“Secret Trials - Who are we protecting? What are we afraid of?”

Script for a Tableau (playlet) - performed by five people plus narrator at Toronto Good Friday Stations of the Cross for Social Justice - before an audience of 300 people. (Some photos posted on Murray Lumley's Facebook page)

Narrator:

You are attending a court scene where a detainee – in Orange Jumpsuit - an Arab refugee or immigrant, who might be from Egypt, Algeria or Syria and is a resident of Canada, has been arrested by Canadian Security and Intelligence Services or CSIS and is being held under the supervision of Canadian Border Services Agency or CBSA. He is not charged with any crime, but is held on the possiblity that he might be a danger to Canadian national security – meaning he is believed to be a terrorist or have had terrorist connections in the country he came from or has visited - until such time as he can be deported back to where he came from. There have been five such Detainees, since the mid-nineties, all Muslim men.

Because he is charged with no crime in Canada by which he could be legally incarcerated, he is being held using an Immigration instrument called a Security Certificate. CSIS has presented its case in a brief document to the government of Canada, and two Ministers – the Minister of Immigration and the Minister of Public Safety have signed the Security Certificate, which allows CBSA to keep the Detainee in secure custody until such time as he can be deported. The allegations that CSIS has against the Detainee are of a lower quality than would stand up in a normal court of law – meaning testimony of a secret witness or informer, hearsay, news articles and circumstancial evidence - for example the detainee was found to possess a map of Ottawa with some buildings or routes marked. This evidence is kept secret on the basis of National Security and only certain official people are allowed to see it - as you will see in our brief scene.

In the early 2000’s the Detainee and the others were kept in a Provincial jail – Metro West here in Toronto, which is designed for inmates convicted of crimes committed in Ontario and on sentences of two years less a day. Since the Detainees had committed no crime they could not be mixed with the prison population and were therefore kept in Solitary Confinement, often in cells that were cold and for which the jailers would do nothing to correct. This and other indignities caused the detainees to go on several hunger strikes which forced the courts at the instigation of the lawyers appointed to represent the Detainees, to order better conditions. Eventually the Canadian government built a $multi-million ‘Kingston Immigration Holding Centre’ – KIHC - located as a separate entity with its own guards at Millhaven Correctional Institution at Bath, Ontario.

The Detainees who have moved back and forth from complete incarceration to house arrest, where all of them are now, have never been deported because Canada has signed onto an international agreement to not send an immigrant or refugee back to their home country if there is a reaonable possibility that they will be tortured or killed. Federal Court Judges have upheld this decision and so the Detainees have been kept in either complete custody or house arrest with severely restrictive conditions on movement and communication with others. Court hearings seem unending. Under Canadian Immigration law the Detainees have the right to at least two kinds of hearings – 1. Reasonableness of the Security Certificate Hearings one of which is presently in its third year and 2. Detention Review every six months – which means that some of the strict conditions on travel and communication can be lifted if the Detainee has been of good, reliable behaviour. 3. Other kinds of hearings such as one where CSIS has been accused and admitted to listening in on Lawyer-Client telephone conversations.

In 2007 the Supreme Court of Canada struck down the Security Certificate legislation at the same time as one of the Detainees from Montreal had his Security Certificate quashed and became a free man. The Court gave the government one year to rewrite the legislation to make it more fair. The legislation of 2008 is almost the same but with the addition of the appointment of ‘special advocate lawyers’ who are allowed to see the ‘Secret Evidence’ but cannot communicate this to the Detainee or his lawyer. Their role is to represent the detainees interests in the secret trials. They are allowed to meet and talk with the detainee and his lawyer only before they see the secret documents, and not again after that.

There are two kind of hearings – public ones where a public summary of the allegations is provided to the detainee and his lawyers, and secret ones where only certain people get to see the ‘Secret Evidence’ but neither the Detainee nor his lawyer.

Let me introduce you to the characters:

1. person holding secret evidence box takes his/her place near ‘Secret Evidence Box’

2. the Detainee (who is at side of stage looking sad and confused)

3. the Judge has access to all of the information both secret and public and it is his or her responsibility to determine, through the course of the reasonableness hearing, to determine whether or not the detainee poses a danger to Canadian national security.

(walks across the front to the secret evidence box and looks inside while Narrator is reading and stays by the box)

4. the Government lawyer(s), who represent the interests of both the CBSA and CSIS also have access to all of the information available and are able to argue their case against the detainee in both open and secret trials. (walks across the front to the secret evidence box and looks inside while Narrator is reading and stays by the box)

5. the Special Advocate, the only person representing the interests of the detainee in the secret trials, may see all of the secret information and question the accuracy and sources of information and argue on behalf of the detainee. (walks across the front to the secret evidence box and looks inside while Narrator is reading, after looking in the box mimes asking questions of the government lawyer before the judge)

(two characters – Government lawyer, Special Advocate - depart the stage)

6. the Detainee’s lawyer and the Detainee receive a publicly authorized summary of the allegations which is the main document they are fighting against in the public hearings. They may never know the full case that the government lawyers have prepared and must present evidence and argue their case to the best of their efforts. The ‘Reasonableness Hearing’ is not about guilt or innocence of the detainee, but rather whether or not it is reasonable to detain - in jail or under strict house arrest – indefinitely, based on allegations that cannot be proven and without enough evidence to press charges under Canada's existing anti-terrorism laws.

(detainee and his lawyer walk across to the secret evidence box and are not allowed to look in the box but are given or take the redacted document - lawyer shows it to the audience revealing blacked out lines; they look at each other and sadly walk off stage)

Today, two detainees, Adil Charkaoui and Hassan Almrei are free men. Federal court judges found the security certificates against them to be unreasonable. Mohammed Harkat has had his certificate upheld earlier this year and remains under house arrest as an appeal is underway. Mahmoud Jaballah and Mohammed Mahjoub are currently in the midst of their reasonableness hearings and are awaiting a final decision.

Mahjoub Hearing – 'Disclosure' - Monday, April 11, 2011

Hi all:

Well, this was supposed to be the resumption of the ‘Reasonableness of the Security Certificate Hearing’ but it wasn’t. Four friends of Mohammad Mahjoub attended, some arriving for the 9:30 am start, but what was observed was that Public Counsel (M.’s lawyers) had sent a letter written Thursday, April 7 to the court asking for further disclosure of a wider range of documents than had been previously requested, including transcripts of RCMP interviews of M. going back to 2001 when he was held at Metro West, Toronto, as well as not limited to CSIS but including Citizenship and Immigration Canada (CIC), and CBSA recordings and transcripts both pre and post 2008. P. C. also asked for an adjournment of the Reasonableness Hearings until this lack of disclosure was set right. The court went ‘in camera’ from about 9:30 am until 10:45 am.

Court resumed public session at 10:45 am with Judge Blanchard hearing brief back and forth arguments from Public Counsel Yavar Hameed and Ministers’ Counsel Mr. Tyndale as to the need for the disclosure of the documents asked for by P.C. Mr. Tyndale argued that there has been no evidence for the need for further disclosure while Mr. Hameed argued that “before the closing of Mr. Mahjoub’s case there is a need to see all the evidence that has been presented against Mr. Mahjoub”. In the best zinger of the morning, Mr. Tyndale said - “on non-issues, the evidence may be inadmissible and we may as well all go home.” The four of us interpreted that to mean that in that possibility, the case against Mr. Mahjoub would be over and we had to restrain ourselves from cheering.

Judge Blanchard with the support of M.C. Mr. Tyndale lectured P.C. Mr. Hameed about why P.C. had not asked for these disclosures previously even as recently as the one day hearing presided over by Judge Noel. Mr. Hameed’s reply was that he had done so “in a general way”, if not specifically. There was further technical legal discussion regarding “grounds and warrants” and the “timing of this request”.

Judge Blanchard set some parameters and dates for production of materials and resumption of the Reasonableness Hearing, with Tuesday May 24 being the date set for resumption.

Judge Blanchard said he wanted no further delays to this hearing which he said, “is now in its third year.”

This hearing was adjourned around 12 pm with the next date tentatively set for Tuesday, May 24.

I found out after the hearing that the problem with the lack of disclosure was that these wide disclosures had not been asked for by M.’s previous lawyers. I don’t have the legal background to know why that was the case or whether it is a good or bad thing for M.’s case.

Next Hearing – tentatively Tuesday, May 24, 2011, Federal Court, 180 Queen St., W., Toronto

Mahjoub Hearing – Thursday, March 31, 2011; Next Hearing Monday, April 11, 2011

Hi all:

Solicitor Client Privilege – Abusive Process Motion. There were four of us at this hearing on a Motion by Mohammad Mahjoub to have all telephone recordings of Mr. Mahjoub made by CSIS since 1996 be disclosed, or the derivatives (meaning written reports made from the recordings) be disclosed to the court. The hearing which lasted from 9:30 am to about 1 pm consisted of arguments for disclosure, by public Counsel Yavar Hameed and Paul Slansky and against disclosure by Ministers’ Counsel Mr. Tyndale, of some of these records or derivatives, and not others, some of which Ministers’ Counsel said have been destroyed by CSIS. The reason for Mr. Mahjoub’s request is the admission by CSIS witnesses on more than one occasion that solicitor-client privilege had been violated by CSIS recording those calls, even after there was a court order in 2008 for CSIS to stop recording solicitor-client calls. This was described by Public Counsel as an ‘abuse of process’. Judge Noel presided in today’s hearing. Some case law was brought up including ‘Charkaoui 2’ and the ‘Stinchcomb case’ as well as Section 8 wiretap application and Section 21 – CSIS Acts regarding warrants.

There was discussion of the "derivative materials" – written reports from recordings which were not ordered to be disclosed which left Mahjoub in a Catch-22 situation, since he would not have a record of the missing calls. The action of CBSA and CSIS was by implication not in good faith, since they knew perfectly well they were not supposed to be listening in in the first place, and they were acting in contempt of a court order. Even Ministers’ Counsel Tyndale who seemed a bit embarrassed by the position he was being expected to defend, said something about the world being imperfect and in response to a question from Judge Noel replied that “I may later have to apologize”. Mr. Tyndale argued that it was not necessary for the government to comply with Mr. Mahjoub’s request for all the records for no specific reason; that Mr. Mahjoub is required to “point to some argument he wants to advance”. He also said that his clients had disclosed “to the best of their knowledge” to which P. C. Paul Slansky replied later, was not good enough and that the government needed to ‘respond with evidence’. “This was not a mere error but was done deliberately – even after the (court) order to stop”. The government should have stopped all this recording, and didn't. P. C. Slansky pointed out in his final reply that even if the solicitor-client recordings were not used, they could still provide a ‘prejudicial effect’ – that the “subconscious knowledge by a witness of conversations may have helped them as witnesses in court”. Mahjoub himself has gone through all the materials, and seen what is missing. In the face of Tyndale's suggesting that it would be too much bother to produce a lot of irrelevant recordings or accounts of them, and should just be asking for specific records, Judge Noel himself asked how Mahjoub could point to a specific phone call he needed a record of when he could not know what would advance his case.

There was agreement that solicitor/client conversations should be sacrosanct in law, and this sanctity had been breached. Something about Section 7 rights being "malleable," and that case law there was hard to interpret. The abuse of process motion is for the future, and evidence for that is still emerging. Mr. Tyndale had another issue which was to be raised immediately in camera, and shared with public counsel and the special advocates. Obligations to disclose change as the process changes, but it seems the "derivative materials” still exist. CSIS and CBSA have disclosed relevant materials "to the best of their knowledge," but it was pointed out that they may not even have disclosed all Mr. Tyndale needed to know. It is up to the judge to assess what is relevant or not, said Tyndale - to which Judge Noel replied, "How can we assess what we don't know?"

Combined report by Brydon Gombay and Murray Lumley – based on what we each thought we heard in court and not from the beginning at 9:30 am.

Court will sit for the resumption of the ‘Reasonableness of the Security Certificate’ hearings which were interrupted by other matters described in previous blogs. This will begin on Monday, April 11, 2011; 9:30 am at Federal Court, 180 Queen St. W., 6^th floor.

Again, it will be good to have a number of interested observers in the courtroom beginning on Monday.

Mahjoub Hearing – Wednesday, March 23, 2011; Next Hearing - Thursday, March 31, 2011, Federal Court, 180 Queen St. W., Toronto

Hi all:

Today’s hearing was about the ‘Detention Review’ for Mr. Mahjoub, which has been considerably delayed since it is supposed to happen every six months for Immigration detainees who have not been charged with anything. I arrived about two hours after the hearing began and heard the continuation of Public Counsel Yavar Hameed’s arguments. I understood that the part I missed had to do with P.C.’s argument that using any evidence or material prior to the Charkaoui decision which resulted in the Security Certificate legislation being struck down by the Supreme Court in February 2007, and rewritten a year later with Special Advocates added, is inadmissable. It is also true that any testimony obtained by torture has since been removed from the case against Mr. Mahjoub.

Mr. Hameed continued with what I thought was a very strong statement of support for Mr. Mahjoub – that the public allegations against him are very weak and that the case for Mr. M. being a danger to national security has not been established. P.C. also brought up the recent regime change in Egypt as a sign that some of the principals such as former Vice President Suleimani have definitely been linked to torture. He continued that there is a presumption of innocence for Mr. Mahjoub and that the onus is on the the Ministers to establish guilt. (Later during the Ministers Counsel argument I heard Counsel Mr. Tyndale say that presumption of innocence does not apply in an Immigration case as long as there is a regular detention review!)

Most of the witnesses brought to testify over past months such as Professer Wark and Professer Gerges have concluded that Mr. Mahjoub is likely innocent of the allegations against him and Mr. Hameed even said that “the allegations are theories and it is the case that hypotheses against Mr. Mahjoub are built on other hypotheses”. Mr. Hameed pointed to the ‘absurd testimony’ of CSIS witness, a Mr. Michel Gay who said that Mr. Mahjoub would “pose a threat to national security notwithstanding the passage of time.” Mr. Hameed said this means that Mr. Mahjoub is “damned if if he does and damned if he doesn’t” (get free), meaning that the longer Mr. Mahjoub is held incommunicado, the more notoriety he achieves with possible young jihadists who may wish to speak to him. What becomes clear to anyone listening to Ministers’ Counsel is that this is what CSIS and the Ministers are most afraid of – that Mr. Mahjoub might at some time be a negative influence on some young person. And that is why they have taken away his freedom and particularly his right of communication with anyone he feels like as the rest of us take for granted, for more than a decade.

Public Counsel went on to demonstrate the absurdity of, on the one hand Mr. Mahjoub being considered a dangerous risk to national security, while at the same time a Federal Judge has decided that Mr. Mahjoub should have four hours per day of unsupervised outings within a defined area near his Toronto apartment, carrying a GPS unit by which CBSA can track his movements. However, as Mr. Hameed pointed out nothing actually prevents Mr. Mahjoub from speaking with someone on his daily outings. And the evidence given by the written ‘Risk Assessment’ which CBSA/CSIS had provided for this hearing says that Mr. Mahjoub strictly adheres to all of his conditions. There is no evidence at all that he has ever tried to communicate with anyone. If he needs to go to an appointment outside his allowed zone he always calls CBSA and arranges for one of his two supervisors to accompany him. The two supervisors were also described in the ‘Risk Assessmen’ as being completely reliable. There was also a Dr. Byman mentioned who has given testimony earlier that Mr. Mahjoub would always be a threat if freed and Mr. Hameed countered this testimony as well.

I won’t go into detail with the testimony of the Ministers’ lawyer Mr. Tyndale except to point out that for him, nothing has changed due to the ‘new regime’ of legislation since 2007. He said that all the facts of the allegations are the same. He reviewed the SIRC document to list these that go back to the time before Mr. Mahjoub came to Canada. He saw some differences between Mr. Charkaoui being a permanent resident while Mr. Mahjoub is not etc. Ministers’ Counsel recommended that none of Mr. Mahjoub’s conditions be reduced now, while the ‘Reasonableness of the Security Certificate’ hearing is ongoing; that any changes could wait.

Mr. Hameed’s final reponse to the Ministers’ Counsel recommendations was, “stop looking backwards and look forward.” Many of Mr. Mahjoub’s alleged connections are dead or in prison somewhere so there is no possibilty of communication with the past anyway.

The conditions the Public Counsel is asking be removed or lightened are: 1. the GPS tracking device; 2. the 24 hour video surveillance at M.’s door – which captures anyone including his family members, meaning young children; 3. the two-way monitoring device – which has never been used; 4. the two supervising sureties which have been already described as being necessary for travel outside the proscribed zone; 5. removal of the 4 hour limit for daily outings and Mosque visits.

Judge Blanchard will give a ruling on the ‘Detention Review’ as well as on the previous hearing this week, as soon as possible.

The next hearing was scheduled to hear the “CSIS listening in on ‘Solicitor-Client conversations’ matter”. It is scheduled for Thursday, March 31, 2011 at 10 am, in Federal Court, 180 Queen St., West, 6^th floor.

A good turnout of observers would be welcome.

Mahjoub Hearing – Tuesday, March 22, 2011

Hi all:

Today’s hearing at Federal Court, 180 Queen Street, 6^th floor, actually began at 1:30 pm rather than 9:30 am as I had posted in the last blog. Even Mohammad did not know of the change.

Two of M.’s friends were there for the afternoon hearing. It’s purpose was to hear the ‘Disclosure Motion’ debated by the two lawyers Yavar Hameed, Public Counsel and Mr. Tyndale, Ministers’ Counsel, before Mr. Justice Blanchard. The four items under discussion were: 1. Video images captured by the camera outside M.’s apartment door – Public Counsel wants all video footage to be released to M. so he and his lawyers can see how wide ranging and intrusive it may be. It can also be used to settle disputes with CBSA where they have accused M. of violating conditions by his receipt of packages (like a mousetrap in a box) by a delivery person who M. says is actually the superintendent.

2. Public Counsel has asked for the complete CBSA – CIC file in order to see the record of the solicitor-client privilege being violated by CSIS listening in to telephone conversations between M. and his lawyers. Previous testimony by CSIS agents has been that they have a policy for dealing with such surveillance which means they do not use it, However the Public Counsel and M. want to see for themselves.

There were two other items of disclosure asked for by Public Counsel that I did not fully understand. The argument was that having full disclosure of videos for example would make it easier to automatically eliminate the charges brought to court by CBSA of condition violations by M. Just viewing the videos would settle the matter.

Public Counsel asked for these disclosure items and defended these requests to Judge Blanchard. The judge did have some hard questions for Public Counsel that made me feel like the judge was biased in that he seemed to accept the testimony of the CSIS agents that they had a policy for dealing with ‘listening to privileged conversations’ and why didn’t Public Counsel just accept that.

Ministers’ Counsel Mr. Tyndale spent his time belittling the requests for disclosure by Public Counsel. He said that Public Counsel had failed to establish any connection between its disclosure requests and its arguments against non-compliance accusations by CBSA of M.

Judge Blanchard said that he would make a ruling on this matter as soon as possible.

Tomorrow – Wednesday will be dedicated to the ‘Detention Review’ for Mr. Mahjoub. It will begin at 9:30 am and will go all day.

Again, it will be very valuable to Mr. Mahjoub’s cause to have spectators at court tomorrow. Please if you are able, come out for an hour or two.

The location is 180 Queen Street West, near Osgoode Station, 6^th floor.

Murray

Next Mahjoub Hearings – Tuesday and Wednesday, March 22 and 23, 2011

Mohammad Mahjoub has informed me that there will be a ‘Detention Review’ for him on Tuesday and Wednesday, March 22 and 23, starting at 9:30 am this week. The notice is short because it was confirmed late in the week.

This ‘Review’ should be a positive experience that we hope will result in some of the conditions on M. being removed. It would be advantageous to M.’s case to have a good show of interest in these two days of hearings. Even an hour or two of your time, with people coming and going would be great.

So, if you can spare an hour or two, please attend at 180 Queen St., W. (near the Osgoode subway station on the University line), 6^th floor, Room D, beginning at 9:30 am.

Thanks, Murray

Mahjoub Hearing – Thursday, January 20, 2011

Hi all:

Three friends (including myself) of Mohamed Mahjoub attended for the Thursday afternoon portion of the 2 ½ day testimony of Dr. Fawaz A. Gerges, Professor of Middle Eastern Politics and International Relations at the London School of Economics and Political Science. He is an expert on Middle Eastern affairs and is often called as a commentator on CNN Europe.

The part we heard was the 2 ½ hour cross-examination regarding Mr. Gerges’ testimony of the previous day (Wednesday). I don’t know what was in his testimony except for what we heard during the cross-examination by the Ministers’ Counsel, Ms. Rhonda Marquis. The subject had to do with the history during the 80’s and 90’s of the operations of the political organizations, Egyptian Islamist Jihad (EIJ), Al Jihad, Vanguards of Conquest (VOC), Al Qaeda and perhaps other groups, including leaders or characters (spelling may not be accurate) such as Al Zawaheri, Al Geza, Sheik Rahman, Osama bin Laden – in places like Egypt, the Sudan, Bosnia, Pakistan and Afghanistan – and the evolution and changes in these organizations as they experienced opposition and conflict. Some of this history was covered by Dr. Wesley Wark during his testimony in late November, 2010 – with reference to events leading up to the bombings of the two U.S. embassies in East Africa in 1998. We also heard some graphic descriptions of suicide bombings and often failed assassination attempts.

However what we primarily heard during the afternoon was a debate between a lawyer attempting to use a black and white approach and an academic who tried his best to argue that there were nuances in the stories he told in his books and articles that were referred to. Over and over Professor Gerges lectured the Ministers’ lawyer on her tactic of quoting summaries of more detailed situations from his books to get him to admit to something that he refused to do because it would not be the truth. Ultimately, near the end of the afternoon, he became so frustrated with the lawyer’s method of questioning that he accused her of committing the academic crime of ‘attempting to distort the facts for her purposes.’ The question I assume being argued, is whether there is any evidence at all that Mr. Mahjoub had any connection to these organizations and events. We cannot know as long as much of the evidence, if it exists at all is still kept secret on the grounds of national security. Mr. Mahjoub has denied all along that he had any connection to these individuals and groups and there is no publicly known evidence to support any connections.

Several books were referred to during the aftenoon – The Looming Tower, by Lawrence Wright; The Far Enemy, by Fawaz Gerges; America and Political Islam, by Fawaz Gerges.

The cross-examination was to continue on Friday morning, but just before adjournment near 4:30 pm, requests for easement of two conditions related to Mr. Mahjoub’s daily restrictions were brought up and Judge Blanchard ruled on one of these negatively and would rule on the other on Friday morning. We cannot forget that Mr. Mahjoub is living under severe daily restrictions that interfere with his ability to live a normal life that the rest of us take for granted.

Please note that there is no court schedule so far for next week – the week of January 24 to 28. I will announce any resumption of hearings in this blog.

Next Mahjoub Hearings – Monday, January 17 to Friday January 21, 2011

This information comes from Mohamed regarding the coming week. On Monday, January 17, at 9:30 am at Federal Court in Toronto, a Mr. Bush, from Canadian Border Services Agency, will be the witness, and his testimony is expected to extend into Tuesday.

From Wednesday to Friday (January 19-21), the scheduled witness is Dr. Fawaz A. Gerges, Professor of Middle Eastern Politics and International Relations at the London School of Economics and Political Science. He is an expert on Middle Eastern affairs and is often called as a commentator on CNN Europe and possibly BBC. He is a very good speaker. I mentioned his name in earlier blogs with respect to him being scheduled for this week.

So, if you can spare an hour or two, please attend at 180 Queen St., W. (near the Osgoode subway station on the University line), 6^th floor, Room D, beginning at 9:30 am.

Mahjoub Hearing – Monday, January 10, 2011

Hi all:

Five of us attended the first of the ‘Reasonableness of the Security Certificate’ hearings of the New Year for Mohamed Mahjoub this afternoon at Federal Court, 180 Queen St. W. These hearings take up where they left off prior to the Christmas Recess.

The hearing commenced just after 1 pm and ended at 4:45 pm. The business of the afternoon was to hear witness Mr. Paul Vrbanac, Director General of CSIS Toronto Region as he was first of all examined by one of the Ministers’ Counsel and then cross-examined by Yavar Hameed, Public Counsel. Most of today’s testimony had to do with the ‘Abuse of Process’ Motion that has been brought by Public Counsel because of the earlier admission that CSIS and possibly CBSA have ‘intercepted’ and recorded telephone conversations between Mr. Mahjoub and his lawyers, a violation of ‘solicitor-client’ privilege.

The first event was an expression of dismay to Judge Blanchard by Public Counsel regarding some documents that had not been disclosed to them in time for today’s hearing and Judge Blanchard disgreeing with Public counsel about the matter. Then about one hour, fifteen minutes was taken up by Ministers’ Counsel establishing what CSIS does when it encounters a suspect that they think might be a threat to Canada. I believe they were referring to the CSIS Policy documents from 1997 to 2010 that Public Counsel had asked for previously. Mr. Vrbanac referred to different levels of perceived threat and the particular actions taken – from interviews of a suspect, known as a ‘target’, to secret surveillance including phone and other message interceptions at the higher levels of perceived threat. He used the term ‘strictly necessary’ to say that they don’t violate privacy rights of any individual unless they think the information gleaned is relevant to a threat. All such interceptions of information must be granted by a Federal court issuing a warrant for the surveillance action. He seemed to say that CSIS was bound by checks and balances to not violate anyone’s privacy rights.

Mr. Hameed then spent two hours cross-examining Mr. Vrbanac, trying to find out if CSIS had made policy changes over the years and referring to something in 1994 – which brought about a series of objections from Ministers’ Counsel that were upheld by Judge Blanchard. The questions were very detailed and the witness did not know a lot of answers about the evolution of the Policy documents. Questions were asked about policies governing the recording and translating of solicitor-client conversations and at what point does CSIS personnel not keep records of such conversations. It seems from Mr. Vrbanac’s testimony that even in the case of solicitor-client conversations, if there is a perceived threat, that takes priority. The question is – who perceives the threat and what are the criteria for a threat. At one point Mr. Vrbanac was asked by Mr. Hameed, ‘are there cases where solicitor-client privilege does not apply’? and the response was – ‘it is up to the Federal Court and the Regional Director General (of CSIS)’. Also ‘the (perception) of the threshold of threat is up to the Regional Director and a case by case analysis’.

There were other questions about who is resposible to destroy records? - technical staff; are there any failures to destroy records? - yes; has the witness seen evidence on Mr. Mahjoub? – no. ‘Who determines legal threat thresholds, translator or Regional Director? (I’m not sure of the answer). ‘Report summaries are put into target database, not the original recording of intercepts. ‘Are translation summaries retained while originals destroyed?’ Witness didn’t know.

This represents only some of the questions asked regarding what happens to secret intercepts of conversations and many of the witness answers were that he didn’t know.

Adjournment was at 4:45 pm. The hearing with the same witness will commence at 9:30 pm on Tuesday, January 11.

A second witness will be heard in the afternoon – Haney El Fouli, Mohamed’s adult step-son. We’re not sure about his testimony but it may include his observations about mail and phone interceptions at his home while Mr. Mahjoub lived with him and the rest of the family from 2007 to 2009. I think this will be interesting.

Please do come for an hour or two to Federal Court, 180 Queen St. W. (Osgoode Station) , 6^th floor, Room D.

If anyone attending can supply a report of tomorrow’s hearing please forward it to me.

Murray

Next Mahjoub Hearing – Monday, January 10, 2011, and endorse 'Statement Against Security Certificates'

Happy New Year everyone.

The ‘Reasonableness of the Security Certificate’ Hearings for Mohamed Mahjoub will resume (after the holiday break) on Monday, January 10, 2011, 1:00 pm, at Federal Court, 180 Queen St. W. (near Osgoode station), 6^th floor, room D.

I hope that some of you who live in the Toronto area will be able to attend some of the hearings, if only for an hour or so.

For everyone on this list, I have copied the email from ‘People’s Commission’ that requests that we all ‘endorse’ the ‘Statement Against Security Certificates’ by going to the url just below and then filling in the required material near the bottom of the web page there. I’m sure some of you already have endorsed the statement as I have. Murray

People's Commission [commissionpopulaire@gmail.com]

Please immediately endorse this statement by going to www.harkatstatement.com. Please also circulate this request to your networks and ask your organizations to endorse it as well.

A strong show of public opposition to the security certificate is crucial at this time.

Statement Against Security Certificates

We, the undersigned, have grave concerns regarding the continued use of sections 9, 76-87 of the Immigration and Refugee Protection Act, which allow for the imprisonment in Canada of refugees and permanent residents under the authority of a “Security Certificate”.

The new version of this measure - which included only cosmetic changes in the form of a very limited appeal provision and of the introduction of "special advocates", whose ability to act on behalf of the detained is extremely limited - still maintains a veil of secrecy over any information that may be used against the detained.

Therefore, we are concerned that those detained under security certificates are:

• Imprisoned indefinitely on secret evidence, though no charges have been laid against them;
• Tried in unfair judicial proceedings where information is not disclosed to the detainee or their lawyer;
• Denied the full right to appeal when the certificate is upheld in a process that uses the lowest standard of proof of any court in Canada;
• Under threat of deportation even when they face unfair imprisonment, torture or death.

We believe that the existing Security Certificate process is undemocratic; violates the Canadian Charter of Rights and Freedoms; and violates fundamental human rights, to which the government of Canada has committed itself through the UN Universal Declaration of Human Rights, the UN Convention on Refugees, the International Covenant on Civil and Political Rights (ICCPR) and the UN Convention on Torture.

Accordingly, we demand that the Security Certificate process be abolished.

For those currently detained under security certificates, we demand:

• That their certificates be removed, and, if any case against them actually exists, that they be allowed to defend themselves in open, fair and independent trials with full disclosure of the case against them.
• That they not be deported.

More information: www.justiceforharkat.com

Mahjoub special hearing – on the ‘Solicitor-Client Privilege Motion’

Friday, December 17, 2010

Mahjoub special hearing – on the ‘Solicitor-Client Privilege Motion’, that was the result of a CSIS witness telling the court that CSIS has been listening to phone conversations between Mohamed Mahjoub and his lawyers since 2001.

Elizabeth Block and Brydon Gombay attended the hearing and below are their reports:

Elizabeth Block wrote:

I was in court today. Brydon Gombay came too, and probably understood more than I did, which wouldn't be hard.

The required documents arrived at the government lawyer's on Tuesday night, and Mahjoub's lawyer didn't get them until last night or this morning. She hasn't read them, let alone analyzed them.

The judge had some questions: What does this motion seek (by any of production of documents) that wasn't covered in his judgement re: Jaballah? Some of this material may have to be dealt with in camera, with the special advocates.

Judge Blanchard had ordered Mr.Tyndale – Ministers’ Counsel - to produce materials - logs of solicitor-client calls. (I understand that CSIS and CBSA were ordered by the court quite a while ago NOT to eavesdrop on solicitor-client phone calls, but they have gone on doing it anyway.) This material has to be kept away from the trial judge, so he is not contaminated by it (whatever that means).

Brydon Gombay wrote:

I have little to add, except to say that everyone recessed for over an hour during the morning, and returned appearing good humoured, as though they had settled things in camera to everyone's (relative) satisfaction. It is interesting to observe how legal minds are expected to compartmentalise their knowledge in this way - but I was left with the impression that anything which may have been important took place outside the courtroom. My understanding was that Mr. Kapur, one of the special advocates, spoke of a document or documents which he had just glimpsed briefly after they came in to his Ottawa office, and which they would not all be able to discuss until next Tuesday - but I might well have got that wrong. It doesn't make much difference, anyway; the fact remains that he had knowledge he was not free to discuss until next week, but which he felt would cast new light on the issue under discussion. He remarked that he was not free to speak openly about any of this.

The Ministers’ Counsel (Mr. Pearce) agreed to produce the remaining CBSA intercepts as soon as possible. The special advocates will review all this and discuss with Judge Blanchard whether there is further need for another appointment with today's sitting judge – Judge Alto. He will make himself available for January 13 in case he is needed again. Madame Duhamel, Public Counsel, (Mr. Mahjoub’s lawyer) emphasised the fact that they want access to all the intercepts, from 2007 until now. Witnesses will be called on January 11 and 12, when the special advocates should also be present. Almost more time was spent by all parties cloistered outside the courtroom rather than in it.

This matter will be continued on Thursday, January 13th, if possible, i.e. if the required documents have been produced before then.

Mahjoub Hearing – Wednesday, December 15, 2010

Hi all:

I attended today’s hearing starting at about noon. Jean Smith also came in the afternoon.

The hearing continued from yesterday with the testimony of U.S. lawyer Joshua Dratel, expert in ‘U.S. national security and terrorism’. From questions by Public Counsel Yavar Hameed, he continued to speak about the ‘U.S. Embassy Bombings’ in Kenya and Tanzania in 1998 by Al Qaeda operatives and the trial that ensued in which he defended one of the accused. A lot of Mr. Dratel’s testimony told about one star witness in particular, a former Al Qaeda operative and businessman in Sudan who fled his bank debts and Al Qaeda and ‘sold himself’ to the U.S. government, agreeing to cooperate in return for $ million, and witness protection for his extended family of 12 in the U.S and a variety of other perks. Mr. Dratel pointed out that this witness’s first testimony to U.S. marshalls was videotaped without the knowledge of the prosecutors and when this video evidence was revealed it was noticed that his story had changed many times – with him creating a more important picture of himself when testifying in court. In short he was ‘selling himself’ to his captors but this to Mr. Dratel made him a completely unreliable witness. Mr. Dratel has asked and is still waiting for a retrial for his client who was convicted based largely on the testimony of this witness.

There are many other details of this person and others as well that I won’t go into here. A general conclusion that one can draw is that the reliabiltity of any witnesses used by the U.S. to put people behind bars is called into question when the witnesses they used were trying to save their own skins and were busy ‘selling themselves’.

A more specific set of conclusions was given in Mr. Dratel’s affidavit part of which he read out in court, to the effect that there is no evidence whatsoever that Mr. Mahjoub ever had any connections to any terrorist acts or training while he was working at Damasine (sp) Farm in Sudan in the mid - 90’s. In fact the clincher for me was Mr. Dratel’s statement that, “he had never heard of Mr. Mahjoub prior to preparing for this hearing.” He also pointed out that his knowledge of events of the Embassy bombings is always at the forefront of his mind because he is often interviewed by media about the Embassy bombings – and he has never seen or heard Mr. Mahjoub’s name. It was stated during this hearing that there were 277 co-accused connected to the Embassy bombings and Mr. Mahjoub’s name is not one of them.

The Ministers’ Counsel tried to cast doubt on Mr. Dratel’s testimony because so far he has been unsuccessful in obtaining the retrial of his client even though it is known that the main witness was unreliable, but I think Mr. Dratel acquitted himself well.

There may be some gaps in this report but I hope it gives you some sense of today’s testimony.

The ‘Reasonableness of the Security Certificate’ hearings were recessed at the end of this afternoon and will not resume until Monday, January 10, 2011.

However, a ‘Solicitor-Client Privilege Motion’ will be heard this Friday, December 17 starting at 9:30 am, due to the revelation by a CSIS witness at these hearings that CSIS has been listening to phone conversations between Mr. Mahjoub and his lawyers, since the year 2000. This hearing will be presided over by a Judge Alto.

I am unable to attend due to my son having his second surgery in a week at Hamilton General Hospital on Friday. If anyone can attend and email me a report I will post it on this blog.

Thanks for your support and see you in court in January.

Mahjoub Hearing – Tuesday, December 14, 2010

Hi all:

I attended much of the hearing today. It consisted of the examination by Public Counsel Yavar Hameed and cross-examination by Ministers’ Counsel (a woman whose name I didn’t get), of a Mr. Joshua Dratel who heads a New York City law firm. He was called to be a witness by Public Counsel because of his expertise on ‘U.S. National Security and Terrorism’. See http://tinyurl.com/25puxch

Mr. Dratel is one of the editors of The Torture Papers: The Road to Abu Ghraib http://tinyurl.com/273xep8

He has been a defence lawyer for about ten years (30 years altogether) for at least one of the accused in the ‘Embassy bombing trial’, related to the U.S. embassies that were bombed in Kenya and Tanzania in 1998, allegedly by the Al Qaeda organization. Mr. Dratel has also defended some Guantanamo detainees and has won awards for his work.

Most of the day’s arguments that I heard consisted of the Ministers’ Counsel’s attempts to discredit Mr. Dratel’s expertise, saying that being a defence lawyer does not make one an expert on terrorism or an expert on a Canadian case such as the one being heard. Public Counsel made the case that Mr. Dratel is indeed a renowned and experienced defence lawyer and an expert on international law whose testimony will bear on the present case.

Over the lunch recess from 1:45 until 2:30 pm, Justice Blanchard made his decision and just after 2:30 pm, Justice Blanchard announced that indeed Mr. Dratel was an expert witness that should be heard in his court. Public Counsel proceeded to examine Mr. Dratel and we heard quite a bit about the history of Al Qaeda; how and why it formed and about its activities and those of bin Laden and others in Afghanistan and Pakistan during the Soviet occupation; the bin Laden activities in Sudan and other parts of Africa – some of which involved legitimate businesses and agricultural operations, as the court heard previously from Professor Wark. Several of the co-conspirators in the Embassy bombings were named as well.

The testimony of Mr. Dratel continues tomorrow – Wednesday, December 15 and I recommend it to anyone who is interested in the history that has affected all of us since the Soviet invasion of Afghanistan.

Court sitting is to resume on Wednesday morning, 9:30 am, December 15, 2010 at Federal Court, 180 Queen St. W. (near Osgoode station), 6^th floor, room D.

Please consider attending even if it is for one or two hours.

Mahjoub Hearing – Wednesday, December 8, 2010

Hi all:

I attended just this afternoon’s portion of today’s hearing. Mohamed told me that the main item arising from the morning was a revelation by the witness, a Mr. Flanagan, a CSIS manager, that CSIS had monitored telephone conversations between himself and his lawyers on a regular basis. Mohamed said that Judge Blanchard expressed some displeasure at this evidence. During a brief exchange that I heard in the afternoon a Public Counsel (Mohamed’s) lawyer described the morning testimony as amounting to ‘abuse of process’. The Minister’s Counsel, in his reply said this was an overstatement and that there was no evidence presented as to whether CSIS had ever used information that it had gleaned through this lawyer-client evesdropping. I couldn’t hear whether there will be any follow-up to this testimony.

Much of the 70 minutes of the afternoon hearing was spent on scheduling issues around having expert witness Dr. Fawaz A. Gerges, (Professor of Middle Eastern Politics and International Relations at the London School of Economics and Political Science. He is an expert on Middle Eastern affairs), attend hearings – probably in January. An issue was how long he needed to come from England. The Public Counsel were ordered to have a firm schedule of witnesses by this Friday afternoon. Two potential witnesses mentioned were Mahmoud Jaballah and Mohamed Mahjoub.

The last issue had to do with a complaint by CBSA that Mohamed has breached one of his conditions by receiving up to 9 packages of documents couriered from his lawyers to him sometimes from Montreal since September. Under Court order ?, paragraph 9, CBSA has the right to examine any packages delivered to Mohamed but not ones coming from his lawyers. CBSA has demanded to see any packages delivered and Mohamed has refused, citing lawyer-client privilege. CBSA is proposing to send agents to Mohamed’s apartment every time he receives a package but Judge Blanchard said that if they do they are only to look upon the outside of the package to determine if it is from the lawyers and are not supposed to ever open said packages. He ordered both sides to resolve the issue within one week.

Judge Blanchard also announced that the Harkat decision will be delivered tomorrow – Thursday, December 9, 2010.

Court was adjourned with sitting to resume on Tuesday morning, 9:30 am, December 14, 2010 at Federal Court, 180 Queen St. W. (near Osgoode station), 6^th floor, room D.

Four friends of Mohamed were in attendance today. Please try to attend even if for a brief time.

Thanks to all

Mahjoub Hearings - Week of November 29 to December 1, 2010

Hi all:

I have little to report about the Mahjoub hearings this week because I did not get to court. I have been occupied with the serious illness of one of my adult sons – having to do with some deterioration of two vertebrae in his neck. There has been no resolution of his illness so far but perhaps there will be some information this week as his family doctor is trying to have him admitted to Hamilton General Hospital likely for a surgery biopsy.

Mohamed did speak to me and I was also speaking to Barney who came to court on Wednesday, and from what I can remember, the early part of the week was spent examing a CSIS agent that Mohamed knows, regarding CSIS policies and procedures dated from 1997 to 2010. Not too much happened on Wednesday but one of Mohamed’s court appointed supervisors, El Sayed, was examined by Public Counsel, I assume about his relationship to Mohamed. The Ministers’ Counsel did not choose to cross examine the witness.

Court was adjourned Thursday and Friday but will resume on Monday, December 6, I assume at 9:30 am.

I do know of several people who attended court this week and thank them for their persistent attendance. I know that it encourages Mohamed to have people attending even if just for a short time and it lets the court know that the public is interested in this human rights case. It was interesting to note that one of the Wikileaks, quoted former CSIS head Jim Judd as saying that (my paraphrasing) Canadian courts were too soft and allowed human rights considerations to interfere with CSIS’ attempts to deport people – without a hearing.

During the first two days of next week – December 6 to Dec. 9 or 10, Ministers’ Counsel is calling their own witness – I don’t know who. Then in the latter part of the week, an expert witness will testify - Dr. Fawaz A. Gerges, Professor of Middle Eastern Politics and International Relations at the London School of Economics and Political Science. He is an expert on Middle Eastern affairs and is often called as a commentator on CNN Europe and possibly BBC. He is a very good speaker.

Hearings are located at 180 Queen St. W. (near the Osgoode station on University), 6^th floor, room D.

See you in court

Mahjoub Hearing - Thursday, November 25, 2010

Hi all:

Below is a report on two days of hearings, Tuesday Nov. 23 and Wednesday Nov. 24 from the perspective of Brydon Gombay who has been attending the hearings regularly this week.

The hearing today continued in much the same vein with Public Counsel Yavar Hameed completing the examination of Professor Wark and Ministers’ Counsel David Tyndale beginning the cross-examination. The cross-examination seemed like a game of wits with Ministers’ Counsel trying to trap Prof. Wark in the wording he had used and Prof. Wark extricating himself from these traps. The cross-examination will be completed one day next week.

The hearings recommence on Monday, November 29 at 9 am with an expert witness Lisa Given, a librarian who will testify on the ‘credibility of source documents’. It is alleged that the Ministers have not followed accepted procedures with respect to these.

Later in the week another expert witness will testify - Dr. Fawaz A. Gerges, Professor of Middle Eastern Politics and International Relations at the London School of Economics and Political Science.

Some of you with ‘yahoo.com, yahoo.ca and rogers.ca domains may not have received some messages recently, apparently due to my bulk mailing. I will try smaller batches and no more messages until Monday or after.

Brydon wrote:

“The word I was forgetting was "insubstantial," which, accompanied by his frequent use of the word, "substance," may well have been deliberate on the part of Wesley Wark. He certainly made it clear that he felt much of the evidence of Mahjoub's association with people named in government documents was insubstantial, and he wished to see something more substantial. He was frank in admitting he did not speak Arabic, had not been to Afghanistan, Pakistan, Sudan, and so on - but these facts fell rather flat, I thought, since I imagine all the lawyers knew that already. Otherwise his expertise was clear, and I noticed the judge paying careful attention and taking notes about what he said. But perhaps all this was from the day before - yes, that was about his choosing to focus on public education about such matters more than on academic articles to advance his career. He made it clear that he realised academic articles reach a much smaller audience than does an op ed.

Yes, next day there was discussion of evidence available to Egyptian authorities which could well have been based on torture, At one point a lawyer was trying to pin him down on comparison "by analogy," and he was careful to say that could be plausible, but was not based on evidence. At one point he suggested it would not be possible for Mahjoub to be in Pakistan and Sudan at the same time, and that CSIS might have had conflicting intelligence about where he was. He spoke more than once about CSIS cherry-picking to make a case, putting in one part of an intercept but leaving out the parts which didn't suit them (or so I understood from the legalese he seems to use as well as do the lawyers). He was firm about saying that Jaballah should not be considered a significant "contact" of Mahjoub's, since Jaballah clearly distrusts M, and is angry at and biased against him (this seemed not to accord with an association that CSIS had attempted to make in documents which of course I have not seen, so it's supposition on my part about the import of this evidence). CSIS had not conveyed the entirety of the intercept. The US and Canada rely on Egyptian sources for information about who these people are and what they do, and extraordinary rendition is part of all this. Canadian knowledge could thus have been "polluted" by such evidence. The CIA is implicated here, with its aim to "get them off the streets," though now the Obama administration has disavowed the practice of extraordinary rendition. Still Canada is reliant on foreign intelligence based on torture, which affects the possible veracity of the intelligence [he didn't speak of the morality of torture, but that was surely implied].

There was some discussion of how the tool used by intelligence gatherers, the "threat matrix," was based in trying to make linkages and seek out what could be diagrammed associations between and amongst different actors - complex links to map group memberships, a practice started by police trying to trace memberships in criminal gangs. Here what CSIS had done was "insubstantial." The intelligence community needs to add "substance" to its list of "contacts." He then went through a list of three significant such contacts, saying that the "substance" of Mahjoub's contact was not provided, or that CSIS fails to "substantiate" the association. In one case (Al Duri?) Mahjoub remained in contact after both had left Sudan, with regard to investments Al Duri made for Mahjoub. Certain contacts - like Kahdr, were indeed a national security concern, but the question of guilt by association was raised. Once again, WW said CSIS was unable to provide "substance."

I could not swear to the accuracy of all of this in a court of law, but what I've written here is based on the notes I took, and I tried to pay close attention, though of course there was a lot about "returnees from Albania" and "vanguards of conquest" which I failed to understand, so have not mentioned here. Jean Smith and John Valleau were there too, and might be able to tell you more.”

Mahjoub Hearing - Wednesday, November 24, 2010

Hi all:

I didn’t go to court today but did receive a brief report from Esther Kern who was there. I also spoke with Mohamed on the phone this evening. He seems to be catching a cold but is treating it as he knows how.

Esther’s report follows and I really appreciate it and ask anyone else who is at court when I’m not, to send me a brief comment like this that I can share:

“Just to let you know, I did spend some time in court this afternoon and found it to be most interesting! (Professor) Dr. Wark was testifying about the “extraordinary rendition practices” of the US and how Canada is involved. He also talked a lot about the Egyptian government and their role in torture and imprisonment. There was some information about the (Returnees from) Albania trials, and I have no idea what that is about. There were eight observers there at the time. (three of them were Mohamed’s supporters according to Mohamed; the rest were court staff or security people plus of course Mohamed and his interpreter).

Mohamed also told me that Professor Wark’s testimony was excellent and even more detailed than that which he gave at the ‘Torture Motion’ hearings last spring. Yesterday, Mr. Tyndale, the Ministers’ Counsel, tried to destroy Professor Wark’s reputation as an ‘expert witness’, so Mohamed said it was heartening to hear Judge Blanchard introduce Professor Wark as an ‘expert witness’.

Mohamed told me that Professor Wark’s testimony will continue tomorrow morning (Thursday) under the examination of People’s Counsel Yamar Hameed, beginning (please note) at 9 am with court adjournment at 3 pm.

After tomorrow (Thursday), hearings will resume on Monday, November 29. Mr. Tyndale is scheduled to cross-examine Professor Wark beginning on Tuesday, November 30. I’m not sure what is scheduled for Monday.

Note: Court does not sit on Friday.

Thanks to all who have attended this week!

Federal Court is at 180 Queen St. W. (near Osgoode station), 6^th floor, room D.

Mahjoub Hearing - Tuesday, November 23, 2010

Hi all:

I just arrived home from today's court hearing which was mostly a debate between Public Counsel Yavar Hameed and Ministers’ Counsel Mr. Tyndale over whether the qualifications of Professer Wesley Wark, a Canadian expert and media commentator on intelligence and terrorism issues, make him an expert witness to testify regarding the Reasonableness of the Security Certificate on Mohamed Mahjoub.

I think tomorrow (Wednesday) will be more interesting because I believe Prof. Wark will get to testify about the Mahjoub case.

Thursday is supposed to be the day that a CSIS agent is examined regarding their policies and whether they have always adhered to their policies when dealing with Security Certificate cases. That will be the last day of hearings this week unless some time is required on Friday – but that would be exceptional.

Court begins at 9:30 am and usually goes until about 4 pm. You can attend at anytime and today's lunch break was from just before 1 pm 'till 2 pm but is up to the judge to decide.

Seven different people attended today, including one from out of town, David Milne of Belleville. Yusuf Mahjoub also attended for part of the afternoon with his mother Mona.

It is really good to have people interested in the case coming and going.

Also, there doesn’t seem to be a problem with people speaking briefly with Mohamed on breaks. He told me that.

So remember, the hearing is at Federal Court, 180 Queen St. W. Toronto (near Osgoode station), 6^th floor, Room D.

Mahjoub Hearing - Monday, November 22, 2010

Hi all:

Six of us attended today’s hearing at Federal Court, 180 Queen St. W., 6^th floor. Barney and Gail Lorimer even came from out of town. Unfortunately the day wasn’t very productive. Court went from 9:30 am to approximately 10:30 am when it was adjourned until 1:30 pm but didn’t recommence until 2 pm. Then it proceeded until about 3:15pm.

The events that transpired and the reasons for adjournment were as follows: the first item of business was a request from the Ministers’ lawyers – ‘ML’ - to have the ‘Public Counsel’ – ‘PC’ - (as Mohamed’s lawyers are known) sign an undertaking that purports to protect ‘the Service’s’ (name for CSIS) sources – to keep them confidential. This undertaking had been signed by M.’s previous lawyers but not by his new team.

The essence of the undertaking is three questions that they are instructed to never ask a witness: 1.whether the witness has ever been a source for ‘the service’;

2. whether the witness has ever been approached by ‘the service’; and

3. whether the witness ever had a conversation with ‘the service’; and any question about the nature of a conversation with ‘the service’.

Judge Blanchard ordered ‘Public Counsel’ to sign the undertaking.

However later, prior to court commencement in the afternoon, one of M.’s lawyers told us about an article appearing in today’s SUN newspaper entitled: ‘CSIS accused of spying on GTA mosques’, by Tom Godfrey – http://www.torontosun.com/news/torontoandgta/2010/11/21/16249006.html

which produced speculation that there could be a connection between this news revelation and the urgency to have the ‘Public Counsel’ sign the undertaking.

The matter which required the early adjournment was the ML having presented to PC just this morning, copies of a new version of a summary related to M. which was different in some respects to an earlier summary in PC’s possession. PC had asked for this new summary last week(?) sometime. Comparison of the two summaries by PC is essential prior to examining an upcoming CSIS witness, so they asked for and were given the adjournment in order to study the new document. The ML lawyer said that he had sent the new summary to the ‘special advocate’ lawyers who were in the courtroom and one of them vehemently denied that they had received the new summary. Judge Blanchard reprimanded the ML for not producing this summary in a timely manner and ordered the adjournment until 1:30 pm. So that PC could study the new summary.

A third matter was the request by ‘Public Counsel’ last week or earlier(?) to be given the Redacted (some sections blacked out due to ‘national security) CSIS Policy documents from 1997 to 2010 – related to all of those individuals under Security Certificate warrants. Judge Blanchard had given a court order for these documents to be delivered to the court and the lawyers. PC wanted to have these documents for prior study and to be available for the examination (cross-examination?) of a CSIS agent who was present all day outside the courtroom. Public Counsel wanted to see these documents so they could determine how CSIS policies have changed over the years and if ‘the service’ agents have actually adhered to their own policies as part of their actions toward the Security Certificate individuals.

At the commencement of the hearing at 2 pm, the ML still could not produce the Redacted Policy Documents and all the ML lawyer was able to say was that it takes time for redacted documents to be produced and could they not go ahead with the court schedule of examining the witness, to which the Judge Blanchard pointed out how ridiculous it would be to do that without PC being able to see the Policy Documents first. Judge Blanchard’s response to the excuses given for the failure of ML to obey a court order and produce these documents was to dismiss the excuses and say in a firm voice, “Why isn’t the document(s) delivered?” Mr. Blanchard said he was disappointed in both sides for failing to communicate with each other better.

The ML promised the documents by some time later in the week.

PC said they would be ready to examine the CSIS witness according to court schedule. Judge Blanchard asked if the next witness, *Wesley Wark could be ready for tomorrow (Tuesday) and Wednesday and that was what was planned with the CSIS witness (who didn’t know his schedule immediately) being put off until Thursday.

Judge Blanchard then warned both sides that he was not there to ‘babysit’ the lawyer teams and that they were wasting the court’s time; it was not his responsibility to be sure that documents and witnesses were present according to court schedule.He ordered both sides to spend the rest of the afternoon meeting with each other to plan future hearings. He reiterated the schedule of court sitting – Monday to Thursday of each week for awhile.

Court was adjourned at about 3:15 pm

*Professer Wesley Wark – Faculty of Social Sciences; Graduate School of Public and International Affairs

Professor Wark is one of Canada’s leading experts on intelligence and national security issues. He is a Past-President of the Canadian Association for Security and Intelligence Studies (1998-2000 and 2004-2006). He serves on the Prime Minister’s Advisory Council on National Security and the Advisory Committee to the Canada Border Services Agency.

Mahjoub Hearing - Thursday, November 18, 2010

Hi all:

I attended Federal Court, 180 Queen St. W., 6^th floor, with Mohamed and his translator today. The hearing was about an attempt by the Ministers lawyers to quash the subpoenas by M.’s lawyers to call former Public Safety Minister Stockwell Day and Immigration Minister Diane Finley, (who must have signed security certificates) plus an assortment of deputy ministers and at least one former CSIS lawyer. The hearing actually took place in Ottawa and was televised from there as was our 3 images sent to Ottawa so the participants there could see us.

The Minister’s lawyers used every argument they could think of to prevent any of these potential witnesses from being called - calling the subpoena request an abuse of process. They said that the requests were not specific enough, that parliamentary privilege and lawyer-client privilege would prevent these witnesses from speaking. Judge Blanchard showed some frustration with the request for quashing of the defence request by saying that some previous CSIS witnesses at the last set of hearings this fall were not forthcoming with any information so wouldn’t it be good to have some witnesses that could shed some light on the security certificates. This all took two hours before the lunch break.

After lunch, I just stayed for one hour but M.’s defence – Y. Hameed, stated again why he wanted these witnesses called – they have first hand knowledge of the reasons they signed the security certificates. Judge Blanchard also challenged the defence on the redundancy of calling witnesses if there was already written testimony available. I’m sure I didn’t understand everything that was said and I did not have any sense for how the decision will go – at the time I left. I felt like Judge Blanchard was challenging the arguments of both sides about equally.

Please remember that the Mahjoub’s review of the ‘Reasonableness of the Security Certificate’ begins at 180 Queen St. on Monday, November 22, 2010 at 9:30 am. I hope we can have a good turnout at the beginning of these sessions.

I spoke this afternoon to Mary Foster who is on tour with Abousfian Abdelrazik in Saskatchewan and she suggested an idea that we try to either focus on having a good turnout one day of the week or have people pledge to attend on certain days. What do you think?

In order for Mohamed to be freed It is important for us to show an interest by attending the hearings even for one or two hours at a time.

See you in court