In stark contrast to last week's U.S. court decision
upholding the Military
Commissions Act, Canada's court has unanimously struck down a law that would
allow the Canadian government to use secret evidence to detain foreign-born
terror suspects indefinitely without charges or open court hearings.
"The overarching principle of fundamental justice that applies here is this:
before the state can detain people for significant periods of time, it must
accord them a fair judicial process," wrote
Chief Justice Beverley
McLachlin in last Friday's landmark ruling.
And in a further blow to hard-line lawmakers, the Canadian Parliament voted
last night not to renew provisions of the law granting the government the power
to detain and interrogate terrorism suspects without court hearings.
Commenting on the court's decision, Mary Shaw of Amnesty
International USA told IPS, "These developments in Canada illustrate that
our northern neighbors are rejecting knee-jerk reactions to the threat of terrorism
in favor of a more reasonable approach that protects the Canadian people while
also upholding human rights and international legal standards."
"I believe that these moves will provide proof over the short and long terms
that security and rights do not have to be mutually exclusive."
Earlier the same week, a U.S. federal appeals court ruled 2-1 that detainees
in U.S. custody at Guantánamo Bay, Cuba have no right to challenge their
imprisonment in federal courts. The decision upheld the core of the Military
Commissions Act (MCA), which was hurriedly passed in a close vote last year,
after President George W. Bush rallied the support of the Republican majority
in Congress. The court dismissed 13 cases brought on behalf of 63 Guantánamo
The MCA stripped federal civilian courts of jurisdiction to hear habeas corpus
petitions, giving Pres. Bush the right to indefinitely hold detainees outside
the U.S. without charges. The ruling affects some 400 prisoners still held at
Guantánamo Bay, but could also establish a precedent affecting prisoner
held by the U.S. in Afghanistan and in CIA "secret prisons" in other countries.
The case is expected to be appealed in the next two weeks to the U.S. Supreme
Court, which twice has ruled that detainees may not be held indefinitely without
In Canada, six men are now under threat of deportation without an open hearing
under the federal Anti-Terrorism
Act, passed when the Liberal Party was in power.
However, Tuesday night, Liberals brought together an opposition coalition that
voted 159-124 to defeat a Conservative minority government motion to renew the
government's power to detain and interrogate terrorism suspects under the Anti-Terrorism
The Canadian court decision has been viewed as emblematic of the growing divide
between U.S. and Canadian tactics in the "global war on terror." Late last year,
a two-year judicial inquiry castigated the Royal Canadian Mounted Police (RCMP)
for falsely accusing a Syrian-born Canadian citizen, Maher
Arar, of being a terrorist.
The U.S. "rendered" Arar to Syria in 2002. The Canadian inquiry found he was
tortured during his 10 months in a Syrian jail. The Canadian government paid
Arar 9.75 million dollars in compensation and delivered a formal apology. The
commissioner of the RCMP resigned because of the incident.
In contrast, U.S. Secretary Of State Condoleezza Rice refused to discuss the
Arar affair during a press conference following her meeting last week with the
Canadian minister of foreign affairs in Ottawa. She told reporters that, despite
Washington's excellent relations with its northern neighbor, "sometimes we have
to agree to disagree." The U.S. State Department, the Defense Department, and
the Central Intelligence Agency have consistently refused to comment on the
Regarding Rice's silence, Shaw said that, "The secretary's refusal to comment
on the case of Maher Arer is an implicit defense of the Bush administration's
use of extraordinary rendition, and its policy of no trials, no explanation,
and no accountability. Arar's story is just one such example from the Bush administration's
careless and desperate 'war on terror', in which officials systematically arrest
individuals of Arab descent and then circumvent legalities by sending them away.
Bush's 'war on terror' could perhaps be better described as a war on human rights."
Canada still retains its "security
certificate system", part of a 1978 immigration law that allows the government
to detain people indefinitely if the minister of public safety and the minister
of immigration deem them a threat to national security. Once signed, the certificates
are subject to a judicial review. It is within the judge's discretion to keep
The certificate system has been used 27 times since its passage, largely before
the terrorist attacks on the U.S. on Sep. 11, 2001, and mostly to deport people
suspected of being foreign spies.
Six men are currently in custody or on parole, including the three who brought
the case decided by Canada's high court last week. According to Canadian authorities,
five of them have ties to al-Qaeda. A sixth man, arrested in 1995, was granted
bail in 1998. He is accused of being a fundraiser for Sri Lanka's Tamil
The three men who brought the current case were likely to remain in custody
since the Canadian high court issued a one-year suspension of its decision to
give Parliament time to enact a new law reflecting court findings. However,
with Parliament's decision not to renew major provisions of the law, their future
status is unclear.
The U.S. appeals court's 2-1 decision found that overruling the MCA would "defy
the will of congress," and asserted that habeas corpus does not apply to foreigners
who are not in the U.S. It effectively ruled that the U.S. naval base at Guantanamo
Bay is a property leased by the U.S. from Cuba, and that Cuba has sovereignty
In her dissent, Judge Judith W. Rogers wrote that habeas corpus may indeed
apply to foreign nationals outside the US and that the lawmakers' action had
"exceeded the powers of Congress." The U.S. Constitution stipulates that habeas
may be suspended only "when in cases of rebellion or invasion the public safety
may require it." This is likely to be at the heart of the appeal to the Supreme
The U.S. Justice Department expressed approval of the ruling. It believes that
foreign detainees enjoy no constitutional rights when they are detained in other
The appeals court's decision came as congress adjourned for the President's
Day week-long recess, but congressional Democrats – now a majority in both houses
– have already introduced legislation, co-sponsored by a powerful Republican,
to amend the Military Commissions Act and restore habeas rights for detainees.
Senator Patrick J. Leahy, a Vermont
Democrat who is chairman of the Senate
Judiciary Committee, and that committee's senior Republican, Senator Arlen
Specter of Pennsylvania, have introduced a bill that would restore habeas
Another bill has been introduced by Senator Christopher
J. Dodd of Connecticut, who is a candidate for the Democratic presidential
(Inter Press Service)