In stark contrast to last week’s U.S. court decision upholding the Military Commissions Act, Canada’s court has unanimously struck down a law that would allow the Canadian government to use secret evidence to detain foreign-born terror suspects indefinitely without charges or open court hearings.
“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,” wrote Chief Justice Beverley McLachlin in last Friday’s landmark ruling.
And in a further blow to hard-line lawmakers, the Canadian Parliament voted last night not to renew provisions of the law granting the government the power to detain and interrogate terrorism suspects without court hearings.
Commenting on the court’s decision, Mary Shaw of Amnesty International USA told IPS, “These developments in Canada illustrate that our northern neighbors are rejecting knee-jerk reactions to the threat of terrorism in favor of a more reasonable approach that protects the Canadian people while also upholding human rights and international legal standards.”
“I believe that these moves will provide proof over the short and long terms that security and rights do not have to be mutually exclusive.”
Earlier the same week, a U.S. federal appeals court ruled 2-1 that detainees in U.S. custody at Guantánamo Bay, Cuba have no right to challenge their imprisonment in federal courts. The decision upheld the core of the Military Commissions Act (MCA), which was hurriedly passed in a close vote last year, after President George W. Bush rallied the support of the Republican majority in Congress. The court dismissed 13 cases brought on behalf of 63 Guantánamo detainees.
The MCA stripped federal civilian courts of jurisdiction to hear habeas corpus petitions, giving Pres. Bush the right to indefinitely hold detainees outside the U.S. without charges. The ruling affects some 400 prisoners still held at Guantánamo Bay, but could also establish a precedent affecting prisoner held by the U.S. in Afghanistan and in CIA “secret prisons” in other countries.
The case is expected to be appealed in the next two weeks to the U.S. Supreme Court, which twice has ruled that detainees may not be held indefinitely without court hearings.
In Canada, six men are now under threat of deportation without an open hearing under the federal Anti-Terrorism Act, passed when the Liberal Party was in power.
However, Tuesday night, Liberals brought together an opposition coalition that voted 159-124 to defeat a Conservative minority government motion to renew the government’s power to detain and interrogate terrorism suspects under the Anti-Terrorism Act.
The Canadian court decision has been viewed as emblematic of the growing divide between U.S. and Canadian tactics in the “global war on terror.” Late last year, a two-year judicial inquiry castigated the Royal Canadian Mounted Police (RCMP) for falsely accusing a Syrian-born Canadian citizen, Maher Arar, of being a terrorist.
The U.S. “rendered” Arar to Syria in 2002. The Canadian inquiry found he was tortured during his 10 months in a Syrian jail. The Canadian government paid Arar 9.75 million dollars in compensation and delivered a formal apology. The commissioner of the RCMP resigned because of the incident.
In contrast, U.S. Secretary Of State Condoleezza Rice refused to discuss the Arar affair during a press conference following her meeting last week with the Canadian minister of foreign affairs in Ottawa. She told reporters that, despite Washington’s excellent relations with its northern neighbor, “sometimes we have to agree to disagree.” The U.S. State Department, the Defense Department, and the Central Intelligence Agency have consistently refused to comment on the Arar incident.
Regarding Rice’s silence, Shaw said that, “The secretary’s refusal to comment on the case of Maher Arer is an implicit defense of the Bush administration’s use of extraordinary rendition, and its policy of no trials, no explanation, and no accountability. Arar’s story is just one such example from the Bush administration’s careless and desperate ‘war on terror’, in which officials systematically arrest individuals of Arab descent and then circumvent legalities by sending them away. Bush’s ‘war on terror’ could perhaps be better described as a war on human rights.”
Canada still retains its “security certificate system“, part of a 1978 immigration law that allows the government to detain people indefinitely if the minister of public safety and the minister of immigration deem them a threat to national security. Once signed, the certificates are subject to a judicial review. It is within the judge’s discretion to keep evidence secret.
The certificate system has been used 27 times since its passage, largely before the terrorist attacks on the U.S. on Sep. 11, 2001, and mostly to deport people suspected of being foreign spies.
Six men are currently in custody or on parole, including the three who brought the case decided by Canada’s high court last week. According to Canadian authorities, five of them have ties to al-Qaeda. A sixth man, arrested in 1995, was granted bail in 1998. He is accused of being a fundraiser for Sri Lanka’s Tamil Tigers.
The three men who brought the current case were likely to remain in custody since the Canadian high court issued a one-year suspension of its decision to give Parliament time to enact a new law reflecting court findings. However, with Parliament’s decision not to renew major provisions of the law, their future status is unclear.
The U.S. appeals court’s 2-1 decision found that overruling the MCA would “defy the will of congress,” and asserted that habeas corpus does not apply to foreigners who are not in the U.S. It effectively ruled that the U.S. naval base at Guantanamo Bay is a property leased by the U.S. from Cuba, and that Cuba has sovereignty over it.
In her dissent, Judge Judith W. Rogers wrote that habeas corpus may indeed apply to foreign nationals outside the US and that the lawmakers’ action had “exceeded the powers of Congress.” The U.S. Constitution stipulates that habeas may be suspended only “when in cases of rebellion or invasion the public safety may require it.” This is likely to be at the heart of the appeal to the Supreme Court.
The U.S. Justice Department expressed approval of the ruling. It believes that foreign detainees enjoy no constitutional rights when they are detained in other countries.
The appeals court’s decision came as congress adjourned for the President’s Day week-long recess, but congressional Democrats – now a majority in both houses – have already introduced legislation, co-sponsored by a powerful Republican, to amend the Military Commissions Act and restore habeas rights for detainees.
Senator Patrick J. Leahy, a Vermont Democrat who is chairman of the Senate Judiciary Committee, and that committee’s senior Republican, Senator Arlen Specter of Pennsylvania, have introduced a bill that would restore habeas corpus rights.
Another bill has been introduced by Senator Christopher J. Dodd of Connecticut, who is a candidate for the Democratic presidential nomination.
