Reading the diplomatic notes exchanged between the U.S. Department of State and our embassy in Washington, one is immediately struck by their similarity. In effect, the Canadian response picks up long excerpts from the State Department note, thereby mirroring the U.S. request.
Here are its key passages:
The Government of Canada shares the view of the United States that were Mr. Khadr to request a transfer to Canada. to serve any part of his sentence in Canada, the United States and Canada could implement such a transfer under the Treaty between Canada and the United States of America on the Execution of Penal Sentences (the "Treaty") and existing domestic authorities. Canada understands that if Mr. Khadr enters into the proposed plea agreement. is convicted in accordance with the terms of that plea agreement, complies with the terms of that agreement and he requests to be transferred to Canada to serve his sentence, the United States Government would approve his transfer to Canada. Canada confirms the specific understanding of the United States that following such transfer, Canadian law would determine whether Mr. Khadr serves the full remainder of his sentence, or some lesser portion of his sentence. Canada further confirms the United States' specific understanding that such transfer would result in Mr. Khadr being subject to Canadian law pertaining to detention and in Mr. Khadr being able to apply to the National Parole Board (an independent administrative tribunal operating autonomously from the Government of Canada) for full parole following the completion of one-third of his sentence. Canada confirms the United States' understanding that eligibility for parole does not mean that release will be granted, only that it will be considered, and that public safety is the paramount consideration in all decisions.
The Government of Canada therefore wishes to convey that, as requested by the United States, the Government of Canada is inclined to favourably consider Mr. Khadr's application to be transferred to Canada to serve the remainder of his sentence, or such portion of the remainder of his sentence as the National Parole Board determines, provided the aforementioned conditions are met and the Government of the United States approves Mr. Khadr's transfer to Canada.
It's clear then that, in drafting the notes, the two sides worked closely together to find language that would be acceptable to all parties. And, by all parties, one would have to include Omar Khadr, who was represented in these discussions by the State Department.
The U.S. goal was to negotiate a plea bargain agreement and thereby avoid putting Mr. Khadr on trial at Guantanamo before a military commission. Mr. Khadr was looking to minimize his time behind bars, in general, and at Guantanamo, in particular, which implied an early return to Canada to avail himself of our more lenient parole provisions. The Conservative government was looking to maintain good relations with the United States - the basis on which it deferred all these years to their military commission process under two presidents, and successfully resisted attempts to have the Courts order Mr. Khadr's return to Canada. No less important, the government was looking to maintain the statutory independence of the Minister of Public Safety, who is responsible for considering prisoner transfer requests under the Act.
While some news organizations reported last week that an agreement was in place to have Omar Khadr return to Canada after spending one more year in Guantanamo - reports that were likely stimulated by defence counsel spin - it's clear from the diplomatic notes that this is not quite true. It's also clear from news reports that at least one of Mr. Khadr's attorneys understands it not to be true:
Nate Whitling, one of Khadr's Canadian lawyers here for the sentencing hearing, said Canada's language in the diplomatic note is strong enough to challenge it in court if the government reneges on the deal a year from now.
"Certainly Omar has relied upon that representation in good faith, and entered his guilty pleas on the strength of those representations by the Canadian government," Whitling said. "In our view, they are legally enforceable."
The other loose end in the exchange of diplomatic notes concerns the still grieving widow of Sergeant Christopher Speer, who was not represented in the discussions. Instead, it's likely that her main contacts were with the Pentagon, which interprets the exchange of notes as follows: "In these circumstances, the US Government understands and acknowledges that Khadr would be eligible to apply for parole in Canada after serving one-third of his sentence, and may be eligible for statutory release in Canada after serving two-thirds of the time remaining after his return to Canada."
Specifically, it's not clear from this report that Mrs. Speer understands - as The Globe reports this morning - that "[since]Mr. Khadr will have been in prison for more than nine years, he will be eligible for immediate release" after he returns to Canada:
An emotional Tabitha Speer, the widow of Khadr's victim, told reporters she was happy with the 40 year sentence, and understands the reasons for the deal.
Explaining it to her kids, though, would be tough, she said.
"Today was a huge victory for my family," she told reporters here. "I miss my husband very, very much. There will never be anyone or anything that can replace or bring him back, but today this helps to close a huge chapter, and this is going to help my children and I be able to move forward.
"My children don't exactly understand the eight year plea at this point. I will explain that to them."
Update: The New York Times report, which just came on-line, relays the Pentagon version of events:
A United States military commission at Guantánamo Bay has sentenced a former child soldier for Al Qaeda to serve 40 years in custody for war crimes - but the Canadian detainee might be released in fewer than three years, the Defense Department said. …
After one year, he is likely to be transferred to a prison in Canada, where he would be eligible to apply for parole after having served two years and eight months. …
Mr. Khadr's prison sentence is not affected by the more than eight years he has already been in custody….
Both governments expressed doubt about whether the parole board in Canada - an independent agency- would release Mr. Khadr early, stressing "that eligibility for parole does not mean that the release will be granted; only that it will be considered" and that "public safety is the paramount consideration in all decisions."
Another update: The thrust of the report on Omar Khadr published in the dead-tree edition of the New York Times is substantially different from that in the earlier on-line version (which is no longer available on the site); most importantly, the published report adds the following:
Exactly how Mr. Khadr's case will be handled by the Canadian parole system is unclear.
In murder cases, the Parole Board of Canada normally credits preconviction time served in custody to calculate when prisoners can apply for parole. Because Mr. Khadr was arrested just over eight years ago, he could be eligible as soon as he enters Canada.
But murder convictions in Canada carry a mandatory life sentence, which may enable the parole board to alter its normal practice, said David M. Paciocco, a law professor at the University of Ottawa. And because Mr. Khadr was 15 at the time of his arrest, special provisions of Canada's prisoner-transfer laws related to murder convictions may apply, said Allan Manson, a professor of law at Queen's University in Kingston, Ont.
Even if Mr. Khadr is turned down on his first application, Professor Manson said, he is almost certain to be released after serving two-thirds of his sentence.Report Typo/Error
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