CAIR-CAN Issues Action Alert About Unfair Extradition Proceedings

The Council on American-Islamic Relations Canada (CAIR-CAN) issued an action alert today urging all Canadians to contact the Minister of Justice, Mr. Robert Nicholson, and demand that he stop the use of unsourced intelligence in Dr. Diab's case.

“French authorities, by their own admission, are relying upon the use of unsourced “secret” intelligence to back-up their extradition request. Unsourced intelligence refers to information, the origin of which is unverified. The reliability and veracity of unsourced intelligence is virtually untestable. There is the added concern that unsourced intelligence may be intelligence derived from torture...

Canada should neither be accepting unsourced intelligence in its courts, nor should it be permitting the Department of Justice to submit unsourced intelligence to our courts...

CAIR-CAN is urging constituents and supporters to speak out against the unjust extradition proceedings against Dr. Diab.”

CAUT Opposes Secret Intelligence from Unidentified Sources in Extradition Case of Hassan Diab

The Canadian Association of University Teachers (CAUT) issued a statement today opposing the use of secret “intelligence” from unidentified sources in Hassan's case.

"The Canadian Association of University Teachers opposes the use of secret “intelligence” information from unidentified sources – especially information that may be derived from torture – in the Canadian courts, as is happening in the extradition case of Canadian citizen and university professor Dr. Hassan Diab...

Dr. Diab has no criminal record. He has taught at both the University of Ottawa and Carleton University. CAUT has closely monitored Dr. Diab’s case since his unjust termination by Carleton University soon after the allegations became public. We’ve since been gravely concerned by the nature of the information being presented on behalf of France to try to justify its request...

CAUT calls on the Canadian government and the courts to stop the use of unsourced information in Dr. Diab’s case and others like his. To do otherwise could have far-reaching implications, undermining the test for extradition and resulting in unfair process and injustices for others suspected of crimes by foreign states."

rabble.ca: Ottawa Professor Fights Extradition for 1980 Bomb Attack in France

Read the article by Matthew Behrens published on rabble.ca today.

"The Ontario Superior Court judge presiding over the extradition on Nov. 8 will hear about a litany of problems, including the fact that Diab's finger and palm prints do not match those offered by the French...

In addition, key pieces of evidence appear to have been tampered with, possibly amounting to fraud, and information that would exonerate Diab has been buried in the record, with lawyers representing the Canadian government having argued the French are under no obligation to present information in their hands that would cast a positive light on Dr. Diab...

With his life in limbo, Diab will enter the Ottawa Courthouse Nov. 8 hoping the rule of law prevails, and that, even with the low extradition standards, the sheer weight of the facts will tilt the case in his favour. But he and supporters are not resting easy. They are asking that individuals and groups across Canada add their name to a statement calling for his extradition to be stopped and for the process to be brought in line with Canada's human rights obligations. That statement, and further background can be found here."

Please Take a Stand on Hassan Diab's Case‏

Dear all,

We urge you to take a firm public stand against abusive extradition cases by (1) signing the statement below, and (2) (if you live in Ottawa) attending Dr. Hassan Diab's extradition hearing, which is scheduled to commence on November 8, 2010 (details below).

On October 15, 2010, Dr. Diab’s lawyer filed important documents with the Court showing how French investigators have manipulated unsourced secret intelligence and other materials to falsely implicate Dr. Diab. The documents also demonstrate how evidence exonerating Dr. Diab has been hidden from the Court. These abusive actions by French investigators constitute an attack on principles of fundamental justice and demonstrate how Canada’s extradition law has so far failed to prevent foreign governments from exercising persecution by proxy and failed to honor Canada's international human rights obligations.

We believe this is a matter of importance to all of us and we hope that you will help uphold principles of fundamental justice by signing the statement below and attending the hearing. Please share this message with your friends and colleagues.

Sign Statement

Please consider endorsing the statement below. To endorse, simply email us at diabsupport@gmail.com and let us know that you endorse the statement.

Court Watch

Dr. Diab's extradition hearing will commence on Monday, November 8, 2010, and is scheduled to continue until December 3. The hearing will take place at the Ontario Superior Court, 161 Elgin Street, Ottawa.

We invite you to come to the hearing and show your support. Court begins at 10:00 am and ends at 5:00 pm daily with a break for lunch. Attendees can freely (but quietly) enter and leave court whenever they wish.

Please email us at diabsupport@gmail.com and let us know which days/times you plan to attend. We will then be able to notify you if the schedule changes unexpectedly.

Statement:
Stop Hassan Diab’s Forced Removal from Canada


Hassan Diab is a much loved and respected sociology professor who is wrongly accused by French authorities of involvement in an attack near a Paris synagogue in 1980. Hassan Diab condemns that attack and is strongly opposed to ethnically and religiously motivated discrimination and violence.

Hassan Diab is fighting his forced removal from Canada (via “extradition”) to face fabricated charges based on secret intelligence, the sources of which are admittedly unknown even to French authorities. There is serious concern that this intelligence may be the product of torture. Dr. Diab’s case represents the first time that a foreign government has sought the extradition of a Canadian citizen based on secret intelligence that cannot be challenged in a court of law.

The contemporary climate of ethnic, racial, and religious profiling means that Dr. Diab, like many other Muslim and Middle-Eastern Canadians, is becoming yet one more victim in the global “War on Terror”.

Since November 2008, Dr. Diab has suffered through over four and a half months of detention, followed by the loss of his university employment and humiliating and oppressive bail conditions that include an exorbitantly expensive GPS monitoring device.

Canada’s extradition law has long been criticized for failing to honor Canada’s international human rights obligations and to prevent foreign governments from exercising persecution by proxy.

The “evidence” presented by France in an effort to tear Dr. Diab from his friends and family is based on an alarming pattern of serious contradictions, prejudicial opinions, significant misrepresentations and omissions, and withholding or burying of exonerating evidence. Key pieces of evidence appear to have been tampered with, to the point of fraud. To cite but a small handful of many examples:

• Evidence proving Dr. Diab’s innocence has either been buried or perversely transformed into incriminating conclusions.


• French investigators hid from the court in Canada the fact that Dr. Diab’s finger and palm prints do not match those of the alleged suspect.


• Handwriting analysis described by the Canadian Crown prosecutor as akin to a “smoking gun” was withdrawn after internationally renowned experts pronounced it to be biased and of “appalling” reliability. It was replaced by a ‘new’ handwriting analysis which these same experts found to be at least as appalling and biased as the previously withdrawn one.


• French investigators have refused to correct any misrepresentations, contradictions, and inaccuracies in their case despite having had ample time to do so.


• Government of Canada attorneys have argued that French investigators are under NO obligation to present information in their possession that would cast a positive light on Dr. Diab.

It shocks our conscience to see deprivation of liberty based on such scurrilous accusations. We are horrified that the standards of Canada’s Extradition Act are so low that this pretence of a case against Dr. Diab has been allowed to drag on for so long.

Given that such an unjust process has been made to appear "acceptable" - in part because of Dr. Diab's ethnic and religious background - we, the undersigned, are compelled to speak up and publicly call for an end to this clear affront to liberty.

We are opposed to the unjust and oppressive extradition proceedings against Dr. Diab.

We thus call upon the Canadian Minister of Justice to:

1. Exercise the power he has, under extradition law, to immediately halt extradition proceedings against Dr. Diab; and to act on his legal obligation to refuse to make unjust and oppressive extradition orders;


2. Protect individuals in Canada from unjust and abusive extradition practices; stop the use of secret intelligence of unknown, untestable reliability in extradition hearings; and refuse extraditions to requesting states that use secret, unsourced intelligence or intelligence that may have been derived from torture as trial evidence;


3. Reform extradition law to take into account Canada’s human rights obligations, including the presumption of innocence, the right to a fair trial, the right to disclosure of evidence, and all other due process rights.

To sign the statement, inquire about other ways to support Dr. Diab, or obtain more information about the legal factum detailing the manipulation of intelligence and twisting of evidence, please send an email to diabsupport@gmail.com.

Letter to The Globe and Mail

The following letter was written to Globe and Mail columnist Lysiane Gagnon in response to an inaccurate and misleading article published on October 10, 2010. To date, neither Ms. Gagnon nor editors for the Globe and Mail have responded.


Ms. Gagnon,

Your column in The Globe and Mail, titled "Still waiting, 30 years on" (October 10, 2010), demonstrates a troubling lack of knowledge about crucial factors at work in the extradition case of Dr. Hassan Diab.

To begin with, you note the extradition hearing has experienced “a number of delays” and attribute these, in part, to “disagreement over handwriting evidence submitted by the French investigators”. In fact, the fiasco surrounding France's handwriting evidence has been the single biggest factor accounting for the protracted nature of extradition proceedings against Dr. Diab.

In December 2009, the defence submitted reports from four of the world’s foremost handwriting experts showing the manifest unreliability of France’s handwriting evidence. France waited more than five months—from December 2009 to May 2010—to submit a new expert opinion that seeks to amend the shoddy work of their previous analysts. This new submission was so poorly timed that the court was forced to push back the extradition hearing date by another five months—from June to November 2010. Thus, the lethargic response of French investigators to defence evidence has caused a delay of nearly one year.

This episode reveals that France would have been quite content to achieve extradition based on entirely flawed evidence—evidence that Crown prosecutors have likened to a “smoking gun”. Instead, French authorities were forced to withdraw their shoddy evidence and regroup. Not only is this kind of information crucial to a clear understanding of why efforts to extradite Dr. Diab have met with delays, but it also raises real doubts about the merits of France’s case. By describing this affair as a mere “disagreement” between the prosecution and defence, you provide cover for French investigators and prevent Globe and Mail readers from questioning your assertion that “Mr. Diab should be extradited as soon as possible.”

But without a doubt, the weakest part of your article is your declaration that, “There’s no reason for Canada to show special leniency – there’s no risk of him being mistreated or submitted to an unfair trial, since France’s legal system offers all the guarantees of a democratic country.” Nowhere do you mention the most controversial aspect of Dr. Diab’s case: French reliance upon secret, unsourced intelligence as key evidence to support the extradition request. Acknowledging this fact would certainly complicate claims about the fairness of the French legal system, since secret and unsourced intelligence is inherently unreliable as courtroom evidence.

Two recent reports by Human Rights Watch criticize France’s use of intelligence as evidence and document instances in which evidence derived from torture has been used by the French counterterrorism judiciary to prosecute terrorism suspects (“Preempting Justice: Counterterrorism Laws and Procedures in France”, July 2008; “No Questions Asked: Intelligence Cooperation with Countries that Torture”, June 2010).

Several civil liberties organizations, including the national Canadian Civil Liberties Association, the British Columbia Civil Liberties Association, and the Civil Liberties Association of the National Capital Region, have voiced grave concerns about the prospect that France’s “key evidence” is secret intelligence that may be the product of torture.

Your article concludes by saying that “It’s a matter of justice for the victims of the attack on rue Copernic that there be at least an honest attempt to identify the perpetrators of this murderous anti-Semitic act.” Yes, but prosecution founded on unsourced secret intelligence and shoddy handwriting analysis is a very far cry from an “honest attempt” to get at the truth.

Frankly, you do your readers a great disservice by omitting these important facts from your article.

Sincerely,

Donald J. Pratt
Hassan Diab Support Committee
diabsupport@gmail.com

Keep Evidence Derived From Torture Out of Canadian Courts

The British Columbia Civil Liberties Association (BCCLA) recently issued a press release about Hassan's case.

"The only effective way to police those in authority from engaging in [torture] or seeking to benefit from it is to prohibit use of evidence derived from it. Absent assurances from France that they have and will respect this rule, Canada should not proceed with an extradition hearing at all."

Also, Mr. Eric Holmes, the President of the British Columbia Civil Liberties Association, wrote a letter to the Canadian Minister of Justice regarding Hassan's case.

"Canada cannot rely on evidence derived from torture under any circumstances. We urge you to stop the use of unsourced intelligence in Mr. Diab’s case, and in all other cases like his. The prohibition against torture requires that all incentive to commit torture be eliminated. Keeping torture evidence out of Canadian courts is crucial in upholding our commitment to this universal standard."

Justice Misplaced is Still Justice Delayed

Closure to the Copernic Tragedy Cannot Come at the Expense of an Innocent Man

In an opinion piece that appeared in The Jerusalem Post on October 1, 2010, Shimon Samuels of the Simon Wiesenthal Center remembers the tragedy of the 1980 Copernic attack and situates it within the wider context of anti-Semitism.

Mr. Samuels notes that efforts to extradite the suspect "have been met with delays". He goes on to assert that, "Closure can only come by Canada's extradition of Hassan Diab to face a French tribunal."

The extradition case of Dr. Hassan Diab has received scant press coverage outside of Canada, so readers may not be aware of developments in the nearly two years since Dr. Diab’s arrest. Mr. Samuels refers to "delays" but offers no explanation for why they have occurred. This may leave readers with the false impression that Canada's extradition process is somehow at fault, or perhaps that the defence has sought to drag out the legal process.

Nowhere is it suggested that the reliance of French investigators on secret, unsourced intelligence—inherently unreliable as courtroom evidence—may have significantly impeded the judicial process. Nor does the writer inform readers about the fiasco surrounding France's handwriting evidence, which the defence has shown to be so flawed that French authorities were compelled to withdraw it.

France waited more than five months—from December 2009 to May 2010—to submit a new expert report that supposedly amends the embarrassingly shoddy work of their previous analysts. This new submission was so poorly timed that the court was forced to push back the extradition hearing date by another five months—from June to November 2010. Thus, the slow response of French investigators to defence evidence has caused a delay of nearly one year.

Not only are these facts crucial to a clear understanding of why efforts to extradite Dr. Diab “have been met with delays”, but they also raise significant doubts about the merits of France’s case.

Mr. Samuels’ also unwittingly highlights how French theories about the case change like a chameleon each time reality does not fit the “facts”. In particular, Mr. Samuels repeats the erroneous “fact” that Hassan is Palestinian. French authorities discarded their carefully nurtured theory that the bomber was Palestinian once they learned that Hassan is not Palestinian, and news reports ceased to refer to Hassan as Palestinian from late 2008 onwards. Yet Mr. Samuels continues to rely on this long-discredited piece of information. This is a particularly noteworthy error, since it goes straight to the heart of France’s case, which is about establishing identity.

Justice delayed is indeed justice denied. But so is handing an innocent man over to foreign authorities merely on their say-so. Extradition is not a rubber-stamp process. According to the extradition treaty, France’s evidence must meet the prima facie standard of admissibility for prosecution in a Canadian court. By failing to provide evidence worthy of the name, the French authorities have committed themselves to an extradition process that respects neither the memory of the Rue Copernic victims nor the fundamental principles of justice that are supposed to protect citizens from potentially grave miscarriages of justice.

Closure cannot be truly achieved by prosecuting an innocent man.


Hassan Diab Support Committee
diabsupport@gmail.com
http://www.justiceforhassandiab.org

L’Association Canadienne des Libertés Civiles Suit la Procédure d’Extradition du Hassan

"L’ACLC s’inquiète que les procedures contre le Dr. Diab s’appuient sur des «preuves manifestement non fiables», ce qui met en cause les droits à la vie, la liberté et la sécurité accordés au Dr. Diab par la section 7 de la Charte...

"L’ACLC s’inquiète que l’extradition dans cette affaire puisse nuire au test d’extradition, ce qui aboutirait à un processus inéquitable et des injustices envers les personnes soupçonnées de crimes par des états étrangers."

http://ccla.org/resources-2/bulletins-electroniques/bulletin-electronique-aout-2010/?lang=fr#diab

Canadian Civil Liberties Association Monitoring the Extradition Proceedings of Hassan

"The CCLA is concerned that the case against Dr. Diab may consist of ‘manifestly unreliably evidence’ such that Dr. Diab’s section 7 Charter rights to life, liberty and security of the person are at stake...

"CCLA is concerned that the extradition in this case will undermine the test for extradition and lead to unfair process and injustices for people suspected of crimes by foreign states."

http://ccla.org/resources/ebulletin-3/august-2010-ebulletin/#diab

Misidentification and Wrongful Conviction

Read an interview with Innocence Project co-founder Peter Neufeld on misidentification and wrongful conviction:

“The primary cause [of wrongful convictions] is mistaken identification… The second most common cause is the misuse of forensic science other than DNA.”

http://www.slate.com/blogs/blogs/thewrongstuff/archive/2010/08/17/reasonable-doubt-innocence-project-co-founder-peter-neufeld-on-being-wrong.aspx

August 30, 2010: Court Date for Abuse of Process Application

We urge you to come to the Ontario Superior Court, located at 161 Elgin Street in Ottawa, on Monday August 30 at 10:00 AM, to show your support for Hassan.

On August 30, Hassan’s lawyer will file an abuse of process application. The application will detail how the French investigators and the Crown Attorney have continued to rely on flawed handwriting “evidence”, even after learning that handwriting samples alleged to have been written by Dr. Diab were actually written by someone else.

The extradition law and the public’s confidence in the administration of justice rest on trust that the requesting state will only submit reliable evidence to Canadian courts. However, this has not happened in Dr. Diab’s case. The French investigators and the Crown attorney continued to rely on “evidence” that they knew is fatally flawed.

Please come to court to show your support for due process and fundamental principles of justice!

To find the courtroom number, simply check with the information desk staff or look up Hassan’s name on the sheet posted on each courtroom door.


Hassan Diab Support Committee
diabsupport@gmail.com
http://www.justiceforhassandiab.org

Human Rights Watch Condemns France’s Use of Intelligence as Evidence

By Don Pratt

On March 11, 2010, Human Rights Watch submitted a report titled “Concerns and Recommendations on France” to the UN Committee Against Torture. The section of the report condemning France’s use of intelligence as evidence is worth quoting at length.

“Human Rights Watch is concerned that French criminal procedures in terrorism cases lack sufficient safeguards to ensure that evidence obtained under torture or prohibited ill-treatment is not used at any stage of proceedings in France.

Intelligence material, including information coming from third countries with poor records on torture, is often at the heart of terrorism investigations. Our research indicates that there is insufficient judicial verification of intelligence material in terrorism investigations. In practice, security services provide prosecutors and specialized investigating judges with information they have obtained through intelligence-gathering methodologies, including cooperation with third countries with poor records on torture. Investigating judges may then order any number of investigative steps, including arrests, on the basis of this intelligence, without exercising any control over the legitimacy of the methods used to obtain the information.

As the Committee made clear in P.E. v. France, states have a positive obligation "to ascertain whether or not statements constituting part of the evidence of a procedure for which it is competent have been made as a result of torture." The absence of any mechanism or requirement on the part of investigative judges to verify whether the information was obtained under any form of ill-treatment is a breach of that obligation, because the information constitutes evidence for the purposes of a judicial investigation.”

The Human Rights Watch report goes on to cite a recent case in which French authorities arrested and convicted two individuals based on information obtained from another man while he was detained by the Département du Renseignement et de la Sécurité (DRS), Algeria’s infamous secret service agency, which is well-known for torture and other abusive treatment.

“The 2005 arrests of individuals allegedly plotting terrorist attacks in Paris are illustrative. These arrests appear to have been based largely on statements allegedly made by a man named M'hamed Benyamina while in custody of the Algerian secret service, the Department for Information and Security (Département du Renseignement et de la Sécurité, DRS). Benyamina, an Algerian residing legally in France, was arrested at an airport in Algeria in September 2005 as he was preparing to return to France. Benyamina told Amnesty International that Algerian officers told him French authorities had requested his arrest. Benyamina was held in illegal, arbitrary DRS custody for at least five months. Benyamina said he did not want to talk about treatment in DRS detention as long as he remains in Algeria for fear of reprisals.

There is evidence, based on dozens of cases of torture and ill-treatment collected by Amnesty International between 2002 and 2006, to suggest that the DRS routinely arrests and holds terrorism suspects in incommunicado detention, with no access to a lawyer, where they are at particular risk of torture and ill-treatment. Two men, Emmanuel Nieto and Stéphane Hadoux, were arrested in France in October 2005 on the basis of statements made by Benyamina during his detention, which he later retracted. Nieto and Hadoux were convicted of criminal association in relation to a terrorist undertaking in October 2008.”

The Human Rights Watch report also cites a shocking case in which a French investigating magistrate (juge d’instruction) conspired with the Syrian Military Intelligence (SMI) to extract a false confession from an Algerian man. The SMI is the same intelligence service that tortured Canadian national Maher Arar.

“… Said Arif, an Algerian national, [was] detained in Damascus, Syria in 2003. A French investigating judge provided Syrian authorities with a list of questions to ask Arif, accompanied by "answers" in parentheses, and traveled to Damascus to observe the interrogation. Arif credibly alleged he was tortured throughout the year he spent in Syrian custody and disavowed everything he is alleged to have said during that period. All pieces of evidence emanating directly from his detention in Syria were eventually excluded from his trial. Arif was nonetheless convicted of criminal association in relation to a terrorist undertaking in June 2006. ”

At trial, French lawyers for Mr. Arif declared that self-incriminating statements were obtained through torture while in Syrian custody and characterized the charges against their client as “part of an elaborate fiction constructed by the government to target men because of their religious and political beliefs”. An attorney for another client accused with Arif went so far as to accuse French intelligence services of planting evidence to achieve a politically motivated conviction.

The Human Rights Watch report continues:

“The courts appear to have allowed as evidence in some cases statements allegedly made under torture by third persons. Part of the evidence against Arif and his co-defendants, for example, came from a Jordanian man known as Abu Attiya, who was interrogated while in Jordanian custody using questions submitted by a French investigating judge.

Abu Attiya told Human Rights Watch of mistreatment he had suffered during the four years he spent in the custody of the Jordanian General Intelligence Department (GID). (He was released in December 2007 without charge). The GID has a record of arbitrary arrest and abusive treatment of prisoners. Defense arguments to exclude Abu Attiya's testimony on the grounds that it was obtained through torture were unsuccessful.

We are concerned that there are insufficient safeguards in place to ensure that investigating judges do not rely on evidence obtained in third countries under torture or ill-treatment in their investigations or to ensure the exclusion of such material as evidence in criminal trials of terrorism suspects.

The government should amend the code of criminal procedure to state explicitly that evidence extracted under torture or ill-treatment, regardless of its provenance, is not admissible at any stage of legal proceedings and investigations; and to impose a statutory obligation on the competent judicial authority to assess whether intelligence material was obtained under torture or ill-treatment.”

The Human Rights Watch report raises very important issues. However, the report’s narrow focus on torture and other forms of ill-treatment obscures a more basic fact: Information obtained by intelligence agencies—whether or not it comes from torture or ill-treatment—is of unknown provenance and is therefore unreliable. Intelligence is collected for fundamentally different purposes and under different rules than evidence. The secretive process by which intelligence is gathered is entirely at odds with the requirements of evidence, due process, the presumption of innocence, and proof of guilt.

Political science, international relations, and the daily headlines reinforce the impression that the work of intelligence agencies is driven primarily by the Machiavellian necessities of statecraft rather than by lofty principles of democracy, freedom, and les droits de l'homme. Spectacular intelligence failures like 9/11, Iraq WMDs, and the “extraordinary rendition” of innocents like Maher Arar to torture are only the most obvious examples of the frailties of “intelligence”.

Given the inherent unreliability and unfairness of material from undisclosed sources, it is hardly surprising that the Canadian Crown prosecutor has attempted (with success) to sanitize the English translation of the Record of the Case by replacing the word “intelligence” with “information”. At the end of the day, the bald, unsubstantiated, conclusory assertions at the heart of the case against Dr. Diab simply cannot be tested in court. The broader implications of using intelligence as “evidence” in a legal process are that it undermines the integrity of the courts, weakens democracy, and reduces freedom without increasing security.

Other relevant reports by Human Rights Watch:

• In the Name of Prevention: Insufficient Safeguards in National Security Removals, June 5, 2007.


• Preempting Justice: Counterterrorism Laws and Procedures in France and France, July 1, 2008.


• Human Rights Watch Submission to the Leger Commission on the Reform of France’s Criminal Procedure and Criminal Code, April 15, 2009.


• No Questions Asked: Intelligence Cooperation with Countries that Torture, June 29, 2010.