Friday, August 26, 2005

Liberty and Safety

On the Globe & Mail's masthead appears this quotation from Junius: "The subject who is truly loyal to the Chief Magistrate will neither advise nor submit to arbitrary measures." The newspaper's shameful defence of security certificates today departs from its own advice at near-lightspeed.

Adil Charkaoui had been imprisoned without charge or trial under a security certificate for nearly two years, until he was finally freed on bail on February 17. Four other detainees remain behind bars: Hassan Almrei, for close to four years; Mohammad Mahjoub, for more than five years; Mohamed Harkat, for nearly three years; and Mahmoud Jaballah, for four years this month. All face torture, and possibly execution, if deported to their countries of origin.

Charkaoui has been granted a review of his detention by the Supreme Court of Canada. This has prompted the Globe to publish possibly one of the most dishonest and disingenuous editorials in its recent history, although there are many to choose from. It’s worth dissecting in detail.

Here is its major premise: "Far from being a Draconian attack on non-citizens, the security-certificate law makes possible the country's generosity and openness." It goes on: "A country cannot embrace all the world's peoples, as Canada does, without reserving for itself the right to remove those newcomers it deems dangerous -- as long as due process is preserved."

Now, let's have a look at that "due process" the Globe is prating about. Charges under Canadian law? Nope. A trial? Nope. The right to examine evidence? Nope. The right to cross-examine witnesses? Nope again.

What these five men get is a deportation hearing. As the Globe says, the government has the right to detain and then deport them "if it persuades a judge that its belief is based upon reasonable grounds." In fact, the editorial lays out precisely what "due process" amounts to in these circumstances:

The government may ask a Federal Court judge to keep some of the evidence private, either to preserve national security or to protect the safety of individuals. But it is the judge, not the state, who decides what is private and what should be public….A hearing follows in open court, and the suspect and his lawyer are given a chance to call witnesses, and to rebut the state’s case. The secret parts are summarized by the judge. There is a frequent opportunity for review by independent judges.

Why am I not reassured? Because I try to put myself in the place of Adil Charkaoui. I have a lawyer, who doesn't know the charges against me, because there aren't any, nor can she review much of the evidence. She tries to cross-examine a CSIS witness: the witness declines to answer, on the grounds of "national security." The judge (a government appointee) summarizes evidence, but is obviously not subject to cross-examination. Numerous ex parte meetings take place between the judge and the government lawyers. I begin to wonder if I'm really in Canada after all. Then it's back to prison, unless I'm lucky enough, on my fourth attempt in 21 months (like Adil Charkaoui), to make bail, under such strict conditions that I need to go back to court to ask permission to find books in a library.

"The law is respectful of due process," the Globe editorial continues. I begin to wonder why it wasn’t written in Newspeak: Big Brother is doubleplusgood. Here's more:

Once here, anyone, whatever crimes they may be suspected of [emphasis mine], is entitled to make a refugee claim. …The protection of Canada’s Charter ensures an impartial hearing for refugee claimants. That process may take years. Consider, then, what might happen if there were no security-certificate law, and a suspected [emphasis mine] crime boss or terrorist entered Canada. He might live for years in freedom.

Horrors! Innocent until proven guilty! But how to prove guilt?

Should Canada send police abroad to conduct a criminal investigation every time someone who raises a red flag comes to this country? That is not a realistic option, or even a desirable one.

The question of precisely how that "red flag" gets raised, of course, is left out of the editorial. The system worked well for Maher Arar, didn’t it? And he was a citizen!

Then this piece of disingenuous claptrap:

Imagine…that a terrorist incident occurred, as it did in Britain last month with the loss of scores of lives. Canadians would discover that they were powerless to do anything about foreign terrorist suspects living in their midst.

The fact that the bombers were home-grown has escaped the writer. But, more seriously, the editorial plays a sleazy little game with language: are the "terrorist suspects" in the above example implicated in the "terrorist incident?" If so, Canada is anything but powerless: our police could round them up and charge them, our courts could try them, and, if found guilty, could imprison or deport them. That's due process, folks. No closed courts. No secret evidence. No years in prison without charge or trial.

The Globe concludes:

Mr. Charkaoui is asking the Supreme Court, in effect, to choose liberty over security. The choice is a false one. One is not possible without the other.

No, he is not, so let’s dispose of that straw-man. Mr. Charkaoui is challenging the grounds for his imprisonment without trial, and his threatened deportation to Morocco, where he faces the likelihood of torture and death. (Canada’s non-compliance with the UN Convention Against Torture, in fact, has recently drawn critical scrutiny from the UN’s Committee Against Torture.) He is asking for the very due process, in fact, that has been denied to him thus far.

Perhaps the editorialist, who reassures us that the police and the courts and the government must know what they’re doing, would walk us through the Maher Arar mess, just to show us that we have nothing to fear. Or explain why the Globe, presumably not privy to the secret evidence on that occasion either, so hotly attacked the use of a security certificate in the case of neo-Nazi Ernst Zündel.

"Those who would give up Essential Liberty to purchase a little Temporary Safety," Benjamin Franklin is alleged to have said, "deserve neither Liberty nor Safety." Ben, meet Junius. And why don't the two of you have a nice sit-down with the Globe editorial board?

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