Here are the key findings and recommendations:
* In light of public allegations of mistreatment of detainees, SIRC believes that CSIS failed to give full consideration to Khadr’s possible mistreatment by US authorities before deciding to interact with them on this matter.These findings and recommendations are remarkable for a few reasons.
* SIRC believes that CSIS failed to take into account that while in US custody, Khadr had been denied certain basic rights which would have been afforded to him as a youth. As well, prior to his interview with the Service, Khadr had received no guidance or assistance from any adult who had his best interests in mind since he had been kept incommunicado and been denied access to legal counsel, consular representation or family members.
* SIRC believes that had CSIS followed policy on investigative activities abroad and prepared a detailed request for approval, it would have compelled a discussion and consideration of factors such as Khadr’s age, detention conditions and legal status before deciding to travel to Guantanamo Bay.
* SIRC recommends that CSIS develop a policy framework to guide its interactions with youth. As part of this process, the Service should ensure that these interactions are guided by the same kind of principles that are entrenched in Canadian and international law.
* It is incumbent upon CSIS to implement measures to embed the values stemming from recent political, judicial and legal developments in its day-to-day work in order to maintain its own credibility, and to meet growing and evolving expectations of how an intelligence agency should operate and perform in a contemporary democratic society. To that end, it would be helpful if CSIS received guidance and advice from the Minister on how to accomplish this task. In light of ongoing discussions to expand CSIS’s mandate to include foreign intelligence collection, it is also important for the Service to demonstrate that it has the professionalism, experience and know-how required to make the difficult decisions that arise when conducting operations abroad. (emphasis added)
First, the recommendation that CSIS develop a policy for its interactions with youth and that it incorporate principles of Canadian and international law is essentially SIRC acknowledging the merits of the trial level decision in Khadr v. Canada (et al.). In ordering the Harper government to seek the repatriation of Khadr, the Federal Court judge heavily relied upon Khadr's status as a child, someone deserving of the protections under the Convention on the Rights of the Child. The judge also relied on the factors cited by SIRC above, that he didn't have access to legal counsel, consular assistance, contact with family members, etc. Bullet point 2 above mimics paragraph 70 & ff of O'Reilly's judgment.
Is it lost on anybody that SIRC is essentially advocating the adoption of key findings of the Khadr trial level decision while the Harper government is in the midst of appealing that decision to the Federal Court of Appeal?
SIRC has therefore gone on record. They've staked out their view on what should happen from this point forward, irrespective of the appellate level decision by the Federal Court where the Harper government is hoping to get lucky. In this sense, SIRC's report is a major slap not only to CSIS but to the government.
Harper has famously refused to even acknowledge that Khadr was a child soldier and deserving of those protections, contrary to the UN Convention: ("My understanding of international law is, to be a child soldier, you have to be in an army," he said in the pre-taped interview.) So SIRC, in addition to the Federal Court in the Khadr case, in a sense is challenging Harper on that point too. They are advising that CSIS adopt these recommendations which essentially mirror Judge O'Reilly's tenets and irrespective of the Court of Appeal's outcome.
So we see yet another institutional break from the Harper government in the national security realm. While we don't have any faith whatsoever that Minister Peter Van Loan and the rest of the gang who can't shoot straight on foreign affairs will act on these recommendations, it's significant that SIRC's gone on record, publicly. Their recommendations will outlive this government. We should applaud the effort to tell the world that Canada is not completely retrograde. Institutions are lining up to brightly magnify the Harper government's foreign policy and legal failings.
- April 24, 2009: Against the appeal of the Khadr judgment
- June 4, 2009: Four cheers for the Federal Court: attempting to correct Harper government international incompetence