Cheques to terrorists is not the answer

Why is Canada Cutting Cheques to Suspected Terrorists? It began in 2007 after a lengthy and expensive Inquiry and resulted in a $10.5M payoff to Maher Arar.

Arar has joint Canadian-Syrian citizenship and was under pre-9/11 investigation by the RCMP and others regarding his activities and associations related to Islamist terrorism. However, despite being aware of the investigation, Arar left Canada in 2002 for extended international travel and was detained upon arrival in New York City. Following this, he was transferred – by U.S. officials – to Syria. He subsequently claimed he was tortured in Syria due, in part, to information that had been provided by Canadian officials to their U.S. counterparts.

In 2017, Arar’s three original associates of interest – Abdullah Almalki, Ahmad Abou El Maati and Muayyed Nureddin, who were also under RCMP and U.S. terrorism investigations – were collectively awarded $31.25M from the Canadian government as settlement of a civil lawsuit they had filed.

Like Arar, the essence of their complaint was alleged misconduct or inaction by Canadian authorities after they had chosen to travel abroad and were detained and interrogated by Syrian, and in El Maati’s case, Egyptian authorities. Also like Arar, they claimed to have been tortured – which they alleged was aided by inappropriate Canadian interactions and information sharing with their foreign counterparts. A subsequent, mostly-closed-door, judicial Inquiry into the three cases found that there were instances of their Charter rights being violated by the actions or inaction of Canadian officials.

Also in 2017, the Canadian government announced a ‘settlement’ of a civil suit brought against Canada by convicted Islamist terrorist Omar Khadr, whose claim appears to have been based on Canadian officials interviewing him twice in 2002 while at Guantanamo Bay after having been captured following a deadly firefight in Afghanistan. Khadr also complained that Canadian officials provided copies of his interviews to U.S. officials even though it is now clear that the U.S. had itself recorded the conversations. A detailed analysis of the Khadr payoff can be found in issue #2 FrontLine 2017.

In none of these three cases, was a clear and factual rationale provided by the Canadian government as to why it chose to settle the case… behind closed doors. Emotional reasons, yes; factual rational, no.

Nor has there ever been an explanation as to whether there was a factual justification for the actions taken by Canadian security officials. In fact, both judicial Inquiries expressly chose not to examine the conduct of the suspected individuals involved – and whether or not their conduct contributed to their overseas detention and interrogation. And none of the individuals were subjected to cross examination. Not the best way to achieve a properly-informed outcome.

Given this, it’s not surprising that more ‘victims’ are emerging. Djamel Ameziane, a current Algerian resident who was a bogus refugee claimant linked to Ahmed Ressam, the would be Millennium Bomber (himself a bogus refugee claimant), was removed from Canada in 2000 and thereafter went to Afghanistan and Pakistan where he was captured by U.S. forces after 9/11. Ameziane was held in Guantanamo Bay where he became friends with Omar Khadr. His complaint against Canada was that he, like Khadr, was interviewed by Canadian officials twice.

By remarkable co-incidence, Ameziane has filed a civil lawsuit against Canada from Algeria where he now safely resides, and he is represented by one of Omar Khadr’s lawyers. I wonder if Omar received a ‘finders fee’?

In November, CBC News reported that former Calgary residents Yacine Meziane and Abderrahmane Ghanem had publicly complained that CSIS ‘ruined their lives’ by providing Middle Eastern officials with information about their undisputed clear association with several young men who left Canada to engage in jihad in Syria in support of IS. Both were detained and interrogated and are now back in Canada airing their complaints.

Add to that, the case of Abdulrahman El Bahnasawy, the 19-year-old Canadian awaiting sentencing for a foiled terrorist plot in New York City. He too has recently retained one of Omar Khadr’s lawyers. As reported by the Canadian Press in March of this year, he wrote to the judge asking for a second chance. In a letter, filed to a New York court, the 20-year-old pleaded for leniency, saying he felt that Americans were trying to disrupt the lives of people in the Middle East with airstrikes and he thought “it was appropriate to use similar methods back until and unless they stop.”

Are civil suits against Canada for damages on the horizon in these cases?

Then there is the UK resident with dual UK and Canadian citizenship. “Jihad Jack” (whose real name is Jack Letts) and the two young Canadian women who have been captured and detained in Syria and Iraq following the collapse of IS where local officials allege they were supporting the terrorist group. While the women's cases are no longer in the news, Letts parents, themselves UK residents who are facing trial for funding him while in Syria, began demanding Canadian intervention to free their son, and Letts himself was recently recorded begging to return to Canada.

It was announced recently that negotiations between the Government of Canada and lawyers for suspected terrorist Abousfian Abdelrazik, the Sudanese-Canadian who was held in Sudan from 2003-2009.

It is necessary to ask what the appropriate and required actions by Canadian officials are – in these cases and those that will, no doubt, be others that will follow.

It was announced recently that negotiations between the Government of Canada and lawyers for suspected terrorist Canada urgently needs to develop an effective strategy to clarify how its national security enforcement and intelligence officials deal with foreign governments relating to Canadians, or persons linked to Canada, who are involved in terrorism-related investigations. This will be no easy task because the scope of activities involved ranges from information-sharing to travel alerts to foreign post arrest involvement and intervention. Further, as the nature of the terrorist threat evolves, so too do the necessary counter-terrorism actions, including international interactions with foreign governments and agencies, of which there is no single model.

The above noted Court and Inquiry and closed-door government civil settlements/payoffs, where Charter violations and civil liability has been admitted, also demonstrate the need for a modernized strategy to avoid the after-the-fact, politicized approach currently in place.

These various ‘rulings’ have created a maze of potentially conflicting ‘do’s’ and ‘don’ts’ for our officials in the national security, intelligence and diplomatic realms. The federal government’s repeated refusal to contest Charter breach violations, and instead throw its officials under the bus, is also dangerous as it can contribute to a risk-averse culture within the organizations who are literally on the front lines of protecting Canadian national security. 

So, what’s needed?

First, there needs to be express statutory authorization for defined interactions and information-sharing by designated Canadian officials on terrorism cases with international entities. Second, there should be a statutory approval process in advance of such actions for defined actions and defined purposes, including restrictions and report backs. This is a function that specially-designated Federal Court Justices could perform. As illustrated in the Supreme Court ruling in the Spencer case, this proactive judicial approval would convert Charter breaches into Charter compliance. Targeted amendments to Bill C-59, which is currently before Parliament, could be the right vehicle for this to be achieved.

In light of the continuing defeat of IS, there is also an inevitable likelihood of both Canadian jihadis returning and/or arrested and detained abroad. Accordingly, Canada needs to develop a comprehensive strategy of options for international interactions where Canadians are detained abroad on terrorism investigations or charges. This should include:

  • Expanding the application of post-conviction transfer back to Canada under the International Transfer of Offenders Act (used in Omar Khadr case) to allow the imposed sentence to be served in Canada and subject to Canadian law;
  • Expanding the application of extradition of persons back to Canada for prosecution under the Extradition Act while concurrently ensuring that admissible evidence for prosecution in Canada can be obtained;
  • Establishing a process for Canadians detained abroad to access specially approved Canadian legal counsel so there is full appreciation of the detainee’s legal circumstances and that statements given to support repatriation are admissible or case resolution on return is achieved;
  • Promotion of agreement of repatriation of detainees by foreign governments without criminal prosecution, in appropriate cases, upon agreement to enter into s. 810.011 peace bonds on return to Canada.

These are complex issues that require a proactive strategy that is operationally informed, and with targeted, substantive components that are specifically designed to be effective and Charter-compliant.

While this won’t be easy, it is an issue that the current Government needs to prioritize because the problems are not going away, and cutting cheques is not the answer.   

Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Vice Chair of the Ontario Office for Victims of Crime, Director of Operations for Investigative Project on Terrorism and as a Security Policy Advisor to the governments of Ontario and Canada. He is currently an Adjunct Professor in the TRSS Program in the School of Criminology at Simon Fraser University.