Commentary

By SHEEMA KHAN

Friday, September 2, 2005 Page A17

Clifford Olson. Paul Bernardo. Michael Briere. Names that evoke loathing. It seems that our justice system is doing its job by finding the suspects, laying charges, trying the accused in open court, and confining the guilty to prison. Built into the judicial process is the opportunity for adversarial review -- a system of checks and balances to minimize human biases and errors.

Now consider these five names: Hassan Almrei. Adil Charkaoui. Mohamed Zeki Mahjoub. Mahmoud Jaballah. Mohamed Harkat. All are non-citizens, Arab and Muslim. They, too, are behind bars. For murder? Terrorism? Pedophilia? Investor fraud?

Actually, we don't know. Neither do they. None has yet to be charged with committing any crime. Our government and its security agencies -- paragons of transparency and trust -- have deemed each a threat to national security. According to the law, the government has the right to put each behind bars indefinitely, until he can be deported or charged. Furthermore, he has no right to see the evidence against him, due to "national security" -- that catch-all phrase invoked in the name of justice. The men are held in solitary confinement, or incarcerated with hardened criminals, without the right to appeal.

Welcome to Canada, post-9/11.

Last summer, Bill Graham, as foreign affairs minister, angrily denounced the secrecy by Iranian officials investigating the death of Canadian-Iranian photojournalist Zahra Kazemi. "Under all human-rights codes, under all international law standards, there should be a public trial," he thundered. "Justice will not be done behind closed doors."

Oh really?

Mr. Mahjoub is a father of two; Mr. Jaballah has six children. National security deems that a glass wall must suffice to convey the love and affection between a child and parent. One of Mr. Jaballah's kids has said that, if the government does not release his father, he wants to join him so the two can play together. Mr. Mahjoub, detained since June of 2000, is in the eighth week of a hunger strike in a bid to seek contact visits with his wife and children. Neither man has had conjugal visits with his spouse. Not one embrace in four years -- in the name of national security.

Each woman has become a single mother, struggling to make ends meet, in an unfamiliar environment. Let's not forget that these women are shunned because of their husbands' notorious status. As the Arar inquiry has shown, associating with intelligence targets might get you deported to a Syrian prison to be held indefinitely without charge. No wonder many Muslim immigrants are fearful of reaching out to the families. No one wants to be Arared.

Mr. Almrei has been detained in solitary confinement without charge for four years. Denied the right to one hour a day of exercise outside of his cell, Mr. Almrei is in the third month of a hunger strike.

Many notable Canadians have come forward to challenge this black hole of justice. Yet, according to a recent national poll, the public strongly favours security over civil liberties. Some 46 per cent of Canadians favour detaining suspected terrorists without trial, while 62 per cent believe Canada should give the U.S. "any information they request about Canadian citizens whom they suspect of being terrorists."

Astounding statistics regarding attitudes toward people who are suspected -- not convicted. We Canadians should drop our smug moral superiority toward the U.S., where a recent Pew poll shows that 62 per cent of Americans believe that the U.S. Supreme Court should address the rights of those accused of terrorism.

Our Supreme Court has decided to hear Mr. Charkaoui's argument that the security certificate process violates both our Constitution and international law. Here's the irony: A man deemed a threat to national security is using the very system he purportedly seeks to destroy.

Some have argued that all five men have been afforded due process. Yet, a judge in the Jaballah case has called the process "invidious," describing the detention as Canada's version of Guantanamo Bay. Mr. Justice James Hugesson of the Federal Court has said: "We hate it. We hate hearing only one party. We hate having to decide what, if any, sensitive material can or should be conveyed to the other party." He added that he sometimes feels "like a fig leaf."

Many legal personalities and organizations have also criticized the lack of adversarial review. Some have proposed a solution to the security/liberty impasse: Appoint a special counsel with national security clearance who can view the evidence in full in order to provide a vigorous defence of a detainee in camera.

Perhaps the issues are best summarized by Michael Ignatieff, who says in his book The Lesser Evil that the war on terror waged since Sept. 11, 2001, has put a strain on democracy itself, because it is mostly waged in secret, using means that are at the edge of both law and morality. He writes: "It is never justified to confine or deport an alien or citizen in secret proceedings. Openness in any process where human liberty is at stake is simply definitional of what a democracy is. . . . A democracy in which most people don't vote, in which many judges accord undue deference to executive decisions, and in which government refuses adversarial review of its measures is not likely to keep the right balance between security and liberty. A war on terror is not just a challenge to democracy; it is an interrogation of the vitality of its capacity for adversarial review."

Does Canada have the capacity for a robust system of checks and balances in an era of anxiety?

sheema.khan@globeandmail.ca

BACK TO SECRET TRIALS QUICK LINKS