The Secret Trial
Five
CBC News Online | Updated June 23, 2006
Mahmoud Jaballah says he's no terrorist and he's never been charged with any crime in Canada. But since 2001, Jaballah has been in a Toronto jail because the government of Egypt says he's part of a terrorist organization called al-Jihad. The Canadian government believes that and says he's not a legitimate refugee, so it's trying to deport him back to Egypt, where Jaballah says he will be tortured and killed.
Jaballah is one of five terrorism suspects that have been in this situation. All have been held without charge in Canada on secret evidence they're not allowed to see.
Security certificates
Citizenship and Immigration Canada can remove a person considered to be a security threat by issuing a Security Certificate signed by the solicitor general and the minister of citizenship and immigration, and endorsed by a judge of the Federal Court.
When a security certificate is issued:
All other immigration proceedings are suspended until the Federal Court makes a final decision about the certificate.
Foreign nationals who are the subject of a Security Certificate are automatically detained. Permanent residents may be detained on a case-by-case basis.
If the Federal Court decides that the certificate is unreasonable, it is quashed. If the court decides that it is reasonable, the certificate becomes an order for removal of the person. The court's decision can't be appealed.
Since 1978, security certificates have been issued 27 times.
Their friends call them "The Secret Trial Five." Two have been released on bail — under strict conditions — but three remain in custody. And three of the five have taken their case to the Supreme Court of Canada. The court began hearing arguments in the case in June 2006.
The Secret Trial Five are fighting deportation to Morocco, Algeria, Syria and Egypt, where Jaballah says he was tortured before.
"They make me naked and they put me in the chair and they tie the chair and try to put electric shock on my private parts and sometimes he put me like this and hit my feet," he says.
Jaballah says it happened in Cairo at a prison for religious militants where torture is routine according to ex-prisoners and human rights groups.
Whether democracies should look the other way is not an academic question, not when the United States seems to have ignored the Geneva Conventions in the abuse of prisoners at the infamous Abu Ghraib prison outside Baghdad and at Guantanamo Bay in Cuba.
Officially, Canada condemns such practices. And, in the case of Maher Arar, it is holding an inquiry. Arar says he was tortured after being shipped off to Syria by the U.S. But what if it's Canada that does the shipping?
Barbara Jackman is a lawyer for three of the so-called Secret Trial Five.
"The convention against torture makes it an absolute prohibition. There is no justification ever for returning someone to torture," she says.
Jackman says Canada signed that convention but is now contradicting it. "Canada's position is that if the person is a security risk, that's enough justification to send them back to torture. That seems to be what Canada's saying in these cases."
What is so baffling about the situation of these men is that the government keeps trying to do to them exactly what it says it would never do. The official line is that if someone can show they face a real risk of torture if deported, then Canada would not deport them. In fact, though, even after the government's lawyers have conceded in court that the risk is real, they still keep trying to deport them.
Adil Charkaoui
Mohamed Harkat
Mahmoud Jaballah
Mohammad Mahjoub
"And it's not like we're even arguing over whether they will be tortured. They accept, the government accepts, that they will be tortured. And yet they've decided to deport them to torture," Jackman says.
On Dec. 10, 2004, the Federal Court of Appeal ruled that security certificates used to detain suspected terrorists indefinitely for months without charge are constitutional.
BRITISH LAW LORDS
Decision on detainees
(PDF file 390K)
A three-judge panel made the decision at an appeal hearing by Adil Charkaoui, 31, a Moroccan-born man accused of being an al-Qaeda operative. The decision upheld a December 2003 ruling by the separate Federal Court that said sections of the Immigration and Refugee Protection Act fell in line with the Charter of Rights and Freedoms.
"The appellant has been unable to demonstrate that the procedure for reviewing the reasonableness of the security certificate issued against him ... do not meet the requirements of the charter," the appeal court wrote in the 89-page ruling.
The court ruled that non-citizens and permanent residents can be subjected to a different standard of legal treatment than citizens.
The judges also upheld the use of secret evidence, and said that authorities have an obligation to suppress evidence if its release might harm national security.
Charkaoui challenged the decision of the Federal Court of Appeal to the Supreme Court, which agreed in August 2005 to hear the case.
Just a week after the Federal Court of Appeal decision, Britain's highest court knocked out one of the key planks of the nation's anti-terrorism law, ruling that the government can't detain foreign suspects indefinitely without bringing them to trial.
The 8-1 decision by the House of Lords could lead to the end of what has been called the United Kingdom's version of Guantanamo Bay.
The nine Muslims who launched the appeal had been held in Belmarsh prison for nearly three years under the Anti-Terrorism, Crime and Security Act. They were not told why they had been arrested or what evidence police have gathered against them.
The law drafted after the 2001 al-Qaeda attacks against the United States required the British government to opt out of sections of the European Convention on Human Rights.
The House of Lords ruling quashed that opt-out order and struck down one section of the law.
Nine law lord justices heard arguments in the case, instead of the usual five, and all but one rejected the government's case that indefinite detention was necessary to prevent extremist attacks in Britain.
Baroness Brenda Hale was one of the law lords who ruled that the policy violates human rights because it applies only to foreign suspects, not British ones.
"These draconian measures, to meet the threat posed by one group of suspected international terrorists, cannot be strictly required by the exigencies of the situation," she said.
Another justice, Lord Nicholls of Birkenhead, called such detention policies "anathema in any country that observes the rule of law."