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Omar Khadr: Now What?

September 11, 2009

by Huguette Young

Puzzling, mystifying. There’s no clear explanation why Canadian Prime Minister Stephen Harper is sticking to his guns by refusing to repatriate Omar Khadr—the only Westerner still imprisoned at the U.S. detention center in Guantánamo, Cuba, under terrorism-related charges.

Khadr was only 15 years old when arrested in Afghanistan in July 2002 for allegedly throwing a grenade that killed a U.S. soldier during a firefight. Khadr maintains that he did not. After being treated for wounds at the Bagram Airbase in Afghanistan, he was transferred to Guantánamo where he alleges he was subjected to various kinds of torture.

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Is it personal? Is it ideological? Are there political calculations that come into play? Is he playing it safe with his electoral base in western Canada by refusing to appear soft on terror?

Whatever his reasons, Harper will now get his chance. The Supreme Court of Canada announced last week that it would expedite the government's appeal of orders to seek the return of 22-year-old Omar Khadr and set a hearing for November 13. Last month, the Federal Court of Appeal of Canada upheld a lower-court decision calling on Ottawa to press for Khadr’s return to Canada. In a statement released by Foreign Affairs Minister Lawrence Cannon, the government repeated that it was referring the case to the Supreme Court of Canada because Khadr was facing serious charges, including murder.

The Canadian government stated its case before the Federal Court of Appeal in April. It argued the repatriation of Khadr was a foreign policy issue and that the courts had no business “telling the government of Canada how to conduct its foreign affairs.” It added there was just “a remote possibility that the United States would comply” with the repatriation order.

Government lawyers also argued that “any mistreatment suffered by Mr. Khadr was at the hands of officials of the United States, not Canada.” Those arguments didn’t wash with the Federal Court of Appeal. On August 14, in a 2 to 1 decision, the Court reconfirmed the lower Federal Court’s findings.

In its majority decision, the Federal Court of Appeal recognized the United States was “primarily responsible for Mr. Khadr’s mistreatment.” But sleep deprivation techniques “to induce Mr. Khadr to talk” for intelligence purposes was Canadian officials’ doing. The Court found there was support for Khadr’s torture allegations, citing Khadr’s U.S. counsel, Lieutenant-Commander William Kuebler.

The Court also dismissed the government’s claim that there was only a slim chance the U.S. would send Khadr to Canada. It referred to an affidavit by Kuebler stating the U.S. government had taken efforts to do just that.  However, one dissenting judge wrote that Canada had taken all necessary means to protect Khadr while in detention and had not participated in or condoned his mistreatment.

In an earlier May 2008 decision,  the Supreme Court agreed Khadr was entitled to disclosure of parts of information collected by the Canadian CSIS (Canadian Security Intelligence Service) officials who had interviewed him at the Guantánamo detention center and shared it with U.S. authorities. The Court ruled Canada participated “in a process that was contrary to Canada’s human rights obligations” by sharing this information with U.S. authorities. It did not rule on Khadr’s right to be repatriated.

In its latest decision, the Federal Court of Appeal did remind the government that “all government action” is potentially subject to the Canadian Charter of Rights and Freedoms.

“While Canada may have preferred to stand by and let the proceedings against Mr. Khadr in the United States run their course, the violation of his Charter rights by Canadian officials has removed that option,” wrote the Court in its August ruling.

Obviously, the Harper government is ready to test that legal assertion before the Supreme Court.

The case may shape up to be a tug-of-war between the role of courts and the executive power when it comes to foreign affairs. The main issue is the government’s duty, if any, to protect its citizens abroad.

Alex Neve, secretary-general for Amnesty International Canada, says he’s totally puzzled but not surprised by Ottawa’s decision to appeal the Federal Court of Appeal’s ruling.

Harper is taking his fight to the highest court in the land because he’s “afraid of being associated sympathetically with the Khadr family,” he said in an interview. Khadr’s father, Ahmad Sa’id Khadr, an al-Qaeda sympathizer, was killed in a gunfight with Pakistani forces in 2003. Two of Omar Khadr’s brothers are also said to have ties with al-Qaeda.

But what about Khadr’s rights as a Toronto-born Canadian citizen? What about his rights as a child soldier, a status recognized by the Federal Court in April?

For Pascal Paradis, director-general with Avocats Sans Frontières (Lawyers without Borders) in Canada, the very fact Canadian officials are talking about the serious charges facing Khadr means they consider him a terrorist, albeit, a young terrorist. The presumption of innocence has gone out the window, he says.

Twice, Canadian courts have ruled that Khadr’s constitutional rights to a fair trial had been violated and that the government had failed to protect him from cruel treatment or punishment while in U.S. detention. Twice, the courts have ordered Ottawa to press the U.S. for Khadr’s return to Canada. Twice, the Harper government has appealed.

Previous Liberal governments who held basically the same position as the Harper government, are now saying Khadr should be brought back to Canada in light of recent court decisions. Harper is increasingly isolated on the international scene as all other Western nations have brought their nationals from Guantánamo home.

But Harper’s reasons for dragging out this issue are opaque at best. One plausible explanation is that these delay tactics will buy him time until the U.S. administration makes a decision about Omar Khadr’s fate for him.

This wait-and-see attitude may be popular in Canada’s western provinces where Harper is regaining ground after disastrous earlier showings following a near-defeat in the House of Commons last December. But it’s far from a courageous stand.

*Huguette Young is an americasquarterly.org contributing blogger based in Ottawa, Canada. To reach a blogger, send an email to: aqinfo@as-coa.org

Tags: Stephen Harper, Canadian Prime Minister, Omar Khadr

To speak with an expert on this topic, please contact the communications office at: communications@as-coa.org or (212) 277-8384.
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