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RUEAIIA/CIA WASHDC PRIORITY
RHEHNSC/WHITE HOUSE NSC WASHINGTON DC PRIORITY
RUEKJCS/OSD WASHDC PRIORITY
RUCNCAN/ALL CANADIAN POSTS COLLECTIVE
RUEHLO/AMEMBASSY LONDON 0941
RUEAWJA/DEPT OF JUSTICE WASHDC
RUEAHLC/DEPT OF HOMELAND SECURITY WASHDC

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