Supreme Court Dispatch, Eh
How the United States' never-ending legal mess at Gitmo is spilling over into Canada.
Omar Khadr saw more legal action today in the span of an hour than he's experienced in the seven-plus years he's been held at Guantanamo Bay. Just as Khadr's plight was the subject of an inquiry before the Canadian Supreme Court, which was looking into whether Khadr needs to be forcibly extricated from his American captors, U.S. Attorney General Eric Holder made his American captors appear even more suspicious by announcing that, unlike some of the other detainees at Guantanamo, Khadr will never get a trial in civilian court. If today's oral arguments aren't enough to convince the Canadian Supreme Court to intercede on Khadr's behalf, maybe Holder's announcement will be.
Khadr, a Canadian, was 15 years old when he was captured in Afghanistan for allegedly throwing the grenade that killed a U.S. soldier. Now 23, he is the youngest prisoner and last Westerner at Gitmo. He was awaiting trial there by military commission—a trial that had been stayed by the Obama administration until today—when Holder announced that his military trial is on again. Holder also announced that several other detainees will be tried in federal court, ensuring that Khadr will receive second-tier justice while some of his fellow prisoners get the real stuff. Now the question is whether the Supreme Court—that would be Canada's Supreme Court, eh?—can order Khadr home.
Regardless of venue, the case against Khadr will have to contend with some uncomfortable facts. He was captured as a child soldier but offered none of the protections that warranted. Video surfaced last year of him weeping as he described being abused under detention. Khadr alleges that he has been shackled in stress positions until he wet himself, then used as a " human mop" to clean his own urine. In May 2008, Canada's Supreme Court ruled that Khadr's detention "constituted a clear violation of fundamental human rights protected by international law." And this morning the same court looked at a lower court ruling that demanded the government seek Khadr's repatriation.
Meanwhile, south of the border, Holder announced that while five of the Guantanamo detainees implicated in the 9/11 bombings, including Khalid Sheikh Mohammed, will be tried in a federal court in New York City, Khadr and several others will instead face trial before a military commission. As Morris Davis, the former chief prosecutor for the military commissions, argued earlier this week, the forum for each detainee seems to depend on the government's evidence against him. Since military commissions allow weaker evidence (like hearsay and coerced testimony), they are reserved for the weaker cases. Wrote Davis: "The evidence likely to clear the high bar gets gold medal justice: a traditional trial in our federal courts. The evidence unable to clear the federal court standard is forced to settle for a military commission trial, a specially created forum that has faltered repeatedly for more than seven years."
This morning's argument (you can, and really should, watch it here) before Canada's Supreme Court is striking. Not just because (unlike arguments before the U.S. Supreme Court) you could see all of its fabulousness on television. And not just because the justices include all sorts of quirky outliers, including women, people with French accents, and men with fantastic hair. (Canada is the kind of place in which Simon Potter, from Avocats Sans Frontiers, intervening in the case today for Khadr, speaks English with a Scottish accent yet argues his case to the justices in French.) It's mainly striking because Canada, for better or worse, is in a legal conversation with the rest of the world in a way the United States is not.
Throughout oral argument, which lasts all morning, foreign treaties and instruments are cited by both sides. The holdings of foreign courts are referenced, as are special rapporteurs from the United Nations. The justices struggle to find a link between their international treaty obligations and Canadian domestic law. Everyone concedes that what the rest of the world thinks doesn't decide this case one way or another. But neither do the justices or the lawyers pretend that the rest of the world is a barren legal wasteland.
Khadr's lawyers won an order from a federal court, reaffirmed by an appeals court, that his rights under the Canadian Charter of Rights and Freedoms were breached when Canadian officials, knowing he'd been tortured, nevertheless interviewed him at Guantanamo. The appeals court ordered that he be repatriated to Canada. Yet Prime Minister Stephen Harper of Canada has not requested repatriation, and the Canadian government warns in this case that no court in the world has ever required that a government intervene to help its citizens detained on foreign soil.
A lawyer from Canada's Justice Department, Robert Frater, tells the court this morning that Khadr's charter rights have not been breached and that "the courts have no more authority to order the government to request repatriation than to order the government to recall an ambassador or amass battleships." Frater says the Canadian government has declined to seek repatriation because Harper "wanted to allow the process in the United States to play out." He says the Canadian government has a "history of asking that Khadr's rights be respected by the United States," but that Khadr has no right to ask the Canadian government to bring him home.
Justice Rosalie Silberman Abella—a cross between Celine Dion and Ruth Bader Ginsburg—asks why Canada can't be forced to repatriate Khadr in the face of "the ongoing intransigence of the American government." Frater says that even under international treaties prohibiting torture, a state has only a discretionary choice to intervene—no affirmative obligation or duty. Justice William Ian Corneil Binnie says the court can step in if there has been a constitutional breach. Frater replies, sassily: "Identify the charter breach and give a remedy if you can find one. But there isn't one!"
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Omar Khadr Janet Hamlin-Pool/Getty Images.