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