ZGram - 4/5/2003 - "ZUNDEL, PRISONER OF CONSCIENCE, DETAINED
ANOTHER 30 DAYS" by Paul Fromm
irimland@zundelsite.org
irimland@zundelsite.org
Sat, 5 Apr 2003 16:19:34 -0800
ZGram - Where Truth is Destiny: Now more than ever!
April 5, 2003
Good Morning from the Zundelsite:
Subject: ZUNDEL, PRISONER OF CONSCIENCE, DETAINED ANOTHER 30 DAYS
Today's punchy ZGram was written by Paul Fromm, Director of the
Canadian Association for Free Expression, CAFE. This is another one
for history:
(START)
Dear Free Speech Supporter:
Here's my brief report on the two-day detention hearing for Ernst
Zundel, held March 31 and April 1. Two lawyers had quit on Ernst
Zundel. I was asked by supporters, consistent with our mandate to
fight for free speech, to act as Mr. Zundel's legal representative at
these hearings.
Just to recap. Ernst Zundel, a German-born revisionist
publisher, had left Canada in 2000 and taken up residence in
Sevierville, Tennessee with his American wife Ingrid Rimland. On
February 5, INS agents arrested him for alleged violations, including
failure to attend a hearing. This situation is very complex. It
appears that his then lawyer may have made errors or let him down.
Mr. Zundel is scrupulous about obligations and legal matters and
always sought to fulfill every requirement.
With unseemly haste, he was ordered deported and banned from
the U.S. for 20 years. He was returned to Canada.
Our Minister of Immigration Denis Coderre who has seldom met
a "refugee" claimant he didn't like snorted and roared. "Just watch
me," he threatened, emulating Pierre Trudeau vow to get the FLQ. The
absurd Coderre, already prejudging the Zundel case, said no one would
make a mockery of our refugee system. Well, that's already been done
by him and his department.
Mr. Zundel, since 1958, had been a landed immigrant. New
changes in the law decreed that if one was absent from Canada for
three years in five, one lost "landed immigrant status." At his first
hearing, Mr. Zundel was informed that he was no longer considered a
"landed immigrant." This decision is under appeal.
His only remaining recourse was to claim "refugee" status
based on a well-founded fear of persecution should he be returned to
Germany. The Germans have issued a request for his extradition to
face "hate" charges under a system where truth is no defence and
where a fierce and punitive fine and up to five years in prison await
him.
On Monday, March 31, I arrived at the Niagara Falls, Ontario
Immigration Offices where the hearing would be held. Nearly 20
supporters from around Southern Ontario and from as far away as
Alabama gathered to support the prisoner of conscience.
After numerous inquiries, I was told that "the prisoner" had
arrived. I was ushered into a small holding cell. There was Ernst
Zundel, unshaven, wearing a humiliating pumpkin orange prison
jumpsuit. Worst of all, he was in leg irons. A shame-faced guard
removed them as we began to discuss the case. I had less than 20
minutes to be briefed as to what he wanted. I did have material
prepared in advance by several supporters.
I was accompanied by Wolfgang Mueller my CAFE colleague. He
and I had strategized about the case and he would help with
translation of some of the German documents pertinent to the file.
As we entered the hearing, a swarm of media surrounded Ernst
-- CTV, CBC, radio and numerous print outlets, including the TORONTO
STAR, THE HAMILTON SPECTATOR, THE ST. CATHARINES STANDARD, THE
NIAGARA FALL REVIEW, and the Canadian Press, oh yes, and THE CANADIAN
JEWISH NEWS.
On the other side were no less than three government lawyers.
Normally, a slim mild-mannered man named Bill Reid handles these
cases. As he explained to me, he's not even a lawyer. So, if you're a
Jamaican drug dealer or gunman who's been ordered deported and are
caught trying to sneak in, or, if you're a Tibetan asylum shopper
coughing u multi-drug resistant TB, you face Bill Reid.
However, if you're a 64 year old pacifist, a Revisionist
publisher and publicist for unpopular views, then you face the A
Team, the Department of Justice's Dream Team. Heading the taxpayers'
anti-free speech hit squad was Donald MacIntosh. The government
brought him in specially to face Mr. Zundel. MacIntosh is one of
their heavy hitters in war crimes cases. The assignment seemed odd,
as Ernst Zundel was all of 6 years old when the war ended in 1945 and
even his most fanciful and inventive foes haven't accused him of war
crimes.
MacIntosh, thin, inordinately pale, sports long shaggy grey
hair and would screw up his face into a grimace when questioning Mr.
Zundel.
The Immigration and Refugee Board adjudicator was Robert
Murrant. In his opening remarks, he made it clear that he would first
like to hear submissions about 58.1.c of the Immigration and Refugee
Protection Act. Section 58.1 says that a person in custody under the
Act shall be released, unless the adjudicator is satisfied (c) "that
the Minister is taking necessary steps to inquire into a reasonable
suspicion that they [sic] are inadmissible on grounds of security."
He, then, proposed a definition that all but guaranteed the Crown
victory. As he saw it, these words meant that 1. he had to be assured
that CSIS was undertaking an investigation for the Minister of
Immigration and that, 2., the Minister said he had a reasonable
suspicion that the detained person was a threat to national security.
We also learned that Murrant had attended an in camera
hearing in Ottawa on March 25. This secret briefing by CSIS is part
of the Court of the Star Chamber proceedings that have been used
against Ernst Zundel. I strongly objected that such secret hearing,
where we had no opportunity to confront the witness or even know what
was said, violated the basic guarantees of Anglo-Saxon justice and
Common Law; that the accused has the right to face his accusers.
MacIntosh retorted that the Supreme Court endorsed such
secret testimony in its judgement in the Chiarelli case. Actually, in
that judgement the Supreme Court upheld Section 48.2 of the CSIS Act
that can exclude the accused from portions of a hearing. However, the
Court noted: "The CSIS Act ... recognizes the competing individual
and state interests and attempts to find a reasonable balance. ...
Although the first day of the hearing was conducted in camera, the
respondent was provided with a summary of the evidence presented." It
must be noted that the evidence in the Chiarelli case involved drug
trafficking and murder.
Ernst Zundel's case involves the promulgation of ideas, not
the peddling of drugs or the commission of murder, I argued.
The first and only witness against Ernst Zundel was CSIS
agent David Stewart. Stewart indicated that CSIS was preparing a
report for Immigration Minister Denis Coderre was to whether Ernst
Zundel constitutes a threat to national security.
Stewart was then questioned on a four-page report, which he
said he hadn't written, but on which he could comment. This report is
more an ideological rant, more in keeping with a press statement from
B'nai Brith or an ARA screed than a balanced intelligence report. It
is filled with repeated use of smear words -- "neo-Nazi", "White
supremacist", "anti-Semite."
For all the alleged investigation that had been done into
Ernst Zundel, the report is based on two ancient media reports: a
March 25, 1981 TORONTO STAR story about raids on rightist homes in
Germany that turned up literature supplied by Ernst Zundel; and a
1993 CBC "Fifth Estate" programme linking Ernst Zundel to various
right-wing groups in Germany. He was alleged to have sent them money
to distribute literature and organize protests and to have supplied
them with literature.
Stewart's appearance at the witness table was heralded by a
demand that no photos be taken of him for "security" reasons. Because
of his delicate job, MacIntosh alleged, Stewart's "personal safety"
might be in danger. I strongly objected that this melodrama was
injurious to Ernst Zundel, leaving the impression that somehow he or
his supporters might taken vengeance on the CSIS agent. Dark hints
that one's very life in jeopardy is a common tactic of anti-racist
campaigners. Both Warren Kinsella and Alan Dutton of the Canadian
Anti-Racism Education and Research Society have spread it about that
their lives are in danger from the far right. The joke of it is that
it's people like Ernst Zundel who've been on the receiving end of
assaults and firebombings, not state agents like Stewart or
grant-catchers like Dutton. Murrant, of course, ordered that the
brave CSIS snoop not be photographed.
After brief testimony, Stewart, slim, witrh a typical tightly
trimmed cop moustache was mine for cross-examination. I asked him to
go over the definition of a threat to national security. The CSIS Act
makes it clear that threats to national security include espionage,
activities directed by a foreign state, attempts to violently
overthrow the government of Canada or "the threat of use of acts of
serious violence against persons or property for the purpose of
achieving a political, religious or ideological objective within
Canada or a foreign state." I then had him read the special warning
Parliament included in the legislation, as it sought to avoid the
creation of a political police that would target non-violent
opponents of the government of the day or of the powerful groups that
back it. He read: A threat to national security "does not include
lawful advocacy, protest or dissent."
"Then, what is Ernst Zundel doing in your report?" I
demanded. The main allegations were that Zundel "was viewed as the
patriarch or leader of the White supremacist movement in Canada; was
and still is a leading distributor of revisionist neo-Nazi propaganda
world-wide, [and] ... maintained White supremacist contacts
internationally and channelled money through these contacts to
promote his cause."
Even if all these accusations were true -- and we deny many
of them -- how would any of this fit the definition of "national
security?" I asked. Immediately MacIntosh was on his feet. Stewart,
he argued, was not a legal expert and could not give a legal opinion.
Suddenly, it seemed Stewart wasn't much of an expert on anything. He
hadn't read the report and couldn't or wouldn't report in any detail
on the Zundel file.
Perhaps, he's not a legal expert, but he and CSIS are
supposed to operate with the law, I insisted. "Do Zundel's activities
even fall within the CSIS mandate? Are they not, if fact, simply
non-violent protest and dissent? I was thwarted in my pursuit of this
vital information.
I then asked Stewart about some of the inflammatory labels.
"Would Ernst Zundel," for instance, "describe himself as a White
supremacist?" Stewart didn't know. I then questioned him as to
whether he knew the disposition of the charges arising from the raids
of 1981 -- the subject of the sensationalist article that formed part
of the report. Stewart said he did not. Our CSIS expert cannot have
done his homework. In the detention hearing of February 28, Ernst
Zundel asked the same question and received the same answer. And,
yet, CSIS is supposedly actively inquiring into whether or not Zundel
is a threat to national security.
In his testimony, Stewart said that the White supremacist
movement had been in decline since 1994. Zundel's return would serve
as a lightning rod perhaps to revive the movement. "But wasn't Ernst
Zundel in Canada until 2000 and in this six years somehow his
presence didn't revive the movement?" I was being stonewalled. "Isn't
1994 significant because that was the year CSIS agent and financial
sugar daddy Grant Bristow was exposed as a leading member of the
Heritage Front?" Objections from MacIntosh ensured that I never
received a complete answer to this question.
While Stewart asserted that he hadn't written the report, he
did admit to having edited it. The "Summary Report Concerning Ernst
Christof Friedrich Zundel" presented at this hearing was different in
some ways from a similar document presented at the February 28
hearing. If anything, if was even more inflammatory and filled with
invective. One comical error in the earlier report spoke of "Zundel's
battle for the New World Order." The new improved report more
accurately describes his "battle against the New World Order." Was
the error a momentary lapse on the part of the eagle-eyed and
apparently anonymous CSIS writer? Or? We know that Ernst Zundel and a
legal representative spoke about this nonsensical statement over the
prison phone.
Thus, I asked Stewart as my final question: "Was this change
the result of new information or of CSIS listening in on Mr. Zundel's
telephone calls?" MacIntosh was on his feet objecting furiously. "I
thought you might," I concluded.
Now, it was our turn. I called two witnesses, Karin Kruger
and Gerhard Haas. Miss Kruger testified that she was prepared to
offer her house as a surety for bail or guarantee for Ernst Zundel.
She'd done this in earlier trials he faced. Hr. Haas indicated that
he'd provide a lodging for Mr. Zundel when he's released.
We were now at the dramatic moment. Ernst Zundel, dressed in
his prison garbs, took the stand. He tore the four page report apart.
He went through his 20 year battle with the Canadian legal system. He
had always worked within the system. He'd fulfilled all his many bail
conditions and faithfully attended at all court appearances where he
was required. Ernst explained that he had first come to Canada to
avoid military service and explained that he was a pacifist. He had
thrown people out of his home for loose talk about violence. He
indignantly refuted the allegation of "White Supremacy" pointing out
that he'd hired no-White and had sheltered a Jamaican survivor of the
Waco massacre for over seven months.
Mr. Zundel explained at length his operations in Germany.
Yes, he had funded literature distribution and meetings. However, his
emphasis was always on education, not violence. His one-time chief
public relations mad in Germany Ewald Altans, who was subsequently
revealed to be a homosexual working for the German Constitutional
Police, had also always shunned violence.
Zundel's testimony was passionate and electrifying.
I next put to his some pages from Andrew Mitrovica's
bombshell book COVERT ENTRY: SPIES, LIES AND CRIMES WITHIN CANADA'S
SECRET SERVICE. This book, relying on the revelations of former CSIS
paid snoop John Farrell, reveals a sordid campaign of mail opening,
lewdly named Operation Vulva, directed against "not only the heads of
Neo-Nazi organisations in Canada but all 'racists, fascists and
anti-Semites.'" (9\p.127) One of their chief targets was Ernst
Zundel. His mail was being seized and opened and examined. Zundel
testified that he knew of this spying and said further that some of
his mail, including divorce papers, had been stolen.
The explosive revelation from the book, however, was that at
a certain point Farrell's CSIS handler, an agent named Don Lunau,
told him not to touch any packages for Zundel, especially ones from a
Vancouver return address. "Farrell's own nervousness peaked when
Lunau ordered him to temporarily stop intercepting parcels destined
for Zundel's home. ... Lunau wasn't kidding. Farrell could hear the
urgency in his voice. In May, 1995, a parcel arrived at Zundel door
apparently from a Vancouver post office box. "(P.138-139) it was a
pipebomb. "Police said the bomb was packed with enough explosives to
seriously maim or kill anyone within 90 metres of the blast."
Had CSIS ever warned him about the bomb they clearly knew was
coming. "No" Mr. Zundel answered.
We tendered into evidence a notarized statement from Jurgen
Rieger, Mr. Zundel's German lawyer, outlining how, with one minor
exception, Zundel has been cleared of all charges and overturned
state actions against him, like the seizure on several occasions of
his German postal banking account.
Ernst Zundel also confirmed that an Access to Information
Request had revealed that he'd been under police surveillance on and
off since 1958, when he attended anti-Communist meetings in Montreal.
As our second and final witness, I called Rev. Dr. Robert
Countess of Alabama, who has known Mr. Zundel for over 15 years. Rev.
Countess is a scholar of Biblical Greek and was for over 20 years a
U.S. Army chaplain. He is also a staunch historical revisionist and
has become a sort of spiritual counsellor to M. Zundel since his move
to the U.S. about three years ago. "Is Ernst Zundel a White
supremacist?" I asked Dr. Countess. Countess was emphatic in his
testimony that Zundel was not a racist or White supremacist and
recounted how Zundel had hugged the orphaned Haitian adopted son of a
close friend whose memorial they had both attended.
The evidence in, it was now time for submissions or
argumentation. MacIntosh was insistent. He declared he didn't care
how high bail was set, Mr. Zundel would fail to comply with bail
conditions. He insisted that the government was continuing its
investigation into Mr. Zundel as a threat to national security and,
therefore, he must remain in prison.
In my submissions, I invited Adjudicator Murrant to consider
"the totality" -- a favourite phrase of Mr. MacIntosh -- of the
Immigration and Refugee Protection Act. Section 3.3 requires: "This
Act is to be construed and applied in a manner that (d) ensures that
decisions taken under this Act are consistent with the Canadian
Charter of Rights and Freedoms." I urged his to see that 58.1.c meant
that the Minister of Immigration must have a "reasonable suspicion"
that Ernst Zundel is a threat to national security.
I emphasized that Zundel had been a subject of police
investigation for over four decades. While Stewart wouldn't
acknowledge how long they'd been investigating Mr. Zundel, he did
allow that "he was known to them." For nearly a decade -- 1983 to
1992 -- Ernst Zundel had been before the courts and had operated in a
fishbowl. Furthermore, he was a publicist, perhaps even a dramatic
self-promoter. He was never shy, whether through press releases, or
speeches, or television programmes or video or audiotapes to express
his views. "Ernst Zundel is an open book, a known quantity," I said.
yet, despite the relentless attacks of his enemies and extensive
surveillance, neither in Canada nor in Germany had he ever been
charged with an offence involving violence, not assault, not
conspiracy to commit assault, not accessory after the fact. Indeed,
Ernst Zundel has no criminal record in Canada at all. His views might
be unpopular, but questioning one version of World War II, is
"dissent",. not a threat to national security. "There are no
reasonable grounds to believe that Zundel is a threat to national
security."
I pointed out that many of the people who appear before him
are illegals with false ID or no ID. There may, indeed, be grounds to
hold them pending a national security investigation. Zundel is a
public figure, a well known quantity. What's there to investigate?
I pointed out that continued incarceration violated Mr.
Zundel's right under 11.d "not to be denied reasonable bail" except
in accord with the law. Zundel, under the arcane rules of the Niagara
Detention Centre, cannot have a pen. He must try to scribble his
defence notes with a tiny stub of pencil. I held up a sample to show
Mr. Murrant. In these conditions, he cannot mount a proper defence to
the many cases he has going under the Immigration Act and in the U.S.
to regain his U.S. immigration visa, I argued.
Furthermore, Mr. Zundel has a track record. He'd received
bail on numerous occasions and, to speed up the process, Mr.
MacIntosh had agreed that Zundel had attended all the hearings, as
required. The same lady was once again prepared to risk her house as
a guarantee. Besides with an expired passport and the prospect of 20
years in prison should he sneak back to the U.S., where precisely was
Ernst Zundel to go.
Perhaps indelicately, Ernst Zundel had said during his
testimony that human rights commission tribunal members and members
of other tribunals were party loyalists appointed by the Liberal or
Conservative governments of the day. Sadly, this is usually true. I
invited Mr. Murrant to defy the wishes of his political masters,. I
reminded him that no one remembers the name of the British judge who
signed the death sentence of many of the Irish rebels after the
failed Easter Rebellion of q1916, but everyone remembered the name of
uprising leader Padraic Pearse.
Perhaps it went over his head.
In his rebuttal,. MacIntosh broke new legal ground. As he
sees it, national security means whatever we want it to mean. "The
law is a textured and complex instrument. The CSIS Act is only the
starting point to what constitutes a threat to national security," he
said.
Murrant kept us in suspense. At 3:30, he told us he'd be back
with a decision in 45 minutes or with the announcement of when he'd
have the decision. He returned to say he'd need more time. At 5:30,
we returned to the hearing to learn Ernst Zundel's fate.
The usual procedure in announcing decisions is to briefly
summarize the positions of the two sides and then explain the
judgement. The Crown evidence was summarized and then agreed with
entirely. Our arguments were not just ignored, they were not even
acknowledged. We might just as well have spoken in Tagalog without a
translator.
Murrant said: "Mr. Stewart testified that CSIS along with the
Citizsnship and Immigration Commission are in the process of
compiling a report that will be presented to the Minister. Because of
the volume of material involved, it is not yet complete. I am
satisfied that the Minister is taking steps to inquire into his
reasonable suspicion. Is there a reasonable suspicion that Mr. Zundel
is inadmissible because of reasons of security. The test of
reasonable suspicion is quite low. It is less than reasonable and
probable grounds, less than a balance of probabilities." He indicated
that the Minister indicating he had a "concern" would be sufficient
to be "reasonable". The test here is: Is the Minister taking
reasonable steps to inquire,
I'm ordering the continued detention of Ernst Zundel. I
intend to set the next detention review for May 2, 2003.
Several tearful supporters hugged Ernst Zundel. The prison
officials seemed ashamed and allowed him a little extra time with his
friends and his spiritual counsellor Rev. Dr. Robert Countess.
As he was led away, Ernst Zundel said: "I am the last German
soldier of World War II."
Paul Fromm
(END)