TORONTO – How to shed light on one Canadian’s nightmare experience in a jail in Syria and the secretive U.S.-inspired, extralegal global system of interrogation and torture that put him there are challenges facing one judge here, who must also confront "national security" barriers put up by Ottawa.
The circumstances surrounding the treatment of Maher Arar, who has never been charged with a crime, is the subject of a federal commission of inquiry that since the summer has been held in closed-door hearings, where Canadian security and intelligence officials have been secretly cross-examined.
Judge Dennis O’Connor is expected to issue a ruling in early 2005 on what details from the evidence presented by the Royal Canadian Mounted Police (RCMP) and the Canadian Security Intelligence Service (CSIS) can be made public.
"We are very confident that we are getting to the bottom of this story," commission counsel Paul Cavalluzzo told Canadian Press last week. "We are confident that the public will learn what happened to Mr. Arar."
But observers say the Canadian government, which reluctantly agreed under public pressure to hold the commission of inquiry, is expected to appeal O’Connor’s ruling at the Federal Court of Canada in order to keep much of the information regarding the investigation of the Syrian Canadian under wraps.
In July, the Globe and Mail newspaper reported that O’Connor expressed concerns in a written decision that Ottawa had given itself considerable scope for appeal under new provisions in the Canada Evidence Act, terms that might be open to a future constitutional challenge.
"Indeed, the provisions do not appear to sit well with the whole idea of a public inquiry," the judge reportedly wrote.
Neither side would benefit if the Arar inquiry ends up stalled in the courts, says Wesley Wark, a University of Toronto professor of international relations and an expert on security and intelligence matters.
More importantly, continued Wark in an interview, both the U.S. and Syrian governments have refused to assist the inquiry, which means its findings will comprise "a limited snapshot of Canadian involvement" in the Arar case.
A wireless computing consultant and Ottawa resident, Arar was returning home from a family vacation when he was detained in September 2002 in a New York City airport by U.S. authorities, who deported him to Syria, a county he had fled many years earlier rather than do military service.
As a result of some communications from the Canadian government to Syria, Arar was released just over 12 months later. Upon his return to Canada, the man reported he had been beaten and tortured while in prison and forced to sign a false confession reportedly linking him to Islamist terrorists.
Heavily censored documents recently released by O’Connor suggest the RCMP, the national police agency, considered Arar a "peripheral figure" in their ongoing terrorism probe, although it actively discouraged the Canadian government from responding to the public lobby to have him released from the Syrian jail.
The RCMP documents also suggest it was U.S. authorities who determined Arar was a member of Osama bin Laden’s al-Qaeda network (which he vehemently denies) and decided to send him to Syria because of his dual citizenship rather than delivering him to Canada.
What appears to be an attempt to minimize the role of Canadian security and intelligence services in the case is being greeted with considerable skepticism by the non-governmental human rights organizations that successfully pushed Ottawa to hold the inquiry.
"The documents released appear to be a strategy or attempt by the RCMP to put all of the blame on the U.S. It seems to be diverting from what we hope the commission is after, which is to see if there a systemic strategy of the RCMP to collaborate on sending people to torture," said one spokesperson, who asked to be unnamed.
Wark, who has close ties with Canada’s security and intelligence establishment, doubts that either the RCMP or CSIS had any role in the U.S. policy to have Muslim men sent to such countries as Egypt, Syria, and Jordan, where they received the kind of abusive treatment under interrogation that would be illegal in Canada, a process known as extreme rendition.
"What may well have happened is that the Canadian government embassy there [in Damascus] may well have been provided with information from the Syrian government about the results of their so-called interrogation of Arar. But I don’t think there was any cooperation or complicity between the Canadian and the Syrians on that matter," he added.
While the inquiry is mandated to focus on what happened to Arar, the similar experiences of three other Syrian Canadians will not receive much of an airing, says Alex Neve, secretary general of Amnesty International Canada.
Amnesty, which has been closely involved in the case since Arar’s deportation to Syria, does not accept that the case is simply about the misfortune of one man.
In one of the three other cases involving Syrian Canadians who say they were interrogated and tortured in their home country, adds Neve, it appears that CSIS "at the very least, if not other arms of Canada’s law and security establishment, was involved in the case and was having some sort of back and forth with Syrian officials."
Earlier this year Amnesty unsuccessfully asked O’Connor to expand his inquiry to a second case. That means the other Syrian Canadians can only be called as witnesses if their testimony appears "relevant to the inquiry’s mandate, which is to figure out what happened to Maher Arar," adds Neve.
Neither Arar, nor his lawyer or the various NGOs that have intervener status in the inquiry have been able to participate in the in-camera cross-examination of RCMP and CSIS officers. Although he can consult with Arar and the NGOs on the general direction of those sessions, O’Connor cannot reveal either the names of the RCMP and CSIS officers on the stand or the subjects discussed.
This has meant that the judge and his commission have been unable to fully benefit from the expertise of engaged civil society groups that could "actually help him press his case," says Stephen Staples, the director of the project on the corporate-security state at the Ottawa-based Polaris Institute.
When public hearings at the inquiry resume in early 2005, Staples plans to raise the issue of the integration of Canadian and U.S. security and intelligence information that followed the terrorist attacks of Sept. 11, 2001 and to argue, "A Maher Arar situation was bound to occur sooner than later."