The Khadr Thread

[Lex Justitia]

Interesting.

The Ontario Court of Appeal just upheld the right of parties that had judgments in the US against Iran for terrorism to the tune of $1.7 billion, to pursue that judgment in Canada.

http://nationalpost.com/news/canada/ontario-court-upholds-1-7b-judgment-against-iran-for-sponsoring-terrorism-against-americans/wcm/9b8e075d-cbd0-4166-9080-16d9030547bf

https://www.theglobeandmail.com/news/national/us-judge-awards-134-million-in-suit-against-omar-khadr/article25242269/

The Khadr case should be easier as it doesn't involve a foreign state as a party and ought to work on ordinary reciprocal enforcement of foreign judgment principles. Regretfully, my guess is that the award will be structured by the Feds and Khadr's lawyers in such a way that it can't be garnished or seized.

I'd love to see Speers' family succeed here.

:cheers:

I don't think comity is going to fall in their favor here. A Canadian court cannot be expected to recognize a foreign judgment that is at odds with a judgment of the Supreme Court of Canada. Doing so, arguably, could amount to res judicata (rehashing/disputing facts that have already been judicially determined) and could undermine the doctrine of binding precedent.

Further, the foreign award is predicated on material facts that were, later, disputed in Canada; the material facts post-Canadian proceedings don't support the basis for that award.

I sympathize with the Speers family, but they knew (or their attorney should have honestly advised them) that Khadr's conviction was unsafe and susceptible to rectification. If, regrettably, justice for their loss fell out of their reach, it was only because government conduct on both sides of the border failed them.

 

[FJAG]

At least 5 different court rulings (3 of the them from the Supreme Court of Canada) determined that Canada was complicit in the violation of Omar Khadr's human rights including those protected by the Canadian Charter of Rights and Freedoms.  Several legal experts have given the opinion that a real court would have thrown out the circumstantial and conflicting evidence against him, and his forced confession.  He was tortured.  He was illegally placed in a federal penitentiary on return to Canada.  You don't have to like him, but there's no doubt that we've done wrong.

I saw a great quote on Twitter today.  Either the law applies to all or it doesn't apply at all.

The adversarial legal system that we have is based on the fact that you have at least two parties arguing at least two different positions. On average, lawyers are wrong half of the time so do not put too much credence on the fact that "several legal experts have said ..." I tend to wait until the Supreme Court rules before I get fairly confident that the last word has been spoken.

On this issue the Supreme Court has ruled https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7842/index.do?r=AAAAAQAFa2hhZHIB to the extent that Canada violated Khadr's rights by having CSIS and DFAIT agents interview him in Guantanamo and turn their work product over to the US; in having another DFAIT officer interview him again knowing full well that he had been subject to sleep deprivation techniques and that because of this the Cdn government had the obligation to release to Khadr transcripts of his interrogations and subsequently the court issued a declaration that Khadr's rights were violated and that it was up to the government to decide how to remedy the injustice.

A key part of the decision is that the US is principally responsible for Khadr's deprivation of rights and that Canada played a contributory role.

I won't comment on the Canadian Armed Forces Joint Doctrine Note (JDN) 2017-01 on Child Soldiers, because quite frankly I haven't seen it and it came after the fact anyway. But we clearly had a youth criminal justice regime which Canadian officials could and should have borrowed from to better understand how to deal with Khadr legally. I don't doubt that we had intelligence issues to address but someone at CSIS or DFAIT should have keyed on the fact that this was a youth and thus needed special handling, terrorist or not.

All that said, the SCC has put an obligation on the government to deal with Khadr. This they have done by repatriation and now have to deal with the issue of do they have a duty to apologize and pay cash. My gut tells me yes to both. The wording of the apology should be measured and in my view the payment for the "deprivation" of rights for which Canada is responsible should also be measured and proportional. Honestly, $10.5 million is well beyond what I consider appropriate and quite frankly is significantly more than I believe a Canadian court would award if the matter had gone to trial.

I presume in reaching this settlement the government put Khadr on a par with Omar Arar however Arar was cleared of any terrorist ties, didn't murder or injure anyone and a number of Canadian security officials played a role that firstly put Arar in harms way and secondly kept him there for longer than necessary. The two cases differ widely on the facts. :2c:

:cheers:

 

[FJAG]

I don't think comity is going to fall in their favor here. A Canadian court cannot be expected to recognize a foreign judgment that is at odds with a judgment of the Supreme Court of Canada. Doing so, arguably, could amount to res judicata (rehashing/disputing facts that have already been judicially determined) and could undermine the doctrine of binding precedent.

Further, the foreign award is predicated on material facts that were, later, disputed in Canada; the material facts post-Canadian proceedings don't support the basis for that award.

I sympathize with the Speers family, but they knew (or their attorney should have honestly advised them) that Khadr's conviction was unsafe and susceptible to rectification. If, regrettably, justice for their loss fell out of their reach, it was only because of government conduct on both sides of the border failed them.

No Canadian court has ruled on the issue of whether or not Khadr murdered anyone. There is no issue estoppel here. The Utah judgment stands and is capable of being reciprocally enforced.
http://www.citynews.ca/2015/07/02/us-judge-awards-134m-in-lawsuit-against-omar-khadr/r

The fact is that Khadr did signed a confession. In my view his recanting at this point should be treated with suspicion.

I do agree that the plaintiffs will have issues.

:cheers:

 

[devil39]

Child soldier.  Not charged under Geneva Conventions.  Confession attained under torture. 

I was a career Infantry Officer and  I cannot in good conscience see Khadr not compensated. 

Our wounded veterans (I'm not one) should have better access to this kind of compensation too.  These arguments are almost mutually exclusive of each other. 

 

[Lex Justitia]

No Canadian court has ruled on the issue of whether or not Khadr murdered anyone. There is no issue estoppel here. The Utah judgment stands and is capable of being reciprocally enforced.
http://www.citynews.ca/2015/07/02/us-judge-awards-134m-in-lawsuit-against-omar-khadr/r

The fact is that Khadr did signed a confession. In my view his recanting at this point should be treated with suspicion.

I do agree that the plaintiffs will have issues.

:cheers:

Does it not matter that the Utah award is predicated on a signed confession that was coerced? It was not predicated on anything independent of that signed confession. I am very doubtful the Supreme Court of Canada, should the foreign judgment recognition come up for appeal, will give recognition to a factual holding that is at odds with its own judgment.

Comity won't vitiate the holding that was made here, in 2010. I think the SCC will rule as much when (if at all) the time comes.

I also think that Speers' attorney(s) were forum shopping. (In their defense, maybe a U.S. federal court is best suited to apply the Alien Tort Statute). I don't know if the diversity jurisdiction or choice of forum/choice of law issues were brought up.

It seems unusual to me that a federal court in Utah even exercised jurisdiction because 1. the tort allegedly occurred in Afghanistan; 2. I'm assuming one of the claimants was resident in Utah at the time of the cause of action; and 3. the defendant was a citizen of and domiciled (although in confinement) in Canada, and had no connections to the United States at the time of the cause of action. That's three possible fora (though Afghanistan is pretty much a non-forum because of its substandard legal system--I think all parties would agree that it would not be a convenient forum). Pursuant to the Alien Tort Statute in the US, from my understanding of recent cases involving it, at bare minimum, a foreign defendant (i.e. one who is domiciled in another country) must be physically situated in the United States at the time the cause of action is filed in the proper forum. Khadr was not situated in the United States when the cause was tendered in Utah. I suppose I'll have to refer to the court's judgment there to see how it determined that it could exercise jurisdiction.

Another issue is that Khadr did not have representation. It was an ex parte proceeding before a court that, arguably, didn't have jurisdiction. While it's understandable for courts to proceed ex parte when foreign countries are named as defendants; Khadr had legal representation in Canada at the time and he could have arranged counterparts in the US to appear on his behalf. I think, without a doubt, these are issues that will be raised in the foreign judgement recognition proceeding in Ontario.

 

[George Wallace]

The Khadr family has long been known to harbour the ideals and philosophies of terrorist organizations and suspected of having maintained links with some of them.  What are the consequences of this 10M landing up being funnelled into those very hands that we have been fighting?  What links does he still maintain with his family?  Is it with 100% certainty that a worse case scenario will not take place?

 

[George Wallace]

E. B. Korcz Forrester

What is your opinion then, of the Justice for Victims of Terrorism Act of 2012, and the Rights of the victims to collect from "known" and "convicted" terrorists? 

 

[jollyjacktar]

Did Mr Miller really call Khadr a "self-admitted murderer" after all of the legal determinations that his confession was procured under duress? Mr Miller seems to have ignored and taken for granted Canada's most basic protections, such as to be free from coerced confessions. It's not "plain and simple."

I hope Mr Miller doesn't think confessions procured through nefarious investigative practices, such as those used in the United States beginning around the 1930s through the early 1960s, are appropriate. Unfortunate for Mr Miller's analysis, sleep deprivation and protracted interrogation are coercive. I don't think he would appreciate being subjected to sleep deprivation while under protracted interrogation if he were accused of campaign finance offenses or fraud.

I'd write to Miller reminding him that confessions extracted by coercion do not make for "self-admitted" criminals. Can you imagine if it became acceptable to return to the 1940s  United States—to use stomach pumping (Rochin v. Carlifornia (1952)); deprivation of sleep, water, and food (Watts v. Indiana (1949)); continuous beating, whipping and burning (Ward v. Texas(1942)); protracted interrogation (Chambers v. Florida (1940)), beating, hanging, whipping (Brown v. Mississippi (1936)), to extract confessions. No, Mr Miller, Khadr is not a "self-admitted murderer;" and until he confesses while free of duress, nobody who has respect for our basic legal rights should believe that he is.

I'm afraid if you're looking for support for the drum you're banging here about this POS Khadr, you're going to be leaving home empty handed from me and I suspect many other members here.  I don't give a fuck how long he spent visiting Cuba or how many stars were missing from his resort accommodation.  I have no sympathy for him, or the plight he found himself in as he was there in AFG to conduct combat operations against western troops.  Lastly, if you are dismayed by my lack of boo hoo about poor, dear Omar, TFB.  I'm holding back from saying what I would really like to say about this subject.

 

[Lightguns]

I'm afraid if you're looking for support for the drum you're banging here about this POS Khadr, you're going to be leaving home empty handed from me and I suspect many other members here.  I don't give a frig how long he spent visiting Cuba or how many stars were missing from his resort accommodation.  I have no sympathy for him, or the plight he found himself in as he was there in AFG to conduct combat operations against western troops.  Lastly, if you are dismayed by my lack of boo hoo about poor, dear Omar, TFB.  I'm holding back from saying what I would really like to say about this subject.

Concur, we need a swear on swear off command, this is the time when the gloves should come off. 

 

[tomahawk6]

So Canada is apologizing and will pay Khadr 10.5 m Canadian. Guess what the next step is for the widow of the soldier he killed ? Going to court to get some restitution.

https://www.stripes.com/news/us/widow-goes-after-money-canada-will-give-ex-gitmo-prisoner-1.476659#.WVzfn8htm70


TORONTO — The lawyer for the widow of an American soldier killed in Afghanistan said Tuesday they have filed an application so that any money paid by the Canadian government to a former Guantanamo Bay prisoner convicted of killing him will go toward the widow and another U.S. soldier injured.

Lawyer Don Winder made the comments as a decision by the Canadian government to apologize and give millions of dollars to Omar Khadr came under mounting criticism.

An official familiar with the deal said Tuesday that Khadr will receive 10.5 million Canadian dollars (US$8 million). The official was not authorized to discuss the deal publicly before the announcement and spoke on condition of anonymity. The government and Khadr's lawyers negotiated the deal last month.

 

[Remius]

Well he stated that he wanted to show Canadians that he was a good person.

A good start would be to just hand over the money and avoid a lengthy ordeal for the families involved.

The problem I suspect as well is that his lawyers will be wanting a significant cut of that money.

 

[Lightguns]

This is going to be a political football in US/Canada relations.

 

[Jarnhamar]

WRT the 10 million compensation I would withhold even a single dollar due to the families apparent ties with at least one terrorist organization and the likelihood hood of even $1, let alone 10 million, being used against Canadian military personal and civilians in the future.

 

[gryphonv]

I hate that I agree with you but yes when all is said and told it looks like Canada crap the  bed with this.

WRT the 10 million compensation I would withhold even a single dollar due to the families apparent proven ties with at least one terrorist organization and the likelihood hood of even $1, let alone 10 million, being used against Canadian military personal and civilians in the future.

Fixed that.

 

[Kat Stevens]

10 mil will buy a whole lot of fertilizer and diesel, and maybe even a big truck to put it in. That way they won't have to go through the scratch and dent inspection at the rental agency. Stay tuned.

 

[gryphonv]

I just hope this is brought up when the House sits in September. Part of me thinks this was leaked now so the controversy will lose steam over Summer Recess.

 

[CEDE NULLIS]

Child soldier.  Not charged under Geneva Conventions.  Confession attained under torture. 

I was a career Infantry Officer and  I cannot in good conscience see Khadr not compensated. 

Agreed. It was disgraceful that we allowed a Canadian child to be tortured into confession and detained at Guantanamo. Opinions obviously vary widely but I stand by this 100%. Glad to see we are trying to make this right in some way.   

 

[Remius]

Agreed. It was disgraceful that we allowed a Canadian child to be tortured into confession and detained at Guantanamo. Opinions obviously vary widely but I stand by this 100%. Glad to see we are trying to make this right in some way. 

I honestly don't think we are making things right.  Rather we are paying the price.

 

[gryphonv]

Agreed. It was disgraceful that we allowed a Canadian child to be tortured into confession and detained at Guantanamo. Opinions obviously vary widely but I stand by this 100%. Glad to see we are trying to make this right in some way. 

We made it right by bringing him back to Canada, which I still never agreed with, but it was his right as a Citizen.

We locked him up because it was the only way the Americans would release custody of him to us. We had an agreement, after he was here we gave him parole after enough time.

That is where making it right was acceptable.

Giving him a cash payout, a handshake and an apology, is nothing less than a slap in the face of every soldier who went to Afghanistan to fight the Taliban.  It's a big middle finger to the Speer's Family, and it won't be good for any relations with countries that were part of the ISAF coalition.

This is a fail on so many levels it's mind boggling. Approval ratings for the Liberals will take a nose dive after this, and rightfully so.

 

[Remius]

As much as it would be nice to blame the Liberals for this, the Supreme Court actually ruled on this. Plenty of blame to go around between multiple governments Liberal and Conservative.