Kerry Pither

If he were, we might be able to believe that he’s been holding back on issuing a formal apology to Maher Arar — as called for by the New York Times on the day Obama came to Canada — because the case was before the courts.

If he were, he’d read today’s decision by the US Supreme Court and immediately move to ensure his administration public takes responsibility for its role in sending Arar to be tortured, and invite him to the White House for a formal and public in-person apology.

And if he were, he’d use the occasion to announce the launch of a full-scale independent and public inquiry into all the other Arars — into the role the CIA and FBI and other US agencies have been, and still are playing, in the rendition, detention and torture of so many others since 9/11.

I, for one, won’t be holding my breath.

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.”

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 head of CSIS, Jim Judd, says that veteran CSIS advisor Geoffrey O’Brian was wrong when he told the commons committee on public safety on Tuesday that CSIS will use information obtained under torture. Testifying today before the same committee, Judd said O’Brian would be recanting his statement in a letter.

I think O’Brian, who has been with CSIS since the eighties and helped draft the CSIS Act, was chosen to represent the agency and provide two hours of testimony on these issues on Tuesday precisely because he knows what he is talking about.

The Iacobucci Inquiry found that CSIS repeatedly used information that the agency knew, or ought to have known was likely the product of torture – that CSIS (and the RCMP) received a “confession” extracted under torture from Ahmad El Maati in November 2001, then crafted a new set of questions to send back to El Maati’s Syrian interrogators in an attempt to “corroborate” the confession. The confession itself was then used by the RCMP to justify search warrants and telephone taps here in Canada. Information obtained through the searches was used to write up new questions for overseas interrogators to ask not just El Maati, but Abdullah Almalki too.

Judd, the RCMP witness and Public Safety Minister Van Loan also repeatedly refused to use the opportunity of appearing before the committee today to apologize for their agencies’ complicity in the torture of El Maati, Almalki and Nureddin, citing outstanding litigation by the men. This is a sorry excuse – parliamentary privilege is extended to anyone appearing before committee – nothing said there can be used in any legal proceeding.

That Judd is refusing to show even the slightest sign of remorse about CSIS’ role in what happened to these men demonstrates that Judd, and his agency, don’t think there’s anything to be sorry about — that there’s anything wrong with contributing to torture, or using its product.

According to yesterday’s testimony before the Standing Committee on Public Safety and National Security by CSIS lawyer Geoffrey O’Brian, CSIS continues to believe that information obtained under torture can be useful, and will use it in certain situations. “The simple truth is, if we get information which can prevent something like the Air India bombing, the Twin Towers – whatever, frankly – that is the time when we will use it despite the provenance of that information,” O’Brian told committee members. The Committee is hearing testimony on the findings and recommendations of the Arar Inquiry, and on the findings of the Iacobucci Inquiry, which determined that Canadian information sharing contributed to the detention and torture of Canadian citizens. Public Safety Minister Van Loan testifies tomorrow. While he is not appearing specifically to address this issue, it is likely he’ll be asked about it. I sure know what I’d ask him if I were on the Committee.

I’d like to know if the minister agrees that when intelligence agencies refuse to reject information obtained under torture they are encouraging more torture, and in essence maintaining a market for it.

I’d also know if the minister agrees that given that information obtained under torture has repeatedly and conclusively been demonstrated to be unreliable, that making use of it in any fashion in our intelligence work gives rise to a very real risk of creating a security risk.

Most importantly, I’d like to hear him commit to immediately issuing a Ministerial Directive prohibiting the use of information obtained under torture by any Canadian agency.

Ahmad El Maati’s case best illustrates CSIS’ use of tortured information. El Maati was detained and tortured in Syria after CSIS shared information with foreign agencies that inaccurately characterized him as being an “Islamic extremist” linked to “an aide of Osama Bin Laden.” The Iacobucci Inquiry has determined that this mislabeling likely contributed to El Maati’s detention and torture.

A couple of months later, on November 19, 2001, CSIS and the RCMP received El Maati’s so-called confession, extracted, we now know, through torture. CSIS and RCMP officials, incredibly, repeatedly told the Inquiry that at the time they had no evidence that Syria used torture, so didn’t consider that the confession might be the product of torture. Indeed, CSIS decided to try to corroborate the “confession” by sending more questions to be asked of El Maati by his torturers (see Iacobucci Report, page 364). Justice Iacobucci finds that these actions by both CSIS and the RCMP officials were deficient because they knew, or should have known about torture in Syria, and because their actions likely contributed to Mr. El Maati’s torture.

Meanwhile the RCMP used the so-called “confession” to justify search warrants conducted here in Canada in January 2002, without informing the presiding judge that the confession was likely the product of torture (see Iacobucci report, page 379). The information obtained through those searches, in turn, was sent to U.S. agencies, and that information was used to interrogate Mr. El Maati (using electric shock, among other methods) in Egypt. The information obtained in the searches also informed questions sent by the RCMP to Abdullah Almalki’s Syrian interrogators once he had been detained. Justice Iacobucci, of course, finds that sharing these questions was deficient, and contributed to both men’s torture.

The Arar Report’s eleventh recommendation calls on CSIS to “review their policies governing the circumstances in which they supply information to foreign governments with questionable human rights records.” It says that “information should never be supplied to a foreign country where there is a credible risk that it will cause or contribute to the use of torture. Policies should include specific directions aimed at eliminating any possible Canadian complicity in torture, avoiding the risk of other human rights abuses and ensuring accountability” (Arar Report, Analysis and Recommendations, page 345).

Justice O’Connor adds that “in every case, including those involving terrorism-related investigations, Canadian authorities should consider the justifications for and proportionality of any potential involvement with foreign governments that may result in human rights violations. There should be no blanket exception for terrorism-related investigations” (Arar Report, page 347).

Recommendation 15 says that “Canadian agencies should accept information from countries with questionable human rights records only after proper consideration of human rights implications.”

Justice O’Connor’s fifth recommendation calls for ministerial directives to be publicly issued to provide guidance for national security investigations, given the very grave implications of these investigations.

Indeed, another ministerial directive is long overdue. After the Arar Inquiry’s recommendations were released in September of 2006, Justice Iacobucci heard testimony from CSIS about another very disturbing ongoing practice. In May 2003, when the Egyptians were considering releasing Mr. El Maati, Justice Iacobucci finds that CSIS sent a memo to the Egyptians warning them not to release him. That memo, Justice Iacobucci finds, likely prolonged Mr. El Maati’s detention and put him at further risk of torture, especially because it contained a new, “inflammatory” allegation about Mr. El Maati –Justice Iacobucci says he could find no evidence to justify the new allegation.

When CSIS was asked about this new allegation at the inquiry, CSIS officials said they had labeled Mr. El Maati in this way just to see what the Egyptians would say in return – it was a sort of test to see if the Egyptians – the people torturing Mr. El Maati – agreed (Iacobucci report, page 181)!

Justice Iacobucci says in his report, on page 352, that “the evidence from CSIS witnesses was that there are no guidelines or policies about how people are described in communications with foreign agencies” and that one CSIS witness told the Inquiry that “the Service will characterize an individual, at least in part, to prompt a response from the receiving agency that will confirm or deny the assessment that the characterization reflects” (Iacobucci Report, page 352). Justice Iacobucci finds that “this is a very dangerous practice, one that puts the person labeled in this manner at risk, and increases the possibility that inaccurate information will be treated as credible” (page 352).

Dangerous indeed.

The CSIS official was describing an ongoing practice and lack of policy when providing evidence to the Iacobucci Inquiry, so this was occurring AFTER the release of the Arar Inquiry’s recommendations, and in direct defiance of Justice O’Connor’s 11th recommendation.

Justice Iacobucci says “It appears to me to be desirable that the Service have a clear policy concerning the manner in which people are described in communications with foreign agencies. This policy should not only extend to the use of appropriate qualifiers…but also the use of labels” (page 352).

I agree. Clearly we need a ministerial directive ensuring that CSIS develops a clear policy containing standards governing the use of labels in communications with foreign agencies.

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…

The Iacobucci Inquiry’s report is very good news for Ahmad El Maati, Abdullah Almalki, and Muayyed Nureddin, and very bad news for the government, CSIS and the RCMP. It details how Canadian agencies’ allegations against the men were were ”inaccurate,” “inflammatory,” and “without investigative foundation,” and the many ways in which these agencies were complicit in their torture.

While former Supreme Court Justice Frank Iacobucci uses the term “indirect” to describe Canadian officials’ responsibility for detention and torture in his report, he explains that by indirect, he means that he cannot rule out the possibility that someone else was involved. So Canadian officials were “indirectly” responsible for the men’s torture in Syria (ie., by supplying questions) they weren’t actually wielding the whips and cables used to torture them. To say they were “directly” complicit, or responsible, he says, he would have had to rule out any possibility that anyone else was involved.

The government did its best to minimize the damage yesterday, waiting until late Monday night to tell journalists, and the men and their counsel, when the report would be released, and giving everyone one hour to read it before responding. Then Public Safety Minister Stockwell Day toured every media studio in town, trying to revive allegations against the men by pointing to claims made by the Attorney General in closing submissions to the Inquiry. He neglected to mention that Justice Iacobucci did not accept those arguments.

Read the report, not the submissions, Minister Day, then issue a formal apology to these men.

More to come soon.

While the public waits for answers about Canadian complicity in the overseas detention and torture of El Maati, Almalki and Nureddin, startling evidence is emerging about Canadian complicity in the detention and torture of yet another Canadian, Abousfian Abdelrazik, in Sudan.

It should come as no surprise that the Canadian government is blocking his return to Canada.

According to just-released testimony by Sean Robertson, a senior foreign affairs official, the Harper government was presented with evidence that Abdelrazik was tortured in Sudanese prisons after being imprisoned there at Canada’s request.

Robertson testified that when Deepak Obhrai, Canada’s junior foreign minister, travelled to Khartoum to question Abdelrazik last March, Abdelrazik said he’d been whipped with cables and lifted his shirt to show the scars still evident more than two years later.  

Predictably, Obhrai isn’t taking calls from the Globe and Mail’s Paul Koring, who wanted to know what, if anything, Obhrai and other government officials, did about it.

In a story in Saturday’s Globe and Mail, Koring writes: