Connection Between Honorable Justice Rosalie Silberman Abella, Supreme Court of Canada, Berkeley Law Dean Sujit Choudhry and Berkeley Law faculty member John Yoo

Omar Khadr
Omar Khadr

Sharon Adams | September 14, 2014

The Facts:

Constitutional scholar Sujit 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..."

John Yoo's incredibly long, detailed and incorrect memos purported to give legal justification for suspension of the Geneva Conventions and implementation of illegal military commissions. For example, in his January 9, 2002 Memo to William Haynes II, Yoo stated unequivocally that the Geneva Conventions do not apply to the Taliban or al Qaeda in Afghanistan. Yoo's other memos were the basis for the torture that occurred at Guantanamo and Abu Ghraib.**

The Challenge:

DEAN CHOUDHRY: While a professor at a public university, you used that platform to denounce what you identified as "flagrantly illegal conduct". Now, you are Dean of a public university that harbors John Yoo — one of the main authors of the memos that purported to permit that illegal conduct. Do you want your legal legacy to be ‘It's OK to do civil rights work, as long as you don't make real change?’ Or do you want your legacy to be that you stood up for human rights? Investigate John Yoo!!!

JUSTICE ABELLA: Thank you for your decisions in the Khadr cases. Will you take this opportunity to speak out against torture, against indefinite detention and against harboring war criminals? Silence is complicity!!!


*Charged with throwing a grenade at a U.S. soldier, although evidence shows Khadr was unconscious after being shot twice in the back. See Andy Worthington: “He Didn’t Commit a War Crime”: Omar Khadr’s US Lawyer Challenges His Conviction at Guantánamo
**European Court Finds CIA Interrogation Techniques "Amounted to Torture"

Sharon Adams is the Vice-President of the National Lawyers Guild, San Francisco and a member of the Bay Area Chapter of The World Can’t Wait: Stop the Crimes of Your Government! Contact: 415.864.5153 or sf [at] worldcantwait.net.