Bureaucrats find secret trial process 'too protective of rights'

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The end of June marks 13 years of Mohammad Mahjoub's Kafkasesque journey. The Egyptian refugee and returnee from torture originally thought he was walking onto a Hollywood set when he was surrounded by heavily armed men and arrested while getting off a Toronto streetcar in 2000.

Subjected to a secret trial security certificate, Mahjoub has since been behind bars -- largely in solitary confinement -- or under house arrest facing deportation to torture. His remains one of three cases under a security certificate regime whereby individuals are detained without charge on the basis of secret allegations neither they or their lawyers can see, much less contest. It allows a judge to accept as evidence anything not normally admissible in a court of law, and then make a decision using the lowest standards of any court in Canada. It's been roundly condemned for its use of torture-gleaned information, and has also been found unconstitutional by the Supreme Court of Canada.

Throughout the years of the so-called War on Terror, the Campaign to Stop Secret Trials in Canada, working in conjunction with a number of support committees, has rallied around the Secret Trial Five, five Muslim men who, otherwise unconnected, had been subject to detention under the process. While the introduction of "special advocates" -- security-cleared lawyers who can see some of the secret case but cannot discuss it with the detainees -- has brought about further disclosures of information, the process remains fundamentally flawed and unfair, and will be the subject of a third Supreme Court challenge come October.

While some of the abuses born of the secret process have been revealed as a result of special advocate work -- including the finding that an informant in one case had been having an affair with a CSIS officer investigating the case, while in another the government refused to tell the judge that its informer had failed a lie detector test -- many others have come about as a result of tireless sleuthing by B.C. professor Mike Larsen, whose experience filing and following up on Access to Information requests in an increasingly closed Ottawa bureaucracy is literally unmatched in Canada.

Working with questions posed by Sophie Harkat (whose husband, Mohamed, is challenging the secret process in October at the Supreme Court), Larsen recently received an insightful document dump that, even with many pages redacted, illustrates the extent to which there is consternation within the Canadian government, both over how to proceed when further requests for disclosure are being made, and how to deport individuals when there is a substantial likelihood they'll be tortured.

Larsen's documents are largely a compilation of interview results undertaken as part of the Security Certificate Initiative (SCI), conducted in 2009 among seven departments as Ottawa continued to deal with a unanimous Supreme Court finding in 2007 that the process was unconstitutional. There is only one reference in the 200-plus pages to the huge human toll of living under the security certificate -- one Canadian Border Services Agency (CBSA) officer admits: "There is a human side to these cases, regardless of our operational thinking. There is a human being whose life is in limbo."

Apart from that one afterthought, the rest is a straight-up portrait of the banality of evil, a consideration of Orwellian questions about the effectiveness of the Star Chamber, the difficulties of trying to send someone to a torture-stained regime like Syria or Egypt, and complaints by some that under a secret process where the individual is still unable to ascertain the nature of the case against him, the secretive process is still "too protective of rights" while others find it "seems to be airing [sic] on the side of protection of values."

Part of the grumbling arises from a previous Supreme Court decision that CSIS is not supposed to destroy or withhold all the information in its possession. "The disclosure obligations that have been placed on the service are incredible," complains one of Canada's spies. "This includes 1000s of documents on these individuals… the process was insanely lengthy." No longer, though, than the 11-13 years that current secret trial detainees have been held wondering what, exactly, CSIS supposedly has on them.

The cost of persecuting five Muslim men since 2008 has been astronomical. According to the documents, the budget for 2009 topped out at approximately $60 million. The bulk of that funds government lawyers who defend Ottawa against what they acknowledge are "challenges to indefinite detention, challenges to removal to torture," among other issues. There is no comment about the fact that such challenges are necessary because their existence in Canada stands the government in contravention of its international and domestic human rights obligations.

Most prominent among the interviewees is Bob Paulson, current RCMP commissioner, who in 2009 complained that there was no intergovernmental co-operation (declaring all relevant departments "siloed and self interested"). Paulson also alluded to his preferred choice in such proceedings, the criminal process, noting "transparency and accountability is a fundamental principle of justice." He called the security certificate process "completely off the rails" and noted that given the huge amount of secrecy, "we are going to make the subject 'work' for the information. 'Take our word for it' approach. In my view, we over-claim protection of sources and methods and this is convenient if you can get away with it." Paulson's conclusion is consistent with numerous findings of the Federal and Supreme Court, judicial inquiries, and oversight agencies, all of which point out that CSIS has a long history of preferring to keep things secret (Paulson's Mounties share that problem, but he did not appear to acknowledge it in the interview -- or, if he did, it was blacked out).

Just over 10 per cent of government workers surveyed for the SCI said if security certificates did not exist, "national security would not suffer -- the criminal code would protect national security." Notably, all those detained challenged the government to charge them if there were any real evidence, hoping to ensure they received the higher safeguards and standards in a criminal process versus the lower ones in the immigration stream. The fears about the criminal process are expressed by a CSIS interviewee who whines that "we are being driven more and more back to the criminal model -- evidentiary."

Students of the democratic process might wonder why an agency whose stated task is defending core values like rule of law is so frightened of having to collect things like evidence. The answer: doing so precludes them from using the information they readily acknowledge comes from torture, hearsay, and guilt by alleged association, regardless of the multiple degrees of separation.

In a sign that the government relies more on profiling than evidence, one complaint was that "Criminal charges would be way too cumbersome. The idea of trying to prove that they have committed an offence in Canada would be unlikely; proof of acts committed overseas would be difficult. Proof beyond a reasonable doubt has a larger burden of proof; so chances of success would be unlikely." If there is so little to rely on, then what could possibly be the basis for ruining the lives of the detainees?

It brings to mind the outrageous document from Canada's human rights division at External Affairs, written in 2003, that fretted over deporting Syrian refugee and secret trial detainee Hassan Almrei to Syria at a time when Maher Arar had just returned and outlined the horrors he had undergone there. The memo writer was concerned that people might ask why Almrei was slated for deportation to torture, especially when he  "does not meet the threshold for criminal charges to be laid against him in Canada."

The documents also reveal that the grassroots work opposing secret trials has certainly been noticed by officials in government. It is a tribute to that work that after issuing two to three annual certificates per year from 1992-2003, only one has been assigned by CSIS in the following decade. Part of the problem, CSIS official David Vigneault concedes, is the fact that many Canadians "believe that [indefinite] incarceration and administrative procedures [secret trials] are not in line with democracy." One CSIS interviewee moans that things are not on the right track because "in the media, people see one side of the story. They do not see a fair picture and probably lose confidence" in the process. It's a remarkable admission, yet on another level, it reveals how sensitive CSIS is to any criticism whatsoever. It also fails to appreciate that the media's coverage of secret trials over the past decade has been dreadful, by and large portraying the men exactly as CSIS wishes to.

A government in disarray is also evident in the documents. It seems interdepartmental communication is poor, and while high officials may hold a certain opinion, it's not reflected in ultimate policy decisions. For example, CBSA's Vice President of Enforcement, Kimber Johnson, noted in November, 2009 in response to a question regarding strict bail conditions that "courts have argued that with the passage of time, the risk is less and I think this is true." But the CBSA has not acted as if it were true, continuing to harass the detainees under house arrest and, when hearings have come up, seeking to add additional, not fewer, restrictions on the already limited liberty of the men and their families.

Meantime, officials at the Department of Foreign Affairs and International Trade (DFAIT) appear to be exploring the long discredited seeking of "diplomatic assurances" from the likes of the Assad and Mubarak regimes that their torturers would forgo brutalizing Canada's deportees. Apart from the fact such assurances fly in the face of international and Canadian law, they've also been condemned in studies by the likes of Human Rights Watch, which have illustrated such assurances are not worth the paper they're written on, and simply act as cover for governments seeking to avoid embarrassment. Meantime, bureaucrats reveal that "there is no measure as to which country are [sic] places of jeopardy for human rights and on what basis these assessments made."

Beyond the issue of security certificates is the increasing use of secrecy in regular immigration processes. Immigration security officer Themis Argyrides enthuses about the benefit of having access to secret information that someone being questioned has no knowledge of. "The classified information that was received is a huge benefit, because it allows us to concentrate on the area of concern, even though we may only use open source material in the actual processing." In other words, the officer can play "gotcha" with an interviewee, relying on the uncontestable information in the secret file to try and show the individual may be hiding something or lying. Further, immigration interrogators note they usually oppose the appointment of a special advocate in such non-security cases "because they would rather have fewer people implicated (seeing the information) if possible," even though the advocates are security-cleared and sworn to secrecy.

While the use of security certificates appears to have stalled, their most pernicious attributes are being used in a widening net that entraps refugees and permanent resident applicants. For years, secret trials opponents have argued that security certificates were a thin edge of the wedge for a broader attack on fundamental freedoms, creating dangerous precedents via the demonization of religious and racial groups whose rights most would fear standing up for. That argument, unfortunately, continues to be confirmed, as witnessed these past few weeks by revelations of mass spying on global citizens by the National Security Agency as well as the Communications Security Establishment Canada. In the eyes of government, we are all suspects now.

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.

Image: Jared Rodriguez / t r u t h o u t/flickr

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