Human rights experts want to know why a mentally ill Canadian citizen sat in a secretive U.S. detention facility in Afghanistan for eight months without a consular visit, and more than 18 months behind bars in total.
It's unknown whether the delay was due to U.S. officials belatedly informing Canada to the presence of the dual Canadian-Egyptian citizen at the Bagram Theatre Internment Facility or another reason.
"The more likely scenario is that the Canadians were notified and like most things in Afghanistan, if there is nobody watching and there is no pressure placed on individuals to move people through the system, they will not move," said Tina Foster, executive director of the U.S.-based non-profit human rights group International Justice Network.
Foreign Affairs doesn't comment on specific cases, citing privacy concerns, but has stated that foreign authorities aren't obligated to notify the Canadian government of Canadian citizens arrested abroad, unless the citizen asks them to notify the government.
CBC News discovered the previously unknown case of Khaled Samy Abdallah Ismail documented in two U.S. diplomatic cables released by WikiLeaks. According to the documents, Ismail was captured in the spring of 2006 and held, largely in solitary confinement, for more than a year and a half based on largely circumstantial evidence. Several months after his detention, Ismail was diagnosed with paranoid schizophrenia.
An anonymous source familiar with the case told CBC News Ismail was captured by Afghans outside the Kandahar governor's palace due to suspicious behaviour that included holding a bag full of electronic wires and components. The components were later deemed benign.
A Foreign Affairs spokesperson said a Canadian individual was held at Bagram and they "assisted in the individual's safe return to Canada," but wouldn't confirm whether it was Ismail due to privacy concerns.
"The most serious concern is that this was a Canadian citizen who was basically relegated to a black hole," said Paul Champ, a Canadian lawyer who represents Maher Arar, the Syrian-born Canadian deported from the U.S. to Syria, where he was jailed and tortured.
"It's quite obvious that the Americans didn't really have anything on [Ismail]. You know, most likely he was just wandering around some of the provinces of Afghanistan because he was perhaps too naïve or ill to know what he was doing."
The Cairo-born computer systems engineer was diagnosed with paranoid schizophrenia months after he was brought to Bagram and spent much of his time in solitary confinement, a measure the U.S. military says was intended to protect him from the general population.
A former detainee who knew the Canadian-Egyptian inside Bagram, Ghairat Baheer, said Ismail's Western attitudes and habits irritated other Muslim detainees.
Baheer, who spent four years in the detention facility, said Ismail told him he was "not captured as a fighter or a warrior" and was travelling in Afghanistan at the time.
Diplomatic cables say that the U.S. deemed Ismail a "low-level, low threat enemy combatant" who was held on "largely circumstantial" evidence. At the time of his detention, the U.S. was actively trying to minimize the population at Bagram, which dropped from 850 detainees at the beginning of 2006 to around 600 mid-year.
A 'tragic' example
The documents show that the U.S. was keen to transfer Ismail out of Bagram and debated whether to send him to Egypt or Canada.
Champ said he's worried that Canada didn't stand up for the rights of its citizen for fear on stepping on the toes of its closest ally.
"They're more than prepared to sacrifice the rights of Canadian citizens and this looks like another tragic example of that," he said.
U.S. human rights lawyer Tina Foster, who leads the International Justice Network — a group that has worked with a number of former Bagram detainees — argues that Canada is well placed to set an example and push for the U.S. to change its secretive policy surrounding the Bagram detention facility.
Few details are known about the so-called enemy combatants held at Bagram, a detention facility dubbed the "other Guantanamo" by human rights advocates.
Foster notes that in 2005, the Canadian government signed a deal to stop handing captives over to the Americans in Afghanistan following allegations of torture at the U.S. Abu Ghraib prison in Iraq.
"I think it's just important for people to understand that the Canadian government does impact many policies of the U.S. government in Afghanistan," said Foster. "And taking a stand with respect to Bagram ultimately would be a very influential factor as part of what the U.S. government takes into account moving forward."
For Champ, Ismail is "another example of a casualty of the war on terror" in the post-Sept. 11 era that saw a tightening of security and an influx of alleged insurgents held in U.S.-run prisons opened abroad.
Former Canadian diplomat Gar Pardy agrees that the last decade has seen a rise in such "extremely unfortunate" incidents.
"The troubling aspects are the larger ones, of course, of security organization basically over-interpreting information and a willingness to take nasty action first and then try to sort out the consequences afterward," said Pardy.
But the former consular affairs director general said there's a silver lining in Ismail's case — that he didn't end up like Arar.
U.S.-Canada pact 'worked'
Pardy points to a formal agreement ironed out between the Americans and Canadians two years prior to Ismail's capture on how to treat dual citizens such as Ismail and Arar.
In a 2004 exchange of letters, the two countries agreed to notify each other and expeditiously consult before removing a national of either country to a third country.
In the case of Ismail, U.S. officials looked to the exchange of letters for guidance on how to handle the case of the dual Egyptian-Canadian citizen.
The March 4, 2007, diplomatic cable states that American officials questioned whether the agreement applied to a U.S. detention facility on foreign soil.
"We believe we must be cognizant of it," U.S. officials wrote in the cable. Also, in light of Ismail's citizenship and the "serious deterioration" of his health, the military unit in charge of Bagram, CJTF-76, recommended to the Office of the Secretary of Defence that Canada be asked to accept transfer of Ismail instead of sending him to Egypt for "continued detention."
Pardy said that points to the success of the agreement.
"It worked the way it should work, the way it was intended to work," said Pardy. "[The U.S. was] more forthcoming in this case than I'd seen them ever before in interpreting the agreements in terms of allowing a person from a third country to come back to Canada."
But International Justice Network's Foster warns that much of the story remains unknown and raised the possibility that Ismail was tortured while at Bagram, a detention facility with a history of torture allegations.
In 2002, two Bagram detainees died after U.S. soldiers beat them during an interrogation, though in recent years former detainees report improved conditions at a rebuilt facility.
Baheer said he didn't know whether Ismail was tortured during his time in Bagram, but added that "torture was something very common with all of us."
"It will likely be many, many years before the full facts of what happened to [Ismail], his treatment there, the ongoing effects of that treatment and any collateral consequences that he would've suffered at Bagram really come to light," said Foster.
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