14 Jun Playing the Anti-American Card against Canadian Anti-Terrorism Policies
Attorneys for a number of detainees suspected of ties to Islamic terrorist groups are challenging their continued detention by Canada in Canada’s highest court, the Seattle PI reports. The three non-Canadians have been detained for years without being charged or without any evidence about them being released, apparently for purposes of deportation to their home countries. Because they might be abused or tortured in their home countries, however, they cannot be deported.
This is a complicated problem, and one faced by the U.S. in Guantanamo as well. But in Canada, it never hurts to play the anti-American card, as an attorney for the detainees does here:
The system “violates fundamental justice,” said Paul Copeland, a lawyer for [one of the detainees]. “These cases will help determine whether Canada follows the lawless American approach on national security or creates a uniquely Canadian path in conformity with the principles of international justice.” [emphasis added].
Well, whatever the occasional rhetorical hyperbole, the anti-American card could not be played at all were it not in essence making reference to some painful truths, as Philippe Sands or Jack Balkin–among others–would be quick to remind us. Brian Urquhart summed up things nicely in a recent review essay in NYRB (May 11, 2006): …[T]he development of international law has encountered an unexpected and formidable obstacle–the ideological opposition of the Bush administration, both to vital treaties and to intenational institutions. This attitude culminated in the 2003 invasion of Iraq without the specific authorization of the UN Security Council, and without allowing UN inspectors to complete their work. Prisoners captured by the US were denied the protections of the Geneva Convention and were often treated brutally.[….] It is ironic that such widespread criticism should be incurred by the US. From the Permanent Court of International Justice in The Hague, the Covenant of the League of Nations, and the Charter of the United Nations to the Universal Declaration of Human Rights and many UN conventions, the US has done more than any other country to develop and strengthen both the concept and the substance of international law. It is nothing less than… Read more »
The problem, and the Canadian statutory scheme, looks a lot like the scheme of the Anti-Terrorism, Crime and Security Act 2001, which the House of Lords held to be in violation of the European Convention on Human Rights on 16 December 2004: A and Others v. Secretary of State for the Home Department (No. 1), [2004] UKHL 56. The ruling there was that it was discriminatory for the legislation to allow only for the detention of non-British nationals (who, as in the Canadian legislation, cannot be deported to their own countries for fear of torture there), and that the derogation from Article 5 of the European Convention, which the United Kingdom had declared, was therefore invalid. Besides this rather narrow ground, there are ringing statements on the place of indefinite detention without trial in a democratic society. Thus, Lord Nicholls of Birkenhead said at para. 74: ‘Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford.’ Lord Scott of Foscote added, at para. 155: ‘Indefinite imprisonment in consequence of a denunciation on grounds that are not disclosed and… Read more »