Thursday, February 12, 2009

House Arrest as Intelligence Gathering Tool

Secret Trial House Arrest Used as Massive Data Mining Project;
Secret Canadian Border Services Agency Manual on Security Certificate Detainees Reveals Operational Details Far Exceeding Court-Ordered Conditions

TORONTO, FEBRUARY 11, 2009 – In a stunning confirmation of what secret trials opponents have long suspected, a redacted version of a secret Canadian government manual reveals that the draconian conditions of house arrest imposed on those subject to security certificates are being used as a cover for intelligence gathering purposes on the detainees, their families, their supervisors, their friends, and their communities.

There are currently four men under the most severe house arrest conditions in Canadian history, placed there because of the two-tier justice security certificate procedure declared unconstitutional by the Supreme Court in February 2007. Before their release from prison, they had to agree to court-imposed restrictions that included wearing GPS monitoring bracelets 24/7, agreeing to phone taps and opening of mail, surveillance cameras both outside and, in one case, inside their homes, and unannounced searches and seizures by government agencies.

In addition, trips outside the house could occur only with government permission, no visitors are allowed without prior government approval, and there is no internet or cell phone access. These and a host of other measures are applied against individuals who have never been allowed to see the case against them, who face the lowest standards of any court in Canada, and who are fighting deportation to torture.

Difficult as these conditions can be, the men and their families have long charged that their lives have become even more miserable because the Canadian Border Services Agency (CBSA), whose role is to monitor compliance with those conditions, has been exceeding its authority. Indeed, CBSA has been introducing additional restrictions not approved by the court, making arbitrary decisions that allow no route of appeal, and behaving as if some of their agents have the heart-thumping theme music to CBC’s overhyped “The Border” performing repeat rotation on their ipods.

For example, upon releasing the detainees from Gitmo North, the Federal Court entrusted wives, older children, and community friends with monitoring the individuals’ compliance with terms and conditions. But as time has gone by, and more CBSA officers have been hired, the men and their families find themselves constantly followed and overtly surveilled, making it impossible for families to enjoy a rare outing together without being closely followed by officers wearing bullet-proof vests and sidearms. This behaviour unfairly marks the families as suspicious, if not dangerous, to the general public, and traumatizes the children and their friends.

Indeed, this fall, young children of the detainees testified in court about the impossibility of enjoying a government-approved family trip to a skating rink, to a parent-teacher interview, or even to a department store to buy Eid gifts because of the manner in which they were followed and felt criminalized by the overt (and unnecessary) monitoring of CBSA agents.

Why, the families ask, is such intrusive surveillance necessary when the court has declared its trust that family supervisors have promised to report any breach, when the men can be tracked via the GPS, when the phones are monitored, when they cannot make any move (including a quick trip to the corner store for milk) without the government knowing about it at least 72 business hours in advance? In addition, if the CBSA really felt that the detainees were up to no good, wouldn’t covert surveillance make much more sense? After all, someone allegedly up to no good is not going to try something when state agents follow his every move, often within a few feet of one another.

CBSA says that this is all needed to ensure compliance with the terms and conditions of house arrest. One suspects, though, that as an institution, CBSA, like its brother agency CSIS, simply does not trust any decision of the Federal Court of Canada with which it disagrees. Their approach, court decisions be damned, is that if Canada’s national security is to be protected, these agencies must do whatever it takes, even if it goes beyond the letter of the law or the terms of the release conditions.

The appearance of a presumption of guilt regarding the detainees, their families, and their friends, is well borne out by the national policy manual released almost in full following a secret hearing this week in Toronto for detainee Mohammad Mahjoub and his family. It follows on months of hearings during which officials from the CBSA confirmed that all mail to the detainees’ homes (including credit card bills, bank statements, phone bills, magazines, personal letters, and birthday cards addressed not just to the detainee, but to his wife and children) is photocopied and sent to their Counter-Terrorism branch in Ottawa for further investigation.

Also recorded and passed along to Ottawa are all phone calls, along with photos of the detainees, their family members, visitors, and bystanders who happen to be in the line of view when agents have taken shots.

The CBSA asked agents of the spy agency Canadian Security Intelligence Service (CSIS) to listen to all of those phone calls. In December, 2008, it was revealed that solicitor-client calls are among those recordings that have been listened to by CSIS agents for close to two years, allowing one party to the proceeding exclusive access into the defence strategy of the defendants. (The long-standing principle of solicitor-client confidentiality is a fundamental bedrock of a democratic society, and the Supreme Court of Canada affirmed in 2001 that it is a principle of fundamental justice and so is protected by the Charter of Rights and Freedoms).

While the Federal Court did issue an order calling on CSIS to stop listening to such calls, there was no penalty for this violation. Indeed, the judge hearing the case stated: “I don't want to hear any more about it. It is done. It is over. It is finished. It has happened. We understand it happened. It is unfortunate, but there is nothing we can do to change the past. We can only look at what goes from here in terms of where it will go from here.”

But what if those illegally obtained solicitor-client phone calls served an “intelligence gathering” purpose that allowed CSIS to continue to build up its unfounded accusations against the detainees, their families, and their friends? Where does the cycle of illegality end, and where is the bold statement that declares such behaviour will be severely dealt with? In a system supposedly built on checks and balances, an agency like CSIS needs to go to court and seek judicial approval for any intrusive investigation that may severely curtail someone’s privacy rights. While the Federal Court almost always grants warrants for CSIS investigations, it is highly unlikely that the court would sanction such an intrusion into the calls between a lawyer and her client. In this instance, CSIS got through the back door what it could not receive through the front.

This week, just prior to the final submissions with respect to conditions of house arrest, Mr. Mahjoub’s defence counsel asked that the court consider finally acting on a request made October 30 for production of the CBSA national policy manual, which had till then been considered top secret. Asked why the document had not been handed over to the special advocate (who is allowed to view secret information but not speak with Mahjoub), a government lawyer said there were “national security confidentiality” concerns. That lawyer was rebuked by the judge, who wondered why a secret document could not be given to the security-cleared individual tasked with seeing secret information and arguing for its public release.

Implausible rationalizations ensued, but the judge saw no reason why a secret hearing could not proceed on the question of the manual. Following the clearing of the court and a sweep for “bugs,” or listening devices that may have “compromised national security,” an “in camera” secret hearing was held, during which the special advocate argued that the document should be released to Mr. Mahjoub and his lawyers. After almost five hours of argument, about which Mr. Mahjoub, his public lawyers, the press, and the public are allowed to know nothing, the document, partially redacted, was finally released.

Entitled “Security Certificate Case Monitoring,” it provides a fairly biased view that would likely scare and confuse CBSA officers tasked with following the detainees. Indeed, with scare-mongering headings like “There is no zero risk situation,” it repeatedly states that these individuals have “links to terrorism,” a specious and defamatory allegation that has not been proven in a fair and legal process. Under a security certificate, such an allegation does not even have to be proven beyond a reasonable doubt in court, and is normally based on wholly secret information.

If the officer’s pulse has not already increased by this point in the material, it will surely go up a notch upon reading the bold-faced heading that “National security must not be compromised.” Given that no rational discussion ensues about what this means -- only that bold statement that something really important is on the line without really explaining what it is -- perhaps Dirty Harry theme music now goes onto the ipod, while agents visualize themselves as versions of renegade copper Clint Eastwood on the streets of Toronto and Ottawa.

Amidst the fear-mongering are also moments of curious writing choices, as in the section that defines risk as “the chance that something bad will occur.”

The presumption of guilt that is built into security certificates drips from the manual. A heading called “Challenges to monitoring” explains that “it is probable that the ISSCs [individuals subject to security certificates] will continually oppose monitoring and seek to weaken or remove the release conditions.” Why this seems to be a “bad” thing is not explained, especially since this right to review and change conditions is built right into the legislation. Additionally, it does not address the fact that individuals who have never been charged with, much less convicted, of any crimes, might object to such onerous conditions when they have yet to face a process that is consistent with the Charter of Rights and Freedoms.

Also not explained is the humiliating nature of the conditions, which reduce the men and their families to appendages in some futuristic surveillance state in which they cannot drive anywhere without state agents following so close that rear-ending is possible, and where beloved children’s toys are seized and held for six months based on the suspicion that they may constitute a threat to national security (as in the case of one family’s seized Wii this past summer).

Officers are instructed to engage in close physical monitoring to “watch and listen to the ISSC during outings,” a practice that not only comes off as harassment, but also makes the court-approved supervisor (usually the detainee’s wife or adult child) feel they are not trusted. Imagine being in a food court or restaurant on one of your three weekly government-approved outings, and the close proximity clearly identified officers would need to be to “listen to” the targetted individual, and one can get a sense of how intimidating this practice can be, especially for young children.

The manual instructs its officers to be on the lookout for any behaviour or action that may constitute a “threat to national security,” without the terms “threat” or “national security” defined. In discussing how to approve a detainee’s home (because detainees can only live in a certain house that must be approved by the government), they are asked to determine “does the surrounding area pose a risk to national security or public safety in any way?”

Under a section entitled “residence check,” officers are told they may enter a detainee’s house to conduct a search but must do so with respect, but “where there are reasonable grounds to believe that there is a potential risk, officer safety will take precedence over cultural, religious and gender considerations.” Given the pumped-up manner in which the institution presents the issue to its officers, a case can no doubt be made that officers are always on guard against such perceived (albeit completely unsubstantiated) risk, and numerous complaints from various detainees about the manner in which such sensitivity considerations have not always been respected support this conclusion.

The manual encourages CBSA officers to maintain ongoing communication with detainees’ supervisors (usually wives, grown sons and daughters, and community members who came forward) “to work through minor difficulties without the involvement of the court and to obtain valuable information about the integrity of the ISSC supervisor.” In other words, supervisors, who have been approved by the court, nonetheless remain under suspicion by CBSA, which wants to maintain “integrity checks” on them.

In a sign of what may be yet to come, individuals who have been approved as visitors may, according to the manual, be subjected to a search upon entering or leaving the detainee’s residence (even though this is not contained in any court order). The document references an as yet unseen “Visitor Consent to Search form” which has yet to be presented. Indeed, at every review of conditions, the passage of time should, in theory, allow for a loosening of these restrictions, but at every opportunity, CBSA is attempting to put even more restrictions on the detainees.

As it is, some potential visitors have tended to shy away from applying for approval, given that the application form demands, in addition to basic identification information, the name, address, and phone number of their employer. All individuals wishing to visit the men and their families must answer two final questions: “Does the visitor named support terrorism or violent jihad? Has the visitor attended any training camp or guesthouse operated by any entity that supports terrorism or violent jihad?” Not exactly the kind of routine one normally goes through upon making dinner arrangements with your friends.

All of these intrusive measures were put in place only after receiving signed consents from the detainees and their adult children. Those consents were specific with respect to the issue of monitoring compliance with conditions, nothing more.

Yet in one of the most telling passages of the CBSA document, one sees the manner in which this house arrest scheme has become an unauthorized government tool to gather intelligence about all manner of people associated with the individual targetted by the government. The section on phone taps states that “telephone monitoring can also be a valuable source of information on the ISSC as well as their supervisor and associates [i.e., their friends, none of whom are subject to security certificates but all of whom are now the subject of investigation].

This is clearly the sign of an agency acting way beyond the limits of the terms imposed by the court. As with the case of listening in on solicitor-client calls, this instance shows again that CBSA is unable to adhere to the law or to the orders of the Federal Court. The price for a detainee who breaches a condition is jail; the price for the government is a yawn, a shrug from the court, and a plea to simply move on with a process that regularly violates the detainee’s rights.

The CBSA document then states that telephone taps are “most beneficial after a catalyst event, such as a residence search, interview, spot check or interactions during an outing or appointment. These occurrences, along with what the ISSC says and who they say it to, could be valuable information that leads to additional targets.”

Additional targets? In essence, house arrest becomes a huge fishing expedition for the government. Say Mr. Mahjoub is walking down the street, accompanied by a court-approved supervisor who is tasked with monitoring compliance with the conditions and reporting any breaches (hence making the well-funded CBSA surveillance completely redundant), and he bids “good morning” to a passerby. Does the passerby become the target of investigation? Does that individual’s photo, sent to Ottawa by CBSA, end up as part of an information exchange containing no caveats? Will it eventually be used if that bystander travels overseas and is detained at the request of Canadian officials for questioning, perhaps even torture, by the Syrians or Egyptians (the kind of scenario we have seen documented by two recent federal inquiries into Canadian complicity in the torture of Maher Arar, Abdullah Almalki, Ahmad El Maati, and Muayyed Nureddin)?

The manual then states that the use of these surveillance tools is not just to detect breaches of conditions (which, again, the men point out, is a task entrusted to the court-approved supervisors): “Even when a breach of conditions is not apparent, the information may be beneficial for intelligence purposes.”

When the detainees and their loved ones consented to opening of their mail and tapped phone lines as a condition of house arrest, they did not consent to such information being used for investigation purposes, only to monitor compliance with conditions of release. The CBSA’s stated position that they are only monitoring the men is undermined by the next sentence, which states “Where possible, monitoring officers should attempt to gather intelligence for use by headquarters, the regions and other government departments.” Who knows where this “information-sharing” ends, and the degree of harm that may come to individuals who suddenly find themselves on no-fly lists, rendered to a third country, denied employment for mysterious reasons, all because of the secretive actions of over-zealous, racially-profiling agencies like CBSA, CSIS, the RCMP, Foreign Affairs, and the Department of “Justice.”

Of course, all of this falls into a bizarre context: state violations of court orders that allow for such invasive practices as phone taps as a condition of getting out of jail to be with one’s family are small details in the much broader picture. What right does the Canadian government have to employ the repressive security certificate measures that create such abuses in the first place? Condemned by international human rights bodies, the United Nations, and people from coast to coast in this country, the secret trials process, in addition to the grave consequences for those targetted and their loved ones, is contributing to a variety of precedents that auger a surveillance society that is not as far away as some would think.

As this week’s hearing ends, and Mr. Mahjoub now awaits a decision (along with similar decisions on house arrest conditions being awaited by detainees Mahmoud Jaballah and Mohamed Harkat), CBSA, CSIS, the RCMP, and other government agencies continue sitting high above any concept of accountability, enjoying a culture of impunity. They can listen to privileged calls for two years, they can exceed the limitations of a court order, they can get away with behaviour that constitutes harassment and violations of the Canadian Charter of Rights and Freedoms, and they can certainly be complicit in torture (as was found in the O’Connor and Iacobucci inquiries), and no one is charged, no one is demoted, no one is held responsible.

Meanwhile, scheduling is now taking place to conduct the rendition-to-torture hearings of the five secret trial detainees, slated to begin this spring and summer.


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