[wvns] U.S. won't remove Arar from no-fly list
Why U.S. won't remove Arar from no-fly list
COLIN FREEZE
October 20, 2007
http://www.theglobeandmail.com/servlet/story/RTGAM.20071019.Arar20/BNStory/International/home
MINNEAPOLIS — Maher Arar's denials that he ever went to Afghanistan
are contradicted by a man convicted of immigration fraud and a
self-confessed mujahedeen instructor who says he spotted him there in
the early 1990s, according to classified American documents seen by
The Globe and Mail.
The intelligence documents are said by U.S. sources to be key to
understanding Washington's argument that, even though Mr. Arar has
been cleared of any wrongdoing and paid $10-million in compensation by
the Canadian government, he should remain on a no-fly list and remain
barred from entering U.S. territory as an alleged security threat.
Until now, the files have been accessible only to those with security
clearance, and appear to be the invisible hurdle as Mr. Arar fights to
clear his name in the United States.
In Minnesota, Mohamed Kamal Elzahabi, a Lebanese-born U.S. resident
who once led training-camps in Afghanistan, has been jailed for three
years. His case is obscure and his credibility is very much at issue.
Earlier this year he was convicted of immigration fraud and still
faces outstanding charges of lying to the Federal Bureau of Investigation.
His alleged admissions he fought as a sniper in Chechnya and
Afghanistan have not resulted in criminal charges. Mr. Elzahabi's
statements, under seal, have never been tested in court, nor have they
been made public before today.
They stem from FBI interviews that arose almost two years after Mr.
Arar's U.S. arrest and were outside the scope of the Canadian inquiry
led by Mr. Justice Dennis O'Connor.
Judge O'Connor was tasked with investigating only the Canadian files
that led to the Central Intelligence Agency rendition flight to Syria.
The issue of the no-fly list was outside the O'Connor remit.
Mr. Elzahabi once told the FBI that he had served as a sniper
instructor at the Khalden training camp in Afghanistan.
The information seen by The Globe and Mail indicates Mr. Elzahabi said
he didn't train Mr. Arar, didn't know what kind of training he may
have taken, nor if he had a camp nom de guerre.
As described, the encounter appears to have been, at most, fleeting.
The Globe and Mail believes publishing the new information is
important. On Thursday, Mr. Arar told Congress that he has been given
"no explanation whatsoever" as to why his attempts to clear his name
in the United States have stalled.
He reiterated that he never travelled to Afghanistan and that his
connections to alleged al-Qaeda-linked figures have been overstated.
Mr. Arar gave his testimony to Congress via video link from the
University of Ottawa. He is still not permitted to enter the United
States to speak in person about his rendition on a CIA jet to torture
in Syria. Representatives agreed following Thursday's hearing that
their government behaved reprehensibly in "outsourcing torture" of Mr.
Arar.
But it has emerged that Congressman Jerrold Nadler of New York, who
told the hearings he had seen the entire classified file relating to
Mr. Arar as recently as Wednesday and saw nothing to persuade him that
Mr. Arar should have been tortured or kept on the no-fly list, had not
been told of the Minnesota case.
"I'm not aware of it," he told The Globe yesterday.
Asked if the briefing he received included a look at the confession
Mr. Arar gave under torture in Syria, where Mr. Arar said he had been
to Afghanistan, he said: "No comment."
On Thursday, Mr. Nadler asked Mr. Arar about Afghanistan.
"Mr. Arar, let me ask you one preliminary question, were you ever at
an al-Qaeda training camp in Pakistan or Afghanistan?" Mr. Nadler asked.
"No."
"Were you ever in Afghanistan or Pakistan?"
"No."
"Given those facts, if the United States government believes that you
were, can you think of any reason why they might think so?"
"... Frankly I don't remember being asked in the United States about
that," Mr. Arar replied. "The only time this came up was in Syria and
I falsely confessed in Syria [to being in Afghanistan] under torture."
This spring, Mr. Arar's Canadian lawyer, Lorne Waldman, told The Globe
that Mr. Arar doesn't recall ever meeting the man held in Minneapolis
and only had his car fixed by Mr. Elzahabi's brother, who once ran a
garage in Montreal.
The lawyer for his U.S. civil suit, Maria LaHood, said yesterday she
would not comment on the FBI material seen by The Globe. "Regarding
whatever document you've seen, I just won't comment on a document that
I cannot see," she said.
Washington has never claimed that Mr. Arar had any links to a
terrorist act or plot. Rather, under the low legal thresholds of
terrorist watch lists, he has been branded a persona non grata.
U.S. government lawyers have stated that as a presumed alien enemy,
Mr. Arar has no constitutional recourse — adding he is not entitled to
have his case reassessed under a standard of "probable cause" nor even
"reasonable suspicion."
Removed from the United States to Syria in 2002, the Canadian
telecommunications engineer will be barred from entering the United
States until 2012, barring a reversal by U.S. officials.
Crucially, the stated reasons for the U.S. position have changed over
time.
At the time of his rendition to Syria, U.S. immigration officials
cited "classified and unclassified" information to allege Mr. Arar was
a member of al-Qaeda. The removal-decision documents remain mostly
blacked out, saying only that under questioning by the FBI, Mr. Arar
"admitted his association" with two other Canadians then jailed in the
Middle East.
In 2004, U.S. officials declined to participate in the O'Connor
inquiry probing Mr. Arar's ordeal.
Refusing to hand over files, U.S. officials pointed the finger back at
Canada: "Mr. Arar's name was placed on a U.S. terrorist lookout list
based on information received as part of an ongoing general sharing of
information between the governments of the United States and Canada,"
a U.S. State Department lawyer wrote at the time.
Last year, after Canada apologized to Mr. Arar and compensated him
with $10-million for passing bad intelligence about him to the United
States, Prime Minister Stephen Harper urged U.S. officials to "come
clean" about their handling of the file.
But U.S. officials resisted Canadian entreaties to remove Mr. Arar's
name from their no-fly list, hinting this past January that there had
been a crucial evolution in their argument, with the suggestion the
United States had in its possession material obtained outside Canada's
knowledge.
"Our conclusion [to keep Mr. Arar on a no-fly list] in this regard is
supported by information developed by U.S. law-enforcement agencies
that is independent of that provided to us by Canada regarding Mr.
Arar," Homeland Security Secretary Michael Chertoff and Alberto
Gonzales, the U.S. attorney-general at the time, said in a Jan. 16
statement.
No details were revealed.
The U.S. Center for Constitutional Rights, U.S. Senator Patrick Leahy,
and other U.S. officials are urging Washington to follow Ottawa's lead
— apologize, launch a commission, and cease the blacklisting of Mr. Arar.
On Nov. 9, Mr. Arar's lawyers will appear in a New York court to try
to revive his U.S. lawsuit, dismissed on the grounds that moving
forward could compromise state secrets.
Judge O'Connor, who spent two years probing Mr. Arar's ordeal, had no
access to Syrian or American files. Mr. Arar was given the option of
testifying once the findings were complete, but declined in August.
Judge O'Connor stated that he saw all the Canadian files before
concluding that: "I am able to say categorically that there is no
evidence to indicate that Mr. Arar has committed any offence or that
his activities constitute a threat to the security of Canada."
Judge O'Connor took a hard line against torture evidence entering
counterterrorism investigations. Playing devil's advocate, he stated
in his findings that even if one were inclined to believe coerced
confessions, the Syrian information would hardly be grounds for
marking Mr. Arar as a terrorist for life.
"The training camps were diverse in nature," Judge O'Connor writes.
"Some could be described as terrorist training camps, others only as
mujahedeen training camps.
"Based on the Syrians' information, it could not be determined whether
Mr. Arar was a member of al-Qaeda or had received specific terrorist
training. He could have gone to Afghanistan as a religious Muslim with
a desire to fight the infidels or he could have had more nefarious
intentions."
In an interview Friday, Paul Cavalluzzo, Judge O'Connor's commission
counsel, explained why the inquiry didn't settle the Afghanistan question.
"What the report says is that one's presence in Afghanistan is a very
complicated and nuanced question. If the person is a mujahedeen
fighting the Soviets ... we looked upon these people as freedom
fighters and nationalists," Mr. Cavalluzzo said. "However, if they
were in Afghanistan after 1996, when al-Qaeda moved to Afghanistan,
and attended an al-Qaeda training camp, that's a different story."
He added, "as far as Arar is concerned, there was the allegation and
it wasn't proven either way."
The focus of the inquiry, Mr. Cavalluzzo said, was on the conduct of
Canadian officials. "Whether Arar was in Afghanistan in 1993 wasn't
related to that," he said.
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