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Can Canada Sway SCOTUS?

Image has not been found. URL: /wp-content/uploads/2008/09/scotus4.jpgSupreme Court of the United States (WDCpix)

At the end of June, the Supreme Court is due to issue a ruling on the challenge filed by Guantánamo detainees to their detention and the denial of habeas corpus. All the current presidential candidates, Sen. John McCain, Sen. Barack Obama and Sen. Hillary Rodham Clinton, have discussed their intention to close the offshore detention facility Guantanamo’s continuing damage to America’s global reputation figures prominently in their calculations.

Last week brought new confirmation of that damage with a Canadian Supreme Court judgment in the case of Omar Khadr, a Canadian citizen detained at the Cuban base (pdf).

This decision raises intriguing questions. Coming just weeks before the U.S. Supreme Court is to rule, will it influence the high court’s decision? Should it?

Image has not been found. URL: http://www.washingtonindependent.com/wp-content/uploads/2008/09/scales-150x150.jpgIllustration by: Matt Mahurin

The Canadian judgment is indeed relevant, though it does not speak directly to questions the U.S. court must address: the detainees’ access to habeas corpus review and the constitutionality of their detention. Nonetheless, the Canadian decision illuminates the policy and moral stakes of the coming US decision.

At first glance, the Canadian decision appears to be reasoned carelessly. On close examination, however, it proves a powerful commentary on Guantánamo. It provides a subtle and telling gloss on the U.S. decisions — and the administration’s responses to those decisions. By highlighting the human rights implications of earlier U.S. court decisions, the Canadian court has indicated how one might frame a response to the continuing international problems created by the base. Taking a lead from the Canadian court, the U.S. courts and the administration could well decide that sunlight, and a full factual accounting, is the best way to resolve the reputational deficit recognized by the presidential candidates.

Some brief background about the Canadian decision first.

Omar Khadr, the Canadian detainee, was seized in Afghanistan when only 15, and then moved to Guantánamo. Held at the Cuban base since 2002, Khadr, now 21, is one of the handful of detainees charged in the military commission proceedings.

Khadr’s case has provoked sharp international censure because of his youth at the time of capture. In the view of many countries, child soldiers should not be tried. The United States is an outlier when it comes to juvenile rights: It has the dubious honor of standing alone with Somalia in refusing to join the 192 countries that have ratified the International Covenant on the Rights of Child, which helps impose minimal standards of treatment for those under age 18. Trying child soldiers is widely regarded as incompaitble with the vision of children’s rights crafted by the convention. Somalia at least has the plausible excuse of not having a government that can ratify.

In the Canadian case, the issue was not Khadr’s youth, which under international law should have precluded either detention or trial. In fact, Khadr filed suit not to stop his trial. Rather, he wanted evidence to help in that trial.

In 2003, Canadian intelligence, or CSIS, interviewed Khadr numerous times at Guantánamo. Yet the U.S. military denied him the material from those interviews. So Khadr sued under Canada’s Charter of Rights to obtain records of the CSIS interviews, which may contain exculpatory evidence.

Beyond its immediate use to Khadr, the suit framed the larger question of Canada’s involvement in the Guantánamo detentions. The involvement of Canadian agents in U.S. counterterrorism operations that violate international law is already an issue due to the case of Mahar Arar, a Canadian citizen who had been “rendered” from the United States to Syria, where he was tortured. An official Canadian inquiry led to a government apology and compensation. The United States, by contrast, is fighting tooth and nail against Arar even having a day in court.

In Khadr’s case, two conflicting principles of Canadian law seemed to apply.

First, Canada’s courts have said that its charter requires disclosure of government evidence whenever a person’s liberty is at stake—a broader version of what in the United States is called the Brady obligation.

While this principle seems to entitle Khadr to relief, a second case seemed to cut against him. In June last year, the Canadian Supreme Court held that a provision in its Charter of Rights limiting searches and seizures–the analog to the U.S. Fourth Amendment—does not generally extend overseas. The court held that respect for other countries’ law meant that Canadian law did not apply beyond national borders.

The Canadian Supreme Court resolved these two principles neatly by holding that the obligation to disclose did apply even when the Canadian government acted overseas–and that the right to disclose trumped respect for U.S. law.

The critical finding in the Canadian court’s opinion was that the CSIS agents had failed to act “in conformity with the principles of fundamental justice” and “Canada’s international human rights obligations” when they cooperated with the U.S. military authorities running Guantánamo. “Deference to the foreign law ends,” the Canadian court signaled in 2007, “where clear violations of international law and fundamental human rights begin.”

The Canadian court could easily have based this key finding on human rights findings or media reports about Guantánamo, which document the damaging human rights consequences of the prolonged detentions. But it didn’t. Instead, it used U.S. court opinions to make a point that the American courts have not yet made.

The Canadian court relied on opinions from the U.S. Supreme Court about Guantánamo–opinions that go out of their way not to make sweeping claims about “principles of fundamental justice” or “international human rights obligations” — to characterize the “process in place at the time Canadian officials interviewed Mr. Khadr.” Using narrow U.S. opinions as a springboard, the Canadian court reached larger conclusions about the fundamental logic of Guantanamo.

Specifically, the Canadian court relied on two rulings from the U.S. Supreme Court in 2004 and 2006 that respectively held that the detainees could invoke the “habeas corpus” statute to challenge their detentions, and that the use of special military commissions to try detainees was impermissible.

But neither of these opinions reaches any conclusion about human rights or fundamental justice. On the contrary, both were narrowly drafted to avoid any broad-gauge judgment about U.S. detention policy. The U.S. court looked at the statutes and concluded that the detainees won as a matter of the statutes, and without regard to the Constitution or international human rights law.

Moreover, both rulings were, in effect, rolled back by the 2006 Military Commissions Act, or MCA, under which the new commissions are proceeding.

So was the Canadian court just being careless?

In fact, the Canadian court’s decision was both accurate and canny. It picked up on aspects of the U.S. decisions and then leveraged them in ways both relevant to Canadian law and salient to the moral and policy questions implicated by the coming U.S. decisions.

The Canadian court carefully read the U.S. decisions to pick out two salient legal facts. First, Khadr had been denied access to habeas corpus at the time he was interrogated, despite a statute that then made it available. Second, one reason why the U.S. Supreme Court invalided the military commission system in 2006 was its deviation from the Geneva Conventions, which, the court held, applied.

The Canadian court could invoke these conclusions because Khadr’s challenge concerned interrogations from 2003 — long before the military commissions statute was enacted.

Moreover, the Canadian court didn’t need to find that the U.S. court had found a violation of international human rights law. The Canadian court elegantly held that based on the legal situation as the U.S. Supreme Court found it, international human rights law and fundamental principles had been violated.

That conclusion takes on special resonance now with the coming Supreme Court decision. For Congress has tried to reverse both the 2004 and the 2006 judgments via the Military Commissions Act. Pending before the U.S. Supreme Court right now is the question whether the remedy of habeas corpus ought to be available.

The Canadian Supreme Court’s judgment signals what many fair-minded people around the world agree on: The detention without fair process at Guantánamo is regarded as a flagrant breach of “fundamental” rights because of the commingling of combatants and civilians and because of the brutality of their treatment . Quite literally, these detentions corrode the respect of peer countries— a respect usually embodied in deference to U.S. law — for the United States.

By picking up on the U.S. court’s own conclusions and then elaborating on their significance for the rest of the world, the Canadian court has left no doubt how U.S. allies would regard further denial of fair process at Guantánamo—including a fresh denial of habeas corpus right now. The Canadian court’s ruling suggests that Washington will continue to lose support and cooperation from other democratic nations as long as it persists in the folly of Guantánamo. And its conclusion — that a fair accounting of the facts is the optimal way forward — should light the path for the U.S. Supreme Court.

Whether our own high court hears this message, or understands its significance for U.S. national security, will only be clear at the end of June.


Aziz Huq directs the liberty and national security project at the Brennan Center for Justice at New York University School of Law. He is the co-author, with Fritz Schwartz, of “Unchecked and Unbalanced:Presidential Power in a Time of Terror.” He has written for New York Law Journal, The Washington Post and The Huffington Post.

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