Fatmah Elsamnah sits in her lawyer’s office in Toronto and weeps. Her son-in-law is dead, killed in a battle with Pakistani security agents in the Afghan theatre of war. One of her grandsons is paralysed from gunshot wounds, another is on the run in the alleys of Kabul, another is a semi-pariah scuffling about the streets of Toronto, and one – Omar Khadr – is a suspected terrorist, now a prisoner in a U.S. detention camp for men the Americans are calling enemy combatants. Her daughter Maha has said that her sons would be better off dead in holy battle with the enemies of Islam than prey to Western drugs and homosexuality, and the whole family has been reviled in the Canadian newspapers. There are reporters at her front door every day. Who wouldn’t weep?
Of all her sorrows and humiliations, the loss of Omar seems to hurt most. She says he is a good boy, the best boy. When she saw him last he was under pressure, writing his Grade Eight exams, but still well-mannered and respectful: “He likes to help. We have all the kids around, someone has to go to the store to bring something, someone says ‘Not me, not me,’ he says, ‘Okay, I’ll go.’ So you love him, you must love him. Someone polite, obedient; you love him.”
When she talks about Omar her grief seems at times to circle back and focus on herself, as though it has nowhere else to go. Her doctor says her arthritis has been aggravated by stress. Her husband’s had a heart attack. Perhaps she comes back to herself because there’s not much of Omar’s story that’s new. He’s been in detention for almost two years. At first he wrote her dutifully, numbering his letters so she could tell when the censors held onto one, as they sometimes did, but when the Red Cross visited him a few months ago he said he didn’t want to write any more. Fatmah’s daughter has just returned from Pakistan with the youngest child, his legs limp and useless. Perhaps it’s natural that the memory of Omar sometimes seems to fade a little.
Omar Khadr is a Canadian citizen, seventeen years old now, wounded and captured in July, 2002, imprisoned without charge, interrogated, denied contact with Canadian consular representatives, denied counsel. You would think the Canadian government would have some critical things to say about this. But when Omar’s grandmother speaks with the Canadian government, with someone like Nancy Collins, a case manager with the Department of Foreign Affairs, she says Collins tells her to keep quiet: “She said the Americans will not allow us to go or to see him or to bring him things, we try our best and we don’t want to talk about it, because we don’t want to spoil his case, because if we talk about it and maybe I say something to you or somebody else they will get stubborn more and hold him more. I don’t know, this is what I understand.” (An assistant to Collins says that public servants in her unit do not speak to reporters.)
January, 2004. Camp Delta is neither here nor there nor, legally, anywhere. It is a small portion of an equivocal place, Guantanamo Bay, at an intersection of opposing sovereignties, geographically in Cuba but leased and controlled for the last 101 years by the U.S., centrally located in the forty-five square-mile American naval base. It contains a McDonald’s, a Kentucky Fried Chicken, and a golf course. Because of its jurisdictional ambiguity it seems an ideal place to bring prisoners whose legal status is uncertain, so it also contains a prison camp with some 660 detainees from forty-two countries. It is ringed with chain-link fence below coils of razor wire. The fence is hung with green tarpaulin so the men cannot see the Caribbean.
Among them is a young Canadian citizen with a damaged shoulder and a damaged eye. I’d been trying to reach Omar Khadr for months. I had tried the U.S. government, the Canadian government, the Pentagon; I’d picked my way through long, dense ranks of lawyers and sent inquiries by phone and e-mail, to the Canadian Minister of Foreign Affairs. The Americans confirmed they had him in custody in Guantanamo as of October 31, 2002, but had said nothing since. So here I was in more-or-less-Cuba, as close to Omar Khadr as I was going to get.
He was probably no more than 200 yards from me, here inside the wire of the detention camp. Maybe he was in a suicide-watch cell, or a special cell for the despondent, but more probably than not he would be here in the maximum-security section of Camp Delta, in a plain, small cage with steel-mesh walls, one of about forty-eight in a cell block built by the American engineering firm Kellogg, Brown and Root. Each cell has an unshielded squat toilet and a steel platform to sleep on, with an arrow stencilled on it to show the direction to Mecca. The detainees in maximum security leave their cells only for interrogation, for showers, for medical care, or for an occasional few minutes of supervised exercise. If Omar was still on the base he was almost certainly here. If I shouted his name he might hear me: he speaks English, of course. But I could not do that, and if he or another of the men were to shout to me, I was forbidden to answer. I had signed a promise to obey a set of rules governing the behaviour of visitors to the U.S. Armed Forces detention center at Guantanamo Bay.
I was kicking sand by the sally port, the camp gate, half-listening to other reporters interview the U.S. Army chaplains about the spiritual needs of the prison guards. I was carrying a two-year-old picture of Omar, although there was no point in showing it to anyone – the guards wouldn’t talk about individual prisoners. Omar is a sallow, chubby, plain-looking boy with a thinly shadowed upper lip. Probably somewhat changed now: children do change.
The chaplain, Captain Khallid Shabazz, wasn’t sweating under the more-or-less Cuban sun; there wasn’t a drop on his ebony skin, and his pressed brown uniform was daisy-fresh. He told our shabby, humid little group of journalists (Canal 5 from Paris, Basque print and television, Die Zeit, Carlton television from Britain) that he ministered to the prison guards (some of whom are Muslim), that the detainees dealt with their own spiritual development but that he made sure they had the materials they needed, prayer beads and copies of the Koran: “We don’t want them to leave with a bitter taste in their mouths. We want them to know what America is all about.” I looked at him quickly, but his wide dark face was clear of all irony.
I framed a question for Captain Shabazz, writing it out carefully in my notebook to make sure I sounded as impressive as possible. “Captain,” I was about to say, “you arrest people on the basis of undivulged evidence, shackle them, blindfold them, seal their ears, fly them around the world, keep them without charge in solitary confinement or close quarters for months without access to legal or diplomatic aid, interrogate them till you’re done with them – and expect them at that point. . . .” But when I looked up Shabazz had gone off to deal with another reporter, and beyond him there was an offended rustling in another group of guards: the correspondent from Die Zeit wanted to know how Camp Delta dealt with the question of masturbation.
None of the jailers would answer questions about the war. Commander Timby in his clean surgical ward and Lieutenant Colonel Pamela Hart, the guide and facilitator for our little group of reporters: they were not tasked to handle politics. Matters of that kind were deferred until the climax of our visit to the base, an interview with Major General Miller, the commandant, at the end of our three-day tour. After we had been led to an understanding of the mechanics of Guantanamo, he would help us with the meaning. In the meantime, we were not to bother soldiers with politics. “Our mission is detention operations,” said cookery specialist Sergeant Mendez, standing beside a large box of dehydrated mashed potatoes, “not policy questions.”
You have to wonder how a fifteen-year-old Canadian with multiple gunshot wounds would cope with all this, asking for toilet paper every time he needed it, waiting for his dinner to slide through a slot in the door. Perhaps he’d traded up by co-operating with his interrogators. If so, he might now be in medium security, where inmates may keep a supply of toilet paper, use a walled-in toilet under observation, be allowed outside for several hours every day, eat their meals outside; they are issued white uniforms rather than orange ones, and are allowed to talk with the American guards. In the separate Camp Iguana, juvenile prisoners lived together, ate together, attended lessons together, watched videotapes (Call of the Wild, Free Willy), and could look out over the sea through a gap in the green fence, but it seems that in spite of his age Omar Khadr was never housed in Camp Iguana. (In any case, at the end of January the last three of the juveniles held at Camp Iguana were sent home and the unit was decommissioned.)
The officers in charge of the Joint Detention and Operations Group are proud of the quality of their service. The 177th Brigade from Taylor, Michigan, has as part of its mission the preparation of high-quality food for the soldiers and the inmates – the two menus are composed of the same ingredients but cooked differently to respond to different palates, and constantly improved. (“We are adjusting the level of the condiments down a little for the detainees — a little too much curry for their taste.”)
The medical officers at the camp’s clinic and hospital are proud of the quality of their service. “When we started we got a lot of war traumas, shrapnel, gunshot. Now it’s sports injuries, upset stomachs.”
What about stress? They’re in here for months, years, they don’t know when they’ll be released, if they will ever be released.
“There is some stress, some trouble sleeping, depression, suicide attempts — nobody’s died but one man has been in intensive care for a year, a self-strangulation,” say the medical officers. “Sometimes we provide psychotherapy through a translator. Their weights vary. We track that. This is the best health care they’ve had in their lives.”
“We don’t want the detainees to stay one more day than they must,” said Major General Geoffrey Miller, commander of the Guantanamo base. Miller was our policy man, fully briefed and authorized to give us a tip-top explanation of the legal, procedural, and political aspects of the Guantanamo camp. He endured a conference once a week with a new collection of reporters. (He’d recently gone to Iraq, where he urged that prison guards be allowed to “set the conditions” for extracting information from detainees. In late April, after the shocking images from Abu Ghraib prison surfaced, Miller took over all U.S.-run prisons in Iraq.)
Miller was framed in the television lenses against the main sally port for the maximum-security camp. He was crisp and forceful and not used to argument. The man from Die Zeit was in the mood for an argument. He wanted the general to admit that some of his prisoners were worthy opponents.
“These are enemy combatants captured in an ongoing global war on terror. They are suspected terrorists, or suspected of supporting terrorism,” Major General said, clearly wanting to move on.
The lady from the Basque magazine Avui looked more agreeable. But Die Zeit wasn’t letting go. “So you don’t think they are in their way very courageous and brave people?”
“They are suspected terrorists, or suspected of supporting terrorism; they are not soldiers and they are not brave people. They are not soldiers and not defending their country; they are attacking the innocent.”
“So therefore, they should not be under the protection of the Geneva Convention?”
“These are enemy combatants who were captured in the ongoing global war on terrorism. The United States follows the tenets of the Third Geneva Convention except where military necessity dictates.”
The Canadian reporter, always anxious to smooth everyone’s feathers, intervened with a question about consular visits: “Have you approved all requests from foreign governments, from foreign countries, to come here to talk to their nationals?”
“We have had more than fifty delegation visits in the last year.” Avui: “Did Spain come? Spain? The Spanish?”
“Spain has come and visited, uh, uh, at Camp Delta.”
“And Canada has come and visited enemy combatants at Camp Delta.”
“Consular or intelligence?”
“All the above.”
An official Canadian visit for Omar Khadr? Major General Miller is the only person to say that’s happened. Not even the Canadian government has claimed it. “What about children?”
“We have a small number of juvenile enemy combatants,” said Major General Miller, “and we define as juvenile enemy combatants those who were less than sixteen years of age.” Omar was fifteen when he was arrested.
“And when somebody reaches six-teen years of age here in the camp, he would be transferred to another facility?”
“Then we would make the decision whether he would be transferred into Camp Delta with the adult enemy combatants.”
“Has that happened?”
“We have not transferred any juvenile enemy combatant to Camp Delta.”
“Formerly juvenile? If somebody grows up past the age of sixteen or seventeen?”
“That’s correct. Anybody who came here as a juvenile enemy combatant has not been transferred to Camp Delta.”
Omar wrote his grandmother that at first he was held in Camp X-Ray, a squalid cluster of open cages that, in the days before the war on terror, housed troublesome U.S.-bound migrants caught on the high seas. He was moved to the marginally more comfortable Camp Delta when Camp X-Ray closed. He did not mention the children’s dormitory, Camp Iguana. It seemed most likely, then, that he was now being held in Delta’s adult maximum-security blocks, but the Americans wouldn’t say.
Hard cases make bad law, the lawyers say – complicated situations are tough to refine into clear principles. Omar’s case is hard not so much because of the way he was captured, but because of the strange history of the Khadr family. They are Canadians, and entitled to all the services and support of the Canadian government but they are among the most troublesome Canadians in the history of the nation.
Omar’s father, Ahmed Said Khadr, was an Egyptian-born engineer who moved to Canada in 1977, then quit a lucrative job in Toronto to join a relief organization offering help to victims of the Soviet war in Afghanistan. He moved his family to Peshawar, Pakistan, on the Afghan border, in 1985, and worked as the supervisor of a network of shelters for war orphans. In the early nineties, Ahmed Khadr was wounded in an explosion – either by innocently stepping on a landmine or in combat in Afghanistan against the enemies of the Taliban. He returned with his family to Toronto, was treated for his wounds, half-recuperated, and then moved everyone back to Peshawar. There he was eventually arrested, charged with being a senior Al Qaeda executive, and tortured by the Pakistani police.
Ahmed Khadr went on a hunger strike (his young son Omar slept every night on the concrete beneath his father’s hospital bed), proclaimed his innocence, complained bitterly of his treatment, and was released in early 1996 after the intervention of Jean Chrétien, who met him during a state visit to the region. One of the Khadr sons said Chrétien spoke to him kindly, saying, “Once I was the son of a farmer and I became Prime Minister. Maybe one day you will become one.”
All this must have been embarrassing to the Canadian government, when it later became clear that Ahmed Khadr was indeed a significant Al Qaeda figure, an associate and friend of Osama bin Laden’s, and a man who had arranged for his sons to attend terrorist training camps.
When the Americans attacked the Taliban, Ahmed Khadr went into hiding and was eventually killed in a firefight in October, 2003, with Pakistani soldiers in the northern town of Waziristan. Abdul Karim Khadr, who was fourteen at the time, was badly hurt in the same fight and has now returned to Canada, semi-paralyzed, searching for effective medical treatment; the local Children’s Aid Society is considering whether exposing him to an Al Qaeda training camp amounted to child abuse. Abdullah Khadr, the eldest son, is in hiding in Afghanistan, having emerged briefly in early 2004 to refute a story that he was the suicide bomber responsible for the death of a Canadian soldier. Omar Khadr was wounded and arrested in July, 2002, according to the U.S. military, near the town of Khost, Afghanistan, after a battle during which the Americans say he killed a U.S. medic with a grenade. And then there is Abdurahman.
Abdurahman Khadr, Omar’s older brother, says that like Omar he was picked up in Afghanistan and shipped to Guantanamo, where he heard Omar’s voice once but did not see him. Abdurahman eventually admitted that he had been a paid agent for U.S. Intelligence in Guantanamo, trying to befriend other prisoners, and that he was eventually released and ordered to continue his undercover activities in Bosnia. Next, he was asked to go to Iraq. He refused, he says, and came home to Canada instead.
You can understand why Canadian diplomatic officials would treat anything to do with the Khadr family with skepticism. Some Khadrs have clearly lied heartily and elaborately and more than once. Omar Khadr may in fact be guilty of killing that American medic in combat. We don’t know. We haven’t heard him deny it. We haven’t heard anything from him at all. We certainly haven’t seen any evidence against him.
Dennis Edney is an Edmonton lawyer who has taken on Omar’s case on behalf of the family. As of early May, he still hadn’t been able to examine the charges against his client, as there weren’t any. He petitioned Ottawa for information about Omar, and wrote a number of letters encouraging the Minister of Foreign Affairs to get involved in the case. None was answered or acknowledged.
In April, Edney joined a case argued before the U.S. Supreme Court demanding that the inmates of Guantanamo either be charged or released, as required by the American Constitution. The U.S. Attorney General took the position that people who are not American citizens and not on American sovereign territory are not covered by the American Constitution. Edney put his case in an interview last February: “Numerous commentators indicate that the whole purpose of Guantanamo Bay detainment is to avoid scrutiny by the courts. He’s put there out of the reach of American courts. . . . But the fact that [Guantanamo] is run by the [U.S.] Executive and that they have an Executive that is responsible to the rule of law. . . . It can’t just be left in this, in this legal black hole.”
Oh, said the American government, yes it can.
There are enough arguments and precedents and findings and decisions on all this to stock a library, but the U.S. argument comes down to this: Guantanamo is the sovereign territory of Cuba, even though Americans control it and Cubans do not. Therefore, if Americans in Guantanamo choose to engage in practices that run against the grain of the U.S. Constitution they are free to do it as long as the victims are not themselves American. (When the U.S. military discovered that one of the detainees, Yasser Hamdi, had been born in Louisiana and therefore was an American citizen, they shipped him off pronto to a stockade in Virginia.)
The Vice-President of the United States, Dick Cheney, has argued that all this is only right. In late 2001, he said, “Somebody who comes into the United States illegally, who conducts a terrorist operation killing thousands of innocent Americans – men, women, and children – is not a lawful combatant . . . they don’t deserve the same guarantees that would be used for an American citizen going through the normal judicial process.”
Omar Khadr is not an American citizen. He’s culturally Americanized, perhaps, according to people who knew him when he lived in Toronto, a fan of U.S. action films and Nintendo, but he is a Canadian, and it is the job of the Canadian Department of Foreign Affairs to insist on his rights.
It wouldn’t be hard to find some arguing points. On December 11, 2003, the Khadrs’ lawyer, Dennis Edney, wrote Foreign Affairs Minister Bill Graham (himself a specialist in international law), citing the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, the United Nations Convention on the Rights of the Child, the Third Geneva Convention, and several other authorities and cases. He invited Graham to join an action on Omar’s behalf – even offering, if Graham were too busy, to write a brief for him. Graham remained silent.
I wondered if the Minister would like to frame an official version of the Canadian position on this for the media? I ran my request past a picket of flacks and political aides. Flack One was not hopeful. Aide One was hopeful, but then apparently passed the buck to Flack Two, who told me in a voicemail message while I was in Guantanamo Bay: “The Minister is not giving interviews on this particular subject.”
Back to Flack One, Reynold Doiron, who contacted me in February: “There isn’t much to report about,” he said. “There are no developments. We are staying in touch with the U.S. No charges have been laid. [Khadr] was visited once, for intelligence purposes, and the wheels are set in motion for a Foreign Affairs visit.”
Intelligence purposes. But surely the Minister would like to make some complaint about all this, would like to issue a statement of concern?
“There is sort of a judicial and legal ambiguity. We are not joining the Supreme Court action as amici curiae but we are watching the situation with great interest. It doesn’t mean we like it, but we take it as it is.”
“Well, the Edmonton lawyer, Mr. Edney, who represents Omar – he wrote the Minister two letters about this, and didn’t hear back. Nothing.”
“Oh. I will have to inquire into that and call you right back.”
I flew to Washington and took the Metro to the Pentagon. I hadn’t been there since the September 11 attacks and I could already see that things were different: a wider selection of silly military caps above a wider selection of uniforms carrying a wider selection of sidearms. I presented myself at the inquiry desk.
“Let me see. You have no appointment?”
“No. I just wanted to get some kind of sense of how I might go about getting permission to visit a Canadian citizen, a kid who is being held in Guantanamo.”
The enlisted-man receptionist put his hand warmly on his submachine gun and said, “If you do not have an appointment I will have to ask you to leave right now. Things have changed since September eleventh.”
It is a short subway ride from the Pentagon to the Georgetown University Law Center, where the reception was friendlier. David Cole is a renowned civil-liberties lawyer, and the author of a new book, Enemy Aliens, on how the U.S. treats non-citizens in times of crisis. He works out of an heroically cluttered office on the top floor of the law school. Cole confirmed that aliens are a little more protected from the American police on American soil than they are in places like Guantanamo Bay – for now. But after September 11, Washington expanded police power and reduced protection for aliens dramatically, apparently without effect.
“The best example I can provide,” Cole said, “is [U.S. Attorney-General John] Ashcroft. Every time he went on television after 9/11 he would announce how many suspected terrorists they had arrested. Two hundred suspected terrorists, four hundred, we’ve arrested eight hundred suspected terrorists — the message being, we’re keeping you safe. Well, now we know that none of the people who were picked up in that initial sweep, about twelve hundred in the first seven weeks alone before the government stopped telling us how many it was arresting, none of them turned out to be involved in any kind of terrorist organization or Al Qaeda. Or — well, one, and the case against him is very poor.”
In Enemy Aliens, Cole points out that anti-terrorist campaigns against suspicious-looking non-citizens sometimes mutate into campaigns against suspicious-looking citzens such as Jose Padilla, the Chicago man picked up in May, 2003, on very thin evidence of planning a dirty-nuclear-bomb attack. Although the U.S. Supreme Court often moderates this approach, the Court takes its time, particularly if there’s a war on. In any case, the Bush Administration was loose in its regard for the niceties of American civil liberties.
“In balancing liberty and security they were not likely to put much weight on the liberty side even before 9/11. After 9/11 they weren’t likely to put anything on the other side, especially if you’re talking about the liberties of foreign nationals, a group that doesn’t vote and has no political power whatsoever.”
Doesn’t all this amount to a dramatic change in the law?
“Certainly this assertion of authority to label any human being, U.S. citizen or not, as an enemy combatant or, as President Bush puts it, a ‘bad guy,’ and on the basis of that label to lock that person up in military custody incommunicado indefinitely — that is as extreme an assertion of unchecked power as any monarch has ever made,” Cole says.
It is hard to find, now, a spokesman for the other side, the pure Ashcroft doctrine that claims legal authority for the black hole of Guantanamo. The military lawyers who were first appointed to defend those detainees eventually designated for trial quit in disgust at the distortion of the legal process and had to be replaced. A key Bush legal theorist, former assistant attorney general Viet Dinh, has said that the government’s insistence on detentions without meaningful oversight or due process is unsustainable. Michael Chertoff, until June, 2003, head of the Justice Department’s criminal division, says, “We need to debate a long-term and sustainable architecture for the process of determining when, why, and for how long someone may be detained as an enemy combatant.” But there’s not much evidence that the Bush Justice Department is preparing to yield. Deputy Solicitor General Paul Clement described the principle he thinks should shape an American court’s attitude toward places like Guantanamo: “Trust me.”
When all this got to the U.S. Supreme Court in late April, the government’s case, under gentle questioning from the bench, was pushed to extremes. Justice Ruth Bader Ginsburg asked Deputy Solicitor General Paul Clement just how far the executive branch could act on its own: “Supposing the executive says mild torture will help?” she said. Clement’s response was: “Just because authority in wartime can be abused doesn’t justify limiting it.” So, yes, the government’s position is completely consistent. Torture would be wrong but there should be no legal restraint. The President’s power is not restricted. The men in Guantanamo have no rights at law. The Supreme Court is expected to bring down a decision in late June.
Photographers in Guantanamo are not permitted to take pictures of the coastline or of antennas, masts, or satellite dishes. The outside world is off limits. In the bay, armoured Coast Guard boats equipped with heavy-calibre machine guns run repeated high-speed patrols looking for something or other. Even if Al Qaeda develops a navy, it is going to have a tough time springing anyone from Camp Delta.
As of early May, more than a hundred and thirty detainees had been returned to their home countries, their intelligence value at an end, if there was any intelligence value in them in the first place. Clive Stafford-Smith, the attorney for one Briton released in February, argues that the information gained at Guantanamo is probably not all that useful. “Interrogation experts,” he said, “tell us that a confession taken after two years of solitary confinement, accompanied by threats of the death penalty, is no more valid than the Salem witch’s descriptions of her meetings with the Devil, exacted while the pyre was scorching her feet.” Another Briton tried to buy his way out with a story about a plan to bomb the Houses of Parliament with anthrax-filled airplanes.
He’s still inside.
As was Omar Khadr, after two years. Maybe he was a source of extremely valuable information, because his interrogation was apparently still going on at the time of my visit. (At the end of the interrogation process, according to military regulations, detainees are either released or designated by the President for trial, and neither of those things has happened to Omar.) Perhaps the Americans believe Al Qaeda entrusted a huge store of critical intelligence to a fifteen-year-old boy, albeit of good family – or maybe they are waiting for a politically propitious time to lay a murder charge.
“The uncertainty these detainees face as regards their legal status and their future does have a very adverse impact on their physical and mental well-being,” says Antonella Notari of the International Commission of the Red Cross, the only human-rights organization to have been allowed inside the wire. “A lot of them are pushed to despair.” There have been almost thirty suicide attempts so far.
Of course, Omar Khadr is young, and the young are resilient. And eventually the American military may put him on trial for something. (At the present rate, one legal expert estimates, it will take 220 years before all those now held at Guantanamo even get to trial.) And when he does go to trial it will be with perfect teeth, thanks to the U.S. military dentist; he will have been marvellously fed by the chefs of the U.S. National Guard, his wounded eye and shoulder professionally treated, and his depression, if any, medicated by the U.S. Medical Corps. He will be defended by a qualified U.S. military lawyer – and, since he speaks English, he will be able to communicate with that lawyer without using a translator.
All in all, the Americans will be able to claim that in spite of the fact that Omar Khadr is the lowest of the low, a criminal terrorist illegal combatant, they really have treated him quite well. The Canadian government, after two years of contemplating Omar Khadr’s captivity, will be able to claim they have done – not much of anything.
Fatmah Elsamnah weeps and winds her handkerchief. “Omar,” she says she has written to him, “I miss your voice at my kitchen door.” But there was no answer from Guantanamo Bay.