Fuck Congress

I've never done a whole lot of protesting about the U.S detention center at Guantanamo Bay, Cuba. In fact, it might be one of the few things that Bush administration did that was in strict accordance with American treaties, domestic law and the international laws of war. After all, you have to hold these people somewhere.

I certainly don't support the plans of President Obama and his attorney general, Eric Holder, to try the detainees in civilian court. If that were to happen, and the trials were actually fair, almost all of them would be acquitted on Fifth, Sixth and Eighth Amendment violations. There would also be evidence and witness tampering issues.

Which brings us to the Canadian Omar Khadr, who was fifteen years old when he was captured in Afghanistan in 2002. While he doesn't meet the legal criteria of being a child soldier under international law, he was certainly close enough. Regardless of the law, the West doesn't traditionally try combatants that young. As far as I'm aware, the Hitler Youth that were deployed in the final defense of Germany weren't prosecuted by the non-Soviet allies.

I'll grant you that Khadr was raised to be a dangerous little bastard, but he's something more important than that: He's a political embarrassment to the United States. The Bush and Obama administrations have been trying to get young Mr. Khadr off of their hands for years now. The only problem is that the Canadian government, rightly or wrongly, hasn't been biting. That has left him as not only the youngest detainee, but the only Westerner still residing in Gitmo.

Apparently, that's been resolved by Khadr's guilty plea in exchange for his serving most of his eight year sentence in Canada.

However, once he's on Canadian soil, he's subject to Canadian law and will almost certainly not stay in prison very long. The Globe and Mail's Norman Spector has some concerns about this.

If Mr. Khadr agrees to a plea bargain, the announcement would be coming a week before Americans head to the polls in their mid-term elections. In these elections, the Democrats could end up losing control of one of both houses of Congress. Unless they can fire up their base, that is – a base that has been discouraged, among other things, by Mr. Obama’s failure to close Guantanamo and by his continuation, with some modifications, of George W. Bush’s trials by military commissions – the President is looking at an erosion of power and harassment by congressional subpoena power in the second half of his mandate.

At the same time, a week before the elections, Mr. Obama will be concerned not to alienate Independent voters overly. He will be conscious of criticism that will come from the direction of the family and colleagues of the medic Mr. Khadr is alleged to have killed. And he will be most concerned that these criticisms will be jumped on by Republicans and their Tea Party allies, who as always will find an echo chamber on Fox News.

Mr. Obama has an interest, therefore, in presenting the plea bargain deal in as harsh terms as possible; as the New York Times reported earlier this week, even he is not above shading the truth in an election campaign, as PolitiFact and FactCheck.org have been pointing out for some time.

Perhaps it is true that Mr. Khadr will spend seven years in prison in Canada – though it seems unlikely given our parole system. However, if the government of Canada allows this statement to pass without any caveat, we run the risk of being looked upon as skunks down the road by Americans if and when Mr. Khadr is granted an early parole. And, if and when that perception emerges, there would be no shortage of Congressmen and women to hold hearings on the affair even if it means damaging the bilateral relationship – as the British and Scottish governments are now discovering to their chagrin in the case of the release of the Lockerbie bomber.

I understand Mr. Spector's concern about the precious sensitivities of a grandstanding Republican Congress, I just happen to think that they're utterly immaterial.

Firstly, Omar Khadr's crimes were committed against Americans in Afghanistan. Few, if any, Canadian laws (as the Criminal Code of Canada was applied at the time) were violated by him. Subsequent laws have been passed, but they cannot be constitutionally be applied to Khadr. Moreover, any of his acts when he was fifteen would have been tried under the then-applicable Young Offenders Act, which only allowed for a maximum sentence of ten years.

Also, under Canadian law at the time, a prisoner was given "two for one" time, which meant that any time spent in pre-trial custody is subtracted from the sentence. Khadr has already spent more time in custody than his sentence is expected to be.

It seems likely that the National Parole Board will take the above into consideration. And it probably should be. You cannot apply post-facto laws onto defendants detained years ago, at least not constitutionally.

Next year's Republican House of Representatives probably won't like that, but fuck 'em. They can hold all the hearings they want. Hopefully, they'll even subpoena officials from the Bush State Department and National Security Council and ask about their attempts to send Khadr home.

While I hold no brief for Omar Khadr and I'm not a fan of Canadian criminal law in most instances, this is about something far more important. A sovereign Canada passed its laws democratically and under the umbrella of the Charter of Rights and Freedoms. The U.S Congress, contrary to popular opinion, doesn't get a godamned vote here.

Canada isn't taking Khadr back because we want him. The Liberal governments of Jean Chretien and Paul Martin were conspicuously silent on the matter and the Conservative Harper government actively opposed his repatriation. Whether that was moral, legal or constitutional is another argument entirely. He's coming home because two successive American administrations asked us to bring him home. We're taking their international embarrassment off of their hands for them.

Besides, it doesn't matter what we do, American politicians are always going to find a reason to bitch, moan and even lie about Canada when it serves their purposes. Pituitary retards like Sharron Angle, Janet Napolitano and Hillary Clinton, among dozens of others, have insisted that the 9/11 hijackers entered the United States from Canada. Is that ever going to stop? Fuck no, it won't. It's too politically expedient a way to defect responsibility from themselves and whip voters who don't know any better into a frenzy.

Norman Spector's protestations aside, if an international incident is going to arise from this, it will be because American politicians are never happy. If they don't like our laws, Congress is free to override the deal with the military commission and keep Khadr. Most Canadians would probably be okay with that. The Americans can deal with world opinion on their own, which is also fine with us.

But if the nutless wonders in the Canadian government are going to let some hillbilly freshman from fucking Chattanooga dictate the application of our laws to us, not only will Canada no longer be sovereign, it won't deserve to be.