Coalition Justice for Adil Charkaoui, 25 April 2007

The statement below was released by the Coalition Justice for Adil Charkaoui in Ottawa on 25 April 2007. The call for a review was supported in the press conference by Bill Siksay (NDP), Meili Faille (Bloc Quebecois) and Mr. Andrew Telegdi (Liberal), as well as the Muslim Council of Montreal, CAIR-CAN, the International Civil Liberties Monitoring Group and the Ligue des droits et libertés.

The Coalition Justice for Adil Charkaoui is calling on Public Safety Minister Stockwell Day and Immigration Minister Diane Finley to conduct a fair and transparent review of the security certificate that was issued against Adil Charkaoui in May 2003.

Mr. Charkaoui spent almost two years in prison (from May 2003 to February 2005) and has spent a further two years under conditions that Amnesty International has qualified as "among the most restrictive ever imposed in Canada" (Amnesty, February 2006) and that affect the freedom of his entire family.

The security certificate against Mr. Charkaoui - signed in May 2003 by then Immigration Minister Denis Coderre and Solicitor-General Wayne Easter – has never been upheld by any court. Mr. Charkaoui's case has been suspended since March 2005 when the government was forced to withdraw a key decision on the risk Charkaoui faces if deported to Morocco.

In February 2007, the Supreme Court found the security certificate regime itself to be unconstitutional, striking down sections 33 and 77 to 85 of the Immigration and Refugee Protection Act.

With the latest revelation that Ahmed Ressam's information against Charkaoui was fabricated, the government must not delay in opening a review of Mr. Charkaoui's file. Specifically, the Coalition is asking that the certificate issued against Mr. Charkaoui be withdrawn, the conditions imposed on him be lifted, and that his name be cleared of all suspicion. The Minister has the power to act at any time to rectify this injustice under administrative law, and also by virtue of articles 25 and 34 (2) of the Immigration and Refugee Protection Act.

THE UNRAVELLING CASE

What is known of the case against Adil Charkaoui rests largely on information apparently provided by three individuals to the Canadian Security Intelligence Service (CSIS).
 
Ahmed Ressam

Charkaoui and his lawyers have sought to cross-examine Ressam since his name was first published in connection with Charkaoui's security certificate file in August 2003. Government lawyers opposed the cross-examination, finally admitting that no affidavit (sworn testimony) from Ressam existed.

Ressam was held in the United States under an unusual arrangement whereby his prison sentence would be lessened in exchange for information during a period of four years. Convicted in 2001, Ressam was not sentenced until 2005.

In March 2005, Charkaoui submitted evidence in court that threw further doubt on the credibility of information sourced to Ressam. A Montreal arrest warrant indicated that Ressam was in Montreal on 18 June 1998. However, in a US district court hearing in 2001 (US District Court, Southern District of New York, USA v. Mohktar Haouari), Ressam had testified that he was in Afghanistan in a training camp from end of April 1998 for five or six months. This not only raised questions about the kind of information CSIS was relying on, but about CSIS's failure to have produced this same, easily-obtained evidence.

Finally, Ahmed Ressam stated in a letter published by the Journal de Montréal on 20 April 2007 that information he provided against Charkaoui was false: "What I said to the investigators ... was not true ... I was confonted with difficult psychological circumstances, I did not know what I was saying."
 
Abu Zubaydah
 
Abu Zubaydah was named as having provided information against Charkaoui in a public summary released by the Federal Court in August 2003.

In 2004, the Federal Court agreed to set aside information from Abu Zubaydah in Charkaoui's file in light of testimony and reports that Zubaydah had been tortured while in US custody in Afghanistan and later held in a secret site with no oversight or accountability (for example, Human Rights Watch, "The United States' 'Disappeared': The CIA's Long-Term 'Ghost Detainees", October 2004). Abu Zubaydah has recently surfaced in Guantanamo Bay (Globe and Mail, 17 April 2007).

In the case of Mohamed Harkat, the Federal Court likewise decided not to rely on information sourced to Abu Zubaydah in March 2005, again citing the possibility of torture.

A book, published in summer 2006, cited former FBI and CIA agents as saying that Abu Zubaydah was not only tortured, but also mentally unwell (Ron Suskind, The One Per Cent Doctrine). Significantly, official doubts about the reliability of Zubaydah's information pre-dated the arrests of both Harkat and Charkaoui.

On 6 September 2006, US President George Bush, in an extraordinary admission about CIA-operated secret prisons, used Abu Zubaydah as the poster boy of what Bush described as "an alternative set of procedures" to encourage suspects not to "resist interrogation". Bush stated, "Zubaydah was questioned using these procedures, and soon he began to provide information ... ".

Noureddine Nafiaâ

Information about Nafiaâ - the third informer named in Charkaoui's case - was given to the Federal Court by CSIS in a secret hearing in January 2005. The judge released a public summary of this information, stating that it contained 95% of what was in the secret report. The public summary appears to be based on two newspaper articles, both of which appeared in a Moroccan paper called Aujourd'hui le Maroc in April 2004. However, another Moroccan daily, At-Tajdid, reported in April 2004 that Nafiaâ was on hungerstrike in Moroccan prison, denying all links to terrorism and saying that he had been tortured.

A February 2004 report on Morocco's counter-terrorism programme by the International Federation for Human Rights (FIDH) describes detainees being forced, under torture, to sign a pre-written confession (www.fidh.org). Human Rights Watch stated in a letter that detainees in Morocco were not being allowed to challenge confessions they said had been produced under torture (March 2004).

In February 2005, shortly after Mr. Charkaoui was released from prison, Radio Canada made public a letter from Noureddine Nafiaâ, who is in prison in Morocco, stating that he had signed his 'confession' blind-folded and under torture, and had later recanted. This confession was cited by Aujourd'hui le Maroc as the basis of their report.

Thus all of the informants that the judge has disclosed to Charkaoui and to the public have been discredited, and in ways which make it difficult to retain confidence in CSIS's case.

The original public summary provided to the public at the time of Charkaoui's arrest relied on profiling of the crudest sort: Charkaoui had visited Pakistan; he practices Karate; he integrated into Quebec society by opening a pizzeria, going to university and getting married; and he knows many people in the Montreal's Muslim community, some of whom are of interest to CSIS.

Finally, in January 2005, government lawyers revealed that CSIS had destroyed evidence used in the case, notes of interviews conducted with Charkaoui in 2002. All that remains is a summary. The notes were destroyed under CSIS’s policy of systematically destroying records of interviews. The situation raises serious concerns about the accuracy of the secret evidence before the court; because notes of interviews are destroyed, no independent verification is possible by the Judge. The destruction of evidence opens the door to bias, distortion, errors of interpretation or decontextualization. The Security Intelligence Review Committee (SIRC), the government agency established to provide oversight of CSIS, has repeatedly asked CSIS to keep records of its interviews, but CSIS has not followed this advice. In March 2007, the Supreme Court agreed to hear an appeal relating to the destruction of evidence in Charkaoui’s case. The Supreme Court will hear the appeal in January 2008.

A spokesperson for Minister Day stated on 25 April, in response to the Ressam revelation, that the government had other 'sources' supporting allegations against Charkaoui. Based on what has come to light about all publicly known information, it is difficult to accept this assertion. The government must stop hiding behind the shield of secrecy and either show what it has - or re-open the file with a view towards withdrawing the certificate.

THE DISCREDITED SECURITY CERTIFICATE REGIME

Ressam's retraction illustrates that the usual rules of justice should apply in a judicial process with such grave consequences for an individual, including loss of reputation and of liberty. It confirms the validity of the Supreme Court's conclusion that the security certificate regime violates the Canadian Charter of Rights and Freedoms.

A security certificate is part of the immmigration system. Under the current legislation - which the Supreme Court has left in place for another year – a certificate may be issued against a permanent resident or refugee or non-status person who is suspected of being inadmissible on grounds of "national security" (Immigration and Refugee Protection Act, 77).

The certificate is issued by the Minister of Immigration and the Minister of Public Safety on the recommendation of CSIS and on the basis of evidence supplied by CSIS.

Under the current legislation, a Federal Court judge reviews the certificate in a process which severely constrains the judge's discretionary power. The government only has to prove that its case against the person is 'reasonable ', which is a far lower standard of evidence than in a normal criminal trial, where the Crown must prove guilt beyond a reasonable doubt. Part or all of the evidence on which the judge bases his decision can be presented by the government in a closed hearing from which the person and his lawyer are excluded. Neither the person detained, nor his lawyer, are allowed access to the evidence submitted to the judge. The detainee therefore has very few means of contradicting or questioning this evidence, which includes hearsay and information from foreign intelligence services which may have been obtained under torture. In the Arar case, such 'evidence' was found to be worthless; in the case of the 24 'Project Thread' detainees (arrested in Toronto in 2003), it was exposed as the product of racial profiling. Finally, there are no precise charges laid, and key terms such as "terrorism", "national security", and "membership" are not defined in the law.

The person named in a certificate thus finds himself in the impossible position of having to prove that it is not reasonable to believe that, for example, he "was, is or will be engaged in terrorism [undefined]; and posed, poses or will pose a danger to the security of Canada" - all without having access to the case being presented against him, and in a context where being a practising Muslim may very well be viewed as suspect from the outset.

There is no appeal in a security certificate process: "The determination of the judge is final and may not be appealed or judicially reviewed" (Immigration and Refugee Protection Act, 80(3)). Once the certificate is found "reasonable" by a single Federal Court Judge, the certificate automatically becomes a deportation order which cannot be appealed: "it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing" (Immigration and Refugee Protection Act, 81(b)).

Amnesty International, Human Rights Watch, the Canadian Bar Association, legal academics, expert United Nations human rights bodies such as the Human Rights Committee (2 November 2005, CCPR/C/CAN/CO/5), the Committee against Torture (May 2005, CAT/C/CO/34/CAN), and the Working Group on Arbitrary Detention (5 December 2005, E/CN.4/2006/7/Add.2) have all expressed concern that the security certificate process fails to meet international standards governing detention and fair trials. They have repeatedly called on Canada to reform its legislation and policy on security certificates.

Charkaoui's constitutional challenge to the process was heard by the Supreme Court in June 2006. In February 2007, the Supreme Court ruled that the certificate process violated sections 7, 9 and 10 of the Canadian Charter of Rights and Freedoms, and struck down the law (sections 33 and 77 to 85 of the Immigration and Refugee Protection Act).

However, the government has announced that it is considering introducing new security certificate legislation. One alternative under consideration is the introduction of a government-appointed special advocate, cleared by CSIS, who would have access to the secret information but be prevented from disclosing it to his or her client or to the public. It is unlikely that a special advocate would have allowed the information about the Ressam retraction to have come out publicly. More generally, this reform fails to meet a broad range of concerns about the certificate, particularly the equal treatment of non-citizens.

PLAYING A DIRTY GAME

While it is the security certificate legislation which provides the context for error and abuse to occur, including the introduction of evidence from unreliable sources, the role that CSIS has played in Charkaoui's case is troubling.

CSIS is not supposed to be a police force, building a case against an individual. It is supposed to provide an impartial threat assessment. In Charkaoui's case, at least, the agency appears to have crossed a line, by introducing partial, questionnable and even unlawfully obtained information.

FOUR YEARS IS ENOUGH

Mr. Charkaoui spent nearly two years in Rivières-des-Prairies prison without charge. Since his release, for an undefined, indefinite period of time, he has had to wear a GPS-tracking bracelet; he must be accompanied by a court-appointed supervisor every time he leaves his home; has a curfew; cannot leave the island of Montreal; is forbidden from using the internet, any computer but the one in his home, cell phones, and any telephone but the one in his home; and has a range of other conditions imposed on him. The conditions are humiliating, stressful and restrictive on Charkaoui and his entire family, seriously limiting their ability to work and enjoy leisure activity.

For four years, Charkaoui's family has been living in a state of complete uncertainty and fear, under a threat of deportation. As in the other four security certificate cases, it is clear that deportation carries a risk of torture. This was confirmed by Immigration Canada itself in a pre-removal risk assessment carried out in August 2003, but withheld from Charkaoui until April 2004: "... there exists a probability of torture, of threat to life, and of being subject to cruel and unusual treatment or sentence if he returns to Morocco."

Four years without charge, under an unconstitutional process, on the basis of evidence that lacks all credibility, is far too long. It is time for the Ministers to act.