Monday, February 26, 2007
Global judicial dialogue is something many of us (to name just a few, Vicki Jackson, Judith Resnik, Roger Alford, and me) have studied in recent years. Offering a smorgasbord of food for thought is the Canadian Supreme Court's unanimous invalidation Friday, in Charkaoui, of certain counterterrorist detention procedures. Worth noting is the reliance of Chief Justice Beverley McLachlin -- 1 of 4 women on the 9-member Court -- on her U.S. counterpart's 2004 holding in Rasul that noncitizens detained at Guantánamo may litigate in U.S. courts. It and other sources, she wrote in ¶ 90, establish that "[w]hether through habeas corpus or statutory mechanisms, foreign nationals, like others, have a right to prompt review to ensure that their detention complies with the law." McLachlin omitted mention of Tuesday's appellate ruling sustaining Congress' effort, via the Military Commissions Act, to upset Rasul. But then, the Canadian Court's attitude toward antiterrorism legislation itself invites comparison: it stressed in ¶ 39 that national security concerns cannot override the judge's constitutional duty to engage in "searching review" of asserted reasons for detention.