New allegations, same old secret trials

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In typical government style, a series of rehashed ancient suspicions, new unfounded allegations, and outright lies against secret trial detainees Mahmoud Jaballah, Mohammad Mahjoub, Hassan Almrei, Mohamed Harkat, and Adil Charkaoui were "released" last Friday afternoon. Conveniently, there was little or no opportunity for informed journalists to put things into perspective and get beyond the fear mongering the allegations are meant to inspire.

In a highly politicized move, the Federal Court of Canada for the first time posted on its home page the so-called "public summaries" of the cases against four of the five Muslim men subject to security certificates. There is no context to these Federal Court postings, no explanation that these are only unproven allegations based on speculation about some possible past, present, or future behaviour, no chance for those whose names are slandered through this process to respond. They are simply there as "official-looking" documents that doom the reputations of those who have yet to have a hearing. And when they do get to court, they will be told that the basis for these allegations is a secret neither they nor their lawyers can challenge.

Back to square one

In other words, despite all the fancy words some of you have been hearing in the media about increased disclosure, new approaches, and all the rest, we are back to square one with security certificates: two-tier justice, the lowest standards of any court process in Canada, indefinite detention without charge, secret suspicions, and deportation to torture.

It's important to remember that the allegations that have stirred headlines, especially in the National Post, are nothing more than that: allegations, based on secret suspicions and racial and religious profiling. They have served to divert our attention from the real threat to Canada: the anti-democratic security certificate itself, which remains essentially unchanged since it was declared unconstitutional a year ago by the Supreme Court of Canada.

In typical CSIS style, some of the "information" is almost a decade old, leading to new questions: if this stuff has been sitting around all this time, why is it only now being revealed, especially since it would not have imperilled "national security" to have released it in 1999, for example, when one of these cases was first heard? What does this say about the Federal Court judges who may have seen this stuff in the secret file a few years back and refused to disclose it to the detainee?

Much of the "disclosure" is a rehash of testimony and information gleaned from previous security certificate proceedings, proceedings that were declared unconstitutional a year ago. But that does not stop CSIS from using them once again, nor does it do anything to undermine the oft-repeated charge that these hearings turn the court into a police station where interrogation is allowed to proceed under the cover of judicial "respectability."

The C-3 sham

The past few months saw sustained cross-Canada opposition to the "new" security certificates, and it is helpful to remind ourselves at this juncture that the manner in which the government has rammed through an anti-democratic measure has eaten away at the supposed democratic process thatâe(TM)s supposed to ensure equal rights for all.

On February 23, 2007, the Supreme Court of Canada unanimously found that the heart of the secret trial process was unconstitutional. While the Court explored the pros and cons of a number of "alternatives," it did not favour any one of them, and left a one-year time period for Parliament to come up with something else. This was not a deadline, merely a suspension of its judgment.

Stockwell Day, the "Public Safety" minister, refused to hold consultations with stakeholders, and sat on the issue for 8 full months before introducing a "new" version of security certificates that is a mirror of the old, save for two pieces of window dressing, the much-criticized special advocate and an extremely limited, perhaps even impossible, "appeal" process.

In another questionable political move, in late May, 2007, the Federal Court of Canada, in tandem with a CSIS-friendly think tank, commissioned a study on special advocates (lawyers who see some of the secret suspicions), thus narrowing the discussion to a technical "fix" to a fundamentally flawed and unfair process. The study was not mandated to inquire about the inequality of two-tier justice, the shamelessly low standards used in a security certificate, or the fact that anything in a security certificate case may be accepted by a judge even if it is not normally admissible in a court of law.

The same Federal Court, perhaps embarrassed by the fact that it has always upheld this process that was unanimously rejected by the Supreme Court, continued throughout 2007 to make conclusions based on findings that occurred under a process that had been deemed unconstitutional.

After the "new" secret trial bill, C-3, was introduced to the House of Commons, it was rushed to second reading on the basis of fear-mongering threats of meeting the February 23 "deadline" that never existed. When the House committee "studying" the bill planned hearings, it originally invited only seven witnesses, none of whom were involved in the day-to-day work surrounding secret trials in Canada.

Sustained public protest opened up the hearings, and excellent submissions were heard from many parties, but all of their suggestions and comments were either ignored outright or rejected as beyond the scope of the committee's mandate. Pleas to hold real, democratic, accountable hearings were met with complaints by MPs that they wanted to go on Christmas vacation. "I haven't had a holiday since 2004," complained secret trial cheerleader Ujjal Dosanjh.

While Bill C-3 was at the House committee, the Department of Justice was already advertising for special advocates as if this thing were a done deal, although every legal association that appeared before the House noted the bill would not pass a constitutional challenge.

The bill could have easily passed the House before Christmas, giving the Senate time for "sober second thought," but the Harper government held it back until the end of January in a move designed to give the Senate less time to consider changes and to up the fear factor. Endless lobbying sessions with Liberal MPs became bizarre, unpaid therapy sessions conducted by activists who had to listen to the angst of individuals who always campaign as the party of the Charter of Rights and Freedoms but all of whom obediently lined up and either voted for secret trials or abstained.

CSIS trial balloon

Meanwhile, CSIS upped the ante as it sent up one of its periodic trial balloons searching for new security certificate targets, this time in the Somali community. "Terrorist groups may be funding their activities through khat, an illegal stimulant smuggled daily into Canada, says a newly released intelligence report," screamed the National Post on December 10, 2007. Buried in the article is the caveat, "The RCMP has found 'no distinct links' between the import and trafficking of khat in Canada and terrorist groups."

Following passage of the bill in the House, on February 11, the Senate held a full day of hearings. Every single witness opposed the bill, and even Stockwell Day acknowledged there would likely be a court challenge, after which he ran out of the room when individuals who have sought a meeting with him for two years on this issue went up to say hello.

The Senate, acting as the chamber of sober second thought, rammed through the bill less than 24 hours later. Hundreds of people across the country then contacted Governor General Michaelle Jean, urging her to live up to the rhetoric she spouts on behalf of a compassionate, nice Canada, and refuse royal assent to a bill entrenching inequality based on different levels of citizenship. Jean nonetheless granted Royal Assent.

This whole process was not an example of democracy; this was legislation by fear, threat and intimidation.

Torture prohibited on paper only

Meanwhile, Canadian journalists and editorial writers have been cooing about the "big" change: the new secret trials bill says information from torture is not allowed. However, this paper guarantee is belied by the simultaneous release of a report from CSIS' normally accommodating oversight committee, the Security Intelligence Review Committee, that concludes CSIS "uses information obtained by torture," an establishment confirmation of what many in the community have long known. The report finds that CSIS's only concern is whether such information is reliable, and not whether such use of torture information violates CSIS obligations under the Charter of Rights, the Criminal Code and international treaties "that absolutely reject torture."

In addition, the allegations against Charkaoui are still based, in part, on information gleaned from an individual about whom there are substantial grounds to believe were produced under torture.

On February 22, the CBC among other media claimed there is a radical change by the government going public with the "new" information that used to be "secret." This is wholly inaccurate. What has been "released" has always been a publicly available document available through the Federal Court. What is new is the fact that the Federal Court would put the summaries on its website's home page. This does not represent a new era of disclosure; it merely reveals a new phase of character assassination.

What happens next

This week, we should have more information about upcoming court dates for the public portions of the secret trials. While we have much to do, now is a good time to remind ourselves of what made the issue part of the national consciousness in the first place: grass roots, democratic community organizing, including the use of nonviolent direct action, all of which are the ultimate guarantors of democratic rights when governments fail to uphold said values.

Further Reading

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