Canada dot com : Former detainees launch legal gambit to pry open torture inquiry

Former detainees launch legal gambit to pry open torture inquiry

Andrew Duffy, CanWest News Service via Ottawa Citizen | October 18, 2007

OTTAWA -- A federal inquiry into the overseas detention and alleged torture of three Arab-Canadian men has collected more than 26,000 documents -- none of which have been made public.

A new legal application to make more of the inquiry's work public reveals that it now holds considerably more documents than the Arar commission.

But unlike the Arar commission, which reviewed 21,500 documents for national security concerns and then released heavily censored versions, the inquiry headed by retired Supreme Court justice Frank Iacobucci has not made public a single page.

"It is obviously troubling," said Jasminka Kalajdzic, lawyer for Ottawa engineer Abdullah Almalki. "Our interpretation of the rules of the inquiry speak to a need for ensuring information that is essential to national security be kept private, but it cannot be that 26,000 documents are all subject to a national security claim."

The Iacobucci inquiry is examining the role of Canadian police, spies and diplomats in the detention, interrogation and alleged mistreatment of Almalki, Ahmad El Maati and Muayyed Nureddin.

The men allege that, much like Maher Arar, they were tortured in Syria for answers to questions that could only have originated from Canadian security agencies.

In Almalki's case it has already been established by the Arar commission that the RCMP passed questions for him to Syrian Military Intelligence through Canadian diplomats. Last week, the men appealed to the prime minister to open the inquiry to public scrutiny, but Stephen Harper said Iacobucci already has a mandate broad enough to do that.

Lawyers for the men and other intervenors have now launched a legal gambit to pry open the inquiry.

They have have filed an application that seeks the names of all witnesses interviewed, the production of thousands of documents and an order for public hearings on issues that do not involve national security.

Specifically, the men want public hearings on the conduct of embassy officials; the government's policy on torture; its information sharing practices with other countries; and any requests by Canadian officials for information from the three men while in detention overseas.

In a joint legal submission, lawyers for the three men argue the commission has reached a "critical juncture."

"The fact-finding work of the commission appears to be nearing its conclusion," the lawyers write, "and the applicants have yet to meaningfully participate in or contribute to the work of this commission."

The secrecy that surrounds the commission, they contend, threatens to destroy public confidence in its work: "Secrecy fosters a belief that there is a cover-up."

Commission counsel John Laskin, however, said the application seeks disclosure levels that exceed those of the Arar inquiry. The names of all witnesses who testified in-camera were never released in that inquiry, he said, nor were all documents disclosed.

The Iacobucci inquiry has so far interviewed about 40 witnesses in-camera.

Laskin said Wednesday no documents have been released because the commissioner is determined to avoid the time-consuming process of reviewing them for national security concerns. A "large proportion" of the documents, he said, fall into that category.

Iacobucci was appointed by the federal government to lead an "internal inquiry" into the three cases in response to a recommendation by the Arar commission. He ruled in late May that the inquiry will be held largely in secret in keeping with his mandate.

Legal documents filed with the Iacobucci inquiry also show concerns have been raised about the thoroughness of the commission's fact-finding. The inquiry initially did not include former RCMP commissioner Giuliano Zaccardelli and Insp. Michel Cabana on its interview list. Cabana was the leader of Project A-O Canada, an RCMP special investigative unit created one month after the Sept. 11, 2001, terrorist attacks. Almalki was the principal subject of the A-O Canada investigation.

Laskin said on Wednesday that both Zaccardelli and Cabana will be interviewed - in part, because of the concerns expressed in off-the-record discussions and correspondence.