Kerry Pither

I’ve received a number of inquiries about the Arar Commission web site — which used to be consistently available on the Library and Archives Canada site by clicking on the old URL — www.ararcommission.ca. Now, click on that, and you get some strange financial services company…

I contacted Library and Archives about this, and they are looking into what’s happened to their archived links and the URL. In the meantime, they were able to find the archived site, and all the Inquiry’s reports, recommendations, transcripts and other documents on the Privy Council Office web site here.

As today’s Globe and Mail editorial points out, the new Royal Canadian Mounted Police Review and Complaints Commission created by Act C-38 falls far short of what Arar Inquiry Commissioner Dennis O’Connor recommended back in December 2006.

Note to readers: I am looking into why the Arar Commission’s web site seems to be no longer available on the National Archives site. In the meantime, click here for a pdf of the Arar Commission’s report and recommendations on oversight.

The Iacobucci Inquiry has revealed yet another way in which the actions of CSIS agents likely contributed to the torture of Canadian citizen Ahmad El Maati.

Inquiry Commissioner Justice Frank Iacobucci Inquiry had hoped to include today’s revelation in its public report released in October 2008, but was forced to fight government claims of national security confidentiality.

The newly released information says that in June 2002, CSIS agents sent a message to Egyptian authorities trying to confirm that El Maati was in detention there, and telling them, among other things not disclosed, that he was involved in a plan to commit a terrorist act in Canada.

Justice Iacobucci has already confirmed that that this allegation was not based on evidence, but on an alleged “confession” obtained earlier from Syrian authorities – a “confession” that Iacobucci says CSIS should have known was likely the product of torture.

Justice Iacobucci criticizes CSIS for failing to take into account the potential consequences of sharing this allegation with the Egyptian authorities for El Maati.

He says once they confirmed El Maati was indeed in Egyptian detention, CSIS continued to communicate with the Egyptians, and sought permission from then CSIS deputy director of operations, Jack Hooper, to travel to Egypt later that year.

Hooper approved the trip, and apparently told the Inquiry that while he did consider the possibility El Maati might be mistreated as a result of the trip, he didn’t think that was likely, and, besides, it was more important to find determine if there really was a threat to Canada.

A list of questions was prepared, “to which it [CSIS] wished to obtain answers,” and the trip went ahead in December 2002.

Justice Iacobucci concludes that the information shared in June 2002, the list of questions, and the trip all likely contributed to El Maati’s mistreatment.

And Justice Iacobucci has already documented how El Maati was subsequently tortured in Egypt – with electric shock to his hands, back and genitals, and sleep deprivation while being subjected to excruciatingly painful stress torture for days on end.

Justice Iacobucci takes CSIS to task for failing to include enquiries about how El Maati was being treated.

But then again, as he confirmed in his report, CSIS had already been informed as early as July 2002 that El Maati had been tortured in Egyptian detention.

What Justice Iacobucci doesn’t tell us is what CSIS did with the questions.

Did the agents hand them over to El Maati’s interrogators? Did the agents witness or participate in any of El Maati’s interrogations? Did they get answers back?

Were there any subsequent trips to Egypt?

Today’s revelations have renewed calls by human rights advocates, and the men whose cases were examined by the Iacobucci Inquiry, for decisive action to ensure that Canada is never again complicit in torture.

“This revelation is particularly disturbing given the expanding powers being awarded to CSIS to act overseas, and the government’s continued refusal to beef up oversight and review not just of CSIS but all agencies involved in national security investigations,” said Warren Allmand, former solicitor general and a spokesperson for the International Civil Liberties Monitoring Group.

“It has been more than three years since Justice Dennis O’Connor wrapped up the Arar Inquiry and recommended a new comprehensive model of review and oversight and it is long past time to implement that important proposal,” he added. “It is too late for Mr. El Maati, but it’s not too late for others.”

“At a time when Canadian officials should have been doing everything they could to extricate Mr. El Maati from the terrifying human rights violations, today we learn of another way that they were instead contributing to his suffering,” said Alex Neve, Secretary General of Amnesty International Canada.

“Combined with what we already knew about Canadian complicity in torture, it is outrageous that the government adamantly continues to refuse to apologize and offer redress to Mr. El Maati, along with Abdullah Almalki and Muayyed Nureddin,” Neve added. “The government must stop their callous fight against these three men in the courts and do the right thing: say sorry and provide compensation.”

In December last year, the Standing Committee on Public Safety and National Security won majority support in a House of Commons vote for its recommendations that the government issue compensation and an apology to El Maati, Almalki and Nureddin, and implement the Arar Inquiry’s recommendation for a more robust system of checks and balances for agencies involved in national security investigations.

Since then, however, efforts at mediating a settlement for the men have collapsed because of a federal government position the men’s counsel say “eliminates any possibility of resolution.”

Today’s news adds to a long list of ways that Justice Iacobucci has already revealed that Canadian agencies contributed to Mr. El Maati’s detention and torture.

When his report was first released in October 2008, it revealed that Canadian officials had likely contributed to Mr. El Maati’s mistreatment and torture in Egypt in three other ways: CSIS sent a letter to Egyptian authorities labeling Mr. El Maati with unjustified allegations and expressing concern should he be released; the RCMP repeatedly requested the opportunity to interview Mr. El Maati in Egyptian custody; and the RCMP freely shared information with U.S. authorities that made its way into the hands of Egyptian interrogators.

The report also concluded that Canadian officials likely contributed to Mr. El Maati’s initial detention by Syrian authorities when they shared his travel itinerary with the FBI and CIA, and when, in communications with the Syrians, they labeled him as linked to terrorism without first ensuring the allegations were accurate or justified.

Justice Iacobucci has also already revealed that Canadian officials likely contributed to Mr. El Maati’s torture in Syria by supplying questions for his Syrian interrogators, and, when they received his “confession,” failing to advise consular affairs officials that they knew Mr. El Maati was in Syrian detention and had been interrogated.

The report also concluded that the actions of Canadian officials likely contributed to the detention and torture of Canadian citizen Muayyed Nureddin, and to the torture of Abdullah Almalki, both in Syria.

Click here for an overview of what we already knew from the Iacobucci Report.

Maher Arar has again been denied the right to sue the United States for sending him to Syria to be tortured. The 2nd U.S. Circuit Court of Appeals has ruled against overturning a decision of the U.S. District Court — Eastern District of New York, which had dismissed his suit against the officials responsible for his plight, including former attorney-general John Ashcroft and former homeland security secretary Tom Ridge.

The majority, in a 7-4 decision, ruled that Arar did not possess a legal remedy for the violations of his human rights because granting such a remedy would encroach on the powers of the executive branch (in terms of issues dealing with national security issues) and the legislative branch (in terms of the provision of remedies in certain circumstances.

In a statement released through his lawyers, Arar said:

“Unfortunately, this recent decision and decisions taken on other similar cases, prove that the court system in the United States has become more or less a tool that the executive branch can easily manipulate through unfounded allegations and fear mongering….If anything, this decision is a loss to all Americans and to the rule of law.”

The full text of Arar’s statement is available here. The full text of the decision is available in pdf format here. Here are some interesting snippets from the dissenting judges:

Judge Parker’s dissent, p. 1.

“My point of departure from the majority is the text of the Convention Against Torture, which provides that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Because the majority has neglected this basic commitment and a good deal more, I respectfully dissent.”

Judge Parker’s dissent, p. 1-2:

“While I broadly concur with my colleagues who dissent, I write separately to underscore the miscarriage of justice that leaves Arar without a remedy in our courts. The majority would immunize official misconduct by invoking the separation of powers and the executive’s responsibility for foreign affairs and national security. Its approach distorts the system of checks and balances essential to the rule of law, and it trivializes the judiciary’s role in these arenas.”

Judge Parker’s dissent, p. 4:

“The majority discovers myriad reasons to “hesitate” in the face of Arar’s complaint that federal officials conspired to send him to Syria to be tortured. Its principal reason, however, is that permitting such an action “would have the natural tendency to affect diplomacy, foreign policy and the security of the nation.” This view of the separation of powers, which confines the courts to the sidelines, is, in my view, deeply mistaken; it diminishes and distorts the role of the judiciary especially during times of turmoil. When presented with an appropriate case or controversy, courts are entitled – indeed obliged – to act, even in instances where government officials seek to shield their conduct behind invocations of “national security” and “foreign policy.”"

Judge Parker’s dissent, p. 22-23:

“Normally, as we have seen, when Congress legislates in a particular area, a Bivens action is not appropriate. In particular, the division of labor outlined in Bivens contemplated two scenarios: (1) Where Congress has selected a remedy for constitutional injuries, the courts should defer to its legislative wisdom; (2) Where Congress has not considered a remedy, however, a court must use its “judgment about the best way to implement a constitutional guarantee.” However, Arar’s case fits neither situation. Instead, the allegations are that any remedy provided by Congress and the Constitution was purposefully foreclosed by executive officials. When it comes to torture, Congress has spoken loudly and clearly. Title 18, Section 2441 makes it a felony punishable by life imprisonment to commit, or conspire to commit, “an act specifically intended to inflict severe physical or mental pain or suffering . . . upon another person within his custody or physical control for the purpose of obtaining information or a confession.” Arar’s transfer to Syria was allegedly designed to skirt the congressional prohibition on torture by outsourcing this form of interrogation. Moreover, in order to seamlessly accomplish this transfer, officials had to ignore or evade a number of other congressional dictates: An immigration policy that bars the removal of any person to a country where he will likely be tortured, and the INA’s judicial review provision. Finally, officials’ actions also foreclosed Arar’s opportunity to seek habeas relief under 28 U.S.C. § 2241 and the Constitution, a remedy that the government itself concedes should have been available to Arar.

In bare terms, the complaint alleges that executive officials set out to circumvent and undercut the powers of both the legislative and judicial branches. Under these circumstances, the usual justifications for hesitation in applying Bivens are simply not present. When, as here, the executive branch takes measures incompatible with the express or implied will of Congress, its “power is at its lowest ebb.” Factors that might otherwise counsel hesitation disappear where executive officials have sought to nullify the remedies chosen by Congress. In these cases, courts owe the executive branch little deference. Instead, the courts’ provision of a substitute remedy is an undertaking not simply “appropriate for a common-law tribunal” but essential for the rule of law.

Since the majority fails in these responsibilities, I repectfully dissent.”

Judge Calebresi’s dissent, p. 1:

“In its utter subservience to the executive branch, its distortion of Bivens doctrine, its unrealistic pleading standards, its misunderstanding of the TVPA and of § 1983, as well as in its persistent choice of broad dicta where narrow analysis would have sufficed, the majority opinion goes seriously astray. It does so, moreover, with the result that a person-whom we must assume (a) was totally innocent and (b) was made to suffer excruciatingly (c) through the misguided deeds of individuals acting under color of federal law-is effectively left without a U.S. remedy.”

Judge Calebresi’s dissent, pp. 15-16:

“Whether extraordinary rendition is constitutionally permissible is a question that seems to divide our country. It seems to me obvious, however, that regardless of the propriety of such renditions, an issue on which I won’t hide my strong feelings, mistakes will be made in its operation. And more obvious still is that a civilized polity, when it errs, admits it and seeks to give redress. In some countries, this occurs through a royal commission. In the United States, for better or worse, courts are, almost universally, involved. This being so, and regardless of whether the Constitution itself requires that there be such redress, the object must be to create and use judicial structures that facilitate the giving of compensation, at least to innocent victims, while protecting from disclosure those facts that cannot be revealed without endangering national security. That might well occur here through the application of a sophisticated state secrets doctrine. It does not occur when, at the outset, Arar’s claims-though assumed true and constitutionally significant-are treated as lacking any remedy. And this is just what today’s unfortunate holding does. It hampers an admission of error, if error occurred; it decides constitutional questions that should be avoided; it is, I submit, on all counts, utterly wrong. I therefore must regretfully, but emphatically, dissent.”

Special to the Ottawa Citizen, June 26, 2009

It’s official. As long as the U.S. doesn’t interfere, Abousfian Abdelrazik will finally return home on Saturday, the fifth Canadian to come home with questions about Canadian complicity in his torture.

Has anything changed since the four with stories so similar to his – Maher Arar, Ahmad El Maati, Abdullah Almalki and Muayyed Nureddin – came home and demanded answers about Canada’s role in their torture?

For starters, we aren’t as easily convinced when fellow citizens are labeled as terror suspects. An overwhelming number of Canadians from all walks of life – apparently more skeptical of the security apparatus and the government than Abdelrazik – were willing to risk criminal charges by contributing to his airline ticket home.

That’s encouraging, and not surprising, given all we’ve learned from the Arar and Iacobucci Inquiries about the lack of evidence behind the allegations leveled against the others.

The media is more skeptical too. Even before Arar, El Maati and Almalki were released, the onus was on them to somehow disprove allegations being hurled at them in the media by nameless, faceless officials hoping to distract attention from their own shameful behaviour. Thanks to findings at the Arar Inquiry, and the benefit of hindsight, very few journalists are still willing to publish terrorism allegations from officials insisting on anonymity. That’s encouraging too.

We’ve also seen a shift in the courts, aptly demonstrated by the Federal Court ruling forcing Canada to bring Abdelrazik home.

But have the Canadian government and its agencies changed?

There, the news isn’t as good.

By waiting until a Federal Court forced it to bring Abdelrazik home, the government demonstrated it has learned precious little. And CSIS and the RCMP have yet to express any remorse for their now well-documented contribution the torture of El Maati, Almalki and Nureddin. So despite evidence that CSIS requested Abdelrazik’s detention, it’s unlikely he’ll be getting an apology any time soon.

So where can he turn for answers and accountability?

When Arar returned home almost six years ago, Shirley Heafey, then chair of the RCMP’s Public Complaints Commission, had publicly revealed that the force was refusing to cooperate with her investigations. Even if she had won new powers, her investigation would have been restricted to the RCMP, and Arar would have had to ask for separate investigations into the roles of CSIS, the CBSA, DFAIT and other agencies.

That’s why he called for a public inquiry – one that could subpoena witnesses and evidence from all the Canadian agencies implicated in his case.

Arar won that inquiry, and through it we all won many answers and important recommendations. Recognizing there was nowhere for El Maati, Almalki and Nureddin to turn for answers either, the Arar Inquiry made a recommendation leading to the creation of a second inquiry to examine their cases. And to address the long term, the Arar Inquiry called for the creation of a review mechanism with powers much like its own.

That recommendation, made more than two and a half years ago, has been fiercely resisted by CSIS and the RCMP, and dutifully ignored by the government.

Not that things have changed. Just weeks ago, the current chair of the RCMP Public Complaints Commission announced that he still lacks the power to investigate the force’s national security work. And SIRC has emphasized that its investigation into Abdelrazik’s case will be limited to CSIS involvement, not other agencies involved.

The government, apparently lacking the courage to stand up to CSIS and the RCMP, says that before it can implement that robust, independent and integrated review mechanism, we need to wait until the Air India Inquiry releases its report.

So Abdelrazik comes home to the same dilemma Arar faced six years ago. How will he, and we, get to the bottom of who did what in his case? Must he fight for an inquiry too? If he somehow manages to win one, will that be used as another excuse to stall implementation of a long term solution? And in the meantime, how are we to have any confidence in the agencies that are supposed to make us feel safer?

If the government won’t stand up to CSIS and the RCMP, we must. Canadians must insist on implementation of the long term, efficient and effective checks and balances so essential to delivering the accountability our democracy demands.

Witnesses representing the RCMP, CSIS and the Canadian Border Services Agency (CBSA) will testify on the Arar Inquiry recommendations and the Iacobucci Inquiry findings before the Public Safety Committee on Tuesday, March 31. CSIS and RCMP representatives should be asked, among other things, if they are prepared to apologize for the ways in which their agencies contributed to the detention and torture of Canadian citizens. The hearing takes place from 9:00 to 11:00 a.m., in room 253 Centre Block on Parliament Hill in Ottawa, and is open to the public. More details to be available soon on the Committee page here.

I will be testifying before the Standing Committee on Public Safety and National Security this Tuesday, March 24, along with other advocates who want the government to implement all of the Arar Inquiry’s recommendations, including Justice O’Connor’s model for effective civilian oversight of the RCMP, CSIS and the numerous other agencies that participate in national security investigations. We’ll also be urging the committee to press the government to do as it did for Maher Arar, and issue a formal apology to Ahmad El Maati, Abdullah Almalki and Muayyed Nureddin for Canada’s role in their torture. I’ll be joined by Amnesty International’s secretary general Alex Neve; former solicitor general Warren Allmand representing the International Civil Liberties Monitoring Group; Shirley Heafey, former chair and CEO of the RCMP’s Public Complaints Commission representing the BC Civil Liberties Association; and James Kafieh, counsel for the Canadian Arab Federation, the Canadian Council on American Islamic Relations and the Canadian Muslim Civil Liberties Association. The hearings are open to the public, and will be taking place from 9:00 a.m. to 11:00 a.m. in room 269 of the West Block on Parliament Hill. The meeting can be watched on line — it will be webcast live here.

The Commons Committee on Public Safety is supposed to begin hearings this week on the findings of the Iacobucci Inquiry, and the recommendations of the Arar Inquiry. These hearings are crucial. We’ve heard nothing from the government since the report’s release in October last year: The report confirmed that Canadian agencies did contribute to the detention of Ahmad El Maati and Muayyed Nureddin, and to their torture and the torture of Abdullah Almalki (by, for example, supplying the questions to those interrogating and torturing them). No-one in government has apologized to the men. There’s no sign that any Canadian official has been held accountable for their actions. And the Conservative government is still ignoring the Arar Inquiry’s recommendation, made more than two years ago, for effective and integrated civilian oversight of the agencies that carry out national security investigations. And without that oversight mechanism in place, it isn’t clear how Canadians can be confident that many of the Arar Inquiry’s other recommendations have been implemented.

It isn’t yet clear who will be appearing before the Public Safety Committee, or when they might be appearing. The committee was supposed to hear testimony from the RCMP, CSIS and the Canadian Border Services Agency on Tuesday — but that’s been cancelled or postponed. The Public Safety Minister was invited to appear this week but wasn’t available. So now it’s anticipated that witnesses from DFAIT, the Commission for Public Complaints against the RCMP (CPC) and the Security Intelligence Review Committee (SIRC) will appear on Thursday.

Just eight days after the release of the Arar Inquiry’s report on September 18, 2006, former RCMP Commissioner Zaccardelli appeared as a witness at the Public Safety committee hearings. On that first day of hearings, he used the opportunity to apologize to Maher Arar and his family, but then went on to provide testimony for which he would later be forced to resign. The Public Safety committee’s study of the Arar case continued through to January 2007. Evidence for these meetings is available here.

The Public Safety Committee later tabled a report calling on the Canadian government to issue a formal apology to Mr. Arar, negotiate compensation for him and his family, register formal protest with the US for its rendition of Mr. Arar, register formal protests with Syria for torturing Mr. Arar, and implement all the findings of the Arar Commission.

I hope the Public Safety Committee will work towards a similar report this time, calling on the Canadian government to apologize to Messrs. El Maati, Almalki and Nureddin, to move swiftly into mediating compensation for the men so they can rebuild their shattered lives, to register formal protests against the governments of Syria and Egypt for brutally torturing these Canadians, to provide a full, detailed accounting of how the Arar Inquiry’s factual report’s recommendations have been implemented, and to immediately implement the Arar Inquiry’s recommended oversight mechanism for the agencies that conduct national security investigations.

For those who are interested, the Arar Inquiry’s reports and recommendations are available on its web site, which has been archived here.

Stay tuned…

If you’re trying to find the Arar Commission’s web site, it’s now located on the Library and Archives site.