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Supreme Court deliberates Guantánamo prisoner’s repatriation

OTTAWA – Canada’s highest court debated whether the federal government has an obligation to repatriate the country’s last remaining detainee at Guantánamo, Omar Khadr, on Friday. The same day, the United States Department of Justice announced that the U.S. will continue to prosecute Khadr by military commission.

Khadr’s Canadian attorney, Nathan Whitling, announced the U.S. government’s decision to the court, and drew attention to the growing urgency of his client’s circumstances. Whitling argued that the Canadian government had failed in its duty to protect Khadr, and asked that the Court order the federal government to repatriate his client at the earliest possible date.

The 23-year-old Canadian has been held at Guantánamo Bay since 2002. He is charged with war crimes, and accused of having thrown the hand grenade that killed an American soldier in Afghanistan. He was 15 years old at the time of arrest, making him a minor under Canadian and international law. Khadr has been subjected to crude interrogation methods: sleep deprivation and sexual humiliation at Guantánamo.

Whitling argued that the federal government’s decision to send Canadian Security Intelligence Service (CSIS) agents to interrogate Khadr at Guantánamo, knowing that he had been subject to torture, amounted to complicit participation and was a fundamental breach of Khadr’s rights under the Canadian Charter of Rights and Freedoms.

A Security Intelligence Review Committee report criticized CSIS for proceeding with the interrogation given that Khadr had been “kept incommunicado, and denied access to legal counsel, consular representation or family members.”

Though Chief Justice Beverley McLachlin recognized that Khadr had suffered over the course of his ordeal, she questioned whether it was within the Court’s jurisdiction to order the federal government to repatriate Khadr, and whether sufficient grounds could be established to permit such an ruling.

Federal lawyer Rob Frater told the justices that the Court has no authority to request Khadr’s repatriation.

“State to state representation is an area where the executive holds the full range of discretionary authority,” said Frater. “We are in the realm of diplomacy here. The government has the full authority to decide what sort of request [for repatriation], whether a request can be made, how it can be made, why it can be made, and what is the most effective way of having influence with the United States.”

The federal government has repeatedly told the media that Khadr faces serious charges, and that he will not be allowed to return to Canada until his prosecution in the U.S. is concluded.

Last August, the Federal Court of Canada ruled in favour of repatriating Khadr to Canada. The Harper government appealed the decision at the Federal Court of Appeals. The court, however, upheld the initial ruling, prompting the government to take the case to the Supreme Court – Canada’s highest legal authority.

Figures released earlier this month show that as of July, the federal government has spent $1,335,342.37 on legal fees to keep Khadr out of the country.

Simon Potter, a representative of Avocats sans Frontières and le Grouple d’Étude en droits et libertés de la Faculté de droit de l’Université Laval, defended Khadr’s repatriation, arguing that “there cannot be a carte blanche” for the federal government. He told the Court that he found it strange that there could be an unaccountable executive sphere, and that the Court should have no power to ensure that the executive uphold its legal duties.

Potter was one of a larger group of lawyers from Amnesty International, the National Council for the Protection of Canadians Abroad, the Canadian Civil Liberties Association, and other organizations, who all spoke in favour of Khadr’s repatriation.

Kathy Vandergrift, chair of the Coalition for the Rights of Children and Justice for Children and Youth, said that the federal government’s failure to consider Khadr’s young age was extremely disappointing. Khadr moved to Afghanistan with his parents in 1988, and is viewed as a child soldier by human rights organizations in Canada and abroad.

“There is no question in my mind that the will of Parliament is quite clear [on the Optional Protocol on the Rights of a Child]. It is the prime minister’s office that has not followed through,” said Vandergrift in an interview with The Daily. “It’s time that we take children’s rights seriously, rather than holding it up as some vague idea. So we see this court case as an important moment in this trajectory. People should be able to appeal to the courts when the government fails to protect their rights.”

Dennis Edney, who also represents Khadr, has been the one of the most outspoken advocates of repatriation. He was critical of the federal government’s arguments.

“It’s nothing you wouldn’t expect. At the end of the day, I always thought that every citizen under the law is accountable, and here we are, saying that our government in Canada has breached Omar Khadr’s rights in a fundamental way…but those actions are to be accepted in order to keep a good relationship with other governments,” Edney told The Daily.

“I sometimes wonder about the fiction of justice we create. The reality is that a boy went to Guantánamo, and has been there ever since, and has been abused horribly, so then why should the government not be made accountable?” Edney added.

Khadr’s lawyers have asked the court to expedite the judgment in his case, and a ruling is due in the coming months. In the meantime, much attention has turned toward the continuation of military prosecution in the United States, since it remains unclear when and where Khadr’s U.S. hearing will take place.

The continuation of the military commission process came as a surprise to many today, including Khadr’s American attorney Barry Coburn, who said he was shocked by the decision.

An executive order issued by President Obama days after his inauguration called for the closure of the Guantánamo Bay dentention centre, as well as a stay on the military commissions process. This led many to believe that prosecution by military commission had come to an end, including Lieutenant Commander William Keubler, Khadr’s former Pentagon-appointed attorney to the case. He told The Daily last year that “[Khadr’s] military prosecution is effectively dead and…there are significant obstacles to any future prosecution of Omar Khadr by U.S. authorities.”

Coburn commented, however, that he was optimistic that the Supreme Court of Canada would uphold Khadr’s right to repatriation.

“We are extremely hopeful that the Supreme Court will uphold what the lower court did, and we think that was a really well-reasoned opinion, and from our sense of it, we think that court was right and we hope the Canadian Supreme Court agrees,” said Coburn.

After the Court had adjourned, Coburn, who attended Friday’s hearing, commented that Khadr’s advocates would not be walking away from the case, despite the challenges.

“I’m going to continue as his counsel from now until the end,” said Coburn. “That’s my intention. For as long long as he wants me, I’m going to continue to defend him, until his process comes to an end.”

In the original version of this article The Daily erroneously stated that Omar Khadr had been waterboarded at Guantanamo Bay. The Daily regrets the error.