By Sharon Adams, Vice-President, National Lawyers Guild, San Francisco Bay Area Chapter
Choudhry represented Omar Khadr, a 15-year old boy removed from Afghanistan* and rendered to Guantanamo in 2002, in a case heard by Justice Abella and the other Justices of the Canadian Supreme Court. John Yoo is infamously known for writing the legal memos stating that the Geneva Conventions did not apply to so-called "enemy combatants" detained in Guantanamo and other black sites outside of the United States.
While Choudhry was a faculty member at the law school of the University of Toronto, he filed an intervener's brief before the Canadian Supreme Court on behalf of Khadr in which Choudhry condemned Guantanamo as a "legal black hole". He quoted with approval a statement by the United Nations High Commissioner of Human Rights that "the choice of the site in Guantanamo Bay was the first marker that there was an attempt by the U.S. administration to manage the war on terror outside the legal framework." Choudhry did not mince words, and identified the question before the Canadian Supreme Court as "what constitutional duties Canada owes [Khadr] under [Canadian law] in light of this flagrantly illegal conduct of the American government."
The particular issue was the legal validity U.S. military commissions to try detainees, and use of information gathered by Canadian agents. Choudhry stated that Canada profited from "violation of [Khadr's] rights under international law by the American authorities" that the "proceedings in Guantanamo Bay violate international law" and that the legal proceedings at Guantanamo Bay "do not meet the minimum standards of due process under international law."
In considering what happened to Khadr in Guantanamo, the Canadian Supreme Court, in Minister of Justice et al. v. Omar Ahmed Khadr, 2008 SCC 28, unanimously agreed that "the conditions under which Mr. Khadr was held and was liable for prosecution were illegal under both U.S. and international law ..."