How Reliable Are the “Secret” Keepers?

Given that we don’t even know what the evidence is, how do we know how it is being treated? How do we know information is not being taken out of context and presented? And where does this evidence come from?

If it hasn’t been offered yet on this blog, I’m going to give you a quick rundown of how a security certificate is obtained. First The Canadian Security Intelligence Service (CSIS) gathers “secret” evidence from “secret” sources. Sometimes this “secret” evidence might be “secretly” leaked. The Minister of Public Safety and the Minister of Citizenship review and sign the Security Certificates. There are “secret” court proceedings which allow the Feds to consider “secret” information. They claim it is all done in “secret” because disclosing the information would seriously harm the government’s ability to protect Canadians.

As an aside, I find this rather odd, because the hearings of the Toronto 18, who were accused of planning to bomb us and behead the Prime Minister, were completely open to the public. Anyone could go into the courts and view that hearing of evidence in person.

A “special” advocate (of the detained) is exposed to the “secret” evidence but cannot relay that information to the detained or family.

Yes, don’t worry, all this “secret” evidence, “secret” sources, “secret” hearings and “special” advocates sounds like a bunch of 7 year olds’ treehouse game or something from Lord of the Rings to me too.

So let’s move on to what we know about the sources. Who are they and how reliable are they? Let’s look at one of the sources. In 2003 Adil Charkaoui was arrested under the Security Certificate mainly due to a claim from convicted terrorist Ahmed Ressam. 21 months later, Ressam retracted his claims saying that he was “psychologically imbalanced when he was interrogated” and offered the information about Charkaoui. Basically, they made a deal with Ressam that if he throws out some names, he’ll get a lighter sentence. He threw out a few names under pressure, and as a result, Charkaoui was detained for almost 2 years. When this information was retracted, Charkaoui was released, having to be tracked electronically, having an escort all day at work, and subject to have his house invaded by the police if needed any time of day, among other restrictions.

One: The source is unreliable. Who is to say the others are not?


What does CSIS do with the information? How is it handled? Believe it or not, in June the Supreme Court of Canada reprimanded CSIS for destroying evidence. This is the first time CSIS has been told to keep careful check of their steps.

Evidence and information that has been destroyed includes original notes and taped conversations. CSIS has also been reported to document and file information that are just summaries of events and facts, but does not present the context that information is taken in. As we all know, information that is presented without context can be manipulated in any way to give a completely different meaning. It is this non-contexual information that is presented to the Federal judge.

CSIS is violating their own acts. The Supreme Court reported, “The meaning of the word 'intelligence' in Section 12 should not be limited to the summaries prepared by officers. The original operational notes are a better source of information and evidence," and the "destruction of operational notes is a breach of CSIS duty to retain and disclose information".

Two: CSIS breaches their duty to retain and disclose information. They illegally destroy evidence and violated Charkaoui’s charter rights by destroying original records, the basis of the case.


It is all done behind closed doors, where we suspect anything can be done with the information, and that suspicion has now become fact. What we can take away from this, is the source of their information is questionable, and the evidence that they do hold is tampered with.

The fact that this is all masked from beginning to end is a great injustice to the accused, to the justice system and to the Canadian people.

For more information on CSIS and their manipulation of 'evidence': http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20080626/charkaoui_SCC_080626/20080626/

Guantanamo North. The Living Conditions of the Suspected.

Guantanamo Bay. It is known as one of the most inhumane prisons in the Western world.

In Cuba, these inmates have been suspected of being a threat to American National Security and have been held under horrendous conditions. (I remind you they have not officially been charged based on concrete, public evidence) Guantanamo's inmates have been known to be beaten, confined in cold cells, deprived of sleep and experience abuse of religion; having their Holy Book, the Qur’an, thrown in the toilet among other instances. Many of these detainees have been held since 2001, after the attacks on the World Trade Centre.

Far in distance, and close in likeness is Millhaven Penitentiary. It is a high-security prison outside Kingston, Ontario. The location of concern is a small prison within Millhaven that houses six persons.; six detainees suspected of threat to National Security. Parallel to the security certificates and evidence, these men have been detained and their conditions and experiences have been hidden from public scrutiny until the men have the opportunity to disclose their experiences.

Again, these men are held indefinitely, not knowing what evidence is being held against them. Currently, we have remaining a Syrian refugee Hassan Almrei. Would you care to take a shot in the dark how long he’s been there? 8 months? 15? 2 years? The answer is, this month marks his 7th year that he’s been held in detention under the National Security Certificate.

Maybe he is not beaten here. Maybe he is not intentionally robbed of sleep. Maybe the pages from his Holy Book are not torn out. But what we do have is a place where people can be tortured with the prospect of being held between four concrete walls without knowing when you will taste freedom again, just like in Guantanamo Bay.

Almrei said, “I am in jail for seven years in a country where they call themselves a democratic country. They believe in principle of law (but) they have a double standard – one for Canadian citizen, one for non-citizens.” Many human rights activists have fought against the psychological torture of the detainees in Millhaven.

In January of 2007, one of the detainees, Mahmoud Jaballah wrote in an open letter to the Canadian people:

“And now we are faced with the denial of medical care. In one case, shots for Hepatitis C have not been given since September 2, 2006. Surgery for a knee injury and a double hernia have not been scheduled, even though we have been here since April, 2006. Our demands are very simple.
We would like to use phone cards to call family overseas. The KIHC makes us use the most expensive plan available, which our families can't afford because they are on social assistance. Since calls are monitored, it makes no sense why a cheaper calling card cannot be used.
We want the same rights as other federal inmates: access to a library, educational programs, and trailer visits with our families where we can stay together for three days every month.”

He continues to mention they their outdoor area is just three meters away from a large fenced in grassy area that is not in use by other inmates.

I leave you with this quote and wish to hear your reflections on the living conditions of those being detained under the security certificates: “Ultimately, we wish to be treated as human beings, and all human beings have rights. We wish to be reunited with our loved ones, but until that time comes, we want to live with as much dignity as is possible while we are at Guantanamo North. There is no security-related reason why this is not possible.”

(Actual open letter: http://www.dominionpaper.ca/articles/924 )

Charter challenge supported by special advocates

In September 2008, two court-appointed special advocates filed affidavits in Federal Court arguing that, under the restrictions imposed by the new security certificate provisions of the IRPA, mounting a proper defence for the detainees they represent is impossible.

In particular, these two special advocates, working on behalf of three of the five men currently held under security certificates, are concerned about s. 85 of the Act which limits communication between the advocates and their clients. (Although I am using the word client here, it is important to remember that a formal lawyer/client relationship does not exist in these cases. It is based in part of the fact that lawyers formally representing security certificate detainees would find themselves in positions of conflict of interest in that in most cases, they cannot fully disclose to their clients the evidence against them. Detainees may have additional counsel who are not on the list of approved special advocates. )

These affidavits were filed in support of a motion by Lorne Waldman, attorney for detainee Hassan Almrei, arguing that the current provisions violate his client's Charter guarantee of fundamental justice (s.7) and the special advocates guarantee of freedom of expression (s.2b). If the court will not strike down the current legislation, the motion calls for the Court to "read down" the law to allow for communication between the special advocate, the detainee and their counsel after the special advocate views the confidential information without requiring a judge's authorization. Special advocates would not be able to disclose confidential information but would have continued access to the detainee.

These two special advocates are arguing that the Special Advocate provisions in the Act make it difficult for them to do their job and that the confidentiality and national security provisions not only limit communication with the detainees once the advocates have seen the confidential 'evidence', but may in fact prevent communication with office staff, other special advocates and even individuals appointed by the Government to support the special advocates, unless expressly granted by a judge. The non-disclosure provisions do not apply to government counsel.

The Canadian Bar Association has criticized the new legislation both in its development stage and since its enactment and a key area of criticism was the blanket non-disclosure provisions contained in the Act.

The government is arguing that the current provisions appropriately balance the need to protect the rights of the detainee and the national security imperative and should be upheld. Further, it suggests that the non-disclosure not only of confidential 'evidence' but also of information regarding the proceedings (e.g. number of witnesses and the agencies they may be affiliated with, etc.) is necessary for the success of the security certificate process.

The Federal Court ruling has not been announced as of this post but will have an enormous impact on the use of these certificates. If this challenge is successful, it may mark the beginning of an entire new round of policy discussions and provide an opportunity for renewed mobilization around the issue.

Canadian Bar Association information
Ctv news story regarding Court challenge

Critiques of Bill C-3 from inside the policy process

So, the Conservative government says that security certificates are a critical tool in the anti-terrorist arsenal of Canadian security services and that the safety of our children, values, way of life, etc, etc, is at stake. This was certainly the tone adopted by Conservative MPS and Senators in order to push through Bill C-3 despite calls for further debate and discussion from all three other parties. If a new law was not in place by the time the Supreme Court’s decision came into effect, the Government argued, the sky would fall, bombs would explode and the terrorists would win. In fact, the threat of sleeper cells that could strike at any time was referenced by a number of MPs in the House of Commons, especially when explaining why they appeared to be supporting the bill despite serious reservations about it. Ultimately, the Bill passed not based on any real degree of consensus about the strength of its provisions, but based on successful fear-mongering.


Some key criticisms of the Act raised within the House of Commons and Senate

Within the debates prior to the Act coming into effect, and subsequently, critiques of the Bill included the following:
1. That, even with the changes proposed, the security certificate provisions in the Act would not survive another Supreme Court challenge. The continued denial of full disclosure of information to individuals detained under the security certificates remained fundamentally unaddressed by the amendments.

2. That the use of “special advocates” had already been tried in other jurisdictions (the UK experience was the most commonly referenced) and had been deemed unsuccessful. More successful, home-grown models were identified by the Supreme Court and experts in security issues as possible replacements for the security certificate process. The Security Intelligence Review Committee, for example, an independent, external review body that monitors CSIS activities, was seen as a possible model that possessed safeguards for protecting individual rights not found under the proposed legislation.

3. That security certificate applications often rely on evidence gathered in other jurisdictions, and, not only can special advocates not access witnesses outside of Canada for cross-examination, but it is impossible for Canadian authorities to guarantee that this ‘evidence’ was not obtained through the use of torture, which violates the UN Convention against Torture, to which Canada is a signatory.

4. That criminal law and not immigration law should be used to handle these cases (raised primarily by NDP MPs within the House of Commons). Their arguments focused on two key concerns:
a. if these individuals posed credible threats to Canada, merely deporting them was not a response that guaranteed our safety and, in fact, may allow for continued anti-Canadian activities from abroad; and

b. if credible threats were discovered involving these individuals, there were already provisions within Canada’s Criminal Code for handling these security concerns. Relying on criminal charges also ensured that the right to due process would be respected.

Despite these criticisms, and alternative proposals presented, the Bill was enacted and implementation of its provisions is underway. Many of the concerns raised through this process appear to be borne out by the experience of the past months. The possibility of another successful Charter challenge appears increasingly likely. This will be explored in future posts.


How did this contested Bill become law?

In my opinion, it's all pretty simple - and awful. Somehow a minority government was able to push through this legislation with little serious resistance from its main opposition or from Canadians because of the current climate of fear, intolerance and ignorance. The all-consuming fear of the ‘other’, particularly an Arab or Muslim ‘other’, so effectively marketed since September 2001, is a clear thread running through the debate about security certificates. It justifies the need to sacrifice the fundamental rights of these ‘others’, these people who are portrayed as having ‘betrayed the kindness and generosity of Canadians’ by coming into ‘our’ country with ‘evil intent’ (remember, no criminal acts need to have been committed, just a perceived risk of future actions).

The Charter violations are justified by the ‘otherness’ of those subject to them, the flip side of which is the repeated reassurance that “don’t worry, we’d never do this to Canadian citizens”, as if somehow it should matter less if it just happens to “them”, and as if the line between “us” and “them” is clearly and impermeably drawn (this despite an unsuccessful private member’s bill introduced into the House of Commons in 2002 which would permit citizenship to be revoked for those individuals found to be linked to terrorism).

The xenophobia and racism inherent in the security certificate debates reflect the larger discourse around national security, immigration and the ‘war on terror’ and continue to shape policy in this country.