Welcome to the Occupation:
A Report on the Bail Hearing for Muhammad Mahjoub, May 2003
(Report from Matthew Behrens of Homes not Bombs)
Residents of Toronto up early on Saturday morning might be forgiven for thinking they were either on the set of Arnold Schwarzenegger shoot-'em-up flick or in the middle of a growing police state.
Traffic reports warned drivers of a police motorcade making its way through downtown streets, accompanied by about 15 motorcycles, related police vehicles, and a helicopter flying overhead.
The eventual stopping place for this motorcade was the Courthouse at 361 University Avenue, where two acts of criminalization were taking place: in one courtroom, jurors were deliberating on whether or not three members of the Ontario Coalition Against Poverty should be thrown away for resisting the deadly policies of the Ontario government.
In another, and this was the reason for the sudden display of police force, was a bail hearing for Mohamed Mahjoub, a convention refugee from Egypt who has been in jail since June, 2000, much of it in solitary confinement, on a CSIS security certificate.
Anyone who wishes to attend the bail hearing must have a strong stomach for heavily armed tactical RCMP units--some sixty officers are stationed throughout the building--many dangling submachine guns as they stroll through the halls of injustice. Some are so loaded up with weapons of mass human destruction it's a wonder they can move and, as we watch some of them go into the men's room, an even greater wonder that they are able to answer nature's call.
Backpacks are not allowed, despite the presence of x-ray machines (many thanks to OCAP supporters who watched over a long row of backpacks on the courthouse steps!). Some people are told they are not allowed upstairs unless they are a witness. Muslim men, even one whose beard consists only of five o'clock shadow, are subjected to facial scrutiny.
Those who "pass" this stage are given a special court pass, escorted to an elevator operated by yet another court officer, and then taken in small groups to the seventh floor of the courthouse. Once there, they are escorted down a hallway with heavily armed RCMP stationed here and there, and then through another airport-style security screening system.
Remember, this is all for a man who has never been charged or convicted of anything. People who attend the trials of white guys who have murdered their wives are not subjected to such abuse.
This show of force is completely unnecessary for "security reasons," as Mahjoub is already bound with chains around his waist, leg irons, and handcuffs throughout the hearing. None of this was on display when Mahjoub's original hearing was held. It has not been in such powerful evidence at similar security certificate hearings at 361 University (though there still has been a significant step-up in security for those hearings).
On the other hand, though, the display of force is completely necessary from a political angle. The judge at the bail hearing, the media, those coming to support, have to be convinced that Mahjoub somehow poses a danger to the public, and what better way than to have scary looking officers, some with their ever-ready hands on the trigger of their submachine guns, do the rounds of the courthouse. The idea that Mahjoub might be released on bail is distasteful to CSIS and the RCMP, so creating an atmosphere of fear is their way of trying to prevent this from happening.
It is part of a propaganda barrage that begins with ridiculous hints in the media that a man responsible for the assassination of Anwar Sadat is in court, and continues as the four corners of the courtroom are jam packed with the biggest display of self-important looking white men and women since Clint Eastwood's last "protect the president" film. These guys are dressed to the nines, all with wires going into their ears, and serious, "this could be the end of the world" gazes on their faces.
Again, someone chancing upon this whole scene is not exactly sure whether this is real life or a Hollywood film shoot. In the end, it doesn't matter, for the effect is the same. All that firepower is likely to loosen the bowels of any judge entering the court. It immediately places the question of the day--whether Mr. Mahjoub meets the same requirements set out for anyone else seeking bail--far beyond the mere facts of the case onto another plain.
The RCMP and CSIS are telling this judge: if you release this Muslim man, chained and surrounded by men with machine guns, you will be held responsible if he acts out. Don't make any wrong moves.
But facts do not matter in such proceedings. Appearances do. And in a society where the evildoer-du-jour is the Muslim male, Mahjoub is not only up against the wholesale shredding of civil rights which, in the case of the security certificate, has been ongoing since 1992. He also must face a deeply ingrained racism repeated daily in Hollywood films, "responsible" newspapers, and the daily, polite round-the-water-cooler racism of Canadian society: sure, they may look nice and peaceful, and the one at the corner store gives my kids free gummy bears, but, ya never know...
The assertion that facts do not matter is not a lefty conspiracy theory. It is the basis of the security certificate. Under that certificate, neither Mr. Mahjoub nor his lawyer, Rocco Galati, was allowed to see the heart of the "evidence" against him. All they are given is a "summary" of allegations and beliefs put together by a CSIS whose agents display an alarming amount of ignorance, bias and, when the occasion is called for, out and out perjury. On the basis of this, Mahjoub could be deported to Egypt, where he is certain to face arrest, torture, and murder.
Even the Security Intelligence Review Committee( SIRC)--a weak-kneed "oversight" committee which generally concludes CSIS is a bunch of hard workin' boys doin' their best to protect Canada against evil forces lurking somewhere out there--has raised concerns about their, er, um, truthfulness.
SIRC reports have raised concerns about "some beliefs the Service [CSIS] has about the nature of the threat. We are of the opinion that these beliefs are sometimes overdrawn." SIRC also is concerned that in some instances, CSIS applications for warrant powers contained "a number of overstatements"; that in another case, "information put forward was more than a decade old and the information adduced was derived from one source's 'feelings'; that "One source's speculation was quoted. Some assertions that the target engaged in 'suspicious activities' appeared to us to be misleading or exaggerated."
SIRC continues, "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 activity that "seemed to be rooborating information, CSIS ascribed intelligence gathering motives to apparently normal consular contacts."
Against such a backdrop of past abuses, how is a judge to rely on secret evidence presented by an organization which has no qualms about sending a refugee back to a country to face torture and death based on someone's "feeling"? If CSIS deliberately hides information which contradicts its own theory, then the presence of a defence lawyer questioning this would be pretty inconvenient. So the secrecy stuff comes in pretty handy when your agenda is not so much security as it is political: create a scare, deport some easily demonized Muslims to justify your growing budget, and keep the Yankees on your sunny side.
On the basis of the spring 2001 secret trial of Mahjoub (secret in the sense that anything deemed injurious to national security--or, more importantly, anything which a good lawyer would be able to show is not fully or even partially proven--would be heard behind closed doors with no opportunity to examine the merits of that "evidence" by the defence), the certificate was upheld by a federal court judge.
In a rambling, illogical, and sloppy decision, Mr. "Justice" Nadon delivered a finding that the security certificate was "reasonable" one month after the attacks of September 11, 2001. His decision relies in part on post 9/11 newspaper articles from such "unbiased" sources as the National Post.
Nadon notes in upholding the certificate that Section 40.1 (security certificate) proceedings require "proof of the existence of 'reasonable grounds to believe certain facts' as opposed to the existence of the facts themselves."
So some feelings, some beliefs, some allegations from a very discredited spy agency, delivered behind closed doors without an opportunity of reply, have kept Mahjoub in solitary for 34 months and could be the basis for sending him back to a painful death in Egypt.
The allegation against him is that he may be a member of Al Jihad, which CSIS says "advocates the use of violence as a means of establishing an Islamic state in Egypt." If we're concerned about such an organization, perhaps by the same measure, we could just as easily indict a member of the Bush administration for its use of violence to establish a U.S.-occupied state in Iraq.
Mahjoub denies that he has ever been a member of AJ and in fact condemns their use of violence. Nadon, relying on the incredibly inaccurate, completely discredited post 9/11 press, uses the fact that Mahjoub worked for a short time on a Sudanese farm owned by Osama bin laden in the early 1990s as additional "evidence," yet at this time, the relatively unknown bin laden was on the CIA payroll. He was America's good friend.
Mahjoub freely admitted this past employment when he came to Canada as a refugee, and neither CSIS or anyone else tried to prevent his entry at that time. Why CSIS and a federal court judge should make political hay over it years later is evidence, again, of how much guilt-by-alleged-association (even when that association occurred at a time when the person associated with was on "our side") is all one can rely on when the "facts" don't measure up. (George W. Bush, on the other hand, did not close his association with bin laden until October, 2001, when it was decided that the Bush and bin laden families, for appearances sake, should no longer share in the profits of the Carlyle Group, a largely military industry investment organization in which both had major investments).
All these elements form the backdrop to the bail hearing on Saturday morning, May 10. Members of the community, including respected imam Dr. Ali Hindy, are there to provide the $50,000 surety. Thanks to the efforts of community members linked to Homes not Bombs, $10,000 cash bail was also raised.
The Crown's case against bail rests on the testimony of Kathleen O'Brien, a hard-nosed, no-nonsense director of security review for Citizenship and Immigration Canada (CIC) who apparently loves her job. In clipped tones, O'Brien explains she has received two assurances from the Egyptian government that if deported to Egypt, Mahjoub will be treated well. She explains that once submissions have been received from Mahjoub, a decisionmaker at CIC will balance the evidence and make a decision to either deport or allow Mahjoub to stay. CIC's enforcement branch, if given the go-ahead, would charter an aircraft and ensure Mahjoub's "safe return" to Egypt (an oxymoronic conclusion if ever there were one.)
Rocco Galati, Mahjoub's lawyer, questions O'Brien, and she is all bureaucrat, quoting this section and that, a 40.1 and a section 77, as she tries to avoid the eyes of the man sitting in the orange jump suit, chains around his body, whose life hangs in the balance. To Mr. Mahjoub, his wife Mona, their two young children, these are life and death decisions, a fact which seems lost on the government bureaucrat who can quote these rules and regulations but whose answers show not a hint of compassion, concern, or care. Her job is moving human chattel from one jail to another. Don't stress her out with details about human rights violations and the fact that human flesh, when exposed to electrical shock or interminable beatings, is fragile indeed.
But her emotional detachment breaks down under questioning from Galati about Mahjoub's human rights. Her answers, once confident and assured, are now peppered with phrases like "I don't think we would," and "I don't believe so," when Galati asks whether or not Mahjoub would be taken away from Canada before all legal proceedings have been exhausted. Such imprecise answers are cold comfort for Mahjoub, his family and friends in the court.
Galati asks what evidence O'Brien has that Mahjoub has engaged in attempts to subvert the government of Egypt from a base in Canada. She says she is satisfied that such evidence exists from having read the Nadon decision (which presents not a shred of evidence that such an allegation is true). When Galati pushes her on this, the Crown objects and states that "for reasons of national security," O'Brien should not be required to testify "whether such information exists."
Whether such information exists? So it IS possible, then, that none of it does, in fact, exist? Galati asks why submissions regarding deportation of Mahjoub, sent to the department in January, 2002, have yet to receive a response. Well, we hear, things are busy at the department. Busy indeed, but while they are busy, Mahjoub sits in solitary confinement at Metro West Detention Centre an additional 13 months.
Galati attempts to examine the nature of the "assurances" provided by the Egyptian authorities that Mahjoub will not be harmed if returned. They come in the form of two letters, one from the Egypotian ambassador to Canada and the other from a leading Egyptian general. If the wording of the letters sounds familiar, it's because they are exact duplicates of letters that were used as similar human rights "assurances" in the case of another security certificate victim currently in prison, Mahmoud Jaballah. Those letters were presented in Jaballah's own hearing on April 11; a name was blacked out on them, apparently that of Mr. Mahjoub. One month later, the letters regarding Mr. Mahjoub also have a blacked out name, apparently that of Mr. Jaballah.
"Two for the price of one," Galati states in reference to the fact that the authorities cannot even compose two separate letters for two separate individuals. One letter's credibility is called into question because Mahjoub's name is spelled completely wrong. "Has anyone inquired to see if this person referred to in the letter is in fact Mr. Mahjoub or someone else?" Galati asks. "No," comes the reply.
On the basis of such sloppy work someone can be sent to the torture chamber. Galati's questioning on the flimsy nature of these alleged assurances is cut short by the judge. The use of such "assurances" is an important matter for questioning, as Amnesty International reports that Egyptians sent back from Sweden with far stronger "assurances" were still tortured and murdered.
Galati comes to the crux of the matter. Would you still deport Mahjoub if you had no clear assurance that he would not be tortured or killed? What is most painful is the long silence as O'Brien considers the question, and what would hopefully have been an automatic "No!" is instead a weak, "I don't believe so."
Galati points out that if Mahjoub had been charged and convicted of association with terrorists under the anti-terrorism law passed in 2001, he would have received a 5-year maximum sentence, with parole in 18 months. Mahjoub, not even convicted of this, has already served almost double that time.
Galati argues that Mahjoub should be released just as Abdellah Ouzghar has been freed on bail. Ouzghar WAS convicted in absentia of a "terrorism-related" offence in France (allegedly providing travel documents) and is facing extradition, but was released on bail in December 2001 by Justice J. Nordheimer, who stated strongly, "I would hope that the vast majority of reasonably informed, right-thinking members of our community would agree that, notwithstanding (the Sept. 11 attacks), every citizen of this country is still entitled to their basic constitutional rights and freedoms," including the right to bail.
The Crown, relying on outdated case law, argues that if the legal motions presented by Mahjoub disappeared, the process would be speeded up. In other words, hand over your rights to what little due process is available under such circumstances, and you wouldn't have to spend so much time in jail. Galati responds, "You can't be an arsonist with the constitution," and that the continued detention of Mahjoub constitutes an "indefinite gulag."
Galati argues that Mahjoub meets the criteria for bail--he has roots in the community, reliable people to keep watch over him, has no prior record, and continued indefinite incarceration would constitute a gross abuse of human rights. These are well established facts.
The judge reserves her decision for "a few weeks."
As we leave the courtroom, we wonder what will happen. Galati's handling of the case is eloquent, solid and makes perfect sense even to those unacquainted with the intricacies of case law. The crown's case was pretty much non-existent.
It seems, and we hope, that any reasonable judge would release Mahjoub to the loving arms of his family.
But the whole day has been an exercise in convincing us that this has nothing to do with reason or law or rights or facts or, even, the allegedly independent role of the judge.
Rather, the day's purpose has been to show that the people making the decision on the freedom or continued detention of Mr. Mahjoub, among others, are not judges acting on facts that are fully presented in an open hearing, but the submachine-gun-toting RCMP officers demanding we vacate the courthouse as soon as the case adjourns.
Welcome to the occupation.
Homes not Bombs
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