Canada’s no-fly list—who’s considered too dangerous?

A Montreal Muslim stuck on the no-fly list is fighting to get off

Martain Patriquin and Michael Friscolanti

The Canadian “no-fly” list is such a sensitive document that the federal government won’t even disclose how many names it contains. Instead, Transport Canada has simply assured the public that the top-secret list, in effect since 2007, is based on “reliable and vetted” intelligence collected from trusted sources. Translation: if you’re on it, authorities have good reason to believe you are an aspiring hijacker. Or worse—another Umar Farouk Abdulmutallab, the Nigerian who tried to blow up a U.S. jet on Christmas Day.

Though classified, the Canadian list contains one name for sure: Hani Ahmed Al Telbani. As first reported in Maclean’s, the 28-year-old Muslim—an engineering grad who allegedly surfed extremist websites using the online alias “Mujahid Taqni” (Technical Jihad)—is the only person to ever be denied boarding as a result of the so-called Passenger Protect Program, which springs into action when a blacklisted individual arrives at the check-in counter. A Palestinian immigrant, Telbani tried to catch a flight from Montreal’s Trudeau Airport to Saudi Arabia on June 4, 2008, but instead of a seat number, the airline agent handed him an “Emergency Direction” from Transport Canada. “You,” it proclaimed, “pose an immediate threat to aviation security.”

But 18 months later, with airport safety once again at the top of the agenda, the evidence against Hani Al Telbani has been called into question—and with it, the credibility of the entire no-fly list. As the American government scrambles to figure out how its own maze of anti-terror watch lists failed to thwart a potential catastrophe, Canadian officials have been forced to consider a very different question: does our no-fly list include some names that don’t belong there?
According to an internal government report obtained by Maclean’s, a team of independent investigators has concluded that Telbani is not too dangerous to fly. Commissioned by Ottawa, the report is especially critical of the country’s spy agency, the Canadian Security Intelligence Service. It was CSIS that convinced Transport Canada to ground Telbani, relying on evidence that was “decidedly vague and incomplete.”

The report urges Ottawa to not only delete him from the database, but to reassess all the evidence used to justify each entry on the list. After all, if the only person ever stopped by the no-fly program has been wrongfully targeted, how reliable is the rest of the list?

For a man desperate to clear his name, the findings read like a victory. In the eyes of Transport Canada, however, the results mean absolutely nothing. Rather than follow the recommendations, senior officials met behind closed doors, re-examined his CSIS file—including secret new details not disclosed to the independent advisers—and stuck to their original conclusion.

A permanent resident whose application for Canadian citizenship is pending, the Quebec man is now locked in a series of court battles with the feds, including a civil lawsuit demanding $550,000 in damages for the “stigma, humiliation, contempt, hatred and ridicule” he has endured. He claims the no-fly list (known officially as the “Specified Persons List”) violates his Charter rights to free movement and due process because it gives bureaucrats the power to brand someone a terrorist and ban him from the skies without any chance to challenge the evidence. Simply put, Telbani is stuck in national security limbo: deemed too dangerous to fly, though not dangerous enough to arrest.

The case raises troubling questions about civil liberties in a post-9/11 world, but it also raises just as many questions about the mystery man at the centre of the fight. Exactly why CSIS considers him so dangerous is still a state secret, but the fact that pages and pages of court documents are blacked out certainly suggests that the spies believed they had sufficient—if not urgent—reason to be monitoring Telbani’s online chatter.

Those censored allegations are apparently so incriminating that Telbani’s lawyers are now asking a judge to seal them from public view in the hopes of salvaging what’s left of his reputation. Telbani, who insists he is not a threat, says in a sworn affidavit that keeping the CSIS material confidential “is essential to prevent me from suffering irreparable harm to my safety, dignity, reputation, private life [and] right to work.”

At this point, all that’s known for sure is that the young Muslim was a master’s student at Concordia University’s Institute for Information Systems Engineering, where he studied “innovative applications to a wide range of information systems,” including “security, cryptography and embedded systems engineering as they apply to sectors such as banking, manufacturing and aerospace.” And when he wasn’t studying, he allegedly surfed the Internet under the pseudonym “Mujahid Taqni”—as well as other aliases that have yet to be revealed.

No-fly lists are far from perfect. If they were, Umar Abdulmutallab and his explosive underwear would have never boarded that Christmas morning flight to Detroit. Yet, unlike the American list, which has ballooned to the point of uselessness, the Canadian version was specifically designed to focus on the worst of the worst. Inclusion is not based on race or religion or mere suspicion. Authorities must conclude that a target is involved in a terrorist group and shows signs of potentially “endangering” an aircraft, or has been convicted of a serious crime that suggests he may “attack or harm an air carrier.” In the words of one senior Transport Canada official, “We’re looking at individuals and actions they have decided to take. It’s their behaviour that leads us to this conclusion.”

Concerns about Telbani’s behaviour—whatever it was—first surfaced on May 8, 2008, during a monthly meeting of the “Specified Persons List Advisory Group,” a three-member committee with representatives from Transport, CSIS and the RCMP. CSIS nominated him for the list; the other two members agreed. The very next day, Louis Ranger, then the deputy transport minister, signed off on the advice, branding Telbani a suspected member of “a terrorist group” who “will endanger the security of any aircraft.”

Two weeks later, Telbani—unaware that he was now forbidden to fly—reserved a $1,500 round-trip ticket to Riyadh, via Heathrow Airport. His plan, he claims, was to visit relatives and renew his residency status in Saudi Arabia, which was set to expire.

On June 2, just 48 hours before his scheduled departure, two CSIS agents knocked on the front door of his Longueuil apartment, on Montreal’s South Shore. According to  Telbani’s version of events, disclosed in court filings, the unnamed spies accused him of collaborating with a website linked to al-Qaeda. After convincing him to get in their car and drive to a café, the agents asked for his help, promising “they could correct the situation if he worked with them.” The next day, when the agents phoned again and asked to meet at a hotel, Telbani refused.

That same day, June 3, a warning began to circulate on a number of extremist Internet sites. “My brothers, one among us has betrayed the forums and their members and is co-operating with kufar [enemy],” the posting said. “Mujahid Taqni has been compromised; do not expect his return. He let them in the forums and now it’s only a matter of time.”

The following afternoon, luggage in tow, Telbani was sent home from the airport.

It wasn’t long before he retained the services of Johanne Doyon, a high-profile Montreal lawyer who has made a career defending other accused terrorists, including Adil Charkaoui, a Moroccan who successfully challenged the government’s use of security certificates to deport non-citizens. Doyon set forth a flurry of complaints—to CSIS headquarters, to the Security Intelligence Review Committee (an independent CSIS watchdog), and to the Federal Court. Telbani also appealed to the so-called Office of Reconsideration, a Transport Canada department created specifically to deal with passengers who want to challenge their inclusion on the no-fly list. The office hired two outside security experts to review the case: Allan F. Fenske, a retired colonel and former deputy judge advocate general of the Canadian Forces, and Wendy Sutton, a Toronto lawyer.

They did not mince words. After reviewing the classified CSIS material and interviewing Telbani, they concluded he doesn’t belong on the list, and that the secretive process used to place him there does not abide by the government’s own rules. Their report reveals, for instance, that the deputy transport minister, who must approve each entry, is not provided with any evidence. Rather, the advisory group simply forwards a memo with the person’s name and the word “YES” handwritten by each member, a process the report calls “patently unreasonable and invalid.”

The investigators save their harshest words for CSIS. Fenske and Sutton, who declined to be interviewed for this article, repeatedly criticize the spy agency for providing the rest of the advisory group with “information severed from their surrounding and underlying context” that is “selectively and incompletely stated” and that “gives rise to a serious risk that the information considered is vague, inaccurate, and incomplete.”

During their May 8 meeting, for instance, the anonymous CSIS agent who sits on the committee provided a written assessment on Telbani, known as a data sheet. The other two members—Debra Normoyle of Transport Canada and Superintendent Reg Trudel of the RCMP—agreed that the evidence was strong enough for inclusion, but just to be sure, they asked CSIS for more corroboration. The agent returned two weeks later with a revised assessment, but according to the independent investigators, the new data sheet “reiterated without significant change much of the information contained in the May 8, 2008, data sheet. In some cases, the information was moved to a different paragraph.”

Nor were investigators particularly alarmed by Telbani’s supposedly sinister alias, “Mujahid Taqni” (Technical Jihad). “While it may provide some insight into the state of mind and potential motivation of the applicant, we would not give it any weight in the absence of more understanding of the applicant’s activities related to aviation.”

Bottom line: CSIS is wrong, and Telbani should be free to fly. “We have not been able to identify a discernible threat, immediate or otherwise,” the investigators concluded.

The report is a blow to Canada’s spy agency, which is still reeling from a year’s worth of embarrassing revelations. Most notably, judges in two separate security certificate cases lambasted CSIS for withholding crucial evidence about the credibility of confidential informants, including the fact that one key source flunked a lie detector test. (A third case, Charkaoui’s, was also thrown out, but only because CSIS chose to drop it rather than reveal its sources.)

Marc Boyer, a CSIS spokesman, would not discuss Telbani’s file because it is before the courts. When asked why Canadians should trust the agency—when the report’s authors did not—he said: “Everything we do is carried out in accordance with Canadian law.”

One thing is clear: Transport Canada is sticking with CSIS’s advice. The department waited eight months, until June 2009, to provide Telbani with a copy of the reconsideration report. In the meantime, the advisory group voted three more times to ignore the findings and keep him on the list, relying on a new “Aviation Security Risk Assessment” that Fenske and Sutton never saw.

That new assessment has sparked yet another round of legal punches. Telbani’s lawyers say the feds had no right to consider new evidence against their client when the original no-fly declaration—based on different evidence—is still being argued in court. Transport Canada fired back, arguing the government “is not limited to the information on which the initial decision is based, as the power to react in the name of airline security is ever-evolving.” (The law governing the no-fly list also makes clear that the feds are under no legal obligation to follow the advice of the Office of Reconsideration.)

Like CSIS, Transport Canada will not talk about Telbani, citing both the Privacy Act and the court cases. When asked whether the entire list has been reviewed for accuracy, as per the advisers’ recommendation, the department issued this statement: “The Passenger Protect Program provides for a regular review of the list that includes the authority to add and remove people based on the very best evidence available.”

As for Telbani himself, he remains a bit of an enigma. His cellphone number has changed, and Doyon declined several interview requests from Maclean’s. It is obvious, though, that the case and the ensuing publicity have taken a toll on Canada’s only known member of the no-fly club. He claims in court documents to have lost his residency status in Saudi Arabia, and his academic life has suffered, too. According to one of his former university advisers, Telbani was too distracted to finish his master’s thesis in applied science. “He was bothered by the case,” says Benjamin Fung, a professor at Concordia. “He didn’t have to tell me. Usually if I assign a task to a student he can finish it in a period of time. He kept not being able to do that.”

For now, at least, the same goes for stepping foot on an airplane.