Anybody in business knows about companies that get away with breaking their contracts whenever they figure the other party is too weak or insignificant to matter. “Make me,” they sneer at the hapless party who believed in good faith that the company would do as it promised. Now imagine you live in a country where your government behaves like that company. And Omar Khadr is the other party.
Omar Khadr’s lawyers have been forced to go to court to compel the government to fulfill a promise it made in an exchange of diplomatic notes with the United States in October 2010. After eight years of brutal captivity that began at age 15, and facing certain conviction before a cheap facsimile of a real court, Omar entered into a plea agreement with the United States. The agreement required Omar to confess to the charges against him, and accept an additional eight-year sentence (on top of the eight years of pre-trial confinement). After one more year in Guantánamo, Omar would be eligible for transfer to a Canadian prison. In an exchange of diplomatic notes, Canada undertook to transfer Omar to Canada.
Omar did as he agreed, and he applied for transfer to the United States and to Public Safety Minister Vic Toews in spring 2011. The United States did as it agreed. His year of confinement ended in October 2011, and since April 2012, the United States has been ready to put Omar on a plane.
For its part, Canada has done nothing.
Various United States officials have complained that Canada’s insolence is harming not only Omar, but U.S. interests. The United States’ credibility is damaged when it enters plea agreements that it cannot fulfill because the detainee’s own country will not hold up its end of the deal. Last week, the U.S. transferred Ibrahim al Qosi from Guantanamo to Sudan, where he arrived a free man. The U.S. can trust Sudan to protect its nationals more than Canada, it seems.
Meanwhile, Omar’s lawyers’ repeated inquiries to the minister have gone unacknowledged, though not unanswered. When asked to do as he promised, Toews’ silent retort amounts to this: Make me.
In 2004, when Omar was detained at Guantánamo Bay, Canadian CSIS officials decided to profit from the situation and interrogate him, knowing (at a minimum) that Omar was and continued to be subject to sleep deprivation and physical and mental abuse. Omar’s Canadian lawyer asked the government to stop harming and start protecting its citizen, and the government said, make me. When Omar’s lawyers initiated court proceedings, the government dispatched its officials to Guantánamo to get in a last round of interrogation of 16-year-old Omar before the court ordered them to stop. The court ordered the government to stop.
For years, Omar’s lawyers, human rights organizations, and ordinary Canadians have been telling the government to do for Omar what every other western nation successfully did for its citizens (and sometimes even permanent residents): ask for their repatriation from the black hole that is Guantánamo Bay. The Canadian government’s reply: make me.
And so in 2008 and again in 2010, Omar Khadr’s lawyers went to the Supreme Court of Canada.
In 2010, the Supreme Court of Canada confirmed again that Canada had in the past and was currently violating Omar’s rights under the Canadian Charter and Rights and Freedoms. It ruled that a request for repatriation would be an appropriate remedy, but declined to compel it, reasoning that a declaration from the Supreme Court of Canada would suffice to motivate a government bound by the rule of law to take appropriate action. The Supreme Court of Canada’s naivete was quickly exposed. The court did not make the government do anything, and so the government did nothing.
Now, Omar’s lawyers find themselves back in court, trying the make the government do what it promised the United States to do, what the Charter entitles Omar to expect the government to do, and what the rule of law requires it to do. Senator Romeo Dallaire is doing the same through an online petiion on Change.org.
The government has made a fool of the Supreme Court of Canada. It has made a fool of the United States. It has made Omar even more a victim than ever. If past practice is any guide, government spokespeople will use the fact of litigation as a further reason for delay: “we have no comment” they will say, “the matter is currently before the courts.”
Don’t let the government make a fool of you. Canada is now directly and solely responsible for every day that Omar spends in Guantánamo Bay, and can bring this ordeal to an end anytime.
That time is now.
Audrey Macklin is a professor in the Faculty of Law at the University of Toronto.
