File No.: MA7-03208
IMMIGRATION AND REFUGEE BOARD
Refugee Protection Division
CARL MALASKIEWICZ BLAISE
Applicant
v.
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
WRITTEN OBSERVATIONS
__________________________________________________________
TO THE HONORABLE MEMBER OF THE IMMIGRATION AND REFUGEE BOARD SITTING IN THE CONVENTION REFUGEE DETERMINATION DIVISION:
1. We have the mandate to represent Mr. Malaskiewicz in his request for refugee status because of the persecution that he suffered in the United States following his expression of his political opinions that are related to his religious beliefs. He has criticized President Bush and the Bush family on the Internet and in drawings that he made, which has resulted in a judicial travesty before the federal justice system of the United States.
2. We were given until the end of the month of February to submit our observations, but we were out of the country almost that entire month so we requested a further delay in order to submit these observations. We thank the tribunal for according this delay. We believe that it is clear that Section F should not apply to Mr. Malaskiewicz because his crime was a political crime and he is a victim of arbitrary procedures in the United States.
3. We believe that it is quite clear that Mr. Malaskiewicz is a victim of political targeting based on his caricatures and other written statements about the Bush family and about the current president of the United States, George W. Bush. He is a victim of the federal Justice Department in the United States, which has become completely politicized and partisan under the current president.
4. The crime that he is accused of committing would never be considered a crime in Canada or in any other democratic country that allows freedom of expression, he has been condemned for supposed threats to the president which are obviously ridiculous. This accusation is one that would be thrown out of court in any country with a Bill of Rights or a Charter of Rights and Freedoms such as that which we have in Canada. It is absolutely clear based on the testimony and based on a quick look at the caricatures which were done by the applicant that the supposed crime is based on an expression of political opinion and that this is entirely political.
5. We admit that Mr. Malaskiewicz was found guilty by a Federal Court after a plea bargaining in which he was cheated shortly after September 11, 2001. We admit that he did a fair length of time in a federal prison in the U.S. We believe that this is quite clearly political persecution based on his ideas and that there is no way on earth that one could say that he is guilty of a serious non-political crime.
6. Mr. Malaskiewicz is a victim of political prosecution, which the Bush Justice Department has done on numerous occasions. He is a victim of the misuse of psychiatry, as was done in the former Soviet Union. He was drugged for a long period in detention and he has some fairly serious sequels to this. He is also a victim of a Justice Department that no longer believes in the basic principles of the American justice system. He believes that he would be subjected to the same type of persecution and wrongful prosecution if he goes back to the U.S.
(i) the facts
7. Mr. Malaskiewicz was born in the state of Florida and though his parents are now divorced, they both still live in Florida. His mother is in the Palm Beach area where Mr. Malaskiewicz spent most of the last few years before being detained and his father is also in Florida but not in much contact with his son. He also has an aunt in the Virginia area whom he has also lived with on more than one occasion.
8. Mr. Malaskiewicz worked in many different occupations, at Marine Computer Systems, as a taxi driver part time with County Cab and in many other things. He went to Community College in Florida, he also did three years at a pilot school. He appears to be someone who always worked and who did a fair amount of time studying at a collegial level, in technical and professional studies and in his pilot’s course.
9. In his last years in Florida, from the early nineties to the late nineties, he was living in the West Palm Beach area with his grandmother. His grandmother was fairly dependent on him, she had glaucoma and he had to provide her transport for shopping or for medical appointments.
10. Mr. Malasikiewicz also developed a strong interest in the Bible and in the study of the end times. He testified at some length about his knowledge of the Bible and his interest in escatological studies, the study of the end times. He believes that we are following the prophecies in the Bible in the Book of Revelations. He believes that the United States is behaving like the Beast of the Apocalypse and that we are living in very dangerous times.
11. Mr. Malaskiewicz also has fairly strong views about the Bush family and their role in American politics. He testified to having read a book about the role of Prescott Bush, the grandfather of the current president. (George Bush: The Unauthorized Biography by Webster G. Tarpley & Anton Chaitkin, http://www.tarpley.net/bushb.htm) The book explained the close links between the Bush family patriarch and the Nazis and explained about how he was one of the chief Nazi sympathizers and propagandists in the United States during the 1930s.
12. He also expressed strong views about the father of the current president and he spoke and took actions against the current president. Based on his Biblical views, he believes that President Bush is someone who is provoking the end times and who is spreading war and destruction in the world. He has expressed these views in caricatures and in written statements, which he has distributed in person and on the Internet. Mr. Malaskiewicz had created over 30 drawings and caricatures related to the Bush family between 1999 and 2001.
13. Mr. Malaskiewicz met Dawn XXXXXXX in February 1998 at a Lexy XXXXXXX’s house, in Boynton Beach, Florida. At the time Boynton Beach was a small town, so Ms. XXXXXXX had known of Mr. Malaskiewicz, but they did not meet or speak to each other prior to February 1998. Mr. Malaskiewicz befriended Ms XXXXXXX and started driving her around approximately in February of 1998. She is a young woman with drug and alcohol problems and several warrants for her arrest, particularly on charges of driving under the influence of alcohol. During the hearing, he gave a great deal of testimony about her criminal record which is confirmed by the extracts filed under P-24.
14. Mr. Malaskiewicz had many problems related to his relationship with Dawn XXXXXXX, which he explored at some length in his testimony. For our purposes, it is sufficient to say that they had some kind of a long-term relationship in 1998, which did not go very well. She lived with him at his grandmother’s in at least two periods in 1998. Some things were missing from the house and he and his grandmother believe that she took them to finance her drugs and her drinking.
15. In June 1998, she ¨borrowed¨ Mr. Malaskiewicz’s car against his will in order to visit a friend in Jacksonville, 280 miles away. He had to take a Greyhound bus there to go and get his car. This was extremely inconvenient and the beginning of a series of problems with Dawn XXXXXXX.
16. He got a phone call from Dawn XXXXXXX in jail a few weeks later, she was again accused of drunk driving. He helped her off and on for the next few months. His boss at County Cab, Ken Zurk, went and picked her up in mid-September 1998. Mr. Malaskiewicz drove her to Jacksonville again at the end of September 1998. A few days later he went to pick her up and she punched him in front of Mr. Malaskiewicz ’s friends.
17. Around this time, Mr. Malaskiewicz and his grandmother started realizing that many things were missing around the house. They came to the conclusion that Dawn was stealing from them and they started asking her to pay them back.
18. Dawn’s brother attacked them at their house in mid-October, Mr. Malaskiewicz produced a police report about this incident. There were numerous other problems with Dawn before the end of the year. She would constantly promise to pay her debts, but she would never come through. She eventually lost her driver’s license for a period of 10 years.
19. In a five-day period in late December 1998, from December 23 to December 28 according to the criminal indictment in Florida, Mr. Malaskiewicz made a series of seemingly obscene and harassing phone calls to Dawn XXXXXXX. He was upset because of her lies, the robbery at the house, he said that he felt betrayed. He then left for the state of Virginia where he stayed with his aunt.
20. He was subsequently arrested on an extradition warrant from Florida in January 1999 and was release about a week later. After being released, he was re-arrested on another extradition warrant from Florida, around February 14 or 15, 1999, at that time he spent over six months in jail. During that time he was able to invoke the 180-day rule of the Interstate Agreement on Detainers Act, which he explained in some detail. This law gave the authorities 180 days to extradite and bring to trial. During this time in jail, Mr. Malaskiewicz also sent letters to Governor Jeb Bush of Florida and to Attorney-General Butterworth of Florida. After the 180 days past the court ordered Mr. Malaskiewicz to be released. Mr. Malaskiewicz testified that he was arrested a third time around September 21st, 1999. During his 3rd detention, he spent one week in jail awaiting extradition, which was waived. After seven days, Florida authorities did not appear to extradite Mr. Malaskiewicz. On Sept . 28, 1999, the judge granted a two day extension to the Florida authorities. Two days later, Mr. Malaskiewicz was ordered released once again because the Florida authorities fail to extradite. (see P-76 and P-16 Release Order dated Sept. 30, 1999.)
21. It was during this time in early 1999, at both his Aunt’s residence and while in detention, that Mr. Malaskiewicz started making caricatures and drawings with a political statement. He made several about George W. Bush and his professed Christianity. Mr. Malaskiewicz says he was mocking Bush as a Nazi, making a point about how Bush treated Karla Faye Tucker, the woman prisoner who was executed in Texas. In 1999, George W. Bush was quoted in Talk Magazine, making mocking gestures regarding Karla Faye Tucker and her plea for mercy to, then Governor Bush. Mr. Malaskiewicz generally condemned the power of the Bush family.
22. In January of 2000 Mr. Malaskiewicz was arrested again for the same Florida accusations. Mr. Malaskiewicz was held until May 25th, 2000 awaiting a Governor’s Warrant. On this occasion, at the the fourth attempt at extradition, Mr. Malaskiewicz contested the arrest as well as the charges in Florida. On May 25th 2000 the court in Alexandria, Virginia ordered the release of Mr. Malaskiewicz, the court had also ordered that all charges were to be dismissed. Florida had failed to obtain a Governors warrant within the time allowed by the courts. Mr. Malaskiewicz was finally freed from these charges, the commissioner has the original of the decision freeing him of all state charges.
23. The letters and caricatures by Mr. Malaskiewicz caused some interest at the jail. He made several cartoons mocking Bush as a Nazi. He would pass out these cartoons when he was not in jail, he also made comments about Bush in an AOL chatroom. He put some of the caricatures on his AOL page.
24. After starting to circulate these caricatures, Mr. Malaskiewicz received his first visit from the Secret Service some time during his second detention at the County Detention Centre in Arlington. They questioned him about Clinton and Bush and his cartoons. The visit only lasted for an hour or so and they asked questions about the flyers on Bush..
25. His second visit from the Secret Service took place around December 1999. He was again questioned about his drawings and what he wanted to do with them. By that time, he had sent two letters to Governor Bush of Florida and in 2002 he sent another three or four letters. The Secret Service was very aware of what he was writing.
26. After he was freed on the state charges in May 2000, the Secret Service came on the same day to arrest him for threats to the president. One of the agents who came was named Brian Sindoni, because he saw this person on several occasions. He does not believe that he has ever threatened the president. When you look at the caricatures that he filed under exhibits P-15 and P-16, it is quite clear that these could never be called threats under Canadian law. It appears that he was accused because of his overt expression of strong opinions about George Bush, the current president of the United States.
27. The Secret Service sent their own psychiatrist, Dr. Philips, to interview Mr. Malaskiewicz in August 2000 and this psychiatrist came to all sorts of strange conclusions with very little relationship to the facts. This was following a motion for a mental health examination where outrageous allegations were made to justify the examination. It is important to underline that Mr. Malaskiewicz was not aware of the full extent of the lies being told about him until after his plea bargain of September 2001.
28. The psychiatric report was produced before the US. District Court on August 17, 2000. After this was filed before the Court, Mr. Malaskiewicz was sent to the Butner Medical Facility in North Carolina because there was now a serious question about his competence to stand trial. He was there from September 2000 to July 2001. He was given many different drugs to take. He still has serious sequels from these drugs following the misdiagnosis that he received.
29. He was sent back into the normal prison system in July 2001 because they found that there wasn’t really anything wrong with him. A trial date was set for October 1, 2001. He believed that he had a good chance of being freed because he does not believe that he threatened anyone.
30. Unfortunately, the attack on the World Trade Center on September 11, 2001 changed his life drastically. There was a lockdown for two days. Afterwards a lot of special security measures started being taken at the detention center. His lawyer advised him to look for a plea bargain because he did not believe that he would get a fair trial in the hysteria that took place after September 11.
31. At that time, Mr. Malaskiewicz was detained in a Special Housing Unit with people thought to be dangerous terrorists. Other people accused of spying, including former FBI agent/Russian spy Robert Hanssen, was also detained there. Mr. Zacharias Moussaoui, the famous 20th hijacker, and also accused American Taliban, John Walker Lindh was also housed there.
32. A plea bargain agreement was signed on September 26, 2001. Supposedly, this was to result in Mr. Malaskiewicz’s being freed. At that time, the Florida charges were revived as federal charges even though the case was already finished in the state court. This is completely illegal and clearly the result of some kind of illicit conspiracy.
33. After the plea agreement was signed, a pre-sentencing report was prepared. This pre-sentencing report, which was used for his extremely heavy sentence, contains a great number of inaccuracies. He has testified about this at some length during the hearing and we will deal with it further on in our submission.
34. In December 2001, he was sentenced to prison for 60 months on the charges related to criminal harassment in Florida and to 12 months on the charges of threatening a person protected by the Secret Service. This was an outlandishly exaggerated sentence that was based on a psychiatric report that was filled with lies and inaccuracies and a pre-sentencing report that was also based on significant errors and fabrications about his previous record. He tried often to have the sentence be reviewed or to appeal his sentence, but he was not successful.
35. It is also important to underline that at the time of the original federal charges in May or June 2000, the Secret Service raided his aunt’s home after producing an affidavit that also had false information in it. It is quite difficult not to understand the accusations he received as persecution for his religious and political beliefs, it certainly would be impossible in Canada to be convicted on such flimsy evidence.
(ii) the minister’s arguments
36. We were only able to read the minister’s arguments after our return from vacation on February 22. As far as we can tell, the minister has not really considered whether the federal criminal accusations against Mr. Malaskiewicz are based on a persecutory intent because of his religious or political beliefs, they appear to accept at face value the representations made by the persecutory state.
37. We are prepared to acknowledge that the facts in paragraphs 1 to 16 are true, but that in reality Mr. Malaskiewicz has not committed any crime known to Canadian law. Any criminal accusation against him do not respect either the U.S. bill of Rights or the Canadian Charter of Rights and Freedoms which guarantees freedom of expression. He is a victim of post-September 11 hysteria in the United States, he is clearly not a criminal.
38. Paragraph 14 of the minister’s allegations is blatantly false. Mr. Malaskiewicz has filed a copy of the original Florida police report as Exhibit P-1, the warrant of Arrest for extradition as Exhibit P-3 and a letter from the Florida court as Exhibit P-8. He explained at length how he was freed on the Florida charges and we have the confirmation in the exhibit in the Board member’s file. He explained the mistake in dates on the federal charges, it is quite clear on the face of the record. He appears to have done his time according to his explanation.
39. Paragraph 16 of the minister’s allegations is also blatantly false. There is a great deal of evidence of the judicial ordeal being orchestrated by the Secret Service or by the federal Justice Department in the United States. On what basis can the federal justice department re-file federal accusations, as is done with Exhibit P-9, for charges that have already been disposed of in the state court. The original accusations were based on phone calls made in Florida, there were no other phone calls – the case is all a setup by the authorities. There is no basis for federal jurisdiction and for federal criminal accusations in the facts of the case in Florida.
40. Both the American constitution and our Canadian Charter of Rights and Freedoms prohibit in very express language double jeopardy. There is no legal basis for the federal charges based on criminal harassment of Dawn XXXXXXX. Such a terrible abuse of process cannot be considered to be serious criminality within the framework of Section F. Serious criminality is generally thought to be crimes of violence or something in the nature or organized criminality.
41. When we consider the caricatures that were filed as Exhibits P-15 and P-16, it is clear that this could not be a crime in Canada. There is no serious rational basis for the criminal conviction on the basis of these drawings. There is a clear intent to criminalize the free expression of opinion which is not really acceptable in a democratic state such as Canada.
42. The minister clearly has failed to appreciate the nature of freedom of expression and seems to be supporting the abuse of the justice system suffered by Mr. Malaskiewicz. The same false criminal cases that have put Mr. Malaskiewicz in prison are cited to prevent him from getting a fair hearing of his refugee claim in Canada.
(iii) this is clearly a political case
43. The basis for the charges against Mr. Malaskiewicz related to “threats against the president and threats against persons protected by the Secret Service” whole reposes upon the applicant’s expression of his political opinions in caricatures, cartoons and written expression both in tracts and on the Internet. This can be seen by the drawings submitted as part of Exhibits P-15 and P-16. It can also be seen by the government’s exhibit list, which was filed for the trial, which was supposed to take place on October 1, 2001.
44. The case was based on letters sent by Malaskiewicz to President Bush, letters sent to his aunt and cartoons seized from his cell at the Alexandria Detention Center in Alexandria. All of this is related to his expression of his political opinions, which is generally considered to be protected expression in our country and also in the United States.
45. The same type of accusation in France of “offense à un chef d’état” was found to be unacceptable in light of the European Convention of Human Rights in a famous judgement rendered in April 2001 that we are submitting with these arguments. This type of vague accusation based on an expression of opinion was found to be incompatible with the guarantee of freedom of expression.
46. Criminal accusations against a young Canadian named Patrick Fenton were found to be unwarranted in a similar case that was reported in the Calgary Herald on August 9, 2007. This shows the way we would treat such expression in Canada:
Writing nasty commentary on an Internet blog about Prime Minister Stephen Harper -- including a desire to see him dead -- was offensive, but not criminal, a judge said Wednesday after acquitting a Canmore man of uttering threats.
47. There have been any number of judgements on this type of question, freedom of expression is thought to be a fundamental value in our society and in most democratic societies. The new McCarthyism that has taken hold in the United States in the context of the poorly named “War on Terror” is not generally acceptable to most democratic societies and the exaggerated criminal charges currently being laid in the U.S. in this context do not respect our legal traditions.
48. There is a great deal of jurisprudential authority for the idea that “serious non-political crimes” really refers to criminal activity that is more than shoplifting or simple harassment without violence. We would cite the following cases, which are in the book by Pia Zembelli about the Refugee Convention, but there are numerous other cases:
Brezinski v. M.C.I. (1998), 148 F.T.R. 296 (F.C.T.D.)
Aguirre-Aguirre v. I.N.S., 121 F.3d 521 (9th Cir., 1997)
49. The second case concerning criminal harassment of Dawn XXXXXXX appears to have been laid illegally after all charges were dismissed in Virginia because of the absence of a governor’s warrant. The case was used to make Mr. Malaskiewicz look like a dangerous person and the facts were greatly exaggerated in order to make it into a federal offence. The most rational reason for this case, which was laid well after the arrest of the subject by federal agents, was to increase the sentence because of the persecutory intent of the authorities
(iv) the objective situation in the United States
50. There is clearly an objective situation in the United States where the federal Justice Department is subject to political manipulation in order to punish the perceived enemies of the Bush administration. The current administration in the United States has abandoned the basic precepts of international law in their treatment of foreign detainees as can be seen in Guantanamo and they have set up fake tribunals to judge the people who have been detained illegally.
51. We would like to ask for the permission to submit a further list of exhibits on the problems with the respect of rule of law in the United States under the Bush administration. All of these articles, from some of the foremost magazines in the United States, show the politicization of the federal justice department and a consistent pattern of abuses that are taking place in the context of the War against Terror.
52. The article submitted as P-25, VOTE MACHINE: How Republicans hacked the Justice Department, by Scott Horton, Harpers Magazine, March 2008, shows very clearly to what extent the Bush presidency has used the Justice Department to persecute their political enemies. The Justice Department no longer works for the rule of law but rather for the rule of George Bush. There is great anguish in the United States about the sacrifice of their longstanding criminal justice system to political manipulation and abuse.
53. The other articles are as follows:
P-26 ¨Whistle-Blowing: My Story,¨ by Jesselyn Raddack, The Nation, July 4, 2005
P-27 A Trial for Thousands Denied Trial, by Naomi Klein, The Nation, March 12, 2007
P-28 Experts in Terror, by Petra Bartosiewicz, The Nation, February 4, 2008
P-29 Rigged Trials at GITMO, by Ross Tuttle, The Nation, March 10, 2008
P-30 Department of Pre-Crime, by Eric Umansky, Mother Jones, March 2008
54. The first of these articles gives a lot of details about the level of abuse and the misuse of the justice system for political persecution. The second article is about the trial of Padilla, whose case is also the subject of a Supreme Court judgment in the U.S., and the abuses against the poor man. He is an American citizen who has been subjected to terrible abuses that are equivalent to torture.
55. The following article, Experts in Terror, is about the misuse of so-called experts to condemn innocent people because of the nature of their beliefs. It is clear that there are serious abuses of the American justice system that are taking place in a fairly systematic fashion. We would like this to be kept in mind when we look at the terrible lies and fabrications in the psychiatric report about Malaskiewicz by Dr. Philips of the Secret Service and the pre-sentencing report that includes wild fabrications about events in Florida. This situation of abuse is very well documented and it is raising serious problems for other countries that deal with the U.S., such as Canada in the case of Maher Arar.
56. The two last articles are about the abandonment of rule of law in the context of the war against terror, one telling about the farcical nature of the justice that is being administered in Guantanamo before the military tribunals and the other about the terrible abuses taking place in the criminal law context against American citizens who express their political beliefs. Mr. Malaskiewicz is a victim of the Department of Pre-Crime, which is referred to in the Mother Jones article in question.
57. I don’t think that there can be much doubt that Mr. Malaskiewicz is a victim of this climate of intolerance and persecution encouraged by the current president of the United States. He had been freed on his original criminal charges from Florida, which were not terribly serious charges. He was waiting for his release after months of detention when he was accused of threatening the president on extremely weak grounds. He was turned into a full-scale terrorist and treated like one only in the hysteria following September 11, 2001. The problem now is that the system of intolerance and persecution favoured by President Bush now has him in their sights.
(v) a well-founded fear of persecution
58. Mr. Malaskiewicz has suffered long term arbitrary detention since his arrest by federal agents in May 2000. He has been subjected to excessive medication for non-existent psychological conditions during his period in the Butner facility from September 2000 to July 2001. He is still targeted as someone with a psychiatric problem after release because the system does not want to accept his opinions of George Bush as rational even though they are shared by tens of millions of other American citizens.
59. The applicant has been freed since 2005, but he has been subjected to constant harassment by “men in suits”, who have been questioning people about him and following up on his movements. He has been accused of parole violations which appear to be quite superfluous, being mainly based on his travels and the fact that he visited his aunt’s place to pick up his stuff. He testified that he had “been through hell.”
60. We also submitted evidence from his grandmother and his former employer as well as a school that he went to show how the psychiatric report and the pre-sentencing report were unfounded with regards to all of the events in Florida. Mr. Malaskiewicz himself tried to appeal his conviction and his sentence because of the abuses that took place, but no one will consider his situation. He has boxes of documents that show that the charges against him are not well founded and showing the abuses that took place against him at the initiative of the Secret Service.
61. There is a strong possibility, if not a strong probability, that Mr. Malaskiewicz will be subject to further persecution if he returns to the U.S. He is someone who has been targeted as a vocal critic of President Bush who is prepared to campaign against the terrible damage that Bush has done to American society. The people who are trying to improve their career chances by destroying innocent lives are still in positions of power and they can get away with pretty well whatever they want.
62. Any continuing criminal charge against Mr. Malaskiewicz must be seen in this context of abuse of process. He is clearly suffering from a system of political persecution and control that he cannot defend himself against. We ask that Canada give him the protection of this country.
63. We believe that it is in the interests of justice that this request be granted and that the applicant be allowed to stay in Canada and to live a normal life without fear of the knock in the night of the federal agents. He has suffered terribly for almost ten years and it is not right that he continue to be detained in Canada.
CONSEQUENTLY, THE APPLICANT REQUESTS THAT THE IMMIGRATION AND REFUGEE BOARD:
GRANT Refugee status to Mr. Malaskiewicz
Montréal, March 11, 2008
___________________________
Stewart Istvanffy
Attorney
Montreal, Quebec
H2Z 1P5
(portions of the document have been edited for accuracy and clarity since March 11, 2008)