Slamming secrecy: there's that old phrase that 'Justice should not only be done, but it should be seen to be done." So, civil libertarians always get upset when legal business is conducted behind closed doors.

The recent matter of a secret trial into bribery allegations involving Ottawa's purchase of helicopters from a German company called Eurocopter put the issue of secret court hearings into focus. The secret proceed-rags included a sealing order and publication ban on material used by the RCMP in 1999 to request search warrants it used to raid Eurocopter's Canadian offices in Fort Erie, Ontario. Eurocopter was charged with fraud in 2002. But, in November 2003 a Superior Court judge lifted an order concealing details of the secret hearings that took place in Toronto over the previous three years. The thousands of pages of documents, letters, and transcripts outline a vast international investigation. Its purpose was to prove that Eurocopter paid more than $1 million in commissions to help land a $26.8 million deal to supply 12 Canadian Coast Guard helicopters. While such commissions are not illegal in many countries, in Canada they are seen as a sign of possible corruption. The court documents revealed a power struggle within Eurocopter itself between those favouring commission fees and those who saw the legal risks as greatly outweighing any possible advantage.

Commenting on the case, Toronto lawyer Clayton Ruby said democracy grinds to a halt in a world of secret trials. He added that secret hearings, which typically involve police requests for search warrants, wiretaps, and other investigative tools, go un challenged because the other side is rarely represented in court.

"The fact is that it is appalling that we're doing this so much. There are rare cases when you want to keep things secret, but they are rare," Mr. Ruby said.

Edward Greenspon, editor-in-chief of the Globe and Mail, which along with the CBC asked for information on the case, agrees that publication bans and closed courtrooms may be justified in rare instances. Then, he adds, "but we don't believe a free press and informed public are served by proceedings about which the public has no access and virtually no information. Open courts are part and parcel of open societies."

The Eurocopter case grabbed a lot of attention, but there are many others in which publications bans are issues. Vancouver lawyer Roger McConchie keeps an eye on this and he says the use of publication bans is increasing. He says there's been an "astonishing" rise in the number of judicial orders that suppress evidence, testimony, or entire court proceedings.

Associate law professor Lorne Sossin also finds the idea of a secret trial "odious ... and fundamentally at odds with the rule of law and the foundations of a vibrant democracy." But, he suggests there are instances when limits on the public's right to know might better serve justice too: "We value truth in court, but we allow information from solicitor-client privilege to be kept secret," he writes in the Globe and Mail. "We conceal the names of young offenders and we don't release offensive evidence. On the other hand, a person ordered deported from this country has the right to know the evidence against him even if that evidence is considered classified for security reasons."

It's all a question balancing the rights of those involved in a case with the concept of press freedom and open courts.

Individual rights have certainly been trampled since the tragic terrorist attacks of 11 September 2001, particularly for Muslim men, or men of Middle Eastern or Arabic background. The group Homes not Bombs tries to provide support for the families of Canada's "disappeared." It says the Canadian Security Intelligence Service (CSIS), under its Security Certificate, has targeted Arabs and Muslims, throwing some behind bars, without charges or bail, and threatening them with deportation to a country where they face torture or execution. The organization says neither it nor its lawyers are al lowed to see the "evidence" against them under the blanket claim of "national security," adding that there is no appeal of the Federal Court ruling delivered by a CSIS-approved judge.

Constitutional lawyer Rocco Galati says his many Arab clients are targets of suspicion and are being dealt with unjustly because of Canada's anti-terrorism law. He says the anti-terrorism law gives extraordinary, and he believes unnecessary, powers to police.

"The rule of law, the respect for human rights, human dignity, the rights against arbitrary detention, the rights to know what you're going to be charged with, if your liberty is going to be taken away, the right to bail while you're accused ... all those rights are gone (under the antiterrorism law)," Mr. Galati says.

Maher Arar knows all about being unjustly detained: his is a disturbing case of being wrongfully deported to Syria and allegedly tortured after being fingered by Canadian authorities as a terrorism suspect. He was never charged, let alone convicted, of any offence. The 33-year-old software engineer, a Syrian-born

Canadian citizen, was arrested in a New York airport by American immigration officers in September 2002. He was held as a terrorist suspect for more than a week, and then in the middle of the night deported to Syria. "The Syrians did the dirty work," Mr. Arar says. "The Americans kidnapped me and deprived me of my basic rights."

American human-rights campaigners and some legal observers say U.S. security officials are in a state of panic over the war on terror. They have stripped people of their rights, seizing suspected terrorists under a U.S. government practice known as "rendition to torture." This practice involves sending suspects apprehended in the United States to third countries where they can be interrogated using extreme tactics that are prohibited in the U.S.

According to The Washington Post, the U.S. started using the practice after the terrorist attacks of 11 September 2001. The Post first published an article on the practice in December 2002, suggesting that about 100 suspected terrorists had by then been sent to countries such as Syria, Afghanistan, Pakistan, Egypt, Jordan, and Morocco for interrogation using "stress and duress" methods. The article quoted U.S. officials as confirming that "thousands" more had been arrested and were being held "with U.S. assistance" in "countries known for brutal treatment of prisoners."

As Mr. Arar said in a statement after his release in October 2003, "I am not a terrorist. I am not a member of al-Qaeda and I do not know anyone who belongs to this group ... The past year has been a nightmare. I know that the only way I ever be able to move on in my life and have a future is if I can find out why this happened to me."

It appears that Mr. Arar's nightmare was the result of some distant personal links: according to one newspaper report, he was acquainted with a man who may have known the brother of a terrorist suspect wanted by the Federal Bureau of Investigation.

Kerry Pither, part of an Ottawa-based support committee for Mr. Arar, says that much dubious intelligence appears to have been swapped among Syria, Canada, and the United States: "The suspicion (of Mr. Arar) could result from a chain of coerced confessions. Why was he a suspect? Is it because somebody else being tortured in Syria mentioned his name?"

Foreign Minister Bill Graham learned in December 2003 that both the RCMP and the Canadian Security Intelligence Service (CSIS) fingered Mr. Arar to U.S. anti-terrorist agencies. But, he also said there was no Canadian involvement in the American decision to deport Mr. Arar secretly to Syria.

After months of stonewalling the federal government has set up a public inquiry into this case.

Canadian Muayyed Nureddin needs some answers too. Mr. Nureddin, who is of Iraqi origin, was arrested in December 2003 as he was returning to Canada from a two-month visit to his family in Kirkuk. He was held in a Syrian military prison for a month and wants to know whether the Canadian Security Intelligence Service was responsible for his detention and torture.

Alex Neve, secretary-general of Amnesty International Canada, said, "What Mr. Nureddin's case tells us is that what happened to Maher Arar was not an isolated and exceptional case." Mr. Neve says the government should widen the terms of the public inquiry into the case of Mr. Arar to cover Mr. Nureddin's case as well, and examine policy changes that would ensure security officials do not act in ways that could lead to human-rights violations outside Canada.

SUGGESTED ACTIVITIES:

1. The Canadian Security Intelligence Service has been described as a scandal-ridden agency that has, according to journalist Andrew Mitrovica in his 2003 book, Covert Entry: Spies, Lies and Crimes Inside Canada's Secret Service, (ISBN:038566-0294) "routinely broken the law, treating the rights and liberties of Canadians as no more than a nuisance ... (is) riddled by waste, extravagance, laziness, nepotism, incompetence, corruption and law-breaking." Research and write a report on the agency and how it might be improved.

2. According to Homes not Bombs, as of February 2004, "five Muslim men have been held a collective total of 124 months in Canadian prisons, much of it in solitary confinement, without charge, without bail, on secret 'evidence' which neither they nor their lawyers can see ... None has ever been convicted of any criminal offence anywhere in the world." Find out who these men are and follow up on their cases. 3. Open a file on Maher Arar and follow up on the finding of the inquiry into his wrongful deportation to Syria.

FACT FILE

The Canadian Security Intelligence Service was formed largely because of the civil-liberties abuses of the previous RCMP Security Service.

FACT FILE

In January 2004, the government announced plans to plug a hole in federal legislation that it admits allows the RCMP to conduct national-security investigations without independent review.

RIGHTS GROUPS EXCLUDED

According to Human Rights Watch (HRW), between January 2002 and January 2004, the U.S. government has sent more than 700 people, picked up from around the world, to a detention camp at its naval base at Guantanamo Bay, Cuba. The organization says "Currently some 660 are in detention, including an undisclosed number of children. As the detention camp begins its third year, the public still does not know who the detainees are, what they have allegedly done, and whether and when they will be charged with crimes or released. There have been no hearings to determine the legal status of detainees and no judicial review--in short, no legal process at all."

While the administration of U.S. President George W. Bush says all the detainees at Guantanamo Bay are enemy combatants in the war against terrorism, HRW says there are three children between the ages of 13 and 15 who have been held for about a year and an undisclosed number of children aged 16 and 17 and possibly a number of civilians.

In February 2004 the Pentagon refused to allow three leading human rights groups--Amnesty International, Human Rights First (formerly the Lawyers Committee for Human Rights), and Human Rights Watch--to attend and observe military commission trials of detainees at Guantanamo Bay. The reason for excluding the groups was "limited courtroom seating and other logistical issues," but critics saw the move as an effort to control coverage of these internationally significant trials. The human rights groups pointed out that the government should not be allowed to exclude a whole category of observers with internationally recognized expertise in trial monitoring.

"These space constraints are being used as a pretext to keep out groups who have been critical of the commissions," says Elisa Massimino, Washington Director of Human Rights First.

FACT FILE

In December 2003, Rocco Galati, Toronto lawyer of Abdurahman Khadr, a detainee from Guantanamo Bay, Cuba, announced withdrawal from this case because he had received death threats.

Websites

Human Rights Watch-http://www.hrw.org/

Homes Not Bombs--http://www.homesnotbombs.ca/