Haroon Siddiqui, Dec 17 2009, Toronto Star

Has Canada done better than the United States in striking the right balance between maintaining national security and democratic values? Oh yes, we’ve had no Guantanamo Bay, no Abu Ghraib, no torture in Canadian prisons. We have maintained due process, of sorts, for terrorism suspects. Partially because of that, we looked down on the Americans for their security excesses. I had argued that 9/11 made Canada more Canadian, in that we rediscovered our values: multilateralism, the rule of international and domestic law, respect for civil rights. It was argued back that we had the luxury of such values because – unlike the U.S., the U.K. or Spain – we had been spared a terrorist attack.

Yet Canada has not been immune from post-9/11 excesses:

*  Maher Arar.

* Similar Canadian complicity in the torture in Syria of three other Canadian Arabs (who are negotiating a settlement with Ottawa and, unlike Arar, getting nowhere).

* The 2003 arrest of 23 men in Toronto on false accusations of being an Al Qaeda sleeper cell bent on blowing up the CN Tower.

* Benamar Benatta, an Algerian refugee claimant “rendered” the day after 9/11 to the U.S., where he was held five years before being cleared of any wrongdoing (and who’s now suing Ottawa).

* Stephen Harper’s stalling tactics in the probe of possible Canadian complicity in torture in Afghanistan, and his obstinacy – for reasons of ideology or partisan politics – in refusing to take Omar Khadr back from Guantanamo.

* The five Arabs held under security certificates, without charge and without being told why, cases that are collapsing in the courts, with two already tossed out.

The main argument for holding them has been this: What else can be done with those who may pose a security threat but against whom there isn’t the evidence to present in court and whom we cannot deport to their native nations for fear of torture?

But that’s the wrong question.

The problem is not that theoretical dilemma, but rather the incompetence of the security services that hold the wrong people for the wrong reasons (or have them tortured abroad or held in the U.S.) and then invoke secrecy in the name of security to hide their mistakes.

That has been the issue all along, as noted by Justice Dennis O’Connor (the Arar inquiry), Justice Frank Iacobucci (the three others tortured in Syria) and in ongoing lawsuits. Add to that the Monday ruling of Federal Court Justice Richard Mosley freeing Hassan Almrei.

The judge said that it might have made sense to hold this man under a security certificate in the panicky aftermath of 9/11 when we did not know enough about him or Al Qaeda (Almrei used to peddle forged documents, something the Canadian Security Intelligence Service said Al Qaeda also did, which made him a suspect).

But as we learned more about Al Qaeda and Osama bin Laden in the years since, it was unconscionable to hold Almrei, said the judge.

He chastised CSIS for making incorrect assumptions: “Individuals and groups who’ve no connection with Al Qaeda cannot be said to be part of the network without some other indicia of membership, such as a willingness to follow directions from Bin Laden … The (authorities) cannot establish that Almrei is a member of Al Qaeda or an affiliated organization and have attempted to bring him within the scope of this amorphous concept of a network based on his belief.”

Mosley said CSIS had used human sources that were unreliable. It invoked information that was outdated, making “no serious attempt” to update it. (One expert witness called CSIS intelligence work as “wiki-intel,” plucked from reckless claims on Wikipedia.) The judge also found CSIS and the federal ministers involved in breach of their duties of “good faith and candour” to the court.

Those are “shocking findings,” as Lorne Waldman, Almrei’s lawyer, told me.

This inspires confidence in the courts but decidedly not in our security services. It’s not just that they have been cavalier about civil liberties and due process, but that their work on national security leaves a lot to be desired. We can empathize with their difficult task but not their inordinate ineptitude.

The clearest path forward is to let the security services do their job but with strong civilian oversight, as recommended by Justice O’Connor; and, rather than operate in the twilight zone of secret evidence and murky trials, to rely on the open courts to try terrorism suspects, as has been done successfully in the case of Momin Khawaja of Ottawa and is being done in the case of the Toronto 11.

As for those against whom there’s not enough evidence to lay charges, monitor them. The argument that it would be expensive is spurious; it would be a lot cheaper than the $60 million spent trying to prop up the security certificates, even while ruining lives and compromising the good name of Canada.

hsiddiq@thestar.ca