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 â€œreasonableâ€. 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 Ministerâ€™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 â€œStatement Summarizing the Information and Evidence Pursuant to Section 78(h) of the Immigration and Refugee Protection Act (IRPA)â€. In Mr. Harkatâ€™s case, leaving aside the supporting documents, the summary was made up of 42 paragraphs spread out over 17 pages. Under a heading entitled â€œHarkatâ€™s Links with the Bin Laden Networkâ€, at paragraph 39 the following appears: 39. The Service believes that HARKAT has associated with Abu Zubaida, one of Osama Bin Ladenâ€™s top lieutenants since the early 1990â€™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 â€œAbu Zubaida was recently captured in Pakistan and has been reported to be cooperative with the United States authoritiesâ€, I thought it was likely that the term â€œreported to be cooperativeâ€ 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: â€œThe 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 Ladenâ€™s top deputies, after his capture in April, 2002â€. Also attached is an article â€œA Tortured Debateâ€ 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 Departmentâ€™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 Gonzalezâ€™ 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 clientâ€™s name to Abu Zubaydah or if he came up with the name. Did Canadian security authorities provide my clientâ€™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 â€œforeign agencyâ€ 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 wonâ€™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 â€œassumptions (about the torture of Abu Zubaida) do not appear to be supported by reliable evidenceâ€. 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, â€œa foreign agencyâ€. 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 â€œa foreign agencyâ€ 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 1990â€™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 clientâ€™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 â€œThe United Statesâ€™ Disappeared: The CIAâ€™s Long Term â€˜Ghost Detaineesâ€™â€. 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. Elcokâ€™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 donâ€™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 â€œIâ€™m not sure that they doâ€?. Is that your position? Is your position then that â€œI am going to close my eyes to torture until I see the person putting the electric cattle prods on the individualâ€? Is that your position sir? MR. ELCOCK: I didnâ€™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 â€œI donâ€™t know if these countries engage in torture. I read the reportsâ€. I asked you if you read the Department of State report and you said â€œI didâ€. 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 â€“ Iâ€™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. Iâ€™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 isnâ€™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 canâ€™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. Isnâ€™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: Thatâ€™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, Iâ€™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 donâ€™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 isnâ€™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 arenâ€™t you the person who is responsible for determining whether or not we get into arrangements? Didnâ€™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 donâ€™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, letâ€™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 donâ€™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 donâ€™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 canâ€™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 Canadaâ€™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 donâ€™t want to acknowledge that Syria might have entered – – am I reading you right, that you donâ€™t want to acknowledge that you might have made a recommendation to the Minister and found that Syria engaged in torture? â€¦ â€¦ MR. WALDMAN: I donâ€™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. â€¦. â€¦ 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 â€œadmission by silenceâ€ 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 Dawsonâ€™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.  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.  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:  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.