‘It’s irresponsible the way they throw these words around’

By Aaron Wherry - Tuesday, September 27, 2011 at 8:45 AM - 7 Comments

Dick Cheney does not appreciate the tone adopted by the likes of Don Davies.

“Now we have a lot of people running around using language like ‘torture.’ I heard one of your members of Parliament saying we used it on hundreds of people at Guantanamo. Not true,” said Mr. Cheney, who became a lightning rod for critics of the Bush administration, particularly over the war on Iraq, during his eight years as vice-president.

“We did not use torture. … We did what we absolutely needed to do. We had an obligation to gather intelligence to ensure that we didn’t get struck again, and I think it worked,” he said, noting that Mr. Mohammed, in particular, produced a “gold mine” of information “after he’d been through the process.”

The utility of waterboarding Khalid Sheikh Mohammed is a matter of some debate. So far as the hunt for Osama bin Laden, for instance, John McCain has said that torturing Mr. Mohammed actually produced false and misleading information.

What's hot at Hot Docs

By Brian D. Johnson - Thursday, April 28, 2011 at 10:11 AM - 0 Comments

Toronto’s Hot Docs festival is showing 199 films from 43 countries between April 28 and May 8. I haven’t seen all of them. Far from it. But I’ve watched quite a few, either on DVD or at press screenings. So far it doesn’t look like a stellar crop. I’ve seen nothing as thrilling as last year’s Marwencol or Exit Through the Gift Shop. In this week’s issue of Maclean’s, I explore a curious sub-trend of docs about mad science, led by Project Nim—by far the best film I’ve seen to date. Here are some capsule reviews of what excited me among the films I’ve seen. I’ll add more titles as they come up. Click on any title to link to the official Hot Docs web listing, with screening times and other info.

The star of 'Project Nim'

Project Nim comes from the team behind 2009′s superb Oscar-winning documentary, Man on Wire, and it’s another story of strange behavior in ’70s America. By turns funny, sad and frightening, this documentary is Dickensian tale of an epic experiment that made a minor celebrity of a chimpanzee named Nim. Ripped from his mother at the age of two weeks, Nim is raised by a series of human surrogate mothers, as a kind of special-needs child. The goal is to teach him sign language and refute linguist Noam Chomsky’s thesis that language is exclusive to home sapiens. Directed by James Marsh, and based on Elizabeth Hess’s 2008 book, Nim Chimpsky: The Chimp Who Would Be Human, the film offers a rich mix of archival footage and fresh interviews with Nim’s various guardians, several of them still rankled by decades-old custody issues. The human parenting tricks ranged from breast-feeding Nim to getting him stoned on pot and alcohol. Inevitably, the chimpanzee teaches us more about messed-up humans than the scientists seemed to learn about apes.

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Wherryleaks

By Aaron Wherry - Wednesday, December 1, 2010 at 4:11 PM - 17 Comments

The Globe reports that, according to a memo released by Wikileaks, French foreign minister Bernard Kouchner pressed the matter of Omar Khadr with U.S. Secretary of State Hillary Clinton during a meeting in February 2009.

Loyal readers will recall that this blog uncovered the French news release that announced this intervention more than a year and a half ago.

Abuse in a time of fear

By Aaron Wherry - Tuesday, November 16, 2010 at 11:36 AM - 28 Comments

Barbara Falk compares the Rosenbergs and Omar Khadr.

American justice has been marred in both the Cold War and the War on Terror by a combination of politically motivated prosecutions with larger didactic purposes, the over-reliance on conspiracy charges to lower the burden of proof, and the relaxation of the rules of evidence law. In both eras, the refrain of national security has been invoked. But it is at times of national insecurity that legal safeguards are needed the most, and it is to the most politically unpopular defendants already demonized by the media and in the court of public opinion that the most stringent due-process requirements should be applied. To do otherwise, as both the cases of Julius and Ethel Rosenberg and of Omar Khadr attest, is to politicize justice and abuse the rule of law.

A resolution that pleases no one

By Aaron Wherry - Tuesday, November 2, 2010 at 11:50 AM - 0 Comments

If it’s any consolation, it seems even the Harper government is displeased with the Harper government’s handling of Omar Khadr.

Conservative cabinet ministers are not happy with the Khadr deal and the reality that he will be returned to Canada next year and free shortly thereafter. On Monday when cabinet gathered to prepare for question period tempers flared. According to sources at the meeting and those close to cabinet ministers, there was yelling and accusations…

Questioned about why the government acted the way it did, one senior official threw their hands up in disgust.

The Commons: Agreeing to, but not with Omar Khadr

By Aaron Wherry - Monday, November 1, 2010 at 6:21 PM - 0 Comments

The Scene. The challenge of the day would be this: could the government be compelled to agree to agree that it had agreed to an agreement to which it had officially signaled its agreeability.

Whatever the futility of the effort, it was first for Gilles Duceppe to attempt to break our impervious Foreign Affairs Minister. How, the Bloc leader wondered, with the public release of diplomatic notes detailing discussions between the Canadian and American administrations, could the Foreign Affairs Minister deny knowledge of negotiations meant to resolve the matter of Omar Khadr?

Lawrence Cannon was, of course, prepared for this and rose to repeat his carefully scripted words into the record. ”The government of Canada,” he said, “did not participate in negotiations regarding the sentence.”

This was a hair finely split. And surely Mr. Cannon should have been allowed a moment to bask in the dexterity of such a display. But before the galleries could shower the Minister with applause and bouquets, Mr. Duceppe was up to have another try. Oui ou non, he demanded: would the Minister authorize the return of Mr. Khadr to Canada after another year has been served stateside?

Over again to Mr. Cannon, this time not so much to pirouette as to pull an extrajudicially detained rabbit from his hat. Continue…

The deal that dare not speak its name

By Aaron Wherry - Monday, November 1, 2010 at 9:15 AM - 0 Comments

The final absurdity of the trial of Omar Khadr.

In Ottawa, the government continued to attempt to distance itself from Mr. Khadr’s early return. ”The matter remains between Omar Khadr and the U.S. government,” Foreign Minister Lawrence Cannon’s spokeswoman Melissa Lantsman said.

But senior U.S. government officials, prosecutors and defence attorneys all say that Mr. Cannon has approved the deal and an exchange of diplomatic notes has confirmed the Canadian government will favourably consider Mr. Khadr’s repatriation bid in a year. The diplomatic notes make it explicitly clear that Ottawa has been involved. ”The Government of Canada therefore wishes to convey that, as requested by the United States, the Government of Canada is inclined to favourably consider Mr. Khadr’s application to be transferred to Canada to serve the remainder of his sentence, or such portion of the remainder of his sentence as the National Parole Board determines.”

The Star has posted the notes in question.

The guilty plea (II)

By Aaron Wherry - Wednesday, October 27, 2010 at 11:45 AM - 0 Comments

Amy Davidson considers the fate of Omar Khadr.

The war crime charges Khadr accepted include working with Al Qaeda, helping to plant roadside bombs, and, in the firefight in which he was captured, in July, 2002, throwing a grenade that killed an American soldier, Sergeant Christopher Speer. Tabitha Speer, Christopher’s widow, was at Guantánamo today; according to Rosenberg, she “wore a black dress to court and sat weeping when the portion about her husband’s death by grenade was mentioned.” One feels a great deal of sympathy for her, and for her loss. But it is hard to see how the Khadr saga has served anyone well.

The guilty plea

By Aaron Wherry - Wednesday, October 27, 2010 at 9:37 AM - 0 Comments

Andrew Sullivan considers the fate of Omar Khadr.

I don’t know how anyone who cares about the integrity and moral standing of the United States can absorb the full details of this case and not be profoundly ashamed.

'People show empathy'

By Aaron Wherry - Monday, October 25, 2010 at 1:25 PM - 0 Comments

On the eve of Omar Khadr’s guilty plea, his lawyer vents.

“People show empathy,” Edney said of Canadians’ reaction to Khadr’s life story, which for the past eight years has seen him held at the U.S. naval base in Guantanamo Bay, Cuba. ”(After) the fact, nothing happens. I feel, not only the Canadian government, but the Canadian people have let down a citizen, a most vulnerable citizen.”

The Harper government has apparently agreed that Mr. Khadr will be moved to Canadian custody after a year of his sentence.

Afghan detainees sans scandal?

By Andrew Potter - Monday, October 18, 2010 at 9:20 AM - 0 Comments

PHOTOGRAPH BY ANDREW POTTER

If there is one thing the hysteria over the “detainees” scandal that preoccupied Parliament for most of last winter points to, it is a widespread resolve amongst Canadians to distance ourselves as far as possible from the abuses of executive authority that stained the American record in Iraq and Afghanistan. The names of prisons like Guantánamo, Abu Ghraib, and Bagram will remain synonyms for the moral collapse of the leadership of the West.

We tend to forget, though, that Canadian officials are themselves just as keen to be seen upholding the Geneva Convention and the basic principles of due process. That is pretty much why I found myself in southern Afghanistan last week, part of a journalistic foursome touring the buffed-up detainee centre at Kandahar Airfield, and, a day later, the infamous Sarposa prison in Kandahar City itself.

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In the balance

By Aaron Wherry - Saturday, October 16, 2010 at 1:04 PM - 0 Comments

While the Prime Minister’s Office continues to distance the Harper government from any decision in the case of Omar Khadr, Michelle Shephard reports that discussions are taking place between officials in Washington and Ottawa. John Ibbitson figures the final decision Mr. Khadr’s fate will rest with Stephen Harper, at least so long as Barack Obama asks Mr. Harper to make a decision. But any deal would first, of course, have to be accepted by Mr. Khadr, who is due to meet with his lawyers today.

One way or another, here perhaps is the start of an ending to what Scott Horton described last month as both a “rollercoaster ride” and a “train wreck.”

A deal?

By Aaron Wherry - Thursday, October 14, 2010 at 1:25 PM - 0 Comments

The Star, Globe and CBC all now report the possibility of a plea deal in the case of Omar Khadr. Postmedia says he’ll be moved to Canadian custody.

Mr. Khadr rejected a deal earlier last spring—later saying openly that he would not plead guilty. The Harper government, which has long refused to intervene in Mr. Khadr’s case, distanced itself from any talk of a plea bargain when one was last rumoured (and, indeed, seems to be doing so this time as well), while other sources said a deal was unlikely so long as the White House remained silent.

What might have been (II)

By Aaron Wherry - Friday, March 12, 2010 at 2:08 PM - 10 Comments

The Globe looks at the concerns within NATO in late 2006.

A memo obtained by The Globe and Mail shows that in 2006 the federal government was briefed on a lobbying campaign by NATO allies aimed at getting the Kabul government to create stronger safeguards for detainees after prisoner abuses elsewhere. “London, The Hague and Canberra [Australia] are deeply concerned about the absence of solid legal protections for detainees, which – in the age of Gitmo and Abu Ghraib – imperils domestic support for the Afghanistan mission,” said the memo of Dec. 4, 2006, written by diplomat Richard Colvin.

The memo was written after consultation with Catherine Bloodworth, a Foreign Affairs colleague, as well as the military attaché in Canada’s Kabul embassy. It was approved by David Sproule – then Canada’s ambassador to Afghanistan – and was e-mailed to dozens of officials at Foreign Affairs, the Privy Council Office and National Defence.

Over to you, Mr. Obama

By Aaron Wherry - Tuesday, February 16, 2010 at 6:18 PM - 47 Comments

The Justice Minister formally responds to the Supreme Court’s decision on Omar Khadr.

“In its ruling, the Supreme Court recognized the constitutional responsibility of the executive to make decisions on matters of foreign affairs, given the complex and ever-changing circumstances of diplomacy, and the need to take into account Canada’s broader interests. The Supreme Court did not require the Government to ask for accused terrorist Omar Khadr’s return.

“In response to the Supreme Court’s ruling, the Government of Canada today delivered a diplomatic note to the Government of the United States formally seeking assurances that any evidence or statements shared with U.S. authorities as a result of the interviews of Mr. Khadr by Canadian agents and officials in 2003 and 2004 not be used against him by U.S. authorities in the context of proceedings before the Military Commission or elsewhere.

“Omar Khadr faces very serious charges, including murder, attempted murder, conspiracy, material support for terrorism, and spying. The Government of Canada continues to provide consular services to Mr. Khadr.”

A veteran court-watcher on the Khadr issue: a fine balance

By John Geddes - Thursday, February 4, 2010 at 8:16 AM - 73 Comments

After the Supreme Court of Canada’s ruling last week in the Omar Khadr case, advocates for the Canadian being held by the U.S. at Guantanamo Bay said the government had little choice now but to ask for Khadr’s return to Canada.

They argued that even though the court hadn’t ordered Stephen Harper’s government to demand Khadr’s repatriation, the ruling left no other option, since it found his Charter rights were being violated. Now, the government is suggesting it will do no such thing.

Is Harper defying the top court? I asked Eugene Meehan, former national president of the Canadian Bar Association, former executive legal officer of the Supreme Court of Canada, and now chair of the law firm Lang Michener’s Supreme Court of Canada practice group in Ottawa.

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Over to you, Mr. Nicholson

By Aaron Wherry - Wednesday, February 3, 2010 at 2:46 PM - 28 Comments

Lawrence Cannon, appearing in the National Press Theatre just now, asked specifically about the Supreme Court’s latest ruling on the human rights of Omar Khadr.

I would remind you that there is a process in place, Mr. Obama’s government has put a process in place, and our position with regard to the process that has been undertaken by the American government … we are following that process. And with regards to the decision that was made by the Supreme Court, the minister of justice is analyzing that ruling and once the minister of justice has communicated what process he intends to take, we will share that.

Over to you, Supreme Court?

By Aaron Wherry - Wednesday, February 3, 2010 at 12:28 PM - 102 Comments

While apparently still reviewing the court’s decision, the government apparently remains firm in its refusal to request Omar Khadr’s repatriation.

Over to you, Mr. Harper

By Aaron Wherry - Tuesday, February 2, 2010 at 12:39 PM - 18 Comments

As Kirk Makin explained over the weekend, the Supreme Court’s ruling last week on Omar Khadr is something less than a conclusion to the story. Today, Audrey Macklin, Diana Juricevic and Cheryl Milne lay out what it may all mean.

Does this mean that Prime Minister Stephen Harper has won the court’s permission to continue to do nothing? The answer is no … In declining to mandate the executive to take specific steps, the court indicated that the “prudent course at this point” was to give the executive the opportunity to formulate a remedy that fulfills its Charter obligations. However, if the government spurns the opportunity, we may arrive at a different point. A declaration, once issued by a court, is always open to enforcement. Should the violation of Mr. Khadr’s rights go unremedied, the Canadian government will continue to be in violation of the law. It will remain open for Mr. Khadr’s lawyers to return to court at a later date and renew a request for a remedy on the grounds that the circumstances animating the court’s deference have changed, and judicial deference is no longer warranted.

Bad news for Omar Khadr? Sort of

By Michael Friscolanti - Friday, January 29, 2010 at 5:47 PM - 182 Comments

When Omar Khadr eventually returns to Canada (and he will someday, whether his fellow Canadians like it or not) his triumphant press conference won’t include a special thanks to the Supreme Court. In a unanimous decision released Friday, the country’s senior judges struck down Khadr’s latest bid for freedom, ruling that Prime Minister Stephen Harper cannot be forced to ask the United States to repatriate al-Qaeda’s most famous child soldier. Simply put, the court concluded that elected officials, not judges, are in charge of our country’s foreign policy—including whether or not to go to bat for a Toronto teenager who lived with Osama bin Laden, allegedly killed a U.S. soldier on the battlefields of Afghanistan, and has spent the past seven years locked inside the notorious prison at Guantanamo Bay, Cuba, where he has clearly been mistreated, if not brutally tortured.

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'The Government is pleased'

By Aaron Wherry - Friday, January 29, 2010 at 3:10 PM - 11 Comments

Rob Nicholson’s office releases a statement in regards to the Supreme Court’s decision.

“The Government is pleased that the Supreme Court has recognized the ‘constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada’s broader interests.’ The Supreme Court overturned two previous lower court decisions and ruled that the Government is not required to ask for accused terrorist Omar Khadr’s return to Canada. Omar Khadr faces very serious charges including murder, attempted murder, conspiracy, material support for terrorism, and spying. The Government will carefully review the Supreme Court’s ruling and determine what further action is required.”

The Khadr verdict

By Aaron Wherry - Friday, January 29, 2010 at 10:02 AM - 197 Comments

The Supreme Court has ruled that Omar Khadr’s rights have been violated, but that the Court will not, at this time, order the federal government to request his repatriation. The full ruling is here.

K is entitled to a remedy under s. 24(1) of the Charter.  The remedy sought by K — an order that Canada request his repatriation — is sufficiently connected to the Charter breach that occurred in 2003 and 2004 because of the continuing effect of this breach into the present and its possible effect on K’s ultimate trial.  While the government must have flexibility in deciding how its duties under the royal prerogative over foreign relations are discharged, the executive is not exempt from constitutional scrutiny.  Courts have the jurisdiction and the duty to determine whether a prerogative power asserted by the Crown exists; if so, whether its exercise infringes the Charter or other constitutional norms; and, where necessary, to give specific direction to the executive branch of the government.  Here, the trial judge misdirected himself in ordering the government to request K’s repatriation, in view of the constitutional responsibility of the executive to make decisions on matters of foreign affairs and the inconclusive state of the record.  The appropriate remedy in this case is to declare that K’s Charter rights were violated, leaving it to the government to decide how best to respond in light of current information, its responsibility over foreign affairs, and the Charter.

More from the Globe, CP, Star, Canwest, Sun, CBC, Reuters, AP and Bloomberg.

A mess of legalities

By Aaron Wherry - Monday, November 16, 2009 at 1:06 PM - 19 Comments

Slate’s Dahlia Lithwick reviews Omar Khadr’s legal situation here and in the United States. And, as she notes, all three hours and 42 minutes of Friday’s fascinating Supreme Court hearings can now be seen here.

Lithwick notes the intervention of Simon V. Potter, an impressive performance I forgot to mention on Friday. Mr. Potter, a Scot apparently, chose to deliver his remarks in fluent French, answered questions in English, and managed to do both with the commanding presence of a Shakespearean stage actor.

The Prime Minister of Canada v. Omar Khadr

By Aaron Wherry - Thursday, November 12, 2009 at 11:35 PM - 27 Comments

Our Michael Friscolanti previews Friday morning’s Supreme Court hearing.

“All it takes is a phone call—a call between the prime minister and the president,” says Dennis Edney, Khadr’s ever-relentless lawyer. “I’m told that the Americans don’t have any concerns about sending Omar back to Canada. All the pressure is coming from Stephen Harper.”

… If the judges side against Ottawa, Stephen Harper will have no choice but to ask the Americans to return Khadr. Such a request won’t guarantee his release—the U.S. is under no obligation to agree—but it will certainly alter the playing field. “If we are successful, then Obama has something to hang his hat on,” Edney says. “And Harper just washes his hands. He can say: ‘I’ll ask—I can’t tell you how nicely I’m going to ask—but I’ll ask.’”