Secrecy Piled on Secrecy: Democracy Day in Secret Trials Land

posted on March 19, 2008 | in Category Security Certificates | PermaLink

by Matthew Behrens Source: The Campaign to Stop Secret Trials in Canada URL: N/A Date: March 11, 2008 Democracy Day in the Land of Secret Trials: Federal Court Tries to Speed Through New Security Certificate Proceedings While Detainees’ Special Advocates Now Face A Secret Hearing About Alleged Conflict of Interest

March 11, 2008—It’s Democracy Day in Canada, and liberal types on the CBC and in the papers are gushing about the wonders of this country. One wonders what they would have thought had they been attending the hearing today hosted by Federal Court Chief Justice Alan Lutfy in Ottawa, with affected parties listening in by speaker phone in Toronto and Montreal. In essence, the discussion focused without any particular sense of irony on how best to fairly, compassionately, and expeditiously implement the next stage of a process that guarantees indefinite detention without charge on secret suspicions, two-tier justice, racial profiling, and deportation to torture.At times, the discussion sounds like two individuals arguing about free will versus predestination while they slowly sink in the middle of a quicksand pool. Indeed, on what kind of foundation can any security certificate process proceed when the Supreme Court declared it unconstitutional, and Parliament did nothing to change the substance of the process? Indeed, MPs and Senators completely ignored every major law association in this country (all of which declared the secret trials bill unconstitutional and certain to be shot down in a new court challenge), rushing the legislation through in a mad and unnecessary rush. “CASE MANAGEMENT” FOR RENDITIONS TO TORTURE But nonetheless, today’s “dialogue” is occurring in the second of a series of public “case management” meetings that are couched in terms that are all so pleasant, laid back, and surreal that one feels as if we are in a corporate sales meeting rather than taking part in a process that has created and continues to perpetuate serious human rights abuses. Repeated reference to the need for the “best interests of justice” and “fairness” serve as a weak kind of air freshener that cannot hide the real stink in the room: at the end of the day, the men affected by this process are individuals this government is trying to send to a place where their fingernails will be pulled out, electrical prods will be attached to their genitals, and they will face simulated drowning among other unimaginable tortures. Yes, Virginia, security certificates are a tool by which the transfers of human beings to such horrors are committed. They require only the veil of judicial respectability to stamp “final approval” on the human materiel to be shipped overseas to the dungeons of Egypt, Syria, Algeria, Morocco, and elsewhere. The five men currently subject to this process have faced a collective 33 years behind bars in Canada (often for years in solitary confinement) and under the most draconian house arrest conditions in the history of this country. The Federal Court, which oversees the secret trial process, is trying to ram the new proceedings through in six to nine months. It feels today like we are on a factory floor where the product line features brand new 2008 security certificate “files,” forgetting the human suffering behind them. Like a sales manager pushing his team to get the merchandise out the door to beat the pre-Christmas rush, Lutfy repeatedly urges things to move forward at any cost. PUBLIC RELATIONS COVER FOR FUNDAMENTALLY UNFAIR PROCESS But since this is Democracy Day, there is perhaps an added need for self-reassurance that all is being done in the name of what is right. Hence, government lawyers and Lutfy keep stepping over each other as they try and convince themselves, and others, that all of this is set against a backdrop of fairness, transparency, and respect for the principles of fundamental justice. It reminds one of those self-help models that neglect the root causes of problems. Instead, they advise individuals that the only way things will change in their lives is if they repeat certain mantras throughout the day until they become true: I can do this, I am a good person, I won’t be detained indefinitely because I am a Muslim, I won’t be deported to torture, there is no such thing as a secret trial in Canada… It’s part of a new public relations campaign that, consciously or not, is being used to sell the Canadian public and, more specifically, formerly skeptical members of Parliament, that they need no longer angst about a process that has drawn harsh rebuke from Amnesty International, Human Rights Watch, three separate committees of the United Nations, and thousands of individuals and groups across this land and around the globe. Part of that campaign was the “transparency” involved in the placement of all the unfounded allegations and suspicions about the men on the website of the Federal Court (some would more accurately liken this to character assassination). These were CSIS documents that were completely unsubstantiated, and served only to damage the reputation of those named in the certificates. After public protest, the allegations were removed, but the damage had been done. There were no caveats on the website, no explanation that this is only one side of the story, nor the proviso that CSIS uses information gleaned from torture. A key part of the “new” process is the controversial use of special advocates, lawyers who have been security cleared to view and contest what is in the secret file. The British model of special advocates has been widely criticized (including two high profile resignations of special advocates), and their use in no way answers the question posed by the Supreme Court: how does one meet a case that one does not know? ROOT CAUSES: PROFILING, ALLEGED PRE-CRIME THOUGHTS In addition, even if one WERE able to adequately challenge facts in a closed case, what difference could it ultimately make, since the new certificates, like the old, rely on a strange kind of alleged pre-crime thought formula that argues an individual is possibly a threat because of what they might possibly do or who they may possibly be associated with in the future. The calculation basically reads Arab + Muslim = Possibly Bad at Some Future Date (But We Can’t Tell You Why). Indeed, one of the individuals subject to security certificate for almost seven years has been told he poses a threat for allegedly holding certain beliefs. Problem is, he has NEVER held those beliefs. When he has asked why the government thinks he holds those beliefs, he is told that is secret evidence and cannot be revealed for reasons of national security. On top of this, upholding a certificate can be based on the receipt into “evidence” of anything not normally admissible in a court of law (hence we are no longer in a court of law) and on the lowest standard of proof in any court of Canada. If you are thinking two-tier justice, you’re on the right page. But such negative thoughts fail to affect the sunny disposition of the can-do Court whose head man has yet to notice that sinking quicksand feeling. SPECIAL ADVOCATES WILL NEED SPECIAL ADVOCATES The day begins with a government lawyer announcing that a new group of special advocates has been accepted and passed a “top secret security check,” and that three of the detainees have selected their current lawyers to act for them as special advocates. Those lawyers – John Norris and Paul Copeland – must have had a strong inkling of what a security certificate personally means, though, because although they had received security clearance, the government argued they could not be special advocates in these cases because of an alleged “conflict of interest.” Like the individuals subject to the secret allegations of a security certificate, the lawyers they had asked to be their special advocates were informed today that revealing anything about the nature of the supposed conflict might be “injurious to national security.” Like their clients, these lawyers are also left in the dark. Hence, before the secret hearings for the detainees get under way, the government is proposing a secret hearing, in the absence of Mssrs. Norris and Copeland, to discuss its concerns with the judge. The suddenly not-so-special advocates, will, however, be given the opportunity of appointing their own special advocate to act on their behalf in the secret hearing. So now we have the truly bizarre scene: individuals subject to certificates who are not allowed to see the case against them for unspecified reasons of “national security” have chosen, as the legislation allows, a special advocate to represent their interests in the secret hearing, but now those lawyers will be subject to a secret hearing in which they will not know what is being alleged against them with respect to allegations of conflict. SECRECY A PANDORA’S BOX It’s part of the Pandora’s box that critics of the process have long predicted would start to mushroom upon the use of special advocates: the development of a parallel secret judicial system, completely absent the public and any form of outside accountability, that will not only be used in these proceedings, but in a range of other areas, from immigration hearings to issues around the delisting of charities, determining why someone is on a no-fly list, and on and on. It may also be used in criminal law proceedings based on “terror” allegations where, as in security certificate cases, the case may be just as flimsy and therefore requires secrecy to protect the reputation (and sloppy profiling habits) of CSIS. What happens if the special advocates chosen by the special advocates are suddenly seen to have a conflict of interest? Where does this end, and why is all of this even necessary when there is a functional criminal justice system whereby if the government has a case against someone who happens to be a citizen, charges should be laid and an open and transparent case brought forward in a fair trial where the case needs to be proven beyond a reasonable doubt? (Security certificates apply to refugees and permanent residents, thereby creating a system of two-tier injustice) The fact that Copeland and Norris are not accepted as special advocates on these cases, we are assured ,is no reflection on their integrity or standing in the legal community, but the matters are “discreet,” and “in fairness to persons subject to security certificates,” their chosen special advocates should be assigned special advocates of their own. Even the Chief Justice seems a bit taken aback, asking the government lawyer, “You are saying for the court to adjudicate whether a proposed special advocate has a conflict of interest would require private evidence?” “Yes,” comes the reply, as there will be a witness giving secret testimony. The news comes as a complete surprise to Norris and Copeland, who wonder why the government could not have informed them of this issue before today’s hearing. Indeed, Copeland produces correspondence written over two weeks ago seeking clarification about whether the government sees any conflicts in his being a special advocate for two of the detainees, as well as follow-up letters reminding the government that if these cases are to move ahead, it must be coherent in its position. Those questions are not answered, and Copeland declares, “This is not efficient case management.” ALL DONE IN THE NAME OF “FAIRNESS” As we sink deeper into the quicksand, almost every hour on the hour, like a cuckoo coming out of a clock, the government lawyers keep reminding us that “we are trying to determine the best way to do this in a manner consistent with the principles of fairness and natural justice.” Lutfy fires off questions to the lawyers affected by this new conundrum, reminding them that “none of this is directed to your integrity and ethical standards” (and while one can certainly appreciate the comment, one wonders why similar assumptions of good faith and integrity go out the door with respect to the detainees themselves). It is unclear how a government that has cleared these lawyers suddenly has a problem with them. Perhaps the conflict might be that individuals who have vigorously litigated in favour of Charter Rights are suddenly not seen as a good complement to a process where none exist, but to reveal that in public would be injurious to national security and our faith in the upright claims of the legal system!. Throughout the session, Lutfy reassures counsel that “we’re talking, we’re communicating,” “I always want to be transparent,” and “We’re moving forward, we’re making progress.” Again, it feels like we are in the presence of a personal self-help trainer that corporations and divorced couples rely on to get them through the rough patches. “We must move forward and we will,” he says repeatedly, a yearning for “efficiency” that informs his next series of questions aimed at Norris and those who have chosen him as special advocate. Because a hearing into whether the special advocates can remain special advocates on these cases may take some time, Lutfy asks the parties to reconsider this choice so that the security certificates themselves can continue rolling down the assembly line. COURT ASKS DETAINEES TO “RECONSIDER” THEIR CHOICE “To ask us to reconsider on the government’s assertion when no one has even seen the evidence is a little premature,” objects defence lawyer Barb Jackman. “Why should the onus be shifted to Mr. Mahjoub and Mr. Jaballah [who chose Norris as a special advocate] when no one has seen the evidence?” And indeed, why is it up to them to make a further compromise when a government that holds all the cards cannot get its act together? Lutfy nonetheless carries on, musing, “How can the interests of justice be served if a judge has to decide lawyers are in a position of conflict and cannot be a special advocate? What does it do for the administration of justice when some of the reasons are private and some of the reasons are public? Is all of this worth the price?” (A question which again comes out of a bizarre parallel universe: his sudden quandary over a secret hearing for Canadian lawyers papers over the much larger issue: the exact same secret process, with far worse consequences, is what lies at the heart of the security certificate!) Lutfy then consoles himself by commenting that the government must have SOMETHING in its “arsenal of weapons,” otherwise it would not be bringing forward such concerns about the special advocates. It reminds one of the rationale for jailing thousands of Japanese Canadians during WWII: surely the government must have had SOMETHING in its arsenal or weapons, else it would not have set up all those internment camps. (Interestingly, just as declassified government documents showed Ottawa knew during WWII that there was never any threat from the thousands they interned, partially declassified government documents of today reveal, as we saw at the Arar Inquiry, that they do not have enough evidence to lay any charges against the secret trial detainees.) Even though detainees are now guaranteed a special advocate, another judge taking part in today’s proceeding chimes in with the efficiency concerns as well. He says going into a hearing on this conflict issue will delay the expeditious reviews of detention and house arrest conditions for the Secret Trial Five, and he wonders whether those hearings should just go ahead and be run by the court without any advocates seeing the secret case (and in contravention of the new law, flawed as it is). This, of course, would also be done in “fairness” to the individuals subject to the certificates. As the hearing winds down, the broken record keeps emanating from the bench: “The court is being just and fair to the five in moving the cases forward together….This is all new terrain for all of us, we’re all learning, I want too encourage the dialogue.” ENTRENCHING INEQUALITY Yet it needn’t have to be “new terrain”. The unspeakable elephant in the room that no one wants to address is that of discrimination. Were these men Canadian citizens, there is an established criminal law process to provide for charges, disclosure of the case to be met, a trial, and the need for proof beyond a reasonable doubt. But rather than acknowledge this inequality, the system is now bending itself into impossible shapes to accommodate the wishes of the spy agency at the centre of these cases, CSIS, whose desire to keep every little thing secret (especially evidence that would exonerate the detainees) is treated in a fashion that can only be described as beyond questioning. And yet as we saw in the Arar Inquiry, most of what CSIS keeps secret is only embarrassing to CSIS, and in no way a threat to anyone’s security. Secrecy also serves as a cover for abhorrent practices that most people would find unconscionable (such as CSIS complicity in torture). “I think we’re moving the yardsticks forward,” Lutfy concludes to close out the day. Like the sales manager assessing whether the company will meet the Christmas deadline, he seems to feel assured that this year’s product – removal-ready flesh bound for torture – may indeed be finished for December shipment. -- For more information, contact the Campaign to Stop Secret Trials in Canada, PO Box 73620, 509 St. Clair Ave. West,, Toronto, ON M6C 1C0, [email], (416) 651-5800 Also, be sure to join The Caravan Against Canadian Complicity in Torture, running May 2-9, Toronto, Richmond Hill, Aurora, Newmarket, Bradford, Barrie, Orillia, Peterborough, Port Hope, Cobourg, Colborne, Brighton, Trenton, Belleville, Napanee, Gitmo North, Kingston, Gananoque, Brockville, Cornwall, Alexandria, Ottawa