Government seeks way to deport security certificate detainees

posted on February 09, 2005 | in Category Security Certificates | PermaLink

Original author: Andrew Duffy Source: The Ottawa Citizen Date: February 07, 2005 Government seeks way to deport terror suspects held on security certificates

A federal official has conceded that the government does not have the legal right to indefinitely detain foreign-born terrorist suspects who cannot be deported. But Alex Swann, a spokesman for Public Safety Minister Anne McLellan, said the government intends to aggressively pursue the deportation of terror suspects through the controversial security certificate process. And the question of when that pursuit formally ends is something that may have to be decided by the Supreme Court. "As long as we're working through the security certificate process with the aim of removal, that (detention) continues to be an option," Mr. Swann said. "When a deportation is unsuccessful, I don't know when that time comes," Mr. Swann said. Mr. Swann maintained the question of when the government must end its pursuit of a terrorist suspect's deportation remains hypothetical. The Immigration and Refugee Protection Act, which sets out the security certificate process, allows the government to detain foreign-born terror suspects on the strength of secret evidence until they can be deported.

The law does not speak directly to what happens after a court quashes a deportation order as unreasonable.

That question has become critical in the wake of a recent Federal Court ruling that promises to make it more difficult to deport those deemed national security threats.

In a ruling that struck down the deportation of Toronto's Mohamed Mahjoub, Judge Eleanor Dawson said government officials must consider whether he poses an ongoing threat to Canadian security.

In doing so, officials must examine the credibility of those who contend he is a threat and consider conflicting evidence, including the possibility that he is no longer capable of acting on terrorist designs because of his public exposure.

This week, Mr. Mahjoub will ask the court to release him while officials reconsider his deportation order in keeping with the judge's ruling.

Mr. Mahjoub, 44, has been held in a Toronto jail for the past 41/2 years.

The Canadian Security Intelligence Service (CSIS) alleges he is a high-ranking member of an Egyptian terrorist group, Vanguards of Conquest, affiliated with al-Qaeda.

Six foreign-born men, including Ottawa's Mohamed Harkat, are in custody on security certificates issued by federal cabinet ministers. Five of the men are Arab; all contend they will be tortured if returned to the countries from which they fled.

Mr. Mahjoub's lawyer, John Norris, says the law does not specifically address whether the government has the power to indefinitely detain foreign terror suspects. That power is spelled out in Britain's anti-terror legislation, he said, but not in the Canadian law.

"At least in Britain, they were honest about what they were doing. They said, 'We're holding them indefinitely.' Here, it is still an open question."

In Canada, he said, it's possible that a Federal Court judge could order a terror suspect detained indefinitely based on a concern about the individual's threat level. The law says a judge can release a terror suspect if his deportation does not take place within a reasonable time provided the individual does not pose a danger to national security.

"It's possible that a Federal Court judge would say that this person is still such a danger they will not release him. So it is possible to have indefinite detention under the Act," he said, adding: "But you can bet we would challenge that every way we possibly could."

The British law bars the government from deporting terrorist suspects to places where they could be tortured, but allows for their indefinite imprisonment. (Canadian law permits the government to deport terrorist suspects in exceptional circumstances to countries where they face a substantial risk of torture.)

Britain highest court, however, has ruled that the legislation violates international human rights laws and must be reworked.

Prime Minister Tony Blair's government has announced plans to release terror suspects from jail under strict conditions. The government's "control orders" would impose a variety of conditions, everything from house arrest to curfews to electronic monitoring.

Mr. Blair has rejected calls to bring the suspects to trial, saying the secretive work of Britain's security services cannot be compromised by public court hearings.

Mr. Norris said he hopes the Canadian government will engage in a similar debate.

"I wish that discussion would happen. We really hope that when the government reviews the anti-terrorism legislation, they will include a review of the security certificate procedures because our view is that it's wrong to use immigration procedures to protect national security. This is so wrong-headed in so many different ways.

"Other measures are going to be more effective and certainly more fair than these."

The Liberal government has indicated that it's unwilling to review the security certificate process as it examines other anti-terror legislation.

Mr. Swann said the government has been "generally successful" at removing terrorist suspects from Canada, and has no immediate plans to modify the system.

Only three security certificates have been quashed by the courts out the 27 issued since 1991.

Copyright © 2005 CanWest Interactive Inc. All rights reserved.