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Security Certificates and the case of Adil Charkaoui
On February 20, the Federal Court of Canada dropped most of the conditions it had placed on one of the prisoners of its “security certificate” regime, Adil Charkaoui. While much of his life is still lived in the rights-free zone widened under the “war on terror”, his struggles over the years have won him back some parts of his life. (For the decision see here)
On January 21, 2009, a month before, the new US President had signed an executive order to close the Guantanamo Bay detention centre. Among US politicians debates raged about where the prisoners, still denied any due process rights, were to be imprisoned. Active debates also took place about whether the prisoners, many of whom were captured in Afghanistan by the invading and occupying forces of NATO, were allowed protection under the Geneva Conventions. The Pentagon concluded that US treatment of prisoners there was humane and occurred in accordance with the Geneva Conventions, so no problem. Even after the signing of the executive order, the US still claims the right to define people as “enemy combatants”, to deny them status as prisoners of war (saying they are criminals), and to deny them the rights to evidence and due process in criminal trials (saying that it is, after all, a war).
The US has frequently claimed that it is not subject to international law, and Washington violates it routinely. After 9/11, it added so many additional loopholes to its legal obligations that many of its allies saw an opportunity to do the same. Indeed, allies like Canada were encouraged to do so, in order to better protect US security. This is how Canadian citizen Maher Arar ended up being captured in the United States with Ottawa's concurrence and handed over to Syria, for 10 months of torture.
The “hope and change” promised by the new US President includes at least an appearance of lawfulness, a less brazen contempt for international law, while allowing the state plenty of room to violate people's rights. From open lawlessness, the US is currently on the road to hypocrisy, which has been Canada's policy all along.
A classic example of the Canadian legal loophole is the “security certificate”. This legal mechanism enables Canada to deport any non-citizen suspected of violating human rights, participating in organized crime, or of being a threat to national security. The principle seems to be that if a foreign national is actually a criminal, that foreigner should be his home country's problem, not Canada's. If you agree with that principle, then you can debate whether there is sufficient evidence that the suspect is involved in crimes or is a threat to national security. Or you would be able to debate this, if the rules allowed.
The entire security certificate process is based on urgency in placing someone in detention and ignoring due process, followed by a long, dragged out detention. The security certificate is prepared by the Canadian Security Intelligence Service (CSIS), Canada's intelligence agency (known in Canada for such feats of intelligence as destroying evidence – including in security certificate cases -- for funneling funds to white supremacist movements, and losing classified documents at hockey games). From there, the certificate is signed by the Solicitor General, the Minister for Public Safety and the Minister of Citizenship and Immigration. Next it goes to a judge, who reviews the CSIS file. The normal rules of evidence do not apply. Hearsay is admissible. Neither the suspect nor the suspect's lawyer can see the evidence if the judge decides it's a matter of “national security” (which isn't defined anywhere in the Immigrant and Refugee Protection Act governing the certificates). The judge then applies the criterion of whether the certificate is “reasonable”. If deemed “reasonable”, the suspect is detained and ordered removed. The government will deport people even if they are at risk of being tortured or killed.
Detainees can ask for a review, but they remain in detention, sometimes for years, during the review, after which they may be deported just the same. And the single review of the security certificate proceeding cannot be appealed any further, unlike in criminal courts, and unlike in most deportation cases.
In 2007, in a decision on the Adil Charkaoui case, the Supreme Court of Canada ruled that the security certificates violated the Canadian Charter of Rights and Freedoms, specifically because the accused is not allowed to see the evidence against him. The court suspended the effect of its ruling to give the government time to change the certificate process. The government added a Justice-Ministry selected “special advocate”, who is allowed to see summaries of the evidence against the accused (but not share it with the accused). This change still does not give the accused due process rights, which are mocked by the relaxation of the rules of evidence and the seeming presumption of guilt. The mockery is revealed in a February 11 article from the activist group Homes Not Bombs reporting on a secret Canadian government manual on security certificate detainees that has recently become available:
“The appearance of a presumption of guilt regarding the detainees, their families, and their friends, is well borne out by the national policy manual released almost in full following a secret hearing this week in Toronto for detainee Mohammad Mahjoub and his family. It follows on months of hearings during which officials from the CBSA [Canadian Border Services Agency] confirmed that all mail to the detainees’ homes (including credit card bills, bank statements, phone bills, magazines, personal letters, and birthday cards addressed not just to the detainee, but to his wife and children) is photocopied and sent to their Counter-Terrorism branch in Ottawa for further investigation.
“Also recorded and passed along to Ottawa are all phone calls, along with photos of the detainees, their family members, visitors, and bystanders who happen to be in the line of view when agents have taken shots.
“The CBSA asked agents of the spy agency Canadian Security Intelligence Service (CSIS) to listen to all of those phone calls. In December, 2008, it was revealed that solicitor-client calls are among those recordings that have been listened to by CSIS agents for close to two years, allowing one party to the proceeding exclusive access into the defence strategy of the defendants. (The long-standing principle of solicitor-client confidentiality is a fundamental bedrock of a democratic society, and the Supreme Court of Canada affirmed in 2001 that it is a principle of fundamental justice and so is protected by the Charter of Rights and Freedoms).”
In response to legal challenges to these secret deportation trials and opposition to draconian long-term detentions of people without trial, the government has released many of its detainees on house arrest. These include Mohamed Harkat, Mohammad Majoub (mentioned above), Mahmoud Jaballah, Adil Charkaoui, and most recently Hassan Almrei. Despite the pressures to ignore the lack of evidence, the courts have slowed down the government's rush to persecute these men.
Charkaoui, who was detained for about two years and was under house arrest, followed by very restrictive bail conditions (no internet use, confined to the island of Montreal, electronic monitoring), for about four more (until February 20, 2009), since his case was suspended in 2005.
In a phone interview with me on February 26, Charkaoui was well aware of the illogic of the conditions, which would not provide any security from a real threat but manage to humiliate people and disrupt their lives:
“The logic of the conditions? There's no logic. I will give you three examples. First, one of my conditions was that I had to go to the border agency every Wednesday for four years to sign and show that I was still physically present. But I’m wearing GPS bracelets, so they know where I am at all times. Second, they refused to let me have a final exam for my master’s degree studies. Why? Well, I couldn’t have it inside a classroom where everyone has their own computer, because I was not allowed to use a computer. I talked to the teacher, who was willing to see to it that I could write the exam without using the computer. I could talk to the professor, he could write. They said no, that would be indirect use of a computer. Not allowed. So I said okay, I'll write the exam with pen and paper. But no, because I would still be at a place where there were computers. I couldn't be anywhere there was a computer. But when I was under house arrest for four years, I was free to receive anybody and I was unsupervised inside the home. If a friend visited me, they could bring laptops, cellphones, which I was not allowed to use. Now I respected my conditions. But they can’t trust me inside a classroom with 40 students and one teacher as witnesses, but they trusted me alone inside my home? Third, I was on curfew, starting at 10pm. Why? Because I might be dangerous. We tried to get the curfew moved to midnight. No. We asked what the difference was between midnight and 10pm. They didn't answer.”
For many security certificate cases the logic is opaque. How did Canadian government agencies decide to act against people with so little evidence? When the cases collapsed, why did they not act to rectify them? Is it bureaucratic pressure to come up with some results, regardless of their quality? Would rectification mean someone would have to admit they were wrong? Do these certificates serve a purpose in terrifying immigrant communities, especially Muslim communities, in reminding them their status in Canada is fragile? Does it have to do with Canada's international cooperation and shady dealings with foreign, and especially US, intelligence agencies? Is there some gain to these bureaucracies, including those involved in occupying Afghanistan, to creating public fear of sleeper cells and home-grown terrorists, so that that public will support foreign wars? Wherever “national security” is invoked, it is impossible to get the answers to these questions.
The government avoids due process by using the immigration law, rather than the criminal law. Detainees can avoid prison or restrictive bail by accepting deportation. But the security certificate process itself puts them in grave danger if they are deported. Charkaoui, for example, did not have any problem with the government of his country of origin, Morocco, until he was arrested in Canada. As he told me:
“After the 2003 Casablanca bombing, Morocco arrested 5000 people, accusing them of being involved in the bombing, directly or indirectly. Can you imagine a bombing plot involving a conspiracy of 5000 people?
“One year after I was arrested, Morocco introduced a arrest warrant against me. I didn't know about it. I found out about the arrest warrant from a journalist from Radio-Canada. The Canadian government had told me I wouldn't have any problem in Morocco. Afterwards they said they hadn't done so intentionally.”
Charkaoui's case is part of a larger pattern of political persecution that can be readily discerned. For example, the government tried twice to issue security certificates against Issam al-Yamani, a Palestinian permanent resident. When these attempts were quashed, the government then proceeded against him through a normal deportation process. If he's deported, it will be to a refugee camp in Lebanon, since there is no Palestinian state for him to be deported to. Does Canada persecute Palestinians with such intensity because of its unwavering alliance with Israel, through major massacres like the one that just took place in Gaza? Again, the excuse of “national security” means the answers won't be forthcoming.
Political persecution, when added to racism and religious chauvinism, is particularly toxic. As Charkaoui pointed out, it is also impervious to evidence:
“It's a mixture of McCarthyism and Islamophobia. McCarthyism was about politics, ideology. In my case there’s a mixture of ideology, racism, and islamophobia. And you can't win. If you have a beard, you're a fundamentalist. If you shave your beard, you are trying to blend in, you’re a sleeper agent. If you’re in the mosque all the time, you’re a fundamentalist. If you’re single, you're a candidate to become a suicide bomber. If you’re married, you’re creating a profile to become a recruiter.”
And even though the government has been forced to retreat because the courts were unwilling to accept its claims, it has refused to change its position:
“The government says, don’t release this guy. The government opposed my release from jail. Anne McLennan told the media in 2005, we are opposing his release but now he’s free and we are very happy that he has those 40 conditions. What I have won, I have won from the courts. I was released by one judge and had my conditions changed by another. The law was declared unconstitutional by the Supreme Court.”
The absurdity is closer to Kafka's The Trial, the story of a man who is put on trial and executed never knowing what his crime was or seeing any of the evidence against him. In that book, the state also attempts to isolate the victim. Despite the restrictive conditions, Charkaoui had been able to maintain his job as a teacher (with his parents escorting this 35 year old father of three to and from school as per the bail conditions) until November 2008, when the provincial government (at the request of the federal government) refused to renew his permit. There's another court battle ahead, this time for April 2009, to try to get his permit and his job back. Once targeted, every aspect of life is made into a struggle:
“They focus on somebody, they try to destroy his network of friends, family, everything, to make him isolated in this society. So now even if I win my case, I will have lost all my money, my friends. The first thing I wanted to do, after my conditions were lifted, was to go out for a coffee. Then I realized I have no friends after 6 years. They cannot repair that, even if I clear my name. Maher Arar, the Canadian citizen who was rendered to Syria to be tortured for 10 months, he got an apology. His name was cleared. He got $10 million, but he lost all his friends. You can’t repair the damage they do with money.”
Perversely, the court's ruling leaves enough room to argue that the system works. The judge argued that if Charkaoui fit the profile of a sleeper agent 9 years ago, he no longer does. Implicit in the argument is that the years of detention have changed his “profile”, even that such detention could be an acceptable method of doing so.
In 2007, the Supreme Court ruled, on Charkaoui's case, that security certificates were unconstitutional. That ruling gave detainees the right to contest their conditions after 6 months, which he intends to do. Thirteen conditions remain on Charkaoui. The most severe: he continues to have to wear GPS bracelets (which are humiliating and frightening, especially to people in his Muslim community who are already afraid to approach or talk to him), and surrender his passport. On the other hand, he can now use the internet, which he hasn't been able to do since 2003 (“I have heard of this Youtube, but I haven't seen it”), but he has to allow Canadian authorities to examine his computer at will.
There is one condition that Charkaoui doesn't mind:
“I have to keep the peace and maintain very good behavior. It seems I can't encourage Canadian soldiers, for example. If they were involved in peacekeeping I could, but I can't encourage them in wars. This is a very good condition, one I am happy to respect.”
If only the Canadian government would adhere to this condition itself.
Justin Podur is a Toronto-based writer. His blog is www.killingtrain.com.