Sunday, December 1, 2013
(Trigger alert, this story contains disturbing reports of assault)
Earlier this year, the World Health Organization released a comprehensive study that found more than a third of all women worldwide – 35.6% – will experience physical or sexual violence in their lifetime. The great majority of this violence is committed by intimate male partners in acts that can only be described as domestic or home-grown terrorism. It’s the latest in an endless stream of similar reports on this form of domestic terror, but Canada and other governments refuse to both recognize the extent of the crisis and respond accordingly.
When the report was released, WHO Director General Dr. Margaret Chan declared, "These findings send a powerful message that violence against women is a global health problem of epidemic proportions. We also see that the world's health systems can and must do more for women who experience violence." The report found that of the women who experience direct attacks, 42% require some form of hospitalization.
In confirming what more than half of the population already knows is a daily reality, the WHO report did not exactly produce a firestorm of response and calls for urgent action from government leaders. Instead, their “war on terrorism” focuses on racial and religious profiling, the jailing of innocents, the closing borders to refugees, extra-judicial assassination by Canadian-made drones, and continuation of indefinite detention and rendition to torture programs. There are no massive interventions that address the greatest purveyors of fear and violence in Canada and around the world: the men in women’s lives.
As of April, 2010, there were an astounding 593 women’s shelters in Canada. Earlier this month, the Ontario Association of Interval and Transition Houses released its annual Femicide report, a grim reminder of women’s lives snuffed out by men in Ontario during 2013 (http://www.oaith.ca/assets/files/OAITH%20Final%202013%20Femicide%20List-%20Nov%202013.pdf). And despite a United Nations call for Canada to develop a comprehensive national review to end violence against aboriginal women, Canada’s envoy to the UN in Geneva rejected the idea. Similarly, in 2010, Canada adopted a National Action Plan for the implementation of United Nations Security Council resolutions on Women, Peace and Security which included supporting the rights of girls and women abroad, but it has failed to deliver on its promise of annual and midterm reports.
Perhaps that is due in part to the fact that Canada’s rhetoric about supporting women’s rights (a mainstay of its justification for the occupation of Afghanistan) rings hollow. In Afghanistan, Canada’s presence does not appear to have moved things forward for women. Indeed, the United Nations Assistance Mission n Afghanistan reported last December that women who flee rapists and abusive husbands are regularly jailed by the hundreds for alleged “moral crimes.” Among those jailed are those who have defended themselves against and, in the process, wounded or killed rapists.
Lest one conclude that Afghanistan is just “behind the times”, it is worth noting that here in North America, women who are similarly jailed in alarming numbers. In the U.S., the Michigan Women’s Justice and Clemency Project, found: "The average prison sentence for men who kill their intimate partners is 2 to 6 years. Women who kill their partners are sentenced, on average, to 15 years."
Marissa Alexander, an African-American mother of three, did not kill her abusive ex-partner when he physically attacked her and threatened her with death only nine days after she gave birth. fired a warning shot into the ceiling to scare him off, serving 20 years of hard time in Florida. During her trial – one in which the judge rejected her “stand your ground” the same rationale used by the state of Florida for failing to arrest the man who murdered Trayvon Martin – Alexander recounted numerous incidents of severe physical abuse including choking, attempted strangulation, and other incidents that required hospitalization. She lost the ability to swallow as a result of her injuries and lost ten pounds. She subsequently obtained a domestic violence injunction against her ex. In 2010, when she was five months pregnant, she was “head-butted” twice, her clothes torn, and thrown to the ground. During all these episodes—and at other times, as well—he threatened to kill her. At trial, numerous witnesses testified about seeing Alexander's injuries, while in-laws of her abusive husband testified about his reputation for violence. One witness confirmed that Marissa Alexander met the criteria for “battered person’s syndrome.”
On top of this, her abusive husband admitted in a sworn affidavit, “The way I was with women…they never knew what I was thinking or what I might do. Hit them, push them. …I honestly think [Marissa] just didn’t want me to put my hands on her anymore, so she did what she feel like she have to do to make sure she wouldn’t get hurt, you know. …The gun was never actually pointed at me.”
While an appeals court recently rejected her contention that she should have been granted immunity from prosecution under Stand Your Ground (under which an individual can use deadly force if “he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm”), it did find, in granting her a new trial, that the jury was given the wrong instructions. The original judge essentially placed the burden of proof on Marissa Alexander when it came to showing that she was about to be attacked and needed to act in self-defene. The appeals court confirmed that Alexander “was charged with aggravated assault but – under any possible review of the evidence– inflicted no injury.”
While a new trial was a breakthrough, Alexander’s supporters called on the state to drop the charges and let her go free. Unfortunately, the state of Florida is pursuing the trial option, and a hearing to determine whether Marissa will be freed on bond and returned to her children (she has not seen her youngest child in three years) took place earlier this month, with a decision expected by the end of the year. Meanwhile, the man who continually assaulted her and threatened to take her life walks free.
I have had the privilege of corresponding with Alexander while she has been in jail. She is a compassionate and insightful person who recognized immediately upon going behind bars how many women were also in her shoes: they too were in jail because they chose to live, and the judicial system simply could not understand the terror that constituted their daily lives.
Closer to home is the case of Ottawa’s Ashley White, 25, who earlier this year was found guilty of aggravated assault (and acquitted of attempted murder) for stabbing her former boyfriend. She faces a possible maximum of 14 years behind bars for defending herself. According to press reports on her trial, White’s former boyfriend, Patrick Halcro, aged 36, a veteran of the Afghanistan occupation who suffers PTSD, often went into fits of rage and jealousy. He admitted in court to punching her and smashing her head into a door frame. As QMI News reported, he claimed, "I used proportional force. I felt threatened."
White suffered a shattered nose and cheekbone, requiring facial reconstruction surgery, in addition to post-concussion syndrome and a diagnosis of PTSD. The Ottawa Sun reported, “Medical evidence suggested her head trauma and the shock of seeing her face bathed in blood could have placed her in a state where she wouldn't have known what she was doing when she stabbed Halcro. As for Halcro, the knife blade nicked his lung but a trauma surgeon said the injury was relatively minor.”
At one point in the trial, White’s lawyer noted that after pummeling her, Mr. Halcro stepped over her bloodied body to retrieve his luggage.“Your luggage was more important to you than checking on Ashley,” the lawyer said. According to QMI News, “He said he didn’t realize the extent to which he’d hurt her until he got his bag and noticed a lot of blood where White had collapsed.”
The Ottawa Sun reported that White “remembers being pummelled on the floor as he loomed over her until she could no longer see and felt like she was going to die. He said: ‘I am trained to kill you and I will kill you’ or something like that, White said.”Four years after the original beating, White remains out on restrictive bail, while her ex was never charged. A community of friends has come together to try and assist her with her massive legal bills, both for the trial and an expected appeal. That group has formed a Facebook page, on which they write: “We strongly believe [Ashley] was wrongly convicted of aggravated assault for stabbing her abusive ex-military boyfriend. After being beaten so badly she would later require reconstructive surgery and in a state of near unconsciousness, Ashley fended off the attack with a kitchen knife. It has never been explained why he was never charged and why the lead detective never testified in court, yet Ashley’s life is changed forever. Ashley’s friends and supporters are planning a fund-raising event to help her cover the $90,000 accumulated costs to date and $50,000+ she is facing in future legal fees.”To join that facebook page, where you can leave messages of support and donate to her costs, visit https://www.facebook.com/pages/Friends-of-Ashley-White/471297956316613
In the meantime, Marissa Alexander’s supporters ask that you contact FreeMarissaNow@gmail.com and visit https://www.facebook.com/FreeMarissaNow
And http://www.justice4marissa.com/As Canada marks the International Day for the Elimination of Violence Against Women on November 25, it is a reminder of how much work remains to be done, not simply on symbolic days, but every day as the war against women grinds on.
Tuesday, October 22, 2013
By Matthew Behrens
Just before Thanksgiving, the Supreme Court of Canada held two days of hearings regarding the fate of Mohamed Harkat, detained in prison and under house arrest for over a decade by a secret trial security certificate, the reasons for which he has never been allowed to know and challenge. October 10 was a public hearing that he could attend, while October 11 was one he was not invited to, nor were his lawyers, the media, or the public. In fact, the eight judges of the Supreme Court disappeared to hold a secret hearing somewhere in Canada.
The ninth judge, the recently sworn Marc Nadon, was at neither hearing, having stepped aside pending the completion of a legal challenge launched by Toronto lawyer Rocco Galati. While commentators have focused on the constitutional mechanisms underlying Galati’s challenge, there are plenty of other reasons to have concerns about Nadon sitting as one of the nation’s top judges. Exhibit 1 could be, perhaps, an exchange between Galati and Nadon that occurred some 13 years ago during the security certificate proceeding against Mohammad Mahjoub (arrested in June, 2000, and still awaiting the outcome of his case, which could include deportation to torture in Egypt).
During that long-ago hearing, Galati asked a high-level CSIS staffer, Ted Flanagan, whether lawyers for CSIS ever advise their agents about Canada’s Charter of Rights and Freedoms, especially in the context of interrogating individuals like Mr. Mahjoub. At that point, Mr. Nadon, then a Federal Court judge, chimed in with a response that reeked of a failed German defence at Nuremberg: “I would be very surprised if Mr. Flanagan and his colleagues ever spend any time reflecting on this," said Nadon. "They carry out the policy and the operations. I don’t see why Mr. Flanagan should worry about the Charter. I don’t think it is his job.” Considering that CSIS, at that time, had made secret allegations about Mr. Mahjoub that would lead to his ongoing detention and house arrest for 13 years (continuing to the present moment), Nadon’s feeling that Charter rights were not something CSIS should be messing with perhaps escaped the notice of the Supreme Court’s interviewing committee.
Charter is Not Their Business
That it should not be their business to know Charter rights would also appear to be the position of the RCMP officers who, on the morning of the secret Supreme Court hearing, October 11, attempted to remove a small group of demonstrators posing as “crime scene investigators.” They had appeared at the court building looking for clues about the missing judges. As the small crew set about their work in the style of a CSI drama, complete with evidence tags, magnifying glasses, binoculars, and other tools of the trade, Mounties demanded answers about the lack of a permit for the group to gather. When it was explained that the “permit” in question was called the Charter of Rights and Freedoms, they failed to understand, preferring to call for backup. As a 5-year-old was joined by two seniors with magnifying glasses scouring the Supreme Court steps for clues, the Mounties further objected to the presence of Crime Scene tape laid out in front of the Court building.
“We are concerned that the public might think this is a crime scene,” one Mountie said.
“Well, it IS a crime scene,” came the reply, noting that members of the public, invariably tourists, were shocked to discover the judges were holding such a hearing.
The crime scene investigators took their search through downtown Ottawa, stopping in at the Dept. of Justice, the Federal Court (where savvy investigators were able to wrangle out of the head of security that there are multiple secret locations in Ottawa where Federal Court judges hold their secret hearings), and the Canadian Border Services Agency, where they raised the issue of the ongoing migrant detainee hunger strike in Lindsay. This CSI tour concluded two days of activities that included a public staged reading of Kafka’s The Trial (an eerily prescient look at secret trials from almost a century ago) with such high-profile Ottawa-area writers as Elizabeth Hay, Alan Cumyn, and Monia Mazigh, as well as the public hearing the previous day, which attracted such an overflow crowd that additional rooms with video screens had to be opened up.
A Surreal Scene
It was surreal to sit in the Supreme Court once again for the third such challenge to security certificates since 2006. Among those who attended were former secret trial detainees (since cleared) who had watched the original hearing seven years ago from a facility dubbed Gitmo North, a returnee from torture whose life had been ruined by false allegations made up by CSIS and the RCMP, and some of Canada’s top civil rights litigators.
For this writer, a taxi ride into downtown Ottawa to ensure a seat at the Court was a disappointing but unsurprising reminder that regardless of court decisions attempting to rein in Canada’s secretive spy agency, the CSIS machine of harassment, infiltration of communities, and incessant efforts to turn communities and families against one another continues unabated. In this instance, the taxi driver explained how CSIS was constantly calling her to meet, to acknowledge whether she knew any of the hundreds of people whose photos she was shown, asking her to “friend” certain individuals on facebook and ask questions of them, make visits overseas and await further instructions upon arrival, and visit other cities to investigate the individual’s relatives. When she asked why I thought meeting with CSIS in such a manner was not safe, I mentioned a number of recent cases of horrific human rights abuses flowing from CSIS misbehavior, but the individual confessed to not knowing the names of Maher Arar or Abdullah Almalki, both Ottawa residents whose lives were ruined by CSIS and RCMP allegations that federal inquiries found to be dangerously inflammatory and false.
The public hearing at the Supreme Court revealed a scattered government case that clearly did not impress the eight judges hearing it. Judges were frustrated that they could not get straight answers out of the government (perhaps giving them a tiny inkling of what Mr. Harkat must experience), especially when they wanted to know whether it was seen as constitutional to base a judicial decision on information that was secret and not even summarized for an individual.
Secret Cases NOT Built by Choir Boys
In addition, the question of whether or not secret informants could be cross-examined by security-cleared special advocates – something that was denied in the Harkat case – resulted in an ironic response. Justice Dept. lawyer Robert Frater appeared shocked at the query, and declared, “You’re talking about bringing an informant into a closed national security hearing. Informants are not choirboys, they’re not Good Samaritans.” Perhaps a reasonable individual would at this point ask: if that is the case, how can you base a secret case against an individual who faces dire consequences on the unchallenged word of such individuals, especially when one of them failed a lie-detector test and one of them was apparently having an affair with the investigating officer from CSIS?
Indeed, as Judge Lebel reminder Frater, “To assess the reliability of information you have got to know where it comes from. We have an example in this case of a situation where a person was not reliable and (yet) was presented to the court as being reliable.”
In addressing the problems of secrecy and the flimsy bits of summarized allegations that are made public in these cases, Harkat lawyer Matthew Webber referenced what he called a “quite startling” finding that points to how “dangerous” this process can be. A recent security certificate decision noted that there were overlapping summaries of an alleged phone conversation produced by CSIS monitors in different geographic regions. “So Monitor A and Monitor B are both listening to the same conversation and they engaged in their respective summarization processes and [it was] discovered these two summaries purported to be summaries of the same conversation [but] didn’t even resemble one another. You wouldn’t have known that the summaries were talking about the same conversation” except for the discovery by special advocates that the summaries both referenced the exact time and date. On such a basis are secret hearing cases built, another reason why transparency in any case is so crucial.
“In Canada we have far too many examples of individuals who have been wrongly convicted on the basis of mistakes made at the investigative stage by the police,” said Breese Davies for the Criminal Lawyers’ Association. “There is no reason to assume that security intelligence investigations will be less fallible or more reliable. In fact, we have recent examples of where dire consequences have been occasioned to Canadian citizens” because of practices that are less than accurate or truthful. Indeed, she called on the Court to be especially vigilant given the fact that CSIS is well known to have make mistakes in terms of voice identification, translations, in the selection of and omission of information from summaries, in their analysis, and their refusal to include exculpatory information.
While some judges pressed the lawyers for solutions to the ongoing conundrum of security certificates – with the chief judge worrying about an ongoing “cascade” of such challenges coming before the court – there was, unfortunately, barely a word about secret trials abolition. This was not good news for those subject to the process, nor the hundreds of asylum seekers who have had secret allegations used against them at refugee hearings since 2008.
At day’s end, the chief judge McLachlin accidentally let slip that the court would resume the next day at 9:30 am, and had to be reminded that they would not be sitting in the court, since it was a “closed” hearing.
Meanwhile, that ninth seat on the bench was being warmed for Mr. Nadon, the man who upheld Mr. Mahjoub’s security certificate in 2000 based on secret allegations (and, as CSIS later revealed, information gleaned from torture.) But Mr. Nadon does not appear to worry himself about such niceties as Charter rights when it comes to individuals being tortured (as Mahjoub will likely be if deported), nor was he too concerned when it came to the torture of Omar Khadr at Guantanamo Bay. In a decision on the repatriation of Khadr, Nadon was clear: “I am far from convinced that Canada had a duty to protect Mr. Khadr,” he said of the Canadian teenager tortured in Afghanistan and Gitmo, adding “Canada has taken all necessary means at its disposal to protect Mr. Khadr during the whole period of his detention at Guantanamo Bay…. It is clear that Canada has decided not to seek Mr. Khadr’s repatriation at the present time. Why Canada has taken that position is, in my respectful view, not for us to criticize or inquire into.”
Referring to the interrogation of Mr. Khadr by Canadian officials, which occurred following torture that included sleep deprivation (in violation of Charter and international rights), Nadon’s position was similar to the one he took in the Mahjoub case when it came to CSIS not having to worry itself with such annoyances. “The fact that Canadian officials interviewed (sic) Mr. Khadr cannot amount to cruel and unusual treatment, even if these officials were aware that Mr. Khadr had been deprived of sleep. Mere knowledge of Mr. Khadr’s mistreatment cannot be equated with participation in such mistreatment.”
Such an argument might have raised a few eyebrows at Nuremberg.
Mr. Harkat, meanwhile, like Jozef K in The Trial, awaits the outcome of a process in which someone was saying something about him, but he is not allowed to know why.
Tuesday, October 1, 2013
Ottawa Writers and Performers Read Kafka's The Trial in Conjunction with Supreme Court Challenge to Secret Trials
Thursday, October 10, 7:30 pm
St Paul's University Amphitheatre, 223 Main Street, Ottawa
A few short hours after the Supreme Court of Canada hears the public portion of a precedent-setting secret hearing on Thursday, October 10, a collection of Ottawa-area writers and performers will gather at St. Paul's University at 7:30 pm, to read a staged adaptation of Kafka's The Trial, the classic novel that begins, "Someone must have been telling lies about Joseph K., for without having done anything wrong he was arrested one fine morning."
Ottawa-area writers Elizabeth Hay, Alan Cumyn, Monia Mazigh, Louisa Taylor, and Matthew Behrens will be joined by performers Teri Loretto, Laurel Smith, Richard Gélinas, and Zachary Council in reading a special adaptation of The Trial that contrasts the original novel's surreal story of a man trapped by anonymous allegations and the threat of indefinite detention with Canada's security certificate system, which condemns individuals to years behind bars without charge, based on secret allegations neither they nor their lawyers, the media, or public are ever allowed to see and challenge.
Ottawa's Mohamed Harkat, arrested on International Human Rights Day, December 10, 2002 on a security certificate, is still fighting the government's secret case and potential deportation to torture in Algeria. His case will be heard in public on October 10 and then, in a dangerous precedent, the Supreme Court will retire to conduct a secret hearing at an undisclosed secure Ottawa location on Friday the 11th.
"We read Kafka to understand how easily our nightmares become the life we create for ourselves, and for others," says Cumyn. "'The Trial' is a wake-up call, sadly never out of date, not even in Canada, not even now."
An adaptation of The Trial was first presented in Toronto in 2005 and featured readers including Ann-Marie MacDonald, Charmion King, Bernard Behrens, Linda McQuaig, Naomi Klein, Avi Lewis, Heather Mallick, and Stuart McLean. The adaptation, written by Matthew Behrens, was inspired by his attempts to send a copy of Kafka's The Trial to his friend, secret trial detainee Hassan Almrei, then marking four years in solitary confinement without charge in Toronto. The book was not given to Almrei for undisclosed national security reasons, the ultimate Kafka-esque experience: a novel about secret hearings being kept out of the solitary confinement cell of someone subjected to secret hearings.
Behrens, the national security columnist for rabble.ca, has also coordinated the Campaign to Stop Secret Trials in Canada since August, 2001, working closely with the detainees, their families, lawyers, and community supporters to raise awareness of the issue and challenge the unconstitutionality of security certificates. A 2006 Supreme Court challenge proved successful, but the Harper government simply reintroduced a new version of the old secret trial regime with a few additions, including secret hearings conducted by "special advocates" who can see some of the secret case. The detainees, however, are no closer to learning the basis of the case against them, although declassified CSIS documents reveal much of the regime is based on information gleaned from overseas torture.
"For years, we have said these secret trials are the thin edge of the wedge, and here we are in 2013, with virtually no transparency when it comes to access to information requests, constant government claiming of secrecy, and proroguing of Parliament as common as season change," says Behrens. "If you had asked in 2005 whether we would still be fighting security certificates alongside these men 8 years later, I would have thought it rather unlikely, but here we are, with all the revelations of malfeasance from CSIS and RCMP, and the courts still bow their head in deference when these scandal-plagued agencies request their secret hearings. I think most Canadians would be appalled to know the Supreme Court is holding a secret hearing on October 11."
Admission to The Trial is pay what you can, with suggested donation of $10, though no one will be turned away for lack of funds.
Further information: The Campaign to Stop Secret Trials in Canada, (613) 267-3998 or email@example.com
Tuesday, August 27, 2013
By Matthew Behrens
On October 11, as many Canadians focus on the best place to purchase a Thanksgiving turkey, the Supreme Court of Canada will be in session, but anyone wishing to attend that day’s hearing will find the Court building empty, and the nine judges missing. Outside of a small handful of individuals, no one will know where the country’s highest court will be sitting or what will be discussed. In a shameful concession to the “national security” agenda, Canada’s Supreme Court will be holding a secret hearing in the same manner as judges in dictatorships from Pinochet’s Chile and South African Apartheid to the burning chambers of the French inquisition (so named because all daylight was blocked out, and only torches were used both to light the rooms and, eventually, to set afire those condemned as heretics).
The man whose case is not being heard in public that day is beyond tired of secret trials. Mohamed Harkat, arrested on International Human Rights Day in December, 2002, has faced over a decade of secret hearings held by the Federal Court of Canada, from which he and his lawyers have been excluded. Despite the fact that the GPS tracking device that has been strapped to his body for seven years was removed this summer, Mr. Harkat remains subject to a “security certificate” process which applies only to refugees and permanent residents and, like the days of the burning chambers, presumes named individuals guilty, has a lower standard of proof than that afforded Canadian citizens, and dispenses with the standard rules of evidence, allowing judges to base their decisions on information “even if it is inadmissible in a court of law.” Just as the evidence of tortured “witches” at Salem was used to condemn other suspected “witches,” so it is in Canada, wherein the Canadian Security Intelligence Service (CSIS) admitted in a recently released document that having to exclude information gleaned from torture would result in the collapse of its whole security certificate process.
The secret trials regimen was declared unconstitutional by the Supreme Court of Canada in 2007 in the seminal Charkaoui decision, in which the court asked, plainly, how one meets a case one does not know. On October 11, Mr. Harkat will be no closer to knowing the case he has to meet. His partially public hearing will be held on October 10.
It says something about the degraded system of Canadian justice that the nine individuals who have the ultimate legal say when it comes to fundamental issues such as due process and rule of law will be sitting in secret session, adding go the growth of a parallel secret judicial system that is bound to grow and flourish along with other trends toward secrecy in Canadian government.
TRENDING TOWARD SECRECY
Indeed, the use of secrecy, especially under immigration legislation, has grown in leaps and bounds. During this fall’s public portion of the secret hearing, the Canadian Council for Refugees (CCR) and the International Civil Liberties Monitoring Group (ICLMG) will point out that immigration tribunals are increasingly accepting secret information that cannot be contested by refugee claimants. Under Section 86 of the Orwellian Immigration and Refugee Protection Act, the Immigration Minister may, using the exact same procedures of the security certificate, apply to introduce secret allegations. There there have been over 100 such cases since 2008. As the CCR and ICLMG note out in their Supreme Court submission, “Canada and other states appear to be normalizing what was intended to be an exceptional procedure, expanding [secrecy’s] use in other areas, including in criminal trials.” As a result of this increasing acceptance, officials worried about embarrassment or criticism of their decisions are over-claiming national security. In addition, there is the “development of a [secret] body of jurisprudence available only to the court and the Minister…[but] not to public counsel; [and] the appearance of an inordinately close relationship between the Court and the state which serves to undermine confidence in the judiciary.”
While it is no secret that judges are members of the elite and are usually deferential to power, the secret hearing process elevates their coziness with state agencies to obscene levels. Annual findings by relatively toothless “oversight” agencies like the Security Intelligence Review Committee and the (now abolished) office of the CSIS Inspector General conclude that CSIS is woefully inept when it comes to identifying real security threats, engages in racial profiling, trades in torture, exaggerates to make a case, withholds evidence that may prove someone’s innocence, and commits huge errors of fact and judgment. Despite thesefindings, the courts (and the media) continue to defer to CSIS requests for secrecy and non-disclosure. Swept aside are appeals for openness by individuals whose lives are plagued by the constant itch of not knowing what is being used to deport them to torture or keep them under a permanent state of house arrest and intrusive state surveillance.
Apart from the odd grumbling of judges who “wrestle” with conducting secret hearings without the detainee or his lawyer present (former Federal Court Judge James Hugessen famously remarked that he and others involved in such proceedings feel like “a fig leaf”), almost all of them slog on anyhow in a morass of bureaucratic inertia whose banal nature would be a subject of great interest to Hannah Arendt.
BOOTING THE MAGNA CARTA
That Canadian judges are rejecting 800 years of legal tradition dating back to the Magna Carta is certainly not new. Two Supreme Court judges (Taschereau and Kellock) served state interests in the post-war Red Scare, presiding over a mid-1940s inquisition in Ottawa that was marked by a presumption of guilt; the indefinite, incommunicado detention without charge of individuals who were denied access to counsel; detainees threatened with being shot; and compelled testimony under threat of contempt. Notably, nine people declared guilty by the judges at the inquiry were later acquitted in court and two never went to trial. (Judges who engaged in similar practices in Germany during the Third Reich would eventually find themselves in the dock at Nuremberg.)
More recently, significant portions of the inquiry into the torture of Canadian citizen Maher Arar (2004-06) were conducted in secret by Ontario Associate Chief Justice Dennis O’Connor, while former Supreme Court Judge Frank Iacobucci shamefully presided over a completely secret inquiry into Canada’s role in the torture of Canadians Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin. Not a single punctuation mark of a single document was ever released to the men, their lawyers, or the general public in what can only be described as one of Canadian history’s great acts of judicial subservience to fear and the unsubstantiated claims of its paranoid spy service. The men are now engaged in protracted legal proceedings to seek accountability from the government, a process again cloaked in efforts to retain or redact as much as possible any potential disclosure that would document the government’s complicity in torture.
Stateside, some judges have spoken out. One Detroit judge showed the kind of courage rare among his breed when he stared down orders from Washington to keep deportation hearings of individuals suspected of terrorism bound in secrecy. With five simple words, Judge Damon A. Keith earned himself a spot on the bright side of history when he began his ruling in the case of Detroit Free Press v. Ashcroft by reminding all parties concerned that “democracies die behind closed doors.”
Similarly, in 2005, U.S. District Judge John Coughenour of Seattle, in sentencing Ahmad Ressam to prison for his apparent role in a plot to bomb Los Angeles airport, made a cogent point often lost on his fellow judges when he opined: “We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel, or invoke any proceedings beyond those guaranteed by or contrary to the United States Constitution…We can deal with the threats to our national security without denying the accused fundamental constitutional protections.”
However, having the odd judge pipe up is not at all comforting when the systemic trend is toward the burning chambers. Following the eventual fall of the Pinochet dictatorship in Chile in 1990, a truth and reconciliation commission asked how it was that judges who had previously upheld the rule of law reverted to rubberstamping the dictatorship’s decisions and refusing to hear individual and family habeas corpus applications to determine where, exactly, their loved ones were being held and if in fact they were still alive.
JUDGES AS POLITICAL CREATURES
The commission found “legal oversight was glaringly insufficient with respect to the personal rights that were being violated by government agents to an unprecedented extent. The judiciary, which in view of the Constitution, the law, and the nature of its functions, was the government institution called to protect those rights, failed by not acting more forcefully. Moreover, they failed to do so even though from the beginning churches, lawyers, the victims' relatives, and international human rights agencies were furnishing the courts with information on actions by government officials that violated human rights. The country was surprised to see the courts take such a stance, for it was accustomed to regard the judiciary as a staunch defender of the rule of law.”
In defiance of the contemporary record and all norms of logic, the president of Chile’s Supreme Court, on March 1, 1975, boldly declared: “With regard to torture and other atrocities, I can state that here we have neither firing squads nor iron curtains, and any statement to the contrary is the product of a press that is trying to propagate ideas that could not and will not prosper in our country.” He denied the existence of forced disappearances, and complained that the large number of habeas corpus actions that had been introduced prevented the courts from dealing with “urgent matters.”
“Urgent matters” and “national security” remain the buzzwords around the growing secrecy trend in many Canadian government circles, from Parliament (where committees are spending at least 25% of their time in secret session) and the denial of requests under the Access to Information Act to the erasure of documents from government websites. At the same time, CSIS annual reports before 2000 are no longer online (one can now call directly to get copies and, no doubt, have your name placed in a database), and the Arar Commission of Inquiry hyperlink now goes to a financial services website.
Suzanne Legault, Canada’s Information Commissioner, recently noted that although the Access to Information Act is celebrating 30 years, it is “tired and out-of-date. Worst of all, over that period our access to information rights have been slowly eroded by a variety of constraints, practices and amendments to the act.” Incredibly, neither the House of Commons or the Senate is subject to access to information requests. (http://www.thestar.com/opinion/commentary/2013/06/27/bring_canadas_parliament_under_access_to_information_act.html).
“When we have access legislation that works properly, we have citizens who are better informed and, as a result, more fully engaged as participants in their democracy,” Legault said.
While recommendations to update the Act will be brought before a less than welcoming Parliament this fall, there remains the issue of Canada’s top judges meeting in their burning chamber. While one of the judges who presided over the Salem Witch Trials, Samuel Sewall, famously apologized for his role in condemning the innocents, it was too late for his victims. Canada’s secret trial detainees, Canadian returnees from torture seeking accountability and justice, and the growing number of refugee claimants caught up in the Kafkaesque secret hearing process, cannot wait years for an apology that may never come. They need judges of character and conviction who will acknowledge the truism that democracies die behind closed doors, and demand an immediate halt to the abusive practices of bureaucracies that have become too easily seduced by the lure of secrecy and the catch-all claim of national security.
The Campaign to Stop Secret Trials in Canada, in conjunction with Justice for Mohamed Harkat, is inviting people to attend the public hearing on October 10 in Ottawa, and to protest the secret hearing on the 11th both in Ottawa and in front of court buildings across the country.
Monday, July 22, 2013
By Matthew Behrens
Earlier this year, Michael Walli made a blunt confession in a Tennessee court. “I was employed as a terrorist for the United States Government,” he told the judge hearing his case. And sure enough, Walli is facing down a potential 35 years in prison for what his prosecutors successfully argued was an action that fit the “federal crime of terrorism.”
Walli is an army combat veteran of the U.S. invasion of Vietnam, and is certainly not the first to take some personal responsibility for America’s genocidal occupation and relentless bombing of Southeast Asia (with at least 3 million murdered). Indeed, as the recent book Kill Anything that Moves reminds us, American military units were committing so many atrocities that the Pentagon opened up its own, secretive war crimes investigation unit.
But his participation in such crimes is not what led Walli to that Tennessee court. Rather, it was a peaceful protest against nuclear terrorism and the U.S. construction – in clear violation of the nonproliferation treaty – of a new generation of nuclear weapons. Unlike Iran, the U.S. has used – and threatened to use – nuclear weapons for almost 70 years, in the form of atomic bombs as well as depleted uranium-coated ammunition that has left a cancerous wasteland behind in Iraq, among other countries where it has been used by U.S. and NATO forces.
Walli, joined by Sister Megan Rice (aged 82) and Greg Boertje-Obed, all veteran peacemakers, entered the Y12 nuclear weapons site in Oak Ridge, Tennessee on July 28, 2012, cutting through four fences and making their way right to the Enriched Uranium Materials Facility which, as the venerable magazine Nuclear Resister notes, is “the largest storehouse of bomb-grade uranium in the world. They marked the building with blood, painted disarmament messages on the wall and hung banners. Symbolic of beginning to transform swords into plowshares, they also hammered a few chips of concrete from the building’s foundation before being seen by security guards and arrested.”
It was the latest in a 33-year legacy of scores of similar protests known as Plowshares Actions that have directly confronted militarism in its most physical forms, from pouring blood on B-52 bombers to hammering on nuclear weapons nose cones at a General Electric factory in King of Prussia, Pennsylvania. All such actions have been well-planned, almost always involve a faith-based statement, and are committed to nonviolence.
On June 20 of this year, Nobel Peace Prize winner Barack Obama, according to an Associated Press dispatch filed from Berlin, appealed “for a new citizen activism in the free world” to reduce nuclear stockpiles and confront climate change. Yet his Attorney General has piled on the charges against the Plowshares activists who were engaging in just such citizen activism. All are scheduled to be sentenced in September. While lengthy prison sentences have often been the fate of those confronting the nuclear state, the equation of nonviolent protest with terrorism is consistent with what critics have long argued is one of the main purposes of so-called anti-terrorism legislation: squashing dissent.
In his usual unctuous fashion, Obama’s dishonest speech in Berlin belied the facts of nuclear weapons development. According to the Stockholm International Peace Research Institute (SIPRI), at the start of 2013 eight states possessed approximately 4,400 operational nuclear weapons. Nearly 2,000 of these are kept in a state of high operational alert. SIPRI also notes that if all nuclear warheads are counted – operational warheads, spares, those in both active and inactive storage, and intact warheads scheduled for dismantlement – the United States, Russia, the United Kingdom, France, China, India, Pakistan and Israel possess a total of approximately 17,270 nuclear weapons. As SIPRI indicates in their 2013 annual report, the five leading nuclear weapons powers “appear determined to retain their nuclear arsenals indefinitely.” Last year, NATO concluded that nuclear weapons would remain a core component of their arsenal and strategic planning (with no peep of protest from Canada).
Canada’s response to this reality is, among other activities, a secretive working plan to ship large amounts of bomb grade uranium from Chalk River through the Ottawa Valley and to the United States for “reprocessing.” Anyone who thinks this uranium will not wind up in a new nuclear weapon might be interested in some oceanfront Arizona property. Until 2008, Canada had mined more uranium than any other country in the world – including the raw materials for those first flashes of unforgettable fire that decimated two of Japan’s civilian cities during World War II – and now accounts for over 15% of worldwide production. Among its largest clients are countries that continue to violate the non-proliferation treaty. At the same time, those who are front-line victims of the chain of nuclearism are indigenous people who have mined the uranium and had its waste dumped on their lands.
Worldwide war spending, including for nuclear weapons, now tops $1.75 trillion, an amount perhaps so infinite that it becomes meaningless. As hunger and other social ills plague billions of people, few in the political world dare question this massive waste of resources, including the over $20 billion annually flushed down Canada’s own rathole of militarism. Indeed, the official NDP opposition last ran on a platform of equaling the Harper government’s war spending.
As we approach the landmark days in August marking the anniversaries of the murderous use of atomic weapons against the undefended cities of Hiroshima and Nagasaki, it is a good time to not only reflect on the nature of nuclearism, but militarism itself. We must also remember the firebombing of Tokyo and Dresden, the napalming and carpet bombing of Southeast Asia, the NATO terror bombings of the former Yugoslavia, Afghanistan and Iraq – clearly war crimes as defined at Nuremberg – as well as all atrocities supposedly committed in the name of religion, freedom, and democracy.
Militarism creates its own state of permanent exception: anything done in the name of “national defense” is above the law, any calls for accountability are laughed off as unpatriotic, and resistance is treated as heresy. While eminent scholars Richard Falk and Robert Jay Lifton once argued that nukes were “indefensible weapons,” perhaps it is time to shift our frame to the whole business of war as not only indefensible, but completely incompatible with democracy. Shifting the language might help as well, reminding people that War is Always Terrorism.
Canada’s own War Department, it was recently revealed, is so bloated, so over-funded, that it has been sitting on a pile of over $2 billion in unspent cash. While social programs suffer, the homeless die on Canadian streets, and women cannot find shelter from male violence, the War Department remains a sinkhole of taxpayer monies, the largest single use of discretionary federal spending and one that is increasingly immune to oversight given its refusal to share details – even with officials such as the Parliamentary Budget Officer – of its operations and spending plans. Indeed, the Ottawa Citizen reports that former CSIS head Richard Fadden, now a deputy minister at the War Department, has recently written to say he will not provide Parliament with any details on new warships, armoured vehicles, and other unnecessary purchases.
All this serves as part of a long-standing trend in which democracy is sacrificed on the altar of a war economy. Whether it is the clear deception that the Harper government continues to employ to try and sucker Canadians into spending scores of billions on stealth fighter bombers, shutting down Parliament to prevent hearings on Canadian complicity in the torture of Afghans, or the secretive plans to ship by truck highly radioactive uranium down Highway 417 along the Ottawa River so the U.S. can continue to upgrade its nuclear weapons, it is clear that the objections of citizens have been pushed to the side as an unwanted annoyance.
This is, of course, not new. Indeed, shortly after the passage of Canada’s Anti-Terrorism Act, resisters against militarism, who were holding weekly vigils in 2002 to transform Toronto’s Moss Park Armoury into housing for the homeless and underhoused, found "Security Zone in Effect” signs around the perimeter, language coming directly out of the Anti-terrorism Act and clearly aimed at the organizers from Homes not Bombs. Similarly, at Hancock Air Force Base in New York State, special injunctions seeking to bar peaceful protesters from the entrance have been issued to maintain the silence around the drone strikes that are launched from within. At protests outside Canada’s drone manufacturer of choice, L3 Wescam, protesters were threatened with civil action for nonviolent trespass.
The antidote for such diseases as militarism and the secrecy that undergirds it is democratic participation, perhaps through education, boycott and protest. For others, it may take the form of direct interference with the tools of global genocide via Plowshares Actions or the nonviolent civil resistance action that last week saw 23 people arrested at a Honeywell plant in Kansas City, where key components for that new generation of nuclear weapons are being developed.
Not everyone is prepared to risk jail for their conscience. But at the very least, we can support those who, with love in their hearts and a passion for justice that burns brighter than any weapons flash, continue to push back against the state of exception called militarism. One thing everyone can do is write a letter to members of Transform Plowshares now looking at being jailed until 2048 – essentially life imprisonment – for their simple act of saying “No.”. They are also encouraging people to send letters to the judge who will sentence them in September. More information is available at http://transformnowplowshares.wordpress.com/
Monday, July 8, 2013
(July 8, rabble.ca)
By Matthew Behrens
The July 1 arrests of BC residents Amanda Korody and John Nuttall – charged with planning to blow up a pressure cooker cluster bomb at the BC legislature – raise many disturbing questions about the nature of the Canadian government’s “counter-terrorism” operations. Equally troubling has been media coverage playing up hot-button themes that trigger fears of marginalized people, whether they be drug addiction and reliance on social assistance to heavy metal music and the popular catch-all description for anyone who doesn’t quite fit in to a sick society: mental illness.
As anyone can gather from news reports, the two suspects have not trod the easiest of paths, and the pair’s friends doubt they would be capable of planning, much less executing, the alleged acts. Their right to privacy has also been invaded, with media thumbing through their personal effects in an apartment that, remarkably, was not taped off as a potential crime scene by the police.
Interestingly, following a month of revelations about massive spying on the global citizenry, the attempt by the Mounties to scare up a little self-serving attention by trumpeting themselves as The Heroes Who Saved Canada Day appears to have fallen flat, as many are questioning what role undercover operatives may have played in facilitating the apparent attack. RCMP Assistant Commissioner Wayne Rideout noted at the press conference announcing the arrests, “We employed a variety of complex investigative and covert techniques to control any opportunity the suspects had to commit harm. These devices were completely under our control, they were inert, and at no time represented a threat to public safety.”
In other words, they appear to have had someone on the inside with a great deal of influence over events, either a Mountie or someone from CSIS, the spy agency that allegedly spoke to the Mounties about the case in February. As the Vancouver Province noted in an editorial, “On April 2, police had enough evidence leading to charges of facilitating a terrorist activity and conspiracy to commit an indictable offence, but the couple was not arrested. On June 25, there was enough evidence for Nuttall to be charged with making or possessing an explosive substance, but again there were no arrests.” Did the RCMP stagemanage things so that the connection to Canada Day would provide them with a blast of patriotic coverage?
The questions point to practices south of the border, where the great majority of so-called terrorism arrests are in fact set up by and facilitated by the agents who then bust them: the FBI. A 2011 investigation by Mother Jones magazine examined the FBI strategy of “pre-emption” and “disruption” – the latter a term used by the RCMP in the present case – and found that the agency targets “tens of thousands of law-abiding people, seeking to identify those disgruntled few who might participate in a plot given the means and the opportunity. And then, in case after case, the government provides the plot, the means, and the opportunity.”
Mother Jones quotes lawyer Martin Stolar, who defended one man caught in a 2004 FBI sting, as noting that with many of the terrorism cases, “defendants would not have done anything if not kicked in the ass by government agents. They’re creating crimes to solve crimes so they can claim a victory in the war on terror.”
The magazine points out that with three exceptions, “all of the high-profile domestic terror plots of the last decade were actually FBI stings,” all of which tend to target socially marginalized individuals.
Were the BC arrests part of an RCMP/CSIS sting operation? Some recall that the so-called Toronto 18 case may never have gotten off the ground without the able assistance of undercover, paid government informants who facilitated key elements of the case. In the case of Mr. Nuttall, his paintballing friend was quoted as saying, “Personally, I think he was hanging out with the wrong people and they screwed with his head a little bit.” Was one of the apparent “wrong people” a government agent encouraging Mr. Nuttall? And is the RCMP above staging terrorism arrests?
History of Illegal Acts
If history is any indication, the answer would be no. Much of the Mounties’ lengthy history of corruption, illicit activity, and outright lawbreaking was summed up nicely in a 1970 memo from then RCMP Commissioner W.L. Higgitt. Labeled “RCMP Protection for Members Engaged in Sensitive or Secret Operations,” the Commissioner wrote: “Though it has not been the subject of general conversation, and should not be, it may have been considered necessary in the past, and may continue to be necessary in the future, to transgress the common, civil, or criminal law of the Country in order to work effectively or to achieve the desired results in a given case. More recently it has come to my attention that some members involved in delicate operations are concerned with the protection they and their families will receive in the event that an operation goes sour and they become subject to civil or criminal processes as a result.”
Later in the memo, the Commissioner advises that “where the member acts within the scope of the direction or the expressly approved plan, he will be protected to the greatest extent possible from criminal, quasi-criminal or civil responsibility. In the event complete protection cannot be afforded, a solicitor will be appointed to protect the member’s interests. The Force will accept responsibility to pay any fine or reward levied against our member. In the event of incarceration for a period of time, the member will be paid as usual and on release will be employed again by the Force….Information contained herein should be disseminated on a ‘need to know’ basis to the members of your command.”
This attitude of impunity for crimes committed riddles the RCMP like a cancer. It is why the RCMP authorized the questioning of Canadian Abdullah Almalki, then detained in Syria, knowing those questions would lead to his torture, without a thought for his human rights, much less the complicity in torture provisions of the Criminal Code of Canada or Canada’s legally binding obligations under the Convention Against Torture.
Things are no better at CSIS where, as investigative reporter Andrew Mitrovica pointed out in his expose Covert Entry, Canada’s spies have "routinely broken the law, treating the rights and liberties of Canadians as no more than a nuisance...[it is] riddled by waste, extravagance, laziness, nepotism, incompetence, corruption and law-breaking." There is a culture of impunity at CSIS, whose agents often refer to a Ways and Means Act: "if you have a way to get things done, the means -- legal or not -- are justified."
Throwing in Islam
Meanwhile, less attention has been paid to pathetic attempts to throw Islamic references into the mix, with desperate efforts to find a landlady or neighbor who can testify to hearing loud “Islamic” recordings coming from the basement and the RCMP’s bizarre contention that although there is no international connection, the two appear to be “Al-Qaeda-inspired” and “self-radicalized,” two canards that have little connection to reality. (While the Globe and Mail was invading the couple’s privacy, they reported on finding amongst their books a copy of the Bible, George Orwell’s Animal Farm, and albums by Jethro Tull and Nine Inch Nails.)
“She was into the rave scene, and then she became goth, then she was a big activist, then she was someone who worked out hardcore,” a friend of suspect Amanda Korody was quoted as saying. “Before he was a proud Canadian,” said a friend of John Nuttall. “Later he said, ‘All I care about is Allah’ and that Canadians and Americans shouldn’t even be in Iraq or Afghanistan at all.”
Taken together, these quotes represent a broad swath of Canadian opinion and experience, with the underlying brush that now tars as tainted anyone associated with such activities or beliefs. Yet, unlike some leaders in Canada’s diverse Muslim community, no one from Canada’s goth or workout scenes has been called upon to condemn the alleged acts or to engage in RCMP “community consultations”. Nor is it likely that LA Fitness chains will now be infiltrated by undercover agents to root out the discontented health nuts pedaling their sweaty way atop an elliptical while reading rabble.ca columns on their ipads.
Continual references to the two as apparent “converts” to Islam begs the question: what religion were they following during previous years of mixed up lives, and why has that not been part of media reporting? It also plays into the insidious idea that, regardless of how many times Muslim community leaders plead that they are loyal and peaceful Canadians, the “influence” of their religion is what is ultimately dangerous, a powerful subtext that is repeated with each new scare headline about the growth of Islam in Canada (now estimated at a whopping 3.2% of the total population). In other words, it is bad enough when people born Muslims are alleged to be involved in nefarious activities; it appears to be even worse when “one of ours”, i.e., white Canadians, are sucked into the faith. Such pernicious thinking underlined much of the Red Scare: it was not so much the danger of Communists themselves as it was their ability to infect our precious bodily fluids with their subversive thoughts, and before one knew it, former boy scouts were marching against the bomb and for civil rights.
Mounties Want You to Like Them
Like the scandal-plagued CSIS, the RCMP is desperate for good press these days, and the language in their early July press conference verged on a plea to like them on Facebook. “These arrests are another example of the effectiveness of our Integrated National Security Enforcement Team who worked tenaciously to prevent this plan from being carried out,” said RCMP Assistant Commissioner James Malizia, perhaps a shout-out to CSIS, still reeling from revelations in late May that they failed to inform the RCMP about the Canadian navy’s Jeffrey Delisle selling secrets to the Russians.
But the RCMP love-in that followed the arrests of two people in the alleged VIA Rail plot in April does not appear to have been replicated here. (In April, NDP leader Tom Muclair discarded the niceties of presumption of innocence when he led a standing ovation in the House of Commons for the Mounties after he said, without offering any proof of the allegations, that “I’d like to begin by thanking law enforcement officials, as well as a brave religious leader from the Toronto Muslim community who, as we learned yesterday, helped to prevent a potentially devastating attack on Canadian soil.")
In a final irony, the week before the Mounties rode to the rescue to save Canadians from folks who allegedly planned to “produce explosive devices designed to cause injury and death,” those very same weapons, cluster bombs, were the subject of an ongoing attempt by Ottawa to water down the Convention on Cluster Munitions in Senate hearings. Rather than ratifying the convention as is, Ottawa has introduced a range of measures that, as the Mennonite Central Committee points out, “Creates loopholes and exceptions on the use of cluster munitions that undermine the Treaty as a comprehensive ban on an inhumane weapon; omits many of the positive obligations of the Treaty, including the destruction of stockpiles; the promotion of Treaty norms; the prohibition of investment in cluster bomb production; and the provision of support for victims.”
Ultimately, a government that seeks to enable state use of cluster munitions appears possibly involved in an effort to encourage two hapless souls to build such a bomb, then arrest the couple as a notch in the war on terror, and convince Canadians that the authorities have decent human values at their core. Such logic would appear, in the words of a song in Mr. Nuttall’s Jethro Tull collection, to be thick as a brick.