Canada Defies United Nations and Paves the way to Deport Secret Trial Detainee Mahmoud Jaballah to Torture in Egypt
New Immigration Decision Violates Canada's Legal Obligation NEVER to deport ANYONE to Torture
Maher Arar Calls on Government to End Deportation to Torture
(see bottom of this primer on writing letters to government officials on this issue)
TORONTO, OCTOBER 4, 2005 -- Four months after the United Nations called on Canada to respect the absolute prohibition on deportation to torture, the Governmment of Canada has for a second time denied protection to secret trial detainee Mahmoud Jaballah, paving the way to deportation to that exact fate in Egypt.
Jaballah, a father of six held without charge or bail since August, 2001, on secret evidence neither he nor his lawyers are allowed to see, expects to challenge the decision in Federal Court sometime in October. Jaballah and his family claimed refugee status when they arrived in Canada in May, 1996, following a decade of persecution, arbitrary arrests and detentions without charge, and torture in Egyptian prisons.
R.B. Thornton, a delegate of Citizenship and Immigration Minister Joe Volpe, acknowledges in a 15-page deportation decision that in 2002, a Government of Canada pre-removal risk assessment officer concluded "there are substantial grounds for believing that the applicant [Jaballah] would be killed or tortured should he be required to return to Egypt."
The Federal Court has twice ruled that this assessment constitutes a final determination as to the risk faced by Mr. Jaballah if deported. R.B. Thornton writes in the September 23, 2005 decision that "there is the possibility that Mr. Jaballah will be subject to torture or even the death penalty if he were to return to Egypt," but proceeds to deny Jaballah's application for protection.
Mr. Jaballah is one of five Arab Muslim men subject to a security certificate, which allows the government to hold individuals under indefinite detention based on secret evidence. This deportation decision is the first to be released in the cases of the Secret Trial Five since the landmark United Nations Committee Against Torture report, released May 20, 2005, calling on Canada to comply with the absolute prohibition on deportation to torture (see http://incat.org/cat_reccomendations.php). Decisions about whether Canada will grant protection for or deport to torture three other men subject to security certificate -- Mohammad Mahjoub, Hassan Almrei, and Mohamed Harkat, all at risk of torture or death if deported -- are expected in the coming months.
The startling Jaballah deportation decision also comes on the heels of three judicial reviews of similar decisions which were challenged in 2004. All of them were found to be "patently unreasonable," "unlawfully made" and, in one case, "perverse." A fourth deportation decision was withdrawn by the federal government earlier this year as well.
While judges of the Federal Court have yet to rule on the legality of deportation to torture, the Jaballah case may prove a touchstone that leads to a final determination about whether such decisions are legal in Canada. Justice Eleanor Dawson, writing in a January 31, 2005 judgment on the deportation decision for Mohammad Mahjoub, did, however, note that there are "powerful indicia that deportation to face torture is conduct fundamentally unacceptable; conduct that shocks the Canadian conscience and therefore violates fundamental justice in a manner that can not be justified under section 1 of the Charter."
While Mr. Jaballah fights the deportation decision, he is also challenging the provisions of the security certificate scheme which prevent him from applying for bail while the deportation issue winds its way through the court system. Arguments in that case resume October 19 in Toronto.
At a time when Canadians have learned a great deal about the shocking role of their government in the deportation to torture of Maher Arar, Ahmed El-Maati, Abdullah Almalki and Muayyad Nureddin, it is remarkable that this government continues to pretend as if there is nothing wrong with deporting someone to such a fate, says a spokesperson for the Campaign to Stop Secret Trials in Canada.
Maher Arar, writing from Ottawa, comments: "As someone who has suffered and endured physical and psychological torture at the hands of a regime that does not respect basic human rights, I find it very shocking that Canada will deport Mr. Jaballah to Egypt, a country it admits, practices torture on detainees.
"There is nothing on earth that justifies shipping off someone to torture. The best way to have security is to support and promote justice. If someone is guilty of breaking the law then he should be allowed to see the evidence against him and to defend himself in an impartial and fair manner.
"It is about time for Canada to repair the damage that was done to its reputation since it was criticized by various human rights organizations for being directly or indirectly complicit in sending people to torture. Canada has a choice to make and I hope it chooses the right one by committing not to send people back to countries where they will face a substantial risk of being abused and tortured."
Deportation to Torture: UN Calls on Canada to Respect the Law
The UN Committee Against Torture (CAT) had to remind Canada of the absolute nature of the prohibition against deportation torture in its May 2005 review of Canadian compliance with the Convention against Torture.
In its report, CAT expressed concern, inter alia, over:
(a) the failure of the Supreme Court of Canada in Suresh v Minister of Citizenship and Immigration to recognise, at the level of domestic law, the absolute nature of the protection of article 3 of the Convention that is subject to no exceptions whatsoever;
(c) the blanket exclusion by the Immigration and Refugee Protection Act 2002 (section 97) of the status of refugee or person in need of protection, for persons falling within the security exceptions set out in the Convention on the Status of Refugees and its Protocols; as a result, such persons' substantive claims are not considered by the Refugee Protection Division or reviewed by the Refugee Appeal Division;
(d) the explicit exception of certain categories of persons posing security or criminal risks from the protection against refoulement provided by the Immigration and Refugee Protection Act 2002 (section 115, subsection 2, of the Act);
(e) the State party's apparent willingness, in the light of the low number of prosecutions for terrorism and torture offences, to resort in the first instance to immigration processes to remove or expel individuals from its territory, thus implicating issues of article 3 of the Convention more readily, rather than subject him or her to the criminal process;
(f) the State party's reluctance to comply with all requests for interim measures of protection, in the context of individual complaints presented under article 22 of the Convention."
Despite these justified concerns and its clear international obligations, Canada is continuing its attempt to deport the security certificate detainees.
In the course of this effort, the Canadian government has sought and obtained "diplomatic assurances" from several foreign governments. This practice was exposed by a Human Rights Watch report of April 2004 which makes the claim that diplomatic assurances are being used as a kind of "legal" extraordinary rendition programme: "Some states appear to be returning people based on diplomatic assurances with the knowledge that torture will be used upon return to extract information and confessions regarding terrorist activities and associations. ." (Empty Promises: Diplomatic Assurances No Safeguard against Torture, www.hrw.org)
A second report, published in April 2005, Still at Risk, examines Canadian security certificates, and the cases of Adil Charkaoui and Mohammad Mahjoub. The report concludes that Canada should repeal its security certificate provisions as a matter of urgency.
Although the security certificate detainees are denied their right to seek asylum, they are entitled to apply to the Minister of Immigration for temporary protection. In this process, the risks they face are weighed against the threat they allegedly pose to Canada &endash; in contravention of the absolute prohibition on deportation to torture.
The following are excerpts from the various decisions issued by delegates of the Minister of Immigration along with comments of human rights groups and Federal Court judges:
Hassan Almrei, Syrian Refugee, held without charge since October 2001 in solitary confinement:
"Given my experience, and what I lived through, and what I heard happening to other people in prison in Syria, I believe Mr. Almrei would face the same ordeal, if not worse. I still cannot believe that human beings treat human beings that way in Syrian prison. There is nothing that justifies sending people to countries where torture is commonplace." - Maher Arar
"Even if Mr. Hassan Almrei were to be at risk [of torture or cruel and unusual punishment], I am of the opinion, pursuant to s. 115(2)(b) of the Immigration and Refugee Protection Act, that he should not be allowed to remain in Canada on the basis of danger to the security of Canada." - Minister's delegate, 23 Oct. 2003
This decision (23 October 2003) was reviewed by Federal Court Justice Edmond Blanchard, who concluded in March 2005 that it was "patently unreasonable," on technical grounds, adding that the minister's delegate "rendered a decision based on erroneous findings of fact that she made in a perverse manner." The decision was accordingly sent back to the government for re-assessment.
Mahmoud Jaballah, Egyptian Refugee, held 9 months in 1999, released, re-arrested August 2001 and held without charge ever since
"It is my opinion that there are substantial grounds for believing that the applicant [Jaballah] would be killed or tortured should he be required to return to Egypt." - Pre-removal Risk Assessment Officer, Immigration Canada, 15 August 2002
"Despite the PRRA officer's assessment, which I am obliged to accept, that Mr. Jaballah is at substantial risk, I am of the opinion, pursuant to para 113(d) of the Immigration and Refugee Protection Act, that his application for protection should be refused on the basis of danger to the security of Canada." Minister's delegate, 30 December 2003
This decision (30 December 2003) was rejected as "patently unreasonable" by Federal Court Justice Andrew MacKay on 22 March, and the Minister was asked to rewrite it (new decision rendered September 23, 2005, with the same conclusion as in 2003: deport to torture or death). Again, the judge did not pronounce on the legality of deportation to torture.
Mohammad Mahjoub, Egyptian Refugee, held without charge since June 2000
"It is my opinion that, on the balance of probabilities, Mr. Mahjoub could suffer ill-treatment and human rights abuses after he is detained [if returned to Egypt]. However, it is my opinion that he should not be allowed to remain in Canada because he is a danger to the security of Canada as per section 115(2)(b) of the Act." - Minister's delegate, 22 July 2004
This decision (22 July 2004) was the subject of a judicial review by Federal Court Justice Eleanor Dawson, who concluded that the decision was "patently unreasonable" and needed to be remitted to the government for another assessment, noting the minister's delegate "did not consider whether the avoidance of torture would constitute a good reason" for allowing Mahjoub to stay in Canada. Judge Dawson still refrained from the question of legality of deportation to torture.
Adil Charkaoui, Permanent Resident of Canada, held without charge from May 2003 to February 2005, currently under bail and strict conditions
"On the assessment of Amnesty International, there exist serious grounds to believe that Mr. Charkaoui would be victim of torture, cruel and inhumane treatment; even a death sentence has become more than probable since the latest reform of the Moroccan penal code." - Amnesty International, 28 July 2003 (unofficial translation from French)
" there exists a probability of torture, of threat to life, and of being subject to cruel and unusual treatment or sentence if he returns to Morocco." - Pre-removal risk assessment officer, Immigration Canada (21 August 2003 but withheld from Charkaoui until April 2004)
" the extent of allegations reported by families and lawyers and the effective inability to challenge the admission of confessions alleged to have been coerced, leave us concerned about the risks that Mr. Charkaoui might face if he is compelled to return to Morocco." - Human Rights Watch, 25 March 2004
"I adopt a different point of view from that of the pre-removal risk assessement agent, because I was able to consult the document containing the assurances of the Moroccan authorities According to this document, I note that Mr. Charkaoui is not the object of any arrest warrant in Morocco and that the Moroccan authorities confirmed that they would not prosecute him. . In the event that I have underestimated the risk that Mr. Charkaoui faces, I am convinced that he falls into the criteria established by the Suresh case and that the extraordinary danger that he represents to the security of Canada outweighs the risk he faces on return to Morocco. Consequently, we should not permit him to remain in Canada." - Minister's delegate, August 2004
Diplomatic assurances were sought by Canada on 18 February 2004. They were obtained in a letter from Morocco, 18 April 2004, which states that Morocco has laws against torture in compliance with international law, and in any case had no judicial proceedings against Charkaoui. However, in February 2005, the Minister of Justice of Morocco told Canadian journalists that Morocco had had a warrant &endash; issued but not executed - against Charkaoui since September 2004. Canada initially denied that any such warrant existed.
The presumed grounds for the new interest of Morocco in Charkaoui is found in newspaper articles that came out in Morocco in April 2004, at around the same time that assurances were sent to Canada. It consists of a "confession" by Noureddine Nafiaâ, a convicted terrorist in Morocco, which apparently named Charkaoui. Nafiaa was on hunger strike in April 2004, and has repudiated the alleged confession, saying that he was forced to sign a blank statement under torture.
The Canadian Minister of Immigration announced in March 2005 that the August 2004 decision to deny protection to Mr. Charkaoui should be reassessed, in light of the Moroccan warrant.
"As we know all too well from the experience of Maher Arar, diplomatic assurances are no guarantee against torture. Morocco, together with Egypt and Jordan, are often cited as the three countries on which the United States relies to render suspects up to torture. A Canadian decision to refuse protection to Mr. Charkaoui raises serious questions about Canada's possible complicity with this practice of rendition."
- International Civil Liberties Monitoring Group, 17 August 2004 (ICLMG is a coalition of more than 30 NGOs, unions and human rights groups, chaired by Amnesty International and the Canadian Council for International Cooperation (CCIC))
Background: Reviewing Decisions to Deport to Torture
In his decision quashing the security certificate against against Mr. Jaballah in 1999, federal Court Justice Bud Cullen wrote "We also heard from the respondent [Jaballah] and his wife that they were both tortured while detained and, in point of fact, this caused the wife to suffer a miscarriage. This part of his testimony rings true and it does seem obvious that he was endeavouring to get out of Egypt."
Although Jaballah's original claim for refugee status was declined, a Pre-removal Risk Assessment Officer with Immigration Canada, concluded on August 15, 2002 that "It is my opinion that there are substantial grounds for believing that the applicant [Jaballah] would be killed or tortured should he be required to return to Egypt."
The Minister's delegate wrote December 30, 2003 that "Despite the PRRA officer's assessment, which I am obliged to accept, that Mr. Jaballah is at substantial risk, I am of the opinion, pursuant to para 113(d) of the Immigration and Refugee Protection Act, that his application for protection should be refused on the basis of danger to the security of Canada."
In a stinging rebuke to that 2003 conclusion, Federal Court Judge Andrew MacKay declared on March 22, 2005, that the decision to deport Mahmoud Jaballah to torture in Egypt "not lawfully made" and "was patently unreasonable based upon a finding of facts made without appropriate regard to all of the evidence and circumstances of the case."
It was the third such decision in which the immigration minister's decision to deport to torture has been labelled "unreasonable," "unlawful" and, in one instance, "perverse" by federal court judges. Similar decisions were reached in the cases of secret trial detainees Mohammad Mahjoub and Hassan Almrei, and the government withdrew its deportation decision in the case of Adil Charkaoui earlier this year in lieu of a new determinatio,.
MacKay seems perturbed by the ease with which decisions are now being made by the Canadian government to deport to torture, despite our signatory status to the Convention Against Torture, which prohibits such a practice. He notes, with a fairly disapproving tone, that a decision by the immigration ministry's pre-removal risk assessment branch that Jaballah faces "a risk of death or torture if he were returned to Egypt" was "accepted, with some apparent reluctance, by the Minister's delegate who determined on December 30, 2003 that Mr. Jaballah's application for protection should be refused."
It is quite disturbing to read that such a hearing would even be taking place, as MacKay notes "both parties [i.e., government and Jaballah] accepted that there is no longer any question that there is substantial risk of death or torture faced by Mr. Jaballah if he were returned to Egypt."
As in the Almrei and Mahjoub cases, MacKay found that the immigration decisionmaker in Jaballah's case did NOT have all the relevant information necessary to make an assessment of Jaballah's alleged risk to the security of Canada. In a subtle jab at the political bias in the decision making, Mackay also notes that the minister's delegate quotes only a part of the Supreme Court of Canada "Suresh" decision (which talks of "exceptional circumstances" that would justify deportation to torture).
In an interesting analysis, Mackay finds that the oft-abused quotation allowing such exceptions has perhaps been overblown because of what he calls a simple clerical error in mistakenly assigning a paragraph number to the citation. "The effect may be to give undue emphasis to the Supreme Court's acknowledgement that the possibility is not excluded, in exceptional circumstances, of deportation to face torture." He also finds that the Minister's delegate, in quoting the Suresh decision, "omitted words which, in my view, provide context for the passages quoted. The words omitted are these:
"The Canadian rejection of torture is reflected in the international conventions to which Canada is a party. The Canadian and international perspectives in turn inform our constitutional norms. The rejection of state action leading to torture generally, and deportation to torture specifically, is virtually categoric. Indeed, both domestic and international jurisprudence suggest that torture is so abhorrent that it will almost always be disproportionate to interests on the other side of the balance, even security interests."
A fairly important omission, but nonetheless one which is regularly made in the rush to deportation to torture.
MacKay also deals with Jaballah's argument that consideration should be given to the best interests of his six children, two born in Canada, one in Pakistan, three in Egypt, "There was no consideration that one of those children, born in Pakistan, may have no status in Egypt," MacKay writes, adding, "Whatever their status in Canada, simply to conclude, as the decision does, that Mr. Jaballah's 'proposed deportation from Canada would not deprive his children of his emotional and financial support any more than his current detention has,' implicitly ignores the substantial risk of death or torture facing Mr. Jaballah if he be deported to Egypt, and the effect that may be expected to have upon his family members, including children born in Canada or in Pakistan....Simply put the decision, in my opinion, does not adequately take into account the best interests of any of Mr. Jaballah's children, who would be directly affected by a decision that he is, or is not, a person in need of protection at this time."
MacKay also finds that in the determination of alleged risk to Canada, "there is no reference to circumstances facing Canada or its security, other than the [unsupported] conclusion that it is endangered by Mr. Jaballah's presence in Canada." Again, it appears to be a political decision based on fear, racism and the unjustified labelling of Mr. Jaballah, not on any factual basis.
MacKay closes his reasons by reminding us that for a decision to be lawful, it must be made within the law. With that obvious-sounding caveat (which nevertheless appears to elude the immigration ministry), Mackay concludes with a cautionary note about the need to canvass the issue of "the full implications of Parliament's inclusion of paragraph 3(3)(f) of the IRPA [Immigration and Refugee Protection Act] that 'this Act is to be construed and applied in a manner that...(f) complies with international human rights instruments to which Canada is a signatory."
Mackay's decision follows closely on that with respect to Mohammad Mahjoub, another Egyptian refugee who faced a similar decision from the minister who, according to Federal Court Justice Eleanor Dawson, writing January 31, 2005, "did not consider whether the avoidance of torture would constitute a good reason" for allowing Mahjoub to stay in Canada.
Although Dawson did not rule on that issue, she came close to closing the door on the possibility of deportation to torture, an issue which she says will have to be determined by the Supreme Court. "I acknowledge an issue of importance has been raised which I do not decide: whether circumstances would ever justify deportation to face torture," she concluded.
Having said that, however, she then makes the strong observation that there are "powerful indicia that deportation to face torture is conduct fundamentally unacceptable; conduct that shocks the Canadian conscience and therefore violates fundamental justice in a manner that can not be justified under section 1 of the Charter." Among the indicia to which she refers are the domestic prohibition against torture in Canadian law; section 12 of the Charter, which prohibits cruel or unusual punishment "(reflecting that, within Canada, torture is seen to be so repugnant that it can never be an appropriate punishment); extraditing a person to face torture has been found to be inconsistent with fundamental justice; and, a strong argument exists that international law prohibits deportation to torture, even when national security interests are at stake."
Major Problems with the Deportation to Torture Decision
While the decision to deport to torture will be subject to a thorough judicial review in Federal Court, it is worth noting in the meantime that much of the report is constructed with a focus on hysteria and fear, and is nowhere actually founded on solid, factual evidence. Rather, it is filled with speculation, innuendo, guilt-by-alleged association, and leaps of illogic. Perhaps most disturbing is the minister's delegate's prefatory confession that "Much of the information that I have reviewed is classified and as these reasons are public cannot be referred to here."
Given both recent and historical revelations about the questionable honesty, ethics, analysis, and bias of CSIS, which prepares the secret case against security certificate detainees, there are real concerns about the nature of the "evidence" being used to come to the remarkable conclusion that Mr. Jaballah -- never charged, much less convicted, of any offence in Canada -- poses any threat to Canada. The recent report by the Security Intelligence Review Committee (SIRC) skewering the spy agency for unacceptable and prejudicial assessments in the case of consular appointee Bhupindar Liddar serves as a crucial reminder of the danger of relying on the sole and, in the case of the secret evidence, uncontested word of CSIS (see section on CSIS abuses).
Indeed, the deportation decision relies heavily on a much discredited three-page report produced by CSIS in an apparent reaction to the release in February, 2005, of Adil Charkaoui, a secret trial detainee held almost two years in Montreal. That report concludes (not surprisingly) that security certificate detainees can never be released, but does so based on false premises, withheld information, and newspaper articles which are quoted verbatim without atrtribution (see CSIS REPORT, below)
As in the CSIS allegations which are made against secret trial detainees like Mr. Jaballah, the language of the deportation report is purposefully inflammatory. For example, what is a common occurrence in Canada --the arrival of a refugee on a false passport -- gets blown into the more sinister-sounding statement that Jaballah arrived in Toronto "having evaded airline screening procedures en route to Canada with a high-quality fraudulent Saudi Arabian passport bearing a name not his own."
The minister's delegate also concludes: "Despite the fact that he obtained a university degree in Egypt and has worked for several years in various locales as a teacher, he did not obtain full-time employment while in Canada." Yet anyone familiar with the hundreds of thousands of immigrants to Canada whose credentials are not recognized here knows what a familiar situation this would be, and it is clearly not a cause for raising national security concerns. Mr. Jaballah did not speak English so he was unlikely to be hired by the Toronto District School Board upon his arrival. Besides which, from 1999 until his second arrest, he did work full time at night as a cleaner while working during the daytime as head of an Islamic school.
The deportation decision reflects on the names of schools in Pakistan where Mr. Jaballah taught. "Open source information indicates that the latter [school] has known ties to a number of Arab militants who were actively contributing to the jihad in Afghanistan. I consider this information significant as in my opinion it links Mr. Jaballah to the war in Afghanistan and is evidence of his sympathy for the militant cause espoused by the Taliban and Al-Jihad." This is a breathtaking leap in logic. First of all, Jaballah's wife also taught at that school, yet she has not been arrested on security certificate., Also, the jihad in Afghanistan was CIA-funded. Third, does everyone who works at a school necessarily know about the activities of everyone else there? It is pure guilt by alleged association backed by speculation based on secret "evidence."
Most of the allegations that are brought forward in the deportation decision have long ago been dealt with in Federal Court, especially in the 1999 decision by Federal Court Justice Bud Cullen to quash the certificate against Mr. Jaballah because Jaballah was found to be credible, and CSIS to be not credible. Indeed, the second certificate on which Mr. Jaballah is held is based on the same evidence that was before the court in 1999, only this time CSIS claims to have a "new interpretation" of the case that was already dismissed as not credible.
Throughout the decision the minister's delegate makes startling conclusions about Mr. Jaballah's alleged beliefs and state of mind, even though the minister's delegate has never interviewed Mr. Jaballah, his family, or his friends.
The minister's delegate also makes light of an Interpol notice posted by Egyptian police, yet no extradition request has ever been sent to Canada from Egypt for Mr. Jaballah. Further, Interpol is not an organization that screens requests for arrests based on the human rights situation or pattern of police abuses in a country. Essentially, it's a police club, and anyone can post stuff to Interpol, regardless of its factual basis.
The report also contains startling and unfounded allegations about the Africa embassy bombings in 1998, but Mr. Jaballah is not named in the U.S. indictments related to the bombings nor has his extradition been sought by the Americans.
The allegation that Mr. Jaballah received funding and support from terrorist organizations is again groundless, and certainly does not explain why Jaballah had to work 8 hours a day as principal of a school and then 8 hours at night as a cleaner to make ends meet as his family of seven struggled to get by in a cramped two-bedroom apartment.
Statements with respect to Mr. Jaballah's life before coming to Canada are based on conjecture, innuendo, and unfounded attacks on Jaballah's credibility. Indeed, in 1999 Justice Cullen thoroughly reveiewed Jaballah's life before coming to Canada and found his account to be credible. With respect to the laundry list of names, Jaballah willingly shared this information with respect to those he had met or was in contact with, usually to help him in making his refugee claim.
But the Minister's delegate continues to act as if s/he learned the trade from the CSIS school of presenting selective information. For example, the report claims Mr. Jaballah was in touch with an individual named Ibrahim Eidarous, whom the report notes was arrested in the U.K. in 1999 in connection with the embassy bombings in Africa. Presented as is, this sounds ominous enough. But what the report does NOT reveal is that Mr. Eidarous was among those detainees unconditionally released by Britain following the December 2004 Law Lords decision which found their detention unlawful.
Mr. Jaballah has openly discussed his connection (or lack thereof) with other names mentioned in the deportation to torture decision. Most of the names come from a British organization that he called on the advice of a Canadian lawyer with respect to his refugee claim. Others are individuals with whom he had no contact after 1999, and certainly long before he knew of any allegations against those individuals.
In terms of the reference to anonymous PO Boxes, Mr. Jaballah has repeatedly explained why he rented such one such box: to communicate with his brother in Egypt without drawing harassment from Egyptian authorities. He only had the PO Box in Scarborough for three months, never received mail there, and it expired while he was in jail in 1999.
The report also relies heavily on a discredited CSIS document.
CSIS REPORT: WITHHELD INFORMATION, GROUNDLESS ASSUMPTIONS
After the release of security certificate detainee Adil Charkaoui in February, 2005 (Federal Court Judge Simon Noel found that, even IF Mr. Charkaoui had posed a risk before his arrest, the passage of time had likely neutralized such a risk), CSIS appears to have set about a process that would refute such a rationale in the other cases coming up for bail.
In June, 2005, in anticipation of the release applications of Mohammad Mahjoub and Hassan Almrei, CSIS produced a three page report entitled "Islamic Extremists and Detention: How Long Does the Threat Last?" designed to counter the argument made by Justice Simon Noel. This document, presented to the Federal Court, contains numerous sweeping generalizations and headline grabbing conclusions unsupported by empirical data.
For example, the introduction to the report states "Violent beliefs of extremists will not fade with time," as if indoctrination or training of Muslims is somehow unique or irreversible. The report uses the term "Violent Islam", serving to brand anyone following the Muslim faith, devout or otherwise, as a danger.
The report refers to training camps in the 1980s and 1990s without referring to funding sources or Western support for them.
Under the heading "Once a Terrorist, Always a Terrorist?" CSIS claims that "given the nature of the ideology imparted, those who spent time in these camps, do not, as a rule, choose to abandon their cause." No supporting documentation is provided for this remarkable assertion, leading us to conclude that anyone who is accused of holding such beliefs can never change and is, therefore, not safe for release.
Then, CSIS presents what appears to be an alarming fact which is, in fact, selective information which, when viewed in its proper context, loses much of its emotional punch: "At least 10 detainees released from the Guantanamo Bay prison after US officials concluded they posed little threat have been recpatured or killed fighting US or coalition forces in Pakistan and Afghanistan," the statement begins.
On its own, the sentence sounds ominous, and appears to support the once-a- terrorist-always-a-terrorist thesis.
CSIS does not reveal that this sentence was taken verbatim from an October 22, 2004 Washington Post article that states, in fact, that the 10 detainees who have been released are "but a fraction of the 202 Guanatanamo Bay detainees who have been returned to their homelands." What appears to be a sinister trend is, when viewed in its context, a relatively insignificant figure, and would tend to weaken the CSIS argument that detainees can never be released.
CSIS Pattern of Abuses: Deportation Based on Their Word
The recent release of a Security Intelligence Review Committee report on the case of Bhupinder Liddar, who had been deemed a security risk by CSIS, is instructive inasmuch as it refers to patterns of behaviour by the spy agency which have been apparent to those targetted by security certificates for years. SIRC reports that it was "purposefully misled" by CSIS as it tried to "suppress information that was embarrassing to the Service." SIRC notes that in the case of denying clearance to Mr. Liddar, "the brief contained an unfairly and prejudicially inaccurate account of the information in the possession of CSIS at the time it commenced the security clearance investigation." The report also finds that the CSIS field investigation "made unwarranted findings that Mr. Liddar was dishonest in his security screening interview" and that CSIS perpetuated a bias againat Mr. Liddar
The potential for abuse in the gathering of "evidence" that is used against a person named in a security certificate is enormous. From the refusal of CSIS to tape record interviews or take verbatim notes to the selective withholding of certain facts which go against their theory about an individual, CSIS is allowed to behave in a manner that due process would not permit. It is clear why such a process does not meet the rigour of a criminal court proceeding, as we saw in the case of the Air India bombing. If there is a dispute between what an individual says in an interview and what CSIS reports was said, it becomes the word of a foreign national or refugee against that of a CSIS officer.
People subject to investigation who are not white Christians are challenged on their personal beliefs or habits in a manner that would be considered inappropriate were it applied to a non-Muslim.
In the case of Mohammad Mahjoub, CSIS officers testified that they asked Mr. Mahjoub his opinion on The Satanic Verses, using the rationale that it was a controversial book in the Muslim world. When asked if the agent had ever questionned Catholics, the agent admitted that he had; however, when asked if he had ever asked a Catholic their opinion of The Last Temptation of Christ, the Martin Scorsese film which, like Satanic Verses, also erupted in a storm of controversy and protest, including death threats, the answer was no.
In the case of Hassan Almrei, the RCMP seized a home computer and downloaded its contents. They put together a picture book which featured pictures of Osama bin Laden, airline cockpits, and AK-47s, which they say came from Mr. Almrei's computer, "proving" that Almrei is a fanatical follower of Al-Qaeda. The Federal Court refused to allow a request that the RCMP produce a witness to discuss how the incriminating book was put together. Friends who went through the eventually returned computer testified in court that the images, which were part of a temporary internet cache, had been part of news web pages (such as CNN and BBC) in the days after Sept. 11, when such images would have been found in the internet caches of hundreds of millions of people across the globe. What the RCMP did NOT do was show the other images in the cache, which included pictures of angels weeping over the ruins in New York City, ads for weight loss, soft porn web links, and links to MP3s. The selective use of these images, without proper context or full disclosure, unfairly tarred Mr. Almrei's reputation in the eyes of the court. The selective use of such material was in fact part of a CSIS pattern which has been criticized in Security Intelligence Review Committee (SIRC) reports as recent as September, 2005.
Mr. Almrei was interviewed for all of 10 minutes by CSIS three days before his arrest, and essentially asked a number of broad questions which in no way could have provided the foundation for his arrest (had he ever been to Afghanistan, did he know Osama bin Laden).
Oftentimes, information which is revealed in the "reasonable opportunity to be heard" portion of the hearing produces information of which CSIS was wholly unaware, and which is later used in an incriminating fashion against the individual. For example, before Hassan Almrei was arrested, CSIS knew little about the Syrian refugee's past. In the fall of 2002, Almrei produced a solemn declaration laying out his whole life on paper, discussing the various things he had done while overseas and the path to coming to Canada as a refugee. It appears that agents would have run every phrase of Almrei's declaration through the google search engine to see what they could come up with, and used that "information" against Almrei as he applied for bail and sought to stop his deportation to torture.
Part of his declaration stated Mr. Almrei had run a small honey stand in Saudi Arabia. So when CSIS ran "Saudi Arabia" and "honey" and perhaps even "Al-Qaeda" into the search engine, they came up with a bizarre article that appeared in the New York Times, which alleged that the honey business fronted money for al-Qaeda. No proof was provided other than unnamed sources in the U.S. administration.
To illustrate that this honey malfeasance was a major scandal and that CSIS had done its homework, CSIS also produced a BBC web report which essentially repeated the Times story, but since it was from the BBC, they claimed they now had TWO sources of credible information (had the CBC picked up the BBC version of the Times story, they would claim that there were THREE credible sources of information, even though they all repeated the same unfounded allegations in the original source).
The article in question, "Al Qaeda -- Trade in Honey is Said to Provide Money and Cover for bin Laden," appeared in the Times in October, 2001, and was composed by the much discredited Judith Miller, who willingly reported false information about alleged weapons of mass destruction in Iraq as part of the build-up to the US invasion of Iraq.
In another instance of sloppy CSIS work, the public summary of allegations against Mr. Almrei, released in 2005, lists a concern related to Ibn Khattab, a mujahedin fighter who was killed by the Russians in 2002. Mr. Almrei admits he had met Khattab fleetingly and travelled with a group headed by Khattab to Tajikistan.
A CSIS summary of allegations dated July 14, 2005, states "ALMREI is aware of the background and current activities of Khattab."
On its own, the allegation sounds eerie and suspicious. But then, anyone who reads the newspapers or even the CSIS summary knows the current activities of Khattab.
In cases where individuals have been interviewed by CSIS, the public portions of the proceedings have revealed time and again that CSIS officers do NOT record the interviews, do NOT take verbatim notes, sometimes do NOT provide a translator (or when they do, the translator's skills have been called into question or, as in the case of Mr. Jaballah, the translator falls asleep), and certainly rarely advise the individual that consent to an interview is voluntary or of the right to have a lawyer present. CSIS has admitted that any notes which they do take down are taken back to the office and incorporated into a broader summary, and then destroyed.
CSIS interview techniques are designed to trick or badger an interviewee into saying something that fits the CSIS theory about an individual. They will intentionally mispronounce a name while asking, "Do you know this person," drawing a negative response. They will later pronounce the name properly, eliciting a "yes," but CSIS notes from such an encounter often read as if the individual is trying to hide something, only later to "confess," thus painting the individual as untruthful or untrustworthy. Such notes often state that the interviewee becomes "agitated" or "defensive" but since there are no verbatim notes or tape recordings, it is difficult to determine exactly what happened, reducing the matter to an often white CSIS agent's word against that of an Arab Muslim male who has already been labeled a security threat. An analysis of notes in security certificate cases shows that this is often a cookie-cutter approach, with the same keywords to destroy credibility (i.e., "individual became agitated at the mention of this name," "individual first denied knowing, but upon further questioning, suddenly revealed knowing.") (from CSIS interview notes, Mahjoub, 2000)
In the case of Mr. Jaballah, CSIS agents denied threatening or badgering Mr. Jaballah that he would be sent to prison or deported if he refused to spy on the community for them. A tape recording of one of those sessions, done by Mr. Jaballah's 12-year-old son, was later produced in Federal Court in 1999 and formed part of the basis for finding that Jaballah, not CSIS, was credible.
A cursory overview of SIRC reports will reveal a pattern of abuses by the CSIS.
SIRC's 1999-2000 report raises questions "about some beliefs the Service has about the nature of the threat. We are of the opinion that these beliefs are sometimes overdrawn."
The SIRC report points out one instance, likely illustrative of many more, in which a CSIS application for warrant powers contained "a number of overstatements."
In another case, "information put forward was more than a decade old and the information adduced was derived from one source's 'feelings.'
"One source's speculation was quoted. Some assertions that the target engaged in 'suspicious activities' appeared to us to be misleading or exaggerated."
"For another person targeted, [CSIS] failed to include in the affidavit significant information of which it was aware which contradicts its own position on the person."
In yet another case, a hyperactive CSIS treated as a threat activity what "seemed to be routine diplomatic behaviour," while in another case, "with little corroborating information, CSIS ascribed intelligence gathering motives to apparently normal consular contacts."
Each annual report produced by SIRC stresses the importance of CSIS getting its facts right. The fact that a 21-year-old spy agency needs such ongoing prodding is frightening.
SIRC concludes we need the best possible national security advice "unencumbered by unfounded speculation." (Security Intelligence Review Committee Annual Report, 1999-2000)
"The Committee identified a small number of instances where CSIS collected personal information that the Committee felt was of questionable relevance to the targets' threat-related activities. The Service disagreed with our observation." (2001-02)
In the same report, SIRC found "several minor instances in which the affidavits were not consistent with the supporting documentation. While none of the errors were material in nature, the Committee believes that CSIS must continue to pay scrupulous attention to its affidavit drafting procedures...CSIS should strive for the utmost rigour in its warrant acquisition process, ensuring that allegations in the affidavit are factually correct and adequately supported in the documentation."
That SIRC finds it necessary to offer this reminder 20 years into the agency's existence is worrisome.
Part of the problem with the SIRC evaluation of CSIS is that it can only examine a small number of the thousands of cases CSIS is art of every year. In addition to being an oversight body with a dangerously close relationship in terms of worldview, it is unclear in SIRC reports how often such "small instances" are in fact part of larger pattern.
Please send letters to Immigration Minister Joe Volpe (address below), whose delegates continue making these dreadful deportation decisions, and cc them to Prime Minister Paul Martin (email@example.com ), Anne McLellan, Deputy Prime Minister, (McLellan.A@parl.gc.ca), and Justice Minister Irwin Cotler (firstname.lastname@example.org). A sample letter is below. It can be personalized to suit your own writing taste and style!
Room 658, Confederation Building
House of Commons
Ottawa, Ontario K1A 0A6
Phone: (613) 992-6361
Fax: (613) 992-9791 email@example.com, Minister@cic.gc.ca
Dear Mr. Volpe:
I am writing to demand that the Canadian government stop defying international and domestic law in its efforts to deport to torture Egyptian refugee Mahmoud Jaballah, as well as the other secret trial detainees -- Mohammad Mahjoub, Hassan Almrei, Mohamed Harkat and Adil Charkaoui. It is clear both from the Canadian government's own assessments and the opinions of respected international human rights groups that the lives of these men are at risk if deported.
Officials in the Canadian government consistently speak out against torture, yet still make decisions to deport people to torture. Of course, the fact that deportation to torture hangs over the heads of the Secret Trial Five -- and that these men have been jailed indefinitely without charge on secret "evidence" for years on end, separated from their loved ones, often in solitary confinement, never knowing what will happen -- is a form of torture as well, which can only be remedied with immediate release from this unjustified incarceration.
When Prime Minister Paul Martin spoke at the United Nations on September 16, 2005, he said, "Respect for human rights is the living heart of democracy, the key to unlocking the potential of every person to contribute to their own welfare and to the prosperity and security of their communities."
How can that kind of vision be consistent with a government that sends people to be tortured or killed?
How can Canada say it supports the United Nations and then ignore the United Nations Committee Against Torture, which called on the Canadian government in May of this year to respect the absolute prohibition on deportation to torture that Canada is legally bound to respect?
Justice Minister Irwin Cotler told the Globe and Mail on August 30, 2005 that "as a matter of policy, torture must everywhere and always be condemned." The Globe then paraphrased Cotler: "And officials must not do anything that would encourage or make them complicit in acts of torture, Mr. Cotler said. 'That would be the policy of the government of Canada.'"
How do these comments square with the September 23, 2005 decision to deny protection to Mr. Jaballah, opening the door to deporting him to torture? And will your government continue to defy the United Nations and choose to deny protection to the other men currently subject to secret trial certificates?
It is time for you as immigration minister to put a halt to these deportation proceedings and bring Canada in line with international law. Indeed, the Immigration and Refugee Protection Act states that its provisions must be construed and applied "in a manner that complies with international human rights instruments to which Canada is signatory." This would obviously include the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and its absolute prohibition on deportation to torture.
As Maher Arar wrote on October 2, 2005, "Canada has a choice to make and I hope it chooses the right one by committing not to send people back to countries where they will face a substantial risk of being abused and tortured."
I anxiously await your reply to my letter and hope that you, as Immigration Minister, and the rest of your government, will make the right choice.
Name and address
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