Open Letter to Minister Goodale: Reject Information Obtained Through Tortureposted on April 12, 2017 | in Category Canada | PermaLink
Date: April 12, 2017
The Honourable Ralph Goodale
Minister of Public Safety
269 Laurier Avenue West
Ottawa, Ontario K1A 0P8
January 30, 2017
Dear Minister Goodale,
We are writing to you about the urgent need for Canada to revise the Ministerial Directives on torture issued by the previous government to conform to the unconditional ban on torture in international law.
Doing so now would send an important signal to Canadians and to the international community that Canada will under no circumstances use information from a foreign country that was likely obtained under torture, or share information that could likely lead to an individual being tortured.
As you know, in 2011 the government introduced a ministerial directive that allows, under exceptional circumstances, for information garnered under torture by a foreign country to be transmitted to and used by Canadian security agencies. The same directive also provided guidelines for instances when Canadian agencies could share information with countries that are know to engage in human rights abuses, even if doing so would likely result in torture.
One year ago, you committed to reviewing these directives. We hope that, after consideration, you are now prepared to make revisions that will ensure compliance with Canada's binding international obligation to oppose torture in all instances, without exception. Doing so would be consistent with recent steps taken by the government to strengthen Canada's efforts to combat and eradicate torture by initiating steps towards accession to the UN's Optional Protocol to the Convention against Torture.
A decade ago, the public inquiry into the case of Maher Arar clearly documented that irresponsible sharing of intelligence information from and to Canada can and does result in torture. Notably Commissioner Dennis O'Connor made an explicit recommendation that intelligence information should never be shared by Canadian agencies if it is likely to lead to torture. The Ministerial Directives explicitly run counter to those recommendations. Notably the 2008 report from the Iacobucci Commission that examined the cases of Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin similarly documented the grave risk of sharing intelligence without regard for the risk of torture.
Beyond these important national level findings and recommendations we also draw your attention to the fact that the UN's pre-eminent body responsible for overseeing the obligation of states to end torture, the UN's Committee against Torture, has also raised concern. In its 2012 review of Canada's record, the Committee called on Canada to amend the Ministerial Directives to ensure conformity with international obligations.
The international context makes Canada's actions all the more urgent. This week, the New York Times reported the United States administration is considering a review of its use of CIA black sites. The same day, US President Donald Trump told ABC News that he is open to the return of torture during interrogations, saying he believes "torture works." Both these revelations raise troubling questions about the very real risk that intelligence sharing between our two countries may again become tainted by concerns about torture.
We believe that Canadians deserve clarity, and that the best way to do so would be to revise the Ministerial Directives so as to fully conform with international law and to pass legislation that creates a clear prohibition on sharing information likely to be derived from, or at risk of leading to, torture.
Amnesty International Canada
British Columbia Civil Liberties Association
Canadian Civil Liberties Association
Canadian Muslim Lawyer Association
International Civil Liberties Monitoring Group
Ligue des droits et libertés
National Council of Canadian Muslims
Link to the open letter
Blood on our hands: Canada's links to tortureposted on December 11, 2016 | in Category Mohamed Harkat | PermaLink
Date: December 10, 2016
Saturday, December 10, is Human Rights Day. It’s also the anniversary of an ongoing stain on Canada’s human rights record.
Fourteen years ago, Mohamed Harkat, an Algerian refugee to Canada, was arrested outside his home under a government security certificate on allegations of having ties to terrorism. Despite never being charged, and never being shown the evidence against him, Harkat has faced solitary confinement, the strictest bail conditions in Canadian history and lives under the constant threat of deportation to Algeria — where he would certainly be imprisoned and likely tortured.
We like to believe that Canada stands above torture. And while the practice is banned in Canada, our international human rights obligations means that we must oppose torture everywhere. That includes never deporting someone to a situation where they could face torture.
Sadly, Canada has a history of complicity in sending Canadians to torture abroad: The U.S. government whisked Maher Arar away to Jordan, and then Syria, where he was tortured. Canadian officials were complicit in his rendition and turned a blind eye to his torture. In 2007, after the two year O’Connor Inquiry, he received an official apology from the Canadian government, plus a $10.5 million settlement and $1 million in legal fees.
While no apology or settlement can undo the horrors of torture, other Canadians haven’t even received that much. A follow-up to the O’Connor Inquiry, the Iacobucci Inquiry, found that Canadian agents and officials played an indirect role in the arrest and torture of three other Canadians: Ahmad El Maati in Egypt, and Abdullah Almalki and Muayyed Nureddin in Syria. This included problematic sharing of information with foreign spy agencies, providing insufficient consular support, and officials ignoring allegations of torture.
The inquiry ended in 2008, and yet no compensation or redress has been offered. This, despite a 2009 majority vote in the House — including Justin Trudeau and Liberal MPs — in favour of a Public Safety Committee report calling for an apology, redress and full adoption of the recommendations of the O’Connor Inquiry, including the creation of an integrated and independent review body for national security.
Sadly, we’ve seen the opposite of redress: The former Conservative government and the current Liberal government have fought hard against a $100 million lawsuit brought by the three men for redress for the abuse they faced. In fact, the Liberals have doubled down, arguing in court that a 2014 law brought in by the Conservatives to protect intelligence sources should apply retroactively, in a bid to stop key testimony.
When the prime minister says Canada is “back” and promises to fight for equality and human rights, a fundamental first step should be apologizing, providing redress and eliminating all complicity in torture.
We have a golden opportunity to make things right: The government is currently holding public, country-wide consultations on our national security framework. Prime Minister Trudeau and Public Safety Minister Ralph Goodale could help set the tone for what is to come by stating right away that they will take some fundamental steps:
* Ensuring no person is deported if there is a risk of torture, starting with the end of deportation proceedings against Mr. Harkat.
* Committing to redress and apologies for all victims of torture in which Canada is complicit, starting with Mr. El Maati, Mr. Almalki and Mr. Nureddin.
* Withdrawing ministerial directives – still on the books – which allow Canada to accept intelligence that may have been garnered under torture, in violation of our international commitments.
* Eliminating the security certificate system, which allows for detention without charges or access to the evidence being used to bring the certificate.
* Repealing the Anti-Terrorism Act of 2015 (Bill C-51), which brought in a tangled mess of laws that open the door wide for the types of violations that led to the torture of Mr. Arar, Mr. El Maati, Mr. Almalki and Mr. Nurredin.
Wouldn’t it be wonderful if, on Human Rights Day 2017, we could finally say that Canada has cut all ties to torture?
Tim McSorley is the national coordinator of the International Civil Liberties Monitoring Group.
December 10th Is International Human Rights Daysposted on December 10, 2016 | in Category Mohamed Harkat | PermaLink
Today, December 10th, is International Human Rights Day. It is also the 14th anniversary of Mohamed Harkat's arrest on a security certificate.
At yesterday's press conference in Ottawa Amnesty International Canada secretary-general Alex Neve teamed up with International Civil Liberties Monitor Group national coordinator Tim McSorley and activists Sophie Harkat and Chantal Sunaram to mark International Human Rights Day, as well as the 14th anniversary of the security certificate-driven arrest of Mohamed Harkat.
How can Canada condone torture?posted on December 04, 2016 | in Category Canada | PermaLink
Source: The Globe and Mail
Date: November 24, 2016
Gerald Caplan is an Africa scholar, a former NDP national director and a regular panelist on CBC’s Power & Politics
Canada ratified the United Nations Convention against Torture in 1987, yet a good number of Canadians have been tortured with the complicity of public officials. To be more precise: Torture – physical, psychological or both – has been inflicted by our prisons and our security and intelligence services on many Canadians – a disproportionate number of them indigenous or people with a Middle Eastern background – as well as on foreign citizens.
When examples of such incidents are exposed, Canadians are outraged. But only rarely are they revealed.
For example, as we’ve been shocked to learn recently, solitary confinement in our prisons seems to be as Canadian as maple syrup, even though the United Nations says solitary lasting more than 15 days amounts to torture. The Toronto Star recently reported that over the course of five months last year, more than 1,600 inmates suffered solitary confinement at two Ontario jails. Many were indigenous people.
The Globe and Mail has written extensively about Adam Capay, the young indigenous man kept in solitary for more than 1,500 days – more than four years. Ontario government officials knew but did nothing until they were publicly exposed. The Ontario Human Rights Commission says there is an “alarming and systemic overuse of segregation” in Ontario jails.
No one has been held accountable.
Nor must we forget that during Canada’s participation in the war in Afghanistan, Afghan prisoners were often turned over by Canadian troops to U.S. and Afghan authorities. It was widely known that torture would be the fate of most of them. Despite pressure, Canadian governments, including this one, have refused to hold an inquiry.
No one has been held accountable.
Then there are those mystifying “security certificates,” a troubling tool that allows Ottawa to deport non-citizens it deems a threat to national security. The following Muslim men have been arrested under security certificates: Hassan Almrei, Adil Charkaoui, Mohamed Harkat, Mahmoud Jaballah and Mohamed Zeki Mahjoub. None was charged, but all were imprisoned for between four and seven years as they awaited deportation. All but one suffered solitary.
No one has been held accountable.
Many will have seen the deeply disturbing documentary The Torture Files by Terence McKenna that ran over three nights on CBC-TV in September. It names both the victims and at least two of the Canadian officials complicit in their torture in Syria. The victims are men of Middle Eastern heritage but with no links to any form of terrorism. They include the following individuals: Abousfian Abdelrazik, Ahmad Abou-Elmaati, Abdullah Almalki, Maher Arar, Arwad al-Boushi and Muayyed Nureddin. We can add Omar Khadr, who was psychologically tortured at Guantanamo Bay by both U.S. and Canadian officials.
The Canadians who were instrumental in the suffering of the other men were also named in two separate federal inquiries. One was Franco Pillarella, then Canada’s ambassador to Syria. False information was given to U.S. officials about Mr. Arar, a Canadian citizen, by Canadian officials, even though he was innocent of any crime. The Americans duly passed him on to Syria – to be tortured like all the others. Mr. Arar was jailed in what he described as a “grave” – six feet long, three feet wide, seven feet high – for 10 months. It was like being buried alive. He was also tortured repeatedly.
Incredibly, as is well documented, Mr. Pillarella actually co-operated with the Syrian torturers, supplying them with questions to be asked of three Canadians. He kept being appointed to new diplomatic posts until he resigned.
A second Canadian is featured in the McKenna documentary, a Mountie named Michel Cabana. Mr. Cabana passed on false information that led to Mr. Almalki being detained when he visited Damascus. His cell was described by Amnesty International as being similar to Arar’s. He was “subjected to a vicious cycle of torture. He was beaten with an electric cable, strung up to the bars of a window and lashed with leather belts.”
Two commissions of inquiry concluded that Mr. Almalki, Mr. Elmaati, Mr. Nureddin and Mr. Arar were all wrongfully targeted by the Canadian Security Intelligence Service and the RCMP.
Cabana was promoted to RCMP assistant commissioner, a position he holds to this day.
U.S. President Barack Obama banned the CIA’s widely used torture techniques in 2009, but president-elect Donald Trump, who embraces the use of torture with much enthusiasm, could easily reverse that order. In Canada, the previous government had told CSIS that it could use information derived through torture. The Liberal opposition was outraged.
As well, the Conservative government’s anti-terrorist Bill C-51 was interpreted as opening the door to CSIS to use torture in its work, even though information thus acquired is notoriously unreliable. The Liberals were outraged.
Yet the new, Liberal government is still “assessing” the issue, even though Canada has agreed to sign the UN’s optional protocol to the Convention against Torture allowing for the inspection of detention centres, where torture often takes place in secrecy.
A number of heroic Canadians have dedicated themselves to ending the use of torture by Canada. They include, among others, Matthew Behrens, Monia Mazigh, Amar Wala, Barbara Jackman, Roch Tassé and his International Civil Liberties Monitoring Group.
Why should their efforts be needed at all? Torture is both immoral and useless as a tool to fight terrorism. It outrages Canadians. How can our governments condone it for even one more day?
Copyright 2016 The Globe and Mail Inc. All Rights Reserved.
Torture can never be justifiedposted on November 09, 2016 | in Category War on Terror | PermaLink
Torture can never be justified. Learn about the International Convention Against Torture:
Mohamed Harkat girds himself for another fight to stayposted on August 04, 2016 | in Category Mohamed Harkat | PermaLink
Source: The Toronto Star
Date: August 2, 2016
Former security-certificate detainee ruled a threat for alleged Al Qaeda ties is battling deportation in the latest chapter of a 14-year saga.
PHOTO: Mohamed Harkat is pictured at his home in Ottawa. The native-born Algerian, who fled that nation amid political upheaval, arrived in Canada in 1995. He was imprisoned for 42 months in 2002 on suspicion of ties to terrorism.Mohamed Harkat — an Algerian who says he was wrongly accused of being an Al Qaeda sleeper agent — hopes he can finally win his freedom and the right to stay in Canada.
“What the government is doing is wrong, and it’s not fair,” Harkat said in an exclusive interview with the Star. “And they got the wrong guy.”
Harkat, who came to Canada in 1995 and claimed refugee status, has been fighting deportation since his arrest on a national security certificate in December 2002.
He still dreams of one day becoming a Canadian citizen, even though his life in Canada has been very different from what he’d expected.
“I thought one day I would have children, a house, a family . . . everything is destroyed. When I met Sophie, we had a plan to buy a house and have children.”
The 47-year-old Harkat says he’s innocent and will face torture and persecution in his native Algeria if he is deported.
Canada Border Services Agency did not comment on the specifics of the case, but confirmed that Harkat is under a removal order, following a Federal Court decision upheld by the Supreme Court of Canada.
Esme Bailey, a senior media spokesperson for CBSA, added that the removal order “can only be enforced once due process under the Immigration and Refugee Protection Act has taken place.”
A February 2016 CBSA document — marked top secret — states that, “should Mr. Harkat be allowed to remain in Canada, it can be presumed that, given the opportunity, he would work toward the ends espoused by the Bin Laden Network.” It recommends his removal from Canada.
His lawyer, Barbara Jackman, plans to argue, in a formal petition to the public safety minister, that Harkat will face torture and persecution if sent back. She also plans to argue he is not a threat to Canada and should be allowed to stay on humanitarian grounds. In early September, she will seek an exemption from deportation.
Canadian law does not allow deportation to a country where torture will occur unless there are exceptional circumstances.
“You send him back with the public profile he’s got, and it’s asking for him to be further detained and tortured,” Jackman said. “I can’t see anything exceptional about Harkat’s case that would require he be deported to torture.”
“Right from the beginning we have taken a position that he would face human rights violations and have been opposed to his deportation,” said Alex Neve, secretary-general of the human rights organization.
“He would almost certainly be detained upon return. There’s a very good risk he would be held in incommunicado detention once imprisoned. Individuals that are in incommunicado detention are the ones at greatest risk of torture.”
Although under the threat of deportation, Harkat says: “The one thing I always remind myself is, I’m still in Canada. If I’m in Algeria, I would be dead a long time ago.”
Harkat blames Islamophobia for what some would describe as his Kafkaesque arrest, imprisonment in solitary confinement for a year and house arrest.
Jackman agrees. “That’s the real root of the Harkat case: Islamophobia.” She maintains the Canadian government, after the U.S. terrorist attacks of Sept. 11, 2001, used security certificates to make a point, either to a specific community or Canadians generally, that the country is taking care of terrorists.
As for Harkat, he denies being a sleeper agent and says an unknown informant set him up for inexplicable reasons. The former gas station attendant and pizza delivery driver fled Algeria to escape a military-backed government. He first fled to Saudi Arabia and then worked in Peshawar, Pakistan, for five years for the Muslim World League, helping refugees.
He has never been charged with a crime but has been held under the security certificate regime, which allows Parliament to deport foreign-born terrorism suspects. The Supreme Court ruled in 2014 that the security certificate policy was constitutional.
The government’s case against Harkat was built on statements from two informants — one of whom didn’t pass a lie-detector test — and 13 wiretapped phone conversations, recorded between 1996 and 1998, that were destroyed.
A Federal Court judge ruled in 2010 that Harkat was a member of the Al Qaeda network and was linked to Saudi-born Ibn Khattab, Canadian Ahmed Said Khadr and Abu Zubaydah. And the judge ruled that Harkat was a terrorist threat to national security.
That decision was overturned by the Federal Court of Appeal in 2012, then reinstated by the Supreme Court’s decision in 2014. Harkat denies all the allegations.
Since his arrest in December 2002, Harkat has spent more than three years in jail — including a year in solitary confinement — and many more under house arrest. He had a tracking anklet removed last year.
Harkat, who was studying to be an electronics engineer in Algeria before he fled, is described by friends and family as a kind and loving man.
Since his arrest, he has battled depression and is now in therapy, he said. And a recent surgery to his rotator cuff has made it difficult to do the things he loves, like fixing things and carpentry. Raised on a farm, he was one of eight children in his family, all boys. His mother kept trying to have a girl, he joked. But it didn’t happen.
“He’s a lovely man who loves life and nature,” said Ottawa friend and supporter Robert Marois. “He likes to work with wood.”
Added another friend and supporter, Ria Heynen: “This man is so gentle and kind . . . there’s not a milligram of hatred or aggressiveness.”
His wife, Sophie, says she has never doubted his innocence. They met at the gas station where he worked after Sophie had been on a bad blind date. “He had such big brown eyes, and he was smiling behind the counter, and he was being so friendly.”
After that initial meeting, she found excuses to go to the gas station. They began dating, then married in 2001.
And then he was picked up.
“From the start it was obvious that it was a mistake, that he was innocent,” recalls Sophie of her husband’s arrest. “It was impossible that the person they were describing was the person I married.”
His supporters include prominent Canadians such as former U.N. ambassador Stephen Lewis, Green Party Leader Elizabeth May, and Queen’s University associate law professor Sharryn Aiken, as well as Maher Arar, who cleared his name after being wrongly accused of being a terrorist.
Prime Minister Justin Trudeau’s brother, Alexandre Trudeau, has also written to the minister of public safety on Harkat’s behalf, saying: “Moe considers himself Canadian: he loves this country, he came here to escape persecution and for a better life, and he does not belong anywhere else.”
Organizations such as the Canadian and B.C. civil liberties associations have added their voices to those asking Minister of Public Safety Ralph Goodale to exempt Harkat from deportation. If Goodale decides there is no risk of torture and opts to send Harkat back, Jackman says there will be a constitutional challenge.
But Harkat is hopeful the new Liberal government will decide he is not a threat to Canada and will allow him to stay.
“I got arrested before the Americans went to war in Iraq. And now we’ve already left the war. And I’m still in this condition. And I’m still suffering. It’s time to give me my life back,” he says.
Adds Sophie: “We’ve lost 14 years of our life. We don’t have kids because of this. We don’t have good jobs because of this. We don’t own a home. We don’t have normal lives because of this. It’s time for it to end . . . He’s an innocent man who is facing torture. He’s an innocent man who has been put through hell.”
With files from Tonda McCharles and The Canadian Press
© Copyright Toronto Star Newspapers Ltd. 1996 - 2016
Victory: Jaballah secret trial security certificate found unreasonableposted on May 25, 2016 | in Category Security Certificates | PermaLink
Date: May 24, 2016
In a major setback to a Liberal government still refusing to repeal the repressive Bill C-51, the Federal Court has found unreasonable the secret trial security certificate against the long-suffering Mahmoud Jaballah, almost 20 years to the day that the Egyptian refugee and his family arrived in Canada seeking asylum from the Mubarak dictatorship. While the written decision for this finding has yet to be released, this hopefully brings to a close an 18-year legal fight that helped spur an international campaign of condemnation against Canada's use of secret trials, indefinite detention, deportation to torture, and the patently illegal practices conducted by Canada's spy agency, CSIS.
Jaballah, who was jailed without charge and tortured on many occasions in Egypt (as was his wife, Husnah, who was twice detained and tortured in front of him), was originally arrested in 1999 under the much-criticized security certificate, alleging he was a threat to national security. The problem he faced? He was not allowed to see the secret case against him in a process that allowed as evidence anything not normally admissible in a court of law. CSIS had originally approached him to spy on his community, and he refused. The response of CSIS was clear: co-operate or you will be jailed and deported to torture.
Jaballah's then 11-year-old son, Ahmad, was forced to translate through his own tears one very late night for the CSIS interrogators, whose own translator had fallen asleep and was snoring on the couch well after midnight. Young Ahmad could not sleep anyhow: their family of eight lived in a small two-bedroom Scarborough apartment where the noise of the interrogation kept everyone up. While CSIS agents confidently terrorized Jaballah, they were unaware that Ahmad and his mother had placed a tape recorder in the hallway, figuring it might come in useful. Sure enough, when CSIS was examined in open court much later on about whether they were in the business of extortion and threats, they of course denied that they could ever engage in such an odious practice. When the tape was produced, it went a long way towards obliterating any "credibility" CSIS may have had in the case, and in an almost unprecedented historical moment, the certificate was thrown out after Jaballah spent some seven months in detention.
But the nightmare did not end there. As is standard CSIS practice, the spy agency continued asking about Jaballah in the community, putting out the word that they would get him. In August 2001, while leaving the school where he was a principal and his wife a teacher, Jaballah was surrounded by heavily armed RCMP agents whose high-risk takedown was as unnecessary as it was baseless. Once again back in jail, Jaballah was behind bars during the 9/11 attacks, and would not be able to hug his kids for another eight years. At the first public portion of the secret trial in the fall of 2001, a CSIS agent admitted there was no new evidence against Jaballah, only a new interpretation of the old information that had already been thrown out by the Federal Court as unreliable.
Jaballah faced horrific times behind bars, with long years in solitary confinement, hunger strikes, untreated medical conditions, and the pain of a family growing up without him while fending off terror allegations that could never be disproven because they were secret.
Deprivations of justice
Along the way, the severe deprivations of justice that were the core of the process -- originally solidified under the Trudeau government in the 1970s -- produced some remarkable zingers that were accepted at face value by a series of Federal Court of Canada judges (all of whom would later learn that they were lied to behind closed doors). In one instance, a CSIS lawyer argued that Jaballah was a terrorist communications relay expert because when he came to Canada, he not only wasted no time in setting up a Bell phone account, but also carried a cell phone with him while his wife was pregnant, "procured" a fax machine (because Arab Muslims don't simply purchase, they "procure," usually with eerie music playing in the background), and started learning to surf the Internet. Readers with such skills: beware, you may be next.
In another instance, CSIS alleged without foundation that Jaballah was in touch with an overseas terrorist leader because some calls were allegedly made to a suspicious satellite phone from payphones within a four-kilometre radius of Jaballah's home, which at the time was situated in the densely populated Toronto suburb of Scarborough.
Birthing a campaign
I got to know the Jaballah family shortly after his second arrest, and it was here that the Campaign to Stop Secret Trials in Canada was born, still fighting 15 years later for an end to the barbaric secret trial process and deportation to torture. It has been a long journey for the men, their families, and communities who live in fear that one of their loved ones could be next. Things really began to turn around in 2003 when the secret trial families started speaking with each other and to the media about their ordeal, and the narrative changed from "terrorist threat" to "secret trial detainees who deserved due process."
Supporters spent years in court on hard benches as heinous allegations were hurled at their loved ones in the docket, while some of Canada's top lawyers, including Barbara Jackman, John Norris, Paul Copeland, Rocco Galati (who won the first case) and Marlys Edwardh waded through mountains of litigation trying to declare the process unconstitutional (a battle that was won with a unanimous Supreme Court decision in 2007. Celebrations were short-lived, though, as the Harper Conservatives teamed up with the Liberals to support continued use of secret trials, with some window dressing amendments). There were scores of street demonstrations, sympathy hunger strikes, long-distance walks, lobbying missions to Ottawa, jail sleepouts, and civil disobedience, all of which put a human face on one of this country's most regressive and repressive policies. A fund started by the sons of Julius and Ethel Rosenberg (murdered by the U.S. government as Red Scare sacrifices) to aid the children of detainees contributed to the costs of Ahmad Jaballah's tuition. With people from coast to coast writing letters to and visiting with Jaballah and other detainees known as the Secret Trial Five, it got to the point where CSIS Director Jim Judd threw up his hands in disgust, complaining these alleged threats were being treated as folk heroes.
Along the way, any glimmer of hope was always dashed with an equal measure of judicial reticence and compliant media, who continually repeated allegations with no factual basis and refused to ever challenge the court when a judge would say "we're going into closed session." Yet the media would fight to open up the same court when one of the detainees asked for private details of their lives to be kept out of the public realm when they felt their lives or those of loved ones were at risk. Even when two of the cases were dismissed -- one case (Adil Charkaoui) withdrawn when the government refused to comply with an order to produce some classified information, the other (Hassan Almrei) a victory in which the CSIS case was found unreasonable -- the government continued its campaign of selective leaks and community innuendo against the men. In the age of Google, it doesn't matter if you win against CSIS: the taint of the allegation is forever available to anyone who opens a computer screen.
Meantime, Ottawa's Mohamed Harkat and Toronto's Mohammad Mahjoub, whose cases were found "reasonable" by Federal Court judges who relied on secret information that could not be challenged, are now fighting deportation to torture in Algeria and Egypt, respectively.
While the Campaign to Stop Secret Trials was ultimately successful in stopping the use of secret trial security certificates -- none have been issued in over a decade -- many of the court precedents in their cases have been used to insert more secrecy into refugee proceedings and other aspects of government control of targeted communities. Indeed, the process was lifted word for word into C-51 under a number of sections. But as Public Safety Minister Ralph Goodale considers a review of state security, he would do well to look at the weakness of these cases and the human damage they did to the detainees and their loved ones, all of whom will suffer the ill effects of the past two decades long into the future.
Judge makes mistake
In the spring of 2003, the second certificate (the one issued in 2001) was upheld against Jaballah on flimsy grounds as well as ON secret information neither he nor his lawyer ever got a chance to see, much less cross-examine. That set in motion the deportation process, in which the Liberal government of the day (with Immigration Minister Denis Coderre playing an odious role) found that Jaballah faced a substantial likelihood of torture or death if deported to Egypt, but recommended he be sent anyhow for the "safety" of Canadians. Coderre approved his department's callous finding that:
"Mr. Jaballah has been detained apart from his children for some time; I cannot therefore conclude that Mr. Jaballah's removal from Canada would deprive his children of his emotional and financial support any more than his current detention has."
One of Jaballah's legal challenges at the time focused on a section of the immigration act that made him and fellow detainees the only people in Canada who were prohibited from applying for bail. It made Federal Court Judge MacKay wonder aloud one day at the end of a long hearing whether Toronto had its own version of Guantanamo Bay.
The danger of the secret trial process, in which one side sat in secret with a judge, was revealed one day in 2006. We were shocked when, sitting in court, Judge MacKay admitted: "It looks like I made a mistake," in reference to his use of a piece of "evidence" that was one of the key reasons he employed to conclude in May, 2003 that the government's second security certificate against Jaballah was "reasonable." It turns out, in fact, that this "evidence" did not exist. Three years of Jaballah's life were spent behind bars in part due to this "mistake."
After the process was unanimously declared unconstitutional by the Supreme Court in 2007, the Federal Court, working with an Ottawa professor, worked diligently not to abolish the practice and raise the standards, but to introduce security-cleared "special advocates" who have some access to some of the case. But the detainees had no more clues about the reasons for their detention. While held at the notorious Guantanamo North facility in Kingston, Jaballah and his fellow detainees remained on punishing hunger strikes of between 80 and 160 days, eventually released under some of the most draconian bail conditions in Canadian history, turning families into jailers. Children needed approval from the government to have friends over to the house; a trip to the grocery store involved applying for permission a week in advance. All of this was duly recorded by the CBSA, and shared with CSIS, both agencies admitting this was necessary to continue their investigations, including the logging of solicitor-client calls.
Jaballah is now a grandfather many times over. His remarkably resilient family has seen the worst of Egypt and of Canada. Last week, they celebrated the good news, which still felt like a dream. While it is a major stake in the heart of the secret trial process, it is not the end of the line. Mohammad Mahjoub of Toronto and Mohamed Harkat of Ottawa continue fighting deportation to torture after their cases were upheld based on secret information that is not normally admissible in a court of law that they were never allowed to see, much less contest.
We have much work still to do on these and so many other cases, but for now, a brief pause, and a celebration. At long last.
Matthew Behrens is a freelance writer and social justice advocate who co-ordinates the Homes not Bombs non-violent direct action network. He has worked closely with the targets of Canadian and U.S. 'national security' profiling for many years.
Copyright © 2001-2016 the authors
A Promise Not to Torture Was Enough for US Detainee Transfers, Says Declassified Reportposted on May 12, 2016 | in Category International | PermaLink
Source: VICE News
Date: May 10, 2016
Foreign nations that took custody of more than 1,000 detainees held captive by the US military between 2010 and 2011 provided assurances to the United States that they would not torture any of them — even though reports later surfaced alleging that some of those detainees were tortured after being turned over.
A heavily redacted 10-page report [pdf at the end of this story] examining detainee transfers and the reliance on diplomatic assurances, declassified this week by the Department of Defense Inspector General in response to a Freedom of Information Act (FOIA) request filed by VICE News three years ago, says Defense (DOD) did not have a strict policy that "specifically addressed how detainees will be treated once transferred to another country."
"DOD should promulgate policies or directives that include an express statement that the DOD may not transfer any person to a foreign entity where it is more likely than not that the person will be tortured," said the February 28, 2012 report prepared by the deputy inspector general for intelligence.
Two years after the Inspector General (IG) made the recommendation, the DOD adopted such a policy, barring the transfer of detainees to foreign countries if US authorities determined "that it is more likely than not that the detainee would be subjected to torture."
According to the report, the US transferred 1,064 detainees who were held by the DOD in Afghanistan, Iraq, and Guantanamo between August 2010 and August 2011 (a number that, with the exception of Guantanamo, was previously undisclosed.) The breakdown was: 802 detainees from Afghanistan, 259 detainees from Iraq, and three detainees from Guantanamo who were sent to Germany and Algeria, the latter of which has a poor human rights record. The US also held three people who were captured off the coast of Somalia and were believed to be pirates.
An earlier report issued by the IG in December 2010 said the US had transferred 4,781 detainees. After it released the detainees, the US received diplomatic assurances from the foreign governments that the men would not be tortured. But the US has not determined whether the foreign governments are living up to their promises.
President Barack Obama issued an executive order a few weeks after he took office in 2009 establishing a Special Task Force on Interrogation and Transfer Policies. The task force was made up of senior administration officials and had a charter calling for lawful interrogations, the closure of CIA black site detention facilities, and a study of US detainee transfer policies to ensure they complied with domestic and international laws. The task force was to prevent "the transfer of individuals to other nations to face torture."
In August 2009, the task force issued a report that remains classified. A Justice Department press release summarizing it, however, said that while the US may rely upon diplomatic assurances that detainees will not be tortured, the task force recommended that "the State Department be involved in evaluating those assurances and that the inspectors general of the departments of State, Defense, and Homeland Security prepare annually a coordinated report on transfers conducted by each of their agencies in reliance on assurances."
"The Task Force also made several recommendations aimed at improving the United States' ability to monitor the treatment of individuals transferred to other countries," the Justice Department press release said. "These include a recommendation that agencies obtaining assurances from foreign countries insist on a monitoring mechanism, or otherwise establish a monitoring mechanism, to ensure consistent, private access to the individual who has been transferred, with minimal advance notice to the detaining government."
But diplomatic assurances that say detainees will not be tortured, a crucial component in the Obama administration's efforts to try and shut Guantanamo, are not legally binding.
"Diplomatic assurances are unreliable and ineffective in protecting against torture and ill-treatment, and States should not resort to them," said Juan Méndez, UN special rapporteur on torture, and Ben Emmerson, UN special rapporteur on human rights and counterterrorism, in a statement they jointly issued in December 2013. "We have often seen diplomatic assurances used by governments to circumvent the absolute prohibition of torture as established in the UN Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment."
The rapporteurs' comments were prompted by the forcible repatriation to Algeria of Guantanamo detainee Djamel Ameziane, who had protested his transfer to the country stating that he feared he would be persecuted once he was taken into custody. The US said it had obtained assurances from Algeria that Ameziane would not be mistreated.
Ameziane, who was not charged with a crime while he was held captive by the US military, unsuccessfully sued the US government after he was transferred to retrieve money confiscated from him: about $1,270 he said he earned working in Canada, and a smaller amount of Afghan and Pakistani currency. He had said in a sworn declaration that he is destitute and homeless, and needs the money to survive because the US transferred him to Algeria with nothing but the clothes on his back and a special Guantanamo care package.
More recently, the US repatriated former Guantanamo detainee Younous Chekkouri to Morocco, even though the captive had said in November 2014 it would be too dangerous for him to return home because Morocco has a history of torturing its prisoners. Though Chekkouri was never accused of a crime during the 13 years he was detained at Guantanamo, he was promptly imprisoned on suspicion of terrorism upon his repatriation in apparent violation of diplomatic assurances Moroccan government officials gave to the US that he would not be prosecuted and would not be held for more than 72 hours. Chekkouri was released about six months later.
With the exception of a Department of Homeland Security IG report issued publicly in November 2011, all of the inspectors general reports on detainee transfer assurances are still classified. The DOD IG report obtained by VICE News, one of four issued since 2010 by the watchdog and previously marked SECRET, is the first one that was released following a declassification review. We have also filed FOIA requests for the three other reports.
"The concern we have always had about diplomatic assurances is that it's a promise not to torture from torturers," said Naureen Shah, director of Amnesty International USA's Security & Human Rights program, after reviewing the DOD IG report. "Nothing in this report shows that the US is making a good faith effort to ensure that is not happening to these individuals. The fact that the IG did not analyze whether these people were tortured after being transferred is alarming."
A spokeswoman for the DOD IG, Bridget Serchak, told VICE News the IG's review is "limited to inspections/evaluations on transfer policies and procedures, not the actual transfers." Serchak also said she could not divulge details about the IG's later reports on transfer assurances "because any response would confirm or deny classified information to the public before it was cleared for release or redacted."
Shah said that at the same time the DOD IG was working on its review of transfer assurances, Amnesty International was raising concerns about detainees formerly held in US custody being tortured by their jailers in Afghanistan and Iraq after they were transferred. Other human rights groups and media reports also documented cases of widespread torture by Iraq and Afghanistan authorities after the US transferred detainees. NATO halted the transfer of detainees to Afghanistan after the United Nations issued a report in 2013 that revealed detainees transferred to Afghan custody by the US and other foreign governments were systematically tortured.
Sections in the IG report related to detainees transferred to Afghanistan and Iraq were heavily redacted. Exempt from the redactions were assurances the US received from those governments that transferred detainees would be treated humanely.
Shah said Amnesty sent a memo to the White House last March asking the administration to take several steps before Obama leaves office to ensure the US does not return to a policy of torture.
"One thing we asked for is the declassification and disclosure of the IG reports that are classified," Shah said. "There's no way to assess this administration's record about transfers because we don't have the reports."
The White House has not responded, Shah said.
UPDATE 5/12/16: This report has been updated to include a comment from DOD IG spokeswoman Bridget Serchak.
(c) VICE 2016. All rights reserved.
Bid to deport six terror suspects blocked after UK judges cite torture fears in Algeriaposted on May 12, 2016 | in Category International | PermaLink
Source: The Bureau of Investigative Journalism
Date: April 18, 2016
Six men accused of having links to al Qaeda cannot be deported to Algeria because there is a “real risk” they would be tortured, UK judges ruled today in what marks a major defeat for the Home Office.
Judges at the Special Immigration Appeals Commission (Siac) ruled against Home Secretary Theresa May and found in favour of the six men who have been fighting deportation orders for 10 years.
The Home Office argued they were a national security risk to Britain, but the Siac judges agreed with the men that their human rights would be at risk if returned to Algeria.
“It is not inconceivable that these Appellants, if returned to Algeria, would be subject to ill-treatment infringing Article 3 [prohibition of torture under the European Convention on Human Rights]. There is a real risk of such a breach,” they ruled today.
The six men are living under strict bail and curfew conditions at various locations in England. The men cannot be identified for legal reasons and the Home Secretary now has 10 days to appeal today’s decision.
It is highly unusual for the Home Office to lose such appeals in Siac, which often hears evidence in secret.
The ruling was announced by the UK’s Independent Reviewer of Terrorism Legislation on Twitter this morning.
The Home Secretary argued they had “effective assurances” from Algeria that the men would not be tortured and pointed to an agreement signed between Tony Blair and President Bouteflika in 2006.
However, the court in London noted that Bouteflika was now almost 80 and had sustained a brain haemorrhage in April 2013. Since then he has been confined to a wheelchair and makes few public appearances, the judges said.
Although they noted he had been re-elected as president for a fourth term April 2014, they said some felt there was a potential power vacuum in the country which could undermine the effectiveness of the assurances on torture.
In response, the Home Secretary’s lawyers argued that the presence of international NGOs in Algeria, as well as the Algerian press, would help prevent and deter any abuse of the six men.
But Siac said this was not the case, as any press reporting on abuse by the authorities was not in “real time” but after the event so could not prevent the abuse from happening.
The judges added that it was “obvious” that the presence of human rights NGO’s in Algeria for a number of years had not managed to “prevent further abuse of any detainee” once reported.
In conclusion, they said: “Viewing the evidence as a whole we are not convinced that the improvements in conditions in Algeria are so marked or so entrenched as to obviate the need for effective verification that the authorities will adhere to the assurances given.
“It is not inconceivable that these Appellants, if returned to Algeria, would be subjected to ill-treatment infringing Article 3. There is a real risk of such a breach. The different means of verification of adherence advanced by the Respondent do not, taken together, amount to a robust system of verification.”
The six allegedly include leaders of terror groups in European countries, an associate of Abu Hamza and two men linked to a UK terror plot.
None of the men have ever been convicted of terror offences in the UK. The Home Secretary argues they are a threat to national security and must be returned to Algeria.
The Bureau has been covering the case as part of a two year examination of the use of secret evidence in national security related immigration cases.
The Bureau has contacted the Home Office for comment.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.
Canada To Sign UN's Anti-Torture Protocol After Years Of Delayposted on May 05, 2016 | in Category Canada | PermaLink
Source: Huffington Post
Date: May 2, 2016
OTTAWA — Canada is prepared to join a key United Nations anti-torture agreement more than a decade after it was first passed.
The UN's optional protocol to the convention against torture allows for the establishment of national and international systems for inspecting detention centres where torture often takes place in secrecy.
It was first approved by the world body in 2002.
Although dozens of countries have signed on, Canada has not ratified the protocol. The Harper government twice promised to do so, but never did.
The new Trudeau government will follow through, says
Chantal Gagnon, a spokesperson for Foreign Affairs Minister Stephane Dion, says the Trudeau government plans to make good on the commitment.
"The minister just announced that we agree that the government of Canada should join this important protocol," Gagnon said of what Dion had to say at a private reception earlier Monday.
"We are taking the first step towards doing so by beginning formal consultations on the optional protocol with provincial and territorial governments."
Move welcomed by activists
Mohamed Fahmy, who spent more than a year in a prison in Egypt, welcomed the move on Twitter, calling it history in the making.
Activist groups have been pressing for ratification for years; Amnesty International Canada has yet another news conference on the subject scheduled for Tuesday.
Supporters of the protocol say it is an important step in freeing the world from the practice of torture.
They say Canadian ratification would strengthen the country's ability to press other countries to open detention centres to increased scrutiny.
With files from Mike Blanchfield
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