Blog of the International Journal of Constitutional Law

Supreme Court of Canada v. detention of juveniles at Guantanamo Bay

Today the Supreme Court of Canada heard oral argument in Prime Minister of Canada et al. v. Omar Ahmed Khadr. Slate’s Dahlia Lithwick (a fellow Canadian, if I am not mistaken) has a very nice story about it here. In a nutshell, the Canadian Supreme Court is being asked to clean up the legal mess that the United States government has created by indefinitely detaining at Guantanamo Bay, without trial, a number of alleged unlawful enemy combatants who are aliens. One of those aliens happens to be a Canadian, Omar Khadr, who, at the age of 15, was captured by the United States government then subjected to various forms of what used to be called torture but is now known more euphemistically as “enhanced interrogation,” which apparently included being used as a mop for his own urine while his hands and feet were chained together behind his back. (If you’re trying to visualize it: in yoga, this is called “bow pose,” but without the chains or urine.) Khadr’s legal argument is that the Canadian government is obligated to lodge a formal diplomatic request with the United States government for his repatriation, in part because the Canadian government has been knowingly complicit in the horrific abuse (beg your pardon, “enhanced interrogation”) he has endured. The Conservative government of Prime Minister Stephen Harper is appealing a lower court judgment in Khadr’s favor.

Perhaps understandably, given that she is writing for an American audience, Lithwick does not mention that the need for judicial intevention stems at least in part from the fact that the Harper government (whose right-wing Conservative Party holds a minority of seats in Parliament and thus hangs onto power purely at the sufferance of Canada’s left-leaning opposition parties) has not been-how does one put this delicately, yet without actually concealing the moral bankruptcy of the Harper government’s conduct–quite as keen about civil rights, or quite as willing to deviate from the wishes of the United States, as its Liberal predecessors.

For you comparative constitutional law insiders/scholars out there, you might want to take a gander at C-SPAN’s footage of the oral argument. It runs three-and-a-half-hours-plus, but if you skip forward to the 2:31 mark, you’ll catch Sujit Choudhry of the University of Toronto Faculty of Law arguing as to the appropriateness of mandamus relief.


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