"Oh, now now..."
Three Days of Emotional Personal Testimony Mark Jaballah Bail Hearing in Toronto
CSIS Continues to Make it Up As They Go Along, Claiming No Secret Trial Detainee can "Ever" be released
FRIDAY, SEPTEMBER 9, 2005--Three days of hearings as part of Mahmoud Jaballah's application for bail in a Toronto courtroom this week were a mix of intense personal pain -- as family members and secret trial detainee Jaballah recounted the horror of the past four years -- and cold, calculating illogic as a CSIS representative demonstrated how little he, and his agency, knew about much of anything other than plagiarism and deception.
Things got off to an all-too-appropriate start for another in a series of hearings which are part of the secret trial scheme under Canada's security certificate process. On Day One, Jaballah's hearing room was not listed on the lobby's courtroom register, and early arrivals were left scratching their heads. We spotted one of the CSIS lawyers and asked him if he knew what courtroom we were to attend. He did not know, and we told him that it was symbolic that this information appeared to be a secret: a secret courtroom for a secret trial.
"Oh, now now," he tut-tutted us, a paternalistic reminder that even though the evidence against a detainee is kept secret from him and his lawyer, it's not REALLY a secret hearing now, is it? It's like he was saying, "When are you folks going to grow up and stop calling indefinite detention without charge or bail on secret evidence, with deportation to torture at the end, a human rights abuse? Just get with the game, now, eh?"
We finally find the courtroom on the seventh floor and fill the hard wooden benches along with the family of Mahmoud Jaballah. Throughout the proceedings, his children will miss their first week of school because there is a lunchtime opportunity that is too good to pass up: the judge is expected to grant a brief touch visit with their father, the first opportunity they have had to hug and kiss him in over 13 months (the last time they could be with him was in August, 2004 for another court hearing).
The hearing, in front of Federal Court Justice Andrew MacKay, follows an attempt in August in the Ontario Court to challenge the prohibition against Mr. Jaballah seeking bail under the provisions of the ill-named Immigrant and Refugee Protection Act (IRPA). Refugees and foreign nationals are not allowed to apply for bail until 120 days after a certificate is upheld on secret evidence: in the case of Jaballah, already held four years, this could take two to three more years, since he cannot have the certificate hearing until the government comes to a conclusion on the issue of deportation to torture.
The Ontario Court refused to take jurisdiction over the matter, insisting the Federal Court was the best place to hear the argument, even though the Federal Court judge in such a case normally says she does not have the authority to rule on constitutional matters. However, the government lawyers swore at the Ontario court that they would not oppose such a move if it occurred in Federal Court.
Federal Court judge Andrew MacKay, at the end of these hearings, will first need to come to a conclusion as to whether he can making a ruling about whether the bail provisions of IRPA contravene the Charter of Rights and Freedoms; if he agrees that he CAN rule on such an issue, then he must make an actual decision about whether or not such a contravention exists; if he agrees that it does, he must then rule on whether the relief sought -- release on bail -- is an appropriate one.
ON THE SEVENTH FLOOR
Despite having gone through an X-Ray security device in the court lobby, another set of security is set up in front of the door to the courtroom for Jaballah. While spectators, lawyers, and others freely pass in and out of courtrooms where murder trials are taking place, the security set-up here is for someone who has never been charged, much less convicted, of anything here in Canada.
Inside the court, lawyer Barbara Jackman says her client has been brought to court in a bullet-proof vest which is very hot and restricts his circulation. This has never happened before, and she requests that he have an opportunity to remove it. Court breaks for a short time as he is taken out of the room.
Jackman has a number of issues to raise before the proceeding gets underway. She requests, and is granted, 15-20 minute contact visits for the Jaballah family during the lunch breaks. The RCMP officers escorting Jaballah have no problem with this (though the jail system in Ontario certainly does, as Mohammad Mahjoub is approaching Day 70 of a hunger strike seeking a monthly contact visit with his two little kids).
Jackman also expresses a concern that a federal government psychiatrist has visited the jail the previous day, without informing counsel for the detainees, and has interviewed Mohammad Mahjoub and sought an interview with secret trial detainee Hassan Almrei. She says this is a very serious issue, and asks for a government response to clarify what, exactly, has been going on.
Are government lawyers thinking to themselves as Jackman seeks accountability, "Oh, now now..."?
Jackman finishes her list of preliminary matters by noting she will be absent the following week from court, "Because I'm going to the U.K. to criticize security certificates at the Commonwealth Lawyers Conference."
A wide range of individuals have pledged bail support for Mr. Jaballah. The first to testify is Adil Qablawi, whose brother-in-law had been at the jail and met Jaballah there. The brother-in-law kept talking to Adil about the mysterious case of a man jailed for years without charge or bail on secret evidence, and Adil was intrigued. He met Jaballah and his family, and grew to spend time with both, in person and on the phone.
"His family needs him a lot," Qablawi says of Jaballah. "I talk to his kids, and they say, 'I wish my dad was here, I wish we could play with him."
Qablawi offers a $10,000 bond because he trusts Jaballah.
"You know the government thinks he's a really bad terrorist?" Jackman asks sardonically.
"I don't think so," Qablawi responds.
"But are you still prepared to post this bond?"
The government cross-examines Qablawi with its usual blend of disrespect and irrelevance. Their aim is to show that the sureties are just naive dupes who know nothing about Jaballah. Qablawi is asked if he knows what particular group the government alleges Jaballah is associated with, and whether he has read the CSIS public summaries about Jaballah. Qablawi says no. (Though how anyone would benefit from reading these meaningless 20-30 page collections of speculations, beliefs, and allegations is never explained.)
KEEPING THE FAMILY TOGETHER
Next up is Husnah Al-Mashtouli, who married Jaballah in 1986 while still in Egypt. Al-Mashtouli's testimony is filled with emotional pain, her voice rising dramatically at times, going very quiet at others, as she speaks through a translator. She has lived with this nightmare both in Egypt, where Jaballah was arrested, detained without charge, and tortured on seven separate occasions, and in Canada, where her husband was cleared of the allegations following a 1999 arrest, only to be re-arrested in 2001 on the same evidence that had already been dismissed by the Federal Court as not credible.
Al-Mashtouli and her six kids have been accepted in Canada as Convention refugees, but have had difficulty getting landed status, a matter which is part of a separate Federal Court action.
She says her kids have emotional and psychological problems because of living without their father, and says it feels sometimes like they hate everything about Canada because of what has been done to them.
She speaks of her second oldest son, who was only 12 when his dad was detained the second time. "It is this age when a child needs both parents to be part of his life," she says, adding this son has had numerous run-ins with the law. Her son needs Mr. Jaballah at home to help him steer the difficult path of teenagerhood.
"Every time his father speaks to him on the phone, he [the son] is fine and calms down but the next day he goes back to his old ways. He says his attitude would be different is his father was not in detention."
Al-Mashtouli recalls that her oldest son, Ahmad, just turned 19, became responsible for the family at a very early age because of the multiple incarcerations of Mr. Jaballah in Canada. "Ahmad did not live his childhood like any other Canadian. Sometimes I feel his anger inside him and he's somehow detached from the family. His studies suffer, he lost a year of school because of his responsibilities to the family."
Al-Mashtouli speaks of the pain felt by her younger kids, who feel sad and start to cry when they see other kids out with their fathers. "Ali [her youngest] in some of the interviews with the media during our marches says if his father is not released he would rather stay with his father in detention. This is the position of the whole family. It would be better to put us all in detention with him.
"The kids, they keep asking when is he coming out, they would rather die than continue without him."
Al-Mashtouli relates how difficult it is to visit Jaballah at the jail, because he is only allowed 1 weekly 40-minute visit behind thick glass and with communication via telephones. It is difficult to get the whole family to be allowed in, and sometimes, the kids have only 1 minute to say a quick hello to their father before being hustled out of the visiting area. Ali sometimes gets angry and bangs at the glass, and sometimes the phone volume is so low he can't talk with his father.
Al-Mashtouli says during the 2 holy feasts in the Islamic calendar, she takes the children to the jail but they are not allowed even then to spend time with their father. She relates tales of officers being rude to her children, one of whom grabbed Ahmad, took him outside, and told him, "When you are 18, I will put you inside this jail with your dad."
Asked how this four-year separation has affected her, Al-Mashtouli says that in the Holy Koran, it is the law of God that a man should not be absent from his family more than 3 months, unless both mutually agree to this.
AGAINST HUMAN RIGHTS, NOT FAIR
"This is against human rights laws, it's not fair," she says of the separation. "Right now I feel like I am about to explode. He did nothing wrong to keep him in prison for four years. Even in Egypt, seven times he was in jail, we were allowed to stay with him in jail, have a meal with him, that is not the case here."
Asked how she feels about the allegations against her husband, Al-Mashtouli reflects what is in many ways a world majority feeling. "We are not terrorists. America is the terrorist. My husband did nothing. In Egypt, Pakistan, everyone liked my husband. We have no enemies. Those who are stating these allegations, I ask them to submit evidence. If there is evidence, then there could be a sentence, something I can understand. I can understand this happening in Egypt where there is no respect for human rights. But in Canada?
"Right now in Egypt they took my brother and tortured him and asked him about my sister and me. They tell him, if he doesn't give information they will accuse him of being an Islamic extremist, same as they did to my husband. Canada gets information from Egypt, the same country we fled. How does a country like Canada treat information from Egypt? We suffered in Egypt, now we suffer in Canada.
"I am astonished at these proceedings, they cost the taxpayers so much. I hold the Canadian government responsible if anything happens to my husband. We are human beings just as they are. Our religion teaches us tolerance, peace. We do not hate other humans."
Al-Mashtouli relates how both she and her husband were tortured in Egypt.
Under cross-examination from the government, Al-Mashtouli says she and Jaballah do not talk a lot about jail conditions. "When I ask him his answer is, 'You take care of the children, don't worry about anything else.' I can see he is suffering, but he says he won't talk about it."
The government alleges that the Jaballah family were in contact with the famous Khadr family while in Pakistan, based largely on the testimony last year of Abdurahman Khadr, who admitted in the same proceeding that he had lied to Canadians during a nationally televised live press conference.
She says they were too busy with work and raising their kids for social activities, and besides, this was a long time ago.
Jackman asks Al-Mashtouli if she knew all of her kids' classmates while in Pakistan.
"We were not aware of the family names for security reasons [many were refugees]. The kids were very young, they wouldn't remember at all."
It has been a very emotional morning, as Al-Mashtouli and Mr. Jaballah have both been holding back tears.
Before she leaves the stand, Al-Mashtouli asks Judge MacKay, whose previous decisions have been long in coming, "to be as quick as possible to deal with this. I ask you as a wife and a mother."
Mackay says he will certainly do his best.
CANADA'S MOST CONTROVERSIAL IMAM
Following a lunch break, Aly Hindy, called by the National Post Canada's most controversial imam, and another surety, is called to the stand. Hindy has weathered a storm of controversy over the past couple of years both for standing up for the rights of the detainees, and for speaking out against state terrorism.
He says he has come to court today because he believes "everyone is innocent until proven guilty. The security certificate is not a fair trial. My family respects the law. My father headed the Supreme Court in Egypt. Mr. Jaballah hasn't done anything, and bail is a basic right. I am convinced he is a victim of circumstances."
Hindy details his on-again, off-again relationship with CSIS, a spy agency with whom he is more than willing to cooperate in rooting out potential threats, as long as they remain on the level with him. But he has found they continually go behind his back, asking questions about him in the community, and often intimidating community members.
"I do my best to help CSIS and they turn around and investigate me," he says.
He first met Jaballah even before the 1999 arrest, and eventually brought him on as acting principal for the Islamic school at the Salaheddin centre in Scarborough, Eventually, there were differences of opinion and Jaballah went on to form his own school.
Hindy says allegations arose about Mr. Jaballah because he called a human rights office in the United Kingdom, some of whose lawyers CSIS found to be suspicious. Jaballah is a victim of guilt by association. "This is a problem for Muslims these days," he says. "Just by talking to someone they assume you are connected."
Hindy also differentiates between what he defines as a fundamentalist and an extremist.
"Fundamentalists are not extremist. A fundamentalist is a safe person who would never betray a trust, someone who tries to be pure like the Prophet. The Pope is a fundamentalist. An extremist thinks the ends justify the means, and uses violence. In Egypt, extremists steal from Christian jewellers. Fundamentalists never steal, they stick to the ways of the Prophet. I am a fundamentalist and proud of it."
Jackman refers to the government "record" against Jaballah, which is filled with the hysterical articles printed the past summer about Dr. Hindy. "CSIS was concerned about your criticism of their obnoxious treatment of people in the community," she says, and asks him to clarify what is going on.
Hindy relates how he finally went public with the story of a Muslim woman who was abused by CSIS agents. He says he spoke with a Toronto director of CSIS, known only as "Andy," and "he denied the incident even before knowing the details about it. I trusted CSIS enough to give them the information about this woman. They never asked me her name or for a description of the agents. Instead, they waited till I went to the media. How can I believe they investigated it. It was close to rape, and yet they say they found nothing."
Hindy says it is everyone's obligation to speak up when something is wrong, even if it proves difficult.
He says that if you are a builder and it appears the walls have been put in so poorly they are going to fall down, "Should I stay quiet or speak up? It is the same with a country."
Hindy also explains again why he refused to sign the imams' statement earlier this summer condemning terrorism in the wake of the London bombings.
"If we have to condemn something every time it happens it means that we feel we are somehow to blame. I condemn terrorism like I condemn stealing and murder, but no one ever asks me to condemn stealing and murder when it takes place. And what about Falluja, depleted uranium, the terrorism from the other side?
"Why do Muslims need to feel guilty every time something happens? I condemn terrorism. I won't change my mind later, so why do I have to keep saying it?"
Asked whether he would turn in Mr. Jaballah if he broke bail conditions, Hindy replies, "Even my son. If he breaks the law I would report him."
CSIS ABUSES A MUSLIM WOMAN
Under cross-examination by government lawyer Robert Batt, Hindy reiterates that he shares what is purportedly a CSIS goal: "protecting this country." Yet how can he remain silent when the same CSIS agent who abused the unnamed woman he spoke about is forced to sit next to this agent on the bus, who continues following her around wherever she goes?
"I was afraid this was a new trend so I needed to go public with this. I did not tell people not to cooperate with CSIS, ONLY that they don't have to talk with them."
Hindy says he knows the agent in question, having met him numerous times before. "I even pay for their coffee and donuts when we meet."
Batt asks him whether he believes there is racial profiling going on. "Well, when you are a Muslim who walks on the beach in a provincial park, or tapes the CN Tower, or has a map in his truck and they arrest you--what else would you call it?" (This refers to the South Asian students swept up in the RCMP "Project Thread, where one of the allegations was that some of the men were walking on a provincial beach in the early morning hours; one man was arrested in Egypt because he was found to have videotaped the CN Tower; and Ahmad El-Maati was tortured in Syria and Egypt because authorities found a readily available tourist map of Ottawa in a truck he was driving.)
Hindy closes by noting people are suffering because of what CSIS does and that "part of the CSIS budget should be given to people who are suffering from them."
HEADING THE FAMILY FROM AGE 12
Just turned 19, Ahmad Jaballah takes the stand. The judge wishes him a happy birthday. It is an odd moment. This is a judge who hears secret evidence against Jaballah's father, without Jaballah present. He appears to be a kind man, but how is one to take this greeting as anything but a crumb of compassion from a judge who, despite his friendliness, is still caught up in a very unjust process? Is this one way of making up for his guilt, if he feels any, for perpetuating, even with a happy face, indefinite detention and, possibly, deportation to torture?
Ahmad nonetheless graciously thanks the judge and proceeds to relate how he had to repeat his last year of high school because he had to help with the family.
"I'm only a kid, I had to take the role of father, help with all the kids, with the chores, and then studies. It's not an easy job for me." And now he is planning to start university classes. "I shouldn't have to be doing all this stuff at 19, I need my dad out as soon as possible."
Asked about his feelings towards Canada, Ahmad says that "having seen other countries, I like being in Canada, even though I don't have the same privileges as other Canadians."
He says he "needs to be there emotionally and physically for the kids, to help them with their schoolwork, to try and give them the life they would have if they had two parents.
"My father is my greatest role model. My younger brother, he was on the wrong path, he got kicked out of school. I've never been in trouble with the law. The reason me and my brother have different lifestyles is because I had a chance to be with my Dad, and my brother didn't have that role model [because Jaballah was in jail].
"My dad taught me to help people, to respect people, he uplifts me to be a positive person. I find this stressful and depressing but his advice and wisdom keeps me going. This is what depresses me. We are all humans, but we don't get the same treatment. Why is my family guilty until proven otherwise?"
Asked about his younger siblings feelings toward Canada, Ahmad says, "I'm old enough to understand what's going on and be optimistic and have hope. For them growing up with this, and to see this injustice at this young age, they don't have a good image of this country. But I believe this is a great country. I don't want them to have a dislike for this country. I don't blame them for this, but I try my best."
Ahmad discusses the positive role participation in protests has had on him. "I want my dad to have his basic rights. I think highly of the Canadian justice system. I don't feel he's been given his rights so I go to protests. I met with MPs, I tried to meet with the Prime Minister and Anne McLellan, but they refused. But this is my role as a Canadian. To speak up, so we can make it better. We should help the government realize where it has gone wrong."
Jackman notes the government may try and put a restriction on Jaballah having access to a computer if he is released on bail, and asks how that would affect a first-year university student.
"My parents don't know anything about computers, and I am a computer geek. I can put passwords on it, and I don't allow anyone else in the family to use it. If my dad asked for it, of course I would deny him the password, because I would not want to jeopardize his being with us." Ahmad says it would be difficult to give up internet access, "but I'm willing to do it, it just means I would have to spend more time at school, but if it means having my father home I would."
Asked whether he would report his father is he broke the conditions of release, Ahmad replies, "People have signed sureties, so out of respect for them I cannot turn them down. I would have no choice if he violated his conditions."
Ahmad's testimony is compelling, unimpeachable, from the heart. The government, in a rare move, does not wish to cross-examine him.
Hayat Mabruk, a family friend, then takes the stand and offers a $10,000 bond as well. Mr. Jaballah, she says, "Is a peaceful man. I trust him. His kids are lost without him. [Husnah Al-Mashtouli] works so hard, she is going to fall down any day now."
The day ends with Jackman telling the judge that "we're in a process not contemplated by the statute, so there's nothing in this framework to allow you to look at secret evidence," she says, noting that "we're worried about the government shovelling more secret evidence" his way.
THURSDAY: CSIS ON THE HOT SEAT
The site of P.G. the agent, the CSIS guy who has testified in prior security certificate hearings, is becoming, quite frankly, tiresome. It is unclear why the government calls him, since he knows little or nothing about the individuals at whose cases he appears. His main role is to sound the hysterical call to staff the barricades against terrorism, even though simple cross examination shows he, like the agency he represents, is inept on the best of days, and behaves much like pre-teen boys playing dungeons and dragons: theirs is an intricately detailed, self-built world that has no connection to reality.
P.G. is a self-styled "expert" on what he calls "Islamic extremism" who gives lectures to municipal officials across Canada. His analysis is based on a three-pronged understanding of Al-Qaeda, incorporating what he calls "Al-Qaeda Proper or Al-Qaeda Central, Al-Qaeda-affiliated, and Al-Qaeda-inspired" organizations. Always one for the soundbites, P.G. says individuals who were trained in Afghanistan "have dispersed to over 60 countries, including Canada." He says it with that ominous tone of voice reminiscent of a grainy black-and-white 1950s propaganda film about the growing Red Menace.
P.G. says "although Mr. bin Laden's movements are restricted, he is very much alive and dedicated to the cause of global jihad." He says there is a Western notion that since he has not personally taken part in attacks that he is somehow not involved, but this is "not true."
"They have a different sense of time than we do," he says of the "extremist Islamic" world (were this a film, the Twilight Zone theme would no doubt chime in here). "They don't adhere to schedules and anniversaries. They will not launch attacks on our schedule. If it takes years to plan and prepare an attack, then so be it." (Apparently, Mr. P.G. seems unaware that the different sense of time that he ascribes to the terrorists of Al-Qaeda is no different, in fact, than that of the terrorists in the Pentagon, who also spend years planning attacks on countries, such as the long-envisioned invasion and occupation of Iraq!)
P.G. also says numerous groups have moved from "near-jihad to far-jihad," meaning they are now part of a global, rather than local, campaign.
"We have to be careful when we talk about infrastructure," P.G. advises us, building up again to one of those "Reporters: Start scribbling this next phrase" tone of voice. "We cannot impose our biases about western structures on eastern ones. Al-Qaeda is not like Al-Canada, with a CEO and board of directors. It is more amorphous."
P.G. then discusses the CSIS document about the effects of long-term detention on terror suspects. "It is the belief of the Service that detention has no effect on the dedication and allegiance of Islamic extremists."
He says at least 10 Guantanamo Bay detainees were released and subsequently joined attacks against coalition forces in Afghanistan. He also says Mahmoud Jaballah is a threat who has not been neutralized by over four years of detention.
Jaballah lawyer John Norris proceeds to thoroughly shred the shaky world of assumption that P.G. inhabits. Whenever a contradiction in the CSIS line appears, and many do with Norris' skillful questioning, P.G. simply shrugs it off, in the same way George W. Bush does. If anything interferes with the CSIS vision of the world, that's just too bad. Don't allow reality through your front door.
Norris asks P.G., about what training he has regarding "Islamic extremism." P.G. says he has read "everything of importance of the past 20 years" in both the open and classified record, though he does not define what is considered "of importance." He has never lived in the Middle East, nor attended any training there. His still-unfinished PhD is in linguistics, not politics. He is then asked how it is possible to have an opinion on Mr. Jaballah.
"Have you ever met Mr. Jaballah?" Norris asks.
"No, I have not," Says P.G.
"Have you ever interviewed Mr. Jaballah?"
"No, I have not."
""Have you ever met Mr. Jaballah's friends and associates?"
"No, I have not."
"Have you ever met Mr. Jaballah's family?"
"No, I have not."
"I suggest," Norris concludes, "that you would have little or no information about what they would say about Mr. Jaballah?"
"That would be correct."
Norris reminds P.G. that Mr. Jaballah was detained in 1999 on a secret trial certificate that was quashed, resulting in his release.
"Can you point to any evidence that he returned to his alleged old associations?" Norris asks.
"I can't speak to specific evidence," P.G. replies, opening another debate about what he can or cannot reveal. A government lawyer objects to the line of questioning, because he does not want P.G. to reveal whether there is classified information on Mr. Jaballah with respect to a specific question.
In any event. P.G. confirms there is nothing in the public record to indicate Mr. Jaballah has been up to no good.
CSIS DECEIVES WITH SELECTIVE INFORMATION
Norris asks P.G. if it is true that in preparing their documentation on such cases, CSIS would need to consider as much data as possible, be careful not to jump to conclusions, seek out appropriate sources, and make conclusions that are even-handed and not driven by ideology.
"That would be correct," P.G. says.
This leads to a line of questioning about the CSIS claim that 10 Guantanamo releases were captured later on in combat.
"Is there any allegation that Mr. Jaballah has been involved in combat?" Norris asks.
"No, there is not."
Norris says that if 10 detainees were released and 10 were captured in combat, this would be a significant figure, but if the number of 10 releasees recaptured is only part of a larger number, the importance of that figure would necessarily decline. Norris notes that the CSIS report which quotes this figure of 10 releasees going to combat is in fact lifted word-for-word, without attribution, from a 2004 Washington Post article, which noted that over 200 people have been released from Guantanamo.
"Does the CSIS report include the total number of those released from Guantanamo Bay?" Norris asks.
"No," says P.G. So much for his earlier answer about CSIS putting together full and accurate reports not driven by ideology.
Norris then produces an August 2005 Washington Post article by Matthew Waxman, the U.S. deputy assistant secretary of defense for detainee affairs, which notes that, a year later, the number of detainees from Guantanamo who, upon release, returned to combat, appears to remain constant at the original 10.
P.G. says he has not seen this new article, nor is he familiar with Mr. Waxman.
P.G. agrees that Guantanamo releases continue, and also with the perception that a year later, the "recidivism rate" (even assuming those captured had been committing crimes in the first place) appears to have shrunk.
So, Norris asks, would it not have been good to provide the Canadian government with a more accurate accounting in the CSIS report?
"Not necessarily," P.G. stumbles. "Absolute numbers do not represent risk. There is no way of looking at 100 people and determining which 10 or 15 will do it [return to combat]."
Norris says that all the CSIS study appears to show is that the risk is not zero. Therefore, he asks, would it be safe to assume that the Canadian government would have no idea, based on the CSIS report, if the risk of released detainees being subsequently involved in combat, was 1% or 99%?
"Correct," P.G. confirms.
So is the CSIS position that as long as ANY risk exists no one should be released, Norris asks.
"Yes," P.G. confirms.
Referring to the article by Mr. Waxman, who says that part of the U.S. government's counter-terror strategy SHOULD be to release many of those held over long periods, Norris asks if the CSIS "zero release" position is not shared by the U.S. govt.
"Apparently not," P.G. replies.
Norris asks if anyone who has been detained in Canada on grounds of suspicion has turned to terror upon release
"I am not at liberty to discuss those details in this court," P.G. says.
Is there anything on the pubic record to indicate this is so, Norris persists.
Norris points to the numerous releases of U.K. detainees who had been held on suspicion, asking whether any of those men have turned to acts of violence.
"My knowledge of these cases is cursory," says the so-called expert on the issue.
Norris asks if he is familiar with the case of a U.K. detainee known only as "C," the allegations against whom appear to be similar to those against Jaballah, and who was released unconditionally in January.
Again, P.G. fails to answer because he is not aware of the specifics with his cursory knowledge.
Norris returns to the dreadful CSIS report, which he says implies that detainees who have been released are always recidivists (repeat offenders). "It seems to imply the risk is 100%," Norris says.
"One must err on the side of caution," P.G. responds.
"So the conclusion of CSIS is we should assume that everyone will recidivate?" Norris asks, noting there is no indication the detainees have actually done anything in the first place.
"That would be correct," P.G., says.
"And that assumption goes way beyond the empirical evidence," Norris notes.
"Correct," agrees P.G.
In other words, there is absolutely no evidence that such an assumption is valid, you'll just have to take the word of an agency which is allegedly even-handed, and not driven by ideology.
P.G. says CSIS believes incarceration hardens the views of the detainees.
"So wouldn't that mean that incarceration proves counter-productive?" Norris asks.
"I suppose so, yes."
Norris asks if there is any evidence that Jaballah has tried to "radicalize" anyone while in prison
Not in the public record, P.G. says.
Is there anything in the secret record, Norris asks.
Again. Mr. MacIntosh, lawyer for the government, objects, saying P.G. is not allowed to confirm or deny that something may exist in the secret record. He is concerned about what he calls the "mosaic effect" which might develop from confirming whether certain information exists only in secret, because "well-placed individuals can glean bits of information from the mosaic effect, and Mr. Jaballah is a well-placed individual."
Question after question is met with such elliptical objections and obscure responses.
Norris asks whether there has ever been a criminal investigation of Mr. Jaballah by Canadian authorities. "I have no knowledge," P.G. says, without irony.
He is asked if he is familiar with the work of the Congressional Research Service and that of national security writer David E. Kaplan, who says there is a lack of consensus about the threat of Al-Qaeda. "I think Kaplan overstates the lack of consensus regarding the Al-Qaeda threat," P.G. smugly proposes. So if it goes against the CSIS theory, it must be wrong.
Norris tries to determine the nature of CSIS sources. In the public documents CSIS has released in its case against Jaballah, the agency quotes from a fairly narrow range of sources, from the Mackenzie Institute to the National Post.
Asked whether he thinks the Mackenzie Institute is right-wing or conservative, or whether it is prone to a particular political slant, P.G. curtly replies, "No."
And so it goes. The day ends with a refreshing bit of humanity as another surety offering $10,000 conditional bond, Mohammad Dawoud, takes the stand and says why he wants to help bail out Jaballah. He says that CSIS did contact him to ask him questions about Jaballah. The government objects, but Barbara Jackman wants to keep pursuing this line of questioning, since "we don't trust CSIS to provide you [the judge] with a full picture" in the secret proceedings.
Dawoud describes Jaballah as a dedicated family man, a hard-working individual, a role model.
That role model is set to testify on Friday morning.
The day begins with another surety, Ahmad Shehab, who steps forward to offer his support to Mr. Jaballah. He met Jaballah while leading prayers in July, 2001, and got to know him and his family. He was one of the first people called by Ahmad Jaballah when Mahmoud Jaballah was arrested in August, 2001.
"Mr. Jaballah is a kind person who never reflects an evil mentality or doesn't get along with non-Muslims," Shehab says.
Shehab stands and says he is willing to go to jail for one month so Jaballah can come out for one month and be with his family.
"I hope Canada does not become another Syria or Egypt or Tunisia. It puzzles my mind to have someone in jail for four years with no charges."
Finally, more than four years after his detention in 2001, Mahmoud Jaballah walks to the witness stand to share his story. It is a heartbreaking chronicle of family separation, solitary confinement, humiliating strip searches, and a struggle to retain a sense of sanity while mental torture is imposed from without.
Jaballah recalls his first 45 days spent in Millbrook penitentiary. Immediately after Sept. 11, 2001, he was sent to the hole. He was put in a dry cell, with no water, toilet or sink, just a hole in the floor for going to the bathroom. He was not given water to clean himself before prayer. "They ignored me or told me you are a terrorist," he says, noting at another time he was placed in the hole for three days with no clothing. "They put a camera in my cell when I was naked, and I didn't do anything to deserve this," he said.
Once he was transferred to Metro West Detention, he was sent straight to solitary confinement for a period of 10 months. He constantly asked why, but was never given an answer. He recalls a litany of dirty blankets, no shoes, a smelly mattress, and no toothpaste. He brushed his teeth perhaps 5-10 times during that time period, and has since suffered dental problems. Phone access was very difficult, and yard access was provided perhaps once or twice a week for 5 minutes, with no jacket provided in winter.
One guard informed Jaballah that he was under orders not to provide him with the phone. Family visits were turned down after the family made the long trek for a jail visit. It was an incredibly stressful period in his life, during which he had trouble with his eyes, talked to the walls, and fainted six or seven times, requiring a trip to the hospital. (Incidentally, Jaballah was eventually allowed out of solitary after extensive public pressure from the Campaign to Stop Secret Trials, which, during a walk from Hamilton to Scarborough, constantly pressured authorities to let Jaballah back on the range. In time for an overnight protest sleepout, Jaballah was suddenly out of the hole.)
Jaballah says the temperature extremes in solitary were difficult to deal with: from intense cold in the winter (the subject of a lengthy hunger strike by Hassan Almrei in 2003) and heat in the summer. He was never given a prayer towel, and often his court materials would be taken from him. During those initial years security needed to clear his visitors.
Jaballah is now on a protective custody range, where 2-3 men share the same small cell, with one forced to sleep on the floor.
From 8 am to 7:30 pm, a small common area is home to upwards of 30 men, but there is not much to do other than talk, watch TV, or read when materials are available. There are metal tables and chairs bolted to the floor, but no cushions. There are no programs, and occasionally an ESL volunteer stops in for an hour.
Jaballah says he finds it too depressing to go to the yard, because coming back into the jail after the fresh air is too difficult to deal with, so he often refuses yard.
Although Jaballah is not charged with anything, he is "housed" with individuals charged with murder, theft, and sexual assault. Nevertheless, he tries to respect people, regardless of who they are. "I treat people nice," he says, noting when new inmates come, there is often violence, but things calm down due to Jaballah's peaceful presence.
"I have never seen anyone there for four years like me," he says. "A lot of guys plead guilty to reduce the time they spend there. They tell me if they had to stay that long they would kill themselves.
"No one can handle this," he says. "I am surprised, how can I still be here?"
Jaballah says most inmates come and go every two to three months. He uses by way of example a dog that bites someone. "When a dog does this, they put him in the house, not in a cage, but that's not like that with me. What did I do to put me in this situation? The dog's conditions are seen as not fair. There is no mercy for people like me."
Jaballah says his biggest challenge is missing his family and trying to keep them together during his phone calls and weekly 40 minute visit.
"If my family's okay I don't care about my suffering in jail," Jaballah says. "When I see criminals in the range I remember my kids. Are they going to do drugs, be a robber, because I am in jail? They [Canadian government] haven't destroyed me, but they have destroyed my kids."
Jaballah has difficulty with the fact that one of his sons has been jailed for frequent run-ins for things like theft. "I am an educated man, I was a teacher, and at the same time I can't help my kids. This really kills me. Would anybody like his kids to be like that? All night I think about it. Why do my kids have trouble? And the young ones, my wife had to move to another area. Ali, he's so young, but he starts to know about the weed, the drugs. How can I eat or sleep or go to the yard when I have this situation? I am so stressed, I cry in front of them, and most of the time after I leave the phone. I cry too much on the phone. I hit my head on the wall. Why I pay this price? Do you want me to change my religion, take my beard? Does my wife have to change her clothing?"
Jaballah challenges the court, the government, the world, to find one person in the past 10 years in Canada, in or out of jail, who can say with certainty that he is anything but a peaceful man who raises people to be good, to show mercy, to not be violent.
Jaballah says he has not been allowed touch visits with his kids (he had been allowed such visits while in Egyptian prisons). "They deprive my children of their father's love." There is no privacy, and he has not had a private conversation with his wife since he has been detained.
"This has a severe effect on my emotions, very depressing."
Muslim services at the jail are not as accessible as Christian services, and there is often a dispute about whether food offered to him is truly Halal or simply stamped Halal.
"I try not to complain, I don't want more trouble and get put in the hole," he says.
Jaballah talks of the humiliation of well over 1,000 strip searches since his detention. In Egypt, he says, the only time he was ever naked while incarcerated without charge was during torture, but never any other time. Being seen naked "is a bad thing in my religion. I know the jail's situation, I don't blame them," he says, but why him, who has never been involved in drugs or violence? "It stresses me so much, I have to put all this stress and pain into my heart. What am I going to do? I am in the jail."
The previous day, Jaballah endured three strip searches: coming to court, following his touch visit with his kids, and upon his return to the jail. There are three strip searches every week at the jail, and while in segregation he underwent strip searches daily. "My religion forbids me to show from my belly button to my knees. If I show it, it is a sin."
Jaballah does speak with people about Islam, noting that his area is known as the "converting range." "It is not my job to convert people, but a lot of people see my behaviour, it's different, it surprises them, so people are curious about Islam. All this makes them think and try to convert to Islam. It is THEIR choice, I give them the Koran," he says, and then it's up to them.
The other prisoners approach him about Islam, he says; he never approaches others about it.
"I have no double life, I have never changed in my life," he says. "I try and respect everyone. Doesn't matter if they are criminal, gay, I respect everyone. No one could be found in Egypt, Pakistan, or Canada that says I speak about violence. I'm just on a blacklist from Egypt, and now in Canada. Will I be there till I die?"
Jaballah compares his torture and detention in Egypt with that in Canada. "In Egypt, the torture is physical, they hung me, electric shock, sticks on the feet. The torture here is mental. The mentality is worse here. Physical problems I can go to the doctor to fix them. Mentally, I'm worried my life is done. In Egypt, my kids were very young. Here it is hard to be far from my kids at an important age for my kids. Here in the jail they keep me from my kids. This country is supposed to be different and respect human rights. I came here because this country respects humans, it's safe to raise my kids, not to come and destroy Canada. I am innocent man and I will fight my case till I die. I am 1 billion percent innocent. It's only accusations, they built it from nothing, from fake information."
Asked how the indefinite detention affects him, he replies, "I am between the earth and the sky," perhaps unable to name it, but it is purgatory.
"If I did something and I get sentence, that's fine. The waiting kills people, it kills me, wait wait wait, everyday. If Canada got information from Egypt would you trust it? I fled persecution when I was in Egypt." He says in Egypt they accused him of involvement in an assassination which took place while he was in jail, being tortured.
"How can I trust these people? They gave the death sentence to three people, one of them was killed, then the government said they were wrong. How can I trust these people?"
Jaballah recalls that a man he worked with as a cleaner in Toronto, not a devout Muslim by any means, went to the Toronto airport once with Jaballah. A picture was secretly taken of the two of them, and when that man went to Egypt, he was arrested, tortured, and shown the picture from the Toronto airport.
"I just want to follow Islam, the true Islam that respects other human beings and doesn't believe in violence. Some people use Islam to justify hatred or violence to other human beings. This is not good. Islam relies on the practice of the true Muslim. Islam never asks us to force people to convert. If they choose, that is fine, but no forcing."
Jackman takes him through government allegations. Jaballah says he was part of a study group at university but was never involved in politics. He denies he is a part of Al-Jihad, noting that everybody arrested in Egypt has that label attached to them. It is information from Egyptian intelligence that makes its way across the Atlantic and is then hung on Jaballah when he is in Canada trying to escape from such arbitrary labelling and detention.
In 1981, the year of his first arrest, he says 70,000 Muslims were in jail (that number is now closer to 20,000). "Whoever is religious in Egypt they label terrorist," he says. "Once they arrested people for playing soccer. The papers said they were training to destroy the government."
Jaballah points out the painful reality for many in his position: whatever he does, it will be used against him. For example, he worked as a cleaner at the Jewish Community Centre, which allowed the govt. to claim he had a "plan" to do something bad there. When his cleaning company worked at a bank, he was accused of planning to rob the bank. "Everything I did they try to make stuff up."
After his release in 1999, Jaballah worked 7 am-3 pm at the Islamic school, and then worked 4-midnight as a cleaner. "It was a hard time, I was tired," he recalls. CSIS did not interview him after his release, but one week after his release, he says CSIS went to two members of the community who knew Jaballah and told them, 'If Jaballah thinks he won, we're still after him."
Jackman asks him about the allegation of the "clandestine PO Box."
He says he explained this in 1999 but it still haunts him. He and his brother in Egypt were having trouble getting mail to one another, so they both took out PO Boxes which would be used only for the two of them to write to each other. Jaballah had previously called Egypt but his brother said not to call because Egyptian security would harass them, and so they decided to write using the P.O. boxes. Jaballah only had the Canadian PO Box for three weeks when he was arrested in 1999 and it expired while he was in jail. "When I was arrested they found the receipt in my wallet," he says.
As for the accusation that his number was found in the possession of secret trial detainee Mohammad Mahjoub, who he only met once, Jaballah explains his phone number was in Arabic newspapers and on flyers throughout the city because of his opening the new school.
A recent psychological assessment of Mr. Jaballah concludes he is in "a process of decline."
"Can you see that in yourself?" he is asked.
"Yes, a lot," he says sadly.
The day concludes with Judge Mackay saying "none of us can be proud" of prison conditions in Canada, but wants Jaballah to think about how his situation is unique from others. He wants Jaballah to address the uncertainty of his life.
With that, the court is cleared and Jaballah heads back to the jail. His family heads lives in another kind of jail.
All will return Monday morning.
(report from Matthew Behrens of the Campaign to Stop Secret Trials in Canada).
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