Thursday, May 29, 2014

Productive Week for Canada’s Desk Torturers


Productive Week for Canada’s Desk Torturers
May 15, 2014
By Matthew Behrens
                  Two judicial decisions released last week remind us that the concept of national security is incompatible with democracy: the former almost always trumps the latter, and various enemies-du-jour are regularly created and then served up on the altar of “security.” In each instance, profoundly disturbing decisions were dealt to Mohamed Harkat, facing deportation to torture in Algeria based on secret hearsay, and Hassan Diab, facing extradition to France on clearly trumped up allegations likely gleaned from torture.
                  When doubts are raised about the fragility of democratic rights, the national security state relies on its courts to provide legal reassurance that torture, indefinite detention without charge, secret trials, overseas military occupation, the iron curtain of governmental secrecy, and other crimes of state can be rationalized as necessary byproducts of certain organizations’ duly-authorized mandates.
                  In Canada, both individual judges and courts have served this role most obediently. Their decisions almost unanimously start from the proposition that scandal-plagued bodies like CSIS, the RCMP, and the Department of Justice are composed of well-intentioned functionaries who may, in moments of excessive zeal, cross some boundaries. Although those crossed boundaries implicate Canadian officials in severe human rights violations, no one is ever held to account. Consider that despite two judicial inquiries finding Canadian complicity in the torture of four of its own citizens – a complicity usually overseen by Justice Department lawyers – no one has been charged, much less tried, for their involvement in torture. Rather, complicit individuals have received promotions (http://www.canada.com/story.html?id=20490e79-ee5b-4cc7-bdb9-46870e4cf3e0) or otherwise retired from public life and are now serving as commentators for the CBC (http://www.cbc.ca/player/Radio/As+It+Happens/Features/ID/2431990227/) or receiving puff profiles in the Toronto Star (http://www.thestar.com/news/canada/2007/05/26/extop_spy_breaks_silence.html)
                  In the Harkat and Diab cases, judges have again closed ranks behind the national security state, protecting the technocrats who, like the notorious Schreibtischtäter –  desk murderers of the Nazi era –  do not have to wipe the blood from their hands, as they simply shift paper about, blithely disconnected from the human wreckage they cause. Canada’s desk torturers work at such institutions as the Canadian Border Services Agency, the RCMP, CSIS, and Communications Security Establishment, all of whose employees operate under the rubric of internal memos that have directed them to exchange information with foreign intelligence agencies even when there is a “substantial risk” of torture. Canada’s War Department is the latest to join their ranks (http://www.cbc.ca/news/politics/tories-secretly-gave-canadian-military-ok-to-share-info-despite-torture-risk-1.2608713). Needless to say, such memos have been given the go-ahead by Justice Department lawyers. At the same time, CSIS itself acknowledged in a 2008 memo that if torture-tainted intelligence were dismissed, the secret trial regime would collapse. (http://www.huffingtonpost.ca/2011/12/03/csis-letter-torture-canada-public-safety_n_1127501.html)

Harkat: Still No Right to See the Case
                  In last week’s Harkat ruling, the Supreme Court clearly got it wrong. The decision appears to have been written on the run, without due consideration of last October’s full-day argument by intervening groups on issues from racial and religious profiling to complicity in torture and secrecy creep undermining immigration proceedings. It is at times shockingly illogical and contradicts its landmark 2007 Charkaoui ruling that found the security certificate regime unconstitutional because it denied the detainee the right to know and meet the case against him.
                  The secret system considered by the court in 2006 is largely the same one that exists now, with the exception of one significant change, the introduction of security-cleared lawyers called special advocates who can see some of the secret case but cannot speak with the detainee about what is revealed behind closed doors. Thus, the individual affected still cannot properly instruct counsel about what is being heard in his absence. Special advocates, which essentially saved the secret trial regime, were brought in courtesy of some high-profile, liberal immigration lawyers and the Federal Court itself, and passed Parliament with the full backing of the Liberals. Their current leader, Justin Trudeau, spoke last week both of his love of the Charter of Rights and Freedoms and also of how he thought the Charter-violating Supreme Court ruling was a good one. http://globalnews.ca/video/1331197/trudeau-welcomes-supreme-courts-clear-decision-on-mohamed-harkat/)
                  In Charkaoui, the Court remarked that “one cannot be sure that the judge has been exposed to the whole factual picture.” That has not changed: Harkat cannot comment on, much less instruct the special advocates, on something he is not allowed to know or see. As the court said then (and seems to ignore now), “without full disclosure and full participation throughout the process, he or she may not be in a position to put forward a full legal argument,” and that without disclosure (especially in this case), “the named person may not be in a position to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations.” Indeed, since that named person does not know what has been put against him or her, “he or she does not know what the designated judge needs to hear.” Ultimately, nothing has changed: “How can one meet a case one does not know?” the Court asked in 2007, and should have asked again in 2014.
                  Harkat continues to face deportation to torture in Algeria because Federal Court judge Simon Noel unjustifiably believes that Harkat lied. Noel heard things about Harkat in secret that Harkat knows nothing about, and after Harkat answered certain questions in public, Noel decided that he preferred the uncontested hearsay heard in secrecy. We know that this hearsay is uncontested because a key plank of Harkat’s Supreme Court appeal was based on the fact that when his special advocates sought to cross-examine informants during a secret session – which would seem an obvious thing to do given that one of them had failed a lie detector test, a fact CSIS deliberately withheld from the court for over a decade – they were turned down. Noel said the informants deserved “informer privilege.” As the Supreme Court noted in its decision, the polygraph test on one source “revealed him or her to be untruthful.” So why wouldn’t the special advocates be allowed to cross-examine someone with this mark against them? The Court replies that there is nothing to worry about, because the hearsay evidence will be accepted only if a judge concludes it is “reliable and appropriate.”

Supreme Court Sides With CSIS
                  But how can a judge independently come to that conclusion when hearing only one side of the story, without the benefit of a fully briefed lawyer cross-examining the source of that hearsay? The deference shown to CSIS here is remarkable: the Supreme Court worries that if CSIS sources had to testify, even in secret session, this may have a chilling effect on the agency’s “ability to recruit new sources.” This despite ongoing reports from targetted communities indicate that most potential CSIS “sources” would hardly be reliable since they are coerced into spying in exchange for status in Canada. Indeed, one source in the Harkat case appears to have had special inspiration to continue producing “intelligence” because he carried on a torrid affair with the CSIS agent handling him.
                  While the Supreme Court found that CSIS sources did not enjoy informer privilege, they try to have it both ways by then declaring there is no “unlimited ability to interview and cross-examine human sources.” The ruling states that such examination should rarely if ever be allowed and, without any explanation whatsoever, concludes there is no reason to allow Harkat’s special advocates to cross-examine the secret informants whose allegations were used against him. The Court is satisfied that “the admission of hearsay evidence or the denial of the opportunity for special advocates to cross-examine sources do not render” the scheme unconstitutional. 
                  Further, the Supreme Court ruled in a remarkably illogical moment that while the destruction of all original notes and transcripts of recordings in the Harkat case violated his Charter rights, there was no problem, because Judge Noel “reasoned that the summaries of the conversations were prepared in a way that ensured their accuracy.” Yet how would he know this if he had not seen the original documents, examined the translator, and had cross-examination to test for reliability, accuracy, and the biases inherent to the process?
                  The court also criticized the government for wanting a secret hearing at the Supreme Court level, complaining “it only served to foster an appearance of opacity of these proceedings, which runs contrary to the fundamental principles of transparency and accountability.” Fine words, but why has the court not released a transcript of the closed proceedings for all to see?

Why Not Charge Him If a Case Exists?
                  Like other secret trial detainees, Harkat has always argued that if the government actually has a case, he should be charged in an open court with a fair trial. The government claimed Harkat’s lack of citizenship prevented them from charging him under the Criminal Code (with its higher standards of proof and procedural protections), yet the recent VIA Rail plot (alleged to have been planned by two non-citizens) is proceeding under the auspices not of the immigration act’s security certificate regime, but under the criminal code.
                  The Supreme Court is well aware of this glaring difference, even acknowledging in last week’s decision that the secret trial regime is “in some respects more advantageous for the state than criminal proceedings. It has a lower standard of proof and is more protective of confidential national security information than the criminal law.” The Court even acknowledges but does not act on the fact that a citizen facing such serious allegations is entitled to a balancing act that considers state secrecy and individual rights, but this does not exist for non-citizens. There is no further comment on this two-tiered justice, other than to adopt a Father Know Best approach that tells Harkat: you have to trust the judge, who has broad discretion to look after your rights and make sure you are “reasonably informed” of the case. Ironically, that is exactly what the Federal Court judges were saying before this process was found to be unconstitutional: trust us. Thus, the Supreme Court has taken a major step backwards, concluding Harkat knows the case because the judge says he does. End of story.  When so much rides on a discretion that can only be exercised on a case by case basis, the lack of solid legal precision means whether one wins or loses may come down to the pick of the judge.
                  Harkat has a long legal road ahead of him, and his ultimate fate will once again rest with the Supreme Court, which will have to decide whether Canada will respect the absolute prohibition on deportation to torture, a legal obligation that the Supreme Court refused to uphold in the infamous 2002 Suresh decision by claiming certain “exceptional circumstances” could justify sending someone to face electric shock on the genitals.

Diab Enters Kafka Land
                  Both the security certificate regimes of 2007 and of 2013 contain the exact same section that allows a judge to admit into evidence and base a ruling on anything not normally admissible in a court of law. This means, therefore, that Harkat and anyone else subject to the secret trial process never has been and never will be in a court of law. It’s a problematic netherworld that also seriously impacts Dr. Hassan Diab, whose battle to stop extradition to France for a crime he did not commit suffers from similarly low legal standards that are ultimately based on the political prerogatives of Canada’s national security state. How else to explain the fact that he continues to face an uphill legal battle even though finger and palm prints, handwriting, and physical descriptions of the alleged suspect in a 1980 bombing do not match those of Dr. Diab?
                  Last week’s dreadful Ontario Court of Appeal (OCA) decision dismissed the well-reasoned arguments of Diab’s legal team with remarkably similar reasons to those of the Supreme Court: judges must be allowed major discretion; the intelligence agencies of our extradition partners do not engage in nefarious activities because they have signed treaties; and even though Dr. Diab has yet to be charged with an offence, he is told to trust the French and sort things out from an overseas prison.
                  France has been trying to flex its anti-terrorism muscle with respect to the 1980 Rue Copernic bombing, pursuing a case against Diab that a Canadian judge  found “weak”, “suspect,” and “confusing,” and “the prospects of conviction in the context of a fair trial, seem unlikely.” Unfortunately, that same judge ordered the extradition of Dr. Diab because the standards are so low and inconsistently applied in different Canadian jurisdictions.   Indeed, the appeals court quotes the reality that “trial judges, properly applying the relevant principles in the exercise of their discretion, could in some situations come to different conclusions,” which is what appears to have occurred here.

Diab Sought Without Being Charged
                  Equally problematic is the fact that, as the OCA points out, “It is well settled that the [Extradition] Act does not allow the extradition of a person for mere investigative purposes. Extradition is not to be used as a tool by foreign states to question people as potential witnesses or suspects.” Yet that is precisely the position in which Diab finds himself. The OCA also notes the case against Diab is “circumstantial,” and that four of the five pieces of evidence offered to demand his extradition were “insufficient” to justify uprooting his life, with the fifth piece a highly discredited handwriting report almost dismissed by the trial judge because it was “highly susceptible to criticism and impeachment” and relied on “questionable methods and on an analysis that seems very problematic.”
                  So why has the case proceeded? Because under Canada’s extradition law, the duty of a Canadian court and the Minister of Justice is, first and foremost, to the government seeking an individual’s extradition, and as the Supreme Court of Canada has found, extradition is, in the end, not a legal issue, but a political decision: is the government of Canada willing to risk its relations with one of its extradition partners, or is it willing to sacrifice one of its citizens (or a refugee or permanent resident who is also sought) in the name of maintaining happy diplomacy?
                  In the same manner that Mr. Harkat has been told by the Supreme Court that he needs to trust in the judge hearing the case without him, Diab is similarly instructed to grin and bear it because Canada cannot be seen to mistrust the judicial system of a democratic country. Yet Human Rights Watch has criticized French counter-terrorism courts for relying on secret intelligence from countries known to routinely use torture. When the Canadian Minister of Justice was asked to seek assurances that the French did not in fact carry on in such a manner, he instead figured he needn’t ask because he concluded Diab had not made a “plausible connection” to the fact that torture-derived intelligence from the close working relationship between the French and Syria intelligence agencies in the 1980s (when Diab lived in Lebanon) was connected to his case. (Notably, the French officials clearly state they have no idea where the intelligence came from, in the same way Harkat had no access to original documents or individuals who could be cross-examined).
                 
In the same show-trial way Harkat is given “an opportunity to be heard,” we are told Diab should trust the French since he will be provided a similar “opportunity.” But in addition to the secret allegations he faces, the French Courts, as Diab’s team argued,  “cannot properly determine the reliability of the intelligence allegations made against him because they are not allowed to know the sources of the allegations but, rather, presume that all information received from intelligence officers is reliable; the defence cannot effectively probe or question the underlying material in an intelligence report, and intelligence officers are not required to answer when cross-examined; and French courts use intelligence as evidence to prosecute [alleged] terrorists and have admitted torture-derived statements as evidence in the past.” The OCA says since France is a party to the Convention Against Torture, no such thing could occur (even though it does occur with regularity in Canada, also a party to the treaty).
                  While much of the Diab decision deals with the complexities of extradition law and interpretation of this seriously flawed regime, we also are reminded that this is not about law. In making submissions to the Minister of Justice following judicial committal for extradition, the OCA says this stage of the process is “viewed as being largely political in nature…the nature of this decision is clearly not of central importance to the legal system or outside the Minister’s area of expertise,” which is why the Minister must be granted deference by the court.

The Court’s Impermeable Bubble
                  The bubble in which the Ontario Court of Appeal judges live is impermeable. After quoting from a European Court of Human Rights decision deploring the use of torture evidence, the judges smugly state, “Canada shares these values,” adding the Minister should decline to extradite someone where the case they face will include torture-derived evidence. In the spirit of the Suresh exceptional circumstances case of deporting to torture, the OCA says if a “real risk” of torture-derived evidence will be used, the Minister should “generally [not always] refuse to order surrender.” The problem here is that the Department of Justice is the same agency approving the use of torture information here in Canada; why would the Minister think twice about France’s use of such information when it has been so firmly accepted as part of the Canadian discourse?
                   “There may be rare and exceptional circumstances where deportation or surrender to face a substantial risk of torture or a real risk of the use of torture-derived evidence could be justified; generally, however, as we have said, the Minister should refuse to surrender in such circumstances,” the OCA concludes.
                  The rulings in both the Harkat and Diab cases do not bode well for the men, their families, and their communities. The courts have clearly said they are prepared to violate international and domestic legal commitments with respect to torture, and to sacrifice both of these men’s lives for the national security state. The response that such violations demand from the rest of us is a challenge we must commit ourselves to meeting.
                  In the interim, get involved by contacting Justice for Mohamed Harkat (http://www.justiceforharkat.com/ ) and Justice for Hassan Diab (http://www.justiceforhassandiab.org/)

Canada’s Coup-Supporting Corporate Cowboy Diplomacy



Canada’s Coup-Supporting Corporate Cowboy Diplomacy
By Matthew Behrens
            When US Secretary of State John Kerry bloviated last fall about officially ending the Monroe Doctrine (the U.S. belief that God grants only Americans the right to interfere with the internal affairs of other western hemisphere countries), one wonders if Stephen Harper and his foreign affairs pit bull John Baird immediately took the concept on for themselves. Perhaps they also adopted a bit of manifest destiny thrown in for good measure. How else – other than through the lens of someone who truly feels anointed by the heavens – can one begin to understand Harper’s messianic foreign policy, one in which he and John Baird play tag-team John Waynes making the world safe for Canadian corporate profits?
            While it is true that Canada has always had a sense of manifest destiny – the notion that a little bit of Canada goes a long way in “developing” nations, whether that means invading Russia after World War 1, overthrowing the Aristide government in Haiti, or maintaining a genocidal occupation of First Nations – it has not always been trumpeted as loudly as in recent years. Indeed, one can almost hear the alarums playing in their heads as the PM and his trusted sidekick globetrot over to Ukraine, imagining themselves as Churchillian figures standing up against the Russian bear as they support the junta ruling post-coup Ukraine. Needless to say, Ukraine is a pearl awaiting exploitation, as global natural gas producers and investment bankers salivate over this region where Chevron hopes to frack $10 billion of shale oil out of the landscape and the IMF imposes gut-wrenching austerity that will drain away social programs and economic diversity in favour of privatization and evaporation of state funds into the hands of the wealthy few.
            The Ukraine mess is also a boon for weapons manufacturers who, frightened at the slight decline in potential orders as governments try to tighten their belts, now have a new excuse to keep the taps flowing, one as welcome as when the U.S. invited Saddam Hussein to invade Kuwait and then, playing bait and switch, rallied the weapons corporations together with massive new funding that most thought would have made for a great post-Cold War peace dividend. Harper’s dispatch of 6 CF-18 fighters to the region (with nary a whisper of outrage from the opposition in Ottawa) is also great PR for a government that will soon use their overseas presence as an advertisement to entice us into supporting the stealth fighter purchase for the purpose of NATO interoperability. For Lockheed Martin stockholders, it’s Christmastime.
            The Ukraine debacle represents the latest in a pattern of Harper/Baird supporting coups and ignoring human rights violations as a nasty but necessary part of doing business. (Though let’s not blame the conservatives too much, for the liberals have a long tradition of supporting gross human rights violations as well. We all too easily forget the war criminality in which Lester Pearson immersed himself over Southeast Asia. Who can forget the Trudeau government’s shamefully immediate recognition of post-coup Chile’s General Pinochet, guaranteeing Canadian mining interests the “stability” they desired to continue business as usual?).

Harper’s psychological apocalypticism
            That Harper can boldly state the Crimea crisis represents the worst threat the world has seen since the end of the cold war reflects what the brilliant U.S. social critic and psychiatrist Robert Jay Lifton identifies as “a psychological apocalypticism in which all prior products of the human mind give way to a new collective mind-set” that is “pure, perfect, and eternal.” In the pure and perfect minds of Harper and Baird, there has been no invasion and slaughter of Iraqis claiming over two million lives since 1991, nor the imposition from without of PTSD on an entire nation of people in Afghanistan, drone strikes claiming thousands of lives, genocide in Rwanda and Sudan, or any other horrors that have often been the product of U.S., Canadian, and NATO policies and actions. For Harper, this is his World War II moment, an opportunity in his own pure mind to cement his footprint in history.
            Nonetheless, Harper and Baird’s foreign policy has been touted much of late in editorial pages, picking up on Baird’s idea of a “principled” approach to the world. On March 27, Canada’s foreign affairs minister pounded his podium and declared: “Challenging and confronting those who threaten freedom, democracy, human rights and the rule of law” is where he wants his representatives abroad to “distinguish themselves.” Of course, such rhetoric is used equally easily by the likes of Vladimir Putin and George W. Bush, and is emptier than a California aquifer in the middle of that state’s record-breaking drought.
            For anyone willing to take even a cursory look at the Harper/Baird record, it is clear that this duo is acting as the advance guard to sell the world Canadian weapons that can be used by repressive regimes and private militias who are defending Canadian mining and petroleum companies from the democratic aspirations of peasants, labour organizers, and journalists who question why their air, water, land, and rights must be despoiled in the interest of Canada’s economic prosperity. Canadian trade officials are now openly embedded into Canadian business organizations and trade associations, such as the Canadian Association of Defence and Security Industries (CADSI), which claims half of its $12 billion in annual revenues come from overseas sales http://www2.canada.com/ottawacitizen/news/archives/story.html?id=7ac5a3a6-ed4a-4133-9db9-5535727cbafd. Ottawa has made no secret of its desire to grow its arms export market, including to such rights violating countries as the U.S., Mexico, Pakistan, Bahrain, Iraq, and Egypt. In fact, back before he became a convenient whipping post, the Ukraine government of Viktor Yanukovich was the recipient of over $80,000 in weapons, some of which may well have been used in the repression of last winter’s protests.

Canada Supporting Coups
            Canada’s global mining industry similarly presents Canada with an opportunity to support the coups and repressive regimes that host them. In Guatemala, for example, where some five dozen unionists have been murdered in the past five years, favoured trade status with the EU and US is under threat for that government’s failure to investigate these murders. Canada has been silent no doubt because conditions are perfect for record mining company profits (http://www.miningwatch.ca/news/road-justice-speaking-tour-bring-attention-guatemala-mining-conflict-need-remedy-canada)  In the same neighbourhood, Canada supported the 2009 coup in Honduras by opening up free trade talks, while Nobel Laureate Jody Williams noted, “The Canadian embassy remains silent on the human rights abuses committed by mining companies, while playing a prominent role in facilitating high-level meetings for corporations.” (http://www.canadians.org/fr/node/8298) John Ralston Saul writes that some three dozen Honduran journalists have been killed since 2009 with impunity: only two convictions have been registered in these crimes. (http://www.ottawacitizen.com/business/Canada+should+press+Honduras+free+speech/9719393/story.html)  
            Ottawa has treated post-coup Egypt with kid gloves as well, refusing to condemn the overthrow of the democratically elected Morsi government, claiming in retrospect that because Morsi tended toward the autocratic, there was no need to return him to power (an argument one could perhaps use in the case of Stephen Harper as he bulldozes through with omnibus legislation and his “Fair Elections” Act). Canada continues regular relations with Egypt while that country holds Canadian citizen and Al Jazeera reporter Mohamed Fahmy, and pretends all is well as 529 individuals were sentenced to death last month following an in absentia trial lasting less than one hour.  The Egyptian government, meanwhile, has not been held to account for the murder of over 1,200 civilian protesters and the mass jailing of over 16,000 people  (http://www.hrw.org/news/2014/03/24/egypt-shocking-death-sentences-follow-sham-trial), and Canada has increased weapons sales to Egypt by 83% (http://www.theglobeandmail.com/news/politics/canada-exporting-arms-to-countries-with-suspicious-human-rights-records/article15817569/). Not to be worried about the ongoing repression, Canada maintains at least 13 trade commissioners in its Egyptian embassy (http://www.tradecommissioner.gc.ca/eng/find-trade-contacts-list.jsp?cids=304&search=+Submit+)
            Just to the west of Egypt lies the mess in Libya, created with the full cooperation of the Harper government (and its NDP opposition, which had no trouble fully supporting the illegal NATO bombing campaign that ousted the Gaddafi regime). There are no headlines calling out for justice in Libya, where dozens have reportedly been tortured to death, with the United Nations High Commissioner for Human Rights noting that “members of the armed brigades freely admitted, and even tried to justify, the physical abuse of detainees.” http://www.refworld.org/docid/524fe6634.html  These are the same militias who worked hand-in-hand with Canada and NATO, but in the Harper paradigm, it’s a new day in Libya, and the Canadian Trade Commissioner Service declares: “Whether you are looking to export, invest, attract investment, or develop innovation and R&D partnerships in Libya our trade commissioners are available when and where you need them.” The commission’s website does caution about travel risks and terrorism, but not a word about torture. http://www.tradecommissioner.gc.ca/eng/office.jsp?oid=154
            Meantime, Canada and the United Arab Emirates AE have signed a nuclear cooperation agreement even though the government’s own internal briefings shows Ottawa is well aware of human rights abuses, noting “international human rights organizations believe that national security has been used as a pretext by the U.A.E. government to suppress dissent and repress activists asking for democratic reforms.” http://www2.canada.com/ottawacitizen/news/archives/story.html?id=1f0c4679-27b5-4e92-b514-8c804fa6fddb

Economic Diplomacy Rules the Day
            Given Canada’s focus on “economic diplomacy” with the world, it makes sense that the profits being made from exporting coal to China (Canada has gone from shipping $13 million in 2007 to well over $1 billion now) cannot be tampered with by speaking out forcefully on behalf of Canadians illegally jailed there, such as Burlington’s Huseyin Celil, a Uighur who continues to suffer in extreme isolation behind bars while Harper welcomes a China Investment Corporation office in Toronto.
            Similarly, for all the self-serving rhetoric about liberating women in Afghanistan as an excuse for the illegal occupation of that country, Canada has been fairly tight-lipped about repression of women in Saudi Arabia, to which $10 billion in light armoured vehicles (which were used to help suppress Arab spring demonstrators in neighbouring Bahrain) are being sent from London, Ontario.
            While President Obama tries to thaw out relations with Iran, Ottawa goes harder on Tehran, even declaring that country a state sponsor of terrorism. Perhaps Canada’s role as a petro state has something to do with the stance, for as the Financial Post baldly stated last September 27, a warming up of relations with Iran means Iranian oil could flood the world market, driving down the price of Canadian petroleum products. And while Syria is now on the backburner (with Canada conceding fewer than ten Syrian refuges have actually made it to Canada), Canada waited until after the Olympics to drive home the point that Russia has continued to support the Assad regime. While Harper was making that point one fine day in September, 2013, the very same day two trade ministers were in Moscow to bolster economic ties with Canada as a “top of mind” partner. Russia was called a priority market, and two-way trade grew exponentially from $179 million in 1999 to over 2.65 billion in 2012. The “evil” Putin was in power most of that time, and invaded other territories (South Ossetia in 2008, Chechnya in the 1990s), but with little sense of outrage from the so-called west.  
            While space does not permit a comprehensive overview of Canadian foreign policy here, the trends are clear. The idea that Canada will be, in the words of Mr. Baird, pressing for human rights, the rule of law, and freedom in its dealings with the world is so Orwellian as to debase the oft-used term. It’s not so much a double standard as it is a single standard, the one that emerges from the state of exceptionalism with which the Canadian government views itself on the world stage. In this pure and perfect world, there is no such thing as contradiction or irony, complicity with torture and human rights abuses, legacies of colonialism and economic strangulation. No, there is only the truth of economic prosperity as tweeted and facebooked by government ministers and regurgitated by a pliant press.

Canadian Weapons Repress Women
            In this cynical game, the problems of the world – torture, refugee crises, poverty, environmental destruction – are an annoying but easily dismissed backdrop best reflected in the rah-rah statement of Jayson Myers, president of Canadian Manufacturers and Exporters. While Human Rights Watch found that “In Saudi Arabia, 2013 was another bad year for human rights, marred by executions and repression of women and activists,” Myers gushed (http://www.theglobeandmail.com/news/politics/canadian-firm-wins-arms-deal-for-saudi-arabia-but-concerns-raised-about-human-rights/article16897175/) upon the recent news that the Saudi dictatorship would be receiving billions in Canadian weapons: “This is an Olympic win for Canada and for Canadian manufacturers. It shows how great people in truly innovative companies like General Dynamic Land Systems Canada can compete internationally and bring home the gold. Like all victories, it’s been the result of a team effort in which the government has played a crucial role. All Canadians should be proud of this record achievement.”
            If that news doesn’t have you running the maple leaf up your flagpole, nothing will.



 


Sunday, April 20, 2014

Jailing Women Who Choose to Live


Jailing Women Who Choose to Live
By Matthew Behrens
                  Anyone wandering into Ottawa’s Courtroom 30 this week might be taken aback seeing the slight, 26-year-old Ashley White standing before a judge who could sentence her to 14 years in prison. Last year, White was declared guilty of aggravated assault (and acquitted of attempted murder) for stabbing her abusive former boyfriend after he beat her so severely that she required facial reconstruction surgery.
                  The man who put White under the surgeon’s knife, Patrick Halcro, was mysteriously never charged with the assault, even though he admitted in court that in fits of rage and jealousy, he punched her, claiming, “I used proportional force. I felt threatened.”
                  White suffered a shattered nose and cheekbone in addition to post-concussion syndrome and a diagnosis of PTSD. As one press report noted, “Medical evidence suggested her head trauma and the shock of seeing her face bathed in blood could have placed her in a state where she wouldn't have known what she was doing when she stabbed Halcro. As for Halcro, the knife blade nicked his lung but a trauma surgeon said the injury was relatively minor.”  The Citizen reported that White was punched to the floor  after telling Halcro to leave her apartment, and she testified that “I ended up on my back and he was standing above me with his legs either side of my body…He said, ‘I’m trained to kill and will kill you’ or words to that effect…I thought I was going to die.”
                  Four years after the original beating, White remains bound by restrictive bail, trying to pay down a six-figure legal bill with lengthy shifts at an east end sports bar. Her current conundrum raises serious questions about a legal system that still fails to heed the brutal context reported last year by the World Health Organization, which concluded that more than a third of all women worldwide will experience physical or sexual violence in their lifetime, a phenomenon it declared “a global health problem of epidemic proportions.”
                  Why is Halcro walking the streets freely while White nervously ponders a penitentiary term? Will the sentencing judge consider the fact that in choosing to live, White thankfully refused to end up as part of the annual “femicide” report issued by the Ontario Association of Interval and Transition Houses, a grim reminder of women’s lives snuffed out by men?
                  Indeed, why do we continue to react with shock and judgment when – in a country where the almost 600 women’s shelters are constantly filled to capacity and women’s services are the first to go on the chopping block – some women feel they have no choice but to use force to defend themselves against abusive men in their lives?
                  That question is soundly addressed by the University of Ottawa’s Elizabeth Sheehy, whose recent Defending Battered Women on Trial brilliantly examines the complexities of key court cases affirming women’s right to self-defense against abusers. Yet when the book was released last fall, it stirred  controversy: rather than feeling rage about the shockingly high levels of global violence against women, some wondered why women were being reminded that legal precedents existed to protect them if they dared to take the actions necessary to live?
                  It’s a question that’s also haunted Marissa Alexander, now facing a possible 60-year sentence for choosing to live. Alexander, an African-American mother of three in Florida, did not kill her abusive ex-partner when he physically attacked her and threatened her with death only nine days after she gave birth. Instead, she fired a warning shot into the ceiling to scare him off, and as a result was sentenced to 20 years behind bars.
                  During her trial, Alexander recounted numerous incidents of severe physical abuse she suffered including choking, attempted strangulation, and other incidents that required hospitalization. Her abusive ex-husband admitted in a sworn affidavit, “I honestly think [Marissa] just didn’t want me to put my hands on her anymore, so she did what she feel like she have to do to make sure she wouldn’t get hurt, you know. …The gun was never actually pointed at me.”  
                  While an appeals court rejected her contention that she should have been granted “Stand Your Ground” immunity from prosecution (under which an individual can use deadly force if “he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm”), it did confirm, in granting her a new trial, that Alexander “was charged with aggravated assault but – under any possible review of the evidence – inflicted no injury.”     
                  Alexander is now under house arrest, while the man who threatened to take her life walks free and the chief prosecutor is now seeking 60 years in prison if Alexander is convicted a second time.  
                  Ashley White and Marissa Alexander, staring down the full force of the state, force us to seriously consider a final question: why do we deny what Sheehy calls “the stark choices that women face when men will not let them go” and subsequently try to jail women who choose to live?

Matthew Behrens is a writer and community organizer in Perth, Ontario.

Friday, March 21, 2014

Does Ottawa Believe Salvadoran Government is Terrorist?



By Matthew Behrens
            It was down to the wire, but last week, Salvador Sánchez Cerén emerged as the next president of El Salvador on behalf of the FMLN (Farabundo Marti National Liberation Front). A legal political party since 1992, the FMLN, under which Sánchez Cerén was himself a commanding general, had previously been a political/military coalition resisting the Salvadoran death squad dictatorships whose brutal U.S.-sponsored wars of the 1980s claimed over 75,000 lives.
            During that decade, when slogans such as “Be a Patriot, Kill a Priest” were popular among government forces who disappeared, tortured, and massacred thousands with impunity – including the assassination of priests conducting mass –Salvadorans from all walks of life joined the resistance under the FMLN umbrella. (The FMLN was widely accepted as the only available outlet for opposition voices, recognized by the governments of France and Mexico in 1981 as “a representative political force.”)
            Since Sánchez Cerén’s election – indeed, since the previous election of an FMLN government in 2009, at whose inauguration sat then Canadian Minister of State for Foreign Affairs Peter Kent and U.S. Secretary of State Hillary Clinton – the Canadian government has carried on normal relations with the government of El Salvador. In addition, 63% of Salvadorans living abroad who were registered to vote supported the FMLN.
            Against this backdrop, two Salvadorans who refused to participate in the U.S.- and Canadian-backed terrorist regime that ruled the country during the 1980s – and who, like thousands of their fellow Salvadorans, became associated with the FMLN – are now facing a Kafkaesque immigration nightmare. At the same time Canada recognizes the FMLN government in San Salvador, it is trying to deport long-time Canadian residents Oscar Vigil of Toronto and Jose Figueroa of Langley, BC, because of their former membership in the FMLN, claiming it is an organization “that there are reasonable grounds to believe engages, has engaged or will engage in acts” that include “espionage,” “terrorism,” and “subversion by force of any government.”

Canada Calls FMLN Terrorist Force
            Both men are understandably scratching their heads, but their cases represent the tip of the iceberg in the ongoing, ideological abuse of Canada’s immigration system, long documented by the likes of Reg Whitaker in his excellent study “Double Standard,” and now represented by hundreds of Palestinians, Tamils, Iraqis, Kurds, Libyans, and others who have resisted tyranny in their homelands only to face “security inadmissibility” hearings after coming to Canada. In years to come, it will be curious to see if any of the individuals with whom Prime Minister Harper expects to meet shortly in Kiev will eventually wind up as inadmissible to Canada given their own role in the subversion by force of the democratically elected government of Ukraine.
            The terror designation is a broad and amorphous one applied based on political expedience, with Ottawa welcoming individuals who have ordered torture and assassination (Bush, Cheney, Rice, Clinton, Obama, Kissinger et al.) while turning away former British MP George Galloway and numerous members of the African National Congress (though Nelson Mandela’s advocacy of armed struggle to subvert the apartheid regime did not prevent him obtaining honourary Canadian citizenship). Indeed, Salvadoran judge Eugenio Chicas, invited by one arm of the Canadian government to attend a 2009 conference, was detained for 24 hours in Toronto by border officials horrified to find that he had been a member of the FMLN. 
            In an interview shortly thereafter with the Globe and Mail, Chicas noted: “They told me that because of my affiliation with the organization, they wouldn't let me into the country. I told them that the war in El Salvador ended 17 years ago and the FMLN is now the governing party in El Salvador, but they told me that was the information they had available.”
            The notion of “membership” in a terrorist organization is so broad that literally anyone who contributes to a newsletter, makes sandwiches for a meeting, or babysits the children of a group member is held to be a member of that named group and, therefore, complicit in anything wrong the group is alleged to have done. As always, the world of national security is full of flaky rationales and loose definitions that are vague, elastic, and lacking in any sense of consistency, due process, and rule of law.
Twice Accepted, But Overruled
            Oscar Vigil freely admitted in filing his 2001 Canadian refugee claim that he had been involved with opposition activities since grade 9, and that he became media coordinator for the FMLN in 1988, but left in 1994. Both he and his wife, Carolina, were high-profile journalists who were subject to death threats in El Salvador. They have since lived in Toronto, raising a family and becoming deeply involved in human rights-related community activities, with Vigil’s by-line appearing frequently in the Spanish language press while he also works as executive director of the Canadian Hispanic Congress.
            Although Vigil was declared inadmissible under security grounds, a 2009 pre-removal risk assessment concluded he was a person in need of protection who should not be deported, as “there is a lack of state protection for journalists or social activists in El Salvador” and that he “faces a risk to life or of cruel and unusual treatment or punishment” if returned there. A 2012 Canadian Border Services Agency (CBSA) assessment found he did not directly participate in “any combat, guerrilla or terrorist activities during his involvement with the FMLN” and further that he “does not constitute a danger to the security of Canada.” With that second positive assessment, Vigil was assured he was on the road to permanent residency and Canadian citizenship.
            In 2009, Vigil also applied for ministerial relief under an exemption in the immigration act that allows humanitarian considerations to be considered in granting someone permanent residency when they have been found inadmissible on “security” grounds. But five years later, he has received no response.
            Instead, in early 2014, at the same time his wife and three children were being sworn in as Canadian citizens, the Canadian government decided to ignore the positive findings of its own two assessments and ordered Vigil to be removed. In a coldly worded rejection, immigration case management officer Karine Roy-Tremblay acknowledged El Salvador is one of the 10 most dangerous countries on the planet, but sternly lectured Vigil that “it will be up to him to make the right choices to protect his security and his life.”  Roy-Tremblay also rejected out of hand the disturbing re-emergence of death squads in El Salvador and numerous other Central American countries.
           
Approved in Principle, but Overruled
            While Vigil and his legal team consider their options, B.C.’s Jose Figueroa is marking six months in church sanctuary. In a scene that perhaps felt more akin to his experience in El Salvador than Canada, he has had to assuage his children’s worries over the intensive CBSA surveillance of the church where he is currently staying.
            Figueroa and his wife came to Canada in 1997 but in May 2000, they were denied refugee status because the Canadian government claimed El Salvador was a safe place and NOT because Figueroa, a teacher, admitted he was a member of the FMLN from 1986 to 1995. Indeed, the denial of their claim in fact recognized the FMLN as a legitimate political party and made no mention of alleged terrorism. In 2004, he and his wife were approved in principle for permanent residency following a positive humanitarian and compassionate application that was determined with full knowledge of his FMLN membership, good news for the family of five (including three Canadian-born children, one of whom has autism). Unfortunately, permanent residency was never finalized and, in 2010, Figueroa was declared inadmissible to Canada. An outline of Mr. Figueroa's protracted dealings with Canadian immigration authorities can be found at http://wearejose.wordpress.com/canada/).
            Immigration’s Karine Roy-Tremblay handled this case as well, and noted with a similarly cold bureaucratese that even though Figueroa’s intensive work with his autistic son made a huge difference in the youngster’s transfer to a regular classroom, removing the father would not be traumatic as the kids still have their mother and “with all the technology available for communication,” he can provide emotional support for his family from afar.
            In an additional sign of how far removed from history and reality Canadian immigration officers tend to be, Roy-Tremblay patronizingly lectures in a manner that most would find offensive were it applied to anti-apartheid partisans who joined the ANC, even while that organization occasionally engaged in armed actions. Roy-Tremblay notes Figueroa’s predicament is “not the result of circumstances beyond Mr. Figueroa’s control as he chose at one point in his life to become a member of an organization that was involved in the commission of terrorist acts,” even though, as is usually the case, said acts were deemed terrorist because they were in resistance to the status quo of a terrorist government committing horrific atrocities against its people.
            As Mark Danner recounts in his study of the Salvadoran government’s terrorist El Mozote massacre – in which 733 civilians were murdered in 1981, many decapitated by soldiers – the most visible signs of the government’s dirty war “were mutilated corpses that each morning littered the streets of El Salvador’s cities. Sometimes the bodies were headless, or faceless, their features having been obliterated with a shotgun blast or an application of battery acid; sometimes limbs were missing, or hands or feet chopped off, or eyes gouged out; women’s genitals were torn and bloody, bespeaking repeated rape; men’s were often severed and stuffed into their mouths. And cut into the flesh of a corpse’s back or chest was likely to be the signature of one or another of the ‘death squads’ that had done the work, the most notorious of which were the Union of White Warriors and the Maximiliano Hernandez Martinez Brigade.”

D'Aubuisson and the Death Squads
            The Union of White Warriors was headed by Major Roberto D'Aubuisson, who praised Hitler and also founded the right-wing ARENA Party (which until recently ran the Salvadoran government and came in a close second in the March elections). As Elizabeth DiNovella reported in The Progressive (http://www.progressive.org/node/871), “The United Nations Truth Commission found that D'Aubuisson also ordered the 1980 assassination of Archbishop Oscar Romero [murdered while celebrating mass]. D'Aubuisson's death squads, run from his office in the Legislative Assembly while he was president of the legislature, had close ties to the Salvadoran and U.S. intelligence services. The Reagan and Bush Administrations condoned D'Aubuisson's activities and lavished funds on El Salvador's military throughout the civil war.” During her 2009 tour of the countryside, DiNovella noted everywhere she went, pictures of the death squad leader were proudly hung in ARENA Party headquarters. It is not known if any former ARENA party members in Canada are inadmissible on security grounds.
            While an immigration bureaucrat insists on labeling the FMLN a terrorist entity, Canada’s Public Safety Ministry confirmed in an interview with the CBC (http://www.youtube.com/watch?v=j0Bya20Zzx8, at 7:52 of broadcast) that the FMLN is not on Canada’s list of terrorist entities (nor it is listed thusly anywhere on the planet), nor is Figueroa listed as a restricted individual (indeed, former Minister of State for Foreign Affairs Peter Kent has even written a letter of support for Figueroa).
            Among Figueroa’s numerous upcoming legal actions is a court application seeking a certificate from the Public Safety Minister under s. 83.07 of the Criminal Code in order to clarify that notwithstanding the finding of bureaucrat Roy-Tremblay, Figueroa is “not a terrorist and has not been involved in a terrorist organization.” Although this request was submitted in June 2013, and the minister was obligated to respond with 15 days, Figueroa received nothing, and is now hoping the Federal Court will order the Minister to comply with the law and produce the certificate.
            Such contradictions are maddening, but the law is the law, these bureaucrats seem to imply, and so it is that the Immigration and Refugee Board (IRB) member who heard Figueroa’s case in 2010 could turn him down while still remarking, “I completely accept your evidence and testimony that you had nothing to do with the more violent activities” of the FMLN and that “your only purpose was to co-ordinate matters so as to open up the minds of the people to new and better political realities.”
            The IRB decision also quoted from the Salvadoran Truth Commission, which “never referred to the FMLN as a terrorist organization. That’s clear. It referred to the group as a political organization. On the other hand, it did refer to the terrorism through the death squads of the government.” Notably, it is estimated that the FMLN was found responsible for only 5% of the violence reported. The IRB member then says: “I can’t argue that a repressive regime that makes use of death squads needs to be changed. Nobody can argue with that. The question is how the change is brought about.”
            The IRB member later states: “What the people appear to have been trying to do was to stop a regime that ran death squads. There’s some legitimacy, I would say, in trying to arrange matters so that death squads can be eliminated.”

A Right to Resist
            Indeed, that legitimacy is encoded in United Nations General Assembly resolutions on the right to armed resistance to throw off the chains of oppression.
            Even with the FMLN in power (they won by a margin of less than 1%), being deported as a national security risk would place Vigil and Figueroa on the target list of right-wing elements that continue to hold significant power in El Salvador, including powerful elite sectors of society that waged and benefitted from the brutal war against the country’s population.
            These two cases no doubt make life fearful for others who fled the Salvadoran civil war, and with new legislation on tap to allow the stripping of Canadian citizenship for alleged connections to terrorism, many in the Salvadoran diaspora may wonder if they could be next, especially if they speak out on such controversial topics as Canadian mining interests (and related repression) in El Salvador and other Central American countries.   
            Three events to support these men and challenge the inadmissibility regime take place March 24 at 6 pm at Holy Trinity Church in downtown Toronto (http://vigilcampaign.ca/), March 28 at Langley’s Walnut Grove Luthern Church (http://www.youtube.com/watch?v=2WM7fQ0k3IU), as well as a dinner in Toronto March 28 (https://www.facebook.com/events/224623571071514/)