U.S.-CANADA LAW ENFORCEMENT AND COUNTER-TERRORISM

C O N F I D E N T I A L SECTION 01 OF 04 OTTAWA 003684 SIPDIS NOFORN E.O. 12958: DECL: 12/14/2015 TAGS: CA KCRM KJUS PINR SUBJECT: U.S.-CANADA LAW ENFORCEMENT AND COUNTER-TERRORISM COOPERATION: MITIGATING FALL-OUT FROM THE ARAR INQUIRY Classified By: POL M/C Brian Flora, reasons 1.5 (b) (d) ¶1. (C/NF) Summary: The final reports of the Arar Public Inquiry (one factual, ONE with policy recommendations) will be released in March 2006. RCMP Commissioner Zaccardelli fears that the recommendations will seek to undermine his institution's independence and its ability to freely and proactively share information with us. Director for Arar Commission issues at Foreign Affairs, Scott Heatherington, believes that Inquiry recommendations to restrict information sharing will be tempered by the inquiry into the 1985 Air India bombing that should point out that effective counter terrorism efforts require a more robust sharing of information. National Security Advisor Bill Elliott hopes that the new government will be reasonable in its implementation of Arar recommendations; he intends to impress this upon the transition team. The most likely practical step to facilitate the unhindered flow of information, according to Heatherington, will be the use of originator caveats. These would specify the use of information provided to us by Canadian officials to ensure no Canadian complicity in unpopular counter-terrorism operations or renditions. ¶2. (C/NF) With the ongoing Arar Inquiry fallout and the emotional debate over renditions, secret prisons, and interrogation techniques, improving the flow of information will require a long term effort. Embassy proposes five things the U.S. can do in the short-term to help move this issue forward: 1) Finalize the Graham-Powell procedures and consider this as a model for a broader agreement on information sharing; 2) Explore the use of caveats with Canadian colleagues; 3) Exercise care in processing future cases; 4) Engage in high-level dialogue to seek workarounds on current information blocks; 5) Pursue a broad-ranging public diplomacy campaign focused on the growing threat from terrorism in North America. Embassy would appreciate comments from interested Washington agencies and will follow up accordingly. End Summary Arar Inquiry Comes to Closure -------------- ¶3. (C/NF) The Arar Commission was established in January 2004 to investigate the case of Syrian-born Canadian citizen Maher Arar. In September 2002, Arar was intercepted by U.S. authorities in New York, held briefly, and involuntarily deported to Syria. Following appeals by the Canadian government, he was released in January 2004 and returned to Canada. The public outcry over his claims that he was tortured and brutalized while in Syria forced the government to establish a formal public inquiry. Justice Dennis O'Connor was named to lead the investigation, whose mandate was (a) to conduct a factual inquiry into the role that Canadian authorities played in the decision to detain Arar and deport him to Syria; and (b) to "make recommendations on an independent, arms length review mechanism for the activities of the RCMP with respect to national security." ¶4. (C/NF) The policy review panel consists of Monique Begin, Minister of HEALTH and Welfare from 1977 to 1984; Alphonse Breau, former Assistant Commissioner in the RCMP; Kent Roach, a law and criminology professor at the University of Toronto; Martin Rudner, Professor at Carleton University and Director of its Canadian Centre of Intelligence and Security Studies; and Reg Whitaker, former political science professor at York University. National Security Advisor Bill Elliott told the Ambassador that while he trusts the judgment of Justice O'Connor, he thought several of the other members of the panel might be less able to put the Arar affair into proper perspective and context. ¶5. (SBU) The bulk of public hearings were completed by mid-September 2005; the Commission heard 85 witnesses in-camera and in-public over 127 days. There were 30,450 pages of testimony collected and 2,461 documents made public during the course of the hearings, which were conducted with as much transparency as possible and were closely followed by the press. Witnesses included senior government and RCMP officials, some of whom have been threatened with criminal liability for their actions in the case. ¶6. (SBU) As a sub-set of the factual report, the Commission issued a Fact Finder's Report on Maher Arar's Treatment in Jordan and Syria on 14 October 2005. In the 25-page report, human rights and international law expert Professor Stephen ¶J. Toope, President of the Pierre Elliott Trudeau Foundation and former Dean of McGill's Faculty of Law, states "I conclude that Maher Arar was subjected to torture in Syria." He draws on the experience of three Syrian-Canadians who were imprisoned at the same time and gives a straightforward, albeit circumstantial, description of Arar's confinement and its lingering psychological effects, with background on the legal definition of torture and the context of the incident. ¶7. (C/NF) According to the mandate, the Arar Commission reports must be completed by the end of March, but drafts are expected to be out for comment in mid-December. The Arar Commission has already had a chilling impact on U.S.-Canadian information sharing, less so in intelligence than in law enforcement, but its shadow hangs over every information exchange at every level. To get a better feel for what the reports might contain and discuss ways to contain the fallout to our bilateral information sharing, we spoke with Heatherington, Elliott, and RCMP Commissioner Zaccardelli. FAC -- CAVEATS ON INFORMATION PROVIDED MAY BE THE ANSWER -------------- -------------- ¶8. (C/NF) In his meeting with POL M/C, Heatherington emphasized the multi-dimensional impact of the Arar affair, which has preoccupied the law enforcement community and much of the government for over a year. In addition to the basic question of official complicity in Arar's deportation to Syria, the government is dealing with the controversy surrounding aggressive RCMP reaction to leaks of Arar documents to Ottawa Citizen reporter O'Neil; Arar's lawsuits against the government; procedural questions of information-sharing in a larger context (both internationally and within the GoC); and continuing fallout over the government's inability to convict the 1985 Air India bombing perpetrators. Heatherington opined that information sharing might not be seen to be the main culprit in the Arar findings in any event since U.S. authorities already had sufficient information to deny Arar entry and to deport him without Canadian-provided information. ¶9. (C/NF) Heatherington said the Inquiry's key policy recommendation will be for better oversight of the RCMP, specifically as regards what was "broken" in the bilateral information-sharing system. He does not, however, foresee this leading inevitably to recommendations that would disrupt information sharing. A key "fix" might be the widespread use of more explicit originator "caveats" for Canadian information provided to U.S. officials. (For example, "This document is loaned to the U.S. FBI in confidence for its use in assessing and investigating terrorist threats against U.S. interests. It is not to be reclassified or further disseminated outside the FBI or used in relation to any watch list without the consent of the originator.") ¶10. (C/NF) Heatherington also believes we need to look at the broader context of the Arar Inquiry as Canada attempts to deal with the balance between effective counterterrorism and the protection of civil rights and privacy. Arar is at ONE end of the spectrum; the other end is the ongoing investigation into the two-decade old Air India bombing and what flaws existed in the Canadian system that prevented the country's law enforcement organizations from preventing that terrorist attack. Regarding Arar, there is concern within the GoC that in the post-9/11 frenzy, too much information was shared too freely -- data was just dumped onto a disk and passed along. In the case of Air India, the investigation is showing that not enough was shared, especially between CSIS and the RCMP. The Air India review being conducted by former Ontario Premier Bob Rae could thus provide a corrective to the reaction to Arar. NATIONAL SECURITY ADVISOR -- WORK AROUNDS -------------- ¶11. (C/NF) Ambassador, accompanied by DCM and Poloff, met with National Security Advisor Bill Elliott on November 17, ¶2005. Elliott said he shares our concern that the Arar Commission may continue to hamper the free flow of law enforcement information. But Elliott said he has tried to impress on everyone, including the RCMP, that they cannot let Arar stop them from doing what they need to do -- the safety of Canada depends on the ability to share information with its allies, in particular the U.S. He reiterated that his message has been to not overreact, and this is the message he will pass on to the transition team for the next government. ¶12. (C/NF) Elliott stressed that ONE thing the U.S. could do pro-actively to help manage the consequences of the Arar Inquiry recommendations would be to establish our procedures for implementing the Graham-Powell agreement on Involuntary Removals to a Third Country. The GOC needs to be able to point to something concrete that shows the U.S. is obligated to consult seriously with Canada before even contemplating the deportation of ONE of its citizens to a third country. (Note: A State-DHS draft outlining U.S. procedures is in the final clearance process in Washington. End note) RCMP -- MITIGATE THE IMPACT ON THE INSTITUTION -------------- - ¶13. (C/NF) In a conversation with Legatt, RCMP Commissioner Zaccardelli said that he was "still smarting" from the Arar incident, especially because the RCMP was not notified prior to Arar's deportation. He regrets that some of the proposed recommendations will likely make it even more cumbersome to exchange information and confirmed that the fallout from Arar has already made it more difficult to conduct joint law enforcement operations, employ U.S. informants, and monitor conversations. Zaccardelli strongly advised to the policy review board that any recommendations for policy changes not be so aggressive as to hinder the work or the independence of the RCMP. But he also said that the hostile nature of the questions put to him by the commission leads him to believe there will be a strong move to restrict flexibility in information-sharing and the conduct of investigations. Law enforcement officials on both sides of the border will simply have to adapt and develop work-arounds to allow for continued effectiveness in investigations and prosecutions. Overall, Zaccardelli believes everything can be overcome through close cooperation, but it will take a concerted effort to make it work. WHAT THE U.S. CAN DO TO MITIGATE THE IMPACT OF ARAR -------------- -------------- ¶14. (C/NF) From these conversations as well as from inter-agency discussions within the Embassy, we recommend the following measures be taken to improve information-sharing with the Government of Canada in the lead up to the Arar report release: -- Finalize Graham-Powell Implementation Procedures: The GOC has already provided us with its procedures to implement the Graham-Powell Agreement on Removal to a Third Country and has emphasized the importance to Canada of getting ours in return. The draft developed in Washington by CA and DHS looks sufficient and should be ushered through the approval process. This will help us to restore trust and would provide GOC officials with some political backup when they decide to share information. From there, we support exploring the possibility of using the Graham-Powell agreement as a kind of model for a broader agreement on information sharing. -- Explore Use of Caveats: If Heatherington is right, the way forward in the short-term will lie largely in the use of caveats to the information that is passed to the U.S. Many agencies already have MOU's that allow for the passage of information with stated restrictions on how it may be used by the recipient. It would be useful to explore with our Canadian law enforcement and intelligence counterparts whether there is more that can be done in the short term to open up the flow of information through the more extensive use of caveats, and to develop recommendations on how best to manage this over the long-term. -- Continue to Exercise Care in Processing Cases: The slow and at times frustrating consultations over the return from Pakistan of suspected terrorist Abdullah Khadr is a reflection of the nervousness Canadian officials feel over any case that could become "another Arar." Heatherington told POL M/C December 6 that Khadr's return could not have come at a more sensitive time, with the press full of reports of "clandestine" landings in Canada and overflights by suspected intelligence aircraft, and secret prisons in Eastern Europe. Our careful handling of this case to date has provided officials here with the political cover which they need. The extradition of Khadr will be extremely high-profile, and a kind of test-case for the post-Arar environment. Any mishandling of this or future cases without full transparency would set us back. -- High-Level Dialogue: Some of our Embassy law enforcement representatives cite cases where information is not being shared even though it has no direct relationship to Arar concerns, e.g., routine information-sharing about suspected Embassy surveillance. Working level counterparts sometimes suggest the fallout from Arar as the reason they cannot share information, but we wonder if such cautiousness could be turned around through simple leadership and policy clarification by senior Canadian officials. We will engage on this, and encourage Washington officials to do likewise when the opportunity arises. We will also meet with the new government as soon as it is in place; it will have some six weeks to prepare for the Arar final report. -- Public Diplomacy: We need to continue to pursue an aggressive public diplomacy campaign here focusing on the continuing threat that terrorism poses not just to us, but to Canada and our allies as well. There are very few voices making this case, aside from Anne McLellan. If others do not make the case, the Embassy and Consulates will, and we welcome Washington's help in doing so. Visit Canada's Classified Web Site at http://www.state.sgov.gov/p/wha/ottawa WILKINS