‘War on terror’ hypocrisies cross many borders

In October, 2003, Canadian citizen Maher Arar returned home to Ottawa and told his grim story of extraordinary rendition. Detained by the US at John F. Kennedy Airport as a suspected member of Al Qaeda, he was refused passage back to Canada, and sent instead to his birthplace, Syria, where he was interrogated  and tortured for almost a year.

Upon his return, Arar’s case prompted a public outcry. The resulting Canadian-government commission of inquiry cleared Arar of any wrongdoing, criticized the Royal Canadian Mounted Police for passing erroneous reports to US authorities, and awarded Arar $10.5 million in damages. And the Canadian government resolved that this must never be allowed to happen again.

So Canadian officials worked hard to ensure Abousfian Abdelrazik could not come home to Canada to tell his story.

That’s the picture that emerges from a remarkable judgment delivered by Judge Russel W. Zinn in Federal Court in Ottawa last week. The judge found that Abdelrazik’s rights had been violated, and he ordered the government of Prime Minister Stephen Harper to issue an emergency passport for Abdelrazik and to arrange for his travel back to Canada, to be completed within 30 days.

Most of the judgment concerns the Canadian Charter of Rights, but Judge Zinn also examines the United Nations Committee 1267 no-fly list, prompting him to state that  “I add my name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights.”

While Zinn does not mention the Arar case, he does conclude that “by mid 2004 Canadian authorities had determined that they would not take any active steps to assist Mr. Abdelrazik to return to Canada and, in spite of its numerous assurances to the contrary, would consider refusing him an emergency passport if that was required in order to ensure that he could not return to Canada.”

So even while the Canadian government was apologizing to one citizen who had been imprisoned abroad in brutal conditions, without charges and due to mere suspicions which the Canadian government had fueled, the government was working behind the scenes to ensure that a victim of similar injustice would have to remain in the country of his captivity.

The arrest of Abdelrazik

Abousfian Abdelrazik was born in Sudan, and came to Canada in 1990 claiming refugee status. He had opposed the new Sudanese government of Omar al-Bashir, and had been jailed by that government in 1989.  His refugee claim was accepted in 1992, and Abdelrazik went on to become a Canadian citizen in 1995.

While living in Montreal, he became acquainted with Ahmed Ressam. He subsequently testified for the prosecution in Ressam’s trial for plotting to blow up the Los Angeles Airport. He also knew Adil Charkaoui, a Morocco-born Canadian who was arrested in 2003 as “a danger to national security.” But as Zinn writes, Mr. Abdelrazik has never been charged with any criminal offence, terrorism-related or otherwise, in Canada or elsewhere in the world. There is no evidence in the record before this Court on which one could reasonably conclude that Mr. Abdelrazik has any connection to terrorism or terrorists, other than his association with these two individuals.”

Nevertheless, Abdelrazik says he was harassed by the Canadian Security Intelligence Service (CSIS) in the days after 9/11. The suspicions of CSIS followed him out of the country. In March, 2003, Abdelrazik returned to Sudan to visit his ailing mother, and in September, 2003, Sudanese authorities arrested him. Judge Zinn found that “CSIS was complicit in the detention of Mr. Abdelrazik by the Sudanese authorities.”

His first imprisonment lasted 11 months, and included frequent beatings with a rubber hose, Abdelrazik says. In July 2005, the Sudanese Ministry of Justice exonerated him, in writing, of any affiliation with Al-Qaida. Nevertheless, just a few months later he was again imprisoned, for nine months, and he says he again endured torture.

After six years, two imprisonments, but no charges and no trial, Abdelrazik’s Canadian passport has long since expired. The Canadian government has reneged on promises to issue a new one, thereby rendering meaningless his Canadian Charter right, as a Canadian citizen, to return to Canada.

Franz Kafka and the UN no-fly list

In July of 2006, Abdelrazik was listed by the UN 1267 Committee as an associate of Al-Qaida.

The 1267 Committee owes its existence to UN Resolution 1267, which sets up a procedure for denying funds and travel rights to associates of Al-Qaida and/or the Taliban. As Zinn notes, “According to the Committee’s Guidelines, a criminal charge or conviction is not a pre-requisite to listing.”

Zinn was unable to determine which government had Abdelrazik added to the no-fly list, but there was strong evidence implicating the United States. (For example, on July 20, 2006, a United States Treasury Department press release referred to Abdelrazik's "high level ties to and support for the Al-Qaida network". The document also said "He has been identified as being close to Abu Zubayada, a former high ranking member of the Al-Qaida network …." Could this allegation have emerged during Zubayadah's 83 waterboarding sessions?)  To this day, the Committee’s public listing says not a word about why Abdelrazik is on the list. 

But for the Canadian government the 1267 listing appeared to offer a fool-proof method of keeping Abdelrazik in Sudan. In addition to being a no-fly list, a 1267 listing prohibits any financial aid to the listee. The Canadian government claimed that it could not provide any financial assistance, but that it would provide a temporary passport if the now-penniless Abdelrazik could show that he had a paid airline ticket.

That ploy was temporarily effective. But when Abdelrazik’s plight became widely known, a group of supporters emerged in Canada. Risking imprisonment under “anti-terror” legislation, 115 Canadians anted up for a plane ticket. The group included a former Solicitor General of Canada, Warren Allmand, and Stephen Lewis, former United Nations Special Envoy in Africa.

The Canadian government appeared to have no choice -- it had to break another promise. And so, on April 3, 2009, just two hours before Abdelrazik’s flight was to leave Khartoum, he received a one-sentence letter denying him an emergency passport.

The Canadian government then held to the claim that it would only grant a passport when Abdelrazik succeeded in having himself removed from the UN no-fly list.

By this point, the parallels to Franz Kafka’s The Trial had become glaringly obvious. Abdelrazik had no way of knowing who had accused him of ties to Al Qaida or what he was charged with doing -- but he was required to prove himself innocent. Indeed, the Canadian Broadcasting Corporation produced a gripping radio documentary, interspersing passages from Kafka’s novel with a chronology of Abdelrazik’s ordeal.

The 1267 Committee’s guidelines say that a petitioner seeking de-listing “should provide justification for the de-listing request by describing the basis for this request, including by explaining why he/she no longer meets the criteria described in paragraph 2 of resolution 1617 ….” Zinn notes that “For a person such as Mr. Abdelrazik who asserts that he never met the criteria and was wrongly listed in the first instance, it is difficult to see how he can provide the requested justification, particularly when he has no information as to the basis for the initial listing.”

“It is a fundamental principle of Canadian and international justice that the accused does not have the burden of proving his innocence, the accuser has the burden of proving guilt,” the judge continues, before concluding that “The 1267 Committee regime is, as I observed at the hearing, a situation for a listed person not unlike that of Josef K. in Kafka’s The Trial, who awakens one morning and, for reasons never revealed to him or the reader, is arrested and prosecuted for an unspecified crime.”

But as bad as the 1267 rules may be, they specifically make exemptions for persons trying to return to their country of citizenship, as well as “where entry or transit is ncessary for the fulfilment of a judicial process ….” Thus Judge Zinn concluded that the Canadian government was merely using the 1267 no-fly listing as a pretext to deny Abelrazik a passport and a flight back to Canada. The Canadian government had thus violated Abdelrazik’s rights as a citizen. As a remedy, the Judge ordered that the government of Canada must issue an emergency passport, must assist in making travel arrangements, including making payment for a new airline ticket if Abdelrazik’s previous ticket is not honoured, report to the Judge within 15 days on the completion of such travel plans, and finally, prove to the Judge that they have complied by having Abdelrazik appear before him in a courtroom within 30 days. (This last condition not only indicates that the Judge is not willing to take the government’s word about Abdelrazik’s return, but ensures that the return is part of a “judicial process”, adding another reason why the UN no-fly listing cannot be used to keep him in Sudan.)

Is this the final word? The Harper government in Canada, like the Bush and Obama governments in the US, has proven stubbornly resistant to previously accepted concepts of fair play and due process. As in the US, Canadian legislators have mostly gone along with whatever extraordinary powers the executive branch claims. And so it has fallen to a string of court decisions to reassert such rights as habeus corpus, the right to know and answer to the alleged grounds for detention, or the right to return to the country of one’s citizenship.

  If the past eight years are any guide, the Harper government is likely considering whether it will fight Judge Zinn’s decision.