Top court reserves judgment on release of Khadr transcripts

The Supreme Court of Canada has reserved its decision on whether the federal government must release confidential documents on Omar Khadr that his legal team says are vital to his defence at an upcoming U.S. military tribunal.

Khadr's lawyers appeared before the court on Wednesday in their attempt to get unrestricted access to the documents, which include transcripts of interrogations of the 22-year-old by Canadian officials at the U.S. naval base in Guantanamo Bay, Cuba.

Khadr, a Canadian citizen who is awaiting trial on murder and war crimes charges, was captured in Afghanistan in 2002 when he was 15 and has since been held at the U.S. military base. He faces a maximum sentence of life in prison if convicted.

His lawyers have asked Canada's top court to order Ottawa to hand over uncensored transcripts and videotapes of the Canadian interrogations of Khadr in 2003 at the base.

The court case stems from an appeal of an earlier federal court decision that ordered the Canadian government to release the documents to Khadr's lawyers for use in his defence at Guantanamo, where he is represented by a U.S. military lawyer.

"This is information that Canada provided to the Americans which led to the possible and potential charges against Omar Khadr in Guantanamo Bay," Dennis Edney, a lawyer for Khadr, told CBC News before the hearing. "And if this were in Canada, that very information would be required to be provided to an accused so he can get a fair trial."

But lawyers for the federal government argued Wednesday that Khadr's demand for documents is a fishing expedition that could compromise sensitive intelligence information. Government lawyers also said a Canadian court is no place to pass judgment on U.S. detention and trial practices.

Several justices pressed government lawyer Robert Frater during his presentation, asking why information the court needs is not forthcoming.

In announcing that they will reserve their decision for the time being, the nine judges did not specify when they would deliver a judgment.

Charter argument

Khadr's lawyers argued he's entitled to the material because Canadian officials violated the Charter of Rights when they interviewed him at Guantanamo. They also hope the transcripts will provide evidence that Ottawa knew a Canadian citizen was being tortured and did nothing about it.

"We're saying that Canada has an obligation to provide those documents, and that obligation arises because it went to Guantanamo Bay when it was well known that this is a place beyond the rule of law. It took advantage of Omar Khadr," Edney said.

"We're saying that when you're a citizen abroad, you're not a second-class citizen."

His legal team conceded during its presentation that normally courts defer to laws of foreign countries, in this case the United States.

But Nathan Whitling, one of Khadr's lawyers, told the justices there should be an exemption in Khadr's case, as the imprisonment of a former child soldier and the U.S. war-crimes tribunal system itself violate international law.

"He was expressly prohibited from getting access to a court," Whitling said. "Canadians should have refrained from going down there and participating in his vulnerability."

Ottawa views Khadr as guilty before trial: CAIR-CAN

As the court heard arguments, several human rights groups and non-governmental organizations voiced support for Khadr's legal challenge and reiterated demands for the Canadian government to pressure the United States to return him to Canada.

Sameer Zuberi, spokesman for the Canadian Council on American-Islamic Relations (CAIR-CAN), accused Canada of applying a double standard in Khadr's case, "probably because of his last name, because we have presumed guilt by association."

He also called on Ottawa to recognize Khadr as a child soldier as others his age have been in conflict countries such as Sierra Leone and Rwanda.

"They are viewed as victims. They are viewed as people who have been manipulated, people who are being used, people who do not have a choice," Zuberi said. "Omar Khadr, on the other hand, is not afforded this grace."

"He was viewed as somebody who is guilty before we even try him."

Canadians refused to help, Khadr says

Khadr's lawyers also used the hearing to argue the Americans are breaking international law by detaining him and planning to try him before a special military tribunal that doesn't measure up to accepted legal standards.

In an affidavit filed with a U.S. military court, Khadr alleges U.S. military interrogators in Afghanistan threatened him with rape and treated him harshly, forcing him to make false and self-incriminating statements.

He also claims that Canadian diplomats and intelligence officers who later questioned him at Guantanamo refused to help him.

Instead, he says in the affidavit, they questioned him about his late father, Ahmed Said Khadr, who's been accused of being a founding member and financier of al-Qaeda.

Khadr says he was also interrogated about Maher Arar, the Canadian who was deported to a Syrian prison over alleged links to al-Qaeda. An inquiry later cleared Arar of any links to terrorist organizations.

Khadr says he was also shown photographs of about 20 people and asked to identify them.

He says he ripped off his shirt and showed the Canadians his injuries. He also says he told them he had lied to his American interrogators and told them whatever they wanted to hear because he was scared and wanted them to stop torturing him.

Khadr says they accused him of lying, and passed information from their interviews to U.S. officials.