the nation.” This is particularly ironic in light of the government’s dismissal of Craig Forcese’s University of Ottawa law students, who exhaustively studied and assessed the options for charging Khadr under Canadian law, as “well-intentioned, yet inexperienced.”

Anglin’s name rattled around in my brain for a few days at the time of his testimony until it clicked: he wrote a really excellent food-and-drink column for the McGill Tribune‘s A&E section, of which I was co-editor. In 1998. He struck me as a really swell guy, and he seems to be building a successful practice “counsel[ling] telecommunications, insurance and other clients regarding arbitrations and appellate litigation in state and federal courts and in connection with matters before federal agencies.” (He also writes articles with Alykhan Velshi, who, as Colleague O’Malley noted last month, works in Jason Kenney’s office.) But a legal titan he is not. In fact, though the Kenney connection at least explains how he came to the government’s attention, some might say that calling an unknown quantity such as Anglin before the committee to counterbalance a Canada Day Parade of distinguished voices who supported Khadr’s repatriation was kind of… pathetic. (No offence intended, Howard, if I can still call you that. Hope you enjoyed Ottawa.)

Finally, and perhaps most curiously, the government argues that “Mr. Khadr could become a litmus test on Canada’s commitment to impeding global terrorism.” Jeez, even after all those years and flag-draped coffins in Afghanistan, eh? It’s certainly possible the Americans would prefer Khadr stick around in Cuba. As Lt. Cmdr. William Kuebler, Khadr’s fabulously pugnacious military lawyer, told a House of Commons committee last month, prosecutors once saw Khadr’s case—”the fact that he had allegedly killed a soldier, that there was a real victim, that there was a family, and so forth”—as one on which they could pin the validity of the whole military tribunal process. But that was before those doofuses at the US Supreme Court got their grubby little freedom-hating paws into the mix, reducing Guantanamo’s credibility to crisis levels. Australia repatriated its detainees, as did Britain, and George W. Bush still takes calls from their prime ministers’ offices as far as we know. So what’s the difference? Is it because we didn’t go to Iraq?

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