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Cablegate: Federal Court Orders Release of Khadr Interrogation

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UNCLAS SECTION 01 OF 02 OTTAWA 000878

SENSITIVE

SIPDIS

E.O. 12958: N/A
TAGS: PTER PGOV PREL KJUS CA
SUBJECT: FEDERAL COURT ORDERS RELEASE OF KHADR INTERROGATION
EVIDENCE

1. (U) Summary: Canada's Federal Court has ordered the government
to release sensitive information, including U.S. documents
previously shared with Canadian authorities, to lawyers representing
Canadian Guantanamo detainee Omar Khadr. The order derives from a
recent Supreme Court of Canada (SCOC) decision that found that
Canadian officials had acted illegally in interrogating Khadr at
Guantanamo Bay. The presiding judge said that the information
bolstered Khadr's claim that he was mistreated while in U.S.
custody. The judge further remarked that the disclosure might harm
Canada-U.S. relations, but that that information regarding
interrogation techniques used at Guantanamo Bay was already in the
public domain and, therefore, should not be protected. End
summary.

2. (U) The June 25 Federal Court decision related to a prior Supreme
Court of Canada ruling of May 23 that the Canadian Charter of Rights
and Freedoms (Bill of Rights analogue) extends to the actions of
Canadian officials abroad who participate in foreign proceedings
that breach Canada's obligations under international law. The SCOC
found that Canadian officials had acted illegally by interrogating
Khadr at Guantanamo Bay in 2003 and 2004, and by sharing the
resulting intelligence with U.S. authorities. It therefore ordered
the Canadian government to disclose information to Khadr's lawyers
relevant to his defense in U.S. military proceedings. The Canadian
government had sought to protect the information on national
security grounds. The SCOC tasked the Federal Court of Canada with
reviewing relevant evidence held by Canadian authorities and
determining what could be disclosed, subject to the need to balance
Khadr's right to a fair trial with national security.

3. (U) The Federal Court of Canada found that Canadian officials
"became implicated in the abuse of Khadr" by U.S. authorities when
they interviewed him despite having knowledge of his treatment and
of U.S. steps to "prepare" him for their visit. As a result, the
Court ordered relevant documents and DVD recordings of the Canadian
interrogation of Khadr to be released to Khadr's legal defense team.
The court directed that the faces of U.S. and Canadian officials be
blurred before the material is handed over. Additionally, it
ordered interview notes and witness statements prepared by U.S.
agents in advance of the Canadians' visit to be disclosed. The
Court did not specify publicly what other information it wanted
disclosed, but noted that the full package would be detailed in a
private order by the Federal Court directly to the Khadr defense
team. The Court has not publicly specified a date when the material
must be turned over.

4. (U) Subject to conditions in the private court order, the Federal
Court gave Khadr's legal team the right to release such information
it receives, including to the media, as it sees fit. The Court
denied a separate request by media outlets for the release of the
information directly to them. Presiding Federal Court Justice
Richard Mosley acknowledged that while the release of the
information, particularly the DVD evidence, "may cause some harm to
Canada-U.S. relations, that effect will be minimized by the fact
that the use of such interrogation techniques by the U.S. military
Qthat the use of such interrogation techniques by the U.S. military
at Guantanamo is now a matter of public record and debate."

5. (U) Justice Mosley ruled that his authority to order disclosure
flowed exclusively from the SCOC decision in May and accompanying
Charter remedy. He specifically stated that such disclosure was
separate from Khadr's formal application of January 24, 2008 for
disclosure under Section 38 of the Canada Evidence Act. Further, it
was separate from a number of civil actions currently pending in
Khadr's name in the Federal Court against the Canadian government
respecting the provision of consular services and related issues,
which could also result in additional disclosures.

6. (U) In one of his few observations that favored the government,
Justice Mosley stated that his review of the evidence indicated that
Canadian interrogators apparently had not acted with the purpose of
helping U.S. authorities assemble a case against Khadr. He also
revealed that U.S. authorities had inquired whether Khadr might be
tried in Canada and had provided details about the U.S. evidence
against Khadr to Canadian officials for that purpose.

COMMENT
-------

7. (SBU) When it is publicly released, the Khadr material will be
headline news in Canada and will stoke the political campaign for
Khadr's repatriation, as well as the national and legal debate over
balancing civil rights and national security. Canadian courts have

OTTAWA 00000878 002 OF 002


become increasingly proactive in identifying what they determine to
be the appropriate balance between the two. The Khadr case, the
ongoing Khawaja terrorism trial, current immigration security
certificate proceedings, and previous disclosures regarding Afghan
detainees have put pressure on the Canadian government's ability to
protect sensitive foreign security information. As a result,
Canadian commentators on security have warned that the flow of law
enforcement and intelligence information from friendly governments
-- on which Canada is heavily dependent -- could be compromised due
to the courts actions in this an other recent cases.

WILKINS

© Scoop Media

 
 
 
 
 
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