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,

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