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Maher Arar	Maher Arar	al-Qaeda	Great White North				20030725
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Great White North

Appeals court: Detained Canadian cannot sue the US

2009-11-02

A Canadian engineer cannot sue the United States after being mistaken for a terrorist when he was changing planes in New York a year after the 2001 terrorist attacks, a federal appeals court ruled Monday. The judges of the 2nd U.S. Circuit Court of Appeals voted 7-4 to uphold a decision by a lower court judge dismissing a lawsuit brought by Maher Arar, a Syrian-born man who was detained as he tried to switch planes in 2002. Arar sued the U.S. government and top Justice Department officials, saying the United States purposely sent him to Syria to be tortured days after he was picked up at at John F. Kennedy International Airport based on a false tip from Canada that Arar had ties to Islamic extremists. It said he was only allowed to see a lawyer once despite his repeated efforts to receive representation. Syria has denied he was tortured. The Canadian government agreed to pay him almost $10 million after acknowledging it had passed bad information to U.S. authorities. The appeals court said in a majority opinion that it cannot let Arar use the courts to press his claims against the U.S. government without Congress enacting legislation that spells out exactly how a case as unusual as Arar's claims can be brought and what potential remedy exists. Otherwise, the court said, allowing the lawsuit to proceed would "offend the separation of powers and inhibit this country's foreign policy." At stake in the lawsuit was the court's role in reviewing the practice of "extraordinary rendition" in which someone suspected of supporting terrorism is transferred to a foreign nation for imprisonment and interrogation without formal charges, trial or court approval. The appeals court said it was hesistant to create "a new damages remedy that Congress has not seen fit to authorize." It added: "Even the probing of these matters entails the risk that other countries will become less willing to cooperate with the United States in sharing intelligence resources to counter terrorism." The Center for Constitutional Rights, which represented the Ottawa resident, said its lawyers had not seen the ruling and could not immediately comment. The appeals court ruling came almost a year after the full 2nd Circuit heard nearly three hours of arguments in front of several hundred spectators in the building's largest courtroom. A three-judge appeals panel earlier last year upheld a Brooklyn judge's finding in 2006 that the government did not violate the Torture Victim Protection Act. The law allows U.S. courts to assess damages against perpetrators of human rights abuses committed abroad.

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Great White North

Accused Paris bomber 'target of anti-Arabism'

2009-03-23

A Canadian-Lebanese national arrested for his alleged role in a 1980 Paris synagogue bombing is the victim of "anti-Arab" prejudices, a defense witness said Friday. Hassan Diab, 55, was arrested in November in an Ottawa suburb at the request of French authorities who want him extradited to stand trial for murder, attempted murder and the destruction of property for his alleged role in the bombing that killed four. On this third day of the bail hearing, Nour al-Kadri, an activist and instructor at the University of Ottawa where Diab also taught, said the suspect was "targeted" by prosecutors because of "anti-Arab sentiments." "Many people in the Arab community believe he's being targeted," said Kadri, a member of the Coalition of Arab Canadian Professionals and Community Associations. "We [all] feel we are being targeted and this is one example." Kadri drew parallels between Diab's case and Maher Arar, a Syrian-born Canadian wrongly detained in 2002 during a stopover in New York and sent to Syria where he was jailed and tortured for over a year. A Canadian judicial report in September 2006 cleared Arar of terror ties and blasted federal police for wrongly labeling him an "Islamic extremist." But the prosecution in Diab's case has painted a different picture: that of a man who poses a flight risk, who kept contacts in numerous countries and who maintained a strained relationship with his girlfriend Rania Tfaily. Tfaily would be asked to serve as a principal guarantor if Diab were paroled, and the suspect admitted under cross examination that he had an affair with another woman prior to his arrest four months ago. This week's bail hearing is Diab's second shot at freedom after an appeals court quashed a December decision to detain him pending an extradition hearing because Diab, who does not speak French, could not read French prosecution documents entered as evidence at his first hearing. In October 1980, a bomb planted in a motorcycle saddlebag outside the Copernic Street synagogue in Paris killed three Frenchmen and a young Israeli woman, and injured dozens.

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Great White North

Canadians defy law to help terror suspect fly home

2009-03-13

His supporters claim he's a victim of extraordinary rendition Despite threats of prosecution from the federal government, more than 100 people have chipped in to buy a plane ticket to Canada for a Montreal man who has been suspected of terrorist affiliations. Abousfian Abdelrazik has been living in the weight room of the Canadian embassy in Khartoum, Sudan, unable to come home because he's named on a United Nations terror watch list. I thought all proper-thinking people supported the UN ... Most of the 115 contributors from across Canada, including university professors, teachers, lawyers, artists and even a couple of farmers, have given sums of $10 or $20 to buy Abdelrazik's $996 ticket from Khartoum to Toronto. They called it an attempt to "call the government's bluff" on charging them under anti-terror laws. "Because it's a serious federal offence to directly or indirectly collect money for him, these people ... have done so at great peril and risk," his lawyer Yavar Hameed said. Donor Cory Legassic, a Montreal teacher, told a news conference yesterday he's fearful of being charged, but is comforted by the fact the government would presumably have to go after 114 others. The list of donors includes Joseph Carens, political science professor at the University of Toronto, and Canadian peace activist James Loney, once held hostage in Iraq. Abdelrazik is listed under a UN resolution that imposes sanctions on individuals associated with either Al Qaeda or the Taliban. Canada must abide by this resolution, which includes a travel ban for such individuals, the government says. A spokesperson for the foreign affairs department would only say yesterday that consequences would be decided later. Abdelrazik's supporters believe he's a victim of a Canadian version of extraordinary rendition, the highly criticized practice used frequently by the former Bush administration, under which Canadian Maher Arar was sent to Syria, where he was tortured. Abdelrazik, a Canadian citizen who was living in Montreal, alleges he was jailed and tortured in the Sudan, after returning there to visit his ailing mother in 2003. Any medical examination to back this up? Sudanese torturers are, after all, not known for their discretion ... His lawyer obtained internal government documents as part of the federal court battle to bring his client back to Montreal. The documents, Hameed said, reveal Abdelrazik was jailed on the Canadian Security Intelligence Service's recommendation. Eventually cleared of suspicion in the Sudan, he has not been able to make it home. Last December, the lawyer received a letter from the government that an emergency travel document could only be issued if Abdelrazik presents a paid-for plane ticket, something the man could not afford.

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Great White North

Amnesty presses Harper on Omar Khadr amid calls to take other Gitmo detainees

2009-02-04

Amnesty planned to release a letter to Harper in Ottawa on Wednesday in which it notes the pending visit of U.S. President Barack Obama on Feb. 19 affords an ideal opportunity for Harper to press the Khadr case. "We'll be addressing the prime minister with a request that he raise the issue of the repatriation with President Obama," Gloria Nafziger, refugee co-ordinator with Amnesty, said Tuesday. "It seems like an opportune moment for Canada once again to show some leadership and repatriate its citizen." The Amnesty push comes after 185 Canadian organizations and public figures signed a letter to Harper calling on him to repatriate Khadr, one of the largest such efforts. The letter, released Tuesday by the Council on American-Islamic Relations Canada, said many Muslims have interpreted Harper's inaction on the Khadr file as a sign his government considers Canadian Muslims to be "second-class citizens." It was signed by Muslim and civil-liberties groups as well as by documentary filmmaker Alexandre Trudeau, son of former prime minister Pierre Trudeau, former UN special envoy Stephen Lewis, author Naomi Klein and Maher Arar, a Canadian victim of U.S. rendition.

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Great White North

Mounties 4, Muslims 4

2008-12-03

Some of Canada's foremost counterterrorism cops secretly took on a group of young Muslims yesterday, in a pitched contest in downtown Toronto. The result? A 4-4 tie. Soccer matches, not typically seen as a means of advancing national security, can apparently help get the ball rolling. At least, that sensibility led a group of Mounties and Muslim youth to a downtown stadium yesterday, where an hour spent as soccer adversaries was followed by a friendly question-and-answer session. Many Mounties and Muslims alike feel they get bad publicity these days. Playing soccer was seen as a chance to bypass perception and the press, and explain themselves to one another directly. "It helped put into perspective that it's not an us-versus-them mentality," explained Muhammad Robert Heft, the Muslim side's goalie and the event's organizer. "You're dealing with a person now, not an idea." Unfortunately, a Globe and Mail reporter and photographer were turned away from the game, partly due to national-security reasons. When the journalists showed up uninvited, some officers were concerned about their faces turning up in the newspaper. Other Mounties apologized, saying Ottawa headquarters had not cleared the match as a media event. The Muslims were more media-friendly, speaking outside the stadium afterward. The outspoken Mr. Heft, a Muslim convert recognizable in his trademark white turban, runs a Toronto Islamic centre known as P4E. An avowed fundamentalist, but one who is deeply critical of terrorism, he spent months organizing the match. He said his time paid off, even just to see smiling cops running around with young Muslim men. He described the Mounties as good sportsmen, even if he found them pretty lax about enforcement. "We didn't even have a referee in the game," he said. "... A couple of times, our guys were offside and they [the Mounties] let them go." Familiar, polarizing topics were touched on during the post-match discussion at centre circle - such as the cases involving Maher Arar, Omar Khadr, and the 2006 roundup of 18 Toronto-area Muslims, mostly young, on terrorism charges. The Mounties, including some officers who worked on these very cases, said they couldn't say much about matters before judges. After the match, Mostafa Hashamm, a bearded 19-year-old whose wife wears a veil, said he is concerned about unwarranted police scrutiny just about "every time I drive." But he found the Mounties to be "more open than I thought," and he said they mostly talked about "how they can get rid of youth paranoia." At the conclusion of the event, Mr. Heft, the organizer, thanked the Mounties for their time. Then, he said, he urged them to convert to Islam.

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Home Front: WoT

U.S. drops charges against terror suspect

2008-02-29

U.S. counterterrorism officials have dropped criminal charges against an alleged former Afghanistan training-camp instructor, a man they once questioned about a group of Canadian Arabs jailed in Syria. The decision means that secret U.S. Federal Bureau of Investigation conversations with Mohammed Kamal Elzahabi will likely never be presented, nor tested, in any court. It also paves the way for the prisoner's deportation to his native Lebanon. "He will be turned over to Immigration and Customs Enforcement upon his release from custody," said David Anderson, a spokesman for the U.S. Attorney in Minnesota, where the suspect has been held. While outstanding allegations of lying to federal agents were dropped on Wednesday, Mr. Elzahabi was convicted of immigration fraud last August. He awaits sentencing, but his remaining jail time will likely be short, given that he has been held in pretrial custody since 2004. His lawyer fears for his safety. "We remain most concerned about where Mr. Elzahabi will be sent," said Paul Engh, a Minneapolis lawyer. U.S. court documents reveal that the suspect - who bounced between the United States, Canada and Afghanistan during the 1990s - was once known as "Abu Kamal." He is said to have had a long career in foreign jihad - including stints in Lebanon and Chechnya - but always denied any allegiance to al-Qaeda. The Minneapolis case has implications for Canada. Three Canadian Arabs - Ahmad Abou El Maati, Abdullah Almalki and Maher Arar - have all launched lawsuits, stating they were tortured overseas after a counterterrorism investigation wrongly flagged them as al-Qaeda members. Top judges in Canada are probing these allegations. Canadian officials have apologized only to Mr. Arar, who has been awarded $10-million in compensation. A judge found the telecommunications engineer from Ottawa was wrongly smeared in Canada-U.S. intelligence exchanges. But Mr. Arar's U.S. lawsuits have stalled amid concerns that they would compromise state secrets. Court records show that the FBI questioned Mr. Elzahabi, once a Montreal resident, about all the Canadians, yet his precise answers have never been publicly revealed. The Globe and Mail recently reported that Mr. Elzahabi, whose credibility is very much at issue, told the FBI he once saw Mr. Arar in Afghanistan, an untested allegation that may be partly frustrating the latter's attempts to clear his name in the United States. Now a global cause célèbre, Mr. Arar has denied ever travelling to Afghanistan or meeting Mr. Elzahabi. The U.S. Central Intelligence Agency flew Mr. Arar to Syria in 2002, where the other two Canadian Arabs had already been jailed. The prisoners were all interrogated by the same teams. The Canadians were all released by 2004, the same year the FBI moved against Mr. Elzahabi. Minneapolis agents watched and wiretapped him for months, before bringing him in for interviews. The fruits of the 17-day question-and-answer session remain largely secret. Eventually, the FBI charged Mr. Elzahabi with immigration fraud and two criminal counts of lying. The bizarre allegations trace back to the mid-1990s. The first charge was that Mr. Elzahabi concealed help he gave to one of the Canadian targets, Mr. Almalki, as the two men worked together to ship two-way radios to the Pakistani military. The second was that Mr. Elzahabi lied to authorities as he helped a U.S. friend obtain a driver's licence. This case likely had less to do with the licence than the friend: Riad Hijazi, a veteran of the Afghanistan camps, subsequently moved from the United States to the Middle East, where he was convicted of plotting bombings in Jordan.

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Great White North

Canada Puts US On Torture Watch List

2008-01-17

Omar Khadr's lawyers say they can't understand why Canada is not doing more to help their client in light of new evidence that Ottawa has put the U.S. prison at Guantanamo Bay, Cuba, on a watch list for torture. Khadr -- a Canadian citizen who was just 15-years-old when he was captured in Afghanistan more than five years ago and taken to Guantanamo -- has claimed that he has been tortured at the prison. Now, CTV News has obtained documents that put Guantanamo Bay on a torture watch list. Khadr, who was born in Toronto and captured in 2002 after a battle with U.S. forces in which an American soldier died, is accused of war crimes. But his U.S. military lawyer alleges the military court that is trying him violates U.S. and international law. Lawyer William Kuebler also believes the new documents obtained by CTV contradict Prime Minister Stephen Harper's assurances that Khadr is receiving fair treatment. "Omar has been there for five-and-a-half years, and at some point in the course of Omar Khadr's detention the Canadian government developed the suspicion he was being tortured and abused," William Kuebler told Canada AM. "And yet it has not acted to obtain his release from Guantanamo Bay and protect his rights, unlike every other Western country that has had its nationals detained in Guantanamo Bay." Kuebler maintains that the suspicions of torture undermine claims that he can get a fair trial from the military commission in Guantanamo Bay. They want him sent back to Canada to face justice here. But the government has said he's charged with serious crimes and they are waiting for the U.S. judicial process to play itself out. "Omar has certainly been abused, his rights have been violated under international law, and apparently the Canadian government has reason to believe that's true, and yet, they've acted not at all to assist him," Kuebler told CTV News. I'm waiting for someone, someone, somewhere, to tell me exactly how he's been 'abused'. I'd like X-rays, photographs, and weekly charting of his weight. Amir Attaran, a University of Ottawa law professor, said the new developments cast doubt on the government's position that Khadr -- the last Westerner remaining under detention in Guantanamo -- is being treated fairly. "Canada has just admitted we believe torture is possible in Guantanamo Bay," Attaran told Canada AM. "That clashes terribly with what Prime Minister Stephen Harper has said, that Mr. Khadr, who is in Guantanamo Bay and was a child at the time he was put there, is being given a appropriate judicial process. Torture is not an appropriate judicial process." We agree. Now tell us how he's been tortured. Don't just mouth what others have been saying. He said torture is strictly prohibited by international law, and suggested that the Canadian government's refusal to demand Khadr's release from Guantanamo is purely political. "Out of a desire to appear tough on the war on terror, Mr. Harper has put this set of considerations out the window, and that's not appropriate, we have to obey the law," Attaran said. Canada's new focus on torture was ordered by the inquiry into Maher Arar's nightmare in Syria. U.S. authorities sent Arar -- a Canadian of Syrian ancestry -- to Syria after he made a brief stopover in New York in 2002. They wrongly accused him of having links to terrorism in large part because of information provided by the RCMP. Arar was sent to a Syrian prison where he was tortured for nearly a year. An inquiry into the Arar affair ordered a new focus on torture, and CTV News has learned that, as part of a "torture awareness workshop," diplomats are now being told where to watch for abuse. The goal of the workshop was to teach diplomats who visit Canadians in foreign jails how to tell if they've been tortured. It also listed countries and places with greater risks of torture. The list includes Syria, Iran, Afghanistan, and China. But surprisingly, it also included the United States, Guantanamo Bay, and Israel. It notes specific "U.S. interrogation techniques," which include "forced nudity, isolation, and sleep deprivation." The U.S. has repeatedly denied allegations by international groups that it tortures prisoners captured in places like Afghanistan and Iraq. However, U.S. officials have refused to comment on the Canadian list. Nudity, isolation and sleep deprivation are not torture. They also aren't fun, and I wouldn't want some female solider ridiculing my nude body. But this isn't torture, and anyone who conflates the two shouldn't be trusted on anything else. But international observers say they are heartened by the specificity of the Canadian list. Alex Neve of Amnesty International says he is surprised that Canada would risk offending allies by naming countries that potentially torture prisoners. "These are countries where, sadly, the record is clear -- torture and ill treatment happens," said Neve. But it appears that Ottawa may have had second thoughts about being so explicit. After the documents were released as evidence in a court case relating to Afghan detainees, the government tried to get them back. Sources say that Ottawa apparently wanted to black out sensitive parts that may anger allies. A war crimes trial has never been held against anyone under the age of 18. International observers have questioned Ottawa's decision not to help Khadr, who many believe is no different than child soldiers victimized in Africa.

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Great White North

Canadian Judge Blasts U.S. Terror Policies

2007-12-03

Because of the U.S. government's policies on torture and refugees, Canada can no longer turn away refugees coming from the United States, a Canadian judge has ruled. According to Canadian news accounts, Justice Michael Phelan's ruling struck down an agreement that once barred thousands of refugees seeking asylum in Canada. The judge said the United States does not protect refugees fleeing political persecution and torture, which international conventions require. Instead, it adheres to rigid policies which may result in mistreatment, including forcing victims of abuse to return to the countries in which they were mistreated, he said. As a result, the United States can no longer be considered a safe place for refugees, Phelan ruled. His ruling nullifies an existing U.S.-Canada agreement saying that if a refugee is turned away from one country, he or she cannot seek refuge in the other. The agreement was intended to reduce so-called "asylum shopping," in which immigrants attempt to obtain refugee status from multiple countries. Apparently he's not a justice in the Canadian High Court, so his 'nullification' is a temporary one. In his ruling, Phelan pointed to U.S. government's policies on torture and interrogation, the expedited removal of immigrants, its detention practices and its rigid application of time limits for filing paperwork as well as anti-terrorism related provisions, the Canadian press reported. Such policies are "extremely harsh and cast a wide net which will catch many who never posed a threat," Phelan wrote. The judge cited the case of Maher Arar, a Syrian-Canadian who was detained by U.S. authorities on terrorism-related suspicions and "renditioned" to Syria, where he was tortured. Canada has said publicly that Arar had no terrorist ties, though to date the U.S. government has not done so. The Canadian government is expected to appeal the ruling.

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Home Front: Politix

Five Myths About Rendition (not the movie)

2007-10-21

By Daniel Benjamin With hearings in Congress, legal cases bouncing up to the Supreme Court and complaints from Canada and our European allies, the issue of rendition is everywhere. There's even a new, eponymously titled movie in a theater near you, starring Reese Witherspoon as a bereft wife whose innocent husband gets kidnapped and Meryl Streep as the frosty CIA chief who ordered the snatch. Like most covert actions and much of the war on al-Qaeda, the practice is shrouded in mystery -- and, increasingly, the suspicion that it's synonymous with torture and lawlessness. In fact, the term "rendition" in the counterterrorism context means nothing more than moving someone from one country to another, outside the formal process of extradition. For the CIA, rendition has become a key tool for getting terrorists from places where they're causing trouble to places where they can't. The problem is where these people are taken and what happens to them when they get there. As a former director for counterterrorism policy on the National Security Council staff, I've been involved with the issue of rendition for nearly a decade -- and some of the myths surrounding it need to be cleared up. 1. Rendition is something the Bush administration cooked up. Nope. George W. Bush was still struggling to coax oil out of the ground when the United States "rendered to justice" its first suspect from abroad. In 1987, President Ronald Reagan authorized an operation that lured Lebanese hijacker Fawaz Younis to a boat off the coast of Cyprus, where FBI agents arrested him. (Younis had participated in the 1985 hijacking of a Jordanian plane and was implicated in the hijacking of TWA Flight 847, which left a U.S. Navy diver dead.) President George H.W. Bush approved the kidnapping in 1990 of Mexican physician Humberto Alvarez Machain, who was believed to be involved in the torture and killing of a Drug Enforcement Administration official. Nothing says that renditions can involve only suspected terrorists; Israel's abduction of Nazi war criminal Adolf Eichmann in Argentina in 1960 could be called a rendition, though the term was not yet in use. Beginning in 1995, the Clinton administration turned up the speed with a full-fledged program to use rendition to disrupt terrorist plotting abroad. According to former director of central intelligence George J. Tenet, about 70 renditions were carried out before Sept. 11, 2001, most of them during the Clinton years. 2. People who are "rendered" inevitably end up in a foreign slammer -- or worse. Actually, that's not a foregone conclusion. Alvarez was brought to the United States. So was Mir Aimal Kansi, who killed two CIA employees in their cars outside the agency's Langley headquarters in 1993, and Ramzi Yousef, the architect of the 1993 bombing of the World Trade Center. Both were apprehended in Pakistan, whose leaders decided that the nation would rather not have those two -- folk heroes to some -- sitting in jail, awaiting extradition. Pakistan's leaders feared that cooperating with the United States would be dangerously unpopular, so they wanted the suspects out of the country quickly. For many pro-U.S. Muslim leaders, that concern has only deepened as anti-Americanism has soared. By my count, most renditions since 1995 have involved moving individuals from one foreign country to another -- not grabbing someone in Washington and carting them off to North Africa, as happens to Witherspoon's onscreen husband. Such operations typically occur in secret because, again, Muslim leaders (especially in the Arab world) want to shield their cooperation with Washington from their anti-American publics. The CIA has acted as a go-between, arranging the transfers and providing transportation. Usually those being rendered are not brought to the United States because, while the U.S. government may have an abundance of intelligence showing their malfeasance, it doesn't have enough courtroom evidence. There's a big difference between the two. One other safeguard: During the Clinton years, the United States required the country that received a rendered person to have some kind of legal process against the suspect -- an arrest warrant or indictment, for example. It's not clear whether that is still the case. Perhaps Michael Mukasey, President Bush's attorney general nominee, can check. 3. Step one of a rendition involves kidnapping the suspect. The individual may feel as though he's being kidnapped, but that's not usually what's going on. Most of the time, the person is detained by the authorities of the country he is in. They will then hand him off to the CIA, which will fly him to his destination. In rare cases when the country of residence is a hostile one, an "extraordinary rendition" can be carried out: a covert effort to abduct the suspect and spirit him out of the country. The CIA put considerable time into efforts to capture Osama bin Laden this way from Taliban-ruled Afghanistan in the late 1990s. Had it worked, it would have been an extraordinary rendition -- and Americans would have cheered. 4. Rendition is just a euphemism for outsourcing torture. Well, not historically. The guidelines for Clinton-era renditions required that subjects could be sent only to countries where they were not likely to be tortured -- countries that gave assurances to that effect and whose compliance was monitored by the State Department and the intelligence community. It's impossible to be certain that those standards were upheld every time, but serious efforts were made to see that they were. At a minimum, countries with indisputably lousy human rights records (say, Syria) were off-limits. Another key difference: Renditions before Bush were carried out to disrupt terrorist activity, not to gather intelligence or to interrogate individuals. Now, though, the Bush team seems to have dramatically eroded such safeguards. If you wonder, "gee, why is that?", the answer is 9/11. The administration has apparently sent someone to Syria, and Khaled el-Masri, a German citizen, was evidently grabbed in Macedonia and interrogated in Afghanistan in a manner that sure sounds like torture. In light of this and other revelations, the criticism that the administration has "defined down" torture looks pretty persuasive. It's probably a good bet that Congress or the next administration will reform the program, or abolish it outright. 5. Pretty much anyone -- including U.S. citizens and green card holders -- can be rendered these days. Not so, although the movie "Rendition" -- in which Witherspoon's Egyptian-born husband gets the black-hood treatment and is yanked from a U.S. airport and taken to a North African chamber of horrors -- is bound to spread this myth. A "U.S. person" (citizen or legal resident) has constitutional protections against being removed from the country through rendition, and there have been no incidents to suggest the contrary. In fairness, though, the ghastly case of Maher Arar -- a Syrian-born Canadian citizen who convincingly says he was detained at New York's JFK Airport, handed off to Syria and tortured -- is way too close for comfort.

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Home Front: Politix

What would Jack Bauer do?

2007-06-22

This is really about Justice Antonin Scalia OTTAWA -- Justice Antonin Scalia is one of the most powerful judges on the planet. The job of the veteran U.S. Supreme Court judge is to ensure that the superpower lives up to its Constitution. But in his free time, he is a fan of 24, the popular TV drama where the maverick federal agent Jack Bauer routinely tortures terrorists to save American lives. This much was made clear at a legal conference in Ottawa this week. Senior judges from North America and Europe were in the midst of a panel discussion about torture and terrorism law, when a Canadian judge's passing remark - "Thankfully, security agencies in all our countries do not subscribe to the mantra 'What would Jack Bauer do?' " - got the legal bulldog in Judge Scalia barking. The conservative jurist stuck up for Agent Bauer, arguing that fictional or not, federal agents require latitude in times of great crisis. "Jack Bauer saved Los Angeles. ... He saved hundreds of thousands of lives," Judge Scalia said. Then, recalling Season 2, where the agent's rough interrogation tactics saved California from a terrorist nuke, the Supreme Court judge etched a line in the sand. "Are you going to convict Jack Bauer?" Judge Scalia challenged his fellow judges. "Say that criminal law is against him? 'You have the right to a jury trial?' Is any jury going to convict Jack Bauer? I don't think so. "So the question is really whether we believe in these absolutes. And ought we believe in these absolutes." What happened next was like watching the National Security Judges International All-Star Team set into a high-minded version of a conversation that has raged across countless bars and dinner tables, ever since 24 began broadcasting six seasons ago. Jack Bauer, played by Canadian Kiefer Sutherland, gets meaner as he lurches from crisis to crisis, acting under few legal constraints. "You are going to tell me what I want to know, it's just a matter of how much you want it to hurt," is one of his catchphrases. Every episode poses an implicit question to its viewers: Does the end justify the means if national security is at stake? On 24, the answer is, invariably, yes. But sometimes this message proves a little too persuasive. Last November, a U.S. Army brigadier-general, Patrick Finnegan, of West Point, went to California to meet with the show's producers. He asked if the writers would consider reining in Agent Bauer. "The kids see it, and say, 'If torture is wrong, what about 24?" he told The New Yorker in February. BG Finnegan is the Dean at USMA. A JAG who served as Staff Judge Advocate, Fort Bragg, before deploying to the Persian Gulf to participate in Operations Desert Shield and Desert Storm. Teaching military ethics is under his responsibility at West Point. He argued that "they should do a show where torture backfires." It's not just the military that's watching 24. It turns out that the judges who struggle to square the Guantanamo Bay prison camp experiment with the British Habeas Corpus Act of 1679 are watching the show, too. It was Mr. Justice Richard Mosley of the Federal Court of Canada who inadvertently started the debate, with his derogatory drive-by slight against Jack Bauer, the one that so provoked Judge Scalia. In his day job, the Canadian judge wrestles with the implications of torture. Last winter, for example, Judge Mosley ordered an Osama bin Laden associate freed from seven years prison and into strict house arrest in Toronto. Judge Mosley told the panel that rights-respecting governments can't take part in torture or encourage it in any way. "The agents of the state, and the agents of the Canadian state, under the Criminal Code, are very much subject to severe criminal sanction if they would engage in torture," he said. But the U.S. Supreme Court judge choked on that position, saying it would be folly for laws to dictate that counterterrorism agents must wear kid gloves all the time. While Judge Scalia argued that doomsday scenarios may well lead to the reconsideration of rights, in his legal decisions he has also said that catastrophic attacks and intelligence imperatives do not automatically give the U.S. president a blank cheque - the people have to decide. "If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this court," he dissented in a 2004 decision. The judicial majority ruled that a presidential order meant that an American "enemy combatant" wasn't entitled to challenge the conditions of his detention, which happened to be aboard a naval brig. As they discussed torture in Ottawa, the judicial panelists from outside the United States argued that any implicit or explicit sanction of torture is a slippery slope. Some said that legal systems might do well to enforce anti-torture laws, even if it meant prosecuting rogue agents. "What if the guy is not the guy who's going to blow up Los Angeles? But some kind of innocent?" asked Lord Carlile of Berriew, a Welshman who acts as the independent reviewer of Britain's terrorism laws. Torture can lead to false confessions, he said. "How do you protect that person's civil rights from the risk of very serious wrongful conviction?" But Lord Carlile, a barrister by training, added that he was also concerned with Jack Bauer's rights. "I'm sure I could get him off," he said. One panelist deadpanned that saving Los Angeles from a nuke would likely be a mitigating factor during any sentencing of Jack Bauer. When the panel opened to questions and commentary from the floor, a senior Canadian government lawyer said: "Maybe saving L.A. is an easy question. How many people are we going to torture to save L.A.?" asked Stanley Cohen, a senior counsel for the Justice Department, who specializes in human rights law. "How much certainty do we get to have that we have the right person in front of us?" Then Lorne Waldman, the lawyer for the famously wronged engineer Maher Arar, emerged from the crowd to say that very little of the conversation sounded hypothetical to him. Mr. Arar was among a series of Canadian Arabs who emerged from lengthy ordeals in Syrian jails to complain of torture. Their common complaint is that Syrian torture - including beatings with electric cables - flowed from a wrongly premised Canadian investigation after 9/11. A host of security agents, Mr. Waldman argued, acted with utmost urgency against innocents, after wrongly fearing a bomb plot was afoot. Generally, the jurists in the room agreed that coerced confessions carry little weight, given that they might be false and almost never accepted into evidence. But the U.S. Supreme Court judge stressed that he was not speaking about putting together pristine prosecutions, but rather, about allowing agents the freedom to thwart immediate attacks. "I don't care about holding people. I really don't," Judge Scalia said. Even if a real terrorist who suffered mistreatment is released because of complaints of abuse, Judge Scalia said, the interruption to the terrorist's plot would have ensured "in Los Angeles everyone is safe." During a break from the panel, Judge Scalia specifically mentioned the segment in Season 2 when Jack Bauer finally figures out how to break the die-hard terrorist intent on nuking L.A. The real genius, the judge said, is that this is primarily done with mental leverage. "There's a great scene where he told a guy that he was going to have his family killed," Judge Scalia said. "They had it on closed circuit television - and it was all staged. ... They really didn't kill the family." Gospel according to Jack "Tell me where the bomb is or I will kill your son." "I don't want to bypass the Constitution, but these are extraordinary circumstances." "I need to use every advantage I've got." "If we want to procure any information from this suspect, we're going to have to do it behind closed doors." "I'm talking about doing what's necessary to stop this warhead from being used against us." "When I'm finished with you, you're gonna wish that you felt this good again." "You don't have any more useful information, do you?"

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Great White North

Canadian court strikes down anti-terror law

2007-02-24

The Supreme Court of Canada on Friday struck down the government’s right to detain foreign terrorism suspects indefinitely and without trial, saying the system violates the country’s bill of rights. The Justice Department had insisted that the “security certificate” programme was a key tool in the fight against global terrorism and essential to national security. But in a 9-0 judgment, the high court found the system violated the Charter of Rights and Freedom. It suspended the judgment from taking effect for a year, to give parliament time to rewrite the part of the Immigration and Refugee Protection Act that deals with the certificates. The certificates were challenged on constitutional grounds by three men from Morocco, Syria and Algeria – all alleged by the Canadian Security Intelligence Service (CSIS) to have ties to Al Qaeda and other terrorist groups. “The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process,” Chief Justice Beverley McLachlin wrote in the ruling. Opponents of the system say it violates the human rights of those who have no access to the evidence against them and who would face torture or death if deported to their native countries. Barbara Jackman, an attorney who represents one of the men detained for six years, said the Supreme Court decision in no way compromised national security. “It only strengthens our democracy,” she said. “It’s an indication to other countries that to detain people and mistreat them is not satisfactory. There are ways to provide fair hearings in the face of national security concerns.” The federal law currently allows sensitive intelligence information to be heard behind closed doors by a federal judge, with only sketchy summaries given to defence attorneys. If those foreigners choose to fight deportation, they can spend years in jail while the cases go through courts. Even if they are freed, they risk being labelled as terrorists. Though the security certificate programme has been around since the 1970s, its use became more contentious after 9/11, and since Ottawa used faulty intelligence in a case that led to a $9 million apology to a former terrorism suspect, Maher Arar.

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Great White North

Canada to pay Arar $10.5 million for Syria ordeal

2007-01-27

Canada apologized on Friday to software engineer Maher Arar, who was deported to Syria by U.S. agents after Canadian police mistakenly labeled him an Islamic extremist, and paid him C$10.5 million ($8.9 million) in compensation. Arar, a Syrian-born Canadian citizen, was arrested during a stopover in New York in 2002 on his way home to Canada from a holiday. He has said he was repeatedly tortured during the year he spent in Damascus jails. U.S. officials deported Arar after the Royal Canadian Mounted Police said he was a suspected Islamic extremist, but an official Canadian inquiry said there was no evidence he was linked to terrorism. The deportation has become a sore spot in Canada-U.S. relations, and Prime Minister Stephen Harper renewed his call for Washington to remove Arar from its security watch list as he announced the settlement on Friday. "On behalf of the government of Canada, I wish to apologize to you, Monia Mazigh (Arar's wife) and your family for any role Canadian officials may have played in the terrible ordeal that all of you experienced in 2002 and 2003," Harper said in a letter of apology which he read at a news conference. In addition to the C$10.5 million, an Arar lawyer said the government would pay for C$1 million in legal fees. Arar said afterwards that he could not begin to say how much Harper's statement and the compensation meant. "In doing so, the government of Canada and the prime minister have acknowledged my innocence. This means the world to me (and my family)," he said. The official inquiry by Justice Dennis O'Connor found the RCMP had wrongly told U.S. border agents that Arar was a suspected Islamic extremist and slammed the police for incompetence and dishonesty. Canada's top Mountie resigned in December over the issue. Arar had initially sued Ottawa for C$400 million, a figure he later cut to C$37 million. Harper defended the final settlement: "I know to some Canadians that will sound like an awful lot of money, but I can tell you that the reality is, given the findings of the O'Connor commission and the unjust treatment that Mr. Arar received, that figure is within this government's assessment of what Mr. Arar would have won in a lawsuit." In Washington, Democratic Sen. Patrick Leahy (news, bio, voting record) issued a statement saying he was seeking answers as chairman of the Senate judiciary committee as to why Arar was sent to Syria. "The question remains why. Even if there were reasons to consider him suspicious, the U.S. government shipped him to Syria where he was tortured, instead of to Canada for investigation or prosecution," Leahy said. Democratic Congressman Edward Markey (news, bio, voting record) called on the White House to imitate Ottawa. "The Bush administration should follow suit and admit publicly that it was cruel to detain and transfer Maher Arar to Syria for torture," he said. U.S. officials have said Arar will remain on their watch list because of unspecified information possessed by law enforcement agencies. Arar is also suing the United States for damages. As for his personal life, Arar says he still suffers nightmares from his ordeal and hopes now to try to melt back into an ordinary life. "I wish, if there's a way, I could buy my life back," he said.

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