Skip to main content
norman spector

First, let's agree on the substance of yesterday's unanimous Supreme Court decision in light of wildly differing interpretations today:

Whatever one thinks about Mr. Khadr or his family, no one can possibly deny any more that Omar Khadr's constitutional rights have been grossly violated and still are being - though it's worth remembering that the conduct of Canadians condemned in the Court decision occurred under successive Liberal governments.

Second, the only point on which all experts and politicians appear to agree is that the option of the government doing nothing now is not an option.

Let's also note that in today's editorial entitled " A Moral Victory," The Globe - notwithstanding its longstanding position in the Khadr matter - is clearer on process than on outcome: "the only thing to do [is to ask]the United States to work out a mutually acceptable framework to release Mr. Khadr into Canadian custody and control."

Sitting down with the Americans makes good sense. But suppose there's no way at this time to reach a mutually acceptable framework to release Mr. Khadr into Canadian custody and control.

What then?

As the author of today's Globe editorial correctly notes:

"The court refrained, wisely, from ordering Ottawa to try to bring Mr. Khadr, a citizen, home from the United States prison at Guantanamo Bay, Cuba, where he has been for seven years. It was wise partly because the court lacks "institutional competence" in foreign affairs (as the court itself pointed out)… "

How would that incompetence disappear if the United States held to its position that Mr. Khadr will be tried by a military commission - notwithstanding knowing his age at the time he's alleged to have committed the crime.

Answer? It wouldn't in the least.

And why might we not be able to reach an agreement with the Americans at this time?

Consider President Barack Obama's predicament in the wake of the Massachusetts surprise and upcoming mid-term elections in which the Democrats are likely to suffer huge losses.

Consider his vulnerability to Republican attacks on security matters: the underwear near-miss followed by additional errors in interrogating the alleged perpetrator; the terrorist attack allegedly carried out by Major Nidal Hassan at Fort Hood - which featured another series of huge errors by his Administration; the deteriorating situation in what candidate Obama had once called the good war; the mess he's gotten himself into on his promise to close Guantanamo, including his recent decision to halt the repatriation of Yemeni prisoners back to their country for rehabilitation; today's flip-flop on trying Khalid Shaikh Mohammed in Manhattan… I could go on.

On the other hand, let's not assume that our two countries cannot reach an agreement in this matter.

Perhaps a full understanding of the Supreme Court decision would lead U.S. Attorney-General Eric Holder to re-consider whether there is still enough evidence to try Mr. Khadr before a military commission.

Perhaps the President would want to reach an agreement in order to re-assure his political base that he is still one of them.

Perhaps he'd at least want Canada to request Mr. Khadr's re-patriation so that he could reject it publicly and prove his toughness to security hawks.

Or perhaps he does not want to have the matter raised at all so as not to be put in a no-win situation.

The only way to determine the U.S. position is to sit down with authorities at the highest levels.

And the only authority on our side that is competent to assess their true position and the impact our actions would have on Canada-U.S. relations is the government, advised by DFAIT and perhaps by some experienced hands like Alan Gottlieb and Derek Burney.

And, whatever the Harper government decides to do in the wake of the Supreme Court decision, one of the last places you'd look for this kind of expertise, on which hundreds of thousands of jobs filled by ordinary Canadians depend, are among the ranks of the nine justices who sit on that Court.

Interact with The Globe