The fight to find out just why three men were detained and tortured in a Syrian prison cleared one roadblock on Wednesday, after a court rejected an appeal from the Canadian government.
The men, Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin, have been deadlocked in a legal battle with Ottawa for years, as they seek compensation for the time they spent in Syrian jail cells — where they were tortured and interrogated, with some involvement of Canadian agents — and answers for why they ended up there.
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Ottawa, meanwhile, is struggling to defend the identity of its intelligence agents and confidential informants who may have provided the information that led Syrian authorities to arrest the men, despite shaky evidence that they were ever involved in terrorism.
Their lawsuit, however, had gone virtually nowhere over the past decade. That is, until they finally got a break — on Monday, a Canadian judge ruled that the federal government would not have the power to shield the confidential sources it used to gather evidence on the three men.
For the three men, it could mean exposing the direct role played by the Canadian Security Intelligence Service (CSIS) and the Royal Canadian Mounted Police (RCMP) in their interrogation and torture, and proving that their detention was the result of little more than post-9/11 hysteria.
Related: Canadian Police Charge Syrian Colonel Accused of Torturing Maher Arar
But it could also spell trouble for new spy powers that allow CSIS’ extraordinary new ability to operate abroad, break foreign laws, and shield intelligence and sources from Canadian courts.
The three men were arrested in the years following the September 11 attacks. Intelligence from the Canadian Security Intelligence Service (CSIS), likely in conjunction with American intelligence agents, linked the three men together, as well as to Maher Arar — the Canadian who faced similar mistreatment at the hands of Syrian authorities.
The Canadian government apologized to Arar, and paid him $11.5 million in compensation as a recognition of CSIS’ complicity in his torture.
The government held an inquiry into the detainment of the three men and the role of the Canadian government but, despite some initial willingness, Canada never issued an apology or paid compensation.
The inquiry, led by retired Judge Frank Iacobucci, found clear similarities in the three cases.
El Maati was an ex-mujahedeen fighter who was flagged at the American border after officers found a map of Government of Canada buildings in his car. Almalki was a businessman and engineer who, for reasons that appear unclear, was billed by the FBI an “Ottawa-based procurement officer” for Osama Bin Laden. Nureddin was a dual Canadian-Iraqi citizen, who had been travelling from Iraq, back home to Toronto.
All three were arrested inside Syria, by authorities in that country who had been tipped off about the three men by American and international intelligence agencies, with information supplied by CSIS and the RCMP. El Maati was held for 26 months, between jails in Syria and Egypt; Almalki was detained in Syria for nearly two years; for Nureddin, it was just 33 days.
The evidence of their connections to al-Qaeda never led to prosecution or conviction in Canada or anywhere else. Any confessions they made in their Syrian jails were later retracted.
All three, however, were tortured, according to the Iacobucci inquiry.
The inquiry found that the actions of CSIS and the RCMP, specifically their decision to share intelligence and travel plans, led to the detention and subsequent torture of Nureddin and El Maati. The inquiry couldn’t determine whether those actions directly or indirectly led to Almalki’s mistreatment.
In El Maati’s case, CSIS even sent questions to Syrian authorities.
“In sending the questions to Syria, the Service not only failed to make inquiries about how Mr. Elmaati would be treated during subsequent interrogations but, as discussed above, also legitimized the manner of interrogation that had already taken place,” wrote Justice Iacobucci
The three men fought to obtain the information that was provided to Judge Iacobucci to help craft his report, but were refused on national security grounds. A protracted legal challenge was ultimately quashed by the Supreme Court, who defended CSIS’ ability to keep secret that information.
So the three men tried again, this time fighting to obtain the identities of the CSIS agents involved in passing-on their files to international agencies, and the confidential informants who identified the three men as al-Qaeda operatives.
CSIS did not, like other services, have legal protections for its sources — at least, not prior to last year. The previous Harper government introduced and passed bill C-44, which gave CSIS powers it had never enjoyed in the past, including the ability to operate overseas and ignore the laws of foreign countries and legal protections for its informants.
Related: An Ex-CIA Officer Speaks Out: The Italian Job
The Canadian government tried to apply those powers retroactively in this case. A federal court threw out that logic on Monday.
In doing so, the court even cracked the door open to the idea that such a power for CSIS may — as some lawyers have already contested — be unconstitutional to begin with.
Kent Roach, a law professor at the University of Toronto and a specialist in privacy and surveillance, raised the idea that the powers brought in through C-44 could face a challenge in the near future.
“I see C-44 as important, in some respects, as C-51,” Roach said at a panel discussion in early November. C-51 was the controversial anti-terror bill introduced by Harper that is supposed to be amended by the new Trudeau administration.
Concerns have been raised that, by giving all of CSIS’ informants absolute anonymity and secrecy, the spy agency will be able to operate even further outside the jurisdiction of the courts and the public eye.
The court may yet decide to withhold the identities of those agents or CSIS’ sources, if it determines the threat to national security in doing so outweighs the benefit it would have to the three men suing the government.
While the legal war is far from over, the political fight may be just beginning.
In 2009, an all-party Parliamentary committee studied the case of the three men, and called on the government of the time to apologize and compensate the three men.
It also recommended that the government “issue a clear ministerial directive against torture and the use of information obtained from torture for all departments and agencies responsible for national security.”
The government refused to implement either recommendation, as well as a host of others from the report.
Two of the Liberals who helped write that report, Rob Oliphant and Mark Hollande, were re-elected in the most recent election.
The Trudeau government, however, has not said anything on the record about the matter, or about whether it intends on reforming the law around CSIS’ source protections, or information-sharing with foreign agencies.
Follow Justin Ling on Twitter: @justin_ling
