Letter from Dennis Edney of Edney, Hattersley & Dophin Law Firm to Canadian Minister of Foreign Affairs Bill Graham re: Omar Ahmed Khadr, Camp X-Ray, Guantanamo Bay

Error message

  • Deprecated function: Optional parameter $type declared before required parameter $key is implicitly treated as a required parameter in include_once() (line 1439 of /usr/home/documentafterliv/public_html/includes/bootstrap.inc).
  • Deprecated function: Return type of DBObject::current() should either be compatible with Iterator::current(): mixed, or the #[\ReturnTypeWillChange] attribute should be used to temporarily suppress the notice in require_once() (line 7 of /usr/home/documentafterliv/public_html/sites/all/modules/contrib/eck/eck.classes.inc).
  • Deprecated function: Return type of DBObject::next() should either be compatible with Iterator::next(): void, or the #[\ReturnTypeWillChange] attribute should be used to temporarily suppress the notice in require_once() (line 7 of /usr/home/documentafterliv/public_html/sites/all/modules/contrib/eck/eck.classes.inc).
  • Deprecated function: Return type of DBObject::key() should either be compatible with Iterator::key(): mixed, or the #[\ReturnTypeWillChange] attribute should be used to temporarily suppress the notice in require_once() (line 7 of /usr/home/documentafterliv/public_html/sites/all/modules/contrib/eck/eck.classes.inc).
  • Deprecated function: Return type of DBObject::valid() should either be compatible with Iterator::valid(): bool, or the #[\ReturnTypeWillChange] attribute should be used to temporarily suppress the notice in require_once() (line 7 of /usr/home/documentafterliv/public_html/sites/all/modules/contrib/eck/eck.classes.inc).
  • Deprecated function: Return type of DBObject::rewind() should either be compatible with Iterator::rewind(): void, or the #[\ReturnTypeWillChange] attribute should be used to temporarily suppress the notice in require_once() (line 7 of /usr/home/documentafterliv/public_html/sites/all/modules/contrib/eck/eck.classes.inc).

Letter from attorney Dennis Edney, attorney for Omar Ahmed Khadr, a detainee held at Camp X-Ray, Guantanamo. The letter is a request for Mr. Graham to take any and all available steps to assert and protect Omar's basic human rights as a Canadian citizen while he is being held at Guantanamo.

Tuesday, January 20, 2004
Tuesday, June 7, 2005

OFA I T MAEC I JPO UNCLASSIFIED_ .. .. ··_..-NO. . 516.---~P. 4..-_~_.____

· .

1970 Sun Life Place
DBNNIS EDNEY. B.A.., t.L.B. 10123·99 SIr;et 1. MARTIN lIATrBRSLSY. Q.C.; M.A., LL.B., A.lb. EdmonCOll, Alberta, T5J 3Hl
PhonD' (780) 423·7198
(780) 424-4081 (Au Association for the Pnultiee ofLaw)lax . (780) 'W.S:241 . (Baeh ~clatais a Pmfessiooal Cotpotatiou)
Ema.iI ~w.~ OurF~te:41314

January 20, 2004
Department ofForeign AffirinJ and l'nteinational Trade
Lester B. PeatSOD Building Tower A
125 SusSex Drive
orrAWA, Ontario

. .
Attn: Minister otForeign Affairs Bm Graham
Dear Sir,
Re: Omar Ahmed Khadr. Camp X.Ray, GuanfMlamo Bay, Cuba
This lc~ttcr is fUnher to our earlier comspondence dated December 11. 2003. To which we confi.tm you chose not to respOnd as requested. As had been not.ed therein, r, along with my co-­counsel, Nathan Whitling, of the law finn of Parlee MeLaws LLP, act on bebaIf of Mr. Omar Ahmed Kbadr, a Qma.djan citizen currently detained in ''Camp X-RaY' GwmtAnamo Bay, Cuba. .. FaT your further infonnation, we enclose a c~yof a photograph of oUt client taken prior 10 his detention, together with copies. of his personal identificatioD. We confinn that we have filed an tunicus curiae brief on behalf of Omat in'the SuPreme Court of the Uniccd States in support of the Petitioners. Among o~arguments we have submitted that the Court ought to interpret the · Constitution of the United States'in a IlUlDIlet consistent with omats rights uader international
law. . . . .
Although you &ave declined to participate in the proceedings now befOre the Supreme Court of the United States, this letter is provided as a.request for You to take any and all available steps to 'assert and protect Omar's basic human rights as a Canadian citi2en and as a cbil~ including all steps taken to date OIl behalfofour client
FaauaJ Circu1lfsttmces .
We had advised you in our earlier correspondence that Omar has been detained in GUan&amo Bay since approximately late 2002. He is con1lncd to a 2.4 metre by 1.8 metre ceU-for at least 23 . · hours per day. He reCeives 15-30 mm\1tes ofoutdoor exercise approximately 2-3 times per week, and is intemlgated regUlarly. Omar was injured at
DATE/CASE-ID: 20 APR 2005 200303827 UNctA~SIFIED
. .
.. -.,
OFAIT MAEC!WCLASSIFIED -' ~ ..~---''-NO. S16~P. 5_~_
~UG! 27. 2004 12: 3 6 PM
l •
. ,
_ 'Department of Forelgn Affairs and. International Trade
'.. ,:,.uary20,2004
, the time of his cap~'8Ild has lost approximately 90 per c:ent of the vision in his left eye. We understand that Omar bas been shot twice and is wounded mthe abdomen. 1'be legality of
, Omar's detention has never been d~ennined or reviewed by a competent tribunal. He has never been formally advised as to the nature ofthe charges laid against him (ifany)~ Further, Omar has also been denied access to a Canadian consular representative guaranteed under the YieMil Convention on Consulat' Relations.
. ; . -
Mr. KhIl4r's Ongoing Detention is in VUJ/atio,i oflntuilatiolUllLttw
We ask that you conduct an assessment as to the legalities of Omu's detention and irea1ment by
the United States, and to provide us with the views Dfyour Mjuistry in this regald. We suggest it
'is patent1yclear that Omsr's rightS as ajuveni.le and as a Canadian citizen are being violated by the United States, and we tako this opportunity to provide our own updated assessmen~ of this isSue, although much ofthis material has been ref'ened to you inprevious correspoooeace.
As you are aware; the United States bas taken the view that Omar and the otbet detainees in, Guantanamo Bay are "Cllerny combatants", and as such, need DOt be aCcorded the rights conferred upon them by the Geneva Conventio1l relative to the Treatment ofPri.soners ofWar. This determination hss been made on a blanket basis with respect to all the detainees ra~erthan upon the circumstances relevant to each individual case. Ia this nwmer, the United States has attempted to evade those provisions which prohibit interrogation (Article 17),' and, which require the detainees to be acc;oroed quarterS, food, and clothing under conditions as favouCab1e as those , provided for the United States forces quartered in the area (Chapter ll). This unilateral and arbitrary determination, constitutes a direct violation of Article 5 of the C07f\le1lri07l which
~~~: '
Shauld any dQubt ~eas to whethet persons. having committed a belligerent act
and having faDen into the hands of the enemy, belong to any of the categories
.. enumerated in Article 4, such pers~ shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. -
AstonisbingJy~ the United States' detention of Omar is ill direct vio1ation of CYeD its own 'military regulations. See Enemy Pnsoners 0/ Well', .ReJ4inea Pm-soMel, Civilian Inlunees muJ. Other Detainees. U.S. Army Regulation 190-8. Chapter 1-5. para. ,a, Applicable to the Departments of the Army, the Navy. the Air Force~ and the Marine Corps, Washington, D.C. (1 . October 1997) ("J\llpersotl3 taken into custody' by U.S. forees win be. provided with, the protections of the 1949 Geneva Converttion Relative to the Treatment of Prisoners of War
'("GPW") Wltil some Jega.t statuS is determined by Competent authority."; ttl. at 1-6 para. b ('''a , competent tribunal &hall
, '
detemrine the status of any person . ; . conceming whom any doubt ••.exists"); id. at 1-6 para. g ("persOll8 who have been determined by a competent tnOuoal not to be entitled to prisoner of war status may not be • • . imprisoned or otherwise penalized, without further proceedings to

I .
·AU~. d 2004 12:37PM. . DFAlT'M~ECI WCLASSIFIED .----".--NO. 516---._P. 6_~... _..~_...~
, I
Department of Foreign Affairs and International Trade
. .-nuary 20. 2004
~ge3 "

" determine what aets they have committed and what penalty should be imposed.j; id. at 3-8, "
para. d (1&Accused persOIls will be notUied promptly ofthe charges in writing. .• : These pmons
will be tried as soon as JlossibIe:,); U.S. Department oithe Army Field Manual, FM 3-19.40,1­10 (1 August 2001) ("A person in the custody of US anned forces .•• is treated as an EPW

. [enemy prisoner of war] until a legal status is ascertained by .competent 8uthority.")~ id. at 4-33
(nA tribunal is beld according to Article S, GPW. . "
It d~enninesthe status ofan individual who does not appear to be entitled to F2W status ... j.

~dedsion of the United States to detain Omar at OuanUnamo Bay is of comse a carefully
coostructed plan to evade its legal responsibilities. As the highly respected and independent
association the American Conege of Trial Lawyers has stated in its Report on Military
Commissions/or the TrialofTUTOrists:

It appears that the content of me Order aim the PrOQedures, particularly the exclusion of:u.S. citizens from their reach and the placement of the detainees at " Guantanamo, were carefully designed to evade judicial scrutiny and to test the
limits ofthe President's constitutional authority.
. .
:rn the recent decision of Gherebi v. Bush 2003 U.S. App. LEXIS 25625 the Court ofAppealsf'or
the Ninth Circuit . .

. Gherebi has not been .subjected to 8 military trial. Nor has the gov~ent employed the other time-tested alternatives for dealing with the circUrnsfances of war: it has neither treated Gherebi as a prisoner of war (2Jld has in.flu::t declared that he is not entitled to the rights ofthe Geneva Conventions•... nor bas it sought to prosecute him 1IIlder special procedures designed to safeguard national security... wtead, the govermnent is following an unprecedented sltemative. Under the government's tbeoJy, it is 1iee to imprison Ghercbi indefinitely along with hUIJdrcds ofother citizens of foreign countries, fiiendly nations among ~ and to do' with Gberebi and these detainees as it wil~ when it pleases, without any compliance with any rule of law of any kind, wilbout pennitting birD to consult . I counsel, and without acknowledging any judicial fonun in which its actions may I be cballenged. Indeed, at oral argument, the govcimneut advised us that its position would be the lame even ifthe claims were that it was engaging in ac,ts of I torture or that it was summarily executing the detsinees. To our knowledge, prior to the CUIIent detention of prisoners at GuantBnamo, the U.S.' government bas Dever befo~ asserted 6Uch a grave and startling proposition. Accordingly, we view Owmtanamo as unique not only because the United States' territorial " relationship with the Base is .without parallel today, but also because it is the mt time that the goVetnme.nt has antlO\mced such an extraotdiDary set of prineipl~ ­a position so extreme that it raises the gravest ooncerns under both American and . intemationallaw .
.A3 }'C~. are of course aware, the Internatlo~a1 Covenant on CMI and Political Rights prohibits
arbitraty detention. In particular, the Covrnan.t provides:

.:... .. _._---_...

... NO: 516---".. P. 7.-------_. __
AU~. 2~. 2004 12: 38PM
Department of Foreign Affairs and Intemational Trade
. .-nuaIY20,2004 . . """'age4 . ..
. .
"An}'On~ ~ois deprived ofhis liberty by arrest or detention shall be entiUed to take proceedings before a court, in order that court may decide without delay 9n the lawfulness of his detention and order his release ifthe detention is not lawful.It
. [Article 9 (4)].
Both Canada and the United States have signed and ratified the Covenant. The Covenant is a
. treaty by which the United States bas made s. legally enfOICeable promise to Canada not to detain .. Canadian citizens arbitrarily. Canada has a right to insist that the Umtcd. States maintain this . promise_
The Unit~Nations Convention on the Rights o/the Child provides:
States Parties shall ea.sure that: .
.(a) . No child shall be subjected. to torture or oth:r cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences ~ttedby persons below eighteen years of age;
. (b) . No child shiill be deprived of his or her Uberty unlawfuny or arbitmrily. The 8IIeS1, detention or imprisonment of a child shall be in.confonnity with the law and shalJ be used only as a measure oflast tesort and for the shonest appropriate period oftime;
(c) Evczy child depriVed of liberty sball be treated with humanity and respect fQr the inberent dignity of the human person, and in a maunCl which takes into account . " the needs of penons of his or her age. ~particular, every cbDd deprived of .
. h"berty shall be scpamed from adults unles5 it is considered in. the child's best jnt~est not to do so and shall have the right to maintain contact with his or her family tbroug1\ correspondence and visits, save in exceptional circumstances; .
(d) EvelY child deprived of his or her liberty sball have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the .deprivation of his or he1" liberty before a court or other competent, independent and. impartial authority, and to a prornpt decision on anySllch action.
In R. v. Sharpe, [2001J 1 S.C.R. 45, L'Heureux-Dub6, Oonthier and Bast8mcbe 11. of the Supreme Court ofCanada stated at p. 140-41.:
The protection of children from hann is a universally accepted goal Wlu1e tis Court has reCognized that, generally, international nonns are not binding without legislative implemenratiOlr, they are relevant sources. for inteIp~rights domestically••• I

. ----NO.5 \6---P.· 8.. _____"__ .
.Department of ForeignAffairs and International Trade
.anuary20, 2004

[Al' balancing of competing interests [in constitutiODlll intetpretation] IXl\l3t be monned by Canada's international obligations. The fact !hal a value has the status of an international human right is indicative of the high degree of importance with wbich it m~stbe considered... .
. Both' legislators abroad and the inremational community have acknowledged the vulnerability of children and the resulting need to prot~t them. It is therefore not SUIprising that the Convention on rile Rights ofthe Child hai been ratified or acceded to by 191 state3 as of lanlWY 19, 2001, making it the most universally accepted
h1l1i1an righ~ instrument in history. ~~4·e.J_. c., .. .
In Baker v. Cantltla (Ministel' of Citizenship aruJ Immigration). [19991 2 S.c.R. 811. the Sllpreme Co~ of Canada affinned that Ministerial authority must be exercised in a manner . consistent with the a.bove Con\lention. In doing so, the Court stated as follows:
. The values and principles of the Convention recognize the importanCe of. being attentive to the righ~ and best interests of cJnldren whee. decisions are made that reJate to and ~ecttheir future. In addition, the preambl~ recalling the Universal Dec/rD'atian ofHuman Righf.g, recognizes that "childhood is entitled to special care and assistance" _ A similar emphasis tlIl the importanCe .of placing' considerable value on the protection of children and their 'needs and·interests is 'also contained in other international instnlInents. The United Nations D(JCItJra/ioll of the Righ" oj tbe Child (1959), in its preamble, states .that the thild "needs
.special safeguards and care". The principles of the Convention and other ·international instruments place special importa,nce on protections for c.hiJdreD and thildhood, and on particular considexation oftheir interests, needs, and rights.
The illegality of Omat's detention bas been repeatedly noted by international tnounals and
.. foreign courts. Upon the initial transfer of prisoners to Guanbinamo, the United Nations High

Commissioner for HUman Rights released a Statement Which included the following:
It is appropriate to recall tbat there arc international legal obligations that should
be respected. In particular, I would like to recall that: .

· All persons detained in this context are entitled to the protection of international ·hUtlWl rights law and humanitarian law, in particUlar the relevant provisions of the Intematz'onal CC:1Yenant on Civil and Political Righrs (lCCPR) end the Genewz . . CO'fJVentions of 1949.
• The legal states of the detainees, and their entitlement to pris.oner--of-war (pOW)
StatuS, if disputed, must be determined by B competent tn'bunal, in acc:mdance ·with the provisions of Article. S of the Third Geneva COTCYention.
· All detainees must at an times be treated humanely. consistent with the
provisions ofthe ICCPR and the Third Geneva Collrentfoll.
MG. 27. 2004 12: 39PM 'DFAIT MAEC [lJNCL~SSIFIED,' , NO.5 16 P. 9
Department of Foreign Affairs and International Trade
, amuary20, 2004

. Any possible trials should be guided by the prinoiples offair trial, including the presumption of innoeeace, provided for in the ICCPR and the Third Geneva Convention.
In denYing Omar consular visits, the United States has also' committed a direct violation of its
obligations to Canada imder the Yienll4 Convention on ConsularRelQlio7lS.
The United Nations" Working Group on Arbitrary Detention has recently prepared a ''Legal Opinion Regarding the Deprivation of Liberty ofPersons DebUned in Guantanmno Bay", Tbjs 'opinion concludes that the conduct ofthe United States constitutes violations ofboth the Geneva Convention and oftbe l"ternationai Covenant on eMI anaPoliti(;aJ RIghts. ,
In Abbasi v. Secretary of State for Foreign and COmmonwealth Affairs, EWCA CIZ, 1598
(2002). 2003 U.K..H.R.R. 76, che English Court of Appeal described the situation of the Guantanamo detainees as a "legal black hole". The Court also expressed itS "deep concem that, in apparent c()ntraveution of the fundamental prin~ples oflaw [the prisoners] may be subject to '
indefinite detentioa in territory over which the United States' hag exelusive control with no
opportunity to challenge,the legitimacy of [their] detention before any court or tribunal"
',Similarly, the rnter~American Commission on Human Rights of the Organization of American States bas ruled that it is contraty to intemational1aw for the GuantAD8lIlO detainees to be held "entirely at the, unfettered discretion of the United Sta~ government", and requested the UJnted States to ''take the Urgent measmes necessary to have the legal status of me detainees at Guantwlamo Bay detenniPed by a competent tnbunal.o" ' ' .
The arbitraIy detention of Omar and the Olher children in GuantZnamo Bay raises issues and interests of grave concem to· the international community. Mr. Olm Otmmu, Special Representative of the SecretaIy General of the Unit~d Nations for Children and Armed Conflict has publicly stated that bo~the participation of children in anned conflict and their detention in
~ Guantinamo Bay ate "equally probibited under intem.ationallaw", Mr. Otannu bas also called. upon the United States to allow "a very prompt determination of their case," md added ~at nWbatever the circumstances. children should be reunited with their families .•. We do not sentence childten to jail. We do not punish them. We, give them healing and get 1bem rehabilitated." '
Similarly. Omar's personal circumstances ha'\'c raised serious concerns on the part of such respected non-governmental organizations as 'Amnesty InternationaL In a letter addiessed to P.resident Bush, Secretary General Irene Khan sta1ed:
It seems sometbiIig of an irony that the USA, one ofthe 1iIst countries to ratify the Optional Protoc.ol \0 the Convmtion on the Rights of the Child on the involvet%1ent of children in anned conflicts, is noW treating these children in a way thar undermines fundamental protections under the body of the main treaty
itself., . ' ,
f· ..)
I ,
,'AUG: 27, 2004l2:39PM OF A IT' MA E C [ lJf1(,lCLASSIFIE~' ' , ""NO, 516---·p, 1O-___~
, Department of Foreign Affairs and InternatIonal Tr~de : .. _nuaty 207 2004 ""IIIf""age7
We call for all linder-18-year-olds beld in GuanUnamo to have immediate access to lawyers and their families. They should be promptly charged and tried within a reasonable time in acoordance with fair erial standards, or released into appropriate and safe circumstances.
, The Parliamental'y Assembly ofEurope bas expressly recognized that the arbitrary detention and treatment of Omar by the United States constitutes a "flagrant breach" of his rights' under international law as reflected in the instruments above. In the Parliamentary Assembly of_ Europe's Resolution No. 1340 (2003) (Adopted lune 26,2003), it was s~; _ '
The ParliamentaI)'AssCQlbly:

ii. notes that a number of children are being beld in Guantanamo Bay, including a "handful'" of children between 13 and IS years of ago transferred from the Bagram Air Base in 2003, ~d'a H;·year old Canadian, national transfem:d at the end of2002;
-iii. believes that children should only be detained as a last zesort and that they
, require special protection; tbat the continuing detention of these young peoPle is a most flagnmt breach of the United Nations Convention on the Righ~ Qt the Child. ,
We ask that your MixlistIy assess the legality of Omar's treatment at the hands of the United States, and that yon provide us with your own v;iews as to wbether-or Dot the United States has in fact acted in conuavention ofintemationallaw. ­
Omar's Plea for Action
AJ you can see-from the abOve, bodies such as the United Nations and the Parliamentary Assembly of Europe have a1r~dy made far greater efforts to protect Omar;s basi(l human right:! than has the Canadian Government. Despite the obvious and egregious violations being
, p~against Omar, ~adachosen to remain siJent. This inaction commmdcates to each and every Canadian citizen that he-at she will not be affOIded protection when traveling abroad with a Canadian passport. This contrasts shaIply to the m~ssage in yoUr Ministry's publication entitled A Guide For CamuJitJn.s Imprisoned Abroad. _ -
In fact, I would suggest your, silenCe in refusing to respond to ,our request for your partiCipation
in filing an amicus curiae before the U.S. Suprem~ Court on behalf of Mr. Khadr does, a disservice to the reputation and security of Ccmadian society as s whole. You will recall that the question presented before the United States Supreme Court is as follows!
, Whethe1-United. Stqtes court:l lack jurisdiction to consider challenges to the
,. . .....·NO, 516--P,' 1 1.---_.~:...~'_,
, '. AtlG, 21. 2004 12:40PM O'FAIT MAECIUNCLASSIFIED
Department of Foreign Affairs and International Trad'e"
-.nUSIY20, 2004
legality ofthe detention o//oreign nati01lQ/s captured abroad ;71 C01'l1Jection with
hostilities aM illc(Ucerated, at the Guantanama Bay Naval Beue, Cuba: '
Canada eouId have taken the opportunity to emphasize tc the Court and through tho Co~to the intemational community at large, the fmportance we canadians place on the rule ofJaw for all its ' citizens who are detained abroad. The Canadian government, being a Signatory on the United Nations Convention on the Rights of the Ch;ld, could have had the opportunity to remind the
U.S. Court of the special importance canadian society and the International community accords to clWdren to msux:e their fundamental rights are not violated.
Our client's family memben are peIplexed the Canadian government chose not to adckeas the above question by way ofan amicus curiae brief By your sileDce~ you have failed in YOW' duty to assist a Canadian citizen detained abroad. An abuse PeIpetrated on one of our citizens is an 'abuse against aU of our citi2enry. WhiJe no',other foreign govemments have. applied for amicza curiae status, other countries, such as Britain and Australia bad forcefully lobbied for other , detaiJle4 national3. In ~Lord Goldsmith, the Attorney -Gene~obtained' ~nceSsioDS that British nationals would Dot be executed and will be allowed confidential access to their lawyers. , .. Meanwhile, Omar continues to be detained in harsh conditions with no' access to legal coounsel
potentially facing the death penalty. .
. We are' concerned at the apparent v.iol~tion of Omar's right to silence and the right not to be ' questioned without access to legal counsel. Foreign Affairs ,spokemlan Reynald Doiron . ,ackIlowledgcd that Canadian intelligence officials were allowed to interview Omar whil,e access to Canadian COIlSUlar offic:i;lls had been denied. The,preamble to the Canadian Charter 0/Rights
. t271d Freedoms enshrines the principle of rule of law in our constitution. While the existence of miDisterial discretion is not in and off iaelf contrary to this principle, the courts bye d~ided thaf the necessity for the gOVemment and its officials to .obey the law is a fundamet1~ aspect of the nde oflaw~ The Canadian Government cbose to deny this right to the most vulnerable in our society at a most vulner;lble time in Omu's life. Omar is a child Md has been deJ;rled and'
, continues' to be denied the most 'basic ofrigbts.
ForeigD Affair.; spokesman, Reyn3ldDoUoD; explanation for tho deniaJ of consular services to , ,Omar provides no ~omfonto Canadian citi2ens abroad: '
. "It was refused along the same lines that consular access was J:efuaed to other
, countries •..," , , .. Canada is not singled out in that matter. It's an un\lSWllsituation in very unusual times."
It is indeed UIl-uSual times when foreign and Canadian nationals detained in Guantanamo Bay' are being denied the most basic principles of international law wh11e American detainees were afforded due process of law. There is simply no way for the Canadian public to judge whether
, the detention of Omu is justified when any charges againSt our client have not been' made public. and stories told by prisoners eventually released from Guantanamo Bay suggest thai the flimsiest reasons for detention sometimes suffice. Defeating terrorism means convincing the
. , .

.....-..-JO. ~ 1 L __J. 1] .. _...... .
.·l~t. ]1.1~~! 1J.:!~~M
Department of Foreign Affairs and International Trade .uary20. 2004 ""'-age9 .
world ofthe unportance of the rule of Jaw. The conduct of the Bush administration towards our client and other detainees handicaps this effort it; in the process offighting terrorism's violation ofthe right to life. we violate the fimdamental rights ofO\lr citizens. " .
In that regard. we are concerned the Canadian 'Government is sending conflicting messages 'w' the American authorities about its respect for the rule of law on behalf ofits citizens detain.ed abroad. Government conduct with tegards to the Otnar Khadr case demonstrates )'Our department will remain silent when confronted by clear abuses ofcivil· and hUman rights against Canadian citizens abroad. It will also be complicit . with American authorities in denying .fundamental rights by the unlawful questioning of a Canadian child protected under the United Nations Conventio1l on the Rights oftM Child o.nd our own constitution. . '.
We have many concerns in relation to Omar·s situation and request that you take a number of steps in relation to our clients. ..
Disclosure of.All Available Non-Privileged Information
. .
On behalf of Omar and his family. we request that yeu disclose (0 us all information and materials cum:ntly in your possession or power which rel::lte to Omu's current status. Without limiting the generality of the foregoing, we request specific confirmation that Omar is indeed being held by U.S. forces in GuanWlamo Bay, without charge, and without acc~ to legal c::01lOSeL We also request disclosure or all information iD terms ofhis health and well·being.
We request particulars ~to the dates of any pait visitS to Omarby Canadian officials as well as the names of those individuals who have spoken with Omar. In this re~we request full particulars of any and aU information obtained from and about Omar during these .visits. subject
(0' ofconrse to privilege on the basis ofDational interest and security.
A request pursuant to the Access to In/OrmatitJn ACl has already been sent by Mr. Whitling in this resanJ, and we ask that you take all steps to ensure that it is dealt with in a prompt and appropriate lD3llller.
Exerdse ofAD A vaRable Mechanisml Under International Law for Complaint aDd Redress
We hereby request and demand that the government of Canada exercise its rights unda intemationallaw to protect Omu's basic human rights, both as a chi1d and as 8 Canadian citizen. In addition to the Yienna Convention 011 Consular Access. we rofer specifiealJy to the International Covenant on Civil and Political Rights. and Article 9.4 thereof quoted above.
Article 41 of the Covenant sets out an optional inter state complaint mechanism. Both canada and the United States have accepted the Covenant Article 41 inter-state complaintS mechanism. CaDada made a declaration under Article'41 on 29 October 1979 in these words:
" ,
-,\lJG.'i7:200'412:41PM 'DFAIT MAECI ~CLA'SSIFI~I? -..-,-~,....,.NO.516~,--,P. IL~_____ ._..
.. ,
Department of ForeIgn Affairs and InternationiiTrade
.!Iinuaxy 20, 2004 ' . , ' .
~gel0 '
tIThe Government df Canada declares, under article 41 af the 'International Covenant on Civil and Political Rights; that it recognizes ~competence of tbe , HuJIWl Rights Committee referred to in article 28 of the said Covenant to receive and considet commucicanons submitted by another State Party. provided that such State Party has, not less than twelve months prior to the submis/Jioil by it af a conunurucation relating to Canada, made a declaration under article 41 recognizing the competence of the Committee to receive and, consider
, communieations relating to itself.n
The United States made a declaration under Article 41 in these words: '
"The United States declares that it accepts the competence of the Human Rights Committee to receive and consider communications under article 41 in wIDell. a State Party ~laims mat another State Party is not ftdfilling its obligations under the Covenant n
We suggest that a' failure on the part ofyour Ministry to intervene on bebaJf of Omar, and to
, invoke his. fundamental buman rights under domestic and iDtematicnallaw would conStitute a violation of his rights under 8. 7 ofthe Ctmadicm Charter ofRights anrI Freedoms. We therefoIC request that you exercise the rights available to the government of Canada under intemational law..
ConslllaT, Family, ~ndLegal CouDSel VWtatioD
.' We further request thai you immediately make effo~ to be aec:ordcd we consular visi1s with Omar, for the: purposes ofensuring his physical and psychological health, aud the obsenrance of ,his basic human rights. In this regard we cite the J'ienna C;onvention on Ci:m.mJar Relations·f»
Co which both Canada and the U.S. are parties~ Although we suggest that Omar's family as weD as ourselves as bis legal courise] ought to ,be pennitted to attend any such visitS. we Sl1ggest tUt at the very least, such visits ought to bo arranged to be attended by representatives of your Ministry by whatever means necessmy. We would thea request a repOrt of any infonnation obtained from Omar in the course ofsuch visits.
As' you are aware. Oma,r has not been accotded any access to independent counsel. Obviously, this is Omu's fundamental right We n:qucst 8Jld demand that yon ,take any ~d all available attempts to facilitate Oinar's ac~1J to independent counsel such as ourselves or other suit3.blc and qualified persons.
, ,Protedi~n Against Dlgc:riminatJoD eD the Basis of Canadian Citizenship
.We suggest that one ofthe circumstances which ought to be ofimmediate concern tC) your office is that Omar is being discriminated against by U.S. authorities on the basis o( his Canadian citizenship. As you may be aware, those pe.rso~ who have: been d~tainedby U.s. forces over the
" . , ,
~: '''AUG.'27. 2004 12:4'lPM DFAIT MAEC~C~~SSI~IED' ':,NO.516•.....P. lL;,..__ ,~,_, Department of Foreign Affairs and 'ntarnatlonal Trada
ailnuary 20, 2004
"'-age 11 ' ,

course of the War on Taror who are ,U.S. citizens have been accorded full due process rights, " and fair trial!i in the U.S. domestic courts. However, all such rights Il1'e being denied to Omar ,simply becHuse he is a Canadian rather than an American. We suggest that this is preeisely the type of situation which ought to mise concerns on the part of)'O'Ur Ministry. In this regard, we
,refer you to the following statemmt contained at page 5 of your publication entitled Guidelines
JOI' CanadJfJhS Imprisoned Abroad; ,
, '
, [T]he GOVernment of Canada will make evety etiort to ensure that you receive equitable treatment under the local criminal justice syStem. It will ensure that you are not penalized for being Ii for'eigner. and that )'OU are neither discriminated against nor denied justice because you are Canadian..
Omat'S cum::nt situation is a clear case of a Canadian being pena~ed for being a fmigner. We therefore request and demand that' you take any and all available steps to ,ensUI'C that Omar is , aC«)rded the Harne rightS, privileges and protections as the American citizens who haVe been arrested and detained by U.S. forces during the War on Terror.
Legal 'StatuI ud .Jeopardy
Genemlly speaking. oniar's family wishes to obtain any and all available information as to his current and future: status, as well as information, with resped to anything they can do to assist , Omar. In this re~we request that you seek to obtain any and all such information regarding , O~Sstatus from the U.S. authoriti~ and provide us with same. More ~ifieally. we a.sk that
you obtain answers,to at least the fonowing questions:, .
Why is Omar CIllTently being detained?
How long is his intention expected to last? ,
6. Has he been,designated as a prisoner ofwar for the P'lJPOSe ofthe Geneva CtJPlventions~ Will' Omar be ac:corded a trial? ' IfSo. when? '
Ifso. what will be the nature ofthe tribunalJ i.e. militazy. domestic, or other. md what rules and ·procedures will be applicable to tbe proc:eedings before this tribunal? ' What evidellee ~ists to support his ongoing detention?
Of particular concern to Omar's famny is what to expect in terms of possible sentences or p~slmients, whether legal or extra-legal, which may be imposed upon Omar by U.S. authorities. In particular, Omar's family is obviously gravely concerned as to the poSsibility that
,capital punishment may be among the range of possible sentences to be impose4. We urgently , request that you seek and obtain any and all infonnati~widl respect to this possibUity.
We request that the take all available steps to encourago the American authorities to process . Omar', case without undue delay.
·':'''~·Atf~,-17. 2004 12:42PM . DFAIT MAEC~CLASSIF~E:b
·... .

• Department of Foreign Affairs and International Trade
·.' .•uary 20, 2004 · ~gel2
Living Conditions and Medlc:al Care
We iequest that you take all available steps to ensuxe that Omar is being provided with adequate nutrition and medical care. In this regard we emphasize that to our knowledge Omar has sustained serious injuries and it is ofgreat concern to his family that he receive the best available medical care, including access to specialists able to treat his particular types ofinjuries•
. . COllclusion
~s you have no doubt perceived, this letter constitutes an urgent pIca for help from a juvenile ~dian citizen and biB family. We suggest that there ~11 n~ be a clearer case of intemational law violations than that which had been and continues to be pelPetrated against Omar. We suggest that it is your obligation UDder to protect Omu's rights from violation and abuse, ask that you providci an initial ~onseto the requests contained in this leUet' within 10 . days ofits receipt
Yours very truly,