Monday, February 8, 2010

Hassan Almrei Wins Against Secret Trial Process

Hassan Almrei Finally Sees End of His Secret Trial Security Certificate!
Detained almost exclusively in solitary confinement since 2001, Almrei now
looking to piece his life together

(report from the Campaign to Stop Secret Trials in Canada)

Toronto, December 14, 2009 -- The Campaign to Stop Secret Trials in Canada, which for almost a decade has sought abolition of secret hearing security certificates, rejoices in the decision to quash the security certificate against Hassan Almrei, who has spent more time in solitary
confinement than anyone in recent Canadian history.

In a 183-page decision released today, Judge Richard Mosley of the Federal Court found, "Having considered all of the information and other evidence presented to the Court, I am satisfied that Hassan Almrei has not engaged in terrorism and is not and was not a member of an organization that there are reasonable grounds to believe has, does or will engage in terrorism. I find that there are no reasonable grounds to believe that Hassan Almrei is
today, a danger to the security of Canada. Thus, I find that none of the grounds of inadmissibility in subsection 34(1) of the Act have been made out and, accordingly, I find that the certificate is not reasonable and must be quashed."

Significantly, Mosley also found that the government and CSIS, the Canadian Security Intelligence Service, "were in breach of their duty of candour to the Court," noting "The duties of utmost good faith and candour imply that the party relying upon the presentation of ex parte evidence [i.e., the stuff being heard in secret in the absence of Mr. Almrei and his lawyer] will conduct a thorough review of the information in its possession and make representations based on all of the information including that which is unfavourable to their case. That was not done in this instance. The 2008 SIR [security intelligence report] was assembled with information that could only be construed as unfavourable to Almrei without any serious attempt to include information to the contrary, or to update their assessment."

The Almrei decision is riddled with comments that point to the weaknesses in the alleged case against him, weaknesses that show that CSIS and other government agencies have taken full advantage of a fundamentally flawed and unfair process to try and not only falsely tar Almrei with the terrorist brush, but to have him deported to torture in Syria as well. Similar findings have been made in other recent security certificate cases as well.

While Judge Mosley still comes to the remarkable conclusion that the security certificate process as currently constructed is working, this is no comfort to those three men who continue to wonder what is in the secret case against them: Mahmoud Jaballah, Mohammad Mahjoub, and Mohamed Harkat. They still do not know the heart of the case against them, or even if such a case exists; that is still to be determined in secret, and they continue the fight to stop their deportation to torture and to end draconian house arrest.

Indeed, one imagines we shall see in the remaining cases a similar pattern of CSIS malfeasance emerging. Mosley notes that his 2009 decision is based on information "that was not previously presented to the Court," noting that only information that casts a negative light on Mr. Almrei was presented until additional disclosure requirements as a result of a second
Supreme Court challenge by detainee Adil Charkaoui opened a few more doors.

Mosley notes that when he looked at the secret files, "redactions had been excessive and tended to unnecessarily obscure portions of the records. For example, the names and other identifying particulars of casual contacts and sources of information, including police officers, was routinely redacted in these documents in keeping with the [CSIS]’s policy of protecting human sources. This information was not sensitive and would not have put individuals at risk if inadvertently released." He was also critical of the government's practice of continuing to file "new" information that was not presented to the ministers who signed the security certificate, a tactic the government tends to use to bolster its case at certain strategic times when it appears the detainee may be gaining ground.

Despite Mosley's conclusions as to the workability of the law as currently constructed, his lengthy reasons are a good insight into the "workings" (read failings!) of a security certificate and how, despite his own confidence in the process, one can see how easily a certificate can
condemn one to years of indefinite detention in advance of deportation to torture (indeed, until the recent quashing of the Charkaoui certificate, only two others out of almost 30 had ever been quashed.)

As the law allows anything to be put into evidence, even if it is not normally admissable in a court of law, Mosley notes that in Almrei's case, much of the unclassified material consisted of newspaper and magazine reports along with on-line reports, often with unknown authors and
questionable reliability.

Some declassified surveillance reports show the extent to which profiling and paranoia contributed to the arrest and decade-long ordeal of Mr. Almrei. For example, one report "describes Almrei’s driving behaviour as he was followed around Niagara Falls while he visited several nightclubs and restaurants. This ... report was relied upon in support of an assertion that Almrei had exhibited security tradecraft in an effort to determine whether he was being followed. Another interpretation, conveyed by one of the surveillance teams, is that he was wandering around just to kill time."

Meantime, the "human sources" whose allegations jailed Almrei were also highly suspect. Mosley points out that CSIS interview notes of the informers, if any were actually made, were not retained. And "in respect of one human source, a polygraph examination had not been performed as was previously reported. With regard to a second human source, the
circumstances surrounding a 2007 polygraph examination, not directly related to this matter, were in question...the second human source was found to have been deceptive in providing answers during the 2007 polygraph examination."

Worse still, these deficiencies had not come to light until this year. As Mosley points out, "Production of the Charkaoui 2 [disclosure] information also allowed for a comparison of the reports of information provided by the human sources with other information held by CSIS including the intercept and surveillance reports. That comparison identified some serious contradictions. In the result, I was satisfied that the highly relevant information provided by one source in particular was not credible as it conflicted with surveillance and intercept reports made by CSIS personnel regarding the same dates and times. It is of particular concern
that these contradictions did not come to light until they were put to the Service witness in cross-examination by the Special Advocates [security-cleared lawyers who can test some, but not all, of the secret case]. That witness was unable to provide satisfactory explanations for
the failure of the Service to analyse the conflicting reports and to disclose this information to the Ministers and to the Court. This suggests a serious lack of analytical capacity in managing the enormous volume of information collected by the Service."

The Almrei decision, in analyzing the public merits of the case, is almost unceasing in pointing out the many flaws in the CSIS approach to these cases, from the use of information for which the original source was not checked, and the use of excerpts from such unreliable sources as
Wikipedia, to the provision of clearly stale and outdated information and misleading and selective quoting from important judicial decisions that actually change their original meaning in a manner meant to, again, cast a negative light on Almrei.

Of course, advocates for secret trial abolition have pointed out such fatal flaws in the process for years; it will forever be a cause of shame that Federal Court justices have been so blind to the bias that so clearly existed, with the resultant, incalculable human cost to the detainees and
their families.

The fact that Mr. Almrei had lied to authorities, which he himself admits, seems to have been blown out of proportion as well. As Mosley quite correctly recognizes, "It is an unfortunate reality that many people lie in their encounters with the authorities over immigration matters.
Particularly those who come from regions of the world where telling the truth to the authorities may not be advisable."

Mosley also takes to task the amazing calisthenics through which CSIS witnesses place the "facts" of their case by building guilt by association. Indeed, he shows how witness Thomas Quiggan, a national security expert, explained that "The Ministers' case is concerned with
inferences drawn from association or linkage to Al Qaeda. The Taliban supported Al Qaeda. Hamid Karzai supported the Taliban. Canada supports Karzai. If you took the logic to its extreme, in Mr. Quiggin’s view, one could say that the Canadian government is linked to Al Qaeda. It is all a question of context."

Another expert witness, Brian Williams, had pointed out that he was stunned to read the Security Intelligence Report on Mr. Almrei, which Williams said he would have given "a failing grade had it been submitted by one of his students." (Interestingly, the exact same words had been used five years ago by a secret trials opponent while in court, and she was taken to task for making such a comment. Times have changed.)

Interestingly, Mosley comes back to Williams' testimony by recalling, "Williams has turned down requests to testify in 14 Al Qaeda related cases. He was sceptical about this one also but agreed to read the materials. As he did, he says, he had a growing concern that the government story did not fit what he knew about the history of the region. He found glaring historical errors and misstatements.

Williams says he would have failed a student who relied on flimsy internet sources such as those in the public summary. In his view, the document was prepared under pressure and with orders to find linkages between Almrei and Al Qaeda. As a result, the analysts used “wiki-intel” to hastily paste together reckless claims. Williams claims he had never seen such a poorly
prepared analysis of this nature."

As Mosley brings his lengthy decision to a close, he points out that one of the government's main contentions -- that Bin Laden retains the resources to launch a major strike, "The source given for this proposition is a January 1999 report from a non-authoritative, and now stale, online source. While that may have been true in 1999, it is questionable to-day." Indeed, it is typical of a larger lethargy in the preparation of the allegations against Almrei, and Mosley laments, "I found it troubling that the work done to prepare the new SIR [security intelligence report] in 2008 had not kept pace with developments in the field. And the sources relied upon by the Service were often non-authoritative, misleading or inaccurate," and "simply recycled stale information without attempting to offer a more balanced and nuanced view."

Mosley also notes that numerous of the human sources in this case provided information from which CSIS "then drew certain inferences from that information which, in my view, were not well-founded," adding "I am satisfied that certain of the human sources in this case had motives to concoct stories that cast Almrei in a negative light."

Almrei, arrested in October 2001 on secret allegations that he could not access or rebut, spent the following four years and two months in solitary confinement, freezing through the first two winters in an unheated cell at Metro West Detention Centre. Many Canadians first heard of Almrei when he went on a 40-day hunger strike to have the heat turned on in his cell in October, 2003. At the time, a classified government memorandum (later released during the Arar Inquiry) revealed that the federal government did not have enough information to lay a criminal charge against Mr. Almrei; that same document expressed concerns that the torture of Mr. Arar in Syrias would make it more difficult to have Mr. Almrei deported to the same fate in Syria.

Almrei, along with Ottawa's Mohamed Harkat (held on security certificate since December 10, 2002), joined the historic 2006 Supreme Court challenge launched by Montrealer Adil Charkaoui (arrested in May 2003) to seek an end to security certificates. The Court, in February 2007, unanimously found that the heart of the security certificate process violated the Charter of Rights and Freedoms, asking how one can answer a case that one does not know. But the federal government simply added some minor changes (including security-cleared special advocates who could test some of what is in the secret file), but the new legislation allowed the detainee no greater access to the case against them than they had before.

Following the transfer of four secret trial detainees to the Kingston Immigration Holding Centre (aka Guantanamo North), Mr. Harkat, along with fellow detainees Mahmoud Jaballah and Mohammad Mahjoub, were eventually released to strict house arrest, leaving Mr. Almrei once again in solitary confinement as the only detainee in the Kingston facility. Released under
house arrest earlier this year, Mr. Almrei has lived on his own, wearing a GPS monitoring bracelet and phoning the government to seek permission to buy groceries, visit doctors, and have friends visit.

The quashing of Mr. Almrei's certificate is the latest blow against the draconian secretive process, which allows for lower standards of justice than those applied to citizens facing equally if not more serious allegations. Reecently, Montreal's Adil Charkaoui saw his certificate
quashed, and Mohamed Harkat uin Ottawa had most of his house arrest conditions dropped. While Public Safety Minister Peter Van Loan has announced that there will be a review of the law because it does not appear to be working, critics of the process note that then Public Safety
Minister Stockwell Day, in February of 2008, praised the new secret trial legislation as among the best in the world.

"The fact that even with the cards stacked so high against the detainees that these cases are falling apart shows how non-existent they are to begin with," says spokesperson Matthew Behrens. "The fact that Mr. Almrei has lost a decade of his life to a process that has detained him with, as the government has admitted, not enough information to even lay a criminal
charge, speaks to how dangerous this process really is."

Behrens notes that the claims these cases are falling apart because of national security concerns -- CSIS does not want to disclose information even in the secret hearings -- is pure rubbish. "As we saw in the Arar Inquiry, the government claims National Security Confidentiality every
time it is worried about being embarrassed, not because anyone is threatened by its release."

While media reports continue to portray these victories as "blows" to a beleaguered CSIS, they fail to see the reality: they are in fact a testament to the almost decade-long struggle of the detainees, their families, and their supporters to overcome vicious lies and scare tactics
and cling to some basic cherished principles, including the presumption of innocence, and the right to see and question one's accuser. They have also continued to struggle for the right of all people in Canada, regardless of citizenship status, to equality in the eyes of the law, a principle
grossly violated by security certificates (along with numerous other attributes of immigration law."

That struggle continues. If you can help, we would appreciate contributions. You can send donations to Homes not Bombs, PO Box 73620, 509 St. Clair Ave. West, Toronto, ON M6C 1C0. The funds will be used for ongoing educational and political work as well as detainee family support.

For more information: Campaign to Stop Secret Trials in Canada,, (416) 651-5800

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