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Posts Tagged ‘War on Terrorism’

Khadr in the Canadian Supreme Court

January 30, 2010 Leave a comment

Readers who are following the progress of Guantánamo-related cases through domestic courts around the country will be no doubt familiar with the case of Omar Khadr (left). Arrested and detained in Guantánamo Bay while he was a minor, Khadr is a Canadian citizen who had secured a lower court ruling directing the Canadian government to make representations for his release. The Government challenged that decision in the Supreme Court, largely on the basis that the exercise of diplomatic functions is an Executive function from which the courts ought to exclude themselves or, at least, in which they ought to minimise their role quite significantly.

In the Canadian Supreme Court’s decision in Prime Minister of Canada v Omar Khadr [2010] CSS 3 there is a clear recognition of the participatory role of the Canadian government in the unlawful detention with statements provided by Canadian officials being one of the bases for his continued detention. However, while Khadr was entitled to a remedy the Supreme Court did not grant the remedy sought, i.e. an order that Canada request his repatriation. The Court did not accept that the government was immune from constitutional scrutiny when it comes to deciding on perogative powers. Rather, the court asserted its jurisdiction to decide (1) whether a claimed perogative power exists, (2) if so whether the Charter of Rights or constitutional norms have been breached in the exercise of that power, and (3) to make specific orders. However, the Court could not make an order directing the government to request repatriation as to do so is to infringe too greatly on the executive power relating to foreign affairs. The Court held that the appropriate remedy in such a case is to declare a breach of rights and then leave it to the government to decide how to react to that breach.

The judgment seems to be a mixture of judicial muscularity (the claim that the conduct of foreign affairs is not an area within which the government can act without scrutiny) and deference (the claim that the government can not be directed to act in a certain way without the foreign affairs arena). While this might, at first, seem to indicate a contradictory viewpoint on the part of the Supreme Court, in my view it is in fact a good example of the kind of ‘nudging’ judgment we have seen in both the US and the UK superior courts in the ‘War on Terrorism’ (I have written about this here in the MLR and, forthcoming, also in the OJLS with an early, unproofed version here). What will happen if the Government does nothing or is not forced into doing something by parliament and ‘the people’? That is perhaps the lingering question from Khadr. The hope is that it will not fall to the Court to decide it and, instead, the government will take steps to try to have Khadr repatriated.

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Lithuanian Enquiry into CIA Secret Prisons

December 22, 2009 Leave a comment

A parliamentary enquiry in Lithuania has concluded that the CIA ran two secret prisons in that jurisdiction to which various suspected terrorists were ‘extraordinarily rendered’ in the aftermath of the 11 September 2001 attacks. According to the Irish Times news report the enquiry has found that the detention centres were opened and operated in conjunction with the Lithuanian intelligence agencies and that there was no domestic political approval of them. This adds Lithuania to Poland and Romania as European jurisdictions in which such prisons operated.

This is worrying in a number of respects. First of all there is, of course, the concern that a European jurisdiction allowed for the operation of these ‘ghost prisons’. These prisons were clearly intended to circumvent US and international law. Furthermore, they were designed and operated in a manner that attempted to ensure that the domestic law of the relevant state could not be availed of by detainees in any attempt to secure their liberty. The idea of designing a detention centre that would operate outside of the law is almost certainly to ensure that intelligence officers can use whatever mechanisms they deem appropriate or necessary in order to acquire ‘intelligence’ about the detainees’ alleged activities without the spectre of legal accountability for such actions. It seems unlikely that thoughts at that time were directed towards acquiring evidence that could be used in a court of law—there would, after all, be clear questions of admissibility if sustainable claims could be made that information was acquired in an unconstitutional manner. Rather, the information to be gathered was clearly ‘intelligence’—i.e. designed to be used in counter-terrorism design and operations as opposed to in any prosecutorial process. Read more…

A Mixed Week on Accountability for Renditions

November 5, 2009 Leave a comment

Maher_Arar_31626sThis week saw two contrasting results emerging from courts in the United States and Italy regarding extraordinary rendition. In the United States, the case of Maher Arar (right) was once more rejected by the US Court of Appeals for the Second Circuit. In Italy, however, 23 CIA agents were convicted in absentia in relation to their involvement in the ‘snatching’ of Egyptian Osama Moustafa Hassan Nasr from the streets of Milan in 2003. The contrast in the courts’ approaches in these cases could hardly be more pronounced.

In Arar (opinion available here), the Court refused to allow Canadian national Maher Arar to sue the United States for sending him to Syria where he was tortured because Congress had never expressly authorised such suits. Arar therefore failed to create what is known as a Bivens action, i.e. an action for breach of constitutional rights, in relation to extraordinary rendition. This was because, the Court held, the creation of a Bivens action in this respect would have implications of foreign policy and security activity. Congress could, of course, create such an action by statute but the Court would not do so itself. There is little doubt that this will be appealed.

In Italy, in contrast, Judge Oscar Magi of the Fourth Chamber of the Court of Milan appeared to have little hesitation in convicting the 23 Americans for their involvement in rendition although there were a number of others who were not convicted as a result of diplomatic immunity and the withholding of evidence on national security grounds. This case is sure to be appealed, and no sentences are executed in Italy until all appeals are completed, but in any case the agents are not in custody. The US State Department has expressed its disappointment at the verdict. Read more…

Former Guantánamo Bay Detainees Granted Leave to Remain

September 28, 2009 Leave a comment

The Irish Times reports today that two Uzbek nationals who had been 160px-Dermot_Aherndetained in Guantánamo Bay for seven years but who were found not to be a threat to national or international security have now arrived in Ireland. The former detainees could not be returned to their own countries of origin as there was a real risk that they would be subjected to persecution there. The former detainees have been granted leave to remain by the Minister for Justice, Dermot Ahern (right).

As a legal status, leave to remain is normally granted where someone has been unsuccessful in an asylum application but there are humanitarian reasons for not returning the person to their country of origin. This is provided for under s. 17 of the Refugee Act 1996. However, leave to remain can be granted in broader circumstances than this as it is a discretionary status. Recently a large number of people have been granted leave to remain on the basis of their being the parents of Irish born children, for example. Read more…