Why Omar Khadr must be set free

Why Omar Khadr must be set free


By James Morton,
Ottawa Citizen Special
February 2, 2009 4:03 AM


Whatever happens in the matter of Omar Khadr when President Barack Obama makes his working visit to Ottawa on Feb. 19, there seems little doubt that the young Canadian, the last westerner in the American military prison in Guantanamo Bay, will soon be coming back to Canada. If Prime Minister Stephen Harper doesn't ask for Mr. Khadr's return, as he has so far refused to do, the new U.S. administration might simply put him on a plane with a one-way ticket to Toronto.
In which case, the next question becomes: What to do with him? If we are who we say we are, there is only one answer -- we release him, cut him loose.
Mr. Justice Richard Mosley of the Federal Court of Canada has already determined that Omar Khadr was tortured at Guantanamo Bay. He held last year that what happened to Mr. Khadr there constituted a breach of both the Geneva Conventions and the UN Convention against Torture, adding that Canada was a party to the mistreatment, albeit after the fact. His Honour wrote:
"The practice described to the Canadian [Foreign Affairs] official in March 2004 was, in my view, a breach of international human rights law respecting the treatment of detainees. ... Canada became implicated in the violation when the official was provided with the redacted information and chose to proceed with the interview."
The Canadian government did not attempt to appeal this decision.
Otherwise, the government's handling of the Khadr case has raised troubling questions that seemed long settled until the last few years -- by which I mean since the 17th century. On August 23, 1628, a naval officer named John Felton murdered George Villiers, formerly Lord High Admiral under Charles I. The murder raised fears of a broader treason. (It was a treasonous time; Charles I himself would be executed in 1649.) Charles asked his judges if Felton, who refused to name his accomplices, could be put to torture to make him speak. Blackstone, the great English jurist, later wrote that:
"The judges, being consulted, declared unanimously, to their own honour and the honour of the English law, that no such proceeding was allowable by the laws of England."
Torture was known in England, but it was never authorized by the Common Law. As early as 1460 Sir John Fortescue hailed England's refusal to condone torture as one of the its proudest claims. From its earliest days, the Common Law rejected torture not only because of its cruelty but also because it degraded all who used it. From time to time, the Executive condoned torture of prisoners because of fears of rebellion -- or what today we might call terrorism -- but judges never did. As an English court noted in 1846, in Pearse v. Pearse, "Truth, like all other good things, may be loved unwisely -- may be pursued too keenly -- may cost too much." Truth obtained by torture has always been too costly for the Common Law.
So evidence obtained through torture is no evidence at all, which in Omar Khadr's case means no grounds for a trial. (It's also true that Khadr was a "child soldier" of 15 when captured, and that the case against him was looking flimsier by the day before Mr. Obama shut down the trials at Guantanamo, but those matters are secondary. He was tortured. He cannot be tried on evidence resulting from that. Full stop.)
Some people today argue that "coercive interrogation" is not the same thing as torture, and that distasteful acts may be necessary in the fight against terrorism. Others have seriously suggested allowing torture itself in extreme circumstances, but only after a judge has issued a "torture warrant." One American legal scholar suggested that such a warrant "would limit the torture to non-lethal means, such as sterile needles being inserted beneath the nails to cause excruciating pain without endangering life." He later claimed that he raised the issue only to spark debate, but at least to the Common Law, there are some things so obviously wrong as to not require debate. The mere enunciation of such a position is enough to show how repugnant it is.
Even before it was officially abolished, such torture as did take place in England was not used indiscriminately. It had to be authorized by the Privy Council under Royal Prerogatives. Its abolition, by statute, in 1640, was a significant step toward restraining the executive and making supreme the rule of law, including the view that no one is above the law. No one, not even the executive, may lawfully torture anyone else.
The danger in not protesting when other nations conduct "coercive interrogation," or torture -- as Canada has so far not protested on behalf of Omar Khadr -- is the degrading effect such silence has on the law everywhere. Along with the rest of the Common Law world, Canada has built its civic freedoms slowly, over time. But freedoms can be eroded in the same way. To allow "coercive interrogation" is to take a step away from freedom. Refusing it may briefly benefit a few wrongdoers, but it benefits everyone else -- has benefited everyone else -- for centuries.
In the words of Barack Obama's inaugural address: "As for our common defense, we reject as false the choice between our safety and our ideals. ... Those ideals still light the world, and we will not give them up for expedience's sake."

James C. Morton is a lawyer at Steinberg Morton Hope and Israel in Toronto and adjunct professor and lecturer in evidence and advanced evidence at Osgoode Hall Law School, York University. He is also past president of the Ontario Bar Association.