What Happens if the Judge Makes Another Mistake?

Startling Confession of Judicial Error in Jaballah Security Certificate Hearing Reveals Weaknesses of a Process Already Condemned by Leading Human Rights Organizations.

(A report from the public portion of the secret trial of Mahmoud Jaballah)

TORONTO, JULY 14, 2006 -- Midway through the public portion of the security certificate hearing for Mahmoud Jaballah this week, Federal Court judge Andrew Mackay made a startling confession which, in one almost off-the-cuff sentence, exposed the myriad problems with Canada's secret hearing process.

"It looks like I made a mistake," Mackay said in reference to his use of a piece of "evidence" that was one of the key reasons he employed to conclude in May, 2003 that the government's second security certificate against Jaballah was "reasonable." It turns out, in fact, that this "evidence" did not exist. Next week Mackay will release an order explaining how this error may have occurred. (Jaballah's first certificate was thrown out in 1999 and he was released, only to be re-arrested on the second certificate in August, 2001. That certificate was eventually quashed on technical grounds, and Jaballah is currently involved in a third hearing).

While Mackay's admission didn't exactly send reporters rushing to the phones, it did produce a haunting shudder through the courtroom given the dangerous implications of his statement. When a certificate is upheld, it becomes a deportation order. Thankfully, Jaballah has not yet been deported to torture due to the work of his lawyers and community advocates.

But what if Jaballah had been deported in 2003 on the basis of this mistake, found only three years later due to the diligent work of one of Jaballah's lawyers, John Norris?

Would Mackay's confession mean that Jaballah would be released from an Egyptian torture chamber and invited back for another court hearing? Or, in the bleaker alternative, would his remains be exhumed and returned to Canada had the latter part of the "substantial likelihood of torture or worse" been carried out?

Or would such an error have even come to light, since the lack of any appeal against an upheld certificate means there would have been little chance that the legal research which found it might not have been undertaken?

Most importantly, what if Mackay pulls another boner in finding this latest certificate to be reasonable as well? Jaballah is already in a perilous situation, since Mackay ruled earlier this year that the decision to deport Jaballah to torture or death in Egypt was "lawfully made," clearing the path for deportation should the certificate be upheld. Finding such a new error may well be too late for Mr. Jaballah.

That Mackay made such an error is understandable, given that judges in security certificate hearings are given the impossible task of acting not only as the judge, but also as a proxy -- and in no way adequate -- defence counsel, since a detainee's lawyers are not allowed into the secret hearing. Apart from compromising judicial impartiality, there is no way a judge would have the time, nor the inclination, to do the kind of detail-oriented work which turned up the error three years after it was used to uphold the security certificate.

As mentioned above, there is no appeal of the decision to uphold a security certificate. And a certificate need not be upheld on the basis of facts, only reasonable grounds to believe that certain facts might exist. No matter how many errors, no matter how many changed circumstances, it is, by the legislation, a final and "conclusive" decision that leads to deportation. Given that this certificate is based on the usually biased word of CSIS, a spy agency with a profoundly poor record when it comes to not getting its facts right, presenting only one side of a story, and trading information with countries that practice torture, one can see the inherent flaws of a system in which a judge hears only the government's side of the case behind closed doors.

Many in the courtroom this week wondered at first whether the reference in the 2003 decision was based on information from the secret portion of the hearing which had inadvertently made its way into the public record. Poker-faced government lawyers refused to say whether this was possible, and only acknowledged that the information in question was not part of the government's current case against Jaballah.

While the complexity of these cases certainly gives rise to an understanding of Judge Mackay's predicament, it in no way excuses the fact that he, along with other Federal Court judges, continues to preside over such travesties, especially when the very real human stakes are so high. Despite signals from the Supreme Court hearings on security certificates held June 13 & 14 in Ottawa that there will likely be changes to the legislation governing secret trials, Mackay has twice denied Jaballah's requests to put off his hearing until the Supreme Court's ruling comes down.

Jaballah has argued that any decision which finds parts or all of the security certificate regime unconstitutional will mean that this month's hearing will have to be run again under a new regime. Especially given the strong possibility that the Court will rule that at least some rights are being violated by security certificates, forcing Mr. Jaballah to go through a hearing in which it may well be found that rights are being violated simply makes no sense and is unfair to Mr. Jaballah. It's also a waste of time and resources if the hearing will simply need to be held under a new set of rules, if at all.

Mackay has justified this on the basis that Mr. Jaballah remains detained for over five years and deserves to have the matter wrapped up as soon as possible. But this is the same Mackay who turned down a request to hear a new bail application for Mr. Jaballah, so his concerns about Jaballah's lack of liberty ring just a tad hollow.

Given Mackay's insistence on pursuing the hearing, Barb Jackman and John Norris, lawyers for Jaballah, have sought an order preventing testimony from this hearing being used against Jaballah in potential subsequent hearings. After all, as they point out, every time their client speaks in court, CSIS goes away and comes up with new allegations against him based on what he has said, confirming the long-standing critique of the process that the public portion of these hearings are nothing more than a dressed up investigative process, and not a proper judicial proceeding. (Jaballah's first lawyer, Rocco Galati, told the court in 2002: "The proceedings against Jaballah in total, if you look at Jaballah No. 1 and the present proceeding, clearly manifest the fact that the court room has turned into the police station. The proceedings in Jaballah No. 1 were an investigative, interrogatory and evidentiary basis for Jaballah No. 2.")

The fall, 2005 hearings into potential release on bail became the basis for new allegations made against Jaballah in the revised summary of allegations from June, 2006. This is a pattern that continues to repeat itself. Norris says this testimony should only be used here and not in any future proceeding (there may be another security certificate case, and more hearings on fighting deportation to torture). There is also a concern about Canadian authorities sharing evidence with agencies outside of Canada. "We have not sought a publication ban or in camera hearings." he says. But there's a difference between foreign agencies using newspaper reports and Canadian officials actively sharing information with overseas intelligence agencies. "For someone to ferret this out on their own is one thing," he says, "but if the Canadian government does that directly it is prejudicial to Mr. Jaballah."

There is also a reference to the fact that agents of foreign governments have sat in at these hearings, which CSIS lawyers vehemently deny. Barb Jackman notes that in the Suresh proceeding, the complete transcripts were ordered by the government of Sri Lanka, and that government agents from Iran were present during the Ahani proceedings.

In response to the application for protection, government lawyer Donald Macintosh, who in his flights of unreal argument appears increasingly like a cynical court jester, waxes ironically about the importance of the "open court principle," a bit rich coming from someone who regularly attends secret hearings. He says the application should fail because it is trying to create new case law.

"Of course we're trying to extend case law under novel circumstances," Norris counters. What's troubling, he says, is that a stay of these proceedings was denied in part because we were told there can be protection for Mr. Jaballah in what he testifies to, yet now the government is arguing there should be no protection whatsoever."

Mackay says an order in May limiting use of the testimony to this proceeding will stay in place temporarily, but can be revisited later.

The need for such protection is clearly evidenced in yesterday's hearing where, after six days of testimony, Jaballah is "cross-examined" by CSIS lawyer Bob Batt for less than two hours. That there would be so little response to so much testimony appears to mean that, in the end result, the government will rely not on the bare-bones public allegations, but on the secret evidence which neither Jaballah nor his lawyers can access, much less challenge.

Most government questions aimed at Jaballah are based on attempts to make him contradict what he has said in prior hearings and CSIS interviews which date as far back as 1998.

Batt played fast and loose with the rules (which he often does in these proceedings, such as introducing new evidence, which had not been disclosed to Jaballah and his lawyers, in the middle of cross examination last fall). Yesterday morning, he consistently tried to put words into Jaballah's mouth that he had not said, and referred vaguely to statements Jaballah made during prior hearings seven years ago without being accurate about them, trying subsequently to attribute to Jaballah a lack of credibility if the witness appeared confused. Jaballah's lawyers had to repeatedly rise and object that Batt was referring to these passages in a vague and inaccurate fashion. If Batt is going to put the transcript reference to Mr. Jaballah, he should do it accurately, Norris reminded the lawyer for CSIS. Norris eventually had to find the references himself so that Batt could not get away with his little game.

As usually occurs in the public portions of all these hearings (and no doubt in the secret ones too), completely innocent things are reinterpreted through the narrow lens of Islamophobia and old fashioned Canadian racism. For example, Jaballah is interrogated by Batt about why he did not ask the last names of people he had met on a car trip to Winnipeg. (Batt does not comment on the fact that CSIS agents in court are only identified by a first name or by their initials.)

We look around the room and wonder how many of us know each other's last names and, if we did, how long it was into our friendships before we actually knew them. But when an Arab Muslim sits in the witness chair and says he does not know someone's last name, the government lawyers imply with a certain sense of disapproval that there is danger here.

Batt asks why Jaballah did not inquire about the politics of certain people before he got to know them. Again, how many people in this country construct terms of reference for their friendships based on voting records and their positions on everything from the Christian extremism of the Bush administration to the actions of dangerous armed militants such as Canadian General Rick Hillier, a non-Muslim man on the record about his intent to kill people?

According to CSIS, some of the individuals Jaballah may have met have gone on, years after any acquaintance had ended, to be involved in nefarious activities. The fact that Jaballah may have met them a decade ago, long before they were alleged to be involved in violence, is nonetheless used in an effort to incriminate him. On the basis of this forward-looking guilt-by-association, should all people in this country should sign agreements with all their friends that they are not responsible for, nor approve of, any vile act their acquaintances may commit for the rest of their lives?

The fact that Jaballah kept an address in Montreal so that he could have cheaper car insurance suddenly becomes treated as a big mystery as well. He explains that even when he was stopped by Toronto police who looked at his ownership and insurance papers, no one said anything was wrong. He freely admits that with a Montreal address, he paid $200 a year in car insurance, as opposed to the $200 per month he could not afford if he used his Toronto address.

The fact that his wife, Husnah Al-Mashtouli, maintained friendships via phone in countries like Yemen, Azerbeijan, Pakistan, and Egypt, also shows, according to CSIS, that something must be up, that perhaps Jaballah is arranging terror attacks with hotheads in countries that CSIS believes are hotbeds of extremism.

Batt is concerned that Jaballah says when he first came to Canada he didn't trust anyone, given his experiences in Egypt and in Pakistan, where he continued to face surveillance by the authorities. "Even Michel [the CSIS agent] told me I shouldn't trust anyone," Jaballah says of one of the agents who interviewed him in 1998.

The inane questions continue.

"Who did you call on June 4, 1996 when you got your first phone in Canada?" Batt asks of an event a full ten years, 1 month and 9 days after the fact.

"I don't remember," says Jaballah, and nor should he be required to. The problem again is that what may be insignificant and therefore not worth remembering to you can haunt you if you are an Arab Muslim in CSIS's gunsights.

Questions then arise about Mrs. El-Samnah, a kindly woman who just about everyone in the community knows for her acts of generosity. It just so happens that her son-in-law was Ahmad Khadr, killed in Pakistan, and the focus of much media hysteria as an alleged link to Al Qaeda. (Perhaps she should have come up with the idea of one of those pre-nuptial disavowals of anything her future son-in-law might allegedly do for his next 30 years!)

Husnah Al-Mashtouli, who is married to Mr. Jaballah, had testified that El-Samnah helps everyone out and goes out of her way to be friendly with people, helping with Husnah's last two pregnancies. CSIS lawyers are incredulous that Husnah and Jaballah would not be grilling El-Samnah about her relatives (again, how many midwives are asked about their lineage and in-laws. Imagine, if your midwife was someone whose father-in-law works for Ontario Power Generation, a company which knowingly poisons air and water with carcinogens--does that make you complicit in crimes against the environment?)

"Did you realize Mrs. El-Samnah was in fact Mr. Khadr's mother-in law?" Batt demands of Jaballah.

"I didn't ask my wife who her friend's relatives were. She was a nice lady who tried to help my wife," he replies.

Batt consistently refers to the house owned by Mrs. El-Samnah as the "Khadr household," even though it isn't known as that in the community.

Still the disjointed questions come. "When did you get a computer? Did you get an email account?" Batt asks.

Jackman objects at this point, since it does not refer to anything that was presented by Jaballah, and "the purpose of this question is to get new information and then go investigate it."

Batt on a number of occasions says "In 1999 your evidence was..." only to be cut off by Norris, who must rise, with his table full of the many volumes of prior testimony, to remind Batt and the court: "No, that was NOT his evidence."

"What were you doing the day of the East Africa bombings [in 1998]?" Batt asks.

Perhaps everyone in Canada should ask themselves the same question?

Batt tries to make much use of phone records from 1996. Do readers of this account remember who they called yesterday, much less 10 years ago? Yet in this case, phone records from the mid-90s have been put before Mr. Jaballah, and he has been asked to state what the numbers represent. Given that the government itself has not investigated any of the subscriber information, one can see how this becomes another exercise of the court being a police station: questions about who Jaballah, his wife, or children may have called overseas become grist for the CSIS investigation mill, and anything Jaballah says now may wind up in an allegation against him 8 months from now. Indeed, if Jaballah recognizes a phone number as an "Ahmad" or "Hassan" in Yemen or Pakistan, it is likely that in the next round of allegations, CSIS will suddenly discover that there may be a "Hassan" in those countries who they not only believe is a terrorist, but who must be the very same Hassan that Jaballah may have called. What's shameful is not so much the fact that CSIS does this--we expect this type of malfeasance from the spy agency. What is far more shocking is the credence lent to their "evidence" by the Federal Court.

And, as in the other instances, the fact that overseas phone calls billed to Jaballah become a cause for concern -- even though CSIS has no clue whatsoever about who was on the receiving end of them -- illustrates the sheer vagueness and desperate guilt-by-association tactics employed in these cases.

The hearings are exhaustive and shine a spotlight at times on embarrassing revelations about the details of daily life in a family. When a case against you is based on secret "evidence," you are forced to reveal every last bit of your intimate life before the public in the hope that it answers questions that arise about you in the secret hearing. Asked whether her husband could be a terrorist, Husnah laughs, explaining that he freaks at the sight of blood and she can't even rely on him to hold a live chicken if she is going to slaughter the creature for dinner.

Al-Mashtouli talks about how her family checked out her husband before they got married in Egypt. Both come from families where religious observance was a choice, and not imposed, and explains why she chose to follow an Islamic dress code for women after high school (and that this had been her choice long before meeting Jaballah). Asked whether she would not have consented to marriage if Jaballah had been involved in violence, she responds that Jaballah is a decent man who is liked by everyone, and that she never knew about groups condoning violence in Egypt until "we came to this country and this courtroom." She currently runs an Islamic school in Toronto of mixed-gender classes that follows the public school curriculum, replacing dance and music with Arabic and Koranic studies.

"There's a stereotypical image of devout Muslims that women are not treated properly, that you just sit at home and hide away, but you're not at home hiding yourself from everyone?" asked Jackman.

"I believe this is the wrong understanding of our religion, which is there to make life easy," Al-Mashtouli explains. "In Islam a woman can work if she so chooses. If the husband has enough income the woman does not have to work, but that must be an agreement between the husband and the wife."

Jackman elicits testimony that Husnah and her husband always discuss things and come to agreements together, and that Jaballah has never done anything if Husnah has disagreed with it. She relates how much of their time together has been dealing with state repression. Ten days after they were married, Jaballah was taken away in Egypt and arrested and tortured, one of seven occasions on which this happened, all without charge or trial. "This is a common practice in Egypt. Usually they tell him if there are [political] troubles, you better not sleep at your house, but if he didn't sleep in our house, they would suspect him."

Questioned about the harassment, arrests, and torture in Egypt, Husnah is asked whether Jaballah became angry at authorities. "Did he want to shoot them?" Jackman asks her.

"No, we never believed in violence," Husnah responds. "We believe whatever happens is destined by God. True Muslims must be patient."

It's a telling point not only about Jaballah but about all those subject to secret trials in Canada, who have been detained for as long as six years. Never has there been a call for retribution, for violence, for attacks. Rather, the men have endured the unendurable through hunger strikes, through the courts, through years in solitary confinement, through lobbying via their families and written statements calling for peaceful resolution of this injustice.

Al-Mashtouli says the Canadian government's repression against them has been like a soap opera, referring to a popular show in Egypt called "A witness who witnessed nothing." She says the government plays games and their family has been caught in a vicious circle. "If the government has evidence against my husband why not charge him? In 1999 the Court took 7 months, and this time it has been five years. We are going through hell. This is torture on a daily basis. No one knows what we are going through. My children cry all the time, 'why is our father in the jail?' This is not fair. I just ask for mercy from the court."

Despite the serious consequences for the family, they remain a group of people with a wicked sense of humour. While Jaballah is on the stand being asked about the business cards he had in his wallet upon his arrest in 2001, and why certain phone numbers seemed to be jotted down on the backs of those cards (horrors! Queue eerie theme music!), Husnah pulls from her purse a raft of real estate and auto shop business cards that are full of little notes and phone numbers and rolls her eyes. We all check our pockets and wallets to discover that this is not a trait unique to alleged "Islamic extremists." Someone even spies a member of the RCMP security squad inside the court jotting something down on the back of what appears to be a...a....a.... business card!. But the government sees nothing but evil intent in this common practice when the cardholder is an Arab Muslim.

Jaballah answers questions about the allegations that he belonged to (queue again the eerie theme music) "The Badr organization" while in university. Jaballah explains that the Badr group was a licensed student group, like a student union, that was devoted to helping people and studying Islam and that it was not, as the government seems to infer, named after a maniacal terrorist. Nevertheless, there has been a misunderstanding since 1999 about this because the interpreter at the time was confused and unable to translate what Jaballah wanted to say (oh, another ERROR. Sound familiar?) Badr means morning and sun, new day and bright star. The group was approved by the university Dean, much like a ping pong club would be.

This portion of the hearing ended with the setting of a date for legal submissions, which are slated to start the morning of September 11. Although counsel were not available before then, Mackay expressed his profound disapproval because of his concern about Jaballah remaining in detention. This rang somewhat hollow, however, given the judge's refusal to consider a bail application in the interim.

In the meantime, Jaballah will return tomorrow to Guantanamo Bay North on the grounds of Millhaven Penitentiary, where his cellmates Mohammad Mahjoub and Hassan Almrei continue their endless, indefinite incarceration. The three detainees, along with Mohamed Harkat, recently transferred from Guantanamo North to house arrest in Ottawa, and Adil Charkaoui, also out on draconian bail conditions, continue to fight the next stage of their battle for freedom: the government's intention to deport them to torture. Despite repeated calls on Canada from the United Nations to respect the absolute prohibition on deportation to torture, the government is proceeding in a manner that flagrantly violates its international legal obligations.

The week does end on a happy note, however, with the news that the federal government's ridiculous attempts to cancel the bail for Mohamed Harkat (currently under house arrest in Ottawa) is dismissed by the Federal Court of Appeal.

There is still much work to do to end the crime of secret trials, indefinite detention, and deportations to torture here in Canada. Family members of those held in Millhaven still face tremendous costs to transport themselves to and from Kingston. The men need donations for their canteen. And letters to government officials on these issues are always helpful.

If you would like more information on what you can do, or would like to make a donation, contact the Campaign to Stop Secret Trials in Canada at PO Box 73620, 509 St. Clair Ave. West, Toronto, ON M6C 1C0, tasc@web.ca, www.homesnotbombs.ca, (416) 651-5800. If you would like to make a donation, cheques can be made out to Homes not Bombs and sent to the above address (earmark in the memo portion where you would like your donation to go--i.e., to the family support fund, to the campaign, to the canteen, etc.).

(account from Matthew Behrens of the campaign)