Supreme Court of Ireland blocks State from deporting Algerian man linked to terrorism

posted on August 03, 2017 | in Category International | PermaLink

Source: The Journal
URL: [link]
Date: July 26, 2017

THE SUPREME COURT has ruled that the Minister for Justice must reconsider a decision to remove an Algerian man with alleged links to Islamic terrorism against his removal from the State.

The State claimed the man, who cannot be named for legal reasons, is involved with Islamic terrorism and was convicted of terrorism offences in Algeria and France.

The Minister issued a deportation order after gardaí informed the Department of Justice the activities of the man and his associates were “of serious concern” and “contrary to the State’s security”.

The man, aged in his 50s and living in Ireland for several years, denies being involved in terrorism and claims that if deported to Algeria he is at risk of being tortured and subjected to inhuman or degrading treatment or punishment due to his political views.

The man, represented by Michael Lynn SC and David Leonard Bl, appealed a High Court order which found the Minister’s decision that there were no substantial grounds to find that the man would be at real risk of ill-treatment if deported to his home country was lawful.
The State opposed the appeal.

In its judgment today, five judges at the Supreme Court unanimously quashed the Minister for Justice’s refusal to revoke the deportation order issued in December last year.

The court remitted the man’s case back to the Minister for further reconsideration.

Giving the court’s decision, Justice Donal O Donnell said in this case there was “no reasonable basis” upon which any Minister could conclude there was no real risk of a breach of Article 3 of the European Convention on Human Rights – that nobody should be treated to torture or inhuman or degrading treatment.

The judge said he found it difficult to understand precisely how the Minister arrived at the conclusions in respect of the man that he was not at risk of being treated contrary to Article 3.

The judge said it was not sufficiently clear why the Minister came to the conclusion that the man could be deported to Algeria without a real risk of torture, or inhuman or degrading treatment and why the Minister considered such a decision ought not to be revoked.

The judge said he had come to the conclusion he “could not have the level of assurance necessary that the decision sets out a clear reasoned path and one that was not flawed or incorrectly unjustifiable limitations or irrelevant legal considerations”.
The Minister’s finding was in contrast to an earlier finding by the Refugee Appeals Tribunal that considered the man’s application for protection that he was at risk if deported to Algeria.

To depart from such a finding required clear reasons, he said.

The judge said the revocation application is to go back to the Minister and should be addressed by focused submissions, including up-to-
date information concerning Algeria.

There was no reason why the fresh consideration should not occur promptly, the judge said. Submissions, he said, should be focused on the issue whether there is a real risk on substantial grounds of the man being treated contrary to Article 3.

If the man only submits a generalised complaint with no attempt to focus submissions on his personal situation and the up-to-date position in Algeria, then he will find it difficult to complain about a decision which treats the issue at the same level of generality, the judge added.

Once the matter has been reconsidered by the Minister any outstanding issues in relation to the case should go back before the High Court, the judge added.

The Chief Justice Susan Denham, Justice John MacMenamin, Justice Elizabeth Dunne and Justice Iseult O’Malley all concurred with the decision.

Speaking after the judgment the man’s solicitor Gavin Booth of KRW Law welcomed the court’s decision.
He said that “it was always our case that the Minister could not deport this man without breaching Article 3 of the European Convention on Human Rights”.

The man denies involvement in terrorism and rejects claims he is involved in groups such as Al-Qaeda. He has been in custody for some months and will remain in detention pending the outcome of the process.

During the 1990s, he was convicted of several offences in Algeria and received three life sentences and two death sentences, which are no longer carried out.

Those offences include forming an armed terrorist group intending to spread murder, sabotage, possession of prohibited war weapons assassination, theft intending to harm the security of his home country.

He was also convicted and jailed for eight years following his arrested in France in 2002.

A French court found him guilty of charges including membership of a criminal organisation preparing an Act of Terrorism.

Content copyright © Journal Media Ltd. 2017

OSCE/ODIHR Director Link calls on participating States to strictly observe prohibition of torture or other ill-treatment of returned individuals

posted on June 29, 2017 | in Category International | PermaLink

by Press Release
Source: Relief Web
URL: [link]
Date: June 26, 2017

WARSAW, 26 June 2017 – On the occasion of today’s International Day in Support of Victims of Torture, Michael Georg Link, Director of the OSCE Office for Democratic Institutions and Human Rights (ODIHR), called on all OSCE participating States to ensure that no one is exposed to the risk of torture, including by ensuring that the states’ actions do not put people at risk of being tortured in other countries.

“States are prohibited from exposing anyone to a real risk of torture or other ill-treatment in another country, without exception,” the ODIHR Director said. “The principle of non-refoulement requires states to ensure their actions do not lead to torture or other ill-treatment anywhere in the world – including as a result of turning away refugees, asylum-seekers, political dissidents, criminal suspects, or anyone else who could face the risk of such treatment.”

Under international human rights treaties reaffirmed in OSCE commitments, countries are absolutely prohibited from returning individuals who risk being subjected to torture or other ill-treatment as a result of their expulsion, extradition or other forms of refoulement to another State. The principle is applicable in all circumstances, including armed conflicts, states of emergency and refugee contexts.

“Before expelling or denying entry to anyone, OSCE participating States must determine whether the individual could face torture or other ill-treatment if returned to another state,” said Director Link. “They must take into account all relevant considerations, such as the existence in the states concerned of a consistent pattern of gross, flagrant or mass violations of human rights, including of persecution based on prohibited grounds of discrimination.”

Illustrating the genuine risks faced by individuals subject to expulsion by OSCE participating States, national and international courts have issued hundreds of binding stays on removal orders in OSCE participating States from 2014 to 2016, in order to prevent the expulsion of people to countries where they may face torture or other serious human rights violations. Such interim measures have been applied to prevent the return of asylum seekers and other individuals to situations of potential torture or other ill-treatment, including due to persecution on the basis of their religious beliefs, sexual orientations, political opinions and other prohibited grounds.

Director Link also noted that, under the principle of non-refoulement, the procurement of so-called “diplomatic assurances” cannot be used by states to escape the prohibition on returning individuals to a real risk of torture or other ill-treatment.

For PDF attachments or links to sources of further information, please visit:

Fatally Flawed Anti-Torture Assurances

posted on June 14, 2017 | in Category Mohamed Harkat | PermaLink

by Jonathan Horowitz
Source: Just Security Website
URL: [link]
Date: June 13, 2017

After September 11, the United States and other countries heavily relied on diplomatic assurances as counterterrorism tools to legally justify transferring people to other states where they were likely to be tortured. These assurances were based on the state receiving a detainee promising that it would treat the transferred person in accordance with certain human rights standards. Sometimes, but not often, a receiving state would also commit to allowing the sending state to check-in on the detainee every now and again. This was often referred to as “post-transfer detainee monitoring.”

Today, this issue has taken a back seat to Trump’s embrace of direct torture. But it’s important to keep a close eye on if, when, and how the Trump administration uses diplomatic assurances. This is especially true because unlike U.S. torture practices, diplomatic assurances haven’t come anywhere close to receiving the same degree of scrutiny and disapproval.

In April, a pitched battled emerged among states, U.N. agencies and human rights groups during a public discussion hosted by the U.N. Committee against Torture on whether governments should be allowed to ever use diplomatic assurances and, if so, under what conditions. Prior to the event, Canada, Denmark, the United Kingdom, and the United States submitted a joint statement supporting the use of diplomatic assurances, pointing out that states have used assurances to promote respect for the prohibition against torture. They emphatically disagreed with an assertion that the Committee had made that diplomatic assurances were inherently “contrary” to the principle of non-refoulement, which is the legal term that bars a state from transferring someone to the control of another state where there are substantial grounds for believing there’s a real risk the person will be tortured. At the Committee’s public session numerous other states chimed in to add support to this position.

But states were not proposing carte blanche use. They emphasized that it was unacceptable for states to use assurances to escape their transfer obligations and, to guard against this, they defended their right to use diplomatic assurances if the commitments met strict criteria, such as being “credible and reliable, explicit and specific, and binding upon the institutions of the State.”

Compared to the more absolutist position of many human rights experts and groups—which is that diplomatic assurances are inherently contrary to the torture prohibition, especially when entered into with a state where there are substantial grounds to believe the person being transferred is at real risk of torture—states appeared at first blush to be conceding a reasonable middle ground, as if to say: Yes, states have wrongly used diplomatic assurances to circumvent their transfer obligations under international law, but diplomatic assurances can also effectively reduce the risk of torture under the right circumstances.

Unfortunately, this devotion to what appears to be a pragmatic approach misses the danger that the states’ unified position poses to the prohibition against torture.

Many of the human rights experts that have entered into this debate have studied the inherent flaws in diplomatic assurances, observed the ways sending states have misappropriated them, and witnessed receiving states failing to uphold them. A perspective steeped in these realities makes their positons against diplomatic assurances ones that are anchored in a pragmatism that far exceeds states’ aspirational assertions that diplomatic assurances can work when they are based on some intricate set of criteria.

Knowing these realities, the U.N. Office of the High Commissioner for Human Rights (OHCHR) reiterated to the Committee that diplomatic assurances were not adequate safeguards for deterring transfer abuses. Several human rights organizations took the position before the Committee that assurances were contrary to the principle of non-refoulement. Other positions also exist, even if they weren’t provided directly to the Committee.

My own views on this issue come largely from the time I spent in 2011 working at the U.S. Embassy in Kabul, Afghanistan, where I was responsible for crafting and implementing the terms of a U.S. diplomatic assurance with the Islamic Government of Afghanistan. At that time I was agnostic as to whether diplomatic assurances were contrary to the prohibition against torture. I should not have been. My general view has since hardened into believing that they are, in fact, inherently contrary to the goal of respecting the prohibition against torture. This is mainly for four reasons, in no particular order:

Permanent nature of the violation versus the unstable nature of assurances: Diplomatic assurances are often based on bilateral government relations that are inherently unstable. While a diplomatic assurance may seem strong today, tomorrow could bring a different story. The ambassadors and ministers that often enter into these assurances can get replaced or they can lose their authority to officials who aren’t as committed to the assurances. Political winds and alliances can also shift, leading to a receiving state lashing out politically by ignoring the assurances or turning back on their post-transfer monitoring commitments. When the relationships upon which these assurances are built loosen or break, and the diplomatic assurance is breached, there are very limited ways for a sending state to remedy the situation. As I’ve written elsewhere, an “inescapable problem is that once a transfer takes place and the monitoring system does not effectively deter mistreatment then the sending State can at best cease future transfers but it can do very little for the actual victim(s).” All in all, the unstable nature of diplomatic assurances significantly outweighs their prospect for successfully mitigating the risk of torture and other serious human rights violations.

Lack of the receiving state’s compliance: I’m also unconvinced that a bilateral anti-torture commitment, even when it is legally binding, will change the practices of a government that has been willing to breach its international and domestic law torture prohibition obligations. Human rights groups have seen states purposefully evade or behave in ways that significantly hamper the effectiveness of these assurances as well as their monitoring mechanisms, which largely accounts for the concerns raised by a notable independent U.N. anti-torture expert. In Afghanistan, coalition forces first ceased transferring their detainees to a number of Afghan facilities due to concerns of torture, then started transferring them again after those concerns subsided, but then had to re-suspend their transfers when new torture concerns emerged. Some ISAF countries that engaged in post-transfer detainee monitoring also faced considerable frustrations when, for example, Afghan authorities moved detainees to different facilities without informing the sending states. This resulted in an almost trial-by-error process that left people at risk of torture while sending states revised, and revised again, their diplomatic assurance criteria and the way they implement that criteria.

Lack of respect for the prohibition: But what if a receiving state that has a reputation for torture does respect the terms of the diplomatic assurance? Canada, Denmark, the United Kingdom, and the United States claimed before the Committee that such a success would promote respect for the prohibition against torture. My experience is that it sends a different message: It’s okay for a receiving state to torture some, but not others. This imbalance arose in Afghanistan, where detainees held under a diplomatic assurance reported being treated better than detainees in the same cell or facility who were not held under a diplomatic assurance. A man who alleged to have been tortured in Afghan custody and held with other detainees covered by Canada’s diplomatic assurance told the United Nations: “Except those arrested by Canadians, every single person arrested by NDS [Afghanistan’s intelligence service] officials has to go through the similar experience I went through.” When this sort of differentiation happens, diplomatic assurances can’t comport with the Convention’s goal and purpose of applying the prohibition against torture to all equally. At worst, they can result in the opposite.

Risk assessment avoidance: Finally, states have an obligation to individually assess whether there are substantial grounds to believe that each person it transfers will face a real risk of torture or other serious human rights abuses. Diplomatic assurances often paper over that obligation, such as when sending states automatically accept that a risk of torture exists without learning why different people being sent to different places may experience different risks for different reasons. Diplomatic assurances, when used in this way, are a low-resource and easy way for states to avoid an important procedural obligation that should allow a person to explain the precise reasons why they fear being transferred. At the extreme, states have applied diplomatic assurances collectively to entire groups of people. Jason Leopold recently posted a Department of Defense Inspector General report that described how the United States did not obtain individual assurances for detainees being transferred in Iraq or from ISAF in Afghanistan.

The lesson I take away from these reflections is that the United States essentially got it backwards in Afghanistan. First they sent detainees to Afghan facilities based on a transfer arrangement. Only then did they monitor Afghan detention facilities where torture was taking place to ensure the arrangement was being respected. The United States should have done it the other way around: First they should have monitored the detention system and conducted individualized refoulement risk assessments. Only then, if there were no concerns, should transfers have taken place.

Jonathan Horowitz is Legal Officer, National Security and Counterterrorism Program, at the Open Society Justice Initiative. Follow him on Twitter @J_T_Horowitz

© 2017 Just Security.

Open Letter to Minister Goodale: Reject Information Obtained Through Torture

posted on April 12, 2017 | in Category Canada | PermaLink

Source: International Civil Liberties Monitoring Group (ICLMG)
URL: [link]
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
Open Media

Link to the open letter

Blood on our hands: Canada's links to torture

posted on December 11, 2016 | in Category Mohamed Harkat | PermaLink

by Tim McSorley
Source: iPolitics
URL: [link]
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 Days

posted 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

by Gerald Caplan
Source: The Globe and Mail
URL: [link]
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 justified

posted 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 stay

posted on August 04, 2016 | in Category Mohamed Harkat | PermaLink

by Debra Black
Source: The Toronto Star
URL: [link]
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.”

Amnesty International Canada has taken on Harkat’s cause.

“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 unreasonable

posted on May 25, 2016 | in Category Security Certificates | PermaLink

by Matthew Behrens
URL: [link]
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.
CSIS caught lying

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."

Gitmo North

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

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