Khadr ruling(s)
Predictably enough, the Government has appealed Mr. Justice Zinn’s decision last week, which found that the Government needed take further steps to cure its ongoing violation of Omar Khadr’s constitutional rights. It has also requested that the deadlines set out in the Federal Court’s order be suspended pending appeal. As you may recall, Mr. Justice Zinn ordered the Government to provide Mr. Khadr with a list of proposed remedies for his section 7 violation by today. A copy of the Government’s letter to the Federal Court, advising it of its intention to appeal, is available at the Globe and Mail.
Meanwhile, in GTMO this morning, the military judge overseeing Mr. Khadr’s trial by military commission denied his request to represent himself in the hearings. Last week, Mr. Khadr fired his civilian lawyers, and this morning, indicated to military judge Colonel Patrick Parrish that he wished to dismiss his military lawyer as well. (The military commissions process appoints military defence counsel, in addition to permitting civilian representation.) Colonel Parrish refused Mr. Khadr’s request, and refused to relieve Lieutenant-Colonel Jon Jackson as Mr. Khadr’s military counsel. Nonetheless, Mr. Khadr has indicated that he does not intend to give the Lieutenant-Colonel any instructions, calling the entire military commissions process a “sham”.
On this last point, we are in complete agreement with Mr. Khadr — as we’ve said in the past, the military commissions process is a deeply flawed system of adjudication, which is literally making up the rules as it goes along. We simply can’t see how this “trial” can retain any sort of legitimacy at this point, with Mr. Khadr proceeding essentially unrepresented, except by a member of the military in a military court, presided over by a military judge, prosecuted by a military lawyer.
Khadr, cont’d
A fair bit of news about Omar Khadr this week. News outlets reported last evening that Omar Khadr has fired his American civilian attorneys, Barry Coburn and Kobie Flowers, to protest the illegitimacy of the military tribunals where he’s scheduled to be tried next month. The Globe and Mail spoke with Khadr’s Canadian lawyers:
“Omar has lost all hope of a fair trial in Guantanamo, he can see that the trial is rigged,” said Nate Whitling, one of his Canadian lawyers, explaining Mr. Khadr’s decision to dismiss his legal team.
“We tried desperately to talk him out of it,” Mr. Whitling said, adding the Mr. Khadr, 23, was so upset by the pre-trial appearances of interrogators who tortured and abused him after he was captured in 2002 that he chose to cease participating in the tribunals.
[...]
The fired American civilian attorneys, Mr. Coburn and Kobie Flowers, are Mr. Khadr’s third team of defence lawyers in the long and tortuous case. Mr. Khadr “was not mad at them, he knew they were doing a good job for him,” Mr. Whitling said.
The decision to dismiss his lawyers and, apparently, decline to appear in the courtroom reflects Mr. Khadr’s view that the military tribunals are a fraud, Mr. Whitling said.
“What’s the point of defending myself in such a system, it’s a charade,” Mr. Whitling quoted Mr. Khadr as saying.
Dennis Edney, another of Mr. Khadr’s Canadian lawyers said he “is a young man who has lost all faith in the process. We have participated in Canada in numerous legal processes, with numerous victories and yet to date it hasn’t helped force the Canadian government to do anything.’’
Khadr’s decision comes on the heels of a decision issued in Canada’s Federal Court on Monday, which found that the federal government had a continuing obligation to seek a remedy for its violations of Khadr’s Charter rights. As you may recall, in January, the Supreme Court of Canada found that the government had unjustifiably infringed upon Khadr’s s. 7 rights, and so long as he remained in U.S. custody and subject to the military commissions process, the s. 7 violation would be ongoing. The SCC declined to make an order compelling the government to seek Khadr’s repatriation, instead permitting the government to make its own decision as to how best to rectify the constitutional violation.
The government’s response was ineffective, at best, and insulting to the Court and Canadians, at worst. Rather than seeking Khadr’s repatriation, which the SCC found would be a way of curing the s. 7 violation, the government simply issued a diplomatic note to the United States, requesting that it exclude evidence obtained from CSIS interrogations from the case against Khadr. The United States declined to honor that request, and Canada made no further moves to bring itself into compliance with the SCC’s ruling.
Canada’s decision to take no further action to rectify its ongoing violation of Khadr’s s. 7 rights became the subject of judicial review in the Federal Court. Mr. Justice Zinn’s decision is worth reading in its entirety, but the upshot is that the FC found that Khadr is entitled to procedural fairness and natural justice in Canada’s process of determining a remedy for its breach of his s. 7 rights. (Mr. Justice Zinn, by the by, was also the judge who ordered Abousfian Abdelrazik’s repatriation.)
To that end, the government is required to advise Khadr by next Monday of “all untried remedies that it maintains would potentially cure or ameliorate its breach of Mr. Khadr’s Charter rights as has been determined by the Supreme Court of Canada”. In turn, Khadr has 7 days after receiving the government’s advice as to potential remedies to provide his written submissions as to (1) other potential remedies not listed by the government; and (2) his views on the government’s proposed remedies.
Following that, the government is ordered to undertake a “potential curative remedy” as soon as possible, and, importantly:
to continue advancing potential curative remedies until the breach has been cured or all such potential curative remedies have been exhausted, following which it is to advance potential ameliorative remedies until such time as the breach has been reasonably ameliorated or all such remedies have been exhausted.
What this means is that Canada must keep trying to cure the s. 7 breach, and if it should find itself unsuccessful in doing that, then it must take action to ameliorate the s. 7 breach. A powerful decision, though as observers have noted, one very likely to be appealed by the federal government.
Arar v. SCOTUS
Some excellent commentary coming from south of the 49th following the Supreme Court of the United State’s refusal to hear Maher Arar’s appeal of the dismissal of his civil suit against U.S. official complicit in his torture at the hands of the Syrians. (Hat tip to Roch Tasse at the International Civil Liberties Monitoring Group for both of these articles.)
First, a scathing analysis on the conduct of Obama’s Department of Justice, from the always terrific Scott Horton over at Harper’s Magazine. A teaser:
Congratulations are in order to the Obama Justice Department—it seems on the verge of establishing the legal proposition that officers of the American executive are free to torture and commit other heinous crimes with complete impunity.
The New York Times also issued an editorial earlier this week, calling the Supreme Court’s refusal to hear the case “disgraceful” and stating that there is “no excuse for the Obama administration’s conduct” of the case.
Go forth and read!
UPDATE Here’s another good piece of commentary, from Dahlia Lithwick (one of our favourite SCOTUS observers).
Secret documents, secret review
Yesterday, a detainee document agreement was struck between Government and two of three Opposition parties. The “pact” comes a full month and a half after Peter Milliken, Speaker of the House, ordered Government to resolve the disclosure issue. Recall that when Speaker Milliken made his order, he gave the House two weeks to work with Government to devise a system of disclosure, and threatened to find the Government in contempt if no agreement was arrived at by that time. The House apparently didn’t hold Government to this deadline, perhaps with the hope that an agreement allowing for greater access and transparency would be struck, but as it stands now, the document deal is fairly unsatisfying.
The agreement creates an ad hoc committee composed of four members, one each from the four parties. This committee will have access to review, in secret, all of the detainee documents previously requested by Parliament in December 2009, and determine which of these documents can and should be released to the public and other members of Parliament. The agreement also creates a Panel of Arbiters, composed of “three eminent jurists”. While the ad hoc committee seems to hold the final say in what documents are relevant for disclosure, it is the Panel of Arbiters which is responsible for determining whether documents should be protected by national security privilege, attorney client privilege, and Cabinet privilege. And according to the agreement, the decisions of the Panel of Arbiters with respect to disclosure is final and unreviewable. Importantly, this ad hoc committee does not appear to have the power to conduct an actual investigation into the contents of the documents; its role looks to be strictly limited to reviewing the documents for relevance and more general disclosure.
Accordingly, the present agreement is unlikely to get to the heart of the matter. Its snags are serious, and have been criticized not only by the NDP, but also by legal experts who have gone so far as to call the deal “a mess”. The provisions around the “Panel of Arbiters” are one point of concern. This panel of retired judges appears to have the final say on which documents will be released and whether they will be censored or not, but there has been no word about whether their decision-making will be made public. The ban on investigating advice issued by government lawyers as well as internal Cabinet communications is another problematic point given that information about knowledge of torture may well be contained in these files. At the end of the day, the House committee tasked with investigating Canada’s conduct with respect to detainee transfers will only have a limited and censored set of materials to work from.
With the NDP boycotting the investigation, the ad hoc committee will consist only of representatives from the Conservative party, the Liberals, and the Bloc Quebecois.
This latest development in the ongoing struggle for detainee document disclosure serves as a sad reminder of how little has been accomplished since the issue was first brought to the Government’s attention by Amnesty and the BCCLA in 2002. The government has consistently waffled on the question of document disclosure. This has included stymieing efforts by the MPCC to get to the truth, though the Commission’s been hearing from key military officials and members of government since May 2009.
We here at the BCCLA maintain that this issue has been shrouded in secrecy for long enough. A secret review that rests in the hands of a body of retired judges and is subject to the proposed restrictions strikes us as problematic, and inimical to any legitimate truth-seeking. For those reasons, we would reiterate our call for a public inquiry —one where a Commission would have full and complete access to the relevant documents and witnesses.
Where there’s a will…
Today the MPCC heard again from Nicholas Gosselin, who last appeared before the Commission this April. As readers will recall, Gosselin was the DFAIT officer who discovered implements of torture during a site visit and interview conducted in November 2007. Perhaps the most surprising part of Gosselin’s April testimony was the fact he heard eight previously undisclosed (or undisclosed to the MPCC, at any rate) allegations of torture between November 2007 and May 2008. The nature of these allegations were reviewed today, and ranged from threats of sexual abuse and death to physical abuse with cables and sticks.
Shockingly, transfers were resumed in February 2008 despite these allegations. This fact might be less alarming if protective measures increased following the resumption of transfers. It appears, however, that the opposite occurred—the number of interviews with detainees declined markedly after transfers were resumed.
This fact was taken up by the Interim Chair, Glenn Stannard, who stated that he was having a “hard time” understanding why DFAIT would not have done the “same diligence” after the resumption of transfers to ensure the prevention of abuse. He asked Mr. Gosselin if he had received instruction from his superiors not to conduct interviews. Mr. Gosselin responded in the negative, but also stated that were it “his choice”, he would have maintained regular individual interviews. He stated repeatedly that there was a “will” to conduct interviews, but that other efforts, including reconstruction, took precedence.
Perhaps the most tense moment in today’s hearing arose when the Commission suggested that the Canadian public had been misled into believing that site visits, together with individual interviews, were being conducted diligently to ensure that acts of abuse were not ongoing following the resumption of transfers. Commission member Berlinquette stated: “If we were led to believe there were interviews being conducted, and you’re telling us that interviews weren’t, it’s hard for us to understand that.”
Indeed it is.
After the close of Mr. Gosselin’s testimony, the MPCC adjourned. The Commission is not expected to reconvene until the fall, though with the latest squabble over document production, we may see some happenings in the MPCC front over the summer, so stay tuned.
Accountability for U.S. renditions to torture?
Startling (and encouraging?) news from Maher Arar and his lawyers yesterday. Fresh off of the U.S. Supreme Court’s denial of certiorari in Mr. Arar’s appeal from the dismissal of his civil suit against U.S. officials for their role in his rendition and torture in Syria, Mr. Arar and his lawyer Paul Champ revealed that the RCMP has been conducting a four-year investigation called “Project Prism” into possible violations of the Criminal Code by American and Syrian officials participating in Mr. Arar’s rendition.
Maher Arar / Globe and Mail
The Criminal Code prohibits torture of a Canadian citizen inside or outside of Canada, and Canada can exercise personal jurisdiction over foreign officials if their home governments agree to their extradition, or if these officials find themselves physically located in a place where Canada or Interpol can exercise jurisdiction.
According to Mr. Arar, he has co-operated with the RCMP’s investigation and believes that given the U.S. Supreme Court’s refusal to hear his appeal, Canadian prosecution of foreign officials complicit and participating in his torture “is more important than ever.”
Mr. Champ, as per usual, puts it neatly:
The United States has taken the approach of let bygones be bygones but there are hundreds, if not thousands of people around the world who have been tortured as a result of U.S. government policies that have been carried out by individuals. The last time I checked, that was not only a crime but an international crime.
Center for Constitutional Rights Senior Attorney Maria LaHood, the lead lawyer on Mr. Arar’s civil case in the United States, seemed impressed by the RCMP’s initiative. “It takes some amount of courage to stand up to the U.S. government and I give the RCMP Full credit for that,” she said.
We here at the BCCLA National Security Blog are pretty impressed too. Perhaps the Americans and the Syrians will be held to account after all.
UPDATE David Cole, one of Mr. Arar’s US lawyers, has a post up on the NY Review of Books on his thoughts about the Supreme Court’s denial of certiorari.
Top military brass knew of Richard Colvin’s concerns
Today the MPCC is hearing testimony from Gabrielle Duschner, a key link between DFAIT and the Canadian Forces. Ms. Duschner worked for DFAIT as a political advisor to CEFCOM (the Canadian Expeditionary Forces Command), headquarters to Canadian military missions overseas. This morning, she affirmed that there was a general awareness and concern about the treatment of prisoners in Afghan jails prior to April 2007.
Richard Colvin in November 2009 / Toronto Star
But the big story of the morning concerned several May 2007 CEFCOM memos, which had only been recently produced to the MPCC and were put into evidence this morning. As we’ve reported previously, Ms. Duschner was originally scheduled to appear before the MPCC two months ago. Her testimony was delayed at the last minute after the DOJ informed the MPCC that the government had still had not disclosed documents relevant to her testimony. Apparently, these documents included Canadian military memos calling for diplomat Richard Colvin’s dismissal or censure over the frank nature of his reporting on the risk of torture faced by transferred detainees. “Recent messages drafted by Mr. Colvin have illustrated a pattern of reporting that risks compromising Canada’s military and diplomatic position in Afghanistan,” one memo read. According to another memo, “CEFCOM is concerned that [Colvin's] continued employment in Kabul as a political counselor and deputy to the [Head of Mission] could become a liability to the government of Canada’s interests if left unchecked”.
One of the memos was drafted by Mike Carter, a subordinate of Ms. Duschner, who was employed by DFAIT but seconded to CEFCOM. Ms. Duschner had read the memo and recalled “some speculation among staff that [Colvin's] tenure should come to a conclusion.” Nonetheless, Ms. Duschner said that she disagreed with the report’s conclusions.
These memos show that not only was the Canadian military – and those in its very highest levels of command – aware of Mr. Colvin’s warnings, they were deliberately trying to silence them. Indeed, as one memo recommended: “Mr. Colvin be engaged directly in DFAIT and reminded of his responsibilities as a diplomat and boundaries as a reporter”.
UPDATE Prism Magazine is live-streaming the MPCC hearings today and tomorrow. Watch it here.
UPDATE Some more items of interest from Ms. Duschner’s testimony yesterday. Readers may recall that Richard Colvin had testified about an interagency meeting he had attended in Ottawa concerning the detainee issue. Mr. Colvin informed both the MPCC and Parliament that he had told the group that if Canada was concerned about torture, they should stop transferring detainees to Afghan authorities. According to Mr. Colvin, when he made that statement, the notetaker put down her pen and stopped taking notes altogether. It turns out that this notetaker was Ms. Duschner, who informed the MPCC yesterday that she felt justified in putting down her pen because no one else in the room seemed interested in Mr. Colvin’s recommendation on how to stop torture.
Omar Khadr update
As Omar Khadr’s August trial date approaches, his Edmonton lawyers Dennis Edney and Nathan Whitling have applied for judicial review of the government’s actions following the Supreme Court ruling in January 2010 in Khadr v. Canada.
Omar Khadr / Canwest
As readers of these pages will recall, the Supreme Court found that Canadian conduct in this case had violated the principles of fundamental justice, but the Court declined to expressly order the government to seek Mr. Khadr’s repatriation out of concern about overstepping the powers of the executive. It cited evidentiary concerns, the “limitations of the Court’s institutional competence”, and the separation of powers as the basis for the Court’s ruling in favor of declaratory relief.
The government of Canada was thus faced with a Supreme Court judgment that affirmed that it had violated the constitutional rights of one of its citizens, but the government’s only response was to send a diplomatic note to the U.S. requesting that the information collected from Mr. Khadr be disregarded. (We, of course, have maintained that sending a demarche cannot cure the violation of Mr. Khadr’s constitutional rights.)
Mssrs. Edney and Whitling have proceeded to the Federal Court to request a judicial review of the government’s action and whether it was an appropriate response to the Supreme Court’s ruling. As the Ottawa Citizen reports, they have expressed particular concern about the absence of impartiality exercised by the government in handling Mr. Khadr’s case: in refusing to repatriate Mr. Khadr, the government did not appear to engage with the Supreme Court ruling “with an open mind.” Mssrs. Edney and Whitling have also stated that their client was not consulted as to alternative remedies, a basic procedural right.
The request for review is particularly timely in light of the fact that the diplomatic note issued by Minister Rob Nicholson has landed in the hands of a military judge in Guantanamo who is apparently disregarding it. This effectively renders moot Canada’s so-called remedial action, leaving the breach of Mr. Khadr’s constitutional rights ongoing and unremedied.
UPDATE: Maher Arar’s online magazine, Prism, is featuring an online broadcast of an interview with Dennis Edney and Amnesty International’s Alex Neve, discussing Mr. Khadr’s case.
Here we go again
In a move that looks to further obstruct the progress of the MPCC inquiry, the federal government has applied for a judicial review of a summons for documents potentially crucial to the MPCC’s investigation.
The documents at issue are detainee transfer records dating from May 3, 2007 to June 12, 2008. They are believed to contain risk assessments considered by commanders in Afghanistan when decisions to transfer were made. The military is already in the process of gathering these documents, it appears.
The Commission had requested the disclosure of these documents as early as November 2008, but their whereabouts only came to light during BCCLA counsel Paul Champ’s cross-examination of Major Gagnon on April 27, 2010. Major Gagnon revealed that the documents are in Afghanistan, “basically all in a big storage bin all mixed with other administrative” documents. He said it might take “a year or more” to catalogue them. On April 29, the Chair of the Commission issued a summons to Maj. Gagnon to produce the documents.
The government applied for a judicial review of that summons on May 28. This latest move by the government to block access to relevant documents is obviously troubling.
First, it seeks to withhold information from the MPCC that is essential to its inquiry. The MPCC is mandated to investigate what the military police “knew or had the means of knowing” about the risk of torture facing detainees. The government’s argument as to why the MPCC should be denied access to these documents is premised on some rather peculiar reasoning: essentially, the DOJ’s position is that it shouldn’t have to turn over these documents because it’s already concluded that the military police had no means of knowing what was in those documents. But that’s precisely the question the MPCC is supposed to answer, and it needs these materials to determine – as a threshold matter – what information was available to the CF in Afghanistan to begin with.
Second, this application for judicial review will unduly delay an inquiry that has been hampered from its inception by stall tactics. The MPCC hearings were intended as a vigorous inquiry into serious allegations involving Canada’s complicity in torture. Delays like the one represented by this judicial review serve only to divorce the proceedings from the urgent substantive issues they were meant to grapple with.
Challenging the UN Security Council
Today, the BCCLA, in conjunction with the International Civil Liberties Monitoring Group (ICLMG) and Abousfian Abdelrazik, will launch a lawsuit in Federal Court challenging the U.N. Security Council’s anti-terrorism sanctions regime, also known as the “1267 Regime”. The 1267 Regime is designed to limit the rights and freedoms of individuals alleged to have ties with terrorism, and the U.N.’s 1267 Committee maintains a list of such individuals, known as the “1267 List”.
UN Security Council in session / photo: Downing Street
Individuals placed on the 1267 List are subject to, among other things, an asset freeze and an international travel ban. They must petition the U.N. to access their own funds to pay for food and shelter. Individuals are placed on this list without notice, and until recently, could not be told why they were even placed on the list to begin with. Once placed on the 1267 List, individuals have no recourse to judicial – or even independent – review to challenge the listing. Challenges to a listing are reviewed by an ombudsperson appointed by the U.N. – the very body responsible for compiling the 1267 List in the first place.
The 1267 Regime has drawn criticism from Canada’s Federal Court, the United Nations’ own experts, and the European Court of Justice. Earlier this year, the House of Lords struck down the domestic implementation of the 1267 Regime in the United Kingdom, criticizing the lack of an effective judicial remedy against a listing by the UN’s 1267 Committee. In March, the Swiss Parliament issued a resolution declaring that Switzerland should not longer participate in the 1267 sanctions regime, as it currently exists.
Abousfian Abdelrazik, a party in this lawsuit, remains the only Canadian citizen on the 1267 List, despite the fact that both the Canadian Security Intelligence Service and the Royal Canadian Mounted Police have cleared him of involvement in any criminal activities. Mr. Abdelrazik was listed on July 31, 2006.
Since his listing, Mr. Abdelrazik has been subjected to an asset freeze at the direction of the Canadian government. He has had difficulty finding employment because potential employers would have to petition the United Nations for permission to pay his wages. Recently, the Canadian government attempted to invoke his status on the 1267 List as justification for denial of his Charter rights to return home to Canada; ultimately, the Federal Court rejected Canada’s position and ordered Mr. Abdelrazik’s repatriation.
The 1267 Regime is implemented in Canada through the United Nations Al-Qaida and Taliban Regulations, SOR/99-444. Section 2 of the United Nations Act, R.S.C. 1985, c. U-2, permits the Governor in Council to make orders or regulations to implement measures requested by the U.N. Security Council. The requirements set out in Security Council Resolution 1267 and other related Security Council Resolutions are implemented into Canadian law via regulations issued by Order in Council; these regulations are known collectively as the United Nations Al-Qaida and Taliban Regulations.
We are seeking declarations that the United Nations Al-Qaida and Taliban Regulations are of no force and effect based on the following grounds:
- That they are ultra vires of (that is, outside the rule-making authority granted by) the United Nations Act;
- That they violate freedom of association as protected by section 2(d) of the Charter;
- That they violate the rights to liberty and security of the person under section 7 of the Charter in a manner that does not accord with the principles of fundamental justice; and
- That they violate sections 1(a) and 2(e) of the Canadian Bill of Rights – the right to enjoyment of property and not to be deprived thereof except in accordance with due process of law.
