UPDATE on Secret Trial Detainee Adil Charkaoui
CSIS destroys evidence;
MPs come forward to offer Bail for Charkaoui;
Judge says he is concerned by the timing of new secret hearing;
BUT the court theatre continues ...
20 January 2005
MONTREAL -- On 11 January, secret trial detainee Adil Charkaoui's fourth attempt for conditional release on bail took a surprise turn when CSIS admitted that it had destroyed evidence in the case.
Adil's three previous bids for conditional release on bail had failed, in legal decisions which reversed the principle of innocent until proven guilty. But he prepared for his fourth bail hearing with high hopes. During Adil's last court appearance, Federal Court Judge Simon Noel stated that he would release Adil if he simply declared his innocence in court. Adil decided to take him up on the offer.
He prepared to testify for the first time. And he took a polygraph test. Questions on whether Adil had ever participated in a terrorist training camp, had ever been or was now a member of a terrorist network, and whether he had ever planned to commit a crime with members of Al Qaeda were posed. In each case, the polygraph showed his negative answer to be truthful - NO! Without knowing the precise charges or having knowledge of the secret evidence against him, Adil cleared himself on broad concerns to cover all possibilities.
Finally, he turned to the growing community of people who have been speaking out against discriminatory secret trials. Among others, Warren Allmand (former President of Rights and Democracy, former Solicitor General of Canada), Flora MacDonald (former Foreign Minister, Immigration Minister, etc.), NDP MP Alexa McDonough, Bloc MP Meili Faille (immigration critic for the Bloc), Monia Mazigh (activist and wife of Maher Arar), CUPW President Deborah Bourque, PQ MNA Louise Harel, PQ MNA Daniel Turp, Murray Thomson (Order of Canada), renowned theologian Gregory Baum, film-producers Brian McKenna and Martin Duckworth, comedian Pascale Montpetit, and UFP activist Amir Khadir have come forward to offer Adil bail, as well as a former professor of Adil's, family members and other friends and community members who feel strongly that security certificates are unjust and that Adil should be released.
Then CSIS took steps. On 5 January, they met in a secret session with Judge Noel, during which they apparently brought in two more nameless witnesses to speak to the judge. Neither Adil's lawyer nor Adil were allowed to be present to hear what was being said about him. They are not allowed to know who the witnesses were and so cannot cross-examine them.
A public summary of the secrets was made available to Charkaoui's lawyer on 6 January, just days before the hearing.
It appears to contain little more than allegations which were broadcast by media in April 2004. The Coalition for Justice for Adil Charkaoui organized a press conference to respond to those allegations eight months ago. They seem to rely on two articles which appeared in Aujourd'hui le maroc, a Moroccan newspaper without a great deal of credibility (see, for example, the press release by Reporters sans frontieres concerning a lawsuit brought against the paper by a Spanish journalist (www.rsf.org/article.php3?id_article=9954).
The public summary states that it includes 95% of what was presented to the judge and appears to be based almost entirely on newspaper articles. Judged by the standards of serious research, it does not impress. Judged by the standards of the impact that it has on someone's life, it is frightening. After reading it, it is hard not to conclude that CSIS has chosen the abusive security certificate process rather than criminal proceedings because it simply has no case against Adil which would stand up to a fair trial with normal standards of evidence.
The only new aspect appears to be a brief paragraph apparently summarizing interviews held with Adil in 2002. Adil has been trying to get the transcripts of these interviews from CSIS since he was arrested.
Judge Noel expressed his concern about the timing of CSIS's latest injection of secret information. Noel called the manner of proceeding "inappropriate" and questioned why the crown had chosen to release a summary of interviews which took place in 2002 now, just before the results of Adil's polygraph test were to be presented in court. He noted that a "cynic" might find the timing suspect especially since the one-paragraph public summary of interviews says that Adil left an interview before taking a polygraph test. Indeed. This is not the first time that CSIS's timing has seemed strategic.
According to a Canadian Press (CP) report, Charkaoui's lawyer, Dominique Larochelle, told the court that Charkaoui had provided CSIS with a detailed rebuttal of the allegations against him during those interviews. But when Larochelle requested the transcripts of the interviews, she was informed that CSIS had destroyed the notes and only the classified summary remained. CP quotes her as telling Judge Noel, "I would warn you to be cautious about the information that you have in your possession," referring to the classified text on which the public paragraph is based, which neither she nor Adil are allowed to see. "Were they (the interviews) conducted in a context of intimidation?" Given the track record of the spy agency CSIS, it would not be surprising if, indeed, they were. But the court will never have conclusive evidence of this, because records of the interviews have been destroyed by CSIS.
There are concerns that CSIS may be providing the judge with one-sided evidence. The revelation that the transcripts of these interviews have been destroyed are an indication that these concerns are well-founded. But because of the lack of due process in security certificates, Adil has no recourse. He cannot counter or give his side of the story in direct response to misrepresentations made behind his back. If he takes the stand to testify, he will be doing so without knowing what has been said about him; that is, without knowing the claims which will give the immediate context to how his remarks will be interpreted by the judge. It is a process that is wide open to abuse. And there is absolutely no reason to believe that CSIS has not taken advantage of this opportunity - quite the contrary, as its latest steps indicate.
After learning that the notes of the interviews had been destroyed by the spy agency, Larochelle, a criminal lawyer accustomed to normal judicial proceedings which would certainly preclude the destruction of evidence, prepared a motion that the certificate be quashed and/or Adil be conditionally released as an interim remedy. The motion had a potentially broad impact on all CSIS cases. Her arguments were heard on 18 January. Returning after lunch, Judge Noel rejected Larochelle's motion. Despite his warning last week that Adil should not testify because it might be prejudicial, given the new secret hearing, this time Judge Noel strongly urged Adil to testify, regardless of the biased process. The written decision will come out in the next few weeks.
So Adil - who has never ceased to maintain his innocence - spent another Kurban in arbitrary detention, separated from his family and his beloved children. And CSIS continues at large, terrorizing Muslim, Arab and other targetted communities.
The bail hearing will resume on 7 and 8 February. For the third or fourth time, Adil has asked if he can cross-examine Ahmed Ressam, the famous "millennium bomber", who CSIS claims has recognized him in a photo. (The judge has decided to suspend taking into account the other person who is supposed to have recognized Adil, Abu Zubaydah, because of widespread reports that he was under torture in US custody.) Contrary to normal legal practice, Larochelle will have to prepare a special request to ask the Minister to provide contact information for Ressam, since of course his whereabouts are secret.
Once again, we are calling on members of the community to come to court to show your opposition to this parody of justice, this show-trial process which only applies to people born outside Canada; and, by curious coincidence, seems to target people from the region that is the object of intense intervention by the US and its Canadian allies. Your continued support and engagement is critical to ensuring that justice is eventually secured for Adil and the other four Muslim men who have been imprisoned under this secret trial process, and to challenging discrimination, arbitrary detention and secret trials in this time of war.
Other forms of support are also very much appreciated - please get in touch if you can help in other ways.
After the bail hearing, the court has scheduled a hearing on the reasonability of the security certificate from 21 to 25 February. Adil has asked to delay that hearing, given January's revelations.
(Adil Charkaoui is one of five Muslim men who are being held without charge under a "security certificate," a discriminatory measure which applies only to non-citizens: Mohammad Mahjoub (married, with three children, held since June, 2000); Mahmoud Jaballah (married, with six children, held since August 2001); Hassan Almrei (single, held since Oct. 2001); Mohamed Harkat (married, held since December 2002); Adil Charkaoui (married, with two children, held since May 2003). According to Amnesty International, all of their lives are at risk if deported from Canada.)
(In related developments, we await word on the security certificate for Mohamed Harkat, which could come down any day now. Meantime, there are three significant court cases being considered right now which deal with the illegality of Canada's attempts to deport Mssrs. Jaballah, Mahjoub and Almrei to torture. Two related cases deal with the constutionality of the indeifnite incarceration of Mahjoub and Almrei, with decisions expected sometime late winter or early spring)
Coalition for Justice for Adil Charkaoui
tel. 514 859 9023
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