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December 24, 2010 - No. 222

Security Certificates and Indefinite Detentions

An Unjust Law Can Only Give Rise to
Injustice and Breach of Rights

Security Certificates and Indefinite Detentions
An Unjust Law Can Only Give Rise to Injustice and Breach of Rights - Christian Legeais
Mohamed Harkat Condemned by a Secret System of 'Justice' - Matthew Behrens
Statement Against Security Certificates
Hassan Diab's Fight Against Unjust Extradition Law
Statement Against Hassan Diab's Forced Removal from Canada
Canadian Courts Embrace the 'War on Terror' - Richard Fidler

United States
U.S. President to Sign Order for Indefinite Detention

Security Certificates and Indefinite Detentions

An Unjust Law Can Only Give Rise to
Injustice and Breach of Rights

The three Federal Court rulings of December 9, 2010, concerning the reasonability of the Security Certificate against Mohamed Harkat exposes the injustice and horror of the Immigration and Refugee Protection Act, of the Security Certificate and, above all, the hyprocrisy of "Canadian democracy" according to which any breach of human rights is possible.

With these rulings, the Federal Court aims at enshrining in law the arbitrariness and impunity of State organs of repression and of the political police, in particular the Canadian Intelligence and Security Service; the abuse of power and of procedure against entire collectives; the constitutionality of unjust laws, i.e. its conformity to the Charter of Rights and Freedoms, itself an archaic document which neither stipulates nor defends any rights whatsoever; as well as deportation to torture, to disappearance or to death.

Since its creation, the Security Certificate is and remains an instrument of medievalism which violates human rights, which has no place in a modern society, which does nothing to protect the security of Canadians and which, on the contrary, threatens this very security. This violation of rights is unanimously condemned by the Canadian people who denounce it and demand that it be abolished. In February 2008, the Canadian government was forced to amend the Immigration and Refugee Protection Act as well as the Security Certificate, replacing one unjust and unconstitutional law by another.

Unjust laws can only give rise to injustice and breach of rights.

This ruling by the Federal Court is entirely based on "probability of belief" and on secret information and intelligence "inadmissible to justice" put forward within the context of secret hearings and which no one can see or can ever see, especially not Mohamed Harkat and his lawyers.

The Security Certificate and its so-called reasonableness in the case of Mohamed Harkat, and which leads to torture, to disappearance or to death, are declared to be in conformity with "fundamental justice." To come to this conclusion, the Federal Court simply replaced the words "fundamental justice" in the Charter with "national security," without further explanation.

What this ruling cannot hide is the fact that an unjust law can only give rise to injustice and that a breach of rights is simply that: a breach of rights.

Abolish Security Certificates!
Justice for Mohamed Harkat!

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Mohamed Harkat Condemned by a
Secret System of 'Justice'

It was ironic that on International Human Rights Day, Dec. 10, family, friends, and supporters of secret trial detainee Mohamed Harkat gathered with him and his wife, Sophie, to weep and reflect on three federal court decisions against him. The latest decision upheld the regime of secret hearings and judicially sanctioned rendition to torture; and Harkat's supporters recommitted to ending what domestic and international critics have labelled a star chamber process.

Due to a system based on secret allegations that neither accused nor lawyers can contest, Harkat has, for eight years, been subject to a "security certificate," a measure by which individuals can be detained, held indefinitely without charge, and ultimately be deported, despite the risk of torture.

The standard of proof in such hearings (which only apply to refugees and immigrants) is the lowest of any court in Canada, and a judge may accept as evidence anything not normally admissible in a court of law.

Despite a unanimous 2007 supreme court ruling that found the secret-trials process to be unconstitutional, parliament simply reintroduced new legislation that mirrored the old. Despite a limited (and many claimed a sham) process of consultation with parliamentarians, during which leading legal experts, academics, and human rights organizations showed in stark terms how the new law would not withstand a Charter of Rights and Freedoms challenge, the bill sailed through parliament and, in 2008, resulted in new certificates being issued against Harkat and four other Muslim men. Two of these certificates have since been quashed.

Last Friday, a day after the new security certificate against Harkat was found to be "reasonable," the Algerian-born refugee and his wife spoke of their devastation. Harkat stated he felt as if he were "dying inside," and Sophie declared "this is a punch in the guts that will leave marks for a very long time." Holding aloft the thick judicial rulings, Sophie said "this document is a load of bull."

At a packed press conference, Harkat's lawyer Norm Boxall took reporters through a dozen of federal court judge Simon Noel's inflammatory findings and noted that in each and every case, there was "absolutely no evidence" presented in public to support them, despite the legal team's persistent requests for disclosure.

Summing up the frustration that lies at the heart of the secret trial detainees' struggle, Boxall asked, "What can an innocent person do other than to say 'I didn't do it,' and then to be told that they're a liar based on material they can't face?"

While his lawyers have promised to pursue every legal angle they can (limited as they are under the legislation), Harkat now faces the threat of deportation to possible torture in Algeria. He is currently under bail conditions that require him to wear a GPS tracking bracelet, to report once a week to an immigration office, and to seek permission should he wish to travel outside Ottawa. Compared to the brutal house arrest conditions that he faced when first transferred out of prison in 2006, his current relatively easier conditions, though certainly frustrating, serve as an ironic counterpoint to Judge Noel's finding that Harkat suddenly poses a "danger" to Canadian security.

That finding is based on allegations that, among other things, Harkat allegedly operated a Peshawar guesthouse that "may be linked to Ibn Khattab" (a leader in the fight against Soviet occupation in Afghanistan who was later killed in Chechnya). Harkat denies this. Yet even if it were true, in a 2009 decision quashing the security certificate against Hassan Almrei, Federal Court Judge Richard Mosley found that Almrei's admitted "association with Khattab does not, in my opinion, support a finding that he is a danger to the security of Canada." The fact that Noel would contradict his fellow judge in such a manner is, according to lawyer Norm Boxall, "at the very least embarrassing."

In addition, Judge Noel curiously takes on geography "Sarah Palin style," arguing that Harkat's statement that he did not visit Afghanistan because it was a long 4.5-hour trip was "exaggerated" because when the judge looked at a map, it did not seem that far.

Noel also believes Harkat facilitated the entry to Canada of an individual who arrived with a "shopping list of munitions and weapons... and instructional documents on how to kill." This does not sound like anything out of the ordinary for Ottawa, where weapons buyers from the likes of Lockheed Martin, L-3 Communications and other manufacturers of weapons of mass destruction regularly gather for trade shows that feature lowest-cost-per-kill machinery. However, Noel says the fact that this individual also had in his possession what appears to have been excerpts from an al-Qaeda instruction manual makes this all the more sinister. Harkat denied knowing and assisting this individual, yet Noel nevertheless goes on at length over several pages, reproducing the contents of the shopping list and manual. It's a fairly blunt guilt-by-association maneuver that is all the more damaging to Harkat because he has no way of responding: the only information that allegedly links the two men was heard in secret. Where did this come from? Who was the informant and how well-paid? Was the informant truthful or viable?

It is a matter of public record that Harkat's case has been burdened by numerous instances of CSIS malfeasance. One of the potential informers, it was learned last year, was carrying on an affair with a CSIS officer investigating the case. CSIS also withheld information indicating an informer had failed a polygraph test. Under such instances, Noel, in a previous decision, wrote "it was found to be necessary to repair the damage done to the administration of justice and to re-establish a climate of trust and confidence in this proceeding."

Despite such clear efforts by CSIS to manipulate the court process, Noel saves all his rancour for Harkat and not the scandal plagued spy agency, which was also found last month to have brazenly defied for two years a court order to stop listening in on solicitor-client calls in a separate security certificate case.

Many of the allegations against Harkat appear to arise from summaries of alleged phone calls that took place a dozen years ago. Noel says that the public summaries "do not specifically mention where they originate from. This was deliberate." Harkat argued they should not be admitted as evidence, since the original recordings have been destroyed, and all that remain are skeletal summaries of notes. Harkat is unable to determine which voices were on the phone (if in fact those calls did exist); who did the translation, and whether that translation was accurate; why his phone was apparently being intercepted; who actually wrote the summaries.

The summaries themselves are boilerplate CSIS, and read very much like those in related cases in which certain keywords are inserted and repeated to make it sound like Harkat is being deceptive or hiding something. Hence, we learn that Harkat "revealed" he would register for an ESL course, as if this were a decision bathed in mystery.

Noel comes to the startling conclusion that although Harkat disagrees with the existence and summarized content of specific calls, the fact that Harkat does allow that a couple of summaries of conversations with family members appear to ring true "can only demonstrate that the summaries of the conversations produced by CSIS are more reliable than not." Noel then goes on to quote "John," a CSIS witness who did concede "that errors can occur, but CSIS followed various methods to minimize them."

Much of Noel's rulings carry on in such a manner, at times reading in a contradictory, sloppy, and incredulous fashion that borders on a personal attack against Harkat. On the one hand, Noel slams Harkat for sounding as if he had "memorized a story," a fabrication he allegedly took great pains to prepare, yet on the other, he criticizes him for making mistakes in recalling certain dates (condemning him for the fact that as a non-English speaker, Harkat wrote something in his 1995 refugee application that did not exactly match his 2010 testimony, being off by a couple of months in relation to something that happened in 1989). To Noel, if Harkat is consistent, it is a story; if he is inconsistent, he is a liar. In such a manner Harkat was deemed to be untruthful as opposed to merely human.

Ironically, the rulings take on an almost desperate tone to justify and salvage the secret trial system. The reasons also appear to reflect Noel's own feelings about Harkat, whom he alleges is not credible and who has, in the judge's words, "surrounded himself in layers of clouds in which he does not let any light come through."

In his ruling on constitutional issues, Noel does acknowledge that Harkat's Charter rights have been violated by the current process, stating that Harkat "is deprived of his liberty and eventually, depending on future decisions, of his right to the security of the person as well."

That being said, Noel reassures us that all is well and, in comments that echo his earlier 2005 finding that secret hearings were constitutional -- a decision overturned by the supreme court -- he sets out again to show that the procedure designed to ensure disclosure "has worked well," and that the limits imposed on Harkat's Charter rights are "demonstrably justifiable."

In a separate ruling dismissing an abuse of process motion, Noel rejects the idea that an accumulation of abuses of process should amount to the conclusion that a stay of proceedings would have been warranted.

At the end of International Human Rights Day, the Harkat family were joined by some 75 supporters in a bone-chilling snowfall at the Human Rights Monument in Ottawa, where they held candles and spoke of their hopes for justice one day prevailing in their case, as well as for the two remaining detainees, Mahmoud Jaballah and Mohammad Mahjoub.

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Statement Against Security Certificates

We, the undersigned, have grave concerns regarding the continued use of sections 9, 76-87 of the Immigration and Refugee Protection Act, which allow for the imprisonment in Canada of refugees and permanent residents under the authority of a "Security Certificate."

The new version of this measure -- which included only cosmetic changes in the form of a very limited appeal provision and of the introduction of "special advocates," whose ability to act on behalf of the detained is extremely limited -- still maintains a veil of secrecy over any information that may be used against the detained.

Therefore, we are concerned that those detained under security certificates are:

- Imprisoned indefinitely on secret evidence, though no charges have been laid against them;

- Tried in unfair judicial proceedings where information is not disclosed to the detainee or their lawyer;

- Denied the full right to appeal when the certificate is upheld in a process that uses the lowest standard of proof of any court in Canada;

- Under threat of deportation even when they face unfair imprisonment, torture or death.

We believe that the existing security certificate process is undemocratic; violates the Canadian Charter of Rights and Freedoms; and violates fundamental human rights, to which the government of Canada has committed itself through the UN Universal Declaration of Human Rights, the UN Convention on Refugees, the International Covenant on Civil and Political Rights (ICCPR) and the UN Convention on Torture.

- Accordingly, we demand that the Security Certificate process be abolished.

- For those currently detained under security certificates, we demand:

That their certificates be removed, and, if any case against them actually exists, that they be allowed to defend themselves in open, fair and independent trials with full disclosure of the case against them.

That they not be deported.

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Hassan Diab's Fight Against Unjust Extradition Law

Dr. Hassan Diab is a sociology professor and Canadian citizen of Lebanese origin who lives in Ottawa. He was arrested on November 13, 2008 by the RCMP at the request of French authorities for allegedly participating in a bombing outside a synagogue in Paris in 1980. He is currently facing extradition to France on charges of murder and attempted murder resulting from the bombing. Dr. Diab has always maintained his innocence and the charges against him are based on secret intelligence, the source of which even the French authorities do not know. Key evidence had to be withdrawn by the Crown due to its unreliability and when reintroduced in the current extradition hearing which started on December 13, a forensic expert has once again testified about the unreliability of the evidence. Canada's extradition laws allow the use of intelligence and evidence inadmissible in criminal cases, thus stacking the deck against Dr. Diab's defence. The extradition hearing continued to December 22 and will resume on January 4, 2011.

On November 8, 2010, Dr. Diab issued the following statement:

"I am innocent of the charges against me. I condemn all ethnically, racially, and religiously motivated violence. Since Sept. 11, 2001, the presumption of innocence and other core values of our legal system have eroded, especially for people from particular minority backgrounds. I hope this extradition hearing will end the witch-hunt atmosphere I have been living under for the past three years, and that no one else will have to endure the burden of false, unfounded accusations. I also wish to thank the many people and groups across Canada who have signed a statement in my support."

Dr. Diab has received support from his professional colleagues and from many organizations and people across Canada.

Justice for Hassan Diab is calling for rallies outside the Ontario Superior Court in Ottawa every Monday during Dr. Diab's extradition hearings and for people to sign the statement of support.

Demonstrate Your Support Every Monday
that Hassan Diab Is in Court

Ontario Superior Court, Ottawa
161 Elgin St.
Come out to observe hearings: 10:00 am to 4:00 pm
Hearings resume January 4, 2011
For information: diabsupport@gmail.com

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Statement Against Hassan Diab's
Forced Removal from Canada

Hassan Diab is a much loved and respected sociology professor who is wrongly accused by French authorities of involvement in an attack near a Paris synagogue in 1980. Hassan Diab condemns that attack and is strongly opposed to ethnically and religiously motivated discrimination and violence.

Hassan Diab is fighting his forced removal from Canada (via "extradition") to face fabricated charges based on secret intelligence, the sources of which are admittedly unknown even to French authorities. There is serious concern that this intelligence may be the product of torture. Dr. Diab's case represents the first time that a foreign government has sought the extradition of a Canadian citizen based on secret intelligence that cannot be challenged in a court of law.

The contemporary climate of ethnic, racial, and religious profiling means that Dr. Diab, like many other Muslim and Middle-Eastern Canadians, is becoming yet one more victim in the global "War on Terror."

Since November 2008, Dr. Diab has suffered through over four and a half months of detention, followed by the loss of his university employment and humiliating and oppressive bail conditions that include an exorbitantly expensive GPS monitoring device.

Canada's extradition law has long been criticized for failing to honor Canada's international human rights obligations and to prevent foreign governments from exercising persecution by proxy.

The "evidence" presented by France in an effort to tear Dr. Diab from his friends and family is based on an alarming pattern of serious contradictions, prejudicial opinions, significant misrepresentations and omissions, and withholding or burying of exonerating evidence. Key pieces of evidence appear to have been tampered with, to the point of fraud. To cite but a small handful of many examples:

Evidence proving Dr. Diab's innocence has either been buried or perversely transformed into incriminating conclusions.

French investigators hid from the court in Canada the fact that Dr. Diab's finger and palm prints do not match those of the alleged suspect.

Handwriting analysis described by the Canadian Crown prosecutor as akin to a "smoking gun" was withdrawn after internationally renowned experts pronounced it to be biased and of "appalling" reliability. It was replaced by a "new" handwriting analysis which these same experts found to be at least as appalling and biased as the previously withdrawn one.

French investigators have not corrected any misrepresentations, contradictions, and inaccuracies in their case despite having had ample time to do so.

Government of Canada attorneys have argued that French investigators are under no obligation to present information in their possession that would cast a positive light on Dr. Diab.

It shocks our conscience to see deprivation of liberty based on such scurrilous accusations. We are horrified that the standards of Canada's Extradition Act are so low that this pretence of a case against Dr. Diab has been allowed to drag on for so long.

Given that such an unjust process has been made to appear "acceptable" -- in part because of Dr. Diab's ethnic and religious background -- we, the undersigned, are compelled to speak up and publicly call for an end to this clear affront to liberty.

We are opposed to the unjust and oppressive extradition proceedings against Dr. Diab.

We thus call upon the Canadian Minister of Justice to:

Exercise the power he has, under extradition law, to immediately halt extradition proceedings against Dr. Diab; and to act on his legal obligation to refuse to make unjust and oppressive extradition orders;

Protect individuals in Canada from unjust and abusive extradition practices; stop the use of secret intelligence of unknown, untestable reliability in extradition hearings; and refuse extraditions to requesting states that use secret, unsourced intelligence or intelligence that may have been derived from torture as trial evidence;

Reform extradition law to take into account Canada's human rights obligations, including the presumption of innocence, the right to a fair trial, the right to disclosure of evidence, and all other due process rights.

To sign the statement, inquire about other ways to support Dr. Diab, or obtain more information about the legal factum detailing the manipulation of intelligence and twisting of evidence, please send an email to diabsupport@gmail.com. To view the current list of signatories, visit the blog Friends of Hassan Diab: http://www.justiceforhassandiab.org/signatories.

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Canadian Courts Embrace the 'War on Terror'

In a harshly worded decision released December 17, the Ontario Court of Appeal rejected the appeal of Mohammad Momin Khawaja, an Ottawa resident, against his conviction on terrorism charges and increased his sentence to life imprisonment.

The decision by a three-judge panel restored a controversial provision in the Anti-Terrorism Act that the trial judge had ruled unconstitutional, endorsed the trial judge's view that aiding the Afghan insurgency amounts to terrorism, and proclaimed that terrorism offences must be subject to exceptionally harsh punishment as attacks on "Western culture and civilization."

Momin Khawaja, the first person sentenced under Canada's post-9/11 terrorism laws, was convicted in October 2008 on five charges of participating in a terrorist group and helping to build an explosive device which, he argued, was intended for use in fighting foreign troops occupying Afghanistan. For background, see Afghan resistance is 'terrorist' under Canadian law, Khawaja trial judge rules and Tory government introduces new 'anti-terror' law as Khawaja sentenced to 10½ more years in jail.

Material Support of Afghan Resistance is 'Terrorist Activity'

The appeal court endorsed the trial judge's conclusion that Khawaja's actions, intended to provide material support to the armed resistance in Afghanistan, constituted "terrorist activity." The judge had said, in part: "... it seems to me beyond debate that... those who support and participate in the insurgent armed hostilities against the civilian population, the government, and government and coalition forces attempting to reconstruct and maintain peace, order and security in Afghanistan, are, by definition, engaging in terrorist activity."

The appeal judges summarized as follows the trial judge's findings in this regard, which he had made without hearing evidence on the matter:

- the internationally recognized government of Afghanistan is backed by a coalition of western nations, including Canada, pursuant to various United Nations Security Council Resolutions;

- insurgents in Afghanistan are conducting armed warfare against the coalition forces, the local government and that part of the local population that supports them;

- Canadian forces have sustained fatal casualties as a result of insurgent fighting in Afghanistan; and

- the purpose of the armed insurgent attacks is to intimidate those assisting in or supporting the peaceful reconstruction of Afghanistan and to compel those persons to desist from those efforts.

And the court concluded (at para. 173):

"The trial judge did not err in concluding that these skeletal and obvious facts about the basic nature of the conflict in Afghanistan... are notorious and beyond dispute among reasonable persons."

The Anti-Terrorism Act specifically states that its definition of "terrorist activity" does not include "an act or omission that is committed during an armed conflict... in accordance with customary international law or conventional international law applicable to the conflict." Having found that it was "notorious and beyond dispute" that the NATO-led war in Afghanistan was consistent with international law, the appeal court had no trouble rejecting the defense argument that Khawaja's actions fell within that "armed conflict" exception. Canadian and other occupying troops might kill innocent Afghan civilians with impunity under the Act. But no such impunity applied to the resistance to those troops.

The court cited Khawaja's statements in his "jihad" emails, entered as evidence at the trial, that it was "his intention to '[bring] down the Kuffar enemy dealing blow after blow, by whatever means available or necessary' in order to '[force the Kuffar] to withdraw their troops, so they cannot afford to wage war.... that they dare not worry about attacking us or supporting others in attacking us."

"These goals," said the appeal judges (at para. 175), "fit squarely within the ulterior intention requirement of the statutory definition of terrorist activity."

Guilt by Association

The main charge against Khawaja was that he had participated in a plot to commit deadly bombings in London for which an English court had sentenced five fellow Muslims to life imprisonment in April 2007. Although it was proved at trial that Khawaja knew some members of that group, there was no evidence directly linking him to the London plot. However, there was evidence that Khawaja had collaborated in various ways with the group -- by taking weapons training in northern Pakistan; by making funds and equipment available to the group, by letting them use his parents' residence in Pakistan, and by working with them to develop his remote detonator device. The trial judge therefore held that Khawaja had knowingly acted to support a broader terrorist agenda beyond front-line combat in Afghanistan, and was guilty on a series of lesser, included offences of enhancing or facilitating that group's ability to carry out terrorist activity.

The appeal court rejected the defense argument that the Crown's theory of liability had been centred exclusively on a fertilizer bomb plot, and should therefore fail. The evidence, said the court, showed that both the U.K. group and Khawaja sought "to advance Jihad on all fronts," and that was sufficient to support those convictions.

The appeal court concluded that Khawaja's collaboration with the U.K. group justified a conviction on the main charge, increasing his sentence to life imprisonment with no eligibility for full parole for 10 years. And it increased the combined sentences on the included offences to a total of 24 years, to be served concurrently with the life sentence.

'Sending a Clear Message'

The appeal court laid great stress on what it termed "the unique nature of terrorism-related offences":

"The appellant was an active member of a terrorist group whose singular goal was to eradicate western culture and civilization and establish Islamic dominance wherever possible. He was prepared to go anywhere and do anything for the violent Jihadist cause. At the time of his arrest, he was in possession of a prototype remote detonator device and had promised to build 30 more such devices for the Khyam group.... The appellant was a willing participant in activity that he knew was likely to result in the indiscriminate killing of innocent human beings on a potentially massive scale. It is hard to imagine a more odious inchoate crime."

"Hard to imagine"? What about the Holocaust, or the nuclear bombing of Hiroshima and Nagasaki -- to name only those atrocities, which are certainly "notorious and beyond dispute." One may quibble about the honourable judges' lack of imagination. But there is no mistaking their determination.

Parliament, they say, "intended to send a message that terrorism is a crime that warrants special consideration and it is to be treated differently for sentencing purposes....

"Specifically, where the terrorist activity, to the knowledge of the offender, is designed to or is likely to result in the indiscriminate killing of innocent human beings, trial judges should consider very stiff sentences, including life imprisonment. And in those cases where a life sentence is found to be inappropriate, trial judges should determine the appropriate length of sentence having regard to the special sentencing provisions in the Criminal Code applicable to terrorism offences, the unique nature of terrorism-related crimes, and the enormity of the offence or offences at hand. This process will often result in sentences that are beyond the 15 to 20-year range that the courts have traditionally imposed in respect of serious crimes where a life sentence is not warranted."

The trial judge's sentence, therefore, was "manifestly unfit."

Momin Khawaja had submitted that "his goal was to kill western soldiers in Afghanistan and local troops that support them, not innocent civilians, and that his punishment should be mitigated accordingly.

"We see no merit in that submission. His own writings belie it and the trial judge concluded that he cared not who his victims might be.... Beyond that, we reject outright the notion that the lives of soldiers serving in Afghanistan should be somehow treated as 'less worthy' of protection."

No 'Chilling Effect'

The appeal court upheld the constitutionality of the Act's proviso that in order to constitute "terrorist activity" the act or omission must be "committed in whole or in part for a political, religious or ideological purpose, objective or cause." At trial, the judge had agreed with the defence that this "motives" clause violated the Canadian Charter of Rights and Freedoms because it could have a "chilling effect" on freedom of religion and conscience and freedom of thought, belief, opinion and expression. As Khawaja's lawyer Lawrence Greenspon argued, the clause gives police the right "to investigate people on the basis of their religious, ideological or political beliefs" and that this can lead to targeting minorities -- for example, "Muslim males aged 22 to 45" -- on the basis of their ethnic or political profile.

The appeal court dismissed this objection. There was no evidence of this effect, it said, and in any case the trial judge had found ample evidence that Khawaja was clearly motivated by political, religious or ideological motives. In any event, the court said:

"Many, but by no means all, of the major terrorist attacks in the last 10 years have been perpetrated by radical Islamic groups.... It is hardly surprising that, in the public mind, terrorism is associated with the religious and political views of radical Islamists. Nor is it surprising that some members of the public extend that association to all who fit within a very broad racial and cultural stereotype of a radical Islamist."

In decisions released simultaneously on other "terror" cases, the same Court added six and seven years respectively to the sentences of two young men and upheld the life sentence of another in relation to an alleged fertilizer bomb plot in Toronto. And it ordered the extradition to the United States of two men charged in that country with aiding the Liberation Tigers of Tamil Eelam, a Tamil nationalist organization in Sri Lanka deemed "terrorist" by both the U.S. and Canadian governments.

No Exceptions for Youth

In the first group, all three individual defendants had pleaded guilty. All were young, aged 18 to 20 at time of arrest. All were considered remorseful by the trial judge. They were arrested in a police "sting" operation. Crucial to the case was the evidence of two police agents who had infiltrated the group and were instrumental in assisting its plans.

The three were among the "Toronto 18" arrested amidst great media fanfare in 2006 in connection with the alleged terrorist bomb plot. Of the original 18, six have been convicted and seven had their charges stayed. The five others were not charged with being part of the bomb plot.

The appeal court objected strongly to the sentences handed down at trial. Youthful first-offenders like these must be shown little leniency when it comes to terrorism, proclaimed the judges. "The sad truth is that young homegrown terrorists with no criminal antecedents have become a reality. And that is something the courts must recognize and take into account."

This "reality" is of course a byproduct of Canada's participation in the NATO-led invasion and occupation of countries like Afghanistan -- the legality of which has been underwritten by the courts in Khawaja's case. All of the accused told the trial court that they were seeking to compel the Canadian government to change its policy on Afghanistan. Laudable motives, indeed, but the strategy chosen -- explosions that might well result in extensive loss of life -- was grossly ill-conceived and ultimately futile, destined at the very least to isolate their protagonists, alienate public opinion, embolden the war-mongers in government and the media, and impede the growth and development of the mass movement needed to force Canadian withdrawal from these foreign wars.

To these angry young Moslems, caught in the deadly and self-defeating logic of individual terror tactics, the Canadian state can offer only the counter-terror of long years of imprisonment.

Security Certificate Upheld

The Anti-Terrorism Act, interpreted and enforced in these judgments, is not the only draconian legislation being wielded against those who are deemed security threats. Non-citizens resident in Canada can be subject to a repressive regime of potentially unlimited detention, secret hearings and possible deportation to torture under the security certificate provisions in the ironically titled Immigration and Refugee Protection Act. If a security certificate issued by two federal ministers is found to be reasonable by the designated judge, the government can attempt to return the person named in the certificate to that person's country of origin, where -- now stigmatized as a "terror" suspect -- he or she will face probable torture.

Adopted long before the 9/11 incidents, the security certificate procedures have been strongly criticized for their reliance on secret police testimony (quite possibly obtained by torture in foreign lands) and the denial of the rights of those detained to adequately defend themselves. When the Supreme Court of Canada overruled the original legislation, Parliament re-enacted it with provision for "special counsel" appointed by the court to hear some of the police evidence and make representations on behalf of those detained, but without their presence or disclosure of this evidence.

Almost a decade ago the government issued security certificates against five men, all Moslems, it claimed were terrorists. The certificates were re-issued under the new legislation. Two of these cases are ongoing. In the three others, one case was dismissed and one withdrawn by the government on the grounds that its continuance threatened public disclosure of sensitive "intelligence." On December 9, a Federal Court judge issued the first affirmative ruling under the revised law, declaring Algerian-born Mohamed Harkat, currently residing in Ottawa under virtual house arrest, to have been involved in terrorist activity and to present a threat to "national security."

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United States

U.S. President to Sign Order for Indefinite Detention

U.S. President Barack Obama will sign an executive order in the New Year, establishing the government's right to indefinitely detain prisoners without charge or trial.

According to a report by ProPublica, the Obama administration is expected to indefinitely hold at least 48 of the prisoners remaining at the U.S.-run prison at Guantánamo.

Under the executive order, prisoners would be allowed to challenge their incarceration periodically.

ProPublica reports that nearly two years after Obama's pledge to close the prison at Guantánamo, more prisoners there are formally facing the prospect of lifelong detention and fewer are facing charges than the day when Obama was elected.

Bruce Fein, Associate Deputy Attorney General and General Counsel to the Federal Communications Commission under President Reagan said:

"The American Empire has pushed the due process clock back to pre-Magna Carta times. The new national slogan is, 'Anything and everything for professed safety, but nothing for liberty or freedom.'"

Marjorie Cohn, a professor at Thomas Jefferson School of Law said:

"Indefinite detention violates the International Covenant on Civil and Political Rights, a treaty we have ratified which makes it part of U.S. law under the Supremacy Clause of the Constitution. If there is probable cause that Guantanamo detainees have committed a crime, they should be brought to trial; if not, they should be released. Targeted assassination, or willful killing, constitutes a grave breach of the Geneva Conventions, punishable as a war crime under the U.S. War Crimes Act."

(ProPublica, Institute for Public Accuracy)

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