Four years after the Supreme Court of Canada unanimously found them unconstitutional, secret hearing “security certificates” are still in use, with a number of Muslim men fighting unseen allegations while under threat of deportation to torture.

Security certificates have long been used by Canada’s scandal-plagued spy agency CSIS (the Canadian Security Intelligence Service) to tar refugees and permanent residents as national security threats without having to explain the allegations against them. Those detained under the process are never charged, and subjected to lower standards than those applying to any citizen facing similar accusations. Indeed, the law governing the procedure allows for the introduction of any piece of information “even if it is inadmissible in a court of law.”

For the past decade, five Muslim men — dubbed the Secret Trial Five — have endured this Kafkaesque process both behind bars and under humiliating house arrest. Last month, the release of two formerly classified documents indicates that the national security secrecy claims that form the bedrock of these cases have in fact served as a cover for illegal and unethical acts by CSIS.

Indeed, the documents reveal the secret trial regime relies almost entirely on information gleaned from torture. A 2008 letter written by Jim Judd, then head of CSIS, bemoans legislative changes then being proposed that, in raising the bar on the admissibility of information possibly extracted under torture “could render unsustainable the current security certificate proceedings.”

The CSIS memo does not comment on the ethics or legality of using information gleaned from torture; rather, it speaks to whether or not that information can somehow be corroborated. Judd claims that CSIS must maintain relations with countries that have poor human rights records as part of its so-called counterterrorism efforts, and he shudders that with a proposed amendment on torture, “a Court could require CSIS to certify that all intelligence gathered in support of Certificates was done without resort to torture. This would almost certainly result in the security certificates regime falling into disuse as a consequence of its unworkability.”

Judd adds that a court could render inadmissible “any and all information provided by agencies in countries whose human rights records are in question — of which there are many.” This scenario could arise, the memo continues, because “much” of the information put forward by CSIS in these cases “corroborates, or is corroborated, by [words blacked out, but clearly implying derived from torture], which under this interpretation of the amendment may no longer be admissible.”

Judd’s memo was written to then Public Safety Minister Stockwell Day, and cc-ed to Day’s deputy minister, Suzanne Hurtubise, Richard Fadden of Citizenship and Immigration (and, significantly, currently CSIS head), and Harper’s national security adviser Margaret Bloodworth. Remarkably, Mr. Day, despite receiving this memo confirming that these cases were built on tortured-tainted information, would one month later affix his signature to five new security certificates issued in Feb. 2008.

Those new certificates — issued against Toronto’s Mahmoud Jaballah, Hassan Almrei, and Mohammad Mahjoub, Ottawa’s Mohamed Harkat, and Montreal’s Adil Charkaoui — were essentially carbon copies of certificates that the five men had been fighting for years before the Supreme Court ruled them unconstitutional. Never a government to pay much heed to the annoyances of Charter of Rights-quoting courts, though, the Harper government simply carried on as if nothing were wrong.

Damning as the Judd memo has proven, an additional revelation in the case of Mohammad Mahjoub, also released last month, added further fuel to the longstanding demands that the process be abolished and the men set free. The CSIS document, an appendix to a public “Summary of Disclosure,” concludes that “the bulk of information utilized in Mr. Mahjoub’s certificate was supplied by agencies associated to torture.”

Despite this document now being part of the federal court record, proceedings to uphold the certificate and deport Mr. Mahjoub to the substantial likelihood of torture in Egypt continue in January. It’s a sickeningly circular situation for Mahjoub, Jaballah and Harkat, all of whom face judicially sanctioned rendition to torture based on information extracted under torture.

Two other men formerly subject to the process, but still unfairly haunted by allegations anyone can view with a Google search, are currently suing the federal government. Toronto’s Hassan Almrei was held over eight years and, following some cosmetic changes to the security certificate process, became the first of the five detainees to be cleared, in 2009. Adil Charkoui of Montreal had his certificate withdrawn when government lawyers, citing undisclosed “national security concerns,” refused to provide court-ordered disclosure.

Critics of the process are now wondering whether, among those documents that were withheld in the Charkaoui case, there was evidence that his case was also built on torture.

“It really makes me sick to think that when I was sitting in solitary confinement on secret allegations for almost eight years, the head of CSIS knew that my case, and the cases of the other men held on security certificate, were completely baseless, because they were likely based on information that came from torture,” said Almrei.

“Once again, we see that CSIS uses secrecy to cover up what is not only politically embarrassing, but also clearly immoral and illegal.” Almrei was also the subject of a secret government memo from 2003, released during the Arar Inquiry, showing that government officials knew that it was impossible to charge Mr. Almrei with a criminal offence due to a lack of evidence against him.

Ottawa’s Sophie Harkat, who has endured an equally painful sojourn with her husband Mohamed, noted: “Each time something like this comes out into the open, CSIS only gets a slap on the hand. In the meantime, we pay the price with our lives and freedom. This is seriously disturbing, but it’s also not the first time they have hidden the truth.”

CSIS has a long history of playing loose with the rules when it comes to torture, refusing in security certificate hearings to confirm what is publicly documented ad nauseum: that governments like those in Syria or Egypt regularly engage in torture.

In a March 2010 hearing for Mr. Mahjoub, his then lawyer, Marlys Edwardh, asked a CSIS officer whether his agency was “still of the view that they do not know as a fact that Mr. [Maher] Arar was tortured.”

Despite expert reports and a federal inquiry’s conclusion that Arar was indeed tortured in Syria, the response of the officer was “we do not know as a fact Mr. Arar was tortured.”

A year earlier, CSIS lawyer Geoffrey O’Brian testified before a Parliamentary committee hearing, “do we use information that comes from torture? And the answer is that we only do so if lives are at stake.” Despite the bravado in his answer, O’Brian’s response stands in contravention of Canada’s legally binding obligations under the Convention Against Torture.

The Security Intelligence Review Committee (SIRC), the more than accommodating “oversight” body for CSIS, produced a 2007/2008 report relating to Harkat’s case based on a complaint that CSIS exhibited a “total lack of concern” with respect to information gleaned from torture. In language typical of that body’s accommodationist posture, “SIRC found CSIS is concerned with human rights, but nevertheless may use information obtained by torture.”

The report continued: “Although SIRC did not find evidence of a ‘total lack of concern’ on the part of CSIS regarding evidence obtained by torture, it did find that at the time the complaint was made, CSIS lacked specific policies aimed at eliminating any possible Canadian complicity in torture. As noted in the Arar Report, CSIS had no personnel with expertise in recognizing intelligence that may have been the product of torture, but ‘[r]ather, CSIS’s assessment focuse[d] on whether the Service can corroborate the information.'”

CSIS involvement in the torture of Canadian citizens Abousfian Abdelrazik, Omar Khadr, Abdullah Almalki, Muayyed Nureddin, and Ahmad El Maati has been thoroughly documented in court rulings and inquiries (see here and here, with a link to the final report of the Iacobucci Inquiry here). And yet, despite the growing body of evidence that the spy agency is acting in violation of basic legal and moral precepts, few are willing to publicly challenge the institution.

For those remaining under certificate, supporters are gearing up for a “Free the Three” campaign in 2012 that will be calling for the withdrawal of the certificates, an apology, compensation, and citizenship for the detainees, and legal accountability for officials who knowingly acted illegally in their use of information derived from torture.

Matthew Behrens is a freelance writer and social justice advocate who coordinates 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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Photo of Matthew Behrens

Matthew Behrens

Matthew Behrens is a freelance writer and social justice advocate.