Supreme Court Refuses to Order Khadr's Repatriation

[Colpy]

The Supreme Court of Canada has overturned lower-court orders that the federal government must try to repatriate Toronto-born Omar Khadr from the U.S. military prison in Guantanamo Bay.
However, the top court agreed Canadian officials violated Khadr's human rights, and that he continues to be threatened by the effect of those violations.
In a unanimous decision released Friday, the court declared that Canadian officials breached Khadr's right to life, liberty and security of the person under the Charter of Rights and Freedoms.
However, it concluded that ordering the government to ask the U.S. for Khadr's repatriation to stop the continuing violation of his rights would interfere with the government's jurisdiction over foreign relations. Therefore, it chose not to issue the order, even though it had the authority to do so.
"We … leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs and in conformity with the charter," the ruling said.
Khadr, 23, has been imprisoned at Guantanamo Bay, Cuba, since he was arrested in Afghanistan at age 15, accused of throwing a grenade that killed a U.S. soldier. He is scheduled to be tried in July by a U.S. military court on charges of murder, conspiracy and support of terrorism.


Read more: http://www.cbc.ca/canada/story/2010/01/29/omar-khadr-supreme-court.html#ixzz0e3PkWq5z

My emphasis......and exactly what I've been saying for a long time. Congrats to the Court for making the correct decision.

Now that is settled....its time to bring the SOB (literally) home before the unconstitutional farce of a military trial takes place.

 

[TenPenny]

I'm glad they've made that ruling. Now if the gov't is smart, they'll ask for him to be sent home, and do the right thing.

 

[Spade]

The deference of the court to the Government's intransigence is troubling.

 

[TenPenny]

The deference of the court to the Government's intransigence is troubling.

Not so much deference to the Government, but more to the rule of law.

 

[Avro]

So, what if the government dosen't bring him home? Will they still get checks?

 

[earth_as_one]

I agree with the court. They can't order the government to make specific foreign policy decisions. But they can judge the government's actions.

The Canadian government didn't uphold their Charter and Constitutional obligations as a Canadian child was tortured by a foreign government. Khadr will likely sue the Canadian government for damages.

Regarding the case against Khadr:

...The U.S. military has charged Omar Khadr of Toronto with murder for allegedly throwing a grenade that killed Sgt. Christopher Speer during a U.S. military raid on July 27, 2002, on an Al Qaeda compound in eastern Afghanistan.

Khadr’s case is on track to be the first to go to trial under a military tribunal system at this U.S. Navy base in southeast Cuba.


The military commander’s official report the day after the raid originally said the assailant who threw the grenade was killed, which would rule out Khadr as the suspect.


The report was revised months later, under the same date, to say a U.S. fighter had only “engaged” the assailant, according to Kuebler, who said the later version was presented to him by prosecutors as an “updated” document.


Kuebler told reporters after the hearing that it appears “the government manufactured evidence to make it look like Omar was guilty.”...
Lawyer: Khadr report altered - thestar.com

Guantanamo detainee Omar Khadr was buried face down under rubble, blinded by shrapnel and crippled, at the time the Pentagon alleges he threw a grenade that fatally wounded a U.S. soldier, according to classified photographs and defence documents obtained by the Star.
The pictures, which were taken following a 2002 firefight in Afghanistan and have never been made public, show the then 15-year-old Canadian covered in bricks and mud from the roof of a bombed compound....


[SIZE=-1]In the left photo (1), Omar Khadr is hidden under rubble from a collapsed roof. In the upper corner is an unnamed combatant killed by U.S. forces. In the right photo (2), Khadr is lying face down (body is highlighted), with his head pointing toward the combatant’s body and two bullet wounds in his back.[/SIZE]

Omar Khadr 'innocent' in death of U.S. soldier - thestar.com

A couple of issues here.


The Americans went into Afghanistan with guns ablazing and their adversaries fought back legally as per international law. In order to be considered a soldier in international law, you only have to behave like one. As a result, Khadr should have been considered a POW. If we don't treat our adversaries as per international and Canadian law, then we are hardly in a position to complain when our captured soldiers are treated as poorly as Khadr.


Khadr was 15 at the time, which makes him a juvenile. In international and Canadian law, child soldiers are supposed to be treated as victims and rehabilitated.



All the evidence against Khadr is suspect. Reports were altered to support his conviction. Evidence supporting his innocence has been suppressed. His confessions were the result of torture.


No I wouldn't want Khadr walking Canadian streets anytime soon. He was raised with anti-west beliefs which were confirmed by his poor treatment in US custody. If wasn't a threat before, he probably is now.

 

[Colpy]

It seems a little silly to charge a person with murder because he throws a grenade at you AFTER you drop a bomb on him............that said, Khadr should have been left to die at the scene, or given a coup de grace..........that is what he wanted.

Having accepted him, treated his injuries, and transported him, the US became responsible for his well being and proper treatment. They have done everything possible to deny him fair trial for a "crime" that strikes me as ludicrous. Military trials are obviously unconstitutional. You'd think the bloody lawyers could fricking READ (see the Fifth Amendment to the US Constitution.

Having made their point over their jurisdiction in all matters concerning relations with foreign nations, Canada should now campaign to bring Khadr back to Canada. Regretfully.

 

[earth_as_one]

The deference of the court to the Government's intransigence is troubling.

Why? Should the courts be allowed to dictate foreign policy or just judge it?

If I understand this ruling, the court determined that the Canadian government violated Candian law. The Canadian government can do this legally:

Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause (or "la clause dérogatoire" in French), or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter.
http://en.wikipedia.org/wiki/Section_Thirty-three_of_the_Canadian_Charter_of_Rights_and_Freedoms

Khadr has a right to pursue criminal proceedings against the Canadian government. The government could pass a law which violates the Canadian Charter and Constitution using the above clause... then its up to Canadian voters to punish the government for violating Canadian law, or passively give up and accept that Canada is no longer ruled by laws...

...or we could rewrite the Canadian Charter and Constitution so that it allows torture and tortured confessions..., then Khadr's treatment and the Canadian government's involvement in this case would be legal.

 

[earth_as_one]

I'm fairly certain Khadr was an al Qaeda militant who made bombs and probably killed people. I think its unlikely he threw the grenade which killed Sgt. Christopher Speer, not because he wouldn't have done it if he could but because it sounds like he was too injured. As Colpy points out, the charge is ridiculous...

It seems a little silly to charge a person with murder because he throws a grenade at you AFTER you drop a bomb on him....

Seems sort of unfair....

My problem with this is that the American government created a system to legally remove fundamental human rights. They invented the term "enemy combatant" which has no international recognition and built detention centers (aka torture chambers) in places like Guantanamo Bay rather than US soil so they make ridiculous charges and torture confessions from people.

Many innocent people ended up in Guantanamo were tortured and detained without charges for years before being released.

This isn't a system of justice, but a system of de-humanization and the Liberals went along with it. The Conservatives fought to keep Khadr in the system, indicating support... IMO, Anyone involved in this case is not fit to run the country.

Khadr's treatment crossed lines that should never be crossed, not for Khadr's sake but our own. Once you create a system to dehumanize people, then its too easy to trap innocent people. People who enter the system are going to come out with problems. People who legally torture and abuse for a living will not live healthy lives.

 

[Slim Chance]

The Americans went into Afghanistan with guns ablazing and their adversaries fought back legally as per international law. In order to be considered a soldier in international law, you only have to behave like one. As a result, Khadr should have been considered a POW. If we don't treat our adversaries as per international and Canadian law, then we are hardly in a position to complain when our captured soldiers are treated as poorly as Khadr.

Khadr was 15 at the time, which makes him a juvenile. In international and Canadian law, child soldiers are supposed to be treated as victims and rehabilitated.

All the evidence against Khadr is suspect. Reports were altered to support his conviction. Evidence supporting his innocence has been suppressed. His confessions were the result of torture.

No I wouldn't want Khadr walking Canadian streets anytime soon. He was raised with anti-west beliefs which were confirmed by his poor treatment in US custody. If wasn't a threat before, he probably is now.

Khadr is as much as a foreigner in Afghanistan as are the Americans, at best he can be considered a mercenary - Khadr was not recognized as a member of the Afghan military and as such, the use of the term soldier is not relevant.

Khadr should never have been removed from the jurisdiction where the event occured. He should have been detained in an Afghan prison and any trial should be carried out by the Afghan authorities.

 

[Colpy]

The Fifth Amendment to the Constitution of the United States:

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

My emphasis......

I sincerely doubt that Khadr was "in actual service" in the armed forces of the USA at the time of the alleged offense, therefore, his trial is obviously unconstitutional.........

I REALLY wish officials in the USA would take the time to READ the wonderful document they are sworn to "uphold and defend"

 

[Slim Chance]

The alleged crime took place outside of the USA, was committed by a non-US citizen and was initially to be tried in Cuba. The US constitution has no bearing in this process at this time.

 

[Colpy]

The alleged crime took place outside of the USA, was committed by a non-US citizen and was initially to be tried in Cuba. The US constitution has no bearing in this process at this time.

If the crime took place outside the USA, one could argue that the USA has NO RIGHT to try the individual. Which, in this case, I believe to be true. The Americans, alien combatants in a foreign country, engaged in a firefight with other alien combatants in a foreign country. No crime was committed on either side, as far as I'm concerned. But the Yanks insist on trying him....they pulled him out of Afghanistan, they healed him and transported him to territory under American authority.......he is therefore entitled to the protection of the US constitution.

Read it again......it says NO PERSON. I assume even Americans consider individuals not US citizens to be PERSONS. :roll: It is NOT being tried by the Cubans, but by US authorities.

If the US Constitution can be excluded from consideration in this context, then the US Constitution was a waste of paper and ink. Which I do NOT believe to be the case.

I HATE lecturing Americans on their own Constitution. Read the fricking thing, for God's sake.

 

[Risus]

If the crime took place outside the USA, one could argue that the USA has NO RIGHT to try the individual. Which, in this case, I believe to be true. The Americans, alien combatants in a foreign country, engaged in a firefight with other alien combatants in a foreign country. No crime was committed on either side, as far as I'm concerned. But the Yanks insist on trying him....they pulled him out of Afghanistan, they healed him and transported him to territory under American authority.......he is therefore entitled to the protection of the US constitution.

Read it again......it says NO PERSON. I assume even Americans consider individuals not US citizens to be PERSONS. :roll: It is NOT being tried by the Cubans, but by US authorities.

If the US Constitution can be excluded from consideration in this context, then the US Constitution was a waste of paper and ink. Which I do NOT believe to be the case.

I HATE lecturing Americans on their own Constitution. Read the fricking thing, for God's sake.

So you are a frickin lawyer now, too, besides a gunslinger??

 

[Slim Chance]

If the crime took place outside the USA, one could argue that the USA has NO RIGHT to try the individual. Which, in this case, I believe to be true. The Americans, alien combatants in a foreign country, engaged in a firefight with other alien combatants in a foreign country. No crime was committed on either side, as far as I'm concerned. But the Yanks insist on trying him....they pulled him out of Afghanistan, they healed him and transported him to territory under American authority.......he is therefore entitled to the protection of the US constitution.

I believe that most would support your position in that the Americans have no place in "trying" Khadr - If there were to be any form of trial, that must be carried out by the Afghans and them alone.

The notion that Khadr is entitled to "protection" under the US constitution is confusing to say the least considering that the constitution applies only to Americans that are citizens or for individuals inside the American territory. Gitmo or other military installations are not afforded the same status of embassies. Having "authority" of a place is not the same as it being considered sovereign and public lands where the rights of the constitution are in full force.

Khadr does not qualify on any of the aforementioned.

The determination of "criminal" actions (via Khadr) can be adjudicated through the Afghan government and/or the UN as it is the UN that is acting on behalf of, and at the request of, the Afghanistan government.

 

[TenPenny]

The alleged crime took place outside of the USA, was committed by a non-US citizen and was initially to be tried in Cuba. The US constitution has no bearing in this process at this time.

That being the case, the US has no right to hold him in custody.

Case dismissed.

 

[earth_as_one]

Khadr is as much as a foreigner in Afghanistan as are the Americans, at best he can be considered a mercenary - Khadr was not recognized as a member of the Afghan military and as such, the use of the term soldier is not relevant.

Khadr should never have been removed from the jurisdiction where the event occured. He should have been detained in an Afghan prison and any trial should be carried out by the Afghan authorities.

As far as I know, Khadr was not paid for his service. He volunteered or was volunteered by his father. He has as much right to fight in Afghanistan as all the Canadians who volunteered and fought in the Spanish civil war.

Mackenzie-Papineau Battalion - Wikipedia, the free encyclopedia

 

[earth_as_one]

That being the case, the US has no right to hold him in custody.

Case dismissed.

The US classified Khadr as an unlawful combatant. The term is not recognized by international law.

The phrase "unlawful combatant" does not appear in the Third Geneva Convention (GCIII).[1] However, Article 4 of GCIII does describe categories under which a person may be entitled to POW status; and there are other international treaties that deny lawful combatant status for mercenaries and children. In the United States, the Military Commissions Act of 2006 codified the legal definition of this term and invested the U.S. President with broad discretion to determine whether a person may be designated an unlawful enemy combatant under United States law. The assumption that such a category as unlawful combatant exists is not contradicted by the findings of the International Criminal Tribunal for the Former Yugoslavia in the Celebici Judgment. The judgment quoted the 1958 ICRC commentary on the Fourth Geneva Convention: Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. Furthermore, "There is no intermediate status; nobody in enemy hands can be outside the law,"[4] because in the opinion of the ICRC, "If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action".[1][5]

Unlawful combatant - Wikipedia, the free encyclopedia

 

[Risus]

That being the case, the US has no right to hold him in custody.

Case dismissed.

The thing is, Khadr and his cohorts are scum and should be treated as such.

 

[Slim Chance]

That being the case, the US has no right to hold him in custody.

Case dismissed.

Or more appropriately; Case and prisoner transferred to Afghanistan