The federal government has asked the United States not to use Canadian-collected evidence in prosecutions against Omar Khadr, a gesture observers are calling “inadequate and invalid.”
In a statement released late Tuesday, Justice Minister Rob Nicholson said Ottawa delivered a “diplomatic note” to the United States in response to last month's Supreme Court of Canada ruling that the government's participation in Mr. Khadr's detention at Guantanamo Bay, Cuba, violated his constitutional rights.
The evidence that is the subject of the letter was gleaned in interrogations with Mr. Khadr in 2003 and 2004 that the court deemed illegal, and that could be used against him in U.S. proceedings.
In its 9-0 ruling, the court also denounced the government's participation in the interrogation and U.S. officials' use of sleep deprivation to weaken the prisoner, who was 15 at the time.
Mr. Khadr's Canadian legal team will attempt to quash the government's decision to extend only a note to the United States, and will apply for a hearing as early as Wednesday to request that Ottawa do more, his Edmonton lawyer, Nathan Whitling, said.
“We're not surprised by the nature of the decision given that this government has obviously showed a biased predisposition to do nothing to help Omar,” he said, adding that “this token gesture” won't have a significant effect on a trial he calls “a kangaroo court.”
Mr. Whitling said he had asked the government for advance notice of any response to the Supreme Court ruling to allow time to make submissions.
Alternatives to the diplomatic note could have been a move to make sure Mr. Khadr received a fairer trial at Guantanamo Bay, where he's detained, or a request for repatriation, he says.
In the statement, Mr. Nicholson noted that the Supreme Court did not require the Canadian government to ask for Mr. Khadr's return.
The diplomatic note is not binding, which means the United States doesn't have to comply with the request, said Kent Roach, a law professor at the University of Toronto.
“I think it was always understood that the Canadian government wouldn't have the power to force a certain resolution on the United States,” he said. “But at least this represents now a formal response to the court judgment.”
He said he doubts the U.S. government would even need the Canadian evidence given the length of time Mr. Khadr has been interrogated and kept in custody. It could acknowledge the note, but likely continue with its prosecution, he said.
Human-rights crusaders criticized the government's move last night, saying it ignores key pieces of the Supreme Court ruling, which stopped just short of ordering Mr. Khadr's return.
“This note would only potentially address the fruits of the interrogation, it would not address his detention,” said Sujit Choudhry, a law professor at the University of Toronto and counsel to the British Columbia Civil Liberties Association. “The court laid the detention at the feet of the Canadian government and it didn't just act.”
Alex Neve of Amnesty International Canada called Mr. Nicholson's announcement “profoundly disappointing, but not all that surprising.”
“It does nothing to address the grave human-rights violations Omar Khadr has experienced, including his plight as a child soldier, the torture and ill treatment he has experienced, and the deeply unfair nature of the military commission process that still looms ahead,” the secretary general for the organization said.
Mr. Khadr, now 23, was captured by U.S. forces after a four-hour firefight with militants in Afghanistan. He has spent the past seven years in a Guantanamo Bay prison.
He is accused of throwing a grenade that killed a U.S. soldier.
With a report from The Canadian Press
