How the United States' never-ending legal mess at Gitmo is spilling over into Canada.

The law, lawyers, and the court.
Nov. 13 2009 5:36 PM

Supreme Court Dispatch, Eh

How the United States' never-ending legal mess at Gitmo is spilling over into Canada.

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Justice Morris J. Fish notes that Frater's timeline of the Canadian government's interventions in Khadr's plight ends three and a half years ago. He asks to be updated. Frater says he wasn't trying to hide anything. Says Fish: "I didn't think you were trying to hide anything. I was just asking if you had anything to hide." Frater replies, "I celebrate what's in the record." He says the Canadian government's involvement in questioning a sleep-deprived Khadr is not complicity in torture. And even if the court finds that the Canadian officials' questioning of Khadr violated the charter, the remedy isn't to order Khadr back to Canada. It's not to use the fruits of the interrogation. Since Khadr refused to answer any questions, this isn't a problem. Case closed!

But Abella asks what affirmative duties Canada owes Khadr under another pesky international treaty: the U.N. Convention on the Rights of the Child. Replies Frater: "If we detained him we'd have full obligations. But we did not." The international treaties are not "self-executing," and for the court to enforce them is to cut the Canadian Parliament out of the picture.

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Binnie asks whether it matters that the United States itself has deemed the conditions of Khadr's detention illegal. Frater replies that the U.S. process has "been fixed." Binnie replies that this is not at all clear. Frater reassures him that someday, Khadr can bring all these complaints up at his U.S. trial.

Nathan Whitling represents Khadr, and his problem is that while the court clearly feels for his client, it can't seem to find a way to bring him home. As he begins to speak, he notes that he has just received an unconfirmed report that his client will be tried by military commission, not in a civilian court. He says, sadly, that it appears Khadr will stay at Gitmo for a long time.

Justice Louise Charron asks whether the charter breach stems from Canada's participation in interrogating Khadr or in an affirmative duty to protect him. Whitling says both. He talks aboot international law and principles for some time before Charron stops him to ask where his "bridge" is between international and domestic law. Whitling says he is talking here about jus cogens—he spells it out slowly, like a good Canadian—which means "norms of international law" and "principles of foundational justice." At this point, I can't help but think that, if this were the U.S. Supreme Court, Justice Antonin Scalia would have run him through with a pointy sword by now. In fact, nobody seems to yell at the lawyers at all this morning—even when Whitling concedes that there aren't a lot of cases to support his point.

Whitling rests much of his argument on the fact that Canadian officials knew Khadr was sleep-deprived when they questioned him. But he concedes that Canada didn't seek this state of affairs or cause it to happen. Chief Justice Beverley McLachlin notes that one usually expects a remedy to "fix something up" and that while Khadr "has suffered greatly with great consequences," it's not clear that we can "fix that suffering by bringing him back home." Whitling says repatriating him would offer restitution. McLachlin replies that he should maybe find some cases that say that.

Justice Binnie asks if it would be OK if the court just issued a declaration in the case without ordering the executive to repatriate him. Whitling says, sassily, that "a declaration is of no value whatsoever to Mr. Khadr." Then a whole host of interveners, including Amenesty International, Human Rights Watch, and the Canadian Coalition for the Rights of Children, get time to argue on Khadr's behalf. The court grapples politely together for some principled reason to take the extraordinary step of ordering the Canadian government to take dramatic action in the realm of diplomacy and foreign policy.

A few still appear to hold out hope that Khadr will somehow get a fair trial from their kooky southern neighbors and put an end to this whole embarrassing affair. But Holder's announcement makes that seem ever more unlikely. In fact, by keeping Khadr in a second-class system and trying him with third-rate evidence, the Obama administration has pretty much guaranteed that the embarrassment over Omar Khadr is only just beginning.