‘You are free to go,’ judge tells Omar Khadr

The federal government loses bid to block former Guantanamo Bay prisoner from being released on bail

Omar Khadr walks out of court in Edmonton, Thursday, May 7, 2015 in a photo tweeted by his lawyer Nate Whitling. (THE CANADIAN PRESS/HO-Twitter-@NWhitling)

Omar Khadr walks out of court in Edmonton, Thursday, May 7, 2015 in a photo tweeted by his lawyer Nate Whitling. (THE CANADIAN PRESS/HO-Twitter-@NWhitling)

Tonight—for the first time in nearly 13 years—Omar Khadr will not sleep in a jail cell. Alberta’s highest court has freed the former Guantánamo Bay prisoner, rejecting the federal government’s last-ditch attempt to block his early release on bail.

“Mr. Khadr, you are free to go,” Justice Myra Bielby told a packed Edmonton courtroom this morning, triggering applause from longtime supporters sitting in the gallery. Wearing jeans and a black golf shirt, Khadr smiled as the decision came down, then shook hands with his longtime lawyer, Dennis Edney. “We’ve done it,” Edney told him.

Now 28, Khadr will be released at an “undisclosed location,” the judge said. As laid out in his lengthy bail conditions, he must live with Edney, his lawyer for more than a decade, and wear a tracking bracelet that confirms his whereabouts at all time. He will also be subject to a 10 p.m. curfew and can only have supervised access to the Internet. If he speaks to any members of his notorious family, the conversations must be done over the phone or via video conference, in English, and under supervision.

Outside the courthouse, Edney told a crush of television cameras that Khadr should arrive at his west-end home in time for supper, and that his client is anxious to prove, after all these years, he poses absolutely no threat to anyone. “Today is a wonderful day for justice,” he said. “It’s a start.”

Khadr will hold his own brief press conference, either tonight or Friday, Edney said. Shortly after noon, Khadr’s other lawyer, Nate Whitling, tweeted a photo of his client leaving the courthouse. “#omarkhadr walks free,” he wrote.

In a prepared statement, Public Safety Minister Steven Blaney said the Harper government is “disappointed” with the ruling and regrets “that a convicted terrorist has been allowed back into Canadian society without having served his full sentence.” He also said that by Khadr’s “own admission, as reported in the media, his ideology has not changed.” It’s not clear which media reports he’s referencing.

Khadr’s polarizing case has triggered intense (sometimes irrational) debate, with much speculation focused on who he is today. To many Canadians, he is still the boy in that ubiquitous photo, unseen and unheard. A forensic psychiatrist who examined Khadr in 2010 described him as “al-Qaeda royalty,” while a U.S. military psychiatrist said he showed signs of being superficially charming and manipulative. But from behind bars, Khadr has long expressed his desire for a “second chance,” the opportunity to show fellow citizens he is not the dangerous, committed jihadist many believe him to be.

Declaring himself “ready” for life on the outside world, he told a prison psychologist as recently as February that he now accepts responsibility for the grenade attack that killed a U.S. soldier in 2002, that he renounces the violent al-Qaeda ideology embraced by his late father, and that he’s anxious for people to get “to know the new me.” He also said he blames himself for the years he’s languished behind bars (“I got myself into this s–t,” he said) but holds out hope people will judge him on the man he is now, not the naïve, uneducated teenager he was.

“I’ve screwed up in the past and I’m worried it will haunt me,” Khadr told the psychologist, adding he wants nothing to do with “terrorism nonsense.” “People will think I’m the same person as I was 12 or 13 years ago … However, if I carry myself with dignity and respect, people will respect me.”

The Toronto-born son of Ahmed Said Khadr, a senior al-Qaeda associate, Khadr was 15 years old when his father dropped him off with a cell of Islamist fighters in post-9/11 Afghanistan. Shot and captured during a deadly firefight with U.S. troops on July 27, 2002, the teenager later confessed to throwing a grenade that killed an American Delta Force commando, Sgt. 1st Class Christopher Speer.

He spent the next decade locked at the notorious detention camp at Guantánamo Bay, Cuba, where he claims to have endured repeated bouts of torture, including threats of rape, extreme isolation, and being shackled in painful stress positions. Once, he says, guards bolted his hands and feet to a floor for so long that he urinated on himself—then used him as a “human mop” to clean up the mess.

Twice, Canada’s Supreme Court has ruled that the federal government violated Khadr’s Charter rights by dispatching spies and bureaucrats to question him in the early months of his incarceration, knowing full well he had no access to a lawyer at Gitmo and no ability to challenge his detention.

During one visit, a Foreign Affairs official was specifically told that Khadr had been subjected to a sleep deprivation technique known as the “frequent-flyer program,” in which he was moved him from cell to cell to cell every three hours for 21 days “to make him more amenable and willing to talk.” The Canadian official questioned him anyway—which “amounted to knowing participation in Mr. Khadr’s mistreatment,” the Supreme Court ruled.

In 2010, Khadr pleaded guilty at a U.S. military commission to five “war crimes,” including the battlefield murder of Sgt. Speer. The plea deal came with an eight-year sentence, and a promise that he could apply to serve the bulk of his time in a Canadian prison until his sentence expires in October 2018. Flown home in 2012, he was most recently an inmate at Bowden Institution, a medium-security prison two hours from his Edmonton lawyers.

Once in Canada, Khadr launched an appeal of his convictions at a special court in Virginia, arguing, among other things, that the offences he was charged with did not exist on the day of the battle—and that if he did throw a grenade, it was a legitimate act of war, not a war crime. His lawyers also claim that Khadr was so horrifically abused—as a teenager—that the U.S. forfeited the right to prosecute him.

“The government’s systematic and calculated mistreatment of Khadr over the course of a decade should and does shock even the most calloused conscience,” their appeal brief reads. “If this does not constitute outrageous government conduct, then the words have lost their meaning.”

With that appeal pending, Khadr’s legal team attempted what appeared to be a Hail Mary: They asked an Edmonton judge to release their client on bail while the U.S. case inched through the system. Every Canadian prisoner with an active appeal has the right to seek interim release, they argued, before presenting Justice June Ross with a long list of community members willing to help Khadr readjust to life in the outside world.

The bail request was unprecedented. Canadians convicted of crimes in other countries are allowed to apply to serve their sentences on home soil, a procedure governed by numerous treaties and the International Transfer of Offenders Act (ITOA). But according to the act, a prisoner with a pending appeal will not even be considered for approval—so by extension, there is no provision in the Act to deal with a bail application pending such an appeal. They simply don’t happen. Khadr was the first to ever be in a position to ask.

Federal lawyers argued that the judge had no jurisdiction to even consider bail, let alone grant it. “If a person wants to appeal their sentence they stay in that country where they are convicted and see that process through,” said Bruce Hughson, acting for the Justice Department. “What Mr. Khadr is effectively trying to do is take the best of both worlds: a transfer to Canada to serve the balance of the sentence, but get out on bail pending an appeal in the United States. And that, with all due respect, is not what was intended by the act.”

Justice Ross disagreed, ruling on April 24 that the right to seek bail pending any appeal is a “principle of fundamental justice” protected by the Charter. Noting Khadr’s long “track record as a model prisoner, and a release plan supported by educators, mental health professional and his lawyers,” she agreed to let him out.

In custody for nearly 4,700 days and nights, Khadr’s freedom suddenly seemed imminent.

But while fellow citizens were still digesting the news alerts, Stephen Harper’s Conservatives announced the inevitable: that Ottawa was “disappointed” with the ruling, and planned to appeal. “Omar Ahmed Khadr pleaded guilty to heinous crimes,” Blaney said, repeating the government’s longstanding media lines on the file. “We have vigorously defended against any attempt to lessen his punishment for these crimes.”

The government didn’t just ask for leave to appeal; it sought an emergency hearing at Alberta’s highest court, an 11th-hour attempt to keep Khadr behind bars until the full appeal is heard, a process that wouldn’t begin until at least September. Simply put, the government claimed that springing Khadr with the bail legalities still unsettled would cause “irreparable harm” to the international prison transfer system, to the point that some foreign governments “would no longer have faith in what” Ottawa is doing and “be much less likely to agree to transfer Canadian offenders to Canada.”

Khadr’s lawyers countered that his circumstances are unique—he didn’t technically launch his U.S. Guantanamo court review; it was done automatically—and that not a single other prisoner would benefit by the precedent he would set. “No floodgates will open,” Whitling said.

Bielby was originally expected to issue a ruling on Tuesday, but she needed a 48-hour extension to digest the arguments. On Thursday morning, she ultimately sided with Khadr, concluding it’s pure speculation that other prisoners will try to follow his lead and seek bail, or that Canada’s treaty partners may now think twice about repatriating citizens imprisoned in their jails. “Khadr’s case is, to say the least, unusual,” she said. “There is a first time for everything.”

Although he’s now free on bail, the government’s appeal will continue. If Ottawa is successful, Khadr would need to surrender himself and return to prison. “We know that this is not the end of the road,” Whitling said. “But we’re glad for this step forward.”

Whitling and Edney both concede that their client’s transition from prison will not be easy. (As Khadr himself told the psychologist: “I don’t think it will be a walk in the park.”) But they are confident he will successfully transition from a “child soldier” to a peaceful, productive member of society. “We think it’s high time that he be released, and whatever anybody might think of Omar Khadr, he has now served his time,” Whitling said. “He’s going to take things one step at a time.”

Edney was more blunt, accusing Prime Minister Stephen Harper of being obsessed with exploiting Khadr as a political pawn. “He wants to show he’s tough on crime and who does he pick on?” Edney said. “A 15-year-old boy who was picked up and put in a hell hole of Guantánamo.

“When the Harper government says he committed a heinous crime, what it doesn’t say is that we were the only Western country that didn’t request one of its detainees to return home,” he continued. “We left a child—a Canadian child—in Guantánamo Bay to suffer torture. And not only did we leave a child to suffer torture, we, Canada, participated in his torture.”

Khadr is suing the federal government for $20 million, claiming Ottawa conspired with the United States to keep him at Guantánamo.

Tabitha Speer, Sgt. Speer’s widow, has declined to comment on the ongoing bail proceedings. “Chris was a loving husband, father and servant to his country,” she said in a recently released statement. “He is remembered fondly and is still a very prominent part of our lives. Our family appreciates the media and public respecting our privacy.” Speer had two young children, a son and a daughter, when he was killed. They are now teenagers.

In his statement, Blaney said “our thoughts and prayers are with the family of Sgt. Christopher Speer during this difficult time.”


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