"I'm not suggesting security issues should not attract special safeguards. But this is a clear-cut human rights violation," said Sharry Aiken, an immigration law expert at Queen's University in Kingston, Ontario. In October, she presented the government with a letter signed by 60 law professors who oppose the use of security certificates.
"None of the individuals subjected to security certificates are alleged to have been kingpins. They have been small players who have been involved, at most, in some kind of fundraising activity or support role," Aiken said.
Mona el-Fouli is seeking the release of her husband, who has been jailed in Toronto without being charged.
(Colin McConnell - Toronto Star)
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Matthew Behrens, coordinator of the Campaign to Stop Secret Trials in Canada, contended that the authorities should not be trusted to present fair evidence. The Canadian intelligence service, he said, "has a long record of dishonesty, of getting the facts wrong, of withholding information, of substituting feelings for facts.
"It's all guilt by association," he said. "You are literally in a Kafkaesque situation in which they say, 'We believe you are a threat, but we won't tell you why you are a threat.' "
The dilemma is compounded because the five Muslim men held on security certificates argued that they would be killed or tortured if they were deported to their home countries.
Canada is a signatory of an international convention prohibiting deportations to a country where the detainee would likely face torture. Canada's Supreme Court has said deportation would be permissible in "extraordinary circumstances." For now, the accused men linger in Canada's jails, with no end to their incarceration in sight.
"Indefinite incarceration is problematic. But the release of the men may be more than problematic. It may be terrifying," said Martin Rudner, head of the Canadian Center of Intelligence and Security Studies at Carleton University in Ottawa.
In the United States, there are no legal provisions for indefinite incarcerations and secret trials, said Jeffrey Fogel of the Center for Constitutional Rights in New York. However, two American citizens have been designated "enemy combatants" and are being held in military prisons.
The Patriot Act allows the U.S. attorney general to hold illegal immigrants without charges, but only for seven days, Fogel said. Because of those restrictions, the Bush administration opted to transfer prisoners taken in Afghanistan to Guantanamo Bay, Cuba. About 550 are still being held there, largely without legal safeguards.
Fogel said the secret proceedings and indefinite confinement in Canada "start to rise to the level at which the world has criticized us over Guantanamo."
"You can't use the ordinary machinery of law," responded Bissett, the former immigration director. "To wait for an offense to be committed and then use due process of law is fine for dealing with criminals. It's not fine for terrorists. You can't wait for them to blow up several thousand people and then charge them."
