Unlike the Arar Inquiry there will be no attempt at all to clear the three Canadians' names. This inquiry is a farce with a big name cast and no doubt a high price tag.
As well as the national security dodge, we now have the workability dodge, and the time dodge, and the non-trial dodge. However what is clear in spite of all the dodges is that the three will not see the evidence against them or be able to cross examine any of those interviewed--although they can ask questions indirectly. It is not clear what if any information they will receive about the answers or if they can ask further questions. There is really nothing in the mandate that involves assessing the case against the three. It will be interesting to see if the lawyers for the three even think it worth while to continue as part of the inquiry. Politicians should be demanding that the inquiry be expanded and allowed more time. Iacobucci is right, that the inquiry has to work fast to meet the deadline next January.
Even if Iacobucci does in the end come up with a report critical of intelligence services, it is unlikely anything will change or anyone will be held responsible. No one will be held accountable. Even in the Arar case Zaccardelli resigned only due to his own incapacity to absorb his coaching lessons on how to lie successfully.
Three Canadians blocked from hearings into ordeal
Globe and Mail Update
May 31, 2007 at 12:18 PM EDT
Three Canadian Arabs detained in Syria after Sept. 11, 2001, will be effectively shut out of largely secret hearings meant to determine the level of Canadian involvement in their ordeal, according to a ruling released this morning.
Mr. Justice Frank Iacobucci, who is heading a commission into the mistreatment of Abdullah Almalki, Ahmad Abou Elmaati and Muayyed Nureddin, largely accepts the federal government's pleadings for national-security confidentiality in his new 32-page ruling on how is commission shall proceed.
The commission, which launched this year after the related inquiry into the Maher Arar affair, had been weighing arguments from the former detainees and their lawyers that they be granted access to hearings. Unlike the Arar commission, which was intended to be a publicly inquiry, the new commission was given an explicit mandate to proceed mostly in private.
While Judge Iacobucci entertained arguments for greater transparency, he largely rejected them, ruling that the need for ”workability” of the commission trumped the principle of open courts in this instance.
”The formal hearings conducted as part of this inquiry will be conducted in private, a term that I interpret to mean, in this context, in camera and ex parte,” Judge Iacobucci ruled.
Given the amount of sensitive information involved, he said that ”I do not find it workable or in many ways practical for the counsel for the individuals or the individuals themselves to receive security clearance or be present at all of the inquiries that my counsel or I will be making.
”This would unnecessarily prolong the inquiry and make it unworkable.”
Judge Iacobucci said he will try to build in some ”flexibility” for portions of the proceedings to be public, ”as circumstances may warrant.” He did not say, however, what those circumstances might be.
The judge suggested that the detainees and their lawyers could work with commission lawyer to frame the questions that are ultimately to be asked behind closed doors.
The decision left Barb Jackman, lawyer for Mr. Elmaati, disappointed.
”It looks to me they are doing a secret inquiry. It's not clear that any of it will be public,” she said in an interview. "I don't think it looks like a fair process. My first impression is that it is unfair.” A series of Canadians Arabs whom police believed to be associated with one another fell under investigation after the terrorist attacks against the United States killed 3,000 people on Sept. 11, 2001.
No charges were ever laid in Canada, but many of the targets were jailed for lengthy periods in Syria, as much information flowed between Canada, the United States, Syria and Egypt. Ultimately, everyone was let go, and the detainees returned to Canada to allege that they have been wrongly smeared by Canadian officials who orchestrated their arrests overseas when they failed to turn up proof of any crimes in Canada.
Mr. Elmaati was the first suspect to be jailed, and he spent the longest period – more than two years – in custody overseas. During the 1990s Afghan civil war, he and his brother had been involved with mujahedeen fighters there. While Mr. Elmaati returned to Canada to become a long-haul truck driver, his brother, Amer, lingered in Afghanistan and allegedly got involved with al-Qaeda.
By the fall of 2001, Mr. Elmaati was complaining to friends that police in Toronto were driving him crazy with constant surveillance, and he flew to Syria for a wedding.
Jailed upon arriving in Damascus, he was later sent to Cairo for more interrogation. He says he was tortured into making a series of false admissions, including one about a hatching a bomb plot in Ottawa with his brother that may have influenced the investigation back in Canada.
Six months after the initial Syrian arrest, another target of the Canadian investigation was jailed upon arriving there. Ottawa businessman Abdullah Almalki, who during the 1990s had once worked for an Afghan charity and who later exported hundreds of thousands of dollars in communications equipment to the Pakistani military, was under scrutiny in Canada for his export business.
Mr. Almalki also says he was tortured during the initial phases of his two years of detention in Syria. Records now show that the RCMP faxed questions to Syrian military intelligence to be put to the suspect, over the objections of Canadian Foreign Affairs officials who urged the Mounties not to send over the questions.
It is not clear, however, what impact the RCMP questions may have had on Mr. Almalki, who appears to have already suffered his worst mistreatment by the time the document was sent.
Six months after Mr. Almalki was arrested in Syria, border guards in a New York airport arrested Ottawa-based telecommunications engineer Maher Arar, whose case would emerge as an international cause-célèbre. U.S. investigators told Mr. Arar that they had information indicating he was an associate of Mr. Almalki and Mr. Elmaati. For this, he was sent to Syria in shackles on a U.S. government jet and spent nearly a year in custody there.
Geologist Muyyed Nurredin's arrest took place in 2003 and has no known links to the other suspects. He had been a principal at an Islamic school in Scarborough before he travelled to Iraq to visit family in 2003. He was held for a month after crossing into Damascus and was then let go.
In contemplating these cases, Judge Iacobucci will have to contemplate a treasure trove of secret intelligence files, some of which may now be more than a decade old, and which may have been influenced by information from foreign intelligence agencies whose secrets the Canadian government has vowed to guard.
The previous inquiry, in which Mr. Justice Dennis O'Connor probed the Maher Arar case, spent two years and millions of dollars probing Canadian involvement. Nominally a public inquiry, it was frequently forced to meet in private because of the government's assertion that it needed to protect its information, to shield both ongoing investigations and foreign sources of information.
Ultimately, Judge O'Connor concluded that inaccurate and misleading information from Canada most likely led the Americans to act as they did against Mr. Arar – who was found to have never represented any risk to Canadian national security. His lawsuit has recently been settled for $10-million in damages.
Judge O'Connor concluded that Mr. Arar's case was intertwined with the others, a finding that led to the new inquiry. He also appointed an academic fact-finder to interview the four Syrian detainees, and concluded that each had been a victim of torture there.
The Attorney-General of Canada and police agencies had been attempting to keep the torture findings out of the new inquiry into the three detainees, arguing that it the report was ”rife with frailties.”
But Judge Iacobucci said he will consider the report's findings with some follow-up investigation.
”It is important to ascertain whether these individuals suffered torture,” the decision released on Thursday said.
Judge Iacobucci said that considering questions behind closed doors should allow for his inquiry move along more speedily than otherwise.
”I am not elevating the workability principle to an unjustifiable degree, but simply recognizing that, for example, to encourage arguments over material that would be presented and whether it could be cleared for release or for redaction proposes and the like, would, as experience in the Arar Inquiry demonstrated, cause significant delay and complexity.”