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Omar Khadr deserves a fair trial, but does that mean he must be returned to Canada in order to get one?
A fair trial as defined by a defence attorney is one that biases the procedures and standards of evidence in favour of getting the accused released. Mr. Khadr, according to this view, should receive all of the legal rights, privileges and constitutional safeguards enjoyed by U.S. or Canadian citizens, regardless of the circumstances surrounding his alleged crimes. Simply put, it is argued that military operations in the midst of a counter-insurgency are identical to actions involving police officers arresting suspected criminals in downtown Toronto - a crime is a crime.
But consider the implications if this argument succeeds. Would troops be compelled to read captured fighters their rights (to remain silent), or to provide them with access to an attorney, or release them if they happen to be juveniles? Yes, the defence teams argue, that's for the military to deal with - there are important legal principles to uphold, regardless of the security implications that come with applying such rigid rules on the battlefield.
Competing interpretations of what constitutes a fair trial for enemy combatants who are captured in places such as Afghanistan encapsulate the dilemma Washington is facing today, and no defence attorney, human rights advocate, Canadian senator or government official has figured out where the right balance lies.
Critics sidestep this dilemma when defining the prerequisites for a fair trial in Mr. Khadr's case or when demanding his return to Canada. But if Mr. Khadr is returned, and if the Canadian government is forced to deal with this precedent-setting case, government lawyers will fight, much as their U.S. counterparts, to establish a different standard of fairness given the circumstances of battle. Ottawa would face much the same dilemma Washington has been dealing with since 2001 and would have to make many of the same arguments U.S. prosecutors have been making in Guantanamo.
The Canadian government would not establish military tribunals, but there is no reason to expect Mr. Khadr would be treated as a common criminal either. The implications for Canadian military operations and rules of engagement in Afghanistan are too important.
So, what is the Canadian alternative? How exactly would Ottawa deal with Mr. Khadr's status? Would we have to create our equivalent to an "unlawful enemy combatant?" What would Mr. Khadr's incarceration and treatment look like if he was moved to a Canadian prison facility, faced a military trial under Canadian military law (essentially our equivalent to a court martial proceeding) for the same crimes, based on the same evidence and circumstance?
How would Mr. Khadr's new defence team compare with the team he currently has in his corner (when it comes to qualifications, experience, record)? And what stronger collection of legal arguments (criminal, constitutional, international, humanitarian) would the new team offer that the current team has missed?
No one has easy answers to any of these questions.
Consider the fact that of the 900 or so detainees at Guantanamo's peak, 650 have been released and another 195 are at various stages of being returned.
That's a pretty impressive success rate for U.S. defence teams - about 80 detainees are currently scheduled for trial by military commission. It's remarkable, to say the least, that these defence teams secured the release of Mohammed al-Qahtani, one of the six high-value prisoners implicated in the planning and execution of the 9/11 attacks. They've compiled a storehouse of successful defence motions, legal decisions, Supreme Court rulings and other precedents that Mr. Khadr's team will be using to help his case.
Mr. Khadr's Canadian defence team would be working on (and learning from) its first case if he is returned to Canada. Is it in Mr. Khadr's interest to dismiss his U.S. attorneys, begin a new trial under a completely different system and start from scratch? It would take a considerable amount of time, with no clear resolution; so whose interests are being served by pushing so hard for his return?
Frank Harvey, an international relations professor at Dalhousie University is the author of the forthcoming book "The Homeland Security Dilemma: Fear, Failure and the Future of American Insecurity".
