June, 2013, rabble.ca
By Matthew
Behrens
The end of
June marks 13 years of Mohammad Mahjoub’s Kafkasesque journey. The Egyptian refugee
and returnee from torture originally thought he was walking onto a Hollywood
set when he was surrounded by heavily-armed men and arrested while getting off
a Toronto streetcar in 2000.
Subjected to a secret trial
security certificate, Mahjoub has since been behind bars – largely in solitary
confinement – or under house arrest facing deportation to torture. His remains
one of three cases under a security certificate regime whereby individuals are
detained without charge on the basis of secret allegations neither they or
their lawyers can see, much less contest. It allows a judge to accept as
evidence anything not normally admissible in a court of law, and then make a
decision using the lowest standards of any court in Canada. It’s been roundly
condemned for its use of torture-gleaned information, and has also been found
unconstitutional by the Supreme Court of Canada.
Throughout the years of the
so-called War on Terror, the Campaign to Stop Secret Trials in Canada, working
in conjunction with a number of support committees, has rallied around the
Secret Trial Five, five Muslim men who, otherwise unconnected, had been subject
to detention under the process. While the introduction of “special advocates” –
security-cleared lawyers who can see some of the secret case but cannot discuss
it with the detainees – has brought about further disclosures of information,
the process remains fundamentally flawed and unfair, and will be the subject of
a third Supreme Court challenge come October.
While some of the abuses born
of the secret process have been revealed as a result of special advocate work –
including the finding that an informant in one case had been having an affair
with a CSIS officer investigating the case, while in another the government refused
to tell the judge that its informer had failed a lie detector test – many
others have come about as a result of tireless sleuthing by B.C. professor Mike
Larsen, whose experience filing and following up on Access to Information
requests in an increasingly closed Ottawa bureaucracy is literally unmatched in
Canada.
Working with questions posed
by Sophie Harkat (whose husband, Mohamed, is challenging the secret process in
October at the Supreme Court), Larsen recently received an insightful document
dump that, even with many pages redacted, illustrates the extent to which there
is consternation within the Canadian government, both over how to proceed when
further requests for disclosure are being made, and how to deport individuals
when there is a substantial likelihood they’ll be tortured.
Larsen’s documents are largely
a compilation of interview results undertaken as part of the Security
Certificate Initiative (SCI), conducted in 2009 among seven departments as
Ottawa continued to deal with a unanimous Supreme Court finding in 2007 that
the process was unconstitutional. There is only one reference in the 200-plus
pages to the huge human toll of living under the security certificate – one
Canadian Border Services Agency (CBSA) officer admits “There is a human side to
these cases, regardless of our operational thinking. There is a human being
whose life is in limbo.”
Apart
from that one afterthought, the rest is a straight-up portrait of the banality
of evil, a consideration of Orwellian questions about the effectiveness of the
Star Chamber, the difficulties of trying to send someone to a torture-stained
regime like Syria or Egypt, and complaints by some that under a secret process
where the individual is still unable to ascertain the nature of the case
against him, the secretive process is still “too protective of rights” while
others find it “seems to be airing [sic] on the side of protection of values.”
Part of the grumbling arises
from a previous Supreme Court decisions that CSIS is not supposed to destroy or
withhold all the information in its possession. “The disclosure obligations
that have been placed on the service are incredible,” complains one of Canada’s
spies. “This includes 1000s of documents on these individuals….the process was
insanely lengthy.” No longer, though, than the 11-13 years that current secret
trial detainees have been held wondering what, exactly, CSIS supposedly has on
them.
The cost of persecuting five
Muslim men since 2008 has been astronomical. According to the documents, the budget for 2009 topped
out at approximately $60 million. The bulk of that funds government lawyers who
defend Ottawa against what they acknowledge are “challenges to indefinite
detention, challenges to removal to torture,” among other issues. There is no
comment about the fact that such challenges are necessary because their
existence in Canada stands the government in contravention of its international
and domestic human rights obligations.
Most prominent among the
interviewees is Bob Paulson, current RCMP commissioner, who in 2009 complained
that there was no intergovernmental cooperation (declaring all relevant
departments “siloed and self interested”). Paulson also alluded to his
preferred choice in such proceedings, the criminal process, noting
“transparency and accountability is a fundamental principle of justice.” He
called the security certificate process “completely off the rails” and noted
that given the huge amount of secrecy, “we are going to make the subject ‘work’
for the information. ‘Take our word for it’ approach. In my view, we over claim
protection of sources and methods and this is convenient if you can get away
with it.” Paulson’s conclusion is consistent with numerous findings of the
Federal and Supreme Court, judicial inquiries, and oversight agencies, all of
which point out that CSIS has a long history of preferring to keep things
secret (Paulson’s Mounties share that problem, but he did not appear to
acknowledge it in the interview – or, if he did, it was blacked out).
Just over 10% of government
workers surveyed for the SCI said if security certificates did not exist,
“national security would not suffer – the criminal code would protect national
security.” Notably, all those detained challenged the government to charge them
if there were any real evidence, hoping to ensure they received the higher
safeguards and standards in a criminal process versus the lower ones in the
immigration stream. The fears about the criminal process are expressed by a CSIS
interviewee who whines that “we are being driven more and more back to the criminal
model – evidentiary.”
Students of the democratic
process might wonder why an agency whose stated task is defending core values
like rule of law is so frightened of having to collect things like evidence. The
answer: doing so precludes them from using the information they readily
acknowledge comes from torture, hearsay, and guilt by alleged association,
regardless of the multiple degrees of separation.
In a sign that the government
relies more on profiling than evidence, one complaint was that “Criminal
charges would be way too cumbersone. The idea of trying to prove that they have
committed an offence in Canada would be unlikely; proof of acts committed
overseas would be difficult. Proof beyond a reasonable doubt has a larger
burden of proof; so chances of success would be unlikely.” If there is so
little to rely on, then what could possibly be the basis for ruining the lives
of the detainees?
It brings to mind the
outrageous document from Canada’s human rights division at External Affairs,
written in 2003, that fretted over deporting Syrian refugee and secret trial
detainee Hassan Almrei to Syria at a time when Maher Arar had just returned and
outlined the horrors he had undergone there. The memo writer was concerned that
people might ask why Almrei was slated for deportation to torture, especially
when he "does not meet the threshold for criminal
charges to be laid against him in Canada."
The documents also reveal that
the grass roots work opposing secret trials has certainly been noticed by
officials in government. It is a tribute to that work that after issuing two to
three annual certificates per year from 1992-2003, only one has been assigned
by CSIS in the following decade. Part of the problem, CSIS official David
Vigneault concedes, is the fact that many Canadians “believe that [indefinite] incarceration
and administrative procedures [secret trials] are not in line with democracy.” One
CSIS interviewee moans that things are not on the right track because “in the
media, people see one side of the story. They do not see a fair picture and
probably lose confidence” in the process. It’s a remarkable admission, yet on
another level, it reveals how sensitive CSIS is to any criticism whatsoever. It
also fails to appreciate that the media’s coverage of secret trials over the
past decade has been dreadful, by and large portraying the men exactly as CSIS
wishes to.
A government in disarray is
also evident in the documents. It seems interdepartmental communication is
poor, and while high officials may hold a certain opinion, it’s not reflected
in ultimate policy decisions. For example, CBSA’s Vice President of Enforcement,
Kimber Johnson, noted in November, 2009 in response to a question regarding
strict bail conditions that “courts have argued that with the passage of time,
the risk is less and I think this is true.” But the CBSA has not acted as if it
were true, continuing to harass the detainees under house arrest and, when
hearings have come up, seeking to add additional, not fewer, restrictions on
the already limited liberty of the men and their families.
Meantime, officials at the
Department of Foreign Affairs and International Trade (DFAIT) appear to be
exploring the long discredited seeking of “diplomatic assurances” from the
likes of the Assad and Mubarak regimes that their torturers would forgo brutalizing
Canada’s deportees. Apart from the fact such assurances fly in the face of
international and Canadian law, they’ve also been condemned in studies by the
likes of Human Rights Watch, which have illustrated such assurances are not
worth the paper they’re written on, and simply act as cover for governments
seeking to avoid embarrassment. Meantime, bureaucrats reveal that “there is no
measure as to which country are [sic] places of jeopardy for human rights and
on what basis these assessments made.”
Beyond the issue of security
certificates is the increasing use of secrecy in regular immigration processes.
Immigration security officer Themis Argyrides enthuses about the benefit of
having access to secret information that someone being questioned has no
knowledge of. “The classified information that was received is a huge benefit,
because it allows us to concentrate on the area of concern, even though we may
only use open source material in the actual processing.” In other words, the
officer can play “gotcha” with an interviewee, relying on the uncontestable
information in the secret file to try and show the individual may be hiding
something or lying. Further, Immigration interrogators note they usually oppose
the appointment of a special advocate in such non-security cases “because they
would rather have fewer people implicated (seeing the information) if
possible,” even though the advocates are security-cleared and sworn to secrecy.
While the use of security
certificates appears to have stalled, their most pernicious attributes are
being used in a widening net that entraps refugees and permanent resident applicants.
For years, secret trials opponents have argued that security certificates were
a thin edge of the wedge for a broader attack on fundamental freedoms, creating
dangerous precedents via the demonization of religious and racial groups whose
rights most would fear standing up for. That argument, unfortunately, continues
to be confirmed, as witnessed these past few weeks by revelations of mass
spying on global citizens by the National Security Agency as well as the
Communications Security Establishment Canada. In the eyes of government, we are
all suspects now.
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