December 24, 2010 - No. 222
Security Certificates and Indefinite
An Unjust Law Can Only Give Rise to
Injustice and Breach of Rights
- Christian Legeais -
Security Certificates and Indefinite
• 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
• Statement Against Hassan Diab's Forced
Removal from Canada
• Canadian Courts Embrace the 'War on Terror'
- Richard Fidler
• U.S. President to Sign Order for Indefinite
Security Certificates and Indefinite
An Unjust Law Can Only Give Rise to
Injustice and Breach of Rights
- Christian Legeais -
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
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.
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
Unjust laws can only give rise to injustice and breach
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!
Mohamed Harkat Condemned by a
Secret System of 'Justice'
- Matthew Behrens, December 13, 2010 -
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
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
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
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
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.
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
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 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
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
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.
Statement Against Security Certificates
- www.harkatstatement.com -
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
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
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
is not disclosed to the detainee or their lawyer;
- Denied the full right to appeal when the certificate
upheld in a process that uses the lowest standard of proof of any court
- 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
That they not be deported.
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
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,
On November 8, 2010, Dr. Diab issued the following
"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
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
Statement Against Hassan Diab's
Forced Removal from
- Hassan Diab Support Committee -
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
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
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
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 firstname.lastname@example.org. To view the current list
of signatories, visit the blog Friends of Hassan Diab: http://www.justiceforhassandiab.org/signatories.
Canadian Courts Embrace the 'War on Terror'
- Richard Fidler, Life on the Left,
December 20, 2010 -
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,
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
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
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
"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
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
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
"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
The trial judge's sentence, therefore, was "manifestly
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
"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
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
who had infiltrated the group and were instrumental in assisting its
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,
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
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
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."
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
Marjorie Cohn, a professor at Thomas Jefferson School of
"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."
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