Monday, November 21, 2011

Kafka's Karibbean

So, Omar Khadr can't return to Canada, after pleading guilty to charges that didn't exist before he was apprehended in Afghanistan and transferred to Guantanamo, where Military Commissions were subsequently magicked into existence outside any known jurisdiction including that of the Americans who apprehended and transferred him, the pleading having occurred on October 25, 2010, which was before the National Defense Authorization Act, 2011 was passed on January 7, 2011 (some two months later) and which apparently requires - after the plea bargaining and everything, in military courts that have only a tenuous existence and in fact no existence at all outside the Devil's Island of Guantanamo's oubliette - a "certification" that Canada can handle the transfer of Khadr to our own prison system, soon to be grossly engorged for no reason that can be stated in plain English (or French.)

I'll pay money to see this: The American Congress goes up against 800 years of Anglo-Saxon jurisprudence and Canada's Charter of Rights and Freedoms (Section 11) although in this particular case unfortunately and feebly represented by Canada's Attorney-General, Rob Nicholson, who might well be illiterate in both official languages:

"Proceedings in criminal and penal matters

"11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment."

And if that wasn't enough, there is the American Constitution prohibiting ex post facto convictions.

Article 1 - The Legislative Branch
Section 9 - Limits on Congress

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

As they say in the theatre, you can't make this shit up. There was a time I'd look up all the links for this, but why should any of us bother in the face of gross misconduct by the United States and its Canadian vassal state?

Here's Justice Christopher Speyer's view of the (slightly) less appalling treatment of Abdullah Khadr, Omar's brother.

IV. The Clearest of Cases
[150] I recognize that the collection of reliable intelligence is of the highest importance in protecting and securing a nation from the dangers of terrorism. It must also be recognized that there will always be a tension, especially in troubled times, in the balancing of intelligence and security issues with cherished democratic values, such as the rule of law and protection from human rights violations. In civilized democracies, the rule of law must prevail over intelligence objectives. In this case, the sum of the human rights violations suffered by Khadr is both shocking and unjustifiable. Although Khadr may have possessed information of intelligence value, he is still entitled to the safeguards and benefit of the law, and not to arbitrary and illegal detention in a secret detention centre where he was subjected to physical abuse. The United States was the driving force behind Khadr’s fourteen month detention in Pakistan, paying a $500,000 bounty for his apprehension. The United States intelligence agency acted in concert with the ISI to delay consular access by DFAIT to Khadr for three months, contrary to the provisions of the Vienna Convention. The United States, contrary to Canada’s wishes, pressured the ISI to delay Khadr’s repatriation because of its dissatisfaction with Khadr being released without charge, even though there was no admissible evidence upon which to base charges at that time. In my view, given this gross misconduct, there cannot be a clearer case that warrants a stay.

That paragraph is right up there with Winston Churchill's defence of the Mosleys:

Prime Minister to Home Secretary 21 Nov 43

I expect you will be questioned ab out the release of the Mosleys. No doubt the pith of your case is health and humanity. You might however consider whether you should not unfold as a background the great principle of habeas corpus and trial by jury, which are the supreme protection invented by the British people for ordinary individuals againstg the State. The power of the Executive to cast a man into prison without formulating any charge known to the law, and whether particularly to deny him judgement by his peers for an indefinite period, is in the highest degree odious, and is the foundation of all totalitarian Governements whether Nazi or Communist. It is only when extreme danger to the State can be pleaded that this power may be temporarily assumed by the Executive, and even so its working must be interpreted with the unmost vigilance by a Free Paliament. As the danger passses, persons so imprisoned, against whom there is no charge which courts and juries would accept, should be released, as you have been steadily doing, until hardly any are left. Extraordinary powers assumed by the Exective with consent of Parliament in emergencies should be yielded up when as the emengency declines. Nothing can be more abhorrent to democracy than to imprison a man or keep him in prison becaue he is unpopular. This is really the test of civilizaion.

from Closing the Ring, pg. 679

Admittedly, the Mosleys were from Churchill's own class, Lady Mosley being one of the Mitfords and everything - decent, white, God-fearing Christians as opposed to heathen Mohammedans (one realizes, without having to be told twice, who were even then intent on obliterating Western Civilization) - but what he says about the Mosleys could equally well be said about the Khadrs - any of them. And if the Khadrs don't deserve the rule of Canadian law, neither do the Bacons.