RSS FeedCSIS Snooping on Calls to Your Lawyer
Could CSIS be snooping in on your calls? Routine harassment has been noted where they could not make a legal case. And if they can violate solicitor-client privilege, anything is possible.
The concept of solicitor-client privilege goes back at least 400 years in the common law, and is one of the most well established concepts of privilege in our legal system.
The Canadian Security Intelligence Service (CSIS) was recently caught listening and recording conversations with Mohamed Zeki Mahjoub and his lawyer since the Egyptian refugee and terrorism suspect was released on bail over a year and a half ago.
When challenged by Justice Carolyn Layden-Stevenson, CSIS lawyer Jim Mathieson agreed that any such recordings would stop, and records would be erased.
But other defence lawyers have now raised some very serious concerns. Dennis Edney, who represents one of the Toronto18 and Omar Khadr said in response,
How can we trust that the system is working appropriately? Every lawyer in this country who’s involved in issues of national security has no way of knowing whether (the Canadian Security Intelligence Service) is monitoring their calls.
See the rest of the post over at Slaw.
CBA Joins Fight to Repatriate Omar Khadr
The Canadian Bar Association has announced that it is joining with a number of other agencies to fight for the repatriation of Omar Khadr to Canada.
Omar Khadr, a 15-year-old boy at the time of his capture in Afghanistan, has been languishing in Guantanamo Bay since 2002.
Though the CBA has spoken out against Omar Khadr’s detention in the past, and has joined with other groups to call for the closure of Guantanamo Bay entirely, the Association has made the repatriation of Khadr one of its top priorities for this year.
In a statement to the House of Commons International Human Rights Subcommittee, the Bar Association explained that:
“Our commitment to justice is challenged where the individual is unpopular and accused of terrible crimes. It’s at times like this that we must speak out, and defend those rights. This is what the rule of law requires – that we recognize the rights of all, not just the favoured few.”
The CBA represents about 37,000 lawyers and law students across this country.
Rae: Canada Has Its Own Voice on the International Scene
Hon. Bob Rae spoke this morning at the University of Western Ontario Law School on A Changing World: New Directions for Canadian Foreign Policy. What follows are notes (not a transcript) from his talk.
Law Students and Public Policy
Rae said that Canadian foreign policy as an issue that is a significant one in the politics of the country. As soon to be lawyers, the issue of Canada’s role in the world is a critical concern to all of us, and one that has tremendous opportunities as law students.
There is no clearer area of public policy where the ideological contrast between parties can be demonstrated. Western has produced some of the great legal minds of our time. Justice Rand, a former Dean of the school, made considerable contributions to the foreign policy of this country.
What is Canada’s Role?
Rae asked whether Is Canada’s role in the world is to essentially ally itself with the U.S. in terms of American foreign policy and position in the world. Or is Canada’s voice in the world one of greater independence - one in which we look to Canada’ expressing strong support for multilateralism, international law, and support for multilateral institutions in relation to trade relationships.
It seems over the past 50 years there has been an implicit debate in the country over these issues, and that Harper has now made this debate explicit. His view in the world is quite simple: Canada is a country whose values and interests are tied up with the U.S., who is our most important trade partner. Our primary role is therefore to be an ally and supporter of the U.S. Other areas of foreign policy are all subordinate to that. That is the key relationship, the driving force between Canada’s role in the world.
This is a view that puts a great deal of emphasis on military power, and expects that Canada has to play a much stronger role in the military side of the equation. It downplays Canada’s traditional role at UN in supporting international institutions. Our efforts against land mines and in support of the International Criminal Court are examples of this.
War in Iraq
Rae pointed to two speeches of by Howard Hampton and Stephen Harper at time of Iraq war. His point was made by a choice made by Chretien at the time - Canada was not willing to participate in invasion of Iraq. Harper saying yes we will. Interesting enough, the words he used were borrowed from President of Australia.
Canada’s decision not to participate in the Iraq war was a defining moment, and was based on two major factors:
- The existence of WMDs
- An imminent threat
The Canadian government did not believe Saddam had WMDs, or that the evidence supporting assertion was in any way adequate. The U.S. relying on secret information, but the information provided from Hans Blix could not justify assertion.
If Canada didn’t have that information, it would still have to establish some other idea as to why it is justified as act of outside invasion. Canada’s position was clear - but the U.S. and U.K. was emphatically on the other side that whether or not there were WMDs, the risk justified invasion.
It took courage for Chretien and Graham to explain to Canadians why we were not joining our two closest allies. Now people say it’s a no-brainer - because we look at it retrospectively at the mess it created. It was controversial at time, and the criticism came mostly from Harper, who bought Bush/Blair doctrine. Harper insisted that was where Canada’s interests lay, where our values should take us.
Economic Relations
When it comes to trade relations it was Mulroney, following Royal Commission Report, that took the great leap towards negotitiations on free trade that eventually became NAFTA. Mulroney believed that if we could get from out underneath the U.S. trade umbrella and trade harrassment it would be a great deal for Canada. We would benefit from coming firmly within an America economic framework, and at the same time free ourselves from trade harassment.
By way of contrast, many people believe our long term protection is not in bliateral protection but with many countries that include the Americans. The history of our free trade is well-known, and we are going to experience its full effects in the next major while.
And we have not been able to free ourselves from trade harassment. The U.S. Senate is based on states where less than 20 percent of population control 50 percent of Senate, and is therefore dominated by agriculture and natural resource interests. The U.S likes to portray itself as supportive of free trade, but it actually relies far less on free trade than any of its trading partners.
This is just another example of where our decisions to make a special deal has actually proved short sighted.
A Foreign Policy that is Our Own Voice
Whether it is on the economic or political side, do we want to have a foreign policy where we find our own voice, or do we see ourselves as essentially being the junior partners in the American enterprise?
In recent days that choice has become very clear and sharp, and a clear example of that is the case of Omar Khadr, a Canadian citizen. He grew up in Afghanistan and was eventually captured and charged in the efforts to kill an American soldier, and has since been incarcerated in Guanatanamo Bay for that last few years.
We have to try to understand what this issue means for Canada. It’s not just about the politics of do we like what he did or was accused of doing. There are two major issues:
- What do we do with child soldiers?
- What do we do with Canadians in these situations?
There have been enormous procedural delays in his trial, with the head of the military tribunal recently being replaced. There have been two recent Supreme Court cases in the U.S. critical of Guantanamo, and how it is being administered by the American government.
They stated that the law of habeas corpus does apply, and that it is not simply possible to incarcerate people without letting them know what htey have been charged with. These are fundamental principles of our justice system. The second case is worth reading simply to review the very basics of habeas corpus and its role in the legal system.
Canada is a signatory to the international treaty aimed at rehabilitating child soldiers. It’s fundamental to get these people out to rehabilitate them to let them continue on with their lives.
Sri Lanka has an issue with this on the rebel side, where people can be recruited as young as 12 and sent into battle by the age of 14 or 15. If you capture them, what do you do? Do you treat them as a soldier, as a child, or as a child soldier?
There are protocols that have to be followed. The U.S. military tribunal has said we are not interested in this, and it does not pertain to the treatment of Omar Khadr.
The Question for Canada
The question for Canada is that we’ve gone along for a long time to see what kind of justice people like Omar Khadr can get. We said, let’s hold judgment until we see what kind of treatment he gets.
And frankly, we’ve seen quite enough.
Senator Obama and McCain have both said they would close Guantanamo, and find another method to try people that are there.
We can also look at the issue of members of the Uighur community of Xinjiang in Western China, which has long issues with the extent of which it is being ruled and human rights issues. How do we respond as a country when dealing with the possibility of courts where we disagree with their approach to a legal system?
In the case of Guantanamo, it puts us in a ridiculous position where the only person thinking Omar Khadr should stay in the U.S. and would get a fair trial in the U.S. is Stephen Harper.
Again, even McCain says it should be closed. This is an absurd position for Canada to be in.
Differing with America is not Anti-Americanism
Mr. Rae also distinguished the mission in Afghanistan from that in Iraq. The U.N. agreed to the mission. contrary to Iraq. We believed we were going there to help set up a new government and support them.
The Liberals would like to change the focus to reflect this interest, away from military activities to training the Afghan army and politically helping the government create a more stable arrangement. The 2011 withdrawal date was what was initially agreed upon by parliament, and when all countries said the mission would come to an end.
These are the principles we should try to apply: that we intervene when we believe it is lawful to do so, and when it is justified by international law.
Canada is not a superpower. It is not an empire, and we do not have imperial ambitions. All we want to do is participate in a stable international world order.
That is why we’ve been such strong supporters of the U.N. The Universal Declaration of Human Rights was drafted by a Canadian after all.
Our interests as a small country, a relatively small power, are different from that of our neighbours. It means we will agree and disagree from time to time. It does not mean we are anti-American, it just means we have different interests.
Get Involved as Law Students
There are many ways you can be involved and engaged in this world.
Your generation has more opportunity to see more, to do more, to be more engaged than any generation in hum history.
Try to make a difference. Find out what gives you passion, and take those ideals and interests wherever you may go.
Follow-up: Reply Letter from Foreign Affairs Minister regarding Omar Khadr
On July 15, I posted a letter that I had written to Prime Minister Stephen Harper regarding Omar Khadr’s continued detention at Guantanamo Bay, Cuba.
The letter was signed by myself and 10 other law students.
On September 16, 2008, I received a reply letter from the Prime Minister’s Office indicating that the letter would be passed along to the Minister of Foreign Affairs who would “certainly be interested in [our] views” regarding Omar Khadr.
I looked upon that letter as a Prime Ministerial brush off. I thought it would be the end of the matter.
To the government’s credit, I today received a follow-up letter from The Honorable David Emerson, Minister of Foreign Affairs.
The entire text of the letter is reproduced below:
September 24, 2008.
Dear Mr. Gridin and Co-signatories:
The office of the Right Honourable Stephen Harper, Prime Minister, has forwarded to me on September 16, 2008, a copy of your letter (Folder: 664583) concerning the case of Mr. Omar Khadr, Canadian citizen detained at the U.S. military prison at Guantanamo Bay, Cuba.
I understand your concerns and I can assure you that the Government of Canada has an interest in Mr. Khadr’s case and in his treatment. Canadian observers have been present at his hearings before the Military Commission in Guantanamo Bay and the Court of Military Commission Review in Washington D.C. Furthermore, officials of Foreign Affairs and International Trade Canada have carried out several visits with Mr. Khadr and will continue to do so. The visits allow access to Mr. Khadr to assess his welfare and treatment, and to obtain information about his mental and physical condition.
Although Mr. Khadr is no longer a juvenile, he was 15 years old when he was alleged to have committed crimes in Afhanistan. Canada has sought to ensure that the treatment of Mr. Khadr is consistent with internationally recognized norms and standards for the treatment of juvenile offenders, and that his age at the time the alleged events occurred is considered in all parts of the process. Canada has also consistently sought to ensure that Mr. Khadr receives the benefits of due process, including access to Canadian counsel of his choice. The Canadian government has received unequivocal assurances from U.S. authorities that Mr. Khadr will not be subject to the death penalty, and indeed the charges against him were referred to the Military Commission on a non-capital basis.
In keeping with Canada’s long-standing policy, the Canadian government strongly believes that the fight against terrorism must be carried out in compliance with international law, including established standards of human rights and due process.
With respect to Mr. Khard’s repatriation to Canada, it is premature to discuss this issue since his case is still before the courts.
Thank you for taking the time to write and share your concerns.
Sincerely,
[sgd]
The Honourable David L. Emerson, P.C., M.P.
While I do appreciate the reply from Mr. Emerson, I do not accept that the government is doing enough.
Omar Khadr has been in detention for 6 years. The “several visits” during this period to check up on his well being are virtually meaningless. He has been the victim of serious psychological and possibly physical abuse at the hands of his captors.
The extreme isolation of growing up inside a military prison is unimaginable. Omar Khadr’s development from a child to an adult has been stifled, and at this point, it is unlikely that he will ever be a normal, adjusted individual.
The assurances of due process are also hollow. Omar Khadr is being tried by a kangaroo court, in proceedings that have been the subject of problems and numerous complaints. Most recently, a military prosecutor at the Guantanamo Bay tribunals resigned over “ethical qualms.”
Lt. Col. Darrel Vandeveld quit, allegedly after the government withheld exculpatory evidence from the defence.
The U.S. government denies this allegation. But internal documents obtained by the Associated Press indicate that Col Vandeveld declared to the tribunal that that “potentially exculpatory evidence has not been provided.”
He is the fourth prosecutor to quit.
In the Khadr case specifically, there have been claims that the government “manufactured evidence” against the accused.
The culture of secrecy and political implications of this case are reasons why ultimately, the military tribunal is not the appropriate forum to hear Omar Khadr’s case. Mr. Khadr needs to be repatriated to Canada immediately to face trial at home. This should be a trial subject to Canadian legal protocols and consistent with the values that we hold dear, including those enshrined in the Charter of Rights and Freedoms.
Law students across the country are organizing to put further pressure on the government on this issue. Stay tuned for more.
Omar Khadr: A Hero of Canadian Values?
by Hicham Safieddine and Diana Younes
Development of violence among the colonized people will be proportionate to the violence exercised by the threatened colonial regime
Frantz Fannon
A lot of ink has and is being spilled on upholding the legal rights of Omar Khadr in the face of the American extra-legal war on terror. Khadr has to come home to save and serve our Canadian values the argument goes. In essence, this discourse seems to be not about Omar Khadr, but about Canadian values.
It is the country’s conscience that is hurting, not the body of the accused. It is the Canadian government’s authority and international reputation that is being violated, not the humanity of the accused.
It is our sensibilities for due process and fair trial that are under attack, not the sanity and dignity of the accused. For supporters and opponents alike, bringing Khadr back or keeping him at Guantanamo is about one thing: saving our values, not his life.
We talk about what these values are, but we leave out the values of those we constantly claim to empathize with, values ascribed today to the realm of radical or imagined politics but that are in fact enshrined in international law[1], which we uphold in the highest regard: the right of all peoples to fight for self-determination against colonial domination and alien occupation and to carve out their own path to economic, social and cultural development; the moral duty of all nations to eradicate the evil of colonization and alien subjugation.
If we really support those universal values, then we need to possess the moral courage to accept the cost in practical terms- a cost that Canada was more than willing to pay when its own or its allies’ rights were threatened.
A right to self defense means in practical terms a right to carry arms and a right to counter violence with violence. For the same violence inflicted by occupying powers (invited by colonially-instituted puppet regimes or not) will be claimed by the occupied. From the legitimacy of the law of war that endows people to put trust in their armed forces and the necessity at times of armed conflicts, Canadians should understand if not accept the violence inflicted against their or their allied troops at war. Canadian troops do what they are told, we are constantly reminded. “Enemy” troops are no different.
Omar Khadr, 15 years old or 45, was doing what he was told and possibly what he believed to be defending an occupied land. And yet, he is denied Prisoner of War status, something even Nazi foot soldiers were not. He is charged with murder; a crime constantly committed by American and Canadian troops in Afghanistan[2]. Under The Hague Regulations and Protocol I additional to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts,
Khadr is entitled to POW status for a reason, he is classified as a soldier or belligerent. But we do not want to think of Khadr as a soldier (let alone a child), and all the universal values attached to that label regardless of the side one is fighting against. The same way we would rather stick to a debate about some values and not others, and ultimately in isolation of the person in question or his alleged actions.
This is how drastic the debate has shifted in Canada away from what this war is all about and into the abstract sanitized space of moral values and legal rights. And that should not come as a surprise; given that the debate is not about Khadr, but rather about our ….values.
[1] United Nations General Assembly, Resolution 1514 adopted in 1960, which all countries are obliged to respect.
[2] Human Rights estimates dozens of children killed by ISAF since the invasion of Afghanistan.
Omar Khadr Video Round-up
Early yesterday morning, the Canadian government, in compliance with court orders, released a video of Omar Khadr’s interrogation by Canadian Security and Intelligence Service agents at Guantanamo Bay, Cuba. The video, which is the first ever seen of CSIS agents in action, is already making waves internationally. Within hours of the release, front-page headlines were sparked everywhere from The New York Times to the BBC to Al Jazeera.
I can only hope that all of this international coverage will bring more pressure to bear on the Canadian government to step up and do something to protect this young man from the torture he faces in Guantanamo Bay. Canada must request Omar Khadr’s repatriation so that he can face trial in this country.
Below I have collected a number of videos relating to Omar Khadr:
The Interrogation Video
“Before the rage, the resignation and the tears, came the trust. Teenaged prisoner Omar Khadr seemed sure that his countrymen from Canada had come to Cuba to help him and spoke freely when they asked questions. On the second day, the reality almost visibly dawned on his face.
… Much of the material released shows Mr. Khadr — who is wearing an orange uniform — sobbing and repeatedly saying, in a moan, “Help me, help me.”
Here is a short segment of the 8-minute interrogation video that has been released to the public so far. The full 7-hour video of the interrogation is scheduled for later release by the Canadian government. The audio quality is quite poor, but if you click the link to view the video at YouTube, you will find captions of the exchange.
There is no evidence of torture on the videotape, but it is reported that:
“Documents made public last week show that Mr. Khadr was subjected to weeks of sleep deprivation by U.S. military officials before being interviewed by Canadian officials, and that the Canadians were aware of the sleep deprivation.” (The Globe and Mail)
Opposition Parties Demand Action
On May 26, 2008, the NDP MP from Windsor-Tecumseh, Joe Comartin, challenged the government to respect the findings of torture by the Supreme Courts of Canada and the United States and to demand Khadr’s return:
On June 13, 2008, the Liberal MP from Davenport, Mario Silva, questioned the government as to how much longer it would sit on its hands and do nothing to repatriate Khadr:
Romeo Dallaire Weighs In
Arguments at the Supreme Court of Canada
In May of this year, the Supreme Court ruled on the (il)legality of withholding disclosure from Khadr’s defence team. The SCC’s ruling in Khadr is what precipitated the release of the interrogation video above.
In Canada (Justice) v. Khadr, 2008 SCC 28, the court ruled that the Canadian Charter of Rights and Freedoms has some limited application outside the borders of this country. A thorough analysis of the judgment can be found at The Court, Osgoode Hall’s blawg.
Below is a video (unfortunately, quite short) of some of the arguments made before the Supreme Court in that case:
Letter to Harper regarding Omar Khadr
Below is a letter that I have written to Mr. Harper to protest the Canadian government’s treatment of Omar Khadr, one of its citizens. If you are not familiar with the story, you can find some excellent background at The Globe and Mail.
credit where credit is due: I received assistance from the staff of this blawg, but because this letter does not necessarily reflect their views, I have respected their wishes and not added their names.
A Letter to the Right Honourable Stephen Harper
Office of the Prime Minister
80 Wellington Street
Ottawa K1A 0A2
Dear Mr. Prime Minister Harper:
Re: Repatriation of Omar Khadr
I am writing to you to ask that you immediately issue a request to the relevant American authorities to have Omar Khadr repatriated to Canada.
Facts bearing on the problem:
- Omar Khadr holds Canadian citizenship;
- he was a minor at the time of his detention by American authorities;
- he has been detained at Guantanamo Bay since 2002;
- during his six years in custody, Omar Khadr has been denied habeas corpus and the due process of law; and,
- he has been subjected to, at the very least, psychological abuse amounting to torture.
The right of any person to be presumed innocent until proved guilty is fundamental to our justice system and is a principle embodied in our constitution. Thus, Mr. Khadr is an innocent Canadian citizen being tortured at the hands of the American authorities.
In addition, a number of incidents have exacerbated the situation further. Military interrogators have been caught destroying important evidence. And alternative reports have indicated that Khadr was not alone at the time of his capture, undermining the assumption that he was directly responsible for any deaths.
Ultimately however, the question of Mr. Khadr’s guilt or innocence is not relevant to whether Canada should request his repatriation. This is a question of Canada’s prestige and credibility on the international stage. Canada remains the only industrialized nation that has failed to intervene on behalf of its citizens.
There is no benefit to be gained from allowing Mr. Khadr to remain in American custody. There would be no diplomatic cost to requesting repatriation. The United States has explicitly indicated its willingness to hand over Mr. Khadr should Canada issue a request.
Conversely, the costs of failing to act are significant.
By failing to take action, when all that would be required to put an end to Mr. Khadr’s torture is a simple diplomatic request, Canada is being complicit in the gross violation of the basic human rights of one of its citizens.
In 1948, Canada became a signatory to the Universal Declaration of Human Rights. It is a source of great national pride that a Canadian, John P. Humphrey, was the principle drafter of the Declaration. Because of our extensive history of contributions to the field, Canada has been recognized as a worldwide leader in human rights.
Our policy with respect to Omar Khadr is a tarnish on this international reputation. Our inaction is interpreted by the international community as a silent endorsement of the activities at Guantanamo, including controversial acts of torture. Domestically, the faith of Canadians in this country’s commitment to human rights and the protection of its own citizens is undermined. History will judge us harshly for failing to act.
I therefore ask that Canada request repatriation of Omar Khadr and that he be tried for his alleged crimes in this country.
As a Canadian citizen and a strong believer in human rights and dignity, I cannot ignore what is happening to Mr. Khadr. Respectfully, I feel that a vote for the Conservative party in the next election would represent my own sanctioning of the policy towards Mr. Khadr. I refuse to condone the inaction of this government. Today, I am ashamed of the country I so dearly love.
Yours very truly,
[signed]
Lawrence A. Gridin,
Law Student
The Khadr Conundrum Raised at UofO
“Omar Khadr is a Canadian citizen who was captured by U.S. forces in July 2002 when he was 15 years of age after allegedly throwing a grenade that fatally wounded a U.S. soldier. He is currently being detained and prosecuted by the U.S. at Guantánamo Bay.”
On May 28, 2008, six common law students from the University of Ottawa appeared before the Subcommittee on International Human Rights of the Standing Committee on Foreign Affairs and International Development, to testify that there are a number of legal avenues that may be taken if Khadr is returned to Canada and the evidence against him is found to be admissible.
“Canadian courts are fully able to administer justice in the Omar Khadr matter in a manner that complies with international law and the rule of law.” said the group.
Catherine Archibald, Clare Crummey, Andrew Harrington, Miguel Mendes, Ajmal Pashtoonyar, and Sean Richmond based their argument on a 150 page brief prepared for the Foreign Policy Practicum class of Prof. Craig Forcese.
The complete report is available here: 150-page brief.
Click here to see the team’s testimony before the House of Commons Subcommittee on International Human Rights.
Torwoli S. Dzuali
Canada puts US on Torture Watchlist
The Canadian Foreign Ministry produced a training manual that has Guantanamo Bay on its sites of torture spots.
The document goes further, and lists the U.S. as a potential site for torture, along with Iran, Syria, Afghanistan, China, Mexico, Saudi Arabia and Israel.
This revelation comes via counsel for Omar Khadr, who obtained the documents.
An American spokesperson said,
The United States does not permit, tolerate, or condone torture under any circumstances.
But the report lists techniques commonly used by the U.S. and classifies them as torture.
University of Ottawa law professor, Dr. Amir Attaran, said,
That clashes terribly with what Prime Minister Stephen Harper has said, that Mr. Khadr, who is in Guantanamo Bay and was a child at the time he was put there, is being given an ‘ appropriate judicial process’. Torture is not an appropriate judicial process.
UK Lawyers join Canadian Critique of Khadr
Law groups in the UK, including the Bar of England and Wales, Criminal Bar Association, Bar of Human Rights Committee and Commonwealth Lawyers’ Association, have joined in the critique of Canada’s handling of the Omar Khadr case.
Andrew Holroyd, president of the Law Society of England and Wales, has characterized the military commissions as “illegitimate and irreparably flawed.”
The legal communities in the U.K. sent a letter to Prime Minister Stephen Harper addressing Canada’s unique stance in the Commonwealth world,
We do not believe that Canada, a Commonwealth partner, should remain silent while the U.S. subjects its citizen to such a process. Every other ally of the United States, including the United Kingdom, France, Germany and Australia, has acted to protect their citizens detained at Guantanamo Bay.
Perspectives from the Canadian public have been equally compelling.
Critique of Canada’s lack of intervention in the Khadr case has been steadily rising since the Canadian Bar Association’s (CBA) Annual General Meeting last summer, where they issued a similar call to the Prime Minister. Chief Justice Beverley McLachlin was in attendance at the meeting.
Bernard Amyot, President of the CBA, has stated to Law is Cool,
The war on terrorism cannot be won by denying those suspected of terrorism the fundamental right to answer charges in a fair and open process.
Counsel for Khadr has likewise expressed that the solution to this problem is political, not legal in nature.
Yet, the Khadr case recently was accepted for review with the Supreme Court of Canada.
How to become a despot in 10 easy steps
Naomi Wolf, author of The End of America: Letter of Warning To A Young Patriot, has an interesting premise on how the rule of law is eroded in society. She claims there is a discernable historical pattern that would-be dictators follow. Even scarier, she claims to see many of these patterns in contemporary Western society.
Some of the signposts she cites includes the inappropriate use of tasers, a secret detention system where torture can occur, and the use of falsified documents to justify actions.
Lawyers, who are arguably the vanguards of justice in any rule of law society, could use her 10 points to monitor the actions of the executive and evaluate them by existing civil rights legislation.
She relates them in the Huffington Post:
1 Invoke a terrifying internal and external enemy
2 Create a gulag
3 Develop a thug caste
4 Set up an internal surveillance system
5 Harass citizens’ groups
6 Engage in arbitrary detention and release
7 Target key individuals
8 Control the press
9 Dissent equals treason
10 Suspend the rule of law
She makes some interesting observations in the last point:
Even as Americans were focused on Britney Spears’s meltdown and the question of who fathered Anna Nicole’s baby, the New York Times editorialised about this shift: “A disturbing recent phenomenon in Washington is that laws that strike to the heart of American democracy have been passed in the dead of night … Beyond actual insurrection, the president may now use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack or any ‘other condition’.”
Critics see this as a clear violation of the Posse Comitatus Act - which was meant to restrain the federal government from using the military for domestic law enforcement. The Democratic senator Patrick Leahy says the bill encourages a president to declare federal martial law. It also violates the very reason the founders set up our system of government as they did: having seen citizens bullied by a monarch’s soldiers, the founders were terrified of exactly this kind of concentration of militias’ power over American people in the hands of an oppressive executive or faction.
You can hear her speak on this in depth from a talk on October 11, 2007 at Kane Hall on the University of Washington campus:
[youtube]http://www.youtube.com/watch?v=RjALf12PAWc[/youtube]
Similar trends in Canada?
Although the historical legacy quoted by Wolf is markedly different in Canada, there are some similarly disturbing trends here.
There is the alleged complicity of Canadian troops in what amounts to inhumane treatment of prisoners, and others that have died through asphyxiation.
But there are domestic issues of concern as well.
Toronto city Councillor Giorgio Mammoliti recently suggested that the Canadian Forces be used to fight gang violence in his city.
“Gang members will retaliate and hurt people who talk. The gangs are at war in our wards, and innocent people are being caught in the crossfire. If the feds can justify that (designation), perhaps there could be some law that could take them off the streets.”
Professional Apathy
Many law students still appear reluctant to take on such social justice issues, possibly because there is greater concern of finding a job to pay off student debt.
The Canadian Bar Association, as an impartial, neutral body, has done a considerable amount of work in terms of advocacy.
Their recent initiatives include a number of marches in past weeks calling for restoration of the rule of law in Pakistan, led personally by CBA president Bernard Amyot.
But student jobs where the big money in law still exists, in the big law firms, still do not have enough advocacy as a component of their professional portfolios, and students are often forced to choose between addressing student loans or doing pro bono work.
Quoting Shakespeare…
Shakespeare had his own theory about how the rule of law was eroded in a society. In King Henry VI (Act IV, Scene II), he said:
The first thing we do, let’s kill all the lawyers
Debbie Vogel elaborates in the New York Times
Dick the Butcher was a follower of the rebel Jack Cade, who thought that if he disturbed law and order, he could become king. Shakespeare meant it as a compliment to attorneys and judges who instill justice in society.
American-based international firm Dickstein Shapiro Morin & Oshinsky LLP explains further,
Contrary to popular belief, the proposal was not designed to restore sanity to commercial life. Rather, it was intended to eliminate those who might stand in the way of a contemplated revolution — thus underscoring the important role that lawyers can play in society.
James Morton of the National Post claims lawyers are essential to society, and demonstrates how this principle relates to contemporary erosions of rule of law:
Washington Post writer Anne Applebaum pointed out that Russia has become a desperate, dangerous place in large part because it lacks “a working legal system.” Countries where lawyers do not operate freely, such as Zimbabwe, are countries in chaos. “The first thing we do, let’s kill all the lawyers,” declares the treacherous Dick the Butcher in Shakespeare’s Henry VI. The comment often is cited as an indictment of lawyers. But taken in context, it shows that the surest path to tyranny is to eliminate the professionals whose job it is to protect and promote freedom and justice.
Howard L. Nations of Texas even extrapolates this further to extend to his professional litigation work,
Over the centuries tyrants and demagogues have come in many forms. In today’s context, it is not the “army of rabble and a demagogue pandering to the ignorant” who cry for the demise of the lawyers, but rather modern demagogues who manipulate our governmental institutions to their own ends. Why? Because trial lawyers are the first line of defense to prevent irresponsible elements within the insurance, manufacturing, and chemical companies from dismantling the tort system, disrupting the judiciary and abrogating the common law to the detriment of the rights of individual citizens, consumers and tort victims.
This should serve as a reminder, and yet another call to the major firms, of the importance of social justice to all the professionals in our field.
Law is Cool - Podcast #6
Show Notes
(27:53 Total Running Time)
0:13 Jacob Kaufman and Omar Ha-Redeye introduce themselves
0:29 Omar raises the past CBA conference, and the issue of Omar Khadr
0:57 We hear from Muneer Ahmad, faculty at the American University Washington College of Law, and counsel for Omar Khadr
1:36 Muneer Ahmad discusses his Aug. 24, 2007 article in the Toronto Star about Omar Khadr
3:14 Muneer Ahmad discusses the new enemy combatant categorization that is being used to trump the rights and process for child soldiers
5:17 Response from the human rights community and legal academia, and the role of Canada discussed
7:48 The value of Canadian citizenship raised, with Khadr being the only NATO country not intervening on behalf of their citizens
8:24 Another Toronto Star article from Aug. 26, 2007 discussed on how foreign affairs Minister MacKay was briefed on how to avoid the Khadr issue
9:01 The importance of Omar Khadr’s case to Canadian law students raised
11:12 Muneer Ahmad directs listeners to more resources on the Amnesty International website, Cage Prisoners, and the blogosphere
12:58 Muneer Ahmad shares means and potential roles for advocacy on behalf of Omar Khadr
14:56 Bernard Amyot, President of the Canadian Bar Association, of Heinen Blaike in Montreal, graduate of McGill law
speaks on the CBA’s position on Omar Khadr
17:06 Amyot states,“The war on terrorism cannot be won by denying those suspected of terrorism the fundamental right to answer charges in a fair and open process”
17:25 Bernard Amyot speaks of Canadians’ role as champions of due process and the rule of law, how this should affect the Khadr case, and steps that have been taken that have interfered with due process and rule of law for Omar Khadr
18:45 Bernard Amyot reminds the Prime Minister that the 37,000 lawyers and law students represented by the CBA of his duty to this Canadian citizen, and encourages law students to put pressure on the Prime Minister in the same way
20:11 Omar mentions an article in the North Carolina Law Review by John Makdisi, former Dean and Professor of Law, Loyola University New Orleans School of Law, The Islamic Origins of the Common Law, 77 N.C.L. Rev. 1635
21:03 Jacob describes a June 7, 2007 article in the Economist that explains business opportunities in Islamic financing occurring in Dubai, U.A.E.
21:55 Walied Soliman of Ogilvy Renault Toronto shares a information on a presentation for the Ontario Bar Association on Islamic financing products
23:22 Walied Soliman describes the three classes of restrictions in Islamic financing
24:32 Walied Soliman explains some of the business opportunities in this sector, both locally and globally
26:03 Walied Soliman provides some examples of Islamic financing transactions his firm is engaging in
27:16 Omar signs off
CBA Advocates for Alleged Terrorist
A Turning Point after Inaction
Chief Justice Beverley McLachlin spoke to the Canadian Bar Association (CBA) in Calgary yesterday addressing the Maclean’s article controversy and the importance of pro bono work in Canada.
But the 30 second ovation came for another speaker, Lieutenant-Commander William Kuebler, who criticized Canada for its inaction in dealing with the case of Omar Khadr, a Canadian detainee at Guantanamo Bay.
The last time Kuebler saw Khadr, the latter had requested crayons and paper. Kuebler claims this is indicative of the mental state the detainee was in, and grounds for some of the harshest condemnation of his treatment.
Kuebler is a U.S. military lawyer assigned to Khadr’s defence. Canadian defense for Khadr, Dennis Edney, also claims Khadr requires medical treatment and is going blind.
Legal critics of the US administration assert:
- Khadr’s status under Article 102 of the 3rd Geneva Convention is that of a Prisoner of War (POW)
- US administration is required to release Khadr for medical treatment under the Geneva Convention Relative to the Protection of Prisoners of War, and the U.S. Army Field Manual
- Khadr has been deprived his rights to liberty, due process, freedom from torture, and freedom from arbitrary imprisonment
- The case against him relies on ex post facto offenses, or those actions not a crime at the time they were committed, contrary to the Convention on the Rights of the Child, article 40(2)(a), the Third Geneva Convention, Article 99.
- Denying Khadr a fair trial is in violation of the Rome Statute of the International Criminal Court Article 8(2)(iv), and Crimes against Humanity and War Crimes Act
Laywers for Khadr indicated that today could be a turning point in what has been relative inaction by Canadians.
Causes for Inaction
“What needs to be done now is to take stock of where we are,” said Kuebler. ” I think Canadians have given the U.S. the benefit of the doubt - the government has, and the Canadian Bar Association - but the time has come to say that enough is enough.”
Edney also related his experiences of being bullied and intimidated by the US military during his trips to Guantanamo,
I felt very vulnerable, and I continue to. I have real concerns. I want to be protected.
Law firms seeking to do pro bono work for detainees were threatened with sanctions. In addition to these strong-arm tactics, many Canadian politicians and lawyers have until now been reluctant to advocate for these types of suspects due to their controversial profile.
But the CBA insisted it had the ability and integrity to to take on these tough cases, and lobby for justice to the federal government.
Not Shying Away from Controversy
CBA president Parker MacCarthy quickly agreed that, “I think it’s time for all Canadians to be speaking out to end this horrendous lack of due process.”
MacCarthy also explained about the important role the CBA could play,
I don’t want the leave the impression that the CBA will be sitting on its hands for the next six months. I don’t think the Canadian Bar Association has ever shied away from controversy. We are not a shy, retiring organization. The CBA has a huge amount of credibility nationally and internationally.
Canadian lawyer Lorne Waldman also commented,
The Khadr case is a difficult one. But the Khadr case isn’t about an individual, it’s about more than that. It’s about a system that is fundamentally unfair.
But there are other cases within our own system that might be just as unfair as Khadr’s, requiring greater scrutiny and calls for more rigorous standards of justice.
Subversion of the Judicial Process
Waldman is no stranger to controversial cases as co-counsel for Mahar Arar, and partner at Waldman & Associates, a firm specializing in immigration law.
Paul Cavalluzzo, counsel for the Justice Dennis O’Connor’s inquiry into the Arar case, recently revealed that the RCMP failed to provide full disclosure. Greater scrutiny and failures of intelligence were also placed on the role of CSIS in the case.
“What this really amounts to is a subversion of the judicial process,” said Waldman. “Judges now who receive `ex parte’ applications, especially when they deal with national security-type cases, are going to have to wonder whether they are getting the full story.”
And the Arar case does shed light on similar cases of deportation and torture of other Canadians.
Also, a few weeks ago the terrorism charges against 18 youth arrested in Toronto June 2, 2006, were stayed in court. One of the 18 year olds commented,
…what counts is (the Crown) realized their mistake. They arrested too many people at the same time.
Isabel Teotonio of the Toronto Star explained,
At stake is the reputation of Canada’s spy service and federal police force, particularly since news of the alleged home-grown terrorism cell garnered international headlines when 14 adults and four youths were charged.
This followed previous detainment of 23 unrelated individuals in Toronto in 2003 in a swoop called Project Threadbare. The charges against all were dropped, but they were quietly deported out of Canada with no public declaration of their obvious innocence over allegations of terrorism.
All relate how their lives since have been ruined, and the deportation proceedings themselves have come under scrutiny by some for subverting due process.
[youtube]http://www.youtube.com/watch?v=RzL5W_DWk2w[/youtube]
Justice is a “basic right”
Although McLachlin correctly asserted yesterday that “The price of justice should not be so dear,” and declared that access to justice is “a basic right,” there are some among us that in practice have far less rights than others.
The legal system is too complicated and expensive for the majority of Canadians, and according to McLachlin, requires most of the middle class to take second mortgage or lose their life savings.
The RCMP itself has allegations of internal racism pending before the Human Rights Tribuna. The internal attrition rate of 6% is much higher for minorities at 17%, and there have been repeated calls of intolerance among the ranks.
When adding the complexities of discrimination, hatred, and xenophobia, even at the hands of law enforcement, military, and intelligence agencies, the quest for justice looks even more dismal.
Update
Read the Apr. 6, 2006 letter by the CBA to Stephen Harper and Peter MacKay here.
The more recent letter this Apr. 12, 2007 is available here.
Recent coverage confirms the position that there are parallels between the Khadr case and others:
Waldman told reporters on Saturday there are some parallels between the Khadr and Arar cases.
“I can’t tell you how disappointed I personally am, as a Canadian, in our government’s complete abdication of responsibility to a Canadian child who’s being detained in horrible conditions and being denied due process,” he said.
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