Very private aspects of the Arar public inquiry
|Maher Arar, who was jailed in Syria for a year after being arrested in the United States, addresses a news conference in Ottawa last month as his wife, Monia Mazigh, looks on. A public inquiry into his arrest and detention has bogged down over the issue of secret government evidence.
Commission counsel frustrated with government secrecy
In-camera hearings, court fight mark inquiry's first year
A year ago, Prime Minister Paul Martin vowed to get to the bottom of what happened to Maher Arar, promising to get the facts "out as quickly as possible."But now, 12 months later, what have we learned?Since the inquiry opened in April, there have only been eight days when testimony was heard in public, and the testimony did not deal with the specifics of Arar's case, but, rather, provided an overview of the three main agencies involved: the Royal Canadian Mounted Police, Canadian Security Intelligence Service and the Department of Foreign Affairs. There have been another 43 days of in-camera hearings.While it was not surprising that the U.S. and Syrian governments announced they would not participate in the hearings, two other Canadian citizens who had been held abroad without charges before being released and who are intimately connected to Arar's case, Abdullah Almalki and Ahmed Elmaati, also say they will likely not take the stand. And the acrimonious relationship between the government and its appointed commissioner has only worsened as the inquiry has progressed. Last month, inquiry head Justice Dennis O'Connor accused the government of censoring documents that were "favourable" to Arar, or were already in the public domain, such as newspaper articles or easily accessible federal reports. Government lawyers, striking back through the courts this month, accused O'Connor of distorting an account of the evidence presented to him behind closed doors and overstepping his mandate.American authorities detained Arar, a 34-year-old software developer from Ottawa, on Sept. 26, 2002, at New York's JFK airport, during a stopover as he tried to return to Canada from a family vacation in Tunisia. He was held until Oct. 8 on suspicion of Al Qaeda connections, and then flown on a private jet to his native Syria, via Jordan, despite his pleas to be returned to Canada. When he was released and returned to Canada in October, 2003, and went public with the details of his inhumane detention and allegations of torture at the hands of his Syrian captors, there were cries for a public inquiry.On Jan. 28 last year, following an RCMP raid on the house and office of an Ottawa Citizen reporter who had received a leaked documentsin Arar's case, the Liberal government called a federal inquiry to determine how Canadian officials were involved with Arar.But last month when O'Connor attempted to release his first summary, of evidence given privately by CSIS witnesses, government lawyers demanded the document be censored first. Angered by their reaction, lead counsel Paul Cavalluzzo held a news conference to denounce the restrictions, saying O'Connor had made every attempt to produce a "measured" report that would not jeopardize security.Government lawyers next went to the Federal Court to block the release of the uncensored report, but this week, Chief Justice Allan Lutfy told the parties to try to find a compromise before resorting to a battle in court."We've said it before — we're not happy with the government's position," Cavalluzzo says. "If you compare the 9/11 commission in the United States, you'll see that the American process has been far more open than this one, and we don't understand why our government has to take such a restrictive position."We are reviewing the conduct of the government, and that's the same party that's saying all this stuff should not be disclosed, so there
's that tension there."Government lawyer Barbara McIsaac says since the inquiry is looking into a terrorism investigation, one that is still underway, many of the confidentiality concerns are to guard against interfering with an ongoing criminal investigation, and that's what differentiates this proceeding from the 9/11 probe. "It may not have gone as quickly as everybody might have liked, and sometimes these things just can't go more quickly, and there have been unique challenges, but given those unique challenges and complexity of the issues to be reviewed, I think we have made very good progress," McIsaac says. All parties agree that the thousands of documents already reviewed and testimony from witnesses heard in private have given O'Connor a good understanding of what happened to Arar. But as Cavalluzzo is often quoted as saying, "this is a public inquiry, not a private investigation."And for Arar, who a year ago, delighted by the announcement of an inquiry, told reporters, "I have been very open. I have been very transparent — and I expect the same from the government," the process has been frustrating."I still hope to have my name cleared so that my kids can grow up feeling proud of being Canadian. I've accepted that my life will never be the same, but I will keep fighting for justice so that no one else will have to suffer what I went through ever again," he says.
Disagreements over what should be disclosed are not uncommon in inquiries. A famous example came from the probe into the ill-fated Canadian mission to Somalia, where the government shut down the proceedings before examining the 1993 torture killing of a Somali teenager and allegations of a cover-up.The public outcry that would follow an attempt to shut down the Arar inquiry or block the eventual release of O'Connor's findings (powers the federal government created under anti-terrorism legislation passed in 2001) makes those outcomes unlikely. But the early objections by the government to the public release of evidence leads some security experts to wonder if Canadians will receive many more details about Arar's case than those already uncovered."When you get down to it, in my view, the one thing they really have to worry about ... are the identity of your sources, your informants," says former CSIS boss Reid Morden, who is now the executive-director of the investigation into the United Nations' oil-for-food scandal in Iraq. "There's a lot of other stuff people just take a very restrictive view, and I think that's partly a cultural thing in our country. We're a little bit addicted to secret governments."As for concerns over straining a relationship with American intelligence agencies, Morden says aside from, again, revealing sources or specific intelligence-gathering techniques, the need to discover Canada's involvement in the Arar case is more important than worrying about making the American authorities angry. "I have no idea whether Arar is a good Canadian, a bad Canadian or an indifferent Canadian. All I know is he's a Canadian and something happened to him, and if it was some other group (in the U.S.) took it upon themselves to pull him out of the line and ship him off to a country that clearly abuses its prisoners, I want to know if there was Canadian complicity in that because I don't think there should be," Morden says.Most of the information concerning Arar's case to date has come from leaked documents or censored papers released under Access to Information requests.The most significant revelation to come from the inquiry was a heavily censored internal RCMP document that accused the federal police force of being ill-equipped to deal with security concerns post 9/11 and of handing U.S. authorities information on the Arar case, without proper restrictions or approval from supervisors. A database which included information on Arar and others investigated for possible involvement in a Canadian Al Qaeda cell was copied and given to U.S. authorities, the report notes. While the report says the RCMP had legitimate reasons to investigate Arar, it's a damning indictment of the police force that has moved back into the security business two decades after another public inquiry forced it out. The McDonald Commission berated the Mounties for engaging in mail tampering, arson and theft in an effort to collect intelligence on Quebec separatists, criticism which led to the creation of the civilian spy service, CSIS, in 1984. It was the federal government's Anti-Terrorism legislation, pushed through Parliament three months after the Sept. 11, 2001, attacks on the United States, that allowed the RCMP to begin investigating terrorist activity in Canada again, via Criminal Code amendments that introduced "terrorism" crimes.The Arar inquiry has two mandates: to determine what happened to Arar and to recommend models for an arm's-length review mechanism for the RCMP, if one is required. While the public inquiry has been struggling with security concerns and working behind closed doors, the policy review has "been moving along at great guns in the last year," according to one of the commission's legal advisers. Lawyer Ron Foerster, who is investigating different oversight models for the inquiry, says public roundtables to elicit input are expected to begin in May. While the policy review research is proceeding separately from the inq
uiry, they are tied by the overarching question of how to balance confidentiality requirements says Foerster, who is closely watching the probe into Arar's case."These questions of secrecy that are coming up about what can be published and what can't be published are very key questions to the review process," Foerster says."You have to create a mechanism, where someone on behalf of the public can go in and look at what's done and can decide that people were treated fairly, and there has to be some kind of compromise worked out between the argument that you need to keep things secret, but the balancing side of that, which is that people's rights have to be protected."
`This is a public inquiry, not a private investigation'Paul Cavalluzzo, lead counsel, Arar inquiry
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