Saturday, October 11, 2008

Democracy Broke Out

When Democracy Broke out at Carolyn Bennett’s Election office:
Tiny Vigil at office of Secret-Trials-and-Deportations-to -Torture Supporter Bennett Draws Angry Office Response

Toronto, October, 2008 -- One would have hoped that the sick individual or individuals who have been going through the ridings of Toronto Liberals, spray-painting homes and slicing brake lines, could have found another way to express displeasure with the Liberals that did not involve putting people’s lives at risk.

One of the ridings subject to this horrifying hooliganism was that of Liberal MP Carolyn Bennett who, along with her “leader” Stephane Dion, rightly condemned the physical attacks as undemocratic and dangerous -- cutting brake lines gets into an area where people’s lives are at very real risk.

While most would certainly agree with their sentiment and concern, one has to wonder what kind of country we would live in if such sentiments were equally applied to all people in Canada (and around the world), and not simply to those who, because of their support for the Liberals, have been targetted.

Indeed, these Liberals have shown little concern for the people of Afghanistan, whose lives they agreed would have to be put at continued risk of torture and murder at the hands of Canadian troops when they voted to extend the occupation until at least 2011. These sacrifices of the Afghan people were necessary to prevent what the Liberals perceived as their own drubbing at the polls had they decided to show some backbone and call for the earlier withdrawal of Canadian troops.

Nor did the Liberals show any concern for individuals who continue to face indefinite detention without charge based on secret evidence and two-tier justice when, earlier this year, they fell in with the Tories and voted in favour of new security certificate legislation that, in the end result, will produce legally-sanctioned renditions to torture.

Some Liberals abstained from voting on the legislation (hardly an honourable neutrality. As Desmond Tutu reminds us, “If an elephant has its foot on the tail of a mouse and you say that you are neutral, the mouse will not appreciate your neutrality.”)

But numerous Liberals, including Carolyn Bennett (a physician), voted FOR it, despite the human rights abuses associated with it, depsite the medical consequences of torture and prolonged detention without charge. Bennett was one of numerous Liberal MPs who met with our campaign during the run-up to the vote on the bill, and expressed her concerns at the unfairness of the legislation. Yet she went ahead and voted for it anyway (full list of shame of all MPs who voted yes to secret trials appears at the bottom of this posting)

To protest such cowardice, and the Liberals’ role in not only putting lives at risk, but putting democracy at risk (how can it not be when there is two-tier justice?), two members of the Campaign to Stop Secret Trials in Canada held a noon-hour vigil recently at Ms. Bennett’s campaign office at Eglinton and Bathurst.

(The vigil took place long before the cut brake lines and graffitti incidents marred the campaign. )

What was most interesting about the day was the horrified reaction of her election staff and volunteers when a little bit of democracy broke out on the sidewalk in front of their office. Holding a banner that read “Stop Secret Trials in Canada: End Deportations to Torture,” the two individuals were fairly dwarfed by the massive windows filled with Bennett signs and gaudy paeans to the greatness of Liberals.

Office staff curious about the banner were informed why we had chosen to be there, but refused to allow that what we were doing was in any way acceptable.

“You must be working for Stephen Harper,” one agitated staffer declared.

“Does it not concern you that Carolyn Bennett voted for secret trials and deportations to torture,” we ask.

“No she didn’t.”

“We can show you the Hansard record of Parliament that shows she clearly did.”

They try and change the subject.

“Well, she had no choice, there could have been an election” if she actually voted against the bill.

“Well, we have an election right now, what’s the difference? She and the Liberals caved on everything Harper wanted to do, they didn’t force the election, Harper chose it. If anything, the Liberals are the Harper supporters.”

We continue handing out flyers and speaking with passersby as agitated staff continue ranting inside, pointing accusatory fingers at us. The individual who appears to be the lead staffer takes time out from calling potential voters to make up a placard of her own. “These people are supporting Harper!” the sign reads, with two arrows pointing left and right. She takes time out of her busy schedule and comes outside to paste the sign on the office window.

“Don’t you see what you’re doing?” she demands. “You’re trying to get Harper elected!”

As more volunteers filter into the office, few stop to discuss the issue with us. Many carry with them that sick sense of entitlement that only the Liberals should be allowed to govern Canada, and no one seems concerned that their candidate, the one they spend hours knocking on doors for, supports secret trials and deportations to torture.

No one, that is, until two young volunteers come out and ask what this is about.

“I have an uncle who spent nine years in an Albanian jail without ever being charged,” says one of the volunteers, noting that what we are talking about sounds a lot like whather uncle went through. She takes our flyers, and as we discuss the issue, the agitated staffer comes out again and yells at us to stop “harassing” her staff.

So much for all the Liberal rhetoric about how elections should be about issues. We show up to discuss an issue and, rather than looking at the facts of the situation, we are dismissed as Harper supporters who have no right to protest.

Bennett will likely win in her riding, where she’s been a shoo-in for the past decade. But democracy lost that January day when she and fellow Liberals voted to put lives at risk by voting for secret trials and deportations to torture.

The Secret Trials List of Shame:

Below is a list of shame, individuals who voted in Parliament on 6 February 2008 for secret trials, two-tier justice, indefinite detention without charge, invasive surveillance and control orders, and deportation to torture. The NDP is the only party whose members all stood against the bill.

Bell (North Vancouver)
Brown (Leeds—Grenville)
Brown (Barrie)
Cannan (Kelowna—Lake Country)
Cannon (Pontiac)
Cullen (Etobicoke North)
Del Mastro
Kamp (Pitt Meadows—Maple Ridge—Mission)
Keddy (South Shore—St. Margaret's)
Kenney (Calgary Southeast)
Kramp (Prince Edward—Hastings)
Martin (Esquimalt—Juan de Fuca)
McKay (Scarborough—Guildwood)
Moore (Port Moody—Westwood—Port Coquitlam)
Moore (Fundy Royal)
Murphy (Moncton—Riverview—Dieppe)
Murphy (Charlottetown)
St. Amand
St. Denis
Thibault (West Nova)
Thompson (New Brunswick Southwest)
Thompson (Wild Rose)
Van Kesteren
Van Loan

Don't Deport Ivan to Torture


Deportation in one week unless Federal Court grants stay

:::: Renewed call for support, 10 October 2008 ::::

Basque refugee Ivan Apaolaza Sancho yesterday ended a week-long hungerstrike - which included three days complete fast (without water). The authorities of Montreal's Rivière des prairies prison, where he has been held for over 15 months without trial, had responded to the hungerstrike by putting Ivan in isolation, removing his clothes, glasses and books, and
severely limiting his telephone access. Ivan is now out of isolation; his clothes, glasses, books and telephone access have been restored.

In a call to one of his supporters, Ivan explained that he had ended his hungerstrike in order to better prepare psychologically for the possibility of being deported and facing torture. In isolation, cut off from the outside world, stripped of clothing and glasses, he felt that he was being broken down mentally so that the physical torture later would be easier.

Last week Ivan was told that he would be deported to Spain on Friday, 17 October. The Ligue des droits et libertés stated that they are "greatly concerned about several aspects of the treatment Mr. Apaolaza Sancho will face in Spain: on top of secret or incommunicado detention, and on top of the practise of dispersal or continual transfer of prisoners detained for
terrorism by the Spanish authorities, there is the fact that this person strongly risks being perceived by Spanish authorities as an important source of information ..." (Denis Barrette, 7 October) Spain has been criticized for its use of torture by Amnesty International, as well as European Union and United Nations human rights bodies.

Ivan's lawyers have filed for a Federal Court review of Immigration Canada's negative Pre-removal Risk Assessment (PRRA) decision, and will ask for a stay of deportation, but there is no guarantee that the Federal Court will accept the appeal or grant the stay. If the Federal Court refuses to review the PRRA, there is nothing to prevent the deportation save a direct
intervention by federal ministers.

Interviewed on 30 September, Ivan explained what he is facing, "I have experience of friends, family members that have been tortured. One of the first things that I remember when I was a kid is seeing my uncle in bed after being tortured for ten days. And I have a lot of friends who have been tortured and after - because of the declarations under torture - they spend eight, ten years in jail."

He continued, "It is not only the torture. It is also the conditions that Basque prisoners have in Spain. It is the big sentences that they are given for - whatever, even if you don't commit a crime, even if they didn't prove anything, they say that you are a member of a political party that is illegal now and you can face 10 years. I could face 20 years in jail."

In May 2008, the Commissioner Louis Dubé of the Immigration and Refugee Board ordered Ivan deported from Canada on the basis of allegations against Ivan made by the Spanish state. Contrary to mainstream media reports, the government has produced NO evidence to support those allegations which would link Ivan to any crime or to the ETA (a Basque armed militant group considered by Canada to be a 'terrorist organization'). The ONLY information the government has supplied to make its case consists of unproven Spanish police warrants. And the only piece of information in these unproven warrants which could link Ivan to the ETA comes from the confession of a Basque activist which a Canadian tribunal recognized was probably obtained under torture. This is the basis on which Ivan has been imprisoned for 15
months, stripped of his right to apply for asylum in Canada, and faces deportation to possible torture and abuse.

Full interview with Ivan linked at:

Background information on Ivan:


1. Please stay in touch with us to learn about public actions in the coming days and weeks. Join the support list for Ivan to learn of any developments or emergency actions: send an email to

2. Have your organization write a statement protesting Canada's violation of Ivan's rights and calling on Stockwell Day to intervene (details at, in the 'What you can do' section).

Freedom for Ivan Committee
tel. 514 848 7583

Secrets and Lies

Report for Bail Hearing of Hassan Almrei

Toronto, October 5, 2008 -- In the middle of what we are often told is the signal moment of democracy – a federal election campaign – none of the national party leaders has found time to comment on the fact that during the past month, a series of secret rendition-to-torture hearings have been occurring at undisclosed locations in Ottawa. Neither the detainees affected, nor their lawyers, has been allowed to attend these hearings or contest the allegations that could wind them up in Syrian, Egyptian, Algerian, and Moroccan torture chambers.

All this is possible because of security certificate legislation that was passed earlier this year with the Tories and Liberals voting hand in hand. The purpose of these hearings is to forcibly remove those subject to certificates from Canada, and in the five cases currently pending, all face torture if deported.

As a symbolic sop to those who are concerned about civil rights in Canada, the legislation does allow the detainee a show hearing that is held in public, yet the core of the matter -- if indeed such a “core” does exist, and that’s doubtful at best -- will be heard in secret.

This past week in Toronto, detainee Hassan Almrei, who on October 19 will mark seven years of indefinite detention without charge, began the public portion of his bail hearing, his fourth effort to get out from behind bars at the Kingston Immigration Holding Centre (aka Gitmo North), where he remains the last of the secret trial detainees to be in a physical jail. The other four are suffering, along with their families, under a pernicious regime of house arrest that is having devastating consequences, especially on their wives, parents, and children.

Almrei, who spent his first four years and three months in solitary confinement, again finds himself in the most expensive solitary confinement cell in Canada, a $3.2 million facility with a staff of 21, often described as a maximum security jail inside a maximum security jail.

In the open portion of the secret hearing this past week, two witnesses for the government addressed both the ongoing efforts to deport Hassan as well as the unsubstantiated reasons why he should not be transferred to house arrest. In many respects, the hearings were depressing not only for their patent injustice, but also for the repetitive nature of the story that repeatedly gets told in such settings, despite the passage of time and the fact that the certificate process was found unconstitutional by the Supreme Court in 2007. Notably, the “replacement” model was condemned as unconstitutional by leading law associations across the land, but passed by both the House and Senate with no serious review.

Hassan’s hearing came on the heels of a constitutional challenge (see a report on the challenge at It begins with a chilling report from the Federal Court judge who says, with no particular sense of horror, that the court has begun secret hearings in Ottawa in the absence of Mr. Almrei, and that the secret hearings would continue next week.

The government’s first witness is Marc Towaij, the Acting Director of Enforcement in the National Security Division of the Canadian Border Services Agency. A man who has worked as an “immigration escort” for deportees and as a “senior removals officer”, Towaij had been asked to assist in preparations to “remove” Mr. Almrei to torture in Syria in 2003. This was around the same time an internal government document (later released at the Arar Inquiry) was being written, conceding that the Canadian government did not have enough information against Almrei to lay a criminal charge against him. The memo, written for then-Minister of Foreign Affairs Bill Graham, was more concerned with the media fallout from such a deportation than the risk to Almrei himself. The conclusion: this could affect our ability to deport other detainees. it may give Canada a black eye on the world stage, so develop media lines.

Towaij testifies about the lengthy process that would follow a finding that a certificate is reasonable, discussing how a danger opinion is formulated (no need to go through the lengthy process here; suffice it to say that in all of these cases, the conclusion is always the same: deportation regardless of the substantial risk of torture, a conclusion based on secret information).

Like his government colleagues in such hearings, Towaij speaks in that bizarre language of looking out for the rights of the individual he seeks to deport to torture. These cases are a priority and must move quickly, he says, for after all, “Mr. Almrei is detained.”

Towaij says such cases require a charter aircraft (but fails to mention that the go-to company in this case is Skyservice Business Aviation (for background on this area of complicity in torture, see

Under cross examination, Towaij is asked whether he had any concerns -- especially following the return to Canada of Maher Arar, who spoke publicly about his year of torture in a Syrian hellhole -- that Mr. Almrei might face a similar risk of torture. He is asked this because, on his deportation papers, Almrei was listed at the time as a “terrorist suspect,” a tag that surely would have wound him up in a torture chamber.

“That is our standard procedure for a removal order,” Towaij explains.

“Are there no exceptions” when it comes to concerns that such standard procedure might place someone at risk of torture, he’s asked.

“Not that I’m aware of,” Towaij replies.

Did Towaij check with someone else to see whether this standard procedure might place Almrei at risk? Were any precautions taken?

“No,” comes the terse reply.

Was Towaij familiar with Maher Arar’s torture in Syria? He says he was.

“As a removals officer shouldn’t you consider whether your actions place [Hassan] at risk?” he’s asked again.

“My requirement is to enforce the order,” Towaij states blankly, causing what’s known as “the Nuremberg ripple” in the viewing gallery (at Nuremberg, Nazi officers tried to use the “just following orders” defence for their participation in torture, among other atrocities).

“That was our practice. No, I was not concerned. My job was not to worry about risk.”

And so it goes, one of the reasons there will be another Caravan to End Canadian Involvement in Torture this October (for more info see

The next day, the government presents a CSIS witness who is only identified as “Sukhvindar,” who says he cannot provide his full name for national security reasons. A former military intelligence officer (pardon the oxymoron), he has been at CSIS since 1991, where he is now a chief of intelligence. He claims that “Sunni Muslim extremism represents a continuing threat to our national security”, and says that Hassan Almrei “adheres to a violent philosophy that relies on the use of force.”

Almrei has always flatly denied any support for violence, but the basis for this opinion of his beliefs is wholly secret evidence that he cannot see. Sukhvindar, like previous CSIS agents who have testified against Almrei, has never met or interviewed Hassan, and bases his opinion solely on what he has read in the public record and, one can assume, an extreme case of racist profiling. (One courtroom observer says that the description wrongfully assigned to Almrei -- “adheres to a violent philosophy that relies on the use of force” -- sounds a lot like former Canadian warlord General Rick Hillier, who earlier this year abandoned his troops in Afghanistan for the prettier pastures of the private sector. Hillier is famous for noting that the job of the Canadian Forces is to be able to kill people.)

Sukhvindar repeats the unsubstantiated theory (popular in CSIS circles) that Almrei would be a threat because, even though under house arrest, surrounded by surveillance cameras, his phone tapped, and a GPS device attached to his ankle, Hassan would remain someone with the “pedigree” that would constitute the kind of star power that would influence others.

This fantasy world theory, dreamed up in the CSIS world of tunnel vision, has been applied to other detainees who were subsequently released (though CSIS continues to disagree with the soundness of such decisions!)

CSIS admits that Hassan is not a member of Al Qaeda nor does it believe he will engage in violence in Canada. But what the agent DOES believe is that Hassan has “the background, training, experience, willingness, and commitment” to help those who would do evil. CSIS is concerned he might counsel others on the nefarious art of terror support (something about which Almrei knows absolutely nothing), even though every visitor to his house arrest scene would have to be government approved, and only outings that are approved far in advance with approved individuals, an approved route, and agent surveillance would be allowed.

Playing the game of guilt by 18 degrees of separation, Sukhvindar says that Hassan once knew a man in Afghanistan who went on to fight in Chechnya (and was killed in 2002). The danger here is that Chechan rebels (who have never committed actions outside of Chechnya or Russia) might want to strike at Russian targets anywhere in the world, perhaps, he says with a suggestiveness that seems painfully and awkwardly planned, the Russian embassy in Ottawa. If you can’t follow that, welcome to the club.

He also says Hassan might engage in the use of clandestine methodologies, such as making three way calls (on his tapped phone).

Then again, he might take a cue from Maxwell Smart and use code words.

“Language is a key. You might say the coffee is good at Starbucks,” Sukhvindar says, which could be code for a jihadist call to action.

Sukhvindar is asked whether CSIS has a relationship with Syrian Military Intelligence, an agency with a horrific record of human rights abuses. He says he is not allowed to speak to that (national security), even though this was part of the public record at the Arar Inquiry. “I’m not aware of that section of the Arar Report,” he says. Sukhvindar also says he has visited the Middle East but cannot say where. This answer seems like a result of CSIS analysis of previous testimony, where agents who have admitted to travelling in certain parts of the world open themselves up to questions they’d rather not answer because it would prove politically embarrassing. For example, one agent testified he took training in Egypt, another country with a rather awful human rights record.

Sukhvindar does not speak or read Arabic, has never met Almrei, has only seen the public allegations, and does not even know whether CSIS ever interviewed Hassan.

He also says he has no understanding of the current situation in Syria and, like past CSIS witnesses, refuses to agree that torture is commonplace there, stating only that he is aware of such “accusations.”

Like all CSIS employees, Sukhvindar, though under oath, regularly withholds information that would provide a more complete picture on Hassan. The concept of the whole truth and nothing but the truth escapes him, and so he uses his platform to throw in scary-sounding allegations, without being questioned about him. His favourite, repeated twice, is that Hassan once had access to a “secure area” of a major Canadian airport.

“Did you know Mr. Almrei was employed at the airport?’ he is asked.

“No,” he replies. (Cleaners and many other airport staff work in “secure areas” at Pearson!!!)

Hastening back to the world of scare mongering, the CSIS man opines, “I could speculate for hours and hours about how [Almrei] could promote violent jihad.” Of course, he neglects to see the weak limb he has crawled out on: it would only be that, speculation, since he has failed to present anything other than low-rent spy theories that have no basis in fact.

Sukhvindar is asked whether any of those released on control orders in Canada have breached their conditions.

“I cannot answer that,” he says, implying they have but he cannot get into how.

“So if you knew a detainee was breaching the release conditions you wouldn’t bring it to the attention of the court?” he is asked.

“We don’t monitor them in that way.”

“Do you have any information on breaches that have occurred?”

“That would be getting into classified information.”

(Notably, none of those currently on control orders have been returned to jail, though in one instance last January, Ottawa’s Mohamed Harkat was pulled out of the shower by state agents a few days before a review of his conditions for rather ridiculous reasons that, again, had everything to do with politics, and nothing to do with “security”. After a few days in jail he was returned to house arrest).

And so it goes. As Sukhvindar leaves the court, his briefcase’s security key dangling on top (maybe there’s important information in there!), the judge announces he will retire for more secret hearings in the absence of Mr. Almrei and his lawyers.

Meanwhile, political party leaders and media pundits prepare for their “democracy is working in Canada” lines as election day approaches. Hassan will no doubt read about the returns from his solitary confinement cell at Canada’s Guantanamo North.

Sunday, October 5, 2008

Where are Canada's Judicial Whistleblowers? Secret Trial Dispatches

Dispatches from the Land of Secret Trials where: Hassan Almrei marks seven years of indefinite detention without charge; Federal Court Chief Justice Alan Lutfy wonders why people are demanding the highest level of fundamental justice for secret trials cases; Secret Rendition-to-Torture Hearings Are Now Ongoing at Undisclosed locations in Ottawa

TORONTO, OCTOBER 1, 2008 – Last week, a U.S. military prosecutor at Guantanamo Bay exhibited a quality that appears wholly lacking in Canada’s own Justice Department. Call it conscience, call it courage, call it a career-ender, but Army Lt. Col. Darrel Vandeveld rediscovered something called ethics when he realized that his own office was failing to turn over exculpatory material to lawyers for an Afghan detainee (ie, materials that would work in favour of the detainee).

Mr. Vandeveld is not the first to desert Gitmo’s rigged process, which he described as “slipshod.” Numerous others -- Maj. Robert Preston, Capt. John Carr and Capt. Carrie Wolf, as well as Col. Morris Davis, former chief prosecutor for Guantanamo’s military commissions -- also asked to be relieved of their Gitmo duties for similar reasons, with one of them explaining that “he had been assured he didn’t need to worry about building a proper case; convictions were assured.” (as reported by Scott Horton, “The Great Guantanamo Puppet Theater,” Harper’s Magazine).

One wonders what’s taking so long for Canadian Justice Department lawyers to show a similar amount of courage. After all, just as detainees in Guantanamo Bay, Cuba are denied access to the secret case against them (one often built on information gleaned from torture), so detainees under Canada’s security certificate procedure are similarly denied the right to know why they have been detained indefinitely, without charge, based on secret information that is likely to have been derived from torture. (Canadian spy agency CSIS’s own oversight body, SIRC, produced a report last February confirming Canada’s scandal-plagued spy agency does use information gleaned from torture. As usual, Canadian media outlets failed to make much of it.)

After the secret hearing procedure was declared unconstitutional by Canada’s Supreme Court in February, 2007, Bill C-3, designed to replace the old law, was born eight months later, essentially a carbon copy with a couple of window dressing changes. Rushed through Parliament at the speed of light, with barely a hint of consultation, MPs and Senators nonetheless heard a litany of complaint from leading law associations across this land that declared it would not pass a Charter challenge. How, one wonders, did the Justice Dept. lawyers who must have screened the bill before it was tabled last fall, perform the ethical calisthenics required to hold their noses and look the other way as this juridical disaster was readied for public presentation?

As was predicted at the time, the new bill would only create further legal challenges and result in nothing but further misery for the detainees and their families, who continue to live with the fear of deportation to torture.

As for those Justice Department lawyers who continue to prosecute these cases, one wonders if they breathe a C-3 sigh of relief that, as with their brethren at Gitmo, they can rest assured they don’t need to worry about building a proper case, as convictions are assured under a process so terminally biased against a detainee. (Technically, there is no conviction in an upheld certificate, since there is no charge; rather, there is only a finding of “reasonableness,” which is the lowest threshold to be met in any Canadian court)

Indeed, even with the addition of a so-called special advocate (who can see what’s in the secret file but is prohibited not only from revealing what’s there, but also from communicating with anyone, including the detainee, without a judge’s permission), the individual detained still does not know the case any more today than when the law was declared unconstitutional. And even if the Special Advocates are able to mount a significant and vigorous challenge to the secret allegations, they are likely to run into the brick wall of the reasonableness standard.

The idea that upheld certificates are supposed to be “assured” was no more evident than in the internal review undertaken by the Inspector General of CSIS after Mahmoud Jaballah, detained for seven months in 1999 on a certificate, had his case quashed by the Federal Court, which found the certificate was “not reasonable.” The goal of the review was to determine “whether the Service's security intelligence report was a credible, balanced and accurate representation of the case against Jaballah; and whether the case against Jaballah was presented well enough.” Which is strange, considering that role belongs solely to the court under the security certificate scheme, and that the issue had been decided in 1999.

But when the cards are stacked against a detainee and the detainee still wins, Canada’s spies refuse to accept the verdict. Individuals concerned with how a judiciary is supposed to work in a democratic state might pause here and wonder why, when a certificate was already reviewed and found to be not credible by the body tasked with this process, it is second guessed by the CSIS Inspector General. The Inspector General’s conclusion? “Our assessment of the security intelligence report concluded that it was a well-founded account of an accurate, credible, and balanced case...It was difficult to follow the reasoning of the Court in reaching the decision that it did.”

The conclusion of this 2000 report was “Even though this security certificate was an accurate presentation of the facts, we took note of and encouraged Service initiatives underway that would make security intelligence reports more cogent and compelling when presented to the Court.”

That report must have served in its own humble way as a green light that encouraged CSIS to issue a new certificate against Jaballah in 2001, relying on a “new interpretation” of a case already dismissed as not credible by the Federal Court two years earlier. Perhaps garnishing their new report with language designed to appear more “cogent and compelling,” CSIS got its way this time, with the certificate upheld and Jaballah detained until 2007, when he was transferred to a draconian house arrest where, to this day, an outing for a jug of milk requires special permission from state authorities.

Which brings us to the present, and a new round of secret trials this fall. Given that this process is designed to produce deportation orders, and that all five men subject to certificates face a substantial likelihood of torture if deported to their countries of birth, they might be more properly called “rendition-to-torture hearings in search of a judicial seal of approval."

Anyone who follows these cases might readily conclude that the courage and insight found wanting in Canada’s Justice Department is matched by the Federal Court, which, after the security certificate scheme was declared unconstitutional, behaved as if nothing had changed, denying bail to one of the detainees because of findings made under that unconstitutional process and refusing to relax the stringent house arrest of the other four. One Federal Court judge noted with a fair degree of certainty, in what can be accurately described as a preferential option for the powerful, that “I do not believe that the Supreme Court intended the previous rulings are to be revisited or that current proceedings necessarily are to be altered as a result of its determination.”

Hence, individuals whose lives are made hell by an unconstitutional process are not allowed, in the eyes of this and other judges, to revisit decisions made under that fundamentally flawed and unfair process.

The Federal Court has done more than its fair share in supporting the secret trial process. For example, it took the unprecedented step of posting the unsubstantiated CSIS allegations on their website. It also funded the study of a special advocate system designed to save the secret trial process rather than explore how such draconian measures could be justified in the first place. It also appointed five judges to the new sets of hearings, all of whom have already made negative findings about the detainees, such that one cannot help but wonder about a possible apprehension of bias.

And if there is not outright bias, there surely might be reasonable grounds to believe that the psychological and political pressure on these judges might be similar to the dynamics that forced the resignation of the Guantanamo chief prosecutor. Col. Morris recalled that he was told by his superior that “We can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals, we’ve got to have convictions.”

While it might sound far-fetched to state that the federal court judges are receiving similar marching orders, common sense and the patterns of power lead one to ponder whether a dynamic similar in tone and content to that which forced Col. Morris’ resignation might be an unspoken, perhaps even subconscious element at play here in Canada.

Indeed, is it difficult to imagine the Federal Court, having upheld this unconstitutional process in the past, and having made negative findings against the five detainees, suddenly changes its mind simply because the special advocates are part of the process? It takes nothing away from the skillful efforts that will likely be made by the special advocates to note that, for the court, a lot is on the line here. Will judges admit that they made errors in past hearings and, given the arguments of special advocates who are now in the secret chamber, suddenly say their own process of challenging government information was not up to scratch (this when one judge last year talked in open court about how “good” they were in closed session)? Will judges who likely take lunch with one another really feel comfortable coming up with a completely opposite finding from their counterparts?

These are valid questions, as judges are as fallible as the rest of us, subject to the pressures and politics of the national security scare mongering that surrounds these cases.

Then again, it is highly possible that the judges have not had access to the whole of the case (including exculpatory information). Indeed, the security certificate in practice allows the government to present what it relies upon, which does not necessarily mean all of the material in its possession. One signal of this possibility is in the order released last week by Judge Simon Noel who, following a week-long secret hearing in the absence of Mr. Harkat and his public lawyers, gave CSIS six months to produce all documentation related to the case of Ottawa detainee Mohamed Harkat. CSIS had said it needed all that time to compile all of the secret materials. Which begs the question: if the secret case was already presented to the judge hearing Harkat’s case years ago, why is it not sitting in one place, easily accessible? Or does this mean that CSIS did NOT present everything in its files related to Mr. Harkat at the previous secret hearing?

Either way, Harkat is unlikely to see any of it, since the files will only be seen by government lawyers, the judge, and the special advocates. Upon seeing that information, the possibility that a special advocate will be able to ask Harkat questions about it is an open question right now, one that led to a constitutional challenge being heard in Toronto this past week.

As written currently, the legislation sets out a complete bar on communication related to the case by the special advocate once s/he has seen the secret file. That means no communication with the detainee, with special advocates, with public counsel for the detainee, with office staff, with Justice Dept. lawyers, even with family members of special advocates who might want to know where their loved ones are and when they’re coming home. The rationale for this is the fear of a speculative “inadvertent” breach of confidential information, even though all the advocates have been security cleared and taken an oath to protect that information.

Any attempt to communicate with the detainee, for example, must go through a process of judicial consideration and approval, thus opening up one’s potential defence not only to the judge hearing the case, but also to the government lawyers likely to be present for (and likely arguing against) the ability to further question the detainee. The process thus invites the judge and the government lawyers inside the defence’s strategy, violating the concept of solicitor-client privilege.

“What is proposed here [by the government] is that the court supervises all solicitor-client communication,” argues lawyer Marlys Edwardh, who notes such a thing has never been done in Canada and clearly violates fundamental justice. Edwardh and her colleagues are very clear: they see no reason why special advocates should be prohibited from open communication regarding matters not affected by “national security” concerns and, should those concerns arise, and only then, would it be appropriate to consider approaching a judge. Even then, it is suggested, such concerns should not be presented in front of the judge hearing the case, nor in front of the government lawyers, who would again gain an insight into defence strategy.

A brief filed by detainee Hassan Almrei’s counsel notes that “there are no equivalent restrictions on the government’s lawyers in their communication with one another or even with the named person or their counsel.....Counsel for the Minister and for CSIS has had knowledge of the secret evidence when he or she cross examines the person named in the certificate. There does not appear to have been any allegation that counsel revealed confidential information as a result of this contact.”

So severe are the current restrictions that no one knew about the secret hearing in the Harkat matter. It came as a complete surprise to the other lawyers working on related cases. After expressing their concern that they did not know about the hearing, the lawyers were asked by Chief Justice Alan Lutfy, “So what?” You know about it now, he says, which shows that, despite a slight delay, the system somehow works. Throughout the hearing, he seems to lean on the idea that the system should just work its way through and deal with problems as they arise, thus ignoring the clear charter rights breaches raised by detainees’ lawyers.

Lutfy has attempted to play the role of enthusiastic, if not painfully cheerful, conductor in forcing these hearings to move ahead at any and all costs, regardless of the wishes of the detainees. Perhaps most significantly, a question he raised during the constitutional challenge betrayed a systemic bias that appears to run throughout all of these hearings: why, he asked, did security certificate cases have to be heard “at the highest level of fundamental justice?”

Lutfy had the audacity to pose this question when not thirty feet away from him sat Mohammad Mahjoub, detained from June 2000-April 2007, now under house arrest with his family and fighting deportation to torture to Egypt, and Mahmoud Jaballah, detained since August 2001, and now similarly under house arrest in Scarborough and fighting deportation to torture in Egypt. Neither man has seen the alleged “case” against him, and likely never will. Each has spent years in solitary confinement, both have suffered innumerable physical hardships, and their families have been traumatized both by the incarceration and by the intense surveillance and intrusion by state agents into their daily lives. All this has been based on a secret process (in complete opposition to the highest level of fundamental justice) designed to protect CSIS, whose prior claims to “national security confidentiality” in fora such as the Arar Inquiry have been clearly shown to do more with avoiding embarrassment over their unsavoury practices (ie, complicity in torture).

Yet the legislation as written starts with the premise that it is the secret information of CSIS, and not the rights of the detainee, that are paramount, and everything possible must be done to protect that CSIS secrets. It is in this environment that standards are so low that with two exceptions, every certificate issued since 1991 has been upheld. Government lawyer Marianne Zoric argues that preventing disclosure of the case to the detainee is “not a mean-spirited attempt to prevent the named person from having their day in court...the process is not fundamentally unfair.” She does not appear ready to join her courageous colleagues who have departed Guantanamo Bay.

Lutfy’s question about fundamental justice is an informative one. Perhaps he does not entirely grasp (or want to acknowledge) that security certificates represent two-tier justice, in which permanent residents and refugees receive a lower standard than citizens. In reply, lawyer John Norris noted that the individual’s liberty interest is engaged here in Canada and that, regardless of status, such cases deserve to have applied to them the highest level of fundamental justice.

Lufty fancies himself a casual judge, and his incessant retreat into homespun witticisms and self-congratulation might prove vaguely amusing were these not rendition-to-torture hearings. Indeed, since he took on the task of “case management” for the five secret trial cases earlier this year, his chin-up approach, constantly encouraging all parties to keep smiles on their faces and positive vibes in the air, seems well at odds with the life-and-death issues facing the five detainees.

Perhaps it is a form of cognitive dissonance -- an inability to face up to the sheer injustice of the process -- or simple guilt reduction that leads him time and again to comment on the need for fundamental justice to be part of the secret trials and rendition to torture process. Indeed, he tells the court that if he has anything to pass on to his children, it’s his “integrity.”

Throughout the two days of proceedings, he reminds us that “the court is very conscious of the open court principle,” even as he acknowledges that a secret hearing without Mr. Harkat and his lawyers just finished up last week in Ottawa and another secret hearing without Mr. Almrei and his lawyers is proceeding this very day. But nonetheless, he blithely carries on throughout the hearings in a manner bespeaking that Shakespearean quip: methinks the chief justice doth protest too much. Hence, every half hour on the hour, we hear such reminders of the virtue and natural goodness of the court...”the world works best when there’s transparency”...”we believe in open courts”...if certain decisions that should be made public are kept private, “the institution we all work for would suffer, it wouldn’t be terrific”...”we are running a fair hearing here”...CSIS should “not go too far in infringing the rights you are trying to protect”...

Symbolism is important to the federal court’s chief judge, so much so that he goes off on a tangent about the relative thickness of the “public summaries” of allegations provided by Canada versus those provided in the U.K. Such patriarchal locker room talk could no doubt form the basis of an interesting psycho-sexual thesis about our phallo-centric culture, in which size is what counts. Lutfy gets into the size issue when he recalls a conversation he had with two British special advocates last February. They were, he says, surprised to see that the public summaries of allegations in Canada were far more “substantial” than in the UK. “I showed them the summaries, and what impressed them was the inches...they don’t have [their summaries big enough to be measured by] inches over there,” Lutfy says, using his fingers to indicate the relative difference in summary sizes in what feels like a scene out of an early Woody Allen film

(Part of what gives the public security certificate cases their “inches” are the binders of newspaper clippings, web downloads and other material that have nothing to do with the detainee, but give the appearance of having built a strong case when all CSIS has to do is say person A is associated with all of this big, bad stuff.)

Lufty, ever a fan of symbolism, then says he is “very proud” of the fact that the Federal Court, in a magnanimous display of openness, now posts when secret hearings are scheduled to take place (even though no one can attend them). When a defence lawyer rises to say he has searched the website and never been able to find such notices, Lutfy reassures him that they are indeed there, but that he should contact court staff if he needs further help. Orwell would be pleased.

While these sentiments are all well and good, had they been put into practice, one wonders what place, exactly, security certificates would have in a 21st century democracy. But Lutfy’s sense of place in the world, along with the rest of his court, the government, and its spy agencies, seems to work along the lines that Lewis Lapham uses to describe the American empire: when one is convinced of one’s own sense of virtue, there is no need for the law. Hence, the virtuous Americans have gleefully cast off the Geneva Conventions as “anachronistic,” but advise us to fear not because they would never do anything untoward.

And so it is for security certificates, where we are asked to assume the virtuous nature of our system because, after all, there is no rule of law or due process in these cases. Right in the law itself, it states quite clearly that anything not normally admissable in a court of law can be considered by the judge in a security certificate case. Which means we are no longer in a court of law. When we are no longer in a court of law, and the case against one is secret, one must repose one’s trust in the judge’s virtue and hopefully strong sense of fair play.

It’s in that sense of trust that Lutfy is asking the detainees to place their faith. Indeed, after lawyer John Norris talks about who protects the interests of the detainee (the defence lawyer and the special advocate), Lutfy chimes in, asking if Norris has forgotten someone. After pausing, Lutfy hastens to remind the court that it is the judges who are ALSO looking out for the interests of the detainee. But how, exactly, does a judge look out for the interests of a detainee while presiding over a hearing designed to prevent the detainee from knowing the case, and whose eventual outcome is deportation to torture?

In fairness, the legislation historically places the judges in an unfair position, in much the same manner that U.S. segregationist judges were perhaps sometimes caught between their desire to uphold the constitution and Bill of Rights and their perceived need to enforce racist statutes because they had been passed by their legislatures. We remember the names of the ones who rose above strict statutory interpretation and remembered that the law is nothing without justice.

One thinks of the analogy because in this instance, Lutfy often pauses with a sense of reverence at the wonder of Canadian democracy, and reminds us that this atrocious piece of legislation was “enacted by Parliament,” as if such a statement somehow brings to reality the often mistaken notion that Canadian laws are only put in place after careful, thoughtful consideration and true consultations with people across this land.

Mr. Lutfy is no doubt familiar with the slipshod manner in which the latest legislation regarding security certificates was rammed into place, rubber stamped by a House and Senate that was told repeatedly by leading legal associations that the bill would not survive a Charter challenge, but passed it anyway. The victims are all Arab Muslims, who suffer because of Parliament’s fear, its racism, its refusal too take democracy seriously. Had the targets been Smith or Jones instead of Mahjoub and Jaballah, perhaps the wise Parliamentarians would have paused for breath on their race to pass new secret trials legislation.

What effect is this having on the house arrest front? As Barb Jackman, lawyer for Mssrs. Mahjoub and Jaballah states, both men are on the verge of turning themselves in to be sent back to jail. Why? Because the suffering of their families, who also live under house arrest and are targetted for constant surveillance and harassment, is so great that they feel the only way to end it is to go back behind bars.

How does this end? We saw that it was sustained public exposure and grass roots political action that took the issue from relative obscurity to the Federal Cabinet table and the Supreme Court docket.

While we remain committed to that form of action, it wouldn’t hurt to have a few assists along the way. Justice Department Lawyers Against Secret Trials and Deportations to Torture? Federal Court Judges Refusing to Preside over Rendition to Torture Hearings?

If you need help with the placards and T-shirts, you know where to reach us.