Kerry Pither

I’ll be hosting the fifth broadcast of Rights and Security on Prism TV this Saturday November 13 at 11:00am EST. This special edition will be broadcast from the headquarters of Amnesty International Canada. I’ll be joined by Amnesty International’s Alex Neve, Amir Attaran from the University of Ottawa’s law school, the Globe and Mail’s Paul Koring, and Dennis Edney, Khadr’s Canadian lawyer, as well as a focus group of 15 expert human rights activists, lawyers, academics, politicians and former public service workers. You can read more about it here, and watch live here.

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.

Here’s the news release from today’s event in Ottawa. You can check out video of the installation on Canada AM’s web site here.

Ottawa — Three Canadian torture survivors were at a news conference in Ottawa today to unveil an art installation depicting some of the suffering they endured in a Syrian military intelligence detention centre.

Created by Ottawa artist Jenn Farr and builder Erik Windfeld, “El Abbar” (the grave) is a life-size replica of one of the underground, tiny, dark cells at the now infamous Far’ Falastin (Palestine Branch) Syrian detention centre. Ahmad El Maati was locked into one of these cells for two and a half months before being sent to Egypt. Abdullah Almalki survived one year, three months and twenty-five days in the tiny space. Beside him, Maher Arar was locked up for ten months and ten days. Muayyed Nureddin was locked into an over-crowded “common” cell down the hall.

El Maati, Almalki and Nureddin said they hope the installation will help Canadians, and the government, better understand the horrors of torture.

“I think it is very difficult for anyone to truly comprehend the conditions I was kept in – the loss of control over every aspect of my life, the filth, the smell, the constant sounds of people being tortured, the constant fear that I would be next and the feeling of being buried alive,” said Almalki. “I hope this will at least get people thinking, and better understanding, the horrors of torture.”

More than a year ago the Iacobucci Inquiry concluded that Canadian agencies likely contributed to the torture of El Maati, Almalki and Nureddin by, for example, sending information and questions used in their interrogations in Syria, and in the case of El Maati, Egypt too. The Inquiry also found that allegations about the men shared with foreign agencies were variously inaccurate, inflammatory and without investigatory foundation.

Last week on December 3, all opposition parties voted in the House of Commons to support a Commons Public Safety Committee report calling on the government to compensate and formally apologize to El Maati, Almalki and Nureddin. Since then, however, news has emerged that 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.”

“Over the past few weeks at the hearings into Afghan detainees, we’ve witnessed what can only be read as the government’s callous disregard for the human consequences of torture, and outright contempt for those seeking answers or justice,” said Alex Neve, Secretary General for Amnesty International.

“Now we’re outraged to learn that the government is refusing to accept responsibility for the role played by Canadian agencies in what happened to these men, and forcing them into the courts to fight for the apology and compensation that would help them rebuild their shattered lives,” he added.

The art installation was commissioned by Kerry Pither, the author of Dark Days, a book chronicling the men’s experiences and the Canadian investigations that targeted them.

“I’ve learned through these stories that it is almost impossible for anyone who hasn’t survived torture to fully comprehend how barbaric it is,” said Pither. “I hope that by just spending a few seconds standing inside this replica of the cell, people will be better able to imagine the horrors of spending months in a place like this.”

Pither used the proceeds from the Ottawa Book Award to pay for supplies, and Farr and Windfeld donated their labour. The modular installation will be made available to galleries across Canada in the new year.

The men were also joined at the news conference by NDP MP Don Davies, Liberal MP Mark Holland, and Bloc MP Serge Menard, who sat together on the Public Safety Committee that recommended the government compensate and apologize to the men, in addition to implementing a new system of checks and balances for security agencies that would help ensure that what happened to these men never happens again.

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.

Darcy James Argue’s 18-piece “steampunk big band” Secret Society has just released a fabulous new album, “Infernal Machines”, which includes a haunting instrumental piece dedicated to Maher Arar. Argue is from Vancouver, now living in New York. His band has been dubbed a “powerful and well-stocked ensemble” and designated an official “Jazz Great of Tomorrow” by the New York Times and is featured in this month’s Village Voice and in Newsweek, which proclaimed that “if Ellington went indie, he’d sound something like Darcy James Argue.” I asked Argue about the piece dedicated to Maher Arar and here’s what he said:

The piece was written in September and October of 2006, after the Canadian Commission of Inquiry issued its final report. I completed work on it shortly after President Bush signed the Military Commissions Act, enshrining into law the denial of habeas rights to “alien unlawful enemy combatants.” It is dedicated to Mr. Arar but it’s really a response not just to his specific case, but to the entire regime of torture, rendition, kidnapping, black site prisons and all the rest, which have become depressingly normalized. It’s also my attempt to break through feelings of apathy, denial, “outrage fatigue,” etc. (including my own) and attempt to express things that can’t easily be put into words. I hope it resonates in some way with others and ideally stirs them to action.

Very cool. “Habeas Corpus” can be downloaded for free from National Public Radio (NPR) here, but I hope you’ll purchase the tune or the whole album from New Amsterdam Records here.

The government is blocking Abousfian Abdelrazik’s return to Canada for a very simple reason: to shield Canadian officials and agencies for their complicity in his detention and torture. I’ve written an op-ed on how recent history is repeating itself in the case of Abousfian Abdelrazik, and about the startling parallels between his case and those of Ahmad El Maati, Abdullah Almalki, Maher Arar and Muayyed Nureddin. Check it out below.

Why Canada doesn’t want Abousfian Abdelrazik to come home
By Kerry Pither
Ottawa Citizen, May 13, 2009

Why won’t the Harper government let Abousfian Abdelrazik come home?

Recent history shows it is likely about shielding Canadian agencies from accountability for their role in his detention and torture.

Indeed, there’s frighteningly very little that is unprecedented about the federal government’s handling of Mr. Abdelrazik’s case now, or in the past.

Two federal commissions of inquiry—the Arar Inquiry and the Iacobucci Inquiry—have documented Canada’s role in the overseas detention and torture of four other Canadian Muslim men.

Maher Arar was the first to come home and talk about how he was detained in the US because of erroneous allegations from Canada, then shipped to Syria where he was tortured and held in deplorable conditions for a year.

And while the Inquiry into his case was ongoing, we learned of three other cases.

Ahmad El Maati was detained in November 2001 when he traveled to Syria to celebrate his wedding. Canada had shared erroneous allegations about him with the Syrian Military Intelligence – allegations that would be the subject of brutal interrogations under torture for two months in Syria, then two years in Egypt. In Syria, El Maati was whipped with cables. In Egypt, he was subjected to electric shock.

Abdullah Almalki was detained in May 2002 when he travelled to Syria to visit his ailing grandmother. Canadian officials sent questions for interrogators to ask Almalki too – along with a cover letter promising more information “depending on his willingness to answer.” Of course that shouldn’t have been in question given the reputation of interrogators there. Mr. Almalki was whipped repeatedly on the soles of his feet and held in a three by six by seven foot dark, underground cell for seventeen months before being moved then released after 22 months in detention.

Muayyed Nureddin was detained by the Syrians in December 2003 after visiting his family in Iraq—again, because of Canadian allegations that would be the subject of interrogations under torture. He was released after 33 days in detention.

Just as inquiries into those other cases determined that allegations against them were variously erroneous, inaccurate, unqualified, inflammatory, or without evidentiary basis, Mr. Abdelrazik has been cleared of terrorist ties by CSIS and the RCMP.

And just as Canada was implicated in the detention of the others, government documents say Sudanese officials detained Mr. Abdelrazik at Canada’s request.

In the other cases, CSIS was unsuccessful in repeated bids to interrogate them in overseas detention centres. The agency was successful in Mr. Abdelrazik’s case – they interrogated him in Sudanese custody, and just like in the other cases, didn’t inform his family, or Canada’s consular officials, of his whereabouts.

El Maati, Almalki, Arar and Nureddin were all eventually cleared by their overseas jailers and released. Similarly, Mr. Abdelrazik was released after a total of 19 months in detention because Sudanese officials said they could no longer hold an innocent at another country’s behest.
But the parallels don’t stop there.

Despite the well-documented records of torture in Syria and Egypt, the federal government tried to cast doubt on Arar, El Maati, Almalki and Nureddin’s claims of torture, and was proven wrong at the inquiries.
Mr. Abdelrazik says he was tortured in detention, and has the scars to prove it, but astonishingly, federal government lawyers have tried to assert that his wounds were self-inflicted.

And just as is happening now to Mr. Abdelrazik, Arar, El Maati, Almalki and their families had to fight repeated attempts by Canadian agencies to block their release and return home.

In October 2003, just ten days after Maher Arar’s release and return to Canada, a CSIS official speculated in a memo that it was “unlikely that, should Abdelrazik’s detention in Sudan become public knowledge, there would be the same sort of outcry that surrounded Maher Arar’s arrest and deportation from the USA.” 

He was right, at least in the short term. But here’s where history repeats itself yet again – the more the Harper government does to block Abdelrazik’s return, the more the media, and the public, are paying attention.

And the more inevitable it becomes that Mr. Abdelrazik will come home, and will, eventually, get answers.

The Independent’s Robert Fisk was in Ottawa a few weeks ago and spoke with Canadian torture survivor Abdullah Almalki, one of the men whose stories I tell in my book. Fisk writes about Almalki’s case in his column, published today, and raises the all-important issue of accountability. “I want to know why those complicit in Almalki’s torture – the letter writers, the composers of questions – cannot be tried in court,” he writes. “They are, at the least, accomplices to human rights abuses.” Good point. Especially since they aren’t just not being held accountable — they’re being promoted. Just this week we learned that the RCMP’s Michel Cabana, the man who was in charge of the RCMP investigation that targeted Ahmad El Maati, Almalki, Maher Arar and Muayyed Nureddin, has been promoted to an Assistant Commissioner of the RCMP (Federal and International Operations, Border Integrity Section).

Cabana was in charge of the RCMP’s Project A-O Canada when El Maati, Almalki and Arar were detained in Syria and tortured into providing false confessions. He was also in charge when those so-called confessions made their way back to Canada. The first, of course, was pried out of Ahmad El Maati within the first few days of his incommunicado detention at the now infamous Syrian house of torture, the Palestine Branch, or Far Falastin, of the Syrian Military Intelligence. After being whipped with cables for days on end, being burned with cigarettes by men threatening his eyes were next, then being shoved into darkness in a dank, rat and insect-infested underground cell barely his size, El Maati agreed to confess to a plot proposed by his interrogators (armed with information from Canada) — that he had planned to blow up Ottawa’s parliament buildings.

That “confession” was used by Cabana’s team to justify search warrants against El Maati’s family, Abdullah Almalki, and other Canadians. When they applied for the search warrants, the RCMP didn’t tell the presiding judge that the confession was likely the product of torture, and therefore entirely unreliable. Nor did they let on that El Maati had ended up in the Syrian gulag because of information provided by the RCMP and CSIS. According to the report of the Iacobucci Inquiry, Cabana said that “while the group realized that the statement was likely not taken pursuant to Canadian standards, Project A-O Canada had no evidence at that time that torture had been used to obtain the statement” (Iacobucci Report, page 139).

His boss, then Superintendent Garry Clement (now Chief of Police in Cobourg, Ontario), said that investigators “had no information that Mr. El Maati had been tortured” when they applied for the search warrants, and that “it would have been wrong to cast aspersions against a country without fist having the facts straight” (page 139).

Justice Iacobucci would, of course, conclude that they knew, or should have known, that torture was likely taking place (page 363).

Cabana was also in charge when the fruits of the searches — detailed business records and a lot of other private, but apparently not incriminating, information obtained while ransacking the men’s families’ homes — were handed over to the Americans, and used by Canadians to write up a new round of questions for El Maati’s Syrian interrogators, and later, a round of questions for Abdullah Almalki.

Cabana also most assuredly knows who in the RCMP has been party to the smear campaign conducted against El Maati, Almalki and Arar in the media— an orchestrated attempt to convince the Canadian public and decision-makers that these men were terrorists. Putting the men on trial in the court of public opinion rather than in a court of law was their only option, of course, because as the Iacobucci Report points out, they simply didn’t have the evidence to back up the allegations and bring charges (to this day none of the men have been charged in Canada). The smear campaign was also, of course, about stopping us from focussing on their crime of complicity in torture — on how Canadian law makers and security officials were thwarting the rule of law by playing an active role in the torture of Canadian citizens.

Fisk is right. The Canadian officials who contributed to the torture of all four of these men must be held accountable in some way. As a first step, Canadians have a right to know where these people are now. Have they all been promoted? Are they still in charge of our public safety? Do any of them feel any remorse whatsoever?

CSIS and the RCMP are due to testify before the Standing Committee on Public Safety and National Security on March 31. I hope Canadians are paying close attention to that hearing, and that the agencies will be asked to account for the whereabouts of those officials whose complicity in the torture of Canadians has now been well documented by not one, but two judicial inquiries.

Committee meetings can be watched in person or on line here.

You can read Fisk’s full column here.

The New York Times is calling on U.S. President Obama to use the opportunity of his visit to Canada to apologize to Maher Arar. “Former President George W. Bush and his aides stubbornly refused to admit the grave injustice done to Mr. Arar,” says the editorial. “President Obama must do better.” It goes further:

Mr. Harper should press the American president on Mr. Arar’s behalf. President Obama can demonstrate his commitment to human rights and the rule of law by addressing Mr. Arar’s case. He should pledge to review the case, including any questions raised by security officials. His administration should also issue a full report on Mr. Arar’s mistreatment, along with an apology, and an offer to compensate him for his injuries. All are long overdue

.
I have a feeling it may be up to President Obama to take the initiative on this one…

The International Commission of Jurists has just released a damning report on how seven years of abusive counter-terrorism measures in countries around the world have seriously compromised the integrity of the international human rights norms and law. The report, called “Assessing Damage, Urging Action” cites the Maher Arar case as “an example of how transnational intelligence should not be happening.” The report calls for the rejection of the “war on terror” paradigm and for a full repudiation of the policies grounded in it and emphasizes that criminal justice systems, not secret intelligence, should be at the heart of the legal response to terrorism.