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.

Omar Khadr sketch. Click image to expand.
Omar Khadr

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.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

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.

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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!"

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.

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.

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