Canada’s top court rules government can decide whether to seek Guantanamo detainee’s return

Canada’s top court won’t force detainee’s return

TORONTO — Canada’s Supreme Court ruled Friday that it will not force the government to seek the repatriation of the youngest detainee held by the U.S. at Guantanamo Bay.

Conservative Prime Minister Stephen Harper has steadfastly refused to request the return of Canadian-born Omar Khadr, the last Western detainee held at the prison at the U.S. Navy base in Cuba. Harper has said the U.S. legal process must be allowed to play itself out, and the government said Friday they were pleased with the top court’s decision.

The Supreme Court ruling overturns a lower court ruling that ordered the Canadian government to seek Khadr’s return. The top court’s nine judges unanimously ruled that Khadr’s constitutional rights were violated, but left it to Canada’s government to decide the proper remedy.

Khadr, who was born in Toronto, is now 23 but was only 15 when he was captured after allegedly killing an American soldier with a grenade in a 2002 battle in Afghanistan. Authorities say his family has close links to al-Qaida.

Government lawyers argued the courts did not have the right to order authorities to seek Khadr’s repatriation because it put them in the realm of diplomacy.

The court agreed, saying in its written decision that “the proper remedy is to grant Mr. Khadr a declaration that his … rights have been infringed, while leaving the government a measure of discretion in deciding how best to respond.”

The top court said Canada breached Khadr’s rights by sending intelligence agents to Guantanamo to interrogate him. The Canadian agents shared the results of their interrogations with U.S. authorities.

Justice Minister Rob Nicholson said the government is pleased the Supreme Court recognized the constitutional responsibility of the government to make decisions on matters of foreign affairs.

“The Supreme Court overturned two previous lower court decisions and ruled that the government is not required to ask for accused terrorist Omar Khadr’s return to Canada,” Nicholson said in a statement. “Omar Khadr faces very serious charges including murder, attempted murder, conspiracy, material support for terrorism, and spying.”

Nicholson added the government will review the court’s ruling and determine what further action is required.

Khadr’s lawyers argued Canada was complicit in his alleged torture and maintain that Harper is obliged under international law to demand the prisoner’s return so as to protect children and child soldiers and to repudiate torture. The U.S. has assured Canadian authorities that Khadr has been treated humanely.

“The language of the courts recognized that Omar Khadr’s rights have been violated and continue to be violated,” defense lawyer Dennis Edney said in a telephone interview. “They are essentially saying the government should do the right thing, but how can we believe this government will do the right thing? … They have fought us every step of the way.”

Nathan Whitling, another lawyer for Khadr, said in a phone interview that their focus will now shift to Khadr’s war-crimes trial at Guantanamo later this year.

“It’s pretty much the end of the road in terms of any hope of assistance from the Canadian government, so our focus is now shifting away from that,” Whitling said in a telephone interview.

In April, a Canadian judge ruled that Harper’s refusal to request Khadr’s repatriation offends a fundamental sense of justice and violates his constitutional rights. Canada’s Court of Appeal dismissed the government’s appeal of that decision this past summer by a majority 2-1 decision. Friday’s ruling overturns those decisions.

Khadr, the son of an Egyptian-born father and Palestinian-born mother, has said through his lawyer that he would be willing to face prosecution in Canada and undergo a transition period away from his relatives, who have Canadian citizenship but have been linked to al-Qaida.

His father, Ahmed Said Khadr, was an alleged al-Qaida militant and financier, killed by Pakistani forces in 2003. A brother, Abdullah Khadr, is being held in Canada on a U.S. extradition warrant, accused of supplying weapons to al-Qaida. Another brother has acknowledged the family stayed with Osama bin Laden.

Canada’s three opposition parties have demanded that Harper’s Conservative government bring Omar Khadr home. He has received some sympathy from Canadians, largely due to his age and the torture allegations, but his family has been widely criticized and called the “first family of terrorism.”

Zaynab Khadr, his sister, declined comment Friday when reached at the family home, saying his lawyers have told them not to talk to the media.

The human rights group Amnesty International said it disagreed with the court’s decision not to intervene.

“I’m disappointed. Clearly from Amnesty’s perspective we didn’t this as an issue of improper intrusion into foreign policy, we saw this as a decision that’s all about protecting human rights,” said Alex Neve of Amnesty International Canada. “The court saw otherwise. That’s unfortunate but we nonetheless have a very strong ruling on the human rights front.”