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KHADR'S FATE
The Mark
Feb 01, 2010
It's time for Harper to listen to his better self and seek the
repatriation of Omar Khadr from Guantanamo Bay.
Barbara Falk Associate Professor, Department of Defence Studies,
Royal Military College of Canada.
The Supreme Court of Canada has spoken with one unified voice: a court
cannot compel the federal government to request the repatriation of
Omar Khadr from Guantanamo Bay.
Overturning a Federal Court decision from last year, the Court
essentially threw the matter back into the lap of the Stephen Harper
government. More particularly, the judges have acted with restraint,
and, in so doing, confirmed that foreign policy is the prerogative
of the Crown alone. To do otherwise would have seriously trenched
upon the historical and constitutional responsibility of the elected
government. Never before has a court tried to tell the government
what its foreign policy should consist of, and it has appropriately
refrained from doing so now.
Nonetheless, this decision should not be interpreted as a slam-dunk
victory for the Harper government. The Court affirmed that the Charter
applies to the actions of Canadian officials in their dealings with
Canadian citizens abroad, particularly when the life or liberty
of those citizens is affected by those dealings. This could have
long-term ramifications for a more robust interpretation of consular
responsibilities.
In Khadr's case, Canadian intelligence agents interrogated him with
the full knowledge that he had been subjected to what is colloquially
known as the "frequent flyer" program - essentially a sleep deprivation
technique designed to soften him up for questioning.
The Court stated that the treatment of Khadr, who was only 15 when he
was shuttled to Guantanamo Bay, violates both customary international
law and particular covenants to which Canada is signatory - namely
the Convention Against Torture and the Convention on the Rights of
the Child. Moreover, the nine justices affirmed that Khadr's Charter
rights continue to be violated.
Although he remains detained, Khadr's future is to be decided via
constitutional tennis, and the ball is clearly in Harper's court. The
Court thought best to remind the government strongly that Khadr's
Charter rights have been and are currently violated, "...and then leave
it to the government to decide how best to respond to this judgment in
light of current information, its responsibility for foreign affairs,
and in conformity with the Charter."
So what happens now? The prime minister probably does not appreciate
being told that his current wait-and-see-what-happens-to-Khadr position
violates the young man's rights. And there is no guarantee that the
new military commission process - congressionally amended after the
U.S. Supreme Court threw out the previous approach in the Hamdan case
in 2006 - won't be litigated once again all the way up to the Supreme
Court and found in violation of both U.S. and international law.
All this will mean further delays. Meanwhile, Khadr gets older, his
legal team gets more sophisticated and determined, and the risk of
a fairly hefty civil action grows, both in likelihood and monetary
value. He is transformed from an unsympathetic defendant from a family
with a jihadist history to a symbol of a terrible miscarriage of
justice. At a certain point, the Canadian public becomes uncomfortable
with visiting the sins of the father upon the son. How much "choice"
did young Omar Khadr really exercise in joining the family business
of jihad in Afghanistan?
This problem is not going to go away soon, if ever, but Prime Minister
Harper does have a way out of the quandary. He can take the court's
message as an opportunity to seek the high ground. He's done this
before - with respect to the 2007 Maher Arar settlement and apology,
for example. Harper has also demonstrated a commitment to righting the
wrongs of the past, with his principled recognition of the Armenian
genocide and his apologies to aboriginal Canadians who attended
residential schools and Chinese Canadians regarding the head tax.
It's time for Harper to listen to his better and principled self. He
should use the ruling as a basis to negotiate with both the U.S.
government and Khadr's lawyers on a set of conditions that would
allow for his eventual return to Canada. Khadr's lawyer Barry Coburn
has said that he's willing to put everything on the table to expedite
the safe return of his client home, including stalling a civil action
and recognizing steps Canada would need to take to ensure national
security.
Other states and key allies of the U.S. have done so with respect
to their nationals interned at Guantanamo Bay, most notably the
United Kingdom and Australia. Furthermore, they have done so with no
detriment to their long-term security and defense relationships with
the U.S. Canada should do the same.
From: Emil Lazarian | Ararat NewsPress
The Mark
Feb 01, 2010
It's time for Harper to listen to his better self and seek the
repatriation of Omar Khadr from Guantanamo Bay.
Barbara Falk Associate Professor, Department of Defence Studies,
Royal Military College of Canada.
The Supreme Court of Canada has spoken with one unified voice: a court
cannot compel the federal government to request the repatriation of
Omar Khadr from Guantanamo Bay.
Overturning a Federal Court decision from last year, the Court
essentially threw the matter back into the lap of the Stephen Harper
government. More particularly, the judges have acted with restraint,
and, in so doing, confirmed that foreign policy is the prerogative
of the Crown alone. To do otherwise would have seriously trenched
upon the historical and constitutional responsibility of the elected
government. Never before has a court tried to tell the government
what its foreign policy should consist of, and it has appropriately
refrained from doing so now.
Nonetheless, this decision should not be interpreted as a slam-dunk
victory for the Harper government. The Court affirmed that the Charter
applies to the actions of Canadian officials in their dealings with
Canadian citizens abroad, particularly when the life or liberty
of those citizens is affected by those dealings. This could have
long-term ramifications for a more robust interpretation of consular
responsibilities.
In Khadr's case, Canadian intelligence agents interrogated him with
the full knowledge that he had been subjected to what is colloquially
known as the "frequent flyer" program - essentially a sleep deprivation
technique designed to soften him up for questioning.
The Court stated that the treatment of Khadr, who was only 15 when he
was shuttled to Guantanamo Bay, violates both customary international
law and particular covenants to which Canada is signatory - namely
the Convention Against Torture and the Convention on the Rights of
the Child. Moreover, the nine justices affirmed that Khadr's Charter
rights continue to be violated.
Although he remains detained, Khadr's future is to be decided via
constitutional tennis, and the ball is clearly in Harper's court. The
Court thought best to remind the government strongly that Khadr's
Charter rights have been and are currently violated, "...and then leave
it to the government to decide how best to respond to this judgment in
light of current information, its responsibility for foreign affairs,
and in conformity with the Charter."
So what happens now? The prime minister probably does not appreciate
being told that his current wait-and-see-what-happens-to-Khadr position
violates the young man's rights. And there is no guarantee that the
new military commission process - congressionally amended after the
U.S. Supreme Court threw out the previous approach in the Hamdan case
in 2006 - won't be litigated once again all the way up to the Supreme
Court and found in violation of both U.S. and international law.
All this will mean further delays. Meanwhile, Khadr gets older, his
legal team gets more sophisticated and determined, and the risk of
a fairly hefty civil action grows, both in likelihood and monetary
value. He is transformed from an unsympathetic defendant from a family
with a jihadist history to a symbol of a terrible miscarriage of
justice. At a certain point, the Canadian public becomes uncomfortable
with visiting the sins of the father upon the son. How much "choice"
did young Omar Khadr really exercise in joining the family business
of jihad in Afghanistan?
This problem is not going to go away soon, if ever, but Prime Minister
Harper does have a way out of the quandary. He can take the court's
message as an opportunity to seek the high ground. He's done this
before - with respect to the 2007 Maher Arar settlement and apology,
for example. Harper has also demonstrated a commitment to righting the
wrongs of the past, with his principled recognition of the Armenian
genocide and his apologies to aboriginal Canadians who attended
residential schools and Chinese Canadians regarding the head tax.
It's time for Harper to listen to his better and principled self. He
should use the ruling as a basis to negotiate with both the U.S.
government and Khadr's lawyers on a set of conditions that would
allow for his eventual return to Canada. Khadr's lawyer Barry Coburn
has said that he's willing to put everything on the table to expedite
the safe return of his client home, including stalling a civil action
and recognizing steps Canada would need to take to ensure national
security.
Other states and key allies of the U.S. have done so with respect
to their nationals interned at Guantanamo Bay, most notably the
United Kingdom and Australia. Furthermore, they have done so with no
detriment to their long-term security and defense relationships with
the U.S. Canada should do the same.
From: Emil Lazarian | Ararat NewsPress