Canada Court denounces U.S. detentions
on May 23, 2008 at 1:33 pm
UPDATED AND EXPANDED 6:20 p.m. Friday
Canada’s Supreme Court ruled Friday that the U.S. “regime” for detaining a teenage Canadian at Guantanamo Bay amounted to “a clear violation of fundamental human rights protected by international law,” at least in 2003 when the youth was interrogated at the U.S. Navy base in Cuba.  As a result, the Court ordered Canadian officials to disclose records of interrogation by Canadian intelligence officers of the youth, Omar Ahmed Khadr, for defense lawyers’ possible use in defending him against war crimes charges made by the U.S. military. The 17-page decision of Canada’s highest court can be downloaded here.
The decision’s conclusion that detention and questioning of Khadr in February and September 2003 were illegal was based upon rulings by the U.S. Supreme Court. The Canadian Court wrote: “The process in place at the time Canadian officials interviewed Mr. Khadr and passed the fruits of the interviews on to U.S. officials has been found by the United States Supreme Court to violate U.S. domestic law and international human rights obligations to which Canada is party.”
Because of that, the Court went on, the Canadian intelligence and security agents who conducted the interrogation of Khadr were not obliged to respect U.S. law governing the Guantanamo operation, and their participation in that process violated Canada’s basic charter of rights — its fundamental constitution.
Khadr’s defense lawyers had asked the tribunal for an order finding that Canadian officials had violated the Canadian Charter of Rights and Freedoms, and thus to order disclosure to the defense of all documents in Canadian government hands bearing upon the war crimes charges he now faces before a U.S. military commission.
The remedy under that Charter, the Court ruled, does not mean that Khadr and his lawyers are entitled to see completely unedited versions of the documents and information garnered by the 2003 interrogations.
Unredacted copies of those materials, it noted, have already been turned over to a designated Canadian judge. Under Friday’s ruling, it said, that judge will now review the material, receive arguments from both sides “and decide which documents fall within the scope of the disclosure obligation.”
The Court stressed that what is ultimately disclosed will depend upon a “balancing of national security and other considerations” under Canada’s laws of evidence.
The decision covers two categories of information: records of interviews by Canadian officials with Khadr at Guantanamo, and information derived from those interviews that was passed on to U.S. officials. The Court rejected the argument of Canada’s Justice Ministry that any disclosure should be no greater than U.S. officials were willing to provide to Khadr during his prosecution before a military commission.
“The remedy of disclosure being granted to Mr. Khadr,” it explained, “is for breach of a constitutional duty that arose when Canadian agents became participants in a process that violates Canada’s international obligations. Whether or not he is given similar disclosure by U.S. officials, he is entitled to a remedy for the Canadian government’s failure to provide disclosure to him after having given U.S. authorities access to the product of the interviews” in circumstances that violated Canada’s Charter.
The decision made clear that it was possible that Canadian officials had not turned over everything they obtained from the Khadr interrogations. But, it said, the disclosure obligation may have to go beyond what was shared with the U.S. It may not be possible, the Court said, for his lawyers to evaluate the information that was shared, so “it would seem to follow that fairness requires disclosure of all records in any form of the interviews themselves — whether or not passed on to U.S. authorities — including any transcripts, recordings or summaries in Canada’s possession.” That, it indicated, may go beyond what was shared.
In reaching its decision that Canadian officials had violated their duties under that country’s Charter, the Court did not make its own findings that the U.S. government had violated any laws or obligations.
The Court commented: “Issues may arise about whether it is appropriate for a Canadian court to pronounce on the legality of the process at Guantanamo Bay under which Mr. Khadr was held at the time that Canadian officials participated in that process.” But, it added, “we need not resolve those issues in this case.” It then went on to cite the Supreme Court’s decisions in Rasul v. Bush in 2004 and Hamdan v. Rumsfeld in 2006 as declaring that the denial of legal rights to the detainees, including rights under the Geneva Convention, were breaches of U.S. and international law as “violations of human rights.”
The opinion did not mention legal developments in the U.S. following the Hamdan decision in 2006 — including Congress’ passage of the Military Commissions Act of 2006, aiming to take away all habeas rights of detainees and substituting for them a limited civilian court review process centered in the D.C. Circuit Court.
To reach its decision that Canadian officials had violated their duties under that country’s Charter, the Court first had to put aside a government argument that Canadian law — including the Charter — does not apply abroad, so Canadian officials are obliged to obey the laws of countries in which they find themselves and take action.
It relied upon its own decision in 2007 in the case of Regina v. Hape. While that decision did reinforce the customary notion that Canadian law does not apply outside Canada, the Court noted that it also included “an important exception.” That is, the respect for other countries’ laws while Canadians are in those countries, it noted, “cannot be used to justify Canadian participation in activities of a foreign state or its agents that are contrary to Canada’s international obligations.” With the U.S. Supreme Court having found that the Guatanamo Bay “regime” as of 2003 was contrary to international as well as U.S. law, the Court said, Canadian officials were bound by the Charter not to take part in that process.
When an individual is facing criminal proceedings, Canada’s highest court said, the Charter requires that government officials disclose to an accused the information that bears upon his case. In 1991, the Court noted, it had ruled in the case of Regina v. Stinchcombe that “persons whose liberty is at risk as a result of being of being charged with a criminal offence are entitled to disclosure of the information in the hands of the Crown” — an entitlement that is derived directly from the Charter. (That appears to be somewhat similar to the U.S. Supreme Court’s ruling in Brady v. Maryland in 1963 requiring prosecutors to turn over to the defense lawyers any evidence prosecutors have that may aid in the defense against the charges.)
