ZGrams - 11/15/2003 - "Security Certificate Trials in Absurdistan"

[zgrams at zgrams.zundelsite.org]

Zgram - Where Truth is Destiny:  Now more than ever!

November 15, 2003

Good Morning from the Zundelsite:

So here I am, at practically midnight, having slept a few hours, 
trying to catch up on four Zgrams to bring myself again up-to-date. 
You will forgive me if some of my Zgrams are going to be on the short 
side.

Let me start with what is going to happen today, even though I am 
dating this Zgram backwards to keep them in sequence for archival's 
sake.  As you will remember, today (Nov. 18, 2003) will commence a 
two-day hearing in the Ontario Superior Court under a new judge in a 
new setting with a new attorney team about what happened to Ernst 
Zündel since his arrest/kidnapping for "having missed a hearing" in 
Tennessee February 5, 2003. 

This is NOT a review by a higher court about a contested ruling by a 
lower court.  This is a review about what Judge Blais, a former boss 
of CSIS's (!), has been doing by dragging his feet and thereby so 
cruelly withholding bail from a man not charged with anything, as 
well as participating in secret hearings from which both Ernst and 
his attorney are excluded.  It is a hearing in mid-stream, so to 
speak, to abort what has been going on in the Stalinist mode in a 
country ever more referred to by the foreign press as "Absurdistan".

On the agenda will be two main items:  1)  why it took Judge Blais 
three quarters of a year to decide if Ernst Zundel even merits bail, 
when the ordinary procedure of a bail hearing would only take an 
hour, and 2) the constitutionality of secret hearings etc. where CSIS 
is free to invent! 

That's telling you roughly what will be discussed - but in fact it is 
much, much more complicated, as the transcripts are going to reveal.

To give you an overview of the blatancy of it all, I am going to let 
you read an article by Eddie Greenspan, a prominent Jewish attorney 
practicing in Toronto and certainly no friend of Ernst's, who 
nonetheless can see the writing on the wall for his own tribe, if the 
CSIS disgrace is allowed to continue.  This article appeared in 
MacLean's, July 28, 2003 - and while Eddie could not bring himself to 
mention Ernst by name, it is very clear that the write-up is 
precisely about him.  In defense of Greenspan, let me also say that, 
unlike his fellow tribalists, he has consistently spoken out against 
encroaching dictatorship in Canada, and even though there is no love 
lost whatsoever between Greenspan and Zündel, there is a grudging 
mutual respect between the two antagonists, because at least they are 
consistent in their views and do not give an inch. 

This article is titled "In Defense of Freedom:  A top lawyer says 
terrorists win when due process is subverted."  (MACLEAN'S, July 28, 
2003)

[START]

There is a land where the government can arrest non-citizens, throw 
them in jail for an indefinite period of time, and then remove them 
from the country, all in virtual secrecy.  This is a land where, for 
certain people, civil liberties and rights of due process don't 
exist.  No, this is not China or Cuba.  This is Canada - a country I 
believed understood the transcendent importance of safeguarding civil 
liberties.  But against those whom Ottawa secretly determines are a 
threat to national security, the government can act, and is now 
acting in alarming ways.  Has Canada gone mad?  Shades of Guantanamo 
Bay- where the U.S. has imprisoned hundreds of suspected terrorists 
without trial - colour the government and the judiciary.

The Immigration and Refugee Protection Act allows the immigration 
minister and solicitor general to sign a "security certificate" 
against a foreign visitor or an individual with permanent resident 
status, declaring that person "inadmissible" to Canada.  The 
certificate, based on information provided by the Canadian Security 
Intelligence Service, has been used 27 times in the last 10 years, 
including five times since the September 11 terrorist attacks.

The security concerns listed in the act are general and vague, and 
include "engaging in terrorism, or acts of violence that would or 
might endanger the lives and safety of persons in Canada", or simply 
being a "danger to the security of Canada."  Under the certificate, a 
foreign visitor is immediately subject to arrest and can be held 
indefinitely without bail.  For a person with permanent resident 
status, a Federal Court judge must start a review within 48 hours. 
If the judge finds the detention warranted, the permanent resident 
can be held without review for six months.  Incredibly, neither the 
accused nor his lawyer is entitled to be present when the judge 
determines if further detention is warranted.

In both cases, by the seventh day of custody, a Federal Court judge 
must start to review the government's evidence.  Again, neither the 
accused nor his lawyer is entitled to be present.  The evidence can 
be hearsay, double hearsay, triple hearsay.  It's the judge and 
government lawyers sitting together making fundamental decisions 
about someone's liberty, without them being there to listen, object, 
question, protest or even to agree.

A summary of the evidence must eventually be presented to the 
accused, but even then the government can withhold any or all 
evidence if a judge rules that providing the information risks 
national security.  In a subsequent hearing, the accused is given an 
opportunity to be heard, but this hearing is inherently unfair 
because the accused can only respond to the summary of the 
allegations.  At this hearing, the judge does not determine whether 
the accused is actually a security threat or whether the secret 
evidence is reliable.  The judge's only role is to assess whether the 
issuance of the certificate was "reasonable."  Only three times has a 
certificate been overturned on review.  In one case, a certificate 
against Mahmoud Jaballah, an Egyptian refugee claimant, was 
overturned in 2000.  However, Jaballah was arrested the following 
summer under a second security certificate, and the father of six has 
been held in solitary confinement in Toronto's Metro West Detention 
Centre ever since.

The accused cannot appeal and can be quickly deported, even to a 
country where he may be tortured.  Worse, the accused's lawyer is 
kept in the dark about the evidence.  Bruce Engel is a thoughtful 
Ottawa lawyer doing his best to represent Mohamed Harkat, a 35 year 
old Algerian refugee who has been held in protective custody since 
his arrest in the capital in December 2002 on suspicion of being an 
al-Qaeda operative.  He says the summary of the evidence against his 
client is pitifully vague.  What, he wonders, if the government has 
arrested the wrong person?  How can the wrongfully accused defend 
themselves if they have no idea what the evidence is?

It's astounding that we are living under a government that, in 
defense of freedom and liberty, can keep someone not charged with any 
crime in solitary confinement for years based on secret information. 
It's terrible to contemplate that people can lose their livelihood 
based on information they cannot question.  It's unthinkable that 
such people have absolutely no right to appeal or review, a glaring 
violation of a basic tenet of the rule of law: the right to appeal 
the decisions of a lower court. 

We are living in a time when the defeat of terrorism is on everyone's 
mind.  But that doesn't mean we are supposed to simply trust the 
government to act wisely on correct information.  The rule of law is 
the bedrock of our nation, not blind faith in the unchecked judgment 
of government officials.  Any country that lives by a rule of "trust 
us, there is no need for due process", is totalitarian.  We should be 
ashamed that there is a process in security cases that can be 
compared to the ignominious Star Chamber, a medieval English court 
that was dismantled by Parliament in 1641, but whose name survives to 
describe arbitrary, secretive proceedings. 

The challenge is to figure out a way to deal with the threat of 
terrorism without losing the freedoms that make Canada the great 
nation it is.  Everyone must be able to respond to their accusers, 
whether in the realm of a criminal trial or a security hearing.  We 
must demand that persons threatened with loss of liberty, livelihood 
and possibly life be provided with someone in this process who can 
protect them from false and unsupported allegations.  Let the lawyer 
for the accused participate in the meetings with judge and 
government.  Let a lawyer have some opportunity to effectively 
question the accusations.  I shudder at the thought of those who have 
suffered wrongful convictions.  It's terrifying that in ordinary 
criminal cases, following a trial by judge and jury, after a full 
opportunity to cross-examine one's accusers and question all the 
government's evidence, mistakes are still made.

How many mistakes could the government be making in security cases? 
Agents working for CSIS respond to tips.  False tips in criminal 
cases can be uncovered through independent investigation and 
cross-examination.  But with security issues shrouded in secrecy, 
there is virtually no way of knowing whether the tipster has run amok 
in the desperate fight against terrorism.  It's not beyond the realm 
of possibility that a security certificate is issued based on 
information from corrupt government agents.

History teaches that grave threats to liberty often come in times of 
urgency, when constitutional rights seem too extravagant to endure. 
When our nation allows fundamental freedoms to be sacrificed, we 
invariably come to regret it.  Earl Warren, former chief justice of 
the U.S. Supreme Court, wrote over 35 years ago:  "It would indeed by 
ironic if, in the name of national defence, we would sanction the 
subversion of one of those liberties which make the defence of our 
nation worthwhile."

In the global struggle against terrorism, Canadians are in possession 
of the ultimate weapon.  It's the weapon of an unassailable idea - 
individual right, liberty and the dignity of the individual.  It 
would be a tragic paradox if we should surrender any part of this 
heritage, for we should then have done to ourselves from within what 
we fear most from without.  We must remain forever vigilant about any 
encroachment on personal freedom and individual liberty, of citizens 
and non-citizens alike. 

Terrorism is an acute danger, and if al Qaeda is operating inside 
Canada, it's a genuine danger - a genuine fifth column.  In fact, the 
U.S. continues to gather intelligence indicating that Canada may be a 
haven for certain terrorist cells.  We should not forget people like 
Ahmed Ressam, who was arrested crossing the U.S. border from Canada 
in December of 1999 with explosive material that he admitted was 
intended for the destruction of the Los Angeles airport.  But 
Ressam's conviction came without jeopardizing the rule of law.  I 
wholeheartedly support the "lock-them-up-and-throw-away-the-key" 
reaction.  But I say, first provide them with the kind of justice 
that makes Canada great.  As Benjamin Franklin said:  "They that can 
give up essential liberty to obtain a little temporary safety deserve 
neither liberty nor safety."  We defeat our own ends if we adopt the 
techniques of totalitarianism.  If we really believe in democracy, we 
must have faith enough to fight for its preservation with the tools 
of freedom.

[END]