Sunday, October 5, 2008

Where are Canada's Judicial Whistleblowers? Secret Trial Dispatches

Dispatches from the Land of Secret Trials where: Hassan Almrei marks seven years of indefinite detention without charge; Federal Court Chief Justice Alan Lutfy wonders why people are demanding the highest level of fundamental justice for secret trials cases; Secret Rendition-to-Torture Hearings Are Now Ongoing at Undisclosed locations in Ottawa

TORONTO, OCTOBER 1, 2008 – Last week, a U.S. military prosecutor at Guantanamo Bay exhibited a quality that appears wholly lacking in Canada’s own Justice Department. Call it conscience, call it courage, call it a career-ender, but Army Lt. Col. Darrel Vandeveld rediscovered something called ethics when he realized that his own office was failing to turn over exculpatory material to lawyers for an Afghan detainee (ie, materials that would work in favour of the detainee).

Mr. Vandeveld is not the first to desert Gitmo’s rigged process, which he described as “slipshod.” Numerous others -- Maj. Robert Preston, Capt. John Carr and Capt. Carrie Wolf, as well as Col. Morris Davis, former chief prosecutor for Guantanamo’s military commissions -- also asked to be relieved of their Gitmo duties for similar reasons, with one of them explaining that “he had been assured he didn’t need to worry about building a proper case; convictions were assured.” (as reported by Scott Horton, “The Great Guantanamo Puppet Theater,” Harper’s Magazine).

One wonders what’s taking so long for Canadian Justice Department lawyers to show a similar amount of courage. After all, just as detainees in Guantanamo Bay, Cuba are denied access to the secret case against them (one often built on information gleaned from torture), so detainees under Canada’s security certificate procedure are similarly denied the right to know why they have been detained indefinitely, without charge, based on secret information that is likely to have been derived from torture. (Canadian spy agency CSIS’s own oversight body, SIRC, produced a report last February confirming Canada’s scandal-plagued spy agency does use information gleaned from torture. As usual, Canadian media outlets failed to make much of it.)

After the secret hearing procedure was declared unconstitutional by Canada’s Supreme Court in February, 2007, Bill C-3, designed to replace the old law, was born eight months later, essentially a carbon copy with a couple of window dressing changes. Rushed through Parliament at the speed of light, with barely a hint of consultation, MPs and Senators nonetheless heard a litany of complaint from leading law associations across this land that declared it would not pass a Charter challenge. How, one wonders, did the Justice Dept. lawyers who must have screened the bill before it was tabled last fall, perform the ethical calisthenics required to hold their noses and look the other way as this juridical disaster was readied for public presentation?

As was predicted at the time, the new bill would only create further legal challenges and result in nothing but further misery for the detainees and their families, who continue to live with the fear of deportation to torture.

As for those Justice Department lawyers who continue to prosecute these cases, one wonders if they breathe a C-3 sigh of relief that, as with their brethren at Gitmo, they can rest assured they don’t need to worry about building a proper case, as convictions are assured under a process so terminally biased against a detainee. (Technically, there is no conviction in an upheld certificate, since there is no charge; rather, there is only a finding of “reasonableness,” which is the lowest threshold to be met in any Canadian court)

Indeed, even with the addition of a so-called special advocate (who can see what’s in the secret file but is prohibited not only from revealing what’s there, but also from communicating with anyone, including the detainee, without a judge’s permission), the individual detained still does not know the case any more today than when the law was declared unconstitutional. And even if the Special Advocates are able to mount a significant and vigorous challenge to the secret allegations, they are likely to run into the brick wall of the reasonableness standard.

The idea that upheld certificates are supposed to be “assured” was no more evident than in the internal review undertaken by the Inspector General of CSIS after Mahmoud Jaballah, detained for seven months in 1999 on a certificate, had his case quashed by the Federal Court, which found the certificate was “not reasonable.” The goal of the review was to determine “whether the Service's security intelligence report was a credible, balanced and accurate representation of the case against Jaballah; and whether the case against Jaballah was presented well enough.” Which is strange, considering that role belongs solely to the court under the security certificate scheme, and that the issue had been decided in 1999.

But when the cards are stacked against a detainee and the detainee still wins, Canada’s spies refuse to accept the verdict. Individuals concerned with how a judiciary is supposed to work in a democratic state might pause here and wonder why, when a certificate was already reviewed and found to be not credible by the body tasked with this process, it is second guessed by the CSIS Inspector General. The Inspector General’s conclusion? “Our assessment of the security intelligence report concluded that it was a well-founded account of an accurate, credible, and balanced case...It was difficult to follow the reasoning of the Court in reaching the decision that it did.”

The conclusion of this 2000 report was “Even though this security certificate was an accurate presentation of the facts, we took note of and encouraged Service initiatives underway that would make security intelligence reports more cogent and compelling when presented to the Court.”

That report must have served in its own humble way as a green light that encouraged CSIS to issue a new certificate against Jaballah in 2001, relying on a “new interpretation” of a case already dismissed as not credible by the Federal Court two years earlier. Perhaps garnishing their new report with language designed to appear more “cogent and compelling,” CSIS got its way this time, with the certificate upheld and Jaballah detained until 2007, when he was transferred to a draconian house arrest where, to this day, an outing for a jug of milk requires special permission from state authorities.

Which brings us to the present, and a new round of secret trials this fall. Given that this process is designed to produce deportation orders, and that all five men subject to certificates face a substantial likelihood of torture if deported to their countries of birth, they might be more properly called “rendition-to-torture hearings in search of a judicial seal of approval."

Anyone who follows these cases might readily conclude that the courage and insight found wanting in Canada’s Justice Department is matched by the Federal Court, which, after the security certificate scheme was declared unconstitutional, behaved as if nothing had changed, denying bail to one of the detainees because of findings made under that unconstitutional process and refusing to relax the stringent house arrest of the other four. One Federal Court judge noted with a fair degree of certainty, in what can be accurately described as a preferential option for the powerful, that “I do not believe that the Supreme Court intended the previous rulings are to be revisited or that current proceedings necessarily are to be altered as a result of its determination.”

Hence, individuals whose lives are made hell by an unconstitutional process are not allowed, in the eyes of this and other judges, to revisit decisions made under that fundamentally flawed and unfair process.

The Federal Court has done more than its fair share in supporting the secret trial process. For example, it took the unprecedented step of posting the unsubstantiated CSIS allegations on their website. It also funded the study of a special advocate system designed to save the secret trial process rather than explore how such draconian measures could be justified in the first place. It also appointed five judges to the new sets of hearings, all of whom have already made negative findings about the detainees, such that one cannot help but wonder about a possible apprehension of bias.

And if there is not outright bias, there surely might be reasonable grounds to believe that the psychological and political pressure on these judges might be similar to the dynamics that forced the resignation of the Guantanamo chief prosecutor. Col. Morris recalled that he was told by his superior that “We can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals, we’ve got to have convictions.”

While it might sound far-fetched to state that the federal court judges are receiving similar marching orders, common sense and the patterns of power lead one to ponder whether a dynamic similar in tone and content to that which forced Col. Morris’ resignation might be an unspoken, perhaps even subconscious element at play here in Canada.

Indeed, is it difficult to imagine the Federal Court, having upheld this unconstitutional process in the past, and having made negative findings against the five detainees, suddenly changes its mind simply because the special advocates are part of the process? It takes nothing away from the skillful efforts that will likely be made by the special advocates to note that, for the court, a lot is on the line here. Will judges admit that they made errors in past hearings and, given the arguments of special advocates who are now in the secret chamber, suddenly say their own process of challenging government information was not up to scratch (this when one judge last year talked in open court about how “good” they were in closed session)? Will judges who likely take lunch with one another really feel comfortable coming up with a completely opposite finding from their counterparts?

These are valid questions, as judges are as fallible as the rest of us, subject to the pressures and politics of the national security scare mongering that surrounds these cases.

Then again, it is highly possible that the judges have not had access to the whole of the case (including exculpatory information). Indeed, the security certificate in practice allows the government to present what it relies upon, which does not necessarily mean all of the material in its possession. One signal of this possibility is in the order released last week by Judge Simon Noel who, following a week-long secret hearing in the absence of Mr. Harkat and his public lawyers, gave CSIS six months to produce all documentation related to the case of Ottawa detainee Mohamed Harkat. CSIS had said it needed all that time to compile all of the secret materials. Which begs the question: if the secret case was already presented to the judge hearing Harkat’s case years ago, why is it not sitting in one place, easily accessible? Or does this mean that CSIS did NOT present everything in its files related to Mr. Harkat at the previous secret hearing?

Either way, Harkat is unlikely to see any of it, since the files will only be seen by government lawyers, the judge, and the special advocates. Upon seeing that information, the possibility that a special advocate will be able to ask Harkat questions about it is an open question right now, one that led to a constitutional challenge being heard in Toronto this past week.

As written currently, the legislation sets out a complete bar on communication related to the case by the special advocate once s/he has seen the secret file. That means no communication with the detainee, with special advocates, with public counsel for the detainee, with office staff, with Justice Dept. lawyers, even with family members of special advocates who might want to know where their loved ones are and when they’re coming home. The rationale for this is the fear of a speculative “inadvertent” breach of confidential information, even though all the advocates have been security cleared and taken an oath to protect that information.

Any attempt to communicate with the detainee, for example, must go through a process of judicial consideration and approval, thus opening up one’s potential defence not only to the judge hearing the case, but also to the government lawyers likely to be present for (and likely arguing against) the ability to further question the detainee. The process thus invites the judge and the government lawyers inside the defence’s strategy, violating the concept of solicitor-client privilege.

“What is proposed here [by the government] is that the court supervises all solicitor-client communication,” argues lawyer Marlys Edwardh, who notes such a thing has never been done in Canada and clearly violates fundamental justice. Edwardh and her colleagues are very clear: they see no reason why special advocates should be prohibited from open communication regarding matters not affected by “national security” concerns and, should those concerns arise, and only then, would it be appropriate to consider approaching a judge. Even then, it is suggested, such concerns should not be presented in front of the judge hearing the case, nor in front of the government lawyers, who would again gain an insight into defence strategy.

A brief filed by detainee Hassan Almrei’s counsel notes that “there are no equivalent restrictions on the government’s lawyers in their communication with one another or even with the named person or their counsel.....Counsel for the Minister and for CSIS has had knowledge of the secret evidence when he or she cross examines the person named in the certificate. There does not appear to have been any allegation that counsel revealed confidential information as a result of this contact.”

So severe are the current restrictions that no one knew about the secret hearing in the Harkat matter. It came as a complete surprise to the other lawyers working on related cases. After expressing their concern that they did not know about the hearing, the lawyers were asked by Chief Justice Alan Lutfy, “So what?” You know about it now, he says, which shows that, despite a slight delay, the system somehow works. Throughout the hearing, he seems to lean on the idea that the system should just work its way through and deal with problems as they arise, thus ignoring the clear charter rights breaches raised by detainees’ lawyers.

Lutfy has attempted to play the role of enthusiastic, if not painfully cheerful, conductor in forcing these hearings to move ahead at any and all costs, regardless of the wishes of the detainees. Perhaps most significantly, a question he raised during the constitutional challenge betrayed a systemic bias that appears to run throughout all of these hearings: why, he asked, did security certificate cases have to be heard “at the highest level of fundamental justice?”

Lutfy had the audacity to pose this question when not thirty feet away from him sat Mohammad Mahjoub, detained from June 2000-April 2007, now under house arrest with his family and fighting deportation to torture to Egypt, and Mahmoud Jaballah, detained since August 2001, and now similarly under house arrest in Scarborough and fighting deportation to torture in Egypt. Neither man has seen the alleged “case” against him, and likely never will. Each has spent years in solitary confinement, both have suffered innumerable physical hardships, and their families have been traumatized both by the incarceration and by the intense surveillance and intrusion by state agents into their daily lives. All this has been based on a secret process (in complete opposition to the highest level of fundamental justice) designed to protect CSIS, whose prior claims to “national security confidentiality” in fora such as the Arar Inquiry have been clearly shown to do more with avoiding embarrassment over their unsavoury practices (ie, complicity in torture).

Yet the legislation as written starts with the premise that it is the secret information of CSIS, and not the rights of the detainee, that are paramount, and everything possible must be done to protect that CSIS secrets. It is in this environment that standards are so low that with two exceptions, every certificate issued since 1991 has been upheld. Government lawyer Marianne Zoric argues that preventing disclosure of the case to the detainee is “not a mean-spirited attempt to prevent the named person from having their day in court...the process is not fundamentally unfair.” She does not appear ready to join her courageous colleagues who have departed Guantanamo Bay.

Lutfy’s question about fundamental justice is an informative one. Perhaps he does not entirely grasp (or want to acknowledge) that security certificates represent two-tier justice, in which permanent residents and refugees receive a lower standard than citizens. In reply, lawyer John Norris noted that the individual’s liberty interest is engaged here in Canada and that, regardless of status, such cases deserve to have applied to them the highest level of fundamental justice.

Lufty fancies himself a casual judge, and his incessant retreat into homespun witticisms and self-congratulation might prove vaguely amusing were these not rendition-to-torture hearings. Indeed, since he took on the task of “case management” for the five secret trial cases earlier this year, his chin-up approach, constantly encouraging all parties to keep smiles on their faces and positive vibes in the air, seems well at odds with the life-and-death issues facing the five detainees.

Perhaps it is a form of cognitive dissonance -- an inability to face up to the sheer injustice of the process -- or simple guilt reduction that leads him time and again to comment on the need for fundamental justice to be part of the secret trials and rendition to torture process. Indeed, he tells the court that if he has anything to pass on to his children, it’s his “integrity.”

Throughout the two days of proceedings, he reminds us that “the court is very conscious of the open court principle,” even as he acknowledges that a secret hearing without Mr. Harkat and his lawyers just finished up last week in Ottawa and another secret hearing without Mr. Almrei and his lawyers is proceeding this very day. But nonetheless, he blithely carries on throughout the hearings in a manner bespeaking that Shakespearean quip: methinks the chief justice doth protest too much. Hence, every half hour on the hour, we hear such reminders of the virtue and natural goodness of the court...”the world works best when there’s transparency”...”we believe in open courts”...if certain decisions that should be made public are kept private, “the institution we all work for would suffer, it wouldn’t be terrific”...”we are running a fair hearing here”...CSIS should “not go too far in infringing the rights you are trying to protect”...

Symbolism is important to the federal court’s chief judge, so much so that he goes off on a tangent about the relative thickness of the “public summaries” of allegations provided by Canada versus those provided in the U.K. Such patriarchal locker room talk could no doubt form the basis of an interesting psycho-sexual thesis about our phallo-centric culture, in which size is what counts. Lutfy gets into the size issue when he recalls a conversation he had with two British special advocates last February. They were, he says, surprised to see that the public summaries of allegations in Canada were far more “substantial” than in the UK. “I showed them the summaries, and what impressed them was the inches...they don’t have [their summaries big enough to be measured by] inches over there,” Lutfy says, using his fingers to indicate the relative difference in summary sizes in what feels like a scene out of an early Woody Allen film

(Part of what gives the public security certificate cases their “inches” are the binders of newspaper clippings, web downloads and other material that have nothing to do with the detainee, but give the appearance of having built a strong case when all CSIS has to do is say person A is associated with all of this big, bad stuff.)

Lufty, ever a fan of symbolism, then says he is “very proud” of the fact that the Federal Court, in a magnanimous display of openness, now posts when secret hearings are scheduled to take place (even though no one can attend them). When a defence lawyer rises to say he has searched the website and never been able to find such notices, Lutfy reassures him that they are indeed there, but that he should contact court staff if he needs further help. Orwell would be pleased.

While these sentiments are all well and good, had they been put into practice, one wonders what place, exactly, security certificates would have in a 21st century democracy. But Lutfy’s sense of place in the world, along with the rest of his court, the government, and its spy agencies, seems to work along the lines that Lewis Lapham uses to describe the American empire: when one is convinced of one’s own sense of virtue, there is no need for the law. Hence, the virtuous Americans have gleefully cast off the Geneva Conventions as “anachronistic,” but advise us to fear not because they would never do anything untoward.

And so it is for security certificates, where we are asked to assume the virtuous nature of our system because, after all, there is no rule of law or due process in these cases. Right in the law itself, it states quite clearly that anything not normally admissable in a court of law can be considered by the judge in a security certificate case. Which means we are no longer in a court of law. When we are no longer in a court of law, and the case against one is secret, one must repose one’s trust in the judge’s virtue and hopefully strong sense of fair play.

It’s in that sense of trust that Lutfy is asking the detainees to place their faith. Indeed, after lawyer John Norris talks about who protects the interests of the detainee (the defence lawyer and the special advocate), Lutfy chimes in, asking if Norris has forgotten someone. After pausing, Lutfy hastens to remind the court that it is the judges who are ALSO looking out for the interests of the detainee. But how, exactly, does a judge look out for the interests of a detainee while presiding over a hearing designed to prevent the detainee from knowing the case, and whose eventual outcome is deportation to torture?

In fairness, the legislation historically places the judges in an unfair position, in much the same manner that U.S. segregationist judges were perhaps sometimes caught between their desire to uphold the constitution and Bill of Rights and their perceived need to enforce racist statutes because they had been passed by their legislatures. We remember the names of the ones who rose above strict statutory interpretation and remembered that the law is nothing without justice.

One thinks of the analogy because in this instance, Lutfy often pauses with a sense of reverence at the wonder of Canadian democracy, and reminds us that this atrocious piece of legislation was “enacted by Parliament,” as if such a statement somehow brings to reality the often mistaken notion that Canadian laws are only put in place after careful, thoughtful consideration and true consultations with people across this land.

Mr. Lutfy is no doubt familiar with the slipshod manner in which the latest legislation regarding security certificates was rammed into place, rubber stamped by a House and Senate that was told repeatedly by leading legal associations that the bill would not survive a Charter challenge, but passed it anyway. The victims are all Arab Muslims, who suffer because of Parliament’s fear, its racism, its refusal too take democracy seriously. Had the targets been Smith or Jones instead of Mahjoub and Jaballah, perhaps the wise Parliamentarians would have paused for breath on their race to pass new secret trials legislation.

What effect is this having on the house arrest front? As Barb Jackman, lawyer for Mssrs. Mahjoub and Jaballah states, both men are on the verge of turning themselves in to be sent back to jail. Why? Because the suffering of their families, who also live under house arrest and are targetted for constant surveillance and harassment, is so great that they feel the only way to end it is to go back behind bars.

How does this end? We saw that it was sustained public exposure and grass roots political action that took the issue from relative obscurity to the Federal Cabinet table and the Supreme Court docket.

While we remain committed to that form of action, it wouldn’t hurt to have a few assists along the way. Justice Department Lawyers Against Secret Trials and Deportations to Torture? Federal Court Judges Refusing to Preside over Rendition to Torture Hearings?

If you need help with the placards and T-shirts, you know where to reach us.

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