The aftermath of 9/11 produced many problems in many countries. Canadian police and security agencies made numerous mistakes as followers and participants in an ill-considered American-led War on Terror declared shortly after that tragedy. The evidence in two public inquiries and numerous court cases is irrefutable. Most of these cases — from the most prominent case of Maher Arar to the nearly forgotten situations of New York detainees in the weeks after 9/11 — are covered in my recently released book Detained. Several cases are still awaiting judgment and settlement. It’s time for the Canadian government to act on these remaining cases. It’s also time to acknowledge the mistakes of the past.
We continue to see resumés of the events after 9/11 that ignore responsibilities and evade blame. A recent example is a paper on a slightly different subject, in which the author touches on some post 9/11 cases and suggests that the Canadians detained abroad after 9/11 were imprisoned “by foreign governments on Islamist security grounds.” His cryptic summation ignores the real story.
Let’s set the record straight. Numerous Canadians (as well as several permanent residents of Canada who had yet to become citizens) were imprisoned abroad after 9/11 at the instigation of American agencies, mainly the CIA and FBI. The Maher Arar case was a blatant “rendition” from the United States to Syria. All of these Canadians were tortured or mistreated. In virtually every case, Canadian police or security agencies, mainly through the provision of information to American agencies, facilitated their detention but also, in some cases, did so through active participation in helping to keep Canadians detained abroad.
Even more egregious, much of the information provided to the US by Canadian agencies consisted largely of half-baked factoids and conclusions, many of which turned out to be factually inaccurate and contextually flawed. This isn’t a secret. Key cases examined by the O’Connor and Iacobucci inquiries established the nature of the liabilities against the Canadian government that became the basis of subsequent legal cases and settlements.
So let’s stop hinting that we got the right people, even if the methods were wrong. No, Canadian agencies were supposed to target Islamic extremists; in far too many cases, their purported investigations were simply erroneous.
The same paper summarized the Omar Khadr case in flagrantly misleading terms. As a partial corrective, let me offer the following quick points. Khadr pleaded guilty to numerous US offences, but only to avoid a Draconian fate in a one-sided US justice system in Guantanamo Bay. It’s now doubtful that Khadr was even involved in the death of an American soldier in the incident in which he was severely wounded. Two Supreme Court of Canada decisions on the Khadr case went against the Canadian government, the second establishing the liabilities on which his civil claim was based. The case was mediated to a conclusion to save the Canadian taxpayers the cost of an extended trial and possibly an even larger settlement, based on a decade of incarceration with the fingerprints of Canadian police and security agencies all over it.
The Harper government set the precedent for later cases with its settlement of the Maher Arar case in 2007 in mediation. But it was warned off settling other cases by the criticisms of its own supporters over the size of the settlement ($10.5 million). If this amount seems large, consider the possible costs of protracted litigation, at a time when our courts were already over-burdened. Because of the delays of the Harper government on other cases, the Trudeau government had to tidy up the post 9/11 liabilities. It concluded settlements on the Elmaati, Almalki, and Nureddin cases and on the Omar Khadr case, both involving mediation and the Harper precedent. As criticism grew, however, the Trudeau government reverted to the Harper strategy of delay, delays, and then more delays on other cases.
So where are we now in tidying up the post 9/11 mess? It looks like the government is conceding to critics who want these cases fought in court. Mediation in the Abousfian Abdelrazik case was abruptly cancelled in February 2018, and re-scheduled to go to court in late 2019. A cynical view, however, suggests that, if this case is kicked past the time of the next federal election, mediation may again be an option.
Why mediation? A major factor is saving taxpayers a lot of money on lawyers and courts. But trials also involve the public disclosure of materials that most Canadian police and security agencies don’t want anywhere in the public domain. It was no coincidence that the Elmaati, Almalki, and Nureddin cases were settled only days before a decision in the Federal Court of Canada that might have released thousands of new documents (which now will not be disclosed). It’s not that the documents are highly classified (those remain protected or redacted, to the extent the Crown can do so). It’s that they are embarrassing. They attest to the numerous ways in which Canadian agencies went wrong. They also run the risk of opening new avenues for further public examination, such as disclosing illicit techniques of surveillance, entrapment, or harassment, which Canadian agencies want kept under tight wraps.
Almost two decades after the War on Terror began, it’s time to look at the best and simplest road forward. First, acknowledge that Canadian agencies, in a time of fear and panic, made numerous errors in the difficult days after 9/11. Second, where possible, accept mediation as the best way to closure. Third, help the victims with remaining post 9/11 issues, like approaching American agencies to urge the removal of their names from no-fly lists. Then let’s move on, with the expectation that Canadian agencies have learned something from a past that shouldn’t be distorted or re-written to try to make it seem better or different than it really was.
Daniel Livermore served in the Canadian Foreign Service for more than thirty years prior to becoming a senior fellow at the Graduate School of Public and International Affairs at the University of Ottawa. His last assignment was as Director General, Security and Intelligence, in Foreign Affairs and International Trade Canada. His book, based on that period in government, Detained: Islamic Fundamentalist Extremism and the War on Terror in Canada, has recently been published by McGill-Queen’s University Press.