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Khadr Sentenced To 40 Years By Military Tribunal


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#781 Wetcoaster

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Posted 16 October 2012 - 09:39 PM

Couldn't he also argue some mitigating circumstance, such as the threat of life-long incarceration based on duress coming from his military handlers? For instance.

Never heard that latin phrase of legality, thanks for teaching me something new.


That sort of argument goes more to fundamental justice considerations (or what the 'Muricans call due process) - the case you cite has more to do with illegality in substance.
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#782 Wetcoaster

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Posted 17 October 2012 - 04:35 PM

The CBC analyses the decision on Tuesday by a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit that overturned Salim Hamdan's 2008 conviction for providing material support for terrorism and what it may mean for Omar Khadr.


A new American court ruling in favour of Osama bin Laden's driver has cast doubt on the validity of Omar Khadr's war crimes convictions, legal experts said Wednesday.

Even so, they said, several factors make it essentially impossible for Khadr to have his convictions before a military commission in Guantanamo Bay set aside.

Those factors include his guilty pleas, his waiver of his appeal rights, and the murky legal nature of his most serious crime: murder in violation of the law of war.

However, the ruling could potentially help him win parole in Canada.

In their decision on Tuesday, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit threw out Salim Hamdan's 2008 conviction for providing material support for terrorism.


In essence, the court ruled no such crime existed under international law of war at the time of his alleged offence, and the Military Commissions Act under which he was convicted did not authorize retroactive prosecutions.

Providing material support for terrorism was one of five charges Khadr admitted to as part of a plea agreement in October 2010.

"The logic of the [Appeal Court] overturning this one charge certainly can be argued to apply to all the other charges," said Prof. David Glazier with Loyola Law School in Los Angeles.

However, applying the reasoning to Khadr's most serious offence is less straightforward because prosecutions for murder in violation of the law of war have long existed under international law.

Law experts weigh in

The issue is whether Khadr's admitted conduct — throwing a hand grenade in Afghanistan in July 2002 that killed an armed American special forces soldier — fit the existing bill.

"Killing a combatant with a grenade is pretty central non-violation of law-of-war conduct," said Madeline Morris, an international law expert and professor at Duke Law School in Durham, N.C.

"It's not any murder in violation of the law of war that was ever recognized."

To get around that snag, critics argue, the Military Commissions Act under which Khadr was tried created a new offence to retroactively criminalize what he'd done based on his lack of a uniform.

"All five of the charges against him essentially boil down to the same thing: they boil down to the idea that he was a civilian, was not a 'privileged belligerent,' and was not allowed to participate in hostilities," Glazier said.

"The majority view among law-of-war scholars is that it's not a war crime for an unprivileged belligerent to participate in hostilities. Even if he did in fact do everything he was charged with — including throwing the hand grenade — it's not a war crime."

Ruling could help with parole

Still, Khadr did sign away his appeal rights. Also, the terms of his transfer to Canada preclude attacking his sentence in Canadian courts.

At the same time, the Hamdan decision could bolster arguments that he should be released on parole at the earliest opportunity. Those grounds include his mistreatment in U.S. custody and Ottawa's violation of his rights.

During his confinement at Guantanamo Bay, the Toronto-born Khadr did challenge the validity of the military commission charges — to no avail.

His lawyers later opted for the 2010 plea agreement that capped his sentence at a further eight years and allowed his return to Canada to serve most of it rather than rely on appealing a guilty finding and likely life sentence.

Now 26, Khadr was finally transferred to Canada last month and is currently incarcerated at a maximum security facility in eastern Ontario.

His current lawyers, John Norris and Brydie Bethell, refused to discuss the possible impact of the Hamdan ruling.


http://www.cbc.ca/ne...ts.html?cmp=rss

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#783 Buddhas Hand

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Posted 18 October 2012 - 12:41 AM

That same ruling could help an australian that was held in guantanamo ,

David Hicks' terror conviction could be overturnedPosted Image




Former Guantanamo Bay detainee David Hicks with his father Terry, signing a copy of his autobiography about his experiences in Guantanamo Bay during in Sydney. Picture: Melanie Russell Source: The Australian

A TERRORISM conviction against Australian David Hicks could be overturned after a US appeals court dismissed the case against a former prisoner in a similar situation.


Mr Hicks's former lawyer Michael 'Dan' Mori said this morning his client's case could be repealed in light of the ruling that found material support for terrorism was not an international-law war crime before 2006.
"It would be great if it was recognised that what David Hicks was put through was unfair," Mr Mori told ABC News 24.
Mr Mori said he hadn't spoken with Mr Hicks directly but said "I think he's hanging in there".
"It's been emotionally draining (for his family)," he said.
In a 3-0 ruling, the US appeals court overnight threw out the case of a former driver for Osama bin Laden who was sentenced to five and a half years prison.




DEFENCE lawyers for September 11 mastermind Khalid Sheikh Mohammed and four alleged co-conspirators on have questioned the extreme secrecy imposed on pre-trial hearings in the case.


The court ruled that Salim Ahmed Hamdan, who was involved with Bin Laden from 1996 to 2001 could not be charged with material support for terrorism because it had not been deemed an offence until 2006.
Greens legal affairs spokeswoman Penny Wright said her party would seek to move in parliament a motion that would require a full inquiry to occur into Mr Hicks’s case.
“This reinforces the need for a full independent inquiry into the treatment of David Hicks while he was in the United States,” Senator Wright told The Australian.
“This issue has proved what we have all been saying for a long time that the charges against David Hicks were invalid and need to be overturned.
“The government must understand that this issue won’t go away. This is bigger than David Hicks and it relates to the role of any Australian government in upholding the rule of law.”
Terry Hicks, Mr Hicks's father, said his family felt vindicated by the ruling.
"It should (clear David Hicks's name)," he told ABC News 24.
"It makes me feel a lot better, I think it would make David feel a lot better and the people who have supported David over the years can now say this is what we've been fighting for."
Mr Hicks was held in the Guantanamo Bay detention camp from 2001 to 2007 and charged under the Military Commissions Act of 2006 for providing material support for terrorism.
He took part in paramilitary training at Al Farouq training camp in Afghanistan during 2001.
Entrepreneur Dick Smith, who donated $60,000 to Mr Hicks in 2007 for his legal defence, told The Australian he hoped the former prisoner would get his day in court.
"This does confirm what I’ve always believed and that is that he was coerced to sign the agreement to get out of Guantanamo Bay and I would still like him to get the advantage of proper due process," Mr Smith said.
"What I’ve always wanted is for David to be before a jury or a judge."
Mr Smith said he doubted if Mr Hicks would have the money to appeal his conviction, and said he would not provide any further financial support because he was "helping other people".
"I would love to see him have a day with some due process," Mr Smith said.
"I am not a supporter of David Hicks, I’m a supporter of giving him a proper trial. So anything that gave him a proper trial I would support and I think he has never had a proper trial."
Opposition legal affairs spokesman George Brandis told The Australian he wanted Hicks to make it clear that he would indeed appeal his conviction before commenting on if such a move would be likely to succeed.
“I have seen no evidence at all to suggest that Hicks’s admission of guilt was anything other than an orthodox plea bargain within the American system,” Senator Brandis said.

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#784 Wetcoaster

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Posted 18 October 2012 - 04:39 PM

The Australian counterpart to Omar Khadr is David Hicks. Like Khadr he pleaded guilty to US invented ex post facto crimes to get out of Gitmo. Hicks was charged in February 2007 with material support for terrorism. The next month he had entered into a plea deal and by April he was out of Guantanamo and into the Yatala Labour Prison in South Australia to do a further nine months and not to be released until after the November Australian election, subject to further restrictions.

Now David Hicks is planning on suing the Australian government for its complicity in his treatment at Guantanamo Bay and to have his convictions overturned in light of the successful appeal by Salim Ahmed Hamdan to the US Court of Appeals. He has called for an inquiry into why he was allowed to languish in Guantanamo Bay for so long and said he intended to sue the government. ''The Australian government knew for years that the system was not fair, but it put me up before it anyway,'' Hicks said.

Osama bin Laden's former driver, Salim Hamdan, who, along with Hicks and Khadr, was tried by the US military commission at Guantanamo Bay. Unlike Hicks and Khadr, Hamdan did not plead guilty but was convicted. The court found Hamdan's conviction could not stand because, under the international law of war in effect at the time of his actions, there was no such defined war crime. The crime was created by the US Congress in 2006, five years after Hicks was captured - the same as with Khadr.

In this case Hicks has a weaker case than Khadr in that Australia has no entrenched Charter or Bill of Rights and operates under the doctrine of Parliamentary supremacy where an Australian court has very limited powers of judicial review. And unlike Khadr Hicks is not armed with Australian Supreme Court declarations that his rights have been violated as with Khadr.

Hicks apparently will rely upon the common law and the Evidence Act that an admission of guilt cannot be accepted by a court if it was provoked by ''violent, oppressive, inhumane or degrading conduct''. And given Hck's treatment which was much less oppressive that that of Khadr, would seem to meet that test.

Hicks's former lawyer Michael Mori said he had warned from the beginning that the conviction would unravel. ''The fact that the charges had been made up retrospectively and were not valid offences under the laws of war was obvious," he said.

A major problem with Gitmo and the Military Tribunal system that many legal analysts repeatedly denounced and which the US appeals court has highlighted, was that the US constitution specifically bars laws that might punish someone for activities that were not in fact illegal at the time. Such backwards-looking lawmaking is a travesty of justice and undermines the principles of democracy that the US and its NATO allies sought to defend.

As an Australian editorial notes:

Even a cursory look at Hicks's book showed that he was subjected to ill-treatment and the prospect of indefinite detention if he didn't sign up for the charge (My note - plead guilty).

Yet on Wednesday we have relics of the Howard era drilling into us the old theme song that Hicks was an associate of the Taliban, which beheads people who don't agree with them.

Now we have the decision from the DC Circuit court in the Hamdan case, by three conservative Republican-appointed judges.

Hamdan had his MST conviction overturned. Unlike Hicks, he had not taken the plea deal, but was convicted and did time - convicted after the Pentagon rejigged the panel hearing his case so as to get the right result. He's now back in Yemen driving taxis.

Just think about the implications of what the US was trying to do with people like David Hicks.

It is saying that anyone in the world, who has suitable radical connections and who is in a war zone fighting against Americans, is guilty of a war crime.

This is a significant departure from the Geneva Conventions and the International Covenant of Civil and Political Rights, quite apart from the US constitution. And yet we signed up to this shameful fix.

http://www.watoday.c...l#ixzz29hEXxAI2

And in the Omar Khadr case the Harper government likewise "signed up to this shameful fix".
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#785 Wetcoaster

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Posted 18 October 2012 - 05:46 PM

The Canadian Patriotic Society had a petition delivered to Parliament by Conservative MP Roxanne James on Thursday, to "try Khadr for treason under the laws of Canada for his actions against coalition forces in Afghanistan" has 120 signatures.
http://www.sunnewsne...018-153933.html

There are both legal and procedural problems that would prevent Omar Khadr being charged with and convicted of treason under the Criminal Code.

By abdicating its authority over Omar Khadr and leaving him to be tried by a US Military Tribunal, Canada has foreclosed the possibility of a charge for treason (even assuming that one would lie in fact and that would be questionable). The facts upon which Khadr pleaded guilty and was convicted would be the same facts that would form the basis for a charge of treason under the Criminal Code and as such would constitute double jeopardy.

The Charter prohibits such action and the the prohibition is not jurisdictional specific as set out in the Charter at Section 11 (h).

11. Any person charged with an offence has the right
(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.


Under Canadian case law to avoid the double jeopardy prohibition, the convictions in the US would have to be found to be not a criminal in nature (the US Congress defined them as crimes) and the consequences not penal in nature (he was incarcerated) - so that does not seem viable.

The term "offence" in paragraph 11(h) is broadly interpreted to mean the underlying acts that form the offence so just calling it treason in Canada and by another term or terms in the USA does not avoid the constitutional prohibition on double jeopardy.

Also note that Khadr was 15 years of age at the time of his capture by US forces so he can only be tried under the Youth Criminal Justice Act - there is no longer a procedure to raise a child to adult court.

And unlike the US courts, Canadian courts take Canada's international obligations under the UN Convention on the Rights of the Child and the Optional Protocol on the Involvement of Children in Armed Conflict. The Supreme Court of Canada has already taken note of his youth and Canada's binding international obligations in ruling twice that Khadr's Charter rights have been seriously violated (2008 and 2010).

Per the SCOC in 2010 in Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44:

We conclude that Canadian conduct in connection with Mr. Khadr’s case did not conform to the principles of fundamental justice.
...
This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.


Even if Khadr were to be charged with treason the evidence against him by way of coerced statements (including his guilty plea) would not be admissible in a real court.

Thus there would be issues of proof and given the serious Charter rights violations that occurred during his capture and detention, it is pretty much assured that a court would exercise its discretion under section 24(2) of the Charter to exclude the evidence used at the Military Commission Tribunal. Without evidence and proof beyond a reasonable doubt there can be no conviction.
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#786 Buddhas Hand

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Posted 19 October 2012 - 01:46 AM

The Australian counterpart to Omar Khadr is David Hicks. Like Khadr he pleaded guilty to US invented ex post facto crimes to get out of Gitmo. Hicks was charged in February 2007 with material support for terrorism. The next month he had entered into a plea deal and by April he was out of Guantanamo and into the Yatala Labour Prison in South Australia to do a further nine months and not to be released until after the November Australian election, subject to further restrictions.

Now David Hicks is planning on suing the Australian government for its complicity in his treatment at Guantanamo Bay and to have his convictions overturned in light of the successful appeal by Salim Ahmed Hamdan to the US Court of Appeals. He has called for an inquiry into why he was allowed to languish in Guantanamo Bay for so long and said he intended to sue the government. ''The Australian government knew for years that the system was not fair, but it put me up before it anyway,'' Hicks said.

Osama bin Laden's former driver, Salim Hamdan, who, along with Hicks and Khadr, was tried by the US military commission at Guantanamo Bay. Unlike Hicks and Khadr, Hamdan did not plead guilty but was convicted. The court found Hamdan's conviction could not stand because, under the international law of war in effect at the time of his actions, there was no such defined war crime. The crime was created by the US Congress in 2006, five years after Hicks was captured - the same as with Khadr.

In this case Hicks has a weaker case than Khadr in that Australia has no entrenched Charter or Bill of Rights and operates under the doctrine of Parliamentary supremacy where an Australian court has very limited powers of judicial review. And unlike Khadr Hicks is not armed with Australian Supreme Court declarations that his rights have been violated as with Khadr.

Hicks apparently will rely upon the common law and the Evidence Act that an admission of guilt cannot be accepted by a court if it was provoked by ''violent, oppressive, inhumane or degrading conduct''. And given Hck's treatment which was much less oppressive that that of Khadr, would seem to meet that test.

Hicks's former lawyer Michael Mori said he had warned from the beginning that the conviction would unravel. ''The fact that the charges had been made up retrospectively and were not valid offences under the laws of war was obvious," he said.

A major problem with Gitmo and the Military Tribunal system that many legal analysts repeatedly denounced and which the US appeals court has highlighted, was that the US constitution specifically bars laws that might punish someone for activities that were not in fact illegal at the time. Such backwards-looking lawmaking is a travesty of justice and undermines the principles of democracy that the US and its NATO allies sought to defend.

As an Australian editorial notes:



Even a cursory look at Hicks's book showed that he was subjected to ill-treatment and the prospect of indefinite detention if he didn't sign up for the charge (My note - plead guilty).

Yet on Wednesday we have relics of the Howard era drilling into us the old theme song that Hicks was an associate of the Taliban, which beheads people who don't agree with them.

Now we have the decision from the DC Circuit court in the Hamdan case, by three conservative Republican-appointed judges.

Hamdan had his MST conviction overturned. Unlike Hicks, he had not taken the plea deal, but was convicted and did time - convicted after the Pentagon rejigged the panel hearing his case so as to get the right result. He's now back in Yemen driving taxis.

Just think about the implications of what the US was trying to do with people like David Hicks.

It is saying that anyone in the world, who has suitable radical connections and who is in a war zone fighting against Americans, is guilty of a war crime.

This is a significant departure from the Geneva Conventions and the International Covenant of Civil and Political Rights, quite apart from the US constitution. And yet we signed up to this shameful fix.

http://www.watoday.c...l#ixzz29hEXxAI2

And in the Omar Khadr case the Harper government likewise "signed up to this shameful fix".


When the circumstances of david hicks incarceration came to light , i wrote to my member of parliment several times , asking what was being done to help an australian that appeared to be illegally held and tortured by the US authorities at guantanamo , i never did recieve a reply .
The howard government has a lot to answer for , history will damn them .

on a side note , i have a great admiration for david hick's lawyer Micheal Mori , he fought like a tiger for david , and he attended the signing of the Fremantle Declaration by the attorneys-general of the states and territories of Australia. The federal attorney general, Philip Ruddock, refused to attend. The declaration urges judicial fairness be applied in Hicks' case to protect the legal rights of Australians at home and abroad. Mori said "It's disheartening that federal ministers won't fight for an Australian citizen to have the same rights as an American

Mori was passed over several times for promotion after taking on the hicks case .
He now lives in melbourne and practices with the law firm shine .

Edited by The Ratiocinator, 19 October 2012 - 02:10 AM.

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The Real war is not between the east and the west. The real war is between intelligent and stupid people.

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#787 taxi

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Posted 19 October 2012 - 08:56 AM

Even if Khadr were to be charged with treason the evidence against him by way of coerced statements (including his guilty plea) would not be admissible in a real court.



Except for all of those videos which show him building and placing IEDs in areas that Canadian troops were just about to enter...

Not to mention, even if you go with the story that he was merely "translating", that still counts as material support.

Even if you disregard every confession, there are no evidentiary issues here.

#788 Wetcoaster

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Posted 19 October 2012 - 01:11 PM

Except for all of those videos which show him building and placing IEDs in areas that Canadian troops were just about to enter...

Not to mention, even if you go with the story that he was merely "translating", that still counts as material support.

Even if you disregard every confession, there are no evidentiary issues here.

There are clear evidentiary issues.

You have bought into the various myths being spun by Layne Morris and promoted by Exra Levant about Khadr's knowledge and involvement in the IEDs and targeting Canadian forces:

Layne Morris, a former sergeant with the U.S. special forces, told Ezra Levant on Sun News Network's program The Source that Christopher Speer, the U.S. army medic killed by Khadr, was operating from an army outpost in eastern Afghanistan secured by Canadian soldiers. That would have been clear to anyone watching the base, as a Canadian flag flew prominently overhead.

Morris says Khadr would have known the IEDs he was building and planting would be targeting Canadians as well as Americans.

"I've often wondered when I heard that Omar engaged in those activities, I wonder if he was conflicted at all to look at Canadians running that base. And I wonder if he said to himself, 'wow, those are my countrymen. I shouldn't be engaged in this type of conflict against them,'" Morris said.


Here is the latest fantasy ravings by Layne Morris :

“As (the U.S. troops) were going through the rubble, looking for bodies, looking for intelligence materials, Omar, who was hiding in some of the rubble, when the team got close enough, Omar popped up, shot his pistol at them and threw the hand grenade (that killed Speer.)”


It is clear that no one witnessed what Morris claims occurred as the prosecution clearly stated before the military tribunal, which is why the US military invented the myth that Omar Khadr as the last person alive and fighting as the US assault element approached the compound after the air strike.

The US military concealed exculpatory evidence that disputed this version of events and refused to allow the defence to call US military witnesses who had given on the scene statements of an adult fighter with an AK47 who was killed by a soldier known as "OC-1" (from the witness statement bu OC-1 given CITF - Criminal Investigation Task force that was disclosed by mistake when it was accidentally included in a document briefing package given to the media intended to support the show trial of Khadr) and a corroborating statement by a soldier only known as "Soldier 2" who witnessed the head shot kill of the adult fighter and who more importantly found a severely wounded Omar Khadr buried under rubble from the earlier air strikes and rocket attacks. These witness accounts were supported by photographs taken as the US assault element entered the compound and it was these photographs that the presiding judge refused to allow into evidence. Why? Because as defence counsel Lt.Com Keubler stated - it showed that Khadr was innocent. And there was no way that the Military Tribunal could allow that evidence.

There is only speculation about the location of the IEDs. The video only shows Khadr holding what appears to be a piece of detonator cord and being present at an unknown location when others were burying IEDs. That does not constitute proof beyond a reasonable doubt under the rules of evidence that would pertain in a Canadian court.

Because there was no actual link the US military at Khadr's sentencing hearing the best they could do was produce a simulated video (as noted in the Military Tribunal trial record) and relied upon the content of the guilty plea to convict him - that plea would IMHO be inadmissible.

University of Ottawa law professor Carissima Mathen said both the federal and provincial governments have the power to lay treason charges but that it would likely be a challenging case for the Crown to pursue. "You can't just show he should have known (Canadian soldiers were there), you would have to show beyond a reasonable doubt he did know," she said.

As is clear if Omar Khadr is to be prosecuted domestically it must be as a "common criminal" under the Youth Criminal Justice Act with all the rights and protections attendant to such a prosecution. And IMHO such a prosecution is not possible given the serious violations of his Charter Rights as already found by the Supreme Court of Canada.

Unlike the US in Canada the courts insist upon the observance of the Rule of Law and the application of the Charter of Rights and Freedoms as well as the applicable international law. Any charges would have to be brought under the Youth Criminal Justice Act and would be subject not only to the Charter of Rights but also international law including:

Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict
http://www2.ohchr.or...rc-conflict.htm

Convention on the Rights of the Child
http://www2.ohchr.or...ish/law/crc.htm

United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) (29 November 1985)
http://www2.ohchr.or...eijingrules.htm

Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (Feb. 2007)
http://www.unicef.or...0107English.pdf
http://childrenandar...ris-principles/

Note this:

7.6 Children who leave armed forces or armed groups by any means, including those who escape, are abandoned or are captured by an opposing armed force or armed group or by multinational forces retain their human rights as children, and relevant international law and standards must be applied, inter alia:

7.6.0 No child may be subjected to torture or other cruel, inhuman or degrading treatment or punishment;

7.6.1 Neither capital punishment nor life imprisonment without possibility of release should be imposed for offences committed by persons below eighteen years of age;

7.6.2 No child may be deprived of his or her liberty unlawfully or arbitrarily;

7.6.3 Children who escape unlawful recruitment must never considered deserters;

7.6 4 All appropriate measures to promote physical and psychological recovery and social reintegration must be taken;

7.6.5 All appropriate action must be taken to ensure and re-establish family unity;

7.6.6 Unless contrary to the best interests of the child, all allegations of violence, including sexual and gender-based violence must be promptly, thoroughly, and independently investigated and prosecuted and adequate and effective follow-up care offered to the child and her/ his family.

Also note the just completed review by the UN committee on the rights of the child and Canada's international obligation under the treaty, optional protocols and rules issued 05 October 2012. It included a specific recommendation on Omar Khadr. The report identified him as a former child soldier. It also recommended compensation for the Charter breaches identified by the SCOC.

78. The Committee urges the State party to promptly provide a rehabilitation program for Omar Khadr that is consistent with the Paris Principles for the rehabilitation of former child soldiers and ensure that Omar Khadr is provided with an adequate remedy for the human rights violations that the Supreme Court of Canada ruled he experienced.

http://www2.ohchr.or...N-CO-3-4_en.pdf

And LOAC (Law of Armed Conflict) including the Geneva Conventions.
http://assets.cambri...887_excerpt.pdf

See Loyola Law School Professor David Glazier's analysis of the protections afforded Omar Khadr at international law and not the bastardized version invented by the US Congress that has been overruled yet again by the US Court of Appeals in Hamdan. In his extensive paper A Court Without Jurisdiction: A Critical Assessment of the Military Commission Charges Against Omar Khadr:
http://papers.ssrn.c...ract_id=1669946

Also the 11(h) Charter prohibition on double jeopardy would attach as the video and events that you cite were underlying acts resulting in the convictions pronounced by the Military Tribunal.

I go with a legal system that incorporates the Rule of Law and respects the Charter of Rights and Freedoms and our international legal obligations. Fortunately this is the same environment protected by Canadian Courts under our supreme law.
To err is human - but to really screw up you need a computer.

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#789 Buddhas Hand

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Posted 19 October 2012 - 02:06 PM

Except for all of those videos which show him building and placing IEDs in areas that Canadian troops were just about to enter...

Not to mention, even if you go with the story that he was merely "translating", that still counts as material support.

Even if you disregard every confession, there are no evidentiary issues here.


And so you go with your life , you know the truth but prefer lies .

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#790 taxi

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Posted 19 October 2012 - 03:31 PM

There are clear evidentiary issues.

You have bought into the various myths being spun by Layne Morris and promoted by Exra Levant about Khadr's knowledge and involvement in the IEDs and targeting Canadian forces:

Layne Morris, a former sergeant with the U.S. special forces, told Ezra Levant on Sun News Network's program The Source that Christopher Speer, the U.S. army medic killed by Khadr, was operating from an army outpost in eastern Afghanistan secured by Canadian soldiers. That would have been clear to anyone watching the base, as a Canadian flag flew prominently overhead.

Morris says Khadr would have known the IEDs he was building and planting would be targeting Canadians as well as Americans.

"I've often wondered when I heard that Omar engaged in those activities, I wonder if he was conflicted at all to look at Canadians running that base. And I wonder if he said to himself, 'wow, those are my countrymen. I shouldn't be engaged in this type of conflict against them,'" Morris said.


Here is the latest fantasy ravings by Layne Morris :

“As (the U.S. troops) were going through the rubble, looking for bodies, looking for intelligence materials, Omar, who was hiding in some of the rubble, when the team got close enough, Omar popped up, shot his pistol at them and threw the hand grenade (that killed Speer.)”


It is clear that no one witnessed what Morris claims occurred as the prosecution clearly stated before the military tribunal, which is why the US military invented the myth that Omar Khadr as the last person alive and fighting as the US assault element approached the compound after the air strike.

The US military concealed exculpatory evidence that disputed this version of events and refused to allow the defence to call US military witnesses who had given on the scene statements of an adult fighter with an AK47 who was killed by a soldier known as "OC-1" (from the witness statement bu OC-1 given CITF - Criminal Investigation Task force that was disclosed by mistake when it was accidentally included in a document briefing package given to the media intended to support the show trial of Khadr) and a corroborating statement by a soldier only known as "Soldier 2" who witnessed the head shot kill of the adult fighter and who more importantly found a severely wounded Omar Khadr buried under rubble from the earlier air strikes and rocket attacks. These witness accounts were supported by photographs taken as the US assault element entered the compound and it was these photographs that the presiding judge refused to allow into evidence. Why? Because as defence counsel Lt.Com Keubler stated - it showed that Khadr was innocent. And there was no way that the Military Tribunal could allow that evidence.

There is only speculation about the location of the IEDs. The video only shows Khadr holding what appears to be a piece of detonator cord and being present at an unknown location when others were burying IEDs. That does not constitute proof beyond a reasonable doubt under the rules of evidence that would pertain in a Canadian court.

Because there was no actual link the US military at Khadr's sentencing hearing the best they could do was produce a simulated video (as noted in the Military Tribunal trial record) and relied upon the content of the guilty plea to convict him - that plea would IMHO be inadmissible.

University of Ottawa law professor Carissima Mathen said both the federal and provincial governments have the power to lay treason charges but that it would likely be a challenging case for the Crown to pursue. "You can't just show he should have known (Canadian soldiers were there), you would have to show beyond a reasonable doubt he did know," she said.

As is clear if Omar Khadr is to be prosecuted domestically it must be as a "common criminal" under the Youth Criminal Justice Act with all the rights and protections attendant to such a prosecution. And IMHO such a prosecution is not possible given the serious violations of his Charter Rights as already found by the Supreme Court of Canada.

Unlike the US in Canada the courts insist upon the observance of the Rule of Law and the application of the Charter of Rights and Freedoms as well as the applicable international law. Any charges would have to be brought under the Youth Criminal Justice Act and would be subject not only to the Charter of Rights but also international law including:

Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict
http://www2.ohchr.or...rc-conflict.htm

Convention on the Rights of the Child
http://www2.ohchr.or...ish/law/crc.htm

United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) (29 November 1985)
http://www2.ohchr.or...eijingrules.htm

Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (Feb. 2007)
http://www.unicef.or...0107English.pdf
http://childrenandar...ris-principles/

Note this:

7.6 Children who leave armed forces or armed groups by any means, including those who escape, are abandoned or are captured by an opposing armed force or armed group or by multinational forces retain their human rights as children, and relevant international law and standards must be applied, inter alia:

7.6.0 No child may be subjected to torture or other cruel, inhuman or degrading treatment or punishment;

7.6.1 Neither capital punishment nor life imprisonment without possibility of release should be imposed for offences committed by persons below eighteen years of age;

7.6.2 No child may be deprived of his or her liberty unlawfully or arbitrarily;

7.6.3 Children who escape unlawful recruitment must never considered deserters;

7.6 4 All appropriate measures to promote physical and psychological recovery and social reintegration must be taken;

7.6.5 All appropriate action must be taken to ensure and re-establish family unity;

7.6.6 Unless contrary to the best interests of the child, all allegations of violence, including sexual and gender-based violence must be promptly, thoroughly, and independently investigated and prosecuted and adequate and effective follow-up care offered to the child and her/ his family.

Also note the just completed review by the UN committee on the rights of the child and Canada's international obligation under the treaty, optional protocols and rules issued 05 October 2012. It included a specific recommendation on Omar Khadr. The report identified him as a former child soldier. It also recommended compensation for the Charter breaches identified by the SCOC.

78. The Committee urges the State party to promptly provide a rehabilitation program for Omar Khadr that is consistent with the Paris Principles for the rehabilitation of former child soldiers and ensure that Omar Khadr is provided with an adequate remedy for the human rights violations that the Supreme Court of Canada ruled he experienced.

http://www2.ohchr.or...N-CO-3-4_en.pdf

And LOAC (Law of Armed Conflict) including the Geneva Conventions.
http://assets.cambri...887_excerpt.pdf

See Loyola Law School Professor David Glazier's analysis of the protections afforded Omar Khadr at international law and not the bastardized version invented by the US Congress that has been overruled yet again by the US Court of Appeals in Hamdan. In his extensive paper A Court Without Jurisdiction: A Critical Assessment of the Military Commission Charges Against Omar Khadr:
http://papers.ssrn.c...ract_id=1669946

Also the 11(h) Charter prohibition on double jeopardy would attach as the video and events that you cite were underlying acts resulting in the convictions pronounced by the Military Tribunal.

I go with a legal system that incorporates the Rule of Law and respects the Charter of Rights and Freedoms and our international legal obligations. Fortunately this is the same environment protected by Canadian Courts under our supreme law.



I really don't understand the point of your argument. Our international legal obligations in no way prevent us from charging a Canadian citizen who is on video making IEDs directed at allied soldiers with treason. Are you seriously going to make the claim that Khadr didn't know that the IEDs he was making might not have put either Canadian soldiers or their allies in danger?

The only argument that could possibly save Khardr is that he, as a teenager, was coerced into his actions by adults, and should be tried as a minor. If he was tried as a minor, he would escape the multiple life sentences he would likely receive as an adult. As it currently stands, Khadr has been a sentence far less than life.

And you can stop spewing random bits of international law. International law largely acts as agreements beetwen nation states. The Taliban is not a nation state. Furthermore the Paris Principles, are exactly that, Principles. The closest comparable precendent we have currently is the Special Court for Sierra Leone. In this court all soldiers over the age of 15 were consdired soldiers. Sentences for soldiers between ages 15 and 18 are suppossed to be lighter, which in Khadr's case they were.

#791 taxi

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Posted 19 October 2012 - 03:36 PM

And so you go with your life , you know the truth but prefer lies .


You've stated that Omar is innocent and his father was merely doing charity work. Omar is on video building IEDs. Once again, even if Khadr wasn't involved in the fire fight in question, he's still guilty of translating, and building IEDs, placing IEDs for some very very nasty people. And this is just what he has been caught on tape doing. Who knows what other material support he'd given or activities he'd participated in.

Edited by debluvscanucks, 19 October 2012 - 07:21 PM.
Removed personal attack


#792 Wetcoaster

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Posted 19 October 2012 - 05:08 PM

I really don't understand the point of your argument. Our international legal obligations in no way prevent us from charging a Canadian citizen who is on video making IEDs directed at allied soldiers with treason. Are you seriously going to make the claim that Khadr didn't know that the IEDs he was making might not have put either Canadian soldiers or their allies in danger?

The only argument that could possibly save Khardr is that he, as a teenager, was coerced into his actions by adults, and should be tried as a minor. If he was tried as a minor, he would escape the multiple life sentences he would likely receive as an adult. As it currently stands, Khadr has been a sentence far less than life.

And you can stop spewing random bits of international law. International law largely acts as agreements beetwen nation states. The Taliban is not a nation state. Furthermore the Paris Principles, are exactly that, Principles. The closest comparable precendent we have currently is the Special Court for Sierra Leone. In this court all soldiers over the age of 15 were consdired soldiers. Sentences for soldiers between ages 15 and 18 are suppossed to be lighter, which in Khadr's case they were.

My argument is quite simple. There must be relevant and admissible proof of the connection between the video and attacks on Canadian troops coupled with the necessary criminal intent (mens rea) and that evidence must be proof beyond a reasonable doubt.

University of Ottawa law professor Carissima Mathen said both the federal and provincial governments have the power to lay treason charges but that it would likely be a challenging case for the Crown to pursue. "You can't just show he should have known (Canadian soldiers were there), you would have to show beyond a reasonable doubt he did know," she said. Good Luck with that. The fantasy ravings of Layne Morris and Ezra Levant are not proof that would be admissible in any Canadian court of which I am aware.

And any potential treason charge runs up against the prohibition on double jeopardy in the Charter as he has already been convicted and sentenced for the same acts that would be alleged to constitute treason.

There is no "should be tried as a minor"... under Canadian law he MUST be tried as a minor and any prosecution would be under the Youth Criminal Justice Act. If Omar Khadr is to be prosecuted domestically it must be as a "common criminal" under the Youth Criminal Justice Act with all the rights and protections attendant to such a prosecution. And IMHO such a prosecution is not possible given the serious violations of his Charter Rights as already found by the Supreme Court of Canada.

You seem completely unfamiliar with the law on child soldiers - you should educate yourself via the links that I provided previously. The Paris Principles have been signed by Canada so they have the same status as other international legal agreements relating to juveniles. THey are implemented by way of a UN Resolution and are binding international obligations once signed.

The Supreme Court of Canada views Canada's obligations under international law quite differently from your understanding. I will go with the SCOC on this point of law.

As far as Sierra Leone -

The Special Court for Sierra Leone, created by the government and the UN in January 2002, was mandated to try those “bearing the greatest responsibility” for crimes against humanity, war crimes and other serious violations of international law during the conflict in Sierra Leone. In 2002 it was confirmed that children would not be indicted by the Court. The Court’s prosecutors viewed all children as victims as well as perpetrators, and thus felt individual children could not be been seen as bearing greatest responsibility.

http://www.childsold...nt/sierra-leone

And the case of Omar Khadr is evaluated in terms of what in fact occurred in Sierra Leone:



The Statute of the Special Court gives the Prosecutor authority to indict children for crimes they committed between the ages of 15 and 18. The basis for including this controversial provision was to give the Prosecutor legal authority to prosecute any child soldier he might consider as having borne the greatest responsibility for war crimes and crimes against humanity committed during Sierra Leone’s civil war.



The Prosecution decided early in developing a prosecutorial plan that no child between 15 and 18 had the sufficiently blameworthy state of mind to commit war crimes in a conflict setting. Aware of the clear legal standard highlighted in international humanitarian law, the intent in choosing not to prosecute was to rehabilitate and reintegrate this lost generation back into society. It would have been impractical to prosecute even particularly violent children because there were so many. Further, it was imperative that the prosecution seriously consider the clear intent of the UN Security Council and the drafters of the Statute creating the Court to prosecute those and only those who bore the greatest responsibility — those who aided and abetted; created and sustained the conflict; and planned, ordered, or directed the atrocities. No child did this in Sierra Leone.


In November 2002, the Prosecution announced that child soldiers would not be prosecuted, as they were not legally liable for acts committed during the conflict. There was universal praise for this decision. It took prosecuting child soldiers themselves for the tragedy they have experienced off the legal table, instead placing children on the rehabilitation track, as is the appropriate norm under international law.

...


And the children truly are the victims in this scenario. Just as we could not hold these Sierra Leonean children responsible for the horrific violence they were forced to carry out, we also cannot hold similar children involved in other conflicts accountable for their acts, no matter our level of interest in the region or that our forces were the targets of the violence.

Omar Khadr, a young Canadian, could have been a child in Sierra Leone. But he was in Afghanistan, in similar circumstances, not of his making or under his control, in an environment from which, as a child, there was no escape. Legally, morally, and politically the international community, including the United States, has separated out children from the horrors of combat, to protect and nurture, to rehabilitate and support, not to punish. No children found in combat should be held liable for their acts. The jurisprudence of the Special Court for Sierra Leone demonstrates that this is the legal standard of the world community and of the United States.

http://www.wcl.ameri...f/15/3crane.pdf
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#793 Tearloch7

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Posted 19 October 2012 - 05:33 PM

You are beyond delusional. You've stated that Omar is innocent and his father was merely doing charity work. Omar is on video building IEDs. Once again, even if Khadr wasn't involved in the fire fight in question, he's still guilty of translating, and building IEDs, placing IEDs for some very very nasty people. And this is just what he has been caught on tape doing. Who knows what other material support he'd given or activities he'd participated in.


Hey dude!! .. you missed yer cab!!! .. :P

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#794 taxi

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Posted 19 October 2012 - 05:35 PM

My argument is quite simple. There must be relevant and admissible proof of the connection between the video and attacks on Canadian troops coupled with the necessary criminal intent (mens rea) and that evidence must be proof beyond a reasonable doubt.

University of Ottawa law professor Carissima Mathen said both the federal and provincial governments have the power to lay treason charges but that it would likely be a challenging case for the Crown to pursue. "You can't just show he should have known (Canadian soldiers were there), you would have to show beyond a reasonable doubt he did know," she said. Good Luck with that. The fantasy ravings of Layne Morris and Ezra Levant are not proof that would be admissible in any Canadian court of which I am aware.

And any potential treason charge runs up against the prohibition on double jeopardy in the Charter as he has already been convicted and sentenced for the same acts that would be alleged to constitute treason.

There is no "should be tried as a minor"... under Canadian law he MUST be tried as a minor and any prosecution would be under the Youth Criminal Justice Act. If Omar Khadr is to be prosecuted domestically it must be as a "common criminal" under the Youth Criminal Justice Act with all the rights and protections attendant to such a prosecution. And IMHO such a prosecution is not possible given the serious violations of his Charter Rights as already found by the Supreme Court of Canada.

You seem completely unfamiliar with the law on child soldiers - you should educate yourself via the links that I provided previously. The Paris Principles have been signed by Canada so they have the same status as other international legal agreements relating to juveniles. THey are implemented by way of a UN Resolution and are binding international obligations once signed.

The Supreme Court of Canada views Canada's obligations under international law quite differently from your understanding. I will go with the SCOC on this point of law.

As far as Sierra Leone -

The Special Court for Sierra Leone, created by the government and the UN in January 2002, was mandated to try those “bearing the greatest responsibility” for crimes against humanity, war crimes and other serious violations of international law during the conflict in Sierra Leone. In 2002 it was confirmed that children would not be indicted by the Court. The Court’s prosecutors viewed all children as victims as well as perpetrators, and thus felt individual children could not be been seen as bearing greatest responsibility.

http://www.childsold...nt/sierra-leone

And the case of Omar Khadr is evaluated in terms of what in fact occurred in Sierra Leone:





The Statute of the Special Court gives the Prosecutor authority to indict children for crimes they committed between the ages of 15 and 18. The basis for including this controversial provision was to give the Prosecutor legal authority to prosecute any child soldier he might consider as having borne the greatest responsibility for war crimes and crimes against humanity committed during Sierra Leone’s civil war.



The Prosecution decided early in developing a prosecutorial plan that no child between 15 and 18 had the sufficiently blameworthy state of mind to commit war crimes in a conflict setting. Aware of the clear legal standard highlighted in international humanitarian law, the intent in choosing not to prosecute was to rehabilitate and reintegrate this lost generation back into society. It would have been impractical to prosecute even particularly violent children because there were so many. Further, it was imperative that the prosecution seriously consider the clear intent of the UN Security Council and the drafters of the Statute creating the Court to prosecute those and only those who bore the greatest responsibility — those who aided and abetted; created and sustained the conflict; and planned, ordered, or directed the atrocities. No child did this in Sierra Leone.


In November 2002, the Prosecution announced that child soldiers would not be prosecuted, as they were not legally liable for acts committed during the conflict. There was universal praise for this decision. It took prosecuting child soldiers themselves for the tragedy they have experienced off the legal table, instead placing children on the rehabilitation track, as is the appropriate norm under international law.

...


And the children truly are the victims in this scenario. Just as we could not hold these Sierra Leonean children responsible for the horrific violence they were forced to carry out, we also cannot hold similar children involved in other conflicts accountable for their acts, no matter our level of interest in the region or that our forces were the targets of the violence.

Omar Khadr, a young Canadian, could have been a child in Sierra Leone. But he was in Afghanistan, in similar circumstances, not of his making or under his control, in an environment from which, as a child, there was no escape. Legally, morally, and politically the international community, including the United States, has separated out children from the horrors of combat, to protect and nurture, to rehabilitate and support, not to punish. No children found in combat should be held liable for their acts. The jurisprudence of the Special Court for Sierra Leone demonstrates that this is the legal standard of the world community and of the United States.

http://www.wcl.ameri...f/15/3crane.pdf



You really don't think it would be easy to prove that a person building IEDs with known islamists would have knowledge that those IEDs he was building and then placing might be used against allied soldiers. Your saying the organization he was involved with never told him that their aims were to attack allied soldiers. He was completely in the dark about who they were fighting, who he was fighting with, and what the goals of the organization were. They just told him to build and place bombs. They never subjected him to any kind of propaganda.

While we're on the topic of requiring further education, you need to actually read what the Paris Protocols call for and how they were applied in Sierra Leone. From the Paris Principles:

Children who are accused of crimes under international law allegedly committed while they
were associated with armed forces or armed groups should be considered primarily as victims of
offences against international law; not only as perpetrators. They must be treated in accordance
with international law in a framework of restorative justice and social rehabilitation, consistent
with international law which offers children special protectionu] through numerous agreements and
principles.


NOTICE THE EXPRESSION "not only as perpetrators". This explicitely gives you the ability to punish soldiers between the age of 15 and 18. Nowhere does it state that you have to simply let them go. The Paris Principles, which are arguably the most child friendly git of international law, are explicitely stating you can treat soldiers aged 15-18 as combatants. Once again Khadr's age has most certainly been taken into account. If he was 3 years older, he would have been handed mutltiple life setences, as oppossed to the relatively lenient sentence he was given.

Edited by taxi, 19 October 2012 - 05:36 PM.


#795 Wetcoaster

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Posted 19 October 2012 - 06:38 PM

You really don't think it would be easy to prove that a person building IEDs with known islamists would have knowledge that those IEDs he was building and then placing might be used against allied soldiers. Your saying the organization he was involved with never told him that their aims were to attack allied soldiers. He was completely in the dark about who they were fighting, who he was fighting with, and what the goals of the organization were. They just told him to build and place bombs. They never subjected him to any kind of propaganda.

While we're on the topic of requiring further education, you need to actually read what the Paris Protocols call for and how they were applied in Sierra Leone. From the Paris Principles:


NOTICE THE EXPRESSION "not only as perpetrators". This explicitely gives you the ability to punish soldiers between the age of 15 and 18. Nowhere does it state that you have to simply let them go. The Paris Principles, which are arguably the most child friendly git of international law, are explicitely stating you can treat soldiers aged 15-18 as combatants. Once again Khadr's age has most certainly been taken into account. If he was 3 years older, he would have been handed mutltiple life setences, as oppossed to the relatively lenient sentence he was given.

Given the requirement of proof beyond a reasonable doubt, the evidence against Khadr in respect of the IEDs is equivocal at best. Being that I have graduated from law school and was called to the bar in BC in 1985, I have more than a passing familiarity with the rules of evidence.

Yes I am aware of the phrase "not only as perpetrators" when the court in Sierra Leone was constituted. However due to the storm of criticism from numerous groups including the Under-Secretary-General, Special Representative for Children and Armed Conflict, Radhika Coomaraswamy the child soldiers in Sierra Leone were not in fact prosecuted. I gave you the cites with the subsequent declarations from the prosecutors and decision to not prosecute child soldiers.

You are pulling the same sleight of hand as Ezra Levant by referring to an out of date factual and legal situation. Levant continues to claim the cut-off age for child soldiers is 14 (i.e under 15) - which was the initial classification back in the 1980's but it was subsequently amended to under the Optional Protocol to under 18. You claim ( or perhaps try to infer) that child soldiers were prosecuted in Sierra Leone - they were not.

Edited by Wetcoaster, 19 October 2012 - 06:39 PM.

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#796 Buddhas Hand

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Posted 20 October 2012 - 02:24 AM

You've stated that Omar is innocent and his father was merely doing charity work. Omar is on video building IEDs. Once again, even if Khadr wasn't involved in the fire fight in question, he's still guilty of translating, and building IEDs, placing IEDs for some very very nasty people. And this is just what he has been caught on tape doing. Who knows what other material support he'd given or activities he'd participated in.


You have stated that i am beyond delusional , and then you claim that i have said something i have not .
We will let others determine for themselves whose ability to raciocinate is in question here .

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#797 DarthNinja

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Posted 20 October 2012 - 03:54 PM

You have stated that i am beyond delusional , and then you claim that i have said something i have not .
We will let others determine for themselves whose ability to raciocinate is in question here .


Some people ratiocinate, others ratioCNNate

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#798 Wetcoaster

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Posted 21 October 2012 - 03:02 PM

And Vic Toews still not grasping the law. He claims that Khadr is a terrorist and not a child soldier because he was not "misled".

Perhaps VikiLeaks should familiarize himself with the UN definition of a child soldier that Canada was instrumental in putting in place. :shakehead

“I don’t agree he was a child soldier in the sense that he was somehow misled. The evidence is very clear. He’s a convicted murderer, he’s a terrorist and that’s the basis I brought him back on,” Toews said Sunday on CTV’s Question Period.


Your "sense" is nonsense Vic.

According to UNICEF:

"A 'child soldier' is defined as any child - boy or girl - under 18 years of age, who is part of any kind of regular or irregular armed force or armed group in any capacity, including, but not limited to: cooks, porters, messengers, and anyone accompanying such groups other than family members. It includes girls and boys recruited for sexual purposes and/or forced marriage. The definition, therefore, does not only refer to a child who is carrying, or has carried weapons" (Cape Town Principles, 1997).

http://www.unicef.or...ildsoldiers.pdf

Nothing there about being "misled".

Toews does however admit that Canada does have an obligation to rehabilitate Khadr.


“I do believe we have an obligation to rehabilitate him even though he is not a child soldier in the technical sense of that word,” he added.

http://o.canada.com/...adr-toews-says/
http://www.ctvnews.c...ldier-1.1004300
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#799 Wetcoaster

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Posted 22 October 2012 - 10:38 AM

University of Victoria Law Professor Catherine Morris has written an article for Law Times outlining the various legal deficiencies in the Omar Khadr prosecution at Gitmo and how the Canadian government has systematically ignored those deficiencies.

She teaches international human rights at the University of Victoria and also teaches courses in negotiation and conflict studies at universities in Europe and Asia. In addition, she monitors human rights in several countries for Lawyers’ Rights Watch Canada.


The Canadian government has claimed Omar Khadr had the benefit of due process in the United States.


His return to Canada on Sept. 29 prompted yet more official statements and headlines labelling him a war criminal and a convicted terrorist. These assertions distort and contradict both the facts and the law.


As a result, many people hold an erroneous belief that Khadr pleaded guilty to legitimate charges in a properly constituted court. In fact, Khadr was never charged with any U.S. criminal offences or international war crimes.


After his 2002 capture on a battlefield in Afghanistan at age 15, Khadr waited more than three years before facing charges at a military tribunal set up by an executive order of former president George W. Bush’s administration.


In 2006, the U.S. Supreme Court in Hamdan v. Rumsfeld found the tribunals to be unlawful and in violation of the Geneva Conventions.


The U.S. Congress hastily passed a new Military Commissions Act and Khadr was recharged with newly created offences even though international law and the U.S. Constitution forbid prosecutions for ex post facto offences, as does Canada’s Charter of Rights and Freedoms.


The military commission procedures provide for relaxed rules of evidence and permit coerced evidence not allowed by U.S. or Canadian criminal law.


Evidence obtained in violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment can also be admitted because of the Military Commissions Act’s narrow definition of torture that’s at odds with the convention. Nor is the military commission viewed as independent.


In June 2007, Col. Peter Brownback, then the military commission’s presiding officer, dismissed the charges against Khadr. He said that while the commission had jurisdiction over unlawful enemy combatants, prosecutors had failed to prove Khadr had taken up arms against the United States unlawfully.


A quickly convened military commission review overturned that decision in September 2007 and reinstated the charges.


Brownback acknowledged he took heat from the Pentagon for dismissing the charges. In June 2008, Brownback threatened to suspend the proceedings against Khadr unless prosecutors handed over Khadr’s medical and interrogation records. Later that month, the Pentagon replaced Brownback.


In May 2008, the Supreme Court of Canada in Canada (Justice) vs. Khadr ruled that participation by Canadian officials in the process in Guantanamo Bay, Cuba, was contrary to Canada’s binding international obligations.


In January 2010, the top court in Canada (Prime Minister) v. Khadr denounced Canadian officials’ violation of Khadr’s s. 7 Charter rights.


The top court declared Khadr’s entitlement to a remedy but left it up to Canada’s executive to decide how best to respond. Canada’s response was a diplomatic note asking the United States not to use information turned over by Canadian agents.


In July 2010, Canada’s Federal Court in Khadr v. Canada gave the government seven days to supply a list of all possible remedies to cure the continuing Charter violations. The House of Commons standing committee on foreign affairs had already made one recommendation in June 2008 that Canada secure Khadr’s repatriation.


Majority votes of the Senate on June 18, 2008, and the House of Commons on March 23, 2009, had urged repatriation. Instead of suggesting remedies, the government appealed the ruling on the seventh day.


Predictably, the Guantanamo Bay military commission ruled all of Khadr’s statements admissible, including those made as a result of treatment that violated the convention against torture, in August 2010.


Radhika Coomaraswamy, then the United Nations special representative for children and armed conflict, pointedly stated that in international law, child soldiers “must be treated primarily as victims and alternative procedures should be in place aimed at rehabilitation.”


Canadian officials paid no attention. Instead, they agreed to Khadr’s October 2010 plea bargain and said Canada would be “inclined to favourably consider” repatriation to Canada after a year of his sentence.


Lawrence Cannon, then the foreign minister, promised the House of Commons that Canada would implement the agreement. The year came and went.


In June of this year, the UN committee against torture urged Canada to repatriate Khadr and to redress the human rights violations found by the Supreme Court. Minister of Public Safety Vic Toews responded by complaining that “when there are serious concerns regarding human rights violations across the world, it is disappointing that the UN would spend its time decrying Canada.”


Khadr has never faced a trial before any properly constituted court that afforded the judicial guarantees recognized in international law as indispensable to fair proceedings.


This is in direct violation of the Geneva Conventions. In addition, the case demonstrates serious and flagrant violations of the International Covenant on Civil and Political Rights, the convention against torture, the Convention on the Rights of the Child, and the protocol on children in armed conflict.


We must view the voluntariness of Khadr’s plea bargain in the context of the U.S. policy of holding Guantanamo Bay prisoners until the end of the so-called war on terror. Without the deal, Khadr faced indefinite detention whether the military commission found him guilty or innocent.


This catch-22 followed eight years of detention marked by denial of virtually all of his rights. They included the rights to habeas corpus, access to an independent tribunal for determination of rights, proper legal representation, family visits, and freedom from torture and other cruel, inhuman, and degrading treatment.


Such conditions defy the very concept of voluntary negotiation. The U.S. plea agreement is not a reliable indicator of guilt in or out of court.


Some Canadians have expressed fears about public danger. Safety is an important consideration that is served only when facts and law are respected. Public safety is at risk in a polarized climate of suspicion, fear, and hatred fomented by public officials’ derogatory characterizations of Khadr.


Toews is responsible for Corrections Canada as well as appointments and renewals of adjudicators at the Parole Board of Canada. It is improper for a minister to make statements about Khadr that could influence the impartiality of adjudicators at tribunals vested with the responsibility for independent determinations.


The Khadr case raises concerns about disrespect by Canadian government officials for our courts, the UN human rights system, and, indeed, the rights of all of us. Canadian ministers and officials must start treating Khadr in accordance with Canadian and international law.

http://www.lawtimesn...zing-Omar-Khadr

In the wake of the latest decision in Hamdan in which the U.S. District Court of Appeals for the District of Columbia found the convictions unconstitutional , Professor Morris added this.

“The Hamdan case draws attention to persistent concerns about the Khadr case and raises questions about how Canadian courts would view Khadr’s plea agreement and his continuing imprisonment.”

Morris believes the U.S. District Court of Appeals for the District of Columbia ruling in the case against the driver, Salim Ahmed Hamdan, “confirms the illegality of at least one of the charges against Khadr.” Both Haman and Khadr, she notes, “were both charged with the same Military Commissions Act offence of providing material support for terrorism. The court found that the enactment of this offence violates the U.S. constitutional bar against ex post facto laws. This offence has never been an internationally recognized war crime.”
To err is human - but to really screw up you need a computer.

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#800 Buddhas Hand

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Posted 22 October 2012 - 01:54 PM

This catch-22 followed eight years of detention marked by denial of virtually all of his rights

Yossarian: Is Orr crazy?
Dr. 'Doc' Daneeka: Of course he is. He has to be crazy to keep flying after all his close calls he's had.
Yossarian: Why can't you ground him?
Dr. 'Doc' Daneeka: I can, but first he has to ask me.
Yossarian: That's all he's gotta do to be grounded?
Dr. 'Doc' Daneeka: That's all.
Yossarian: Then you can ground him?
Dr. 'Doc' Daneeka: No. Then I cannot ground him.
Yossarian: Aah!
Dr. 'Doc' Daneeka: There's a CATCH?
Yossarian: A catch?
Dr. 'Doc' Daneeka: Sure. Catch-22. Anyone who wants to get out of combat isn't really crazy, so I can't ground him.
Yossarian: Ok, let me see if I've got this straight. In order to be grounded, I've got to be crazy. And I must be crazy to keep flying. But if I ask to be grounded, that means I'm not crazy anymore, and I have to keep flying.
Dr. 'Doc' Daneeka: You got it, that's Catch-22.
Yossarian: Whoo... That's some catch, that Catch-22.
Dr. 'Doc' Daneeka: It's the best there is.

I think it's rad when balls beats natural talent

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The Real war is not between the east and the west. The real war is between intelligent and stupid people.

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#801 Tearloch7

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Posted 22 October 2012 - 02:02 PM

Catch-22 says all that needs saying, Brother .. :rolleyes:

"To Thine Own Self Be True"

 

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#802 Wetcoaster

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Posted 30 October 2012 - 08:43 PM

Omar Khadr's legal counsel's view of Gitmo and the discredited Military Commission tribunal system - Dennis Edney says:

“It is a place where habeas corpus (an arrested person’s legal right to be brought into court or before a judge) has been ­abandoned, secret courts were created to hear secret evidence, guilt inferred by association, torture and rendition nakedly justified.”

“The rule of law doesn’t apply in the US when it comes to Guantanamo detainees.

“The world is being told the worst of human beings are in Guantanamo. If that is the case, then put them on trial, and if they are really bad, let’s lock them away for ever.”


AFTER Dennis Edney visited Guantanamo Bay to represent its youngest inmate, he described how he “went in a lawyer and came out a broken father”.


The Scots solicitor said: “I never thought I would go to such an evil place and see such evil being done. Guantanamo changed me.”


The experience cemented in the mind of this lorry driver’s son from Dundee the need to keep picking at the sore that is Guantanamo.


Proud of his reputation as a thorn in the side of government, Dennis is one of Canada’s most respected human rights lawyers and his casebook is both high-profile and controversial.


Quite a feat, considering the ex-footballer didn’t enter the legal profession until he was touching 40.


He said: “What has made me a fighter, taking on governments, is my own Scottish character. We don’t like to see the underdog being picked on.”


For more than eight years, he ­represented Omar Khadr, who was imprisoned in Guantanamo when he was only 15. Khadr is described by supporters as a child soldier following orders and by critics as a trained ­radicalised fighter whose father was in Osama Bin Laden’s inner circle.


Khadr was captured in 2002 in Afghanistan and spent a decade at the Guantanamo prison on US territory in Cuba, which was set up after the September 11 attacks on the US to hold suspected terrorists.


He received an eight-year sentence in 2010 after being convicted of throwing a grenade that killed US army sergeant Christopher Speer in Afghanistan.


But there have been doubts over whether he threw the grenade and his lawyers argued that he was a child coerced into participating in terrorist ­activities by his father.


Khadr was allegedly tortured at Bagram internment base but when Dennis first met him, it was in a windowless, cold cell in Guantanamo, where he was kept alone, chained to the floor.


To the embarrassment of the authorities, Dennis secured the release of CCTV footage that showed Khadr being subjected to relentless interrogations.


There have been only three trials in Guantanamo and they were in ­military courts. Khadr’s was the only one where the accused was alleged to have killed an ­American soldier.


He confessed to the crimes, Dennis argued, so he would be ­transferred home to Canada to serve the rest of his sentence. He explained: “He would have confessed to anything, just to get out of that hellhole.”


Dennis came from a poor home in Lochee, Dundee. His mother was a Catholic and his father a Protestant. And prejudice against the marriage made it difficult for his dad to get work. It was his first taste of bigotry.


“I saw the cruelty of it all. A different religion made it hard for my father,” said Dennis.


He left home at 17, with “limited education and opportunities” but a resilience that has stood him in good stead. He went into law late in life after travelling the world and playing low league professional football in San Francisco, before setting up his own construction and trucking companies in Canada.


When the Canadian economy dived in the 80s, his companies struggled, so, an avid reader with a sharp mind, he took up law. He was 35 when he went to ­Northumbria University in Newcastle.


He said: “I came to law quite easily, maybe because I was always good at breaking rules, so I was able to think of ways around breaking rules. I think I also bring a practical, common sense approach because of my background.”


He loved the opportunities, the space and the people of Canada, so he moved his life there and set up a legal practice. His Canadian wife of 25 years is in medicine and they have sons Cameron, 22, and Duncan, 17.


He soon became involved in high-profile, controversial cases. One of the first was Brian Mills, who was accused of the sexual assault of a 12-year-old girl. Dennis created a storm when he successfully argued against a law that stated a defendant shouldn’t be able to view the alleged victim’s medical records.


Mills was cleared but the decision to change the law was overturned. Nonetheless, it brought Dennis to the fore and he appeared at the Supreme Court of Canada, where he was booed by women’s rights campaigners.


Less than one per cent of lawyers ever get to the Supreme Court of Canada, but Dennis has been there seven times. He has also appeared in front of the US Supreme Court.


He represented Liam Towson, the IRA gunman who was convicted in 1977 of murdering British Army captain Robert Nairac and served 13 years before being released in 1990.He fled to Canada and Dennis stopped him being extradited to the UK.


Dennis also defended Fahim Ahmad, the ringleader of the Toronto 18, al-Qaeda members who were accused of planning to detonate truck bombs and storm the Canadian Broadcasting Centre and Parliament.


He painted his client Ahmad as a fantasist who had been entrapped by the Canadian Security Intelligence Service. He got seven years while the rest got life.


Dennis has won numerous human rights awards and is now helping the Memory Commission of Argentina, who are working to bring the former military junta to court. But it is ­Guantanamo that remains a focal point.


He said: “It is a place where habeas corpus (an arrested person’s legal right to be brought into court or before a judge) has been ­abandoned, secret courts were created to hear secret evidence, guilt inferred by association, torture and rendition nakedly justified.”


In the early days of the Bush ­administration in 2004, he became involved in a legal battle in the US Supreme Court, calling for the right of Guantanamo detainees to have a fair trial before a judge.


It was a landmark win but then the Bush government overruled the court.


Barack Obama, he says, has merely ­“codified” in law the abuses Bush allowed to happen under his ­administration.


Dennis said: “The rule of law doesn’t apply in the US when it comes to Guantanamo detainees.


“The world is being told the worst of human beings are in Guantanamo. If that is the case, then put them on trial, and if they are really bad, let’s lock them away for ever.”


Dennis has worked often for free, been called a terrorist and his family have been verbally threatened. So why does he do it?


He said: “I want to take on governments and, with my Scottish stubbornness, I am very hard to knock down.


“Sometimes there are things you have no choice but to fight for, because it is important and absolutely right to do it.”

http://www.dailyreco...tnessed-1401543

Edited by Wetcoaster, 30 October 2012 - 08:48 PM.

To err is human - but to really screw up you need a computer.

Always listen to experts. They'll tell you what can't be done and why. Then do it.

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Never try to teach a pig to sing - it wastes your time and annoys the pig.

#803 Buddhas Hand

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Posted 31 October 2012 - 01:03 AM

quote

“Sometimes there are things you have no choice but to fight for, because it is important and absolutely right to do it.”


I know the feeling .

I think it's rad when balls beats natural talent

Shaun Palmer

 

The Real war is not between the east and the west. The real war is between intelligent and stupid people.

Marjane Satrapi


#804 Wetcoaster

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Posted 31 October 2012 - 04:23 PM

An editorial from the Ottawa Citizen - Editorial: Feelings about Khadr irrelevant

I consider myself one of the "reasonable people" and deplore the federal government ignoring the rule of law and human rights.

Some Canadians loathe Omar Khadr and some lionize him. Reasonable people recognize that how we feel about Khadr isn’t the point. The Canadian government has a responsibility to the rule of law, to its commitment to human rights and to the protection of society.

It did not live up to that duty in the 10 years that Khadr, a Canadian citizen born in Toronto, was in U.S. custody. The Supreme Court found, in 2010, that Canada “actively participated in a process contrary to its international human rights obligations” and violated Khadr’s Charter rights to liberty and security of the person.

“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,” the court ruled.
...
The actions and rhetoric of both Liberal and Conservative governments on the Khadr case over the last 10 years have muddied Canada’s position on child soldiers and its willingness to defend the fundamental rights of its own citizens in foreign custody.

Khadr may have gained the sympathy of many Canadians but he has not had an easy ride. If he had been convicted of murder in Canada, at age 15 in 2002, he’d most likely be out on the streets by now. If you’re one of the people who has argued all along that Khadr should be punished for his crimes, congratulations: your side won. He has been punished. The task for the Canadian justice system now is to give him the best chance at a healthy re-integration into society. That doesn’t necessarily mean immediate parole. It does mean appropriate supervision and help when he does get parole.

That would serve both Khadr’s interests and the interest the Canadian people have in making sure he isn’t vulnerable to jihadist influences when he gets out. He seems to want to live a normal life in Canada. Lionize him or loathe him, there is nothing to be gained by making it hard for Omar Khadr to live peacefully among his fellow Canadians when the day comes.

http://www.ottawacitizen.com/news/Editorial+Feelings+about+Khadr+irrelevant/7327536/story.html#ixzz2AvCl9mnG
To err is human - but to really screw up you need a computer.

Always listen to experts. They'll tell you what can't be done and why. Then do it.

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Illegitimi non carborundum.

Never try to teach a pig to sing - it wastes your time and annoys the pig.




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