Indefinite Jailing of 6 in Canada Tests Legal System

By Doug Struck
Washington Post Foreign Service
Sunday, December 19, 2004; Page A27


TORONTO -- For a long time, Mona el-Fouli lied to her young children. Their father was working, she told them at first. He was on a trip, she said later. But when she took her boys, 5 and 7, to see their father behind a glass partition, they knew he was in jail.

"Please mom, can I break this glass and go inside to play with my dad?" pleaded the 7-year-old, she recounted.

Mona el-Fouli is seeking the release of her husband, who has been jailed in Toronto without being charged.

For 4 1/2 years, el-Fouli's husband, Mohammed Zeki Mahjoub, has been imprisoned in Toronto without being charged, without facing trial, and without being fully told what evidence is being used to keep him there. The government has said he is a potential terrorist. His wife and defenders say the authorities should prove it or let him go.

Mahjoub is one of six men being held in Canada as security risks on secret evidence. In a country that boasts of its tolerance and respect for legal rights, the jailings present an awkward dilemma for judges, lawmakers and some members of the public.

"This process causes suffering for families . . . and includes serious infringements of basic rights," Meili Faille, a member of Parliament from Quebec, said this month in a speech before lawmakers attacking the government's use of "security certificates" to hold the men.

On Dec. 10, a federal appeals court in Ottawa ruled the procedure constitutional. To allow the men to be released would be "an abandonment by the community as a whole of its right to survival in the name of blind absolutism of individual rights," the court concluded.

In Britain, the highest appeals court ruled Thursday that a similar law there, under which 11 security suspects have been imprisoned indefinitely after secret hearings, violated European human rights laws. The ruling, a blow to the measures adopted in Britain after the attacks of Sept. 11, 2001, is likely to strengthen opposition to security incarcerations in Canada, a member of the British Commonwealth.

The system of security certificates permits the imprisonment of anyone who is not a Canadian citizen on the signed authorization of two cabinet ministers. Each case is presented in secret to the ministers by intelligence or police agencies and then reviewed by a federal judge; the evidence is not shown to the detained individual. If the judge approves, the person can be deported.

"Most of the information our security people get about these people is passed along by foreign sources under the condition that it not be revealed," James Bissett, a former director of Canada's immigration services, said in defense of the secrecy. "You have to have pretty solid evidence."

Mahjoub, 44, is accused by the government of belonging to a radical splinter group of the Egyptian Islamic Jihad organization, working on a Sudanese farm run by Osama bin Laden, staying briefly with a top-ranking member of al Qaeda, and lying about the stay when he entered Canada in 1995. He was working as a store clerk when he was arrested in 2000.

Adil Charkaoui, a Moroccan who worked in a pizza shop in Montreal, has been held on a security certificate since May 2003 for allegedly training at an al Qaeda camp in Afghanistan. Similar allegations have been made against Hassan Almrei, 30, a Syrian held since October 2001; Mohamed Harkat, 36, an Algerian held since December 2002; and Mahmoud Jaballah, 41, of Egypt, who has been held since June 2000 for allegedly making phone calls to an Egyptian Islamic Jihad group in London.

A sixth man, Ernst Zundel, is a Holocaust denier facing deportation for allegedly encouraging violence by white supremacist groups.

The government has asserted that it has been judicious in using security certificates. Anne McLellan, deputy prime minister for public safety, has said security certificates have been used 27 times since 1991.

Opponents objected to the evidence being discussed in secret, rather than being brought to open court where it can be challenged by the individual or an attorney representing him. A judge's deportation order cannot be appealed.

"I'm not suggesting security issues should not attract special safeguards. But this is a clear-cut human rights violation," said Sharry Aiken, an immigration law expert at Queen's University in Kingston, Ontario. In October, she presented the government with a letter signed by 60 law professors who oppose the use of security certificates.

"None of the individuals subjected to security certificates are alleged to have been kingpins. They have been small players who have been involved, at most, in some kind of fundraising activity or support role," Aiken said.

Matthew Behrens, coordinator of the Campaign to Stop Secret Trials in Canada, contended that the authorities should not be trusted to present fair evidence. The Canadian intelligence service, he said, "has a long record of dishonesty, of getting the facts wrong, of withholding information, of substituting feelings for facts.

"It's all guilt by association," he said. "You are literally in a Kafkaesque situation in which they say, 'We believe you are a threat, but we won't tell you why you are a threat.' "

The dilemma is compounded because the five Muslim men held on security certificates argued that they would be killed or tortured if they were deported to their home countries.

Canada is a signatory of an international convention prohibiting deportations to a country where the detainee would likely face torture. Canada's Supreme Court has said deportation would be permissible in "extraordinary circumstances." For now, the accused men linger in Canada's jails, with no end to their incarceration in sight.

"Indefinite incarceration is problematic. But the release of the men may be more than problematic. It may be terrifying," said Martin Rudner, head of the Canadian Center of Intelligence and Security Studies at Carleton University in Ottawa.

In the United States, there are no legal provisions for indefinite incarcerations and secret trials, said Jeffrey Fogel of the Center for Constitutional Rights in New York. However, two American citizens have been designated "enemy combatants" and are being held in military prisons.

The Patriot Act allows the U.S. attorney general to hold illegal immigrants without charges, but only for seven days, Fogel said. Because of those restrictions, the Bush administration opted to transfer prisoners taken in Afghanistan to Guantanamo Bay, Cuba. About 550 are still being held there, largely without legal safeguards.

Fogel said the secret proceedings and indefinite confinement in Canada "start to rise to the level at which the world has criticized us over Guantanamo."

"You can't use the ordinary machinery of law," responded Bissett, the former immigration director. "To wait for an offense to be committed and then use due process of law is fine for dealing with criminals. It's not fine for terrorists. You can't wait for them to blow up several thousand people and then charge them."