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Khadr and The Prime Minister

[Note: I have to tread lightly here, so forgive me if this is a little opaque.]

The Federal Court issued an opinion today ordering the Canadian government to request Omar Khadr’s repatriation from Guantanamo Bay. Two thoughts:

First, the opinion’s logic strikes me as flawed. The fundamental holding is that Khadr’s Section 7 Charter rights have been violated because (a) he has been detained at Guantanamo Bay as a ‘child’ and (b) while at Guantanamo Bay he has been subjected to sleep deprivation prior to interrogation. These alleged acts violate Khadr’s Canadian constitutional rights, notwithstanding the fact that they occurred outside of Canada and at the hands of non-Canadians, because Canadian government officials were complicit by virtue of their interrogation of Khadr in these circumstances. The court concludes that the only plausible remedy is an order compelling the government to exercise its heretofore-prerogative power to request Khadr’s return.

I don’t think the court’s logic follows. Khadr’s claim (as I read it) is not that the government must request his repatriation because his Section 7 rights have been violated; his claim is that the government’s failure to request his repatriation itself violates his Section 7 rights. The court blurs the distinction, but it’s an important one. If the rights identified by the court—detention while a child and sleep-deprivation—were violated, they were violated some time in the past. Khadr is no longer a child, and the allegations regarding sleep-deprivation relate to events occurring between 2002 and 2004. Given that these violations occurred in the past, how does repatriation now—when the violations are not alleged to continue—remedy the wrong? That doesn’t mean there should be no remedy at all; if the Canadian government was complicit in the violation of these rights, it seems to me the appropriate remedy is an action for money damages against the Canadian government. But I don’t think it follows that because Khadr’s rights were violated in the past, but are not being violated now, the Constitution requires the Canadian government to demand his return as a means of remedying the past wrong.

The second thought is a more general one. The court explicitly acknowledges that it is infringing on what is traditionally a prerogative power of the executive branch. Indeed, it can cite to no other case—anywhere in the world—that has infringed on this power in this way. The result is to mandate the appropriate exercise of this consular power; that is, the court’s decision erases any discretion the government has traditionally had, and declares that only one possible choice among the universe of policy choices in this circumstance is constitutional.

We seem to be seeing a lot of that these days—attempts to mandate a particular policy choice by determining that alternative policy choices are unconstitutional. But by mandating a particular policy choice, the deciding court places that choice outside the realm of politics, thereby foreclosing debate and discussion. That’s bad for democracy. There are good, honest arguments on both sides of the repatriation debate. Both sides should have the opportunity, and ability, to affect government policy. And if government policy ultimately strays from popular opinion on a particular choice, the people have an opportunity to alter that policy—at the ballot.

There is a great temptation, always, to declare an opposing policy alternative to be so wrong, so immoral, so contrary to received notions of good government, that it cannot be tolerated by law. But when we succumb to that temptation, we constrict the realm of politics, restrict our collective ability to make policy choices, and reduce the involvement of the electorate in the process of governance. That’s not my idea of democracy.

Posted 23 April 2009 § Canada § Politics § Terror # Tag: , , ‡ Comments (0) þ

The Price of Freedom

Warren Kinsella has a (mostly) thoughtful post about the consequences of negotiating with al Qaida to achieve the release of Bob Fowler and Louis Guay. The prime minister was very careful with his words yesterday, acknowledging that negotiation was the best option in the circumstances but maintaining that Canada neither pays ransoms to, nor exchanges prisoners with, any terrorist group. As Warren notes, that leaves open—and points to—the possibility that an intermediary like Mali or Burkina Faso did pay a ransom or exchange prisoners to achieve the diplomats’ release.

I don’t know how to draw the line. I am inclined to the strong position that Canada should never negotiate with these groups, even if that means consigning hostages to their fate. But of course that abstract position bumps up against its human and personal cost, particularly for a DFAIT brat like me. Still, while the nation is grateful today for the safe return of our public servants, I think it’s important to acknowledge the consequence of what has occurred.

Let us assume that some concession was made to this al Qaida franchise to achieve the diplomats’ return. The consequence, inevitably, will be an increase in the incentive to kidnap western officials in the region. The consequence of that will, I predict, be a decrease in the willingness to western officials to travel to the region. It’s important to recall that Fowler and Guay were in Niger on behalf of the United Nations. Insofar as U.N. and western officials become less willing to visit the region, the result will be a decrease in the good that those officials could otherwise do. And the cost of negotiation, therefore, will be the loss of the benefits that our officials could have brought to the region, directly or indirectly, through their active involvement in local humanitarian and good-governance efforts. That cost won’t be borne by you or me; it will be born by the folks in Niger.

Of course, at root this is a result of the kidnapping itself: I suspect you’ll find fewer volunteers at DFAIT willing to go to Niger today that you’d have found a year ago. In other words, the ultimate responsibility for the hindrance of western aid efforts—and the resulting cost to the local population—rests on the shoulders of the terrorists. But if negotiating with terrorists increases, even incrementally, their motivation to take more hostages, then we bear the responsibility for the resulting incremental decrease in the good that is done in the region.

Perhaps that’s a price we’re willing to pay—particularly because we derive the benefit without having to bear the cost. But it’s worth sparing a thought, at least, for those on whom that burden falls.

Posted 23 April 2009 § Canada § Global Affairs § Terror # Tag: ‡ Comments (2) þ

Texas, My Texas

Rick Perry made headlines last week with his seeming endorsement of Texas secession. A Rasmussen poll found that “only” one in five Texans would vote to secede, while fully a third believe the state has the right to leave the Union. Perry’s comments have provoked not a little eye-rolling, as well as commentary from all sides of the political spectrum suggesting that the governor was doing neither himself, nor his state, nor his party any favors.

Let me say at the outset that I don’t favor Texas secession. But having spent a considerable amount of time in Texas, I’m going to be bold and claim an understanding of the State and its culture that I think a lot of people don’t necessarily share, and I’m going to suggest that without an appreciation for the history and culture of the Lone Star State, it’s difficult to understand Gov. Perry’s comments.

Texas is special. I suggested, tongue in cheek below, that it constitutes a distinct society within the Union. As I see it, this uniqueness is the product of two things.

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Posted 21 April 2009 § United States # Tag: ‡ Comments (3) þ

Thought For the Day

Texas is a distinct society within the United States.

Posted 17 April 2009 § Politics § United States # Tag: ‡ Comments (2) þ

Brace Yourselves

I can blog from my phone.

And just you wait till the iPhone gets cut-and-paste…

Incidentally, if you’re viewing Maderblog on an iPhone, I’ve set it up to load with an optimized interface rather than the normal web interface. Let me know if you like it.

Posted 16 April 2009 § Admin # Tag: ‡ Comments (0) þ

Thoughts of an Unnatural-Born Citizen

In today’s Post, Rudyard Griffiths outlines an amendment to the Citizenship Act that goes into effect tomorrow. Griffiths writes:

From this point forward, any person born abroad to Canadian parents will be a Canadian only if their father or mother was born in Canada, or if one or more of their parents became a citizen by immigrating to this country.

The amendment was clearly designed to deny citizenship to those who have no real and meaningful attachment to Canada, and for whom citizenship is simply a bundle of benefits to be claimed at an opportune time.

Well, fair enough. It’s hard to argue against the change. But the amendment has some hidden consequences, and—if you’ll forgive the solipsism—I’m going to explore one of them.

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Posted 16 April 2009 § Canada # Tag: , ‡ Comments (3) þ

MaderBlog 4.0

I started this blog in the summer of 2002 over on blogspot, a free blogging service that was not yet owned by Google. The Canadian blogosphere was a pretty quiet place back then.

I moved over to maderblog.com at the end of that summer, with my first MovableType blog. Just looking at it makes me nostalgic – those cartoon category tags! In this iteration, MaderBlog developed its first real readership, mostly other college students and a few of the other blog pioneers. I think it’s hard for the contemporary blogger or blog-reader to appreciate just how small the blogosphere was back then.

In the summer of 2003, with the Iraq War in full swing, I upgraded my MovableType installation and adopted the now-infamous banner graphic, based on a picture of British soldiers in combat. Since adopting this third iteration of MaderBlog, I’ve lived in six different cities and received two degrees, not to mention entering the workforce full time. As my life has changed, so has the blog: posting has fallen off, then revived, then fallen off again; the focus has shifted from the war, to American politics, to Canadian politics, to British politics, and back again. Some posts have received national attention; some have been spoken to the wind. But all through it I’ve had a blast.

The most gratifying development over the past seven years has been the development of a real community of readers. Some of you I know personally; some of you I’ve never met. But each of your comments challenges my way of thinking, and has contributed in a real and meaningful way to my opinions on news, and on life, and on how we–as people, as citizens–interact with one another.

Late last year, Movable Type stopped working. While I could continue to post, you–my readers–couldn’t comment. And I’m not exaggerating when I say that, robbed of comments, MaderBlog’s value plummeted–to me, at least. It was time for a change.

I introduce MaderBlog 4.0. There will be glitches; the layout could be better. But with WordPress, I have much more robust back-end tools to create a more dynamic blog. You, the readers, are a big part of that, as you always have been. I welcome your suggestions for ways to increase the communal element of the blog, and I’ll be experimenting with some plugins designed to do just that.

The key to any blog, of course, is content. For nearly two years, I’ve been unable to blog about a huge swath of topics that were once MaderBlog’s bread and butter. The restrictions will be lifted over the summer, for reasons I’ll explain then; and when they are, I’ll have a lot more time to blog–at least for a while. In the meantime, I have a few side-projects going that will hopefully result in more content here.

This move to WordPress is a big step, and I hope that it will result in a better MaderBlog in every which way. Let me know what you think. I promise: the comments work.

Posted 15 April 2009 § Admin # Tag: , ‡ Comments (2) þ

Speaking of Non-Sequiters

The Times: Michelle Obama meets Carla Bruni and wins on points:

Michelle Obama might have been trying to appeal to a certain English eccentricity when she paired an asymmetrical Junya Watanabe cardigan with a full-skirted dress by Jason Wu and added debutante-style pearls for a photocall earlier this week with Sarah Brown.
It was a relaxed look, fun and informal, yet stylish. But if she was aiming for the quirky English look, it was not an unqualified success. When canvassed, Vivienne Westwood, doyenne of daring British fashion, said: “I don’t think either of them dresses very well. I’m completely and utterly focused on the danger we face from global warming.”

Ummm… ok?

Posted 03 April 2009 § United Kingdom § United States # ‡ Comments (0) þ

Galloway

I’ve just read the Federal Court’s decision in the Galloway case. It’s as odd and interesting as the controversy itself. Here’s why:

Media reports have suggested that Galloway was ruled inadmissible under Section 34(1) of the Immigration and Refugee Protection Act, which allows immigration officers to exclude a foreign national on security grounds if the foreign national, inter alia, engages in terrorism, poses a danger to national security, or is a member of a group that engages in terrorism or poses a threat to national security. While a foreign national who is declared inadmissible under Section 34(1) has no right of administrative appeal, see Section 64(1), he may still be admitted at the direction of the Minister if the Minister is satisfied “that [the foreign national's] presence in Canada would not be detrimental to the national interest.” Section 34(2).

If the Minister does not intervene on behalf of the foreign national, the foreigner may seek judicial review of “any matter–a decision, determination or order made, a measure taken or a question raised–under [the] Act.” Section 72. The foreign national can then (in certain circumstances) appeal the court’s decision to the Federal Court. Section 74.

From the press accounts, you might think (as I did) that Galloway had sought admission to Canada, had been denied admission by a border officer under Section 34(1), and had failed to persuade the Minister to intervene under Section 34(2). Had that been the case, the next step would have been a judicial appeal under Section 72. But that’s not what happened. Why? Justice Martineau explained:

[A]n official of the High Commission of Canada [in London], Immigration Section, by letter dated March 20, 2009, has advised [Galloway], apparently as a matter of ‘courtesy,’ that according to the ‘preliminary assessment’ of the [Border Security Agency], he is inadmissible to Canada on security grounds.

In other words, media reports to the contrary, Galloway has not been refused entry to Canada; instead, he’s been told–by an official of the Department of Foreign Affairs, it seems–that he would be denied entry if he applied. This puts Galloway in an odd position: having not yet been denied entry, he doesn’t have a right either to appeal the decision in the courts, or to seek a ministerial exception. So he (and his supporters) have done the next best thing: they’ve sued the government, seeking a preliminary injunction compelling the border officers to allow Galloway into the country when he does apply.

Now a preliminary injunction is an unusual device. An injunction allows a court to compel a party (backed by the threat of contempt sanctions, up to and including imprisonment) to do or refrain from doing a certain thing. A preliminary injunction is especially unusual because it is granted before the court has had a chance to rule on the merits. With it, a court essentially says: “We don’t yet know who should win this dispute; but unless the defendant does X (or stops doing X), the plaintiff’s victory will be hollow–so defendant must do X (or stop doing X) until we can work out whether plaintiff should win.”

But because a preliminary injunction compels behavior before the court has addressed the merits of the dispute, a party seeking such an injunction has to meet a high standard: he has to show (1) that he has a real claim; (2) that there is a substantial likelihood he’ll win on the merits of the claim; (3) that if the injunction isn’t granted, he’ll suffer a permanent injury; and (4) that if the injunction is granted, the defendant won’t suffer a significant injury.

That’s what Galloway was seeking here: a preliminary injunction ordering the border agency to admit Galloway unless and until he was actually found to be inadmissible. Justice Martineau declined to issue the requested injunction:

If I were to grant the mandatory interim relief sought today by the applicants, this would, by necessity, imply that the applicants are likely to succeed on the merits. I acknowledge that serious arguments are advanced against the impugned decision. However, a proper factual record and the benefit of full legal argument, (notably on the complex issue of whether or not the grounds of inadmissibility stated in the impugned decision are founded), are lacking at the present time. Therefore, I am not ready today to exempt Mr. Galloway from the application of the provisions in the Act and Regulations respecting entry and examination, or to order the respondents’ officials to allow the applicant Galloway to come to Canada between March 30 and April 2, 2009, without any final decision made on his admissibility.

In other words, the judge found that Galloway couldn’t establish a substantial likelihood that he’d win on the merits, because there hadn’t yet been any merits adjudication–only a letter from the High Commission suggesting that he wouldn’t be allowed in. In essence, the judge said that the letter was without force unless and until Galloway was actually refused entry to Canada.

What makes the decision odd, to my mind, is that Justice Martineau seems to go back and forth regarding the power of the letter. On the one hand, he finds that

[w]hile [the] letter of March 20, 2009, is characterized as merely ‘informational’ by the [government], its content seems to suggest otherwise, as it announces to Mr. Galloway that some sort of ‘preliminary assessment’ has already taken place.

And because the letter appeared to announce some sort of ‘preliminary assessment,’ the judge decided that there was a real issue–what the American courts would call a “case or controversy”–that could be decided. In other words, the letter raised enough of an issue that the Federal Court could exercise its jurisdiction over Galloway’s lawsuit seeking (in essence) to overturn the letter’s impact.

On the other hand, Justice Martineau concluded–as quoted above–that “a proper factual record and the benefit of full legal argument . . . are lacking at the present time.” But if the letter constitutes a legal decision of any force, it should provide a basis not only for jurisdiction but for the issuance of an injunction–that is, it should be reviewable on its merits.

Why the mixed-up ruling? Because Galloway is trying to use a preliminary injunction to do an end run around the normal immigration appeals process–but that’s because someone (Kenney? DFAIT? PSEP?) seems to be trying to do an end run around the normal immigration adjudication process. Had Galloway been denied entry, he could have appealed, and the courts would have had both jurisdiction and a sufficiently concrete record on which to decide the merits of the case. The letter throws everything into disarray. (In fact, I wonder if a better course would have been for the Federal Court to decline to exercise its jurisdiction on the ground that the letter was without force of law. Galloway could have attempted entry, and if he was denied, he could have appealed through the normal channels, at which point the letter would have been admissible as evidence of… well, of something.)

One other interesting point, buried in the decision: as mentioned, an alien who has been denied entry to Canada can appeal to the Minister for an exception. Which Minister? Says Justice Martineau: “In this case, the Minister of Public Safety and Emergency Preparedness.” That’s Peter Van Loan to you and me. So how did Kenney get mixed up in all of this? And what prompted that immigration official in London to send Galloway the controversial letter? And are my two questions really the same question, with the same answer?

Posted 31 March 2009 § Canada § Politics § United Kingdom # ‡ Comments (0) þ

On Subsidizing the Press

Apropos my previous post, I note that David Akin is highlighting the Conservative Government’s decision to subsidize a politically conservative regional news magazine. Says Akin:

This, of course, was the day after CBC announced about 800 layoffs because of a budget shortfall it hoped Canada’s government, on behalf of all taxpayers, might cover. For better or worse, CBC is not “Western Canada’s Conservative Voice.”

For the record, I oppose all bailouts as a matter of principle; to paraphrase that Swedish minister, the Canadian government should not be prepared to own car factories–or news rooms.

But given that bailouts are de rigeur at the moment, I don’t think Akin means to suggest that the newsmagazine should be categorically ineligible for a bailout; rather, his point is that there’s something incongruous, and politically troubling, about a Conservative government subsidizing a conservative newsmagazine while the CBC–widely perceived to be politically liberal–is shedding jobs. My question is: is this a fair point?

After all, the newsmagazine in question–and, presumably, most private media enterprises in Canada–confront this economic crisis from a very different starting place than does the national public broadcaster. In boom times, private enterprises receive (ideally) no public dollars, while in boom times, the public broadcaster receives hundreds and hundreds of millions of dollars.

When the boom times go bust, many private enterprises face the prospect of total economic failure. Government bailouts are justified on the theory that subsidized survival is better than failure. As noted, I generally dispute this premise–but it’s the prevailing one. But does a downturn affect the public broadcaster the same way? Unlike a private enterprise, the public broadcaster never turns a profit–even in boom times. (If it did, it wouldn’t need to be a public broadcaster; after all, the core justification for a public broadcaster is to ensure a medium for the dissemination of voices that would not otherwise be disseminated; and if those voices could be disseminated privately, the state would not need to fund and operate its own mechanism for dissemination.) So when boom times go bust, the public broadcaster doesn’t face the prospect of failure–unless the state itself threatens to fail. But if government revenues fall during a downturn, it seems natural that expenditures on the public broadcaster would fall in rough proportion, with corrections for the relative importance of a public broadcaster versus other government expenditures during a recession or depression.

To cut to the point: if a government bailout places a subsidized private media enterprise in the position it would have been in had there been no downturn, then it would be fair for the CBC to demand continued funding at pre-downturn levels. But if bailouts are designed only to prevent the absolute failure of private enterprises, and those enterprises must consolidate operations notwithstanding their bailouts, then it becomes hard to make the case that the CBC should be entitled to continue to operate as though there were no economic downturn.

So which is the case?

Posted 28 March 2009 § Canada § Politics # ‡ Comments (0) þ