Extraordinary assistance

The CBC is reporting today that U.S. flight logs show Canadian involvement in CIA extraordinary rendition flights:

Reprieve, based in London, said a chartered plane long suspected of transferring prisoners repeatedly stopped in Gander, central Newfoundland, on its way to Afghanistan from Guantanamo Bay in 2004.

In the United States, “extraordinary rendition” was used to apprehend and detain foreign nationals suspected of involvement in terrorism. The practice, as described by the ACLU:

The suspect would be arrested and secretly transferred to prisons run by foreign intelligence agencies in countries known to torture, or to CIA-run “black sites.” Once detained, these men experienced unspeakable horrors — often kept in squalid conditions, many of them faced interrogation under torture, including waterboarding, electrocutions, beatings, extreme isolation, and psychological torture.

Maher Arar is the most famous Canadian victim of the extraordinary rendition program. Based on faulty intelligence provided by the Canadian government, the United States arrested and detained him during a stopover at a New York airport, and delivered him to torture in Syria.

Maher Arar, like other extraordinary rendition victims, was forcibly disappeared via a private flight chartered by the CIA. And according to the evidence obtained by Reprieve, some of these rendition flights stopped in Canada before continuing on to CIA black sites in Lithuania. As reported by the CBC:

“The evidence suggests that Canada, by virtue of its location, was a very vital, logistical point for the extraordinary renditions program. That is evidence more and more clearly as time goes on,” said Crofton Black, who is with Reprieve.

Black said that’s verified by flight logs provided by the FAA, one of the 28 aviation authorities that received an access to information request from Reprieve.

This evidence of Canadian involvement in the CIA’s extraordinary rendition program is enormously important.

Torture and enforced disappearance are crimes under international law. And international law makes clear that states can be held responsible for aiding and assisting other states in their violations of international law, if they know that their aid and assistance is facilitating the misconduct. What that means here is if Canada was aware that the planes at issue were part of the CIA’s extraordinary rendition program (which were delivering individuals to enforced disappearance, torture or other ill-treatment), Canada should not have allowed its territory to be used to facilitate these flights.

There have long been concerns about Canadian complicity in facilitating rendition flights. In 2005, Amnesty International Canada wrote to then-Minister of Transport Jean Lapierre requesting information, following media reports that rendition flights were landing in Newfoundland. Receiving no response, Amnesty then followed up in January 2006 with then-Minister of Public Safety Anne McLellan. But as Alex Neve, Secretary General of Amnesty International Canada, told the CBC today:

“We could not get a clear answer at all, including, whether or not Canada was specifically reviewing these flights with Canada’s specific human rights obligations in mind. We couldn’t even get confirmation about that.”

As Amnesty noted in 2006, the Canadian response to these concerns was distressingly subdued. Unfortunately, not much has changed in the intervening years. While the Council of Europe has conducted inquiries into alleged CIA activities in Europe, and a number of European states have investigated the role of their own government officials in assisting the CIA’s rendition program, no similar inquiries have taken place in Canada.

Canada needs to clarify what has happened here, or risk being itself accused of violations of international law. This is not an academic concern: in the face of continued American refusal to provide a proper accounting for the CIA’s extraordinary rendition program, groups such as the Open Society Justice Initiative have launched litigation against states thought to be complicit in the CIA’s activities.

The CIA’s extraordinary rendition program represents some of the worst excesses of the “global war on terror.” In light of this most recent report of potential complicity, Canadians need to know what role — if any — their government played in facilitating renditions.


A lifetime of suspicion

Yet another story has emerged in the wake of the recent WikiLeaks disclosures illustrating how Canada shares intelligence on Canadian citizens and residents with the United States. In today’s Globe and Mail, Colin Freeze reports on the story of one man who, by mere association with a terrorism suspect, was reported as a potential terrorist to American authorities, and found himself on foreign watch lists.

According to the G&M, “Ali” was designated as an associate of the “number one” terrorism suspect in Canada based on nothing more than friendship. It does not appear that there was any evidence that Ali himself was engaged in any criminal conduct, or even suspected of planning to engage in criminal conduct. Ali claims that he had no knowledge of his friend’s links to terror. If that is true, then Canada’s only justification for informing the Americans that Ali was a terrorist threat is that he happened to be friends with an individual he didn’t even know was involved in terrorist activities.

Indeed, as the G&M reports:

In recent months, [Ali] and his wife have arranged repeated meetings with CSIS and RCMP officials in hopes of clearing his name. The counterterrorism agents, they say, admit they broadcast suspicions based on association, and even expressed regret they wasted valuable “legwork” on Ali. Still, they insist they had valid reasons for investigating at the time and that there’s not much they can do to clear his name abroad.

The consequences of this — as it turned out, faulty — designation are set out in Colin Freeze’s article, which is worth reading in its entirety. As yet, they don’t rise to the horror of what was faced by Maher Arar, but it shouldn’t come to that for Canadians to be concerned about how citizens and residents are being branded as terrorist threats. As the example of Ali shows, mere association is enough to cast a lifetime of suspicion over you and your family.

An aside. An important thing to note about the publicly-available version of these WikiLeaks cables: many of the names are redacted, and for good reason. (Only select news organizations have full, unredacted copies of the communications.) Many of the individuals on these cables have yet to be publicly charged, prosecuted, or convicted of any crime in Canada or anywhere else. It appears that the only names left unredacted in the publicly-released cables are ones already known to the public — perhaps an effort on WikiLeaks’ part to protect individuals like “Ali” from further prejudice. You can view the public version of these cables via the following links:

http://wikileaks.ch/cable/2009/10/09OTTAWA768.html

http://wikileaks.ch/cable/2010/02/10OTTAWA57.html

http://wikileaks.ch/cable/2010/02/10OTTAWA79.html


“Once you give the name to the Americans, that’s the end of the game.”

This week, Neil Macdonald at the CBC has been reporting on WikiLeaks cables illustrating how Canada shares intelligence on Canadian citizens and residents with the United States. That CSIS routinely shares intelligence with the U.S. should come as a surprise to no one, of course. That CSIS provides details to the U.S. with names and personal details of Canadians “suspected” of what CSIS refers to as “terrorist-related activity” should perhaps also not be too surprising, either, given what we learned during the Arar Inquiry and other similar proceedings. What is surprising — and alarming — is how little evidence of wrongdoing, or even suspected wrongdoing, is required before a Canadian is named a terrorist threat. As the CBC reports:

The criteria used to turn over the names are secret, as is the process itself.

But a new cache of WikiLeaks documents pertaining to Canada lays bare the practice. It contains not only frank assessments by U.S. officials of Canadian co-operation, but the names of 27 Canadian citizens turned over by their own government as possible threats, along with 14 other names of foreign nationals living in Canada.

In at least some cases, the people in the cables appear to have been named as potential terrorists solely based on their associations with other suspects, rather than any actions or hard evidence.

Of the 41 people named, 21 do not appear to have ever been charged, and some had never come to the attention of the Americans before being named by their own government. Most of the remaining 20 names comprise the group known as the Toronto 18. Some of that group were charged and convicted; others had charges against them stayed.

The cables are a snapshot of periods in 2009 and 2010. Over the years, the number of names handed over is certainly much higher.

The experience of Maher Arar has taught us of the terrible consequences that can flow from cavalier designations of individuals as terrorist threats. Acting on faulty intelligence supplied by the RCMP, the United States arrested, interrogated, and renditioned Arar to Syria, where he was tortured. The Arar Commission ultimately found that the actions of Canadian authorities led to his mistreatment at the hands of the Americans, and recommended that strict limitations be placed on how information about Canadians is shared with foreign governments. This recommendation has yet to be implemented, and indeed, as the Council of Canadians points out, the Canadian government is actually working to increase the flow of personal information from Canada to U.S. government databases.

But as Paul Cavalluzzo, lead counsel for the Arar Commission, told the CBC, “Once you give the name to the Americans, that’s the end of the game.”

And the process for naming, as reported by the CBC, is distressingly faulty:

… as Cavalluzzo points out, the process is secret, with no judicial oversight, and takes place without the knowledge of the individual being “targeted.”

“It certainly doesn’t meet any criteria of due process in the sense that the individual has no representation whatever. Don’t tell me there’s a devil’s advocate. That and a dollar will get you a cup of coffee.”

And nor, does it seem, there be any requirement of evidence that the named individual has actually engaged in criminal conduct or is even suspected of engaging in criminal conduct. As we’ve said before in these pages, the anti-terrorism laws in Canada’s criminal code are breathtakingly broad in scope, and offences run the gamut from “facilitation” and “harbouring” to conspiracy, threats to commit a terrorist act, and to the actual terrorist act itself. Without even a requirement of reasonable suspicion to commit any sort of criminal offence, individuals can be deemed terrorist threats and their names provided to the U.S. government.

As if all this wasn’t troubling enough, the CBC reports today that one of the individuals named in the cables as a potential terrorist is Mubin Shaikh,  a Canadian citizen and CSIS operative whose testimony was critical in securing convictions in the Toronto 18 terrorism trials. As Neil Macdonald points out, Shaikh’s inclusion on this list can only really mean two things.

The first is that the listing process employed by CSIS is seriously flawed, and resulted in the incorrect designation of a Crown agent as a terrorism suspect, exposing him to all of the attendant consequences flowing from being named a potential terrorist.

The second is that Shaikh’s inclusion on the list is not a mistake, and that the Canadian government did legitimately suspect him to be involved in terrorist activities. In which case, the question becomes why this information was not provided to the defendants in the Toronto 18 trials, where Shaikh’s evidence was crucial to the Crown’s case. Indeed, this is the question that counsel for the defendants are asking now, and demanding that the government answer. As reported in the CBC:

“It was his evidence that took them all down,” Alberta lawyer Dennis Edney told CBC Wednesday night. Edney represented Fahim Ahman, a ringleader who eventually pleaded guilty and remains in prison.

“Most of the warrants for wiretaps that were obtained were obtained as a result of conversations he had with the suspects.”

“It takes your breath away,” said Mitchell Chernovsky, a lawyer who represented another of the Toronto 18. “It rings alarm bells all over the place.”

Both Chernovsky and Edney said they would probably make formal demands to the Crown, asking why they were not told of whatever information led CSIS to denounce Shaikh to the Americans. Defence counsel are legally entitled to disclosure of all such information, in order to prepare their cases.

And these cables likely represent just a small sampling of the names provided to the Americans in recent years. The number of names provided is likely to be much higher than the 41 reported in the WikiLeaks cables, so it’s unclear how many more cases like Shaikh’s there are. Given the extreme secrecy of intelligence sharing, it’s also impossible to know whether adequate safeguards are in place to ensure that there are controls over the use of personal information by foreign governments.  What is clear is that some true accountability mechanism must be available to ensure that individuals are not branded as terrorists and their personal information disclosed to foreign governments without any limitations. So far, however, CSIS isn’t responding to CBC’s request for comment on its stories, and it isn’t providing the public with any real answers either, so it remains unclear whether — and how — the rights and security of Canadians are being protected.

ETA: National security expert Wesley Wark provides his views on the implications of Shaikh’s listing in the Ottawa Citizen.


Can a bad reason be better than no reason at all?

Over the weekend, the New York Times, National Public Radio, and the UK’s Guardian released hundreds of documents profiling past and current detainees at Guantanamo Bay. These materials are part of the thousands of documents that Bradley Manning allegedly provided to WikiLeaks. In the wake of these disclosures, Canadian media is reporting that Khadr

continued “to provide valuable information” to U.S. military interrogators at the detention centre in Guantanamo Bay nearly two years after he was captured in Afghanistan, according to a classified 2004 document . . .

According to the memo, Khadr, only 17 at the time the document was produced, provided details of “high intelligence value to the United States,” which was cited as a reason for his “continued detention.”

Lest you think that this “revelation” should somehow serve to justify Khadr’s detention, there are several things to keep in mind. First, as Khadr’s lawyer Dennis Edney points out:
“He was (15) when he was first arrested -what is his value?” he asked. “It’s very clear that evidence obtained in Guantanamo Bay is tainted – it’s unreliable.”
Second, intelligence can get stale very quickly. So setting aside the question of what sort of “high value” intelligence a teenager is capable of supplying, there remains the issue of how reliable and useful dated intelligence — information gathered years after the detainee has been held in virtual isolation — can possibly be.
Third, taken in their entirety, these recent disclosures actually demonstrate how unjustifiable many of the prolonged detentions were. The intelligence relied upon by analysts and interrogators was itself flawed, and oftentimes the product of torture. The proffered reasons for holding many individuals seemed threadbare at best. As reported by the Guardian:

The files depict a system often focused less on containing dangerous terrorists or enemy fighters, than on extracting intelligence. Among inmates who proved harmless were an 89-year-old Afghan villager, suffering from senile dementia, and a 14-year-old boy who had been an innocent kidnap victim.

The old man was transported to Cuba to interrogate him about “suspicious phone numbers” found in his compound. The 14-year-old was shipped out merely because of “his possible knowledge of Taliban…local leaders”

The documents also reveal [that] US authorities relied heavily on information obtained from a small number of detainees under torture. They continued to maintain this testimony was reliable even after admitting that the prisoners who provided it had been mistreated.

And as the ACLU points out:

There is a lot of information in these documents that is of great value to the public, but keep in mind that they’re all government documents, and only give one side of the story. The best way for the public to learn the government’s justification for its actions would have been, and still is, for the government to present the evidence in a federal court of law.

Perhaps the best take-away from all this is the following analysis from The New Yorker’s Amy Davidson:
Here are some of the reasons we’ve held people at Guantánamo, according to files obtained by WikiLeaks and, then, by several news organizations: A sharecropper because he was familiar with mountain passes; an Afghan “because of his general knowledge of activities in the areas of Khost and Kabul based as a result of his frequent travels through the region as a taxi driver”; an Uzbek because he could talk about his country’s intelligence service, and a Bahraini about his country’s royal family (both of those nations are American allies); an eighty-nine year old man, who was suffering from dementia, to explain documents that he said were his son’s; an imam, to speculate on what worshippers at his mosque were up to; a cameraman for Al Jazeera, to detail its operations; a British man, who had been a captive of the Taliban, because “he was expected to have knowledge of Taliban treatment of prisoners and interrogation tactics”; Taliban conscripts, so they could explain Taliban conscription techniques; a fourteen-year-old named Naqib Ullah, described in his file as a “kidnap victim,” who might know about the Taliban men who kidnapped him. (Ullah spent a year in the prison.)
Our reasons, in short, do not always really involve a belief that a prisoner is dangerous to us or has committed some crime; sometimes (and this is more debased) we mostly think we might find him useful.

In solitary

While the BCCLA National Security Blog usually limits itself to commentary on Canadian conduct, we think it’s worth discussing the detention of Bradley Manning, the U.S. army private accused of leaking classified information to WikiLeaks.

Manning — who has yet to be convicted of any crime — has been in solitary confinement at Quantico since August 2010. As described by Salon’s Glenn Greenwald:

For 23 out of 24 hours every day he sits completely alone in his cell.  Even inside his cell, his activities are heavily restricted; he’s barred even from exercising and is under constant surveillance to enforce those restrictions.  For reasons that appear completely punitive, he’s being denied many of the most basic attributes of civilized imprisonment, including even a pillow or sheets for his bed (he is not and never has been on suicide watch).

Until March of this year, Manning was forced to sleep every night in nothing but his boxer shorts. At the beginning of March, Quantico ordered that Manning be forced to sleep completely naked, and be subjected to a daily morning inspection where he is required to stand outside his cell, naked. As  The New York Times observed this week,

Forced nudity is a classic humiliation technique. During the early years of the Bush administration’s war on terror, C.I.A. interrogators regularly stripped prisoners to break down barriers of resistance, increase compliance and extract information. One C.I.A. report from 2004 said that nudity, along with sleep deprivation and dietary manipulation, was used to create a mind-set in which the prisoner “learns to perceive and value his personal welfare, comfort and immediate needs more than the information he is protecting.”

The U.S. government claims that Manning must be held in such conditions to protect national security and his own safety. Yet, as The Times reports:

Military officials say, without explanation, that these precautions are necessary to prevent Private Manning from injuring himself. They have put him on “prevention of injury” watch, yet his lawyers say there is no indication that he is suicidal and the military has not placed him on a suicide watch. (He apparently made a sarcastic comment about suicide.)

All of this is nothing short of appalling. It is well-documented that prolonged solitary confinement, such as the sort experienced by Manning, has devastating psychological effects. The U.N. Committee Against Torture has called for its abolition. It has been described by international bodies as constituting a breach of the anti-torture principle. Indeed, Manning’s lawyers have reported that military doctors are dosing him with anti-depressants in order to help maintain his psychological integrity.

The issue of prolonged solitary confinement has been much on our minds here at the BCCLA. Two weeks ago, we launched a constitutional challenge against the use of long-term, indefinite solitary confinement in Canadian prisons. Like Manning, prisoners in Canadian penitentiaries are all too often subjected to long-term isolation. They too are kept in their cells for up to 23 hours a day, with no meaningful human interaction, for months or years at a time.

A recent article by Howard Sapers, the Correctional Investigator of Canada, reported that during fiscal year 2008-09, there were, on average, approximately 904 individuals in solitary confinement in Canadian prisons, on any given day. A snapshot on April 12, 2009, shows that almost 37 percent of those in solitary confinement had spent over 60 days there. These numbers are alarming, given that the total number of prisoners living in institutions with solitary confinement units is less than 10,000.

The conditions of Manning’s detention are shocking, but the brutality of solitary confinement is something experienced by too many Canadian prisoners, as well. To learn more about solitary confinement, we recommend this excellent article from The New Yorker, by surgeon and journalist Atul Gawande. To learn more about solitary confinement in Canada and the BCCLA’s advocacy, take a look at our special section on solitary confinement at the BCCLA’s website.


Back from hiatus! (briefly)

So one of our readers pointed out recently that the National Security Blog’s long overdue for an update, and he’s absolutely right, especially given the things we’ve been up to recently.

  • In November, hearings resumed at the Military Police Complaints Commission on the transfer of Afghan detainees to risk of torture.  The Commission heard testimony from all of the subjects of the complaint — the senior members of the Military Police who would have had responsibility to ensure adequate investigations into whether the Canadian Forces were properly transferring detainees to Afghan authorities.  Cross-examination of these witnesses was conducted by our pro bono counsel Paul Champ, BCCLA Litigation Director Grace Pastine, and BCCLA Counsel Carmen Cheung.  The evidence we heard was distressing:  again and again, senior members of the Canadian Forces Military Police informed the Commission that they never initiated meaningful investigations into the transfers, despite the fact that transfers had to be halted following one of many reports of detainee abuse by the Afghans.  One witness even told the Commission that he didn’t know which country the CF was transferring to.  We’ll be back in Ottawa and before the Commission in early February, as it hears final submissions from all of the parties.
  • While Grace and Carmen were at the MPCC, BCCLA Policy Director Micheal Vonn was down the street, testifying before the Standing Committee on Transport at the House of Commons on Bill C-42 and the US Secure Flight Program, and our concerns about the imposition of a foreign blacklist on Canadian soil.

Some things we’re keeping our eye on too, in the coming months:

  • The Federal Court’s three decisions concerning Mohamed Harkat, one of the remaining individuals subject to the federal government’s deeply troubling security certificates regime.  In its rulings, the Federal Court approved the reasonableness of the security certificate against Harkat, which permits the government to maintain Harkat’s virtual house arrest.  It also affirmed the constitutionality of the new security certificate regime, which was modified following the Supreme Court of Canada’s ruling in an earlier case involving Adil Charkaoui, whose own security certificate was eventually struck down.
  • The Standing Committee on Public Safety and National Security started hearings this week on Bill C-17, which seeks to reintroduce into the Criminal Code so-called anti-terrorism legislation permitting investigative hearings and preventative detention without charge.  The BCCLA is on the Committee’s list of witnesses; hearings on the measure are expected to resume following Parliament’s holiday recess.

And speaking of holiday recesses, the National Security Blog will be back in the new year with our updates and commentary, so we’ll see you then.


Omar Khadr: Waiting for answers

The BCCLA National Security team has covered Omar Khadr’s continuing ordeal extensively over the past year, from Canadian courts to Guantanamo Bay. After weeks of rumours and speculation, the Guantanamo show trial will finally wrap up. Omar Khadr has pled guilty.

The fix had been in for years. No matter what, Khadr was likely going to be found guilty. He would be guilty of crimes that probably are not crimes outside of Guantanamo on the basis of evidence that would not be allowed as evidence outside of Guantanamo.

Khadr was 15 when he was first detained. He is now 24, and has been held in Guantanamo for over one third of his young life. With the guilty plea, he chose to get out of Guantanamo, maybe even return to Canada, before he turns 40. He may get to have an adult life. Without the guilty plea, he would have been kept in Guantanamo for a lot longer, at least until he was an old man, and perhaps until he died.

The military tribunal is not concluded, but has instead moved to a sentencing phase. The jury will come to a sentence to compare against the one in the plea agreement, and Mr. Khadr will serve the lower of the two.

So far, that sentencing phase has been an ugly spectacle. Perhaps the lowest moment came when an anti-Muslim psychologist gave evidence that, even if Mr. Khadr was not a threat when he was first brought into Guantanamo, he had spent years “marinating in a radical jihadist community” in the prison and had become too dangerous to be released.

While the tribunal may be winding down, this is not the end of the Khadr story. We are still not sure exactly what he has pleaded guilty to. We are not sure where he will serve his sentence, or how long that sentence will be. We are not sure what actions the Government of Canada will take to remedy his Charter rights, as required by the Supreme Court of Canada. So far Foreign Affairs Minister Lawrence Cannon has continued to do what he has done all along—nothing at all.

What we are sure of is that almost everyone—the Government of Canada, the United States, his own parents—have failed Mr. Khadr terribly. History will not judge us kindly.