Dope Sheet Column – May 18, 2005

DOPE SHEET COLUMN May 18, 2005 CSIS-TURNING A BLIND EYE TO TORTURE In December 2002 Mohamed Harkat was arrested on a Security Certificate issued under Section 77 of the Immigration and Refugee Protection Act. Since that time Mr. Harkat has been detained at the Ottawa Detention Centre. Madam Justice Eleanor Dawson, of the Federal Court, under Section 80 of the Immigration and Refugee Protection Act conducted the proceedings to determine whether the certificate signed by the two Ministers was “reasonable”. On March 22nd, 2005 Justice Dawson found that the certificate was reasonable. The result of that decision is that Mr. Harkat is now subject to removal from Canada. He remains in jail while we await the decision of the Minister’s Delegate on whether Mr. Harkat should be returned to his home country, Algeria. Submissions have been made to Canada Border Services, based on two reports from experts on Algeria, that Mr. Harkat should not be returned to Algeria because he is likely to be tortured or killed in that country. In this article I do not propose to review any aspect of the case, other than the issue of how CSIS deals with evidence obtained by torture. In all security certificate cases, after the Judge has reviewed the matter, the person concerned receives a document entitled “Statement Summarizing the Information and Evidence Pursuant to Section 78(h) of the Immigration and Refugee Protection Act (IRPA)”. In Mr. Harkat’s case, leaving aside the supporting documents, the summary was made up of 42 paragraphs spread out over 17 pages. Under a heading entitled “Harkat’s Links with the Bin Laden Network”, at paragraph 39 the following appears: 39. The Service believes that HARKAT has associated with Abu Zubaida, one of Osama Bin Laden’s top lieutenants since the early 1990’s. Abu Zubaida was recently captured in Pakistan and has been reported to be cooperative with the United States authorities. When I took over this case from Rocco Galati and Bruce Engel in June of 2004 the first thing I did was argue two appeals that they have filed in the Federal Court of Appeal. After losing those appeals I then drafted a 25 page letter to James Mathieson, Counsel for the Canadian Security Intelligence Service (CSIS). The letter contained 231 questions and was sent pursuant to an order Justice Dawson had made on July 29th, 2003. Concerning Abu Zubaida, the letter contained the following: In paragraph 32, reference is made to Abu Zubaida. When I first read the sentence in that paragraph “Abu Zubaida was recently captured in Pakistan and has been reported to be cooperative with the United States authorities”, I thought it was likely that the term “reported to be cooperative” meant that Abu Zubaida was being tortured by US personal or by the persons assisting the U.S. government in extracting information from Mr. Zubaida. On June 28th, 2004 the attached article appeared in the Globe and Mail. That article makes reference to a memo that suggested that the White House condoned the use of torture. I would point out the portion at the bottom of the second column of the article: “The White House has since disavowed the memo, which sprang specifically from an internal debate in Washington about how to extract information from Abu Zubaydah, one of Osama Bin Laden’s top deputies, after his capture in April, 2002”. Also attached is an article “A Tortured Debate” from the June 21 Newsweek magazine. That article makes reference to a legal memo prompted by CIA questions about what to do with Abu Zubaydah. The memo, prepared by the Justice Department’s Office of Legal Counsel defends most interrogation methods short of severe, intentionally inflicted pain and permanent damage. I also posed the following questions concerning Abu Zubaydah (the American spelling of his name). The Memorandum referred to in those articles is what became known as the Alberto Gonzalez’ Memorandum. There will be more on that Memorandum later in this article. In regard to paragraph 39, would you please provide me with details of any association between my client and Abu Zubaydah? (#51) Would you please advise Justice Dawson of all evidence in the possession of the Service that establishes that association? (#52) Please provide her with the transcripts of the interrogation of Abu Zubaydah. (#53) Those transcripts should allow her to ascertain if the interrogators put my client’s name to Abu Zubaydah or if he came up with the name. Did Canadian security authorities provide my client’s name to the Americans before Zubaydah was interrogated? (#54) In paragraph 39 you indicate the Service believes there is an association between my client and Abu Zubaydah. Would you please advise Justice Dawson of the training and expertise of those members of the Service who came to that conclusion. (#55) As with all other correspondence sent to James Mathieson, the Counsel for CSIS, a copy of the correspondence was sent to the Federal Court and Justice Dawson. All of the correspondence became part of the Record in the case. On July 16th, 2004 in relation to the issue of the torture of Abu Zubaida I sent to Mr. Mathieson (and to the Court) a copy of the document dated August 1st, 2002 entitled Memorandum for Alberto R. Gonzales, Counsel to the President. I had obtained that document from the Arar inquiry. The Memorandum was written by Jay S. Bybee, Assistant Attorney General and runs on for a terrifying 46 pages. Mr. Bybee was in the Office of Legal Counsel of the U.S. Department of Justice. The Memorandum deals with the standards of conduct under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. The complete Memorandum can be obtained from the Arar Commission. Their website is: http://www.ararcommission.ca/eng/. In the Summary portion of the Definition of Torture at page 13 the following appears: Each component of the definition (of torture) emphasizes that torture is not the mere infliction of pain or suffering on another, but is instead a step well removed. The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result. The Memorandum for Alberto Gonzales was written in relation to how the Americans or their proxies should deal with Abu Zubaida. New York Times Article June 27, 2004 On July 23rd, 2004 I received from Mr. Mathieson the Summary in relation to Abu Zubaida which was issued by the Court in April 2003. The three-line Summary, which is all we ever received concerning whatever Abu Zubaida had said about my client, reads as follows: A foreign agency advised the Service in March 2003 that Abu ZUBAIDA was able to identify the respondent (HARKAT) by his physical description and his activities, including that he operated a guesthouse in Peshawar, Pakistan in the mid 1990s for mujahedeen travelling to Chechnya. In regard to the issue of torture of Abu Zubaida, in his letter of July 23rd, 2004 Mr. Mathieson said as follows: As you can see, we are therefore relying upon information which originates with Mr. ZUBAIDA. However, you appear to making certain assumptions in your correspondence with respect to Mr. ZUBAIDA. Your assumptions do not appear to be supported by reliable evidence. I would not necessarily categorize a media report from the Internet, or the European or North American media as constituting reliable evidence of torture. On July 24th, 2004 I sent an e-mail to Mr. Mathieson. The relevant portion of the e-mail was as follows: I acknowledge receipt of your fax dated July 23 and the three line summary re a “foreign agency” advising the Service of information obtain from Abu Zubaida. Given the media coverage about the capture of Abu Zubaida I am amazed that the Service does not state they got the information from the Americans. I want to see specifically what the American extracted from Abu Zubaida. If you won’t show it to me show it to Justice Dawson. I presume from the summary that Abu Zubaida did not identify Mr. Harkat by name. How do the Americans link whatever they extracted from Abu Zubaida to my client. It appears that the information from Abu Zubaida does not place whomever he identified as having been in Afghanistan. What evidence does the Service have that places my client in Afghanistan. What disturbs me the most about what you sent me is that you say my “assumptions (about the torture of Abu Zubaida) do not appear to be supported by reliable evidence”. Does the Service and do you take the position that the Americans and their proxies did not and do not torture prisoners. Did you read the Memo for Alberto Gonzales that I sent you? I would be prepared to match Mark Hosenball for reliability on American human rights and Geneva Convention violations and intelligence information against any CSIS operative you care to put up. Whether Justice Dawson will choose Hosenball over your person remains to be seen. Are you prepared to go to the U.S. and take Commission Evidence as to whether Abu Zubaida was tortured? On August 3rd, 2004 I sent a letter to Mr. Mathieson (with a copy to the Court). The portion of the letter relating to Abu Zubaida reads as follows: Abu Zubaida Based on what you said in your letter of July 23rd, 2004 it appears to me that it will be necessary for me to try and prove to the court that Abu Zubaida was tortured by, to use your words, “a foreign agency”. The three-line summary that was issued by the court in April 2003 is, to say the least, extremely brief. Please provide to me or to Justice Dawson the following information: 1. The full and complete report received by “a foreign agency” that in any way relates to my client. 2. Please provide to me or to the court the physical description given of the person that your Service identifies as Harkat. 3. Please advise me or the court of the exact date that Abu Zubaida specified when reference is made to the mid 1990’s. You of course are aware that my client came to Canada in 1995. Please advise me or the court the manner by which the physical description given by Abu Zubaida is connected with my client’s name. Did the Service specifically request the Americans or the Pakistanis to question Abu Zubaida about my client? Did the Service provide a physical description of my client? Comments relating to Abu Zubaida appeared in Chapter 6 of the 9/11 Commission Report. That Chapter was sent to Mr. Mathieson and the Court. That Chapter makes links between Abu Zubaida and Ahmed Ressam, the Millennium bomber. A memorandum was prepared for an August 3rd, 2004 conference call with the Court. Among the issues that I said needed discussion in the conference call were the following: 4. Whether the information obtained from Abu Zubaida was obtained under torture. Because of the nature of these proceedings, it is unlikely that counsel for Mr. Harkat will be allowed to cross-examine any witnesses or to learn the details of what information was provided by Abu Zubaida. It is our position that the information obtained from Abu Zubaida, if it actually identifies Mr. Harkat, should be given little or no weight if the information was obtained under torture. 5. If we are going to have to litigate the circumstances in which the information was obtained from Abu Zubaida, counsel will need to contact Mark Hosenball, and to gather information from the Centre for Constitutional Rights in New York City. The Centre has been the lead legal organization in regard to the treatment of prisoners post September 11th. The Centre was involved in recent cases in the Supreme Court of the United States involving prisoners detained at Guantanamo, Cuba and detained as enemy combatants in the United States. On August 10th, 2004 Mr. Mathieson, in response to the matter raised in the telephone conference said the following: If the Court is of the view that your allegations with respect to the treatment of Abu Zubaida are relevant to that issue, then you have the discretion to call whatever evidence you have to support your allegations. In October 2004 we provided to CSIS and to the Court extracts from a Human Rights Watch Report Briefing paper entitled “The United States’ Disappeared: The CIA’s Long Term ‘Ghost Detainees’”. That paper is available on the Human Rights Watch website: http://www.hrw.org/. As well we filed a declaration from Steven Watt, who was then working for the Centre for Constitutional Rights in New York (CCR). The CCR has been involved at the forefront of all of the work in the United States concerning human rights abuses post September 11, including cases in the Supreme Court of the United States regarding the treatment of prisoners at Guantanamo and the treatment of enemy combatants, the lawsuit on behalf of Maher Arar and lawsuits filed on behalf immigrants rounded up, arbitrarily detained and mistreated by the FBI and U.S. Immigration and Naturalization Services post September 11th, 2001. Mr. Watt concluded his declaration by saying that: It is clear that detainees in U.S. custody and control in Afghanistan, Guantanamo and other undisclosed locations, including Abu Zubaydah have been subject to a regime of treatment including interrogations, which constitutes cruel, inhuman, or degrading treatment and, in many instances, torture. In December we argued the issue of the admissibility of the evidence of Abu Zubaida. For that hearing we filed with the Court all of the material noted above. I also filed with the Court the transcript of the evidence from the Arar inquiry of former CSIS Director Ward Elcock. Mr. Elcock testified on the 21st and 22nd of June 2004. The transcript of that testimony is available on the Arar inquiry website. On five occasions during the course of his cross-examination by Lorne Waldman, counsel for Mr. Arar, Mr. Elcock declined or avoided answering the question as to whether Syria is a country that engages in torture. At page 233 of the Transcript from June 21st, 2004 a sample of Mr. Elcok’s testimony: MR. WALDMAN: I just looked at the Website of the Department of State and you said you are familiar with that, the Human Rights Reports. Very quickly and cursorily I saw that Saudi Arabia, Syria, Jordan, India, Sri Lanka, Tunisia, Libya, Pakstan, Kazakhstan and Afghanistan all are countries for which the Department of State has identified they use torture in order to interrogate people. Do we have information-sharing agreements with any of the countries? I am not asking you to specify which ones, but with some of them? MS. McISAAC (Counsel for the government of Canada): Again, Mr. Chairman, that is the question that elicits information over which the Attorney General claims national security confidentiality. MR. WALDMAN: Do we have information-sharing agreements with countries that engage in torture? Can you answer that question? MR. ELCOCK: The think the problem is that I don’t know what countries necessarily engage in torture. There are certainly allegations that certain countries do, but I have no independent knowledge in most cases that any country has engaged in torture. Clearly that information, if we have information from reports such as Amnesty International, the State Department, or any information we may have independently that indicates that generally speaking or on occasion a service does use torture, then that will have clear implications for the way in which we assess the information. MR. WALDMAN: Are you telling me that if the Department of State of the United States and its Human Rights Reports says that these countries engage in torture, you are still going to say “I’m not sure that they do”?. Is that your position? Is your position then that “I am going to close my eyes to torture until I see the person putting the electric cattle prods on the individual”? Is that your position sir? MR. ELCOCK: I didn’t say that was my position at all. I just said that — MR. WALDMAN: You just said that. I thought you just said that. You said that “I don’t know if these countries engage in torture. I read the reports”. I asked you if you read the Department of State report and you said “I did”. Do you believe that Syria engages in torture, sir? MR. ELCOCK: The fact of those reports is simply that they allege that Syria or other countries use torture. That is not necessarily – – MR. WALDMAN: I am asking you if – – THE COMMISSIONER: Mr. Waldman, do let him finish. Let him finish the answer and then you can ask the next question. MR. WALDMAN: I am just asking you – I’m not asking you whether — THE COMMISSIONER: He was – – MR. WALDMAN: I am asking you a personal question, sir, what your opinion is, which is highly relevant. As a Director of CSIS, do you believe that Syria engages in torture, having read the Department of State reports; a simple yes or no? MR. ELCOCK: I have seen the reports. I can suspect that Syrian may engage in torture. I have no confirmation of that one way or the other. MR. WALDMAN: I am not asking a confirmation. I am asking you your belief based upon the reports, the Amnesty International, the Special Rapporteur on Torture from the United Nations, the Department of State, they all say that Syria engages in torture in interrogation of people. I’m asking you whether you believe that Syria engages in torture. It is a simple yes or no question. Are you going to give it to me? MR. ELCOCK: It is not a simple yes or no question. MR. WALDMAN: Why not? Why isn’t your belief – – MR. ELCOCK: Because all of those documents simply provide conclusions. I have no knowledge as to the background of those documents, the evidence that they rely on or anything else. MR. WALDMAN: This is really – – MR. ELCOCK: So I can’t make any conclusion on the basis of those documents, except that they provide an indicator to us that some services may indeed use torture. MR. WALDMAN: Okay. This is really fascinating. You just have spent the whole day telling us about how intelligence operations work. You put together little pieces of a puzzle and you reach a conclusion. Isn’t that correct? MR. ELCOCK: Yes. MR. WALDMAN: At a certain point you form an opinion that something is happening. Is that correct? MR. ELCOCK: That’s true. MR. WALDMAN: So I am asking you a simple question: You have read these documents, you know how these services work, you know the societies, I’m asking you to put the pieces of the puzzle together and to give me an opinion. Does Syria engage in torture, yes or no? Why can you do it with respect to Sunni extremists, or whatever, as you identify them, or other people, but you are not willing to do it about a foreign State from whom you receive information? MR. ELCOCK: The reality of our investigations is – – MR. WALDMAN: Sorry. I don’t want to interrupt you. MR. ELCOCK: We carry out investigations of individuals and/or of people who may be regarded as a threat to the security of Canada. At the end of the day, the issue of whether or not a service indulges in torture or not is something we can investigate, it is something simply on which we can collect enough information in order to be in a position to assess the quality of that service, the reliability of that service, whether or not they do use torture in their investigations, and whether or not we should be alive to those possibilities in receiving any information from any service like that if we had a relationship with such a service. MR. WALDMAN: But at the end of the day isn’t it highly relevant that you form an opinion as to whether a particular service engages in torture so that you can determine the reliability of the information of that service? MR. ELCOCK: It is not necessary that I necessarily form that opinion. It may be that it will be crucial in terms of the exchange of information that those who make the decisions on a day-to-day basis to send information have that and that we have worked with the Department of Foreign Affairs to make sure we have a view of those issues. MR. WALDMAN: But aren’t you the person who is responsible for determining whether or not we get into arrangements? Didn’t you just testify earlier today that it was your responsibility to decide whether we get into arrangements and you are the one who made the ultimate decision? MR. ELCOCK: In terms of entering into an arrangement the Minister has ultimately to consent to those arrangements and I make that recommendation to the Minister. MR. WALDMAN: So you don’t think it is relevant in the context of that that you form an opinion as to whether a State engages in torture when you advise the Minister? MR. ELCOCK: That would be an issue which we would put before the Minister if there were any concerns with respect to the human rights record of a country that we were proposing to enter into a relationship with. MR. WALDMAN: But are you telling me that when you make a recommendation to the Minister about an information-sharing with, let’s say hypothetically, Syria – – MR. ELCOCK: At the end of the day if I make the recommendation to the Minister, I am making the recommendation to the Minister that we enter into an arrangement with a country because it is essential to protecting Canadian security that we do so. MR. WALDMAN: But I think the Director requires you to take into account the Human Rights Record. MR. ELCOCK: We balance a lot of things including the Human Rights Record of the country in question to the best of our ability to know something about it. MR. WALDMAN: If you are going to balance that, how can you balance that if you don’t form an opinion about Syria or any other country whether they engage in torture? I just find it rather shocking that you are going to enter into an agreement with a foreign State when you acknowledge that there is all this documentation out there that says they engage in torture and you don’t form an opinion as to whether they engage in torture. Is that your evidence today? MR. ELCOCK: You asked me if I had an opinion about whether Syria engaged in torture. I can’t offer you that opinion. But the reality is, when I make a recommendation to the Minister in respect of any country then obviously we have balanced all of the concerns, including the Human Rights Record of the country involved and ultimately if we recommended to the Minister, we have recommended to the Minister because it is important in our view, in terms of Canada’s security, to secure that relationship in order to share information if we can with that service. MR. WALDMAN: You are reluctant to talk about Syria because you don’t want to acknowledge that Syria might have entered – – am I reading you right, that you don’t want to acknowledge that you might have made a recommendation to the Minister and found that Syria engaged in torture? … … MR. WALDMAN: I don’t know if I got an answer to this question: To your knowledge do we have foreign agreements with countries that, according to your assessments when you make the recommendation to the Minister, engage in torture? MR. ELCOCK: We may well have arrangements with countries that we suspect may engage in torture. I doubt very much whether we could ever know for sure whether they engage in torture. There is a difference. MR. WALDMAN: What steps do you do to find out whether a country engages in torture or not, beside reading the Department of State reports? MR. ELCOCK: We would look at those. We would look at any independent information we have received from other sources. …. … MR. WALDMAN: Would you agree with me that the United States engages in torture in order to obtain information? MR. ELCOCK: I have no knowledge of that. Based on a review of the evidence of Mr. Elcock I concluded that Mr. Elcock seemed prepared to receive information from any country without regard to whether the country engages in torture. Memorandum re: Evidence Obtained by Torture In support of our argument to exclude the evidence obtained from Abu Zubaida we filed an 11 page memorandum relying on the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and Section 269 of the Criminal Code. We argued that anything obtained from Abu Zubaida should not be admitted. The CSIS response was expressed in oral submissions by Mr. Mathieson and at paragraph 2 of their Factum: It is the position of the Respondents that the Applicant has adduced no proof on the balance of probabilities that evidence obtained from Abu Zubaida was obtained as a result of torture, such that it should be excluded from the consideration of the reasonableness of the certificate. CSIS called no evidence and filed no material on the issue of the treatment of Abu Zubaida. I submitted to Justice Dawson that based on the material we had filed with the Court and what was in effect an “admission by silence” by CSIS failing to file any material, that we had established on the balance of probabilities that Abu Zubaida had been tortured by the Americans or their proxies. Justice Dawson’s Decision The decision of Justice Dawson may be found at the Federal Court website: http://www.fct-cf.gc.ca/. The decision was released on March 22nd, 2005. The docket number is DES-4-02. The citation number is 2005 FC 393. In regard to the information obtained from Abu Zubaida, Justice Dawson dealt with that from paragraph 115 to 121. She concluded that issue as follows: I believe it to be an appropriate exercise of the discretion given to the Court by subsection 78(j) of the Act to conclude that this material (the material from Abu Zubaida), all of it hearsay and to some extent speculation, does raise significant concern about the methods used to interrogate Abu Zubaida. For the reasons set out below, Justice Dawson found that it was not necessary to reach to a conclusion as to whether Abu Zubaida was tortured by the Americans or their proxies. [122] In this case, there is an additional pressing concern surrounding the information obtained from Mr. Abu Zubaida. Setting aside the issue of torture or mistreatment, the Court has no evidence before it as to what it was that Mr. Abu Zubaida said, or in what circumstance. This information is required in order for the Court to assess the weight to be given to the information. The concern is aptly illustrated by the following portion of Mr. Harkat’s counsel’s final argument: I spent a fair bit of time talking to the Media in regard to this, but what I have mostly said is: If they said to Abu Zubaida, in whatever circumstances he is: “Did you know a short Algerian guy, a little bit heavy set, walks with a limp, was connected to the FIS, ran a guest house in Peshawar for mujahideen going to Chechnya?” and he said “yes”, in my submission, that is virtually worthless as evidence, particularly all the more so if he is being pressured or tortured while he is responding in that fashion. If, on the other hand, what happened was they said: “Okay, Mr. Zubaida. You have told us everything, you have answered all the questions. Is there anything else we should know?” and he said: “Yes. There is this short Algerian guy, walks with a limp, connected with the FIS, who ran this guest house in Peshawar for mujahideen going to Chechnya”, that actually might have some evidentiary value. Have they given you enough to understand how those answers came out? Does their description of the process by which they extracted or obtained the information from Abou Zubaida make sense? Can you put weight on his statements given the circumstances? – – And that is the issue of the reliability of evidence obtained under torture; or, in some circumstances, it gets pretty close to torture. [123] On all of the evidence before the Court, I am left in doubt as to how Mr. Abu Zubaida came to provide information about Mr. Harkat. I do not know what photograph he identified, whether what is provided to the Court is the text of what Mr. Abu Zubaida volunteered, or whether he answered “yes” in response to a leading question. In light of that, and the doubt raised about the treatment afforded to Mr. Abu Zubaida, I give no weight to the information provided to the Court through Abu Zubaida. Keeping out the evidence did not help Notwithstanding giving no weight to the information provided to the Court through Abu Zubaida, Justice Dawson, based on evidence never disclosed to Mr. Harkat or his counsel, at paragraph 143 set out a number of conclusions regarding Mr. Harkat. Paragraph 143(9) reads as follows: [143] A consideration of all of the evidence before me establishes, on an objective basis, grounded on evidence I find to be credible, that there are reasonable grounds to believe that: 9. Mr. Harkat has associated with Abu Zubaida since the early 1990’s12. Abu Zubaida was one of Osama Bin Laden’s top lieutenants from the 1990’s until his capture.

Not Guilty! Activists Acquitted!

12 protesters involved with the Action Committee of Non-Status Algerians (CASS) were acquitted of mischief in relation to the occupation of the Immigration Minister’s offices in downtown Ottawa on May 29, 2003, more than two-and-a-half years ago. See the court pics, demo in front, read about the victory! Go Here Photo: The victorious defence lawyers: Yavar Hameed (l) of Ottawa, with Denis Barette and Pascal Lescarbeau of Montreal.

Dope Sheet Column – January 25, 2006

DOPE SHEET COLUMN FEDERAL ELECTION IMPLICATIONS

This Dope Sheet is being prepared on January 25, 2006, two days after the Federal election. Prime Minister Harper. Now there is scary thought. For those of us doing “national security” work Anne McLellan’s defeat is good news, probably no matter how bad the new Minister of Public Safety and Emergency Preparedness is. I had suggested in a recent column that Ms. McLellan should resign as a Minister because, by her non-response to the issues raised by Amnesty International of Canadian complicity in torture, she too was complicit in the torture in Syria and Egypt of Ahmed El Maati and in Syria of Abdullah Almalki. Ms McLellan did not respond to my call for her resignation. Given how few people seem to read the Dope Sheet, she likely never heard of the call for her resignation. The voters in Edmonton obviously heeded my call for her resignation. On second thought they could not have heard about my suggestion of her complicity of torture; that would have led to her re-election. Marijuana legislation The election of the Conservatives probably puts an end to the proposed changes to marihuana legislation. Contravention Act offences for possession of marijuana will not be created. To my mind it is doubtful if the Conservatives, in the face of the NDP and the Bloc views on marijuana, will be able to increase the maximum penalties for grow labs. Possession of hand guns Mr. Harper and Mr. Layton called for mandatory minimum sentences for possession of hand guns. Layton’s minimum was 4 years and I believe Harper’s minimum was 10 years. While Justice Minister Cotler was opposed to more mandatory minimum sentences, I expect that in the Liberal Party the Conservatives will be able to find enough support to add to the support from the NDP, to create more mandatory minimum sentences. It is likely that 16 and 17-year-old young people will face mandatory prosecutions as adults when charged with hand gun offences. During the election campaign there was discussion of making possession of a hand gun an offence that had a reverse onus bail requirement. In a country where possession for the purposes of trafficking in marihuana is a reverse onus offence, it seems to me that it is likely that legislation changing the bail provisions for possession of hand guns will be passed soon. That to me sounds like a good idea. SECURITY CERTIFICATE CASES There are a number of Charter issues related to the security certificate provisions of the Immigration and Refugee Protection Act which will be argued in the Supreme Court of Canada on June 13th, 14th and 15th in the Charkaoui, Almrei, and Harkat cases. Leave to appeal in Harkat was granted on January 19, 2006. One issue to be argued is whether the security certificate provisions of IRPA, with secret evidence heard by the judge, in the absence of counsel for the detainee, meet the fundamental justice requirements of Section 7 of the Charter. In the Harkat case I had asked Justice Dawson to appoint an amicus curiae (or special advocate) to assist her in assessing the evidence in the case. In the United Kingdom such a special advocate procedure is used before the Special Immigration Appeals Commission which deals with cases very similar to our security certificate cases. Justice Dawson turned down my request for the special advocate/amicus curiae. Even before the Section 7 issue is argued in the Supreme Court of Canada I believe we may see a special advocate used in a security case in the Federal Court. There is also a possibility that the Senate and House of Commons Committees that were looking at the security certificate issue will recommend that the special advocate procedure be legislated into the security certificate provisions of IRPA. THE CONTINUING CSIS BLIND EYE TO TORTURE I recently had an article in the Dope Sheet column entitled CSIS: Turning a Blind Eye to Torture. Recently in the Harkat case, on his bail application pursuant to S. 84(2) of IRPA, the government produced before Justice Lemieux in the Federal Court a witness identified only as PG. PG was the Senior Middle East Analyst in a branch known as the Requirements Analysis and Production Branch. PG looked at issues pertaining to Islamic Extremism and the threat of Islamic Extremism to Canada. During the course of my cross-examination of PG I asked him a number of questions about whether CSIS makes any attempt to find out if information CSIS has received was obtained from torture. Torture under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as defined in the Gonzales Memorandum (prepared for then Counsel to President Bush, now Attorney General, Alberto Gonzales): “Each component of the definition emphasizes that torture is not the mere infliction of pain or suffering on another, but it is instead a step well removed. The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury, so severe that death, organ failure, or permanent damage resulting in the loss of a significant body function will likely result.” This memorandum was prepared on August 1, 2002 by Jay S. Bybee, then Assistant Attorney General (now a Federal judge), after the capture of a high level al Qaeda member, Abu Zubaydah, in Pakistan. Abu Zubaydah is one of what Humans Rights Watch calls the Ghost Detainees. He is somewhere in one of the CIA black sites. What follows is a portion of the cross-examination of P.G. on the issue of evidence obtained by torture (an electronic version of PG’s evidence is available for those who want it): Q. Were any discussions had within CSIS, in regard to that definition of torture, and how the Americans might be treating their prisoners, or having their proxies treat their prisoners? A. I have not been privy to conversations concerning that subject, no. Q. As the Senior Analyst for CSIS, would you have thought that it would be appropriate that you be included in those discussions? MR. MacINTOSH: Objection. He cannot be asked to comment on the efficacy or the policy that is adopted by the Director of CSIS, or people that are his superiors, whether it is appropriate or not. JUSTICE LEMIEUX: I am going to overrule that objection. He is in crossï·“examination. He is entitled to probe the Witness. THE WITNESS: I am sorry, could you repeat the question? BY MR. COPELAND: Q. Probably not. What I want to know is whether or not the issue of how the Americans, or their proxies, were treating alï·“Qaeda prisoners, wherever they were in the world, whether or not that should have been something brought to your knowledge, as the Senior Analyst for CSIS, in matters relating to alï·“Qaeda? A. As I have stated, I am not aware of any discussions that took place within the Service, in that regard, and since I am not aware that there are, or are not, or rather, were or were not, discussions, then I cannot see how I could actually be included in those discussions. Q. Let me suggest to you that CSIS does not care, in the least, whether or not people are tortured, as long as they get the information. A. I believe I have already answered that. I believe that not to be true. Q. Can you tell me what steps you took, personally, to ascertain whether or not information that was coming to you, was obtained by torture, or may have been obtained by torture? A. As I have stated, as an analyst, whether senior analyst, or junior, does not matter, when we do our analyses and write our papers, we ensure to the best of our ability and knowledge, that the information has been corroborated, and is, in fact, accurate information. Q. And do you check to find out whether or not it came from torture? Do you make inquiries about that? A. Again, as an analyst, I seek to find out if the information is correct. Q. And you do not care whether or not the original source of it came from torture? MR. MATHIESON: This question has been asked now, My Lord, about three or four times. I think, it may be crossï·“examination, but it is time for my friend to move on. JUSTICE LEMIEUX: I will overrule that. I am not satisfied that the Witness has answered appropriately. I was going to ask him a question, and may still ask him a question. THE WITNESS: I can state that I have never, personally, asked any individual, whether or not specific information was obtained under torture, no. JUSTICE LEMIEUX: May I ask a question, Mr. Copeland. MR. COPELAND: Pardon? JUSTICE LEMIEUX: May I ask a question? MR. COPELAND: Sure. JUSTICE LEMIEUX: If you did not, as the Senior Analyst, if you did not ask under what conditions the information which you received was obtained, how can you be satisfied that the information is reliable, because you yourself have said it affects the reliability. If you do not even inquire, and the person has been tortured, then the information is unreliable, how can you rely on it. THE WITNESS: That is a very good question, My Lord. The key to analysis, the key to using information, and judging the reliability or veracity of the information, rests on corroboration. If you receive the same information from a variety of sources of variant degrees, and the information is consistent, then as an analyst, you make the judgment that that information is in fact true and, therefore, it can be used in your analysis. BY MR. COPELAND: Q. So, let me understand this. You get some information from Abu Zubaydah, who may or may not have been tortured. It is corroborated by somebody else, whether it is corroborated by one of the other 11 detainees listed in the Human Rights Watch Ghost Detainees paper. A. Yes. Q. And you do not inquire whether or not that person has been tortured,then it is corroborated? A. No. In fact, as I am trying to establish, we receive information, we corroborate it from a number of different sources and, in fact, if it was determined that all of the information, and all the corroboration, came from the same type of sources, under the same conditions, then we would have to seek other corroboration, that verified, or did not verify, that information. Q. But you just told me before, you did not ask anything, or so far as you know, the Service did not ask anything about the conditions that Abu Zubaydah was being held in. So, you are not going to ask anything about the conditions that somebody else is being held in. So, you are going to have two sources of information, you know nothing about how the information was produced. One corroborates the other, and then you put it in the report. A. No. I have stated that we seek as many sources of information as possible, and if the information comes from similar types of sources, about which perhaps we do not have information as to how it was obtained, under what conditions, we would seek other forms of corroborated information. Q. So, let me try this. CIA says to you, we got information from Abu Zubaydah. “We got information” ï·“ï·“ if I could find the name here I can pronounce ï·“ï·“ Ramzi bin alï·“Shibh, that say, for example, my client was in Afghanistan. And you have done nothing to make any inquires about where the CIA got the information, or how they extracted the information, one is corroborating the other. Would it go into a report? A. Not necessarily. Again, corroboration comes from looking at a variety of sources. I, as an analyst, would consider a CIA source, if this is the one we want to use here, as a source of information. I would also seek corroboration from information that did not come from the CIA. Q. But, assuming you have two sources, there are two pieces of information from the CIA. CIA is your closest cooperating agency. Isn’t that a fair assessment? A. The Service has a relationship with many different agencies. I cannot typify one as being closest, or not. Q. But, the CIA is the one that you probably acknowledge that you work with. That is public information. A. Fair enough. Q. And some of the other countries you don’t acknowledge, whether or not you have relations? A. True. Q. All right. You got two pieces of information from the CIA. Would it go into the report, into any report? A. Again, we seek to find information from a variety of sources. If the only information that we have on a specific incident, or a specific individual, comes from one unique agency, we take that unique source into consideration, before doing our analysis. Q. And then put it in the report, I take it? A. Not necessarily. Q. But, also, it is not a guarantee that it will not go into the report? A. That is correct. Q. So, you may have two pieces of information. You do not bother to make any inquiries about how the information was obtained, and maybe, it will end up in a report, even though maybe both of them, were obtained under torture? A. That is possible, yes. JUSTICE LEMIEUX: The question I was going to ask you is how can you possibly corroborate information, when you have not even inquired whether source “A”‘s information has been obtained under torture? How can you corroborate when you do not even inquire, to see what condition source “A”, which you are trying to seek the corroboration was extracted under torture? If it was extracted under torture, how could it be corroborated? Because it is automatically unreliable. I do not understand how you can corroborate information, which has been obtained under torture. If potentially ï·“ï·“ it seems to me it is a non sequitur. THE WITNESS: In this instance, My Lord, we are talking about information that has been obtained from a foreign agency, let’s say the CIA. The Service does not rely 100 percent solely on information received from foreign agencies. The Service carries out its own investigations, and receives information from its own sources. We would try to corroborate the information. Do our utmost to corroborate the information, using our own sources of information. Any good intelligence analyst never relies on a single source of information, unless the information is so catastrophic in its implications. But it is extremely rare for an intelligence service, let alone intelligence analyst, to rely on a single source of information. And I would also add that if My Lord said that all information obtained under torture is, by definition, unreliable, I am not sure there is consensus in that respect. In other words, if I may continue, it is certainly possible that information as obtained, may in fact be corroborated from other sources that were not subject to the same conditions. BY MR. COPELAND: Q. I understand that, but you do not make any inquires to find out whether they are obtained under torture, in the first place? A. Again, I think I have answered that question on several occasions. I personally, have not made those inquires. I am not aware whether or not other members of the Service have made those inquiries, or not. Q. But do you ask the other members of the Service that give you the information, whether or not they check to see whether the information was obtained under torture? A. I personally have not made those inquiries, no. Q. How do you ever find out whether information was obtained under torture? You personally? A. Again, I have not made those inquires myself. I have sought to have the information corroborated, from sources, other than the original source. Q. But, you never ask whether or not information that is being given to you, that you may or may not put in a report, you never make inquiries as to whether it was obtained under torture, or might have been obtained under torture? A. I have not made personal inquires in that regard, no. Q. And is there some reason why you have not made those inquiries? A. No. Again, I seek to corroborate the information through other sources. In its annual report for 2004-2005 SIRC made the following comments in regard to their Review of a Counter-Intelligence Investigation: When CSIS initiates the process to enter into a new arrangement with a foreign agency, it informs Foreign Affairs Canada and the Minister of Public Safety and Emergency Preparedness that it will “closely scrutinize the content of the information provided to, or received from, a foreign agency in order to ensure [our emphasis] that none of the information sent to, or received from, that agency is used in the commission of, or was obtained as a result of, acts that could be regarded as human rights violations.” SIRC took note of two issues arising from this statement (only the first issue is relevant to this article). First, the use of the term “ensure” implies that CSIS will make certain that the information shared does not lead to – or result from – acts that could be regarded as human rights violations. However, the Committee concluded that CSIS was not in a position to provide such an absolute assurance. Based on the answers PG gave in his cross-examination in the Harkat case, and the above noted SIRC report, I made a complaint to CSIS about their lack of concern as to whether evidence or information they received was obtained from torture. When the response I received from CSIS was unsatisfactory to me, I asked the Security Intelligence Review Committee (SIRC) to review the response given by CSIS. The matter is presently in the hands of the Review Committee.