TORONTO, Canada — “Justice was done.”
With those words, U.S. President Barack Obama announced the killing of Osama bin Laden by elite Navy SEALs, who stormed the Al Qaeda leader’s Pakistani compound.
Many celebrated his death. But when it became clear that bin Laden was unarmed when shot, some questioned why he wasn’t captured and brought to trial.
The legality of similar operations, both under U.S. and international law, has been intensely debated.
One administration official called the bin Laden raid “a kill operation.” Others, from Israeli politicians, to high-profile lawyer Alan Dershowitz, to filmmaker Michael Moore, called it a “targeted killing,” an “extra-judicial killing” or, more bluntly, an “assassination.” From that perspective, one writer noted, justice seems to boil down to a saying of the ancient Greek sophist, Thrasymachus: “Justice is nothing other than the advantage of the stronger.”
Since the 9/11 attacks, much has been said about the tension between the “war on terror” and the rule of law. In Canada, the Ontario Court of Appeal dealt specifically with that tension in a ruling last Friday that denied a U.S. request for the extradition of an alleged Al Qaeda collaborator.
In a unanimous decision, the three judges denied the extradition of Abdullah Kadr because the evidence against him was obtained through gross violations of his rights.
“We must adhere to our democratic and legal values, even if that adherence serves in the short term to benefit those who oppose and seek to destroy those values,” the judges wrote in their ruling. “For if we do not, in the longer term, the enemies of democracy and the rule of law will have succeeded. They will have demonstrated that our faith in our legal order is unable to withstand their threats.”
Khadr is a 30-year-old Canadian citizen living in Toronto. He is wanted in Boston on charges of procuring munitions and explosives to be used by Al Qaeda against U.S. and coalition forces in Afghanistan.
He is the older brother of Omar Kadr, a Guantanamo Bay detainee who recently pleaded guilty to killing an American soldier in Afghanistan when he was 15 years old. His father, Ahmed Khadr, accused by the United States of being a senior Al Qaeda financier, was killed by Pakistani security forces in 2003.
According to evidence presented in court, the United States paid Pakistan’s ISI security agency a $500,000 bounty to capture, detain and interrogate Khadr. The ISI — widely suspected of having kept its ties to the Taliban — grabbed Khadr in October 2004 and held him for 14 months in a secret detention center.
Initially, Khadr’s detention was solely for the purposes of gathering intelligence and not for the laying of criminal charges, the court noted.
He was beaten while detained, but never charged by Pakistani authorities. He was denied access to a lawyer and, for the first three months of his detention, denied access to Canadian consular services.
In June 2005, when Khadr was no longer of use, the ISI told Canadian officials it would return him to Canada. But American officials intervened. They pressured the ISI to keep Khadr and, in July, sent FBI agents to interrogate him.
The U.S. government then asked Pakistan to extradite Khadr to face charges in the United States. Canada refused to consent to the extradition so, in December 2005, Pakistan sent Khadr to Canada instead.
In Toronto, Khadr agreed to again be interviewed by FBI agents. Charges against him were filed in Boston later in December. Canadian authorities then detained Khadr based on an extradition request by the United States. He remained in custody until August 2010, when a Superior Court judge, Christopher Speyer, denied the extradition request.
Speyer argued the United States ought to have known there was a credible risk Khadr would have been mistreated when it paid the ISI to detain him.
“In civilized democracies, the rule of law must prevail over intelligence objectives. In this case, the sum of the human rights violations suffered by Khadr is both shocking and unjustifiable,” Speyer wrote. “Although Khadr may have possessed information of intelligence value, he is still entitled to the safeguards and benefit of the law, and not to arbitrary and illegal detention in a secret detention centre where he was subjected to physical abuse. The United States was the driving force behind Khadr’s fourteen month detention in Pakistan, paying a $500,000 bounty for his apprehension.”
The Canadian government appealed the decision to the Ontario Court of Appeal, which on Friday also denied the extradition.
The court ruled that Khadr’s treatment also violated Pakistani laws that make it “illegal to accept a bounty or bribe from a foreign government, to abduct a foreign national from the street, to beat that individual until he agrees to cooperate, to deny him consular access, to hold him in a secret detention centre for eight months while his utility as an intelligence source is exhausted, and then to continue to hold him in secret detention for six more months at the request of a foreign power.”
“No doubt some will say that those who seek to destroy the rule of law should not be allowed its benefits. (We) do not share that view,” the court ruled.
The Canadian government is considering an appeal to the Supreme Court of Canada.