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Khadr Sentenced To 40 Years By Military Tribunal


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#721 Wetcoaster

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Posted 02 October 2012 - 09:54 PM

Excellent. I hope they are able to put forth the bias argument in a claim with the NPB. I hope litigation isn't stopped there either. A civil suit against Toews on any grounds they can conjure up because of his statements, would certainly put a smile on my face.

And the only terroristic entity Toews was ever in danger from was his big fat foot in his big fat mouth.

I suppose they can just amend their existing pleadings in the $10 million civil suit already pending against the Government of Canada and add VickiLeaks as a named party.

Remember the SCOC has already ruled that Khadr's Charter rights have been been breached egregiously - and the government should bear in mind the court's virtually untrammelled discretion to fashion a remedy. There are no limits on the damages that could be awarded and those damages could be awarded against people in their personal capacity.

24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

What would be "appropriate and just in the circumstances" for allowing a minor to be tortured and abused for years while the government not only stood by mute but actively participated and then continued the pattern of abuse once he was convicted.

Hey Vic how do you feel about assigning your MPs pension over to Omar??? :lol:

Edited by Wetcoaster, 02 October 2012 - 09:54 PM.

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#722 Sharpshooter

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Posted 02 October 2012 - 10:20 PM

I suppose they can just amend their existing pleadings in the $10 million civil suit already pending against the Government of Canada and add VickiLeaks as a named party.

Remember the SCOC has already ruled that Khadr's Charter rights have been been breached egregiously - and the government should bear in mind the court's virtually untrammelled discretion to fashion a remedy. There are no limits on the damages that could be awarded and those damages could be awarded against people in their personal capacity.

24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

What would be "appropriate and just in the circumstances" for allowing a minor to be tortured and abused for years while the government not only stood by mute but actively participated and then continued the pattern of abuse once he was convicted.

Hey Vic how do you feel about assigning your MPs pension over to Omar??? :lol:


It'd be a start eh? :unsure:

Perhaps an extended water-boarding session would be another good place to start?

After all, it's not like water-boarding is 'torture', right?. ;)

And THEN they can proceed with any and all necessary trammeling on our 'Honourable' Mr. Toews.

Edited by Sharpshooter, 02 October 2012 - 10:21 PM.

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#723 Wetcoaster

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Posted 03 October 2012 - 12:19 PM

An opinion piece from Maher Arar in today's Toronto Sun on Omar Khadr and what should happen to him.

For those who do not recall Arar's case he was awarded $10.5 million in compensation for the Canadian government's role in his "rendition" by the US and torture in Syria following Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar chaired by Justice Dennis O'Connor.

Maher Arar is a Syrian-Canadian electrical engineer. In September 2002, he was detained by U.S. officials on suspicion of terrorist ties and deported to Syria, where he was imprisoned and tortured. He was returned to Canada in October 2003. Three years later, a Commission of Inquiry cleared him of all terrorism allegations.


Like Khadr after his return to Canada Arar was further victimized and it took the judicial inquiry to clear his name. As Justice O'Connor found in his report the damages were exacerbated by these subsequent actions:

Among other things, after his return, he was subjected to several very improper and unfair leaks of information that damaged his reputation, caused him enormous personal suffering and may have contributed to the difficulties this well-educated Canadian man has experienced in finding employment in his chosen field of computer engineering.


Interestingly there is a direct connection between Arar and Omar Khadr and it shows why coerced testimony is not considered reliable.

At a military commission hearing in Guantanamo Bay, Cuba, FBI Special Agent Robert Fuller said a then teenaged Khadr identified Maher Arar as someone he saw at al-Qaeda safe houses and possibly training camps in Afghanistan. Fuller initially said that Khadr immediately identified Arar from black-and-white photos showed him during two weeks of interrogations. On cross-examination, however, Fuller admitted it took Khadr several minutes to identify the man in a photograph. However the evidence was clear as disclosed during the judicial Commission of Inquiry that at the time that Khadr claims he met Arar, Arar was in Canada.

In his view is Khadr should be given the opportunity to be re-integrated into Canadian society.


Omar Khadr is now Canada’s problem, let’s make the right choice: Maher Arar


Omar Khadr, a name every Canadian is familiar with, means different things to different people, depending of course on whom you talk to. To those who have vigorously been opposing his reparation, Omar Khadr is a convicted terrorist who killed an American soldier in Afghanistan. He is also the son of a known Al Qaeda supporter, not to mention the fact that his mother and sister openly criticized Canada, its culture and questioned its values.


To his supporters, Omar Khadr fits the typical profile of a child soldier, a point of view also shared by Senator Romeo Dallaire, the former Canadian army general who proudly served Canada in conflict zones including Africa where he regularly came into contact with African child soldiers. To them Omar Khadr is also the perfect example of the “collateral damage” of the “war on terror.” His supporters have all along cited credible reports which clearly established that he was subjected to torture and various levels of mistreatment, including the sleep deprivation program that he was subjected to before CSIS officers interrogated him in Guantanamo.


Whichever point of view you adopt there are key points that need to be emphasized which I find were lost in the midst of the many emotional debates that have been taking place since his return to Canada.


First and foremost, Omar Khadr is a Canadian citizen, and as such he has the full right to return to his country of birth. He also has the full right to rehabilitation, a basic right that our justice system has afforded to offenders. As far as I know, there is nothing in Canadian law that would allow us to deny him these basic rights and this is regardless of his guilt or innocence. Unless Parliament decides otherwise we just can’t pick and choose which Canadian citizens are allowed to be repatriated (rehabilitated) or not.


Second, his presence in Afghanistan at the time of his capture should of course be legitimately questioned but we should not also forget that he was under 10 years old when his family decided to move there. Even his presence at the compound, where he was captured, was forced upon him as he was only 15 years old at that time. If we wanted to be impartial in our analysis we should have also questioned how it was that the U.S. army invaded Afghanistan without any mandate from the UN (i.e. the invasion was illegal). The bottom line is that Omar Khadr was not captured in Manhattan trying to commit a terrorist act.


Third, Omar Khadr, to the dislike of many, is back and he is now entirely Canada’s problem. What to do, or not to do, with him depends on what we expect him to be once he leaves prison. Keeping Khadr locked up in extremely strict prison conditions will not solve the problem regardless what you believe he is or is not. Arlette Zinck, an English professor at King’s University College in Edmonton, has devised a special educational program to help his rehabilitation. He has reportedly shown progress and we are told he’s been very keen to continue on that path.


In my opinion that would be the best outcome: a Canadian citizen who can reintegrate into society, go to school, and eventually become an active and, hopefully, a contributing Canadian citizen. This outcome is far from guaranteed but the same can be said of any offender who is going through a rehabilitation process.


To make sure rehabilitation is working it has to be monitored by experts in the field. Above all, I believe he should have a life mentor that he can trust. Omar said during his psychological assessment “I miss being trusted.” I can attest to this from my personal experience. I was in the same exact fragile state when I came back from Syria. I had lost so much confidence in myself, and above all I missed being trusted. In Omar’s case that feeling is compounded by the fact that he was not abused just once, but repeatedly: by his family, by the U.S. government, and through their indifference, by his own government.


We have two choices. We either continue to demonize him for actions he took when he was a teenager or we lend him a hand. The choice we make will certainly tell the rest of the world who we are as a nation, and above all who we are as people. Let’s together make the right choice.

http://www.thestar.c...s-being-trusted
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#724 Sharpshooter

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Posted 03 October 2012 - 02:08 PM

Thanks for Op-Ed. It really highlights how a person can be further abused by its own country. Not that Canada has ever been immune to not further victimizing people who were victims of adults/authorities as children.

I fully agree that Omar should be rehabilitated under a system of rehabilitation. Though our systems of justice and corrections has been slowly altered away from one that was once more balanced between a restorative model and a retributive one. It seems this gov't has decided to drag justice into a demonizing one in this case.

That is if Canada and Canadians remember what separates us from the shoot first, aim later models of injustice found around the world.
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#725 Wetcoaster

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Posted 03 October 2012 - 02:44 PM

Thanks for Op-Ed. It really highlights how a person can be further abused by its own country. Not that Canada has ever been immune to not further victimizing people who were victims of adults/authorities as children.

I fully agree that Omar should be rehabilitated under a system of rehabilitation. Though our systems of justice and corrections has been slowly altered away from one that was once more balanced between a restorative model and a retributive one. It seems this gov't has decided to drag justice into a demonizing one in this case.

That is if Canada and Canadians remember what separates us from the shoot first, aim later models of injustice found around the world.

And the simple fact is that 99.9% of the prisoners that we incarcerate will be released - so as a matter of enlightened self-interest (and public safety) rehabilitation and re-integration into society should continue to be the foundation of our correctional system.
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#726 Buddhas Hand

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Posted 03 October 2012 - 02:46 PM

Thanks for Op-Ed. It really highlights how a person can be further abused by its own country. Not that Canada has ever been immune to not further victimizing people who were victims of adults/authorities as children.

I fully agree that Omar should be rehabilitated under a system of rehabilitation. Though our systems of justice and corrections has been slowly altered away from one that was once more balanced between a restorative model and a retributive one. It seems this gov't has decided to drag justice into a demonizing one in this case.

That is if Canada and Canadians remember what separates us from the shoot first, aim later models of injustice found around the world.


I believe canada is one of the more enlightened countries on this planet sharp , but there will always be injustice in the world and it is up to people like us to speak out , write to our member of parliament , one person can make a difference .
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#727 Wetcoaster

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Posted 03 October 2012 - 03:20 PM

I believe canada is one of the more enlightened countries on this planet sharp , but there will always be injustice in the world and it is up to people like us to speak out , write to our member of parliament , one person can make a difference .

Speaking from years of experience I would have to take issue with that sentiment.
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#728 Buddhas Hand

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Posted 03 October 2012 - 03:37 PM

Speaking from years of experience I would have to take issue with that sentiment.


there have been many instances where the actions of one person are the catalyst for change .

and i have many years of experience under my belt mate :)

if i had the time i would tell you in detail how my beautiful girl took her own laywer to the victorian lawyers tribunal {self regulating } , beat him at his own game , made him pay , and if he screws up again he will be disbarred . she is the only person to ever do this without legal representation in the history of the victorian laywers tribunal .
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Aldous Huxley.


#729 Wetcoaster

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Posted 03 October 2012 - 05:46 PM

there have been many instances where the actions of one person are the catalyst for change .

and i have many years of experience under my belt mate :)

if i had the time i would tell you in detail how my beautiful girl took her own laywer to the victorian lawyers tribunal {self regulating } , beat him at his own game , made him pay , and if he screws up again he will be disbarred . she is the only person to ever do this without legal representation in the history of the victorian laywers tribunal .

I am unfamiliar with this "victorian lawyers tribunal". In which jurisdiction does it operate?

We were speaking about changing government policies. One off court cases, tribunal hearings and the like are something quite separate and apart.
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#730 Sharpshooter

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Posted 03 October 2012 - 09:36 PM

I believe canada is one of the more enlightened countries on this planet sharp , but there will always be injustice in the world and it is up to people like us to speak out , write to our member of parliament , one person can make a difference .


We're only as enlightened as the policies and the performance of our key institutions. Parliamentary, Justice, and the Court systems to name a few have a great impact on our actual and perceived civility and enlightenment.

What's occurred with and to citizens like Khadr and Arar, show the erosion of some of those systems and the hope that another will right the wrongs of the other(s).

@ Wetcoaster. Speaking of Canadian institutions, what are your impressions or thoughts of the appointment of Wagner to the SCC?
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#731 Wetcoaster

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Posted 03 October 2012 - 09:51 PM

@ Wetcoaster. Speaking of Canadian institutions, what are your impressions or thoughts of the appointment of Wagner to the SCC?

Excellent background in commercial law and his judgments are clear and well-written. He comes from the school of Plain Language drafting - something I have pushed for years. He is also fluently bilingual which will be an advantage.
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#732 Buddhas Hand

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Posted 04 October 2012 - 03:17 AM

I am unfamiliar with this "victorian lawyers tribunal". In which jurisdiction does it operate?

We were speaking about changing government policies. One off court cases, tribunal hearings and the like are something quite separate and apart.


It was known as the, legal professional tribunal , and has since been merged in V-Cat , and i live in the state of victoria, in australia .

And i was talking about one person making a difference , fighting something when the odds are against them , standing up to the bully .
I was not restricting my statement to politics .
The idea that one person cannot make a difference will be our downfall if we believe it .
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The Real war is not between the east and the west. The real war is between intelligent and stupid people.

Marjane Satrapi

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That men do not learn very much from the lessons of history is the most important of all the lessons that history has to teach.

Aldous Huxley.


#733 Buddhas Hand

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Posted 04 October 2012 - 03:31 AM

We're only as enlightened as the policies and the performance of our key institutions. Parliamentary, Justice, and the Court systems to name a few have a great impact on our actual and perceived civility and enlightenment.

What's occurred with and to citizens like Khadr and Arar, show the erosion of some of those systems and the hope that another will right the wrongs of the other(s).

@ Wetcoaster. Speaking of Canadian institutions, what are your impressions or thoughts of the appointment of Wagner to the SCC?


As i have pointed out something very simmilar happened here in australia with david hicks , our societies seem to share many traits .

I find as an individual i am always striving to be a better person , and our societies are made up of people who do this , some who do not , and some who are just downright pieces of work .
you are always going to get the full spectrum of human being's , good , bad and indifferent , and therein lies the challenge for any society .
There will always be injustice , just as there will always be a certain type of person who wants to combat that injustice .
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The Real war is not between the east and the west. The real war is between intelligent and stupid people.

Marjane Satrapi

tony-abbott-and-stephen-harper-custom-da

That men do not learn very much from the lessons of history is the most important of all the lessons that history has to teach.

Aldous Huxley.


#734 Wetcoaster

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Posted 04 October 2012 - 08:57 AM

MacLean's Magazine looking at the three potential legal routes to be taken by Omar Khadr now he is back in Canada -
  • parole
  • setting aside the plea agreement and conviction to be released immediately
  • the civil law suit against the Canadian government.

Khadr pleaded guilty in October 2010 and was sentenced to another eight years. Now in Canada, he will be eligible for parole in May 2013, after serving just one-third of that term. But his freedom is not guaranteed. The Parole Board of Canada’s primary concern is always the protection of society, not the wishes of an offender, and every application triggers a detailed risk assessment. Even if Khadr is released, board members can set strict conditions on where he can go and who he can associate with—including keeping him away from “people involved in criminal activity.”


Would that include his notorious family? Again, only time will tell. Some of his siblings have faced criminal charges (terrorism or otherwise) and Vic Toews, Canada’s public safety minister, certainly made his feelings clear. In the document he signed approving Khadr’s transfer, he expressed “concern” that Khadr continues to “idealize” his dead father, a senior al-Qaeda associate, and that his mom and sister “have openly applauded his crimes and terrorist activities.” But what Toews wants no longer matters. The parole board is an independent tribunal, and if Khadr is allowed to see his family, the Harper government can do nothing about it.


Khadr’s lawyers could also pursue another option long before their client becomes eligible for parole: ahabeas corpus application. Simply put, they could ask a judge—at any point—to consider whether Khadr’s ongoing imprisonment is unlawful because his confession and subsequent guilty plea were supposedly the fruits of American torture. If successful, Khadr could walk free immediately, no strings attached. (His lawyers will not say if they are considering such an application.)


One thing is certain, though: Khadr’s $10-million lawsuit against the federal government, filed years ago, appears destined for a hefty out-of-court settlement. The Supreme Court has already ruled (twice, in fact) that Ottawa violated his Charter rights—not because he was stuck in a faraway cage that was beyond the rule of law, but because the feds dispatched officials to that cage to grill him for information. At this point, after repeated rebukes from the country’s highest court, what defence could the feds possibly present?

http://www2.macleans...to-the-unknown/
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#735 gurn

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Posted 04 October 2012 - 09:15 AM

"what defence could the feds possibly present?"

WE were only following orders?

Ohh wait that doesn't work very well at all.
Well I guess the govt is screwed.But watch for them to delay this crap till Omar is dead by changing the applicable laws, usually by moving a comma for here to there and saying to the court "New law,rule on it" then "ohh it is still illegal what was done ? Here try this law" with yet another comma placement change.
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#736 taxi

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Posted 04 October 2012 - 09:40 AM

Khadr won't do anything. He's on film building and placing IEDs. Even if he manages to convince a judge to squash his conviction and retry him, he'd still be open to a massive civil suit from the families of Canadian soldiers who were injured or killed in the area where he was placing those weapons. Even as a 15 year old, he'd still be open to criminal charges.
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#737 Sharpshooter

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Posted 04 October 2012 - 09:50 AM

Khadr won't do anything. He's on film building and placing IEDs. Even if he manages to convince a judge to squash his conviction and retry him, he'd still be open to a massive civil suit from the families of Canadian soldiers who were injured or killed in the area where he was placing those weapons. Even as a 15 year old, he'd still be open to criminal charges.


Khadr's lawyers won't leave this as is. I'm almost certain of it. The abuse and torture of a minor while our gov't was complicit, isn't something that Canadian lawyers will turn a blind eye to, and I doubt Khadr will either.

And the gov't would have to prove that what Khadr did at the behest of his father as a minor led directly to the death of Canadian soldiers in a criminal court setting, where the burden of proof is higher than in a military tribunal, aka, kangaroo court.

Once the whole story is sorted out and the American version is dismantled as the coercive and tortured gleaned testimony that it was, there won't be a court in Canada that convicts him. I hope not only does the Supreme Court of Canada re-open this case but also the case that the Khadr lawyers bring against the gov't. It's a black mark that needs judicial cleansing and sunlight is one of the better disinfectants that I know of.
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#738 Sharpshooter

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Posted 04 October 2012 - 09:53 AM

MacLean's Magazine looking at the three potential legal routes to be taken by Omar Khadr now he is back in Canada -

  • parole
  • setting aside the plea agreement and conviction to be released immediately
  • the civil law suit against the Canadian government.

Khadr pleaded guilty in October 2010 and was sentenced to another eight years. Now in Canada, he will be eligible for parole in May 2013, after serving just one-third of that term. But his freedom is not guaranteed. The Parole Board of Canada’s primary concern is always the protection of society, not the wishes of an offender, and every application triggers a detailed risk assessment. Even if Khadr is released, board members can set strict conditions on where he can go and who he can associate with—including keeping him away from “people involved in criminal activity.”


Would that include his notorious family? Again, only time will tell. Some of his siblings have faced criminal charges (terrorism or otherwise) and Vic Toews, Canada’s public safety minister, certainly made his feelings clear. In the document he signed approving Khadr’s transfer, he expressed “concern” that Khadr continues to “idealize” his dead father, a senior al-Qaeda associate, and that his mom and sister “have openly applauded his crimes and terrorist activities.” But what Toews wants no longer matters. The parole board is an independent tribunal, and if Khadr is allowed to see his family, the Harper government can do nothing about it.


Khadr’s lawyers could also pursue another option long before their client becomes eligible for parole: ahabeas corpus application. Simply put, they could ask a judge—at any point—to consider whether Khadr’s ongoing imprisonment is unlawful because his confession and subsequent guilty plea were supposedly the fruits of American torture. If successful, Khadr could walk free immediately, no strings attached. (His lawyers will not say if they are considering such an application.)


One thing is certain, though: Khadr’s $10-million lawsuit against the federal government, filed years ago, appears destined for a hefty out-of-court settlement. The Supreme Court has already ruled (twice, in fact) that Ottawa violated his Charter rights—not because he was stuck in a faraway cage that was beyond the rule of law, but because the feds dispatched officials to that cage to grill him for information. At this point, after repeated rebukes from the country’s highest court, what defence could the feds possibly present?

http://www2.macleans...to-the-unknown/




I hope they go the route of a habeus corpus application. It might take a while to put all the pieces the lawyers need together, but I figure they've been building this case for years, no?
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#739 taxi

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Posted 04 October 2012 - 10:31 AM

Khadr's lawyers won't leave this as is. I'm almost certain of it. The abuse and torture of a minor while our gov't was complicit, isn't something that Canadian lawyers will turn a blind eye to, and I doubt Khadr will either.

And the gov't would have to prove that what Khadr did at the behest of his father as a minor led directly to the death of Canadian soldiers in a criminal court setting, where the burden of proof is higher than in a military tribunal, aka, kangaroo court.

Once the whole story is sorted out and the American version is dismantled as the coercive and tortured gleaned testimony that it was, there won't be a court in Canada that convicts him. I hope not only does the Supreme Court of Canada re-open this case but also the case that the Khadr lawyers bring against the gov't. It's a black mark that needs judicial cleansing and sunlight is one of the better disinfectants that I know of.


No the government would not have to prove any of those things. Minors can still be held accountable for their actions both civily and criminally.

Even if the American narrative is totally dismantled and Khadr isn't held responsible for throwing that grenade, that doesn't change the fact he was providing material support for enemy combatants that day. That doesn't change the fact he is on camera building and placing IEDs in an area that Canadian and US soldiers were present in.

I don't dispute that the burden of proof is higher in a criminal court than a military court. However, despite what people here are saying, international law on this issue is not clear cut in any way. As previously pointed out dealing with soldiers between the ages of 15-18 is a huge gray area. Anyone with any kind of knowledge of international law, knows it is a huge gray area to begin with. It's largely based on contracts between signatory nations.

Show me specific legislation that sets out the remedy and procedure for dealing with a 15 year old soldier fighting for a guerilla army like the Taliban. Firstly, the Taliban is not a signatory to any the legislation. And no, I don't want some vague legislation on the rights of children. Regarldess of what anyone is saying it's common for people under the age of 18 to be engaged in military combat, and the proper method of dealing with these soldiers once captured is even vaguer. And no, international law does not dictate you merely have to let them go and allow them to re-enter the battlefield.

The truth of the matter is that people are pushing the Khard case as a means of attaking the Harper administration. However, what they fail to realize is that the majority of the most serious infringements happened prior to Harper taking office.

I'd also like to add that although you are correct that the burden of proof is higher in a criminal court than a military court, it's far lower in a civil court than a criminal court. Khadr already has several lawsuits pending against him. If things are reoppened, once the dust settles, Khadr is likely to owe millions upon millions and be charged with a variety of charges, potentially including: murder, treason, and terrorism. Once again, he's on tape at one of Abut Laith al-Libi's (one of the most dangerous men to have ever lived) camps building and placing IEDs. Even if he didn't throw that grenade and was simply providing translation services, that's still a crime in itself, both internationally and domestically.

I don't disagree that he has the right to due process. Even though he's only ever lived in Canada for a few months at a time, he possesses a piece of paper that says he is a Canadian citizen. However, if you think he's going to walk away from all of this with some kind of payout, you're out to lunch. He's knee deep in both civil liability and criminal charges.

Yes his age will be taken into consideration, but it already has in a major way. If Omar Khadr had been 3 years older he would have been given multimple life sentences and never seen he light of day again. Instead, he was given 8 years. Any lawyer advising Khadr on his case is going to let him know about the potential new charges he'd face and the potential new setence he'd face. Even as a minor, that could extend well beyond 8 years.
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#740 Wetcoaster

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Posted 04 October 2012 - 11:31 AM

I hope they go the route of a habeus corpus application. It might take a while to put all the pieces the lawyers need together, but I figure they've been building this case for years, no?

Yes, I have no doubt they have the material as there were previous habeas applications in the US so much of that material would be applicable.

There are two ways to proceed to set aside the plea agreement and convictions and they are not mutually exclusive.

The first is to focus upon the treatment of Khadr in custody - "enhanced interrogation techniques", etc. (possibly rising to torture) so that any statements made would be considered coerced and as they formed the basis for the convictions, the argument would be the plea agreement cannot stand. Also Khadr was held for years without access to counsel, access to consular assistance (guaranteed under the Vienna Convention) and held for years without formal charges being filed. This would be essence an attack upon procedures alleging a lack of fundamental justice or what the Americans call due process.

This last issue ties into the second means of attack - the crimes themselves are not valid. This is a substantive claim. Why was Khadr not charged for years? Well because the crimes of which he was convicted did not exist at the time of the firefight and his capture - it was some four years later that the US began to pass laws and the first two attempts were found unlawful. It was not until 2009 that the process under which Khadr was actually prosecuted was put in place. And it was in the 2009 Military Commission Act that set out any civilian targeting an American soldier was an unprivileged belligerent guilty of murder or attempted murder. The result is a very bizarre construct of Rules of Engagement in Afghanistan - US forces can target anyone they wish and if persons attempt to defend themselves they have committed a crime as defined by the US Congress - regardless of whether the US military force had any grounds whatsoever to launch an attack. Or as law professor David Glazier (see below) puts it:

The U.S. approach has the practical effect of converting this armed conflict into a human hunting season; the government asserts U.S. combatants had the right to shoot Khadr on sight (he was shot twice in the back based on his being a “hostile” rather than because he posed any particular threat at the time) yet criminally prosecute him for fighting back. This approach repudiates the functional equivalence between the conflict parties which is a core element of the LOAC and attempts to transform this law from one evenhandedly regulating the conduct of both parties into a unilateral shield for one side.


I am sure you can see the problem with making something a crime ex post facto. And it has been contended that the crimes are not in accordance with international law.

Jason Ralph who is a professor in international relations at the University of Leeds and an expert in the fields of international law, American foreign policy, human rights and the war on terror writes:

The charges against Khadr reflect US attempts to rewrite international law – and the implications for the laws of war are potentially profound.
...
The issue here is that "murder in violation of the laws of war" – the charge laid against Khadr – is not recognised internationally as a war crime. Following the Bush administration's lead, the US Congress insisted in the 2009 Military Commission Act that any civilian targeting an American soldier was an unprivileged belligerent guilty of murder or attempted murder. But "unprivileged belligerent" is not a category of combatant defined in the laws of war.

Under the Geneva conventions, violent individuals are either combatants or civilians. As an enemy combatant, one would have expected Khadr (age aside) to be targeting US soldiers. The only way the US government could have prosecuted him under the laws of war, therefore, was to charge him with killing while disguised as a civilian or with "perfidy". (My note neither of which apply to Khadr - Perfidy is set out Art 37. Prohibition of Perfidy in the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 - http://www.icrc.org/...125641e0052b079
)

As the defence counsel argued in the similar case of Mohammed Jawad, however, al-Qaida fighters do not have uniforms to give up, so their civilian appearance was not a disguise. They were, therefore, in the eyes of the laws of war, civilians. As a non-combatant throwing a grenade, Khadr could certainly have been prosecuted for murder – but not under the laws of war and not in a military commission. He should have been due a trial in the civilian courts of Afghanistan, the US or Canada, where the rules of evidence would have been very different.

The implication of finding a civilian guilty of murder in violation of the laws of war is significant. It is another instance where the US has "militarised" civilian crimes. Other detainees, for instance, have been found guilty by military commission for providing material support for terrorism, and rights groups continue to fear that the US interpretation of "enemy combatant" is now so broad that a proverbial "little old lady in Switzerland" giving to a charity with armed Islamist connections could be tried in a military commission.

Above all, the Khadr ruling is a case where the US has pursued its own definition of the laws of war. "Murder in violation of the laws of war" was codified by the US Congress alone, and many experts consider it a rank misinterpretation of international law. If other states adopt the American example, then we may look back at the Khadr trial as the moment when a new form of war crime was created, unilaterally and for the expediency of the world's pre-eminent military power.

http://www.guardian....da-canada/print

Professor David W. Glazier of the Loyola Law School in Los Angeles takes this issue even further and contends that none of the charges are valid and that in fact the only possible war crime here has been committed by the US in subjecting Khadr to the Military Commission Tribunal system. In his extensive paper A Court Without Jurisdiction: A Critical Assessment of the Military Commission Charges Against Omar Khadr – Professor Glazier says:

Abstract:

This analysis, extracted from a larger work in progress examining the overall legal issues with the Obama administration’s military commissions, focuses on the validity of the charges levied against twenty-three year-old Canadian citizen Omar Khadr. Although most public criticism has been directed at procedural shortcomings, the commissions’ substantive law issues are more significant. Even if Khadr did everything alleged, none of the five charges as actually lodged describes a criminal violation of the law of armed conflict (LOAC). Two of the charges, conspiracy and providing material support to terrorism, are inherently problematic. The remaining offenses, murder and attempted murder “in violation of the law of war,” and spying, are capable of valid application, but lack legitimacy in Khadr’s factual situation. Essentially the government seeks to distort the fundamental legal equality between opposing belligerents into a unilateral shield for coalition personnel, turning the conflict into a “hunting season” in which U.S. forces can shoot their enemy on sight but their adversaries commit a war crime by fighting back. Because the tribunals’ statutory bases, the Military Commission Acts of 2006 and 2009, were enacted after Khadr was in custody, any charges lacking sound grounding in the LOAC constitute impermissible ex post facto enactments. These charges fail that test and the commission thus lacks jurisdiction. Khadr can only be validly tried in a U.S. or Afghan domestic law court.

http://papers.ssrn.c...ract_id=1669946

As Professor Glazier concludes after an exhaustive review of domestic US law and international law including the law of armed conflict (LOAC):

CONCLUSION

There has been substantial criticism of the Guantánamo military commissions on the basis of their procedural shortcomings ever since President Bush first announced his intention to employ them in November 2001. The commission procedures mandated by the MCA are a substantial improvement over those envisioned in the immediate aftermath of 9/11 although the initial sessions of Khadr‘s trial show that there is still substantial residual room for criticism as the rules are actually being applied. But far too little attention has been paid to the larger substantive issue of the legal validity of the basic charges. Without valid subject matter jurisdiction over the defendant‘s alleged conduct, any trial is a legal nullity, and the procedure thus wholly irrelevant.


The Guantánamo trials must be legally grounded in the LOAC or else they constitute an impermissible ex post facto application of law enacted well after the defendants were in custody. Yet despite the fact that he faces five separate charges, the specifications lodged against Canadian defendant Omar Khadr either fail to state a recognized violation of the law of war, or where the offense is facially valid, the specific conduct charged does not meet the law‘s definition of the crime. The perverse irony is that the only war crime present in Khadr‘s Guantánamo courtroom appears to be denial of a fair trial, and the perpetrator is the government, not the defendant. And while the analysis in this article has focused on the specific application of these rules to Khadr, it is important to note that the problematic charges of conspiracy and providing material support to terrorism are the only offenses involved in three of the four trials completed to date, suggesting the real possibility of reversal when any of these cases finally get to the civilian appellate review process.


This analysis is not intended to excuse Khadr‘s actions. Although there is some reason to question the validity of prosecuting conduct committed by a 15 year-old under the modern LOAC, this article takes no position on that issue, nor is it necessary to address it, since Khadr‘s prosecution does not comport with the law of war regardless of his age. If the government thinks it is appropriate to prosecute this defendant for his acts in association with al Qaeda, it is free to do so under any applicable provisions of either U.S. or Afghan domestic law, following whatever rules those codes and international human rights law provide for dealing with youthful offenders.


And file this under the heading of ultimate irony or "what is sauce for the goose is (or should be) sauce for the gander" - as Professor Glazier points out if this militarization of what would normally be a civilian crime is correct then this is the logical result:


If the military commission prosecution team was correct that participation in hostilities by a non-uniformed civilian constituted a war crime, then it would be declaring all those participating in, supervising, and having authorized, the CIA‘s drone program to be war criminals, including logically both the immediate past and current commanders-in-chief. This criminalization would also extend to the use of CIA paramilitary personnel, to U.S. special forces troops fighting in civilian clothes, as well as logically to U.S. support for third country ―unprivileged belligerents, such as the original Afghan mujahidin who opposed the Soviet invasion. Incredibly, testimony at Khadr‘s aborted first trial sessions indicated that an armed CIA officer in civilian clothes—an unprivileged belligerent—was among the Americans participants at the firefight in which Speer was fatally wounded. While the allies have been accused of applying a one-sided ―victor‘s justice to captured Axis personnel in World War II era war crimes, the author knows of no instance in which the enemy was punished for conduct which the allies had also engaged in during the precise events in question.


There seems to be wealth of material for Khadr's legal counsel should they choose to try to set aside the plea agreement and convictions.
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#741 Buddhas Hand

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Posted 04 October 2012 - 02:11 PM

This last issue ties into the second means of attack - the crimes themselves are not valid. This is a substantive claim. Why was Khadr not charged for years? Well because the crimes of which he was convicted did not exist at the time of the firefight and his capture - it was some four years later that the US began to pass laws and the first two attempts were found unlawful. It was not until 2009 that the process under which Khadr was actually prosecuted was put in place. And it was in the 2009 Military Commission Act that set out any civilian targeting an American soldier was an unprivileged belligerent guilty of murder or attempted murder. The result is a very bizarre construct of Rules of Engagement in Afghanistan - US forces can target anyone they wish and if persons attempt to defend themselves they have committed a crime as defined by the US Congress - regardless of whether the US military force had any grounds whatsoever to launch an attack. Or as law professor David Glazier (see below) puts it:


The U.S. approach has the practical effect of converting this armed conflict into a human hunting season; the government asserts U.S. combatants had the right to shoot Khadr on sight (he was shot twice in the back based on his being a “hostile” rather than because he posed any particular threat at the time) yet criminally prosecute him for fighting back. This approach repudiates the functional equivalence between the conflict parties which is a core element of the LAC and attempts to transform this law from one evenhandedly regulating the conduct of both parties into a unilateral shield for one side.


Thank you wetcoaster for providing this information , though i find it hard to believe .

There truly should be a war on errorism :sadno:


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#742 Wetcoaster

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Posted 04 October 2012 - 04:13 PM

This last issue ties into the second means of attack - the crimes themselves are not valid. This is a substantive claim. Why was Khadr not charged for years? Well because the crimes of which he was convicted did not exist at the time of the firefight and his capture - it was some four years later that the US began to pass laws and the first two attempts were found unlawful. It was not until 2009 that the process under which Khadr was actually prosecuted was put in place. And it was in the 2009 Military Commission Act that set out any civilian targeting an American soldier was an unprivileged belligerent guilty of murder or attempted murder. The result is a very bizarre construct of Rules of Engagement in Afghanistan - US forces can target anyone they wish and if persons attempt to defend themselves they have committed a crime as defined by the US Congress - regardless of whether the US military force had any grounds whatsoever to launch an attack. Or as law professor David Glazier (see below) puts it:


The U.S. approach has the practical effect of converting this armed conflict into a human hunting season; the government asserts U.S. combatants had the right to shoot Khadr on sight (he was shot twice in the back based on his being a “hostile” rather than because he posed any particular threat at the time) yet criminally prosecute him for fighting back. This approach repudiates the functional equivalence between the conflict parties which is a core element of the LAC and attempts to transform this law from one evenhandedly regulating the conduct of both parties into a unilateral shield for one side.

Thank you wetcoaster for providing this information , though i find it hard to believe .

There truly should be a war on errorism :sadno:

The problem is that to understand the issues you have to look beyond "Omar BAD!!!" and that is what Vic Toews and the CPC have been peddling. The facts are also inconvenient.

When the Liberals were in power they were beginning to ask questions about the circumstances of Khadr's capture and that is when the official reports were changed to claim he was the only person alive and fighting in the compound when Speer was killed. Subsequently other evidence was inadvertently disclosed that showed this to be untrue - another fighter with a rifle and that Khadr had been buried under rubble from the intense bombardment before Speer was killed. But by that time the Conservatives were in power and they had the party line that Khadr was "before the courts" and nothing could be done. Every other Western nation pulled their citizens out and not one of them had been 15 years of age when captured.

And the Canadian sheeple have bought into that story including the myth of the Staff Sergeant Speer was an "unarmed medic" - he was an armed combat soldier on that mission and in the assault element - sixth in line according to reports.
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#743 Wetcoaster

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Posted 06 October 2012 - 08:49 AM

CBC News is reporting that based on information from the National Parole Board, Omar Khadr will be eligible to apply for day parole in January 1, 2013 and he would be eligible for full parole on July 1, 2013.

His statutory release date is September 20, 2016, and his full term of incarceration ends (aka the warrant expiry date) on September 20, 2018.

According to a timetable provided to CBC News by the Correctional Service of Canada (CSC), Khadr is eligible for day parole on Jan. 1, 2013 – and for full parole seven months later, on July 1, 2013.

On day parole, offenders work, volunteer or go to school during the day then report back to a community-based residential facility known as a halfway house; while on full parole the offender lives on their own but reports regularly to a parole officer.
...
Caroline Douglas, director of communications for the Parole Board of Canada, said an offender must apply for day parole – and can choose to or not. But full parole reviews are mandatory unless the offender waives his or her right.

Khadr's lawyer, John Norris, told CBC News that no application has been made to date.

Scheduling and length of time between an application and hearing varies and depends on "a host of variables," but the fact that an offender was convicted in another jurisdiction has no bearing on the process, Douglas said.

Khadr’s statutory release date is Sept. 20, 2016, and his warrant expiry date is two years later – on Sept. 20, 2018.

Khadr is now incarcerated at Millhaven Institution in Bath, Ont. He will be eligible for family visits and escorted and unescorted trips into the community, but CSC would not provide details of eligibility.

"For privacy reasons, we can not disclose the specifics of an offender's case," said CSC spokeswoman Suzanne Leclerc.

http://www.cbc.ca/ne...day-parole.html
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#744 Sharpshooter

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Posted 06 October 2012 - 09:25 AM

CBC News is reporting that based on information from the National Parole Board, Omar Khadr will be eligible to apply for day parole in January 1, 2013 and he would be eligible for full parole on July 1, 2013.

His statutory release date is September 20, 2016, and his full term of incarceration ends (aka the warrant expiry date) on September 20, 2018.

According to a timetable provided to CBC News by the Correctional Service of Canada (CSC), Khadr is eligible for day parole on Jan. 1, 2013 – and for full parole seven months later, on July 1, 2013.

On day parole, offenders work, volunteer or go to school during the day then report back to a community-based residential facility known as a halfway house; while on full parole the offender lives on their own but reports regularly to a parole officer.
...
Caroline Douglas, director of communications for the Parole Board of Canada, said an offender must apply for day parole – and can choose to or not. But full parole reviews are mandatory unless the offender waives his or her right.

Khadr's lawyer, John Norris, told CBC News that no application has been made to date.

Scheduling and length of time between an application and hearing varies and depends on "a host of variables," but the fact that an offender was convicted in another jurisdiction has no bearing on the process, Douglas said.

Khadr’s statutory release date is Sept. 20, 2016, and his warrant expiry date is two years later – on Sept. 20, 2018.

Khadr is now incarcerated at Millhaven Institution in Bath, Ont. He will be eligible for family visits and escorted and unescorted trips into the community, but CSC would not provide details of eligibility.

"For privacy reasons, we can not disclose the specifics of an offender's case," said CSC spokeswoman Suzanne Leclerc.

http://www.cbc.ca/ne...day-parole.html



Any chance he could get his case in front of the SCC in order to shorten his sentence? I'm sure he could day parole much sooner than getting his case heard. I have a feeling he'll be tied up in the courts till he's in his 30's.
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#745 Wetcoaster

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Posted 06 October 2012 - 10:07 AM

Any chance he could get his case in front of the SCC in order to shorten his sentence? I'm sure he could day parole much sooner than getting his case heard. I have a feeling he'll be tied up in the courts till he's in his 30's.

He could not go directly to the SCC - he would first need to file suit in a lower court.
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#746 Sharpshooter

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Posted 06 October 2012 - 10:14 AM

He could not go directly to the SCC - he would first need to file suit in a lower court.


Ah, yeah, thought so.
Posted Image



I assume the path then would be, Federal Court --> Federal Court of Appeals, ---> SCC ?
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#747 Wetcoaster

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Posted 06 October 2012 - 10:43 AM

Ah, yeah, thought so.
Posted Image



I assume the path then would be, Federal Court --> Federal Court of Appeals, ---> SCC ?


Most likely but there might be an issue with Section 18 of the Federal Court Act because it does not confer jurisdiction over habeas corpus in respect of federal boards and tribunals. The case law is all over the map in this area.

Usually it is not an issue because the Criminal Code refers back to the provincial court which convicted and imposed the sentence as the originating court in such applications but here Khadr was convicted outside of Canada by a foreign Military Tribunal.
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#748 Sharpshooter

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Posted 06 October 2012 - 11:05 AM

Most likely but there might be an issue with Section 18 of the Federal Court Act because it does not confer jurisdiction over habeas corpus in respect of federal boards and tribunals. The case law is all over the map in this area.

Usually it is not an issue because the Criminal Code refers back to the provincial court which convicted and imposed the sentence as the originating court in such applications but here Khadr was convicted outside of Canada by a foreign Military Tribunal.


Do the Canadian courts even recognize the Military Tribunal as legitimate, when it's outside of it's own constitutional framework and the international court system? It isn't even a military court, in the technical sense. It's more akin to a hastily slapped together kangaroo court.

Couldn't one argument brought forth in Canada by Omar's team, involve questioning the legitimacy of the system of 'justice' that charged, sentenced and incarcerated him, which Canada is now holding him under? Basically, if the 'court' is illegitimate, then isn't the sentence as well?

Edited by Sharpshooter, 06 October 2012 - 11:16 AM.

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#749 Wetcoaster

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Posted 06 October 2012 - 12:07 PM

Do the Canadian courts even recognize the Military Tribunal as legitimate, when it's outside of it's own constitutional framework and the international court system? It isn't even a military court, in the technical sense. It's more akin to a hastily slapped together kangaroo court.

Couldn't one argument brought forth in Canada by Omar's team, involve questioning the legitimacy of the system of 'justice' that charged, sentenced and incarcerated him, which Canada is now holding him under? Basically, if the 'court' is illegitimate, then isn't the sentence as well?

Those would be the sort of issues raised in trying to have the guilty pleas declared a nullity and setting the plea agreement aside.

However in setting the plea agreement aside does Khadr revert to his prior status as a some category of belligerent and as such the US could claim they are entitled to hold him in detention for so long as this war on terror is ongoing. Under LOAC nations are entitled to hold POWs for as long as the conflict continues.

That may well be one reason why his counsel have not filed a habeas application or another similar claim as they do not want to take a chance on that occurring.
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#750 Buddhas Hand

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Posted 06 October 2012 - 02:42 PM

nd

Do the Canadian courts even recognize the Military Tribunal as legitimate, when it's outside of it's own constitutional framework and the international court system? It isn't even a military court, in the technical sense. It's more akin to a hastily slapped together kangaroo court.

Couldn't one argument brought forth in Canada by Omar's team, involve questioning the legitimacy of the system of 'justice' that charged, sentenced and incarcerated him, which Canada is now holding him under? Basically, if the 'court' is illegitimate, then isn't the sentence as well?


That is a question i would love to know the the answer to as well sharp .
If the The Canadian Supreme Court has confirmed that Canadian officials breached Omar Khadr’s right to liberty and security of the person under s 7 of the Charter of Rights and Freedoms , then why have those officials not been held accountable for those actions ?
Is it because , the Supreme Court held that it does not have the power to order that the Canadian Government seek Mr Khadr’s repatriation from Guantanamo Bay, because such a request falls within the Canadian Government’s prerogative power in foreign affairs ?
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The Real war is not between the east and the west. The real war is between intelligent and stupid people.

Marjane Satrapi

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That men do not learn very much from the lessons of history is the most important of all the lessons that history has to teach.

Aldous Huxley.





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