Government leaks part of a cover up: Arar lawyer

Maher Arar's lawyer says campaign to defame victim of extraordinary rendition intentional, willful misconduct

Maher Arar's lawyer says campaign to defame victim of extraordinary rendition intentional, willful misconduct

Following the 822-page judicial report that cleared Maher Arar, Lorne Waldman, Mr. Arar's lawyer, says government officials deliberately leaked damaging and false information about Mr. Arar in 2002 and 2003 in a sinister attempt to quash growing political pressures for a public inquiry.

Last week, with the sensational release of Justice Dennis O'Connor's report on the events surrounding the deportation, detention and torture of Mr. Arar in Syria, Mr. O'Connor called the government leaks of information about Mr. Arar–which suggested links to terrorism and al Qaeda–"deliberate" and "disheartening."

"Leaking information is a deliberate act. Moreover, some of the leaks relating to Mr. Arar were purposefully misleading in a way that was intended to do him harm. It is disturbing that there are officials in the Canadian public service who see fit to breach the public trust for their own purposes in this way," Mr. O'Connor wrote.

Mr. Waldman, a lawyer representing Mr. Arar in Mr. O'Connor's Commission of Inquiry, said that given Justice O'Connor's report, which did not find any evidence of wrongdoing by Mr. Arar, the leaks suggest that some government officials were not trying to reveal the truth, but instead had another motivation–to cover up their mistakes and quash growing public and political support for a public inquiry into the affair.

"If they'd been successful in their campaign to defame Mr. Arar's reputation, and to prevent the calling of a public inquiry, we wouldn't now know all that we know about the incompetence of the RCMP investigation and all the other things that we've learned," Mr. Waldman said.

"I have no doubt that the purpose of the leaks was to affect public opinion, and more importantly, the opinion of the government and Parliamentarians, to convince them that a public inquiry shouldn't be called. And the reason why they didn't want a public inquiry is because they knew they had a lot to account for, as Commissioner O'Connor has set out."

Mr. O'Connor's momentous report, which found that the Mounties had reason to view Mr. Arar only as a "person of interest" and not as a suspect, is said to take a place next to the influential royal commission on soviet espionage after the Second World War and the McDonald royal commission into the RCMP Security Service's investigation of the violent separatist movement in Quebec in the 1970s.

Among the report's recommendations was considering compensation Mr. Arar; sending a diplomatic objections to the governments of the U.S. and Syria; creating a set of "internal controls" for the RCMP's national security investigations; ensuring proper training; and handing oversight of intelligence-sharing to an independent, arms-length body.

Mr. O'Connor wrote that the RCMP special anti-terrorism unit, Project A-O Canada, "very likely" caused Mr. Arar's extraordinary rendition to Syria from New York by sharing false and damaging intelligence on Mr. Arar with American authorities. Detained without charge in Syria for more than 10 months between 2002 and 2003, Mr. Arar was tortured and forced to make false statements suggesting links to terrorism activities.

Justice O'Connor's report details a series of eight damaging leaks to the news media that spanned from July 2003, while Mr. Arar was detained in Syria, to July 2005, in the midst of the inquiry process. "This case is an example of how some government officials, over an extended period of time, used the media to put a spin on an affair and unfairly damage a person's reputation," the report says.

The leaks, in the form of unnamed government officials or documents, often led to front-page or headline stories that downplayed Mr. Arar's experiences or falsely portrayed Mr. Arar as involved in terrorist-related activities. Major stories appeared in The Toronto Star, The Globe and Mail, the Ottawa Citizen, and CTV. The judicial inquiry focuses significantly on these leaks.

Justice O'Connor wrote that the first leak, from an unidentified official in the summer of 2003, was suspiciously timed, because it came when public and political support had grown for Mr. Arar's release from Syrian custody.

Some of the leaks said Mr. Arar had trained in Afghanistan or that he had named terrorists while detained in Syria. Sources called him "a very bad guy" or "not a virgin." One source was quoted as saying that if the government was to ever declassify its files on Mr. Arar "there would be some hair standing on end." "The situation escalated as calls for a public inquiry into Mr. Arar's case grew more intense," Mr. O'Connor wrote. One headline in the Ottawa Citizen, on Dec. 30, 2003, read: "U.S., Canada '100 per cent sure' Arar trained with al-Qaeda...."

The most well-known leak came in a story by Ottawa Citizen reporter Juliet O'Neill on Nov. 8, 2003, which reported on secret documents showing an RCMP "dossier" on a group of Ottawa men, including Mr. Arar, "with alleged ties to al-Qaeda." The story resulted in an RCMP investigation, which is now tied up in litigation.

"Every time, during that period that there was another leak, it was like putting another dagger in his back. Every leak upset him and his family so much. 'Here, I've come back and now I'm safe, but now I'm not safe because there's sources defaming my reputation,'" Mr. Waldman said. "He couldn't believe that officials in the government would do this. What it did was make everything difficult for him, emotionally, for him and his family. He felt like he was under siege instead of feeling safe."

Liberal MP Wayne Easter (Malpeque, P.E.I.), who was solicitor general at the time under prime minister Jean Chrétien, told The Hill Times that the government treated the leaks seriously and launched internal investigations. "We were very angry and frustrated by those leaks and we still don't know where they came from or for what purpose they happened," he said.

Liberal MP John McCallum (Markham-Unionville, Ont.), former finance minister under Paul Martin (LaSalle-Émard, Que.), said in a scrum on the Hill last week that no one in the top levels of the former Liberal government knew that the information was false. "Well, my understanding is that no one in the government was aware of what was going on at all. Had they been, they should certainly have resigned or spoken out. I would be amazed if that were the case. In some ultimate sense, since we were the government, we were responsible, and so to that extent I think we collectively bear a part of the blame."

None of the sources was ever identified, even after internal investigations by the RCMP, the Canadian Security Intelligence Service, the Privy Council Office, and Foreign Affairs. Mr. O'Connor called the failure to find the sources of the leaks "a disheartening state of affairs." He continued: "Given that the leakers are very likely officials within agencies that boast highly skilled investigators, one would have hoped that those investigating the leaks would have had more success in finding the perpetrators."

Mr. O'Connor also wrote that such practices are also damaging to national security because they can impact the willingness of Canada's allies to share intelligence.

"The obvious implication of the failure to identify the source of leaks is that there is no deterrent to others who may be inclined to leak classified or confidential information in the future. If no one ever gets caught, those who are prepared to leak this type of protected information for purposes that suit their own interests will probably continue to do so."

Mr. Arar, who suffers from post-traumatic stress disorder and recently moved from Ottawa to Kamloops, B.C., was not available for comment, but in an interview with CNN last week, he suggested that he did not believe his rendition was done in error.

"They took the decision to send me to a country they acknowledge practices torture on detainees. This was a deliberate attempt to extract information under torture," he said.

Three other Canadians, Ahmad El Maati, Abdullah Almalki and Muayyed Nureddin, were also held in Syrian prisons. Mr. Almalki was arrested when he travelled to Syria to visit family in May 2002, where he was imprisoned until March 2004. Mr. El Maati was imprisoned in Syria and Egypt between November 2001 and January 2004, and Mr. Nureddin for about a month in December 2003.

Mr. O'Connor wrote that only sources with access to classified information could have leaked the information. A former CSIS agent–who declined to be identified, but said he is speaking against secretive government agencies and in the interest of Canadians' rights–told The Hill Times that he doubted the leaks would have come from the intelligence apparatus.

Instead, the leaks more likely came from lower-level officials in the RCMP, border services or other government departments, who spoke on information received from high-level intelligence sources, and which they believed to be definitive, said the former agent. He said he is confident the intelligence originated in CSIS because "Islamic extremist" is a CSIS term.

"Anybody who was intimately knowledgeable about the information would have never gone even off the record as saying that. It's obvious that this is a second-hand organization, group or directorate that was given information that was categorical: 'These are extremists, put them on the list,'" he said. "And the leaks probably came out because they were trying to defend themselves."

The former agent said that that PCO officials would have also been familiar with lists of persons of interest, but high-level intelligence would not have been shared with the political levels of government. And once intelligence is shared with the U.S., it cannot be purged from the U.S. system, he said.

"I am still of the opinion these activities were carried out with no concern for the people involved. It made people in the RCMP and CSIS feel as if they were playing with the big boys," he said.

But Joe Comartin (Windsor-Tecumseh, Ont.), the NDP's justice critic, said he believes the leaks came from fairly high-level intelligence sources because, at the time, there was not much information sharing with lower-lever government agencies. He said he is not satisfied with the results of the internal investigations to find the leakers and said "it boggles the mind" that the government could not identify them. It also raises questions about how hard the investigators tried to find the sources, he said.

"With the leaks, this is willful misconduct, and it is despicable conduct when you consider what he had been put through," Mr. Comartin said of Mr. Arar. "It was despicable because it was an attempt to protect their own ineptness and incompetence and they were quite prepared to sacrifice [Mr. Arar]."

Mr. Comartin said initially, after his return from Syria, the public showed a large amount of support for Mr. Arar. "Then, as the leaks came out, there would be questions," Mr. Comartin said. "It was one of those cases where you had gone through this terrible ordeal and the country was being supportive, and all of a sudden, you were down again and your hope and expectations are leveled, and the ground's cut out from under you."

At the same time, Mr. Comartin said the media also bear some responsibility for the leaks because journalists seemed to get caught up in the "paranoia" and "hysteria" of the post-9/11 security environment, relying on false information.

Similarly, Mr. Waldman said he is unsatisfied with the government's attempts to root out the sources and that more fulsome investigations should be brought forward. Alternatively, he said, some sources may be forced into the public through ongoing litigation.

Mr. Waldman said some reporters came to him after the leaks and told him that they regretted writing the stories. Other journalists, he said, told him that government sources had approached them with similar information about Mr. Arar, but the reporters did not run with the stories because they were suspicious.

"There are some [reporters] who told me, 'I had the same information as others, but I refused to print it.' There were these sources who were going around trying to shop the information. And some used it and have now told me that they're sorry they used it," Mr. Waldman said. Anonymity is important for whistle blowers, Mr. Waldman added, but there are also potentially damaging effects to be had from uncorroborated, unnamed sources with an agenda.

"There's another question. When your anonymous source turns out to be a liar, when do you reveal who the source is?" Mr. Waldman said. "I think the media, in light of what's happened to Maher Arar, has to have a very serious debate about using anonymous sources."

The Hill Times

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