Somehow I am sceptical about the supposed danger that Harper faces if he does nothing--which is exactly what I expect him to do. While legal theorists and human rights activists are rightly concerned about human rights the government's violation of them in Khadr's case, Khadr is quite unpopular and human rights apparently are only for those not accused of being terrorists. One only needs to look at the case Obama who is arguably a bit more progressive than Harper and certainly knows more about law. The Obama administration is content to hold 47 Guantanamo suspects indefinitely without trial. So much for habeas corpus. Why have a Star Chamber court when you just imprison people and throw away with the key with no trial at all. Where is the outrage at this? Compared to this Harper's transgressions are hardly newsworthy.
This is from the Star.
Back to Walkom: A whiff of danger for Stephen Harper
Walkom: A whiff of danger for Stephen Harper
January 30, 2010
Thomas Walkom
With its deftly worded decision in the Omar Khadr case, the Supreme Court has put Stephen Harper's government on notice that no, it cannot simply abandon the Canadian citizen now imprisoned as an alleged war criminal at Guantanamo Bay.
It has also put its considerable moral weight on the side of those who have argued that the youthful Canadian, captured in Afghanistan when he was 15, has been shabbily treated by successive Liberal and Conservative governments.
In their judgment, the nine justices of the nation's top court unanimously ruled that Canada's participation in illegal and coercive interrogations at the U.S. prison camp on Cuba clearly continue to violate Khadr's constitutional rights.
They said that as a result, the 23-year-old Toronto-born man deserves justice.
In what was a partial success for the government, the court declined to say what form this justice should take.
It said it didn't have enough information, particularly about diplomatic negotiations between Canada and the U.S., to uphold a lower court ruling ordering Ottawa to press the Americans for Khadr's repatriation.
And it said it didn't know if such a request would even accomplish anything.
But the judges did make it clear that they expect the federal government to do something.
"We ... 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 (of Rights and Freedoms)," the court said.
For the Conservative government, Friday's ruling is a most hollow victory.
It had gone to court arguing that government alone has the right to conduct foreign affairs and that the courts should butt out.
In their ruling yesterday, the judges explicitly rejected this claim. They said that all government actions – including those in the field of foreign policy – must conform to the Constitution and that judges have the right to intervene and order changes when this condition is not met.
However, they also said that the courts should exercise this right cautiously since judges don't usually know all of the intricacies of foreign affairs.
What Friday's ruling will do for Khadr is uncertain. While indicating that the government should do something for the imprisoned Canadian, the court did not demand anything specific.
For Harper, however, the ruling carries a whiff of political danger.
True, Omar Khadr is not universally popular in Canada. He is accused of fighting on the side of the Taliban in Afghanistan and of killing a U.S. soldier during a battle there.
But Harper is not universally popular either. More to the point, his casual indifference toward Khadr seems to mirror his government's attitude to other Canadian citizens who have found themselves in trouble abroad.
The great irony is that the worst abuses cited in yesterday's court decision – such as Khadr's subjection to sleep deprivation – occurred when the Liberals were in office. But it is Conservative Harper who has chosen to be the standard-bearer for those who misused Khadr during his seven years at Guantanamo Bay.
And it is Harper who argues that the U.S. military commission system – regardless of its gaping legal flaws – should be allowed to run its course.
Now that the top court has weighed in, that I-don't-give-a-damn position may no longer be as politically astute as it once was.
Thomas Walkom's column appears Wednesday and Saturday.
Sunday, January 31, 2010
Friday, January 29, 2010
Supreme Court rules that Harper need not try to repatriate Khadr.
Although the Court did not order Harper to ask for the repatriation of Khadr it did note that Khadr's human rights were violated by Canadian officials. Of course the Harper government will just ignore this part of the ruling. No officials will suffer any penalties. Canada is the only country not to try to repatriate its citizens from Guantanamo. Khadr will be left to be tried by a US military tribunal most likely even though he should have been treated as a child soldier.
Khadr repatriation overturned by top court
By Emily Chung, CBC News
Omar Khadr shown at a U.S. military hearing in Guantanamo Bay, Cuba, in January 2009. (Canadian Press) The Supreme Court of Canada has overturned lower-court orders that the federal government must try to repatriate Toronto-born Omar Khadr from the U.S. military prison in Guantanamo Bay.
However, the top court agreed Canadian officials violated Khadr's human rights, and that he continues to be threatened by the effect of those violations.
In a unanimous decision released Friday, the court declared that Canadian officials breached Khadr's right to life, liberty and security of the person under the Charter of Rights and Freedoms.
However, it concluded that ordering the government to ask the U.S. for Khadr's repatriation to stop the continuing violation of his rights would interfere with the government's jurisdiction over foreign relations. Therefore, it chose not to issue the order, even though it had the authority to do so.
"We … 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," the ruling said.
Khadr, 23, has been imprisoned at Guantanamo Bay, Cuba, since he was arrested in Afghanistan at age 15, accused of throwing a grenade that killed a U.S. soldier. He is scheduled to be tried in July by a U.S. military court on charges of murder, conspiracy and support of terrorism.
Charter rights violated
Details of the Supreme Court ruling
The Supreme Court ruled that Section 7 of the Canadian Charter of Rights and Freedoms was breached in Omar Khadr's case, as Canadian officials contributed to the violation of his rights to life, liberty and security of the person.
It noted that CSIS officials obtained evidence from Khadr under "oppressive circumstances" during interrogations at Guantanamo Bay in 2003 and then shared that evidence with U.S. officials. The ruling said the interrogation "offends the most basic Canadian standards about the treatment of detained youth suspects," as:
Khadr was a minor and had been denied adult counsel.
He had been repeatedly deprived of sleep over a three-week period using a technique designed to make detainees more compliant.
The interrogation was designed to elicit statements about "the most serious criminal charges."
The information was to be shared with U.S. prosecutors.
The court agreed that Khadr's rights continue to be violated given the role of the information in his upcoming trial. It also concluded that bringing Khadr back to Canada would stop the violation of his rights by preventing him from facing trial.
However, it said ordering the government to demand Khadr's repatriation was not a suitable remedy for the violation of his rights as:
It gives too little weight to the government's constitutional responsibility to make decisions on matters of foreign affairs in the context of complex circumstances and Canada's national interest.
The court lacks the government's knowledge of foreign relations. "We do not know what negotiations may have taken place or will take place between the U.S. and Canadian governments over the fate of Mr. Khadr.
Therefore, the court felt it was not appropriate to give direction to the government about diplomatic steps to address the rights breaches.
Khadr's lawyers had asked for a judicial review of the government's decision not to request his repatriation. They argued that returning him to Canada would stop the violation of his human rights.
The lawyers alleged the violations were due in part to Canadian intelligence officials who interrogated him at Guantanamo Bay in 2003-04, knowing he had been repeatedly deprived of sleep, and passed the information on to U.S. officials.
The Federal Court of Canada had agreed and ordered the government to request his return in April 2009. A panel of the Court of Appeal upheld that ruling in 2-1 decision in August, prompting the government to appeal to the Supreme Court.
The Supreme Court decision doesn't prevent the government from voluntarily asking for Khadr's return. However, even if the government does make the request, there is no guarantee that U.S. officials would agree.
Nathan Whitling, Khadr's lawyer, said he didn't think Khadr would be surprised by Friday's ruling.
"He has never had a whole lot of hope in terms of the Canadian government, in any event," Whitling said.
Whitling said he doesn't expect further assistance from the Canadian government and the focus of Khadr's legal team will now shift to the trial proceedings.
Dennis Edney, another one of Khadr's lawyers, said he will be heading to Guantanamo Bay on Monday, where he will continue to negotiate with U.S. officials and inform Khadr of the ruling. Edney said that while he doesn't have faith in the Canadian government's conduct, he will try to give Khadr a more optimistic message.
"I will say that the court has the belief that ... the Canadian government has a moral conscience and will do the right thing," he said. "I will tell him, 'And that's what we have to pray and hope.'"
Meanwhile, Liberal Leader Michael Ignatieff said the ball is now in the government's court.
"The only thing it can’t do is to do nothing because the court clearly said that the rights of a Canadian citizen have been violated."
He added that the Liberals recognize that Khadr was a child soldier and had been calling for him to be brought back to Canada from the beginning.
But Edney said neither Stephen Harper's Conservative government nor the Liberal government before it did anything about Khadr's situation.
Human rights group Amnesty International echoed the opinion that the government has to respond to the ruling.
"It is not open to the Canadian government to just yawn and not take that seriously now," said Alex Neve, a spokesman for the group.
"There has to be an effective response that demonstrates that this government is prepared to stand up for rights of Canadians and is prepared to take seriously judgments of the Supreme Court of Canada, even if the court did not feel inclined to say specifically what the Canadian government has to do here."
Read more: http://www.cbc.ca/canada/story/2010/01/29/omar-khadr-supreme-court.html#ixzz0e24HpFIz
Khadr repatriation overturned by top court
By Emily Chung, CBC News
Omar Khadr shown at a U.S. military hearing in Guantanamo Bay, Cuba, in January 2009. (Canadian Press) The Supreme Court of Canada has overturned lower-court orders that the federal government must try to repatriate Toronto-born Omar Khadr from the U.S. military prison in Guantanamo Bay.
However, the top court agreed Canadian officials violated Khadr's human rights, and that he continues to be threatened by the effect of those violations.
In a unanimous decision released Friday, the court declared that Canadian officials breached Khadr's right to life, liberty and security of the person under the Charter of Rights and Freedoms.
However, it concluded that ordering the government to ask the U.S. for Khadr's repatriation to stop the continuing violation of his rights would interfere with the government's jurisdiction over foreign relations. Therefore, it chose not to issue the order, even though it had the authority to do so.
"We … 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," the ruling said.
Khadr, 23, has been imprisoned at Guantanamo Bay, Cuba, since he was arrested in Afghanistan at age 15, accused of throwing a grenade that killed a U.S. soldier. He is scheduled to be tried in July by a U.S. military court on charges of murder, conspiracy and support of terrorism.
Charter rights violated
Details of the Supreme Court ruling
The Supreme Court ruled that Section 7 of the Canadian Charter of Rights and Freedoms was breached in Omar Khadr's case, as Canadian officials contributed to the violation of his rights to life, liberty and security of the person.
It noted that CSIS officials obtained evidence from Khadr under "oppressive circumstances" during interrogations at Guantanamo Bay in 2003 and then shared that evidence with U.S. officials. The ruling said the interrogation "offends the most basic Canadian standards about the treatment of detained youth suspects," as:
Khadr was a minor and had been denied adult counsel.
He had been repeatedly deprived of sleep over a three-week period using a technique designed to make detainees more compliant.
The interrogation was designed to elicit statements about "the most serious criminal charges."
The information was to be shared with U.S. prosecutors.
The court agreed that Khadr's rights continue to be violated given the role of the information in his upcoming trial. It also concluded that bringing Khadr back to Canada would stop the violation of his rights by preventing him from facing trial.
However, it said ordering the government to demand Khadr's repatriation was not a suitable remedy for the violation of his rights as:
It gives too little weight to the government's constitutional responsibility to make decisions on matters of foreign affairs in the context of complex circumstances and Canada's national interest.
The court lacks the government's knowledge of foreign relations. "We do not know what negotiations may have taken place or will take place between the U.S. and Canadian governments over the fate of Mr. Khadr.
Therefore, the court felt it was not appropriate to give direction to the government about diplomatic steps to address the rights breaches.
Khadr's lawyers had asked for a judicial review of the government's decision not to request his repatriation. They argued that returning him to Canada would stop the violation of his human rights.
The lawyers alleged the violations were due in part to Canadian intelligence officials who interrogated him at Guantanamo Bay in 2003-04, knowing he had been repeatedly deprived of sleep, and passed the information on to U.S. officials.
The Federal Court of Canada had agreed and ordered the government to request his return in April 2009. A panel of the Court of Appeal upheld that ruling in 2-1 decision in August, prompting the government to appeal to the Supreme Court.
The Supreme Court decision doesn't prevent the government from voluntarily asking for Khadr's return. However, even if the government does make the request, there is no guarantee that U.S. officials would agree.
Nathan Whitling, Khadr's lawyer, said he didn't think Khadr would be surprised by Friday's ruling.
"He has never had a whole lot of hope in terms of the Canadian government, in any event," Whitling said.
Whitling said he doesn't expect further assistance from the Canadian government and the focus of Khadr's legal team will now shift to the trial proceedings.
Dennis Edney, another one of Khadr's lawyers, said he will be heading to Guantanamo Bay on Monday, where he will continue to negotiate with U.S. officials and inform Khadr of the ruling. Edney said that while he doesn't have faith in the Canadian government's conduct, he will try to give Khadr a more optimistic message.
"I will say that the court has the belief that ... the Canadian government has a moral conscience and will do the right thing," he said. "I will tell him, 'And that's what we have to pray and hope.'"
Meanwhile, Liberal Leader Michael Ignatieff said the ball is now in the government's court.
"The only thing it can’t do is to do nothing because the court clearly said that the rights of a Canadian citizen have been violated."
He added that the Liberals recognize that Khadr was a child soldier and had been calling for him to be brought back to Canada from the beginning.
But Edney said neither Stephen Harper's Conservative government nor the Liberal government before it did anything about Khadr's situation.
Human rights group Amnesty International echoed the opinion that the government has to respond to the ruling.
"It is not open to the Canadian government to just yawn and not take that seriously now," said Alex Neve, a spokesman for the group.
"There has to be an effective response that demonstrates that this government is prepared to stand up for rights of Canadians and is prepared to take seriously judgments of the Supreme Court of Canada, even if the court did not feel inclined to say specifically what the Canadian government has to do here."
Read more: http://www.cbc.ca/canada/story/2010/01/29/omar-khadr-supreme-court.html#ixzz0e24HpFIz
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