Since July 4, Canadians have been embroiled in a debate about the the Canadian government’s $10.5 million payment to settle Omar Khadr’s lawsuit over illegal imprisonment and treatment.

Three points stand out: the abandonment of the rule of law by some public servants and cabinet ministers; the dangers of obfuscating the truth; and the sense that it is unfair for all Canadians to pay so much for the serious errors of a few.

The rule of law is a key legal support for a democracy. Many were shocked when the George W. Bush administration ditched it in order to extract quick revenge for 9/11 by setting aside due process for those captured and sent to the U.S. military base at Guantanamo Bay. Of course, that was precisely the kind of reaction al Qaida wanted in its efforts to undermine U.S. democratic institutions.

When Khadr was 11, his father forced his son to leave Canada to fight for al Qaida in Afghanistan. Khadr did not want to go (what 11-year-old would?) and sometimes hid from his extremist father in Afghanistan.

In 2002, at the age of 15, Khadr ended up in a firefight with American forces. He says he remembers little of what happened. He was found by American soldiers buried under debris, badly wounded. Khadr was the only al Qaida member left alive in the compound — and U.S. medic Christopher Speer had been killed.

As the only al Qaida survivor, Khadr got the blame — despite of the absence of evidence, and in spite of being a child soldier. He should have been separated from adult prisoners and placed in a rehabilitation program, with Canada’s help.

Instead, the U.S. military shipped him to Guantanamo, where evidence against him could be concocted. At two points, in 2003 and 2004, Khadr was interviewed by Canadian officials who knew he had been sleep-deprived for weeks. The results of those interviews were provided to American officials — but not to Khadr, who was denied legal counsel.

Subsequently, the U.S. Supreme Court twice declared the “trial” process at Guantanamo Bay illegal under U.S. and international law.

Some Canadian lawyers were outraged when they heard about Khadr’s situation, and initiated litigation on his behalf. When the case reached the Supreme Court in 2008, the judges wrote that Khadr’s rights as a Canadian had been egregiously violated. According to their ruling, he was tortured into giving evidence. He had not been treated as a child soldier, as he should have been. The actions of Canadian officials violated the rule of law.

The SCC found that Khadr had the right to see the evidence against him. Subsequently, the House of Commons Subcommittee on International Human Rights recommended that Khadr be repatriated to Canada to be dealt with under Canadian law. But the Harper minority government was content to let Khadr languish in Guantanamo Bay, abandoning the traditional Conservative defence of the rule of law.

It was the Harper government’s decision to, from 2008 to 2015, ignore the Charter of Rights, the Supreme Court and Canada’s obligation to rehabilitate child soldiers.

In an entirely just world, that settlement would be paid out personally by Harper and his cabinet colleagues. In an entirely just world, that settlement would be paid out personally by Harper and his cabinet colleagues.

This inaction resulted in the lion’s share of the $10.5 million paid to Khadr for being wrongfully imprisoned and mistreated. As I told my students in 2008, Khadr eventually would be entitled to a legal settlement from the Canadian government. The longer the government left him in Guantanamo, the larger the sum of money that would have to be paid out. In an entirely just world, that settlement would be paid out personally by Harper and his cabinet colleagues.

In 2008, Barack Obama won the presidential election in the U.S. Obama wanted to close the Guantanamo Bay facility, which had become a blight on the United States’ reputation for promotion of the rule of law. Republicans in Congress opposed Obama at every turn. Nevertheless, his administration wanted Khadr repatriated to Canada. That option was opposed by Stephen Harper, Jason Kenney, Andrew Scheer and other prominent Conservatives — again, increasing the amount of the settlement Khadr eventually would receive.

Because of the Harper government’s obstinacy, Khadr’s lawyers applied for a court order to have him repatriated. In 2010, the Supreme Court again unanimously reiterated the severity of the rights violations suffered by Khadr:

“Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.”

The Court left it to the government to find a remedy for Khadr’s rights violations. The government still refused to repatriate Khadr — while all other Guantanamo prisoners who were citizens of Western nations were being repatriated by their governments. As a result, the amount of Khadr’s eventual settlement continued to climb.

Because of the Harper government’s refusal to cooperate with the Obama administration, Khadr’s lawyers faced the prospect of a conviction in the illegal court in Guantanamo, based on evidence induced by torture. Khadr could have been sentenced to life in Guantanamo with no possibility of release. Or he could have pleaded guilty to an offence he never committed in exchange for an eight-year sentence and the right to serve it in Canada. Clearly, there was no sensible option for Khadr other than to lie and plead guilty — which he did in 2010.

The Harper government continued to resist his repatriation to Canada until 2012, when he was transferred from Guantanamo to a jail in Alberta. His lawyers initiated an appeal of Khadr’s conviction at Guantanamo in the mainland U.S. Given the likelihood that Khadr would win, a judge released him on bail — a decision the Harper government vehemently denounced.

Those who claim that Khadr “admitted” to killing an American soldier overlook these circumstances. He is the only child soldier to have been prosecuted for a war crime since the conventions protecting child soldiers were instituted several decades ago.

Thanks to a group of Christians in Edmonton, Khadr is attending post-secondary education. He hopes to become a nurse. He has renounced al Qaida and other such terror groups, and now speaks out against them.

Not only did Canadian officials violate the rule of law when dealing with Khadr in 2003 and 2004, but from 2008 to 2015, the Harper government openly flouted the rule of law on a number of occasions. These violations tied in with the government’s narrative about Khadr — that he was a convicted terrorist who would pose a danger to Canada. By obfuscating the facts in this way, the government tangled itself deeper and deeper in a web of untruths.

That web still entangles key Conservative party leaders. Had they been willing to describe the Khadr saga in a more balanced way from the start, the Harper government would have been in a position to repatriate Khadr much sooner, thus substantially reducing the $10.5 million settlement.

Make no mistake: Khadr’s lawsuit would have succeeded eventually. The Trudeau government had no choice but to pay up — and the sooner the better, to minimize the total amount.

What can be done about the legitimate annoyance many Canadians feel over being forced, as taxpayers, to shell out for the serious mistakes of public servants and cabinet ministers? What incentive is there for public servants and politicians to not repeat those errors, when taxpayers are always liable in the end?

Unless a lawsuit can be directed at individuals in government rather than the government itself, the threat of legal action is only a minor incentive for politicians to honour the rule of law. What would help is a better understanding among public officials and politicians about the nature of the rule of law — and the pitfalls of distorting reality.

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