From banking to healthcare, looking to Canada has become fashionable of late. It is also an example on equality rights. I served as an officer in one of the first Canadian warships to deploy with women among its crew. That was only after a spirited campaign waged by the military against the integration of women in combat roles, in part on the basis that they would undermine the cohesion and fighting effectiveness of combat units. There would be privacy issues, sexual tension, an erosion of the essential masculine warrior ethos, and ultimately a degradation of military effectiveness.

All of this was proved false of course. It was proved false again a few years later, in the early 1990a, when the Canadian military was again forced to adhere to the country’s constitutional values and open its ranks to openly gay and lesbian members. To the extent there was any disruption (and most studies have found there to have been none), it was minor and temporary, as the military sub-culture adjusted very quickly to the new reality – a reality that better conformed to the values of the society the military is sworn to defend.

The experience of Canada, Britain, Israel, Germany, Australia, and many other democratic allies of the United States (the troops of which are fighting alongside Americans in Afghanistan) have demonstrated that there is no significant impact on military effectiveness by the integration of gay and lesbian troops. Quite the contrary. As with the admission of women, and racial minorities before that, it broadened the recruitment base and increased the number of highly skilled personnel available to the military.

Moreover, to the extent that some think there might still be some disruption of cohesion, it is important to note that the cause would necessarily be the underlying prejudice and homophobia within the military sub-culture. To argue against integration is to suggest that such prejudice should be protected and nurtured. That is profoundly inconsistent with the values of a democracy, and utterly untenable. It was rejected decades ago when the discrimination against non-white troops was terminated.

Even putting aside questions of motive or rationale, the policy denying people the opportunity to serve in the military because of their sexual orientation constitutes unjust discrimination that is entirely at odds with the fundamental right to equal protection. The right to be treated as an equal, and not be discriminated against on the basis of shared but personal characteristics that are tied to one’s sense of identity and dignity, is a right that is at the foundation of all liberal democratic systems, and a bedrock of international human rights.

The violation of that right simply cannot be justified in this context. Not only is there no important purpose served by the policy, given the compelling evidence that integration would have no significant impact on military effectiveness, but the disproportionate harm it causes is extreme. As compared to a marginal and temporary impact at the very most (and most studies of such transitions in other countries demonstrate that there is no impact at all), the discriminatory policy not only injures those gay and lesbian members who are denied entry or are drummed out of the military. Rather, the policy perpetuates the societal prejudice against all homosexuals. The policy effectively communicates to the entire society that homosexuals are less worthy of our respect and concern than the rest of Americans. It signals that gays and lesbians cannot be trusted to serve in the defence of the nation.

But the harm does not even end there. It not only causes egregious harm to all gay and lesbian members of our society, but it erodes the normative power of the right to equality itself, and thereby undermines the very values of our democracy. It casts the United States as a backward nation relative to other liberal democracies in the protection of equality rights, and human rights more generally.

We used to quip in the Navy that “we are here to defend democracy, not to practice it.” Nothing could be further from the truth. A military cannot defend a democracy while doing violence to the democratic values that constitute the very foundation of the nation.

President Obama, in accepting his Nobel Prize, spoke in lofty terms about the requirement that all nations, weak and strong, must adhere to the legal standards that govern the use of force. He noted that the U.S. had played a leading role in creating that legal framework. And he went on to underline that the U.S. too must respect international law: “America cannot insist that others follow the rules of the road if we refuse to follow them ourselves. For when we don’t, our action can appear arbitrary, and undercut the legitimacy of future intervention — no matter how justified.”

And yet the absence of any public discussion or analysis of the legal issues raised by America’s efforts against terrorism is striking. Whether it be torture and extraordinary rendition, military commissions, the targeted killing by drone attacks in Pakistan, the planning of CIA assassination squads, the large number of civilian deaths in air strikes in Afghanistan, or even the prospect of military strikes in Iran, all of these raise significant and complex international law issues. But you will not find any meaningful discussion of those issues in the media, or indeed in the talking points, blogs, or analysis produced by most liberal or progressive organizations.

Consider the contrast between the media coverage of such topics and the analysis of the issues surrounding the Israeli operations in Gaza earlier this year. There were countless articles examining the legal significance of the claims that the Israeli use of force was disproportionate, that civilians and civilian structures had been targeted, and that Israeli forces were using illegitimate munitions. The coverage was often sympathetic to the Israeli position, but there was nonetheless an examination of the legal issues involved. In contrast, when in the same month American forces killed Afghani civilians in air strikes, there was no such analysis – the entire discussion revolved around the strategic and political ramifications of killing civilians.

Liberal advocates say in private that they did not want to raise the international law arguments against torture, because such arguments “do not play well” in middle America. So the focus of the debate in this country was on the ineffectiveness of torture, and how counterproductive it could be. That is a dangerous argument to stake one’s entire position on. The fact is that the prohibition of torture is one of the very few peremptory norms in international law (known as jus cogens norms) – meaning it is one of the most bedrock principles of international law that nations may not derogate from under any circumstance. The other such norms include the prohibitions on slavery, genocide, and piracy. Yet in America, the debate was over when and under what circumstances we might derogate from the norm, and liberals were afraid to raise the law, because it does not “play well.”

The danger in all of this is that if liberals and progressives are afraid to make the argument for international law and the rule of law, then the argument will not get made. Progressives, afraid of looking weak, abandon the defense of the rule of law in favor of functional arguments. And so the country lurches ever rightward, in a one-way ratchet effect, with crucial principles being left by the side of the road as political liabilities.
Yet this country is supposed to be a “nation of laws” that preaches to the world the importance of the rule of law. These principles are supposed to be foundational, part of the constitutional DNA of the nation. They are part of the identity that is presented to the rest of the world. It cannot reject international law without doing violence to its own notions of the importance of law and the rule of law.

Moreover, as President Obama said, if the U.S. does not respect and observe the international legal standards, then it will lose its legitimacy and moral authority in the world. And that means that the extent to which American policy conforms to international law, from military commissions to targeted killings in Pakistan, must be part of the national discourse. So progressives have to engage the legal issues more, both to help preserve the country’s identity as a nation of laws, and to help ensure that we at least understand whether policy complies with the law.

The current debate in the United States over the war effort in Afghanistan contains no shortage of opinions on the best strategy for defeating the Taliban, but far too little discussion regarding the actual objectives of the war. The famous Prussian strategist Carl von Clausewitz wrote about war that “the political objective is the goal, war is the means of reaching it, and means can never be considered in isolation of their purpose.” But in the current debate on Afghanistan we risk doing just that — arguing about strategy without a clear understanding of our goals.

So what are the objectives in Afghanistan? What is the purpose for which we are fighting this war? The problem is that they have shifted over time. At the outset, the coalition invasion of Afghanistan was an act of collective self-defense in response to the 9/11 attacks. The objective was to prevent further attack by disrupting and destroying al-Qaida forces operating out of Afghanistan, and overthrowing the Taliban regime that supported them.

These objectives were largely achieved. The coalition has remained in Afghanistan under U.N. authority to establish security in the country, in the face of a simmering insurgency. Now we are debating the best strategy for suppressing an increasingly revitalized insurgency. But before arguing about strategy, the question should be why it is in our national interests, and indeed in the interests of each of the coalition members, to make crushing the insurgency the primary objective.

The two most oft-repeated reasons for the necessity of suppressing the insurgency (aside from vague talk about “winning”), are that doing so would deprive al-Qaida of a base in Afghanistan, and that it would prevent instability and insurgency spreading to Pakistan. Both of these rationales, however, depend on assumptions that are questionable.

First is the assumption that depriving al-Qaida of a base in Afghanistan is essential to our wider efforts against al-Qaida. According to the U.S. national security adviser, Gen. James Jones, al-Qaida is already “very diminished” in Afghanistan. Most reports indicate that al-Qaida’s top leadership in Afghanistan has been decimated, and that the survivors are largely in Pakistan and elsewhere.

This underlines the fact that al-Qaida is a decentralized transnational terrorist movement, not a guerrilla army. Its members can just as easily operate from Yemen, Somalia, Sudan or any number of other bases, often simultaneously. Denying al-Qaida a base for operation may seem a reasonable objective, but large-scale military operations against local forces in every country in which al-Qaida could potentially operate is neither feasible nor would it be effective. It cannot, therefore, be the primary purpose of a counterinsurgency war in Afghanistan.

Part of the problem is that we continue to conflate al-Qaida with the Taliban and other militant forces, both in Afghanistan and in Pakistan. The strategic objectives, methods, and the core ideology of al-Qaida are different from those of the militant forces we are fighting in Afghanistan.

We are fighting a local nationalist insurgency that seeks to gain political power. In general the Taliban and other militant groups, unlike al-Qaida, do not view us as ideological enemies of Islam to be fought on a global stage, but rather they view us as being similar to the British and Soviets of the past, foreign invaders to be driven out. And there is increasing evidence that were the Taliban of today to regain power, it would be wary of again providing the same level of support to al-Qaida.

Turning to the goal of preventing nuclear-armed Pakistan from falling to radical Islamic fundamentalists, the assumption that Pakistan is vulnerable to the spread of radical forces from Afghanistan is similarly questionable. To begin, the Pakistani military is modern, professional, and large (700,000 active duty troops), and is the most disciplined institution in the country. Despite recent high-profile attacks on the military, and the military’s reluctance to use force against its own citizens, the Pakistani Army has shown itself capable of acting effectively against the militants when it has chosen to do so.

We also tend to conflate the Taliban with militant forces within Pakistan, and simplistically view them all as radical Islamists. But they are not the same, and there are tensions and conflicts among them too. There has been no indication that a Pashtun-dominated Taliban could gain control over a country where 1 in 3 people are Punjabi. Ethnic loyalties still dominate Pakistani life and despite isolated attacks in the Punjab, the Taliban has never had a significant presence there. The recent terrorist attacks in Pakistani cities should not be taken as evidence of any desire to overthrow the state, but rather, should be understood as a response to the military operations in the tribal areas. Looking to the historical record, when the Taliban ruled Afghanistan in the 1990s, the situation did not create any instability or cause the spread of radical ideology within Pakistan. And today, according to a recent Gallup Pakistan poll, a full 41 percent of respondents favored military operations against the Taliban.

Beyond denying al-Qaida a base in Afghanistan and preventing the spread of instability to Pakistan, there may be other possible reasons why it is in our interest to maximize the coalition efforts to crush the Taliban insurgency. And it is certainly not in anyone’s interest for NATO forces to withdraw from Afghanistan expeditiously. But if we are going to get the policy right, we must start with the issue of our objectives and the overall purpose for our being in Afghanistan. Only then can we have a meaningful discussion about strategy.

The debate over climate change legislation is beginning to heat up. The American Clean Energy and Security Act was passed by the House and is now before the Senate. The debate on this issue typically takes the form of environmental concerns about global warming pitted against economic fears about the cost of reducing greenhouse gases. It is often framed in left-right terms. But as Americans think about whether to support this legislation, they should ponder the national security implications of climate change.

The recognition that global warming will increase the threats to our national security and place ever greater demands on our military is not new. The Bush administration acknowledged the issue in the 2006 National Security Strategy. A national security think tank comprising retired military officers, including Marine General Anthony Zinni, issued a report on the subject in 2007, identifying the various ways in which man-made climate change will directly affect national security.

Areas of the globe will be increasingly ravaged by drought, on the one hand, and flooding from extreme storms and rising sea levels on the other. These will cause mass migrations of refugees, the breakdown of societies and resulting conflict over reduced arable land, living space and other resources. The conflict in Sudan today is in part caused by the prolonged drought in the region. The massive movement of refugees that followed both the recent flooding in Bangladesh and the typhoon that hit Myanmar are other examples of such climate-related disruption. Climate change is seen as a “threat multiplier” that intensifies instability and sows the seeds of conflict.

Such instability and conflict will affect the United States. Armed conflict and massive political upheavals pose the risk of ever-wider hostilities and thus draw the world powers into the fray if only to contain it. Dislocation and instability will also lead to the failure of states, which become incubators for the development of other threats. Consider Somalia in the 1990s and again today. The failed state of Afghanistan in the 1990s provided a base for the planning and launching of the Sept. 11 attacks. The initial failure of Afghanistan was not caused by global warming, but a study conducted for the National Intelligence Council predicts that climate change raises the risk of many more failed states in the future.

The Pentagon and the State Department increasingly factor these expected ramifications of man-made climate change into their strategic planning and policy development. But the impact on national security should also be part of the broader debate on emissions policy. The greater and more rapid the climate change, the more quickly these threats will emerge – and the greater will be the impact on our national security.

Thus, efforts by the United States to reduce carbon emissions and to lead the rest of the world in tackling global warming are partly an effort to reduce the likely threats to our own national security. As the military strategist Sun Tzu wrote more than 2,500 years ago, the very acme of military skill is never having to fight a battle. General Zinni echoed this wisdom recently, saying “we will pay to reduce greenhouse gas emissions today … or we’ll pay the price later in military terms. And that will involve human lives.”

Some still cling to the tired argument that the link between human activity and climate change has not been “proven.” But in military and strategic matters, we do not wait until a risk has actually exploded into reality or wait for potential threats to be proven before developing our defenses. We defend against our best estimate of the future threat. So even if some holdouts continue to doubt the causes of global warming, prudence still dictates that we act now to respond to the risk.

Of course, the scientific community overwhelmingly endorses the position that humans are causing global warming and that we are near the point of no return. Meaning, unless we take action now, climate change will increasingly and radically multiply the threats to our national security, and the future drain on our military resources will dwarf the economic cost of taking action today. And we will pay in blood as well as treasure. That is something we would do well to remember when we consider the climate change bill before the Senate.

The Supreme Court of Canada handed down a judgment relating to detainees in Guantanamo Bay on May 23, holding that the one Canadian detained there may rely upon the Canadian Charter of Rights and Freedoms to obtain some due process protection from the Canadian government.

Overview

The decision has already been reviewed briefly from the perspective of Canadian constitutional law on the University of Toronto and Osgoode Hall law school blogs, so I will not repeat that process here. But the decision has importance from the perspective of international law, and the relationship between international and constitutional law.

I would suggest that the judgment refutes the arguments, voiced most recently by several scholars at the ASIL conference in April, that there are circumstances in the so-called “war on terror” in general, and the treatment of detainees in particular, in which neither constitutional law or international law (whether human rights or humanitarian law) ought to govern the conduct and procedures of the detaining forces.

The Supreme Court held that it is precisely when the agents of the Canadian government participate in conduct and circumstances that constitute violations of international law, that the application of the Charter will be triggered and its protections available to detainees (or at least Canadian detainees – more on that distinction below).

Background

Omar Khadr was 15 years old when he was captured by U.S. forces in Afghanistan in July, 2002. He was one of the few detainees who has been arraigned and who is actually moving towards a trial before the much-disputed Military Commissions in Guantanamo Bay. He has been charged with murder and with conspiracy to commit other acts of murder and terrorism. The murder charge arises from the death of a U.S. soldier during the skirmish in which he was captured.

The Supreme Court decision was in respect of an application by Khadr for full disclosure of all information in the hands of the Canadian government that may be relevant to his case. He had been interviewed and interrogated by officials of the Canadian government in Guantanamo Bay, and the evidence reflected that the Canadian government had shared some of the information so obtained with the U.S.

The importance of disclosure to his case before the Military Commissions is difficult to overstate, as detainees obtain only very limited disclosure from the prosecution. After the U.S. Supreme Court held that the procedures of the Military Commissions were unlawful in its decision in Hamdan v. Rumsfled (2006), Congress promptly passed the Military Commissions Act to provide the legislative authority for most of those same procedures. They included the admissibility of evidence obtained through “coercion”, denying the accused access (even at the hearing itself) to classified evidence, and even excluding the accused from the hearing in certain circumstances. The disclosure obligations on the prosecution are very limited.

There has yet to be a full trial before the Military Commissions, but the conduct of the Combat Status Review Tribunals (CSRT), which were created to determine whether detainees met the definition of “unlawful combatant” for the purpose of prosecution, have been analyzed by a team at Seaton Hall Law School (report here). The denial of the most fundamental rights expected in administrative and judicial proceedings was found to be extreme, and is suggestive of the entire Military Commission process.

Indeed, the D.C. Circuit Court held in Bismillah v. Gates (2007), that the lack of disclosure by the government in judicial review proceedings of CSRT decisions was unconstitutional. But there is little relief in sight with respect to the lack of due process in the Military Commission hearings themselves (the other significant Guantanamo case before the U.S. Supreme Court, Boumediene v. Bush, in which Khadr is also a party, relates primarily to the legality of the provisions of the Military Commissions Act that purported to strip the federal courts of habeus corpus jurisdiction with respect to detainees). Thus any disclosure Khadr can get from the Canadian government will be helpful for his case.

The Decision

Khadr sought full disclosure from the Canadian government, on the grounds that section 7 of the Charter governed his relationship with the Canadian government. Section 7 of the Charter, which provides for the “right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”, was interpreted in the seminal case of R. v. Stinchcombe (1991), as requiring the government to provide the accused in a criminal proceeding, whose liberty interests are thus at stake, with full disclosure of all material relevant to the issues in the case. The government argued that the Charter did not apply to the operations of government officials operating abroad, and that Stinchcombe was thus irrelevant.

In deciding the case in Khadr’s favour, the Supreme Court expanded an exception it had created in R. v. Hape (2007), the case which revised the general principles for Charter application to the conduct of government officials abroad. The basic rule is that the Charter will not apply, due to the deference owed to the laws of the foreign jurisdiction in which the Canadian agents are operating. Such deference, manifested by refraining from any attempt to extend the operation of one’s own laws to conduct within a foreign jurisdiction, is required by the principle of comity in international law. But the Court held in Khadr that where the conduct in which the Canadian agents are participating violates international law (and more specifically Canada’s international law obligations), then the basis for deference is negated, and the Charter will apply to the extent of the participation.

Rather than engage in an independent inquiry into the extent to which conduct in Guantanamo Bay violated international law, the Court simply relied upon the decisions of the Supreme Court of the United States in Rasul v. Bush (2004) and Hamdan v. Rumsfeld(2006) as the basis for finding that the deprivation of habeus corpus, and the procedures established for the operations of military commissions, were in violation of international law and illegal under U.S. law during the period in which Canadian agents interrogated Khadr in Guantanamo.

As such, the Court held that “the regime providing for the detention and trial of Mr. Khadr at the time of the [Canadian interviews] constituted a clear violation of fundamental human rights protected by international law.” (para. 24) Canadian agents participated in that activity, which would have clearly been a violation of Khadr’s Charter rights had it occurred in Canada, and the violation of international law by the U.S. negated the deference that would otherwise prevent application of the Charter.

The crux of Canadian participation in the process was the obtaining information from Khadr and providing it to the U.S. Thus, the Court reasoned, the refusal to disclose the information related to those interviews was a breach of section 7 of the Charter, and Khadr’s remedy is to obtain disclosure of that information, subject to possible privilege claims (the remedy is significantly narrower than that sought, which was disclosure of all relevant information in the government’s possession – it is entirely unclear to me why the order would not at least also include any information that the government received from the U.S. in the course of the interviews and information exchanges related thereto).

Significance

As indicated above, it seems to me that this decision refutes the arguments of some in the U.S. that the treatment of detainees in such places as Guantanamo, Afghanistan and Iraq, should not be subject to either the constitutional law of coalition countries, or international law. Moreover, as discussed elsewhere in these posts, the U.S. has undertaken efforts to ensure that detainees will not even have access to any protections afforded by the local legal system in Afghanistan either (and of course there is no other legal system available in Guantanamo), thus leaving them with virtually no legal protection whatsoever.

These arguments in essence suggest that constitutional law ought not to apply, since the nexus of citizenship, presence within the jurisdiction and so forth, do not exist to trigger its operation in respect of detainees. At the same time, since they are not lawful combatants in an international armed conflict, the laws of international humanitarian law should not apply. But since they are being detained in the “war on terror”, which is an armed conflict of a sort (or so the argument goes), international human rights law ought not to apply either. There is thus, according to these arguments, a legal black hole in which detainees can be afforded the most limited procedural protection and due process, entirely at the discretion of the detaining power.

The Supreme Court of Canada decision in this case, it seems to me, stands in stark contradiction to such arguments, with its holding that Canada’s constitutional protections and remedies will be applied by the Canadian courts precisely when it is determined that international law has been violated. In essence, rather than accepting the notion that these are circumstances in which no law will be deemed to apply, the Court has recognized what is effectively double coverage: international law is recognized as governing the treatment of detainees generally, and when it has been violated in circumstances in which agents of the Canadian government have participated, the Canadian Charter will also be applied to the extent of that participation.

As Sujit Choudhry notes in his initial discussion of the case (in the University of Toronto blog cited above), that will likely inform the Court’s pending analysis of Canada’s obligations to non-Canadian detainees captured by Canadian Forces in Afghanistan. The distinction there, of course, will be that the detainees are not Canadian, and the Court will not have U.S. precedents to rely on in assessing the question of Canadian participation in violations of international law. The issue of Canadian Forces’ compliance with the Geneva Conventions will be squarely before the Court, and it will be interesting to see whether the nationality of detainees will become a significant factor in the Charter analysis.

Thus, while there has been some early criticism of the decision (e.g. the Osgoode Hall blog noted above, which questions why the broader aspects of the government’s participation, and failure to act, in the Khadr case remains largely unexamined), from the perspective of the relationship between international and constitutional law, particularly in the context of the treatment of detainees in counter-terrorism efforts, the case may be viewed as a positive step, and one more blow against the black hole paradigm.