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Stop putting relations with the U.S. ahead of human rights

Omar KhadrBy Maude Barlow, Alex Neve and Roch Tasse. Published in The Ottawa Citizen, June 5, 2007.

While charges against Omar Khadr were dropped yesterday on a technicality, he continues to face indefinite imprisonment as an "enemy combatant" under the U.S. Military Commissions Act.

Omar Khadr is the only child in modern history to be charged with war crimes, and yet, unlike the United Kingdom and Australia, which have successfully negotiated the release of their citizens from Guantanamo Bay, Canada continues to ignore his plight.

A U.S state department official declared last week that Mr. Khadr may be detained until the end of the "war on terror" regardless of yesterday's ruling.

Canada's public silence in the face of such blatant human-rights abuse experienced by a Canadian citizen is incomprehensible. Is it just unwillingness to go to bat for someone with a controversial family background? Or are we learning that even basic human and legal rights can be traded away for some coveted best-friend status with the United States, something that neither Britain nor Australia has been afraid to forgo in the name of justice?

Mr. Khadr is a Canadian citizen who has spent the last five years in prison at Guantanamo Bay, accused of having been responsible for the death of a U.S. soldier during fighting in Afghanistan. He was apprehended by U.S. forces in Afghanistan in 2002, when he was 15, and was only first brought before a U.S. military commission in early 2006.

The Military Commissions Act authorizes military tribunals that strip detainees of their normal constitutional rights. The U.S. Supreme Court has denied Mr. Khadr, and more than 300 other Guantanamo inmates, the right to immediately pursue habeas corpus, the right to challenge the legality of their incarceration. The court ruled instead that they must exhaust other lengthy proceedings before turning to the courts for this centuries-old fundamental relief.

In April, the U.S. Supreme Court refused to hear his appeal challenging the constitutionality of the Pentagon's war-crimes tribunal in Guantanamo Bay.

Despite the controversy surrounding Mr. Khadr and his family, who are well-known for terrorist connections and anti-western rhetoric, there is no justification for the Canadian government's failure to demand forcefully and publicly, as other U.S. allies have, that his human rights be fully protected, including the right to a fair trial. Our government's failure to make this public request, and its failure to demand that Guantanamo Bay be shut down immediately, sends a very worrying message to the rest of world about where Canada stands on human rights and international law. And it speaks volumes about the Canadian government's tendency over these past five years to fail to put human rights at the centre of its relationship with the United States.

The British government, the Bush administration's staunchest ally in Iraq, has, in speaking out against Guantanamo Bay, stated that "the continuing detention without fair trial of prisoners is unacceptable in terms of human rights. But it is also ineffective in terms of counter-terrorism." Britain has refused to have its citizens tried at Guantanamo and has negotiated to have them transferred out of the naval station. Similarly, France and Germany have also demanded that their own citizens be released from Guantanamo.

Even Australian Prime Minister John Howard, bowing to public pressure, protested the detention of David Hicks, an Australian citizen who spent five years in Guantanamo. Hicks is now serving the rest of his term in an Australian jail.

The Canadian government now stands apart in allowing one of its citizens to be tried in the type of kangaroo court that democratic countries, including Canada, have regularly and vehemently denounced elsewhere in the world.

Signed into law by President George W. Bush in October 2006, the Military Commissions Act gives U.S. authorities the power to detain indefinitely foreign terrorism suspects, including Canadians, without pressing charges. These suspects do not enjoy the same constitutional rights as U.S. citizens, and evidence obtained through torture and ill treatment, including at the hands of U.S. officials at Guantanamo Bay or other U.S.-run secret prisons around the world, may be admissible. The U.S. Supreme Court has already ruled once that the Military Commissions Act, in a not-dissimilar previous incarnation, violates the Geneva Conventions and even the U.S. Code of Military Justice. Current challenges against the act are pending.

Canadians might assume that in the wake of the Maher Arar case, our government would be much more responsive to concerns about the rights of Canadian citizens being flouted so cavalierly by U.S. officials. Sadly, the Khadr case suggests that is far from the case.

To make things worse, our governments are forging ahead with an agreement that calls for even closer co-operation between U.S. and Canadian security and intelligence services, but that fails to include human-rights obligations at its core. The Security and Prosperity Partnership, agreed to by Canada, the U.S. and Mexico in March 2005, sets Canada on a path toward the integration of our anti-terrorism laws and procedures with those in the United States. Common no-fly lists, common immigration and refugee policies, closer collaboration and information sharing, are all likely to be part of this SPP bargain, which, sadly, appears to trade basic human rights for continued access to the U.S. market.

By not insisting that Omar Khadr be treated in accordance with the full range of his basic human rights, the Canadian government is indicating that it is willing to trade away rights for the sake of making friends in Washington.

It is time for Canada to speak out about Guantanamo Bay, and advocate more forcefully on behalf of Omar Khadr. If there is one file where the U.S. government needs to be pressed by Canada to restore the protection of fundamental human rights, this is it. The silence must come to an end.

Maude Barlow is the national chairperson of the Council of Canadians, Alex Neve is secretary general for Amnesty International Canada, and Roch Tasse is co-ordinator for the International Civil Liberties Monitoring Group.