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Omar Khadr and the Crimes and Deceptions of the ‘War on Terror’

Michael Keefer

Not a single thing that we commonly believe about wars that helps keep them around is true. [….] The reasons given for wars, before, during, and after them (often three very different sets of reasons for the same war) are all false.1

1. A Triple Victim

In whatever manner Canadians choose to interpret the so­called War on Terror, Omar Khadr must be one of the key figures whose involvement in it comes to mind. This child warrior, now a young man but still imprisoned, is best understood as a multiple victim—but one whose plight can move us toward an awareness of the ways in which the multiple deceptions of this war­without­end­or­limits threaten to victimize us all, by stripping away what remains of a system of democratic jurisprudence and international law.

1 David Swanson, War Is a Lie (Charlottesville, VA: DavidSwanson.org, 2010), p. 7. 2

Omar Khadr was a victim, first, of his father’s political extremism. Even prior to making any judgment of the causes to which Ahmed Said Khadr devoted himself— bringing humanitarian aid to Afghans suffering under the Soviet occupation and the fierce infighting that followed it, then joining the most ruthless wing of an Islamist campaign against the powers crushing Iraq and oppressing Palestine—one can condemn the fanaticism that led him in 1994, when Afghanistan was still riven by civil war, to send Omar’s older brothers Abdullah and Abdurahman, aged thirteen and twelve, to a military training camp there.2 In July 2002, after the Khadr family had taken refuge in the South Waziristan border region of Pakistan following the fall of the Taliban regime, he allowed Omar, aged fifteen, to accompany a group of men moving into the Khost region of Afghanistan on a guerilla mission that ended on July 27th with their deaths and Omar’s near­death and capture. This was equally an act of fanaticism. International law recognizes child soldiers as victims, and their recruitment as a crime: Omar Khadr was a child soldier by the decision of his own father.3 But however wretched the consequences of this parental abuse, Omar Khadr’s public significance stems from other more impersonal, but also more far­reaching forms of victimization. He has been a victim of the American imperial state, which in the Manichaean theatrics of its global war of good against evil imprisoned, tortured and demonized him; and he has been victimized as well by Canadian political leaders who, at first cravenly and then in a deliberate scorn of legality, have violated his rights as a Canadian citizen and refused their responsibilities to him under Canadian and international law. The grotesque injustice of Omar Khadr’s treatment by the United States is widely recognized. Even were he guilty, as charged, of having killed an American soldier, his imprisonment and the pressing of charges against him remain a violation of Articles 37,

2 One adult militant in the camp (a spy, actually) appears to have been shocked by the noisy sibling quarrels of two ungoverned boys armed with automatic weapons. See Michelle Shephard, Guantanamo’s Child: The Untold Story of Omar Khadr (Mississauga: Wiley, 2008), pp. 44­46. 3 Shephard (p. 82) indicates that the group’s Libyan leader wanted Omar as a translator, because of his fluency in Pashto; but whatever the precise nature of his activities, he was still clearly part of a military expedition. 3

39, and 40 of the UN Convention on the Rights of the Child,4 and the torture to which he has been subjected is a criminal matter for which senior US officials, including all of those responsible for the prisons at Bagram and at Guantánamo, deserve indictment. Let us remember some of the details of this treatment. During the July 27th, 2002 firefight in Khost in which all of the other members of the group he was with were killed, Omar Khadr received numerous splinter wounds, partially blinding him, from the initial aerial bombardment by Apache helicopters and A10 Warthog ground attack aircraft; he was then shot twice in the back, apparently by the first US soldier who entered the shattered compound, leaving gaping exit wounds in his chest. But despite his grievous injuries and his age, a confession that he had thrown the grenade that killed a US Delta Force soldier was extracted from him, by threats and by violence, while he was chained to his bed in the Bagram prison hospital.5 During his time in Bagram Khadr was subjected to stress­position torture, and according to another Bagram prisoner, British citizen Moazzam Begg, he was singled out by the guards there “for the worst treatment, payback for allegedly killing one of their own.”6

4 Article 37 provides that “The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort for the shortest appropriate period of time. Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance….” Article 39, on Rehabilitative Care, provides that “States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self­respect and dignity of the child.” Article 40 recognizes the right of a child accused of a crime “to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth,” and provides for “hav[ing] the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law.” For the full text, see CRIN: Child Rights Information Network, http://www.crin.org/docs/resources/treaties/uncrc.asp. The US has not ratified the Convention on the Rights of the Child, but professes to respect it. 5 “Canada’s role in the persecution of child soldier Omar Khadr,” World Socialist Web Site (30 October 2010), http://www.wsws.org/articles/2010/oct2010/pers­o30.shtml; see also “Affidavit of Omar Ahmed Khadr, 22 February 2008,” Wikisource, http://en.wikisource.org/wiki/Affidavit_of_Omar_Ahmed_Khadr. 6 Shephard, Guantanamo’s Child, p. 90; see also Khadr’s “Affidavit.” 4

But as senior US officers were aware from the beginning, the claims against Khadr were fraudulent. On February 4, 2008, a document inadvertently given to reporters during Khadr’s pre­trial hearing showed that one of the men with him had also survived the aerial attack and could have thrown the grenade: a US soldier who entered the shattered compound reported killing this other man with a head shot, and then, seeing Khadr “sitting up facing away from him leaning against the [pile of?] brush,” shooting him twice in the back.7 The diary of an officer that was made public on March 19, 2008 confirmed that one of the adults was still alive when American troops entered the compound: by this account, after the fighting was over the officer saw a US soldier execute the other still­living fighter with “‘controlled pairs,’ or rapid execution­style firing,” and was about to order him to execute Khadr as well when special forces soldiers intervened and insisted Khadr should be given first aid.8 One might guess that Khadr’s eye injuries and the posture in which he was first seen make it unlikely that he could have thrown a grenade—but it turns out that speculation is unnecessary. In March 2008, Khadr’s military lawyer, Lt. Cmdr. William Kuebler, revealed that the US commander’s report written the day after the Khost firefight had ruled out Khadr by identifying the grenade­thrower as having been killed—but was then revised, months later (though falsely still given the same date), to say that the grenade­thrower was merely “engaged” by US troops.9 At the Guantánamo Bay prison, where he arrived in October, 2002, Khadr was subjected to physical abuse, threats of rape, sleep­deprivation torture, very extended solitary confinement, and long periods of being “short­shackled” in stress positions to a concrete floor. When on one such occasion, after hours chained to the floor, he wet himself, the guards drenched him with floor cleanser, used him as a human mop to wipe up his own urine, and left him in his soiled and chemical­stained clothing for the next two

7 Shephard, pp. 224­25. 8 “Captured Khadr nearly executed: documents,” The Canadian Press, available in The Toronto Star (19 March 2008), http://www.thestar.com/News/World/article/347974. 9 Michael Melia, “US accused of altering Gitmo evidence: Lawyers for Canadian Terror Suspect Say US Military Commander Altered Evidence,” Associated Press, available at Psyche, Science, and Society (13 March 2008), http://psychoanalystsopposewar.org/blog/2008/03/13/fake­evidence­used­in­gitmo­trials/. 5 days.10 Khadr was also denied medical treatment for shrapnel injuries to his eyes and his legs. In April 2008, his lawyer Dennis Edney declared that he had by that time been locked in solitary confinement for a total of “more than two years with no relief from the overhead fluorescent lights,” and had been given “no education, no psychological assessment and no Canadian consular representative.”11 Alfred W. McCoy has studied in detail the CIA’s development since the 1950s of a new model of psychologically sophisticated torture—one that focuses on sensory deprivation, on so­called ‘self­inflicted’ pain caused by forcing prisoners into stress positions, and on techniques of disorientation involving, in particular, isolation and sleep­ deprivation.12 The aim in all cases is to induce psychological regression from a normal state, in which a prisoner may be able to resist the demands of interrogators, into a condition of dependency, deep confusion, and fear. Applied with some subtlety, these forms of torture may leave no obvious physical marks, though sensory deprivation and isolation can rapidly produce psychosis, and leave permanent psychological damage, while stress positions can result in death. In the CIA torture manuals analyzed by McCoy, and in the tortures inflicted throughout the US gulag system that has been a major offshoot of the War on Terror, these techniques have been combined with older and more obviously brutal methods of inducing terror, mental breakdown, and despair.13

10 Shephard, Guantanamo’s Child, pp. 105­06; see also Khadr’s “Affidavit.” 11 “Lawyer paints dark picture of client,” Edmonton Journal (24 April 2008), available at Canada.com, http://www.canada.com/story_print.html?id=ef46edf1­703a­48b0­89be­ 041ae9a2cf1f&sponsor=. 12 Alfred W. McCoy, A Question of Torture: CIA Interrogation from the Cold War to the War on Terror (New York: Metropolitan/Owl Books, 2006), pp. 32­58, 100­101. The key work in developing this model of torture was carried out by two Canadian psychologists, both of McGill University: Dr. Donald O. Hebb, who from 1951 to 1954 carried out sensory deprivation experiments funded by the Canadian Defence Research Board; and Dr. Ewen Cameron, whose work on psychological regression produced by isolation, electroshocks, and intensive repetition of verbal signals was funded from 1957 until 1963 by the CIA’s MK ULTRA program. Hebb belatedly recoiled from the implications of work that in 1958 he acknowledged had been concerned with “brainwashing”; in 1963 he denounced Cameron, whose infliction of irreparable harm on unwitting or unwilling patients was becoming a scandal, as “criminally stupid” (pp. 41, 44). 13 On the torture manuals, see McCoy, pp. 50­53, 78, 86­94, 96­99, 106­07. On the methods used in the War­on­Terror gulag, see McCoy, pp. 125­43, and Physicians for 6

Omar Khadr was subjected to all of these forms of torture during the years of his captivity and repeated interrogations at Bagram and Guantánamo—and there is no doubt about the effects of this treatment. The Pentagon refused repeated requests for an independent medical examination. However, when lawyers acting on Khadr’s behalf were at last allowed to meet with him—in November 2004 and the spring of 2005—they administered two standard psychological tests to him themselves. The results were assessed by experts, who concluded that Khadr’s symptoms were “consistent with those exhibited by victims of torture and abuse,” and that his answers revealed “a significant mental disorder” and met the “full criteria for a diagnosis of Post­Traumatic Stress Disorder.”14 The lawyers’ attempt to secure an injunction against further interrogations was denied. No less dismaying, from a Canadian perspective, is the victimization of Omar Khadr by our own government. On August 30, 2002, Canada sent a diplomatic note requesting consular access to Khadr at Bagram (in conformity, as Michelle Shephard notes, with the Geneva Conventions and the Vienna Convention on Consular Access), and asked both that due consideration be given to his age (Canada had ratified the Convention on the Rights of the Child in 2001), and that he not be transferred to Guantánamo.15 So far, so good. But when the US denied consular access and bundled Khadr off to Gitmo, Canadian officials decided, in the words of the recommendation made by the Foreign Affairs Department’s legal advisor, Colleen Swords, to “claw back on the fact that [Omar] is a minor.”16 And when the US permitted access to him only by Canadian intelligence officers, and on the understanding that their purpose would be to obtain—and share—information that could be incriminating, our government acquiesced. In February 2003, Khadr was interrogated on three successive days by two

Human Rights, Break Them Down: Systematic Use of Psychological Torture by US Forces (Cambridge, MA, 2005), http://physiciansforhumanrights.org/library/documents/reports/break­them­down­the.pdf. 14 Shephard, Guantanamo’s Child, pp. 173­74. For detailed indications of the long­term consequences of the kinds of mental and physical torture inflicted on Omar Khadr, see Physicians for Human Rights, Break Them Down, pp. 48­71. 15 Ibid., p. 116. 16 Quoted by Shephard, p. 117. 7 intelligence officers from CSIS and the Department of Foreign Affairs; they responded to his complaints that he had been tortured into making false statements and was not receiving adequate medical care with a callous contempt that is the more remarkable for the fact that his wounds, which he showed to them by raising his shirt, were at this point apparently “infected, swollen, and still seeping blood.”17 There were further interrogations in the Fall of 2003 by two CSIS agents, and in March 2004 by a Foreign Affairs intelligence officer who was aware that Khadr had been subjected to three weeks of sleep­deprivation torture prior to their meeting in order to make him “more amenable and willing to talk.”18 Khadr’s lawyers brought these facts to the Canadian Federal Court of Appeal, which in 2007 ruled that the government had violated international law, and ordered the release of all documents relating to his imprisonment. The Harper government appealed to the Supreme Court, which reiterated the lower court’s judgment, ruling that Khadr’s rights under the Charter of Rights and Freedoms had been violated.19 When in April 2009 the Federal Court ordered that a request be made for Khadr’s repatriation to Canada as soon as possible, the Harper government again appealed to the Supreme Court, which issued its judgment in January 2010. While strongly critical of the deprivation of Khadr’s “right to liberty and security of the person,” and judging that the government’s complicity in the American preparation of a prosecution case through the use of sleep deprivation (which the Court refrained from describing as torture) “offends the most basic Canadian

17 These are the words of Khadr’s defence lawyer Lt.­Cmdr. William Kuebler, quoted in “Captured Khadr nearly executed: documents,” The Canadian Press, available in The Toronto Star (19 March 2008), http://www.thestar.com/News/World/article/347974. A poor­quality videotape of this moment, taken by a hidden camera, is available at “Omar Khadr,” Wikipedia, http://en.wikipedia.org/wiki/Omar_Khadr (accessed 28 January 2011). 18 Graham Beverley and Keith Jones, “Canada reaffirms support for Khadr’s Guantánamo Bay detention and prosecution,” World Socialist Web Site (19 July 2008), http://www.wsws.org/articles/2008/jul2008/khad­j19.shtml. See also Shephard, Guantanamo’s Child, pp. 113­14, 124­26. 19 The documents, hitherto secret, were unsealed on July 9, 2008; see Colin Freeze and Omar el Akkad, “Canada’s secret documents on Khadr’s treatment revealed,” The Globe and Mail (9 July 2008, updated 31 March 2009), http://www.theglobeandmail.com/news/national/article697208.ece. 8 standards about the treatment of detained youth suspects,” the Supreme Court left it to the government to decide how best to uphold Omar Khadr’s violated rights.20 Given this latitude, the Harper government allowed the American Military Commission kangaroo court to lurch unprotested toward its preordained guilty verdict. On October 31, 2010—Halloween, that is—a military jury in Guantánamo arrived at the ghoulish conclusion that Khadr deserved an additional forty years in prison for war crimes, fifteen years more than the prosecution had called for. But this sentence was pre­ empted by a plea­bargain agreement, according to which, in return for a full acknowledgment of guilt, Khadr would receive an eight­year sentence, after a year of which the US government “would support his bid to apply to serve the rest of his sentence in a Canadian prison.” The Canadian Press reported that “A spokeswoman for Foreign Affairs Minister Lawrence Cannon would not speculate on whether Canada would agree to the request.”21 One might, at this point, describe Omar Khadr as victimized by a triple suspension of what ought to have been his by right: as child, as citizen, and as a human being. His father’s political passions, and the situations and commitments into which they led him, resulted in a suspension of the parental protection that is the normal anchorage and security of a child’s world, exposing him to the horrors of asymmetrical warfare, and to the vengeful power of an imperial state openly casting off the constraints of normative legality that over the course of the twentieth century had come to define the fundamental rights accruing to us from our shared humanity—and exposing him, as well, to the betrayal of his rights as a citizen by a national government that has been willing, whether through cowardice or conviction, to trim its notions of legality to the prevailing wind. But Omar Khadr’s case raises still deeper questions about law and its fragility. The context within which he has suffered this triple victimization is the so­called War on Terror. Do we dare to contemplate, with open eyes, this war’s procedures, its goals,

20 The sequence of facts in this paragraph and the wording of the Supreme Court judgment are derived from “Omar Khadr,” Wikipedia. 21 “Khadr gets eight years, jury wanted 40,” The Canadian Press (31 October 2010), available at The Hook, http://thetyee.ca/Blogs/TheHook/2010/10/31/khadr­gets­eight­ years/. 9 whether acknowledged or concealed, and—perhaps most dangerously—its origins?

2. Phantom Causes of Two Great Wars

Everyone knows what set off the archetypal great war of western memory, the ten­year siege of Troy. It began with the abduction of Helen, queen of Sparta, the most hauntingly desirable of all women, by the Trojan prince Paris, or Alexandros. For the poets who followed Homer’s Iliad and Odyssey, Helen was a figure no less of desolation than desire: “helenas, helandros, heleptolis,” the tragedian Aeschylus punningly called her, “the ruin of ships, men, and the city.” As Christopher Marlowe wrote two millennia later, hers was “the face that launched a thousand ships, / And burned the topless towers of Ilium.”22 But a stubborn tradition persisted among the ancient Greeks that Homer, and the poets who played variations on his story, had not been telling the truth. According to Socrates—Plato’s Socrates, that is—Stesichorus, one of the poets who reproached Helen for her infidelity, was struck blind as a punishment, and only recovered his sight when he wrote a palinode declaring that Helen was never really at Troy, but only a phantom of her.23 Euripides expanded this notion into an entire play, Helen, whose protagonist denies that she herself was fought over by Trojans and Greeks—“that Helen was not I, only my name.”24 And the historian Herodotus claimed, on the authority of the priests at the temple of Memphis, that Helen sat out the entire ten years of the war in Egypt—adding that while Homer rejected this true story “as less suitable for epic poetry than the one he 22 Aeschylus, Agamemnon, lines 689­90, in Eschyle, ed. and trans. Paul Mazon (2 vols., Paris: Les Belles Lettres, 1920­1925), vol. 2, p. 34; Christopher Marlowe, The Tragical History of Doctor Faustus, ed. Michael Keefer (Peterborough: Broadview Press, 2008), V. i. 90­91, p. 254. 23 Plato, Phaedrus 243a­b, in The Collected Dialogues of Plato, ed. Edith Hamilton and Huntington Cairns (1963; rpt. Princeton: Princeton University Press, 1980), p. 490. This story may be more about the power of the gods—Helen was the daughter of Zeus—than the supposed truth or falsity of what Stesichorus had initially written. 24 Euripides, Helen, in The Bacchae and Other Plays, trans. Philip Vellacott (1973; rpt. Harmondsworth: Penguin, 1976), p. 136. 10 actually used, he left indications that it was not unknown to him.”25 Roberto Calasso has aptly summed up the scandalous implications of this counter­ narrative: For ten years the war had raged around an absent woman, whom the Trojans would have been more than happy to hand over to the Achaeans, if only they had actually had her. Why on earth did Homer keep quiet about that extraordinary fact in the events leading up to the war? Herodotus answers: “because this story was not suitable for epic composition.” It is an explanation that leaves us dumbfounded. [….] For overridingly literary motives, Homer kept quiet about the supreme scandal of the Trojan War, that blood had been spilled for a woman who was not actually there, for an impalpable ghost.26

* * * *

We are now more than ten years into another great war—one whose American architects warned us at the outset could go on for generations. Some at least of the organizers of this long war went into it with epic aspirations. Just three weeks after the beginning of the American attack on Afghanistan in October 2001, Richard Perle, Chair of the Pentagon’s Defense Policy Board Advisory Committee, chaired a panel discussion at the neoconservative American Enterprise Institute in Washington, featuring other influential advocates of aggression against Muslim countries. One panelist, Michael Ledeen—whose previous activities, during the Reagan­era Iran­Contra affair and more

25 Herodotus, The Histories, trans. Aubrey de Sélincourt, revised by John Marincola (Harmondsworth: Penguin, 1972), II. 116, p. 126. Herodotus’s evidence that Homer knew the true story is the scene in Book IV of the Odyssey in which Helen administers a drug of forgetfulness that she obtained in Egypt to Menelaus, Telemachus, and Peisistratus, who have been grieving over the war. (Herodotus interprets Homer’s story that Menelaus and Helen were delayed in Egypt by contrary winds on their journey home from Troy as a sly accommodation to his own fiction of the hidden truth.) 26 Roberto Calasso, The Marriage of Cadmus and Harmony, trans. Tim Parks (Toronto: Knopf, 1993), p. 129. 11 recently, would by any application of the Nuremberg Principles have earned him a very long prison sentence—was reported to have “nicely summed up the hawks’ worldview”: “No stages,” he said. “This is total war. We are fighting a variety of enemies. There are lots of them out there. And all this talk about, well, first we are going to do Afghanistan, then we will do Iraq, then we take a look around and see how things stand, that is entirely the wrong way to go about it. [….] If we just let our vision of the world go forth, and we embrace it entirely, and we don’t try to be clever and piece together clever diplomatic solutions to this thing, but just wage a total war against these tyrants, I think we will do very well, and our children will sing great songs about us years from now.”27 Some time may have to pass before one or another aspiring epic poet bestows upon the world, in commemoration of this vision, a Ledeeniad, or a Perleid. But we need not wait for such an event to be able to note one obvious parallel between the Trojan War, as represented in the counter­narratives of Plato, Euripides, and Herodotus, and the Global War on Terror announced in the aftermath of the 9/11 terrorist attacks by US President George W. Bush. The disappearing­phantom pretext for the invasion of Iraq in 2003 is familiar enough. Saddam Hussein’s much­advertised Weapons of Mass Destruction weren’t there —neither in Baghdad nor in Saddam’s home town of Tikrit, nor, as Donald Rumsfeld somewhat vaguely declared on March 30, 2003, eleven days into the war, “in the area around Tikrit and Baghdad and east, west, south and north somewhat.”28 There is a grim

27 Jason Vest, “Saddam in the Crosshairs. Beyond Osama: The Pentagon’s Battle with Powell Heats Up,” The Village Voice (20 November 2001), http://www.villagevoice.com/2001­11­20,news/saddam­in­the­crosshairs/2/. These words were mistakenly attributed to Perle, another fierce advocate of total war, by John Pilger, “A New Pearl Harbor,” New Statesman (16 December 2002). According to Justin Raimondo, “Richard Perle: Still Crazy After All These Years,” Antiwar.com (15 January 2009), http://original.antiwar.com/justin/2009/01/14/richard­perle­still­crazy­after­all­ these­years/, the other speakers at Perle’s AEI panel were Newt Gingrich, former Speaker of the House of Representatives; Natan Sharansky, Deputy Prime Minister of Israel; and James Woolsey, former Director of the CIA. 28 Eric Rosenberg, “Rumsfeld Retreats, Disclaims Earlier Rhetoric,” Hearst Newspapers 12 irony to the fact that when weapons of mass destruction did make an appearance in Iraq, it was in the hands of the invaders—in the white phosphorus and other chemical weapons showered upon the civilian population of Fallujah in November 2004,29 and in the deadly residue of depleted uranium weapons with which most of the country is now irretrievably polluted.30 But could the larger War on Terror also have a phantom cause? Just as we know whose uncanny beauty launched the war of Troy, so with equal conviction we all know who set off the War on Terror: Osama bin Laden, with his sheep’s eyes, long beard, and visceral hatred of the United States: his loathing, as George W. Bush put it, “of our freedoms.” Yet as soon as we seek to give evidential weight to this conviction, we encounter anomalies on all sides. Reading through the FBI’s online Most­Wanted listings in 2006, investigative journalist E. F. Haas was puzzled to find, on the page devoted to Bin Laden, that he “is wanted in connection with the August 7, 1998, bombings of the United States Embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya,” and “is a suspect in other terrorist attacks throughout the world”—but that his most infamous coup, the terrorist attacks of September 11, 2001, goes unmentioned. Inquiring into this omission, Haas was apparently told by Rex Tomb, the FBI’s Director of Investigative Publicity, that the

(9 November 2003), available at Common Dreams.org, http://www.commondreams.org/headlines03/1109­11.htm. Members of the US political elite, including Rumsfeld, had known since 1995 that in the early 90s Iraq ended its WMD programs and destroyed its existing stockpiles of chemical and biological weapons; see “Star Witness on Iraq Said Weapons Were Destroyed,” FAIR: Fairness & Accuracy In Reporting (27 February 2003), http://www.fair.org/index.php?page=1845. 29 See Chris Floyd, “Fallujah: The Flame of Atrocity,” Empire Burlesque: High Crimes and Low Comedy in the Bush Imperium (11 November 2005), http://www.chris­ floyd.com/index.php?option=com_content&task=view&id=274&Itemid=1; also available at http://www.chris­floyd.com/fallujah/. 30 For evidence on pre­2003 depleted uranium contamination, see Professor Souad N. Al­ Azzawi, “Depleted Uranium Radioactive Contamination In Iraq,” Centre for Research on Globalization (31 August 2006), http://www.globalresearch.ca/index.php? context=va&aid=3116. See also James Denver, “Horror of USA’s Depleted Uranium in Iraq Threatens World,” ViveleCanada (29 April 2005); and David Rose, “Weapons of Self­Destruction,” Vanity Fair (November 2004): both are available at “Depleted Uranium: Horror from America,” Truthout, http://www.truth­out.org/article/depleted­ uranium­horror­america#1. 13 reason for it is that “the FBI has no hard evidence connecting bin Laden to 9/11.”31 The 9/11 Commission Report is no more helpful—at least to a reader sensitized to the practices of interrogation­by­torture encountered by Omar Khadr and by all the other inmates, whether terrorists, resistance fighters, or merely taxi­drivers,32 of the post­9/11 American gulag. In early 2008 an analysis conducted for NBC News by Robert Windrem and Victor Limjoco showed that “More than one­quarter of all footnotes in the 9/11 Report refer to CIA interrogations of al Qaeda operatives subjected to the now­ controversial interrogation techniques”—or, in Windrem’s words again, “enhanced interrogation techniques, or torture.” Moreover, “information derived from the interrogations was central to the 9/11 Commission Report’s most critical chapters, those on the planning and execution of the attacks.”33 This raises a problem that goes beyond any questions of legality: statements based

31 See “FBI Ten Most Wanted Fugitive: Usama bin Laden,” http://www.fbi.gov/wanted/topten/usama­bin­laden; E. F. Haas, “FBI says, “No hard evidence connecting Bin Laden to 9/11,” Muckraker Report; available at the Centre for Research on Globalization (10 June 2006), http://www.globalresearch.ca/index.php? context=viewArticle&code=20060610&articleId=2623; see also Michael Chossudovsky, “Osama bin Laden, among the FBI’s ‘Ten Most Wanted Fugitives’: Why was he never indicted for his alleged role in 9/11?” Centre for Research on Globalization (17 September 2006), http://www.globalresearch.ca/index.php?context=va&aid=3246. 32 See Taxi to the Dark Side, dir. Alex Gibner (THINKFilm, 2007, 106 minutes), a documentary broadcast in thirty countries from October 8 to 18, 2007. Omar Khadr’s interrogators at Bagram included Sgt. Joshua Claus, who in December 2002 was involved in the murder of Dilawar, a taxi driver who was tortured to death even though his captors realized he had no links to the resistance. In 2008 Claus was “given immunity from prosecution for any possible abuse of Khadr in return for his testimony” at Khadr’s murder trial. See “Captured Khadr nearly executed: documents,” The Canadian Press, available in The Toronto Star (19 March 2008), http://www.thestar.com/News/World/article/347964. 33 I have quoted here from Robert Windrem, “Blogs & Stories: Cheney’s Role Deepens,” The Daily Beast (13 May 2009), http://www.thedailybeast.com/blogs­and­stories/2009­ 05­13/cheneys­role­deepens/p/; the original article, Robert Windrew and Victor Limjoco, “9/11 Commission Controversy,” MSNBC (30 January 2008), though deleted from the MSNBC website, is available at http://911research.wtc7.net/cache/post911/commission/msnbc_commission_torture.html. This and the next two paragraphs repeat material from my essay “9/11, Torture, and Law,” in Ten Years After 9/11: An Anarchist Evaluation, ed. Michael Truscello, Anarchist Developments in Cultural Studies (2011.1): 141­70, pp. 149­50. 14 on torture have no evidential value, because the intentionality they express is that of the torturers. Admissions elicited from “9/11 mastermind” Khalid Sheikh Mohammed, for example, might well be confirmed by those of Abu Zubaydah, another “high­value” prisoner—but when one knows that the former was waterboarded a hallucinatory 183 times by the CIA, and the latter 83 times,34 both the admissions and their confirmation are meaningless. As Elaine Scarry wrote in a classic study, “torture consists of acts that magnify the way in which pain destroys a person’s world, self, and voice”; and torturers “mime” the effects of pain by “breaking off the voice, making it their own, making it speak their words….”35 Torture, in short, is a form of ventriloquism—and the 9/11 Commission Report’s statements about the agencies responsible for the attacks that launched the War on Terror therefore have the epistemic status of pure fiction. The 9/11 Commission’s own members appear to have been troubled by the information they were receiving from the CIA, but their requests to interview the “high­ value” prisoners, or, failing that, their interrogators, were denied—and led only to a further round of torture interrogations.36 In 2005, the CIA destroyed its videotapes of these interrogations, in defiance of court orders requiring their preservation.37 Not merely is the torture ‘evidence’ effectively fictional, but the primary documents which might have allowed a judgment of the meaning—and the accuracy—of the transcripts supplied to the Commission no longer exist.

34 “September 11 mastermind Khalid Sheikh Mohammed ‘waterboarded 183 times’,” The Sunday Times (20 April 2009), http://www.timesonline.co.uk/tol/news/world/us_and_americas/article6130165.ece. 35 Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (1985; rpt. New York: Oxford University Press, 1987), pp. 50, 54. 36 See “The 9/11 Commission & Torture: How Information Gained Through Waterboarding & Harsh Interrogations Form Major Part of 9/11 Commission Report,” Democracy Now! (7 February 2008), http://www.democracynow.org/2008/2/7/the_9_11_commission_torture_how. 37 “Complete 911 Timeline: Destruction of CIA Interrogation Tapes,” History Commons, http://www.historycommons.org/timeline.jsp? timeline=complete_911_timeline&complete_911_timeline__war_on_terrorism__outside _iraq=complete_911_timeline_destruction_of_cia_tapes. See also Marisa Taylor, “No charges over destroyed CIA tapes,” Miami Herald (10 November 2010), http://www.miamiherald.com/2010/11/10/1917891/no­charges­over­destroyed­cia.html. 15

A parallel instance, in which CSIS and RCMP suppositions identifying the wholly innocent Maher Arar as a member of al Qaeda were confirmed by a victim of torture, suggests that the relation between primary text and public claims can indeed be important in such cases. On October 7, 2002, Omar Khadr acknowledged to an FBI agent at Bagram that he had seen Arar at a safe house in Kabul run either by Abu Musab al­Suri, a noted ideologue of jihad, or else by the legendary terrorist Abu Musab al­Zarqawi.38 On the strength of this admission Arar, who had been detained at a New York airport on his way home from a vacation, was renditioned on October 8 to Syria—where his torturers extracted confessions from him of every accusation passed on to them by Canadian and US intelligence sources.39 But during the US Military Commission’s preliminary hearing in Guantánamo in January 2009 it emerged that the notes of Khadr’s interrogation showed that he had not initially recognized Arar’s photograph, and only under pressure admitted seeing him in Afghanistan—including in September and October 2001, when Arar was in the United States, and then (under close RCMP surveillance) in Canada.40 There are other more substantial reasons for doubting the official narrative of the events that set off the War on Terror. I do not intend to offer here even the briefest survey of the large body of evidence and critical analysis that has refuted the official accounts of

38 See “Omar Khadr ID’ed Maher Arar as visitor at al­Qaida facilities, agent testifies,” Canadian Press (19 January 2008); and Omar el Akkad and Colin Freeze, “Khadr said Arar was at Afghan camp, court told,” Globe and Mail (19 January 2008); “Khadr identified Arar as visitor,” Montreal Gazette (20 January 2009); cited in “Omar Khadr,” Wikipedia, http://en.wikipedia.org/wiki/Omar_Khadr (accessed 28 January 2011). On al­ Suri, see Nrynjar Lia, Architect of Global Jihad: The Life of al­Qaida Strategist Abu Musab al­Suri (London: Hurst, 2007); and Adam Shatz, “Laptop Jihadi,” London Review of Books 30.6 (20 March 2008): 14­17. Zarqawi was to a large extent the creation of US propaganda: see Michel Chossudovsky, “Who was Abu Musab al Zarqawi?” Centre for Research on Globalization (8 June 2006), http://www.globalresearch.ca/index.php? context=va&aid=2604. 39 On Maher Arar’s appalling ordeal, see Kerry Pither, Dark Days: The Story of Four Canadians Tortured in the Name of Fighting Terror (Toronto: Viking Canada, 2008). 40 “Khadr couldn’t pick out Arar immediately, FBI agent admits,” CBC News (20 January 2009), http://www.cbc.ca/world/story/2009/01/20/khadr­hearing.html; Steven Edwards, “Khadr only said Arar ‘looked familiar’: FBI,” Canwest News Service (20 January 2009), http://www.canada.com/news/story.html?id=1197989; “Omar Khadr,” Wikipedia (where both the above articles are cited). 16

9/11 put forward by the 9/11 Commission Report and, on the technical side, by the National Institute of Standards and Technology’s studies of the destruction of the Twin Towers and World Trade Center Building 7—though it can fairly be said that any expression of confidence in the conclusions of the 9/11 Commission Report by persons claiming expertise as scholars, or in the NIST studies by qualified scientists or engineers, amounts by this late date to a confession of inattentiveness to the published evidence. If this is not a rash conclusion—if it is indeed the case that the 9/11 Commission’s novelistic reconstructions have been exposed as false and misleading by scholarly studies of the events of 9/11 and their contexts,41 that the central components of NIST’s analyses of the Twin Towers and WTC 7 collapses have been refuted by studies which expose disabling methodological errors in NIST’s work,42 reveal processes of building collapse compatible only with a hypothesis of controlled demolition,43 demonstrate the falsity of NIST’s explanation of the debris­bursts emanating from many floors below the collapse

41 See, for example, Michael Chossudovsky, America’s “War on Terrorism” (Pincourt, Québec: Global Research, 2005); Peter Dale Scott, The Road to 9/11: Wealth, Empire, and the Future of America (Berkeley: University of California Press, 2008); and David Ray Griffin, The 9/11 Commission Report: Omissions and Distortions (Northampton, MA: Olive Branch Press, 2005). In a series of other books, among them 9/11 Contradictions (Northampton, MA: Olive Branch Press, 2008), Griffin has usefully synthesized current research; on two subjects, however, the attack on the Pentagon (where he accepted evidence that has been exposed as misleading), and the issue of phone calls from the hijacked planes, other 9/11 skeptics have rejected his analyses. See David Chandler and Jon Cole, “Joint Statement on the Pentagon,” 911 Blogger.com (7 January 2011), http://911blogger.com/news/2011­01­01/joint­statement­pentagon­david­ chandler­and­jon­cole; and Erik Larson, “Critique of David Ray Griffin’s 9/11 Fake Calls Theory,” 911 Blogger.com (10 February 2011), http://911blogger.com/news/2011­02­ 10/critique­david­ray­griffin­s­911­fake­calls­theory. 42 James Gourley et al., “Appeal Filed with NIST, Pursuant to Earlier Request for Correction,” Journal of 9/11 Studies 17 (November 2007), http://www.journalof911studies.com/volume/2007/AppealLetterToNISTGourleyEtAl.pdf ; and David Ray Griffin, The Mysterious Collapse of World Trade Center 7: Why the Final Official Report about 9/11 is Unscientific and False (Northampton, MA: Olive Branch Press, 2010). 43 Graeme MacQueen and Tony Szamboti, “The Missing Jolt: A Simple Refutation of the NIST­Bazant Collapse Hypothesis,” Journal of 9/11 Studies 24 (January 2009), http://www.journalof911studies.com/volume/2008/TheMissingJolt7.pdf; David Chandler, “WTC7 in Freefall: No Longer Controversial,” Architects and Engineers for 9/11 Truth (2010), http://www.youtube .com/watch?v=rVCDpL4Ax7l. 17 fronts in the Twin Towers,44 and provide direct evidence from the WTC dust that the collapses involved very high­temperature exothermic reactions45 and the use of nano­ thermite explosives46—then we need to re­examine carefully the reasons advanced in support of the war in Afghanistan, and Canada’s participation in that war. If the direct evidence linking Osama bin Laden and like­minded terrorists to the attacks of September 11, 2001 turns out to be dubious, and if much of the other evidence, on subjects ranging from foreknowledge of the attacks to the failure of the US air defence system and the building collapses, points rather to the agency of powers within the American state—so that the events as a whole can be described, as they have been by the peer­reviewed scholarly journal American Behavioral Scientist, as an instance of “state crimes against democracy”47—it follows that arguments legitimizing the War on Terror, and the invasion and occupation of Afghanistan in particular, become weightless, indeed phantasmal.

3. Energy Geopolitics and Legality

44 Kevin Ryan, “High Velocity Bursts of Debris From Point­Like Sources in the WTC Towers,” Journal of 9/11 Studies 13 (July 2007), http://www.journalof911studies.com/volume/2007/Ryan_HVBD.pdf. 45 Steven E. Jones et al., “Extremely high temperatures during the World Trade Center destruction,” Journal of 9/11 Studies 19 (January 2008), http://www.journalof911studies.com/articles/WTCHighTemp2.pdf; see also “Forensic Metallurgy: Metallurgical Examination of WTC Steel Suggests Explosives,” 9­11 Research, http://911research.wtc7.net/wtc/evidence/metallurgy/index.html. 46 Niels H. Harrit at al., “Active Thermitic Material Discovered in Dust from the 9/11 World Trade Center Catastrophe,” Bentham Open Chemistry & Physics Journal 2 (2009): 7­31, http://www.bentham.org/open/tocpj/articles/V002/7TOCPJ.htm? TOCPJ/2009/00000002/00000001/7TOCPJ.SGM. One objection to studies that support a hypothesis of controlled demolition has been that they do not explain how preparations for it could have escaped public observation. But as a matter of methodology, questions of human contingency cannot displace observed physical occurrences in the order of explanation. 47 See American Behavioral Scientist 53.6 (February 2010), http://abs.sagepub.com/content/53/6.toc. The six essays in this issue of the journal are all concerned with the category of “state crimes against democracy”; 9/11 and ensuing closely­linked tendencies are repeatedly taken in this issue to exemplify that category. 18

Some analysts think the invasion of Afghanistan was primarily motivated by the energy geopolitics of a new “Great Game.” When the Taliban came to power in 1996, there were negotiations for a Unocal pipeline from the Caspian Basin gas fields across Afghanistan into Pakistan and thence to the Indian Ocean. But after Osama bin Laden’s 1998 bombings of US embassies in East Africa and retaliatory Tomahawk strikes into Afghanistan, these talks collapsed. There is evidence that in the summer of 2001— months before the 9/11 attacks—American diplomats threatened the Taliban that continued obstruction of the pipeline plan would result in a bombing campaign, and their overthrow, by October of that year.48 US and Canadian government officials have scoffed at the notion that energy geopolitics had anything to do with the invasion and occupation of Afghanistan. But in June 2008 the distinguished petroleum economist John Foster, who has worked for British Petroleum, the World Bank, Petro­Canada, and the Inter­American Development Bank, published a monograph on the subject of plans for a $7.6­billion Turkmenistan­ Afghanistan­Pakistan­India (TAPI) natural gas pipeline that was going to be built, at American insistence, in 2010—and the Canadian government acknowledged that Canadian forces would indeed be assigned to protect the pipeline, whose route lies through Kandahar province, where most of the Canadian casualties in the occupatiin of Afghanistan were suffered.49 However, it was for different reasons that on October 9, 2001, two days after the bombing of Afghanistan began, Michael Mandel, of Toronto’s Osgoode Hall Law School, declared the attack illegal. In his words, it “violate[d] international law and the

48 Chossudovsky, America’s “War on Terrorism”, p. 66. 49 John Foster, A Pipeline Through a Troubled Land: Afghanistan, Canada, and the New Great Energy Game (Ottawa: Canadian Centre for Policy Alternatives, June 19, 2008); see also Shawn McCarthy, “Pipeline opens new front in Afghan war,” The Globe and Mail (19 June 2008), http://v1.theglobeandmail.com/servlet/story/RTGAM.20080619.wafghanpipeline19/BNS tory/Afghanistan; and McCarthy, “Would help protect pipeline, Canada says,” The Globe and Mail (20 June 2008), http://v1.theglobeandmail.com/servlet/story/RTGAM.20080620.wafghanpipeline20/BNS tory/SHAWN+MCCARTHY. 19 express words of the United Nations Charter,” whose Article 51 only “gives a state the right to repel an attack that is ongoing or imminent as a temporary measure until the UN Security Council can take steps necessary for international peace and security.”50 Since the attack was not ongoing,51 and since neither of the UN Security Council resolutions condemning the September 11 attacks “can remotely be said to authorize the use of military force,” Mandel declared that those who die from the attack on Afghanistan “will be victims of a crime against humanity, just like the victims of the Sept. 11 attacks.”52 In November 2001, Thomas Jefferson School of Law professor Marjorie Cohn made similar arguments, adding that the bombing was not legitimate self­defence because the atrocities of 9/11 “were criminal attacks, not ‘armed attacks’ by another state.”53 Subsequently expounded by Mandel and by Cohn at greater length, and supplemented by further considerations, including the fact that in September and October 2001 the Taliban regime offered to give Bin Laden up for trial in a third country, 54 these views are shared by other leading specialists in international law, among them Francis Boyle, Alex Conte, and Myra Williamson.55

50 Michael Mandel, “This War is Illegal,” CounterPunch (9 October 2001), http://www.counterpunch.org/mandel5.html. 51 Graeme MacQueen, founding director of McMaster University’s Institute of Peace Studies, has noted that the anthrax attacks in the US, whose first victim died on October 5 (two days before the assault on Afghanistan began), created the appearance of an ongoing al Qaeda attack—supported by Iraq. Initially identified by the FBI as Iraqi in origin, the anthrax in fact came from a US weapons lab, and the coatings applied to it required high­ tech expertise that the scientist later fingered by the FBI as the lone perpetrator did not possess. See MacQueen, “The Connection Between 9/11, Anthrax, and Iraq” (1 May 2010), available at 911 Blogger.com, http://911blogger.com/news/2010­05­10/dr­graeme­ macqueen­connection­between­911­anthrax­and­iraq­05­01­10­walkerton­1­5. 52 Mandel, “This War is Illegal.” 53 Marjorie Cohn, “Bombing of Afghanistan is Illegal and Must be Stopped,” Jurist (6 November 2001), http://jurist.law.pitt.edu/forum/forumnew36.htm. 54 See “Bush rejects Taliban offer to hand Bin Laden over,” The Guardian (14 October 2001), http://www.guardian.co.uk/world/2001/oct/14/afghanistan.terrorism5; and Andrew Buncombe, “Bush rejects Taliban offer to surrender bin Laden,” The Independent (15 October 2001), http://www.independent.co.uk/news/world/asia/bush­rejects­taliban­offer­ to­surrender­bin­laden­631436.html. 55 Michael Mandel, How America Gets Away With Murder: Illegal Wars, Collateral Damage, and Crimes Against Humanity (London: Pluto Press, 2004); and Marjorie Cohn, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law (Sausalito, CA: 20

4. The Canadian Torture Scandal

Illegalities of a more concrete nature have come to haunt Canada’s participation in the war in Afghanistan. In December 2001, a cover of legality was given to the formation of an occupation army, or International Security Assistance Force (ISAF), by the UN Security Council’s acceptance of the claim that this force was established “at the request of the Government of Afghanistan”56—which at the time consisted of Hamid Karzai, protected by a guard of US SEAL and British SBS special forces soldiers, and a loose coalition of US­financed ‘Northern Alliance’ warlords. But it was the question of how to dispose of Afghans captured by Canadian troops, whether in combat conditions or merely under suspicion, that developed into a specifically Canadian scandal. In January 2002, there were questions in Parliament over The Globe and Mail’s revelation that members of the Joint Task Force 2 unit, after taking part in the fighting in the Tora Bora mountains, had transferred prisoners into US custody.57 The horrors of Abu Graib in Iraq became public knowledge at the end of April 2004; shortly afterward, it was Podipoint Press, 2007). See also Francis Boyle, Destroying World Order: U. S Imperialism in the Middle East Before and After September 11th (Atlanta, GA: Clarity Press, 2004); Alex Conte, Security in the 21st Century: The United Nations, Afghanistan, and Iraq (Aldershot, Hants: Ashgate, 2005); and Myra Williamson, Terrorism, War and International Law: The Legality of the Use of Force Against Afghanistan in 2001 (Aldershot, Hants: Ashgate, 2009). 56 The wording is from a notable UK court decision: Paragraph 15 of Regina (Evans) vs. Secretary of State for Defence, High Court of Justice, Queen’s Bench Division, Divisional Court, [2010] EWHC 1445 (Admin), 25 June 2010, http://www.judiciary.gov.uk/NR/rdonlyres/60E1560B­7E8A­4C3C­A886­ C309B35237AD/0/revansvssdjudgment.pdf. This and the following section of this essay are borrowed, with some revisions, from sections 2 and 3 of my essay “Prime Minister Stephen Harper and Canadian War Crimes in Afghanistan,” Centre for Research on Globalization (24 April 2011), http://www.globalresearch.ca/index.php? context=va&aid=24473. 57 See Michael Byers, “Afghanistan: Wrong Mission for Canada,” The Tyee (6 October 2006), http://thetyee.ca/Views/2006/10/06/Afghanistan/; the parliamentary stir is mentioned by Janice Gross Stein and Eugene Lang, The Unexpected War: Canada in Kandahar (Toronto: Viking Canada, 2007), p. 58. 21 revealed that prisoners held by the US in Afghanistan were also systematically tortured, and in at least five cases had died from their treatment. In June 2004, a Human Rights Watch spokesman declared that in US prisons in Afghanistan “The entire system operates outside the rule of law. At least in Iraq, the US is trying to run a system that meets Geneva standards. In Afghanistan, they’re not.”58 With the option of Canadian­run POW camps ruled out from the start, and with further transfers into US prisons becoming politically impossible, the Canadian Forces passed captives on to Afghan authorities, amid unlikely claims that ‘state­building’ programs were taking effect. But even after acquiring a façade of legitimacy through the 2004 presidential and 2005 parliamentary elections,59 the Karzai regime remained one to which any transfer of prisoners was a most dubious matter. By 2005, Eileen Olexiuk, the second­ranking Canadian diplomat in Kabul, was raising concerns to the Paul Martin government about the fate of transferred detainees.60 Her messages were ignored, and a toothless memorandum of agreement regarding detainee transfers that was signed in December 2005 by General Rick Hillier, Chief of the Defence Staff, and the Afghan Minister of Defence, contained no provisions for follow­up access to detainees.61 Evidence of systematic torture continued to accumulate, and Richard Colvin, who in 2006­2007 held the diplomatic position Olexiuk had occupied, called attention to it in urgent messages which he circulated as widely as possible through all the official

58 Quoted by Duncan Cambell and Suzanne Goldenberg, “‘They said this is America … if a soldier orders you to take off your clothes, you must obey’,” The Guardian (23 June 2004), http://www.guardian.co.uk/world/2004/jun/23/usa.afghanistan; see also David Townsend, “The Passion of Dilawar of Yakubi,” National Catholic Reporter (12 August 2005), http://natcath.org/NCR_Online/archives2/2005c/081205/081205z.htm. 59 According to the Afghanistan Independent Human Rights Commission (AIHRC), the elections were marked by debilitating technical problems, and by widespread intimidation and electoral fraud. For relevant articles, see Press for Conversion 59 (September 2006), available at http://coat.ncf.ca. 60 “Afghan detainee torture risk raised in 2005,” CBC News (10 March 2010), http://www.cbc.ca/politics/story/2010/03/09/detainee­afghan­diplomat.html. 61 See “Arrangement for the Transfer of Detainees between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan” (18 December 2005), http://www.afghanistan.gc.ca/canada­afghanistan/assets/pdfs/Dec2005.pdf. 22 government and military channels available to him.62 Article 12 of the Third Geneva Convention is categorical: “Prisoners of war may only be transferred […] to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention.”63 Afghanistan has been a party to the 1949 Geneva Conventions since 1956, and in late 2009 acceded to the 1977 Additional Protocols I and II, which protect victims of international conflicts and civil wars.64 However, Olexiuk’s and Colvin’s messages show that Canada had not “satisfied itself”—despite whatever senior officials might say—that the Karzai regime would treat prisoners decently. Even without direct statements from Canadian diplomats, senior military and civilian officials could have no grounds for pretending ignorance. In December 2009, Lawyers Against the War (LAW) itemized in an “Open letter to the Parliamentary Special Committee on the Canadian Mission in Afghanistan” the evidence that Canada’s detainee policies violated Canadian and international law.65 By the spring of 2007, this evidence included—in addition to legal opinions sent by LAW on February 1, 2004 and March 6, 2007 to Prime Ministers Martin and Harper and their senior ministers— expressions of concern by Amnesty International in early 2002 over detainee transfers to US forces, and in December 2005 over “the widespread, longstanding reality of torture throughout the Afghan prison system”;66 the Report of the Independent Expert on the

62 See Richard Colvin, “Affidavit for the Military Police Complaints Commission” (5 October 2009), http://www3.thestar.com/static/PDF/Colvin_Affidavit.pdf. 63 Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, Art. 12, http://www.icrc.org/ihl.nsf/FULL/375?OpenDocument. 64 See ICRC Annual Report 2009, Annex: States Party to the Geneva Conventions and their Additional Protocols, pp. 488­89, http://www.icrc.org/eng/assets/files/annual­ report/icrc­annual­report­2009­states­party.pdf, where the accession date given is 10 November 2009; and “Afghanistan accedes to Additional Protocols I and II in historic step to limit wartime suffering,” ICRC Resource Centre (24 June 2009), http://www.icrc.org/eng/resources/document/news­release/afghanistan­news­ 240609.htm; this would mean that the Protocols came into force after six months, on 24 December. 65 Lawyers Against the War, “Torture: The Transfers of Afghan Prisoners. Letter to Canada’s House of Commons,” Centre for Research on Globalization (22 December 2009), http://www.globalresearch.ca/index.php?context=va&aid=16648. 66 These are the words of Alex Neve, Secretary General of Amnesty International Canada, 23

Situation of Human Rights in Afghanistan, M. Cherif Bassouni, to the UN Commission on Human Rights (11 March 2005), referring to torture practices current within the Afghan security system; The London Compact of February 1, 2006, which set as a goal—for the end of 2010—the Afghan state’s adoption of “corrective measures […] aimed at preventing arbitrary arrest and detention, torture, extortion and illegal appropriation of property with a view to the elimination of these practices”;67 and the US State Department’s report on Afghanistan in 2006, which noted reports by human rights organizations that Afghan authorities in Herat, Helmand and elsewhere used torture consisting of “pulling out fingernails and toenails, burning with hot oil, beatings, sexual humiliation, and sodomy.”68 Ironically, it was evidence of prisoner abuse in Canadian rather than Afghan custody, obtained in early February 2007 by University of Ottawa law professor Amir Attaran and passed on to the Military Police Complaints Commission, that helped to give the issue increased public prominence.69 A quick succession of other events brought the pot to a boil. On February 21, 2007, Amnesty International and the BC Civil Liberties Association applied for a judicial review of Canada’s detainee­transfer policy.70 In quoted by LAW from his testimony on March 4, 2008 to the Standing Committee on Foreign Affairs and International Development. 67 Building on Success, The London Conference on Afghanistan: The London Compact (1 February 2006), http://anama.unmissions.org/Portals/UNAMA/Documents/AfghanistanCompact­ English.pdf. 68 “Afghanistan,” http://www.state.gov/g/drl/rls/hrrpt/2006/78868.htm. 69 See “Military probes abuse allegations in Afghanistan,” CBC News (6 February 2007), http://www.cbc.ca/world/story/2007/02/06/military­probe.html. In this and following paragraph I am indebted to the article “Canadian Afghan detainee issue,” Wikipedia, http://en.wikipedia.org/wiki/Canadian_Afghan_detainee_issue (consulted on 28 January 2011). 70 Paul Koring, “Amnesty slams Canada over Afghan detainees,” The Globe and Mail (21 February 2007, updated 31 March 2009), http://www.theglobeandmail.com/news/national/article743285.ece. On the strength of a government decision in late February 2007 to suspend transfers, effective November 5, 2007, due to allegations of torture, Federal Court Justice Anne Mactavish dismissed the application for judicial review. (Thus between the end of February and November 5, 2007 the Canadian Forces appear to have been transferring prisoners into Afghan prisons that the Federal Court had effectively acknowledged to be in systematic violation of the 24

March, the Minister of National Defence, Gordon O’Connor, acknowledged that since April 2006 he had repeatedly misled the House of Commons by falsely claiming that the Red Cross was monitoring transferred prisoners on Canada’s behalf.71 And on April 23, 2007, The Globe and Mail published an investigative report, based on interviews with thirty Afghan prisoners whom the Canadian army had handed over to the Afghan National Directorate of Security, which showed they had been systematically tortured, with apparent Canadian complicity.72 University of British Columbia law professor Michael Byers commented: “If this report is accurate, Canadians have engaged in war crimes, not only individually but also as a matter of policy.”73 The Military Police Complaints Commission inquiry prompted by Professor Attiran’s complaint subpoenaed the diplomat Richard Colvin, who in late 2009, when the MPCC’s proceedings had been seriously delayed by interventions from the Harper government,74 was also called before the House of Commons Special Committee on the

Third Geneva Convention.) Transfers began again on February 29, 2008. (For details, see “Amnesty International and British Columbia Civil Liberties Association v. Chief of Defence Staff for the Canadian Armed Forces, et al.,” BC Civil Liberties Association, http://www.bccla.org/antiterrorissue/afghan.htm.) 71 “O’Connor sorry for misinforming House on Afghan detainees,” CBC News (19 March 2007), http://www.cbc.ca/canada/story/2007/03/19/afghanapology.html; see also Paul Koring, “Red Cross contradicts Ottawa on detainees,” The Globe and Mail (8 March 2007, updated 31 March 2009), http://www.theglobeandmail.com/news/national/article746018.ece. 72 Graeme Smith, “From Canadian custody into cruel hands. Savage beatings, electrocution, whipping and extreme cold: Detainees detail a litany of abuses by Afghan authorities,” The Globe and Mail (23 April 2007), http://www.theglobeandmail.com/news/world/article92169.ece; also available at http://v1.theglobeandmail.com/servlet/story/RTGAM.20070423.wdetainee23/BNStory/A fghanistan. 73 “Afghan Prisoner Torture Scandal: War Crimes,” Ceasefire.ca (23 April 2007), http://www.ceasefire.ca/?p=118. 74 Janice Tibbetts, “Tories try to block witnesses at military commission,” Canwest News Service (1 October 2009), http://www.canada.com/news/Tories+block+witnesses+military+commission/2055852/st ory.html; for a fuller account of Harper’s obstruction of the MPCC, see Murray Dobbin, Harper’s Hitlist: Power, Process and the Assault on Democracy, Part 4: “Controlling Critics,” The Council of Canadians (15 April 2010), http://www.canadians.org/democracy/documents/p4.pdf. 25

Canadian Mission in Afghanistan. In October, shortly before he testified there, the claims of Prime Minister Harper and Defence Minister Peter MacKay that they had not been informed on the detainee issue were vigorously refuted by General Rick Hillier’s memoir, A Soldier First.75 But Colvin’s testimony on November 18, 2009 was more thoroughly damaging in its exposure of high­level lawlessness. He revealed that the Canadian military’s system of reporting the transfer of detainees delayed follow­up, making it all the more likely that they would be tortured (as his sources thought nearly all of them were); he claimed that in 2006­2007 senior Foreign Affairs officials—including David Mulroney, the Assistant Deputy Minister responsible for Afghanistan, who was also Prime Minister Harper’s Foreign and Defence Policy Advisor—had censored and blocked the distribution of dispatches from Kabul; and he exposed the fact that the government had made very determined attempts to intimidate him and prevent him from giving testimony. Finally, Colvin excoriated policies under which, “disregard[ing] our core principles and values,” Canadians “retained and handed over for severe torture a lot of innocent people,” which is “a very serious violation of international and Canadian law,” and which also “alienated us from the population and strengthened the insurgency.”76

5. Running With the Big Dogs

“Complicity in torture,” Colvin reminded the parliamentarians, “is a war crime.”

75 General Rick Hillier, A Soldier First: Bullets, Bureaucrats and the Politics of War (Toronto: HarperCollins, 2009); see John Ibbitson, “PMO told about Afghan jail conditions, Hillier writes,” The Globe and Mail (21 October 2009), http://v1.theglobeandmail.com/servlet/story/GAM.20091021.HILLIER21ART2244/TPSt ory/TPComment. 76 “Richard Colvin’s Testimony,” 18 November 2009, FAIR, http://fairwhistleblower.ca/content/richard­colvins­testimony. See also Colvin’s follow­ up statement, “Further Evidence of Richard Colvin to the Special Committee on Afghanistan, December 16, 2009,” available at http://www.cbc.ca/news/pdf/further­ evidence­special­committee.pdf, and from the Toronto Star, http://www3.thestar.com/static/PDF/FurtherEvidencetoSpecialCommittee.pdf. 26

By the summer of 2010, despite a disgraceful smear campaign against Colvin led by Defence Minister Peter MacKay (which prompted a public letter of rebuke signed by “more than 100 former diplomats, many of them ambassadors”),77 despite Stephen Harper’s shutting down of the MPCC by refusing to appoint a replacement when its chair’s term of office expired, and his proroguing of the House of Commons in order to close down the parliamentary committee which had heard Colvin’s evidence (this prompted a public letter signed by more than 175 professors of political science denouncing Harper for having “violated the trust of Parliament and of the Canadian people”),78 and despite Harper’s defiance of Parliament’s call to have all of the relevant documents released, the full extent and depth of that complicity was evident. Highly segmented state structures may often seem to operate in an almost chaotic manner. But at times—even when the governing party is doing its best to obscure and deny access to the evidence—a clear constellation of intentionality emerges from the murk. With help from the late Jack Hooper, who was CSIS Assistant Director of Operations from 2002 to 2005, and Deputy Director of Operations until his retirement in 2007, we can give this pattern a name. Known for being pithy and outspoken, Hooper liked to tell his colleagues that “If you’re going to run with the big dogs, you’d better learn to piss in the high grass.”79 CSIS, we now know, was involved in interrogating Afghan prisoners from early 2002 until December 2007; and journalists Jim Bronskill and Murray Brewster learned from an unnamed source or sources that one of the Kandahar interrogation sites used by CSIS, “work[ing] alongside the American CIA and in close co­operation with Canada’s secretive, elite JTF­2 commandos,” was a “secluded base”—this seems a polite way of saying ‘black site’ or ‘secret torture facility’—“known as Graceland.”80

77 Murray Dobbin, Harper’s Hitlist: Power, Process and the Assault on Democracy, Part 2: “Two Prorogations in Less Than a Year,” The Council of Canadians (15 April 2011), http://www.canadians.org/democracy/documents/p2.pdf. 78 Ibid. 79 Shephard, Guantanamo’s Child, p. 57. 80 Jim Bronskill and Murray Brewster, “CSIS reviewing role in Afghan detainee interrogations,” Canadian Press, available in The Toronto Star (2 August 2010), http://www.thestar.com/news/canada/article/843055­­csis­reviewing­role­in­afghan­ 27

Running with the big dogs apparently meant complicity in the work of Afghan as well as American torturers. Asadullah Khalid, the governor of Kandahar province, who was widely accused of corruption, drug­trafficking, and direct personal involvement in torture, seems to have retained his position after 2006 only thanks to the interventions of senior Canadian military officials.81 General Rick Hillier, the Chief of the Defence Staff who famously defined the Taliban as “scumbags and murderers” whom it was the Canadian army’s job to kill, praised Khalid’s work in early 2008 as “phenomenal” and associated it with “some incredible changes in the province,” adding that “if there’s an issue of any kind of impropriety whatsoever, that’s an issue for the Afghanistan government.”82 It is of course an issue for the Canadian government as well. Scott Taylor, a journalist with wide experience in Afghanistan, has endorsed Hillier’s view of the Taliban, but with an important corrective: “What he failed to mention is that the guys we’re propping up are also scumbags and murderers.”83 Richard Colvin’s November 2009 testimony to the Parliamentary Special detainee­interrogations. See also Murray Brewster and Jim Bronskill, “CSIS played critical role in Afghan prisoner interrogations: documents, sources,” Canadian Press (8 March 2010), available at http://www.webcitation.org/query?url=http%3A%2F %2Fwww.google.com%2Fhostednews%2Fcanadianpress%2Farticle %2FALeqM5jJLuGfEH6QP3vrNSLPiAGPZNqBcw&date=2010­03­09; and “Le SCRS était au courant de cas de torture,” La Presse Canadienne, available at Radio­Canada.ca (21 January 2011), http://www.radio­canada.ca/nouvelles/International/2011/01/21/007­ scrs­detenus­afghans­torture.shtml. 81 See Stephanie Levitz, Brian Laghi, Campbell Clark and Paul Koring, “Kandahar governor denies torture claim,” The Globe and Mail (2 February 2008), http://v1.theglobeandmail.com/servlet/story/RTGAM.20080202.wafghan­ governor0201/BNStory/PAUL+KORING; Kamran Mir Hazar and Robert Maier, “Asadullah Khalid’s Mafia,” Kabulpress.org (3 May 2009), http://kabulpress.org/my/spip.php?article3417; and “Afghan governor’s rights abuses known in ’07,” CBC News (12 April 2010), http://www.cbc.ca/politics/story/2010/04/12/afghan­governor­human­rights­abuses.html. See also “Further Evidence of Richard Colvin to the Special Committee on Afghanistan, December 16, 2009,” pp. 13­14. 82 Quoted by Stephanie Levitz et al., “Kandahar governor denies torture claim.” 83 Quoted by Bea Vongdouangchanh, “‘We’re bringing the ugly truth back to the people’,” The Hill Times (6 December 2010), http://hilltimes.com/page/view/qnataylor­ 12­6­2010. Taylor is editor of Esprit de Corps magazine, and maker of the documentary Afghanistan: Outside the Wire (2010). 28

Committee revealed another aspect of Canada’s collaboration in Afghan torture—a “very peculiar” process, he called it, in which the notification of detainee transfers went from the Canadian military police in Kandahar to the Canadian Forces command group at Kandahar airport, then to the Canadian Expeditionary Force Command (CEFCOM) in Ottawa, who informed the Canadian Embassy in Geneva, who contacted Red Cross headquarters in Geneva, who at last notified the Red Cross mission in Kandahar. While the Dutch and British, who also had troops in southern Afghanistan, notified the Red Cross office in Kandahar directly about prisoner transfers, so that within a day at most the Red Cross could monitor their treatment, this Canadian paper­chase could take weeks or even months—during which time the transferred prisoner became effectively invisible. What might seem an idiotic instance of bureaucracy­run­wild was actually part of a more serious wildness, a policy of deliberate obstructionism. For as Colvin also testified, “When the Red Cross wanted to engage on detainee issues, for three months the Canadian Forces in Kandahar wouldn’t even take their phone calls. The same thing happened to the NATO ISAF command in Kabul, who had responsibilities to report detainee numbers to Brussels, but were told, ‘We know what you want, but we won’t tell you’.”84 Senior Canadian officers have indicated the value they placed on ‘intelligence’ received in regular meetings with leaders of Afghan’s notorious National Directorate of Security.85 And in a May 2007 interview with the Ottawa Citizen’s David Pugliese, one

84 “Richard Colvin’s Testimony,” 18 November 2009. 85 See Murray Brewster, “Canadian general defends Afghan intelligence service, denies torture,” Toronto Star (9 September 2010), http://www.thestar.com/news/canada/afghanmission/article/858862­­canadian­general­ defends­afghan­intelligence­service­denies­torture; Stephen Chase, “Military vows to probe ‘grave’detainee accusations,” The Globe and Mail (14 April 2010, updated 15 April 2010), http://www.theglobeandmail.com/news/politics/military­vows­to­probe­ grave­detainee­accusations/article1534345/page1/; Thomas Walkom, “Walkom: Was Afghan torture a deliberate tool for Canada?” Toronto Star (17 April 2010), http://www.thestar.com/news/canada/article/796809­­walkom­was­afghan­torture­a­ deliberate­tool­for­canada. For evidence of the consistency of this use of Afghan torturers as intelligence­gatherers with an earlier Canadian policy of using Syrian and Egyptian torturers in the same way, see Walkom, “Walkom: Torture by remote control,” Toronto Star (24 February 2010), http://www.thestar.com/opinion/article/770352­­walkom­ 29 of them was quite explicit about the role the Canadian military and NATO were assigning to the NDS in the counter­insurgency war: “Canadian Brig.­Gen. Jim Ferron says he is confident that Afghanistan’s National Directorate of Security or NDS is following proper procedures when it interrogates insurgent detainees. “The general also pointed out that the NATO­led International Security Assistance Force is interested in further developing its relationship with the NDS because it is a key Afghan government agency and the intelligence it is providing is highly credible in the battle against insurgents. “‘We’d like to make (NDS intelligence) a significant part because the best information is the information that comes from the Afghans themselves,’ said Brig.­Gen. Ferron, ISAF’s chief intelligence officer. ‘They have the cultural nuances that we may miss. So I think it’s safe to say we would like to make it more a part of our daily intelligence.’ […] “‘[I]nterrogating […] is not a bad word if it’s done properly and professionally,’ he explained. ‘The detainees are detained for a reason. They have information we need.’ “Brig.­Gen. Ferron said much of the information a detainee provides is not truthful and is aimed at deceiving military forces. That’s why it is up to intelligence analysts to sift through what is truth and what is deception. ‘But if we don’t have the information we can’t even start on that process,’ he added.”86 Ferron’s words make clear the Canadian military’s dependence on NDS ‘intelligence,’ and the determination of senior officers to ignore, obfuscate, and dismiss torture­by­remote­control. 86 David Pugliese, “NATO sees importance of secret Afghan info: Intelligence crucial in fight against Taliban,” Ottawa Citizen (16 May 2007), available online at Canada.com, http://www2.canada.com/components/print.aspx?id=636a562e­6669­42c7­98fc­ 9d92088f05f7. I am indebted for knowledge of this article to Gareth Porter, “The Torture Mill: Why the US and NATO Fed Detainees to Brutal Afghan Security Service,” Counterpunch (27 April 2011), http://www.counterpunch.org. 30 the by­this­time massive evidence of NDS torture practices. In mid­May 2007, someone of Ferron’s rank and position could hardly have been ignorant of the urgent messages about detainee torture that Richard Colvin had been sending from Kandahar and from the embassy in Kabul between May and December 2006—or of the fact that, as Colvin writes, embassy officials had supplemented their written reports by “interven[ing] directly with policy­makers”: “For example, in early March 2007, I informed an interagency meeting of some 12 to 15 officials in Ottawa that, ‘The NDS tortures people, that’s what they do, and if we don’t want our detainees tortured, we shouldn’t give them to the NDS.’ [….] The response from the Canadian Expeditionary Force Command (CEFCOM) note­taker was to stop writing and put down her pen.”87 As this eloquent gesture suggests, even junior officers in CEFCOM understood that their seniors—the desk­soldiers with aspirations to join the big dogs—wanted to keep other puppies from sniffing out what passes for intelligence­gathering in the tall grass. Indeed, since June 2010 we have known that CEFCOM intervened vigorously in the spring of 2007 to put a stop to Colvin’s circulation of information about the torture of detainees: a CEFCOM memo declared that “his continued employment in Kabul […] could become a liability to the government of Canada’s interests if left unchecked”; and on two occasions senior officials, including a lieutenant­general and an associate deputy minister, intervened to “caution” him.88 Within days of Colvin’s November 2009 testimony to the effect that Prime Minister Harper’s Defence and Foreign Policy Advisor had censored messages from the Kabul embassy about detainee torture, and Colvin’s exposure of the Canadian military’s obstruction of Red Cross and ISAF attempts to monitor prisoner transfers, a report in the

87 Colvin, “Further Evidence of Richard Colvin to the Special Committee on Afghanistan,” http://www.cbc.ca/news/pdf/further­evidence­special­committee.pdf, p. 2. 88 Steven Chase, “Military wanted detainee whistleblower pulled from Afghanistan,” The Globe and Mail (14 June 2010, updated 5 October 2010), http://www.theglobeandmail.com/news/politics/military­wanted­detainee­whistleblower­ pulled­from­afghanistan/article1604188/. 31

Toronto Star revealed how directly the Prime Minister had involved himself in the issue in 2007. According to a former senior NATO public affairs official, the denials of torture issued by NATO in Kabul—“at a time when it was privately and generally acknowledged in our office that the chances of good treatment at the hands of Afghan security forces were almost zero”—were scripted by Harper and his office in Ottawa: “I was told this was the titanic issue for Prime Minister Harper and that every statement that went out needed to be cleared by him personally […]. The lines were, ‘We have no evidence’ of coercive treatment being used against detainees handed over to the Afghans. [….] [I]t was made clear to us that this was coming from the Prime Minister’s Office, which was running the public affairs aspect of Canadian engagement in Afghanistan with a 6,000­mile screwdriver.”89 The pattern that emerges from mainstream news reports is thus one of high­level complicity in torture, combined with attempts—organized from the very top of the Canadian government—to falsify the public record. According to law professor Amir Attaran, who says he has seen uncensored versions of the documents that the Harper government has so strenuously resisted sharing with Parliament, the paper trail is thoroughly incriminating. In March 2010 Attiran told CBC News: “If these documents were released [in full], what they will show is that Canada partnered deliberately with the torturers in Afghanistan for the interrogation of detainees […]. There would be a question of rendition and a question of war crimes on the part of certain Canadian officials. That’s what’s in these documents, and that’s why the government is covering up as hard as it can.”90

89 Mitch Potter, “PMO issued instructions on denying abuse in ’07,” The Toronto Star (22 November 2009), http://www.thestar.com/news/canada/afghanmission/article/729157­­ pmo­issued­instructions­on­denying­abuse­in­07. 90 “Canada wanted Afghan prisoners tortured: lawyer,” CBC News (5 March 2010), http://www.cbc.ca/canada/story/2010/03/05/afghan­attaran005.html. 32

6. ‘Homines Sacri’ and the Sovereign Exception

It comes as no surprise that some of the same people involved in the Canadian government’s shameful treatment of Omar Khadr were also implicated in the detainee­ torture scandal. Jack Hooper, who sent CSIS agents to interrogate Khadr at Guantanamo in 2003—with full awareness that, contrary to CSIS policy (as he acknowledged under cross­examination in 2005), the teenager would have no legal counsel present, and that his answers, shared with the Americans, could be used against him in a manner that might expose him to a sentence of life imprisonment or even execution91—was in a position of authority at the time of CSIS involvement in prisoner interrogations in Afghanistan from 2002 inwards, as well as being complicit during the same period in the rendition­to­torture cases of Maher Arar, Ahmad El Maati, and others.92 Colleen Swords, who in 2002, as the Department of Foreign Affairs’ chief legal advisor, recommended that the Canadian government “claw back on” the fact that Khadr was a minor, was also the person responsible for her department’s input into the toothless agreement on detainee transfers that General Rick Hillier and the Afghan Defence Minister signed in December 2005. And in the spring of 2007—promoted, by this time, to the position of Assistant Deputy Minister of Foreign Affairs—she was by Richard Colvin’s account involved in censoring information about the treatment of Afghan detainees, and went so far as to order him to make his reports by telephone rather than in writing.93 But however disgraceful these alleged or acknowledged betrayals of legality, such people as these are mere functionaries. The primary responsibility for the continuing wrongs done to Omar Khadr, and for the war crimes committed by Canadians against Afghan prisoners handed over since 2006 to torture by Hamid Karzai’s National Directorate of Security, rests with Prime Minister Stephen Harper. The clear pattern of intentionality revealed in the words and actions of senior 91 Shephard, pp. 165­67. 92 Kerry Pither, Dark Days, pp. 143, 181, 202, 217, 252. 93 “Further Evidence of Richard Colvin to the Special Committee on Afghanistan, December 16, 2009,” pp. 10­11, 15. 33

Canadian government bureaucrats and senior military officers is both embarrassing (these people actually believe, despite copious evidence to the contrary, that torture produces real ‘intelligence’)94 and also a scandalous offence against the rule of law. More scandalous still is the evidence that these people were acting on directives from Stephen Harper, who knew perfectly well that the Afghan puppet­state tortures the prisoners handed over to it by the Canadian Forces, but nonetheless permitted the continuation of this system, and actually took charge of the program of lying about it.

* * * *

It might be tempting to denounce the whole rotten structure of everything related to the Afghan war as evidence of a massive betrayal, if not a complete abandonment of any principles of legality. The casus belli of the 9/11 attacks was a fraud, the 2001 invasion was a violation of international law, and the reasons that have subsequently been advanced for sticking with the occupation of Afghanistan—defending women’s rights and human rights, advancing democracy, suppressing the drug trade—have been shown by the occupiers’ actions in sustaining a regime of violent misogynists, kleptocrats, torturers, election stealers, and drug dealers to be spurious.95 In particular, the treatment of Omar Khadr and of Afghan prisoners by the Harper government and the Canadian military reveals a thorough­going contempt for legality and for the principles of democratic governance. To this some might object, saying—as the distinguished novelist Nino Ricci has

94 For some of that evidence, see Edward Peters, Torture (Oxford: Blackwell, 1985); Elaine Scarry, The Body in Pain (1985; rpt. New York: Oxford University Press); Alfred W. McCoy, A Question of Torture (New York: Metropolitan/Owl Books, 2006); and also Matthew Alexander, “I’m still tortured by what I saw in Iraq: An interrogator speaks,” The Washington Post (30 November 2008), http://www.washingtonpost.com/wp­ dyn/content/article/2008/11/28/AR2008112802242.html?hpid=opinionsbox1; and Ben Macintyre, “‘24’ is fictional. So is the idea that torture works,” The Sunday Times (23 April 2009), http://www.timesonline.co.uk/tol/comment/columnists/ben_macintyre/article6150151.ece . 95 See Noah Richler, 34 said—that to reproach Stephen Harper for any betrayal of principle “is to imply the existence of an actual principle to betray, and hence to overlook how deeply fiction informs every aspect of [his] political project.”96 I would propose, as an alternative, the view that the principles of democratic governance, jurisprudence and international law have indeed been betrayed—but in a manner that reflects, knowingly or not, the thinking of one of the most famous—or rather, most notorious—legal theorists of the twentieth century. Though some interpreters might prefer to describe Carl Schmitt (1888­1985) as an authoritarian conservative thinker, it is beyond dispute that his theorizing (especially in his 1922 book Political Theology)97 anticipated some of the distinct features of Nazism, and that during the years of Hitler’s rule he was an enthusiastic Nazi, who after World War II refused any process of de­nazification. One of Schmitt’s central claims—of obvious relevance to post­9/11 North America—is that the defining mark of sovereign political power is its capacity to declare a “state of exception,” to suspend the functioning of the regime of law, and thereby to exempt itself from the requirements it imposes on those subject to its determinations.98

p. 137: Schmitt, Theorie des Partisanen, p. 80, n. 49: “He who determines a value eo ipso always fixes a nonvalue. The sense of this determination of a nonvalue is the annihilation of the nonvalue.”99

But while we need to give due recognition to the agency and responsibility of the

96 Nino Ricci, “An Open Letter to Stephen Harper” (18 April 2011), http://ninoricci.com/news/an­open­letter­to­stephen­harper. 97 Carl Schmitt, Politische Theologie: Vier Kapitel zur Lehre von der Souveränität (Munich and Leipzig: Duncker & Humboldt, 1922); Political Theology: Four Chapters on the Concept of Sovereignty, trans. George D. Schwab (Cambridge, MA: MIT Press, 1985). 98 For a lucid exposition of this doctrine, see Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller­Roazen (Stanford: Stanford University Press, 1998), pp. 15­38. 99 Schmitt, Theorie des Partisanen, Zwischenbemerkung zum Begriff des Politischen (Berlin: Duncker & Humboldt, 1963), p. 80, n. 49, quoted by Agamben, p. 137. 35 most senior political authorities, it is perhaps more important still to recognize the larger patterms of which they are a part.

Mandel: prescient remark: “We may come to remember that day [9/11], not for its human tragedy, but for the beginning of a headlong plunge into a violent, lawless world.”

. ­­nearly 500 Afghan detainees handed over to Afghan security forces since 2006; CSIS interrogating from 2002 to end of 2007 “Why the Af/Pak War is Illegal: A Grave Breach of the Geneva Conventions,” CounterPunch 21 December 2009), http://counterpunch.org/cohn12212009.html.

I will discuss the larger indications that what is emerging is a regime of law theorized by the Nazi jurist Carl Schmitt in his Politische Theologie—based on a doctrine that the defining principle of sovereign power is its exception from the rules it applies to all those subject to its reign. (I’ll be alluding here to Giorgio Agamben’s book Homo Sacer.)

.

From: [email protected] [mailto:[email protected]] On Behalf Of Donald Grayston Sent: November-02-14 9:19 PM To: Donald Grayston Subject: Omar Khadr speaks for himself (an op-ed in the Ottawa Citizen)

Friends: most of you will know that I have taken a personal interest in Omar Khadr ever since I heard his 36

lawyer, Dennis Edney, speak here in Vancouver. I am very happy indeed to read (from the op-ed below, published last week in the Ottawa Citizen, that Omar is now--finally--able to speak for himself. Please read what he has to say, and then add your voice to those calling for justice to be done for him--finally.

DG

______Misguided security laws take a human toll

TUESDAY, OCTOBER 28, 2014 - 20:55

By Omar Khadr, former Guatanamo Bay detainee Ten years ago the Canadian government established a judicial inquiry into the case of Maher Arar. That inquiry, over the course of more than two years of ground- breaking work, examined how Canada’s post-Sept. 11 security practices led to serious human rights violations, including torture. At that same time, 10 years ago and far away from a Canadian hearing room, I was mired in a nightmare of injustice, insidiously linked to national security. I have not yet escaped from that nightmare. As Canada once again grapples with concerns about terrorism, my experience stands as a cautionary reminder. Security laws and practices that are excessive, misguided or tainted by prejudice can have a devastating human toll. A conference Wednesday in Ottawa, convened by Amnesty International, the International Civil Liberties Monitoring Group and the University of Ottawa, will reflect on these past 10 years of national security and human rights. I will be watching, hoping that an avenue opens to leave my decade of injustice behind. I was apprehended by U.S. forces during a firefight in Afghanistan in July 2002. I was only 15 years old at the time, propelled into the middle of armed conflict I did not understand or want. I was detained first at the notorious U.S. air base at Bagram, Afghanistan; and then I was imprisoned at Guantánamo Bay for close to 10 years. I have now been held in Canadian jails for the past two years. From the very beginning, to this day, I have never been accorded the protection I deserve as a child soldier. And I have been through so many other human rights violations. I was held for years without being charged. I have been tortured and ill- treated. I have suffered through harsh prison conditions. And I went through an unfair 37 trial process that sometimes felt like it would never end. I am now halfway through serving an eight-year prison sentence imposed by a Guantánamo military commission; a process that has been decried as deeply unfair by UN human rights experts. That sentence is part of a plea deal I accepted in 2010. Remarkably, the Supreme Court of Canada has decided in my favour on two separate occasions; unanimously both times. Over the years, in fact, I have turned to Canadian courts on many occasions, and they have almost always sided with me. That includes the Federal Court, the Federal Court of Appeal and the Alberta Court of Appeal. In its second judgement, the Supreme Court found that Canadian officials violated the Charter of Rights when they interrogated me at Guantánamo Bay, knowing that I had been subjected to debilitating sleep deprivation through the notorious ‘frequent flyer’ program. The Court concluded that to interrogate a youth in those circumstances, without legal counsel, “offended the most basic Canadian standards about the treatment of detained youth suspects." That ruling was almost five years ago. I had assumed that a forceful Supreme Court ruling, coming on top of an earlier Supreme Court win, would guarantee justice. Quite the contrary, it seemed to only unleash more injustice. Rather than remedy the violation, the government delayed my return from Guantánamo to Canada for a year and aggressively opposed my request not to be held in a maximum security prison. It is appealing a recent Alberta Court of Appeal decision that I should be dealt with as a juvenile under the International Transfer of Offenders Act. No matter how convincingly and frequently Canadian courts side with me, the government remains determined to deny me my rights. I will not give up. I have a fundamental right to redress for what I have experienced. But this isn’t just about me. I want accountability to ensure others will be spared the torment I have been through; and the suffering I continue to endure. I hope that my experience – of 10 years ago and today – will be kept in mind as the government, Parliament and Canadians weigh new measures designed to boost national security. Canadians cannot settle for the easy rhetoric of affirming that human rights and civil liberties matter. There must be concrete action to ensure that rights are protected in our approach to national security. National security laws and policies must live up to our national and international human rights obligations. I have come to realize how precious those obligations are. That is particularly important when it comes to complicity in torture, which is unconditionally banned. I have also seen how much of a gap there is in Canada when it comes to meaningful oversight of national security activities, to prevent violations. And I certainly appreciate the importance of there being justice and accountability when violations occur. I want to trust that the response to last week’s attacks will not once again leave human rights behind. Solid proof of that intention would be for the government to, at a minimum, end and redress the violations I have endured. This op-ed was originally published in the Ottawa Citizen.