The Supreme Court's moral authority ought to be enough to persuade the Canadian government to do the right thing on Omar Khadr. If it isn't, one shudders to think what is. The Chief Justice with a small cannon on wheels? Guns at dawn?
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), and partly because matters of foreign affairs are a Crown prerogative, rarely to be settled by judges (as the court also pointed out). But because the court made a strong and unanimous declaration that Canada violated Mr. Khadr's basic rights, it was not necessary to order the government to do what any government that believes in basic rights should now see is the only thing to do: Ask the United States to work out a mutually acceptable framework to release Mr. Khadr into Canadian custody and control.
Mr. Khadr was 15 when he was captured in Afghanistan, after a firefight with U.S. soldiers in which Sergeant Christopher Speer was killed. He is accused of committing the war crime of murder, and has been incarcerated at Guantanamo Bay. After seven years, he has yet to come to trial.
Other Western countries, recognizing Guantanamo as a legal "black hole," pushed successfully to repatriate their nationals. Canada, though, sent its officials to interrogate Mr. Khadr - still a juvenile, with no access to counsel or indeed to any adult with a personal interest in him - and then turned over the fruits of those interrogations to the U.S. prosecutors. Even when Canada knew that Mr. Khadr had been subjected to three coercive weeks of sleep deprivation, it still held an interrogation.
As the court said, "Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects."
Mr. Harper was in Davos this week speaking eloquently for the enlightened self-interest of nations. Upholding basic rights, in the Khadr case and as a general principle, is also a matter of enlightened self-interest. It is impossible to imagine a repatriation request harming Canada's relations with the United States when other Western countries have made similar requests, and when Canada has fought bravely and at great human cost against terrorism in Afghanistan.
The Supreme Court shouldn't need guns at dawn, not in the Khadr case. It has exercised its moral authority, which is considerable. The Conservative government should now do the right thing, and negotiate Mr. Khadr's repatriation.