Canada On Trial

Canada has been fortunate thus far to have escaped the type of devastating terrorist attacks that have been visited on the United States, Spain and the United Kingdom.  In contrast to the United States, then, which has been gripped by a legitimate and persistent anxiety since the morning of Sept. 11, 2001, Canadian public discourse has not been marked by anything approaching the type of fear-factor now typical of our neighbour to the south.

Which is not to say that the aftermath of Sept. 11 has not loomed large in the Canadian imagination.  It most certainly has.  But while the U.S. has been preoccupied above all with a concern for security – an emphasis on the projection of military force and the implementation of police and intelligence measures designed to eliminate enemies and thwart further attacks – circumstances in Canada have conspired to inflect the fear inward.  What Americans fear is a threat to the homeland from a shadowy, sinister other.  Canadians, meanwhile, have been compelled to confront the prospect that the threat to what Canada stands for may in fact lie within, in the form of an over-zealous security apparatus that may have colluded, either deliberately or inadvertently, with U.S. counterparts so trigger-happy to keep America safe that due process, the rule of law, individual rights and morality itself now count for little.

If the signature post-9/11 preoccupation in the United States has been “the war on terror,” the single largest 9/11 news story in Canada has been a three-year chronicle of one man caught up in that war.  It is more than simply a news story of political consequence and manifest human interest.  It is a narrative resonant with essential Canadian cultural values, not only touching on many of the deepest Canadian concerns and core self-understandings, but indeed putting them to the test.  It is a story about the immigrant fact in Canada, a country that prides itself on being the most ethnically diverse on the face of the planet.  It is about the rule of law in a peaceable dominion convinced that peace is secured, above all, through the rule of law.  It is about secrecy in an open society and the balance between vigilance, prudence, and paranoia.  It is about freedom of the press in a liberal democracy.  Crucially, it is about national sovereignty and Canada’s relations with its closest neighbour and closest friend at a moment of extreme jeopardy for the United States.

In short, it concerns such fundamental aspects of Canadian civil society that a man who has never been charged with anything has put the nation on trial.  How Canada reacts to the case of Maher Arar has become a litmus test of its character.

This much is known:  On Sept. 26, 2002, Maher Arar, a 33-year-old father of two, was returning to his home in Ottawa from a holiday in Tunisia, where he and his family had been visiting his wife’s family.  A self-employed computer software engineer, he returned home ahead of his wife and children because a business opportunity had arisen.

In transit through New York’s JFK airport, he was detained and questioned by officers of the U.S. Immigration and Naturalization Service, and shortly thereafter held for two weeks in a Brooklyn detention centre.  A Canadian citizen, Arar had left Syria as a teenager.  Under questioning for supposed links to al-Qaeda, U.S. authorities threatened him with deportation to Syria.  He was permitted contact with Canadian consular officials who assured him that, as a Canadian citizen, the U.S. threat of deportation to Syria could only be an intimidation tactic.  It was not.  At a secret hearing held in the middle of the night at which he had neither representation from a lawyer nor the Canadian consulate he was ordered deported, bundled aboard a Gulfstream jet and flown to Jordan.  Upon arrival he was driven by Jordanian agents into Syria and deposited at the so-called Palestine Branch of the Syrian military prison in Damascus.  There, he says he was interrogated by being beaten on the soles of his feet with electrical cables to the point where he falsely confessed to having trained in a terrorist camp in Afghanistan, a country he insists he has never visited.  He was then transferred to the Sednayeh prison in Damascus, where he spent the next 10 months in a two metres by three metres cell he describes as little larger than a grave.  He was eventually released on Oct. 5, 2003.

In Canada, news coverage of the Arar case began slowly, in part because at first there was so little to report on.  Next to nothing was known at the outset.  The Americans were not talking; the Syrians were not talking; and the Canadian diplomatic service – the Department of Foreign Affairs – was being typically circumspect.  For example, the first mention of the episode in Maclean’s, the national newsmagazine, came on Nov. 4, 2002 – almost a month-and-a-half after he had been first detained by the Americans – in a one-paragraph squib on the “Week in Review” page under the headline “The strange case of Maher Arar.”

Over the next three years. however, the coverage would build in intensity, initially fuelled by perplexity if not indeed outrage at the extra-judicial actions of the United States in deporting him in the first place to a country well-known for its human rights abuses.  If the Americans had legitimate grounds to suspect him of terrorist ties, then why did they not charge him?  Or surrender him to Canada to allow the RCMP to investigate the allegations?  Was this clear evidence of the U.S. out-sourcing torture, in which anyone suspected of terrorist involvement might be delivered into the hands of a regime that had no qualms about resorting to physical abuse to secure information, and Arar’s Canadian citizenship be damned?  Even more disturbing, was it possible that Arar had been deported to Syria with the collusion of Canadian authorities or at their behest?

Over the next three years, reams of news copy would be written on the Arar affair and scores of editorials.  Arar’s wife, Monia Mazigh, fought a tireless campaign to secure her husband’s release and keep his name in the headlines, thrusting herself into the media spotlight to the point where she was recruited to run for Parliament by the left-leaning New Democratic Party in the 2004 federal election.  (She lost, but she was running in a constituency the NDP had faint hope of winning.  Carrying the seat was not the point.)  For the benefit of non-Canadians, it is difficult to overstate the cause célèbre the Arar case has become in Canada.  For example, in December 2004 the Canadian edition of Time magazine named Arar its “Canadian newsmaker of the year.”  In the U.S. Time’s newsmaker of the year was George W. Bush.  The Arar affair even became a play titled Relative Good, staged in the summer of 2004 by the Great Canadian Theatre Company in Ottawa.

Tugging centripetally at Canadian anger over the U.S. treatment of a Canadian citizen was the worry that Arar might indeed be guilty of terrorist associations.  To be blunt, Arar and his family are the very model of what Canadians hope for and admire in their immigrant population.  Maher Arar came to Canada at the age of 17, taught himself both English and French, and went on to take a Master’s degree in telecommunications engineering at McGill University in Montreal, where he met his wife, herself an immigrant who completed a Ph.D. in Finance at McGill.  In her campaign on her husband’s behalf before fora such as the House of Commons Foreign Affairs Committee, Monia Mazigh was a passionate, persuasive and altogether exemplary advocate.  Upon his release, Arar himself emerged in his media appearances as a profoundly decent man – angry at what had been allowed to happen to him, certainly, but committed to clearing his name and to exposing the circumstances that led to his imprisonment in a Syrian prison so as to ensure that nothing like this could happen to another Canadian.

If it were to be revealed that Maher Arar was not the model citizen he appeared to be – if he turned out to be exactly what the Americans suggested he was:  an extremist bent on violence against the society that had welcomed him, educated him, and in which he had made a comfortable life for himself and his family – then the Canadian embrace of every immigrant like him would be severely shaken.  The repercussions would be profound.

But that, as the media coverage was at pains to point out, was not the issue in the first instance or even in the last.  The issue, as the Globe and Mail pointed out in an editorial three days after Arar’s release, was that:  “It cannot be that this is the way of things, post-Sept. 11.  As necessary as it is to be ever-vigilant about terrorism, democratic countries need to preserve their elemental values – the presumption of innocence, the right to due process and to be tried without unreasonable delay.  None of those was respected in the case of Maher Arar.”  (Oct. 8/03)

As it happens, after three years of the most intense scrutiny of his life, all the evidence entered into the public domain points to the conclusion that Arar is precisely what he seems to be:  a wronged man caught up in a web of suspicion.  So, how was it that he ended up in prison in Damascus?

What we know of that has emerged only haltingly, and only as a result of an official public inquiry into the circumstances leading to his incarceration.  Arar called for just such an inquiry shortly after his return to Canada but the government of the day initially resisted, then-Prime Minister Chretien insisting in the House that “The people responsible for the deportation of this gentleman to Syria are in the government of the United States, not the government of Canada.”  Arar maintained otherwise, arguing that both the Americans and the Syrians had questioned him using information that could only have come from Canadian intelligence or police sources.

Even as calls for a public inquiry became more insistent from newspaper editorial boards, opposition parties, the Canadian Bar Association and others, the government might have stone-walled if not for a bizarre incident on January 22, 2004 in which RCMP officers raided the home and office of Ottawa Citizen journalist Juliet O’Neill.

It appears that, in an effort to dampen calls for an inquiry, elements in the security apparatus had been selectively leaking material to the media based on Arar’s forced confession in Syria, suggesting that he was indeed mobbed up with al-Qaeda.  This whisper campaign had been denounced as early as October 2003 by then-Foreign Affairs minister Bill Graham, and in November by Globe and Mail journalist Hugh Winsor.  On January 10, 2004 the new Prime Minister, Paul Martin, also decried the leaks and the RCMP launched a criminal investigation into their source.

Twelve days later, the Mounties descended on the home and office of Ms. O’Neill, seeking evidence for the source of a story she had written the previous November that the RCMP believed was based on internal RCMP documents.  The spectacle of federal police officers rifling through the professional and personal belongings of a national journalist was the last straw, especially since Arar had featured in a prime-time broadcast on the CBS program 60 Minutes II in the United States the night before.  Six days later, on Jan. 28, 2004, the government had no choice but to call a public inquiry.

As it turned out, a good deal of the inquiry was not public at all, but conducted behind closed doors and in secret in the interests of “national security.”  What emerged from the open portions of the proceedings gave indications of tensions between the Canadian Security Intelligence Service (CSIS, the domestic spy agency), the diplomats at Foreign Affairs, and the RCMP – and even within the RCMP.  At the same time, what came to light were details of an extensive surveillance and police operation that had begun even before Sept. 11, 2001 and in which Maher Arar was implicated, but only a peripheral figure.

The inquiry concluded hearing testimony from witnesses in early September 2005 and the presiding justice has yet to deliver his findings.  But it appears that the circumstances that led to Arar’s imprisonment were set in motion in Pakistan a decade ago at the hands of a man named Ahmed Said Khadr.  Khadr was an Egyptian-Canadian who ran a UN-sponsored charity in Pakistan devoted to resettling Afghan refugees from the Soviet war in their home country.  In 1995, a bomb detonated at the Egyptian embassy in Jalalabad and the Pakistani authorities arrested Khadr on suspicion of having financed the attack.  As a Canadian, Khadr appealed to his government for assistance and then-Prime Minister Chretien personally interceded to secure his release.  This then became a severe embarrassment to the government of Canada when it was subsequently revealed that Khadr was a fanatic who loathed the West, had close ties to al-Qaeda, and had sent his sons to train with bin Laden’s organization in Afghanistan.  Khadr was eventually killed in a gun battle with Pakistani security forces in 2003.

As a consequence, the Canadian spy agency, CSIS, took an intense interest in Khadr’s charity organization and in anyone who had come into his orbit.  One of those people was Abdullah Amalki, an electrical engineer who studied at Carleton University and who worked for Khadr’s charity in the early 1990s before having a falling out with him.  By 1998 Amalki had set up a business in Canada in which he exported computer parts to Pakistan.  That was the first time he was contacted by CSIS in what seemed to him to be a perfectly innocent interview.  At a second meeting, the questions focused on Ahmed Said Khadr and his relations with Osama bin Laden, something Amalki says he knew nothing about.  CSIS called him again in 2000, asking to know about a business trip he took to Hong Kong in the company of a Muslim associate who had a commercial pilot’s licence.  A week after the Sept. 11 attacks CSIS again called at his home, wanting to know more about the associate with the pilot’s licence.

A month after the Sept. 11 attacks Amalki had lunch with Maher Arar, a meeting that was observed by security agents.  According to documents filed in the public inquiry, this is when Arar first came to the attention of the intelligence apparatus.

By late November 2001 Amalki and his family travelled to Malaysia to visit his wife’s mother, where he was again questioned by authorities about his export business.

On May 3, 2002, Amalki went to Syria, he says to visit his grandmother, who was ill.  He was detained at the airport, taken to the Palestine Branch of the Syrian military prison, beaten, and questioned about a man named Ahmad El-Maati – a name Amalki says he did not recognize – and Maher Arar.  Under torture, Amalki says he falsely confessed to being a member of al-Qaeda.  He would spend two years in a Syrian prison before being released, like Arar, without charge.

Meanwhile, the third man, Ahmad El-Maati, was a Toronto truck driver who had also come to the attention of the security apparatus and was also jailed by the Syrians. In 1991, as a young man, he and his older brother Amr travelled to Afghanistan to volunteer with the Mujahadin in the fight against the Soviets.  By 1997 El-Maati was back in Canada working as a trucker.  In 1999 he took five flying lessons in a small Cessna.  In August 2001, en route across the U.S. border to Philadelphia, his truck was inspected and U.S. border guards discovered in his glove compartment a map of Canadian government buildings at an installation in Ottawa called Tunney’s Pasture, showing among other things the location of an Atomic Energy Canada Ltd. building and a viral research facility.

El-Maati claimed the map must have been left in the truck’s cab by another driver.  The U.S. border guards photocopied it and let him proceed to Philadelphia.  In September 2005, the Globe and Mail revealed that this map is routinely handed out by the Canadian government to delivery drivers who have to negotiate the maze of buildings at the Tunney’s Pasture installation.

On Sept. 11, 2001, within hours of the attacks in New York and Washington, CSIS agents were on El-Maati’s doorstep asking questions.

Later, once coalition forces had routed the Taliban, Canadian documents belonging to Ahmad El-Maati’s brother Amr were discovered in an al-Qaeda safehouse in Afghanistan and Amr El-Maati was placed on a U.S. wanted list.

On Nov. 11, 2001, Ahmad El-Maati boarded a flight to Damascus for his wedding to a woman he had been arranged to marry.  When he arrived he was detained by Syrian authorities, transported to the Damascus military prison and interrogated under torture.  He was questioned about the map, and about Abdullah Amalki and Maher Arar.  Her says that he falsely confessed to planning a bomb attack in Ottawa and to falsely implicating both Almalki and Arar.

After almost four months in a Syrian prison, he was handed over to the Egyptians who also kept him without charge before he was released on March 29, 2004.

All of this makes it plain that foreign security forces were working with intelligence that was Canadian in origin.  When Maher Arar was being questioned by U.S. authorities in New York City he was asked whether he knew Abdullah Amalki.  He initially denied it, whereupon the U.S. officers produced a copy of a rental agreement on which Amalki had served as a witness to Arar’s signature.

It emerged from the Arar public inquiry that the CSIS intelligence on Amalki and El-Maati had been handed over to the RCMP shortly after Sept. 11, 2001 because CSIS believed there were now sufficient grounds to launch a criminal investigation.  The RCMP created a unit designated “AO Canada” to handle the file, and that unit, or someone in it, shared the raw intelligence with the Americans in what is called a “data dump.”

But did the Americans simply act unilaterally on the information to deport Arar to Syria, with no other involvement from Canadian authorities?  Or, as then-US ambassador to Canada Paul Celluci suggested in an address to the Ottawa branch of the Harvard Club in April 2003, were there some in the Canadian government who did not want Mr. Arar returned from Syria?

We will not know the answer to that until Mr. Justice O’Connor delivers his findings in the Arar inquiry, and perhaps not even then. Needless to say, both the Syrians and the Americans refused to co-operate or participate in the inquiry.

In the meantime, we are left to assess the state of Canadian civil society in its reaction to the Arar affair.  The episode has tested an array of values that the country holds most dear.  How did we fare?  On the one hand, there may well have been over-zealous collusion with the U.S. on the part of some in the Canadian security apparatus that led to the extra-judicial imprisonment of a Canadian citizen.  And there was certainly over-zealous police action in the RCMP raid on the home and office of a national journalist.  On the other hand, the Canadian news media were determined to keep the Arar affair in the spotlight, along with organizations such as Amnesty International and the Canadian Bar Association.  The concern expressed by large numbers of the Canadian public was genuine and sustained – the story stayed news not because journalists played it up, but because the public insisted that it remain news.  Maher Arar, for reasons that remain murky but that no doubt involve diplomatic pressure from Canada, is now safe in his homeland.  And the warrant that allowed officers of the federal police force to search the home and belongings of a journalist will no doubt be quashed.

If the country was put to the test, it passed.  Perhaps not with flying colours, but it

Danish School of Journalism Aarhus 2006