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
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
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
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
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 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
"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."