A federal lawyer yesterday accused Mohamed Harkat's counsel of relying on "the conjecture of journalists" to assert that a key informant in the national security case was tortured while in U.S. custody.

James Mathieson told Federal Court there's no evidence Abu Zubaydah, a top al-Qaeda lieutenant, has been tortured.

According to a Canadian Security Intelligence brief, Mr. Zubaydah has identified Mr. Harkat as an al-Qaeda member who operated a guesthouse in Peshawar, Pakistan, for jihadis travelling to Chechnya in the early 1990s. Pakistan handed Mr. Zubaydah to U.S. officials after a March 2002 raid during which he was shot in the leg and groin.

The New York Times and Washington Post have reported, based on unidentified government sources, that the CIA selectively denied him painkillers to gain his co-operation.

Mr. Mathieson suggested the assertions of journalists and "biased" human rights lawyers do not amount to proof in a courtroom.

"If this were Starbucks," he told Justice Eleanor Dawson, "and you ordered a latte, it would be all froth and no caffeine. There is nothing there."

Mr. Harkat's lawyer, Paul Copeland, however, told Judge Dawson it's unreasonable to expect him to prove beyond a reasonable doubt that Mr. Zubaydah was tortured since U.S. authorities will not even reveal where he's being held.

In a report released earlier this year, Human Rights Watch characterized Mr. Zubaydah and nine other al-Qaeda prisoners as "ghost detainees," men held by the U.S. in undisclosed locations without access to their families, lawyers or the International Red Cross.

Mr. Copeland said he has presented the court with the best information available about the treatment of Mr. Zubaydah. "But there's a deafening silence from the CIA and from CSIS on this subject," he charged.

Only those agencies can put questions to Mr. Zubaydah about his treatment, he said, but they have shown no inclination. "It is a position of hear no evil, see no evil, speak no evil," he said.

Mr. Copeland urged Judge Dawson not to allow the wall of silence that surrounds Mr. Zubaydah's treatment to shield the "tainted" evidence he supplied against Mr. Harkat.

That evidence, he said, should be ruled inadmissible because it was obtained under torture. The UN Convention Against Torture, which Canada has signed, prohibits courts from using such evidence, he noted. To accept the evidence because there's no iron-clad proof Mr. Zubaydah was tortured, he said, would offer a tacit endorsement of the illegal methods employed by U.S. authorities and their proxies.

"It is not in accordance with Canadian law, it is not in accordance with human rights law, it is not in accordance with human decency," he charged.

CSIS alleges Mr. Harkat travelled to Afghanistan in the early 1990s and developed an association with Mr. Zubaydah, once third on the U.S. list of most wanted al-Qaeda suspects, behind Osama bin Laden and Ayman al-Zawahri.

CSIS claims Mr. Zubaydah has identified Mr. Harkat "by description and activity."

The spy agency has not disclosed anything else about the circumstances of the interview with Mr. Zubaydah.

Mr. Harkat, 36, of Ottawa, has denied any connection to Mr. Zubaydah or al-Qaeda.

He has been held in custody for two years on the strength of a security certificate signed by two cabinet ministers, who were convinced by CSIS that Mr. Harkat was a threat to national security.

Judge Dawson must decide if the ministers made a reasonable decision.

If she upholds the certificate, Mr. Harkat can be deported to his native Algeria where he fears he will be tortured or killed.

The national security case continues today with final arguments by Mr. Mathieson and Mr. Copeland.

© The Ottawa Citizen 2004