statism watch

Matters of law trump bureaucratic decisions. The inability to recognize this simple fact is one of the chief causes of moral rot in the present ‘conservative’ administration.

Flashback: PM must press U.S. for Khadr’s return from Guantanamo, court rules | Khadr’s military lawyer reinstated | Pentagon fires Omar Khadr’s lawyer | Arar in Canada when ’seen’ by Khadr, hearing told | Khadr, interred in rubble, couldn’t have thrown grenade in firefight: Evidence | Stop ignoring Omar Khadr case: Opposition MPs to PM | Bid to dismiss Omar Khadr’s charges fails | CSIS faces review in Khadr case | Low Level Driver Convicted Of Terror Charges While Bin Laden’s Senior Body Guard Was Let Go | Protesters push for Omar Khadr’s release | ‘You don’t care about me,’ Omar Khadr sobs in interview tapes | Canada’s top court orders partial access to Khadr transcripts | Canada losing moral standing over treatment of Omar Khadr: Dallaire | Khadr Defence chips away at military prosecution

Michelle Shepherd, Toronto Star
June 23, 2009

OTTAWA–The courts should not interfere with political decisions and force Prime Minister Stephen Harper to ask for Guantanamo Bay detainee Omar Khadr’s return, governments lawyers argued in a special appeals court hearing yesterday.

Justice Department lawyer Doreen Mueller conceded that she couldn’t “point to any risks” in seeking the Toronto-born captive’s return, but that the court could not overturn the government’s foreign affairs decisions.

Calling the case “difficult and challenging,” Mueller told the three Federal Appeals court justices that Canada had already done much to ensure Khadr’s safety.

“The government is very concerned about his treatment and detention in Guantanamo Bay,” Mueller said, before reading out dozens of notes sent by the Canadian government to the U.S. administration over the last seven years.

The diplomatic communications included failed requests by the former Liberal government to stop Khadr’s transfer to the U.S. Navy base in Cuba in the fall of 2002 and letters highlighting international law obligations that require Khadr be given special protection as a minor, since he was only 15 when shot and captured.

What government lawyers did not mention is an internal government email, obtained by the Toronto Star, where a high-ranking Canadian Foreign Affairs official later warned her political bosses to “claw back” on public comments that reinforced Khadr’s age. While diplomatic entreaties for special considerations may have continued, soon after that email was sent, Khadr’s age was no longer mentioned publicly.

The government is appealing a lower court ruling that concluded Canada had denied Khadr his constitutional right to a fair trial and violated international law protecting children captured in armed conflict.

Federal Court Justice James O’Reilly wrote in his April decision that Ottawa must request that the “United States return Mr. Khadr to Canada as soon as practicable.”

Mueller began her arguments stating that O’Reilly’s direction is “hypothetical,” since there is no guarantee that the U.S. administration would comply.

“Why would we ask ourselves what the likelihood of the response would be?” Justice Karen Sharlow interrupted.

“If the answer is no, Canada has given up nothing,” she continued.

If yes, “what’s the harm?”

After repeated questions from all three judges, Mueller said that Khadr is charged with “serious crimes,” resorting to the response given by Harper and other Conservative leaders when asked why Canada has not intervened in his case. She said it is premature to intervene until the U.S. administration decides how to proceed with Khadr’s case.

But when pressed about what risk a request would pose, Mueller said she could not list a specific example, but that the decision was made after weighing factors of national security and relations with foreign governments, against Khadr’s rights as a Canadian.

“So not your job, our job?” Sharlow asked.

The debate sums up the ongoing struggle between the courts and government that has been playing out in post-9/11 challenges, not just in Canada, but the U.S., UK and other western countries.

“You really do have this tension between standards of the Charter (of Rights and Freedoms) and other standards we recognize domestically and then what happens when either Canadian officials go abroad, or when Canada cooperates with other countries,” said Toronto law professor and author Kent Roach

“The concern is, there’s an incentive for a lot of countries to basically, contract out the dirty work.”

Khadr’s lawyers, Nathan Whitling and Dennis Edney, have fought numerous court challenges in Canada, winning a previous Supreme Court case where the high justices ruled that Canadian officials had participated in an illegal system by interrogating Khadr in Guantanamo in 2003.

But O’Reilly’s decision is the first time the courts have ordered the government to negotiate with the U.S. — advocacy that other Western government undertook to secure the release of their citizens.

Khadr, now 22, is the sole Western detainee remaining among Guantanamo’s 232 prisoners. He is charged with five war crimes, including murder for the death of U.S. Delta Force soldier Christopher Speer.

His case will resume next month when Pentagon prosecutors are expected to seek a delay until September, to give the Obama administration more time to review Guantanamo’s cases.

During his second day in office, U.S. President Barack Obama ordered the prison closed by January 2010. Detainees cleared for release will be sent home or to countries willing to offer refuge. Bermuda became the first territory last week to comply with Obama’s request for help by accepting four Uighur captives.

As many as 80 detainees, including the five alleged co-conspirators of the 9/11 attacks, are expected to go on trial before military commissions or federal prosecutions in the U.S.

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This entry was posted on Tuesday, June 23rd, 2009 at 9:14 pm and is filed under accountability, law, terror. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.