Monday 9 May 2011

The Americans sometimes hinder their own war on terrorists

After September 11, 2001, a practice was frequently used predominantly by American authorities to arrest and detain foreign nationals designated as suspected terrorists and send to foreign countries that are willing to hold them indefinitely for further questioning and torture.

Secrecy permeates the American system. For example, renditions are done covertly and the locations of the secret CIA-run interrogation centers are considered so sensitive that even the four leaders of the House and Senate intelligence committees, who are briefed on all covert operations, do not know of their whereabouts.

Many countries, which includes Canada, are not willing to send their nationals to the United States which believes that some Canadian nationals are terrorists. An example of this is the case of Abdullah Khadr, a Canadian citizen who is the oldest son of the late Ahmed Khadr and he is also the brother of Omar Khadr who had been charged with war crimes before the Guantanamo military commission.

The United States of America had requested the extradition of Abdullah Khadr to stand trial in Boston, Massachusetts, on terrorism-related charges. It was alleged that Khadr procured various munitions and explosive components to be used by Al Qaeda against the United States and Coalition Forces in Afghanistan.

Abdullah Khadr has admitted to the RCMP that he had been buying weapons for al-Qaeda, but maintained that he was merely on friendly terms with its leaders due to his father's prominence and not a member of al-Qaeda himself. I should add that when he made that statement to the RCMP, he was not tortured by them. If he had been, his torturers would have been sent to prison for a period of up to fourteen years since torture by government and police is against the law in Canada.

The court was aware that on October 15, 2004, Pakistan’s federal intelligence service, Inter-Services Intelligence Directorate (“ISI”), apprehended Khadr in Islamabad, Pakistan. He was detained in a secret detention centre for approximately fourteen months before his release and repatriation to Canada on December 2, 2005.
Khadr alleged that the ISI subjected him to harsh and inhuman treatment while in detention, including torture. He also alleged threatening conduct by United States intelligence agency officials who interrogated him for seventeen days: an interrogation that commenced four days following his apprehension by the ISI.
Normally, the law of a foreign state and its record for respect of human rights are not matters for consideration at the judicial phase of an extradition hearing. Those are matters reserved for the executive stage. However, the previous judge who heard the American’s request with respect to his understanding of Pakistani law as it related to Khadr had a bearing on the actions he took. More importantly, the issue of abuse and the arbitrariness of Khadr’s detention were central to that court proceeding.

It was not disputed that Pakistan, during the period of Khadr’s detention, had a troubled record with respect to human rights. Canadian officials, when serving in Pakistan, were familiar with this fact. Americans were similarly familiar with Pakistan’s problematic human rights record. The United States Department of State, in its 2003 Report on Human Rights, cautioned that security force personnel continued to torture persons in custody in Pakistan.

It is clear from the evidence filed by Khadr in the affidavit of Ali Hasan that while Pakistan has a constitution which in many ways appears to resemble Canada’s, the rights it confers are generally disregarded in practice. The reasons for this is that Pakistan is a developing country plagued by poverty and an unstable political environment which shifts back and forth from civilian to military control. When the events involving Khadr’s arrest, the country was essentially under military control with a civilian facade.

It is clear that, even if the Pakistani authorities had the right to arrest Khadr for valid national security concerns, their failure to comply with procedural safeguards made his detention not only arbitrary but also illegal in Pakistan. Moreover, the ISI does not have a track record for moving people in their detention centres into the functioning Pakistani criminal justice system.

In early October 2004, CSIS (Canada’s intelligence agency) was informed by American authorities that Khadr’s arrest in Pakistan was imminent. The affidavit of a senior official in the Counter-Terrorism Division of the Federal Bureau of Investigation deposed that American authorities were interested in speaking to Khadr, whom they felt might possess information regarding future terrorist threats against the United States in addition to general information relating to Al Qaeda. Importantly, it is clear and explicit in the affidavit that the interviews conducted by the United States intelligence agency with Khadr were done for intelligence purposes and not for criminal investigative purposes. What was not contained in the ROC or the SROCs, including the affidavit, was the fact that a $500,000 bounty was paid by the Americans to the ISI for Khadr’s arrest.

He was interrogated by members of ISI for three days. In his affidavit, Khadr alleged that he was subjected each day to acts of unspeakable abuse and cruelty. In his affidavit, he deposed that these acts included the infliction of excruciating pain; acts of sexual humiliation including the squeezing of his testicles and penetration of his rectum with a stick; physical beatings; threats of harm to both him and his sister; and the deprivation of food, sleep and medical treatment.
On December 2, 2004, a United States intelligence agency indicated to CSIS that Khadr had been generally cooperative and that his human rights continued to be respected. It is difficult to imagine how that agency arrived at that conclusion.
Despite a request for the United States for Pakistan to send Khadr to the United States for trial, Pakistani officials told the Americans that the ISI would not release Khadr to the United States without Canada’s written authorization and that they would not hold him indefinitely. Eventually Khadr was returned directly to Canada.

It was after he arrived in Canada that the Americans requested Canada to extradite Khadr for trial in Boston. The U.S. may very well had good reasons to try him for acts of terrorism but Canada wasn’t going to comply with their request.

The events of September 11, 2001 mobilized international efforts to fight terrorism. Pakistan became a focus of the war on terrorism because it was the centre of a global terrorist network. Pakistan is a country where threat-related intelligence is gathered by many countries, including Canada and the United States. The gathering and collecting of information and intelligence in relation to national defence is of the highest importance. And so is Canada’s democratic values, including respect for human rights and the primacy of the rule of law, something that Pakistan and some American agencies lack considerably.

Although Canada wants to contribute towards the war on terrorism, it will not do so at the expense of the democratic rights of its citizens. There is evidence from reliable American and Canadian public records that, at the time of these events, Pakistan had a record for human rights violations. It was for this reason that Canada would not permit any country to send its citizens to Pakistan or any other similar country that condones torture. If follows that Canada would not send one of its citizens to the United States to face trial for terrorism if the facts of the citizen’s role in it was discovered under torture. A Canadian judge considering Khadr’s extradition said, “It is difficult to imagine that mistreatment of Khadr by the ISI would come as a surprise to the U.S. intelligence agency, given Pakistan’s notorious reputation for physical abuse and mistreatment.”

A previous issue about staying proceedings was heard before the Supreme Court of Canada. The Supreme Court distilled certain legal principles pertinent to a stay, derived from Justice O’Connor, as follows:

“For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice. Ordinarily, the latter condition will not be met unless the former is as well society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue.”

When the Ontario Court of Appeal dealt with this issue of Khadr’s extradition, the Court said that the Superior Court of Ontario was justified in freeing Khadr given the gravity of human rights abuses committed by the United States in connection with his capture in Pakistan.

The Court also said that judges are not expected to remain passive when countries such as the United States violates the rights of alleged terrorists.

Justice Sharpe of that Court also said, “We must adhere to our democratic and legal values, even if that adherence serves in the short term to benefit those who oppose and seek to destroy those values. For if we do not, in the longer term, the enemies of democracy and the rule of law will have succeeded. They will have demonstrated that our faith in our legal order is unable to withstand their threats.”

Did he have the United States in mind when he made those statements?

Justice Sharpe further said, “Sending Khadr to Boston would amount to sanctioning human rights abuses.” He added, “No doubt some will say that those who seek to destroy the rule of law should not be allowed its benefits. I do not share that view.

There is simply no basis for the federal government’s argument that an alleged terrorist will remain at large. Canada’s minister of justice can still prosecute Khadr in Canada on terrorism offences.”

He really attacked the United States history of abuses when he said, “It surely can come as no surprise that in a country like Pakistan with a constitution guaranteeing fundamental rights and freedoms, it is illegal to accept a bounty or bribe from a foreign government to abduct from a street in Pakistan, a foreign national, to beat the individual until he agrees to cooperate, to hold him in secret detention for eight months while his utility as an intelligence source is exhausted and then to continue to hold him for six more months at the request of the foreign power.”

The judge further said; “Canada’s court system is in danger of losing its integrity if it continues with a hearing to determine whether Abdullah Khadr should be sent to the United States to face terrorism charges.”

It is easy to appreciate that judge’s statement when you consider the fact that the case against 30-year-old Khadr was based on evidence that the United States government obtained through its own misconduct.

It is a great error, in my opinion, to suppose that a government founded on freedom and rights and then denies those freedoms and rights to those it thinks are unworthy of them; has the right to deny those attributes of democracy to those who are in dire need of them. The deterioration of those freedoms and rights is invariably the precursor of the decay of the government itself.

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