Opinion

The Omar Khadr Case and The Rule of Law

By Carmen Cheung

Dennis Edney

Most Canadians are familiar with the injustices visited upon Omar Khadr, a Canadian citizen who, in 2002, was captured by U.S. forces in Afghanistan when he was 15 years old. He has spent the past six years detained by the U.S. military at the Guantánamo Bay Naval Base in Cuba. Mr. Khadr languished in detention for almost five years until the United States government finally formally charged him with war crimes in early 2007.

This May, the Supreme Court of Canada issued a unanimous judgment ruling that Canada's complicity in the proceedings against Mr. Khadr violated his Charter rights to life, liberty and security of person, and was a breach of Canada's obligations under international law. Nonetheless, the Harper administration has yet to seek his return to Canada, and at present, he remains the only citizen of a Western nation detained in Guantánamo who has not been repatriated to his country of citizenship.

Civil liberties vs. national security

At the National Pro Bono Conference in Vancouver this September, Jennifer Conkie and I had the privilege of attending a presentation by Mr. Khadr's legal counsel, Dennis Edney. His talk was a reminder of the tension between the twin necessities of protecting both individual rights and a nation's security. Since the terrorist attacks against the U.S. in September 2001 and the Bush administration's "war on terror" that followed, the issue of maintaining a commitment to individual and civil liberties in the face of national security concerns has been the focus of considerable attention around the world.

The Canadian government considered this question in the Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmed Abou-Elmaati and Muayyed Nureddin. The inquiry, headed by former Supreme Court justice Frank Iacobucci, investigated the government's role in the detention and torture of the three Canadian citizens by the Syrian government.

Omar Khadr, shortly before capture.

Commissioner Iacobucci found that no specific individual or agency could be held directly responsible for the abuses and mistreatment of Mssrs. Almalki, Nureddin and Abou-Elmaati. However, the information provided by Canadian officials to Syria played an indirect role in allowing Syria to justify its detention of these individuals. As Iacobucci observed, "[a]t its core, the Inquiry [involved] the appropriate response of our democracy in Canada to the pernicious phenomenon of terrorism, and ensuring that, in protecting the security of our country, we respect the human rights and freedoms that so many have fought to achieve."

The Arar Commission

Another government investigation, the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (the "Arar Commission") reported on the Canadian government's role in the extraordinary rendition of Maher Arar by the United States to Syria, where he was systematically tortured and abused for over a year. The September 2006 report of the Arar Commission found the Canadian government to have made serious errors in its handling of requests for information about Mr. Arar by the U.S. government, which lead to Mr. Arar being wrongly linked to al-Qaeda and deported to Syria. The Arar Commission issued 23 broad recommendations designed to provide procedural safeguards to protect individual rights, while being mindful of national security concerns.

These are also issues I have been grappling with in my professional life in recent years. Before my move to Canada this spring, I was an associate in the litigation department of a law firm in New York City, where I had the opportunity to work on amicus curiae filings in the federal appellate courts. These included the Supreme Court of the United States, in support of individuals challenging various aspects of the Bush administration's "war on terror," including the use of torture against detainees held by the U.S. military and legislation stripping them of the protections of procedural due process and habeas corpus.

The Canadian government is to be commended for its in-depth inquiries into its own actions in the American government's "global war on terror." It reflects a national willingness to seriously scrutinize its actions and consider its accountability for abuses inflicted upon its citizens by foreign governments. In these cases, it would be politically-expedient simply to blame the Americans and their irresponsible prosecution of their "war on terror". However, as the case of Mr. Khadr illustrates, more must be done, particularly by members of the legal profession.

The Rule of Law

While Mr. Edney's talk was inspirational, it was also a sobering rebuke of what he viewed to be the Canadian bar's complacency and silence in the face of flagrant abuse and mistreatment of a Canadian national. His talk was a reminder that our profession is defined by a respect for process and ruled by a belief that the law must be applied fairly and consistently.

As members of the Bar, we have each pledged to uphold the law, and by extension, the principles underpinning the "rule of law." This includes equal protection under the law for all individuals, regardless of what atrocities they may have been accused of committing. Accordingly, we should be concerned about the erosion of the rule of law wherever it happens, be it in our home jurisdictions or abroad. Failure to protest transgressions against fundamental principles of the rule of law brings into question our commitment – as a profession and as individuals trained in the law – to upholding the system of laws.

Shortly after Mr. Edney's presentation, the Canadian Bar Association, in conjunction with Lawyers Without Borders, the Barreau du Québec, and other legal organizations, called on the Canadian government to bring Mr. Khadr back to Canada, where his case could be considered under the laws of this country.

Over the past year, the CBA – recognizing that the system for detaining suspected terrorists at Guantánamo Bay is inconsistent with the rule of law – has become increasingly involved in seeking the return of Mr. Khadr. In August 2007, the CBA issued a letter to Prime Minister Harper requesting that he seek Mr. Khadr's repatriation, and in May 2008, the CBA presented a submission to the House of Commons International Human Rights Subcommittee. In its submission, the CBA stated: "Our commitment to justice is challenged where the individual is unpopular and accused of terrible crimes. It's at times like this that we must speak out and defend those rights. This is what the rule of law requires – that we recognize the rights of all, not just the favoured few."

U.S. Supreme Court: Habeas corpus can't be denied to Guantánamo detainees

This commitment to the rule of law was tested and ultimately affirmed in Boumediene v. Bush, which was considered by the U.S. Supreme Court earlier this year. (In the interest of full disclosure, I should say that I assisted in drafting a brief amicus curiae submitted to the Court on behalf of the American Bar Association to support a challenge to the habeas-stripping provisions of the Military Commissions Act.) In Boumediene, the Court struck down the provision in the Military Commissions Act that sought to deny habeas corpus review for detainees held at Guantánamo Bay. A majority of the Court found that the right to habeas corpus – long enshrined in our common law tradition since the Magna Carta – could not be denied to detainees at Guantánamo.

That the right to habeas corpus had to be protected by litigation in the highest court of the land was a reflection of how unmoored American society had become from its (self-professed) bedrock ideals. However, the fact that the rule of law could be protected by litigation also demonstrated the vital importance of lawyers in protecting fundamental freedoms, and serves as a reminder of our ongoing duty to take active steps to ensure an unwavering respect for the rule of law.

Following the Supreme Court's ruling, the petitioners in Boumediene returned to the federal district court to renew their challenge to their detentions. In late November of this year, the court, provided for the first time with the government's evidence purportedly justifying the petitioners' detetention, ruled that the government had no basis for holding five of the six petitioners and ordered their immediate release from Guantánamo. The district court's ruling made obvious the essential importance of procedural due process, and I am hopeful that it is only one of many steps towards a reaffirmation of the American people's committment to the rule of law.