Legislation bans use of evidence tied to torture
From Friday's Globe and Mail
February 22, 2008 at 4:01 AM EST
OTTAWA The Canadian government will reintroduce a controversial anti-terrorism measure as early as today in a bid to comply with a Supreme Court ruling that has forced Parliament to give more rights to immigrants accused of links to terrorist groups.
In addition to assigning so-called “special advocate” lawyers to act for defendants in closed hearings, the new law bans making detainees answer allegations flowing from torture in foreign jails.
Further, government officials have privately signalled they will no longer use evidence from alleged al-Qaeda trainer Abu Zubaydah. The Guantanamo Bay detainee's statements had figured in two of Canada's six ongoing “security-certificate” proceedings.
The U.S. Central Intelligence Agency this month admitted to “waterboarding” Abu Zubaydah to get information about possible terrorist cells. The interrogation method is designed to make a suspect talk by inducing fears he is drowning.
“I can confirm that the Minister of Public Safety and the Minister of Citizenship and Immigration will not rely upon information provided by Mr. Zubaida,” John Sims, deputy minister of Justice Canada, wrote in a Jan. 11 letter.
The correspondence was sent to defence lawyer Paul Copeland, who represents an Algerian held under a security certificate. Mr. Sims's letter pointed out that Canadian judges were already giving “no weight” to the Abu Zubaydah evidence.
The old law left admissibility of such evidence up to individual judges. The new law, Bill C-3, was passed by both Houses this winter and will be imminently enacted by an order-in-council. A parliamentary committee wrote in provisions to exclude evidence obtained through torture, defined as “cruel, inhuman or degrading treatment.”
C-3's passage means Public Safety Minister Stockwell Day and Immigration Minister Diane Finley are about to sign special certificates to declare several individuals threats to Canada's national security. It's expected the certificates against the six current security-certificate suspects – five alleged members of the al-Qaeda network and one alleged Tamil Tiger – will be renewed.
The security-certificate power is often described as Kafkaesque. But courts, which have actually upheld most elements of the law as constitutional, have also worked to safeguard suspects' rights. The ultimate goal of the process is deportation, and not indefinite detention or monitoring.
Yet the latter is usually the result, because, while Canadian courts have declared the non-citizens to be threats, the judges won't allow them to be deported to their homeland where they could be tortured.
Only one of the six suspects remains jailed. The rest are under strict forms of house arrest. Security-certificate cases now seem to involve an incremental expansion of rights after lengthy court battles.
Recently, one suspect asked to leave home to speak at a civil-rights conference. In another case, a court looked at how a suspect's children should use an Internet connection inside the family home. A decision early this week centred on whether a suspect was getting adequate monitoring inside the home after a family breakup.
On Feb. 23, 2007, the Supreme Court of Canada gave Parliament a year to find a way to allow defendants to know more about the cases against them.
The special advocates the new law creates will get to argue against secret evidence in closed proceedings, but cannot further disclose it. The Canadian Bar Association has recommended that the law be reviewed in a year. Mr. Day has said he already anticipates a challenge.
Long before the Abu Zubaydah waterboarding scandal become front-page news in the United States, Mr. Copeland, the lawyer for Algerian Mohammed Harkat, had persuaded the Federal Court to disregard the Guatanamo Bay detainee's evidence. A subsequent attempt to speak to Abu Zubaydah to see if he had any statements that may help his client was turned down by U.S. officials.
A spokeswoman for Adil Charkaoui, a Montreal Moroccan alleged to be known to Abu Zubaydah, said yesterday that he has been given no assurances that the man's evidence will not be used against him. “We'll see,” said Mary Foster.
A spokeswoman for Mr. Day said she would not discuss any cases that are currently before the Federal Court.
A reputed logistics expert, money runner and bomb plotter for al-Qaeda, Abu Zubaydah is now front-page news. The Palestinian-born al-Qaeda suspect, 36, was subjected to a “waterboarding” interrogation and U.S. intelligence officials are being investigated for destroying videotapes of the sessions.
His 2002 capture in Pakistan was seen as an intelligence coup. U.S. President George W. Bush said information from Abu Zubaydah led to the capture of the mastermind of the Sept. 11, 2001, attacks. And Canadian officials, it seems, were eager to learn all they could. Federal Court of Canada security-certificate files indicate the Palestinian-born logistics expert identified two North Africans who were arrested after Sept. 11. Today, officials are distancing themselves from the evidence, and Canadian courts have deemed it unreliable.
It's unlikely the intelligence stopped at the two cases. Abu Zubaydah was seen as the man who knew everyone.
Court filings and other documents indicate he had many ties to Canada, including links to Ahmed Said Khadr, a Canadian originally from Egypt who moved his family to Afghanistan in the 1980s to join the uprising against the Soviets. The book Inside the Jihad quotes one of Mr. Khadr's children as telling a spy in the al-Qaeda camps in the early 1990s: “My father is one of Zubaydah's closest friends.”
A prisoner in Minneapolis is also alleged to have had a close friendship with Abu Zubaydah. Mohammed Kamal Elzahabi, who spent periods in the 1990s living in Montreal, was questioned about the relationship by the FBI.
Most famously, the so-called Millennium Bomber from Montreal, Ahmed Ressam, gave the public one of its first insights into Abu Zubaydah.
Turning informer after being arrested at the Canada-U.S. border, Mr. Ressam testified that Abu Zubaydah helped him get terrorist training and then requested five blank Canadian passports for al-Qaeda operations.