Another expert on why the top court didn't go further on Khadr

News that the Canadian government won’t try to bring Omar Khadr home from Guantanamo Bay, despite last week’s Supreme Court of Canada ruling that Khadr’s rights have been violated, raises questions about the point of the court’s decision.

Legal advocates for Khadr contended the government had no choice but to seek Khadr’s repatriation, after the court found Canada had violated his rights by having an official interrogate him in 2004 after the Americans had subjected him to sleep deprivation.

But that seems to have been a misreading of the decision. Earlier I posted on the views of Eugene Meehan, a smart lawyer who follows the Supreme Court as closely as anyone. He said the court left it up to the government to “decide what to do, or what not to do.”

Another expert well worth listening to is Prof. Gerald Gall, who teaches constitutional law at University of Alberta, and is president and chair of the John Humphrey Centre for Peace and Human Rights. I asked Gall for his read of why the court didn’t order the government to do something to remedy the violation of Khadr’s rights.

He said simply declaring that Khadr’s rights were violated is itself a very traditional sort of remedy. “A declaratory judgment is really no more than a statement by the court as to the state of the law,” Gall said.

Of course, the judges could have gone further. They didn’t largely because the remedy on the table—ask the Americans to send Khadr home—didn’t seem practical. “It’s ultimately unenforceable,” he said. “To order the Canadian government to seek the repatriation of Khadar might not lead to his repatriation because the American government would not budge one iota.”

And issuing a futile order, Gall added, would reflect badly on a court. As well, he said, like Meehan, that the court is generally cautious about directing government actions.

For those concerned about Khadr’s condition and future, it’s all enormously frustrating—as Gall readily concedes. No doubt the nine judges on the court who jointly issued the judgment know they have not satisfied those focused on the fate of the individual.

But rather than helping Khadr, they might have in mind preventing a future government from repeating the mistakes of this sorry case. “Often,” Gall said, “decisions give direction on future government action.”