Omar Khadr: The Supreme Court Made The Right Call

(Updated below)

Omar Khadr is not coming home yet – but the Supreme Court of Canada has moved his repatriation considerably closer (emphasis added):

In an 9-0 ruling this morning, the Court said that Canada violated Mr. Khadr's Charter rights by participating in illegal interrogation methods which included sleep deprivation.

It stressed that the constitutional breach is ongoing and “continues to this day.”

However, the court said that before stepping in to dictate a Canadian response on a sensitive question of foreign policy, the federal government must be given a chance to rectify Mr. Khadr's plight.

But should the government fail to act, the court warned that it has the power to move more overtly to aid Mr. Khadr.

The Court upheld an earlier Federal Court decision that Mr. Khadr's right to life, liberty and security had been violated, but it refused to go as far as the lower court had gone in ordering Mr. Khadr to be brought home.

“Consistent with the separation of powers and the well-grounded reluctance of courts to intervene in matters of foreign relations, the proper remedy is to grant Mr. Khadr a declaration that his Charter rights have been infringed, while leaving the government a measure of discretion in deciding how best to respond,” the Court said.

However, the judges could scarcely have been tougher in their finding that Mr. Khadr was mistreated during interrogations in 2003 and 2004.

“Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person, and was alone during the interrogations,” it said.

“Interrogation of a youth to elicit statements about the most serious criminal charges – while detained in these conditions and without access to counsel and while knowing the fruits of the interrogations would be shared with the U.S. prosecutors – offends the most basic Canadian standards about the treatment of detained youth suspects.”

Since the information obtained in the interrogation sessions may still be used against Mr. Khadr in the U.S proceedings, the Court said that, “the effect of the breaches cannot be said to have been spent.”

However, it noted that the fluid state of terrorism proceedings in the U.S at the moment dictates that courts ought to take a cautious approach and defer to government officials, who have a much broader and more nuanced sense of foreign policy considerations and the details of Mr. Khadr's case.

But if the government refuses to take adequate action to rectify the abuse of Mr. Khadr's rights, the Court warned, “courts are empowered to make orders ensuring that the government's foreign affairs prerogative is exercised in accordance with the constitution.”

Advocates for Mr. Khadr showed disappointment that the Court did not directly order Mr. Khadr's repatriation, but focused on its clear finding of a continuing rights violation.

“The government can continue to sit on its hands – and therefore look like it is being completely unresponsive to a unanimous decision from the highest court in the land,” said Alex Neve, a spokesman for Amnesty International.

Mr. Neve said that repatriation continues to be the best possible solution to remedy Canada's illegal acts.

“We are not at all naïve here,” he said. “Clearly the government has dug in its heels for several years now. We are not naïve enough to think it will happen without pressure.

“We are not going to wait six months. We are not going to wait six months. We want there to be a reaction to this decision immediately.”

Sukanya Pillay, security director of the Canadian Civil Liberties Association, said the ruling means “in effect, they have thrown the ball back into the government's court – but with clear rules.”

“The judicial branch doesn't want to tread on the executive branch, but they have given clear signals,” she said.

“The important thing is they have said we are willing to look at whether the government action is unconstitutional...Now, the important thing is what happens next. It was vague before as to why we would have to do anything. Now it is clear why because there is a clear constitutional breach.”

Ms. Pillay declined to even discuss other options besides repatriation. “Its our constitutional law that when there is a breach of our Charter, there has to be a remedy,” she said. “It is clear now that there was a breach to Section 7 of the Charter – and the government has to act.”

If Mr. Khadr is repatriated, she said that there is no reason he cannot be tried in a Canadian court. Any evidence that was illegally obtained would be subject to Canadian rules of admissibility – as it ought to be – she said.

The Court had been presented with two starkly different options at Mr. Khadr's hearing last November. The first was to order the 23-year-old man's repatriation based on his rights having been violated during interrogation sessions.

The alternative – urged by lawyers for the federal government – was to adopt a hands-off attitude and let the U.S. go about prosecuting Mr. Khadr before a military commission.

The case was as politically-charged as any the Court has heard in recent years; a battle over the notion that judges can tie government hands on matters of foreign policy where constitutional rights are at stake.

Lawyers for a host of human rights organizations exhorted the Supreme Court to flex its constitutional muscle and come to Mr. Khadr's rescue.

The pro-Khadr groups depicted him as being not a terrorist, but a frightened child who wept for his mother after his arrest and implored his country to help him. They contended that Canada's passive stand in the case made it little better than the troops who subjected Mr. Khadr to sleep deprivation and shone bright lights for hours in his wounded eyes.

Mr. Khadr's supporters also made it clear that by insisting on Mr. Khadr's repatriation, the Court would be saying that the federal government effectively colluded in an extreme abuse of a citizen's rights abroad.

So.

The Court has stated in no uncertain terms that Omar Khadr's rights have been violated by the government - and that they continue to be so.

The Court also stated in no uncertain terms that Omar Khadr must be repatriated by the government.

The court also correctly respected the separation of powers by giving a chance to the government to act accordingly to its conclusions and rulings. However, the government has not dodged the bullet in any way whatsoever, for the Court has stated the warning in no uncertain terms that it will order Omar Khadr's repatriation nonetheless should the government either A) refuse to do so; or B) simply procrastinate on the matter.

What this all means is that Harper and his Harpies can no longer pretend that the matter lies in the hands of the US government.

Harper and his Harpies can no longer use the excuse that the government of Canada should not "interfere" in law and justice proceedings in the US.

No - they can't play politics (re: blame the Liberals) with, or lie about, this anymore ... because the ball has been put squarely in their own hands.

Where it always belonged to begin with.

The Supreme Court made the right call, folks.

It made the just, constitutional call.

This is a definite victory for our bill of rights, our constitution and our separation of powers.

Any conclusion to the contrary is either pure hysterics, willful mendacity and/or intellectual dishonesty.

I am proud today of my constitution, of my country.

So should you be, folks.

The next step (that is, aside from securing Omar Khadr's repatriation once and for all)?

Why, find a way to bring the matter of the callous criminal negligence of the Harper government regarding the abuse of Afghan detainees - of course.

Because obviously the uncaring, ignorant callousness displayed so far by Harper and his Harpies regarding Omar Khadr's plight likewise dictated their general attitude regarding the Afghan detainee abuse issue.


Udpate 01/30/10: In the comments herein, I wrote the following:

Fortunately, SCOC's ruling was dead on - and Omar Khadr will be repatriated.

How soon this will happen now simply depends on whether the Harper government wants to be humiliated by refusing to act and be smacked down by a follow-up SCOC's order to that effect, or not.

I'm betting on the 7th principle of incompetence here and predict that a SCOC's order will be necessary.

We'll see ...

It didn't take long to be provided evidence that my bet will indeed turn out to be the right one (emphasis added):

Yet a statement from Justice Minister Rob Nicholson Friday raised the possibility that the Harper government will refuse to act or that it will give a token response.

“The government is pleased that the Supreme Court has recognized the ‘constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada's broader interests,' ” Mr. Nicholson said.

He emphasized the gravity of the allegations against Mr. Khadr and noted that the Supreme Court overturned two lower court decisions by finding that the government is not required to ask for Mr. Khadr's return from the U.S. prison at Guantanamo Bay.

Yeah - and again neveryoumind that Omar Khadr was a kid (child-soldier) when he was "captured" and that any confession of his was illegally/unconstitutionally coerced (if not by torture).

So ruled SCOC (see also above; emphasis added):

The court refrained from issuing a direct order to repatriate Mr. Khadr, reasoning that the fluid state of terrorism proceedings dictates a cautious approach. It said that government officials have a much broader and more nuanced sense of foreign policy considerations and the details of Mr. Khadr's case.

But the court showed that a legal fist lies beneath its velvet glove. If the abuse of Mr. Khadr's rights is proven to be continuing, it warned that, “courts are empowered to make orders ensuring that the government's foreign affairs prerogative is exercised in accordance with the constitution.”

(...) The judges could scarcely have been tougher in their finding that Mr. Khadr was mistreated during interrogations in 2003 and 2004.

“Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person, and was alone during the interrogations,” they said.

“Interrogation of a youth to elicit statements about the most serious criminal charges – while detained in these conditions and without access to counsel and while knowing the fruits of the interrogations would be shared with the U.S. prosecutors – offends the most basic Canadian standards about the treatment of detained youth suspects.”

Since the information obtained in the interrogation sessions could still be used against Mr. Khadr in U.S proceedings, the court said, “the effect of the breaches cannot be said to have been spent.”

Mr. Khadr was severely wounded in a 2002 skirmish in which he is alleged to have thrown a grenade that killed a U.S. Special Forces medic. He was charged with murder and scheduled to go before a Guantanamo Bay military commission.

Although we are being treated with more obvious, hypocritical self-image preservation bluster/posturing on the part of the Harper government (we've become quite used to this), it looks like I may yet be proven right nevertheless - and won't be happy for it, definitely.

Then again, the Eight Principles of Incompetence appear to be always right on the money, especially in predicting how incompetents behave and/or react - unfortunately.

So I reiterate nonetheless: "We'll see" whether a follow-up SCOC's order will be required or not for the repatriation of Omar Khadr.

Over to you Prime Minister, indeed ...