The Rule of Law in An Age of Fear

“He who puts security before liberty deserves neither.” –Dennis Edney Q.C. quoting Benjamin Franklin

Last week Dennis Edney Q.C. delivered the 2018 Milvain Lecture at the University of Calgary.  His topic was The Rule of Law in an Age of Fear and his defence of Omar Khadr.

Edney discussed the dangerous rise of populist politicians who exploit fear and bigotry to erode the rule of law and destabilize democracy in the hope of replacing it with an autocracy.  A frightened population will hasten the erosion of democracy by accepting drastic measures that curtail human rights and freedoms in the “interests of national security”.

dennis-edney

Dennis Edney Q.C.

Edney urged his audience to reject the decline of democracy by treating each other humanely, as individuals rather than faceless members of an amorphous religious group.

Which brings us to Edney’s 15-year battle to get Omar Khadr out of Guantanamo Bay.

The Khadr case

The Khadr case is a classic test of the rule of law.

Canadians who don’t understand or respect the rule of law think Khadr is a terrorist who deserves to rot in Guantanamo; Canadians who respect the rule of law see Khadr as a Canadian whose Charter rights were violated by the Canadian government.

Omar Khadr, a Canadian citizen, was 10 when his father took him to the Middle East.  Some news reports say Khadr’s father was a terrorist but Edney has never found any evidence to support this allegation.

Khadr was 15 when he was captured in a firefight at a suspected al-Qaida compound.  An American soldier was killed by a grenade, Khadr was seriously wounded.  Edney says Khadr was “the last man standing” after the battle and was taken to Guantanamo Bay where he was put into solitary confinement and interrogated every three or four days for years.

Edney describes Guantanamo as an evil lawless place where 1000 Muslim men and boys were kept in wire cages and freezing cells.  They had no access to lawyers, due process or judicial oversight.  The rule of law did not exist at Guantanamo.

And yet Canada did not object to its creation, remained silent when a Canadian was incarcerated there and repeatedly refused to ask the Americans to send Khadr back to Canada.

Dennis Edney Q.C.

Edney’s campaign to repatriate Khadr started the way all political activism starts, with letters to the federal government and requests for meetings with Edney’s MP, Anne McLellan.  His letters and meeting requests went unanswered.

Edney then asked the Khadr family for permission to bring an application on Khadr’s behalf.  That kicked off a round of court applications and visits to Guantanamo that spanned 15 years, drained Edney’s financial resources, and put a significant strain on his professional and personal life.

But he persisted, despite being saddled with American military lawyers who’d never run a trial or were too busy frolicking on the beach to show up on time for a hearing.  Edney didn’t protest when he was escorted to Khadr’s cell by 12 soldiers who were assigned to “protect” him.  He didn’t fuss when the US government diverted his flight to Florida and interrogated him for a day about his dealings with Khadr.  He knew if he caused trouble he’d never be allowed back into Guantanamo.

The Rule of Law

The turning point came in 2008 when Prime Minister Harper said he would not request Khadr’s repatriation.  He was satisfied with US assurances that Khadr was receiving “good treatment”.

Khadr was in solitary confinement, chained to the floor in a freezing cell and subjected to interrogation designed to make prisoners “more compliant.”  Edney filed an application arguing the Canadian government had violated Khadr’s Charter rights.

The application worked its way through the appeal process and landed in the Supreme Court of Canada which ruled that agents from CSIS and DFAIT (the Department of Foreign Affairs and International Trade) had indeed violated Khadr’s Charter rights by interrogating a youth without access to counsel who’d been subjected to sleep deprivation (also known as the “frequent flyer program”) knowing full well that Khadr’s statements would be shared with his American captors.

The SCC did not order Harper to request repatriation because it did not want to interfere with the Crown prerogative over foreign affairs.  Instead it issued a declaration stating the government had violated “the most basic Canadian standards about the treatment of detained youth suspects” and left the remedy up to the government’s discretion.

Eventually Edney negotiated a deal (which was supported by Hillary Clinton) whereby the US government would allow Khadr to return to Canada if he pleaded guilty to five war-crime charges and received an 8-year sentence.

Khadr returned to Canada in 2015 and was released on bail into Edney’s custody.

Based on the SCC’s ruling that the government had violated Khadr’s Charter rights, Khadr sued the federal government for $20 million.  The Liberal government settled the suit for $10.5 million and apologised to Khadr.

Courage

Edney says the biggest threat to democracy comes from within.  Citizens don’t understand the origin of their rights or are misinformed or too apathetic to demand their rights be protected.  They’re prepared to trade away their rights in return for the illusion of security.

Instead of giving way to fear and bigotry Edney called for humanity and respect.

He ended his speech with this:

 “Courage doesn’t always roar–sometimes it’s just a little voice at the end of the day that says, “I’ll try again tomorrow.”

This entry was posted in Law, Lectures, Politics and Government, Terrorism and tagged , , , . Bookmark the permalink.

34 Responses to The Rule of Law in An Age of Fear

  1. Mike Priaro says:

    Americans shamefully violated the rule of law and due process by their practice of rendition (the practice of sending, usually after kidnapping, a foreign criminal or terrorist suspect covertly to be interrogated in a country with less rigorous regulations for the humane treatment of prisoners), by their use of torture, by their use of lengthy detention without representation and trial, and by the assassination and murder of U.S. citizens abroad, many by drone attacks, without due process – to name a few violations.

    • You’re absolutely right Mike. I’ve never understood how America could hold itself out as a bastion of democracy while at the same time engaging in such vile behavior. I moved to the US in 2000 and watched my American friends tie themselves into knots justifying the invasion of Iraq based on the false claim that Saddam had weapons of mass destruction. They desperately wanted to strike back at the 9/11 perpetrators, the lack of evidence pointing to Saddam wasn’t an issue.

  2. Silver Donald Cameron says:

    Fine piece, Susan. Thanks!

    Cheers Don

    On Mon, Jan 8, 2018 at 7:10 PM, Susan on the Soapbox wrote:

    > susanonthesoapbox posted: ““He who puts security before liberty deserves > neither.” –Dennis Edney Q.C. quoting Benjamin Franklin Last week Dennis > Edney Q.C. delivered the 2018 Milvain Lecture at the University of > Calgary. His topic was The Rule of Law in an Age of Fear and his d” >

  3. ed henderson says:

    I suspect Mr Edney believes it is of the utmost importance that the rights of criminals far outweigh our right to feel free to walk our streets without fearing death and destruction at the hands of terrorists.

    • Beck McGrath says:

      Whoosh. The entire point of Susan’s piece is that we don’t know who is a criminal without due process, fair trials, and confidence in the rule of law – all of which were completely absent in the Khadr case. Until proven guilty, he should have been presumed innocent – a presumption you or I would take for granted.

      • Couldn’t have said it better myself Beck. Thanks!

      • ed henderson says:

        Yes, but he pled guilty to the charges. It was in a different Country with different laws.

      • Carlos Beca says:

        Yes Ed he did but would you not plead guilty if you were tortured?

        I am not defending Khadr but the country that invades all other countries, created something like 3 million refugees and killed more than 300 thousand people in one war alone is the country that is apparently our moral compass in the world and no one says anything about it.

        The fact is that Khadr may very well be a terrorist in many people’s minds but if you go and live in the places where these people come from you will definitely understand that the American and the ‘Willing’ allies are the actual terrorists.

        All issues have two sides and it is arrogant to think that our position in the context of the Middle East is the correct one. It is extremely easy to think and accept what we are fed by our governments and media which in many cases are the ones causing the issues in the first place and in the majority of the cases to defend our financial interests.

        One more time Khadr was not paid because of what he did or did not do. He was paid because he is a Canadian citizen that was abandoned in Guantanamo without any legal help and was tortured and kept imprisoned for 15 years. Canadian prime ministers chose to ignore his situation for whatever reasons and now the Supreme Court says NO SIR cannot do that no matter who you are. I agree with the Supreme Court. In the case of Harper he ignored the Supreme Court because he believes that they are useless. Well so far the majority of Canadians disagree with him. The latest polls indicate that they are the most respected institution in our country and I am one of them. I also believe that they are a fundamental part of our democratic system. Without them our governments would much more quickly erode our rights and freedoms.

    • Ed, the federal government’s lawyers fought long and hard to prevent Khadr from being released on bail. Nevertheless a Queen’s Bench judge and a Court of Appeal judge released Khadr after determining that his release would pose no risk to the public. A lot of bad things have happened to members of the public since Khadr was released almost two years ago but not one of them were the result of his actions.

  4. Cheryl Croucher says:

    Thank you, Susan. Your service to democracy is immeasurable and so necessary.
    Cheryl

  5. David says:

    Wow- the first clear and succinct analysis of this travesty I’ve heard. Thankyou Susan!

  6. Thank you for you great article and sharing this quote ““Courage doesn’t always roar–sometimes it’s just a little voice at the end of the day that says, “I’ll try again tomorrow.” I will.

  7. jerrymacgp says:

    Informative piece, thank you. While I disagree with your comment that there is little evidence Khadr the elder was a terrorist—he was clearly an Al Quaeda member—the sins of the father should not have been laid on the son. Young Mr Khadr was a youth soldier, whose actions on the battlefield that day were entirely legitimate under the laws of war as they are normally understood. He should have been treated as a POW under the Geneva Conventions, not sent to Gitmo to rot. The Government of Canada, under two different parties, failed him miserably.

    • Carlos Beca says:

      I like Jerrymacgp’s comment. I do not agree that there is little evidence Khadr the elder was a terrorist. From what I have read he and his close family were involved with the Al Qaeda and that was pretty clear.
      Khadr junior was definitely a legitimate war soldier and should have been a POW when he was caught. The only reason he was taken to Guantanamo was because it was known he had killed an American soldier and of course that is a death sentence to anyone that dares killing an American except of course if you are an American. That is a different story. They destroyed Iraq for good when terrorists killed 3 thousand people in New York but they kill each other at the rate of around 52 thousand a year and no one seems to care. By the way the terrorists were all from Saudi Arabia and not Iraq.
      The US should never have been allowed to do what they did to Khadr Junior in Guantanamo but that is a useless discussion because the US does not have to respect any International law. We, on the other hand pretended nothing was happening because we tend to be silent when the US acts militarily around the planet. We seem to value our trading relationships more than we value principles of decency and International law.

      • Carlos, I agree with what you’ve said with the exception of the relationship between the Khadr family and Al Qaeda. You could be right. But the press is easily manipulated by the military. Two examples from my time in the US: when NFL football player Pat Tillman was killed in Afghanistan, the Pentagon said he died a hero’s death at the hands of the enemy, it turned out he’d been killed by friendly fire. When Jessica Lynch, a 19 year old supply specialist, was captured in Iraq, held in a terrorist infested hospital and then rescued by the Special Forces (recorded by a night vision camera no less), it turned out there were no terrorists at the hospital, she was well cared for and the Special Forces rescue was staged like a Hollywood movie. All I know for sure with respect to Khadr is an American soldier was killed by a grenade, what I don’t know is whether it was thrown by Khadr or someone else.
        The fog of war is a terrible thing and here we are, trying to find our way safely out of the Donald Trump/North Korea stand off. Very troubling times.

    • Jerry, re: Khadr the elder, actually that was Edney’s comment not mine, I really don’t know one way or the other.
      I agree that young Khadr should have been treated in accordance with the rule of law, in this case the international laws governing the treatment of POWs.
      Edney points out that both the Liberal and Conservative governments failed to protect Khadr, but he seems to be more troubled by Harper than Paul Martin, perhaps because Harper did everything possible to block Khadr’s repatriation and his release on bail. One of the arguments the government raised in the bail application was that releasing Khadr would be detrimental to Canada/US relations. The main reason to deny bail is that the accused won’t show up for trial, Khadr was released with a tracking bracelet into Edney’s custody, the impact of his release on Canada/US relations shouldn’t have anything to do with it.

  8. Brian says:

    Edney should be ashamed for representing a terrorist like Khadr. Oh wait. Edney likely took his $10 million claim on a contingency, making him an overnight millionaire. Edney is loyal to nothing but his wallet.

  9. Thanks for this Susan. Years ago I attended a protest organized by Kings University students along with Mr. Edney at Churchill Square in Edmonton well before Khadr would be repatriated to Canada. At that time Edney articulated some of these same sentiments. Early last year I responded to a BBC article by Ms. Foulkes who wondered if we have entered “a post human rights world”: https://moreenigma.wordpress.com/2017/01/25/a-post-human-rights-world/. Thanks for your attention to this topic.

  10. Rusty, thanks for the link.
    Edney spoke highly of Kings University and how it supported Khadr notwithstanding the fact that some donors to a Christian university might have had second thoughts about providing such support.
    He said he wasn’t a Christian himself but he could recognize evil and knew he couldn’t live with himself if he walked away from Khadr when the struggle seemed hopeless. Impressive man.

    • Yes, he is an impressive man. Meanwhile, it appears that donors recognized the consistency of Kings U advocating for Khadr; I think the University is doing well, and has continued to champion social and restorative justice issues here and abroad.

  11. Dwayne says:

    Susan: Many people do not understand what powers the Prime Minister has and what orders he has to obey by the Supreme Court of Canada.

    • Dwayne, I’d go even farther than that. Most people don’t understand that the Canadian government cannot violate the Charter rights of its citizens. Trudeau was smart to settle this for $10M, it would have been much higher had he fought it.

  12. Harce says:

    Khadr the terrorist will be brought to justice, at least financially, by a US court ruling which will make him pay for his murderous crimes. http://calgaryherald.com/news/canada/u-s-plaintiffs-fire-back-at-khadr-defence-over-damages-award-enforcement-2/wcm/45cf88fa-58cd-4f93-b7ad-dbff294a2d88

    • Harce, I doubt it. The US plaintiff has many hurdles to overcome, not the least of which is what legal rationale did the Utah court use to blur the distinction between a child soldier and a terrorist and was this rationale flawed.

      • Dwayne says:

        Susan: This case has more holes in it than a window screen. That’s why it won’t go any farther. Armchair critics can say whatever they want, but it is meaningless.

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