CRAIG MARTIN

Canadian Supreme Court Repudiates the Legal Black Hole Paradigm

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. Read the rest of this entry »

There is new fodder for the tortured torture debate in the U.S. New evidence is emerging that the government views secret ex ante determinations, presumably by the government itself, of whether harsh treatment of detainees may be justified by reason of necessity. It is useful to compare this position with the 1995 judgment of the Supreme Court of Israel, in which the Court rejected government arguments that it could find ex ante authority for harsher interrogation techniques in the principle of necessity.

An article in The New York Times on Sunday described how recent letters to Congress from the Department of Justice (DoJ) explain that the government reserves the right to decide on a case-by-case basis what interrogation methods would violate international law standards against mistreatment of detainees. Specifically, the letters from the DoJ state that where harsher interrogation measures are “undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse” then such measures could be determined to be not “outrageous” or otherwise in violation of international standards. Read the rest of this entry »

Defence Minister Peter MacKay is reported to be refusing to answer questions as to when he learned of the military’s decision to cease turning detainees over to Afghan authorities (Jan. 26 – “PMO Backtracks”), on grounds that to do so could “endanger the lives of Canadian Forces personnel”.

This is utter rubbish, as there is no conceivable scenario in which the disclosure of when he learned of the decision could be of any value to insurgent forces in Afghanistan, far less impact on any actual operations in Afghanistan. But it is far more dangerous that we increasingly allow our government to use assertions of “national security” and “military operations” considerations to shield their own acts, omissions, and policy decisions from the public eye. The detainee issue involves questions of Canada’s compliance with international law, and is thus of public importance.

There are times when national security requires secrecy, but we must be rigorous in demanding that the government justify with precision their attempts to invoke such secrecy. The media, in particular, should demand explanations of public figures as to how, exactly, the disclosure that is being refused would pose a threat to national security.

The New York Times carried a detailed piece on the U.S. detention policy in Afghanistan on Monday, January 7, 2007. It is an excellent overview on the prison, but the information provided in the piece gives rise to a number of international law issues that are not explicitly discussed or acknowledged in the article itself. I first review the salient facts, and then turn to the issues.

The facts

It reviewed the history of Bagram Prison and the extent to which it was in many respects worse than the facility in Guantanamo Bay. There are over 600 detainees being held there, most of whom have not been charged with any offence or been subject to any legal proceeding. Some have been held without charge for more than five years. The average detention is over 14 months long. Moreover, while U.S. authorities claim that all detainees are to be processed and “registered” within fourteen days of admission, and thus accessible to the International Red Cross when it visits, they also conceded that there were exceptions. An IRC confidential report, according to administration sources, claims that it has been denied access to a “warren of isolation cells” in the Bagram facility.

But what is more striking from the article is the account of how the U.S. Defence Department officials applied pressure on the Karzai administration to establish a regime of indefinite detention of “enemy combatants” along the lines of the so-called legal framework of Guantanamo Bay. President Karzai refused to sign the decree drafted with U.S. assistance to authorize and establish the regime.

A 2005 agreement to transfer the bulk of detainees to Afghanistan was the basis for a more detailed plan of transfer, as outlined in an exchange of diplomatic notes. The notes reflect that the U.S. sought to have the Afghanistan government share any intelligence obtained from detainees, to “utilize all methods appropriate and permissible under Afghan law to surveil or monitor their activities following any release,” and “confiscate or deny passports and take measures to prevent each national from travelling outside Afghanistan.” Read the rest of this entry »

The article “Nominee’s Stand May Avoid Tangle of Torture Cases” (New York Times, Nov. 1) seems to suggest that Mr. Mukasey’s reticence on the issue of water-boarding is prudent and reasonable. But the logic of the political explanations for the nominee’s position is actually deeply disturbing. Reduced to its essentials, it is this: “It would be bad for the President or his agents to be found to have engaged in criminal behavior, thus we will not define as criminal such actions that the President’s agents may have undertaken, or which he may have directed.” It would be no different, in terms of the form of argument, from saying “to the extent that the President’s agents may have decapitated American civilians, and that homicide is illegal, I am not prepared to say that decapitation is homicide”. It almost boils down to Richard Nixon’s infamous comment that if the President did it, it can’t be illegal. When the Attorney General will not even lay the case of possible executive wrongdoing before a court to decide, this country will be well on its way to sacrificing both the rule of law and the constitutional division of powers in the name of national security. (Submitted as a letter to the editor, New York Times)