Liberals back CSIS in Torture Lawsuit

The Liberal government has taken up the former Conservative government’s legal fight against an apology and compensation for three Canadians tortured in the Middle East, despite voting in favour of the former detainees’ cause while they sat in opposition.

As well, in aggressively defending the actions of CSIS and trying to prevent the release of thousands of unredacted documents that a judge is now poring over, the Liberals are going further than their Conservative predecessors did to protect CSIS sources.

Lawyers for Prime Minister Justin Trudeau’s Liberal government are seeking retroactive blanket anonymity for spies and their sources and have filed an appeal in a civil lawsuit launched by the three men with that goal in mind. A Conservative bill last year, C-44, which enacted source protection, was not made retroactive.

Put together, the two moves have stunned a team of lawyers at Toronto’s Stockwoods firm that took up the cause of Abdullah Almalki, Muayyed Nureddin and Ahmad El Maati, as well as others who closely follow developments in security law.

“It’s a continuation of this incredibly litigious no-holds-barred scorched-earth defence strategy which we’ve been experiencing for 10 years under the Harper government,” said lawyer Phil Tunley, who is leading the team suing the federal government on behalf of the men.

“I fear that in this case, the current government is at risk of simply letting its litigation team roll along paths ordained by the prior government, without asking whether the interests of justice are served by devoting still more taxpayers’ money to fighting meritorious claims,” said University of Ottawa law professor Craig Forcese. He and the University of Toronto’s Kent Roach are authors of False Security: The Radicalization of Canadian Anti-Terrorism, an authoritative analysis of the current slate of security laws in Canada.

Almalki, Nureddin and El Maati filed a civil claim against the Canadian government seeking $100 million in damages for their detainment and torture overseas, but the lawsuit was put on hold during a federally appointed inquiry into their ordeals.

Their stories were eerily similar to the Maher Arar scandal that unfolded in the post-9/11 anti-terror push by national security agencies in Canada and the U.S. The three men weren’t deported to torture, but they were arrested upon arrival in Syria, interrogated and tortured at the same Syrian military prison as Arar.

A judicial inquiry into Arar’s torture and imprisonment found missteps by Canadian border agents and the RCMP “very likely” led Americans to deport the Syrian-born Canadian to Jordan and then Syria, where he was tortured. The Arar inquiry recommended a separate probe into the cases of the other three men.

The government of prime minister Stephen Harper apologized to Arar and paid $10.5 million in compensation plus $1 million in legal fees to settle Arar’s civil lawsuit.

Meanwhile, retired Supreme Court justice Frank Iacobucci led the second inquiry, conducted in secret and under a narrower mandate.

In the end, Iacobucci concluded the actions of Canadian officials indirectly contributed to their detention (except for Almalki’s initial arrest) and to the torture of all three at the hands of Mideast jailers. One, El Maati, was transferred from Syria to Egypt where he was also tortured, Iacobucci said.

Still, the former Conservative government long resisted a settlement to the men’s claims, despite Iacobucci’s findings. His 455-page report became the basis for a recommendation by the Commons standing committee on public safety that the government offer an apology and compensation to the men “as reparation for the suffering they endured and the difficulties they encountered.”

At the time, in 2008’s Conservative minority Parliament, the NDP and the Liberals formed a voting majority on the committee.

When the committee’s report was brought to Parliament the Liberals again voted in support of an apology, compensation and a recommendation that the Government of Canada “do everything necessary to correct misinformation that may exist in records administered by national security agencies in Canada or abroad with respect to” the men and their families.

Now, if successful in its appeal of a ruling on source protection by Federal Court Justice Richard Mosley, the Liberal government, which has promised more accountability for national security agencies and to repeal some of the more draconian security measures enacted by the Conservatives, will go further than did the Conservatives.

Mosley ruled the federal government’s claim that C-44 should apply to CSIS sources in these cases “would be retrospective, and creates a new privilege” altogether that negatively affects the plaintiff’s rights.

Mosley said they have “a vested right to disclosure of human source identifying information in order to support” their civil claim, and that the risks of disclosure should instead be weighed under the Canada Evidence Act, “to consider whether release of the information would cause injury to one of the protected national interests and, if so, whether the risk of that harm outweighs the public interest in disclosure.”

The judge said the men contend they already know the names of at least six CSIS employees “because they had interactions with those employees, and further, that those names are in the public domain (on social media and in a book published about their experiences).” And it was CSIS’s own policy at the time for CSIS agents to identify themselves as employees of the service.

The former Conservative government introduced blanket CSIS source protection under Bill C-44 but did not make the new law retroactive. It was a bill brought in after CSIS had lost a bid for such anonymity at the Supreme Court of Canada and had been found in another case to have misled a court on CSIS’s use of foreign intelligence sources.

When C-44 was studied, the Liberals argued source protection should be decided on a case-by-case basis, as it has been for years by the courts. But when it came to a vote in Parliament, the Liberals, including current Public Safety Minister Ralph Goodale, voted for C-44. Trudeau was absent for that vote.

The Liberal election platform promised only to repeal troubling elements of another security law, Bill C-51 — changes that are not due until next fall. But C-44 looks to remain untouched.

Goodale declined comment when asked about the case by the Star, saying he wanted to check further into the facts. Later, Goodale’s spokesman, Scott Bardsley, replied by email.

“The CSIS Act includes a clear prohibition on disclosing the identities of CSIS human sources in legal proceedings, subject to exceptions to ensure compliance with the Charter. Protecting the identities of CSIS human sources is of fundamental importance to the work of our security community. As such, we are requesting that a higher court review the Federal Court decision” of Justice Mosley, Bardsley wrote.

“As this issue is currently before the courts, it would be inappropriate to comment further on this matter.”

But lawyer Phil Tunley, who is leading the team of counsel to the men, is shocked by the moves of a Liberal government that explicitly promised to bring accountability to the nation’s national security regime.

“The case is about accountability,” Tunley said in an interview.

“If you remove the courts from the oversight of CSIS management of its human sources and you basically say no court can ever look behind and see whether a source really is a confidential source or if they’re telling the truth . . . there’s no accountability in the courts. It’s an extraordinarily draconian measure.”

Tunley said Parliament can choose to make a law retroactive by saying so in legislation. However, in the case of CSIS source anonymity, the Conservative government did not move to do so. He said Ottawa’s appeal now is almost certain to delay the decade-long litigation further.

Given the mandate letters Trudeau gave his ministers, Tunley wondered “does anything the prime minister is saying, does any of the instruction he’s giving to his ministers have any impact?”

Roach, a University of Toronto law professor who was the research director for the Air India inquiry, said the CSIS informer privilege “was one of the worst features of the 2015 Conservative terror laws.” And he said the Federal Court’s decision that it couldn’t have retroactive application in this case “is well reasoned and recognizes that the new CSIS informer privilege can adversely affect those who are confronted with secrecy claims. The only exception is when innocence is at stake in a criminal trial.”

Source: http://www.thestar.com/news/canada/2016/02/06/liberals-back-csis-in-torture-lawsuit.html

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Unions Push Liberals to Repeal Bill C-51

Labour groups continue to urge the federal government to take action on Bill C-51, which was passed in June and remains in place. The law vastly expands government surveillance, provides new powers to the police and CSIS and may criminalize ordinary political activity.

The Liberals initially supported the legislation, but have promised to repeal unspecified “problematic elements” and undertake public consultations. However, any mention of Bill C-51 was notably absent from the Justin Trudeau’s Throne Speech on Dec. 4.

Daniel Therrien, the Privacy Commissioner of Canada, expressed grave concern about the bill in March, particularly its information sharing provisions.

“The scale of information sharing being proposed is unprecedented, the scope of the new powers conferred by the Act is excessive, particularly as these powers affect ordinary Canadians, and the safeguards protecting against unreasonable loss of privacy are seriously deficient,” he said in a submission to the Standing Committee on Public Safety and National Security.

On Thursday Dec. 10, Therrien expressed hope that the new Liberal government would follow-through on its commitments and engage in an open debate.

On the same day, Paul Finch, the treasurer of BCGEU, reiterated his opposition to the legislation to rabble and described past elements of the campaign against it.

“We launched a National Day of Action, we were able to organize over 70 demonstrations in conjunction with Leadnow. …The reason we did it is because we felt that this is the most important issue for labour right now in terms of civil rights and civil liberties.”

Finch also called for a Royal Commission and criticized the manner in which the legislation was introduced.

“I actually think there needs to be a Royal Commission on it. [It] needs to drive and specifically deal with issues of intelligence oversight. …If you look at Bill C-51 right now, it was something that was put forward without any kind of broad consultation, without a Royal Commission being conducted,” he said, comparing it to the process of introduction that saw the creation of CSIS in 1984.

“The modern intelligence framework [was] based on the work of two prior Royal Commissions — the most recent was the McDonald Commission, which laid out why there needed to be a separation of powers between a policing agency and an intelligence agency. Before that, it was the RCMP that had an intelligence division that was basically rampantly violating civil liberties on a very political basis. And a lot of that was aimed at labour unions, so that’s kind of where our interest came from.”

Claims of surveillance

In their statement opposing Bill C-51, the CUPW cited a “lengthy history of CUPW being spied upon by the Canadian Security Intelligence Service (CSIS) and the RCMP.” Union activist Evert Hoogers, in a volume edited by historians and sociologists affiliated with Laurentian University, has examined what he found to be labour’s history of being “spied upon, infiltrated and harassed by national security agencies[.]”

In 1994, the agency denied allegations that it was spying on CUPW and also denied spying on the CBC and political parties.

More recently, claims of spying on postal union activists were made in 2000 by ex-agent John Farrell. The Security Intelligence Review Committee (SIRC), the oversight body for CSIS, subsequently launched a probe over Farrell’s investigations. Reports on Farrell’s claims were made by Andrew Mitrovica, who would write a book centred on Farrell, who alleged that he was ordered to search through CUPW leaders’ garbage.

In April, before C-51 was passed, Mitrovica warned the public to “remember [Farrell’s story] when the Bill C-51 apologists in the media and academia… insist that since CSIS always plays by the rules, we don’t have to be alarmed by all those new powers they’re getting in Bill C-51 — powers that effectively make legal what under current law is very illegal.”

Hayden B. Peake, curator of the CIA’s Historical Intelligence Collection, in a review of Mitrovica’s work said that “[he and Farrell’s] allegations remain in doubt because there is no documentation” except irrelevant contract copies.

Looking ahead

Paul Finch told rabble that the BCGEU’s campaign going forward, launched with a broad privacy coalition, is going to call on the government to repeal key parts of the law.

“What’s happened is that the Liberals have made some vague promises about fixing the legislation but they haven’t specifically said what they’re going to fix. So it’s very unclear to everyone what they’re going to fix. …Our concern is that if we don’t have broad public pressure to repeal the worst parts of this bill, the changes will be cosmetic.”

While Finch pointed out that he would like to see the entire law repealed, he highlighted in particular its information-sharing provisions, alluding to the Edward Snowden revelations.

“Really, the linchpin of our concern is the provisions allowing, basically, normalized and legalized warrantless mass surveillance. That’s really the problem for us,” he said.

Finch also emphasized that the lack of response to the Snowden leaks is unwise, comparing its absence unfavourably to the McDonald Commission.

“In the wake of the Snowden revelations, [there] was no ensuing equivalent response or investigation that occurred. There was no Royal Commission struck, there was no equivalent response from government. In fact, the prior Conservative government basically said ‘business as usual.’ …The idea that people here should sacrifice their civil liberties to protect themselves from something that is statistically not a threat is absurd.”

Finch said that the next phases of their activism remain undetermined.

“There’s so many groups and individuals that have stepped forward and contributed to this campaign, that have led vast parts of it, that it’s hard to say what direction it’ll take. I assume there’ll be a multitude of different approaches taken, which I think is good. And the question will be, ‘what’s the most effective?'”

Source: Rabble

Impending Threat to Canadian Democracy: Harper Government’s “Anti-Terrorism Act” isn’t about Terrorism, it’s a Torture Act

From Global Research

The Harper government’s Bill C-51, or Anti-Terrorism Act, has been in the public domain for over a month. Long enough for us to know that it subverts basic principles of constitutional law, assaults rights of free speech and free assembly, and is viciously anti-democratic.

An unprecedented torrent of criticism has been directed against this bill as the government rushes it through Parliament. This has included stern or at least sceptical editorials in all the major newspapers; an open letter, signed by four former Prime Ministers and five former Supreme Court judges, denouncing the bill for exposing Canadians to major violations of their rights; and another letter, signed by a hundred Canadian law professors, explaining the dangers it poses to justice and legality.

As its critics have shown, the bill isn’t really about terrorism: it’s about smearing other activities by association—and then suppressing them in ways that would formerly have been flagrantly illegal. The bill targets, among others, people who defend the treaty rights of First Nations, people who oppose tar sands, fracking, and bitumen-carrying pipelines as threats to health and the environment, and people who urge that international law be peacefully applied to ending Israel’s illegal occupation of Palestinian territories. (Members of this latter group include significant numbers of Canadian Jews.)

But the Anti-Terrorism Act is more mortally dangerous to Canadian democracy than even these indications would suggest. A central section of the act empowers CSIS agents to obtain judicial warrants—on mere suspicion, with no requirement for supporting evidence—that will allow them to supplement other disruptive actions against purported enemies of Harperland with acts that directly violate the Charter of Rights and Freedoms and other Canadian laws.


Tell Parliament – Defeat Police State Bill C-51


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The Communist Party of Canada is campaigning to mobilize visible resistance against Bill C-51, the “Anti-Terrorism Act, 2015” announced in late January.  A growing chorus of voices demand Bill C-51 be rejected by Parliament. This is possibly the most serious attack on democratic rights since the War Measures Act. CSIS itself should be dismantled, not expanded. Join us in this struggle!

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