Sunday, June 28, 2009

Help Bring Home Another Canadian Abandoned by Ottawa

Help Bring Home Another Canadian Abandoned by Ottawa

Abdihakim Mohamed, Aged 25, Autistic, Without His Primary Caregiver, Denied Passport, Stuck in Kenya Over 3 Years



Although Canadian Abousfian Abdelrazik will finally be coming home after six long years of Canadian-government enforced exile in Sudan, there remain numerous other Canadians who have been abandoned by their country while overseas.

One of them is an autistic 25-year-old Canadian citizen, Abdihakim Mohamed, who is at grave risk both in Kenya and, should he be deported to his birth country, Somalia, unless Ottawa acts immediately to repatriate him. For over three years, efforts to have him brought home have been met by a bureaucratic brick wall. (See Backgrounder below for why Mr. Mohamed is without a passport).

In Kenya, Mr. Mohamed faces a life where he is without adequate supervision and care, as well as the stigma against individuals with disabilities, and the risk of being caught in the rash of extra-judicial killings by Kenyan police. He is also at risk, as someone identifiable by his Somali heritage, of deportation to an even more dangerous conflict zone because Mr. Mohamed does not have Canadian ID with him.

Note that with respect to Somalia, the federal government has issued an "OFFICIAL WARNING: Foreign Affairs and International Trade Canada advises against all travel in Somalia. Canadians in this country should leave. There is no resident Canadian government office in Somalia, and the Government of Canada cannot provide consular assistance to Canadian citizens in distress in Somalia."

To save Mr. Mohamed from the fate that the Canadian government warns against, all that would be required to bring him home is a one-way travel document or replacement passport.

But the Department of Foreign Affairs and International Trade (DFAIT) is refusing to issue him one, coming up with one excuse after another. With each day that goes by, Mr. Mohamed, both as a Canadian of Somali heritage as well as someone who is unstable at the best of times and requires constant care, is in danger of arrest, imprisonment, and worse. (In fact, he has already been arrested twice and poorly treated by Kenyan authorities who, discovering he was Canadian, figured they could rely on a bribe to have him released. This pattern might escalate to further arrests and requests for bribe money).

Canadian officials have alleged that Mr. Abdihakim is an "imposter" whom his mother is trying to "smuggle" into Canada (relying on the fact that there are very few family photos -- some Muslims do not take photos of one another unless for official reasons -- and that Mr. Mohamed had a good command of certain details, which they concluded was a sign that he does NOT have autism. Anyone who knows anything about autism would conclude otherwise! Many affidavits from people who can attest to Mr. Mohamed's identity have been filed with the Canadian government.)

Just as popular pressure helped bring home Abousfian Abdelrazik, we are calling on people across this country to once again write and call the Minister responsible, Lawrence Cannon, and ask that he do the right thing. Below is an extended backgrounder on the case, as well as a section on steps you can take to Bring. Mr. Mohamed home.


(Thanks to Ottawa writer Kate Heartfield for the following summary)

In 2004, Anab Mohamed Issa, who works two jobs as a cleaner in Ottawa, travelled with her 20-year-old son, Abdihakim Mohamed, to Bosaso, Somalia. She liked Canada, had been here since 1990, but her son wasn't doing well here.

Abdihakim Mohamed is a big man, with disruptive behavioural problems. It was more than Ms. Issa could handle on her own. A psychiatrist in Scarborough thought a change in cultural context might improve his communication and social skills. So Ms. Issa and her son went to stay with relatives in Somalia. After about nine months, Ms. Issa returned to Canada.

That's when she made a mistake.

She described it, later, in an affidavit: "He was happy staying with my family and they were happy to look after him. However, I did not want to leave his Canadian passport with him because I was afraid it would be stolen. Canadian passports are very valuable in this part of the world and I wanted to keep it safely. I thought this was the best course of action because I have Power of Attorney for Property and I am responsible for his passport. I could not trust him to look after it and there was nowhere safe where it could be kept under lock and key."

It was the wrong decision, but understandable.

At Pearson Airport, in April 2005, Canadian officials seized her son's passport from her, because it was being carried by someone other than the holder. Fair enough.

In 2006, Ms. Issa's mother-in-law in Somalia got sick and was having trouble looking after Mr. Mohamed. Ms. Issa decided to bring her son home. She took him to Nairobi, to apply for a passport at the Canadian High Commission there, which serves Somalia. The immigration officer in Nairobi didn't believe Mr. Mohamed was who his mother said he was; one of the issues seems to be that he didn't seem autistic enough. The photo on his citizenship card was taken when he was younger, although to my eye, it bears a strong resemblance to a more recent photo.

Ms. Issa returned to Canada, leaving her son under the imperfect care of relatives in Nairobi. She kept trying to get him a passport. Mr. Mohamed is unhappy in Kenya; his autism and his Somali ethnicity make him vulnerable to thuggery and harassment from the authorities.

In April 2008, Ms. Issa got a letter from Passport Canada informing her she was under investigation for her "involvement in attempting to obtain a passport for an imposter in the name of [her] son Abdihakim." But she hasn't been charged with anything.

Then, in July, the same agency said she couldn't apply for a regular passport on her son's behalf anyway, because Mr. Mohamed's mental incapacity preceded the granting of Power of Attorney. Passport Canada told her she needs a court order giving her guardianship.

Ms. Issa would be happy to oblige -- but that process requires Abdihakim to be in Canada. Her other option, Passport Canada said, was to apply for a passport of limited validity on compassionate grounds.

But then, in November, Passport Canada told her that "there remains the issue surrounding the true identity of this individual, which must be resolved before a travel document will be issued."

In a particularly pig-headed coda, Passport Canada asked for her help in determining who the man applying for a passport in the name of her son might be.

Jean Lash of South Ottawa Community Legal Services has been gathering a pile of affidavits from Canadian citizens who know Mr. Mohamed and can vouch for his identity. Mr. Mohamed has offered to submit to DNA testing, Ms. Lash says, but Passport Canada hasn't taken him up on the offer.

"He had a valid passport, which was seized by the government," says Toronto lawyer David Yerzy, who knows Mr. Mohamed and signed an affidavit attached to his recent photo. "It's not lost. All he needs is a passport renewal."



1. Please write a polite, simple letter to Foreign Affairs Minister Lawrence Cannon, copying Stephen Harper and your MP, calling on him to stand up for the right of Mr. Abdihakim Mohamed to come home, and to issue him a a passport or other appropriate travel document to ensure he can be brought back to Canada. Phone calls are helpful too.

Lawrence Cannon
Telephone: (613) 992-5516
Fax: (613) 992-6802

Stephen Harper
Telephone: (613) 992-4211
Fax: (613) 941-6900

Contact details of MPs via (click on "Members of Parliament (Current)").

2. Please share this email with your networks.


Toronto Action for Social Change, PO Box 73620, 509 St. Clair Ave. West, Toronto, ON M6C 1C0,

No More Impunity!

Demand an Apology, Accountability, and Compensation for Three Canadians Targetted for Torture

As Canada Marks the United Nations International Day in Support of Victims of Torture June 26, Contact Prime Minister Stephen Harper, "Public Safety" Minister Peter Van Loan to Demand Canada End its Involvement in Torture (contact details below)


Three Canadians -- Abdullah Almalki, Ahmad El Maati, and Muayyed Nureddin -- were tortured overseas with the complicity of their own government. We are calling on the Government of Canada to issue an apology, provide compensation, ensure that all officials responsible are held accountable, take steps to eliminate false information about these men and their families from Canadian and international databases, and demand that the federal government issue a clear ministerial directive against torture and the use of information obtained from torture.

Abdullah Almalki, Ahmad El Maati, and Muayyed Nureddin are Canadian citizens who were targetted for torture by agencies of their own government.

All were falsely labelled as alleged threats to Canada's "national security," and all wound up in Syrian torture chambers (and, in one case, Egyptian torture chambers as well) where they were interrogated and tortured based on questions that came from Canada. A problematic secret federal review of their cases (The Iacobucci Inquiry, which unfortunately excluded the men, their lawyers, the press, and public from participating) nonetheless found that Canadian agencies were complicit in the men's overseas detention, interrogation, and torture.

Last week the Standing Committee on Public Safety and National Security of the House of Commons called for an immediate apology for all thee men, along with compensation "for the suffering they endured and the difficulties they encountered." The committee released a report that also called on the federal government to "do everything necessary to correct misinformation that may exist in records administered by national security agencies in Canada or abroad with respect to" the three men and their family members.
(full report: )

Importantly, the Committee called on "the Government of Canada issue a clear ministerial directive against torture and the use of information obtained from torture for all departments and agencies responsible for national security. The ministerial directive must clearly state that the exchange of information with countries is prohibited when there is a credible risk that it could lead, or contribute, to the use of torture."

Unfortunately, the committee did not go far enough in demanding actions that could end the culture of impunity that continues to thrive with respect to torture in the highest levels of the Canadian government, from CSIS and the RCMP to the Justice Dept. and Department of Foreign Affairs and International Trade. Indeed, names were named in both the O'Connor Inquiry (which examined the case of Maher Arar) and the Iacobucci inquiry, and it is clear in both reports that the actions of Canadian officials led to the torture of Canadian citizens abroad.

Yet there has been a disturbing silence on the issue of holding officials accountable. In fact, with one exception, it appears that all officials who appear to have been complicit either directly or indirectly in that overseas detention, interrogation, and torture, have received promotions.

Perhaps the most high-profile of those Canadian officials is Michel Cabana, who ran Project AO-Canada (the investigation that was found to have been based on false information that led to the overseas detention, interrogation, and torture of Maher Arar, Abdullah Almalki, and Ahmad El Maati). Remarkably, Cabana is now the Assistant Commissioner of the RCMP, one heartbeat away from the top job in a national police force that has been implicated in torture.

We have serious questions about the suitability of Mr. Cabana to hold such a high position in an organization that is supposed to be cleaning up its act and ending its complicity in torture.

With the recent court orders to repatriate yet two other Canadians tortured with the complicity of their own government (Omar Khadr and Abousfian Abdelrazik), we need to ask: how many more cases of torture-by-proxy exist, and how many more will continue to occur unless there are major systemic changes in the way things are run in Ottawa?

While we work towards those systemic changes, we join the call from the Parliamentary committee "to immediately implement all the recommendations from these inquiries, as the failure to do so could result in further serious violations of the rights of Canadians."

While the committee calls for an oversight committee of all agencies involved in "national security" investigations, we remain concerned that such a committee can only review human rights disasters AFTER they have occurred. Rather, we need pre-emptive action to stop torture-complicit spies from doing further damage to folks in this country and abroad.

The Federal government will state that such recommendations cannot be agreed to because civil suits are in progress, yet Maher Arar received an apology before his case was heard in court. The Committee also disagrees with this position, declaring "The majority of the Committee does not agree with the government’s position that issuing apologies can influence the course of civil actions. The majority is of the opinion that the government must officially recognize the harm caused to these Canadians." Indeed, the government could end the civil suit process immediately by fairly addressing the damage that has been inflicted on the men and their families.

While there remain many other tangled webs of Canadian involvement in torture (the case of rendition survivor Benamar Benatta, who still seeks a public review of his case, the ongoing secret rendition-to-torture hearings taking place in the Federal Courts under the name of "security certificates," Canada's involvement in the U.S.-based School of the Assassins, complicity in the torture of people in Afghanistan, among many others), we have an opportunity to take immediate steps to ensure a small measure of justice for Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin.

1. Please write a polite, simple letter to Public Safety Minister Peter Van Loan, copying Stephen Harper and your MP, calling on them to immediately apologize for and provide compensation for Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin, as recommended by the Standing Committee on Public Safety and National Security.

Please add in as well that you feel officials involved in facilitating their torture need to be held accountable, and that systemic changes are required to permanently end further Canadian involvement in torture. Remind them that the committee also calls on " the Government of Canada issue a clear ministerial directive against torture and the use of information obtained from torture." Please remind them as well that false information about these three men and their families exists in government databases around the world and here in Canada, and every effort must be made to erase those lies.

Personalize the letter if you can.

Peter Van Loan
Telephone: (613) 996-7752
Fax: (613) 992-8351

Stephen Harper
Telephone: (613) 992-4211
Fax: (613) 941-6900

Contact details of MPs via (click on "Members of Parliament (Current)")


More information:
Stop Canadian Involvement in Torture:
PO Box 73620, 509 St. CXlair Ave. West, Toronto, ON M6C 1C0,

More details on the men and their cases, plus video interviews:

Committee report:

Thursday, March 19, 2009

Mahjoub Forced Back to Jail by Devastating House Arrest Conditions

Canadian Secret-Trial Detainee Mohammad Mahjoub Forced Back to Jail by Draconian Conditions That Have “Broken” His Family.

Tear-Filled Courtroom Hears About the Pain of Family Under House Arrest, and A Father’s Sacrifice to Free His Children

TORONTO, MARCH 18, 2009 – It was not, as most media reported, a “choice” for secret trial detainee Mohammad Mahjoub to return to the confines of Guantanamo North after almost two years of draconian house arrest. Nor could one really categorize it as a “protest.”

It was, rather, a forced jailing, the logical outcome of a cruelly designed process that is more properly called a “control order,” with all the eerie consequences that follow.

In essence, Mr. Mahjoub and other secret trial detainees on “bail” have had all of the indignities and humiliations of jail come home with them, placing their families in the web of 24/7 surveillance, turning their spouses and grown children into jail guards, and leaving their little ones bewildered, frustrated, frightened, traumatized.

To be able to live with their families, the detainees had to consent to having phones tapped, mail opened, and GPS tracking devices strapped permanently to their legs. “Freedom of movement” is restricted to three government-approved outings a week that are closely monitored by agents of the Canadian Border Services Agency (CBSA) wearing bullet-proof vests. The agents snap pictures of the men and their wives and kids and anyone else in camera’s view, images of which are sent on to a counter-terrorism database in Ottawa.

On a summer’s evening, they have to be inside the house by 9 pm. If the family wishes to sit outside, the detainee can pull up a chair on one side of the screen door, but must never be out of sight of his wife, or it is deemed a breach of bail. There are no cell phones, no internet access, no visitors who have not been approved by the government (isolating the family because few people are willing to have their names join the government’s counter-terrorism database, especially if they are members of a vulnerable targetted community).

The home, once a place of sanctity, becomes a jail, and government agents can enter any time of day or night without a warrant, and seize anything they feel is “suspicious,” even if it’s a children’s toy (as happened in the Mahjoub family).

Mr. Mahjoub had originally “chosen” to enter house arrest because it was the only way he could be with his family after over seven painful years of indefinite detention without charge based on secret allegations created by the same spy agency whose false information resulted in the overseas torture of Mssrs. Arar, Almalki, El Maati, and Nureddin.

Mahjoub’s house arrest has continued despite the fact that the process under which he was kidnapped in 2000, the security certificate regime, was declared unconstitutional by the Supreme Court of Canada in 2007.

Security certificates are elaborate rendition-to-torture hearings straight out of Kafka: you are never allowed to see the case against you and, if the certificate is upheld, you face deportation to torture. The legislation allows anything to be introduced as “evidence” that is not normally admissible in a court of law, so one is no longer in a court of law, save for the window dressing of judicial robes.

In a move that Kafka and Orwell would have envied for its absurdity, judges inform the public, in the spirit of openness, that secret hearings will or have taken place in the absence of the detainee. To “protect the interests” of the detainee, a new system came into place in 2008 that created “special advocates” who are allowed into the room where some of the secret case is heard, but are not allowed to speak with the detainee once they have been in the protected chamber, nor to see the whole of the secret case, nor to cross-examine the confidential “informants” whose allegations seem to be the heart of these cases.

It is against this horrific backdrop that Mr. Mahjoub, his wife and grown step-son entered Courtroom 6-D this morning in a last-ditch effort to seek some form of mercy from a Federal Court that has never had a problem upholding and enforcing the undemocratic process. On the right side of the courtroom is a disturbing glass booth, especially built for these cases but as yet unused. It is there to create the impression that whoever sits inside is so dangerous that even physical touch would bring irreparable harm, an impression that is needed by the government to distract people from understanding the manner in which these cases are built on thin shadows of uncontested secrets.

It was here last fall that Mr. Mahjoub and his family laid out in painful detail the humiliations and trauma of being treated like criminals any time they got approved outings to go to a children’s play area or a mall. During many days of hearings that lasted into December, Mahjoub and his wife, Mona Elfouli, had testified about the effects of house arrest on their young children, informing the court that one of them said he wanted to leave home because of the conditions and another had talked of killing himself. The effect on the family has been nothing short of profound and destructive.

Judge Layden-Stevenson, who heard the case, released a decision last week that was the final straw for a family that was already on the edge. While she determined that Mr. Mahjoub could remain at home alone without a supervisor, he could only do so on weekdays between 8 am and 6 pm, but not with his young children (the government claimed, and the judge bought to a certain degree, the argument that “the best interests of the child cannot trump national security interests.”)

Seeing no alternative to ending the family’s present state of misery, Mahjoub’s wife, Mona Elfouli, and their adult step-son, had decided to withdraw their consent to remain as supervisors to Mr. Mahjoub, triggering the process that would result in his being returned to the Guantanamo North facility in Kingston, Ontario.

Presiding today was case management judge Simon Noel, who attempted to play the role of social worker, stating “the consequences of the decision is a major consequence on the freedom of an individual,” perhaps losing sight of the fact that house arrest is a continuation of confinement by other means that also incarcerates the family.

“If something can be done [to prevent Mahjoub from going to jail], this court is open to it,” Noel said, but he did not elaborate on how this was possible, since he said he could not revise the decision made by his colleague, Layden-Stevenson.

“We are going back into the darkness, we are not moving ahead,” Noel continued, losing sight of the fact that the whole security certificate regime over which he presides is just such a bleak place.

One by one, family members took the stand.

Mona Elfouli declared, “The CBSA give us no choice but to go to this decision. They have become a barrier between the children and their father. They are punishing the children for having their Dad back with them. They take pictures of them, they even take the children’s own toys. They can’t enjoy their time with their Dad. I care about the future of my children, and the CBSA are working hard to destroy them. I am not going to let that happen.

“My older son has no life because of the conditions. My little ones cry every day. And now Justice Layden-Stevenson says the kids cannot stay with their Dad. Imagine I have to go to the doctor, the kids would get kicked out of the house [Mahjoub would not be allowed to be home alone with his children]. Imagine the kids come home from school and he is alone, this means the kids can’t come in.”

Openly crying, Elfouli pleaded, “I care about Mohammad. I am torn inside. It would be better and easier to give him a fair trial instead of punishing and oppressing him.”

“But why is it so rushed?” Noel asks of the decision, again not catching sight of the fact that an accumulation of humiliation and traumatic incidents over the past 22 months have torn apart the Mahjoub household.

“Why don’t you give us a fair and open trial and stop oppressing us? This is a game and I don’t want to be part of it,” Elfouli replies.

Given his major role in facilitating a process that denies Elfouli’s husband a fair process, Noel has no answer to that question, preferring instead a count-your-blessings sermon.

“I understand fully the situation you are in,” Noel says, to a whispered chorus of “No, you don’t!” from the public gallery. “The judicial system is following its course. We’re all trying to improve the system. The legislation has been changed, in the closed hearings Mr. Mahjoub’s interests are represented. The system has improved. This is Canada. It is working.”

The sermon is so full of irony and flat-out misrepresentations as to be stomach turning. Mr. Noel does not know what it is like to have his children followed as if they are criminals, nor to have his lawyer-client conversations listened to by spy agency CSIS, nor what it’s like to fear losing a loved one to overseas rendition to torture based on secret allegations.

As for the statement that things are improving and that Mr. Mahjoub’s interests are represented behind closed doors, it was Noel himself who just two weeks ago stripped special advocates of any meaningful role they might play when he ruled the security-cleared lawyers would be barred from cross-examining secret informants behind closed doors.

Noel’s attempts to placate are not bought by Elfouli.

“I disagree with you,” Elfouli says. “When we come to court the pressure does not ease. We just get more conditions, and the most affected is me and the children.”

“I understand that,” Noel says. “Is there anything else that you have not told me?”

What more can be said?

Mahjoub’s adult stepson says the decision to withdraw as a supervisor is a culmination of a lot of things, noting the security certificate process has been declared unconstitutional. “My mother and I and my two brothers do not have a say. We do not have legal representation. Our interests are ignored or skimmed over. We are not being heard.”

His stepson continues, “As one example of many, I had a condition imposed on me, but I wasn’t exactly involved in that decision. I wasn’t summoned, and yet my ability to use my cell phone in my house has been restricted to a locked room. I don’t know that there was due diligence from the Crown.

“In the past, we have seen that the Crown’s clients have not been held accountable in terms of their actions. My mail was being intercepted. I agreed to it being viewed but not to it being delayed or photocopied and distributed. In my view that is unlawful search and seizure.”

He relates an incident in which his parents and younger brothers went to an ice rink but were confused about the date of the outing. Afterwards, the CBSA demanded that they sign a letter acknowledging the error but which also included a number of false statements. When Mahjoub and Elfouli refused to sign, they were told they would be grounded for three weeks, “which in my view is extortion.”

(In fact, the behaviour of the CBSA bureaucracy has at times been so over the top that even Judge Layden Stevenson stated that the CBSA “has demonstrated a tendency to overreach on more than one occasion,” and that in one instance, “the reaction of CBSA’s Chief of Operations can only be described as high-handed....An objective observer would understand Mr. Mahjoub’s frustration.”

Yet when CBSA has over-reached (for example, in illegally recording and handing over lawyer-client tape recordings for CSIS analysis, or sending copies of mail to the counter-terrorism branch for copying, analysis, and further distribution, something never contemplated in the consents to the mail opening), there is no reprimand.

“It’s the lack of accountability, and the way I see it, I’ve done what I could and I don’t see an opening any time soon,” Mahjoub’s stepson continues. “I feel the Minister’s clients have used the situation to exploit and I do not want to be a part of that exploitation anymore. I fear for the safety of anybody else in Canada.”

A clearly distraught Mohammad Mahjoub finally takes the stand, and explains that the bad experiences of his indefinite detention have been visited upon his family now as well. “We can’t handle it anymore,” he says. “My kids say Daddy, we can’t handle it anymore. I have to protect my family and my kids from the abuses of the CBSA. I have to go back to jail to protect my family because they are broken.”

As Noel directs Mahjoub to spend a few moments with family before his return to jail, he ends with a message that sounds like a Wall Street stock advisor trying to buck up investors pummelled by the recent economic chaos.

His words are remarkably unhelpful.

“The Court is here, it has been there in the past and it will be there in the future, in the interests of justice, for respect of our laws, and the interests of Mr. Mahjoub.”

Small comfort as the lights go back on in Guantanamo North, and Mr. Mahjoub begins a new chapter in his decade-long saga of indefinite detention without charge.

Outside of court, Mona Elfouli tries to explain the conflict she feels as a mother trying to raise loving children. What she says mirrors what she told the Federal Court last fall:

"I brought my kids up to love everyone and to be there for everyone, and not to fear anyone and not to be angry at anyone. But my kids is growing up now, with the situation that we are in, because of the surveillance, because of [government agents] coming in and taking things from them and making their life miserable, they started to say, I hate CBSA.

“I say, Guys, you know what? We love everyone. Don't say you hate them. Say, I hate their action. I don't like it, and we can talk to them and get them to change it. When their dad was in detention, at the beginning they were small; they didn't know. At the time, I wanted to explain to them. I said, You know, you're old enough to understand that your dad is in jail, and that's not because he has done something wrong. It's just the government are human beings and they sometimes make mistakes. And we talked to them and tried to help them to correct their mistake, and when it is corrected, your dad would be home.

“It took a long time after I said that, and the children, I was afraid they wouldn't trust what I said anymore. But then, their dad came home. And I said, See, guys, we were able to make it.”

Elfouli has promised her pre-teen children that the same relentless persistence that brought their father home after seven years in jail will end the secret trial process that dogs their daily lives. She is relying on opponents of security certificates to ensure another seven years don’t pass before this promise to her children comes true.

How you can help:

While we work on a broader political campaign to get Mr. Mahjoub out of Gitmo North, there are some immediate things yoou can do:

1. Write to Mohammad Mahjoub a message of solidarity and support, reminding him that he is not forgotten and that efforts to end two-tier justice in Canada will continue. He can be reached at:

Mohammad Mahjoub
Kingston Immigration Holding Centre
c/o CSC RHQ Ontario Region
440 King Street West
PO Box 1174
Kingston, Ontario K7L 4Y8

2. Write to Mona Elfouli and her children. Letters can be sent to: Mona Elfouli, c/o PO Box 73620, 509 St. Clair Avenue West, Tornto, ON M6C 1C0

3. Contribute to the ongoing costs borne by the families of the secret trial detainees. Now that Mr. Mahjoub is back in jail, it will be expensive for his family to visit, and we need to raise funds for transportation and lodging.

Contributions can be sent to Homes not Bombs, PO Box 73620, 509 St. Clair Ave. West, Toronto, ON M6C 1C0. Put “Family Fund” in memo portion of cheque

If you would like a tax receipt for charitable purposes, contact us for more details.

Campaign to Stop Secret Trials in Canada, PO Box 73620, 509 St. Clair Ave. West, Toronto, ON M6C 1C0,

Monday, March 2, 2009

CSIS, Sex, Lies, and Torture: Canada’s Secret Trials Just Got Even More Bizarre

CSIS, Sex, Lies, and Torture: Canada’s Secret Trials Just Got Even More Bizarre.

(In Two Federal Court Rulings, we learn that part of the case against secret trial detainee Mohamed Harkat is born out a love affair between a CSIS employee and a “person of interest to the Service,” while in another we learn that special advocates will not be allowed to examine “human source” witnesses who have come up with the unsubstantiated allegations against Harkat and the other detainees.)

March 1, 2009 – Just as “information” gleaned from torture is hardly reliable (the victim will say anything to make the torture stop), information gleaned from a spy’s torrid affair with a “person of interest to the Service” (the spy’s sexual partner will say anything to keep the lovin’ comin’) is just as questionable.

But in the case of secret trial detainee Mohamed Harkat, it appears that secret information obtained both from sex and torture is now being used to have him deported to torture in Algeria.

And so marks yet another chapter in the ongoing secret rendition-to-torture hearings of Canada’s secret trial detainees, all of whom have yet to see the so-called case against them.

In a series of “expurgated reasons for judgment” written last November but only released a few days ago, Simon Noel of the Federal Court revealed that a Canadian Security Intelligence Service (CSIS) officer working on the Harkat case had what appears to have been an affair with a “person of interest to the Service.” Throughout the decision are a series of markings that look like this: “[...]”. They represent information not shared for unexplained “reasons of national security.”

Hence we learn in paragraph 2 of the decision about “the [...] relationship that developed between her and a person of interest to the Service [...] in the context of the Harkat investigation.” One is not sure if the secret part of the sentence relating to the relationship should read “intimate,” “totally hot,” “dysfunctional,” “inappropriate,” or just plain “platonic.” After all, inquiring minds need to know, but as in all security certificate proceedings, the hot stuff stays behind closed doors.

T.S. (we are never sure what the acronym stands for, whether Totally Sexy or an actual name) was a CSIS employee from the 1980s until 2002. We don’t learn much about her, because three paragraphs of material state only that she “[...].” Shortly after T.S. began suffering from domestic difficulties, a “person of interest to the Service” known as A.B. (Absolutely Buff?) initiated phone contact at her workplace, and as the relationship developed, “gifts and photos were exchanged.” After receiving written instructions to end the relationship in 1998, T.S. refused.

As the chronology continues, only a grocery store bodice ripper can compete. “In April 1999 T.S. travelled to [...] for a holiday where she had a [...] encounter with A.B. CSIS was unaware of the [...] encounter until 2001, at which time the decision was made to begin an internal security investigation.” In January 2002 T.S. was dismissed, following which [...]. A grievance filed by T.S. was denied because of [...]

The Special Advocates (security-cleared lawyers who are allowed to go behind closed doors and challenge some of what is supposedly there) argued that they should have access to the employment records of the agent. They had raised concerns about “the reliability and credibility of the information provided [...]” and requested copies of T.S.’s employment records, which the government argued against based on privacy grounds. Even though everything that takes place in the closed hearings stays behind closed doors, at the risk of being prosecuted and sent to jail for 14 years under the Security of Information Act , Noel of the Federal Court insists that “privacy rights do exist even in the closed portion of the proceedings,” a brilliant bit of illogic that allows CSIS to withhold whatever it does not wish to reveal in secret hearings (perhaps information that shows there is no case against Harkat, among others!)

Noel states that the employment records of former CSIS intelligence officer T.S. are not necessary for the court to determine the accuracy of allegations against Mr. Harkat. Noting that employment records would contain such things as annual evaluations, positions held within the agency, salaries and benefits, Noel states “this type of information, which is inherently personal, will not help determine the reliability of the information [...] nor will it allow for an assessment of the quality of the reporting [...]”

But simple common sense states that it WOULD be helpful to see an annual assessment of an employee in CSIS, whose actions result in targetting individuals for years of misery under security certificates. What if an annual assessment states said employee relied rather heavily on tarot cards, the advice of Sybil the Soothsayer, articles in The National Post, or similarly bizarre sources to build the alleged case? What if an assessment found that, like many in CSIS, T.S. was prone to bouts of paranoia, Islamophobia, and a hatred of all things Halal?

Noel states that all of this would be subject to privacy rights, yet the hearing is taking place behind closed doors in a secure location, where it becomes a major crime for any of the security-cleared lawyers to utter a whisper about any of this. More importantly, all of this impacts on the case of a man, Harkat, who needs every chance he can get to prove his innocence, given that he faces torture or death if forcibly deported to Algeria based on secret allegations he will never be able to see, much less contest.

Noel’s decision is a split one, however, for he does see the value in the special advocates’ request that “has as its object the [...] report that studies the reliability and veracity of the information [...] which was primarily reported by [...] who had a [...] encounter with a person of interest to the Service [...]”

This might refer to an internal CSIS report that makes such an evaluation, but CSIS is an organization whose own review committee (and whose former agents) all critique an institutional tunnel vision that would prevent the organization from making an honest assessment. If the Special Advocates can only see what CSIS chooses to allow them to see, they can hardly get a clear, unbiased picture.

Meanwhile, the much-criticized Special Advocate system (which then “Public Safety” minister Stockwell Day praised as the answer to all of the unconstitutional problems with secret hearings) took a major body blow in Noel’s companion decision, written in early December but also not released until last week. In essence, it creates the firewall CSIS has been praying for all along: the security-cleared lawyers can see some, but not ALL, of the secret case, and certainly not the most crucial parts that the government will likely be relying upon.

Must the drafters of secret trials legislation now go back to the table and call for Super Special Advocates (who will act in a capacity even more restricted than the Regular Brand Special Advocates, thus creating a two-tier system of special advocacy that mirrors the two-tier justice of security certificates?). We know from recent history that two of the Special Advocates, though security-cleared, were nonetheless initially denied their posts based on secret information, requiring them to hire their own Special Advocates to fight for the right to begin their jobs.

In any event, Noel has done a terrific job of protecting CSIS from what it most feared: that skilled lawyers would actually cross examine the “human sources” behind closed doors and have their credibility picked apart in the same manner in which CSIS witnesses who appear in the limited public portions of the proceedings are generally mincemeat within five minutes of cross examination.

Thus, the security certificate, which denies an accused from challenging his/her accuser, now denies even the special advocate, who is supposed to protect the interests of the accused, from confronting said accuser. That Noel would have no problem with this is apparent in the way in which it appears his mind is already made up in these proceedings. While writing of the “two weeks of closed hearings” from September 2008, he says the government presented evidence in support of their case “and the danger associated with Mr. Harkat.” This is a public ruling, available on the court’s website. No finding of danger has been made with respect to Mr. Harkat. The least a federal court judge could do is put in the words “alleged danger” or “alleged danger the government claims is associated with him.”

Noel, like many judges and journalists in Canada, has yet to take a lesson from the inquiries into the torture of Canadians Maher Arar, Abdullah Almalki, Ahmad El Maati, and Muayyed Nureddin. Throughout those inquiries, we learn time and again about the dangers of false labelling, and the particular need for great care to be taken when referring to anyone who is deemed suspect. The same agency responsible for the false labelling leading to torture in the above cases is behind the security certificate cases.

In Noel’s second ruling, he states that “the evidence currently before this court discloses that [...] human source(s) provided information to the Service in relation to the intelligence investigation into Mr. Harkat’s activities.” The Special Advocates (who in this case were clearly not special enough) sought an order producing those witnesses for a secret cross-examination, a request Noel ultimately denied. What, then, is the purpose of a special advocate if they cannot get to what is allegedly, in secret, the heart of the case?

What if, for example, one of the covert human sources received his information from an overseas torture session in which the victim made up whatever the torturers wanted in order to stop the torture? As we learned from the Security Intelligence Review Committee (SIRC)’s 2008/09 annual report, this would hardly be a surprise, since CSIS “uses information obtained by torture.” That assessment comes from a complaint generated by Mr. Harkat’s public lawyers.

Yet thanks to Mr. Noel, this human source, even in secret, need not be questioned about his complicity in the torture of someone else, nor about the assumptions that guided his theories about Mr. Harkat, nor about the accuracy or reliability of what this individual has produced. In other words, Mr. Harkat is no further ahead than he was before the Supreme Court of Canada declared the security certificate regime unconstitutional.

Noel’s ruling is filled with useless rationalizations for why said sources must be protected even from a secret cross examination in which all parties are sworn to secrecy. The court relies on jurisprudence with respect to police informer privilege, protecting the informer’s identity unless the innocence of the accused is at stake (which is the case in all secret trial cases). Noel declares that “covert human intelligence sources are individuals who have been promised confidentiality in return for their assistance in gathering information relating to the national security concerns of Canada,” but he does not explain how that confidentiality would be violated if they were to testify only in a secret hearing.

His illogic continues, stating “If the Service is unable to protect the identity of its sources or is required to produce them in the context of a Court proceeding (even one that is closed to the public), the number of individuals willing to come forward with information would be reduced. Indeed, there is evidence before this Court that the recruitment of human sources would be harmed if the guarantees of confidentiality given by the Service were not upheld by this Court.”

Anyone interested in considering such evidence can go to Mr. Noel’s footnotes, which read thusly: “[...]”

Of course, if a CSIS witness is forced to appear in a secret session, how on earth would A.B., potential CSIS informant in the community, even know, unless CSIS agents violated their own oath of secrecy and told them? In another case of CSIS easily pulling the wool over Noel’s eyes (something CSIS regularly does in these cases, simply making unsubstantiated, bold absolutist statements), “Evidence before this Court established that identifying a source to a Special Advocate or requiring a source to testify in a closed proceeding, even anonymously, will almost certainly end the Service’s relationship with that source.”

Again, the source of said bold statement is “[...]”

No proof required, for reasons of national security.

How, then, does one test the case against Mr. Harkat, as well as the cases against Mssrs. Jaballah, Mahjoub, Almrei, and Charkaoui? The answer, to CSIS’s satisfaction, is that the case will never be fully tested, even within the extremely problematic Special Advocate system where the detainee cannot see the case nor consult with the Special Advocates after the latter have viewed the secret file. All of the information on an individual will not have to be released, and CSIS is using secret arguments to build in even greater protections to cover it’s own derriere with respect to the errors, misinterpretations, and falsifications that are its trademark.

Clearly taken in by the spy agency’s scare-mongering press releases, Noel sounds the alarm, stating that “widening the number of people with access to the identity of a human source puts both the personal safety of the source and the national security of Canada into jeopardy.”

Special Advocates have argued that they should be able to see any information related to the Harkat investigation because of their top secret clearance and because they are bound to secrecy under the Security of Information Act. Noel disagreed, thereby rendering the Special Advocates to even more of a window dressing position than could have been imagined.

Mr. Harkat’s right to defend himself is thoroughly gutted by the court’s deference to undisclosed, unsubstantiated national security considerations.

In concluding, Noel asserts the special advocates “have not established that the production of human source(s) as a witness in these proceedings is necessary to avoid a flagrant denial of procedural fairness,” which is quite rich given that the whole security certificate proceeding, special advocates or not, represents just such a denial of procedural fairness.

Noel ends with a political broadside, stating “there are issues which, on occasion, transcend the proceeding in which they arise. Issues that impact not only on similar proceedings but potentially on the intelligence system as a whole. The issue before me is one such question which will reverberate throughout our intelligence network – nationally and internationally. Great care must be taken by the Court in balancing the competing issues that have been reviewed in these reasons.”

Hence, CSIS remains protected from revealing its alleged case, increasing the likelihood of Mr. Harkat’s rendition to torture with Simon Noel’s judicial seal of approval.

The reasons for such a rendition to torture will also likely be a secret, because, as we can see from all the [...], we simply cannot be allowed to know.

The Federal Court’s ongoing deference to CSIS in such matters is not surprising. Indeed, in December, 2008, it was revealed that CSIS, one party to these proceedings, had been listening in on two years’ worth of solicitor-client phone calls in three of these cases, a clear and well-understood violation of one of the bedrock principles of a democratic justice system.

But while the Federal Court did issue an order calling on CSIS to stop listening to such calls, the judge hearing the case stated: “I don't want to hear any more about it. It is done. It is over. It is finished. It has happened. We understand it happened. It is unfortunate, but there is nothing we can do to change the past. We can only look at what goes from here in terms of where it will go from here.”

There is no sanction, no punishment, for CSIS. No indication that such behaviour will not be tolerated in the future.

Starting next month, the public portion of some of the rendition to torture hearings will get underway. Little of substance is likely to be heard from the government’s side because of “reasons of national security.” Thanks to Mr. Noel’s ruling, it appears increasingly clear that little of substance will be heard behind closed doors either.

Campaign to Stop Secret Trials in Canada,

Thursday, February 12, 2009

House Arrest as Intelligence Gathering Tool

Secret Trial House Arrest Used as Massive Data Mining Project;
Secret Canadian Border Services Agency Manual on Security Certificate Detainees Reveals Operational Details Far Exceeding Court-Ordered Conditions

TORONTO, FEBRUARY 11, 2009 – In a stunning confirmation of what secret trials opponents have long suspected, a redacted version of a secret Canadian government manual reveals that the draconian conditions of house arrest imposed on those subject to security certificates are being used as a cover for intelligence gathering purposes on the detainees, their families, their supervisors, their friends, and their communities.

There are currently four men under the most severe house arrest conditions in Canadian history, placed there because of the two-tier justice security certificate procedure declared unconstitutional by the Supreme Court in February 2007. Before their release from prison, they had to agree to court-imposed restrictions that included wearing GPS monitoring bracelets 24/7, agreeing to phone taps and opening of mail, surveillance cameras both outside and, in one case, inside their homes, and unannounced searches and seizures by government agencies.

In addition, trips outside the house could occur only with government permission, no visitors are allowed without prior government approval, and there is no internet or cell phone access. These and a host of other measures are applied against individuals who have never been allowed to see the case against them, who face the lowest standards of any court in Canada, and who are fighting deportation to torture.

Difficult as these conditions can be, the men and their families have long charged that their lives have become even more miserable because the Canadian Border Services Agency (CBSA), whose role is to monitor compliance with those conditions, has been exceeding its authority. Indeed, CBSA has been introducing additional restrictions not approved by the court, making arbitrary decisions that allow no route of appeal, and behaving as if some of their agents have the heart-thumping theme music to CBC’s overhyped “The Border” performing repeat rotation on their ipods.

For example, upon releasing the detainees from Gitmo North, the Federal Court entrusted wives, older children, and community friends with monitoring the individuals’ compliance with terms and conditions. But as time has gone by, and more CBSA officers have been hired, the men and their families find themselves constantly followed and overtly surveilled, making it impossible for families to enjoy a rare outing together without being closely followed by officers wearing bullet-proof vests and sidearms. This behaviour unfairly marks the families as suspicious, if not dangerous, to the general public, and traumatizes the children and their friends.

Indeed, this fall, young children of the detainees testified in court about the impossibility of enjoying a government-approved family trip to a skating rink, to a parent-teacher interview, or even to a department store to buy Eid gifts because of the manner in which they were followed and felt criminalized by the overt (and unnecessary) monitoring of CBSA agents.

Why, the families ask, is such intrusive surveillance necessary when the court has declared its trust that family supervisors have promised to report any breach, when the men can be tracked via the GPS, when the phones are monitored, when they cannot make any move (including a quick trip to the corner store for milk) without the government knowing about it at least 72 business hours in advance? In addition, if the CBSA really felt that the detainees were up to no good, wouldn’t covert surveillance make much more sense? After all, someone allegedly up to no good is not going to try something when state agents follow his every move, often within a few feet of one another.

CBSA says that this is all needed to ensure compliance with the terms and conditions of house arrest. One suspects, though, that as an institution, CBSA, like its brother agency CSIS, simply does not trust any decision of the Federal Court of Canada with which it disagrees. Their approach, court decisions be damned, is that if Canada’s national security is to be protected, these agencies must do whatever it takes, even if it goes beyond the letter of the law or the terms of the release conditions.

The appearance of a presumption of guilt regarding the detainees, their families, and their friends, is well borne out by the national policy manual released almost in full following a secret hearing this week in Toronto for detainee Mohammad Mahjoub and his family. It follows on months of hearings during which officials from the CBSA confirmed that all mail to the detainees’ homes (including credit card bills, bank statements, phone bills, magazines, personal letters, and birthday cards addressed not just to the detainee, but to his wife and children) is photocopied and sent to their Counter-Terrorism branch in Ottawa for further investigation.

Also recorded and passed along to Ottawa are all phone calls, along with photos of the detainees, their family members, visitors, and bystanders who happen to be in the line of view when agents have taken shots.

The CBSA asked agents of the spy agency Canadian Security Intelligence Service (CSIS) to listen to all of those phone calls. In December, 2008, it was revealed that solicitor-client calls are among those recordings that have been listened to by CSIS agents for close to two years, allowing one party to the proceeding exclusive access into the defence strategy of the defendants. (The long-standing principle of solicitor-client confidentiality is a fundamental bedrock of a democratic society, and the Supreme Court of Canada affirmed in 2001 that it is a principle of fundamental justice and so is protected by the Charter of Rights and Freedoms).

While the Federal Court did issue an order calling on CSIS to stop listening to such calls, there was no penalty for this violation. Indeed, the judge hearing the case stated: “I don't want to hear any more about it. It is done. It is over. It is finished. It has happened. We understand it happened. It is unfortunate, but there is nothing we can do to change the past. We can only look at what goes from here in terms of where it will go from here.”

But what if those illegally obtained solicitor-client phone calls served an “intelligence gathering” purpose that allowed CSIS to continue to build up its unfounded accusations against the detainees, their families, and their friends? Where does the cycle of illegality end, and where is the bold statement that declares such behaviour will be severely dealt with? In a system supposedly built on checks and balances, an agency like CSIS needs to go to court and seek judicial approval for any intrusive investigation that may severely curtail someone’s privacy rights. While the Federal Court almost always grants warrants for CSIS investigations, it is highly unlikely that the court would sanction such an intrusion into the calls between a lawyer and her client. In this instance, CSIS got through the back door what it could not receive through the front.

This week, just prior to the final submissions with respect to conditions of house arrest, Mr. Mahjoub’s defence counsel asked that the court consider finally acting on a request made October 30 for production of the CBSA national policy manual, which had till then been considered top secret. Asked why the document had not been handed over to the special advocate (who is allowed to view secret information but not speak with Mahjoub), a government lawyer said there were “national security confidentiality” concerns. That lawyer was rebuked by the judge, who wondered why a secret document could not be given to the security-cleared individual tasked with seeing secret information and arguing for its public release.

Implausible rationalizations ensued, but the judge saw no reason why a secret hearing could not proceed on the question of the manual. Following the clearing of the court and a sweep for “bugs,” or listening devices that may have “compromised national security,” an “in camera” secret hearing was held, during which the special advocate argued that the document should be released to Mr. Mahjoub and his lawyers. After almost five hours of argument, about which Mr. Mahjoub, his public lawyers, the press, and the public are allowed to know nothing, the document, partially redacted, was finally released.

Entitled “Security Certificate Case Monitoring,” it provides a fairly biased view that would likely scare and confuse CBSA officers tasked with following the detainees. Indeed, with scare-mongering headings like “There is no zero risk situation,” it repeatedly states that these individuals have “links to terrorism,” a specious and defamatory allegation that has not been proven in a fair and legal process. Under a security certificate, such an allegation does not even have to be proven beyond a reasonable doubt in court, and is normally based on wholly secret information.

If the officer’s pulse has not already increased by this point in the material, it will surely go up a notch upon reading the bold-faced heading that “National security must not be compromised.” Given that no rational discussion ensues about what this means -- only that bold statement that something really important is on the line without really explaining what it is -- perhaps Dirty Harry theme music now goes onto the ipod, while agents visualize themselves as versions of renegade copper Clint Eastwood on the streets of Toronto and Ottawa.

Amidst the fear-mongering are also moments of curious writing choices, as in the section that defines risk as “the chance that something bad will occur.”

The presumption of guilt that is built into security certificates drips from the manual. A heading called “Challenges to monitoring” explains that “it is probable that the ISSCs [individuals subject to security certificates] will continually oppose monitoring and seek to weaken or remove the release conditions.” Why this seems to be a “bad” thing is not explained, especially since this right to review and change conditions is built right into the legislation. Additionally, it does not address the fact that individuals who have never been charged with, much less convicted, of any crimes, might object to such onerous conditions when they have yet to face a process that is consistent with the Charter of Rights and Freedoms.

Also not explained is the humiliating nature of the conditions, which reduce the men and their families to appendages in some futuristic surveillance state in which they cannot drive anywhere without state agents following so close that rear-ending is possible, and where beloved children’s toys are seized and held for six months based on the suspicion that they may constitute a threat to national security (as in the case of one family’s seized Wii this past summer).

Officers are instructed to engage in close physical monitoring to “watch and listen to the ISSC during outings,” a practice that not only comes off as harassment, but also makes the court-approved supervisor (usually the detainee’s wife or adult child) feel they are not trusted. Imagine being in a food court or restaurant on one of your three weekly government-approved outings, and the close proximity clearly identified officers would need to be to “listen to” the targetted individual, and one can get a sense of how intimidating this practice can be, especially for young children.

The manual instructs its officers to be on the lookout for any behaviour or action that may constitute a “threat to national security,” without the terms “threat” or “national security” defined. In discussing how to approve a detainee’s home (because detainees can only live in a certain house that must be approved by the government), they are asked to determine “does the surrounding area pose a risk to national security or public safety in any way?”

Under a section entitled “residence check,” officers are told they may enter a detainee’s house to conduct a search but must do so with respect, but “where there are reasonable grounds to believe that there is a potential risk, officer safety will take precedence over cultural, religious and gender considerations.” Given the pumped-up manner in which the institution presents the issue to its officers, a case can no doubt be made that officers are always on guard against such perceived (albeit completely unsubstantiated) risk, and numerous complaints from various detainees about the manner in which such sensitivity considerations have not always been respected support this conclusion.

The manual encourages CBSA officers to maintain ongoing communication with detainees’ supervisors (usually wives, grown sons and daughters, and community members who came forward) “to work through minor difficulties without the involvement of the court and to obtain valuable information about the integrity of the ISSC supervisor.” In other words, supervisors, who have been approved by the court, nonetheless remain under suspicion by CBSA, which wants to maintain “integrity checks” on them.

In a sign of what may be yet to come, individuals who have been approved as visitors may, according to the manual, be subjected to a search upon entering or leaving the detainee’s residence (even though this is not contained in any court order). The document references an as yet unseen “Visitor Consent to Search form” which has yet to be presented. Indeed, at every review of conditions, the passage of time should, in theory, allow for a loosening of these restrictions, but at every opportunity, CBSA is attempting to put even more restrictions on the detainees.

As it is, some potential visitors have tended to shy away from applying for approval, given that the application form demands, in addition to basic identification information, the name, address, and phone number of their employer. All individuals wishing to visit the men and their families must answer two final questions: “Does the visitor named support terrorism or violent jihad? Has the visitor attended any training camp or guesthouse operated by any entity that supports terrorism or violent jihad?” Not exactly the kind of routine one normally goes through upon making dinner arrangements with your friends.

All of these intrusive measures were put in place only after receiving signed consents from the detainees and their adult children. Those consents were specific with respect to the issue of monitoring compliance with conditions, nothing more.

Yet in one of the most telling passages of the CBSA document, one sees the manner in which this house arrest scheme has become an unauthorized government tool to gather intelligence about all manner of people associated with the individual targetted by the government. The section on phone taps states that “telephone monitoring can also be a valuable source of information on the ISSC as well as their supervisor and associates [i.e., their friends, none of whom are subject to security certificates but all of whom are now the subject of investigation].

This is clearly the sign of an agency acting way beyond the limits of the terms imposed by the court. As with the case of listening in on solicitor-client calls, this instance shows again that CBSA is unable to adhere to the law or to the orders of the Federal Court. The price for a detainee who breaches a condition is jail; the price for the government is a yawn, a shrug from the court, and a plea to simply move on with a process that regularly violates the detainee’s rights.

The CBSA document then states that telephone taps are “most beneficial after a catalyst event, such as a residence search, interview, spot check or interactions during an outing or appointment. These occurrences, along with what the ISSC says and who they say it to, could be valuable information that leads to additional targets.”

Additional targets? In essence, house arrest becomes a huge fishing expedition for the government. Say Mr. Mahjoub is walking down the street, accompanied by a court-approved supervisor who is tasked with monitoring compliance with the conditions and reporting any breaches (hence making the well-funded CBSA surveillance completely redundant), and he bids “good morning” to a passerby. Does the passerby become the target of investigation? Does that individual’s photo, sent to Ottawa by CBSA, end up as part of an information exchange containing no caveats? Will it eventually be used if that bystander travels overseas and is detained at the request of Canadian officials for questioning, perhaps even torture, by the Syrians or Egyptians (the kind of scenario we have seen documented by two recent federal inquiries into Canadian complicity in the torture of Maher Arar, Abdullah Almalki, Ahmad El Maati, and Muayyed Nureddin)?

The manual then states that the use of these surveillance tools is not just to detect breaches of conditions (which, again, the men point out, is a task entrusted to the court-approved supervisors): “Even when a breach of conditions is not apparent, the information may be beneficial for intelligence purposes.”

When the detainees and their loved ones consented to opening of their mail and tapped phone lines as a condition of house arrest, they did not consent to such information being used for investigation purposes, only to monitor compliance with conditions of release. The CBSA’s stated position that they are only monitoring the men is undermined by the next sentence, which states “Where possible, monitoring officers should attempt to gather intelligence for use by headquarters, the regions and other government departments.” Who knows where this “information-sharing” ends, and the degree of harm that may come to individuals who suddenly find themselves on no-fly lists, rendered to a third country, denied employment for mysterious reasons, all because of the secretive actions of over-zealous, racially-profiling agencies like CBSA, CSIS, the RCMP, Foreign Affairs, and the Department of “Justice.”

Of course, all of this falls into a bizarre context: state violations of court orders that allow for such invasive practices as phone taps as a condition of getting out of jail to be with one’s family are small details in the much broader picture. What right does the Canadian government have to employ the repressive security certificate measures that create such abuses in the first place? Condemned by international human rights bodies, the United Nations, and people from coast to coast in this country, the secret trials process, in addition to the grave consequences for those targetted and their loved ones, is contributing to a variety of precedents that auger a surveillance society that is not as far away as some would think.

As this week’s hearing ends, and Mr. Mahjoub now awaits a decision (along with similar decisions on house arrest conditions being awaited by detainees Mahmoud Jaballah and Mohamed Harkat), CBSA, CSIS, the RCMP, and other government agencies continue sitting high above any concept of accountability, enjoying a culture of impunity. They can listen to privileged calls for two years, they can exceed the limitations of a court order, they can get away with behaviour that constitutes harassment and violations of the Canadian Charter of Rights and Freedoms, and they can certainly be complicit in torture (as was found in the O’Connor and Iacobucci inquiries), and no one is charged, no one is demoted, no one is held responsible.

Meanwhile, scheduling is now taking place to conduct the rendition-to-torture hearings of the five secret trial detainees, slated to begin this spring and summer.