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  • Khadr's Fate

    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
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