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The federal government is telling the courts to back off when it comes to the Omar Khadr case and leave foreign affairs decisions to the Prime Minister and his cabinet.

In a hearing yesterday, Justice Department lawyer Doreen Mueller urged the Federal Court of Appeal to reject the Federal Court's April ruling that the government should request Mr. Khadr's return from the United States.

Ms. Mueller said the Crown rejects the view that the Charter of Rights and Freedoms applies when Canadians face charges outside the country.

"There is clearly no duty to protect citizens under international law," Ms. Mueller told the court.

The Federal Court has concluded that Mr. Khadr has Charter rights because Canadian officials were involved in his interrogations and shared information from those sessions with United States authorities.

Mr. Khadr is in custody at the U.S. base in Guantanamo Bay, Cuba, and military proceedings against him are in limbo.

He is accused of killing a U.S. soldier during a 2002 battle in Afghanistan when he was 15 years old. The United Startes government is reviewing its policies related to the controversial detention centre.

U.S. President Barack Obama came to office pledging to dismantle the centre, which was a key and highly controversial element of the U.S. response to the 2001 terrorist attacks.

Mr. Khadr's lawyers said yesterday that they suspect the United States would gladly hand over their client if Canada asks, but that the Harper government would rather the complicated legal case be dealt with by the Americans.

The President restated his Guantanamo promise last month, saying that some al-Qaeda terrorists will be moved to the United States to face trial or be imprisoned indefinitely without charge. He did not say when the 250 remaining prisoners will be moved.

Ms. Mueller argued that it is constitutionally inappropriate for the courts to interfere in foreign policy, which she said is the exclusive jurisdiction of the executive branch of government. The executive is made up of the Prime Minister and cabinet.

"It's telling the government of Canada how to conduct its foreign affairs," Ms. Mueller concluded. Further, the federal lawyer said there is only "one one-millionth" of a probability that the Americans would simply hand over Mr. Khadr if asked to do so by Canada.

Ms. Mueller appeared flustered at one point as she faced repeated questions from the three Court of Appeal judges on why Canada has not asked the United States, without a court order, to return Mr. Khadr. Ms. Mueller said the executive must balance a range of considerations, including national security, its relationship with the United States and the fact that Mr. Khadr is facing a legal process there.

As the judges continued to press, Ms. Mueller requested a break in the hearings and the judges did not return to the issue.

Mr. Khadr's lawyer, Dennis Edney, rejected the government's main argument that the courts should butt out of foreign affairs. He said there is always tension between the government and the courts when it comes to interpreting Canada's laws.

"At the end of the day, our governments are required to work in accordance with the law, and that's why we have courts of appeals," he said. "And so to turn around to a Court of Appeal and say that today is essentially telling them they're out of a job; you don't need them."