[Bloquez l'empire!] Spies, bureaucracy and torture

[Bloquez l'empire]

Spies, bureaucracy and torture
Two days in court with CSIS and Charkaoui

"I think they probably see me as the enemy," said Barbara Campion, media
spokesperson for the Canadian Security Intelligence Service (CSIS). Campion
was standing feet away from Latifa and Hind, mother and sister of Adil
Charkaoui, and had been asked if she would like to come over to meet them.
She didn't think that would be appropriate. When pressed, she admitted that
there weren't any rules in place that prevented her from greeting the
family, but well, it didn't feel appropriate.

Campion and the Charkaouis were in the hallway outside another hearing in
the case of Adil Charkaoui, a father of two who has lived in
Montreal since 1995. Arrested in May 2003 under a national security
certificate, Charkaoui has been labelled "terrorist suspect" and faces
deportation under secret evidence he is not allowed to fight in a fair
trial. After two years in prison without charge, he was released in February
2005 under very strict conditions. His certificate
has still never been reviewed by a judge, not even in the very limited sense
provided by the security certificate process. In other words, his loss of
liberty is essentially the result of a decision made by two cabinet
ministers. It demonstrates a concentration of executive power that has
concerned many.

Last week Charkaoui launched a motion to argue that keeping him under threat
of deportation to torture is a violation of his Charter rights and of the UN
Convention Against Torture. For the first time, Charkaoui was challenging
the part of the
Canadian Immigration and Refugee Protection Act (IRPA) which says that
people who have been labelled security threats should be excluded from
protections against torture. These sections act hand-in-hand with security
certificates to open the door to rendition to torture for non-citizens. This
is the threat under which the Charkaoui family is living. It has added to
the stress of arbitrary detention, ceaseless media slander, the necessity of
endless court hearings and campaigning, and release conditions which
humiliate and choke the freedom of the entire family.

It was Campion's first appearance at one of the security certificate
hearings. She had also put in a silent appearance at the Parliamentary
sub-committee hearings on security certificates two weeks earlier, on 21
September. Campion's emergence perhaps signals a change in CSIS's media
strategy. After Maher Arar, Al Maati, Elmalki and Liddar, not to mention
the Air India investigation, CSIS hasn't been looking too pretty. But if you
can't reform, you can at least pay a PR person to spin.

Campion confided that it wasn't easy being the media spokesperson for CSIS
on security certificates. When asked, she clarified that, no, this wasn't
because it (arbitrary and indefinite detention, presumption of guilt, secret
trials, deportation to torture and racial profiling) is a difficult position
to defend. It is because journalists are frustrated by the fact that she
can't tell them much - CSIS has to remain tight-lipped about its secrets.
Such as the secret that their secrets are too flimsy to actually charge Adil
or the other security certificate detainees under criminal law? (This has
already come out in the case of security certificate detainee Hassan Almrei,
imprisonned without charge since October 2001 in Toronto. A confidential
government memo obtained during the Arar inquiry states that "the evidence
against [him] does not meet the threshold for criminal charges to be laid
against him in Canada.") Like the secret that they don't actually have a
case, but only secret suspicions gathered under intimidation, bribery,
blackmail, torture and a secret policy of racial profiling? I didn't ask
her.

The two days were long and technical. On one side, Adil and his lawyers (two
women). On the other side, the lawyers for the Minister of Immigration and
for the Minister of Public Security (three men). In front, Judge Noel. In
the front row of the audience, directly opposite and facing the Judge,
Latifa and Hind. Behind and beside them, journalists and observers,
including Campion, miscellaneous members of the Coalition for Justice for
Adil Charkaoui, students, academics and friends. What was at stake was
whether Canadian authorities would or would not knowingly send people,
specifically
Latifa's son Adil, to torture. The genius of the legal system is that it was
able to dissect that struggle
over a man's body into a series of rational arguments which lost all
signs of vitality. It was a very dull time, alleviated by two or three
guffuffles.

Guffuffle one was the fact that Adil arrived half an hour after the hearing
was to have begun. His father having just begun work, his mother having an
unavoidable offical appointment which ran over-time, and Adil's conditions
forbidding him to leave home without his parents, one of his lawyers,
Dominique Larochelle, had to fetch him at the last moment.

Charkaoui's other lawyer, Johanne Doyon, then began to make what seemed, to
non-lawyers at
least, the fairly straight-forward case that holding Adil under prolonged
and serious threat of torture violates his charter rights to life, liberty
and
security of person, to not be subjected to cruel and unusual treatment,
and to equality (only non-citizens are subject to such treatment). Following
a line of reasoning equally self-evident to the uninitiated, she argued that
the part of the Immigration law that says that protection against torture
does not apply to everyone, contradicts the part of international law that
says that everyone must be protected against torture. Apparently the
arguments are not as straightforward as they appear to the untrained mind.
They required a good day and a half from Doyon, punctuated by questions from
the Judge, before Mr. Latulippe, the lawyer for the Immigration Minister,
had a chance to stand up for torture.

Guffuffle two was a sudden impatience on the part of the Judge during
Doyon's description of the stress under which Charkaoui was living, and its
negative impact on his psychological health. Why, the judge
asked, if Charkaoui claims to be under so much stress, doesn't he just go
through with the review of the certificate? We could simply throw out the
certificate and the situation would be over! Where was the problem? Judge
Noel was referring to the fact that the review of Charkaoui's certificate
has been suspended since March 2005, when the Minister of Immigration was
forced to withdraw an August 2004 decision to deny Charkaoui protection
against
deportation to torture. That decision had been largely based on diplomatic
assurances from Morocco, which were rather spectacularly exposed on Radio
Canada TV as worthless by the Moroccan Minister of Justice. Charkaoui
requested that the review of the certificate
be suspended until the government came out with a new decision on
protection; Judge Noel agreed. Was Noel now asking Charkaoui to put his
trust in judicial assurances?

Day two began with quite a heated guffuffle of its own. Charkaoui's lawyers
wanted evidence that the Minister really had read the secret "evidence"
against Charkaoui before signing the certificate against him. (In an aside,
Dominique Larochelle clarified that, as a criminal lawyer, she couldn't
really accept this material as evidence. She might have continued as K.
in The Trial, "I recognize them as such, for the moment, out of compassion,
so to speak.") The judge responded, basically, that he couldn't imagine a
situation in which they would have signed without reading the secrets. Doyon
agreed that it
would be astonishing, but added that she had been astonished to learn that
something of the kind had happened in the case of Mahjoub. (Mahjoub had been
denied protection against deportation to torture basically on the grounds
that the
secret evidence indicated that he might be too dangerous to remain in
Canada, but the
Minister's delegate who wrote the decision had not in fact even read the
secret evidence.) Astonishing things seem to happen in these cases. In the
end, neither the judge nor the government lawyers could provide evidence
that the Ministers had read
the secrets presented about Adil. But they believed it to be unimaginable
that the
Ministers hadn't done so, the Judge noting that it didn't make sense to read
the summary without its secret annexes. This is a fact Adil and his lawyers
know
only too well, because they are only allowed to read the summary. But their
experience allows them to very clearly imagine a scenario where the secret
evidence was not read before the certificates were signed.

Finally, Mr. Latulippe, a large man with a deep voice, rose to the defense
of
torture. Such is the banality of evil in a bureaucracy and such the
impressive resonance of his voice, that it wasn't immediately apparent that
that was what he was doing. Latulippe defended refoulement to torture by
selectively citing the Supreme Court's Suresh decision - Canadian policy
that there are "exceptional circumstances" in which refoulement is
permissible. The exceptional stress under which the Charkaouis are living
and the abuses they have suffered didn't really impress Latulippe from a
legal point of view. He said he believed this approach to be reasonable:
threats,
national security, Al Qaeda, sleeper cells, terrorism, terrorists. The logic
was elliptic, and its applicability to the immediate situation unspecified,
but his authoritative voice carried him through. He replied to Doyon's
argument that Canadian policy violated international law's absolute
prohibition to deportation on torture by making refined, academically
interesting arguments about the applicability of international
law to the domestic context. Although Latulippe was simply defending
Canadian government policy and a section of Canadian law, it was deeply
unsettling to hear the position argued in person, all the more so for the
air of professional competence, witticisms and all, with which it was
delivered.

The judge will take final submissions and begin deliberations in two weeks.
The motion argued by Doyon is posted at www.adilinfo.org/themes/motion.htm.

(informal report by mary foster)

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