Keeping Khadr Out

By refusing to bring Omar Khadr home from Guantanamo, Stephen Harper is courting a political base that believes in security over human rights.

What is really behind the Harper government’s refusal to accept the Federal Court of Canada’s two rulings that it must request the return of Omar Khadr from the Guantanamo detention centre? I suggest it is neither limited to antipathy towards the Khadr family, nor a conviction that Omar must be punished for the alleged killing of a U.S. soldier in 2002 when the accused was 15 years old.

It may well be that the refusal is aimed at playing to a certain part of the Conservative base that regards the family, and Omar in particular, as not really qualifying for Canadian justice. These parties suggest that the Khadrs should still be subject to the rough justice sanctioned by the Bush-Cheney Administration.

The rulings of the Federal Court provide a clue. The Court of Appeal upheld the April ruling by Justice James O’Reilly, which requested that the Canadian government seek the repatriation of Khadr from Guantanamo because his rights under Section 7 had been breached by Canadian officials. According to the ruling, the officials violated the section when they interviewed Khadr at the detention centre and shared the results with U.S. officials.

In a two to one decision, the Federal Court of Appeal turned down the Harper government’s appeal that because of the seriousness of the charges against Khadr, he should continue to be in Guantanamo and face the military proceedings there. The Court also rejected that the ruling by Justice O’Reilly was a serious undermining of the ability of the Canadian government to conduct foreign affairs. The Appeals Court further ruled that Canada has an obligation to “protect Khadr from further abuse” and that by refusing to request his repatriation the government is continuing to violate his Charter rights.

It should not be forgotten that in June of last year, the Supreme Court of Canada ruled that Canadian security officials had to disclose records of interviews with Khadr, as well as information passed on to U.S. authorities. This ruling was based on the conclusion that the interrogation process at Guantanamo not only violated the U.S. Constitution, but also Canada’s international human rights obligations and the Canadian Charter of Rights. The ruling by the Supreme Court of Canada was, in effect, a rebuke – not to American constitutional values, but in fact to the values of George W. Bush and Dick Cheney that seemed to have condoned even the most serious violations of human rights in the cause of their version of national security.

The rulings of Justice James O’Reilly and the Federal Court of Appeals have followed this rebuke of the view that torture, and other violations of the Geneva Conventions, are permissible in the so-called war on terror.

The irony is that even the current U.S. government has rejected its predecessors’ worldview, which allowed a country governed by the rule of law and committed to upholding the fundamental rights of citizens and all human beings to sink to the level of their terrorist adversaries. President Obama is committed to closing Guantanamo, has prohibited the use of torture, and would probably welcome an effort on Canada’s part to seek the repatriation of the only remaining Western detainee at Guantanamo.

For reasons most likely concerned with playing to a political base, Prime Minister Harper seems determined to be the last stalwart proponent of the Bush-Cheney worldview – namely, that in this simplistic war on terror, fundamental human rights should not be an obstacle. It is interesting that in Harper’s first comment on the Federal Court of Appeal decision, he took great pains to point out that it was a split ruling. Omar Khadr may well have to wait through an appeal to the Supreme Court of Canada before he is brought home.