Last weekend, the government of Canada did something its U.S. counterpart never has. As part of a legal settlement, Canada agreed to pay $10 million in damages to a former Guantánamo detainee and U.S. torture victim.
Seven years after the Canadian Supreme Court ruled that a citizen’s rights had been violated by his own government because of his detention and alleged torture in U.S. custody, former Guantánamo detainee Omar Khadr settled a lawsuit with the government for an apology and millions of dollars.
“Canada should be commended for taking this step,” said Laura Pitter, senior national security counsel for Human Rights Watch. “Unfortunately, the U.S. government, most responsible for Khadr’s mistreatment, has failed to fulfill its obligation to provide compensation and redress, not just in Khadr’s case but in the case of scores of other men wrongfully detained and tortured in U.S. custody.”
In 2015, after spending a decade in Guantánamo and three years in a maximum security prison in Ontario, the Canadian government released 28-year-old Khadr on bail. Khadr was only 15 in 2002 when he was captured and accused of throwing a grenade that killed an American soldier during a firefight at a suspected Al Qaeda compound.
He became the youngest prisoner ever held at Guantánamo Bay. Instead of treating Khadr like a child soldier and demanding his rehabilitation, the Canadian government sent intelligence agents to interrogate him. According court affidavits, Khadr told visiting Canadian officials that he had confessed under torture. He claims to have shown them his injuries, but the officials refused to help.
The details of Khadr’s decadelong legal battle are complicated, but the result is simple: Khadr, now 30 and released on bail, settled a lawsuit against the government for $10 million and an apology.
This is not the first time Canada has made payments to victims of U.S. torture. In 2007, the Conservative Canadian government agreed to pay $10 million to Maher Arar, another Canadian national, over its role in his rendition by the U.S. to Syria and subsequent torture. Three months ago, Canada agreed to pay three more torture victims whom they had helped render to foreign prisons.
And Canada is not alone. In 2008, Sweden paid $500,000 to a former terror suspect for handing him over to U.S. officials in 2002, who sent him to Egypt to be tortured. In 2010, Britain agreed to pay millions of pounds to 16 former Guantánamo detainees because of its role in their U.S. detention. The same year, Australia reached an settlement with Mamdouh Habib – an Australian national held at Guantánamo — for an undisclosed amount of money.
The U.S., however, has yet to pay out a cent in legal settlements to the roughly 700 men it has released from Guantánamo Bay who were all held without charge. And the U.S. has never compensated, let alone apologized, to any of its post-9/11 torture victims.
“I can’t remember any settlement awarding damages to Guantánamo detainees, nor I think to a victim of U.S. torture,” said Dror Ladin, an attorney with the ACLU who specializes in detention-related abuses, referring to the absence of U.S. compensation to its victims.
Part of the reason, according to Ladin, is that Congress passed a law in 2006 trying to prevent exactly that. The law bars courts from hearing detention-related damage claims from any noncitizen the U.S. has designated as an “enemy combatant.”
Ladin said the measure had been used by federal courts to dismiss at least three lawsuits from Guantánamo detainees. “There are real constitutional questions that are raised by leaving people without any remedy for constitutional violations,” Ladin said.
Another major obstacle to restitution for torture victims is that the U.S. broadly interprets certain immunity doctrines for national security officials. In 2012, the 9th Circuit Court of Appeals dismissed a lawsuit against John Yoo — the author of the so-called torture memos, the rationale the Bush administration used to justify harsh interrogations after 9/11 — arguing he had immunity because the definition of torture wasn’t firmly established.
Other cases have been thrown out because of secrecy, or on purely procedural grounds. The Obama administration invoked the state secrets privilege in 2010 to block a lawsuit against a Boeing subsidiary for helping the CIA transport detainees to its global network of secret prisons.
In one particularly outrageous case, two U.S. contractors (and citizens) were tortured in a U.S. maximum security prison in Baghdad after they were wrongly accused of smuggling weapons. But, in 2014, the 7th Circuit Court of Appeals denied damages, reasoning on purely procedural grounds that Congress had never legislated a federal cause of action, so they could not be awarded damages.
Ladin said U.S. courts are shy about allowing cases against national security officials to go forward. “Once you talk about cases that are overseas, or cases that involve the military, they’re extremely, extremely reluctant to allow those cases to go forward,” Ladin told The Intercept.
The extreme difficulty of holding U.S. officials accountable has enabled abuses beyond torture and indefinite detention. Despite sending some victims money under the table, the Obama administration has repeatedly argued in court that drone strike victims should not be allowed to sue the government for damages.