The Federal Court of Appeal awaits arguments on whether Canada can continue to ensure four Canadian Muslim men remain arbitrarily detained forever under conditions akin torture. One judge notes "Canadians are dying or
at risk of dying every day this matter is adjourned.”
By Matthew Behrens
On
February 12, 2023, the Government of Canada chose to prolong the torturous
conditions endured by four Canadian Muslim men arbitrarily detained in
northeast Syria. By launching an appeal against a Federal Court repatriation
order which concluded the four had for years been “imprisoned against their
will without charge or trial,” Ottawa sought to extinguish the Charter rights
of Canadians who, according to Federal Court Judge Henry Brown, “are dying or
at risk of dying every day this matter is adjourned.”
In an equally
disturbing development, the Federal Court of Appeal agreed on March 14 to place
a stay on further repatriation efforts pending the outcome of the appeal, to be
heard March 27. When weighing whether irreparable harm would come to the
Canadian government if it were forced to repatriate four Canadian men held
under conditions the UN describes
as “akin to torture,” the Court of Appeal shamefully sided with Ottawa based on
the government’s paper-thin House of Cards arguments, built on an astounding collection
of lies, unfounded speculation, and an unspoken but very clearly enunciated Islamophobia
(detailed below). “There may be additional harm suffered by [the detainees] as
a result of the delay, but that delay will be short,” the Court of Appeal callously
concluded.
In language normally
reserved for nuclear waste, the appeal paints the uncharged detainees as an alleged
threat to be “mitigated”. They are “unnecessary” human beings unworthy of
assistance. Despite fully knowing for years the dire conditions of these
arbitrarily detained Canadians – and despite the repeated pleas of US
officials, including President Joe Biden, to repatriate all the detained foreign
nationals in northeast Syria – Canadian government lawyers argue that
repatriations should only occur if “absolutely necessary.”
Canada’s
Orwellian appeal employs apocalyptic language while claiming that keeping these
long-suffering men under brutal conditions is actually in their best interests since
efforts to secure their release “could in some way result in harm to” the detainees.
Ironically,
on January 19, 2023, the day before the original repatriation order was
released, the federal government confirmed a settlement to repatriate 19 women
and children who had originally been connected to the same court case. Justice
Brown was quick to point out in his decision that “the legal principles
applicable to the Canadian men are the same as those applicable to the Canadian
women and children.”
This
discriminatory attempt to separate the men from the women and children comes on the heels of a concerted public
relations effort to undermine the factual integrity of the landmark January 20
court order. Led by CBC and Globe and Mail reporters, a series of grossly
inaccurate and inciting stories flew in the face of the publicly available
court record. In the worst tradition of Islamophobic writing, they tarred all
Canadian detainees with the same inflammatory brush, with headlines screaming
about returning “Isis members” coming to terrorize Yazidi refugees while
reviving long-dismissed fallacies about the potential for an international
tribunal in northeast Syria. Despite numerous complaints to the CBC
Ombudsperson about the grossly inflammatory pieces, the media outlet refused to
end its scare-mongering.
Contrasting Approaches to Different
Detainees
The
appeal announcement also followed the astounding late January Global Affairs
Canada ultimatum delivered to four detained women with Canadian children in the
prison camps. Ironically, on the same day Canada announced its first representative
to combat Islamophobia, the detained Muslim women were directly told to surrender
their children or remain there with them forever because Canada would never
come for them again. As a nation built on the forced separation of Indigenous
children from their families, this latest Canadian move certainly ran afoul of its
much-trumpeted “never again” promises, and contravened its legally binding
commitments under the Convention on the Rights of the Child.
The
January and February legal and media attacks against this relatively small
group of detainees – the majority of them children – contributed to their
ongoing banishment in an off-shored “Guantanamo in the desert” that seriously troubled
Federal Court Justice Brown, who wrote on January 20 that “there
is no known offence in Canada that carries with it exile or banishment as a
penal consequence.” Yet both by its actions and conscious inaction, exile or
banishment were plainly the result for Canadians stuck in northeast Syria.
It’s
all a stark contrast to Canada’s well-publicized, robust efforts to secure the
release of illegally detained white non-Muslim Canadians Michael Spavor and
Michael Kovrig, who were always afforded the presumption of innocence by
Canadian media while held by the Chinese regime. Canadian government efforts to
free the two men included leading a 57-nation initiative against arbitrary
detention. Mere weeks after the detention of “The Two Michaels,” then GAC
Minister Chrystia Freeland told reporters
that Canada was working with a broad range of allies on the issue and had
secured support statements from the USA, UK and European Union, and that “we
absolutely believe this is not only a Canadian issue,” but “an issue that
concerns our allies.”
In the case of the detainees in northeast Syria, an affidavit from
Global Affairs Canada’s official Julie Sunday tucked into the government’s
appeal brief declares that compliance with the court order means her department
“may
be required to leverage diplomatic relationships with allies in negotiating
and/or implementing conditions of release, which we would only wish to do if
absolutely necessary.”
What was deemed absolutely
necessary for the two Michaels is now viewed as not applicable for these
children, women and men, Muslims who have been so demonized that human rights reports
on Canadian children who are no nutritionally deficient that they have been forced
to eat sand are dismissed by government lawyers as irrelevant and improper
evidence. As one “extremism expert” shared with the International Crisis Group:
“The problem is that we’ve expended all this effort promoting [what has become]
the Western counter-terrorism paradigm and dehumanizing these people to
mobilise against the ISIS threat. Now we have to humanize the population to
convince countries that they can and should get them home.”
Misunderstanding the Detainees
What can account for such utterly
different responses between the high-profile campaign to release the Two
Michaels and Ottawa’s refusal to end the arbitrary detention of Muslim
Canadians? Freeland’s global appeal went out a fast two weeks after the
Michaels were arrested by a country that is not considered friendly to Canada. For
Canadian detainee Jack Letts, it will soon be 71 months of arbitrary detention
by a Canadian ally in the region that has repeatedly asked Canada to come and
take its citizens home. In addition, the Federal Court of Appeal has just told
Letts and the other men that they need to continue sucking it up because to do
otherwise might bring some undefined harm to Canada’s international relations.
Perhaps the “only if absolutely necessary”
standard employed here is because the four Canadian men are Muslim, and a lazy
media, racist commentariat, and spy agency-worshipping national security
academic-industrial complex (one of
whose most high-profile adherents used to bake cakes
celebrating the drone assassinations of Muslims) have refused to engage with
any serious inquiry into the diverse humanity of those detained under
conditions that former Guantanamo Bay detainees have called far worse
than anything they ever endured.
Some of these detainees are
among the most misunderstood groups of people on the planet, largely due to
racist assumptions about their religious faith, alleged political beliefs, and
geographic location. Many were fleeing or opposed ISIS when detained, or were trafficked
by agencies like Canadian spies CSIS; others were in the region for
humanitarian purposes; some were intrigued by the many videos promising a
utopian paradise only to find out differently on day one and then being unable
to escape. Hundreds of Yazidi refugees are in these prison camps too, unable to
return home. Yes, there are no doubt adherents of Daesh who remain too (and
they should be held accountable for whatever crimes they may have committed),
but studies by the likes of Save the Children and
Médecins Sans Frontières (MSF)
show they are a minority.
In November 2022, the
widely respected, Noble Peace Prize-winning MSF found
that “ideological demography of the camp’s population
is far more diverse than narratives regarding their affiliations with IS
suggest. Many of the camp’s population report having been displaced multiple
times as a result of conflict. Far from identifying with IS ideology, many say
they were arrested at checkpoints when trying to flee IS-controlled
territories. Many report that they were living in areas that later came under
the control of IS and were forced to leave their homes on IS orders. They say
that if they chose to stay, they risked being bombed by coalition forces or
being accused of supporting IS by dint of their location.”
Similarly, the
globally respected Save the Children (STC) notes that these detainees “are often portrayed in the media as
monolithic adherents to ISIS ideologies and their children described as ‘ISIS
children.’ In reality, the population of the camps is diverse and many of their
personal stories are complex.” STC also points out that there are hundreds of
Yazidi women and children in the camps “who were captured and enslaved by ISIS
as part of a genocide against the ethno-religious group.” Other women found
themselves under Daesh control through “misapprehension, circumstance or
coercion.” Yet all are tarred with the same “ISIS-linked” brush when in
reality, those with links to ISIS are reportedly a relatively small minority.
Colonial Missionaries and Repatriation
Despite such well-documented studies, amongst some
supporters of repatriation, there are disturbing, unexamined attitudes that
reek of white saviour colonial missionaries who view the detainees as depraved
savages needing the West’s so-called civilizing influences. Their arguments
start not from the assumption that these are long-suffering human beings who
have inherent rights (including a presumption of innocence), but rather that
they are dangerous reprobates for whom repatriation, accompanied by a potent
cocktail of terrorism peace bonds, prosecution, and surveillance, is sought only
as a last resort for our own protection. It’s almost a begrudging argument that
reinforces white supremacy and a bloated sense of colonial self-virtue: we of
the Great White West have fair and unbiased legal systems who will take back
these deranged souls, much as we despise them, and place them somewhere where
they cannot hurt anyone. Such a “we are better than them” position celebrates
“our” (read white) humanity rooted in “rule of law” as we rescue them from
“over there,” the heart of darkness territory where they cannot get a fair
trial.
One such repatriation
supporter made the wholly unsubstantiated claim that
these detainees are “Canadians who have behaved
abominably and acted stupidly and done things that are illegal.” As early as
2018, that same individual said of the nutritionally
deficient children forced to eat sand, the women who were trafficked into the
region, and the tortured men: “They’re our mess. We need to take responsibility
for it and protect Canadians as well as the rest of the world from these
people.”
But
where is the evidence that we need protection from them, or that any of these
Canadians have been involved in wrongdoing? As the Federal Court of Canada
noted in it repatriation decision, not even the government of Canada alleges
illegality or involvement in terrorism
on the part of these detainees.
Another
repatriation supporter told Maclean’s that
“I
don’t care about the adults” and called the detainees
“trash.” Shockingly, they declared without
evidence to CBC Power and Politics: “These people left Canada, they were
radicalized here, travelled abroad, they’ve committed atrocities against
others.” Yet within the same breath, the individual said: “We don’t have a good
sense of the evidence that we have against any of these individuals.”
Who
gets to say such atrocious things on a national news program? Where is the
interviewer who pauses and asks, “Have you seen any evidence of what you
allege?” Where is the accountability for casually applying such dangerous
labels to long-suffering detainees?
This
white-framing of the issue of the detained Canadian Muslims is premised on a
sickening calculation, that these individuals are simultaneously sad sack
individuals – women and children who need to be rescued despite being less than
human because of their alleged “choices” – and male Super Muslims, hard-wired and
indoctrinated to kill and pillage at the first opportunity, primed to take down
Western civilization despite years of torture and incommunicado detention.
Home-Grown Islamophobic Stereotypes
Such
Islamophobic stereotypes are baked into so-called Western Culture, as noted by
books like Jack Shaheen’s Reel Bad Arabs, which analyzes over 900 pre-9/11
films demonizing Arabs and Muslims (a number that has no doubt doubled
since). The notion that Arab Muslims are addicted to violence and biologically fated
to fall prey to the first extremist preacher who comes to town is reflected in
the words of one grudging repatriation supporter who says things like “I think we are creating a circumstance where we are
potentially creating a second generation of ISIS the longer we leave them
there.”
Those
stereotypes are also given life time and again via the assumption of guilt and
deference to a government which has consistently applied Islamophobic policies
and lied about Muslim Canadians detained abroad (as documented by two judicial
inquiries). They were reflected in one repatriation supporter’s comments on
Canadian detainee Jack Letts (who publicly opposed ISIS and was jailed three
times for doing so). In addressing the inflammatory comments of then Public
Safety Minister Ralph Goodale about Jack Letts on the CBC, this repatriation
supporter said “like you
pointed out to the Minister, he’s satisfied that this individual is a
terrorist, [so] there must be evidence there to support that.”
Yet
what have the past two decades shown other than that such unsubstantiated claims
of state security threats by government officials must not be taken on faith,
and they certainly cannot be casually thrown about given the very real harm it
can cause to the individuals being so labeled? As noted above, if the
Government of Canada truly believes these detainees are a threat, why was not a
single scintilla of evidence presented at the Federal Court hearing to that
effect (even during the two days when they could have shared such information
during secret hearings)? It was something that truly struck Justice Brown, who
wrote: “Notably the [government] Respondents do not allege any of the
Applicants [detainees] engaged in or assisted in terrorist activities. The
Respondents affirmed this position at the hearing.”
As the women and children come home at some unspecified time (and
hopefully the men as well as non-Canadian mothers of Canadian kids) it is
critical that “ISIS-linked” not be employed as a
one-brush-tars-all title or headline. Justice O’Connor’s Commission
of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar
noted “Labels have a way of sticking to individuals, reputations are easily
damaged and when labels are inaccurate, serious unfairness to individuals can
result.” Equally critical, “Written labels, particularly when no caveats are
attached, have a way of sticking to an individual and then spreading to others
and becoming the accepted fact or wisdom.”
Among other
findings, O’Connor reminds us that:
- “The
impact on an individual’s reputation of being called a terrorist in the
national media is severe. As I have stated elsewhere, labels, even unfair
and inaccurate ones, have a tendency to stick.”
- “It
is important that precision be used when attaching labels to individuals,
particularly in terrorism-related investigations in these times. There is
a danger that loose language can lead to unfair and misleading or
erroneous conclusions.”
- “Caution
is also necessary with respect to the use of potentially emotive or
inflammatory phrases. To say that someone is an ‘Islamic extremist’ or a
‘jihadist’ can open the door to a slipshod and casual process in which
guilt is assigned by association.”
- “The
use of loose or imprecise language about an individual or an event can
have serious and unintended consequences. Labels, even inaccurate ones,
have a way of sticking.”
Labels not only erase an individual’s humanity, they also erase
individualized histories. Indeed, our ahistorical culture, in which yesterday’s
news is ancient history, fails to recall that thousands of people traveled to
Syria a decade ago in support of the Arab spring and to support the victims of
the brutal dictator Bashar al-Assad’s barrel bombs, torture centres, and
scorched earth military campaigns. Others who actually believed the Daesh
videos that promised a state free of discrimination and violence quickly found
out it was all a lie, but faced death if they tried to leave. While such
mistakes are normally forgiven or simply overlooked if, for example, Canadians
travel abroad and join groups engaged in documented war crimes (from the Israeli “Defence” Forces to the Ukrainian military), that mercy rarely extends to Muslims.
An Appeal Built on Lies
Future law students will be astounded to
read the poorly argued and unsubstantiated submissions government lawyers put
together for an appeal that relies on one very big unspoken elephant in the
room: the detainees are Muslims and, like other
Canadian Muslims whose overseas detention and torture we have contributed
to, we never want them to come home. Rather than strip them of citizenship,
Ottawa’s approach is now to prevent them from exercising their rights of
citizenship, a foundation of which is the right to enter Canada.
It’s concerning that a
stay was granted by a Federal Court of Appeal cognizant of the dangerous,
life-threatening conditions faced by the Muslim detainees, a conclusion that
may not have resulted had the detainees been born with names like, say, Michael.
It’s also concerning that they did so based on a record replete with government
lies, unfounded speculation, and Islamophobic assumptions.
For example, government
officials claim they will be unable to conduct normal assessments of returning
Canadians before issuing travel documents, even though Brown wrote in his decision: “Simply put at the appropriate time the Applicants must be provided necessary travel documents and I will so
declare…. it will not be ordered to proceed on a timeline
that may in fact be
counterproductive or otherwise unreasonable.”
One
immigration official claims that if its foreign partners found out that travel
documents had been issued to the detainees it could “damage Canada’s international
reputation and our relationship with foreign partners.” Yet the issuance of
documents in seven other cases of women and kids repatriated to Canada has not
appeared to harm Canada’s relationships.
Government
lawyers also kick irony to the curb by arguing that giving travel documents
would “expose the applicant (detainees) to greater risk or worsening the applicant’s
situation.” But it is unclear how after six years of enduring conditions akin
to torture, a one-way ticket home could worsen a detainee’s life.
Similarly, Global Affairs maintains, without an ounce of
evidence, that “the order to request repatriation is likely to affect Canada’s
foreign policy interests in ways that cannot be predicted.” It’s a manifestly strange and untested long-shot
theory, given that dozens of countries have repatriated their own citizens
without upsetting the international order of state-to-state relations. In
addition, such concerns were never raised when Canada went on a diplomatic
offensive to repatriate the Two Michaels. Regardless, stay motions by law cannot
be based on such spurious speculation unless, of course, the subject of the
stay motion is a Muslim detainee, in which case, as scholar Sherene Razak
points out in a recent book, “Nothing Has to Make Sense.”
Despite the
presence of 50,000 social workers in Canada, the government also argues that
the repatriation order for four – count ’em, four – men would risk “drawing
on specially trained staff from fields like social work and clinical
health…proceeding with a rushed repatriation without sufficient staff,
resources and preparation in place may significantly exacerbate the threat
arising from some of these cases of return to Canada.”
Yet even
if one buys the unsubstantiated claim that any of these four men have some
ideological rigidity clinging in their minds after years of torture, Canada’s
own Public Safety agencies and so-called “counter-radicalization” networks have
prepared for this eventuality for over a decade. Dr. Michael King of the
Public Safety Canada-funded Organization for the Prevention of Violence told
the Toronto Star that plans have been in place for five years in expectation of
eventual repatriation. “We all have some experience with people returning from
overseas, so that’s a good thing,” says King. “It’s no one’s first rodeo, but
it’s going to be everyone’s biggest rodeo.” King notes the detainees are likely
to hold a variety of experiences, beliefs and needs. “Some of these people will have disavowed the ideology a few hours
after arriving in ISIS-controlled territory all those years ago and probably
said, ‘This is the biggest error of my life,’ but it was unsafe to leave,” King
said.
Dr. Ghayda Hassan coordinates a network that 5 years ago developed
a “repatriation and reintegration” plan for returnees, “along with key partners
such as youth protection and family services across the country. This plan was
put into practice for the first time last fall upon the return of two Canadian
citizens and two young children. The teams were present at the airport of
arrival of these returnees to offer support for the returnee children, extended
family members, as well as for the returned adults before and after their
investigation and interrogation by security services. The teams are continuing
to provide services to these returnee adults, children and extended family. The
implementation has been deemed as a success by all involved partners.”
Dr. Hassan shared her concern that returnees
may face with respect to stigma. “They will come back to face
a society here that stigmatizes them because they’re still being considered by
many people — sometimes quite wrongfully, actually — as terrorists,” Hassan
said. “Many of them have been kind of drawn into this and mostly been victims,
actually. Some may have been perpetrators, of course. I’m not denying that.”
Meanwhile,
Global Affairs Canada incorrectly claimed in a sworn affidavit that previous
Turkish military actions in the region have “stalled repatriation operations
from the region.” However, according to the Rights and Security International
(“RSI”) Global Repatriation Tracker and other open source material,
2023 is set to become a record breaking year for repatriations (during the
first two months of 2023, repatriations have already outpaced the total for all
of 2022, with a total of almost 800 so far.) An analysis of prior repatriation
numbers dating back to 2019 reveals no significant impacts on repatriation,
even during periods of heightened Turkish military violence in Northeast Syria.
Ultimately,
the government relies on tired stereotypes, especially about the male
detainees, An affidavit from Public Safety’s Sébastien
Aubertin-Giguère
paints the men as “Canadian Extremist Travelers” and despite the lack of any
individualized evidence, declares “in general, CETs suspected of traveling to
north-eastern Syria are believed to have had, at a minimum, direct experience
with Daesh/ISIS, a listed terrorist organization, and direct experience with
violent extremist ideology. They are highly likely to have acquired combat,
weapons and terrorist training, and operational combat experiences while in
Syria and Iraq, and are likely to have established international connections
with likeminded individuals.”
While
the only thing missing from Mr. Aubertin-Giguère’s affidavit is
the eerie orientalist music that accompanies the slow-motion, gun-toting,
stalking Muslim extremist featured on your neighbourhood movie screens and
streaming platforms, it was also disingenuously sworn three weeks after Justice
Brown noted that Canada raised no security concerns with respect to any of the
men at the original hearing that took place the previous month.
It’s on such thin grounds that the Government
of Canada will crow about protecting national security before the appeal court judges
next Monday. As loved ones of the detainees wait with bated breath for the
outcome of the Federal Court of Appeal hearing on March 27 and the non-Canadian
mothers of Canadian kids pray that their temporary resident permit applications
will be approved, it is clear that the Islamophobia that has underwritten
Canada’s mistreatment of these Canadian men, women and children remains deeply
stitched into the national discourse. We need radical surgery to remove it from
the national consciousness as one step toward preventing further harm to those Canadians
who, because of their faith, continue to be demonized, exiled, and tortured
abroad.
Those wishing to attend the virtual Court of Appeal Hearing on March
27 should write to information@fca-caf.ca and ask to register for the BOLOH hearing on March 27,
ref. # A-32-23
