Friday, April 24, 2009

Against the appeal of the Khadr judgment

The Federal Court decision (pdf link here) ordering the Harper government to seek Omar Khadr's repatriation should not be appealed. For two sets of reasons, legal and political.


The principal legal reason not to appeal this decision is that it is a narrow decision. The Canadian government's "duty to protect" Khadr under the Charter that the judge articulated was not an expansive one that should warrant the government's apprehension. If we hear Mr. Harper or Mr. Cannon speaking about the need to assert an appeal in order to avoid onerous, expensive diplomatic obligations stemming from this Khadr decision, that's a red herring. Here are the paragraphs of the judgment that make it clear that the duty to protect Khadr is not a far-reaching principle but is tailored to the circumstances of the Khadr case, making it more difficult for the government to credibly argue the need to defeat this precedent (click to enlarge):

The duty to protect is couched as being applicable to "persons in Mr. Khadr's circumstances." That is narrow. Khadr's circumstances include those in para. 70 and his being an individual to whom the Convention on the Rights of the Child applies, significantly, but also the Convention against Torture and the Optional Protocol on the Involvement of Children in Armed Conflict. Khadr's circumstances also include the complicity of Canadian officials in a process that violated international law, by their questioning of Khadr at Guantanamo with the knowledge that he had been sleep deprived, i.e., tortured. The combination of Khadr's youth and the involvement of Canadian officials were clearly significant factors for the judge in this case. All of which makes it more difficult for Mr. Harper to find room to appeal, to argue that onerous obligations would be placed on the government as a result of this decision. It is narrow.

It's also difficult to see how they could argue against the very duty to protect, either. It flows principally from the international treaty obligations Canada is a signatory to, enumerated above.

And while the foreign case law cited in the decision is not binding in Canada, there are decisions of the Court of Appeal in the U.K. (Abbasi) and the South Africa Constitutional Court (Kaunda) that provide international indications that other countries are on the same road as this judge in terms of articulating this duty to protect. There's an inevitability factor at play.

Even if the Harper government wants to argue the grounds that foreign policy is the prerogative of the government, it's difficult to sustain that argument in this case where the government is implicated in the wrongdoing by having participated in the breach of his rights through that interrogation at Guantanamo. You can't say leave me to my own judgment in this case if it's been proven wrong.

They have recently demonstrated a capacity in a similar case to cut their losses if the writing is on the wall. Recall the Federal Court ordering the government to resume Canada's historical opposition to the death penalty abroad in the case involving Ronald Smith facing the death penalty in Colorado. The Harper government accepted that decision. They should do the same here.


Last week's release of the torture memos in the U.S. has made the substance of this judgment seem all the more appropriate and likely to gain support from Canadians. For Mr. Harper to be stubbornly insisting that “[t]he facts in our judgment have not changed,” is absurd. While the distinctive facts in Khadr's case may not have changed, the context has. The release of those memos has shone an even brighter light on the use of torture by the U.S. for a good week now. It might be a coincidence that this very clear, strong judgment in Khadr's favour comes within a week of the release of those memos, but the timing enhances Mr. Harper's positioning as being out of sync, aligned with the Guantanamo status quo crowd, the Cheneys and Fleischers of the Bush administration. Is this really where he wants to continue to be in the Obama era? The right political judgment, to appeal to a broader swath of Canadians is to separate himself, albeit as late in the day as it is, from that crowd.

Guantanamo is closing. There are no other western citizens other than Khadr there. And Harper's government has just been ordered by a Federal Court judge to repatriate him. Yet we know that the Conservative base may limit what the poorly polling Harper can do, leading him to appeal. If that's his choice, at least he will continue to expose his partisan priorities.

And as for the other major political actor here...if the Obama administration wants to unburden themselves of one more Guantanamo detainee, they might want to take note of a Canadian Federal Court having so ordered the Harper government to demand Khadr's repatriation and speed up their review. What choice would Harper have, if faced with not only a court decision but a request from the Obama legal team to take him back?