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 yesterday, 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.
Congressional Q&A
An exchange between U.S. Congressman Jerrold Nadler and Maher Arar at a video conference on Thursday:
Nadler: "Mr. Arar, let me ask you one preliminary question, were you ever at an al-Qaeda training camp in Pakistan or Afghanistan?"
Arar: "No."
Nadler: "Were you ever in Afghanistan or Pakistan?"
Arar: "No."
Nadler: "Given those facts, if the United States government believes that you were, can you think of any reason why they might think so?"
Arar: "... Frankly I don't remember being asked in the United States about that. The only time this came up was in Syria and I falsely confessed in Syria [to being in Afghanistan]under torture."
Colin Freeze