March 01, 2009

By Justin Podur

On February 20, the Federal Court of Canada dropped most of the conditions it had placed on one of the prisoners of its “security certificate” regime, Adil Charkaoui. While much of his life is still lived in the rights-free zone widened under the “war on terror”, his struggles over the years have won him back some parts of his life. (For the decision see here)

On January 21, 2009, a month before, the new US President had signed an executive order to close the Guantanamo Bay detention centre. Among US politicians debates raged about where the prisoners, still denied any due process rights, were to be imprisoned. Active debates also took place about whether the prisoners, many of whom were captured in Afghanistan by the invading and occupying forces of NATO, were allowed protection under the Geneva Conventions. The Pentagon concluded that US treatment of prisoners there was humane and occurred in accordance with the Geneva Conventions, so no problem. Even after the signing of the executive order, the US still claims the right to define people as “enemy combatants”, to deny them status as prisoners of war (saying they are criminals), and to deny them the rights to evidence and due process in criminal trials (saying that it is, after all, a war).

The US has frequently claimed that it is not subject to international law, and Washington violates it routinely. After 9/11, it added so many additional loopholes to its legal obligations that many of its allies saw an opportunity to do the same. Indeed, allies like Canada were encouraged to do so, in order to better protect US security. This is how Canadian citizen Maher Arar ended up being captured in the United States with Ottawa’s concurrence and handed over to Syria, for 10 months of torture.

The “hope and change” promised by the new US President includes at least an appearance of lawfulness, a less brazen contempt for international law, while allowing the state plenty of room to violate people’s rights. From open lawlessness, the US is currently on the road to hypocrisy, which has been Canada’s policy all along.

A classic example of the Canadian legal loophole is the “security certificate”. This legal mechanism enables Canada to deport any non-citizen suspected of violating human rights, participating in organized crime, or of being a threat to national security. The principle seems to be that if a foreign national is actually a criminal, that foreigner should be his home country’s problem, not Canada’s. If you agree with that principle, then you can debate whether there is sufficient evidence that the suspect is involved in crimes or is a threat to national security. Or you would be able to debate this, if the rules allowed.

The entire security certificate process is based on urgency in placing someone in detention and ignoring due process, followed by a long, dragged out detention. The security certificate is prepared by the Canadian Security Intelligence Service (CSIS), Canada’s intelligence agency (known in Canada for such feats of intelligence as destroying evidence – including in security certificate cases — for funneling funds to white supremacist movements, and losing classified documents at hockey games). From there, the certificate is signed by the Solicitor General, the Minister for Public Safety and the Minister of Citizenship and Immigration. Next it goes to a judge, who reviews the CSIS file. The normal rules of evidence do not apply. Hearsay is admissible. Neither the suspect nor the suspect’s lawyer can see the evidence if the judge decides it’s a matter of “national security” (which isn’t defined anywhere in the Immigrant and Refugee Protection Act governing the certificates). The judge then applies the criterion of whether the certificate is “reasonable”. If deemed “reasonable”, the suspect is detained and ordered removed. The government will deport people even if they are at risk of being tortured or killed.

Detainees can ask for a review, but they remain in detention, sometimes for years, during the review, after which they may be deported just the same. And the single review of the security certificate proceeding cannot be appealed any further, unlike in criminal courts, and unlike in most deportation cases.

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Tags: Adil Charkaoui, CSIS, immigration, Maher Arar, security certificate

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