If the story is accurate, it represents an interesting development. Over the last 9 years, western intelligence agencies have repeatedly sought to “piggy-back” upon abusive interrogations conducted by the US directly or by one of its “war on terror” allies (Egypt, Jordan, Morocco, even Syria). This piggy-backing has taken various forms, from sending questions to be put to individuals detained by one of these allies (while feigning ignorance of the risk of torture this may pose to the detained person), to attending places of detention in the aftermath of abusive interrogation to question the detainee directly (such as in the case of Omar Khadr and Binyamin Mohammed).

When these visits have been revealed, the intelligence agencies and their governments have often denied that they have violated any aspects of the prohibition on torture, because the detainee is not in their custody (and so not within jurisdiction) and because (they argue) such conduct does meet the requirements of the international or domestic criminal law tests for “complicity.”

So far, it has not been possible to test their claim about whether such conduct could amount to complicity under national or international criminal law, because no serious criminal investigation has been undertaken into the facts (including, importantly, the mental states and state of knowledge of the intelligence agents who conducted these visits and those who ordered them to do so). The inquiries that I am aware of, such as the Arar Inquiry and the Iacobucci Inquiry (both Canadian government inquiries into the conduct of Canadian officials towards Canadian nationals detained and tortured in Syria) have not had a mandate to examine questions of criminal complicity.

A UK domestic prosecution of one of its own intelligence agents for complicity in US torture would be an extraordinary development. It would set an example for many other states which have engaged in similar activities of what a rigorous application of the rule of law might look like. It might also help to ensure that the dreadful tolerance for torture and abusive interrogation at the hands of third parties that many western intelligence agencies have shown in the aftermath of September 11 will not be repeated.

Editorial 20 4

The below Table of Contents is available online at: http://ejil.oxfordjournals.org/content/vol20/issue4/index.dtl

The court handed down its decision today, allowing the Prime Minister’s appeal in part. The court held that the trial court’s remedial discretion had miscarried and that an order directing the Prime Minister of Canada to seek Khadr’s repatriation was – at least for now – an impermissible intrusion upon the Executive’s prerogative in foreign affairs.

The result is disappointing, from the point of view of those of us who had hoped that the Supreme Court might force the hand of the Harper government by ordering to do what it has steadfastly refused to do – request Khadr’s return to Canada after seven and a half years in GTMO.

However, the decision (which was unanimous) is an interesting combination of deference to executive decision-making on the matter of requesting repatriation, and categorical condemnation of Canadian agents’ complicity in an abusive detention and interrogation regime.

The court held:

[24] We conclude that Canadian conduct in connection with Mr. Khadr’s case  did not conform to the principles of fundamental justice. That conduct may be briefly reviewed.  The statements taken by CSIS and DFAIT were obtained through participation  in a regime which was known at the time to have refused detainees the right to challenge the legality of detention by way of habeas corpus.It was also known that Mr. Khadr was 16 years old at the time and that he had not had access to counsel or to any adult who had his best interests in mind. As held by this Court in  Khadr 2008, Canada’s participation in the illegal process in place at Guantanamo Bay clearly violated Canada’s binding international obligations (Khadr 2008, at paras. 23-25; Hamdan v. Rumsfeld).  In conducting their interviews, CSIS officials had control over the questions asked and the subject matter of the interviews (Transcript of cross-examination on Affidavit of Mr. Hopper, Exhibit “GG” to Affidavit of Lt. Cdr. William Kuebler, March 2, 2005 (J.R., vol. III, at p. 313, at p. 22)). Canadian officials also knew that the U.S. authorities would have full access to the contents of the interrogations (as Canadian officials sought no restrictions on their use) by virtue of their audio and video recording (CSIS’s Role in the Matter of Omar Khadr, at pp. 11-12).  The purpose of the interviews was for intelligence gathering and not criminal investigation.  While in some contexts there may be an important distinction between those interviews conducted for the purpose of intelligence gathering and those conducted in criminal investigations, here, the distinction loses its significance.  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 indefinitely detained, was a young person and was alone during the interrogations.  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” (para. 4).

[25] This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. 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.

[31] The acts that perpetrated the Charter breaches relied on in this appeal lie in the past.  But their impact on Mr. Khadr’s liberty and security continue to this day and may redound into the future.  The impact of the breaches is thus perpetuated into the present.  When past acts violate present liberties, a present remedy may be required.

Admirably, the court refused to accept the Canadian government’s argument that it owed no human rights obligations to Khadr because he was in US custody at the time. The court also did not equivocate on the need to ensure Khadr’s rights during an intelligence interrogation – even if the Canadians had good reason to want to interrogate him for intelligence purposes. I think this judgment contains a clear condemnation of a domestic intelligence service’s attempt to benefit from abusive treatment by a detaining third state (a phenomenon that has become all too common in the War on Terror, as the UK case of Binyamin Mohamed indicates).

But when it came to the specific remedy of requesting repatriation, the court declared:

[35] The prerogative power over foreign affairs has not been displaced by s. 10 of the Department of Foreign Affairs and International Trade Act, R.S.C. 1985, c. E‑22, and continues to be exercised by the federal government. The Crown prerogative in foreign affairs includes the making of representations to a foreign government: Black v. Canada (Prime Minister) (2001), 199 D.L.R. (4th) 228 (Ont. C.A.). We therefore agree with O’Reilly J.’s implicit finding (paras. 39, 40 and 49) that the decision not to request Mr. Khadr’s repatriation was made in the exercise of the prerogative over foreign relations.

37] The limited power of the courts to review exercises of the prerogative power for constitutionality reflects the fact that in a constitutional democracy, all government power must be exercised in accordance with the Constitution.  This said, judicial review of the exercise of the prerogative power for constitutionality remains sensitive to the fact that the executive branch of government is responsible for decisions under this power, and that the executive is better placed to make such decisions within a range of constitutional options. The government must have flexibility in deciding how its duties under the power are to be discharged: see, e.g., Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 101-2. But it is for the courts to determine the legal and constitutional limits within which such decisions are to be taken. It follows that in the case of refusal by a government to abide by constitutional constraints, courts are empowered to make orders ensuring that the government’s foreign affairs prerogative is exercised in accordance with the constitution: United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283.

[38] Having concluded that the courts possess a narrow power to review and intervene on matters of foreign affairs to ensure the constitutionality of executive action, the final question is whether O’Reilly J. misdirected himself in exercising that power in the circumstances of this case (R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 15; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 117‑18).  (In fairness to the trial judge, we note that the government proposed no alternative (trial judge’s reasons, at para. 78).)  If the record and legal principle support his decision, deference requires we not interfere.  However, in our view that is not the case.

[43] The present case differs from Burns.  Mr. Khadr is not under the control of the Canadian government; the likelihood that the proposed remedy will be effective is unclear; and the impact on Canadian foreign relations of a repatriation request cannot be properly assessed by the Court. 

[44] This brings us to our second concern: the inadequacy of the record.  The record before us gives a necessarily incomplete picture of the range of considerations currently faced by the government in assessing Mr. Khadr’s request. We do not know what negotiations may have taken place, or will take place, between the U.S. and Canadian governments over the fate of Mr. Khadr. As observed by Chaskalson C.J. in Kaunda v. President of the Republic of South Africa, [2004] ZACC 5, 136 I.L.R. 452: “The timing of representations if they are to be made, the language in which they should be couched, and the sanctions (if any) which should follow if such representations are rejected are matters with which courts are ill-equipped to deal” (para. 77).  It follows that in these circumstances, it would not be appropriate for the Court to give direction as to the diplomatic steps necessary to address the breaches of Mr. Khadr’s Charter rights.

The court’s language is, in my view, highly qualified. It does not rule out the possibility of directing the government in the exercise of its prerogative; it says that, for now, the effectiveness of such a remedy is unclear and that the court does not have before it sufficient information to determine what the government ought reasonably do. So the the solution is deference. But interestingly, the court does leave the door open to further reviewing the government’s exercise of its prerogative powers in this matter:

[46] In this case, the evidentiary uncertainties, the limitations of the Court’s institutional competence, and the need to respect the prerogative powers of the executive, lead us to conclude that the proper remedy is declaratory relief. …

[47] The prudent course at this point, respectful of the responsibilities of the executive and the courts, is for this Court to allow Mr. Khadr’s application for judicial review in part and to grant him a declaration advising the government of its opinion on the records before it which, in turn, will provide the legal framework for the executive to exercise its functions and to consider what actions to take in respect of Mr. Khadr, in conformity with the Charter.

Perhaps one way of reading this somewhat cryptic conclusion is that court is self-consciously signalling to the executive that it now has a chance to evaluate what should be done to provide a remedy for the Canadian government’s violations of Khadr’s human and constitutional rights, without the court dictating a specific measure to be taken in the arena of Canada’s diplomatic relations with the US. But what might the court do if the government does nothing? Will it then be in a position to conclude, upon the basis of more evidence and further application by Khadr, that the government’s discretion has miscarried and the only reasonable exercise of that discretion requires a request for repatriation?