Courts have no role in foreign policy

The London Free Press
By Rory Leishman

The key issue before the Supreme Court of Canada in the case of Omar Ahmed Khadr versus The Prime Minister of Canada is straightforward: Who has ultimate responsibility for Canadian foreign policy -- unelected and unaccountable judges in the courts or elected representatives of the people in the Government and Parliament of Canada?

For the past seven years, Khadr, a 23-year-old Canadian, has been held without trial in Guantanamo Bay on suspicion of murder in the death of a United States soldier who was killed with a hand grenade during a firefight in Afghanistan. In 2003 and 2004, agents of the Canadian Security Intelligence Service (CSIS) and the Department of Foreign Affairs interviewed Khadr in Guantanamo Bay and shared the resulting information with the United States, although they knew Khadr had been subjected to sleep deprivation.

On this basis, the majority on the Federal Court of Appeal held in a two-to-one ruling on August 14 that the government of Canada was complicit in the torturing of Khadr and had thereby violated his right to life, liberty and security of the person as guaranteed in section seven of the the Canadian Charter of Rights and Freedoms. As a remedy for this violation of Khadr's Charter rights, the Court ordered the government of Canada to request the government of the United States to return Khadr to Canada as soon as practicable.

The Supreme Court of Canada should have no hesitation in overturning this ludicrous judgment on appeal. In a compelling dissent in Khadr, Mr. Justice Marc Nadon of the Federal Court of Appeal observed that there is no link between the allegedly inappropriate interviews and the remedy of repatriation.

Furthermore, Nadon maintained that the courts have no constitutional authority to issue such an order that directly interferes with the conduct of Canadian foreign policy. He explained: "How Canada should conduct its foreign affairs, including the management of its relationship with the U.S. and the determination of the means by which it should advance its position in regard to the protection of Canada’s national interest and its fight against terrorism, should be left to the judgment of those who have been entrusted by the democratic process to manage these matters on behalf of the Canadian people."

That's exactly right. Let us hope that the majority on the Supreme Court of Canada exhibits similar judicial restraint in upholding the fundamental separation of legislative, executive and judicial powers under the Constitution of Canada.

Meanwhile, United States Attorney-General Eric Holder announced last week that Khalid Sheikh Mohammed and several other al Qaeda operatives will be put on trial in New York City federal court. Khadr is not part of this group: He and four other Guantanamo Bay detainees will be put on trial in a military tribunal.

Why this difference in treatment? Holder has explained that he decided upon a military tribunal for Khadr and others because the United States government does not have sufficient evidence to assure their conviction in a civilian court.

In Khadr's case, it seems that much of the evidence against him is based on statements he made to United States and CSIS officials after undergoing sleep deprivation. These statements cannot be used in a civilian court, but they might be admissible under the rules of the United States Military Commissions Act of 2006, provided “the totality of the circumstances renders the statements reliable and possessing sufficient probative value” and “the interests of justice would best be served by admission of the statements into evidence.”

The Obama administration has good reason to put Khadr on trial in a military commission. Correspondingly, Prime Minister Stephen Harper is right not to request Khadr's immediate return to Canada and the Supreme Court of Canada should not presume to interfere with this key foreign-policy decision.

It is in the interests of both Canada and the United States that Khadr is brought to trial before a United States military commission -- the kind of institution that is best equipped to deal with war crimes and suspected terrorists.