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The Dirty Work of Canadian Intelligence

by FAISAL KUTTY

“We do not target specific communities,” says a Canadian intelligence officer parroting the official line, “we [including Canadian Muslims] are all on the same team in the war on terror.” The agent, who was questioning one of my clients, was attempting to assuage the growing insecurity gripping the community.

Showing up at homes and workplaces unannounced; speaking with employers; offering money and favors for “information”; intimidating and threatening newcomers; questioning about specific institutions and individuals; inquiring about a person’s religiosity; and discouraging people from engaging lawyers are some of the recurring themes that I have come across from clients. The problem is so severe that the Council on American Islamic Relations (Canada) has distributed almost 30,000 Know Your Rights guides and organized 27 workshops across the country on dealing with the Canadian Security Intelligence Service (CSIS) and the Royal Canadian Mounted Police (RCMP).

Now, growing allegations of Canadian intelligence cooperating with foreign governments to detain and question citizens abroad.

Most recently, a sixty-two year old academic, Dr. Mahboob Khawaja, told the Canadian Broadcasting Corporation (CBC) that “the [Saudi] police officer told me they had no reason to arrest me. There were no charges against me here in the kingdom (of Saudi Arabia). They arrested me on a request from Canada.” The Canadian citizen, currently employed at a Saudi government run college in the port city of Yanbu, was picked up shortly after the arrest of his son, Momin Khawaja, in Ottawa on terrorism charges. The twenty-four year-old software programmer’s arrest on March 29th was the first under Canada’s hastily drafted anti-terror laws. Saudi intelligence released the elder Khawaja after two weeks without any charges.

Unlike Maher Arar, the Canadian citizen detained by the Americans during a September 2002 transit stop in New York and deported to Syria and allegedly tortured, Dr. Khawaja says he was not mistreated by the Saudis. But the doctor’s claim that his detention was at the request of Canadians is consistent with Arar’s allegation of Canadian complicity. Dr. Khawaja’s eldest son, Qasim, got it right when he told the press “this is a very disturbing fact that the RCMP would go about in a manner by asking a foreign government to apprehend a Canadian on foreign soil.” And as if this was not serious enough, Dr. Khawaja dropped another bombshell when he said that his interrogators informed him that they were asked by Canadian authorities to ensure that he did not contact consular staff in Riyadh in clear contravention of the Vienna Convention on Consular Relations. The RCMP denies the allegations and CSIS refuses to comment.

The denial would be easier to believe if this was an isolated incident and if they had a better track record. Moreover, even former solicitor general Wayne Easter acknowledged the possibility that “rogue” elements of the RCMP may have played a role in Arar’s rendition to Syria ­ essentially torture by proxy. Indeed, as far back as 2002, U.S. officials incredulously defended the practice as an acceptable weapon in the war on terror to the Washington Post. At the time Human Rights Watch called for an investigation into what it called a serious violation of international law.

Arar has launched separate lawsuits against American and Canadian authorities. The U.S. suit revolves around the practice of rendition and the Canadian claim alleges, among other things, that Canada was “negligent for passing on erroneous information to the American authorities that led to them believing that Mr. Arar was connected to a terrorist group.”
The fact that at least seven Canadians ­ Maher Arar, Abdullah AlMalki, Ahmad Abou El-Maati, Dr. Aly Hindy, Muayyad Nureddin, Helmy Elsherief, and Dr. Mahboob Khawaja — have been detained abroad (a few of them even tortured) is problematic enough.

To think that Canadian intelligence may have played a role is unacceptable and disturbing to say the least. These cases along with that of Mohammed Mansour Jabbarah, a twenty-three year old Canadian, who was repatriated to Canada after his arrest in Oman and then secretly handed over by CSIS or RCMP to waiting Americans at the border ­ subverting the extradition process — raise more than enough concerns about the way our intelligence agencies operate. Granted that Jabbarah plead guilty to a whole slew of terrorism charges in a secret trial earlier this year, the fact remains that guilt or innocence is not the issue, but rather the treatment and rights of Canadians. If there is evidence then why not charge, arrest and prosecute them in Canada to the full extent of the law?

Barbara Jackman, a lawyer specializing in national security, told a press conference recently that both agencies are trying to get around the prohibition of using security certificates to detain citizens. Indeed, why do all the hard work when you can get others to do it with less constraints? Jackman says that both agencies are “opportunistically taking advantage” of citizens traveling abroad by providing information to foreign governments. If this is the case, then in effect, Canadian intelligence has quietly adopted an indirect form of rendition — getting foreign governments to do, in the words of Jackman, the “dirty work.”

Disturbingly, the sharing of intelligence on citizens with other countries including those that have questionable human rights records has been a recurring theme over the years. In fact, Michel Juneau-Katsuya, a former CSIS agent, has gone on the record a number of times with this very claim.

The practice seriously undermines the value of Canadian citizenship and our democratic ethos, namely the rule of law and due process. To demand anything less than a full and complete investigation into these claims would be irresponsible, particularly when even the head of the RCMP’s own watchdog, Shirley Heafey, has publicly acknowledged her inability to investigate misuse of the force’s new anti-terrorism powers.

The Maher Arar public inquiry, set to hear arguments for intervener status this week, should be just the beginning of a more comprehensive look at just how our intelligence agencies are conducting themselves.

“It is sad but true that all Canadians cannot rely on their government to stand up for their human rights at home and abroad,” said NDP leader Jack Layton. “If you’re a member of a religious or ethnic minority, the message from the government seems to be: ‘You’re on your own.'”

If intelligence agencies believe they can win a war by undermining the team’s potential star players then they better think again about the growing Arab/Muslim alienation, distrust and resulting silence. It’s time to rebuild the team’s sagging morale.

FAISAL KUTTY is a Toronto-based lawyer and freelance writer. He is general counsel for the Canadian Muslim Civil Liberties Association (CMCLA) and his law firm (www.bakhskutty.com) has been retained by the Council on American Islamic Relations (CAIR) to seek standing at the Public Inquiry into the Maher Arar case. His articles are archived at www.faisalkutty.com and he can be reached at faisalkutty@yahoo.com.

 

Faisal Kutty, is an associate professor of law and director of the International LL.M. Program at Valparaiso University Law School and an adjunct professor, Osgoode Hall Law School, York University. He is also a co-founder of KSM Law for which he serves as counsel. He blogs at the Huffington Post and his academic articles are archived at SSRN.

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