(an edited version of this story appears in this week's rabble.ca news feed)
Wednesday, June 24, 2020
Moe Harkat has been fighting deportation to torture almost 18 years
By Matthew Behrens
Later this week, human rights groups and individuals will mark the June 26 International Day in Support of Victims of Torture with an online writing/call-in event. For Ottawa’s Mohamed (Moe) Harkat – a much-loved refugee renowned for acts of kindness and community care, including installing seniors’ air conditioning units during the current heat wave – it will represent 6,048 days of fighting deportation to torture in Algeria.
It’s a Kafkaesque nightmare for Harkat that constitutes a form of psychological torture – also known as no-touch torture – that was perfected at Montreal’s McGill University during the 1950s. It is incomprehensible to imagine what it has been like for Moe and his wife Sophie, who have lived with this nightmare hanging over their heads since Moe was arrested on International Human Rights Day, December 10, 2002.
To provide a framework for the damage that would be caused living under such conditions, the United Nations warns that after three months of lockdown and pandemic-related anxiety, the world faces a profound mental health crisis. While that crisis is real and must be addressed, multiply that three-month stretch of anxiety by 67 times, and that’s how long the Harkats have faced the unimaginable while surviving the completely unacceptable.
The secret basis for these efforts to deport Harkat to torture is a medieval star chamber process known as the secret trial security certificate, under which an individual can be detained indefinitely without charges based on allegations they are not allowed to see, much less contest. They feature the lowest standards of any judicial process in Canada, and allow for the introduction of anything not normally admissible in a court of law. In other words, this is not a court of law. The process still fails the test posed when it was first declared unconstitutional by the Supreme Court of Canada in 2007: "How can one meet a case one does not know?"
Since December 10, 2002, when he was arrested in Ottawa without charge, without bail, and thrown into solitary confinement for over a year in conditions that were tantamount to torture, Moe has never been allowed to see the substance of the alleged case against him, if any exists.
The whole basis of the alleged case rests on secret hearsay allegations from one informant who failed a lie detector test and another informant who was carrying on an affair with his CSIS agent handler. It's also based on decades-old summaries of alleged conversations, the original recordings and transcripts of which were destroyed, and whose accuracy and existence are impossible to verify.
A Target of Racial Profiling
While some might argue that there must be something to the allegations for the Canadian government to invest such a significant number of years and resources into pursuing Harkat, it is important to remember that three other high profile secret trial cases fell apart when it became clear that CSIS – the Canadian spy agency that creates the allegations – had not been telling the truth in the secret hearings. And in Harkat’s 2013 case, Supreme Court Justice Lebel castigated a government lawyer relying on secret, uncontested allegations from a secret informant: “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 fact, Moe Harkat’s case falls within a broader pattern of Canadian state security agencies actively racially profiling and targeting Arab Muslims (and those perceived to be such) that has resulted in endless individual and community surveillance, wrongful jailings, indefinite detention, direct complicity in torture, placement on no-fly lists, obliteration of reputations, disruption and destruction of family ties, and a generalized fear that has spread throughout whole communities who are fearful of perceived guilt by association with direct targets.
As institutions across Canada wrestle with the imperative to recognize and act on their own enforcement of systemic racism, it is important to view Harkat’s unique challenge as a product of that systemic racism. The indignities and endless suffering to which he has been subjected can only be explained by a racist, systemic bias against him that has been perpetuated by the almost exclusively white CSIS agents, Justice Department lawyers, and judges involved in his case.
Indeed, there is nothing in the public record that indicates Moe poses a threat to anyone. Yet he continues to face deportation to torture in Algeria because Federal Court Judge Simon Noel, who upheld the security certificate, unjustifiably believed that Moe lied. Noel heard things about Harkat in secret that Harkat knew nothing about. After Harkat answered certain questions in public, Noel decided that he preferred the uncontested hearsay heard in secrecy. We know that this hearsay was uncontested because a key plank of Harkat’s 2013 Supreme Court appeal was based on the fact that when security-cleared lawyers known as special advocates sought to cross-examine those unreliable informants during a secret session – which would seem an obvious thing to do given that one of them had failed a lie detector test, a fact CSIS deliberately withheld from the court for over a decade – they were turned down.
Noel said the informants deserved “informer privilege.” As the Supreme Court noted in its decision on Harkat’s case, the polygraph test on one source “revealed him or her to be untruthful.” So why wouldn’t the special advocates be allowed to cross-examine someone with this mark against them? The Court replied that there was nothing to worry about, because the hearsay evidence would be accepted only if the judge hearing the Harkat case concluded it is “reliable and appropriate.” But if Noel were hearing only one side of the story, how could he begin to make that finding, especially when the seeking of truth in Canadian courts relies on an adversarial presentation of as much of the story, from as many sides, as possible?
In the post 9/11/2001 climate, spy agencies around the world, licking their chops at the prospect of increased budgets and loving media plaudits, looked everywhere they could to find “the worst of the worst,” terror suspects whose arrest, detention, and deportation to torture would satisfy the sickeningly racist impulse to find someone, somewhere, whose quick disposal would end our nightmares of the next 9/11. Where no such suspects existed, they clearly had to be created. As the post-9/11 years turned into decades, name after name of individuals who had been described as the worst of the worst – and who had suffered incalculably as a result – were revealed through media investigations, grass roots organizing, court proceedings and judicial inquiries to have been wrongfully targeted and defamed.
As part of this process, CSIS, the RCMP, the Justice Department, and Canadian courts contributed to and built on what we might call the Myth of the Super Muslim, a trope based on centuries of vicious anti-Arab tropes. In the case of Ottawa engineer Abdullah Almalki – rendered to 22 months of Syrian torture with the complicity of a slew of Canadian government agencies – the Mounties were desperate to tie him to something, anything, in the weeks after 9/11. In an October 4, 2001, RCMP memo, an investigator concluded: “O Div. [Ontario Division] task force are presently finding it difficult to establish anything on him other than the fact he is an Arab running around.” That very same day, the Mounties put on their Super Muslim glasses and wrote to Syrian intelligence that Almalki posed “an imminent threat” with alleged ties to al-Qaeda.
In an interview, Almalki later said: “It shows the racism involved in this. To me, it is the piece of the puzzle I’ve always been looking for: it never made sense to me why they did what they did.”
Notably, a September 20, 2001 RCMP report declared: “Almalki does not seem to have committed any criminal offence . . . yet.” In July, 2001, another RCMP report concluded, “He (Almalki) has not been found to be committing any criminal activities in Canada.” A week before 9/11, another RCMP report, based on perusing the whole of Almalki’s file, again concluded: “It does not appear to me that there is any offence being committed at this time that would warrant an investigation…”
While Almalki and two other Muslim men – Ahmad El Maati and Muayyed Nureddin – were offered a 2017 apology and compensation for Canada’s role in their torture, no one in government whose racist actions led to their torture was ever held accountable.
Moe Harkat reacts the day he has his electronic GPS monitoring bracelet removed.
Desperate to be Bad
In one security certificate case (since dismissed after 20 years of pain), an allegation that refugee Mahmoud Jaballah was a terrorist communications relay was based in part on the fact that, when he first arrived in Canada, he wasted no time in hooking up a landline, getting a cell phone, signing up for internet and, in the language of federal lawyers, “procuring” a fax machine. What for those of us who enjoy white skin privilege would be a matter of course becomes, in the hands of an Arab Muslim refugee, the portal to becoming “the worst of the worst.” (As a white man, I once purchased, but have never “procured” – with all the nasty connotations of the latter word – a fax machine).
In another security certificate case (eventually thrown out a decade ago), the Super Muslim myth was clearly top of mind for the judge. Strenuous efforts were undertaken by refugee Hassan Almrei – with many concessions to intrusive, degrading, humiliating invasions of personal privacy – to secure release from Canada’s Guantanamo North prison to house arrest in a basement apartment. Nothing in the public record had ever shown Almrei to pose a threat (in fact, the Canadian government, in a document released during the inquiry into the torture of Maher Arar, admitted that it did not have enough information to lay a criminal charge).
But Almrei, who by this time had spent more than half a decade in solitary confinement, was nonetheless willing to wear a GPS monitoring bracelet, live under constant house arrest with video cameras at the only entrance to the basement apartment, have only limited supervised outings, have contact only with individuals approved by the state, have no computer or cell phone access, consent to a phone tap and mail opening, and consent to agents of the state entering his abode any time of day or night without notice or warrant. Despite these severe deprivations of liberty, however, the judge nonetheless was afraid that he would spend considerable time alone in a basement and that “the risk of surreptitious communication by [him] is too great.”
But unless Almrei had become telepathic during his more than seven years of confinement, it was unclear how, with phones tapped, video cameras at the entrance, agents likely monitoring the house from the outside, and no access to a cell phone or computer, he could engage in any communications, surreptitious or otherwise. It was only if one believed the concept of Super Muslim that such a conclusion might seem plausible. House arrest was turned down.
Harkats’ Endless House Arrest
That myth of the Super Muslim is a virus that continues to infect judicial decisions about the draconian conditions under which Harkat and his wife Sophie are still forced to endure, a full 14 years after Moe’s initial release from prison to the strictest house arrest conditions in Canadian history. These featured the installation of surveillance cameras at their house, a GPS tracking module strapped to Moe's leg, endless rounds of permission-seeking to go into the backyard or to get groceries into the house, spy agency clearance required for any friends and supporters who wished to visit, vindictive raids on their apartment that sometimes caught one of them in the shower, and a lengthy litany of other humiliating conditions that would have produced an unimaginable level of stress in the best of marriages.
For Sophie, it meant having to become a jail guard in her own home. As a surety, she could never leave Moe out of her sight. If he wanted to fire up the barbecue, he could not go onto the back porch without Sophie going out first and monitoring his exit into the fresh air. If the couple were out on an approved visit to a shopping centre and one of them had to use the bathroom, the "never out of sight" responsibility placed on Sophie meant some socially awkward positioning at public washrooms. Anyone who wished to visit the Harkats at home had to be security-cleared by the government, which socially isolated them. The things most of us take for granted — cell phones, mail privacy, a home computer with internet access -- became the subject of protracted court proceedings that opened up every last detail of their private lives.
Employing the racist notion of Super Muslim, judges hearing these bail cases bought the lie that these detainees were so desperate to communicate with terrorists or do something awful that they had to be monitored every second of every day, despite the fact that no allegation had ever been made even remotely tying them to an act of violence. For Moe and Sophie, things that happen in the normal course of a day for most of us – driving through a yellow light or speeding up to pass someone on the roadway, for example – were attributed to nefarious purposes and labeled "counter-surveillance techniques" by the supposedly cunning detainee and his wife.
Muslims Can’t Make Mistakes
While Moe and Sophie deal with the larger threat of deportation, they also received last week another disappointing decision that continues to affix the cape of Super Muslim on Moe’s back. For years, this couple has attempted to loosen the restrictions placed on their liberty, and while many of them have come off, the ongoing surveillance and harassment by officers of the Canadian Border Services Agency (CBSA) combines with the daily indignity of having to turn over one’s computer to be searched, having every email read by the government, and applying for permission to go on vacation outside of Ontario.
What is an honest mistake for most of us becomes evidence of alleged untrustworthiness from Super Muslim Moe. This latest decision arose when the government alleged “serious” breaches of Moe’s conditions.
For example, Harkat must inform the CBSA of any change to his email password so the agency can continually monitor his communications. Following a tornado that hit Ottawa in September, 2018, Moe experienced computer problems. He advised CBSA of his intention to get it repaired after he turned in his computer for the government’s periodic inspection. Before going to the repair shop, he logged out of his email account to prevent technicians from accessing his personal emails. But because everyone was too busy to look at it, he returned home and, after trying three times to log back in, he was locked out.
Like most of us, Moe exercised the “forget password” function and, in order to comply with his conditions, entered his old password twice to regain access to his emails. However, it appears that while inserting the old password, Moe inadvertently and innocently put in lower case a letter that had been previously capitalized. Anyone who has ever dealt with online passwords knows how easy it is for such an accident to happen (especially when some functions don’t spell out the password, instead offering us black bullet points in place of the letters). Indeed, as Federal Court Judge Roussel remarked in her decision, “A non-technical person may not understand the importance of uppercase and lowercase characters when setting a password, which may cause the person to think that the password is the same.”
And that’s exactly what happened here as, seeing that things were working, Moe proceeded. Unbeknownst to Moe, Microsoft send him an email that day (September 28, 2018) to inform him he had changed his password, but it has gone directly and unopened into his garbage emails. Because Moe never saw that email, he was unaware that what he had inadvertently done was in fact a change in password. It appears that one month later, while CBSA was logging into Harkat’s email account to read his emails, they discovered they could no longer enter. A week after that finding, government ministers wrote to Harkat’s lawyer requesting the password change. The response was that there had been no such change, because as far as Moe was concerned, he had re-entered his old password.
Under the Super Muslim Myth, the time during which the CBSA could not enter the account constituted a potentially serious threat to Canadians’ national security. Who knows what kind of communication was going on? But herein lies another piece of evidence that points to the absurdity of, on the one hand, this adherence to Super Muslim mythology, and the actual reality on the ground. If the CBSA only tried to access the Harkat account on October 29, a full month later, that means no one was monitoring his emails for a month. If Harkat poses such an alleged threat, why had the CBSA gone a full month without doing any checking on the account? (Indeed, Roussel notes later in the decision – without understanding the significance of her finding – that “the evidence demonstrates that the CBSA is not availing itself of its right to inspect Mr. Harkat’s computer every three (3) months. Indeed in the last few years they have waited a year between inspections.” Again, if he poses such a threat, why have they been so lax? The question is not asked to suggest the need for the CBSA to be more heavy-handed with Harkat. Far from it. In fact, it is asked to question why Harkat – against whom no evidence of anything even remotely criminal exists – continues to be a victim of the cynical games being played by state institutions driven by a racist inertia.
The email issue was rectified by December 4, but of significance, those with long memories may recall that the sky did not fall in on Canada during this period due to an inability to access Moe’s email account. Nonetheless, the judge found no fault with the CBSA not monitoring an allegedly dangerous individual’s email account for more than a month. Rather, she chastised Harkat for not doing something to fix a situation he knew nothing about, and concluded he had breached his condition, which she concluded “raises issues of trustworthiness and credibility.”
Forgiving Government Incompetence
Throughout the Roussel decision – and this has been the case throughout Harkat’s judicial proceedings, in which judges have made note of the dishonesty, incompetence, and clear lack of expertise of government witnesses, but then gone on to rely on their opinions over Moe’s evidence – we again see that those presenting the case to block loosened restrictions are not terribly trustworthy. Responding to one allegation, the judge notes: “I find there are too many gaps in the Ministers’ evidence that leave too many questions unanswered….there is no objective documentary evidence demonstrating the breach. The witnesses who appeared before me had no personal knowledge of the facts, and they could not provide any additional information on the breach.”
The CBSA had also alleged Harkat was secretly using “InPrivate browsing” on his computer, thus preventing them from seeing every website he may have visited. The Harkats were forced to hire a computer expert to show that this was without foundation, upon which the government informed the court that their “expert” CBSA forensic investigator “could no longer confirm with certainty whether this feature had been used by Mr. Harkat or the computer’s earlier owner.” While the government abandoned their claim of a breach in this instance, and Roussel chastised the government for not figuring this out much earlier, which would have saved 2.5 days of hearings, she did not sanction them for their incompetence.
Roussel also notes that the government has “not presented any evidence that Mr. Harkat has been involved in any threat-related activity since my last review…the danger posed by Mr. Harkat continues to be situated at the lower end of the spectrum.”
Nonetheless, Moe’s attempts to secure changes that would make him more available for jobs that involve computer applications and internet connections are dashed by Super Muslim thinking. Indeed, when the government attempts to force Harkat to do something intrusive that is not included in the laboriously detailed and intrusive bail conditions – and he rightfully refuses – Roussel says she is “concerned by Mr. Harkat’s failure to abide by the spirit of the Order.” As a result, she says that “while Mr. Harkat may wish to have a mobile telephone with internet connectivity for employment purposes, I am not prepared to agree to this change.” Roussel then relies on the testimony of Carl Létourneau – the CBSA “digital forensic investigator” whose flat-footed incompetence is illustrated earlier in the decision – that claims there is no end to the mischief Harkat might be able to get up to with such internet access.
The white supremacist thinking that informs much of judicial decisionmaking in Canada rears its ugly face later in the decision, when Roussel writes in quite the patronizing tone that in 2017, “I noted that Mr. Harkat had complied with his conditions of release since his release in 2006 and that, in order to fully embrace the values of his adopted country, it was important that he be given the opportunity to obtain gainful employment.” (Emphasis added)
Objective observers might wonder if Roussel seriously believes that seeking employment is one of those uniquely “Canadian” values that simply does not exist in “those countries” from which refugees like Harkat flee. As she canvasses the possibility of Harkat using an internet-connected computer in a jobs setting, Roussel then proposes that the following information must be provided to the CBSA should Harkat score such a position (imagine having to inform your potential employer that you need to supply this information to the federal government):
"the name of the prospective employer;
• the duties he will be required to perform;
• the technology he will be required to use and have access to in the course of his employment, including the make and model of the computer, his access to the internet, the use he will make of it, the number of hours a week he will be required to use it;
• the programs he will be required to use to complete his work;
• whether he will be required to use email;
• whether his computer use will be monitored or supervised;
• the employer’s policy with respect to personal use of the computer;"
Roussel concedes that while such a list “may appear overwhelming at first glance, it is important because it allows the CBSA [the same agency whose incompetent technicians she chides but relies on for making her decision] to evaluate whether issues might arise.”
Much of the decision is an instructive manual on how the racialization of state security targets opens the door to the normalization of incredibly draconian surveillance (Sophie Harkat reports that anywhere from 2 to 8 officers follow them on approved “outings”). But Roussel essentially blames Harkat for his plight, concluding that while the frequent and harassing hands-on surveillance of the Harkats – after 14 years of compliance – “may be intrusive, I reiterate that it is an unfortunate consequence of being the subject of a security certificate.”
For almost two decades, the Harkats have dealt with this slow-drip torture. Every minute detail of their private life is part of the Federal Court record and the files housed at CSIS and the CBSA. And it is not at all unlikely that the precedents set in such decisions become the excuse later on for ever greater amounts of government surveillance over a much wider group of people.
That Moe and Sophie survive day in and day out under such intolerable circumstances is a remarkable testament to their love for one another and their still honestly held belief that justice will prevail in their case. In the meantime, much as they are loathe to ask others to do anything on their behalf, they have no choice. In addition to seeking funds to pay legal costs (potential donors can write to firstname.lastname@example.org), they are relying on the support of people across the country to join in on a write-in/call-in day of action June 26 to stop Moe’s deportation to torture and immediately grant him permanent residence based on a now four-year-old application that continues to sit on the Public Safety Minister’s desk.
As of June 26, the Harkats will have faced this terror for 6,048 consecutive days, with no end in sight. Their supporters are asking us to spend five minutes calling and writing to bring this to an end. It truly is not too much to ask.
(an edited version of this story appears in this week's rabble.ca news feed)
(an edited version of this story appears in this week's rabble.ca news feed)
Sophie and Moe just want to get on with their lives. With your support, we can end the campaign of terror being waged against them.