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The Khadr Thread

jmt18325

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George Wallace said:
From what I have seen; if it is in their interests then yes.  If it is not in their interests, then No.

You don't get to pick if it applies or not.  It applies to Quebec - end of story.
 

Brad Sallows

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Maybe there is a person or two out there outraged that the settlement was negotiated in private, but even a muddled reading of a number of published opinion pieces today makes it clear that it is the means by which the settlement came to light (ie. a conveniently timed leak) that has raised so many eyebrows.
 

George Wallace

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jmt18325 said:
You don't get to pick if it applies or not.  It applies to Quebec - end of story.

REALLY?

From what I have seen if it suits Quebec, then they agree with the Constitution that they did not sign when it was repatriated.  If it doesn't suit Quebec, then they use the "I did not sign" excuse.  Funny that.
 

Scott

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This thread is about Khadr.

Let's keep it about Khadr.

Not Quebec, or the other circular arguments.

Scott
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Loachman

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http://www.torontosun.com/2017/07/11/liberals-miscalculated-on-khadr-settlement

Liberals miscalculated on Khadr settlement 

By Lorne Gunter , Edmonton Sun 

First posted:  Tuesday, July 11, 2017 06:17 PM EDT  | Updated:  Tuesday, July 11, 2017 06:29 PM EDT

Get ready to write a lot of cheques.

According to Global Affairs Canada, there are over 1,400 Canadians imprisoned in other countries, many victims of mistreatment by foreign governments.

If the Trudeau Liberals feel the need to compensate every one of them as they have war criminal Omar Khadr, Canadian taxpayers could be on the hook for $15 billion.

Just to handle all the paperwork, they’ll probably need a new ministry - Apologies Canada.

Of course, I’m being facetious.

The Trudeau government isn’t going to compensate most (any?) of the others as it has compensated Khadr.

They aren’t even trying very hard to get most of the others released.

So why the Trudeauites’ fixation with Khadr?

First, “progressives” love nothing more than to show off their political correctness, again and again.

In Khadr, the Liberals see the chance to show they are so tolerant they are even willing to kowtow to a Muslim with a terrorism conviction.

How very open-minded (and how out-of-touch with ordinary Canadians).

The Khadr case also permits them to assert their moral superiority over the Americans, not to mention poking the former Harper government in the eye.

But mostly, I think Prime Minister Justin Trudeau’s brains trust truly believed the $10.5 million payout to Khadr would be politically popular, that most Canadians would share their view that here was a poor, young man, an unwitting participant in the Afghanistan war, and a victim of America’s post-9/11 pre-occupation with homeland security.

They believed we would all line up behind the notion that Khadr’s settlement proves Canada is a tolerant, compassionate country.

(It’s the same thinking behind their rush to admit Syrian refugees without proper security screening and to leave our borders open to anyone willing to sneak across.)

However, polls show even Liberal voters strongly oppose this settlement.

Seventy-one per cent of Canadians surveyed oppose Khadr’s cash prize, according to Angus Reid polling, including 61% of Liberals. Just 29% of Canadians approve.

In this way, the Khadr case resembles that of U.S. infantryman Bowe Bergdahl.

After allegedly deserting his post in 2009, Bergdahl was captured by the Taliban and held for five years in Afghanistan and Pakistan.

In 2014, then U.S. president Barack Obama traded five senior terrorist prisoners from Guantanamo Bay for Bergdahl.

He and his aides clearly believed bringing home an American PoW would make the president a hero.

Instead, they were taken aback by the outrage of citizens, including Democrats, over trading terrorists for an alleged deserter.

Justin Trudeau and his minions were likely shocked, too, that their Khadr settlement was widely unpopular.

It is so unfair compared to others’ treatment.

The Canadian government dismissed Capt. Robert Semrau from the army in 2010 for shooting a horribly wounded insurgent in Afghanistan, to put the enemy out of his obvious misery. Semrau’s conduct was labelled “disgraceful.”

Khadr confessed to killing a U.S. special forces medic (a confession he later disavowed), and rather than brand his actions as “disgraceful,” the Trudeau government gives him a $10.5-million bonus.

Most Canadians in jail abroad are there for drug or other criminal offences, but Amnesty International says several are political prisoners, subjected to torture.

Most of those being tortured were arrested for being champions of democracy or human rights, or because they were Christian missionaries.

They were not fighters for al-Qaida, as Khadr was.

The Trudeau government has its sensibilities and priorities screwed on backwards.
 

jmt18325

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George Wallace said:
REALLY?

From what I have seen if it suits Quebec, then they agree with the Constitution that they did not sign when it was repatriated.  If it doesn't suit Quebec, then they use the "I did not sign" excuse.  Funny that.

The courts don't care about that.
 

Loachman

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http://www.torontosun.com/2017/07/12/liberals-could-have-defended-khadr-case

Liberals could have defended Khadr case 

By Lorrie Goldstein, Toronto Sun 

First posted:  Wednesday, July 12, 2017 05:07 PM EDT  | Updated:  Wednesday, July 12, 2017 05:16 PM EDT 

The Trudeau Liberals insist they had little choice but to settle with Omar Khadr for $10.5 million.

This in light of Khadr’s $20 million civil suit against them and because the Supreme Court found in 2010 that the Jean Chretien and Paul Martin Liberal governments violated Khadr’s Charter rights to life, liberty and security of the person in 2003 and 2004.

That was when they sent CSIS and foreign affairs interrogators to question Khadr in Guantanamo, and shared the information they obtained with his American captors, knowing he had been sleep deprived.

The Supreme Court ruled subjecting Khadr to this as a youth, while questioning him without access to legal counsel, violated his rights.

None of that, however, means the Trudeau government couldn’t have defended the Khadr suit, nor that it would automatically have had to pay $10.5 million or more.

A veteran lawyer I spoke with said the amount awarded by the court could have been much less, given that the Liberal government could have mounted a credible defence, based on several factors.

First, the 2010 court decision did not require the federal government to try and repatriate Khadr, who was nonetheless repatriated just two years later, under the Stephen Harper government.

Second, plaintiffs routinely ask for much more than they expect to be awarded if they win, so there was nothing written in stone about Khadr’s $20 million claim.

Third, while it’s likely (though not automatic) the government would have been found liable for damages, given the 2010 court ruling, it could have argued those damages should be well short of $10.5 million.

For example, by noting the major violator of Khadr’s rights was the U.S., not Canada, and that Canada isn’t responsible for what the U.S. did.

Then there’s the issue of to what extent Khadr was the author of his own misfortune, known legally as volenti non fit injuria,

Here, the lawyer said, the Trudeau government could have argued Khadr caused the situation he was in - by participating in a firefight against U.S. soldiers in Afghanistan in 2002, that led to the death of Sgt. Christopher Speer and the blinding of Sgt. Layne Morris in one eye.

In a car accident, for example, damages to a plaintiff can be eliminated or reduced if it’s found he was speeding and/or not wearing a seat belt.

In the Khadr case, the court would have had to decide to what extent Khadr acted under his own free will at 15 years of age, and to what extent he was under the influence of his terrorist father, Ahmed Said Khadr, who sent him to terrorist training camps operated by the Taliban and Osama bin Laden.

Given these arguments, the lawyer said, the court could have awarded damages substantially less than $10.5 million, or the $11.5 million, with an apology, that Maher Arar settled for in 2007 with the Harper government.

That was another case, caused by the Chretien government, in which Arar, who was innocent, was deported by the Americans to Syria in 2002 and tortured, after the RCMP gave the U.S. false information about his supposed ties to terrorists.

In other words, the Chretien government’s actions were far worse than with Khadr.

Simply put, the Trudeau government, which claimed the Khadr case has already cost almost $5 million - which the lawyer said sounds extraordinarily high - could have defended itself had it wanted to. It didn’t.
 

MARS

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jollyjacktar said:
No boo hooing or pity partying.

...which has nothing whatsofuckingever to do with whether an opinion piece is 'good' or not...just saying
 

Loachman

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http://www.nugget.ca/2017/07/11/the-government-is-rewarding-terrorists-and-punishing-vets

'The government is rewarding terrorists and punishing vets'

By PJ WILSON, The Nugget

Tuesday, July 11, 2017 10:50:22 EDT PM

The federal government’s decision to compensate “an admitted terrorist” is “a slap in the face” to any Canadian who served in Afghanistan.

“They are glorifying a self-confirmed terrorist,” Mike McNeil says.

McNeil is no longer in the Canadian Armed Forces. He took a medical release in 2014, five years after he drove over a Taliban improvised explosive device (IED) that left him with traumatic brain injury and possible spinal problems.

“I was 30 days in and did another 186 days,” McNeil, a North Bay native, says.

It was early afternoon Nov 14, 2009. The time and date are written on a piece of metal – part of a brake – blown off the one-man vehicle he drove to find IEDs and mines.

At about 1 p.m. that day, McNeil, then a member of the 4 Combat Engineer Support Regiment from CFB Gagetown, was leading a convoy.

His vehicle was towing a six-ton trailer that was supposed to find any explosives his vehicle failed to detonate.

The blast tore his vehicle to pieces and left a three-metre crater in the Afghanistan road. He was knocked unconscious, on the other side of the crater from the rest of the convoy.

It took them about half an hour to reach him as they searched for any other explosives that might have been there.

When they reached him, McNeil managed to get up on the wreckage of his vehicle for a “hero shot” before he was choppered back to the base hospital.

The explosive McNeil drove over was similar to those made by Khadr, a Canadian who was awarded a reported $10.5 million Friday by the federal government after he was held by the United States at the Guantanamo Bay detention camp in Cuba.

In announcing the deal, the government claimed it had “no choice” but to settle, pointing out the Supreme Court ruled in 2010 the government was complicit in the violation of Khadr’s rights as a citizen, when he was visited in Guantanamo Bay prison by CSIS agents in 2003 and 2004.

The government and the Supreme Court argued that whatever Khadr may or may not have done on the battlefield in Afghanistan was irrelevant to the settlement. (He pleaded guilty to five war crimes, including throwing the grenade that killed U.S. special forces Sgt. Christopher Speer in 2002. He is currently appealing the conviction.)

Expert opinion is united that the government would eventually have lost in court.

Seven out of 10 Canadians, however, say the government made the wrong call by settling out of court, according to an online survey conducted by the Angus Reid Institute over the weekend.

McNeil agrees.

He’s bitter that Khadr, who was wounded and captured by U.S. forces when he was 15, is being “rewarded” for his actions.

McNeil will receive $331,000, which was “reverse indexed” down from $360,000.

The federal government, he says, “is going around telling everyone they are giving vets all this money. But this is all I am going to get from the government for the rest of my life.

“And they are giving a terrorist – there are videos of him making the exact same IEDs I drove over – our government is giving him $10.5 million.

“The government is rewarding terrorists and punishing vets.”

The explosion changed McNeil, he says. Numerous specialists – psychologists, neurologists, neuro-psychologists – have examined him and have come away with the same diagnosis.

Traumatic brain injury.

One of the most noticeable effects is the stutter he now battles as he talks.

“The words get scrambled between my brain and my mouth,” he says.

“I couldn’t walk. I was stuttering – I’d never stuttered before.”

McNeil was put on light duty for eight days before he was back with his unit, searching for and clearing mines.

And while the members of his unit “had my back all the way,” it’s not something he can say for the Canadian government.

McNeil says he fought the Taliban for 216 days. But he’s been fighting the Canadian government for 2,700.

“I’m tired of fighting,” the onetime corporal in the Canadian army says.

He received the Canadian Forces Sacrifice Medal in 2012 – awarded to Canadian military personnel “wounded or killed under honourable circumstances as a direct result of a hostile action or actions intended for a hostile force.”

“It’s great, that,” he says. “But you don’t get any benefits for that.”

McNeil was medically released from the military March 12, 2014, just days shy of nine years in uniform.

“I left on good terms,” he says. “I was a good soldier. If they asked me to do something, I did it. I might have been pissed off about it, but I did it.”

There was almost no acknowledgement from the government that he had suffered any injury in the explosion. He filed claim after claim, but each was denied.

“My lawyer sat down with the VA lawyer, and they threatened to cut my benefits if I kept fighting,” he says. “If I kept appealing, my benefits would be reduced.”

Finally, earlier this year, Veterans Affairs acknowledged McNeil had suffered serious injury in the blast and approved the settlement - $30,000 less than he had been led to expect.

“I’m done begging the government for things they promised,” he says.

McNeil says he visited Nipissing-Timiskaming MP Anthony Rota’s office with his paperwork. Staff there made some photocopies of his information, but it was only a small portion of the papers he had with him.

In an e-mail, Rota told The Nugget "We can't comment on any one case due to confidentiality. We continue to work diligently to get our citizens the best outcome possible."

With files from John Ivison, Postmedia
 
J

jollyjacktar

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MARS said:
...which has nothing whatsofuckingever to do with whether an opinion piece is 'good' or not...just saying

It does to me....just saying back at you
 

Humphrey Bogart

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This will be my final post in this thread, it's a blog article written by Craig Forcese, B.A., M.A., L.L.B., L.L.M. Who is a professor of law at the University of Ottawa.

If you want to actually understand the legal issues surrounding this case, read it.  Continue to be mad about it if you wish but understand this is WAY BIGGER than petty partisan politics.

A Once & Final Parsing of the Legal Context for the Khadr Settlement
Tuesday, July 11, 2017 at 10:49AM
craigforcese in Canada, General Commentary, khadr, settlement

I have a few moments this morning for a “once more unto the breach” post on the Khadr settlement.  Please read my prior one, because I will try to make a few other points in this one, given how the discussion has evolved.  (This will be my last foray, hopefully for a long time, as I need to finish writing my book for my anticipated audience of 4.)

Disclosure Statement

In the interest of disclosure, I provided minor assistance to Khadr’s US JAG defence lawyer a decade ago, and was co-counsel in the amicus brief by law professors and parliamentarians in the US Supreme Court case of Boumediene, which had a Khadr angle. I also supervised law student directed research projects on the Khadr matter.

These were small involvements. I don't raise them because of some excessive sense of importance, but because people will want to know where I come from.

I am mad as hell and so should you be

I may be mad for different reasons than you are, but here are my reasons:

1. As an excellent team of law students discussed here in detail, Khadr could have been (and, in my view, should have been) Canada’s first modern terrorism case. By summer 2002, Canada had a whole raft of new, shiny, extraterritorial terror offences. They were available, and would not (all) have required adjudicating who did what in the 2002 firefight: no need to debate grenades. Participating with Al Qaeda would have been enough, and the evidence of that would have been straightforward and required no extreme detention, maltreatment, or doubtful confession.  Nor would we have had to resort to made-up retroactive crimes, like in the US military commission process, or a patently flawed commission structure.  We could have used real courts, with real judges, adjudicating real crimes, using real evidence.

Further addendum: no, the fact that Khadr was in the midst of an armed conflict would not have immunized him. Under the laws of armed conflict, he would have been an unprivileged belligerent, disentitled to what is known as “combatant’s immunity”.  Basically, he was a civilian who fought.  That can be treated as unlawful (although is not in itself a war crime), whether done in Afghanistan for AQ or in Syria for ISIS.

As a prosecutor, I would not have sought treason charges for one reason in particular: our treason crime is so antiquated that it hasn’t been used since the 1950s, and would be really complicated.  And I wouldn’t need it, because of the terror charges. (In recent cases, we have not used treason.  See Ribic.)

2. The youth offender issue was one our system could grapple with, and often does.  This didn’t need to be a overstated debate about a “child soldier”.  And any other extenuating or mitigating issues could have been part of sentencing.

3. It was past negligent for Canada to not only be the only Western country that left one of its nationals at Guantanamo, but then send CSIS interrogators to interrogate Khadr (softened up by the Americans through maltreatment that was probably torture, and if not torture, the equally unlawful cruel, inhuman or degrading treatment).

4. And then to top it off: Sharing the fruits of that interrogation for use in a military commission system the United States Supreme Court itself concluded was unlawful, compounded the Canadian delinquency.  It also meant that Canada was contributorily tied to the whole Guantanamo mess, running up the meter on Canada’s moral and legal culpability.

5. And then to have the gall to claim that we had no choice, because our legal system could not have dealt with Khadr (which, if true, will be tremendously happy news to Canadians now fighting for ISIS.  Fortunately, it was never true). The other doubtful argument: the Americans would be angry at us if we asked for Khadr back.  By the end of this saga, the Americans really wanted us to take Khadr back.  There are even Hilary Clinton emails.

In sum, the Government of Canada screwed this up. Massively.  And now a criminal trial is impossible because of tainted evidence, maltreatment, double jeopardy (from the US process that may, ironically, end up overturned on appeal in DC because of all the retroactive crimes).  Nor would a trial serve any purpose: even with a conviction, hard time in Guantanamo (in pre-trial detention, no less) exceeds anything a Canadian court would hand out.

What about Khadr’s lawsuit: Shouldn’t the government have fought it?

It did. Since 2004. Here’s the Federal Court docket. It got to the point that the government’s legal tactics were costing it. For instance, in resisting Khadr’s amendment of his statement of claim, the government skated past the point of credibility. And here’s what the judge ordered in 2014:

The Plaintiff [Khadr] was successful on nearly every aspect of this motion. Only a handful of the Defendant’s [Canada’s] myriad arguments had any merit. By opposing this motion, the Defendant considerably increased the costs and delay of this complex action, which has occupied this Court for ten years now. Consequently, I exercise my discretion to award costs in favour of the Plaintiff, pursuant to Rules 400 and 401

In the end, Khadr was suing Canada for a lot of things, not just the Charter breaches everyone is talking about:

$20,000,000 in compensatory damages alleging negligence, negligent investigation, conspiracy with the United States in the arbitrary detention, torture, cruel, inhuman and degrading treatment, false imprisonment, intentional infliction of mental distress and assault and battery of the Plaintiff, failure to comply with domestic and international obligations with regard to treatment while confined, and misfeasance in public office. In the alternative, he sought an award of damages pursuant to s 24(1) of the Charter and a declaration that the Defendant violated the Plaintiff’s ss 7, 8, 9, 10, 12 and 15 Charter rights.

Would he have won? On the Charter breaches, the Supreme Court of Canada had already concluded (twice) that Canada had breached Khadr’s Charter s.7 rights through the CSIS interrogation and sharing of resulting information with the Americans.  The issue of what damages should be paid for that had not been decided – it was not before the Supreme Court and that was what the Federal Court lawsuit was about.  But the existence of the constitutional breach was probably governed by “issue estoppel” – it had already been decided by the Supreme Court, and so that legal question was decided (although, per its habit, the government would have likely contested this, racking up more costs). 

I don’t underestimate the complexities of the Ward case and its standard for damages in Charter cases. But basically, the Khadr case was probably mostly just a question of quantifying the damages.

On the other causes of action, well, there was a good chance for some of them -- although suing government for negligence can be tough.  And some of them would have required some really interesting (and uncomfortable evidence).  Which brings me to…

But no one really can say how litigation should unfold.  So perhaps the government should have fought it.  Why not?

Well, if I had been advising the government, I would have urged them to settle.  Here’s why.  First, don’t underestimate the cost to the taxpayer of fighting:

1. Maybe if you do not care about sharp legal practice, you can wear the plaintiff down through stalling tactics. Let injustice be done, though the sky fall! But sooner or later, you will end up in front of a judge, probably now very irritated and happy to assess costs against you.

2. You won’t win everything in this case. You are almost certain to pay some damages, and quite possibly a lot of damages.

3. Either way, if you fight a trial, here’s what will happen:

Because of what he needs to prove for the negligence and misfeasance causes of action especially, plaintiff will call the former Prime Ministers Chrétien, Martin and Harper, and all of their former foreign affairs and public safety ministers, CSIS, DFAIT and RCMP officials (former and present) and any number of other officials.
Former officials will have their own reputational exposure (at minimum), and will likely want independent legal advice, indemnified by the government of Canada.

Departments will divert resources, as they did during the commissions of inquiry of the last decade. There will be oodles of lawyers and staff time on this – do not underestimate the resources poured into this.
Plaintiff will be seeking confidential information, on top of what is on the public record. Some of that will raise national security interests. It will need to be fought, probably in Canada Evidence Act s.38 proceedings. Those are long and arduous and costly.  See above about staff resourcing.

The trial will be several weeks long, and the costs skyrocket. (There is a reason most civil cases settle).
Put another way, this will cost a bundle. And that’s not including resources expended by the court itself.  And that’s assuming in the end the government isn’t stuck with the plaintiff’s legal costs (which, as noted, was already starting to happen).

The Arar commission cost $20 million. Commissions and courts are different, but the Khadr case has been a longer process.  All costs in, I suspect a full trial in the Khadr matter would have been close to Arar number – certainly more than $10 million.  The government had already spent $5 million – and the process looks like it had not yet reached the full discovery process (let alone trial), or resolved the section 38 issues.

So I think an all-in number in the $30-40 million range, including damages, costs to the court, etc was very possible, even likely, and maybe even low-balling.

But then there are the more intangible (but perhaps even more pressing) costs:

Some of these section 38 proceedings would probably mean some information would come out the government does not want out for plausible security reasons (in this case, outweighed by the fair trial interest). You may not care, but the security services do, passionately.
Since the lawsuit (by definition) implicates the Americans, they will have an interest and perhaps reaction, especially if some of their confidential information was potentially in play. This is an unpredictable US administration.  This trial pokes a hornet’s nest.

The last thing the security services need is for graphic exposure concerning misdeeds of the prior decade.  It diverts resources, and diminishes morale and public confidence and makes it very difficult to do their jobs if the public believes that they are rogue operators. (Losing a misfeasance claim would be disastrous; we are getting into intentional malice territory there.)

If I were the security services, I would have wanted this case settled, badly.

In sum: You can still wish there had been trial for a lot of different reasons. Maybe you’d like all this to have come out in open court – certainly, I would have found it interesting as a national security law academic.  Maybe it would have been good to expose the government malfeasance.  Maybe the responsible should be exposed, and heads put on spikes.  Maybe all that would serve as a cautionary tale for security services, on the (unlikely) assumption they would do a repeat in the same manner.  Maybe you don’t care about any of the reasons, but do care about the symbolism.

That is your prerogative. But none of your reasons for supporting a full civil trial in Khadr should be “because it would have been cheaper” or “because it would be a good way to support the security services”.

But was this really worth the $10.5M, and wasn't this too secretive?

I wasn't part of the process, but a couple of thoughts: First, a settlement depends on what you negotiate.  The negotiations are confidential, and so too (often) is the settlement.  (Public settlements advertise to all future plaintiffs what the going rate is, leading to a bidding war).

Why $10.5 million? Probably because the (public) Arar matter set that as the benchmark for the cost of participating, however indirectly, in maltreatment with a foreign government.  Legally, I don’t think it make a difference that Mr Arar was picked up and rendered from JFK airport, and Khadr from the battlefields of Afghanistan.  I don't see how their relative virtues would affect the lawsuit.  An “eye for an eye” is ancient Sumerian law, not Canadian.

Maybe the government should have negotiated a better deal – $10.5M is several million more than wrongful convictees have typically received.  Maybe the government should have conceded liability and gone to court on damages.  Personally, I am not sure that would have obviated all (or even many) of the problems with going to trial, noted above, since the conduct of those same officials would have been what compounded damages.

But bottom line: the current government made a judgment call, burdened with the conduct of 3 prior governments and lingering legacy cases that continue to cast a shadow over the security services.

Perhaps there were other more partisan political reasons for settling.  This is not my area. I leave it to others to discern the partisan political upside of this settlement for the Trudeau government.  It is not immediately apparent to me.

What about Canada paying Ms Speer and Mr Morris?

I certainly know what I hope for on this question, as a human being.

But a couple of lawyerly points:

As a principle, the Canadian government has no legal exposure for Khadr’s (alleged) conduct in the 2002 firefight. Canada is not responsible for the conduct of its private citizens overseas – if that were a principle, I imagine there would be many fewer passports issued.

Whether Khadr is himself liable for the 2002 firefight is a question that has never been adjudicated in an adversarial process in front of a real court, applying real evidence.  Basically, we have no idea what happened in 2002.  Anyone with clarion vision on this point is exhibiting motivated fact-interpretation.

As I understand it, the Utah default judgment (in which Khadr’s side did not appear) was built on the Guantanamo record.  Enforcing that judgment in Canada will be hard, although perhaps aspects of it can be teased away from the tainted Guantanamo process.

(Unfortunately, a new “clean” civil proceeding is likely precluded by expiry of limitations periods. Too bad Khadr wasn't repatriated sooner.)

If there can be enforcement, whether there are assets to be seized is a question beyond my knowledge.  (The negotiated settlement may be structured so that the money is paid out in increments, not as a lump sum. This is not my area, at all, so I defer to others on the civil procedure and civil action components of this case.)

Finally, whether the Speer and Morris proceeding itself will settle remains an open question.  It may be a good way to judge character.

Take home:

So to sum up: there are many villains and few heroes in this saga. There are degrees of victimization, and there are stages in it.  There is too much “eye for an eye”, and too little “rule of law”.  None of this had to be this way.  Justice could have been served.  Be angry at your government, but make sure you are angry at them for all the right reasons.

It is possible to believe:

Khadr is not a folk hero and should have been held to account and he should not have been maltreated and railroaded in a patently flawed process.
Khadr should have been repatriated much earlier and held to account.
Khadr was wronged and was in the wrong, with the degree of that error something that deserved careful, evidence-based inquiry.
That settling this case was smart for financial and security reasons, and that others may deserve compensation.

Addendum

I want to end with a nod to Dennis Edney and Nate Whitling, Khadr’s chief lawyers on the criminal side (who will not agree with all I have said here). They represented the country’s most unpopular client for almost two decades, without any real prospect of compensation and in the face of public vitriol.  If any of us are ever targeted by governments willing to toss centuries of due process into the dumpster, we would be fortunate to be represented by two such dogged advocates.

And while I am less familiar with the civil side, I have reason to believe that similar credit is owed to John Kingman Phillips.  And there are any number others that I risk damning by not mentioning, for which I apologize. These would include many of the US JAG defense lawyers who I knew in person or by reputation, and who stand out as defending fidelity to the rule of law.

Link to original:  http://craigforcese.squarespace.com/national-security-law-blog/2017/7/11/a-once-final-parsing-of-the-legal-context-for-the-khadr-sett.html

 

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Humphrey Bogart said:
This will be my final post in this thread, it's a blog article written by Craig Forcese, B.A., M.A., L.L.B., L.L.M. Who is a professor of law at the University of Ottawa.

If you want to actually understand the legal issues surrounding this case, read it.  Continue to be mad about it if you wish but understand this is WAY BIGGER than petty partisan politics.

Link to original:  http://craigforcese.squarespace.com/national-security-law-blog/2017/7/11/a-once-final-parsing-of-the-legal-context-for-the-khadr-sett.html

:goodpost:

I must admit that before reading the article, when I saw the academic credentials, I immediately formed the impression that this is an academic with no trial experience. When I checked his bio, I confirmed for myself that he had only two years practical experience before joining academia and said to myself: Well here we go; another ivory tower lecture.

It didn't help when in the preamble to this article he disclosed having worked--albeit peripherally--on the Khadr defence team; Ah ha a biased viewpoint.

It was a major surprise to me, therefore, that in fact this article (and the prior one on his website) is well balanced and looks very closely at the real, numerous issues involved. He almost (but not quite by a hair) won me over to the side that the settlement, as written, is worthwhile. I agree with him whole heartily with the unstated premise that "a bad settlement is better than an uncertain trial". I've lived with that motto for many years in my own practice but there always comes a time where the client insists that "it's a matter of principle".

My view is not that I think the government might have won; they wouldn't have for the reasons he states. And it's not because it might have been cheaper in the long run; it wouldn't have been for the reasons he stated. It's entirely because of the bad optics of "voluntarily" paying a terrorist $10.5 million (especially when there are currently very real issues between the government and the poorly compensated wounded veterans who served it). The most recent polls make it clear that the vast majority of Canadians (even Liberals) were/are against this settlement. My guess is that this will be an election issue ("Mr Trudeau; You had a choice!")

Thanks HB. Good find.

:cheers:
 

Halifax Tar

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Humphrey Bogart said:
This will be my final post in this thread, it's a blog article written by Craig Forcese, B.A., M.A., L.L.B., L.L.M. Who is a professor of law at the University of Ottawa.

If you want to actually understand the legal issues surrounding this case, read it.  Continue to be mad about it if you wish but understand this is WAY BIGGER than petty partisan politics.

Link to original:  http://craigforcese.squarespace.com/national-security-law-blog/2017/7/11/a-once-final-parsing-of-the-legal-context-for-the-khadr-sett.html

Excellent article HB.  While It hasn't caused me to change my position; I do recognize it's my emotion and personal belief that keeps me from supporting this settlement and apology.

Cheers HB.
 

Lightguns

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FJAG said:
:goodpost:

I must admit that before reading the article, when I saw the academic credentials, I immediately formed the impression that this is an academic with no trial experience. When I checked his bio, I confirmed for myself that he had only two years practical experience before joining academia and said to myself: Well here we go; another ivory tower lecture.

It didn't help when in the preamble to this article he disclosed having worked--albeit peripherally--on the Khadr defence team; Ah ha a biased viewpoint.

It was a major surprise to me, therefore, that in fact this article (and the prior one on his website) is well balanced and looks very closely at the real, numerous issues involved. He almost (but not quite by a hair) won me over to the side that the settlement, as written, is worthwhile. I agree with him whole heartily with the unstated premise that "a bad settlement is better than an uncertain trial". I've lived with that motto for many years in my own practice but there always comes a time where the client insists that "it's a matter of principle".

My view is not that I think the government might have won; they wouldn't have for the reasons he states. And it's not because it might have been cheaper in the long run; it wouldn't have been for the reasons he stated. It's entirely because of the bad optics of "voluntarily" paying a terrorist $10.5 million (especially when there are currently very real issues between the government and the poorly compensated wounded veterans who served it). The most recent polls make it clear that the vast majority of Canadians (even Liberals) were/are against this settlement. My guess is that this will be an election issue ("Mr Trudeau; You had a choice!")

Thanks HB. Good find.

:cheers:

So in the end it all comes back to what the Liberal govt of 2003 should have done but chose not to - charge Khadr.  As a nation state, we have a duty to ensure that the world does not suffer for our bad apples and when it does we clean up the mess with our justice system.  The settlement still stinks and I am still owed a VA pension for life.  So **** them all, libs, cons, terrorists and peaceniks.
 

7thghoul

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IMHO The reason you guys (and all Canadians) SHOULD be pissed off is because if the feds grew a pair and handled it back in the Chretien & Harper days our current gov't wouldn't have to pay this guy a dime. I don't know if he is innocent or not, there's a lot of conflicting info out there, but I don't like him at all - he gives me the god damn heebie jeebies and now he has 10.5 stacks to spend or give away as he see's fit. I'll believe he's a reformed man when he writes a check for all of it in the name of Speer's wife.


EDIT: and look what I just found. http://globalnews.ca/news/3593721/omar-khadr-assets/?utm_source=GlobalToronto&utm_medium=Facebook

EDIT 2: Nevermind, that article is pretty garbage. Clickbait titles win again. Should be called "Omar sits at home while Tabitha Speer misunderstands how injunctions work"
 

Lumber

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Instead of a blanket apology, could they not have just done what my subordinates do, and sandwich the apology between deprecating arguments?

"Your are a sorry excuse for a human being, but we didn't treat you the way we've promised to treat all Canadian universally, and we're sorry for that, but in our opinion you should still be rotting in a prison somewhere you piece of sh*t."

And then instead of giving him $10.5 million, cover his legal fees and donate $10.5 million to some charity.

Seriously though why does it have to be $10.5 million?

I really believe that people in general (not just Canadians, but all people), have an near-impossible time judging people fairly. When they hear about prison inmates complaining about the justice system or the state of their prisons or some other unfair treatment, I've honestly heard the argument from lay-people that "they're criminals, who cares". Similarly, average people seem to not understand why it's important that alleged criminals have access to adequate defence counsel for trials; they assume defence attorneys are crooks because they are "defending" criminals, despite the fact that many of them are pleading guilty and the attorneys are their just to make sure they are treated fairly.

And I find it's even worse when the subject is terrorism; there are people out there (I get the feeling some on this site maybe even) who honestly believe if you are a terrorist, that you have no rights and that torture and death are perfectly acceptable treatments for you.

Now, for the most part you can sit down and successfully explain to these people that despite their misgivings, everyone, criminals and terrorists included, have a right to be treated fairly and in accordance with the rule of law.

But, with this $10.5M settlement, good luck getting anyone to sit down and listen objectively.
 
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I tend to agree with Mr Forcese’s parsing of the issues pertaining to this situation.  The problem that I have is the absence of leadership from the Prime Minister on this issue.  An aspect of leadership is making the hard decisions, the unpopular decisions, and the difficult decisions.  However, when a true leader makes these sorts of decisions, they stand up and make the announcement themselves and face the tough questions.  They explain what the issues are, why they exist, and what needs to be done.  A true leader will take the time to explain the difficult decisions.  They take responsibility and ownership of the issue.

I am convinced that the Liberal Govt chose to leak the information rather than take responsibility.  There was no benefit to the Khadr camp to leak the information.  In fact, the leak provided the families in the US opportunity to move quickly in court in an effort to freeze the money.  Without the leak, the families would have been unaware of the payment until possibly after all of the money was hidden, spent, secured, etc. 

There was no official announcement, nor did Trudeau stand up publicly, as a leader, and explain to the Canadian people why the decision was being taken.  His after the fact remarks fell short.  The information was leaked while Parliament was not sitting, so there could be no challenge or questioning in Parliament by elected officials.  The leaked information came out while Trudeau was out of the country on government business, so access so him was restricted.  I also think that the Liberal Govt tried to distract the Canadian taxpayer from the issue with good news stories such as Trudeau and the Queen, Trudeau being awarded an honorary degree in Edinburgh and most recently the leak of Julie Payette as the new GG. 

Leadership was absent when this decision was made to pay out the money and make the apology.  They knew it would be unpopular.  Trudeau should have stepped up and taken ownership of the decision.  He did not.  Rather he ducked out and left his subordinates to face the wrath of the Canadian people.
 
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