Guilty of contempt
As the sham trial of Omar Khadr approaches, Canada's government still refuses to uphold its moral and legal obligations
By Audrey Macklin
This commentary was first published in the Ottawa Citizen on July 20, 2010
Omar Khadr's fate is being determined in two courtrooms, one in Canada, and one in Guantanamo Bay. The Canadian court is part of a legal system that respects the rule of law, and holds the government to the law of the land, including the Canadian Charter of Rights and Freedoms. Under a system guided by the rule of law, the government is not above the law, and an order against the government is as binding on them as an order against you or me.
A judge of the British House of Lords famously condemned Guantanamo Bay as a "legal black hole" where the rule of law does not see the light of day. It is located outside the territorial United States precisely so the U.S. government can evade the law of the land, especially the rights guaranteed by the U.S. Constitution.
And so, the military commissions regime invents crimes after the fact, detains people indefinitely and arbitrarily, inflicts torture, and is indifferent to the age of those subject to it. It also appoints judges who are not independent. In Khadr's case, this means a judge who appears willing to aid the prosecution in circumventing the prohibition on the use of evidence obtained by torture.
Last week, the Canadian government refused to comply with an order by the Canadian courts. On the same day, Omar Khadr read a statement before the military commissions that he did not wish to be represented by his lawyers and would not participate in the process.
Justice Russel Zinn of the Canadian Federal Court had given the government seven days to produce a list of options for remedying the ongoing violation of Omar Khadr's rights. On day seven, the government announced that it would appeal the decision and seek a stay of the order. But as the government lawyers surely know, you can't ask for a stay of an order after the deadline for compliance has expired.
There is a legal name for what the government has displayed here: contempt. The government is in contempt of court, which is to say it believes itself to be above the law. Its decisions about whether to obey the law will simply depend on a calculus of how many votes can be won or lost by violating the rights of a single, despised individual. And there are few Canadians more vilified than those with the name Khadr.
The Canadian government insists the courts must not intervene in the exercise of the executive's jurisdiction over foreign relations. This argument has been rejected by the Supreme Court on several occasions, most notably in an extradition case called Burns and Rafay, when the court compelled the minister of justice to seek assurances prior to extradition to the United States that the death penalty would neither be sought or imposed. This means invoking foreign relations does not trump the human rights of a specific individual.
In any case, the open secret here is that the United States would likely welcome Canada stepping up to the plate. It is Canada that refuses to participate with negotiations for a plea bargain and/or repatriation, because Prime Minister Stephen Harper figures that there are no votes to be had by doing anything that would appear to benefit Omar Khadr. That's just majoritarian tyranny hiding behind executive prerogative.
Perhaps Khadr's attempt to proceed without representation was unwise, but it is not irrational. The system is rigged. Around the world, there is virtual unanimity on this point among all organizations, individuals, lawyers, and jurists who have taken a close look at the regime. I have observed the proceedings twice. It has a single purpose, and it is not to secure justice. It is to convict. As it is, the judge has denied Omar the entitlement to fire his military defence counsel, and ordered Lt.-Col. Jon Jackson to defend Khadr without Omar's consent. Khadr has "agreed" to this imposition of counsel.
Omar Khadr is under the total and obliterating control of the United States military. We might say that what it means to be an adult human being is to have the capacity to reflect and to act by choice, not dictation. Omar Khadr's space to do that is minuscule. Some prisoners engage in hunger strikes and self-harm in similar conditions.
As the military commission proceeds we will witness a trial that explicitly uses evidence extracted from Omar under torture to convict him of invented crimes allegedly committed by him at age 15. Or we will witness a trial that uses the evidence but suppresses the fact that it was obtained by torture. Either way, the military commissions will not emerge from a trial of Omar Khadr with the legitimacy the U.S. needs to move forward with the trial of the high-value detainees it really cares about. If asked, the Americans might well repatriate Omar Khadr, as they have done with every other citizen of every other western nation held in Guantanamo.
The Canadian government's claim that a request for repatriation would damage foreign relations with the U.S. is simply disingenuous. The case of Omar Khadr is a bilateral national disgrace.
