Edney, Khadr, and the Fantasy of the Law

omar-khadr-court-sketch-2-september-2013 jennifer poburan(cbc)

by the BASICS Editorial Committee

Dennis Edney has spent the last decade of his life defending Omar Khadr. He may have done more than any living person to rescue Khadr from the racist collusion of the Canadian and American governments, which together sought to keep him locked up in military prisons for the rest of his life. In return for thousands of hours of labour and endless stress, Edney has received some small amount of fame, a Wikipedia page, and next to no money. So he deserves immense praise and respect for his principled, decade-long stand.

However, the BASICS editorial team wishes to correct what we view as certain erroneous views about the “rule of law” which Edney expressed to his audience as a solid basis from which to oppose the government’s treatment of his client.

The rule of law is a phrase typically used to mean that everyone within a given country is subject to a single set of laws—both private citizens and the government. If the government or any citizen appears to have broken the law, the police have a responsibility to investigate, and the state has a responsibility to prosecute any crime uncovered. If the prosecution makes a case which a jury can be convinced is true, a person is deemed guilty, convicted, and receives a sentence.

Canada is a country in which, supposedly, the rule of law applies. When speaking of Omar Khadr’s treatment, Edney continually referred to the need to follow the rule of law, cultivate respect for the rule of law among politicians and ordinary people, and rely on the law for protection and the defence of one’s rights. His condemnation of Khadr’s treatment, in other words, was not that it was merely brutal, but more importantly that it was illegal .

What is important, in our view, is that what is evil and racist is not necessarily the same thing as what is illegal. That the government refused to protect one of its citizens and knowingly left him to the tender mercy of American “enhanced interrogation techniques” is clear; that by doing so it broke the law is not.

If, in this case, it actually did break the law, we can be very certain that no Canadian Prime Minister or Foreign Minister responsible for these actions will actually be brought to punishment. And if it did not break the law, it seems quite clear to us that the law does not exist to protect Canadian citizens.

We hear distantly, from the ranks of liberal policy-makers, opinion-writers, and analysts, a cry go up: “This is going too far! A single example of abuse doesn’t prove that the whole system must come down.”

And, if only the single example existed, the argument would be true. BASICS exists, however, to prove the opposite: where laws exist to protect working people, Canada’s indigenous population, migrant workers, racialised individuals, women, and queer and trans folk, they are extensively and routinely violated by the Canadian government, its officials, its police forces, and its army. Very often, however, there are either no laws, or the laws simply exist to aid in oppression and exploitation.

The way in which the Canadian state has interacted with Onkwehonwe (First Nations) peoples provides an object lesson in a whole legal regime designed explicitly to destroy a population and its way of life. The routine seizure of Indigenous children by child welfare authorities on the slimmest pretexts, the serene disregard of investigators for the extensive sex-trafficking and murder of Indigenous women, the everyday brutality with which police treat Indigenous men (exemplified by but not limited to so-called “starlight tours”), and the undisguised glee with which policymakers and bureaucrats seize the land of bands across the country and distribute it to resource extraction companies such as Enbridge and Barrick Gold: all of these taken together form a genocidal policy, in some ways sanctioned by the law, in other ways against it, but in general, simply outside its purview.

What we mean is that no case in any Canadian court will ever be able to stop the genocide of Canada’s Indigenous peoples. Telling Indigenous people to have respect for the law or to address their concerns with recourse to law, is to tell them to accept slow strangulation, isolated from reliance on one another.

It is the position of BASICS that the same is true for Black and racialised people, trans people, working people, women, migrants, and the whole spectrum of oppressed peoples in Canada.

The law will never go after the cop who killed Jermaine Carby last September (whose name the Peel Police still refuse to publish). The law drags its feet year after year in punishing James Forcillo, the murderer of Sammy Yatim.

Therefore, when Dennis Edney stands up in front of an audience of Muslim Canadians and explains to them that Guantánamo Bay is uniquely horrible as “a world outside the reach of the law”, we regard this as evidence of either some naiveté on his part or an explanation concocted to justify his profession.

The law certainly exists in Guantánamo, as it does in Canada. It simply decides to recognise some wrongs and not others. When a torturer in Guantánamo beats his prisoner, the law is perfectly silent, as it is when a Canadian police officer executes a young Black man in the street. In both places, the law offers certain rights, privileges and protections to everyone—on paper. In both places, when we see the law in action in real life, we recognise very quickly that these rights, privileges, and protections mostly exist for white people and rich people and mostly don’t exist for anyone else.

Edney believes, correctly, that the government in power right now is subverting the law in service of a racist agenda. But he also believes that if the dispossessed only speak loudly enough, if we only demand firmly enough, if we only elect a liberal enough government, that the law can be turned to our advantage. In this respect, he believes in a fictional equality. Every guard at Guantánamo knows, like every TPS pig who’s assaulted a kid for giving him attitude knows, that the law serves those who enforce it.

(Photo Credit: Jennifer Poburan/CBC)