Tuesday, December 17, 2013

Please Support Homes not Bombs During Its 15th Anniversary of Working for Social Justice


25 years ago this month, I found myself sitting in the back of a police car, handcuffed, dressed as Santa Claus, busted with several fellow Santas and elves for trying to remove war "toys" from a store shelf and replace them with cooperative, peaceful games. It was one of many nonviolent actions in which I have had the pleasure of participating, the transformative spirit of which very much undergirds the work of Homes not Bombs.

This year marks the 15th anniversary of Homes not Bombs, the loose-knit network of social justice advocates and nonviolence practitioners who have taken on a wide variety of injustices since we were founded in 1998. We have often been visited by Santa in the course of our work, from resisting the devastating sanctions and wars against the people of Iraq and Afghanistan to singing holiday carols at the immigration detention centres where children – incarcerated simply because they are refugees – wave from behind the bars.

While we generally do not blow our own horn, we felt this would be an opportunity to reflect on some of our successes while also asking that you consider contributing to our ongoing costs so that we can continue on for years to come. 

2013 has been a busy year as we conduct direct action trainings for union locals under attack, provide campaign-building advice for numerous grass roots initiatives that serve to empower youth, and redouble educational and outreach efforts to end violence against women. We also continue working to expose the untold billions spent on Canadian war plans at the expense of social needs at home and abroad, all the while trying to drive home the reminder that we have more power than we know and that positive social change really is possible.

In the past 15 years,  we have many achievements to recall, including:

1. Founding the Campaign to Stop Secret Trials in Canada, the group that took on secret hearing security certificates when few would touch the issue. Our work to advocate for the detainees facing secret hearings and years in solitary confinement eventually contributed to the landmark 2007 Supreme Court decision declaring this medieval process unconstitutional. Two of the five Muslim men subject to the process have had their cases quashed, while three others continue the struggle in the courts. We played a significant role in the preparations for the October, 2013 Supreme Court challenge in the case of Mohamed Harkat, and re-staged our production of Kafka's The Trial in Ottawa with readers including Giller-Prize winner Elizabeth Hay. Significantly, we have made the issue so controversial that CSIS has stopped issuing security certificates altogether. That being said, other repressive tools also involving secrecy in the immigration act continue to be used against a growing number of refugees, and so our work is not yet done.

2. Founding the group Stop Canadian Involvement in Torture, which for years has worked to not only bring home those illegally detained and tortured overseas, but to ensure accountability and apologies for those who still suffer the effects of torture. Our cross-Ontario caravans, educational presentations, and ongoing vigils continue as we raise the uncomfortable questions about Canadian complicity in torture. Our work also inspired the only film made about Canadian complicity in the torture of Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin, the excellent Ghosts (see http://www.youtube.com/watch?v=nJmVhUoFjWo)

3. Leading significant nonviolent campaigns and civil disobedience actions across the province of Ontario, from trying to transform the War Department into the Housing Department to working with our friends in Hamilton to organize the Festivals of Life that led to the closure of the Hamilton War Show. We have also played a major role in focusing on drones (doing so beginning in 2002 when few thought this would become a major issue), with an ongoing campaign at L-3 Wescam in Burlington, as well as focusing on the manufacture of assault rifles and grenade launchers at Kitchener's Diemaco and weapons of mass destruction at Northrup Grumman (Litton) in Rexdale. Many of our actions have led to court victories that provide others engaged in direct action with precedents that can help them win their cases as well.

4. Founding the Anne Frank Sanctuary Committee, which has worked to open churches to the idea of hosting refugees at serious risk if deported. We have won two lengthy cases, saving individuals from deportation to torture, and continue working to find safe spaces for those increasingly at risk as a result of repressive legislation.

5. Working with jailed Canadians held in the U.S. or overseas such as Khalid Awan, held since October, 2001, with many years spent in the infamous "Little Gitmo."

6. Founding St. Clare's Multifaith Housing Society, which grew out of our work with homeless youth in Toronto. Since the late 90s, hundreds of not-for-profit housing units have been constructed by St. Clare's.

While these important landmarks remind us of the power we have to frame an issue, focus in on those perpetrating an injustice, and come up with transformative solutions, they represent in many ways the tip of the iceberg in terms of our ongoing campaigning, much of which begins as individualized advocacy with those who have fallen through the cracks and expands into a wider social justice campaign when we see others facing the same plight.

Our work does not always make the news, but it still goes on, sometimes hidden from view given the delicate nature of some of the cases we handle. But rest assured, we continue on with the important work of nonviolence training, speaking in high schools, providing court support, and organizing public action.

Unfortunately, all of this does cost money, and we rely on the support of individuals like yourselves to help pay those bills for organizing both nationally and provincially.

We hope you can make a significant financial contribution to the work of Homes not Bombs (and perhaps share this with someone who is similarly able to do so).

You can do this three ways:

1. To receive a tax deductible contribution for donations over $100, contact us at tasc@web.ca and we can let you know the details.

2. If you do not need a tax receipt, simply write a cheque out to Homes not Bombs and mail it to PO Box 2020, 57 Foster Street, Perth, ON K7H 1R0.

Thanks so much for your support. If you have any questions please feel free to contact us at tasc@web.ca


Matthew Behrens
Homes not Bombs

Santa Claus Rejects NORAD Escort; May be Placed on No-Fly List


December 17, 2013

            In a little-noticed news release emanating from the North Pole, a jolly senior citizen has asked that his image not be co-opted this holiday season by the Canadian War Dept. and NORAD. In addition, the gentleman, who identified himself as Santa Claus, also refused the militarized escort that NORAD said would be tracking his annual flight around the world.
            "I don't want war planes on my tail, and I don't want children to think I am in any way associated with the type of organization that plans for things like nuclear war and space warfare," Claus said in an exclusive telephone interview with rabble.ca. "Your War Dept. misrepresents me the same way the sales of war toys misrepresent me. I don't make machine guns and toy tanks, and I certainly do NOT want an escort from warplanes or to be tracked by an organization which is working to militarize the heavens."
            Claus was particularly concerned that NORAD uses this annual opportunity to glorify warplanes and drones which are used to drop bombs on and mutilate children in countries like Afghanistan and Iraq, noting that last week, dozens of people in a Yemeni wedding party were massacred by a drone-fired  Hellfire missile.
            Santa says he is disturbed to again find himself the focus of the annual military public affairs operation, designed to normalize for children the idea that the military – as well as military alliances which plan and constantly threaten life on the planet with nuclear warfare, pre-emptive invasions, and environmental destruction – is a benign outfit.
            “I also don’t need to be tracked,” Claus says. “This is the era where we are learning that CSEC in Ottawa and the NSA are watching every move everybody makes, and it’s getting ridiculous. Rudolph the Red-Nosed Reindeer has gotten ulcers out of concern that every time he sneaks into the bushes to do his business, it winds up on some database somewhere and could be used to embarrass him in front of his fellow creatures.”
            The NORAD Tracks Santa website (www.noradsanta.org/‎) is a paean to militarism, inviting young children to play at war and offering videos that are recruitment vehicles featuring martial music more akin to a 1980s Tom Cruise bomb-em-up flick than a period of peace and good will to all. Indeed, one four-minute video making the rounds of community newspaper websites around the globe opens with an image not of Santa but of bomber planes.
            “One of the videos says I did a test flight in cooperation with NORAD, which is a total lie,” Claus said, bemoaning the fact that the tracking site features numerous tributes to an organization that has the power, along with its other “northern command” partners, to commit the ultimate act of nuclear terrorism and obliterate the globe.
            One video features a small child (perhaps the son of US military personnel) stationed in Djibouti, one of over 700 U.S. bases occupying the globe and also the site of a command centre from which drones are launched in countries like Yemen and Somalia. (Djibouti troops do not, notably, maintain a military base protecting their own interests in Florida or Manitoba). While the child talks of going to the beach and riding his bike, it does not mention that one month ago, the African Commission on Human and Peoples’ Rights heard evidence on Djibouti’s role in the U.S.-led (and Canadian-supported) rendition to torture and secret detention program. (http://www.interights.org/news/130/index.html)
            The NORAD tracking site also features holiday songs performed by – who else – the Air Force Academy Band.
            “In the same way the militaries of the world try to convince us that humanitarian aid cannot be delivered without sniper rifles or bombing the heck out of a village first, now they are trying to show that Christmas cannot happen without all of their firepower, and that Christmas carols cannot be sung unless by people who’ve been trained to kill,” Claus said. “Well, I have news for them. The trillions spent on war are what deprive most children of happy holidays, regardless of when they celebrate them.”
            Meanwhile, a heavily redacted Access to Information request appears to reveal why NORAD is tracking Santa, and early indicators are it has nothing to do with his protection nor his mission of delivering joy.
            According to the highly classified document from the Canadian Security Intelligence Service (CSIS), “The Service has reasonable grounds to believe that [name blacked out, but clearly a reference to Claus] is a member of an inadmissable class of persons to Canada based on a variety of associations, travel patterns, and other indicators which constitute a threat to the security of Canada.”
            Among those highly suspect findings, CSIS notes, is Santa’s long beard (“worn in the traditional Muslim fashion that could inspire some radicalized youth to follow bearded individuals such as Osama bin Laden”), his visitation to countries throughout the Middle East and refusal to demonize anyone (“a disturbing inclination towards supporting the human rights of Palestinians,”), his large donations of gifts (“he may be transporting illicit materials that could place him on the United Nations 1267 list, thereby barring him from travelling with goods that could fall into the wrong hands”), past associations (“[subject] did attend at Robben Island prison compound and provide material aid to Nelson Mandela and other members of African National Congress, which Service maintains was, is, or could be a terrorist organization”), has signed petitions urging the release of immigration detainees (including children detained in refugee jails across Canada) and in support of environmental protections (“Service notes subject supports same causes as eco-terrorists trying to block oil sands development”), and his failure to carry a passport.
            “Service also notes that Mr. Claus uses several aliases possibly as a means of avoiding detection, including Jolly St. Nick, Kris Kringle, and, in a special code with woman alleged to be Mrs. Claus, ‘tubby old sock,’ origin for which is still a mystery to Service but further investigation will reveal.” Claus also appears to be under surveillance for carrying of “suspicious” sacks, studious avoidance of customs, and his “religious head gear,” the last of particular concern to Quebec security services attempting to pre-emptively enforce their so-called Charter of Values.

            CSIS also notes with grave concern that at least two of Santa’s reindeer (Prancer and Vixen) have been reading the Koran and allegedly discussed conversion to Islam.
            It is not surprising that Claus would be the subject of concern to “security services,” whose main goals tend toward monitoring outbreaks of democracy and free-thinking inquiry while harassing specific targeted communities using the same vague profiling against, for example, members of this country’s Arab Muslim communities. Santa certainly does have a record of being involved in the same social justice causes that everyone from CSIS and the RCMP to the FBI and CIA have deemed threats to national security. For example, Santa was recently arrested with Walmart workers seeking a decent wage (https://www.commondreams.org/headline/2013/11/29-1), while the busiest resident of the North Pole also managed to take an anti-drones message of Peace to the Australian military (http://www.youtube.com/watch?v=738RSak2yBI). Santa also performed a tripod action for 9 hours in Glasgow this week to protest immigration raids that break down doors and arrest and detain children simply because they are refugees (http://www.indymedia.org.uk/en/2012/12/504004.html?c=on#c290190)
            While Santa is proud of involving himself in social justice activities, he does get weary of his image being used to glorify war, especially given that he annually views the painful reality that is a result of relying on military might to enforce injustice and resolve conflicts. "We see all the children of the world, the ones who have lost legs and arms and eyes to landmines and cluster bombs, the ones who have watched parents murdered with Canadian bullets and machine guns in Iraq and Afghanistan, the ones whose only wish for Christmas is peace on Earth, or the return of a parent or sibling killed by an aerial bombardment."
            Claus has joined Homes not Bombs members on many occasions through the years as an ambassador of peace through justice and goodwill. As such, he has been arrested by Loblaws for helping distribute food he took from their shelves (to help pay back the tens of millions of dollars in unpaid taxes owed by Loblaws), protesting sanctions against the people of Iraq which killed over 1 million Iraqis (this with the aid of the Canadian military whose warplanes are set to tail Santa), the use of secret trial security certificates, the production of war toys, L-3 Wescam’s production of drone technology in Burlington, Ontario, the Hamilton War Show, and many others.
            "There are so many causes for me to support, and I want to support them all, but half the time I'm busy trying to correct the false information about me and what I stand for that's presented by the military and the media," Claus said. "I barely have time to speak with you, much less all the other media outlets who request interviews."
            Rabble.ca’s interview with Claus was cut off when he received a call from one of Canada’s top immigration lawyers, Barb Jackman, to discuss his travel options given the increasingly tight Canadian borders for refugees and the possibility that he may be on Canada’s no-fly list. Indeed, it is unclear whether agents of the Canadian Border Services Agency – a federal department with absolutely no independent oversight– will allow Claus to enter Canada, and there are still many unresolved questions regarding its recent rejection of Jesus Christ, who was deemed a failed refugee claimant and a threat to national security.
            Lawyers at the time had asked for information about CSIS interviews with Christ, but because CSIS does not record interviews nor make verbatim notes, there was little to go on. "The Service noted that Christ appeared unusually calm when pressed about his possible association with prostitutes, beggars, and lepers," read a short half page of notes which were eventually declassified. “Christ also seemed hesitant when asked whether an individual named Joseph was his father, a sign that he was withholding the true nature of his character.” Christ’s anti-government activities also raised a red flag for Canadian border officials.
            Christ was also deemed to be a security threat because he allegedly uses a number of aliases, including Prince of Peace, Jesus of Nazareth, and the Son of God. He had travelled to Canada, like most refugees, on a false passport, because if he had used his real name on travel documents, Roman authorities may have picked him up before he could have fled the country. Christ was also deemed inadmissable to Canada because of his criminal record; he, like all refugees coming to this country, are considered not worthy of being accepted even if those convictions have occurred in countries where there is no due process or internationally recognized legal system. Worse, refugees who have been convicted of minor offences which would be deemed "summary" (or lesser) offences if convicted here in Canada have their record interpreted as indictable (or more severe) upon their arrival here, regardless of the circumstances.
            In another mark against Christ, CBSA points out one particular incident in which the refugee applicant was "particularly violent, overturning a table used by moneychangers in a temple frequented by Canadian money speculators." Canada's Criminal Code notes that a terrorist is anyone who "damages property outside of Canada because a person or entity with an interest in the property or occupying the property has a relationship with Canada or a province or is doing business with or on behalf of the Government of Canada or a province."
            While Christ remains in detention with hundreds of never-charged  immigration detainees in Lindsay (many of whom are again on hunger strike), Santa will no doubt be writing the phone number of his lawyer on his arm in the event he needs to make that call. If there’s nothing under your tree December 25, you may want to consider posting bail for the latest in a long line of wrongly imprisoned migrants and travellers caught up in the nightmare of Canada’s immigration regime.


Sunday, December 1, 2013

Why Do We Jail Women Who Choose to Live?


(Trigger alert, this story contains disturbing reports of assault)
            Earlier this year, the World Health Organization released a comprehensive study that found more than a third of all women worldwide – 35.6% – will experience physical or sexual violence in their lifetime. The great majority of this violence is committed by intimate male partners in acts that can only be described as domestic or home-grown terrorism. It’s the latest in an endless stream of similar reports on this form of domestic terror, but Canada and other governments refuse to both recognize the extent of the crisis and respond accordingly.
            When the report was released, WHO Director General Dr. Margaret Chan declared, "These findings send a powerful message that violence against women is a global health problem of epidemic proportions. We also see that the world's health systems can and must do more for women who experience violence." The report found that of the women who experience direct attacks, 42% require some form of hospitalization.
            In confirming what more than half of the population already knows is a daily reality, the WHO report did not exactly produce a firestorm of response and calls for urgent action from government leaders.  Instead, their “war on terrorism” focuses on racial and religious profiling, the jailing of innocents, the closing borders to refugees, extra-judicial assassination by Canadian-made drones, and continuation of indefinite detention and rendition to torture programs. There are no massive interventions that address the greatest purveyors of fear and violence in Canada and around the world: the men in women’s lives.
            As of April, 2010, there were an astounding 593 women’s shelters in Canada. Earlier this month, the Ontario Association of Interval and Transition Houses released its annual Femicide report, a grim reminder of women’s lives snuffed out by men in Ontario during 2013 (http://www.oaith.ca/assets/files/OAITH%20Final%202013%20Femicide%20List-%20Nov%202013.pdf). And despite a United Nations call for Canada to develop a comprehensive national review to end violence against aboriginal women, Canada’s envoy to the UN in Geneva rejected the idea. Similarly, in 2010, Canada adopted a National Action Plan for the implementation of United Nations Security Council resolutions on Women, Peace and Security which included supporting the rights of girls and women abroad, but it has failed to deliver on its promise of annual and midterm reports.
            Perhaps that is due in part to the fact that Canada’s rhetoric about supporting women’s rights (a mainstay of its justification for the occupation of Afghanistan) rings hollow. In Afghanistan, Canada’s presence does not appear to have moved things forward for women. Indeed, the United Nations Assistance Mission in Afghanistan reported last December that women who flee rapists and abusive husbands are regularly jailed by the hundreds for alleged “moral crimes.”  Among those jailed are those who have defended themselves against and, in the process, wounded or killed rapists.
            Lest one conclude that Afghanistan is just “behind the times”, it is worth noting that here in North America, women who choose to live by defending themselves are similarly jailed in alarming numbers. In the U.S., the Michigan Women’s Justice and Clemency Project, found: "The average prison sentence for men who kill their intimate partners is 2 to 6 years. Women who kill their partners are sentenced, on average, to 15 years." 
            Marissa Alexander, an African-American mother of three, did not kill her abusive ex-partner when he physically attacked her and threatened her with death only nine days after she gave birth. She fired a warning shot into the ceiling to scare him off, and as a result is serving 20 years of hard time in Florida. During her trial – one in which the judge rejected her “stand your ground” defence - the same rationale used by the state of Florida for failing to arrest the man who murdered Trayvon Martin – Alexander recounted numerous incidents of severe physical abuse including choking, attempted strangulation, and other incidents that required hospitalization. She lost the ability to swallow as a result of her injuries and lost ten pounds. She subsequently obtained a domestic violence injunction against her ex. In 2010, when she was five months pregnant, she was “head-butted” twice, her clothes torn, and thrown to the ground. During all these episodes—and at other times, as well—he threatened to kill her. At trial, numerous witnesses testified about seeing Alexander's injuries, while in-laws of her abusive husband testified about his reputation for violence. One witness confirmed that Marissa Alexander met the criteria for “battered person’s syndrome.” 
            On top of this, her abusive husband admitted in a sworn affidavit, “The way I was with women…they never knew what I was thinking or what I might do. Hit them, push them. …I honestly think [Marissa] just didn’t want me to put my hands on her anymore, so she did what she feel like she have to do to make sure she wouldn’t get hurt, you know. …The gun was never actually pointed at me.”     
            While an appeals court recently rejected her contention that she should have been granted immunity from prosecution under Stand Your Ground (under which an individual can use deadly force if “he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm”), it did find, in granting her a new trial, that the jury was given the wrong instructions. The original judge essentially placed the burden of proof on Marissa Alexander when it came to showing that she was about to be attacked and needed to act in self-defence. The appeals court confirmed that Alexander “was charged with aggravated assault but – under any possible review of the evidence– inflicted no injury.”           
            While a new trial was a breakthrough, Alexander’s supporters called on the state to drop the charges and let her go free. Unfortunately, the state of Florida is pursuing the trial option, and a hearing to determine whether Marissa will be freed on bond and returned to her children (she has not seen her youngest child in three years) took place earlier this month, with a decision expected by the end of the year.  Meanwhile, the man who continually assaulted her and threatened to take her life walks free.   
            I have had the privilege of corresponding with Alexander while she has been in jail. She is a compassionate and insightful person who recognized immediately upon going behind bars how many women were also in her shoes: they too were in jail because they chose to live, and the judicial system simply could not understand the terror that constituted their daily lives.
            Closer to home is the case of Ottawa’s Ashley White, 25, who earlier this year was found guilty of aggravated assault (and acquitted of attempted murder) for stabbing her abusive former boyfriend. She faces a possible maximum of 14 years behind bars for defending herself. According to press reports on her trial, White’s former boyfriend, Patrick Halcro, aged 36, a veteran of the Afghanistan occupation who suffers PTSD, often went into fits of rage and jealousy. He admitted in court to punching her and smashing her head into a door frame. As QMI News reported, he claimed, "I used proportional force. I felt threatened."
            White suffered a shattered nose and cheekbone, requiring facial reconstruction surgery, in addition to post-concussion syndrome and a diagnosis of PTSD. The Ottawa Sun reported, “Medical evidence suggested her head trauma and the shock of seeing her face bathed in blood could have placed her in a state where she wouldn't have known what she was doing when she stabbed Halcro. As for Halcro, the knife blade nicked his lung but a trauma surgeon said the injury was relatively minor.”
            At one point in the trial, White’s lawyer noted that after pummeling her, Mr. Halcro stepped over her bloodied body to retrieve his luggage. “Your luggage was more important to you than checking on Ashley,” the lawyer said. According to QMI News, “He said he didn’t realize the extent to which he’d hurt her until he got his bag and noticed a lot of blood where White had collapsed.”
            The Ottawa Sun reported that White “remembers being pummelled on the floor as he loomed over her until she could no longer see and felt like she was going to die. He said: ‘I am trained to kill you and I will kill you’ or something like that, White said.”Four years after the original beating, White remains out on restrictive bail, while her ex was never charged. A community of friends has come together to try and assist her with her massive legal bills, both for the trial and an expected appeal. That group has formed a Facebook page, on which they write: “We strongly believe [Ashley] was wrongly convicted of aggravated assault for stabbing her abusive ex-military boyfriend. After being beaten so badly she would later require reconstructive surgery and in a state of near unconsciousness, Ashley fended off the attack with a kitchen knife. It has never been explained why he was never charged and why the lead detective never testified in court, yet Ashley’s life is changed forever. Ashley’s friends and supporters are planning a fund-raising event to help her cover the $90,000 accumulated costs to date and $50,000+ she is facing in future legal fees.” To join that facebook page, where you can leave messages of support and donate to her costs, visit https://www.facebook.com/pages/Friends-of-Ashley-White/471297956316613
In the meantime, Marissa Alexander’s supporters ask that you contact FreeMarissaNow@gmail.com and visit https://www.facebook.com/FreeMarissaNow
And http://www.justice4marissa.com/    As Canada marks the International Day for the Elimination of Violence Against Women on November 25, it is a reminder of how much work remains to be done, not simply on symbolic days, but every day as the war against women grinds mercilessly on.

Tuesday, October 22, 2013

Supreme Court’s Secret Hearing and Judge Nadon’s Charter Dismissal

By Matthew Behrens
            Just before Thanksgiving, the Supreme Court of Canada held two days of hearings regarding the fate of Mohamed Harkat, detained in prison and under house arrest for over a decade by a secret trial security certificate, the reasons for which he has never been allowed to know and challenge. October 10 was a public hearing that he could attend, while October 11 was one he was not invited to, nor were his lawyers, the media, or the public. In fact, the eight judges of the Supreme Court disappeared to hold a secret hearing somewhere in Canada.

            The ninth judge, the recently sworn Marc Nadon, was at neither hearing, having stepped aside pending the completion of a legal challenge launched by Toronto lawyer Rocco Galati.  While commentators have focused on the constitutional mechanisms underlying Galati’s challenge, there are plenty of other reasons to have concerns about Nadon sitting as one of the nation’s top judges.  Exhibit 1 could be, perhaps, an exchange between Galati and Nadon that occurred some 13 years ago during the security certificate proceeding against Mohammad Mahjoub (arrested in June, 2000, and still awaiting the outcome of his case, which could include deportation to torture in Egypt).

            During that long-ago hearing, Galati asked a high-level CSIS staffer, Ted Flanagan, whether lawyers for CSIS ever advise their agents about Canada’s Charter of Rights and Freedoms, especially in the context of interrogating individuals like Mr. Mahjoub.  At that point, Mr. Nadon, then a Federal Court judge, chimed in with a response that reeked of a failed German defence at Nuremberg: “I would be very surprised if Mr. Flanagan and his colleagues ever spend any time reflecting on this," said Nadon. "They carry out the policy and the operations. I don’t see why Mr. Flanagan should worry about the Charter. I don’t think it is his job.” Considering that CSIS, at that time, had made secret allegations about Mr. Mahjoub that would lead to his ongoing detention and house arrest for 13 years (continuing to the present moment), Nadon’s feeling that Charter rights were not something CSIS should be messing with perhaps escaped the notice of the Supreme Court’s interviewing committee.

Charter is Not Their Business
            That it should not be their business to know Charter rights would also appear to be the position of the RCMP officers who, on the morning of the secret Supreme Court hearing, October 11,  attempted to remove a small group of  demonstrators posing as “crime scene investigators.” They had appeared at the court building looking for clues about the missing judges. As the small crew set about their work in the style of a CSI drama, complete with evidence tags, magnifying glasses, binoculars, and other tools of the trade, Mounties demanded answers about the lack of a permit for the group to gather. When it was explained that the “permit” in question was called the Charter of Rights and Freedoms, they failed to understand, preferring to call for backup. As a 5-year-old was joined by two seniors with magnifying glasses scouring the Supreme Court steps for clues, the Mounties further objected to the presence of Crime Scene tape laid out in front of the Court building.

            “We are concerned that the public might think this is a crime scene,” one Mountie said. 

            “Well, it IS a crime scene,” came the reply, noting that members of the public, invariably tourists, were shocked to discover the judges were holding such a hearing. 

            The crime scene investigators took their search through downtown Ottawa, stopping in at the Dept. of Justice, the Federal Court (where savvy investigators were able to wrangle out of the head of security that there are multiple secret locations in Ottawa where Federal Court judges hold their secret hearings), and the Canadian Border Services Agency, where they raised the issue of the ongoing migrant detainee hunger strike in Lindsay. This CSI tour concluded two days of activities that included a public staged reading of Kafka’s The Trial (an eerily prescient look at secret trials from almost a century ago) with such high-profile Ottawa-area writers as Elizabeth Hay, Alan Cumyn, and Monia Mazigh, as well as the public hearing the previous day, which attracted such an overflow crowd that additional rooms with video screens had to be opened up.

A Surreal Scene
            It was surreal to sit in the Supreme Court once again for the third such challenge to security certificates since 2006. Among those who attended were former secret trial detainees (since cleared) who had watched the original hearing seven years ago from a facility dubbed Gitmo North, a returnee from torture whose life had been ruined by false allegations made up by CSIS and the RCMP, and some of Canada’s top civil rights litigators.

            For this writer, a taxi ride into downtown Ottawa to ensure a seat at the Court was a disappointing but unsurprising reminder that regardless of court decisions attempting to rein in Canada’s secretive spy agency, the CSIS machine of harassment, infiltration of communities, and incessant efforts to turn communities and families against one another continues unabated. In this instance, the taxi driver explained how CSIS was constantly calling her to meet, to acknowledge whether she knew any of the hundreds of people whose photos she was shown, asking her to “friend” certain individuals on facebook and ask questions of them, make visits overseas and await further instructions upon arrival, and visit other cities to investigate the individual’s relatives. When she asked why I thought meeting with CSIS in such a manner was not safe, I mentioned a number of recent cases of horrific human rights abuses flowing from CSIS misbehavior, but the individual confessed to not knowing the names of Maher Arar or Abdullah Almalki, both Ottawa residents whose lives were ruined by CSIS and RCMP allegations that federal inquiries found to be dangerously inflammatory and false.

            The public hearing at the Supreme Court revealed a scattered government case that clearly did not impress the eight judges hearing it. Judges were frustrated that they could not get straight answers out of the government (perhaps giving them a tiny inkling of what Mr. Harkat must experience), especially when they wanted to know whether it was seen as constitutional to base a judicial decision on information that was secret and not even summarized for an individual.

Secret Cases NOT Built by Choir Boys
            In addition, the question of whether or not secret informants could be cross-examined by security-cleared special advocates – something that was denied in the Harkat case – resulted in an ironic response.    Justice Dept. lawyer Robert Frater appeared shocked at the query, and declared, “You’re talking about bringing an informant into a closed national security hearing. Informants are not choirboys, they’re not Good Samaritans.” Perhaps a reasonable individual would at this point ask: if that is the case, how can you base a secret case against an individual who faces dire consequences on the unchallenged word of such individuals, especially when one of them failed a lie-detector test and one of them was apparently having an affair with the investigating officer from CSIS?

            Indeed, as Judge Lebel reminder Frater, “To assess the reliability of information you have got to know where it comes from. We have an example in this case of a situation where a person was not reliable and (yet) was presented to the court as being reliable.”

            In addressing the problems of secrecy and the flimsy bits of summarized allegations that are made public in these cases, Harkat lawyer Matthew Webber referenced what he called a “quite startling” finding that points to how “dangerous” this process can be. A recent security certificate decision noted that there were overlapping summaries of an alleged phone conversation produced by CSIS monitors in  different geographic regions. “So Monitor A and Monitor B are both listening to the same conversation and they engaged in their respective summarization processes and [it was] discovered these two summaries purported to be summaries of the same conversation [but] didn’t even resemble one another. You wouldn’t have known that the summaries were talking about the same conversation” except for the discovery by special advocates that the summaries both referenced the exact time and date. On such a basis are secret hearing cases built, another reason why transparency in any case is so crucial.

Wrongful Convictions
            “In Canada we have far too many examples of individuals who have been wrongly convicted on the basis of mistakes made at the investigative stage by the police,” said Breese Davies for the Criminal Lawyers’ Association. “There is no reason to assume that security intelligence investigations will be less fallible or more reliable. In fact, we have recent examples of where dire consequences have been occasioned to Canadian citizens” because of practices that are less than accurate or truthful. Indeed, she called on the Court to be especially vigilant given the fact that CSIS is well known to have make mistakes in terms of voice identification, translations, in the selection of and omission of information from summaries, in their analysis, and their refusal to include exculpatory information.  

            While some judges pressed the lawyers for solutions to the ongoing conundrum of security certificates – with the chief judge worrying about an ongoing “cascade” of such challenges coming before the court – there was, unfortunately, barely a word about secret trials abolition. This was not good news for those subject to the process, nor the hundreds of asylum seekers who have had secret allegations used against them at refugee hearings since 2008.

            At day’s end, the chief judge McLachlin accidentally let slip that the court would resume the next day at 9:30 am, and had to be reminded that they would not be sitting in the court, since it was a “closed” hearing. 

             Meanwhile, that ninth seat on the bench was being warmed for Mr. Nadon, the man who upheld Mr. Mahjoub’s security certificate in 2000 based on secret allegations (and, as CSIS later revealed, information gleaned from torture.) But Mr. Nadon does not appear to worry himself about such niceties as Charter rights when it comes to individuals being tortured (as Mahjoub will likely be if deported), nor was he too concerned when it came to the torture of Omar Khadr at Guantanamo Bay. In a decision on the repatriation of Khadr, Nadon was clear: “I am far from convinced that Canada had a duty to protect Mr. Khadr,” he said of the Canadian teenager tortured in Afghanistan and Gitmo, adding “Canada has taken all necessary means at its disposal to protect Mr. Khadr during the whole period of his detention at Guantanamo Bay…. It is clear that Canada has decided not to seek Mr. Khadr’s repatriation at the present time. Why Canada has taken that position is, in my respectful view, not for us to criticize or inquire into.” 

            Referring to the interrogation of Mr. Khadr by Canadian officials, which occurred following torture that included sleep deprivation (in violation of Charter and international rights), Nadon’s position was similar to the one he took in the Mahjoub case when it came to CSIS not having to worry itself with such annoyances. “The fact that Canadian officials interviewed (sic) Mr. Khadr cannot amount to cruel and unusual treatment, even if these officials were aware that Mr. Khadr had been deprived of sleep. Mere knowledge of Mr. Khadr’s mistreatment cannot be equated with participation in such mistreatment.”

             Such an argument might have raised a few eyebrows at Nuremberg.  

            Mr. Harkat, meanwhile, like Jozef K in The Trial, awaits the outcome of a process in which someone was saying something about him, but he is not allowed to know why.

Tuesday, October 1, 2013

Ottawa Writers and Performers Read Kafka's The Trial in Conjunction with Supreme Court Challenge to Secret Trials

Thursday, October 10, 7:30 pm

St Paul's University Amphitheatre, 223 Main Street, Ottawa

            A few short hours after the Supreme Court of Canada hears the public portion of a precedent-setting secret hearing on Thursday, October 10, a collection of Ottawa-area writers and performers will gather at St. Paul's University at 7:30 pm, to read a staged adaptation of Kafka's The Trial, the classic novel that begins, "Someone must have been telling lies about Joseph K., for without having done anything wrong he was arrested one fine morning."

            Ottawa-area writers Elizabeth Hay, Alan Cumyn, Monia Mazigh, Louisa Taylor, and Matthew Behrens will be joined by performers Teri Loretto, Laurel Smith, Richard Gélinas, and Zachary Council in reading a special adaptation of The Trial that contrasts the original novel's surreal story of a man trapped by anonymous allegations and the threat of indefinite detention with Canada's security certificate system, which condemns individuals to years behind bars without charge, based on secret allegations neither they nor their lawyers, the media, or public are ever allowed to see and challenge.

            Ottawa's Mohamed Harkat, arrested on International Human Rights Day, December 10, 2002 on a security certificate, is still fighting the government's secret case and potential deportation to torture in Algeria. His case will be heard in public on October 10 and then, in a dangerous precedent, the Supreme Court will retire to conduct a secret hearing at an undisclosed secure Ottawa location on Friday the 11th.

            "We read Kafka to understand how easily our nightmares become the life we create for ourselves, and for others," says Cumyn. "'The Trial' is a wake-up call, sadly never out of date, not even in Canada, not even now."

            An adaptation of The Trial was first presented in Toronto in 2005 and featured readers including Ann-Marie MacDonald, Charmion King, Bernard Behrens, Linda McQuaig, Naomi Klein, Avi Lewis, Heather Mallick, and Stuart McLean. The adaptation, written by Matthew Behrens, was inspired by his attempts to send a copy of Kafka's The Trial to his friend, secret trial detainee Hassan Almrei, then marking four years in solitary confinement without charge  in Toronto. The book was not given to Almrei for undisclosed national security reasons, the ultimate Kafka-esque experience: a novel about secret hearings being kept out of the solitary confinement cell of someone subjected to secret hearings.

            Behrens, the national security columnist for rabble.ca, has also coordinated the Campaign to Stop Secret Trials in Canada since August, 2001, working closely with the detainees, their families, lawyers, and community supporters to raise awareness of the issue and challenge the unconstitutionality of security certificates. A 2006 Supreme Court challenge proved successful, but the Harper government simply reintroduced a new version of the old secret trial regime with a few additions, including secret hearings conducted by "special advocates" who can see some of the secret case. The detainees, however, are no closer to learning the basis of the case against them, although declassified CSIS documents reveal much of the regime is based on information gleaned from overseas torture.

            "For years, we have said these secret trials are the thin edge of the wedge, and here we are in 2013, with virtually no transparency when it comes to access to information requests, constant government claiming of secrecy, and proroguing of Parliament as common as season change," says Behrens. "If you had asked in 2005 whether we would still be fighting security certificates alongside these men 8 years later, I would have thought it rather unlikely, but here we are, with all the revelations of malfeasance from CSIS and RCMP, and the courts still bow their head in deference when these scandal-plagued agencies request their secret hearings. I think most Canadians would be appalled to know the Supreme Court is holding a secret hearing on October 11."

    Admission to The Trial is pay what you can, with suggested donation of $10, though no one will be turned away for lack of funds.

Further information: The Campaign to Stop Secret Trials in Canada, (613) 267-3998 or tasc@web.ca

Tuesday, August 27, 2013

Canada’s Burning Chambers: A Secret Supreme Court Hearing in October

By Matthew Behrens
On October 11, as many Canadians focus on the best place to purchase a Thanksgiving turkey, the Supreme Court of Canada will be in session, but anyone wishing to attend that day’s hearing will find the Court building empty, and the nine judges missing. Outside of a small handful of individuals, no one will know where the country’s highest court will be sitting or what will be discussed. In a shameful concession to the “national security” agenda, Canada’s Supreme Court will be holding a secret hearing in the same manner as judges in dictatorships from Pinochet’s Chile and South African Apartheid to the burning chambers of the French inquisition (so named because all daylight was blocked out, and only torches were used both to light the rooms and, eventually, to set afire those condemned as heretics). 

The man whose case is not being heard in public that day is beyond tired of secret trials. Mohamed Harkat, arrested on International Human Rights Day in December, 2002, has faced over a decade of secret hearings held by the Federal Court of Canada, from which he and his lawyers have been excluded. Despite the fact that the GPS tracking device that has been strapped to his body for seven years was removed this summer, Mr. Harkat remains subject to a “security certificate” process which applies only to refugees and permanent residents and, like the days of the burning chambers, presumes named individuals guilty, has a lower standard of proof than that afforded Canadian citizens, and dispenses with the standard rules of evidence, allowing judges to base their decisions on information “even if it is inadmissible in a court of law.” Just as the evidence of tortured “witches” at Salem was used to condemn other suspected “witches,” so it is in Canada, wherein the Canadian Security Intelligence Service (CSIS) admitted in a recently released document that having to exclude information gleaned from torture would result in the collapse of its whole security certificate process.

The secret trials regimen was declared unconstitutional by the Supreme Court of Canada in 2007 in the seminal Charkaoui decision, in which the court asked, plainly, how one meets a case one does not know. On October 11, Mr. Harkat will be no closer to knowing the case he has to meet. His partially public hearing will be held on October 10.

It says something about the degraded system of Canadian justice that the nine individuals who have the ultimate legal say when it comes to fundamental issues such as due process and rule of law will be sitting in secret session, adding go the growth of a parallel secret judicial system that is bound to grow and flourish along with other trends toward secrecy in Canadian government. 

Indeed, the use of secrecy, especially under immigration legislation, has grown in leaps and bounds. During this fall’s public portion of the secret hearing, the Canadian Council for Refugees (CCR) and the International Civil Liberties Monitoring Group (ICLMG) will point out that immigration tribunals are increasingly accepting secret information that cannot be contested by refugee claimants. Under Section 86 of the Orwellian Immigration and Refugee Protection Act, the Immigration Minister may, using the exact same procedures of the security certificate, apply to introduce secret allegations. There there have been over 100 such cases since 2008. As the CCR and ICLMG note out in their Supreme Court submission, “Canada and other states appear to be normalizing what was intended to be an exceptional procedure, expanding [secrecy’s] use in other areas, including in criminal trials.” As a result of this increasing acceptance, officials worried about embarrassment or criticism of their decisions are over-claiming national security. In addition, there is the “development of a [secret] body of jurisprudence available only to the court and the Minister…[but] not to public counsel; [and] the appearance of an inordinately close relationship between the Court and the state which serves to undermine confidence in the judiciary.” 

While it is no secret that judges are members of the elite and are usually deferential to power, the secret hearing process elevates their coziness with state agencies to obscene levels. Annual findings by relatively toothless “oversight” agencies like the Security Intelligence Review Committee and the (now abolished) office of the CSIS Inspector General conclude that CSIS is woefully inept when it comes to identifying real security threats, engages in racial profiling, trades in torture, exaggerates to make a case, withholds evidence that may prove someone’s innocence, and commits huge errors of fact and judgment. Despite thesefindings, the courts (and the media) continue to defer to CSIS requests for secrecy and non-disclosure. Swept aside are appeals for openness by individuals whose lives are plagued by the constant itch of not knowing what is being used to deport them to torture or keep them under a permanent state of house arrest and intrusive state surveillance.

Apart from the odd grumbling of judges who “wrestle” with conducting secret hearings without the detainee or his lawyer present (former Federal Court Judge James Hugessen famously remarked that he and others involved in such proceedings feel like “a fig leaf”), almost all of them slog on anyhow in a morass of bureaucratic inertia whose banal nature would be a subject of great interest to Hannah Arendt.

That Canadian judges are rejecting 800 years of legal tradition dating back to the Magna Carta is certainly not new. Two Supreme Court judges (Taschereau and Kellock) served state interests in the post-war Red Scare, presiding over a mid-1940s inquisition in Ottawa that was marked by a presumption of guilt; the indefinite, incommunicado detention without charge of individuals who were denied access to counsel; detainees threatened with being shot; and compelled testimony under threat of contempt. Notably, nine people declared guilty by the judges at the inquiry were later acquitted in court and two never went to trial. (Judges who engaged in similar practices in Germany during the Third Reich would eventually find themselves in the dock at Nuremberg.)

                  More recently, significant portions of the inquiry into the torture of Canadian citizen Maher Arar (2004-06) were conducted in secret by Ontario Associate Chief Justice Dennis O’Connor, while former Supreme Court Judge Frank Iacobucci shamefully presided over a completely secret inquiry into Canada’s role in the torture of Canadians Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin. Not a single punctuation mark of a single document was ever released to the men, their lawyers, or the general public in what can only be described as one of Canadian history’s great acts of judicial subservience to fear  and the unsubstantiated claims of its paranoid spy service. The men are now engaged in protracted legal proceedings to seek accountability from the government, a process again cloaked in efforts to retain or redact as much as possible any potential disclosure that would document the government’s complicity in torture. 

                  Stateside, some judges have spoken out. One Detroit judge showed the kind of courage rare among his breed when he stared down orders from Washington to keep deportation hearings of individuals suspected of terrorism bound in secrecy. With five simple words, Judge Damon A.  Keith earned himself a spot on the bright side of history when he began his ruling in the case of Detroit Free Press v. Ashcroft by reminding all parties concerned that  “democracies die behind closed doors.”

                  Similarly, in 2005, U.S. District Judge John Coughenour of Seattle, in sentencing Ahmad Ressam to prison for his apparent role in a plot to bomb Los Angeles airport, made a cogent point often lost on his fellow judges when he opined: “We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel, or invoke any proceedings beyond those guaranteed by or contrary to the United States Constitution…We can deal with the threats to our national security without denying the accused fundamental constitutional protections.”

However, having the odd judge pipe up is not at all comforting when the systemic trend is toward the burning chambers.  Following the eventual fall of the Pinochet dictatorship in Chile in 1990, a truth and reconciliation commission asked how it was that judges who had previously upheld the rule of law reverted to rubberstamping the dictatorship’s decisions and refusing to hear individual and family habeas corpus applications to determine where, exactly, their loved ones were being held and if in fact they were still alive.

                  The commission found “legal oversight was glaringly insufficient with respect to the personal rights that were being violated by government agents to an unprecedented extent. The judiciary, which in view of the Constitution, the law, and the nature of its functions, was the government institution called to protect those rights, failed by not acting more forcefully. Moreover, they failed to do so even though from the beginning churches, lawyers, the victims' relatives, and international human rights agencies were furnishing the courts with information on actions by government officials that violated human rights. The country was surprised to see the courts take such a stance, for it was accustomed to regard the judiciary as a staunch defender of the rule of law.”

                  In defiance of the contemporary record and all norms of logic, the president of Chile’s Supreme Court, on March 1, 1975, boldly declared: “With regard to torture and other atrocities, I can state that here we have neither firing squads nor iron curtains, and any statement to the contrary is the product of a press that is trying to propagate ideas that could not and will not prosper in our country.” He denied the existence of forced disappearances, and complained that the large number of habeas corpus actions that had been introduced prevented the courts from dealing with “urgent matters.”

                  “Urgent matters” and “national security” remain the buzzwords around the growing secrecy trend in many Canadian government circles, from Parliament (where committees are spending at least 25% of their time in secret session) and the denial of requests under the Access to Information Act to the erasure of documents from government websites. At the same time, CSIS annual reports before 2000 are no longer online (one can now call directly to get copies and, no doubt, have your name  placed in a database), and the Arar Commission of Inquiry hyperlink now goes to a financial services website.

                  Suzanne Legault, Canada’s Information Commissioner, recently noted that although the Access to Information Act is celebrating 30 years, it is “tired and out-of-date. Worst of all, over that period our access to information rights have been slowly eroded by a variety of constraints, practices and amendments to the act.” Incredibly, neither the House of Commons or the Senate is subject to access to information requests. (http://www.thestar.com/opinion/commentary/2013/06/27/bring_canadas_parliament_under_access_to_information_act.html).

When we have access legislation that works properly, we have citizens who are better informed and, as a result, more fully engaged as participants in their democracy,” Legault said.

 While recommendations to update the Act will be brought before a less than welcoming Parliament this fall, there remains the issue of Canada’s top judges meeting in their burning chamber. While one of the judges who presided over the Salem Witch Trials, Samuel Sewall, famously apologized for his role in condemning the innocents, it was too late for his victims. Canada’s secret trial detainees, Canadian returnees from torture seeking accountability and justice, and the growing number of refugee claimants caught up in the Kafkaesque secret hearing process, cannot wait years for an apology that may never come. They need judges of character and conviction who will acknowledge the truism that democracies die behind closed doors, and demand an immediate halt to the abusive practices of bureaucracies that have become too easily seduced by the lure of secrecy and the catch-all claim of national security.

The Campaign to Stop Secret Trials in Canada, in conjunction with Justice for Mohamed Harkat, is inviting people to attend the public hearing on October 10 in Ottawa, and to protest the secret hearing on the 11th both in Ottawa and in front of court buildings across the country.