Secret Trial Detainee Mahmoud Jaballah's Indefinite Detention Continues as Bail Hearing Suspended

Secret Trial Detainee Mahmoud Jaballah's Indefinite Detention to Continue; Bail Process Suspended by Federal Court Decision That Upholds Law While Dismissing Justice; Jaballah No Longer Eligible for Bail For at Least Another Two Months as Hunger Strike Continues at Guantanamo Bay North Facility in Kingston, Ontario

DECEMBER 20, 2006 -- As if being on hunger strike for 11 days is not bad enough, secret trial detainee Mahmoud Jaballah, held at Canada's Guantanamo Bay North detention centre in Kingston, Ontario, got more bad news today. The painfully lengthy bail hearing that he had completed in October has been suspended and, possibly, rendered useless because of a Federal Court decision that says he must now wait until mid-February to even consider the possibility of a new detention review.

The problem arose in October when Federal Court judge Andrew Mackay released a decision upholding the "reasonableness" of the secret trial security certificate against Mr. Jaballah. The decision was released as Jaballah was wrapping up the public portion of a separate bail hearing. Relying on secret evidence which neither Mr. Jaballah nor his counsel could access and cross-examine, Mackay based his decision on a series of speculations advanced by the much discredited Canadian spy agency, CSIS. At the time, Mackay also ruled that Mr. Jaballah could not be removed to a country where he faced torture, re-enforcing his indefinite detention.

Mackay's timing was problematic because under the security certificate regime, an individual is eligible to apply for bail only if s/he has not been removed from Canada within 120 days of the certificate being found to be "reasonable". Judge Layden-Stevenson, who was hearing the bail case, was certainly aware of this fly in the ointment, and raised questions about whether she had jurisdiction to continue the process, which in practical terms at that point would only have required her to write a decision about whether Jaballah could be released to his family after over 5 years of arbitrary detention.

After concluding that she did not have jurisdiction, Layden-Stevenson asked for submissions on what to do next: Jaballah's lawyers argued that under the principles of fundamental justice, he should be granted a constitutional exemption to the legislative scheme that would otherwise require him to wait 120 additional days behind bars to either continue or begin a new application for release. To refuse such an exemption would violate his rights not to be detained arbitrarily and his right to life, liberty, and security of the person (not to mention it would represent a complete waste of court time to have concluded the hearing only to possibly begin yet again!)

(Jaballah's case has been long, protracted, and complex, and due to a number of legal steps that were not foreseen in the legislation, Jaballah found himself one of the only people behind bars in Canada unable to apply for bail. He was eventually granted a constitutional exemption a year ago when he challenged the fact that only permanent residents held on security certificates could apply for bail before the "reasonableness" decision was made; Jaballah was, for the purpose of that application, granted the same right as a permanent resident to apply for bail, but that application was subsequently turned down based on secret evidence.)

In response to Layden-Stevenson's request for submissions on what to do next, Jaballah had argued that since he is unlikely to be removed in the next 120 days, especially since the security certificate ruling found that he could not be removed to torture, "granting an exemption would promote the principal objective [of the section of the legislation regarding bail] i.e. to provide for judicial review of the reasons for continued detention where removal is unlikely to occur within a reasonable time."

Government lawyers argued that the idea that Mr. Jaballah would not be removed anytime soon was pure "speculation," and that "it is not open to the court to grant an exceptional constitutional remedy based on speculation." (An ironic turn of phrase, given that this whole security certificate process is based on unfounded, unsubstantiated speculation, backed by secret "evidence")

Despite the cards being completely stacked against Jaballah, Layden-Stevenson decided to give the benefit of the doubt to the federal government, which, she contends, might still come up with a removal plan for Mr. Jaballah in the next 120 days (contradicting the very public and solid evidence, including prior judicial findings -- certainly not speculation -- that any such decision would be well over a year in the making, as per the track record of government bureaucrats trying to remove Jaballah and other secret trial detainees to torture). While Layden-Stevenson says she can "appreciate Mr. Jaballah's frustration with the [Immigration] Minister's silence as to exploration or intention of removal to a third country...there is nothing to prevent the Minister from remaining mute regarding his intentions or efforts." Besides, she implies, he already had "the benefit" of a bail hearing earlier this year, so what is all this fuss about his rights being violated?

Like other judges before her, Layden-Stevenson comes to the quite remarkable conclusion that despite being detained without charge or bail since August 2001 -- with no end in sight -- Jaballah's "allegation of indefinite or indeterminate detention is premature" because he will be able to apply for bail (in February, at which time a new judge will determine if evidence from the prior hearing can be read into a new hearing, or whether a completely new hearing will have to be scheduled, heard, and then ruled upon, adding month upon month to Mr. Jaballah's unending detention). It remains unclear how many years one must be arbitrarily detained without charge before the issue of indefinite detention is confirmed by the Federal Court!

In a paean to the law (and not to justice), Layden-Stevenson references other decisions which have upheld the security certificate regime as "authorized by law," stating "the provisions are preventive, not arbitrary." She then scolds Mr. Jaballah, reminding him that, after all, some people in this country think he poses a risk to security, and that "the most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada."

What is disheartening, though perhaps not terribly surprising, is the manner in which these hearings continue, and pro-government decisions continue being rendered, despite national and international criticism as well as the massive challenge to the scheme that was heard by the Supreme Court last June. While many observers feel the Supreme Court will issue a decision that, in the least, will require significant changes to the legislation (if not outright abolition), Layden-Stevenson cautions us that "Unless and until the Supreme Court determines otherwise, the provisions are constitutional." Again, we have law, but no justice.

In the meantime, Jaballah, along with fellow detainees Mohammad Mahjoub and Hassan Almrei (both on hunger strike as well), report that each and every one of their demands has been categorically rejected by officials at Guantanamo Bay North (otherwise known as the Kingston Immigration Holding Centre). It appears the men are in for a very long hunger strike and, as has been the pattern of government officials throughout their detention, the men will have to be a death's door before the government even begins to consider negotiation. Mr. Mahjoub, who barely survived a 79-day hunger strike in the fall of 2005 to get the promise of medical care for Hepatitis C and other conditions, is currently being denied medical treatment, a main focus of the hunger strike.

Even with the expectation of a Supreme Court decision on security certificates in the new year, there is no indication how much longer the men will remain detained, nor how long they will have to struggle to end proceedings designed to deport them to torture. Advocates for their rights are holding a series of nationwide protests calling for the closure of Guantanamo Bay North, release of the detainees to their families, and an end to the deportation proceedings, January 11-15.