Canada (Prime Minister) v. Khadr (Fed. Ct. App. (Can.) Aug. 14, 2009); useful BBC video on the airline plot conviction; forthcoming scholarship

September 9, 2009

1. Canada (Prime Minister) v. Omar Khadr (Federal Court of Appeal (Canada) August 14, 2009) (directing administration to seek repatriation of Khadr from GTMO)

A few weeks ago, Canada’s Federal Court of Appeal rejected the Canadian government’s appeal of Khadr v. Canada (Prime Minister), 2009 FC 405, in which a lower court judge had determined (i) that Canada violated Khadr’s rights under section 7 of the Canadian Charter of Rights and Freedoms (“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”) when Canadian officials interviewed Khadr at GTMO and then shared the resulting information with U.S. authorities and (ii) that the Canadian government as a result was obliged to request Khadr’s repatriation immediately.  The government had appealed on the ground that the remedial order infringed the government’s exclusive control over foreign affairs (an argument that we in the United States of course would expect to see under the heading of Curtiss-Wright).  By a 2-1 majority, the Federal Court of Appeals rejected this argument.  The full opinion is posted here.

Note that the Supreme Court of Canada recently decided to hear the government’s appeal of this decision (arguments are set for November 13).

2. Handy teaching tool:  BBC videoclip on the UK Airline Bomb Plot Trial

This ten-minute videoclip from the BBC provides a very handy overview of the investigation, trials, and verdict in the UK airline bomb plot, which resulted in a series of convictions this week.  Most notably, it discusses the decision by the United States to permit the use of certain sensitive intelligence during the retrial (but not the original trial).  I used it today in class as a case study in the tensions that can arise between permitting the use of intelligence as evidence at trial (facilitating conviction, but risking exposure of the intel capacity) and withholding inculpatory intel (undermining trial prospects, but preserving the flow of intel).  It worked quite well.

3. Forthcoming scholarship

Apropos of the al-Kidd decision, note the following timely new book:

Counterterrorism and the Comparative Law of Investigative Detention

MAJ Dan Stigall

Chief, Rule of Law & Stability Operations OTJAG, International Law Division

Cambria Press

The years since the devastating attacks of September 11, 2001, have seen dramatic developments in the recognized challenges to U.S. national security and in the ways the United States reacts to terrorist threats. Those reactions have demonstrated both the flexibility and limitations of U.S. criminal law in its ability to adapt to terrorism. In response to the ongoing threat of domestic and international terrorism, governments across the globe have enacted counterterrorism legislation designed to facilitate the capture and interrogationof terrorist suspects. A focus on the perceived limitations of U.S. criminal law in this regard has led to calls from key players within the U.S. national security apparatus for an improved regime of investigative detention, such as those currently in place in the United Kingdom and France.

This book provides the first focused look at the concept of investigative detention and counterterrorism. It is also the first book to analyze in detail the comparative law of investigative detention in the United States, the United Kingdom, and France––laying out exactly how each investigative detention regime works, what the extent of each country’s powers are, and examining their use in counterterrorism. As such, it is one of only a handful of “practical comparative law” books on the market––a book which not only illuminates the legal landscape of various countries, but also seeks to inform counterterrorism policy through a comparative analysis.