Canada’s Burning Chambers: A Secret Supreme Court Hearing in October

By Matthew Behrens

On October 11, as many Canadians focus on the best place to purchase a Thanksgiving turkey, the Supreme Court of Canada will be in session, but anyone wishing to attend that day’s hearing will find the Court building empty, and the nine judges missing. Outside of a small handful of individuals, no one will know where the country’s highest court will be sitting or what will be discussed. In a shameful concession to the “national security” agenda, Canada’s Supreme Court will be holding a secret hearing in the same manner as judges in dictatorships from Pinochet’s Chile and South African Apartheid to the burning chambers of the French inquisition (so named because all daylight was blocked out, and only torches were used both to light the rooms and, eventually, to set afire those condemned as heretics). 

The man whose case is not being heard in public that day is beyond tired of secret trials. Mohamed Harkat, arrested on International Human Rights Day in December, 2002, has faced over a decade of secret hearings held by the Federal Court of Canada, from which he and his lawyers have been excluded. Despite the fact that the GPS tracking device that has been strapped to his body for seven years was removed this summer, Mr. Harkat remains subject to a “security certificate” process which applies only to refugees and permanent residents and, like the days of the burning chambers, presumes named individuals guilty, has a lower standard of proof than that afforded Canadian citizens, and dispenses with the standard rules of evidence, allowing judges to base their decisions on information “even if it is inadmissible in a court of law.” Just as the evidence of tortured “witches” at Salem was used to condemn other suspected “witches,” so it is in Canada, wherein the Canadian Security Intelligence Service (CSIS) admitted in a recently released document that having to exclude information gleaned from torture would result in the collapse of its whole security certificate process.

The secret trials regimen was declared unconstitutional by the Supreme Court of Canada in 2007 in the seminal Charkaoui decision, in which the court asked, plainly, how one meets a case one does not know. On October 11, Mr. Harkat will be no closer to knowing the case he has to meet. His partially public hearing will be held on October 10.

It says something about the degraded system of Canadian justice that the nine individuals who have the ultimate legal say when it comes to fundamental issues such as due process and rule of law will be sitting in secret session, adding go the growth of a parallel secret judicial system that is bound to grow and flourish along with other trends toward secrecy in Canadian government. 

TRENDING TOWARD SECRECY

Indeed, the use of secrecy, especially under immigration legislation, has grown in leaps and bounds. During this fall’s public portion of the secret hearing, the Canadian Council for Refugees (CCR) and the International Civil Liberties Monitoring Group (ICLMG) will point out that immigration tribunals are increasingly accepting secret information that cannot be contested by refugee claimants. Under Section 86 of the Orwellian Immigration and Refugee Protection Act, the Immigration Minister may, using the exact same procedures of the security certificate, apply to introduce secret allegations. There there have been over 100 such cases since 2008. As the CCR and ICLMG note out in their Supreme Court submission, “Canada and other states appear to be normalizing what was intended to be an exceptional procedure, expanding [secrecy’s] use in other areas, including in criminal trials.” As a result of this increasing acceptance, officials worried about embarrassment or criticism of their decisions are over-claiming national security. In addition, there is the “development of a [secret] body of jurisprudence available only to the court and the Minister…[but] not to public counsel; [and] the appearance of an inordinately close relationship between the Court and the state which serves to undermine confidence in the judiciary.” 

While it is no secret that judges are members of the elite and are usually deferential to power, the secret hearing process elevates their coziness with state agencies to obscene levels. Annual findings by relatively toothless “oversight” agencies like the Security Intelligence Review Committee and the (now abolished) office of the CSIS Inspector General conclude that CSIS is woefully inept when it comes to identifying real security threats, engages in racial profiling, trades in torture, exaggerates to make a case, withholds evidence that may prove someone’s innocence, and commits huge errors of fact and judgment. Despite thesefindings, the courts (and the media) continue to defer to CSIS requests for secrecy and non-disclosure. Swept aside are appeals for openness by individuals whose lives are plagued by the constant itch of not knowing what is being used to deport them to torture or keep them under a permanent state of house arrest and intrusive state surveillance.

Apart from the odd grumbling of judges who “wrestle” with conducting secret hearings without the detainee or his lawyer present (former Federal Court Judge James Hugessen famously remarked that he and others involved in such proceedings feel like “a fig leaf”), almost all of them slog on anyhow in a morass of bureaucratic inertia whose banal nature would be a subject of great interest to Hannah Arendt.

BOOTING THE MAGNA CARTA

That Canadian judges are rejecting 800 years of legal tradition dating back to the Magna Carta is certainly not new. Two Supreme Court judges (Taschereau and Kellock) served state interests in the post-war Red Scare, presiding over a mid-1940s inquisition in Ottawa that was marked by a presumption of guilt; the indefinite, incommunicado detention without charge of individuals who were denied access to counsel; detainees threatened with being shot; and compelled testimony under threat of contempt. Notably, nine people declared guilty by the judges at the inquiry were later acquitted in court and two never went to trial. (Judges who engaged in similar practices in Germany during the Third Reich would eventually find themselves in the dock at Nuremberg.)

                  More recently, significant portions of the inquiry into the torture of Canadian citizen Maher Arar (2004-06) were conducted in secret by Ontario Associate Chief Justice Dennis O’Connor, while former Supreme Court Judge Frank Iacobucci shamefully presided over a completely secret inquiry into Canada’s role in the torture of Canadians Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin. Not a single punctuation mark of a single document was ever released to the men, their lawyers, or the general public in what can only be described as one of Canadian history’s great acts of judicial subservience to fear  and the unsubstantiated claims of its paranoid spy service. The men are now engaged in protracted legal proceedings to seek accountability from the government, a process again cloaked in efforts to retain or redact as much as possible any potential disclosure that would document the government’s complicity in torture. 

                  Stateside, some judges have spoken out. One Detroit judge showed the kind of courage rare among his breed when he stared down orders from Washington to keep deportation hearings of individuals suspected of terrorism bound in secrecy. With five simple words, Judge Damon A.  Keith earned himself a spot on the bright side of history when he began his ruling in the case of Detroit Free Press v. Ashcroft by reminding all parties concerned that  “democracies die behind closed doors.”

                  Similarly, in 2005, U.S. District Judge John Coughenour of Seattle, in sentencing Ahmad Ressam to prison for his apparent role in a plot to bomb Los Angeles airport, made a cogent point often lost on his fellow judges when he opined: “We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel, or invoke any proceedings beyond those guaranteed by or contrary to the United States Constitution…We can deal with the threats to our national security without denying the accused fundamental constitutional protections.”

However, having the odd judge pipe up is not at all comforting when the systemic trend is toward the burning chambers.  Following the eventual fall of the Pinochet dictatorship in Chile in 1990, a truth and reconciliation commission asked how it was that judges who had previously upheld the rule of law reverted to rubberstamping the dictatorship’s decisions and refusing to hear individual and family habeas corpus applications to determine where, exactly, their loved ones were being held and if in fact they were still alive.

JUDGES AS POLITICAL CREATURES

                  The commission found “legal oversight was glaringly insufficient with respect to the personal rights that were being violated by government agents to an unprecedented extent. The judiciary, which in view of the Constitution, the law, and the nature of its functions, was the government institution called to protect those rights, failed by not acting more forcefully. Moreover, they failed to do so even though from the beginning churches, lawyers, the victims' relatives, and international human rights agencies were furnishing the courts with information on actions by government officials that violated human rights. The country was surprised to see the courts take such a stance, for it was accustomed to regard the judiciary as a staunch defender of the rule of law.”

                  In defiance of the contemporary record and all norms of logic, the president of Chile’s Supreme Court, on March 1, 1975, boldly declared: “With regard to torture and other atrocities, I can state that here we have neither firing squads nor iron curtains, and any statement to the contrary is the product of a press that is trying to propagate ideas that could not and will not prosper in our country.” He denied the existence of forced disappearances, and complained that the large number of habeas corpus actions that had been introduced prevented the courts from dealing with “urgent matters.”

                  “Urgent matters” and “national security” remain the buzzwords around the growing secrecy trend in many Canadian government circles, from Parliament (where committees are spending at least 25% of their time in secret session) and the denial of requests under the Access to Information Act to the erasure of documents from government websites. At the same time, CSIS annual reports before 2000 are no longer online (one can now call directly to get copies and, no doubt, have your name  placed in a database), and the Arar Commission of Inquiry hyperlink now goes to a financial services website.

                  Suzanne Legault, Canada’s Information Commissioner, recently noted that although the Access to Information Act is celebrating 30 years, it is “tired and out-of-date. Worst of all, over that period our access to information rights have been slowly eroded by a variety of constraints, practices and amendments to the act.” Incredibly, neither the House of Commons or the Senate is subject to access to information requests. (http://www.thestar.com/opinion/commentary/2013/06/27/bring_canadas_parliament_under_access_to_information_act.html).

“When we have access legislation that works properly, we have citizens who are better informed and, as a result, more fully engaged as participants in their democracy,” Legault said.

 While recommendations to update the Act will be brought before a less than welcoming Parliament this fall, there remains the issue of Canada’s top judges meeting in their burning chamber. While one of the judges who presided over the Salem Witch Trials, Samuel Sewall, famously apologized for his role in condemning the innocents, it was too late for his victims. Canada’s secret trial detainees, Canadian returnees from torture seeking accountability and justice, and the growing number of refugee claimants caught up in the Kafkaesque secret hearing process, cannot wait years for an apology that may never come. They need judges of character and conviction who will acknowledge the truism that democracies die behind closed doors, and demand an immediate halt to the abusive practices of bureaucracies that have become too easily seduced by the lure of secrecy and the catch-all claim of national security.

The Campaign to Stop Secret Trials in Canada, in conjunction with Justice for Mohamed Harkat, is inviting people to attend the public hearing on October 10 in Ottawa, and to protest the secret hearing on the 11^th both in Ottawa and in front of court buildings across the country.

                 

Canada Aids and Abets the Spectre of Nuclear Terrorism

By Matthew Behrens

Earlier this year, Michael Walli made a blunt confession in a Tennessee court. “I was employed as a terrorist for the United States Government,” he told the judge hearing his case. And sure enough, Walli is facing down a potential 35 years in prison for what his prosecutors successfully argued was an action that fit the “federal crime of terrorism.”

            Walli is an army combat veteran of the U.S. invasion of Vietnam, and is certainly  not the first to take some personal responsibility for America’s genocidal occupation and relentless bombing of Southeast Asia  (with at least 3 million murdered). Indeed, as the recent book Kill Anything that Moves reminds us, American military units were committing so many atrocities that the Pentagon opened up its own, secretive war crimes investigation unit. 

            But his participation in such crimes is not what led Walli to that Tennessee court. Rather, it was a peaceful protest against nuclear terrorism and the U.S. construction – in clear violation of the nonproliferation treaty –  of a new generation of nuclear weapons. Unlike Iran, the U.S. has used – and threatened to use – nuclear weapons for almost 70 years, in the form of atomic bombs as well as depleted uranium-coated ammunition that has left a cancerous wasteland behind in Iraq, among other countries where it has been used by U.S. and NATO forces.

            Walli, joined by Sister Megan Rice (aged 82) and Greg Boertje-Obed, all veteran peacemakers, entered the Y12 nuclear weapons site in Oak Ridge, Tennessee on July 28, 2012, cutting through four fences and making their way right to the Enriched Uranium Materials Facility which, as the venerable magazine Nuclear Resister notes, is “the largest storehouse of bomb-grade uranium in the world. They marked the building with blood, painted disarmament messages on the wall and hung banners. Symbolic of beginning to transform swords into plowshares, they also hammered a few chips of concrete from the building’s foundation before being seen by security guards and arrested.”

            It was the latest in a 33-year legacy of scores of similar protests known as Plowshares Actions that have directly confronted militarism in its most physical forms, from pouring blood on B-52 bombers to hammering on nuclear weapons nose cones at a General Electric factory in King of Prussia, Pennsylvania. All such actions have been well-planned, almost always involve a faith-based statement, and are committed to nonviolence.

            On June 20 of this year, Nobel Peace Prize winner Barack Obama, according to an Associated Press dispatch filed from Berlin, appealed “for a new citizen activism in the free world” to reduce nuclear stockpiles and confront climate change. Yet his Attorney General has piled on the charges against the Plowshares activists who were engaging in just such citizen activism. All are scheduled to be sentenced in September. While lengthy prison sentences have often been the fate of those confronting the nuclear state, the equation of nonviolent protest with terrorism is consistent with what critics have long argued is one of the main purposes of so-called anti-terrorism legislation: squashing dissent.

            In his usual unctuous fashion, Obama’s dishonest speech in Berlin belied the facts of nuclear weapons development. According to the Stockholm International Peace Research Institute (SIPRI), at the start of 2013 eight states possessed approximately 4,400 operational nuclear weapons. Nearly 2,000 of these are kept in a state of high operational alert. SIPRI also notes that if all nuclear warheads are counted – operational warheads, spares, those in both active and inactive storage, and intact warheads scheduled for dismantlement – the United States, Russia, the United Kingdom, France, China, India, Pakistan and Israel possess a total of approximately 17,270 nuclear weapons. As SIPRI indicates in their 2013 annual report, the five leading nuclear weapons powers “appear determined to retain their nuclear arsenals indefinitely.” Last year, NATO concluded that nuclear weapons would remain a core component of their arsenal and strategic planning (with no peep of protest from Canada).

            Canada’s response to this reality is, among other activities, a secretive working plan to ship large amounts of bomb grade uranium from Chalk River through the Ottawa Valley and to the United States for “reprocessing.” Anyone who thinks this uranium will not wind up in a new nuclear weapon might be interested in some oceanfront Arizona property. Until 2008, Canada had mined more uranium than any other country in the world – including the raw materials for those first flashes of unforgettable fire that decimated two of Japan’s civilian cities during World War II – and now accounts for over 15% of worldwide production. Among its largest clients are countries that continue to violate the non-proliferation treaty. At the same time, those who are front-line victims of the chain of nuclearism are indigenous people who have mined the uranium and had its waste dumped on their lands.

Worldwide war spending, including for nuclear weapons, now tops $1.75 trillion, an amount perhaps so infinite that it becomes meaningless. As hunger and other social ills plague billions of people, few in the political world dare question this massive waste of resources,  including the over $20 billion annually flushed down Canada’s own rathole of militarism. Indeed, the official NDP opposition last ran on a platform of equaling the Harper government’s war spending.

            As we approach the landmark days in August marking the anniversaries of the murderous use of atomic weapons against the undefended cities of Hiroshima and Nagasaki, it is a good time to not only reflect on the nature of nuclearism, but militarism itself. We must also remember the firebombing of Tokyo and Dresden, the napalming and carpet bombing of Southeast Asia, the NATO terror bombings of the former Yugoslavia, Afghanistan and Iraq – clearly war crimes as defined at Nuremberg – as well as all atrocities supposedly committed in the name of religion, freedom, and democracy.

            Militarism creates its own state of permanent exception: anything done in the name of “national defense” is above the law, any calls for accountability are laughed off as unpatriotic, and resistance is treated as heresy. While eminent scholars Richard Falk and Robert Jay Lifton once argued that nukes were “indefensible weapons,” perhaps it is time to shift our frame to the whole business of war as not only indefensible, but completely incompatible with democracy. Shifting the language might help as well, reminding people that War is Always Terrorism.

 Canada’s own War Department, it was recently revealed, is so bloated, so over-funded, that it has been sitting on a pile of over $2 billion in unspent cash. While social programs suffer, the homeless die on Canadian streets, and women cannot find shelter from male violence, the War Department remains a sinkhole of taxpayer monies, the largest single use of discretionary federal spending and one that is increasingly immune to oversight given its refusal to share details – even with officials such as the Parliamentary Budget Officer – of its operations and spending plans. Indeed, the Ottawa Citizen reports that former CSIS head Richard Fadden, now a deputy minister at the War Department, has recently written to say he will not provide Parliament with any details on new warships, armoured vehicles, and other unnecessary purchases.

            All this serves as part of a long-standing trend in which democracy is sacrificed on the altar of a war economy.  Whether it is the clear deception that the Harper government continues to employ to try and sucker Canadians into spending scores of billions on stealth fighter bombers, shutting down Parliament to prevent hearings on Canadian complicity in the torture of Afghans, or the secretive plans to ship by truck highly radioactive uranium down Highway 417 along the Ottawa River so the U.S. can continue to upgrade its nuclear weapons, it is clear that the objections of citizens have  been pushed to the side as an unwanted annoyance.

            This is, of course, not new. Indeed, shortly after the passage of Canada’s Anti-Terrorism Act, resisters against militarism, who were holding weekly vigils in 2002 to transform Toronto’s Moss Park Armoury into housing for the homeless and underhoused, found "Security Zone in Effect” signs around the perimeter, language coming directly out of the Anti-terrorism Act and clearly aimed at the organizers from Homes not Bombs. Similarly, at Hancock Air Force Base in New York State, special injunctions seeking to bar peaceful protesters from the entrance have been issued to maintain the silence around the drone strikes that are launched from within. At protests outside Canada’s drone manufacturer of choice, L3 Wescam, protesters were threatened with civil action for nonviolent trespass. 

            The antidote for such diseases as militarism and the secrecy that undergirds it is democratic participation, perhaps through education, boycott and protest. For others, it may take the form of direct interference with the tools of global genocide via Plowshares Actions or the nonviolent civil resistance action that last week saw 23 people arrested at a Honeywell plant in Kansas City, where key components for that new generation of nuclear weapons are being developed.

            Not everyone is prepared to risk jail for their conscience. But at the very least, we can support those who, with love in their hearts and a passion for justice that burns brighter than any weapons flash, continue to push back against the state of exception called militarism. One thing everyone can do is write a letter to members of Transform Plowshares now looking at being jailed until 2048 – essentially life imprisonment –  for their simple act of saying “No.”. They are also encouraging people to send letters to the judge who will sentence them in September. More information is available at http://transformnowplowshares.wordpress.com/

           

  

              

              

Thick as A Brick: Disturbing Questions in RCMP Canada Day Bust

(July  8, rabble.ca)

By Matthew Behrens

The July 1 arrests of BC residents Amanda Korody and John Nuttall – charged with planning to blow up a pressure cooker cluster bomb at the BC legislature – raise many disturbing questions about the nature of the Canadian government’s “counter-terrorism” operations. Equally troubling has been media coverage playing up hot-button themes that trigger fears of marginalized people, whether they be drug addiction and reliance on social assistance to heavy metal music and the popular catch-all description for anyone who doesn’t quite fit in to a sick society: mental illness.

   As anyone can gather from news reports, the two suspects have not trod the easiest of paths, and the pair’s friends doubt they would be capable of planning, much less executing, the alleged acts. Their right to privacy has also been invaded, with media thumbing through their personal effects in an apartment that, remarkably, was not taped off as a potential crime scene by the police.

   Interestingly, following a month of revelations about massive spying on the global citizenry, the attempt by the Mounties to scare up a little self-serving attention by trumpeting themselves as The Heroes Who Saved Canada Day appears to have fallen flat, as many are questioning what role undercover operatives may have played in facilitating the apparent attack. RCMP Assistant Commissioner Wayne Rideout noted at the press conference announcing the arrests, “We employed a variety of complex investigative and covert techniques to control any opportunity the suspects had to commit harm. These devices were completely under our control, they were inert, and at no time represented a threat to public safety.”

   In other words, they appear to have had someone on the inside with a great deal of influence over events, either a Mountie or someone from CSIS, the spy agency that  allegedly spoke to the Mounties about the case in February. As the Vancouver Province noted in an editorial, “On April 2, police had enough evidence leading to charges of facilitating a terrorist activity and conspiracy to commit an indictable offence, but the couple was not arrested. On June 25, there was enough evidence for Nuttall to be charged with making or possessing an explosive substance, but again there were no arrests.” Did the RCMP stagemanage things so that the connection to Canada Day would provide them with a blast of patriotic coverage?

Sting Operations

   The questions point to practices south of the border, where the great majority of so-called terrorism arrests are in fact set up by and facilitated by the agents who then bust them: the FBI. A 2011 investigation by Mother Jones magazine examined the FBI strategy of “pre-emption” and “disruption” –  the latter a term used by the RCMP in the present case – and found that the agency targets “tens of thousands of law-abiding people, seeking to identify those disgruntled few who might participate in a plot given the means and the opportunity. And then, in case after case, the government provides the plot, the means, and the opportunity.”

   Mother Jones quotes lawyer Martin Stolar, who defended one man caught in a 2004 FBI sting, as noting that with many of the terrorism cases, “defendants would not have done anything if not kicked in the ass by government agents. They’re creating crimes to solve crimes so they can claim a victory in the war on terror.”

   The magazine points out that with three exceptions, “all of the high-profile domestic terror plots of the last decade were actually FBI stings,” all of which tend to target socially marginalized individuals.

   Were the BC arrests part of an RCMP/CSIS sting operation?  Some recall that the so-called Toronto 18 case may never have gotten off the ground without the able assistance of undercover, paid government informants who facilitated key elements of the case. In the case of Mr. Nuttall, his paintballing friend was quoted as saying, “Personally, I think he was hanging out with the wrong people and they screwed with his head a little bit.” Was one of the apparent “wrong people” a government agent encouraging Mr. Nuttall? And is the RCMP above staging terrorism arrests?

History of Illegal Acts

If history is any indication, the answer would be no. Much of the Mounties’ lengthy history of corruption, illicit activity, and outright lawbreaking was summed up nicely in a 1970 memo from then RCMP Commissioner W.L. Higgitt. Labeled “RCMP Protection for Members Engaged in Sensitive or Secret Operations,” the Commissioner wrote: “Though it has not been the subject of general conversation, and should not be, it may have been considered necessary in the past, and may continue to be necessary in the future, to transgress the common, civil, or criminal law of the Country in order to work effectively or to achieve the desired results in a given case. More recently it has come to my attention that some members involved in delicate operations are concerned with the protection they and their families will receive in the event that an operation goes sour and they become subject to civil or criminal processes as a result.”

Later in the memo, the Commissioner advises that “where the member acts within the scope of the direction or the expressly approved plan, he will be protected to the greatest extent possible from criminal, quasi-criminal or civil responsibility. In the event complete protection cannot be afforded, a solicitor will be appointed to protect the member’s interests. The Force will accept responsibility to pay any fine or reward levied against our member. In the event of incarceration for a period of time, the member will be paid as usual and on release will be employed again by the Force….Information contained herein should be disseminated on a ‘need to know’ basis to the members of your command.”

This attitude of impunity for crimes committed riddles the RCMP like a cancer. It is why the RCMP authorized the questioning of Canadian Abdullah Almalki, then detained in Syria, knowing those questions would lead to his torture, without a thought for his human rights, much less the complicity in torture provisions of the Criminal Code of Canada or Canada’s legally binding obligations under the Convention Against Torture.

Things are no better at CSIS where, as investigative reporter Andrew Mitrovica pointed out in his expose Covert Entry, Canada’s spies have "routinely broken the law, treating the rights and liberties of Canadians as no more than a nuisance...[it is] riddled by waste, extravagance, laziness, nepotism, incompetence, corruption and law-breaking." There is a culture of impunity at CSIS, whose agents often refer to a Ways and Means Act: "if you have a way to get things done, the means -- legal or not -- are justified."

Throwing in Islam

Meanwhile, less attention has been paid to pathetic attempts to throw Islamic references into the mix, with desperate efforts to find a landlady or neighbor who can testify to hearing loud “Islamic” recordings coming from the basement and the RCMP’s bizarre contention that although there is no international connection, the two appear to be “Al-Qaeda-inspired” and “self-radicalized,” two canards that have little connection to reality. (While the Globe and Mail was invading the couple’s privacy, they reported on finding amongst their books a copy of the Bible, George Orwell’s Animal Farm, and albums by Jethro Tull and Nine Inch Nails.)

   “She was into the rave scene, and then she became goth, then she was a big activist, then she was someone who worked out hardcore,” a friend of suspect Amanda  Korody was quoted as saying. “Before he was a proud Canadian,” said a friend of John Nuttall.  “Later he said, ‘All I care about is Allah’ and that Canadians and Americans shouldn’t even be in Iraq or Afghanistan at all.” 

   Taken together, these quotes represent a broad swath of Canadian opinion and experience, with the underlying brush that now tars as tainted anyone associated with such activities or beliefs.  Yet, unlike some leaders in Canada’s diverse Muslim community, no one from Canada’s goth or workout scenes has been called upon to condemn the alleged acts or to engage in RCMP “community consultations”. Nor is it likely that LA Fitness chains will now be infiltrated by undercover agents to root out the discontented health nuts pedaling their sweaty way atop an elliptical while reading rabble.ca columns on their ipads.

   Continual references to the two as apparent “converts” to Islam begs the question: what religion were they following during previous years of mixed up lives, and why has that not been part of media reporting? It also plays into the insidious idea that, regardless of how many times Muslim community leaders plead that they are loyal and peaceful Canadians, the “influence” of their religion is what is ultimately dangerous, a powerful subtext that is repeated with each new scare headline about the growth of Islam in Canada (now estimated at a whopping 3.2% of the total population). In other words, it is bad enough when people born Muslims are alleged to be involved in nefarious activities; it appears to be even worse when “one of ours”, i.e., white Canadians, are sucked into the faith. Such pernicious thinking underlined much of the Red Scare: it was not so much the danger of Communists themselves as it was their ability to infect our precious bodily fluids with their subversive thoughts, and before one knew it, former boy scouts were marching against the bomb and for civil rights.

Mounties Want You to Like Them

   Like the scandal-plagued CSIS, the RCMP is desperate for good press these days, and the language in their early July press conference verged on a plea to like them on Facebook.  “These arrests are another example of the effectiveness of our Integrated National Security Enforcement Team who worked tenaciously to prevent this plan from being carried out,” said RCMP Assistant Commissioner James Malizia, perhaps a shout-out to CSIS, still reeling from revelations in late May that they failed to inform the RCMP about the Canadian navy’s Jeffrey Delisle selling secrets to the Russians. 

   But the RCMP love-in that followed the arrests of two people in the alleged VIA Rail plot in April does not appear to have been replicated here. (In April, NDP leader Tom Muclair discarded the niceties of presumption of innocence when he led a standing ovation in the House of Commons for the Mounties after he said, without offering any proof of the allegations, that “I’d like to begin by thanking law enforcement officials, as well as a brave religious leader from the Toronto Muslim community who, as we learned yesterday, helped to prevent a potentially devastating attack on Canadian soil.") 

   In a final irony, the week before the Mounties rode to the rescue to save Canadians from folks who allegedly planned to “produce explosive devices designed to cause injury and death,” those very same weapons, cluster bombs, were the subject of an ongoing attempt by Ottawa to water down the Convention on Cluster Munitions in Senate hearings. Rather than ratifying the convention as is, Ottawa has introduced a range of measures that, as the Mennonite Central Committee points out, “Creates loopholes and exceptions on the use of cluster munitions that undermine the Treaty as a comprehensive ban on an inhumane weapon; omits many of the positive obligations of the Treaty, including the destruction of stockpiles; the promotion of Treaty norms; the prohibition of investment in cluster bomb production; and the provision of support for victims.” 

   Ultimately, a government that seeks to enable state use of cluster munitions appears possibly involved in an effort to encourage two hapless souls to build such a bomb, then arrest the couple as a notch in the war on terror, and convince Canadians that the authorities have decent human values at their core. Such logic would appear, in the words of a song in Mr. Nuttall’s Jethro Tull collection, to be thick as a brick.

Canada Downplays Persecution of Burma’s Rohingya Muslims

(July, 2013, MuslimLink)

By Matthew Behrens

            While the Harper government imposes stricter sanctions on Iran, it is opening up trade and diplomatic relations with Burma, despite that government’s ongoing oppression of a Muslim minority that has led to well-placed charges of ethnic cleansing and crimes against humanity. Burma may soon become the only nation on the planet that limits family size based on religion (with a revived policy restricting Muslims to two children), yet Canada is forging ahead with plans to open an embassy and full-time trade commission in Rangoon.

            According to an April, 2013 report by Human Rights Watch (HRW), Burma’s Rohingya Muslim population has been under attack by ethnic Rakhine Buddhists who have killed hundreds, displacing over 100,000 Muslims while the Burmese government appears at best to have stood back and refused to intervene, and at worst to have encouraged the looting, rape, and murder of Muslims in that country. The HRW report was released the same day that the European Union lifted long-standing sanctions against the Burmese government, best known for the lengthy military dictatorship’s brutal repression and the long-time house arrest of opposition leader Aung San Suu Kyi, who has been notably silent on the issue.

            The majority Buddhist country has long refused to recognize the status of the Rohingya – indeed, they were stripped of their citizenship in 1982 – declaring them illegal immigrants who should be removed from the country, and enforcing discriminatory laws that prevent employment and freedom to move, such as the recent proposal that would ban Muslim men from marrying Buddhist women.  British MP Rushanara Ali recently wrote that the Rohingya, whose heritage in the area can be traced to the 7^th century, have been designated by the United Nations as “one of the most persecuted minorities in the world.” 

            A long history of discrimination forms the backdrop to the massacres and human rights abuses documented in the 153-page report, “All You Can Do is Pray: Crimes Against Humanity and Ethnic Cleansing of Rohingya Muslims in Burma’s Artakan State.” HRW documents how the Burmese government has created “a humanitarian crisis” with “coordinated attacks on Muslim neighborhoods and villages in October 2012 to terrorize and forcibly relocate the population. The tens of thousands of displaced have been denied access to humanitarian aid and been unable to return home.” HRW’s deputy Asia Director added in a press statement, “the government needs to put an immediate stop to the abuses and hold the perpetrators accountable or it will be responsible for further violence against ethnic and religious minorities in the country.”

            On October 23, over 70 Rohinya Muslims were massacred in Yan Thei Village. HRW reports, “Despite advance warning of the attack, only a small number of riot police, local police, and army soldiers were on duty to provide security, but they assisted the killings by disarming the Rohingya of their sticks and other rudimentary weapons they carried to defend themselves. Included in the death toll were 28 children who were hacked to death, including 13 under age 5.”

            The October, 2012 atrocities were preceded by earlier destruction of mosques, mass arrests, the razing of villages, and killing of residents. Since the 1990s, UN special rapporteurs have identified and condemned such abuses as “widespread,” “systematic,” and resulting from “state policy”, while new technology confirms what governments seek to deny or downplay:  HRW last year obtained satellite imagery of areas affected by the violence, which showed the destruction of over 4,800 structures across some 350 acres of largely Muslim property.

            “Many of the displaced Muslims have been living in overcrowded camps that lack adequate food, shelter, water and sanitation, schools, and medical care,” the reported continued. “Security forces in some areas have provided protection to displaced Muslims, but more typically they have acted as their jailers, preventing access to markets, livelihoods, and humanitarian assistance, for which many are in desperate need.”

            Attacks have continued unabated, and while Aung San Suu Kyi, considering a run for the presidency, has been extremely cautious, offering only tepid, bland remarks about respecting the rule of law and not wanting to take sides, President Thien has stoked the flames by suggesting the Rohingya all be placed in refugee camps or expelled from the country.

            A month before the October 2012 massacres, the Harper government send a trade delegation, including representatives of the Bank of Nova Scotia, Manulife Financial, and Skywave Mobile Communications. While Ed Fast, Minister of International Trade, has warned that Burma-bound corporations should be cautious because of the fluid economic situation, he has been non-specific on the Rohingya’s plight. “We’ve made it clear that as we engage in trade and investment relationships around the world that we also expect our partners to respect basic human rights, respect democratic processes,” Fast said in a prepared statement, a common shout-out to rights that has little effect as investment begins to pour into the country and there appear to be no sanctions on the horizon to ensure human rights compliance.

            While the government of Canada insists that trade is the mechanism that opens the door to democratic rights (a claim that has not worked well in China, where Canadian Muslim Huseyin Celil remains detained because of his religion), British MP Rushanara Ali declared “The international community must push the Burmese government to amend its 1982 Citizenship Act to ensure that all persons in the country have equal access to citizenship and are not discriminated against on grounds of ethnicity and religion.” The United Nations last month also called for full citizenship status as well, noting the Rohingya remain segregated in camps that they are not allowed to leave.

            Such a specific recommendation to end the violence against Muslims in Burma is not apparent in vague Canadian statements. Canada’s language on the attacks in Burma has been instructive, carefully worded in a manner that some might view as not wishing to harm investment opportunities by insulting the current government. While Canada’s Office of Religious Freedom has in recent months issued statements with strong language – “Canada Condemns Iran’s Continued Religious Freedom Violations, Including Persecution of Baha’is”,  “Canada Condemns Church Bombing in Tanzania” – its March statement on Burmese atrocities was more measured:  “Canada is concerned by recent reports of deadly violence targeting Muslims in Meiktila, Burma.”

            Such language appears to be a deliberate choice that sacrifices the rights of the Rohingya Muslims to the niceties of diplomatic and commercial engagement. It is also clear from a long line of similar statements that Canada downplays the violence that both now and historically targets Burmese Muslims. Indeed, in a 2011 speech to the UN, Foreign Affairs Minister John Baird declared:  “We respect state sovereignty, but Canada will not ‘go along’ or look the other way when a minority is denied its human rights or fundamental freedoms.” Laudable as the sentiment is, Baird went on to condemn Iran for “persecution” of women, Christians and Bahai, but said in the same breath that in Burma the regime simply “restricts the activities of Muslims.”

            While Canadian companies line up to reap the riches Burma may offer, Human Rights Watch lists a series of recommendations that Canada and other nations should be pushing for, from holding to account those behind the atrocities to new legislation upholding the rights of all Burmese Muslims, immediate lifting of all restrictions on freedom of movement, unhindered humanitarian agency access, an independent international mechanism to investigate crimes against humanity, and a return of displaced persons to their homes.

Bureaucrats Find Secret Trial Process “Too Protective of Rights”

 

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.