"I couldn’t believe that’s how we treat human beings." Witnessing Omar Khadr
"And sitting on a bed that had no blankets, because they’re taken away during the day, in this cold cell sat a very young boy, and that boy was chained to the floor and handcuffed. And in all the many years that I’ve gone to Guantanamo Bay, as I’ve sat facing that young boy and watched him grow up into manhood, I never, ever saw him walk, other than going into the so-called trial. He was always, always shackled to the floor."
Omar Khadr's lawyer Dennis Edney spoke at a Lawyers Rights Watch event in Vancouver in December (The Omar Khadr Case: A Reality Check), and excerpts were recently aired on Canadian Redeye Coop radio. Podcast here, and transcript below the fold.
(P.S. Happy Presidents Day - aka "the asshole in charge of shredding our Constitution," h/t Marcy Wheeler.)
Dennis Edney, Q.C.
The Story of Omar Khadr
Remarks recorded December 5, 2013
Redeye Coop Radio, Vancouver, Canada
December 21, 2013
You’re listening to Redeye on Vancouver Cooperative Radio, CFRO 100.5 FM.
Redeye host Mordecai Briemberg: Omar Khadr is a Canadian citizen born in Toronto. In 2002, at the age of 15, he was living in Afghanistan, where his father had taken him, and he was seriously wounded by U.S. forces, then captured and detained at Bagram and Guantanamo prisons for almost 10 years. Last year Omar Khadr was transferred to Canada after a plea bargain negotiated with the Americans in 2010. Despite being classified as a minimum security risk by his captors at Guantanamo, the Canadian authorities put him in Millhaven, a maximum security prison near Kingston, Ontario. He was later transferred to another maximum security jail in Edmonton following threats to his life. A week ago Omar Khadr was reclassified as medium security risk and now will be sent to Bowden Jail near Calgary.
Since 2005, Edmonton lawyer Dennis Edney has worked to defend Omar Khadr against charges stemming from the 2002 firefight where he was seriously injured and captured. Dennis Edney has appeared at all levels of court on Khadr’s behalf, including the Supreme Courts of Canada and the United States. Dennis Edney was in Vancouver on December 5th at the invitation of the Lawyers Rights Watch. We’re going to hear some excerpts from his talk this hour. Gail Davidson of Lawyers Rights Watch introduced Dennis Edney. During her introduction, she mentioned that he was the recipient of the Canadian National Pro Bono Award in 2008. Dennis Edney begins by commenting on this award.
* * *
DENNIS EDNEY: You know, when I received the Pro Bono Award, I was never happy. And I received it here in Vancouver, and there were at least 100 lawyers congratulating me for getting Pro Bono, and the first thing I said to them was, “I’m Scottish, and there’s not such a word in the Scottish dictionary as pro bono. If my grandfather and my father saw me being awarded for being someone who doesn’t pay for his time, they would have thought I’d completely lost it."
So the subject matter of Omar Khadr is – before I start, I would say to you, is an incredibly important subject matter. I’ve always said that I’ve never met anybody like Omar Khadr, and I have done many, many big cases. But over my years in law, I’ve represented so many different kinds of people, and I’ve never met anybody who’s been so abused and so abandoned by so many who should know better.
I remember, by way of background, the first time I went to Guantanamo Bay, and my ego was really engaged because I had some bragging rights. You haven’t met any lawyers who’ve ever been in Guantanamo Bay, not one single person here, because there are damn few. And so I felt pretty proud of myself arriving in Guantanamo Bay, a bit of a coup, something you could put on your resume. And then, then I got onto a boat. And I was enjoying it. Nice weather. And I wondered where I was going. I thought I was staying in this town that I had arrived in, this small little town, this small little military town called Guantanamo Bay, where I was – looked good to me.
But I was on a boat. And that boat was taking me to a secret part of Guantanamo. Well I’m excited. And I arrive at this place that has cages, big cages, out near the ocean, with wire that goes all around the perimeter. Oh, they stretched for, I don’t know, a couple of football fields, each prison. And there’s a wire mesh, there’s a canvas, green canvas mesh that covers the wire. And so one could say that any detainees who were outside within that perimeter would not be able to see the sea but could smell the sea and hear the sea. But in the many years that I have gone to Guantanamo, I rarely ever saw anybody outside. It’s a place for solitary confinement.
But I wasn’t going to the cages. Because I understood, eventually, that I was going to a secret prison in Guantanamo. In the desert. A completely big, large, concrete edifice with no windows, all kinds of wire around it, and very intimidating. And I remember starting to feel intimidated because the men that surrounded this place -- and I could tell you about three secret prisons in Guantanamo. And the Pentagon acknowledges them. The Pentagon describes those prisons as for “enhanced interrogation techniques.” Torture.
And I remember arriving in Guantanamo, and I arrived there as a lawyer, but I left there as a very sad father, a very sad man. Because in this building I was in, it was gloomy, not well lit, dead silent. And just before I went into the cell, I was told by a military lawyer that Omar Khadr hadn’t spoken for months. And when I walked into the cell – and it’s been a long number of years since that happened, but I could tell you for years afterwards the memory of what I – the vision of what I saw haunted me and continues to haunt me. The cell was well lit, but it was cold, incredibly cold. And that’s a technique used in Guantanamo during the daytime when you’re in a cell. It’s deliberately to make you uncomfortable, because you never rest. And sitting on a bed that had no blankets, because they’re taken away during the day, in this cold cell, sat a very young boy, and that boy was chained to the floor and handcuffed. And in all the many years that I’ve gone to Guantanamo Bay, as I’ve sat facing that young boy and watched him grow up into manhood, I never, ever saw him walk, other than going into the so-called trial. He was always, always shackled to the floor. And when I saw him, he reminded me of a broken bird, a small little broken bird. He was shivering, and he had his hands around himself, he was blind in one eye and going partially blind in the other, he had damages to his [...] paralysis on one side of his body, and because he had many shrapnel wounds, shrapnel comes to the surface and it’s almost like a volcano, it has these little parts that come out. And when I looked at this young man, I remember having a difficult time controlling myself. I know I gasped because I had never seen some human being, some child, that looked so vulnerable as the sight I was witnessing.
And I spent the first two days with him talking at him, and at some point, I was leaving on the third day, and I realized that I had not reached this young man, I was going home, it’s a long journey, and I hadn’t been able to speak to my client. And so at some point I pulled out my wallet and I started to pass over photographs. And I had in my wallet photographs of my young boy, Duncan, who plays hockey. And it’s those little photographs, hockey photographs you have with your kid’s picture and hockey sticks and on hockey skates and statistics on the back. And I passed it over to him. And then he took it, and he started to feel it with his fingers. And I later understood that he had been left in solitary confinement without any stimulation for years, without seeing anybody, seeing any lawyer, seeing any diplomatic people. Nobody. No family. No books, no TV, no radio. And I couldn’t believe that we would be treating children like that. And then he started talking to me, and we talked. And before I left, this young boy said to me, “You will leave me. Everybody does.” And so I made a promise to him then that I wouldn’t leave him.
And I could tell you there were many times I would like to leave him. Because representing Omar Khadr has been a full-time job and my other cases feed the money to do it at times. Pro bono is not a word I like. But there are cases, there are situations that each and every one of us face in our lifetime, I believe, whether it’s our own children, someone else’s children, whatever it is, that you don’t and can’t walk away from, because to walk away from it, to walk away would be so fundamentally wrong, and I think that’s what distinguishes you at the time of being a real human being. It’s something you don’t look for, it’s something at times that’s imposed upon you. And so I have litigated in every court you can find. I have been successful in every real court, whether it’s been the U.S. Supreme Court, whether it’s been the Canadian Supreme Court, whether it’s been the Canadian Federal Court. Of course I was unsuccessful in that so-called court called Guantanamo Bay.
But Omar Khadr was 15 when he was detained. He’s 27 years of age and he’s still in jail. The choice that was put to Omar in Guantanamo Bay by myself, based on what was on the table and awful, was that Omar could go to trial, but even if he is successful, he may be continued to remain indefinitely detained in Guantanamo Bay. Indefinite detention is on the table and was on the table for every detainee in Guantanamo Bay. So even if he had won, he could stay there forever. Or, he could plead guilty to the offenses created and agreed to the facts of his offense that were both fictionalized in a manner that was impossible to understand. And we will give you an eight-year sentence, one year of which you could serve in Guantanamo, and then you could return home. That was what this young man faced. The terrorist who pled guilty in a due process in Guantanamo Bay as described by our government.
Our government knows that’s a lie. And I could tell you why it’s a lie. Because our government had a Department of Foreign Affairs representative throughout the trial, and they know that Omar Khadr was eviscerated of any defense in trial. Not a single witness was allowed to give evidence on behalf of Omar Khadr. Torture memos, as I will talk about as we go on, were used. It was simply a kangaroo court.
And so who amongst us would not have taken this plea to escape the hell hole of Guantanamo, to escape the waterboarders, the torturers, and the solitariness of years in a concrete, windowless cell. And so in drafting an appeal of Omar’s conviction and filing it recently, an appeal court requires a brief statement of facts in order to bring context to the legal issues that are being charged. For me, it was a journey going back in time when Guantanamo, as bad as it is, was a much darker place then. And when I finished that journey of writing in memory, I was reminded that the only evidence against Omar Khadr are his own self-admissions made under duress and torture to others. There are simply no witnesses to the allegation that Omar Khadr ever threw a hand grenade that killed a U.S. Special Forces officer, Sergeant Speer. No forensic evidence was preserved to prove that Sergeant Speer was even killed by a hand grenade or by the type of hand grenade. And the lack of, the lack of forensic evidence prevented Omar himself from advancing the defense that Sergeant Speer was killed by friendly fire, namely a hand grenade thrown by a U.S. soldier in the chaos of battle. In fact, it was miraculous, as I go through this, how much evidence was lost.
I know we won’t get through it tonight because I’ll keep going off, but you know at one point in Guantanamo, the first judge was Judge Brownback. And the problem with Judge Brownback is that he thought he was a real judge. And so we were arguing for the videotapes of the attack on the compound. We were arguing for medical reports in the hospital at Bagram that was a torture center. We were arguing for anything. Because the one thing the military is very good at is bureaucracy that keeps track of everything. The helicopters that fly over have cameras. Military soldiers or officers are required to provide post reports after the fact. And so on. And we got none. “Gee, couldn’t find them.” And so Brownback, as straight as he was, there was a common decency in him. And on the Friday he said to the military prosecutors, “If you don’t provide that disclosure, I’m going to shut this proceeding down.”
Monday morning when we returned, there was no Brownback. Brownback was dismissed. There was no conversation allowed about it. I have no idea what that man is doing. But we had a new judge, Judge Parrish. And Judge Parrish said, “I’m going to set a date for trial.” And so I recall standing up and saying to him, in a respectful manner, I asked him, “This seems a bit of a rush. Have you had the opportunity to review the thousands of briefs and the thousands of documents etcetera over the weekend?” And his answer to me was, “I won’t hear from you again.” That was Guantanamo justice.
And as I take you through this legal journey, I would ask you to judge Omar’s case from a Canadian perspective, and the standard of justice that you and I, each and every one of us, would wish to have if it was one of our children, one of our friends, one of our neighbors facing similar offenses. So I’m going to start off with the facts I set out in my brief, to give context to the legal issues that we’re going to be arguing.
On the morning of July the 27th, 2002, a group of approximately 55 heavily outfitted U.S. soldiers and Afghan militia members departed from a forward operating base near Khost, Afghanistan, in a convoy of pickup trucks and armored Humvees. Their objective was to capture or kill a suspected Al Qaeda bomb maker in a nearby village. And although they didn’t find that particular target, they were directed to a mud brick compound where a small group of suspected militants were living. And the U.S. forces surrounded the compound and triggered a fierce siege that lasted several hours. And the air assault that was called in included two bombing runs by F-18 Hornets, each of which dropped 500-pound bombs that caused, according to the notes, significant destruction to the compound. The shelling was so intense that U.S. written reports state that there was no way that anyone had survived, although they continued to operate on the assumption that some hostile forces were still alive in the compound. As a result, Major Watt sent a final assault element, including Special Forces Christopher Speer, into the compound to clear the remaining pieces of building and rubble. What that means –
But at trial a Delta Force commander gave evidence, and he was called OC-1. And he said these reservists essentially messed up, they panicked, they called for air support, and then they called for us, and we’re Delta Force. The U.S. government does not acknowledge that it has a Delta Force. And so this commander OC-1 arrived there with a half a dozen of his special officers, and OC-1 described what he did. He said that he went into the bullets. The suggestion was the further out you were out away from the bullets, and the bullets were hitting walls, the shrapnel that flies off that caused more damage than anything. And so he gets to this alleyway, looks around the corner, and he sees people in the alleyway. So he goes down the alleyway. He kills one, one Afghani, kills another two on the other side. Omar Khadr is sitting on the ground screaming, facing a wall, because he has been burned from the bombing. And he shoots Omar Khadr twice in the back.
Well, two reports by forensic pathologists determined that the two exit wounds in Omar’s back could only have been made if Omar was lying in a prone position when he was shot, considering the caliber of the gun and the nature of the ammunition. So that meant Omar Khadr was shot point blank. And that in itself is a war crime.
Major Watt’s after-action memorandum, prepared the same day as the battle, states that the combatant who threw the fatal hand grenade at Sergeant Speer was killed during the final assault. And this is the hand grenade that’s the subject matter of all Omar’s troubles. And he also noted that there were three enemy combatants killed during the operation and one who was wounded with serious injuries, a clear reference to Omar Khadr. And so those comments are contrary to the fiction that’s out there, the fiction created that Omar Khadr was the sole survivor, and being the sole survivor, he was the one who threw a hand grenade. In preparation for trial, Major Watt was then interviewed, and he changed his version of the events. He changed his story to implicate Omar Khadr by altering the document to say that the combatant who threw the fatal hand grenade had been engaged, rather than killed, by U.S. forces – hence Omar Khadr.
Now you can’t make this stuff up, because that document that I just told you about that said that Omar Khadr was the one who had thrown the hand grenade and survived, was accidentally given to the press in Guantanamo after one of our pre-trial hearings. And we had the changed one, but we didn’t have the original one. And truly, in getting that briefing through the press, some soldier having got it passed out a privileged document. And the press that they are, God bless them, they were like bloodhounds. And then they brought it to our attention what this actually said.
[sound of ruffling pages] The entire case against Omar Khadr, eight pages, on the admissions that he made in the Bagram hospital and later during the first three years of Guantanamo. Without that, there’s no case. And those statements that this relied upon, were obtained through a series of coercive, uncounseled, and abusive interrogations that began as soon as he regained consciousness in the Bagram hospital approximately one week after the firefight. Omar himself has no memory of what happened that day, and that’s not surprising considering he suffered a concussion. It was to say the least a traumatic experience. And so while sedated, lying wounded on a hospital bed, interrogation notes indicate he appeared frightened, weak and disoriented from pain and fatigue. And it was in this condition Khadr was told by his captives that he had killed a U.S. soldier with a hand grenade.
And I want you to visualize the condition of Omar Khadr. He’s 15 and he has holes in his back like this. Big holes. With the bullets. He’s already suffered blindness from the bombs. And other injuries. And then he’s in a coma for a week, and when he wakes up, from the moment he wakes up – and imagine him with all the sort of tubes, medical tubes that’s going in through his body – he’s questioned. In that first moment. And then the government systematically manipulated an injured and vulnerable minor to adopt a preconceived story.
And throughout his detention, over all the years in Guantanamo and in Bagram, Khadr was relentlessly questioned by intelligence officers and law enforcement agents at Bagram and Guantanamo on hundreds of occasions. And he’s not alone. And I should tell you why hundreds. There’s not a Guantanamo detainee that has not had less than 300 interviews. Because what happens, I ask you who you are and you tell me your real name and I say it’s not, and you tell me – I make you give me the answer that I want after a while. And then I continue to make sure you understand that’s the answer. And you begin to believe it in the telling. And if you don’t believe it in the telling, we’ll make you believe it.
And during those sessions, Omar was never advised that he was the target of an ongoing criminal investigation, much less that he had a right against compelled self-incrimination. And he was also held incommunicado, without the advice of counsel, access to consular officials, family contacts, guardian, you name it. And as I said earlier, it was many years later that he met a lawyer.
YouTube info: Canadian Teen and Child Soldier Omar Khadr faces interrogation at Guantanamo Bay, Cuba by Canadian Security Intelligence Service (CSIS).
Edmonton Journal article: Edney, with city lawyer Nate Whitling, ran an impressive series of legal battles in Canadian courts, winning judgments in the Supreme Court of Canada that upheld Khadr’s rights under the Charter of Rights and Freedoms. The final judgment found Canada had violated Khadr’s rights when CSIS officials interrogated him after he was softened up by weeks of severe sleep deprivation and without legal counsel.
Supreme Court of Canada, 9-0: The deprivation of [Khadr's] right to liberty and security of the person is not in accordance with the principles of fundamental justice. The interrogation of a youth detained without access to counsel, to elicit statements about serious criminal charges while knowing that the youth had been subjected to sleep deprivation and while knowing that the fruits of the interrogations would be shared with the prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.
And there is no evidence as to what type of hand grenade killed Speer. The only evidence he had at trial was a piece of shrapnel that was taken from the body of a soldier who had survived, and that was taken six years later. And they said, “Well, this must be the same type of shrapnel that killed Speer.” And that is the only quality of evidence that they had to convict Omar Khadr. And no eyewitnesses ever saw Omar Khadr fire a weapon or otherwise engage in hostilities, either at Bagram, either in Khost, either anywhere.
But what is significant is the conditions of Omar’s detention, where highly abusive – and that’s an understatement, both psychologically and physically. The atmosphere at the Bagram detention facility, a former Soviet aircraft hangar that was retrofitted with wire pens and wooden isolated cells, almost like dog kennels, was calculated to induce compliance by instilling fear in each and every detainee there. You know, according to a comprehensive report published by the nonpartisan Constitution Project, described the conditions and treatment in Bagram were by accounts from detainees and soldiers alike, horribly brutal. Khadr’s principal interrogator was Sergeant Claus. And Claus questioned Khadr 20 to 25 times. And Claus is particularly significant. Because using the same interrogation techniques against Omar Khadr, Sergeant Claus was convicted by a military commission trial – well, a military trial on the mainland, for killing one Muslim and crippling two others using those same techniques. But he didn’t go to jail. They made a deal with him. You give evidence against Omar Khadr, nothing’s going to happen.
So I remember seeing Mr. Claus in Guantanamo, dressed all in black, coming up as a witness. And Claus was so successful and his team was so successful in interrogations through torture and getting information that made his superiors so happy with that, that he and his team were then promoted. They went from Bagram hospital to Guantanamo. And I remember when I had that interview, that one and only interview about those torture issues, and I flew out of Guantanamo and I was in Jacksonville, Florida, a military base, on my way home, and I checked into a hotel, I wasn’t crying, but I was weeping. I couldn’t believe that’s how we treat human beings.
But it wasn’t just my view or Omar Khadr’s view about the misuse he has, because there’s a documentary done by two Quebec filmmakers called “You Don’t Want to Know the Truth.” Claus said on this documentary, “We did terrible things to that boy.”
Doesn’t Canada get it? And yet our government, we’re the only Western government, trespassing on our reputation, has never said a word about Guantanamo. Not a single church has stood up to condemn the abuses of Guantanamo. [...] societies have not stood up to condemn Guantanamo, when it’s universally criticized, when the evidence is overpowering. And we all think we live in a civil society well protected from fascism to ingrate and change society. Just look at the Second World War. Look at Germany, a wonderful country with all kinds of democracies in place prior to the Second World War. Parliamentary system. Freedom of religion. Strong police force, and the most recognized police force in Europe. A legal system. And so on and so forth. And yet some guy who couldn’t hold down a job called Hitler, his fascism was able to spread. Same evil, Guantanamo Bay. And it still exists.
So, I think I’ve said enough about the background to Omar, so now I’m going to tell you where I’m going with Omar. Well, maybe I’ll tell you that Omar is now in Canada. The deal, as I said, was he was to return to Canada after one year. Well, our government didn’t want him back, even though we had an agreement. It took a higher level of diplomat to persuade Canada to take Omar Khadr back. It took Hillary Clinton to force Canada to take him back. There is a fiction that the Americans didn’t wish to return Omar Khadr. That’s not true. The Americans wanted to get rid of Omar a few years earlier, but Canada wasn’t interested. And part of that, using our phrase, part of the problem of, I think and others think, of the extent of Omar’s abuse that he received was the implied message from our government that we don’t care. Every other Western government [...] kid back. “We don’t care, you do what you want, you’ll never hear a peep from us.”
And so Omar Khadr comes back to Canada, and the Undersecretary of State – another U.S. document, because I prepared the transfer documents, arrived to Mr. Vic Toews under the Transfer of Offenders Act, that he’s coming back to Canada, and the Americans say that he poses no risk for anybody. He’s a minimum security, compliant. Department of Foreign Affairs reports describe discussions of guards. I have them all. The government has them all. They said he’s a nice kid. But what do they do? As soon as he arrives back in Canada, we lock him up in a maximum security prison called Millhaven. Pretty tough place. Mr. Bernardo and others are there. And we classify him right away as – and it’s ironic – a maximum security risk to Canada and a maximum security risk to the inmates in Millhaven. Killers! He is a maximum security risk to them. And so what do they do? The first several months he’s back in solitary confinement.
* * *
Redeye host Mordecai Briemberg: We’ve been listening to some excerpts from a talk by Edmonton lawyer Dennis Edney. He’s been acting as defense lawyer for Omar Khadr since 2005. To find out more about Omar Khadr’s case and how you can help, you can go to FreeOmarKhadr.com.