By Matthew Behrens
When Ottawa refugee Moe Harkat tries to enjoy the quintessentially Canadian experience of visiting a family cottage, he has to stage an elaborate dance to satisfy the requirements of one of the most intrusive and insidious state interventions into anyone’s private life in Canadian history.
Each day spent at the cottage, Moe has to check in with a surveillance team of officers from the Canadian Border Services Agency (CBSA), who have been following him since 2006. That’s when Moe was transferred to the strictest house arrest conditions in Canadian history after being held 3.5 years without charge on secret allegations he has never been allowed to see, much less contest.
The dystopian dance works like this: three times a day, Moe walks out of the cottage and up a hill. Parked at the top of the hill is a car with dark-tinted windows, and inside are two fully-kitted CBSA officers (bullet proof vests, weapons at the ready) who sit there all day to confirm he is at the cottage. He waves at them and they wave back. Moe heads into town to search for a pay phone – never easy to find in an age dominated by the cell phone – because he has to “report in” from a landline. Once at that pay phone, he calls the guys in the surveillance car he waved to a few minutes earlier, to confirm he is at the cottage. They thank him, he hangs up the phone, drives back to the cottage, waves at the men in the surveillance vehicle he just called to confirm he is at the cottage, and tries to relax from this maddening bit of spirit-breaking repression. He has to do this two additional times that day. It’s a cruel exercise straight out of the legendary film Cool Hand Luke, where such repetitive, degrading punishments are meant to make someone’s “mind right.”
This is but a fraction of the daily repression faced by the Harkats, who married in 2001 and had never heard of International Human Rights Day until Moe was arrested on that landmark occasion, December 10, 2002. As self-described human rights superhero and Liberal MP Irwin Cotler proudly rose in the House of Commons that day to bloviate about the Magna Carta, “the lifeblood of a democracy,” the “right to life, liberty and security of the person,” and celebrations of “not only of who we are but what we aspire to be,” Moe wasn’t exactly basking in the self-congratulatory glow of the foggy platitudes that normally pepper the House floor with a nauseating odour. Instead, he had entered a made-in-Canada Twilight Zone, a darkened room in which any attempt to brighten his surroundings meant an endless search for a light switch that had long ago been removed.
In 2007, the Supreme Court of Canada ruled that the “security certificate” regime under which Moe had been held was unconstitutional, but in a page out of Kafka’s The Trial, Ottawa simply reworded the state security allegations against Moe, and has carried on with its persecution of him ever since. The Supreme Court heard another challenge to the endless violation of Harkat’s rights in 2014, but in a poorly written, illogical decision, reversed itself from its 2007 findings and upheld the star chamber proceedings. That judicial rubber stamp opened the door to the current proceedings designed to deport Moe to torture in Algeria.
Stasi-Like Surveillance
Having lived with such a collection of multi-layered traumas would make relaxing at the cottage a significant challenge under the best of circumstances. But added to the fear and trauma faced by Moe and his wife Sophie is the permanent insertion of a surveillance regime reminiscent of the Stasi (the notorious former East German secret police) that operates like a nightmare from George Orwell’s novel 1984.
In day-to-day terms, that humiliating regime involves constant attacks on Moe and Sophie’s dignity, involving things most of us take for granted: the ability to use a laptop, purchasing a cell phone, making a U-turn without being reported to the police, getting a job that does not need pre-approval from the CBSA, not having to explain to neighbours why unmarked (but clearly obvious) police cars are constantly parked outside of their residence. The CBSA has Moe’s online passwords so it can check his email account and log any websites he visits.
Moe was held first in solitary confinement for over a year in 2003 at the Ottawa Carleton Detention Centre. He was designated a terror suspect by an alarmist media that was willing to take at their word Moe’s accuser, the scandal-plagued spy agency CSIS. Long before Harkat’s arrest, CSIS (the Canadian Security Intelligence Service) was well known for exaggerating the scale of alleged threats (documented for years by the Security Intelligence Review Committee) , withholding exculpatory information, acting on information from torture, and relying on the word of untrustworthy informants who failed lie detector tests and sometimes engaged in sexual relations with their CSIS handlers (as Moe was later to learn occurred in his own case).
Moe was denied a toothbrush for 10 days, prevented from walking and breathing fresh outdoor air for six months, not able to shave or enjoy any reading material (not even a Koran) for over four months, allowed only one shower per week, and prevented from any contact visits with Sophie. The only human touch he knew was a violent one: strip searches and handcuffing. He was then transferred to the infamous “Guantanamo North” compound in Kingston, ON, where other Muslim men subject to “security certificates” were also held under brutal conditions that led to lengthy hunger strikes and protests that became the focus of then Prime Minister Paul Martin’s cabinet meetings and intensive House of Commons debates. At that time, it seemed like anything would be better than the indefinite, arbitrary detention these detainees and their families were suffering.
The Prison Moves In
In June, 2006, Moe was transferred to a house arrest regime that moved the prison to his home, and made his wife, Sophie, both captive and jail guard. As a “surety,” Sophie had to promise the Federal Court that she would monitor every move Moe made and ensure his compliance with a lengthy list of degrading conditions. If Moe wanted to start up the barbecue, he could not go outside unless Sophie went outside first and monitored his walk outdoors. He was forced to wear an uncomfortable GPS monitoring unit strapped to his leg for almost 8 years, and had to pay for a phone line connected to the system. He was not allowed to ever be alone inside or outside the home. In what could only have felt like the most humiliating infantilization, Moe had to apply in advance for his allowed three weekly “outings,” which could include doctor’s visits, groceries, or anything else that was subject to final approval by a CBSA bureaucrat who had the power to arbitrarily deny any outing.
When Moe and Sophie’s “outings” were approved, they could only last four hours, and they would be closely followed by clearly identified CBSA officers who, in all of their gear, looked just like police officers. This ensured all onlookers that the Harkats were a source of suspicion. Any minute beyond 4 hours could lead to an allegation of breached conditions and a return to prison. The notion of an evening out for dinner and a movie – again, taken for granted by so many – would necessitate ensuring the movie was under a certain length, the restaurant had fast service, and enough sureties were available to accompany the couple so someone could monitor Moe in the event Sophie had to use a public restroom. Eventually, in its magnanimity, the Federal Court did allow Moe and Sophie to use public washrooms and change rooms, but only as long as they went into them together.
Staying in was no picnic either. Two surveillance cameras were installed inside the couple’s home to monitor entrances. All of their mail and phone calls were intercepted by CBSA (including solicitor-client calls, which CBSA regularly recorded despite this clear violation), no wireless devices were allowed, Sophie had to keep her computer under lock and key, the couple were the subject of a curfew, and any visitors to the house required pre-approval from the CBSA. In practice, that meant no one with uncertain immigration status or who came from a country with a secret police would be comfortable visiting the Harkats. Among those the Harkats needed to submit for visitor approval were a newborn nephew and Sophie’s 80-year-old grandmother.
Because CBSA intercepted the mail and took their time making photocopies of everything before dropping it off at the Harkat home, the couple were stopped and ticketed by Ottawa police because they did not receive their new license plate sticker in time.
CBSA would call at all hours of the night if the GPS were not working or show up at their door. They parked for hours in front of the Harkat home and also on their personal driveway. Many of their immigrant neighbours were fearful of the Harkats as a result, and several filed complaints or ended up calling police with their concerns about the sinister-looking, dark-tinted vehicles always idling their motors.
No Birthdays for Moe
When Moe turned 40, a church basement birthday party was organized with 80 people, all of whom submitted their biographical details to the CBSA. All were approved, but Moe was still denied entry because attending his own birthday party was deemed “too political.” Instead, he had a more modest supper with Sophie’s mother, followed to and from the restaurant by 4 CBSA vehicles and 8 officers.
On a number of occasions, officers raided the house, usually in advance of a court review where the Harkats sought to remove some of these conditions. One of those searches was deemed illegal by the Federal Court: Sophie was in the shower at the time as 16 CBSA officers, 2 Ottawa police, and 3 RCMP agents with sniffer dogs conducted a massive operation, the fruits of which they were forced to return.
One summer, Sophie’s mother was kicked out of a campground after CBSA entered and told the property manager that a “terrorist” would be visiting the site.
Maintaining a two-decade relationship under such circumstances is, needless to say, tense. Often, Moe tries to over-compensate, doing things to ensure he is seen by those surveilling him to reassure them he is in compliance with his conditions. Whenever family are gathered, Sophie says she gets upset with Moe, because he is constantly reminding everyone of the conditions he has to follow. “He’s reminding people constantly,” Sophie told the Federal Court in 2017. “It’s a headache. It’s a source of conflict between the two of us. Try to go out and have fun when you have two CBSA agents following you. I’m upset or he’s upset.”
Federal Court Rubber Stamp
Despite all these indignities and rights violations, the judges hearing Harkat’s appeals for some basic human decency continue buying into the racist myths that underlie a deeply embedded Canadian hatred of Muslims.
Indeed, the degrading conditions are based on the racist notion of Super Muslim: that Moe, like his fellow detainees, was so desperate to communicate with terrorists or do something awful that he had to be monitored every second of every day, despite the fact that no allegation has ever been made that he has even considered being involved in an act of violence. 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 – are attributed nefarious purposes and labeled "counter-surveillance techniques" by the cunning detainee and his wife. The racism shown by the Federal Court in always deferring to CBSA and CSIS and never looking at Moe’s consistent compliance with 15 years of impossible conditions was on display last year, when Judge Roussel wrote an appalling decision in which she 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.”
Of course, it is impossible for Moe to get full-time work when any job in which he could be employed – working at Home Depot, for example, or an auto parts supplier – would require him submitting to the CBSA the make and model of every cashier’s computer or hand-held device he needed to use as part of the job. It’s not easy to get hired when you have to explain to your potential employer that a government agency requires this information to ensure that following up on a customer’s inquiry about toilet fittings would not somehow be a ruse to communicate with some terrorist halfway around the world.
The Courts and CBSA are not just needlessly afraid of Moe. They also don’t like Sophie, who happens to be a very outspoken woman who has been crystal clear that her husband is innocent and that the system that continues to oppress them is simply wrong. In other words, the psychological torture which has been so oppressive to both of them has not ultimately worked, because they are not broken. They are still fighting, largely due to the rock that is Sophie Harkat. Her poignant testimony in court is regularly ignored or dismissed. Because she simply stands up for her rights while complying with conditions anyone would consider ridiculous, CBSA has told Sophie that she is “difficult” and “too feisty.”
When in court, Sophie has discussed the humiliation of her work as a crossing guard when little children she is helping get safely to school ask her why the police always seem to be at her house. She has also asked why, if the Court has already approved her and trusted her to supervise her husband, there needs to be constant physical monitoring of the couple whenever they are at home or go out.
But even for a couple as solidly in love and dedicated to one another as Moe and Sophie are, there must be so many times when one or both is at the point of breaking. While many of the most oppressive conditions have since been eliminated due to lengthy and costly court reviews, their effects have been life-changing. The couple who wanted to raise a family suffered numerous miscarriages and severe declines in mental and physical health. Sophie, formerly a well-paid marketing worker, was forced into poverty as she fought for her husband and also dealt with potential employers who, upon googling her last name, were suddenly no longer interested in hiring her. The last costly court review of conditions took over two years of litigation, leaving the couple still having to deal with unique challenges like finding a cell phone that does not act as a GPS tracker for the government but which still needs the approval of the CBSA.
Court’s Deference to Injustice
Meanwhile, the judges of the Federal Court refuse to admit their preferential option for the powerful and their clear bias against this couple. They give a free hand to the incompetent bureaucrats and paper pushers who make a fortune in overtime enforcing the conditions. In a 2017 hearing, Harkat’s lawyer Barb Jackman asked a CBSA supervisor whether he had ever seen the outdated 2009 threat assessment on Moe (which concluded he was at the low end of risk). The supervisor admitted he had not seen that, nor the court decision on Moe’s security certificate.
“How would you know if Mr. Harkat presented a threat to the security of Canada when you’re monitoring him, if you don’t know what the threat is?” Jackman asked. “How can you say the risks are neutralized by compliance with the conditions when you don’t know what the risks are…You don’t really know what the risk is.”
The sheepish supervisor replied, “I agree I don’t really know.”
Nowhere in the ultimate court decision keeping the Harkats living in this dystopian nightmare was there any acknowledgement of such brazen incompetence.
At the same hearing, Jackman presented a list of names of individuals with whom Moe is not allowed any contact. The supervisor in charge of protecting the free world from Moe had no idea who any of the individuals were, had never seen pictures of them, and did not know where they lived or whether or not they were alive. How, Jackman asked, could the CBSA ensure compliance with these conditions if they had no clue about these people? Again, the answer was a sheepish admission that they could not.
When asked why CBSA tends to monitor the Harkats on the weekends when they should be able to enjoy themselves, the CBSA supervisor conceded that it had nothing to do with national security and everything to do with overtime pay. The supervisor also agreed that nowhere in the conditions of release does it state that Moe is to be followed by CBSA officers, but that it’s “a part of our job, to monitor people released on conditions.”
“Is that in writing anywhere?” Jackman asked.
“No,” replied the supervisor.
The supervisor was asked whether, if the court were to relax the bail restrictions, CBSA would continue to follow the Harkats to family funerals, weddings, and the cottage. He replied that they would.
“And why would that be, if the court believes that it’s not necessary to put him under those kinds of restrictions any longer?”
The supervisor had no answer, but it served as another reminder that the agency is one of the few federal bodies without a proper oversight body. CBSA is a law unto itself, just like its Gestapo-like cousin ICE in the U.S., which regularly flouts the law in testosterone-fueled attacks on the rights of refugees.
White-Framing Repression
This thumbnail overview of the Harkats’ daily life illustrates how easily mini police states akin to the former East Germany are inserted into a self-described democratic system. They persist and grow because they are very clearly targeted at racialized individuals and communities who, in a racist society like ours, are automatically deemed suspect. And the benefit of the doubt always goes to government agencies, no matter how often they lie, cheat, deceive, and exhibit sheer incompetence.
Those with lengthy post-9/11 memories will recall that many marched and spoke out vigorously against so-called anti-terrorism measures when they were first introduced, but most of that was within a white, middle class framework. White environmentalists, church groups and unions feared being tarred with the terrorist brush, but once it became obvious that they would not be impacted, most public opposition to such measures disappeared. That white-framing was in evidence from the former Privacy Commissioner George Radwanski, who in 2002 was speaking out against the proposed no-fly lists. When the late Senator Ted Kennedy found he was on a no-fly list, there was outrage that such a match could have been made by airport officials. When things settled down and it was almost exclusively Muslims who were being pulled aside for secondary questioning, those concerns largely vanished. Nonetheless, in opposing no-fly lists, Radwanski ultimately betrayed a white Ottawa bureaucrat’s incapacity to see beyond his world to, for example, the streets of Toronto, where privacy protections never existed for racialized communities.
“We’re not a society where the police can stop you on the street and say ‘your papers please,’” he told the Toronto Star, blithely unaware that this was exactly the daily experience for Black, Indigenous and South Asian people. Indeed, as the Star noted in 2013, “in a city of less than three million people, police filled in 1.8 million contact cards between 2008 and 2012, with details on more than a million people.”
Because Moe, a Muslim man, has been baselessly demonized as a terror suspect, there remains a reticence to speak out against the fact that his every waking moment (and many of his dreams) are occupied with his own private Stasi. A psychological assessment of Moe, which was provided to the Federal Court, dovetails with similar evaluations of those who lived in the former East German dictatorship.
"There are times when Mr. Harkat has experienced recurrent visions on a virtually daily basis over several months of being arrested, incarcerated, deported and tortured,” the report reads. “Sometimes he has visions of being shot by CBSA due to a misunderstanding, minor misstep or accidental violation of his bail conditions. Often, he has been troubled by insomnia and recurrent nightmares with the same themes as his daytime visions. Energy has been chronically low and concentration impaired such that reading is limited to no more than five minutes at a time. Appetite is chronically poor to a point where he has to force himself to eat even one meal a day."
Such devastating findings are never considered when reviewing Moe’s conditions. The conditions must, the Federal Court insists, remain in place until he gets his mind right. There remains no real acknowledgement that, as Moe’s assessment finds, “he is frustrated around secret sources of information being used against him, including of an informant who failed a lie detector test. He has been frustrated that phone-tap evidence was used against him even though the recordings were destroyed and only summaries of the transcripts presented, including of conversations that he was supposedly involved with for which the details are not remotely familiar to him."
The risk to Moe is significant, with the expectation of “further permanent neurobiological changes that will be more refractory to treatment and recovery the longer they continue. This risk is not only to his mental health, but his physical health as well. Chronic stress is associated with increased risk for cardiovascular events (heart attacks and strokes), and suppressed immunity, including susceptibility to infections and cancer. There are also costs to his wife and family, financial costs, including to the Canadian taxpayer, and loss of Mr. Harkat's potential contributions through work."
The danger here is not to Moe and Sophie alone. Rather, their case illustrates only one of the most extreme examples of repressive governmental responses to the justifiable demands to release refugees, immigrants, and anyone else held in the incarceration complex. Recall that in 2006, anything seemed better than Guantanamo North. It turned out that the cure was just as bad as the illness.
The Jail Comes to You
Instead of sending people to jail, we now bring the jail to you. Such a solution is often introduced as one that results in significant cost savings. The CBSA, which has no hard caps on the indefinite detention it is allowed to hold refugees (often extending for years), has established an “Alternatives to Detention” framework that, as described by Constantine Gidaris in “Rethinking confinement through Canada’s alternatives to detention program,” creates a paradigm in which “the mind is subject to confinement without the confinement of the body…. the deprivation of liberty, mobility, and autonomy that is experienced within conventional carceral enclosures is also experienced outside them, albeit in different degrees.”
Gidaris examines the electronic monitoring program (EM) of CBSA which collects and analyzes “real-time location data” of detainees released with the kinds of tracking monitor that was strapped to Moe for eight years. Every movement is recorded and uploaded to a monitoring centre “while seemingly providing detainees with a greater sense of freedom, mobility, and autonomy.”
The CBSA also celebrates its surveillance programs including Voice Recognition, which “uses biometric voiceprint technology to enable individuals to report to the CBSA through a cellular telephone or by using a landline telephone, at agreed upon intervals.” As part of it National Immigration Detention Framework, the CBSA’s initial enrollment capacity of the program – which should be renamed “extension of detention by other means – is 800 for its “Community Case Management and Supervision” program, built with the cooperation of a number of social service agencies, 10,000 for Voice Recognition (a massive piece of data collection and retention with profound privacy rights issues) and 20 for electronic monitoring.
Electronic monitoring is standard for immigration detainees stateside. It’s part of a larger expansion of the prison into the community documented by Michelle Alexander in her must read book on mass incarceration, The New Jim Crow. She refers to it as “e-incarceration”, which “turns entire communities into open-air digital prisons,” peopled by a racialized caste of outsiders who represent big profit margins to the companies involved in developing these technologies of control. Often, it is the individuals themselves who must pay for the “luxury” of not being held behind real prison bars. While Alexander notes that for most people, the concept of house arrest is preferable to the penitentiary, “what does it mean for the future of our communities to celebrate reforms that convert our homes into prisons? Or that turn our neighbourhoods into digital concentration camps patrolled by drones?”
The digital concentration camp that is the home of Moe and Sophie Harkat is not being staffed and enforced on some secret remote island. It happens in broad daylight in one of Canada’s largest cities. It is well documented in approving decisions of the Federal Court of Canada. It is covered occasionally in the media. And it is opposed by over 67,000 people who have signed a petition calling for an end to this nightmare. Yet it will remain in place, and serve as the precedent for expanding those camps, without our concerted, continued resistance. The Harkats are planning further legal challenges to their indefinite detention as well as the illegal efforts to deport Moe to torture. To learn more about how to offer political and financial support, visit www.justiceforharkat.com
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