Subcommittee on International Human Rights Committee on April 29th, 2008

[The Chair, Conservative, Scott Reid]

We are going to begin the 10^th meeting of the Subcommittee on Human Rights of the Standing Committee on Foreign Affairs and International Development.

I see our friends from the media are being very cooperative in departing. I appreciate that. These proceedings are televised, and I was told that some of the folks who are taking still photos will stay for a couple of minutes and then will depart. If they could do so in the least intrusive way possible, I would be most grateful.

We have with us today, and we give our thanks to, Lieutenant-Commander William C. Kuebler. I would just briefly say that Lieutenant-Commander Kuebler is the military counsel to Omar Khadr in his proceedings before the military tribunal. He has an impressive record in his own right, including the ultimate signal of importance in the early 21st century, which is his own article on Wikipedia. If you want to know more about him, you can go there, rather than listening to me.

He is joined today by Rebecca Snyder, who is Mr. Khadr's civilian counsel at the Office of the Chief Defense Counsel at the Office of Military Commissions. Welcome to both of our witnesses today.

We have our own rules of engagement today, which were agreed to by the committee at our meeting yesterday. The questions and answers will be five minutes, rather than the normal seven. That's to hopefully allow us to complete a first round and get at least partway through a second round of questions. We'll continue our questioning until shortly before two. Because of the fact that I'm cutting the questions quite short, I want to ensure that Lieutenant-Commander Kuebler is able to respond in a general sense to questions that may have been in the generality of the specific questions being asked. Then we can wrap up at two o'clock. If there is a consensus, we can go beyond, but it's worth considering the fact that individuals here will want to be able to speak to the media at the end of this hearing, and doing that and making it to question period in time might make it impossible to go beyond two o'clock. Be aware of the fact that I will be responsive to the will of the committee as to the time for adjournment.

Lieutenant-Commander, I wonder if we could turn things over to you.

[Lieutenant-Commander William Kuebler, Defense Counsel, Office of Military Commissions, United States Department of Defense]

Thank you.

First of all, let me begin by thanking the members of the subcommittee, Mr. Chairman, for having me here today to address this very important issue.

I have a brief prepared statement. Then I will take any questions the members of the subcommittee may have.

The last citizen of a western nation to be detained at the Guantánamo Bay naval station is 21-year-old Canadian Omar Khadr. I represent Omar in military commission and related proceedings in the courts of the United States. I must preface my remarks by stating that I speak today as Omar Khadr's U.S. military lawyer. My views do not represent the official views of the Department of Defense or the U.S. government.

A poll released just last week indicates that the overwhelming majority of Canadians believe that Omar will not receive a fair trial from a Guantánamo Bay military commission. They are correct. A majority of those prepared to offer an opinion support Omar's return to Canada to face justice under Canadian law. Yet there are some—who clearly understand the injustice being done to Omar and view it as such—who are unsure. I believe their hesitation to be motivated by concerns about whether Omar, however unjustly he may have been treated in the past, will pose a threat to the safety and security of Canadians if and when he returns. I want to spend the next few moments addressing those concerns.

Such concerns are understandable—understandable in light of the deplorable and offensive behaviour of certain members of the Khadr family, understandable in light of the lies that have been told about Omar and his actions in the July 2002 firefight in Afghanistan, and understandable in light of Canadians' justifiable anger with the actions of Omar's father.

First, Canadians are right to be offended by the public comments of Maha and Zaynab Khadr. I am familiar with their remarks, remarks that impugn Canadian values and express sympathy for our common enemies. As a U.S. naval officer, I am as disturbed by them as anyone in this room; indeed, probably more so because I blame the extremist tendencies they represent for much, if not most, of the harm that has befallen my young client. Thankfully, Maha and Zaynab Khadr do not speak for Omar; I do.

Second, Canadians would be right to be afraid of the Omar Khadr who has been falsely described by the U.S. government and the media over the past few years. In a largely fictitious story, first told by the Department of Defense in 2002, Omar was the lone survivor of a four-hour bombardment of an al-Qaeda compound near Khost, Afghanistan. The story was that he waited in the rubble and then rose up wielding a pistol and a hand grenade, taking a group of U.S. soldiers by surprise and killing a medic, before being shot in the chest. No part of this story is true, however, and the Omar Khadr it describes does not exist.

The real picture of Omar Khadr, which has been revealed in the last few months as the contents of U.S. government documents have been disclosed for the first time, is that of a frightened, wounded 15-year-old boy—a boy, like other children wrongfully involved in armed conflict, who had no business being there, who sat slumped against a bush while a battle raged around him. Omar was then shot in the back, at least twice, by a U.S. soldier and was then about to be executed when another soldier intervened.

Conveniently blamed for the unfortunate death of Sergeant Christopher Speer, official records were retroactively altered so that Omar could be held responsible. The real Omar Khadr has thus languished, almost forgotten, in Guantánamo Bay, exploited as a source of information about his father and family for nearly six years.

Third, Canadians are right to be angry with Omar's father, Ahmed Said Khadr. Whatever his connections to or affiliations with al-Qaeda, clearly he bears the ultimate blame for turning his back on Canada, depriving Omar of his birthright as a Canadian citizen by taking him away from this country, and putting his children, including Omar, in harm's way. But Ahmed Khadr is dead, and the son should not go on being punished for the sins of the father.

Omar views himself as a victim of decisions made for him by his family. Omar Khadr did not choose to go into combat as a 15-year-old child soldier in Afghanistan. Like other child soldiers, he was put there. What the U.S. government has thus consistently failed to take into account in its treatment of Omar is that if all it alleges is true, Omar is not one of our enemies in the war on terror; he is a fellow victim of those enemies.

International law concerning the protection of child soldiers--law in whose development Canada has taken a leading role--is consistent with this view. The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, known as the Child Soldier Protocol, establishes the minimum age at which a person can be deemed to voluntarily participate in armed conflict for both state armed forces and non-state armed groups, such as al-Qaeda.

The protocol requires children who participate in armed conflict to be regarded essentially as victims and afforded opportunities for rehabilitation and reintegration upon capture. It recognizes that the term “child soldier” is itself an oxymoron. Children are never soldiers; they are children, unlawfully exploited by those who place them in harm's way.

This does not mean that Omar or any other child soldier cannot be held appropriately accountable for criminal conduct. War crimes tribunals convened in Sierra Leone, for example, were authorized to try child soldiers between the ages of 15 and 18, but only in a special chamber, staffed by juvenile justice experts, in which only rehabilitative rather than punitive sentences could be imposed.

This does not describe a Guantánamo Bay military commission. The military commission by which Omar is due to be tried, designed to try people like Khalid Sheikh Mohammed, the alleged mastermind of 9/11, does not take Omar's age into account in any way. Moreover, it does not provide for rehabilitative objectives. This is why it is our view that the U.S. Congress never intended military commissions to try children for war crimes and that the Pentagon has exceeded its lawful authority in pursuing this case. This is the position put forward in a motion to dismiss the charges pending before the military commission in Guantánamo Bay.

However, juvenile prosecution or other appropriate proceedings in Canada would be consistent with the protocol. If Omar is to receive genuine due process at this point, it will only be because Canada follows the lead of the United Kingdom, France, Australia, and every other western country and demands Omar's release from Guantánamo Bay to face justice under Canadian law. Justice will not result from a military commission that cannot try U.S. citizens and treats a Canadian as worth less than an American by affording Omar fewer rights and protections than an American would receive. Because Omar is Canadian and detained at Guantánamo Bay, he is denied access to the regular civilian courts that he would receive if he were a U.S. citizen.

Omar identifies himself strongly with Canada. This is a young man who longs to see movies like Lord of the Rings and visit the Canadian Rockies. He is hopeful that he will soon come home to Canada. He knows the obstacles he will face; however, after years of hopelessness he has begun to allow himself to dream. They are not the dreams of a dangerous jihadist, but dreams we can admire and relate to: the dreams of a young man to get an education, get a job, and begin living as best he can the ordinary and normal life of a Canadian citizen--the life that was taken from him when his family moved him from Canada to the Middle East as a child.

Omar's story is one of victimization by everyone who has ever had authority over him, and punishment for the misdeeds of others. As this subcommittee studies this case and prepares a report recommending appropriate action, please remember two things. One, we do not ask for special consideration, only that Omar be afforded the protections guaranteed to child soldiers by the law, protections that the U.S. government has failed to afford him. Two, it's not a question of giving this young man a second chance; he's never had a first one. The only blessing he's had is being born Canadian, and this country now represents his only hope.

Thank you. I'll be happy to take any questions members have.

[The Chair, Conservative, Scott Reid]

Thank you, Lieutenant-Commander.

I know you don't have a prepared presentation, Mrs. Snyder, but may I assume that you are prepared to assist in answering any questions if they come your way?

[Rebecca Snyder, Attorney, Office of Military Commissions, United States Department of Defense]

Yes.

[The Chair, Conservative, Scott Reid]

Okay, thank you.

We will start our five-minute rounds with Mr. LeBlanc, please.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Thank you, Mr. Chairman.

Welcome to Parliament Hill, Lieutenant-Commander, and Madam Snyder. Congratulations on the excellent work you're doing in advancing the interests of your client and speaking to issues that I think should preoccupy all Canadians: the right of Canadian citizenship and what that means when you're detained in a foreign jurisdiction, and the role the Government of Canada should be playing in protecting those rights for every Canadian citizen. So from the Liberal Party, thank you for the work you've done and are doing.

We're short of time, and my colleague Mr. Silva will also want to join in.

I have two very specific questions I'd like to ask. Has the United States detained other child soldiers similar to Omar in the Afghanistan conflict, and has Omar Khadr been treated differently from those other child soldiers?

Second, why do you think the Pentagon is so intent on pursuing the case against Mr. Khadr? It seems to us that this has been a high-priority case for them and perhaps stands out among others.

[LCdr William Kuebler]

The answer to your two sub-questions is yes. We know that the U.S. government has detained children in connection with the armed conflict in Afghanistan, both in Afghanistan and at Guantánamo Bay. As I sit here, I have no idea what the numbers are in Afghanistan. I think there may be other witnesses who will be testifying before this panel who can answer that question, as they will have extensive experience with child soldier issues and, in particular, child soldier issues in Afghanistan. But we know that they have detained some number in Afghanistan and probably hold as many as a dozen at Guantánamo Bay.

Although the U.S. government does not acknowledge, and has not acknowledged, that the Child Soldier Protocol affects in any way the circumstances of detention at Guantánamo Bay, it appears nonetheless to have made an effort to comply with it, without acknowledging its obligation under it. As a result, a number of the children detained at Guantánamo Bay—all except Omar, to our knowledge—were kept or segregated in a separate facility for children, known as Camp Iguana. They were afforded special treatment, special access to educational and other rehabilitative services, and eventually were repatriated to their home countries from Guantánamo Bay.

In contrast, Omar Khadr, literally from day one, after being shot by U.S. forces on the battlefield in Afghanistan, has been detained as an adult, without regard to the fact he was a child under international law and entitled to special protections under the protocol. Not only has he been detained with adults, but he's also been subject to the same interrogation and detention regime as adult detainees. So the U.S. government, in its treatment of Omar—and again, in contrast to other children—has consistently failed to comply with the protocol.

Of course, the current manifestation of that is his anticipated trial by military commission. This military commission process does not differentiate at all between children and adults, so Omar is going to be tried, if he is tried, as an adult on the same terms and under the same procedures applied to adult detainees.

Omar's case is obviously somewhat notorious in that he's alleged to have killed a U.S. soldier in the course of hostilities in Afghanistan. I think it's worth noting that one of the first, if not the first, U.S. soldier killed in the course of the Afghan conflict was a man by the name of Nathan Chapman, who was shot by a 14-year-old Afghan boy, who was then detained by the U.S. for some period of time and then, again, consistent with the protocol, ultimately released and reintegrated into Afghan society. Again, the point is that the U.S. has made some effort to comply with respect to other children.

With respect to your second question, my own view is that if you go back to November 2005.... And it's important to keep in mind when we're talking about military commissions that there have been three versions of this process since 9/11: two versions under a presidential executive order; and then after the Supreme Court struck down those military commissions that had been authorized by executive order as a violation of the Geneva Conventions, there is now another system, the current system authorized by statute.

So Omar was one of the detainees charged in the first military commission system. At that time, the so-called high-value detainees, Khalid Sheikh Mohammed and the other alleged 9/11 conspirators, were in secret detention in some other place. They weren't in Guantánamo and probably weren't going to be in Guantánamo for some period of time, so all of the detainees who could potentially be charged by the United States were these low-level people.

I think that if you put two and two together, the chief prosecutor at the time looked at the allegations in Omar's case, the fact that he had allegedly killed a soldier, that there was a real victim, that there was a family, and so forth, and saw that this case might be one with more media appeal and might serve to publicly legitimate the military commission's process when compared with the cases of the other prospective defendants.

So what we find is that Omar was charged initially in November 2005 and that the majority of the actual investigation, whose defects have come to light in the last several months, was conducted after that initial charging decision. I think that explains why he was initially charged and the fact that the U.S. government is now invested in it because of that decision. This explains why it goes on.

[The Chair, Conservative, Scott Reid]

Thank you.

That completes the first question.

Madame Barbot, vous avez la parole.

[Vivian Barbot, Bloc, Papineau, QC]

Thank you, Mr. Chair.

Thank you for appearing before us today, Mr. Kuebler.

You know, I am very concerned by the Omar Khadr case. I was born in Haiti and am now a Canadian citizen. When I was young, I was kept in a foreign embassy for a year and nine months because my father was fighting the government. I was already a young adult. But I had a younger sister who was eight at the time. For those two years, that little child was kept in that embassy—I admit that conditions were nothing like those that Omar Khadr is living in—solely because she was the daughter of someone in conflict with a government. I cannot accept that Canada does not look at the Omar Khadr case like that.

We have signed the Geneva Convention that deals with child soldiers. A child soldier is a victim and, in my opinion, Omar Khadr is a victim. I am terribly disappointed that the Canadian government is not living up to its responsibilities to him. When we sign conventions, we espouse their values. Countries like Canada and the United States have to keep their promises, especially when children are involved.

I have to tell you that a petition started by the Ligue des droits et libertés is circulating at the moment. Canadians can support Omar Khadr in writing and express the view that he should be brought back to this country and tried here.

How is it that, in a conflict like this, countries like Canada and the United States that have signed the Geneva Convention do not live up to their obligations under it because of a group like al-Qaeda, which is not a government and which has not signed it. Does it not follow that, as Canadians, we have to act according to our own values and beliefs, not according to how the enemy is acting, which we hold to be evil?

I would also like you to tell us clearly what will happen to Omar Khadr if he is not brought back here? What exactly is he facing?

[LCdr William Kuebler]

Thank you for your question.

To answer your second question first, understand what the military commission process is designed to do. It is designed to produce criminal convictions using evidence that the United States has gathered through so-called enhanced interrogation techniques in the war on terror, evidence that does not meet the traditional standards of reliability that we require for criminal prosecutions in the regular courts of the United States, or in courts martial for that matter. So these commissions exist to essentially allow the government to obtain these convictions against this very limited class of defendants, using this evidence in the special circumstances of Guantánamo Bay and the war on terror.

Given the nature of these proceedings, given the very prejudicial nature of the evidence that I anticipate will be introduced against Omar at trial, and given the fact that the commission process again, unlike other juvenile justice proceedings, unlike the Sierra Leone war crimes tribunals, does not take Omar's age into account at all, I believe he will be convicted and I believe he will receive an adult sentence. So even though there's almost no real evidence to support the proposition that Omar actually threw a hand grenade in July 2002 that killed a U.S. soldier—on what we call a principle theory, and I can explain that in some depth where I can—Omar will probably nonetheless be convicted of murder by a military commission for little more than having survived the firefight.

Given that, and again given the prejudicial nature of these proceedings, I believe he will receive a life sentence or something very close to it.

As to your first question, I agree with you entirely. As I said during my remarks, I think what the protocol stands for is the proposition that children who are unlawfully exploited by our enemies and used as tools, really, in combat should be regarded as victims of our enemies and not as part of our enemies. What's very interesting is that the Child Soldier Protocol, the treaty to which the United States and Canada are both parties—and I should point out that Canada was the first country to ratify the protocol, that's how seriously this country takes its commitment to these issues—essentially recognizes this proposition, and it's very up to date. In fact, the protocol doesn't only address children unlawfully recruited or exploited by state armed forces, it even talks about children unlawfully recruited and exploited by non-state actors, such as al-Qaeda. So it's specifically designed to address the issue before us, which is, in the U.S. government's view, a war with a non-state armed force that has unlawfully recruited and employed a child, and the protocol mandates that Omar Khadr, as such a person, again be regarded essentially as a victim and afforded opportunities for rehabilitation and recovery. It's simply beyond dispute that the United States government has not complied with the protocol in its treatment of Omar.

[The Chair, Conservative, Scott Reid]

Thank you, Mrs. Barbot.

Mr. Marston, please.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Thank you, Mr. Chair.

As we listen to this story as it unfolds before us, to some extent it's almost like Omar is paying for the sins of the father. He must have been a 13-year-old or 14-year-old boy when he was taken out of this country, because he was only a 15-year-old boy when he was in the combat.

There's something I came across this weekend that was published in The Hamilton Spectator and The Toronto Star, in which the former foreign affairs minister Bill Graham says he regrets now not having pushed harder to get young Khadr brought back home.

Has this subcommittee's invitation to you been the first and only avenue you've had to address the situation with the Canadian government?

[LCdr William Kuebler]

Yes. With the exception of fairly low-level contacts with the Department of Foreign Affairs to discuss detention issues and other things of a relatively minor nature, we have been unable to obtain an audience with the current government to discuss these matters.

But to come back to a point you made earlier, absolutely Omar has been punished. The prosecution against Omar Khadr is essentially an attempt to punish him for the misdeeds of his father. Candidly, as somebody who has observed this process over the past year, my belief is that the Canadian public and the Canadian government have been somewhat unwilling to intervene on his behalf because of the, again, very deplorable conduct of his family and some of the statements they have made—which also constitutes punishment, essentially, for the misdeeds of others, because had they not done those things, I think Canada might be much more proactive in terms of its efforts to help Omar.

Finally, to comment on Mr. Graham's statement, I'm familiar with that interview. I read that, and I appreciate those remarks. I think he notes correctly that, yes, it was a different political environment after 9/11; however, it also appears that certainly the Canadian public and possibly the Canadian government were sold a fictitious story, a false bill of goods about what Omar did in that firefight and the strength of the evidence against him. We now know, because these documents have come out and the evidence has come to light, that those were misrepresentations upon which this government likely relied to some extent in refraining from being much more aggressive in terms of the protection of Omar's rights.

So whatever transpired in the past, the question from our perspective is, what's the right answer going forward? Knowing that this evidence is out there and knowing that this military commission process cannot be lawfully applied to a minor, it's beyond question that the right answer now is to bring him home to face due process under Canadian law.

[The Chair, Conservative, Scott Reid]

Mr. Marston, please.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

We've heard other questions about the other child soldiers, the ones in Afghanistan, the ones who were held in Guantánamo, and it appears from everything we're hearing that they've all been repatriated to their home countries. In this case—maybe you've explained it and maybe not quite—why at Guantánamo Bay have the officials at the detention centre not provided Omar with the same level of consideration in how he is detained or in the fact that he has not been repatriated to Canada? Is that because we're not voicing our opinions as a nation strongly enough, or is this just part of the case that has been tightened in such a way that they can't get out of it themselves?

[LCdr William Kuebler]

I think there are two answers to that question.

Number one, yes, how you're treated in Guantánamo and ultimately the question of whether or not you leave, the last five years have shown, is a function of where you're from and the willingness of your home country to act to protect your rights. Obviously the story of Guantánamo Bay over the last five years is one of a continuous effort by the political branches to frustrate the ability of the courts to review what's been going on and to enforce the law. So that has certainly created the situation in which, for rights to be protected, it requires the intervention of a foreign government. There's no question that Canada has not been active, certainly in protecting Omar's rights as a child soldier, over the last five years.

Why has the U.S. government treated him differently? I think—to come back to the theme we talked about a moment ago, punishment for the sins of others—there's very little question that the U.S. government early on, not so much because of who Omar Khadr was or what he did but because of who he was related to, saw him as a potentially rich source of intelligence and information about his father and his family and their connections and their contacts. Apparently a conscious decision was made to treat him as an adult and subject him to the interrogation regime of an adult so that information could be extracted from him.

[The Chair, Conservative, Scott Reid]

Unfortunately, Mr. Marston, we've just run out of time in this round.

Mr. Kenney is up next.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Thank you, Mr. Chairman.

And thank you, Lieutenant-Commander, for taking the time to be with us today.

In response to a question just a moment ago, I think you said that the right thing would be for the United States to regard Mr. Khadr as a victim and to focus on his rehabilitation. But in your prepared presentation you said that if Omar is to receive genuine due process at this point, it can only happen if he faces justice under Canadian law. If your position is that there's no incriminating evidence and that he should in fact simply be put into a program of rehabilitation, why are you also at the same time suggesting that he could or should face justice under Canadian law; and what would constitute the justice that he would face?

[LCdr William Kuebler]

I don't view those two goals as inconsistent. Obviously juvenile justice prosecutions generally in Canada, in my understanding, take place in light of international law norms concerning respect for the best interests of the child and so forth. So a juvenile justice prosecution in Canada would presumably be undertaken with a view towards a rehabilitative sentence or another appropriate sentence, given his age at the time of the offences. I don't think due process for justice under Canadian law is in any way, shape, or form inconsistent with the achievement or attainment of a rehabilitative objective.

[Jason Kenney, Conservative, Calgary Southeast, AB]

What would be the basis of that due process? Since you say that there is no incriminating evidence against him, that he didn't commit a crime in Canada, and that he didn't kill a Canadian abroad, what would trigger any treatment of him under the Canadian judicial system if he were to be transferred here?

[LCdr William Kuebler]

What I can say is that in addition to the most serious charge Omar is facing, the murder charge, there are a number of other charges at issue in the military commission based on other less culpable conduct. As Omar Khadr's attorney, it certainly would not be appropriate for me to point the government in the direction of a way to convict my client of a crime. But what I can say is that there are certainly other acts, other factual issues, that could be the basis for prosecution.

The larger point is that I can't offer you a predetermined outcome. Guantánamo Bay does that. What we're asking for is due process. So if there is evidence that Omar Khadr committed an offence of some kind, whether or not it was murder--and again, I don't believe it was murder--then what we would ask is that Omar receive the same process as any other Canadian would receive: a prosecutor looks at the file, a prosecutor looks at the evidence and makes a charging decision, and a court takes his age and other factors into consideration and arrives at an appropriate sentence. Again, I don't know what the ultimate outcome would be, but we're asking that he receive the same treatment as any other citizen would receive.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Insofar as it relates to the homicide charge that stands against him, do you have any understanding of a basis in Canadian law whereby the Canadian judicial system could prosecute him for the alleged murder of an American?

[LCdr William Kuebler]

Again, I don't believe there is evidence to support that charge, so it would be inappropriate for me to offer an opinion as to whether Canadian law would reach the conduct. All I can say is that a wealth of allegations are in the charges against Mr. Khadr. The Canadian government has a significant amount of information in its possession relating to Mr. Khadr. So if he engaged in some form of misconduct, it would seem that there would be a basis to prosecute him.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Are you drawing certain analogies between his case and the child soldiers of Sierra Leone? My understanding, from my reading of their situation, is that they were generally kidnapped at gunpoint, taken hostage, made to become addicts of hard drugs, and literally forced at gunpoint into military action. Is that actually analogous to what preceded Mr. Khadr's presence in the Afghan conflict?

[LCdr William Kuebler]

What I'll say is that certainly Mr. Khadr is not the stereotypical child soldier, like those from Sierra Leone, for example. The point, number one, is that the Optional Protocol in international law draws a line based on age, on the general theory that children, whatever the source of the coercion, whatever the source of the influence, are less capable of making voluntary choices than are adults.