Khadr's Fate

It’s time for Harper to listen to his better self and seek the repatriation of Omar Khadr from Guantanamo Bay.

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.