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“Killing us slowly”

Mahmoud Jaballah remains in legal limbo

CURTIS RUSH, Toronto Star, Oct. 19, 2006.

What does a real spy look like?

A small number of people in Federal Court in Toronto got to see for themselves during the bail hearing for accused Egyptian terrorist Mahmoud Jaballah.

If you didn’t know he was an intelligence officer for the Canadian Security Intelligence Service, you would have thought he was a businessman.

He didn’t come into court with a trench coat, sunglasses and floppy hat to cover his face.

Looking about 35 years old, the CSIS agent had closely cropped dark hair, wore wire-rimmed glasses and a crisp blue suit and carried a briefcase. Nothing in his dress or demeanour brought attention to himself.

And that’s the way CSIS likes it.

His name was only given as J.P. He was put on the stand to support the government’s case Jaballah is a member of Egyptian terrorist group Al-Jihad.

They say Jaballah was the communications relay between Al-Jihad cells in 1998 when U.S. embassies in Kenya and Tanzania were bombed. CSIS says Jaballah, who claims innocence, is a threat to national security and shouldn’t be released, even if monitored with an electronic device. Jaballah has been detained for more than five years on a national security certificate, yet no charges have been laid against him.

As J.P. waited outside the courtroom prior to testifying, he read the newspaper. He talked hockey with a reporter, but would not discuss his business or CSIS. No leaks from this spy.

After testifying, he left quickly and blended into the crowd on the street. He suddenly changed direction, as if he knew he was being tailed. He stepped from the curb to hail a cab and was gone.

This guy is good.

On the stand, he didn’t come across as particularly knowledgeable. Though J.P. has 12 years experience in counter-terrorism work, he admitted most of his learning came on the job and from reading magazines such as The Economist.

Defence counsel Paul Copeland produced an article written by another CSIS operative known as P.G., entitled “Islamic Extremists and Detention: How Long Does the Threat Last?” Copeland pounced on a paragraph in the report that comes from a 2004 Washington Post story, attributed to Pentagon sources, that “at least 10 detainees released from the Guantanamo Bay prison after U.S. officials concluded they posed little threat have been recaptured or killed fighting U.S. or coalition forces in Pakistan and Afghanistan, and one of the repatriated prisoners is still at large after taking leadership of a militant faction in Pakistan and aligning himself with Al Qaeda.”

What the report didn’t say, Copeland said, was that the 10 or more returning militants were but a fraction of the 202 Guantanamo Bay detainees who have been returned to their homeland. According to the Washington Post, 146 were freed outright and 56 transferred to the custody of their home governments. Many have since been freed.

“Why was there no information (in the CSIS report) about the rest of the 192?” Copeland demanded.

The CSIS agent known as J.P. said “it would have that effect” of being misleading, but he did not write the report.

The CSIS agent was again the focus of Copeland’s final submissions, which began Tuesday.

He asked the judge to give little weight to J.P.’s testimony, saying it “comes close to attempting to perpetrate a fraud on the court.”

The cross-examination was a rare insight into how CSIS operates. But nothing’s typical about these security certificate hearings, whose constitutionality is being tested by the Supreme Court.

It was hard to know if J.P. is as unknowledgeable about Islamic extremism as the defence portrayed or if his testimony was more forthcoming last Thursday, when he met behind closed doors with the judge in Ottawa. It’s this aspect of the hearings defence lawyers find most egregious – secret hearings they are not permitted to attend.

The bail hearing was to wrap up in a week, but got bogged down and now is into its third week.

The defence and the government began final arguments on Tuesday, but the legal quagmire was stirred further Monday. That’s when Federal Court Judge Andrew MacKay surprised everyone with his quick decision on the reasonableness of the national security certificate for Jaballah. He upheld its reasonableness, while ruling the government cannot deport Jaballah to Egypt because he faces torture there.

Federal Court Judge Carolyn Layden-Stevenson chose to continue with the bail hearing and will discuss procedural issues this week as it relates to MacKay’s decision.

There is great relief among Jaballah’s family, but now he is in legal limbo – a man who can’t be deported to Egypt but who also can’t be released, unless granted bail, judged to pose a danger to national security.

The frustration of the whole process has hit Jaballah’s wife, Husnah Al-Mashtouli. Last week, her frustration boiled over in court.

“We want to find rest,” Al-Mashtouli began angrily. “This is worse than killing. You’re killing us slowly day by day.”

“This has been going on for five years,” she shouted, slamming her fist on the witness stand.

Tell us the charge, she said, and, if convicted, her husband will serve it, even if it’s life. But don’t keep detaining him without charge, she pleaded.

It was a dramatic departure from the previous week when she showed little emotion.


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