American Matt DeHart, former Anon, former US soldier, former refugee claimant, is facing a new and very involuntary life back in The Land of the Free, having been denied refugee status in Canada, the country to which he fled after what he says was torture at the hands of FBI interrogators. Hoping for a new life studying welding in the picturesque province of Prince Edward Island, he has instead spent most of his time in Canada inside a succession of holding cells, prisons, and, for a time, a room in a college dormitory, albeit one to which he was confined by court order. He celebrated his 30th birthday behind bars.
At no time has he faced criminal charges in Canada.
In the US he’s wanted for questioning and for bail-jumping. Officially, the warrant is for child pornography charges; DeHart, his family, and supporters say that this is really about a mysterious file uploaded years ago to a server that Matt was running. That file, uploaded by a third party, may or may not have been destined for WikiLeaks. The FBI, DeHart’s supporters say, wants that file, and they want the two encrypted USB sticks he handed over to the Canadians, and they want to make an example of him. They also claim that the child porn charges are both a smear and a hook, an absolutely unfounded lie designed to draw DeHart away from the protection of Canada, a country historically welcoming to Americans fleeing persecution from their own country.
If it is a lie and a smear and a hook, it is certainly an effective one, for DeHart is on his way back to the US.
The Cryptosphere spoke to DeHart’s American lawyer, Tor Ekeland, and to FBI whistleblower (as well as Edward Snowden’s lawyer) Jesselyn Radack, to get a better understanding of why DeHart’s claim was rejected and what kind of future he and his family (who have also received notice to leave) face back in the United States.
“It’s not unexpected,” Ekeland told us via Skype. “I think he got a fair hearing. The Immigration and Refugee Board is an independent, fair tribunal.” There was an anomaly in this case, however. Ekeland spoke to one of DeHart’s Canadian lawyers, who told him that while she was expecting to face a regular Crown Prosecutor (ie government lawyer) the government had a quite different game plan in mind, one that indicates just how important they felt DeHart’s case was. “She shows up to one of these hearings and she’s like ‘Why is the Canadian government’s top national security lawyer here?’ They brought out their big guns. If it wasn’t for all this national security stuff it’d be kind of like a routine hearing, buuuuuuut…” He leaves the rest unsaid.
But despite the ruling effectively tossing his client into the welcoming arms of the Federal Bureau of Investigations, it’s not all bad news. “They actually threw us a bone. The judge went through the government’s case, everything in the record that he could get ahold of and that the Canadian government submitted to him. And he says ‘Listen, I don’t buy the child pornography stuff,’ basically. Which is really interesting because the burden of proof that the Canadian Government had to meet to meet the standard of excluding him based on the probability that he committed a serious crime was really NULL. It’s a fairly low, normal standard of proof to meet [and the judge said they didn’t]. So I feel like he was [also saying] ‘Nothing I’ve seen shows me that he won’t get a fair shake down in the United States’.”
That’s the silver lining?
“The silver lining in that is now you’re not just hearing it from Matt, or his family, or me, his lawyer. We’re self-interested parties saying the child pornography charges are highly dubious. Now you’ve got this independent tribunal in Canada saying ‘Yeah, this is really weird. I don’t buy it. And it’s not a reason to keep him out of the country’.”
“So they essentially ruled that he COULD come into the country but they weren’t going to keep him in because the United States is a functioning democracy with an independent judiciary. Fair enough. It was a well-written decision by the judge.”
Jesselyn Radack elaborates on the child pornography allegations, “Three judges have now openly expressed skepticism about the government’s case against Matt DeHart. I have represented other Espionage Act targets and defendants where the government initially tried to go after them on trumped-up child pornography charges, which are so incendiary that, even if untrue, they permanently taint the reputation of the accused. In theory the U.S. is a democratic country with a system of checks and balances. However, after 9/11, the Legislative Branch (Congress) has functioned as basically a rubber-stamp of whatever the Executive Branch wants to do when it comes to national security and intelligence. The Judicial Branch has shut the door on the most controversial national security cases—the ones involving torture and secret surveillance, by claiming the ‘State Secrets’ privilege or saying the plaintiff doesn’t have standing. And the ‘Fourth Branch’—the media—has been far too subservient to the government it is supposed to hold to account—e.g., lying us into war with Iraq.”
“Things are bleak in the U.S. for national security and intelligence whistleblowers, but like my other clients Edward Snowden, Thomas Drake, and John Kiriakou, Matt DeHart has the truth on his side,” she adds.
The next step, now that DeHart has received notice to leave, is the handover. Because he is actually being deported rather than simply released, he will remain in custody until he leaves Canadian territory, and there is zero chance that the Americans won’t have a delegation of law enforcement at the designated border crossing to receive him. “They’re deporting him,” explains Ekeland. “He’s not being extradited. Basically they take him to Niagara Falls or wherever and hand him over at the border to US law enforcement, because he has a warrant out on him. We hope they’ll hand him over to US marshals and not FBI agents. I don’t want him to go through what he went through before.”
The reason DeHart is behind bars now instead of living with his parents under house arrest is somewhat farcical. It goes back almost exactly one year, and speaks eloquently of the Canadian bureaucratic propensity towards dotted i’s and crossed t’s. Essentially, he is in a supermax prison now because the office that was responsible for his supervision was closed on Good Friday.
“He was out on a performance bond. His parents put up $10,000. They were staying in a college dorm room in a college outside Toronto. On the Thursday before Good Friday they get notice from the college that they had to change rooms because students were coming in and had already been given that room. They were told to move upstairs. On Good Friday, the authority to which they had to report the move was closed. They sent them an email notification, so the agency got actual notice. You’re supposed to physically appear [for this notification] but the office wasn’t open, they were just moving upstairs, still at the same address.”
The actual move was videorecorded for good measure and documentation, not that it did any good. “So we get all of this done and BANG, they arrest Matt for violating the terms of his release, and a bunch of cops show up and basically that’s the reason he’s in custody. And they gave notice to the government. They just didn’t give it in person.” His parents lost the $10,000.
That’s the entire premise on which he’s in a supermax prison right now?
Deportation is a problem for the entire family: his parents have also received their “walking papers” from the Canadian government, as their stay in the country was predicated on helping their son achieve refugee status. The minute that status was declined, the countdown to repatriation began for all of the DeHarts. Since they sold their family homestead to pay legal fees (Ekeland is working basically pro bono, but the case has required multiple lawyers in each of two countries, and employment has been sketchy for the formerly upper middle class DeHarts), there is nowhere specific to which they can return.
The plainspoken attorney puts it somewhat differently.
“It’s such a fucking mess.”
Matt DeHart’s fundraiser is hosted by the Canadian company Fundrazr, and stands at $1,418 to date.