Canadian investigation into rendition faults authorities for inaccurate data
Extracted from Gus Hosein's "International Co-operation as a Promise and a Threat", in Cybercrime and Jurisdiction: A Global Survey, Bert-Japp Koops and Susan W. Brenner, TMC Asser Press, The Hague, 2006.
3.3.2. Case: Maher Arar and the International Co-operation in Intelligence
Increased calls for international co-operation may seem uncontroversial. In reality international co-operation can raise highly controversial situations, often creating more problems than it solves. What is more interesting is to note the differences, the strains, when co-operation goes awry, or when it goes all too well.
Consider the case of Maher Arar. Arar is Syrian-born but was carrying a Canadian passport when he was stopped and detained while changing planes on a trip from Tunisia and Switzerland through New York JFK airport on his way back to Canada on September 26, 2002. He was questioned by U.S. authorities using documents attained from the Canadian police and intelligence services, and they searched through his computer for his contacts and any other information of value. After two weeks of continued detention and interrogation, he was informed by the Immigration and Naturalization Services that he would be sent to Syria; when he complained that he was likely to be tortured in Syria, he was informed that the INS was not the body that deals with the Geneva Convention regarding torture. (1) He was then flown on a U.S. Government plane to Jordan on condition that he would be sent to Syria. The Syrians claim to have imprisoned Arar as a gesture of goodwill toward the U.S. (2)
While in Syria he claims he was tortured. (3) Ten months later the Syrians, looking to co-operate with someone after the U.S. had cut ties with Damascus, sent him back to Canada; though other reports claim that the Prime Minister of Canada had to write an appeal directly to Syria’s President. When the U.S. Department of Justice was questioned on the deportation of Arar to a country known for its torturing of prisoners, the department spokesman stated: ‘We acted fully within our laws and within the applicable international treaties and conventions.' (4) The then-Attorney General John Ashcroft claimed that he had received assurances from the Syrians that there would be no torture involved. (5) This was all at a time when the Bush Administration was staring down the Syrians over their support for terrorism in the run-up to the war in Iraq.
Even after repeated queries into the role that the Canadian authorities had played in his arrest and deportation, the Canadian Government continually refused to comment. The Canadian Prime Minister at the time, Jean Chrétien, later called Arar’s treatment as ‘unacceptable and deplorable’, though not his responsibility. According to Chrétien, ‘the people who are responsible for the deportation of this gentleman to Syria are in the government of the United States, not the government of Canada.’(6)
The next Prime Minister of Canada announced a judicial inquiry into what went wrong, as he said, ‘to get to the bottom’ of the case. (7) Even with this level of support for the inquiry, opposition to it was still mounted by the Canadian Government. The Government tried to prevent the disclosure of information and ensured that the Government can secretly appeal any decisions made by the presiding judge that would divulge sensitive information. (8)
The information that eventually emerged from the inquiry shed some light on the dynamics between the various Government agencies on intelligence matters. Nine months into his detention in Syria, the Canadian Security Intelligence Services (CSIS) was concerned that the return of Arar would only cause problems. According to a draft note from the Department of Foreign Affairs,
There is not sufficient evidence against Arar for him to be charged with anything in Canada. CSIS has made it clear to the department that they would prefer to have him remain in Syria, rather than return to Canada. (9)
CSIS also admitted that the treatment that Arar received worried them because it would make it difficult to deport other people to Syria. (10) Similarly, the Royal Canadian Mounted Police (RCMP) admitted that though they had limited faith in the idea that he was a terrorist, the agency was concerned that his release could cause future embarrassment to Canada, particularly if it was eventually discovered that he was indeed a terrorist. (11) Finally the CSIS admitted that they have many agreements to share intelligence with countries that are suspected of engaging in torture, though they claim that such exchanges are done ‘very carefully’. (12)
More information emerged from an internal inquiry by the RCMP. In this investigation it was found that
· the RCMP knew of the U.S. plans to deport Arar to Syria, but failed to notify others within the Canadian Government;
· the police did not obtain a search warrant when they seized documents relating to Arar’s real estate, that was later used by the U.S. authorities as justification of his links with Al-Qaeda since a suspected terrorist had acted as a witness to a 1997 lease;
· the Government knew that Arar was on the U.S. terrorist watchlist and was even informed by U.S. officials that Arar was on his way to New York;
· the Canadian authorities had previously arranged to interview Arar but decided against this when he insisted that a lawyer be present;
· the Canadian Government faxed to the Americans a list of questions to ask Arar;
· Canadian authorities assured U.S. Government that their intelligence was reliable, though the internal investigation found ‘the reliability assessment of that information was inaccurate.’(13)
The RCMP’s internal inquiry predicted that even more information could be discovered but RCMP officers decided against speaking to the internal investigation because they felt that they should only testify to the forthcoming inquiry.
Months later the Government’s lawyers at the judicial inquiry argued that RCMP officers should not be called to testify because it would jeopardize national security. (14) Syria also refused to co-operate with the judicial inquiry. (15) Despite previous statements to the media regarding Arar’s certain guilt, the U.S. ambassador to Canada declined to participate in the inquiry, with officials from the U.S. Government stating that ‘Our view is that it’s not appropriate for foreign ambassadors to testify before committees of inquiry of nations other than their own.’ (16)
Arar is also filing a civil suit in the U.S. against the U.S. authorities involved in his deportation. However, U.S. officials maintain that ‘clear and unequivocal’ but classified evidence shows that he is an Al-Qaeda member. They are seeking the dismissal of his lawsuit, partly by claiming privilege due to ‘state secrets’, arguing that the courts have no jurisdiction over national security and foreign relations. (17)
At the time these facts were being uncovered, the Solicitor General of Canada stressed that the Arar case should not prevent further co-operation and sharing of intelligence and other information with the U.S. He argued: ‘We need to keep our focus, and not lose our focus in terms of national security issues, over this incident or any other. We need to look forward.’ Shortly thereafter, the Canadian Solicitor General and the U.S. Attorney General announced the creation of two more joint U.S.-Canada teams of law-enforcement, immigration and customs officials.(18)
I am being careful not to say anything regarding Arar’s possible guilt. Technically it is not our job to assess that: clear procedures and courts of law establish guilt. Not immigration officers, Attorneys General, and Syrian authorities, Prime Ministers, Solicitors General, and others under the guise of ‘international co-operation’. In a system as the one that we are developing, the great challenge will be how to trace accountability. One wonders where Arar’s legal representatives could look to for jurisdiction over this case. The judicial inquiry has jurisdiction in Canada, though despite it being established by the Prime Minister, it could not call on those who are responsible for the activities in question. The inquiry could not establish jurisdiction over Syrian and U.S. authorities. The RCMP’s internal investigation was a closed affair and yet could still not call the necessary witnesses. And Arar’s standing in the U.S. is limited by the fact that he is a foreigner, and the courts have little jurisdiction over national security and foreign relations.
The Arar case personifies some of the pitfalls of international co-operation. We need to approach the topic with care and not presume that the sharing of intelligence, evidence, and individuals can be done freely without some form of restraint. And the outcomes are not always good.
The reports of the 'Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar' are available on its website. The reports amount to over a thousand pages, though were censored due to the government's concerns for national security, national defence, or international relations. The Inquiry was charged to look into the role of Canadian officials in Arar's detention in the U.S., deportation to Syria via Jordan, imprisonment and treatment in Syria, his return to Canada, and other related circumstances.