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Canada’s highest court on Friday unanimously struck
down a law that allows the Canadian government to detain foreign-born
terrorism suspects indefinitely using secret evidence and without
charges while their deportations are being reviewed.
The detention measure, the security certificate system, has
been described by government lawyers as an important tool for
combating international terrorism and maintaining Canada’s
domestic security. Six men are now under threat of deportation
without an open hearing under the certificates.
“The overarching principle of fundamental justice that
applies here is this: before the state can detain people for
significant periods of time, it must accord them a fair judicial
process,” Chief Justice Beverley McLachlin wrote in the
ruling.
The three men who brought the case are likely to remain jailed
or under strict parole because the court suspended its decision
for a year to allow Parliament to introduce a law consistent
with the ruling.
The decision reflected striking differences from the current
legal climate in the United States. In the Military Commissions
Act of 2006, Congress stripped the federal courts of authority
to hear challenges, through petitions for writs of habeas corpus,
to the open-ended confinement of foreign terrorism suspects
at Guantánamo Bay, Cuba.
A federal appeals court in Washington upheld the constitutionality
of that law this week, dismissing 13 cases brought on behalf
of 63 Guantánamo detainees. Their lawyers said they would
file an appeal with the Supreme Court. In two earlier decisions,
the justices ruled in favor of Guantánamo detainees on
statutory grounds but did not address the deeper constitutional
issues that this case appears to present.
At a news conference in Montreal, a defendant, Adil Charkaoui,
praised the Canadian court’s decision.
“The Supreme Court, by 9 to 0, has said no to Guantánamo
North in Canada,” said Mr. Charkaoui, who is under tightly
controlled, electronically monitored house arrest.
Stockwell Day, the Canadian minister of public safety, said
Friday, “It is our intention to follow the Supreme Court
ruling.”
He added, “We are taking in stride what they did say
and we will look at the changes that are necessary.”
The decision is also the latest in a series of events that
has seen Canada reconsider some national security steps it took
after the Sept. 11, 2001, terrorist attacks. Last September,
a judicial inquiry rebuked the police for falsely accusing a
Syrian-born Canadian, Maher Arar, of terrorist connections.
Those accusations, in 2002, led United States officials to fly
Mr. Arar to Syria, where he was jailed and tortured. Earlier
this year, the Canadian government reached a $9.75 million settlement
with Mr. Arar and offered a formal apology. The commissioner
of the Royal Canadian Mounted Police also resigned for reasons
related to the affair.
Canada’s Parliament is divided over whether to continue
two antiterrorism measures introduced in 2001 that are set to
expire on March 1. The opposition Liberal Party, which had brought
in the law, does not want to continue its special preventive
arrest powers or the secret court hearings it permits, which
resemble grand jury hearings in the United States. Two other
portions of that law have been struck down by courts in Ontario.
“We’ve started to see the rollback,” said
Alex Neve, the secretary general of Amnesty International Canada.
“Today the Supreme Court of Canada has said, ‘Make
sure you put human rights at the center of how you prevent terrorism.’
”
The security certificate system was introduced in a 1978 immigration
law and has been used 27 times, mostly before September 2001.
It allows the government to detain people indefinitely if the
minister of public safety and the minister of immigration conclude
that they are a threat to national security. The certificates,
once signed, are reviewed by a federal judge who can rule to
keep any or all of the evidence secret.
While Amnesty International and other groups have long campaigned
against the certificates, the issue attracted relatively little
attention for many years. Historically the certificates were
issued against people who were accused of spying in Canada and
who were swiftly deported.
The current cases, however, have become more prominent because
they generally involve people who have been jailed for years
without charges, using secret evidence and, in many cases, without
bail.
The sparseness of evidence makes it difficult to assess if
there is any connection linking the men. The authorities say
they have tied five of them in various ways to Al Qaeda. A sixth
was arrested in 1995 and has been out on bail since 1998. He
is charged with being a fund-raiser for the Tamil Tigers in
Sri Lanka.
Hassan Almrei, a Syrian arrested in Mississauga, Ontario, in
2001, is the only one directly involved in this case who remains
in jail.
A document from the Canadian Security and Intelligence Service
charges that Mr. Almrei, who entered Canada on false papers
in 1999, forged documents for the Sept. 11 attacks and is a
member of “an international network of extremist groups
and individuals who follow and support the Islamic extremist
ideals espoused by Osama bin Laden.” He was also accused
of sending money to Mr. bin Laden’s network through a
honey and perfume business he ran in Saudi Arabia. The government
said that a computer belonging to Mr. Almrei contained images
of Mr. bin Laden, guns, a jet cockpit and a security badge.
Like most of the other suspects, Mr. Almrei remains under a
certificate because the government’s efforts to deport
him to Syria conflict with Canadian laws that ban sending people
to places where they are likely to be tortured.
Based on the limited information available, other security
certificate cases appear to be circumstantial. Mr. Charkaoui,
a Moroccan who was arrested in 2002 and released on house arrest
in 2005, is accused of having trained in Afghanistan.
“I am innocent,” he said Friday. “I was never
charged, I was never accused of a crime. If the government has
anything to accuse me of, well, there’s the criminal code.”
Much of the judgment provides a blueprint for Parliament on
how to make security certificates fit with Canada’s charter
of rights and freedoms. As part of that, one of the court’s
suggestions seems to be adopted from Britain, whose legal system
provided the basis of Canada’s. After the House of Lords
struck down a similar law in 2004, Britain adopted a system
that allows security-cleared lawyers to attend the hearings,
review the evidence and represent the accused.
A provision of the ruling that is effective immediately requires
people held under certificates to receive a bail hearing within
48 hours.
For terrorism suspects in the United States, whose situation
is most directly analogous to that of the men in Canada, the
legal situation is cloudy at best. In the two years after Sept.
11, 2001, the government detained more than 5,000 foreign citizens.
Most were charged with offenses no more serious than overstaying
a tourist visa, and many were held for months, awaiting clearance
by the Federal Bureau of Investigation, after they had agreed
to leave the country. Not one was convicted of a crime of terrorism.
Judge John Gleeson of Federal District Court in Brooklyn ruled
last June on a class-action lawsuit brought by eight detainees.
All have left the country and are seeking damages for what they
argued was an illegitimate incarceration. Judge Gleeson dismissed
that portion of the lawsuit, ruling that the courts should not
“encroach on the executive branch in a realm where it
has particular expertise” and “legitimate foreign
policy considerations.”
Even if the plaintiffs could demonstrate that their right to
constitutional due process was violated, Judge Gleeson wrote,
the officials they sued would be entitled to immunity because
any right to “immediate or prompt removal” had not
been “clearly established” at the time. The case,
Turkmen v. Gonzales, is now on appeal.
Dalia Hashad, the United States program director for Amnesty
International, said the Canadian decision should serve as “a
wake-up call that reminds us that civilized people follow a
simple and basic rule of law, that indefinite detention is under
no circumstances acceptable.”
Linda Greenhouse contributed reporting from Washington, and
Christopher Mason from Ottawa.