Canadian Justice: holding oneself responsible for human rights violations

The outline of Omar Khadr's story is fast becoming familiar. He is an enemy combatant. He was picked up by US authorities in Afghanistan in 2002 and brought to Guantanamo where he has wallowed for nearly 6 years. The US has decided to bring him to the military commissions court on the charge that he threw a grenade which killed a US medic. In that sense, he is one of the luckier inhabitants of Guantanamo: he's set to get his day in court. Well, not quite, since it is an open question whether the military commissions court he'll face is a court of justice in the requisite sense. We know that this court accepts as legitimate evidence attained through coercion (e.g., torture). We know that SCOTUS (in Hamdan)has rejected as unconstitutional the previous iteration of this court, and it is difficult to see what has changed in the interim. We know that the man in charge of the court, William Haynes, asserted to his then chief prosecutor that “there can be no acquittals.” No one, including the prosecutor towards whom it was barked, took this assertion to benignly mean that he should do his best to win the case. Rather it was, repugnantly and malignantly, a prediction grounded in a threat on the order of “I'll make him an offer he can't refuse.” We know that said (now, former) prosecutor has testified on behalf of the defense of the person he was once in charge of bringing to justice.

And, now, right on time and as a means to fulfilling that prediction, we learned last Friday that the judge appointed to Khadr's case was summarily and without explanation (part of the Bush administration's frequent Friday surprises) dismissed from it. The judge in question, Peter Brownback III had, from the Bush administration's point of view, the annoying habit of demanding procedural justice, and that evidently was enough 'judicial activism' to warrant dismissal. In particular, Brownback refused to set a trial date until the prosecution handed over to the defense potentially exculpatory evidence for which it had legitimately and repeatedly demanded.

The Brownback dismissal was evidently hastened by the Canadian Supreme Court's ruling (it can be read here) the previous week. The ruling, which was unanimous, asserted that the Canadian government violated Khadr's human rights by participating and supporting an activity which violated his human rights. In particular, in 2003 Canadian agents interviewed him at Guantanamo and passed on the content of the interview to U.S. authorities (this is the support and participation claim). The claim that the activities violated Khadr's human rights is grounded on SCOTUS's decisions (in Rasul and Hamdan). The court reasoned that Canadian agents and law should not defer to another country's law (as would be customary on foreign soil) when the latter, by its own lights, violates human rights. In such a case, Canada and its agents, since they facilitated a human rights violation, have an obligation to rectify the wrong. Since Canadian authorities possess a transcript of the interviews which they conducted with Khadr (which transcript US authorities claim to have lost!!!), they have an obligation to make them available to the defense per its request. This was the Canadian Supreme Court's order.

Given this order, we can understand one dimension of the U.S.'s urgency in bringing Khadr to court and Brownback's dismissal. They want his defense team to be crippled as much as possible so as to guarantee their prediction of 'no acquittals'.

In the face of such an unaccountable U.S. government, it's reassuring to see Canada actually living up to its promise of justice and holding itself accountable when it deems itself to have done wrong. If we cannot do it ourselves, then it's nice to have a friend and neighbor who will do it for us.

Oh, did I forget to mention that Khadr was but 15 years old when originally picked up? I would say we have reached the nadir of American justice if it weren't for the fact that it keeps getting lower and lower, and baser and baser by the days and months. We'll need to await the upcoming years to get a full measure of our current government's depravity.