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FEDERAL COURT RULES IMMIGRATION MINISTER ABUSIVE, THAT MAHMOUD JABALLAH IS IN NEED OF PROTECTION FROM DEPORTATION, AND UPHOLDS CERTIFICATE ON UNDISCLOSED OLD EVIDENCE
TORONTO, MAY 26 -- The painfully long persecution against Mahmoud Jaballah, an Egyptian refugee claimant who has spent almost 7 years in Egyptian and Canadian jails despite never having been charged nor convicted of any offence, continued this week as the Federal Court of Canada upheld the secret trial CSIS security certificate against him. In a mixed decision, Justice Andrew MacKay says "new" public evidence was presented to help him determine that the certificate was reasonable, yet Jaballah’s attorney, Rocco Galati, points out that this "new" evidence was never put before Mr. Jaballah in open court. MacKay also noted that Minister of Immigration Denis Coderre was guilty of abuse of process for extensive delays in making a determination about Jaballah’s future, even though the Immigration Department did conclude in August, 2002, that Jaballah was at risk of torture and execution if returned to Egypt. MacKay determined that the decision of the department would have to be the decision of the minister: that Mr. Jaballah is in need of protection. Jaballah has the distinction of being the only person, among the 30 or so security certificates which have been issued since 1992, to actually win against the stacked odds of a secret evidence case, a victory which occurred in 1999 following seven months of detention and a hearing in which CSIS perjured itself. But in August 2001, Jaballah was arrested on a second certificate. "CSIS perjured itself in 1999, no question," Galati says. "This (Jaballah’s victory in 1999) was an embarrassment to CSIS, it caused an internal review within CSIS which they refused to disclose to me expect for a lot of black lines, as to why and how they could have lost the case. Many witnesses have indicated that after the decision CSIS indicated to them they didn’t care what the Federal Court has to say, they were going to get Jaballah, and sure enough, they got him." That fall, CSIS officers admitted in open court that they had no new evidence against Jaballah, only a new interpretation of the facts which were already dealt with in the 1999 hearing.
MacKay notes in his decision that in January and February of 2002, he held in camera (behind closed doors) hearings with CSIS on five occasions, and "I considered again those documents not previously released on national security grounds and confirmed for myself that these should continue to be held without disclosure to Mr. Jaballah." Neither Jaballah nor his attorney was allowed to attend the secret hearing or to respond to allegations made against him at that time. It’s a process which is open to incredible abuses. As Galati points out, "You can’t sit as a Federal Court judge unless CSIS allows you to sit on one of these cases. Secondly, in every other area of the law, informant privilege, therapeutic records, sexual assault cases, there is a balance where a judge sits in chambers and decides whether or not the documents released would endanger national security. In these cases, the Federal Court has never devised a common law process for vetting out what will or will not endanger national security. They simply accept the word of CSIS. Anytime CSIS says it’s national security, the Federal Court accepts that. Well, that’s abrogating your judicial function." Indeed, it’s a merry-go round in which Parliamentarians defer to the court, and the court defers to CSIS, and CSIS acts above the law. Judge Mackay says "I do acknowledge that under the IRPA a person who is the subject of the Ministers’ certificate and his or her counsel may not see the information relied upon by the Ministers, an invidious position but one provided by Act of Parliament." If it is so invidious, MacKay’s silence is appalling, given that his role in upholding the secret process is no different than those judges who upheld slave laws, laws barring women suffrage, or the anti-Semitic laws of Nazi Germany. Simply because it has been made law does not make it right, or just. Indeed, as Galati pointed out at today’s press conference with respect to the decision, "I find the judgment disappointing, depressing, but not surprising. If you had asked me in 1942 and 1943 , do you find the government’s treatment of Japanese Canadians and Italo-Canadians in the camps surprising, I would have said no, it’s depressing, it’s not surprising, because nobody’s willing to do anything about it. Parliamentarians defer to the courts, the courts defer to CSIS, CSIS says it’s above the Constitution, so you have the police running courts and Parliament." It’s something Galati has noted time and again, and today he called upon the Canadian courts to stop shirking their responsibility. "The [Jaballah] judgment further highlights the judicial cowardice in pretending that the "process" has been dictated by Parliament when in fact anyone who is sober and reads the Act can see that the process is not in the statute itself, but rather, has been invented by CSIS and accepted by the Federal Court judiciary without any question whatsoever, contrary to all the other guidance from the Supreme Court of Canada on how to balance privilege with the right to know the case against you. "The judgment further re-enforces the complete abrogation of the responsibility by the Canadian judiciary to enforce the Constitution, the highest law of the land, by lamely deciding that a judge who hears one of these certificates has no constitutional jurisdiction and that after the decision is made there is no right of appeal from these decisions. "Lastly, after 11 years and 30 such cases having come before the courts, the Supreme Court of Canada has yet to muster up the courage or the guts and actually exercise its responsibility to Canadian society for which those judges are paid, and actually grant leave to review this medieval, inquisitorial, star chamber proceeding and actually tell the Canadian public and the victims of this process that yes, it’s okay, the Canadian constitution has no problem with it. It’s high time that the Supreme Court of Canada stopped hiding behind the cowardice of denying leave on such cases and actually face Canadian society and these people subject to these certificates and deal with the constitutionality of these certificate processes on its merits." Even if the court had quashed the second certificate, there would be nothing to stop a third or fourth or fifth one from being issued until CSIS got what it wanted. While this is clearly an abuse, MacKay in his decision defended this process, stating this "exceptional process is not subject to the principle that parties are limited to bring one proceeding, at least where new evidence or information is presented. If it were otherwise, the continuing security interests of the state, assessed and re-assessed on the basis of a mosaic of information gathered from various sources over time, might be compromised."
Apart from missing the fact that CSIS admitted in open court that it had no new evidence (and that MacKay has magically added what he considers "new" evidence in his decision) Mackay’s judgment creates a potential revolving door: if you fit the bill of threat-du-jour, you might be in and out of prison on security certificates the rest of your life, regardless of court findings, if CSIS has it in for you. In other instances, MacKay’s "reasoning" completely loses any sense of "reason," as in what he states that "information not on the public record" partly "contradicts" evidence Jaballah gave in his first hearing, "and it could only be ignored if there were persuasive explanation on his part, explanation which only Mr. Jaballah could provide, but which he declined to do." But how can one respond to information when one is not allowed access to it? Questions remain as to what will now happen to Jaballah. While Galati is filing new motions before various courts, and Jaballah is eligible for bail 120 days from the release of this decision, Minister of Immigration Coderre has yet to indicate what his final position will be with respect to sending Jaballah back to Egypt. "This minister of immigration and his predecessors, in my experience as a lawyer practicing for the last 13-odd years, has been that they have complete disdain and contempt for the Supreme Court and Federal Court and the ministers of immigration have been contemptuous and tried to slither and slide their way around constitutional pronouncements," Galati said. "Mr. Jaballah and his family call on the minister to either charge Mr. Jaballah in a real court of law in front of a real judge and jury under Bill C-36, or release him to his family, or find him a safe third country alternative. "Mr. Jaballah’s case highlights the intolerable racial and religious gulag against Muslims and Arabs that has been created by this government and been lamely accepted by the courts without lifting a finger under their constitutional responsibility." (report from Matthew Behrens of Homes not Bombs. Complete transcript of today’s press conference is below. Homes not Bombs is also campaigning to end the secret trial process in Canada and working to support the families of those affected by these draconian measures. Those in prison now that we know of on these certificates include Muhammad Mahjoub, Mohamed Harkat, Adil Charkaoui and Hassan Almrei and Mahmoud Jaballah. Homes not Bombs plans a mass act of nonviolent civil disobedience at CSIS, in Ottawa, on Friday, October 31. To get involved in the campaign, the action and more, contact us at [email protected] or PO Box 73620, 509 St. Clair Ave. West, Toronto, ON M6C 1C0.)
PRTESS CONFERENCE REGARDING FEDERAL COURT DECISION ON MAHMOUD JABALLAH’S SECURITY CERTIFICATE, ABUSE OF PROCESS BY THE IMMIGRATION MINISTER, AND FINDING THAT JABALLAH IS IN NEED OF PROTECTION AND SHOULD NOT BE DEPORTED: Monday, May 26, Office of Rocco Galati, Attorney for Mr. Jaballah (Galati comments the Justice Dept. created a media team after the first certificate against Jaballah was quashed "to help deflect the bad press about CSIS officers perjuring themselves. I never got a kickback for the employment program I created." Good morning. My name is Rocco Galati. I’ve been legal counsel to the Jaballah family since March of 1999. On Friday, May 23, the Federal Court of Canada released a decision to the parties on both the abuse motion that was brought before the court on April 11 of this year and the so-called second certificate that was issued against Mr. Jaballah in 2001. Briefly, since 1981, Mr. Jaballah has spent close to seven years in prison and been the subject of torture in those seven years. Two and a half of that prison and torture has taken place in the city of Toronto, Ontario, Canada. Mr. Jaballah has never been charged or convicted of any offence anywhere in the world. No country has ever sought the legal extradition of Mr. Jaballah from Canada. He has never been told the specific reason and/or shown the nature or the substance of the evidence against him. He has an in absentia death sentence against him in Egypt which was issued two weeks after Mr. Jaballah won his first certificate and the Federal Court threw out his case. This 58 page judgment from the Federal Court released Friday, in a word, is a belaboured indictment unto itself and the process of which Mr. Jaballah was victim. The judgment, 1. has blundering misstatements of what was not disclosed to Mr. Jaballah It discloses publicly only one new matter which is purportedly new which was not disclosed to him in open court which begs the question: if the court can disclose this information in its judgment, why could the court not have disclosed it to Mr. Jaballah so that he could answer to it? The judgment further highlights the judicial cowardice in pretending that the "process" has been dictated by Parliament when in fact anyone who is sober and reads the Act can see that the process is not in the statute itself, but rather, has been invented by CSIS and accepted by the Federal Court judiciary without any question whatsoever, contrary to all the other guidance from the Supreme Court of Canada on how to balance privilege with the right to know the case against you. The judgment further re-enforces the complete abrogation of the responsibility by the Canadian judiciary to enforce the Constitution, the highest law of the land, by lamely deciding that a judge who hears one of these certificates has no constitutional jurisdiction and that after the decision is made there is no right of appeal from these decisions. Lastly, after 11 years and 30 such cases having come before the courts, the Supreme Court of Canada has yet to muster up the courage or the guts and actually exercise its responsibility to Canadian society for which those judges are paid, and actually grant leave to review this medieval, inquisitorial, star chamber proceeding and actually tell the Canadian public and the victims of this process that yes, it’s okay, the Canadian constitution has no problem with it. It’s high time that the Supreme Court of Canada stopped hiding behind the cowardice of denying leave on such cases and actually face Canadian society and these people subject to these certificates and deal with the constitutionality of these certificate processes on its merits. Secondly, the Federal Court of Canada, while upholding the certificate on only one new piece of evidence and largely all the old evidence, stated the obvious to anyone in a coma. Mr. Jaballah will be tortured and killed if he is returned to Egypt, and thus is in need of protection. And in that sense, the positive import of this decision today is, the way I read it, in conjunction with the Suresh decision of the Supreme Court of Canada, is that Mr. Jaballah cannot be removed to Egypt. However, this minister of immigration and his predecessors, in my experience as a lawyer practicing for the last 13-odd years, has been that they have complete disdain and contempt for the Supreme Court and Federal Court and the ministers of immigration have been contemptuous and tried to slither and slide their way around constitutional pronouncements. I read this decision to say that Mr. Jaballah is in need of protection and therefore cannot be removed to Egypt. Mr. Jaballah has never been charged nor convicted anywhere in the world. No one has sought the extradition of Mr. Jaballah. Mr. Jaballah has been the subject of a kangaroo proceeding in which CSIS perjured itself in 1999. Mr. Jaballah’s wife and four children have been found to be Convention refugees last month and have a right to remain in Canada. Mr. Jaballah has two other children born in Canada. Mr. Jaballah and his family call on the minister to either charge Mr. Jaballah in a real court of law in front of a real judge and jury under Bill C-36, or release him to his family, or find him a safe third country alternative. Mr. Jaballah’s case highlights the intolerable racial and religious gulag against Muslims and Arabs that has been created by this government and been lamely accepted by the courts without lifting a finger under their constitutional responsibility. WILL YOU APPEAL TO THE SUPREME COURT OF CANADA? No, I’ve tried that in the Mahjoub case and the Supreme Court says it has no jurisdiction from the trial division. Mr. Jaballah doesn’t have the right to appeal the actual certificate d determination, but we will be appealing to the Federal Court of Appeal his denials on the motion of res judicata, issue estoppel and abuse of process and whether the Federal Court does in fact have constitutional jurisdiction when it’s reviewing one of these certificates. Those will be appealed to the Federal Court of Appeal. I anticipate the Justice Dept. will move to quash that appeal for want of jurisdiction. Secondly, we are also filing in the Ontario Court an action which will eventually be followed by an application within that action for a writ of habeas corpus. WHAT HAPPENS TO Mr. Jaballah IN THE NEXT MONTHS The Federal Court found that the minister was engaged in an abuse of process but denied him the relief of releasing him from custody or quashing the certificate. So he will be there for a minimum of 120 days at which time he is eligible under the IRPA to apply for release from custody. IN A CRIMINAL PROCESS ABUSE OF PROCESS BY THE STATE USUALLY LEADS TO A WITHDRAWAL OF CHARGES, WHY DO YOU THINK THAT DIDN"T HAPPEN HERE? Because Mr. Jaballah is an Arab Muslim. IT’S AS SIMPLE AS THAT? It’s as simple as that What do you think of the evidence that the Federal Court says is enough to uphold the certificate? It’s laughable., the Federal Court says in its decision that the specifics of what IT sets out in its judgment were revealed to Mr. Jaballah in open court. We have transcripts. I defy anybody in this room to find what is in the judgment on the transcript or in the materials disclosed to me or Mr. Jaballah That is one of the pitfalls that I highlighted and I always highlight in these cases. a judge who is playing with all the cards in a deck cannot separate in his mind what cards the accused is holding and what cards have actually been dispensed to the accused. Mr. Justice MacKay with all due respect to him could not separate in his own mind what was actually being disclosed to me and Mr. Jaballah because he has seen the whole evidence. And his judgment clearly sets that out, that he’s under the mis-impression that what he is citing in his judgment was actually disclosed to us. It was not. ARE YOU SUGGESTING THAT THE COURTS ARE BEING UNDULY INFLUENCED BY GREATER POWERS I’m not suggesting that, but what do you say to a process in which a judge on these cases cannot sit before CSIS clears them? You can’t sit as a Federal Court judge unless CSIS allows you to sit on one of these cases. Secondly, in every other area of the law, informant privilege, therapeutic records, sexual assault cases, there is a balance where a judge sits in chambers and decides whether or not the documents released would endanger national security. In these cases, and I’ve asked for it on motion, this is one of the things we’ll be appealing, the Federal Court has never devised a common law process for vetting out what will or will not endanger national security. They simply accept the word of CSIS. Anytime CSIS says it’s national security, the Federal Court accepts that. Well, that’s abrogating your judicial function. And it;s manifested in this judgment because Mr. Justice MacKay releases what is purportedly national security information in his judgment. It’s nice to be public now, well why couldn’t that have been public before the hearing, so we could respond to it? THEY;RE SAYING HE’S A SECURITY RISK IN PART BECAUSE ANOTHER GUY SAID HE HAD A MAIL BOX THAT WAS A CONTACT FOR PUBLICATIONS BY AL JIHAD, DOES THIS MEAN THAT IF SOMEONE SAYS AN E-MAIL THAT SAYS SOMETHING BAD ABOUT AMERICA OR CANADA THAT THAT’S ENOUGH TO BE A RISK? Well, certainly it was enough under Robespierre and under the Catholic Inquisition, it’s enough under Canadian law. It’s guilt by association. SO WHAT IS THE MESSAGE THEN THAT THIS IS SAYING TO ARAB MUSLIMS IN CANADA WITH RESPECT TO THEIR CONSTITUTIONAL RIGHTS IN CANADA? They don’t have any constitutional rights just like the Japanese Canadians and the Italo-Canadians didn’t have any constitutional rights during the second world war. Make no mistake about it. Even though this is peacetime this is a wartime gulag piece of legislation and interestingly enough, you have your research departments, go research our wartime legislation in the second world war and see how hauntingly similar it is to these proceedings. Go research the Emergency Act in Egypt, and see how hauntingly similar it is to these proceedings. Go research any frigging dictatorial piece of legislation in the world today and see how hauntingly similar it is to these proceedings and then ask yourself, what happened to the judiciary’s robes in this country? What happened to the notion of the rule of law? We’re having the police run the courtrooms. WHAT ARE YOUR FEELINGS RIGHT NOW? To anyone who is a constitutional lawyer who by its definition is forced to understand the historical importance of constitutional rights because they have taken hundreds of millions of lives of spilled blood and gulags to attain in our western tradition. To wake up to this epiphany, than in a short ten years those constitutional rights have been over-ridden tells you that as a constitutional lawyer, when you robe now in these cases your robes are simply a fashion statement. WHAT IS THE IMPACT, PRACTICALLY OF THE FINDING OF ABUSE OF PROCESS MOTION Well, practically, I think to this abusive minister, nothing I don’t think he gives a rat’s ass about what any court has to say. That’s been made completely clear in the last six months in his completely Archie-Bunkerish statements about cases already in the court. I don’t think this minister is going to care that Mr. Justice MacKay of the Federal Court has ruled that Mr. Jaballah is in need of protection. I don;t have a crystal ball, but you can anticipate that the minister is going to take the position that they have one last decision to make here, and that is to see, even though he is going to be tortured or killed, whether we should send him to be tortured or killed, Contrary to the Suresh decision of the Supreme Court of Canada. ONCE THE DECISION ABOUT PROTECTION IS IN, CAN THEY REMOVE HIM? Legally, and constitutionally no, but that hasn’t meant much the last couple of years in Canada. Think it through logically. Mr. Jaballah is the subject of a security certificate, therefore the minister is of the opinion that he is a danger to the security of Canada. Within the context of that security determination the law has it that the minister has to determine whether this person, who they want out for security reasons, is in need of protection because he’ll be tortured or killed, with the right of judicial review before the same judge. Now that determination has come down to say that this person, who is already a security threat, is in need of protection. Well, do we need an Einstein to apply Suresh? No. ARE THERE INSTANCES OF SOMEONE WHO WAS FOUND IN NEED OF PROTECTION BUT DEPORTED ANYWAY? I personally have not represented any. I’m sure there have been. Of all these cases only four have seen much public scrutiny, Ahani, Suresh, Jaballah and Mahjoub. The rest have quietly gone under the carpet. The import of it is: they know he is going to be tortured and killed. They have no evidence whatsoever, they concede he;s not linked to any act, they concede he;s not directly linked to any act of terrorism or attempt, they simply allege that he;’s a member. Mr. Suresh had a certificate upheld against him, he could not be removed. The Pacificador case. Mr. Pacificador was alleged to have murdered an elected member on the doorsteps of the legislative assembly in the Philippines, and the Ontario Court of Appeal quashed the minister’s decision to extradite him because they found the process in the Philippines was not in conformity with our Charter. And in that case, they felt the fact that he would be held for a year without trial was enough not to send him. Well, Mr., Jaballah’s been rotting for two and a half years in our own jail without even knowing what he’s accused of. And you ask me, why do you think they’re doing that? It’s obviously because he’s an Arab Muslim. They’re wetting their pants in this climate, they’re not doing their job. I pointed out to Mackay that if Mr. Jaballah had actually been charged under C-36 and convicted and given the maximum sentence, he would have done less time for having been charged and convicted criminally than the time he’s already done in jail. (Comments on the quashing of the first certificate against Jaballah) The Court record is replete with the following, and I don’t care how high the CSIS lawyers jump. CSIS perjured itself in 1999, no question, I’ll publicly debate the record with anybody on that issue. This (Jaballah’s victory in 1999) was an embarrassment to CSIS, it caused an internal review within CSIS which they refused to disclose to me expect for a lot of black lines, as to why and how they could have lost the case. Many witnesses have indicated that after the decision CSIS indicted to them they didn’t care what the Federal Court has to say, they were going to get Jaballah, and sure enough, they got him. WHAT IS THE PO BOX?> At the first hearing they asked Mr. Jaballah did you use your PO Box number, and he said no. The second hearing, they disclosed to us the following: "Mr Jaballah testified at the first hearing that he didn’t use his PO Box number. That’s all we were disclosed. In the judgment we have Mr. Justice MacKay say that Mr. Jaballah’s PO Box number was allegedly found on some computer disc in Jordan. That’s it. So friggin’ what? Read the decision. Everything is old, everything else hangs around like a bad smell. IT NEVER SAYS WHAT THE THREAT IS? No, there’s no suggestion of anything. What’s needed is first of all accepting the law as it is, we have a Parliamentary system, and I accept the law as it is. We need a judiciary that is actually going to do its job. The law as it’s exercised in the courtroom is not the law that’s written in the statute, it’s the law that CSIS has dictated and has gone unquestioned completely by the courts. What is needed is a judicial balance, what the act says is, material will be disclosed unless it can be shown that it would endanger national security. The way I read that in any other regime is that the government has the onus of showing the judge that if disclosed this or that it would endanger national security. Now in cases where we have informants in biker trials and drug trials, what we do is we have in-chamber proceedings to determine how and why certain documents cannot be disclosed and the identity of certain people cannot be disclosed. But what the Federal Court does is just blankets, anytime CSIS says national security, I took a pee in public, that’s national security. The CSIS officers have indicated they decide what’s national security on the spot. Well, how are you going to run the railroad that way. What I’ve argued in the past is you need a judicial procedure for balancing how and what’s to be disclosed. I’ve also suggested that when one of these cases goes to a judge of the court, that the judge who eventually is going to see the secret evidence NOT be the judge who determines if adequate disclosure has been given, and that the disclosure that’s given to the accused goes to a judge without seeing what’s in secret, and let that judge determine, "If I were the lawyer could I answer these allegations?" Because if you are the judge who sees everything in secret and then reads what’s been disclosed to you, how is he going to separate what he knows in his mind from what’s disclosed? That’s an impossible task, and that’s manifested here in this judgment. ARE YOU SURPRISED ABOUT THE JUDGMENT GIVEN MACKAY’S STATEMENT ABOUT LIKENING JABALLAH’S DETENTION TO GUANTANAMO BAY? I find the judgment disappointing, depressing, but not surprising. If you had asked me in 1942 And 1943 , do you find the government’s treatment of Japanese Canadians and Italo-Canadians in the camps surprising, I would have said no, it’s depressing, it’s not surprising, because nobody;s willing to do anything about it. Parliamentarians defer to the courts, the courts defer to CSIS, CSIS says it’s above the Constitution, so you have the police running courts and Parliament. The Federal Court has said we can’t look at the constitutionality when we look at the certificate. SO I’m hoping that the Ontario Court which has full constitutional jurisdiction on habeas corpus will look at the minutiae and at the facts of the case before it. |
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(PLEASE FORWARD FAR AND WIDE. Source of material below: Homes not Bombs, PO Box 73620, 509 St. Clair Ave. West, Toronto, ON M6C 1C0, [email protected]) URGENT: New CSIS Security Certificate Issued Against Montreal Art Student and Father, Adil Charkaoui Secret Trial Process Set to Begin Yet Again in Which Neither the Accused nor His Lawyer is Allowed to See "Evidence" (if indeed "evidence exists) Charkaoui and his family need our support. Please read on to see what you can do.
(Apologies for the length of this e-mail. There have been many requests for lots of background information to the security certificate. We have tried to break it down into specific sections) IN THIS E-MAIL YOU WILL FIND: 1. Brief info. on the case to date 2. Who is CSIS and What is a Security Certificate (which triggers the secret trial process) This section includes some remarkable comments by a Federal Court judge who is fed up with secret trials. 3. What YOU Can Do to Demand Due Process and Fairness and Support Mr. Charkaoui and his family 4. Info on the Campaign to Stop Secret Trials in Canada 5. Relevant Sections of Legislation pertaining to Security Certificate 6. Relevant judicial decisions from U.S. courts on secret evidence
1. ADIL CHARKAOUI IS ARRESTED On May 16, a warrant was issued for the arrest of Adil Charkaoui, a Montreal man originally from Morocco. Charkaoui is a Montreal PhD Art student who is married with one young child. Mrs. Charkaoui is currently pregnant. The warrant was approved by Solicitor General Wayne Easter and Minister of Citizenship and Immigration Denis Coderre. This was done in the name of the Security Certificate, issued under the Orwellian "Immigration and Refugee Protection Act." When detained under this certificate,. there is no chance of bail, detention can be indefinite, and neither the person detained nor a defence lawyer is allowed access to the heart of the "evidence" on grounds of "national security." It’s the basis of a secret trial, the ultimate result of which could be deportation. TIMING OF ARREST IS VERY SUSPICIOUS Broadcast News reports that CSIS and the RCMP had Charkaoui under surveillance for at least 10 days. The timing of the arrest is suspicious, coming as it does 6 full days after the warrant was issued. If CSIS and the RCMP had been monitoring him for at least 10 days, and he was a "threat" to security, why did they wait until something in the news could be "associated" with the arrest of Charkaoui, thereby pinning guilt-by-association allegations through the usual scare stories in a hyperactive media? Sure enough, the raising of the "terror alert" in the U.S. and the bombing in Casablanca provided the perfect backdrop for this stage-managed arrest, and offered another opportunity for Canada to show the U.S. that we are "serious" about cracking down in the "war on terror," more aptly a war on democracy.
SIMILAR STAGED ARREST LAST DECEMBER In a similar "coincidence," on December 10, 2002, an Ottawa man, Mohamed Harkat, originally from Algeria, was also arrested on a security certificate, so that headlines reading "Canadian tied to al-Qaeda arrested" were everywhere as Solicitor General Wayne Easter went to Washington the next day to tell the Americans how much Canada was doing to stop alleged "terrorists." Harkat, whose hearing comes up in July, has been in solitary confinement in an Ottawa detention centre ever since.
CHARKAOUI DENIES THE ALLEGATIONS According to media reports, Charkaoui, on his way back from Morocco, was stopped by government agents at Dorval airport in 2001, told he was "suspected of knowing certain people" and told to spy on members of Montreal’s Muslim community. In a jailhouse interview yesterday, Charkaoui said, "I have no links to Al-Qaeda. This is a new form of McCarthyism, a new witch hunt. There’s no proof, only suspicions. If they have proof they should show it." This follows a classic CSIS pattern. Others who have been arrested on the security certificate report a similar pattern: demands from CSIS to spy on members of specific communities are made, and if not accepted, the security certificate comes down as punishment. REGULAR THREATS AGAINST MUSLIM COMMUNITY CSIS and the RCMP are actively harassing members of Canada’s Muslim communities, focusing specifically on individuals of Middle Eastern and Arabic heritage. In a little-publicized report released last week by the International Civil Liberties Monitoring Group (ICLMG), it was reported that in "hundreds" of instances, people in Canada "are being visited for interviews by security forces without warrants, and taken away for interrogation. Although the full extent of Bill C-36 [so-called "anti-terror" legislation hurriedly passed by Parliament in 2001] was not implemented in these cases, it has been used as a threat to ‘encourage’ voluntary interviews by citing the risk of preventative detention allowed under the Act. Victims of such police conduct have been afraid to come forward publicly for fear of further retaliation." (The ICLMG is composed of many groups including the Council of Canadians, Canadian Arab Federation, Greenpeace, David Suzuki Foundation, United Steelworkers of America, and many others). The Canadian Islamic Congress reports that hate crimes against Muslims have increased 1600% since Sept. 11, 2001. The media has fanned the flames of intolerance as well. Even a report on Canadian census figures featured bizarre scare headlines, such as the Globe’s May 15 shocker that "Muslims Outnumber Jews in Canada." Well, Christians still outnumber Jews and Muslims and Buddhists, but THAT doesn’t make the news. Anti-Islam bias in Canadian media is rampant. The Canadian Islamic Congress identifies what it calls "image distortion disorder," a condition that arises from the constant repetition of key phrases in the media, from "Islamic-inspired terrorist attacks" and "Islamic militant" to "Muslim militant" and "Islamic fundamentalist." This distortion of Islam’s adherents "inevitably leads to discrimination, hate-mongering, acts of vandalism, and false accusation by authorities. Young Muslim Canadians of dark complexion, especially women with hijabs (traditional head coverings), or males with full beards, are particularly vulnerable to anxiety, fear and discrimination because of society’s perception that their religion is violent, backward, restrictive, fundamentalist, and intolerant of opposing or alternative viewpoints." (For the full report visit www.canadianislamiccongress.com)
WHO IS CSIS AND WHAT IS A SECURITY CERTIFICATE? Imagine that you have been arrested, held without charge, told you are a threat to Canada’s national security, and neither you nor your lawyer is allowed to know why. You face deportation back to your country of birth, where you face possible arrest, detention, torture and execution. This is done in the name of defending "democracy." Imagine as well that the spy agency which puts together the document labelling you a threat is a scandal-ridden group that has, according to a recent expose on CSIS (Covert Entry by Andrew Mitrovica), "routinely broken the law, treating the rights and liberties of Canadians as no more than a nuisance...[it is] riddled by waste, extravagance, laziness, nepotism, incompetence, corruption and law-breaking." There is a culture of impunity at CSIS, whose agents often refer to a Ways and Means Act: "if you have a way to get things done, the means -- legal or not -- are justified." CSIS, RACIAL PROFILING, AND THE DEATH OF DEMOCRACY When all civilian flights were rerouted to Canada on September 11, 2001, hundreds of individuals of Middle Eastern and Arabic heritage were seized from those planes and forced into Canadian jails. After spending sometimes weeks behind bars, most were released, but we still have not been told who was jailed, why they were jailed, how many were swept away, and how many are still there. That such an act of mass disappearing can take place in a "democracy" is frightening. That we are not told details of this round-up shows the extent to which a democratic system is not working. The "Security Certificate" But such abuses of democratic process, especially when they relate to people who do not enjoy the privileges of white skin, are logical outcomes of a system which engages in the medieval-style "security certificate" process, begun in 1992 with the help of the Canadian Security Intelligence Service, or CSIS. (CSIS is a Canadian secret police agency, what one journalist calls a Canadian combination of CIA and FBI. It was founded in 1984 after the disbanding of the RCMP Security Service, an organization riddled with massive corruption, criminal scandals, and a long record of civil rights violations. Billed as a "civilian" spy agency, CSIS essentially recruited many of the members of the discredited RCMP Security Service. Some even kept their old desks) On the word of CSIS, individuals can be declared a security threat, arrested and held without bail, denied an opportunity to see evidence against them (or to have their lawyers see that evidence), and deported to a country where they could face prison, torture and execution. There is no judicial check against the formidable power the "security" agencies have in such situations, making the courts an investigative tool of CSIS without any judicial balancing to protect the rights of the individual in question. Once in court, the facts of the case are not what is judged. Rather, all a judge has to determine is whether the certificate is "reasonable." In the "Suresh" security certificate case, for example, the judge stated, "I am here to determine whether there exists sufficient evidence for me to conclude as to the reasonableness of the certificate signed by the ministers. It is not for me to determine whether the ministers were correct in their assessment of the evidence." In the Mahjoub security certificate decision, the judge stated that all that is necessary for CSIS and the government to prove are " ‘reasonable grounds to believe certain facts’ as opposed to the existence of the facts themselves." Even the Federal Court judges before whom the secret trials are conducted are apparently unhappy with the process. Federal Court Justice James K. Hugessen recently made these remarkable statements at a conference in Montreal last year: "All the national security functions which are laid on the Federal Court have this in common: they involve at one stage or another and sometimes throughout the piece a judge of the Court sitting alone in what are called hearings, but they are held in the absence of one of the parties.. That is to say ex parte so that the judge may, if he or she sees fit, take communication of the evidence, the information which is said to be too sensitive to be allowed to be revealed to the person concerned and not only evidence, but also argument which may rely on the evidence or may deal with matters which may be too sensitive to be revealed to the public. "This is not a happy posture for a judge, and you are in fact looking at an unhappy camper when I tell you about this function. Often, when I speak in public I make the customary disavowal that I am not speaking for the Court and I am not speaking for my colleagues but I am speaking only for myself. I MAKE NO SUCH DISAVOWAL THIS AFTERNOON. I CAN TELL YOU BECAUSE WE TALKED ABOUT IT, WE HATE IT. WE DO NOT LIKE THIS PROCESS OF HAVING TO SIT ALONE HEARING ONLY ONE PARTY AND LOOKING AT THE MATERIALS PRODUCED BY ONLY ONE PARTY AND HAVING TO TRY TO FIGURE OUT FOR OURSELVES WHAT IS WRONG WITH THE CASE THAT IS BEING PRESENTED BEFORE US AND HAVING TO TRY FOR OURSELVES TO SEE HOW THE WITNESSES THAT APPEAR BEFORE US OUGHT TO BE CROSS-EXAMINED. "If there is one thing that I learned in my practice at the Bar, and I have managed to retain it through all these years, it is that good cross-examination requires really careful preparation and a good knowledge of your case. And by definition, judges do not do that. We do not get to prepare our cases because we do not have a case and we do not have any knowledge except what is given to us and when it is only given to us by one party we are not well suited to test the materials that are put before us. WE HATE HEARING ONLY ONE PARTY. WE HATE HAVING TO DECIDE WHAT, IF ANY, SENSITIVE MATERIAL CAN OR SHOULD BE CONVEYED TO THE OTHER PARTY. WE HATE, OR I CERTAINLY DO, I AM NOT SURE EVERYBODY FEELS THE SAME ABOUT THIS, SITTING IN A BUNKER, IN A SEALED WINDOWLESS COURTROOM DEEP IN THE BOWELS OF A BUILDING IN OTTAWA WHERE THE AIR IS TERRIBLE, THE ONLY THING THAT IS GOOD IS THE COFFEE, BUT WE HATE IT. I DO NOT THINK IT MAKES US DO OUR JOB PARTICULARLY WELL. We greatly miss, in short, our security blanket which is the adversary system that we were all brought up with and that, as I said at the outset, is for most of us, the real warranty that the outcome of what we do is going to be fair and just." Hugessen later says, "If you have a case that is only being presented on one side, you are not going to get a good case.... It does occur to me, however, that it might be helpful if we created some sort of system somewhat like the public defender system where some lawyers were mandated to have full access to the CSIS files, the underlying files, and to present whatever case they could against the granting of the relief sought. I am told that this already happens within the CSIS, that within the CSIS the case has to be made for concealment and has to carry over a case presented by other CSIS officers who have access to all the material. But, if that is the case, then I am not sure what the judges of the Federal Court are doing in this picture and if I may be forgiven for using the expression, I sometimes feel a little bit like a fig leaf." CSIS: Incompetence, Bias and Abuse The flimsy nature of the information that grounds the security certificate is reflected in criticisms of CSIS made by its oversight committee, the Security Intelligence Review Committee (SIRC), which is traditionally a committee that tries its best not to be too critical of CSIS. Nevertheless: * SIRC's 1999-2000 report raises questions "about some beliefs the Service has about the nature of the threat. We are of the opinion that these beliefs are sometimes overdrawn." * The SIRC report points out one instance, likely illustrative of many more, in which a CSIS application for warrant powers contained "a number of overstatements." * In another case, "information put forward was more than a decade old and the information adduced was derived from one source's 'feelings.' * "One source's speculation was quoted. Some assertions that the target engaged in 'suspicious activities' appeared to us to be misleading or exaggerated." * "For another person targeted, [CSIS] failed to include in the affidavit significant information of which it was aware which contradicts its own position on the person." * In yet another case, a hyperactive CSIS treated as a threat activity that "seemed to be routine diplomatic behaviour," while in another case, "with little corroborating information, CSIS ascribed intelligence gathering motives to apparently normal consular contacts." * SIRC concludes we need the best possible national security advice "unencumbered by unfounded speculation." In addition, CSIS agents are generally not as knowledgeable as they make themselves out to be. Witness the incompetence of CSIS displayed in the following exchange from the hearing of Mahmoud Jaballah, originally printed in Saturday Night: "David,", a self-described expert on Middle East terrorism, was asked by Jaballah’s lawyer, Rocco Galati, what constituted an Arabic country, to which "David" replied, "More often than not, countries in the Middle East." Galati then asked whether Iran were an Arabic country. "I would say it is Arabic, but I’m not an expert in Iranian affairs," David said. "You are completely wrong, Iran is as far from being Arabic as Germany is," Galati replied. Galati continued, "If I suggested to you that your experience is anemic and that you need some re-education, what would you say to me?" David said, "I would say that the Service goes to great effort to make sure that their people are properly trained and culturally sensitized. We do have training in that area." Galati followed up by asking, "Can you name me the Arabic countries along the North African coast?" David could not. "Could you tell me the population of Egypt?" Galati asked the "expert" "David." David could not. Finding Someone to Blame CSIS is a spy agency in search of enemies. To justify its massive budget increase following Sept. 11, 2001, it needs to come up with new "threats" to maintain its new funding levels. Mr. Charkaoui and his family are not alone right now in Canada. Others are currently fighting the certificate process, including Mahmoud Jaballah, a father of six kids, who was arrested in 1999 and held seven months before he was released in an unprecedented move, in which the Federal Court found that Jaballah was credible and CSIS was not. A year later, a disgruntled CSIS brought a new certificate against Jaballah, admitting in court they had no new evidence, only new "interpretations" of "evidence’ already found not credible by the court. Muhammad Mahjoub (two children) has been in jail since June, 2000 on a certificate. Hassan Almrei has been in jail since October 2001, and Mohamed Harkat since December 10, 2002. Interestingly, the security certificate was used against Holocaust denier Ernst Zundel recently. Although Zundel has a right to know the case against him as well, one has to wonder whether CSIS is using the certificate (when other, less harsh legal measures to deal with Zundel are available) to show it is being "evenhanded" in repression.
WHAT YOU CAN DO Homes not Bombs has been engaged in a campaign to stop secret trials in Canada for two years. We have provided support to families affected, organized walks, demonstrations, vigils, courtroom support, and much more. This fall, we plan a nonviolent direct action at CSIS headquarters in which costumed trick or treaters by the hundreds will demand full disclosure on all these cases, an end to the security certificate and an end to the ongoing harassment of Muslims and Canadians of Arab or Middle Eastern heritage. We are also exploring legislation, similar to that proposed in the U.S., to outlaw the use of secret evidence. 1. Write letters to the two ministers listed below (and CC your MP and Homes not Bombs at PO Box 73620, 509 St. Clair Ave. West, Toronto, ON M6C 1C0, [email protected]). Encourage organizations to write similar letters of protest demanding a full, fair, open hearing for Mr. Charkaoui. IF YOU ARE NOT IN CANADA, Letters are still very welcome, to show the government that the country’s image is affected abroad as well as at home by such draconian measures. 2. Meet with your Member of Parliament to inform them about what is going on. Most have no clue, and some may be interested in helping out) 3. Hold a public vigil at an MP’s office, at a federal building, or at the jail where Charkaoui is being held. Remember as well that any public action you take in Charkaoui’s name could reflect back on him. 4. Be prepared to attend court. 5. Financial support for the Charkaoui family (we do not have details on this as yet, but as they become available, we can provide them. Contact [email protected] for those details)
WRITING A LETTER: Please write to the two ministers who signed the certificate, Solicitor General Wayne Easter, and Immigration Minister Denis Coderre, and demand that a full, open, public hearing of all the facts be allowed. Let them know we are following this case and demand that the secret trials of the security certificate process be stopped. It appears that this arrest could be motivated in part by a desire of the Canadian government to prove to the Bush administration that it is "serious" about security issues. For those who sometimes feel (not without justification!) that letters to the government are thrown into the waste basket, remember that CSIS and the security apparatus in Ottawa are very paranoid about any type of oversight, whether governmental or from the public. The act of writing these letters, demanding an end to an unjust process and for full disclosure of whatever facts may or may not exist in the Charkaoui case, makes the spooks quite jittery and can only have a positive effect.
MINISTERS AND ADDRESSES Wayne Easter, Solicitor General House of Commons 318 Justice Building Ottawa K1A 0A6 (613) 992-2406 Fax: (613) 995-7408 Email: [email protected] Denis Coderre, Immigration Minister House of Commons Ottawa, ON K1A 0A6 (613) 995-6108 Fax: (613) 995-9755
THE RELEVANT PIECE OF LEGISLATYION FOR THE SECURITY CERTIFICATE (Section 9, Immigration and Refugee Protection Act (IRPA) (Note, the certificate used to be issued under section 40.1 of the old immigration act) 76. The definitions in this section apply in this Division. ``information' ' « renseigne- ments » ``information'' means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, >from the government of a foreign state, from an international organization of states or from an institution of either of them. ``judge'' « juge » ``judge'' means the Associate Chief Justice of the Federal Court or a judge of the Trial Division of that Court designated by the Associate Chief Justice. Referral of certificate 77. (1) The Minister and the Solicitor General of Canada shall sign a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court-Trial Division, which shall make a determination under section 80. Effect of referral (2) When the certificate is referred, a proceeding under this Act respecting the person named in the certificate, other than an application under subsection 112(1), may not be commenced and, if commenced, must be adjourned, until the judge makes the determination.
Judicial consideration 78. The following provisions govern the determination:
(a) the judge shall hear the matter;
(b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;
(c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;
(d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination;
(e) on each request of the Minister or the Solicitor General of Canada made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;
(f) the information or evidence described in paragraph (e) shall be returned to the Minister and the Solicitor General of Canada and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary;
(g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person;
(h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed;
(i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and
(j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence. Proceedings suspended 79. (1) On the request of the Minister, the permanent resident or the foreign national, a judge shall suspend a proceeding with respect to a certificate in order for the Minister to decide an application for protection made under subsection 112(1). Proceedings resumed (2) If a proceeding is suspended under subsection (1) and the application for protection is decided, the Minister shall give notice of the decision to the permanent resident or the foreign national and to the judge, the judge shall resume the proceeding and the judge shall review the lawfulness of the decision of the Minister, taking into account the grounds referred to in subsection 18.1(4) of the Federal Court Act. Determina- tion that certificate is reasonable 80. (1) The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made. Determina- tion that certificate is not reasonable (2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection. Determina- tion not reviewable (3) The determination of the judge is final and may not be appealed or judicially reviewed. Effect of determina- tion - removal order 81. If a certificate is determined to be reasonable under subsection 80(1),
(a) it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible;
(b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and
(c) the person named in it may not apply for protection under subsection 112(1). Detention Detention of permanent resident 82. (1) The Minister and the Solicitor General of Canada may issue a warrant for the arrest and detention of a permanent resident who is named in a certificate described in subsection 77(1) if they have reasonable grounds to believe that the permanent resident is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal. Mandatory detention (2) A foreign national who is named in a certificate described in subsection 77(1) shall be detained without the issue of a warrant. Review of decision for detention 83. (1) Not later than 48 hours after the beginning of detention of a permanent resident under section 82, a judge shall commence a review of the reasons for the continued detention. Section 78 applies with respect to the review, with any modifications that the circumstances require. Further reviews (2) The permanent resident must, until a determination is made under subsection 80(1), be brought back before a judge at least once in the six-month period following each preceding review and at any other times that the judge may authorize. Order for continuation (3) A judge shall order the detention to be continued if satisfied that the permanent resident continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal. Release 84. (1) The Minister may, on application by a permanent resident or a foreign national, order their release from detention to permit their departure from Canada. Judicial release (2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national's release >from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed >from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person. Inconsistency 85. In the case of an inconsistency between sections 82 to 84 and the provisions of Division 6, sections 82 to 84 prevail to the extent of the inconsistency. Application for non-disclosur e - Immigration Appeal Division 86. (1) The Minister may, during an admissibility hearing, a detention review or an appeal before the Immigration Appeal Division, make an application for non-disclosure of information. Procedure (2) Section 78 applies to the determination of the application, with any modifications that the circumstances require, including that a reference to ``judge'' be read as a reference to the applicable Division of the Board. Consideration During Judicial Review Application for non-disclosur e - Court 87. (1) The Minister may, in the course of a judicial review, make an application to the judge for the non-disclosure of any information with respect to information protected under subsection 86(1) or information considered under section 11, 112 or 115. Procedure (2) Section 78, except for the provisions relating to the obligation to provide a summary and the time limit referred to in paragraph 78(d), applies to the determination of the application, with any modifications that the circumstances require.
US. JUDGES ON SECRET EVIDENCE Supreme Court Justice Frankfurter in Joint Anti-Fascist Refugee Comm. v. McGrath: "No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to popular government, that justice has been done." (Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 171-172 (1951) (Frankfurter, J., concurring)). Supreme Court Justice Jackson in Knauff v. Shaughnessy: "The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected." (U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 551 (Jackson, J., dissenting)). Federal Appeals Court for the District of Columbia on Secret Evidence in Rafeedie v. INS: "... Rafeedie -- like Joseph K. in Kafka's 'The Trial' -- can prevail ... only if he can rebut the undisclosed evidence against him, i.e. prove that he is not a terrorist regardless of what might be implied by the government's confidential information. It is difficult to imagine how even someone innocent of all wrongdoing could meet such a burden… ." (Rafeedie v. INS, 880 F.2d 506, 516, (D.C. Cir. 1989)) Federal Appeals Court for the Ninth Circuit, on Secret Evidence in ADC v. Reno: "One would be hard pressed to design a procedure more likely to result in erroneous deprivations." "Because of the danger of injustice when decisions lack the procedural safeguards that form the core of constitutional due process, the ... balancing [test adopted by the Supreme Court to determine whether INS conduct violates a non-citizen's due process rights] suggests that use of undisclosed information in adjudications should be presumptively unconstitutional." (American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1069; 1070-71 (9th Cir. 1995)). Federal District Court in New Jersey in Kiareldeen v. Reno: "Here, the government's reliance on secret evidence violates the due process protections that the Constitution directs must be extended to all persons within the United States, citizens and resident aliens alike." "Despite repeated requests from the Immigration Judge, the government made no recorded efforts to produce witnesses, either in camera or in public, to support its allegations of terrorism. The petitioner was thus denied the opportunity to meaningfully cross-examine even one person during his extended detour through the INS' administrative procedures. The INS' actions unconstitutionally damaged Kiareldeen's due process right to confront his accusers. The quality of the evidence offered by the government as the basis for petitioners' continued detention does not attain that level of reliability sufficient to satisfy the constitutional standard of fundamental fairness. Even the majority opinion of the Board of Immigration Appeals, which overruled the [immigration judge's] decision to release the petitioner on bond, noted: 'Like the Immigration Judge and the dissent, we have some concerns about the reliability of some of the classified information.' The court finds that to be an understatement." "Here, the court cannot justify the government's attempt to 'allow [persons] to be convicted on unsworn testimony of witnesses -- a practice which runs counter to the notions of fairness on which our legal system is founded.' " [citation omitted] (Kiareldeen v. Reno, 71 F.Supp.2d 402, 414; 418; 419 (D.N.J. 1999)). Federal Court for the Eastern District of Virginia in Haddam v. Reno: "The use of secret evidence against a party, evidence that is given to, and relied on, by the [immigration judge and the Board of Immigration Appeals] but kept entirely concealed from the party and the party's counsel, is an obnoxious practice, so unfair that in any ordinary litigation context, its unconstitutionality is manifest." (Haddam v. Reno, 54 F. Supp.2d 588, 598 (E.D. Va. 1999)). (The Haddam court did not address the constitutional issues arising from the use of secret evidence). Donn Livingston, Immigration Judge, In In Re Nasser Ahmed: "The INS seems to be asking the court to abdicate its statutory and regulatory duty to decide the respondent's asylum claim based on the evidence presented at the hearing. The court will respect the expertise of law enforcement personnel and their dedication to protecting our country. But the court will not defer to their credibility findings, their weighing of the evidence or their interpretations of law. ... [T]hese issues are to be resolved by the [immigration] court which will make its own findings and conclusions based on the evidence presented." "It appears that some of the classified information could be gathered >from non-confidential sources. If the information could be presented in open court as coming from an unclassified source, the respondent would be able to confront the evidence against him. This is certainly a desirable feature of any court proceeding. Indeed, the court is concerned about the possibility for abuse in this area. Imagine, for example, an agency which has two sources of evidence of a particular fact. One source is classified and the other source is public. If the agency chooses to present the information through the public source, the respondent will have an opportunity to confront the evidence. However, if the agency chooses to present the evidence through a classified source, the evidence could remain unassailable. Imagine further the situation where an agency has classified information of a certain fact, but does not yet have a public source for that fact. If the agency knows it can present the classified information in camera, what is the incentive to expend investigatory resources on developing a public source for that evidence?" "Virtually all of the secret information is hearsay not subject to any exception to the hearsay rule. Most of this information is double or triple hearsay. Of course, hearsay evidence may be admissible in deportation proceedings [citation omitted]. However, hearsay may be relied upon only if it is probative and its use would not be fundamentally unfair [citations omitted]." "The government's failure to respond to the credibility questions leaves the court utterly unable to assess the reliability of the government's hearsay evidence. The FBI urges the court to defer to its assessment of credibility. ...However, the FBI has refused to provide the court with evidence from which the court could make an independent evaluation of the credibility of its sources. In light of that refusal, this court must reject the secret information as being of unproven reliability." (In Re Nasser Ahmed, No. A90 674 238 (7/30/99)). |
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PLEASE FORWARD Announcement from Homes not Bombs and the Campaign to Stop Secret Trials in Canada:
Come to Court: Support the Right to Bail and Due Process for Hassan Almrei, a CSIS "Secret Trial" Security Certificate Target who Has Been In Solitary Confinement since October, 2001 (full details below) Tuesday, June 24, 9:30 am Courthouse, 361 University Ave (just north of Queen), Court 7-2
The hearing is likely to take the better part of the week, so if you cannot make it on Tuesday but can make it other days, come on down. Call ahead at (416) 651-5800 to confirm. ****NOTE: Attempts are currently underway to raise both cash bail (in the amount of $10,000) and $50,000 surety bail (persons who own property such as a house, car, land, etc. who would be willing to use that property as collateral to get Almrei released pending ongoing court action. You don’t have to stand for the whole $50,000, but can say you would provide $10,000 or $15,000 worth of surety in conjunction with others who would make the numbers add up. It would help, if you are willing to be a surety, that you can say you know and/or are in regular contact with Matthew Behrens of Homes not Bombs, who would be responsible for ensuring Hassan adheres to his bail conditions. Please contact [email protected] or (416) 651-5800 if you can help with bail and/or surety.
WHO IS HASSAN ALMREI? In the past 20 months, Hassan Almrei has been out of solitary confinement for a total of three days. For the rest of the time, the 29-year-old from Syria, who was granted refugee status following his 1999 arrival in Canada, has been locked in the hole for 23 hours a day. He has never been charged, nor convicted, of any offence anywhere in the world. He is not "wanted" for extradition by any government. But like fellow Muslims Mahmoud Jaballah (held since August 2001), Muhammad Mahjoub (held since June, 2000), Mohamed Harkat (held since December 10, 2002) and now Adil Charkaoui (held since May), Almrei has been targetted by the CSIS secret trial security certificate. Neither he nor his lawyer, Barbara Jackman, is allowed to know the substance of the alleged evidence and, as has been the case with his fellow long-term detainees, Amnesty International has concluded Almrei’s life is at risk if deported from Canada. (Earlier this year, an Algerian refugee in Montreal, Mourad Ikhlef, was deported under the secret trial security certificate. He disappeared immediately upon landing in Algeria, and it is unclear whether he is still alive). Almrei, who was working to get a pita business running, was picked up in the RCMP/CSIS sweeps of the Arabic and Middle Eastern communities after September 11, 2001. In the public summary of allegations which CSIS has to disclose, it is claimed that Almrei is a threat based on his past involvement in the honey business in Saudi Arabia. CSIS says the bin Laden network funnels funds through honey businesses, so Almrei COULD be associated with support for terrorism. (Of course, by the same token, the makers of Billy Bee Honey in Canada COULD also be secretly up to no good, but they are not Muslim, and thus not likely to be surveilled by CSIS. Or to extend the logic, anyone who owns a Harley COULD be associated with the Hell’s Angels. You see how it goes...). As with other security certificate cases, it’s all about guilt by alleged association, and a Federal Court judge (who must be approved by CSIS) is not bound to ensure that facts are confirmed, only that there are "reasonable grounds" to believe that such facts could possibly be true. The other allegation CSIS has made is that Almrei was associated with Nabil Al-Marabh, who post-9/11 was deemed a major terrorist in banner North American headlines. The fact that Almrei readily admitted to CSIS that he knew Al-Marabh socially was seen as by the judge who upheld the certificate as crucial to the case. Yet a year later, after Almrei’s certificate was upheld, anyone who reads the tiny follow-up articles that sometimes report the truth would have found that Al Marabh was not in fact the "terrorist threat" he was made out to be, and instead he was quickly convicted of a minor immigration infraction and deported from the U.S. to Syria, where his liberty, indeed his life, is in question. The fact that Al-Marabh was not who he was made out to be should call into question the decision of the judge who upheld the certificate against Almrei. Almrei’s lawyer Barbara Jackman also notes that Almrei was not accorded due process because the court refused Almrei’s right to testify "in camera" -- behind closed doors, in the presence of his lawyer -- about sensitive details which, if disclosed publicly, could endanger his life if deported, or endanger loved ones in Syria. Jackman has been denied access to Almrei on numerous occasions, and his whole judicial ordeal has also included attempts by Immigration Canada to close his deportation hearing to the public.
In a September 9, 2002 Toronto Star article, reporter John Duncanson notes that "Their [Almrei and al-Marabh’s) families, lawyers and civil libertarians say these men are innocent -- guilty of simply being in police crosshairs as security agents scrambled to round up suspects following 9/11 to placate a public who believed the country was being overrun by Al Qaeda terrorists. The Canadian Security Intelligence Service has built cases against men like al-Marabh, often in sealed court documents, or, as their critics charge, through strategic leaks to the media. CSIS alleged [Almrei] was "a member of an international network of extremist groups and individuals, who follow and support the Islamic extremist ideals espoused by Osama bin Laden," court documents show. Poppycock, says Jackman. "They believe he's a terrorist because he would rather meet with friends for a coffee than talk on the phone," Jackman said. Jackman said anything that someone does to makes CSIS suspicious is automatically cited as terrorism. For example, CSIS supported its claim against her client by providing a federal judge with images taken from his computer, including pictures of bin Laden. "They were pictures he downloaded from the Internet, off of news sites. That's a crime?" Jackman asks. She said CSIS is a "bunch of cowboys" who are eager to flex their muscles after Sept. 11. "CSIS didn't want to be left out. In a perverse way, they want us to have problems here." For more information, or to help with bail, contact Homes not Bombs at PO Box 73620, 509 St. Clair Ave. West, Toronto, ON M6C 1C0 (416) 651-5800, [email protected] |