Harkat wins new hearing while Appeal Court upholds secret trials law

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While activists cheered last week's news that the Kingston Immigration Holding Centre -- better known as Guantanamo North -- had finally closed, three of the secret trial detainees who'd been held there still live under indefinite detention without charge, threatened with deportation to torture.

Toronto's Mahmoud Jaballah and Mohammad Mahjoub, and Ottawa's Mohamed Harkat are Muslim men who have been subject to the controversial security certificate system for over a decade, forcing them into solitary confinement for years on end followed by humiliating house arrest. The Supreme Court declared the process unconstitutional in 2007, and spy agency CSIS is on the record admitting the cases have been built on information gleaned from torture. Yet the Federal Court has continued hearing these cases, largely in secret and in the absence of the men, who are still no closer to seeing the heart of the allegations against them.

But at least for Harkat, there was a break in the clouds with the April 25 Federal Court of Appeal ruling that his rights had been violated in the security certificate proceedings he underwent in October 2009. In a lengthy decision, the court found that in upholding the certificate against Harkat, Judge Simon Noel had wrongfully relied on the fruits of an unfair process: CSIS had not only destroyed original recordings of alleged phone conversations from 1994-97, but also had no verbatim transcripts, only summaries of translations that had again been summarized. This left Harkat in a prejudiced position because, as appeal court judge Gilles Létourneau wrote, "the three human interventions generated a possibility of errors, inaccuracies or distortions" that Harkat would unable to challenge. Indeed, even the judge "is not himself in a position to verify with the originals the accuracy of the summaries."

Ordering a reconsideration of the case, Létourneau directed Noel to exclude those "summaries of summaries." Given the extent to which Noel's original decision relied on them, Harkat lawyer Matt Weber was hopeful, saying this will have a "profound effect" on the case, for "without those conversations, we're optimistic that the ultimate result should be very different."

In addition, Noel's earlier decision to grant CSIS informants a special privilege that prevented them being cross-examined by special advocates -- the security cleared lawyers who can see some of the secret case against Harkat -- was also shot down by the appeal ruling. This could impact the ability of the government to sustain its secret case, given that it risks exposing their informants to the kind of questioning that would likely shred their credibility. That assumption is no mere speculation given the backdrop of a case that could fall under the category of "sex, lies and torture." One of the informers was carrying on an affair with a CSIS officer investigating the case. CSIS also withheld information indicating an informer had failed a polygraph test. It had gotten so bad that Noel, in a previous decision, wrote "it was found to be necessary to repair the damage done to the administration of justice and to re-establish a climate of trust and confidence in this proceeding."

While both findings gave Harkat some breathing room, his supporters and lawyers acknowledge that he still remains confined by a regime that is unconstitutional since he is still no closer to knowing the case. Secret trial critics have also pointed out the process is discriminatory inasmuch as it applies only to refugees and permanent residents, and relies on far lower standards of proof than those required in cases against citizens.

While Harkat had appealed the unconstitutionality of secret trials, the Federal Court of Appeal, in Father Know Best style, concluded that all was well with the process. Létourneau claimed the legislation "provides the judge with the necessary tools to ensure a fair process," adding he was "satisfied that the judge did not err when he concluded that the current security certificate regime is in accordance with the principles of fundamental justice because it allows a named person to sufficiently know and meet the case against him." But since most of the case remains behind closed doors, the perceived sense of comfort that Harkat and other detainees are supposed to feel remains elusive. The "trust me" approach to making life-and-death decisions is even harder to swallow given the extent to which the Federal Court continually bends over backwards to accommodate the bad behaviour of CSIS, which is never punished when it breaks the law and violates an individual's rights.

(Notably, both Noel and the Federal Court of Appeal declared security certificates constitutional in 2005, only to have their collective findings unanimously rebutted by the Supreme Court in 2007; they may well be tempting fate by trying to safeguard the process yet again.)

Nevertheless, Harkat was beaming at a post-decision press conference, where he said during the past two weeks he'd had little sleep as he waited for a decision with his "life on the line... . It's not over, but at least one day I'm going to see the light at the end of the tunnel...It gives me another day to breathe on this earth. It's just a matter of time to clear my name and declare I'm innocent."

While Harkat feels closer to that ultimate freedom, he is still shackled by house arrest conditions that include having to wear a GPS monitoring bracelet, weekly check-ins with the Canadian Border Services Agency (including on decision day), as well as seeking permission to leave the city of Ottawa for family vacations, something frequently denied. He also cannot use a computer or cell phone.

In having his case referred back to Judge Noel, Harkat again faces someone who may be too biased to reconsider his original findings. Indeed, much of Noel's 2010 upholding of the certificate bordered on a personal attack against Mr. Harkat. After opening with the conclusion that Harkat allegedly "has surrounded himself in layers of clouds in which he does not let any light come through," Noel attacked his credibility on specious grounds, noting inconsistencies arose "in comparison with the public and closed evidence," but such a finding failed to truly appreciate that contradictions will always arise when the individual cannot clarify or question what is being said about him behind closed doors.

In addition, Noel slammed Harkat for sounding as if he had "memorized a story," a fabrication he allegedly took great pains to prepare, but then criticized him for making mistakes in recalling certain dates (condemning him for the fact that as a non-English speaker, Harkat wrote something in his 1995 refugee application that did not exactly match his 2010 testimony, being off by a couple of months in relation to something that happened in 1989). To Noel, if Harkat was consistent, it was a story; if he was inconsistent, he was a liar. In such a manner, Harkat was deemed to be untruthful as opposed to merely human.

Unlike in regular criminal proceedings, where findings of rights violations often result in cases being thrown out, security certificate cases simply plod on, as the detainee is presumed guilty. Even with the finding that Harkat had suffered serious breaches of his Charter rights, the only party to this affair who continues to suffer is the Harkat family.

But the Federal Court of Appeal saw things differently, choosing instead to make Noel into the victim. In a remarkable comment that should ensure Létourneau a nomination in the Chutzpah Awards, the decision concludes with a judicial high-five to Noel, who had to work in five separate locations (home, office, secret office, public and secret courts) and keep separate his secret and public court books. "A judge has to live through the logistics of that to really understand the pressures and personally taxing demands the process generates," Letourneau writes.

There's no similar appreciation of the hell that has been the Harkats' existence for the past decade, the long years behind prison walls, the transfer to Gitmo North, the horrific house arrest and ongoing harassment by border agents, surprise house raids with dozens of officers and canine units, the strains on family and friends, and the threat of torture hanging over their head.

While Harkat ponders the legal battle ahead, the other detainees continue to suffer under house arrest in Toronto, awaiting word on whether the well-documented CSIS abuses in their own cases will also be forgiven as the courts consider whether to judicially sanction deportation to torture.

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.

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