A forgotten Canadian returns home from the war on terror

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Khalid Awan upon returning home from being wrongfully jailed for 17 years in the U.S. Image courtesy of Matthew Behrens.

Canadian Khalid Awan paid one of the heaviest imaginable prices for the system of racial profiling, mass arrests and indefinite detentions, and deportations that targeted South Asian, Arabic and Muslim (or perceived Muslim) communities after the attacks of September 11, 2001.

Awan, an immigration consultant who happened to be working out of his U.S. office in New York City on 9/11, spent 17 years behind bars in some of the worst American prisons because he was Muslim, because he refused to spy for the FBI, and because Canadian officials appear to have done next to nothing to stand up for his rights as he was being railroaded through a terror-obsessed America that included years in the notorious "Little Guantanamo" isolation units in Terre Haute, Indiana.

In fact, far from being a disinterested bystander, Canada appears to have gone along with the persecution of Awan through the self-admitted complicity of the RCMP and the FBI, which threatened Awan with death by lethal injection, told him his sisters and wife would be arrested, and also claimed they could send him to be tortured in India.

But while Awan was finally able to return to Canada in 2018, this devastating chapter in his life will not be closed until he can get some answers and generate systemic changes to ensure what happened to him does not happen to anyone else. He has launched a fundraising campaign (details below) to hire a civil lawyer to take on his case.

Awan believes strongly that the failure of Global Affairs officials to properly exercise their responsibilities for a detained Canadian abroad -- not to mention one facing terror-related allegations -- has far-reaching consequences for anyone who travels outside the country and whose heritage or religion automatically places them at higher risk given the global panopticon of databases containing false, inflammatory, racially profiled bits of information shared by Canada's state security agencies with the world's most repressive governments.

What happened to Awan in 2001?

Like tens of thousands of Muslims detained after 9/11, the Pakistani-born Awan was targeted by officials whose racial profiling resulted in his extraordinary and violent takedown arrest and detention in October 2001. This dramatic police action was designed to compel his appearance as a "material witness" at the grand jury investigating Osama bin Laden's involvement in the attacks (a simple subpoena would have done the trick).

Never charged in connection with 9/11, Awan was long denied the opportunity to see the affidavit that was used to justify the 2001 arrest warrant in his case. A Federal Court judge ordered its release in 2014, noting that "the requirement that arrest books be open to the public is to prevent any 'secret arrests,' a concept odious to a democratic society." But an FBI that has never had compunctions about being odious to democracy was unwilling to accept that ruling, and went to another court to seek and ultimately receive what appears to be a permanent sealing order.

Following a rigorous grand jury investigation and endless questioning, Awan was cleared of any 9/11 allegations and preparing for his release from detention in November 2001 when he was re-arrested, this time for alleged credit card fraud tied to his immigration business. Awan maintained the charges were bogus, as he wasn't even in the United States at the time of the alleged offences, no former client or bank made a claim against him, and the FBI failed to question a single one of the clients allegedly involved.

Already traumatized by having been disappeared from the streets of New York City, Awan took the advice of a lawyer who said that, as a Muslim in those fearful days, he was unlikely to get a fair shake from a jury, and would do better to plead guilty. Awan says he entered a plea bargain, which guaranteed no future charges would be brought against him, in exchange for upwards of two years behind bars. But that agreement was not honoured, and instead, he received five years.

Inventing terrorists

His fate was similar to that of many post-9/11 detainees, who often suddenly faced immigration and/or misdemeanour charges prior to release, as authorities sought to justify the original, unwarranted, illegal detention without charge. Such charges were useful because they conveniently fell under the umbrella of "anti-terrorism" statistics, making it look like the government was "securing the homeland."

Indeed, Awan's journey was consistent with the findings of an extensive 2014 study, Inventing Terrorists: The Lawfare of Pre-emptive Prosecution, which found:

"that there have been remarkably few actual terrorism threats to this country in the last decade…the war on terror has been largely a charade designed to make the American public believe that a terrorist army is loose in the U.S., when the truth is that most of the people convicted of terrorism-related crimes posed no danger to the U.S. and were entrapped by a preventive strategy known as preemptive prosecution…The vast majority of arrests in the war on terror have consisted of

• the FBI foiling its own entrapment plots; or

• the government arresting people on material support for terrorism charges that effectively criminalize innocent conduct, such as charitable giving and management, free speech, free association, peace-making, and social hospitality; or

• inflation of minor or technical incidents into terrorism events, such as immigration application inaccuracies, old weapons charges, or inaccurate statements to governmental officials."

New threats, new charges

As he prepared for his 2006 release, Awan was concerned that the U.S. would deport him to Pakistan, as the Bureau of Prisons had no documents that he was a Canadian citizen (all of those were held by the FBI). As he looked into the matter, he was led to believe that Canada would be his ultimate destination when he transferred from the federal penitentiary to the Metropolitan Detention Center in Brooklyn. But upon arrival, Awan discovered that a Montreal police officer, seconded by the RCMP, had contacted Awan's sister and brother-in-law, wanting to know the location of Awan's wife. No explanation was provided, though the Montrealers did tell the officer Awan's wife, award-winning actress Riffat Begum, was in Pakistan. Learning the RCMP was interested in her, Begum called a number of times and left messages on the officer's answering machine, but never heard back.

The reason for this sudden interest from the Mounties would soon become clear, when Awan was shortly hauled in to a lengthy interrogation with the FBI and a federal prosecutor, who threatened him with the arrest of his sisters in Montreal and his wife in Pakistan if he did not co-operate and act as a spy for the U.S. both in Canada and Pakistan.

Awan was frightened, wondering how they knew where his relatives lived. They plied him with questions about topics for which he had no answer, and then threatened him with death by lethal injection, stating they only need make a phone call and Awan would be plastered across the media as a "big terrorist."

Trying to save his family

"I was intimidated and pushed to the edge during this interrogation, I was determined to provide anything these U.S. officials wanted to make them happy, even if the questions made no sense, because I wanted to stop the harassment of my family," he later wrote. Awan further feared being branded a terrorist and put to death either in the U.S. or via deportation to India, whose torture-tainted government "would view me as an enemy, and [they] told me 'you know better than I do what they can do with you.'" At Awan's subsequent trial, an FBI agent frankly admitted that when they asked Awan to work for them as a spy in Pakistan and Canada, the "gist" of what the U.S. prosecutor had said to Awan was: "These are terrorism charges…You face serious penalties for these charges anywhere from jail to possibly even the death penalty."

As the interrogations of Awan continued, the Canadian officer called both of Awan's sisters in Montreal and demanded they come to his office for investigation. Awan felt this was meant to put further pressure on him to spy for the Americans. He told his family not to meet with the Mounties without a lawyer present and to insist on getting the RCMP's requests in writing; as normally happens when targets request the presence of legal counsel, the RCMP stopped calling. Nevertheless, the RCMP's actions made real to Awan the FBI threats that failure to co-operate could result in harm coming to his family members. As one of Awan's lawyers pointed out, FBI agent "Ross told Awan that Awan's family in Canada was facing potential repercussions that Awan should take into account when deciding whether to accept the government's proposal."

Needless to say, Awan was also aware of revelations from the Arar inquiry about the extensive U.S.-Canada co-operation on information sharing, rendition and other forms of repression which have thrown countless people into the state security detention net.

Because Awan never agreed to be a spy, he feels he was subsequently charged based on the self-incriminating statements he had made under coercion and threat of death. He'd never been given an opportunity to review the statements that were written up by the FBI, and the government never made an effort to introduce corroborative evidence for those statements. Instead, the government indicted him for allegedly conspiring to provide material support to a foreign terrorist entity, and money laundering to support terrorism during the years 1999-2005. Awan says this was a case of double jeopardy, since there was no new evidence presented for the years prior to his detention, and the charge violated the terms of his original plea bargain. He was also penniless while in prison.

Enter Orwell

More bizarre, it was Awan, as a Muslim, who was accused of transferring a modest amount of money (some $4,000) to the Sikh nationalist group Khalistan Commando Force (KCF), which seeks an independent country from India, and KCF's leader in Pakistan, Panjwar Singh. And for a final Orwellian touch: neither Singh nor the KCF were listed as terrorist entities by the U.S. government. After a judge threw out two of the three charges in pre-trial, the government simply issued a new indictment against Awan that rehashed the previous one.

In a sign of how politically opportunistic this case had been, Awan was then asked to be a co-operative government witness against two members of the KCF (for which he no doubt would have gotten off lightly), but he declined, and so the government went to those same KCF members instead, who happily agreed to testify against Awan. Awan's lawyers pointed out that even if one believed that Awan had transferred the monies, the KCF members' testimony failed to "establish that Awan had anything but a lawful intent to pass money along to a personal friend for lawful activities."

In addition to the statements he made while being threatened with death, Awan's case had as a backdrop a series of secretly recorded conversations with a jailhouse snitch who was promised thousands in cash, legal status for the snitch and his family, and a reduced sentence for numerous crimes. In the manner of classic FBI-style sting operations that have marked the bureau's anti-terrorism set-up operations, the snitch tried in 2003 to get Awan to make statements implicating him in KCF activities, but Awan only admitted he knew KCF leader Panjwar Singh. The snitch actually got Panjwar on the phone from Pakistan on several occasions and urged Awan to get on the line, but, according to legal briefs, "nowhere in the recordings did Awan state that he provided funds or resources to Panjwar or the KCF." The only thing the tapes revealed was that Awan boasted that he knew of Singh because, when he lived in Pakistan, Awan, then a civil servant, felt it best to have powerful acquaintances in the event he would ever need to call on them. Indeed, as the judge concluded, Awan's motivation appeared "to have been to drop names and associate with people in power, people with reputations," and not anything to do with politics. Dropping powerful names in jail can also bring about the kind of status that ensures a sense of safety.

No evidence from government

"At trial," Awan's lawyers wrote, "the government did not offer any bank records, wire receipts, or any other forensic evidence to establish that Awan ever sent funds to Panjwar or the KCF." His lawyers add this was a case of "selective and vindictive prosecution," noting the government waited almost until the last possible minute under the statute of limitations to charge Awan, rather than doing so years earlier.

In the end result, the judge refused to believe the American government would threaten Awan and vengefully charge him for failure to become a spy, and, based on the illegally obtained self-incriminating statements, sentenced him to 14 years in prison. Yet the judge conceded that Awan was not involved in terrorism, noting "there is simply not sufficient evidence for me to conclude that Awan had, or for that matter, continues to have an intent to battle with the governments of India or Pakistan to influence their conduct in any respect." The court was provided with a comparison to the sentences meted out to American white supremacist terrorists who have plotted acts of violence including blowing up a federal building, assassination plots, killing a sheriff's deputy, possessing deadly toxins like ricin, and other serious acts of violence that netted jail terms on average of three to six years.

Post-conviction, much of Awan's time was spent in Little Guantanamo in Terre Haute, Indiana, in the infamous communication management unit (CMU, the polite phrase for a total surveillance and control environment), where Muslims rounded up in the "war on terror" have been incarcerated under brutal and isolated conditions. Awan recalls being in cells that originally held death row inmates that were freezing in winter, boiling in summer, and constantly leaked. Held in solitary confinement for close to a year, he was denied medical treatment and basic dignities like access to his eyeglasses.

Nonetheless, he pursued his case, complaining that the RCMP co-operated with the FBI in harassing his family and creating the conditions whereby the FBI could coerce him into self-incriminating statements. This was met with indifference by the Commission for Public Complaints Against the RCMP. Despite the acknowledgement that the officer was acting on an FBI request made to the RCMP National Security Operations Branch in Ottawa, the commission found that the officer's actions were within the mandate of the organization and that this was all "standard procedure." (This is the same kind of rationale that was used to defend many of the actions of Mounties in the torture of Canadians Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin.)

Pursuing justice

Throughout his incarceration Awan maintained contact with Global Affairs officials, seeking accountability and justice. But outside of boilerplate responses, Canadian officials showed next to no interest in Awan's fate, and Chrystia Freeland, then the responsible minister, turned down a 2018 request to meet and discuss how Global Affairs could join a U.S.-based civil suit about the failure to provide proper consular services to Awan. "If I would have been permitted to contact with the consulate by the FBI (which is an absolute mandate) and not denied at the time when the contact could have afforded some relief," he wrote to Freeland, "I would not be in this situation."

Awan notes that the guide for Canadians imprisoned abroad, published by Global Affairs, specifically states that among the services provided by consular officials is to "seek to ensure equitable treatment under local laws upon your arrest or detention consistent with the standards of the host country" and to "obtain information about the status of your case and encourage authorities to process the case without undue delay." Needless to say, neither function was performed by Canadian officials, a failure compounded by the RCMP's apparent failure to consult with Global Affairs about their own questioning of a detained Canadian's relatives on behalf of the FBI.

Global Affairs failures

Awan's attempt to launch a lawsuit comes on the heels of a stinging indictment of Global Affairs failures with respect to Canadians detained abroad. The 2018 auditor general's report on the failure to properly provide consular services to Canadians held abroad, especially those facing torture and other forms of mistreatment, pointed out that the provision of consular assistance when troubles arise is not mandated by legislation, but is instead a purely discretionary act, one that reflects the racist biases of many a consular affairs case officer. 

According to the auditor general, the failing at Global Affairs to engage with updated information those travellers most likely to face difficulties is hugely problematic, as when:

"Canadians are in distress abroad, they look to their government for assistance and information, and Canadian missions abroad are at the forefront of both. These findings also matter because if Canadians have access to current, accurate advice about the risks of travelling to various destinations, they may make safer choices, which could reduce demand for consular services."

Critically, one finding of the report regarding those detained is:

"Global Affairs Canada officers did not always contact Canadians who had been arrested or detained abroad within its service standards, and case files often provided no explanation as to why no contact was made. We also found that the level of consular assistance varied from one case to another. While assistance may vary due to local conditions or judgment of the consular officer, the files did not contain sufficient documentation to explain this variation."

In addition, even when certain "service standards" were being met, it likely made no difference at all to those who were being tortured. The report continues:

"In cases involving allegations of mistreatment or torture of Canadians detained abroad, we found that consular officers took immediate action to contact detainees and make in-person visits when possible. However, we found that it took between one and six months for departmental officials to formally assess the allegations. Also, the department did not provide sufficient training to consular staff on how to conduct prison visits."

While the auditor general says this is important because "Canadians detained abroad often require immediate contact and information from family members as well as lists of local lawyers," it is also significant because most torture occurs immediately after detention begins. If it is taking Ottawa up to six months to figure that out, the torture survivor is essentially stranded. Such abandonment of Canadians detained abroad is nothing new, and was in fact detailed in two separate judicial inquiries by Judges O'Connor and Iacobucci into the role of Canadian officials in the torture of four Canadian Muslim men in Syria and Egypt. The inquiries also found that the term abandonment might be too charitable a description; complicity in their torture would be far more accurate.

Anyone travelling abroad within the framework of a security state that employs racial profiling as its number 1 ground for suspicion has an interest in supporting Awan's lawsuit. As someone who worked many years as a jailhouse lawyer, he is not about to give up his battle now that he is home. He suffers from PTSD, is often tired and incredulous that multiple generations of men and women like him seem to have been forgotten, and a new generation is set to become victimized under the same patterns of state-sanctioned abuse.

Awan wants this to end, which is why he is launching his lawsuit. He needs to hire a civil lawyer and is seeking enough for a retainer. Those interested in donating to the legal fund can contact tasc[at]web.ca.

Author's note: During our decade of correspondence, attempts to set up email communication were stymied, and letters were rarely received. Awan filed a complaint with the RCMP, alleging the Mounties had interfered with our communication in an effort to prevent advocacy on his behalf. The Mounties concluded they had done no wrong, but the RCMP's complaints commission disagreed, finding that the RCMP "Staff Sergeant Peter Lea inappropriately collected the information about Mr. Behrens for the sole purpose of providing it to the U.S. Federal Bureau of Prisons (FBOP)," and called on the Mounties to clarify their information collection and sharing policies, especially with respect to international liaison officers. Awan discovered through a FBOP memo that the RCMP had advised U.S. authorities that "Behrens was on probation for a violation of the law and was prohibited from corresponding with known felons." At the time, I was on probation for a minor nonviolent trespassing incident at Burlington, Ontario's L-3/Wescam, a longtime producer of key components for drone warfare, but no other conditions were placed upon me. It appears the RCMP inappropriately sought a copy of the probation order and shared both the order and their exaggerated interpretation with U.S. officials. While such practices not surprisingly continue long after the RCMP was whacked on the wrist by the Arar inquiry, one cannot help but wonder about the extent to which the RCMP wants to cover up its less-than-appropriate role in the ongoing imprisonment of Awan.

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 courtesy of Matthew Behrens.

Editor's note, December 12, 2019: The last paragraph was changed to provide updated information about how to donate to Khalid Awan's legal fund. The image was also updated to remove the author's image.

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