The High Long-Term Costs of Engaging in Torture

On July 7, the Canadian government officially apologized to Omar Khadr and settled with him for 10.5 million Canadian dollars. Who is Omar Khadr and what makes his settlement so interesting? In 2002, Omar Khadr was a 15-year-old member of al-Qaeda who fought against the United States in Afghanistan. After being captured by U.S. forces, he was eventually transferred to Guantanamo Bay and detained as an enemy combatant. In 2007, the U.S. government brought him before a military commission on war crime charges. Khadr then pled guilty to killing a U.S. Army soldier, Sergeant Christopher Speer, in exchange for an eventual transfer to a Canadian prison. After Khadr’s return to his native Canada, he was eventually released on bail in 2015, having been detained 13 years.

Omar Khadr has recanted his confession and is currently appealing his convictions in the U.S. court system. In addition to this ongoing appeal, Omar Khadr also sued the Canadian government for its role in his Guantanamo detention. In 2008, the Canadian Supreme Court concluded that the Guantanamo Bay regime violated Canada’s human rights obligations and in 2010, further concluded that Canadian interrogations of Khadr after extensive sleep deprivation violated his Charter rights. His 2004 civil suit against the government was amended in 2013 to seek 20 million Canadian dollars and it was this set of claims that the government just settled as well as offering an apology for “any role Canadian officials may have played in relation to his ordeal abroad and any resulting harm.”

The practical question of whether Omar Khadr will get to keep the money depends on yet more litigation. While the Canadians were resolving Khadr’s civil claims, Tabitha Speer, widow of the U.S. Delta Force Sergeant Christopher Speer, and Layne Morris, a soldier injured in the same firefight Khadr confessed to participating in, began civil proceedings in an American court. In 2015, they won a 134 million dollar default judgment against Khadr. Upon learning of his recent settlement with the Canadian government, they filed a motion to immediately freeze Khadr’s assets. Canadian courts rejected this move on the ground that the plaintiffs had not shown a real risk that Khadr will move or hide his assets. But Canadian courts will still eventually have to decide whether to approve the U.S. judgment. In so doing, the Canadian courts are supposed to determine whether the foreign court applied jurisdiction in the same manner as a similarly situated Canadian court would have. In other words, would a Canadian court have proper jurisdiction over the Afghanistan incident, and could it have reached a judgment when the defendant was unable to appear because he was imprisoned in another country? Canadian courts generally have a liberal policy about enforcing other countries’ judgments, and Canada has a federal Justice for Victims of Terrorist Act which allows victims to sue terrorists. At the same time, however, Canadian courts can also reject judgments that conflict with Canadian public policy. If they find that the American ruling was based on evidence “offensive to Canadian notions of fairness and justice,” then it must be rejected. Given that the Canadian Supreme Court has found both a violation of his charter rights during his detention and that his confession was extracted under torture, the public policy argument seems like a strong one.

Omar Khadr is not the first to receive a settlement from the Canadian government for its role in War on Terror related torture. In 2007, Maher Arar was awarded 10.5 million Canadian dollars by the government after a judicial inquiry. But Maher Arar was meaningfully different in that he was an entirely innocent party. The judicial inquiry concluded that false assertions made by Canadian police led to Arar’s detention by American officials and then his deportation to Syria where he was held and tortured for nearly a year. He was cleared of any links to al-Qaeda, and Prime Minister Stephen Harper issued him a formal apology. They also offered an apology and settled with Abdullah Almalki, Ahmad Abou-Elmaati, and Muayyed Nureddin, three Canadian men the government indirectly allowed to be rendered to Syria and tortured there. Similar examples in other countries are rare but not unprecedented. In 2010, the British government settled with multiple Guantanamo detainees who alleged they suffered torture in order to avoid the vetting of over 40,000 confidential documents. In addition, the Australian government settled with suspected terrorist Mamdoub Habib following allegations that Australians assisted the CIA in his transfer to and torture at Guantanamo Bay. The United States has never settled with any detainees from Guantanamo or other active detention sites during the War on Terror.

Ultimately, Omar Khadr is the first instance in which a government has both compensated and publicly apologized to an acknowledged member of a terrorist organization involved in the War on Terror. Even in Canada, the public backlash has been swift with 71% of Canadians opposing the deal. Of those, a sizeable minority support the apology, but not the payout. In response, the Canadian government has justified the apology and the high compensation on two sets of considerations. First, Prime Minister Trudeau suggested that “If we had continued to fight this, not only would we have inevitably lost, but estimates range from $30-$40 million that it would have ended up costing the government.” The government had already spent more than five million dollars in legal fees. One might read this event then as about risk aversion and a cautious litigation stance. Commentators are now fiercely debating whether this risk assessment was correct and whether the government had any viable defenses. But second, and perhaps more interestingly, Trudeau has long suggested that Khadr ought be treated like any other Canadian seeking a remedy for mistreatment in foreign detention. In the wake of the extensive political backlash, Trudeau offered a strong justice-based rationale stating that “we all end up paying” when governments fail to respect basic rights and that the “measure of a just society is not whether we stand up for people’s rights when it’s easy or popular to do so, it’s whether we recognize rights when it’s difficult, when it’s unpopular.”

For anti-torture advocates, this apology and its justice-based defense are a step in the direction of solidifying anti-torture norms weakened by the War on Terror. The Canadian Prime Minister chose to accept the Supreme Court’s determination regarding the violation of Khadr’s Charter rights and amplified them by offering a meaningful remedy. It sets an important example that other states trying to distance themselves from Guantanamo-era abuses may do well to follow. Of course, the ensuing political backlash might lead states to the opposite conclusion, but whether one agrees with the Canadian government’s decision to apologize and pay now or to litigate to the end, the Khadr case does shine a light on the high long-term political and economic costs of consorting with torturers. Prime Minister Trudeau is currently paying the political and economic price for his predecessor’s decision to allow Canadian interrogators to participate in the Guantanamo regime and for his refusal to seek Khadr’s return to Canada. When Canada, or for that matter any state with an active judiciary, contemplates cooperating with foreign states on intelligence and security matters that may involve torture, it would do well to consider the Khadr affair in its decision making.

Relatedly, to the extent that the United States considers backsliding on its changes to interrogation practices as hinted at in President Trump’s draft executive orders, it should be concerned that allies might not be as cooperative as in the past. Similarly, when the United States cooperates with states that engage torture as has come to light with the recent allegations against UAE, sharing that intelligence or otherwise cooperating with allies may also be made more difficult. While the short-term pressures to engage in torture can be high, the Khadr settlement suggests that the long-term costs of doing so may be even higher.