Former Supreme Court judge Frank Iacobucci has been appointed to examine the cases of Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin. The three deny any terrorist activity and blame faulty intelligence from the RCMP and CSIS for their mistreatment in Syria and Egypt.
But government lawyer Michael Peirce argued at a hearing Tuesday that nearly all future proceedings should be held behind closed doors - not just to protect national security but also to speed up the investigation.
"This is an internal inquiry," said Peirce, contending that the terms of reference drawn up for Iacobucci by the Conservative government allow for public hearings only in "limited and exceptional circumstances."
He noted that a similar inquiry into the Maher Arar affair bogged down in argument over how much of the evidence should be public and dragged on for over two years. Repeating that experience would be in nobody's interest, said Peirce.
He went on to argue that:
-Public hearings should be limited to opening and closing statements, procedural questions and motions, and a handful of other matters.
-There's no need for the three men, or their lawyers, to be present when the bulk of the testimony is heard in secret.
-The inquiry shouldn't become a fishing expedition to uncover evidence for use in separate civil suits for damages the three have launched against Ottawa.
Jasminka Kalajdzic, one of the lawyers for Almalki, retorted that if Iacobucci accepts the federal view, his work will be reduced to the status of an "internal audit" that will have trouble uncovering the truth.
"The government's vision for this inquiry is an impoverished one," she said. "Their vision is that it is not about accountability, it is not about inspiring public confidence."
The three men want as much of the inquiry as possible to be held in public. To the extent that closed-door hearings are necessary, they want their lawyers to be security-cleared and allowed to attend to protect their interests.
Barbara Jackman, who represents El Maati and Nureddin, contended the federal ground rules would rob her clients of any chance for meaningful participation in the work of the inquiry.
If that happens, she hinted, they could decide to pull out rather than lend their support to a flawed investigation.
"We want to co-operate, we want to make this process work," said Jackman. "But if it is such a secret hearing . . . then we will have to consider our options."
Paul Copeland, a member of Almalki's legal team, told reporters later that it's premature to speculate on what his client would do if Iacobucci adopts the federal view and opts for mainly secret hearings.
But he added pointedly: "I don't see what participation there is for us in the inquiry if it's all done in private . . . It strikes me as a very meaningless process."
Copeland theorized that the federal position could reflect a fear that, if the inquiry finds fault with the RCMP, CSIS or other federal agencies, it could bolster the civil damage claims of the three men.
He noted, for example, that Maher Arar, who was cleared of suspicion by an earlier inquiry headed by Justice Dennis O'Connor, has since won a $10-million settlement from Ottawa.
"Clearly the government is concerned that they might be held liable for Canadian complicity in the torture of Mr. Almalki," said Copeland.
Peirce aid the government doesn't contest the fact that Almalki, El Maati and Nureddin suffered "mistreatment" at the hands of their interrogators in Syria and Egypt. He refused, however, to concede that their treatment met the legal definition of torture.
He also challenged the belief - voiced repeatedly by the three men - that the inquiry can serve as a vehicle for clearing their names.
If that were the case, said Peirce, it would open the door for the government to counter their arguments by presenting evidence aimed at proving they were indeed terrorists.
Iacobucci reserved judgment, promising to rule "as soon as possible" on where he intends to draw the line between public and private hearings.
The three cases bear striking similarities to that of Arar, the Ottawa telecommunications expert who was arrested by U.S. authorities in 2002, deported to Syria and tortured into false confessions of ties to al-Qaida.
El Maati, a Toronto truck driver, was arrested in Syria on a visit in 2001, then transferred to Egypt in early 2002 for further interrogation.
Almalki, an Ottawa electronics engineer, was detained in Syria in 2002 and held for 22 months, while Nureddin, a Toronto geologist, was held for 34 days in Syria in late 2001 and early 2003.
