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Globe editorial: Omar Khadr, Canada and the fragile rule of law

Reasonable people can debate many things about the apology and $10.5-million settlement that the government of Canada is giving Omar Khadr.

How much is a life worth? How much are you owed for being tortured? How much should Ottawa pay Mr. Khadr for the decade he spent in American custody, and the physical, psychological and legal abuse he suffered while a guest of Uncle Sam – given that Canada had little more than a walk-on part in the affair?

Maybe $10.5-million is too much. Then again, maybe if the Trudeau government hadn't settled, a judge would have awarded even more. Go ahead and debate.

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Read more: Ottawa to offer Omar Khadr apology, $10-million in compensation

There are also questions about what exactly Mr. Khadr did, as a child, before and on that day when he was captured by American forces in Afghanistan. He was 15 years old. His family were al-Qaeda sympathizers, and then some, and he was captured in an al-Qaeda compound, the last survivor of a battle with American troops.

He is alleged to have thrown a grenade that killed an American soldier. How responsible was he for where he was and what he did, then and earlier, given that the adults – his family – had placed him in that position?

And then there are the things that are not up for debate. A civilized justice system doesn't torture people. It doesn't torture the innocent; it doesn't torture the guilty. It doesn't even torture people who are fighting for the other side in a military conflict, whether they be generals or the lowliest child foot soldier.

Mr. Khadr was tortured while in U.S. custody in Afghanistan and in Guantanamo Bay, as were many others. There's no denying it.

He was subjected to extreme physical pain, isolation, sleep deprivation, shackling in stress positions, threatened with rape and used as a mop to wipe up his own urine. We know this not only because he asserts it, but because systematic torture was a core part of the modus operandi of a number of American facilities in the years after 9/11, including those where Mr. Khadr was detained.

Also not up for debate: A legal justice system, one operating under the rule of law, does not coerce confessions with violence or threats. It gives special protection to children, because of the diminished moral and mental capacity of youth, rather than singling them out for special forms of mistreatment. It doesn't deny habeas corpus, or access to a lawyer.

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All of these things are part of Canadian law, not to mention international treaties and the customary international law that Canada and our allies subscribe to. At Guantanamo, the U.S. violated all of these.

It's why the Supreme Court, in a 2010 ruling on one aspect of Mr. Khadr's case, repeatedly refers to the system in place in the early years of Guantanamo as "illegal."

In 2010, when Mr. Khadr pleaded guilty to murder, in exchange for the possibility of eventual release, he did so while facing the threat of indefinite incarceration without trial if he refused to confess. He was in front of a kangaroo court. So he signed a document in which he had to agree to the false proposition that "no person or persons made any attempt to force or coerce me into making this offer or to plead guilty."

Beginning in 2002, Ottawa could have protested, and demanded that one of its citizens be given humane and legal treatment. It could have said that he was a child soldier, and under international law the goal is rehabilitation for child soldiers. It could have insisted that it did not accept the conditions of detention or the illegitimate court process; after all, the U.S. courts themselves repeatedly ordered the U.S. government to make changes to the trial system at Guantanamo.

Instead, however, in 2003 and 2004, agents from the Canadian Security Intelligence Service and the Department of Foreign Affairs went to Guantanamo to question Mr. Khadr – not to help a Canadian citizen, but to co-operate with his jailers, and to prise him for intelligence.

Prior to the 2004 questioning, the Americans subjected Mr. Khadr to "the frequent flyer program" – three weeks of sleep deprivation, to soften him up for his Canadian interrogator.

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Some Conservatives believe that compensating Mr. Khadr is a slap in the face to Canadian veterans of the Afghanistan War. How? What this country was fighting for in Afghanistan was the rule of law. What happened to Mr. Khadr is what happens when a person is thrown into a dark place where there is no law.

A decade ago, the Stephen Harper government paid $10.5-million to Maher Arar – the same amount the Trudeau government is giving Mr. Khadr. Mr. Arar was tortured in Syria, having been illegally rendered there by the U.S. in 2002 – but it only happened because of mistaken Canadian intelligence that raised American suspicions.

The Harper government did the right thing then. So is the Trudeau government now.

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