Obama's Canada trip is a perfect opportunity to repatriate Omar Khadr.

Obama's Canada trip is a perfect opportunity to repatriate Omar Khadr.

Obama's Canada trip is a perfect opportunity to repatriate Omar Khadr.

The law, lawyers, and the court.
Feb. 18 2009 7:16 PM

Welcome Back Khadr?

Obama's Canada trip is a perfect opportunity to repatriate Gitmo's youngest detainee.

President Barack Obama. Click image to expand.
Will President Obama seek to free Omar Khadr?

Welcome to Ottawa, Mr. President. While you're in town, here's hoping you can find some time to catch a Sens game, take a twirl on the Rideau Canal, and scarf down a big old gooey mountain of poutine. Be sure to take the opportunity to rib Canadians—who travel to work seven months a year by scaling 40-meter snow banks—for lacking your "flinty Chicago toughness." But mostly, thank you so much, Mr. President, for reinstating the traditional First Presidential Visit to Canada. (President George W. Bush ditched us for Mexico in 2001. And look how well that turned out.) It means a lot to your funny northern friends with the great shoes.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

There's a lot of speculation out there about whether President Barack Obama and Canadian Prime Minister Stephen Harper will discuss Omar Khadr on this visit. Khadr is the 22-year-old Canadian (and only remaining Westerner) at Guantanamo Bay. He was 15 years old when he was captured in Afghanistan for allegedly throwing the grenade that killed Sgt. 1st Class Christopher Speer. Khadr is the youngest prisoner at Guantanamo and has been there more than six years, the first few of which he had no access to a lawyer. His military trial, on charges including murder, spying, conspiracy, and providing support to terrorism, was paused indefinitely last month when Obama put a halt to all the military tribunals there, pending a review of the charges against the 245 men still held at the camp.

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Since Obama has ordered the camp shuttered, the need to do something with the remaining prisoners has only grown more urgent. Harper has consistently refused to repatriate Khadr, despite strong opposition from the United Nations, the Canadian Bar Association, Amnesty International, Human Rights Watch, and other groups. Harper has steadfastly insisted that President George W. Bush was entitled to hold Khadr at Gitmo and exhaust the judicial processes against him (even when those processes failed to materialize). The outcry against Harper's policy grew even louder last week when Canada's three opposition leaders—whose respective parties commanded 55 percent of the popular vote last election—signed a joint letter asking Obama to ship Khadr home.

Yesterday, Human Rights Watch also sent a letter to Harper asking that Khadr be repatriated and requesting that a group of Chinese Uighurs, who have been cleared for release for years but still lack a place to go, be permitted to live in Canada, where church groups have agreed to act as sponsors.

The Uighur issue becomes even more critical today because a federal appeals court panel just struck down an order that would have released them into the United States. Judge Raymond Randolph wrote that the court had no authority to create its own immigration rules and took heart in the fact that "the government has represented that it is continuing diplomatic attempts to find an appropriate country willing to admit petitioners, and we have no reason to doubt that it is doing so." So tick-tock, Mr. President. Let's find those Uighurs a home.

Certainly, everyone who has a client at Guantanamo feels their case is special, and even some Canadians have taken the position that there's nothing unique about Khadr's situation that requires fast-tracking him out of the camp. But there are good reasons for Obama to announce that Khadr will be repatriated tomorrow, even as he picks his way through the harder questions about state secrets, rendition, and indefinite detention.

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The principal argument for keeping Khadr in the U.S. military justice system seems to be that his alleged crimes were committed against Americans and the alleged evidence has been amassed by Americans, and thus he should be tried by Americans. But the case against Khadr has been flimsy at the best of times and has deteriorated in the years since his capture, including doubt cast by the Defense Department itself on whether he was even the guy who threw the grenade. The progression of the case against Khadr has been so loopy that the military court's presiding officer, Col. Peter C. Brownback, tossed out all the charges against him in 2007, a decision that was quickly reversed by a hastily manufactured "appeals court." Then, last summer, when Brownback threatened to suspend the whole hearing if prosecutors failed to turn over records concerning Khadr's treatment, Brownback was unceremoniously dumped off the case.

Then there's the fact that Khadr claims to have confessed under torture. Videos of him weeping during an interrogation surfaced last year and served only to remind the world that he was a teenager confined at Guantanamo among "the worst of the worst." Khadr was allegedly shackled in stress positions until he urinated on himself, then covered with pine solvent and used as a "human mop" to clean his own urine. He was beaten, nearly suffocated, beset by attack dogs, and threatened with rape. In May 2008, the Supreme Court of Canada ruled in Canada v. Khadr that the detention of Khadr at Guantanamo Bay "constituted a clear violation of fundamental human rights protected by international law."

Khadr isn't just a poster boy for closing Gitmo; he's a poster boy for the prisoner abuse of children there. If you haven't yet read the new testimony of Army Spc. Brandon Neely about the sexual and physical sadism that went on at Gitmo, it's worth your time. It's not enough for the United States to renounce torture, although that's a good start. We need to start to make amends for the fact that children in our custody were tortured.

And that's the final and most important point here. Khadr was never treated in accordance with the provisions of the Geneva Conventions and the U.N. Convention on the Rights of the Child, which hold that when a signatory captures juveniles on the battlefield, it must work to rehabilitate them, even when they are nasty brats. Special accommodations are required for their incarceration and treatment. But the Bush administration always took the position—and Stephen Harper always agreed—that Khadr was not a child soldier. Of course, Khadr was the very definition of a child soldier, radicalized by his bat-shit family at a young age and sent to training camps before he even had facial hair. If Obama wants to send the signal that international statutes and treaties have meaning in this country, even when that's not convenient, admitting that Khadr was not treated in accordance with those treaties is critically important.

This week's obscure legal parlor game involves complicated guessing at which aspects of the Bush war on terror Obama will adopt and which he will renounce. My own suspicion is that Obama is willing to go quite far to maintain executive branch secrecy and flexibility while putting the greatest possible distance between himself and his predecessor's overzealousness and sometimes gratuitous cruelty. That's why sending Khadr home for the Canadians to deal with is a no-brainer. The Obama administration gets to keep its secrets and still respect international agreements. He gets to evince trust in his allies while unloading an international-relations headache. And he can, in one neat diplomatic move, concede that enormous mistakes were made at Gitmo while leaving it to others to fix them.