must seek the immediate return of Toronto-born Guantánamo captive Omar
Khadr rather than await the outcome of his U.S. military trial because
American troops mistreated the alleged teen terrorist and Canadian
officials knew about it, Canada's appeals court ruled Friday.
The Federal Court of Appeal's 2-1 ruling, issued in Ottawa, effectively
instructs the Canadian government of Prime Minister Stephen Harper to
intervene in the case before Khadr is tried by military commission.
His next hearing is Sept. 16 in the case that accuses the now
22-year-old Khadr of throwing a grenade that fatally wounded a U.S.
Special Forces soldier in a firefight in Afghanistan in July 2002.
Khadr was 15.
Harper has repeatedly said U.S.
military justice should run its course, and his government said Friday
that it was reviewing the ruling Friday afternoon.
"While Canada may have preferred to stand by and let the proceedings
against Mr. Khadr in the United States run their course, the violation
of his Charter rights by Canadian officials has removed that option,''
the majority wrote in the 53-page ruling and dissent.
could face life imprisonment if convicted under the war crimes tribunal
system now being revised by the Obama administration.
military lawyers have campaigned for his release, arguing he should
have been treated as a vulnerable "child soldier'' when was captured
near death after two bullets tore through his back. The Pentagon argues
he was responsible for his actions.
The Canadian court ruled
Friday that the Canadian officials were aware as far back as 2004 that
Khadr was subjected to the military's "frequent flier'' sleep
deprivation program to soften him up, and still interviewed the teen at
the remote U.S. Navy base, then shared their findings with U.S.
Testimony about the sleep deprivation program at
Guantánamo's commissions showed U.S. troops systematically shifting
captives between Camp Delta cells night and day ahead of scheduled
"It is true that the United States is primarily
responsible for Mr. Khadr's mistreatment,'' Justices John Maxwell Evans
and Karen Sharlow ruled. "However, the purpose of the sleep deprivation
mistreatment was to induce Mr. Khadr to talk, and Canadian officials
knew that when they interviewed Mr. Khadr to obtain information for
intelligence purposes. There can be no doubt that their conduct
amounted to knowing participation in Mr. Khadr's mistreatment.''
In Washington, Canadian Embassy spokesman Jonathan Suavé said the
Harper government was reviewing the "lengthy judgment with a strong
"The Government of Canada will review it
carefully,'' Suavé said. "It would be inappropriate to comment further
on this matter.''
He noted that Canada's position on the Khadr
case "remains unchanged. In fact, it is the same policy held by two
Canadian diplomats would continue to
monitor the case, he said, as well as continue to hold "welfare
visits'' with Khadr at Guantánamo.
Khadr's U.S. military lawyers
have tried to avert a trial, arguing that he would become the first
Westerner tried as a "child soldier'' in modern history -- a tactic
that has garnered spotty sympathy for a member of what is known as
Canada's "first family of terrorism.''
His father, an alleged al
Qaeda militant and fundraiser, raised the child between Canada,
Pakistan and Afghanistan until the Sept. 11, 2001, attacks, when the
family scattered. The father died in a 2003 Pakistani forces raid on a
suspected al Qaeda hideout.
Omar Khadr's older brother, Abdullah
Khadr, is being held in Canada on a U.S. extradition warrant, accused
of supplying weapons to al Qaeda. Another brother has acknowledged the
family stayed with Osama bin Laden, and claimed he served as double
agent for the CIA during a short stint at Guantánamo.
younger Khadr allegedly threw a grenade in a July 2002 special forces
assault on a suspect al Qaeda compound near Khost, Afghanistan, that
fatally wounded Sgt. 1st Class Christopher Speer, 28, of Albuquerque,
Speer died of his wounds at a U.S. military hospital in
Germany 11 days later. The Canadian was left blinded in one eye by his
wounds, as was another U.S. soldier who has been expected to testify at
If Khadr is returned, the Canadian justices wrote in
their majority opinion, "it will be for the attorney general to decide,
in the exercise of his or her discretion, whether to institute criminal
proceedings in Canada against Mr. Khadr.''
justice, Marc Nadon, wrote that a lower court judge had overreacted by
seeking Khadr's return because Canadian agents took part in the teen's
"I cannot see the link between the
inappropriateness of the interviews and the remedy of repatriation,''
he wrote, calling it "a remedy which is, in my view, totally
disproportionate in the circumstances.''