OTTAWA (Reuters) - Canadian courts grossly overstepped their authority when they ordered Ottawa to ask Washington to repatriate a Canadian held at the U.S. military prison at Guantanamo Bay, a lawyer for the federal government argued on Friday.
The government wants the Supreme Court of Canada to overturn lower court decisions that ruled it had to ask the United States to repatriate Omar Khadr, who is accused of killing a U.S. soldier during a 2002 firefight in Afghanistan.
The court heard oral arguments on Friday, and Khadr’s legal team asked it to give a speedy ruling.
The hearing before Canada’s highest court coincided with an announcement from U.S. Attorney General Eric Holder that Khadr was one of 10 Guantanamo inmates -- among 215 held there now -- against whom prosecutions would proceed.
Khadr’s lawyers say Ottawa violated Khadr’s rights in refusing to ask the United States to send him home, but the federal government argues the courts could not dictate how it conducts foreign affairs.
“The courts have no more authority to order the government to request (Khadr‘s) repatriation than they have the power to order the government to recall the U.S. ambassador in protest or to order the government to amass our warships on the Baltic,” federal lawyer Robert Frater told the court.
Two successive federal governments have declined to seek the repatriation of Khadr, now the last citizen of a western nation held at the Guantanamo prison on Cuba.
“We believe the U.S. legal process announced today should run its course,” Conservative legislator Pierre Poilievre said on behalf of the government, noting that Khadr is charged with murder and with preparing roadside bombs in Afghanistan.
Khadr’s case has not been helped by the fact that he is from a family with close ties to al Qaeda leader Osama bin Laden. His late father was an al Qaeda financier.
His lawyers say he was a child soldier, only 15 years old when he was wounded in the Afghan firefight and captured. They also charge the United States tortured him in Guantanamo by depriving him of sleep.
Some of the judges seemed reluctant to create a new duty for the federal government to protect its citizens abroad, given the lack of precedent.
“No national court has ever recognized such a duty to repatriate, to protect,” Justice Marie Deschamps told Khadr lawyer Nathan Whitling.
The situation surrounding Khadr remains uncertain, in light of President Barack Obama’s order that the Guantanamo prison be closed and Holder’s announcement that Khadr’s case would proceed in a revamped military tribunal, likely on U.S. soil.
A U.S. civilian lawyer who has represented Khadr called Washington’s decision to proceed with the prosecution “utterly wrong-headed,” because the rules for the military tribunals are still being written and remain untested.
“We need a system, a truth-seeking system, which is tried and tested and has basic fundamental guarantees of due process and fairness,” Barry Coburn said, adding that he did not think the tribunals would meet that standard.
With reporting by Jane Sutton in Miami.