Excerptcize

One thing that I’ve that I’ve learned in my short time in the blogoshpere is that snark plays. I had hoped to avoid resorting to it as much as possible.  Sadly, my initially positive reaction to the news that Barack Obama’s Justice Department is going to prosecute Khalid Shaikh Mohammed along with four other co-conspirators in the 9/11 attacks in federal court turned to my snide statement entitling this post after further learning that Obama’s Attorney General Eric Holder had reached a decision on the path forward in the cases of five other detainees currently held at the US Army base in Guantánamo Bay, Cuba that follows a different course of action.  The AG’s just and correct decision to try the five co-conspirators federally is diminished in light of the decision to let five other detainees military tribunals move forward; amongst those five that will remain in front of the ad-hoc military tribunals is a Canadian citizen largely forgotten by his country, Omar Khadr.  Khadr remains the last citizen of a western nation still held at the Guantánamo detention facility (all news stories that I read make note of this fact so it must be an important distinction.)  Now 23 years old, he was 15 when he was initially captured by American forces in Afghanistan in July of 2002, implicated in the death of Sergeant First Class Christopher Speer.  Guantánamo has been his home ever since.

Forget for a minute that as a 15 year old and that under any judicious application of international law would be considered a child soldier and as such should be afforded a different standard of justice.  In the Orwellian Newspeak employed by the previous US administration he was deemed first an ‘enemy combatant’;  when it was realized that the thrown together ‘legal’ process devised by the Bush White House did not have any standing to prosecute him as an ‘enemy combatant’ he was quickly reclassified as an ‘unlawful enemy combatant’ in order to allow his case before the military tribunal to go forward.  There was no room for the distinction of ‘juvenile’ in this new system of justice.  To Canada’s great shame, the position of both the current Harper government as well as the Liberal governments that preceded it has been that they will not undermine our American allies justice system by seeking to return Khadr to Canada to face justice here.  The argument has been that the US is more than capable of administering justice and that it would be a waste of resources to seek Khadr’s return.  As my sarcastic aside above alluded to, all detainees in the black hole that is Guantánamo deserve a better application of justice, regardless of their country of origin.  The distinction that Khadr is the last western citizen being held at Camp X-Ray is not without merit however; it indicates that other nations where the rule of law is a bedrock principle have recognized the myopia present in the US’s misguided execution of the farce that is the ‘Global War On Terror’.  The fact that detainees would not be capable of receiving justice was clearly evident from the beginning of their incarceration; the mere act of holding these prisoners in Guantánamo itself being an affront to justice.  All other western nations with citizens being held there were able to see this and to their credit all successfully advocated for the release of those prisoners back to their country of origin; only Canada has failed in the advocacy of it’s own citizens.

For more than 6 years the manner that the DOJ under Bush pursued prosecutions against detainees made the Canadian governments assertions that the US was capable of administering justice properly almost laughable.  Were it not for the fact that we are discussing people’s lives, the potential of them being detained for the remainder of their lives without facing a tried and tested court system and being held in a no-mans land location where the Red Cross has categorical demonstrated that torture occurred on a systematic basis, it would be laughable.  But wait! Barack Obama and his new AG are here; they are going to restore America’s standing in the world.  The rule of law will once again reign supreme.  They will make Canada’s misguided faith that justice would be administered fairly by the US turn into sage wisdom that with time our American friends would once again be viewed by the world as righteous arbiters of justice.  To their credit, Obama along with Holder have taken positive steps to removing the tarnish from the US; as with many moves by the administration though they have come as half steps with many caveats along the way.  To move to prosecuting the conspirators behind the 9/11 attacks in federal court is a commendable change; as Glenn Greenwald says

“An open criminal trial under our standard system of justice, accompanied by basic precepts of due process, is exactly the just and smart means for punishing those responsible for terrorist attacks.  It announces to the world, including the Muslim world, that we have enough faith in our rules of justice to apply them equally to everyone, including to Muslim radicals accused of one of the worst crimes in American history. Numerous family members of the 9/11 victims have long argued that real trials for the accused perpetrators are vital to providing real justice for what was done — I expect to have an interview later today with one of those family members — and holding the trial in New York, the place where 3,000 Americans died, provides particularly compelling symbolism.  So this component of the Obama administration’s decision, standing alone, is praiseworthy indeed.” (emphasis mine)

 Unfortunately the decision to try some of these criminals in federal court does not stand alone.  While some will be afforded the rights that go with receiving a fair trial, others will continue to be prosecuted under the military tribunals initially set up by the Bush administration. Greenwald again:

“So what we have here is not an announcement that all terrorism suspects are entitled to real trials in a real American court.  Instead, what we have is a multi-tiered justice system, where only certain individuals are entitled to real trials:  namely, those whom the Government is convinced ahead of time it can convict.  Others for whom conviction is less certain will be accorded lesser due process:  put in military commissions, to which most leading Democrats vehemently objected when created under Bush.  Presumably, others still — those who the Government believes cannot be convicted in either forum, will simply be held indefinitely with no charges, a power the administration recently announced it intends to preserve based on the same theories used by Bush/Cheney to claim that power.

 A system of justice which accords you varying levels of due process based on the certainty that you’ll get just enough to be convicted isn’t a justice system at all.  It’s a rigged game of show trials.”

 In light of this one would hope the Canadian government would drop their ridiculous efforts that have now reached to the Supreme Court; not just neglect at even attempting to return Khadr home, but to actively engage in keeping him incarcerated in Guantánamo and before the US military tribunal that even US military prosecutors themselves have described as “arbitrary.”  Alas, at least so far, there is no such luck.  In April of this year Justice James O’Reilly ruled in favour of Khadr’s charter challenge and indicated that the Canadian government was responsible for attempting to repatriate the Canadian citizen in order to “comply with a principle of fundamental justice.”  The government appealed this decision; in August the Federal Court of Appeals upheld Justice O’Reilly ruling.  Eager to show their complete and utter contempt for this Canadian citizen who has been convicted of no crime, the government has now appealed to the Supreme Court and those proceedings continued on Friday as Khadr learned he was not one of the lucky ones chosen to be prosecuted in front of a real court.

President Obama has taken many positive steps forward on the long road to restoring the US to a place of respect in the worlds eyes.  To often however the changes he has brought have provided good surface optics yet lacked substantive depth.  The decision to close Guantánamo is the correct one and was most welcome; the continuation of many of the policies that made the island prison such a reprehensible place at the prison at the Bagram Airfield completely undercut the Guantánamo position.  The decision to try some detainees federally but others in the arbitrary tribunals is more of the same and not change to believe in.  The Canadian governments position to continue to seek the ongoing imprisonment of Khadr is simply disgraceful.

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