Dan Gardner is the New York Times best-selling author of Risk, Future Babble, Superforecasting (co-authored with Philip E. Tetlock), and How Big Things Get Done (co-authored with Bent Flyvbjerg). His books have been published in 26 countries and 20 languages. Prior to becoming an author, Gardner was an award-winning investigative journalist. More >

It's Not About Omar Khadr

It's not about Omar Khadr. That's the key thing to remember about the latest twist in the seemingly endless saga of Omar Khadr. It's not about Omar Khadr.

On Friday, Khadr's lawyers filed yet another application with yet an-other federal court. They want the government to take action.

As part of Khadr's plea bargain, he was sentenced to a further eight years in prison, with Khadr to be returned to Canada after one year to serve the remainder of his sentence. The Canadian government was involved in these discussions. It agreed to the deal. The government "will implement the agreement between Mr. Khadr and the U.S. government," then-foreign affairs minister Lawrence Cannon told the House of Commons in 2010.

Under the plea agreement, Khadr became eligible to return to Canada in October, 2011. In April, 2012, Khadr's lawyers formally asked the government to request his transfer.

It hasn't. It's done nothing. Now Khadr's lawyers want a federal court judge to order Public Safety Minister Vic Toews to do his job.

But as I said, this is not about Omar Khadr.

To understand why, let's recall how we got here.

Khadr was 15 years old when he was gravely injured and taken prisoner in a battle between American and al-Qaeda forces in Afghanistan. For three months, he was treated severely and harshly interrogated.

Then he was sent to Guantanamo Bay for many more months of harsh interrogation. During this time, officials from the Canadian Security Intelligence Service and the Canadian Department of Foreign Affairs interviewed Khadr, and shared what he said with American officials.

Only two years after Khadr was captured was he permitted to speak to a lawyer, and even then he, like all Guantanamo prisoners, was for-bidden from asking a court to re-view the legality of his detention, in violation of the ancient and fundamental right of habeas corpus. And in violation of modern inter-national law, the Americans refused to give Khadr special consideration because of his age.

Khadr is a Canadian citizen, born in Toronto. There were many other citizens of western countries al-lied with the United States. British citizens. Australians. But in every case, their home governments asked the Americans to return their citizens to their custody. The Americans agreed.

Only the Canadian government refused to seek the repatriation of its citizen.

Eventually, American officials charged Khadr with allegedly throwing a hand grenade that killed an American soldier. He was set to stand trial before a special military tribunal operating under rules that hamstrung the defence. Critics said it would be a kangaroo court. The procedure was later made some-what fairer, but was still far below the standards expected of a civilian court anywhere in the Western world.

In 2010, a federal court judge agreed that the involvement of Canadian officials in Khadr's detention and interrogation brought the Charter of Rights and Freedoms into play and that Khadr's Section 7 right to security of the person had been violated. It ordered the government to ask the American government to send Khadr back to Canada. The federal court of appeal agreed. So did the Supreme Court.

"Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being in-definitely detained, was a young person and was alone during the interrogations," the court found. "Further, the March 2004 interview, where Mr. Khadr refused to answer questions, was conducted knowing that Mr. Khadr had been subjected to three weeks of scheduled sleep deprivation, a measure described by the U.S. Military Commission in Jawad as designed to 'make [detainees] more compliant and break down their resistance to interrogation.'"

"This conduct," the court concluded, "offends the most basic Canadian standards about the treatment of detained youth suspects."

But then the Supreme Court balked.

Traditionally, courts have been very deferential to a government's exercise of its prerogative power to direct foreign affairs. And for good reason. Courts have not the expertise, capacity, or mandate to con-duct foreign affairs. But they do have the expertise, capacity, and mandate to uphold the Constitution, including the Charter of Rights and Freedoms - which had clearly been violated.

The Supreme Court tried to square the circle. "We conclude that the appropriate remedy is to declare that, on the record before the Court, Canada infringed Mr. Khadr's s. 7 rights, and to leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter."

So the Supreme Court didn't order the government to ask for Khadr's return. It did not order the government to act at all. But given the gravity of the ruling, it clearly expected that the government would act.

Facing a grossly unfair trial, and life in Guantanamo if found guilty, Khadr accepted a plea bargain of eight more years in prison, with transfer to Canada after one. The government signed on. Does that honour the Supreme Court ruling? It's hard to see how it does. But at least it's something.

Or rather, it would have been something if the government had upheld the bargain. But it hasn't. Instead, the government has pre-tended Omar Khadr doesn't exist.

In doing so, the government has disregarded the Constitution and ignored the Supreme Court. Arguably, it has even been contemptuous of both.

Omar Khadr is a citizen of this country. What you think of him doesn't matter. He is a citizen. And if the government can do this to him, it can do this to any citizen.

That's why this isn't about Omar Khadr. It's about you, me, and every Canadian.