Bad news for Omar Khadr? Sort of

No matter how the Supreme Court ruled, Khadr's fate would have remained in the hands of the U.S.

When Omar Khadr eventually returns to Canada (and he will someday, whether his fellow Canadians like it or not) his triumphant press conference won’t include a special thanks to the Supreme Court. In a unanimous decision released Friday, the country’s senior judges struck down Khadr’s latest bid for freedom, ruling that Prime Minister Stephen Harper cannot be forced to ask the United States to repatriate al-Qaeda’s most famous child soldier. Simply put, the court concluded that elected officials, not judges, are in charge of our country’s foreign policy—including whether or not to go to bat for a Toronto teenager who lived with Osama bin Laden, allegedly killed a U.S. soldier on the battlefields of Afghanistan, and has spent the past seven years locked inside the notorious prison at Guantanamo Bay, Cuba, where he has clearly been mistreated, if not brutally tortured.

The court confirmed the obvious: that Khadr’s Charter rights have been grossly violated during his stint at Gitmo, where he claims to have endured hours of harsh interrogations and threats of rape. At one point in 2004, a visiting Canadian bureaucrat grilled him for information, even though he knew Khadr had been subjected to three weeks of sleep deprivation. But despite Ottawa’s participation in an “illegal process,” the nine-judge panel refused to side with Khadr’s lawyers, who demanded that the government atone for its mistake by asking the U.S. to send their client home to Canada. Ordering the prime minister to act in a specific way “gives too little weight to the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada’s broader national interests,” the judges wrote. “The record before us gives a necessarily incomplete picture of the range of considerations currently faced by the government in assessing Mr. Khadr’s request. We do not know what negotiations may have taken place, or will take place, between the U.S. and Canadian governments over the fate of Mr. Khadr.”

The decision overturns two lower court rulings, both of which ordered the feds—who “knew of the abuse” Khadr suffered at the hands of his American captors and “sought to take advantage of it”—to seek his repatriation. Siding with Ottawa, the Supreme Court said it would “not be appropriate” to dictate diplomacy, and left it up to the prime minister and his cabinet to decide how to rectify the Charter breach. “[T]he order made by the lower courts that the government request Mr. Khadr’s return to Canada is not an appropriate remedy for that breach under s. 24(1) of the Charter,” they wrote. “Consistent with the separation of powers and the well-grounded reluctance of courts to intervene in matters of foreign relations, the proper remedy is to grant Mr. Khadr a declaration that his Charter rights have been infringed, while leaving the government a measure of discretion in deciding how best to respond.”

Precisely how the government will respond remains unclear. In a statement issued this afternoon, Rob Nicholson, the Conservative Justice Minister, said he is “pleased” that “the government is not required to ask for accused terrorist Omar Khadr’s return to Canada…The government will carefully review the Supreme Court’s ruling and determine what further action is required.”

By now, the Khadr saga needs little introduction. Born in Scarborough, Ont., in September 1986, he is the third son of Ahmed Said Khadr, a senior Al-Qaeda fundraiser who was later killed in a shootout with Pakistani authorities. In July 2002, Omar was shot and detained by U.S. soldiers during a firefight in Afghanistan, but not before the 15-year-old allegedly tossed a grenade that killed Sgt. Christopher Speer, a decorated army medic. He was transferred to Bagram Airbase, interrogated incessantly, and, just days after his 16th birthday, flown to Guantanamo. Now 23, Khadr faces charges of murder, attempted murder and providing material support for terrorism, but his trial has been repeatedly delayed amid legal wrangling and constitutional challenges. In November, U.S. Attorney-General Richard Holder announced that Khadr, the only western citizen left in Guantanamo, will face a military commission scheduled for July. The location, however, is still up in the air. A federal prison in Illinois has been selected to house some Gitmo inmates, but the courtroom facilities may not be ready by the summer, which means Khadr could ultimately face justice in Cuba, not the United States.

What are the ramifications of Supreme Court decision? On a practical level, not a whole lot. It doesn’t mean a Canadian homecoming is out of the question—or even less likely than it was last week. And it doesn’t mean Khadr’s U.S. trial will definitely go ahead as planned. It simply reaffirms what has been the case all along: Khadr is in American custody, charged with violating American laws, and it’s up to the Americans to decide his fate. Despite all the high-stakes hype, the issue facing the Supreme Court of Canada was whether Ottawa should be compelled to ask for Khadr’s release. The White House, of course, is under no obligation to say yes. Ultimately, the decision is theirs—whether we ask or not.

Even Khadr’s own lawyers warned him not to get too excited about the looming decision. Win or lose, he would still be in a jail cell the next day, his future no less hazy. Which is exactly where he remains.