Validity of Khadr’s guilty plea in doubt

By Paul Koring,  The Globe and Mail  Feb. 28 2013

OmarAppeals court rulings that tossed out the convictions of two al-Qaeda operatives mean that Omar Khadr was also wrongfully convicted and should be freed, his lawyer and rights experts say.

A court of appeals last month overturned the U.S. military court in Guantanamo Bay’s murder and terrorism convictions of Ali Hamza al Bahlul, a Yemeni who was Osama bin Laden’s publicist, on the grounds that the charges on which he was convicted were not internationally recognized as war crimes.

Mr. Khadr’s lawyer and others say such rulings raise grave doubts about the validity of Mr. Khadr’s guilty plea to terrorism and murder charges in the same court, because those were not war crimes in 2002 when the Canadian teenager was involved in a gun battle in which a U.S. soldier died.

Mr. Khadr, currently in a Canadian maximum security prison, wants his plea-bargained conviction appealed, said his lawyer, Dennis Edney.

And human rights experts believe he has a solid case, although the Canadian government seems keen to keep Mr. Khadr, now 26, locked up as long as possible.

Mr. Edney said Mr. Khadr was wrongfully convicted and wants the Pentagon to appoint counsel to appeal.

Mr. Edney wrote in a Jan. 29, 2013, letter to Bryan Broyles, deputy chief defence counsel for the U.S. war crimes tribunals, that Mr. Khadr wants to “appeal all of the convictions entered against him in October, 2010,” and asked for a legal team to launch the appeal. Mr. Broyles has yet to reply, and declined to respond to written questions from The Globe and Mail.

“It is astounding no notice of appeal was filed on behalf of Omar Khadr while other detainees have had their appeals filed and successfully appealed by military defence counsel,” Mr. Edney said.

After the U.S. Court of Appeals for the District of Columbia threw out the convictions against Mr. al Bahlul, Mr. Broyles denounced the original prosecution saying: “The only basis on which the United States relied was their fanciful notion of U.S. common law of war, something which doesn’t actually exist.”

The same appeals court had earlier tossed out the terrorism conspiracy conviction of Salim Hamdan, one of Mr. bin Laden’s drivers, on similar grounds, that the crimes he was convicted of did not exist until they were created by the Bush administration.

Mr. Khadr’s chance of having his convictions vacated are complicated by several circumstances, not least that, as part of his plea bargain deal, he waived his right to appeal. He is also now back in Canada, outside of U.S. jurisdiction.

Mr. Khadr also agreed to plead guilty to murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy and providing material support for terrorism.

Even if Mr. Khadr threw the grenade that caused the death of U.S. special forces Sergeant Christopher Speer, killing a combatant on a battleground is not a war crime under international law except in some circumstances. Even if Mr. Khadr should have faced charges for the killing, said Andrea Prasow, the senior counter-terrorism counsel and advocate at Human Rights Watch’s U.S. program, it should have been as a criminal homicide in Afghanistan.“These weren’t crimes in violation of the laws of war at the time they were committed,” Ms. Prasow said in an interview. “They weren’t then, and they are not now,” she added. That was the fundamental reason the U.S. appeals court tossed out the Guantanamo convictions of Hamdan and al-Bahlul.

That a child soldier – Mr. Khadr was 15 in 2002 – was charged at all, let alone by an offshore war crimes tribunal created by the Bush administration to skirt U.S. constitutional protections, has outraged rights groups for more than a decade. But unlike Britain and Australia, which insisted on the rapid repatriation of their citizens, successive Canadian governments wanted Mr. Khadr held and tried in Guantanamo.

Although the military jury sentenced him to 40 years, the plea deal added only another eight years to the eight Mr. Khadr had already spent in Guantanamo, and the chance to be sent to Canada, the country of his birth, to serve most of the remaining sentence. Under Canadian law, he is eligible for parole on July 1, but the Harper government is expected to opposed his release vigorously, arguing he is a dangerous, convicted terrorist.

Were a U.S. appeals court to overturn the conviction on the grounds that the crimes on which he was convicted didn’t exist in 2002, Mr. Khadr might be entitled to immediate release.



IN CANADA | Omar Khadr: From Frying Pan to Fire

By Aisha Maniar | Februari 25, 2013

Omar Khadr in 2002 and 2010

Omar Khadr, the youngest prisoner at Guantánamo Bay was released to Canada on 29 September 2012, ten days after his26th birthday. Captured in Afghanistan in July 2002 aged 15, his release should have been good news, ending a journey that started halfway across the world and has seen him spend almost half his life behinds bars. Instead, upon return, he was taken immediately to the Millhaven Institution in Bath, Ontario, a maximum security prison, where he remains imprisoned.

Omar Khadr in 2002 and 2010

Each of the almost 800 prisoners held at Guantánamo has a compelling tale to tell, yet Omar Khadr’s is unique in many ways: the most obvious distinction being his age. Unlike other child prisoners, he was always treated as an adult. Subject to torture, including waterboarding, this provided some of the evidence used to charge him for various war crimes shortly after he turned 19 in 2005.

Omar Khadr’s military commission has unique features: upon inauguration to his first term as president, constitutional lawyer Barack Obama signed a presidential decree to close Guantánamo and suspend military commissions. Neither has happened and with a revised Military Commissions Act in force by the end of 2009, Khadr was the first person to be tried in Barack Obama’s presidency. As the offences he is alleged to have committed took place when he was 15, he is also the only person to be tried by a military tribunal for war crimes committed as a minor since World War II. This disturbing development received international condemnation.

Facing a life sentence without proper due process, in a secret plea bargain in October 2010, he pleaded guilty to all the charges against him: the murder of an American soldier, attempted murder, conspiracy, material support for terrorism and spying. Possibly his only way out, under this deal, he would serve just one more year at Guantánamo Bay and the remaining seven years of his sentence in Canada. Although not a party to the bargain, the exchange of diplomatic notes to the effect that Canada would agree to repatriate him after an additional year in Guantánamo was a part of this agreement. Omar Khadr was due for release in October 2011; it took another 11 months for it to happen.

This is largely down to the Canadian government. Having only met all of Canada’s conditions for repatriation in April 2012, the US then formally submitted Omar Khadr’s transfer application. Vic Toews, the Canadian Minister of Public Safety, responsible for this transfer, sought medical reports and a video to help make his assessment of the security risk he posed. This video was an interview conducted with Omar Khadr by Dr Michael Welner, a psychiatrist and prosecution witness who described him as “highly dangerous” and having “rock star” status at Guantánamo. Influential during the trial, Welner’s evidence is known to be biased and has been discredited by other psychiatrists. Writing in the New York Times shortly after Khadr’s release, Dr Stephen N. Xenakis, a retired psychiatrist and former US army brigadier general, who had spent hundreds of hours assessing Khadr since 2008, stated that he was “emphatically not” the dangerous man Welner claimed.

In his own psychiatric report to Vic Toews, submitted in February 2011, Xenakis dismissed Welner’s findings and approach: “He based his opinion on clinical interviews and reviews of medical records from his capture and detention. His findings are questionable as his medical examination did not follow the standards of usual practice.” Xenakis’ own assessment is that “Mr. Khadr can successfully transition from Guantanamo because of his remarkably positive outlook, his talent for building positive relationships, and his optimistic temperament.” He further advised that “keeping him incarcerated and living under conditions of imprisonment provides little chance for rehabilitation or preparation to live in society.” This report was ignored.

Legal formalities and posturing aside, Canada could have demanded Omar Khadr’s return at any time. Indeed, this request for information was further stalling of the repatriation; having received the information in early September, Vic Toews’ request was accepted days after it was sent. Canada could have requested his return to the country at any time since July 2002. Omar Khadr stands out as the only western citizen whose country did not seek his repatriation.

Canada’s treatment of Omar Khadr has smacked of hypocrisy and duplicity throughout: a champion of the rights of war children, Canada was an early signatory of the Optional Protection of the International Convention on the Rights of the Child (ICRC) on the involvement of children in armed conflict in 2000. In 2008, a report by the Canadian House of Commons Subcommittee on International Human Rights recommended the Canadian government seeks Khadr’s immediate release and that “an appropriate rehabilitation and reintegration program is developed for Omar Khadr.” Also in 2008, it emerged that Canadian intelligence officers had interrogated him at Guantánamo in 2003 in a process that breached international law. The Canadian Supreme Court ruled in 2010 that the Canadian government’s refusal to repatriate him was unconstitutional and breached his rights under the Canadian Charter of Rights and Freedoms, but stopped short of ordering it to demand his release. As recently as October 2012, in its review of children’s rights in Canada, the ICRC recommended that Canada rehabilitate Omar Khadr.

In making his safety assessment, Vic Toews chose to rely on Dr Welner’s prejudiced analysis. In astatement he made upon Omar Khadr’s return to Canada, Toews called Khadr “a known supporter of the Al-Qaeda terrorist network and a convicted terrorist”. Dr Welner’s untested allegations about the Khadr family’s association with terrorism and Omar Khadr’s alleged fundamentalist fervour saw him transferred immediately to “Millhaven, one of the toughest prisons in the country. [which has…] been dubbed “Guantanamo North”.” These elements were picked up immediately by the Canadian media, keen to paint Omar Khadr as unrepentant, an image that, while feeding media hysteria, also successfully deflected the Canadian government’s own negligence and betrayal of a Canadian citizen.

His situation is as precarious as it has been over the past decade, and his fate lies in the hands of Canadian justice, specifically the Correctional Service of Canada (CSC), which is overseen by Vic Toews. In late December, it emerged that the CSC considers Omar Khadr a “maximum security” prisoner due to his murder and terrorism conviction, with his status due to be reviewed in December 2014. This assessment fails to take into account the dubious conditions that, involving torture and an unfair legal process, helped to obtain this conviction and as a result, day parole which otherwise would have been due next month is now almost completely unlikely. Applying the “Custody Rating Scale” point system, his first-degree murder conviction confers him with enough points to be considered a “maximum security” risk. With Khadr back home, the Canadian government’s attitude does not seem to be changing. Recognising some of these longstanding issues, Amnesty Canada launched a campaign action last year, Omar Khadr: The Case is not closed.

One of the most unfortunate aspects of Omar Khadr’s ordeal is the Canadian government’s singular and dogged faith in the military commission system at Guantánamo Bay. During his military commission, the Canadian government was satisfied with US assurances about proceedings, particularly with respect to his age at the time being taken into consideration, in spite of international condemnation of both the US and Canada in this regard. Canada’s blind faith in the lawfulness of such convictions is one not even shared by the US’ own federal courts.

On 16 October 2012, the US Court of Appeals for the District of Columbia Circuit overturned the 2008 conviction of former prisoner Salim Hamdan by military commission for “material support for terrorism”, one of the charges Omar Khadr was also convicted of, due to the retroactive nature of the offence, as the alleged offences took place years before the Military Commissions Act created them. This crucial judgment made just weeks before the US presidential election shattered the illusion of any legitimacy the few convictions obtained at Guantánamo Bay may have. The US government had until January to appeal but did not. Last month, based on this judgment, another conviction, the life sentence of Yemeni prisoner Hamza Al Bahlul was also overturned. Omar Khadr is likely to appeal too. The Canadian government’s faith in the military commissions is undermined further by the ongoing farce of the 9/11 military commissions, also affected by the Hamdan ruling.

The onus is now on the Canadian government and questions over its failure to meet its legal and moral obligations to one vulnerable citizen. Beyond its mantra of “Omar Khadr is a convicted terrorist”, there is very little to sustain its untenable position.

Omar Khadr is not the only prisoner to have been further incarcerated on his release from Guantánamo Bay. Australian David Hicks, the first person to be convicted at Guantánamo Bay, entered a similar plea bargain where he pleaded guilty in return for a seven-year sentence, which was suspended except for 9 months which he served in an Australian jail. He was released in 2007. One day after the Hamdan judgment, he said he would appeal his conviction.

Guantánamo Bay has created its own “refugee” situation: of the remaining 166 prisoner, more than half are unable to return home. For many of the prisoners cleared for release, the option of going home does not exist for fear of further persecution and imprisonment.  To deal with this “refugee” situation, various third states have accepted more than 40 prisoners. Slovakia agreed to resettle three such prisoners in a “”gesture of solidarity” in support of President Barack Obama’s foreign policy” in late 2009. However, by June 2010, six months after their arrival in Slovakia, the men went on hunger strike in protest at their continued detention at an asylum detention centre whose conditions they claimed were “worse than Guantánamo”. All three had been cleared for release years before arriving in Slovakia and were under the impression they would be resettled and rehabilitated. The situation improved following international awareness and criticism. After the Arab Spring in 2011, two of the men felt that the security situation in their home countries would be safe enough for them to return. Rafiq Al Hami returned to Tunisia where he is rebuilding his life with his family. Adel Al Gazzar, optimistic of the changes under the new regime in Egypt, was promptly arrested and imprisoned upon his return to the country in 2011 for a conviction made in his absence in 2002. He has since been released and reunited with his family. The third man, Polad Sirajov from Azerbaijan, remains in Slovakia.

Perhaps the worst case of post-return persecution is that of 29-year old Russian citizen Rasul Kudaev. From the Kabardino-Balkaria Republic (KBR) in the North Caucasus (southern Russia), he was arrested in Afghanistan aged 17* where he fled to avoid military service. Posing no risk, he was considered for transfer back to Russia by the US once the two countries had shared the intelligence beaten out of him at the end of 2002. He was released in February 2004. He returned home with a series of illnesses, a limp and physically unable to work. [Source: HRW].

Following militant attacks in October 2005 in the city of Nalchik where he lived, he was arrested with 58 others, and has been held since at a pre-trial detention centre where they are awaiting trial. Beaten as he was taken from his home, he had to be carried into court a few days later due to the severity of the beatings. By early November, pictures of his abuse and that of other prisoners circulated; Kudaev’s face was swollen and bruised. He was beaten so badly that human rights investigators fear he has permanent facial disfigurement. He was charged with various terrorism offences as a result. In 2006, his lawyers contested the evidence as it was obtained through torture but that was thrown out. His health has deteriorated progressively and his mother expressed serious concerns after a visit in January 2013.

The trial has been delayed for various reasons. The prosecution has given its evidence and Rasul Kudaev will be one of the last defendants to give his next month; the case should conclude later this year. His lawyers will also apply for bail until the judgment. In what has been largely a show trial, Amnesty International has expressed “little hope” in the outcome.

Years of abuse and injustice at Guantánamo Bay have so far resulted in a zero successful conviction rate and no credible evidence, just George Bush’s say-so that these are “bad men”. The least one may expect released prisoners to expect is rehabilitation and due process, and certainly not further imprisonment and persecution, especially of the most vulnerable. To deal with this pressing need,Reprieve, the human rights NGO which has and continues to represent dozen of prisoners, including the three men sent to Slovakia, set up the Life After Guantanamo project in 2010. Polly Rossdale from the project explains the needs former prisoners have and why such a project is so important:

There has been no justice, apology, or compensation to a single victim of US-sponsored torture in Guantanamo.  Former detainees are faced with the challenge of recovery from trauma in places and communities that are often either poorly resourced, lacking the necessary torture rehabilitation skills or are hostile to their presence.  The Life after Guantanamo project seeks to facilitate appropriate medical, psychological, legal and social support for these men and their families.  We assist with a range of issues including finding accommodation; family reunification; countering isolation; dealing with restrictions on freedom of movement and an uncertain legal status; and obtaining financial support to accessing education, training and employment.”

This year has seen some positive changes for Omar Khadr: last month, Dennis Edney, who previously acted as Khadr’s lawyer and championed his case far and wide, was reappointed to represent him in a case before the Canadian Federal Court against the Canadian government for breach of his constitutional rights. This move is likely to expedite his other demands and see the positive profile of his case rise again. Earlier this month, he was also moved out of solitary confinement, and is reported to be getting on well with other prisoners; this is the first time he has been out of solitary confinement since his conviction in 2010. A new petition has been put together calling on the Canadian government to release Omar Khadr and rehabilitate him, both a reasonable and the only viable proposition to deal with the current situation.

Many thanks to Reprieve and Amnesty International for their assistance. You can write to Omar Khadr at: Omar Khadr, Millhaven Institution, Hwy 33, PO Box 280, Bath, Ontario, K0H 1G0, Canada

* Rasul Kudaev was captured aged 17 (a minor) in Afghanistan, however by the time he arrived at Guantánamo in 2002 he was 18, a legal adult.




LAW TIMES Speakers Corner | Officials must stop demonizing Omar Khadr

Monday, 22 October 2020 08:21 | Written by Catherine Morris

The Canadian government has claimed Omar Khadr had the benefit of due process in the United States.

His return to Canada on Sept. 29 prompted yet more official statements and headlines labelling him a war criminal and a convicted terrorist. These assertions distort and contradict both the facts and the law.

As a result, many people hold an erroneous belief that Khadr pleaded guilty to legitimate charges in a properly constituted court. In fact, Khadr was never charged with any U.S. criminal offences or international war crimes.

After his 2002 capture on a battlefield in Afghanistan at age 15, Khadr waited more than three years before facing charges at a military tribunal set up by an executive order of former president George W. Bush’s administration.

In 2006, the U.S. Supreme Court in Hamdan v. Rumsfeld found the tribunals to be unlawful and in violation of the Geneva Conventions.

The U.S. Congress hastily passed a new Military Commissions Act and Khadr was recharged with newly created offences even though international law and the U.S. Constitution forbid prosecutions for ex post facto offences, as does Canada’s Charter of Rights and Freedoms.

The military commission procedures provide for relaxed rules of evidence and permit coerced evidence not allowed by U.S. or Canadian criminal law.

Evidence obtained in violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment can also be admitted because of the Military Commissions Act’s narrow definition of torture that’s at odds with the convention. Nor is the military commission viewed as independent.

In June 2007, Col. Peter Brownback, then the military commission’s presiding officer, dismissed the charges against Khadr. He said that while the commission had jurisdiction over unlawful enemy combatants, prosecutors had failed to prove Khadr had taken up arms against the United States unlawfully.

A quickly convened military commission review overturned that decision in September 2007 and reinstated the charges.

Brownback acknowledged he took heat from the Pentagon for dismissing the charges. In June 2008, Brownback threatened to suspend the proceedings against Khadr unless prosecutors handed over Khadr’s medical and interrogation records. Later that month, the Pentagon replaced Brownback.

In May 2008, the Supreme Court of Canada in Canada (Justice) vs. Khadr ruled that participation by Canadian officials in the process in Guantanamo Bay, Cuba, was contrary to Canada’s binding international obligations.

In January 2010, the top court in Canada (Prime Minister) v. Khadr denounced Canadian officials’ violation of Khadr’s s. 7 Charter rights.

The top court declared Khadr’s entitlement to a remedy but left it up to Canada’s executive to decide how best to respond. Canada’s response was a diplomatic note asking the United States not to use information turned over by Canadian agents.

In July 2010, Canada’s Federal Court in Khadr v. Canada gave the government seven days to supply a list of all possible remedies to cure the continuing Charter violations. The House of Commons standing committee on foreign affairs had already made one recommendation in June 2008 that Canada secure Khadr’s repatriation.

Majority votes of the Senate on June 18, 2008, and the House of Commons on March 23, 2009, had urged repatriation. Instead of suggesting remedies, the government appealed the ruling on the seventh day.

Predictably, the Guantanamo Bay military commission ruled all of Khadr’s statements admissible, including those made as a result of treatment that violated the convention against torture, in August 2010.

Radhika Coomaraswamy, then the United Nations special representative for children and armed conflict, pointedly stated that in international law, child soldiers “must be treated primarily as victims and alternative procedures should be in place aimed at rehabilitation.”

Canadian officials paid no attention. Instead, they agreed to Khadr’s October 2010 plea bargain and said Canada would be “inclined to favourably consider” repatriation to Canada after a year of his sentence.

Lawrence Cannon, then the foreign minister, promised the House of Commons that Canada would implement the agreement. The year came and went.

In June of this year, the UN committee against torture urged Canada to repatriate Khadr and to redress the human rights violations found by the Supreme Court. Minister of Public Safety Vic Toews responded by complaining that “when there are serious concerns regarding human rights violations across the world, it is disappointing that the UN would spend its time decrying Canada.”

Khadr has never faced a trial before any properly constituted court that afforded the judicial guarantees recognized in international law as indispensable to fair proceedings.

This is in direct violation of the Geneva Conventions. In addition, the case demonstrates serious and flagrant violations of the International Covenant on Civil and Political Rights, the convention against torture, the Convention on the Rights of the Child, and the protocol on children in armed conflict.

We must view the voluntariness of Khadr’s plea bargain in the context of the U.S. policy of holding Guantanamo Bay prisoners until the end of the so-called war on terror. Without the deal, Khadr faced indefinite detention whether the military commission found him guilty or innocent.

This catch-22 followed eight years of detention marked by denial of virtually all of his rights. They included the rights to habeas corpus, access to an independent tribunal for determination of rights, proper legal representation, family visits, and freedom from torture and other cruel, inhuman, and degrading treatment.

Such conditions defy the very concept of voluntary negotiation. The U.S. plea agreement is not a reliable indicator of guilt in or out of court.

Some Canadians have expressed fears about public danger. Safety is an important consideration that is served only when facts and law are respected. Public safety is at risk in a polarized climate of suspicion, fear, and hatred fomented by public officials’ derogatory characterizations of Khadr.

Toews is responsible for Corrections Canada as well as appointments and renewals of adjudicators at the Parole Board of Canada. It is improper for a minister to make statements about Khadr that could influence the impartiality of adjudicators at tribunals vested with the responsibility for independent determinations.

The Khadr case raises concerns about disrespect by Canadian government officials for our courts, the UN human rights system, and, indeed, the rights of all of us. Canadian ministers and officials must start treating Khadr in accordance with Canadian and international law.

Catherine Morris teaches international human rights at the University of Victoria. She also teaches courses in negotiation and conflict studies at universities in Europe and Asia. In addition, she monitors human rights in several countries for Lawyers’ Rights Watch Canada.


Petition for Clemency and Dr Sageman’s rebuttal of Welner

by Heather Marsh

Reference Documentation:
Petition for Clemency.
Dr. Sageman letter.
Appendix A.

This week, Canadian Public Safety Minister Vic Toews requested unredacted copies of videos and interviews that psychiatrists Michael Welner and Alan Hopewell conducted with Khadr at Guantanamo Bay to determine his mental state. Besides the fact that Canada has now had one decade to determine Khadr’s mental state, the implication of the request is that Canada’s new prisons are not equipped to defend against an inmate about whom professional prosecution witness Welner said “future risk is actually more in a capacity to inspire” than to do violence himself. But that is not the most incredible aspect of this latest stalling tactic. Toews is requesting evidence from one of the most widely derided professional witnesses of our time, a man accused of falsifying his own academic credentials under oath, and a man who based his findings not on research, but on the incendiary claims of a xenophobic Danish writer who claims among other things that “Massive inbreeding within the Muslim culture during the last 1.400 years may have done catastrophic damage to their gene pool.”

In March 2011, Omar Khadr’s defense submitted a Petition for Clemency. They claimed misconduct of the prosecutors which resulted in the defence bringing no rebuttal to the testimony of the prosecutor’s key witness, professional prosecution witness and psychiatrist Welner. More here: 2020-04-19 Khadr defense accuse Guantanamo prosecutors of trickery

The prosecutors informed the defense that they had consulted with the Convening Authority and, if the defense filed to have Welner’s testimony withdrawn, the prosecutors had the Convening Authority’s permission to withdraw from the pretrial agreement. The defense then agreed to only object orally. The prosecutors countered that if they objected orally, they would still withdraw. The defense attempted to negotiate further, the prosecutors refused. “Faced with the immediate prospect of the Government withdrawing from the pretrial agreement and with no time to make any further record” the defense agreed to it all. The defense now maintains that the government relied on witness Dr. Welner’s testimony to “intimidate the sentencing panel” and “wrongly shielded Dr. Welner’s testimony from the standards of admissibility clearly defined by the Supreme Court and the Military Commission Rules of Evidence.”

Dr. Marc Sageman is an acclaimed psychologist with extensive background into terrorism and political violence who was prevented from testifying at Omar Khadr’s trial. Among other things, he points out that the prosecution witness falsified his academic credentials: Dr. Sageman letter.

There is no research that comes to the conclusions Welner insists on in Omar Khadr’s case, so he relied on the opinions in this book by Nicolai Sennels’ instead. Except he doesn’t read Danish and there is no translation, so he couldn’t really read it. Book review: Appendix A.

In an initial phone call, Dr. Sageman told Omar’s defense, “Dr. Welner’s proposed testimony and conclusions are not valid; Dr. Welner does not have a baseline to make anything more than a guess; and Dr. Welner’s sample size is Omar Khadr.” In a following letter, provided pro bono, Sageman writes, “… as an internationally recognized expert in terrorism and counter-terrorism, I know of no published study that addresses the issue of dangerousness in terrorists. This piqued my curiousity about the basis of Dr. Welner’s “professional” opinion at testimony. … His c.v. mentioned that he took a fellowship in forensic psychiatry at the University of Pennsylvania in 1991-1992. I was at the University of Pennsylvania at the time and the university did not have a forensic psychiatry fellowship at the time. … he did not do a fellowship in forensic psychiatry at the University of Pennsylvania as he testified under oath … Indeed, his c.v. shows that at the time, 1991-1992, he engaged in a full time residency in psychiatry at Beth Israel Medical Center, in New York City.

Regarding Welner’s testimony, Sageman writes, “the interview lacks the usual ethical warning to a defendant that the defendant has the right to not answer questions and that there is no confidentiality between the expert for the prosecution and the defendant. The interview did not ask for any past psychiatric history and did not review potential psychiatric symptoms to assess the mental health of the defendant that could have a bearing in the assessment. Later, Dr. Welner claims that religiosity is correlated to dangerousness - a claim that is in fact without foundation - but he never probed the defendant’s level of religious understanding, beliefs and piety.”

Dr. Sageman then goes on for pages, devastating the credibility of the background sources Dr. Welner relied upon for his authorities. In Dr. Sageman’s opinion, Dr. Welner is very articulate and quite persuasive on the stand, mostly because he conveys very positive and forceful opinions to a jury. He concluded that Dr. Welner displayed this trait in this case. If the jury was indeed swayed by Dr. Welner, which seems unavoidable since he was the star witness, Dr. Sageman’s testimony should have made a very significant difference. It is hopefully unlikely that a judge would have allowed testimony from a witness who falsified their background and relied on completely unscientific methods and misunderstood or unreliable authorities. If he had, surely the jury would have agreed, given the proper rebuttal from the defense, with judge Colonel Parrish who the defense quote as stating, “Dr. Welner would have been as likely to be accurate if he used a Ouija board.”

Toronto Star coverage of Omar Khadr since his trial week (Oct 25, 2010)

by Heather Marsh

In a case like Omar Khadr’s, where one full decade of complicated legal evidence and misinformation have combined to make a quick assessment of the facts impossible for the average Canadian, the tone of everyday mainstream media coverage is all important. Every quick article updating news on the case also serves as an opportunity to present a simple sketch of Khadr.

This is the first installment of what will be a very large spreadsheet charting coverage of Omar Khadr for the last ten years. Subjective keywords with emotional impact are tallied by article. The spreadsheet can then be sorted, by date, author, media outlet etc, to get a picture of where Canadian mainstream media has stood on this debate and how well they have attempted to show different points of view or just stick to accurate facts. The only media we are charting are the respected mainstream outlets with the greatest distribution and trust; no blogs and not Sun Media.

No, a word count does not tell everything; sometimes a word is used when the writer is arguing against its use or because it is necessary to a certain story. More often however, these words are slipped in as insidious descriptors, in article after article, until the person who could easily have been ‘Canadian child torture victim Omar Khadr’ is forever in the public memory as ‘convicted war criminal Omar Khadr’. Taken overall, the words show the context in which Omar’s name is mentioned, the popular story being framed around him.

Unfortunately, there is almost no diversity of message in Canada’s one voice mainstream media which uses a faux debate over Omar’s return to drum the identical message about Omar from almost every single outlet. The Toronto Star is Canada’s highest-circulation newspaper, and the one popularly depicted as the most liberal, Omar Khadr supportive paper. The paper is meant to be guided by the six Atkinson Principles which include ‘social justice’ and ‘individual and civil liberties’. It’s primary reporter on the Khadr case wrote a popular book about the case, and the reporting is widely relied on by liberal minded Canadians to give a fair or favourable depiction of Omar Khadr.

The spreadsheet so far includes all of the Star coverage since the trial week, beginning in October 25, 2012. The ‘trial’ was held with the most widely derided court and procedures since the Salem witch trials and a newly created ‘military commission’ instead of either of the two legitimate US courts (civilian or military), but the word ‘convicted’ occurs uncontested 34 times in 24 articles. The crimes Omar Khadr was charged with include one which the US calls a war crime. None of the rest of the world, including Canada, recognize the impossible ‘murder in violation of the laws of war’ as a war crime, and it could not be legitimately applied to Khadr’s case anyway since it was invented in 2006 and he was captured in 2002. Nevertheless, the words ‘war crime(s)/criminal’ occur 40 times in 24 articles as factual detail of the case. He is accused of ‘five war crimes’ 16 times, even though even the US did not call the others war crimes. The highly suspect plea deal which Omar signed after eight years of torture as his only path out of a legal black hole has been rubbed in his face by the Star 40 times, in the words ‘pleaded guilty/admitted/confessed’, presented without qualifiers. Despite there being absolutely no evidence to point to Khadr killing anyone, and a great deal of evidence that shows it would have been impossible for him to throw the grenade, the words ‘murder/killer’ are used against him 50 times, more than two times per article. In 24 articles, the word ‘jihad’ was worked in eight times, ‘al Qaeda’ 25, and ‘terrorist’ or ‘terrorism’ (the word terror was not included in the count) 30 times.

One third of the 24 articles paint a negative image right from the title or photo caption, and nine of them from the first sentence. (The article word count includes the title and photo captions as well, and the caption writers are often much more negative than the article writers.) The US renaming conventions were apparently not Orwellian enough for the Star caption editor, who renamed the Guantanamo military commission a “US war crimes tribunal” and post trial jail time, which the Pentagon has named ‘punitive post conviction confinement’ becomes the softer restrictive post-conviction custody in the Star.

Of the 24 articles, 16 are by Michelle Shephard, who recently won an award from the Canadian Civil Liberties Association “to celebrate her contribution to the better knowledge for Canadians on issues about civil liberties, the repercussion of Sept. 11 and Omar Khadr.” Shephard managed to use ‘convicted’ 24 times, ‘war crime(s)/criminal’ 30 times, ‘pleaded guilty/admitted/confessed’ 32 times, and ‘murder/killer’ an amazing 43 times in 16 articles. This feat was made possible by referring to the subject nearly always as some variation of “convicted war criminal Omar Khadr, who pleaded guilty to five war crimes including murder,” a more subtle but far more damaging attack than the Sun Media’s “Killer Khadr” headings. The word ‘medic’ appears 6 times since the trial, always from Michelle Shephard (the special forces fighter Omar is accused of killing was not acting as a medic). In Shephard’s reporting since and during the trial, there is one thoughtful analysis of the case in which the words used are part of a larger balanced view; all the rest of the articles are simply news, and the words are descriptors being applied as factual detail.

While Colin Perkel’s two articles have the worst statistics, they do attempt to include some nuance from both sides, and incorporate sentences such asCritics of the military commissions have long held that the charge of murder in violation of the rule of war — the most serious conviction against Khadr — has no basis under international law. They have also been fiercely critical of prosecuting Khadr, who was 15 years old at the time of his crimes.This does not seem sufficient in an article which used the phrase “five war crimes” three times in one article, and it is unclear why these facts need to be presented as  the opinion of ‘critics’ when they are the opinion of international law, but it is something.

Omar’s first interrogator, when he had bullet wounds the size of fists in his chest and eyes wounded by shrapnel, was convicted murderer Joshua Claus who is mentioned once (by Shephard); Bagram is never mentioned, Geneva Conventions also never. ‘Torture’ appears a mere three times, once in the name of the UN Committee Against Torture and never referring specifically to what happened to Omar.

‘Child’ appears 28 times (excluding the very high number of mentions of children of US special forces fighters), but 8 of the mentions appear in a very uninformed and backhanding article by Craig and Marc Kielburger which warns of dire consequences since Omar has not been ‘rehabilitated’ and assumes his guilt as a child soldier.

So this, in the Canadian media, is as good as it gets for Omar, the paper with the reputation of standing up for Omar’s rights and the reporter who has won awards for getting the truth out about his case. There has not been one article in the Star since the trial that discussed the problems with the evidence, the court, the crimes, the witnesses or the plea deal. The opinions of Omar’s three highly accredited psychologists, Dr. Marc Sageman, Dr. Stephen Xenakis, and Dr. Katherine Porterfield are not mentioned, and the highly suspect credentials of dissenting psychiatrist Welner are not questioned.

While a random al Qaeda story was mined salaciously for a link with Khadrs, no article was written regarding the United Nations Committee Against Torture criticizing the Canadian government for delaying Omar’s return to Canada and recommending that Canada (presumably including the largest circulation newspaper) raise awareness of the Convention against Torture requirements amongst judges and members of the public.

While every article lately carefully mentions opposition to Omar’s return, none have told Canadians about the terrifying stalking of Omar’s grandparents by both media and racist hate groups. Despite the opposition to Omar’s return being openly funded by and created by the Jewish Defense League and the Hindu Advocacy Group, who have a “multi faith coalition” with each other and the Christian Heritage Party, none are mentioned by name. The JDL is the Canadian chapter of a US group which is on the FBI terrorist watch list; in 1994 a US member killed 29 Palestinians at prayer, and in 2011 the RCMP launched an investigation against at least nine members of the Canadian JDL with regard to an anonymous tip that they were plotting to bomb the Palestine House in Mississauga. The Star does not point out this irony to Canadians, even though it would certainly seem to be essential information in stories that report on the ‘opposition groups’. It would also surely be an essential message for public safety that racist extremists are openly targeting seniors at their homes in Toronto.

Because of the abhorrent plea deal he was forced to sign, Omar cannot sue any of the Canadian media for libel. This leaves only the court of public opinion to stop the bullying and false coverage of this case. Please help us to correct the public record with the facts of this case and stop the insidious lies.

Coming soon … all the rest of the mainstream Canadian media.

UPDATE: Here is an April 18, 2020 article that does not appear in the Star’s Khadr archives. In this article Michelle Shephard reported Khadr’s appeal for clemency (along with the obligatory “Khadr pleaded guilty to committing five war crimes in Afghanistan in 2002, admitting at the age of 15 he trained with Al Qaeda and threw a grenade that fatally wounded U.S. commando and medic Christopher Speer.”). For this, Welner threatened to sue the Star. “Welner also emailed the Star a three-page notice of intent to sue for defamation concerning articles published last October after a Star journalist asked him to respond to Sageman’s letter.” As anyone who questions, writes about or is in any way connected to Guantanamo can attest, threats and lawsuits are part of every story that attempts to tell the truth.