Terror suspect Mohamed Harkat awaits crucial Supreme Court ruling

posted on May 13, 2014 | in Category Mohamed Harkat | PermaLink

by: Jim Bronskill (CP)
Source: CTV News Website
URL: [link]
Date: May 13, 2014

[PHOTO: Mohamed Harkat pauses during a press conference on Parliament Hill marking the 10th anniversary of his arrest and detention on a security certificate in Ottawa, Monday, Dec. 10, 2012. ]

OTTAWA -- The fate of terror suspect Mohamed Harkat -- and the controversial security certificate system being used to deport him -- will become clearer Wednesday when the Supreme Court of Canada issues a long-awaited ruling.

But the Ottawa man's case has taken so many twists and turns over the last dozen years that the end of the road may still be some way off.

The high court will rule on the constitutionality of the certificate regime, a rarely used means of removing non-citizens suspected of involvement in extremism or espionage.

It is also slated to decide crucial issues related to evidence in the certificate case of Harkat, an Algerian refugee accused of terrorist ties.

As a result, the ruling could have implications that reach far beyond the world of security certificates, said Norm Boxall, a lawyer for Harkat.

"There's a tremendous number of issues involved in the case," Boxall said Tuesday. "It's very complex."

Harkat, 45, was taken into custody in December 2002 on suspicion of being an al-Qaida sleeper agent.

The former gas station attendant and pizza delivery man lives quietly in the national capital with wife Sophie. Last year border agents removed an electronic tracking bracelet from his ankle. Harkat was also given more freedom to travel but he can't leave the country and must check in with authorities regularly.

The person named in a security certificate receives only a summary of the case against them, stripped of supporting details to protect sensitive intelligence sources and methods.

The federal government issued a revised certificate against Harkat in 2008 after the secretive process was struck down by the courts and subsequently overhauled to make it more fair.

The Supreme Court will decide Wednesday whether those reforms went far enough.

In revamping the system, the government introduced special advocates -- lawyers with access to secret material who serve as watchdogs and test federal evidence against the person singled out in the certificate.

Harkat's counsel argued during a Supreme Court hearing last year that the special advocates do not make up for weaknesses in the certificate process, noting these lawyers are greatly restricted in what they can say about the case and cannot initiate their own investigations.

Federal lawyers told the high court the certificate process was fair, meeting the guarantee of fundamental justice under the Charter of Rights and Freedoms.

In April 2012, the Federal Court of Appeal upheld the constitutionality of the security certificate system, but ruled that summaries of some 1990s conversations be excluded from evidence against Harkat because the Canadian Security Intelligence Service destroyed the original recordings.

The appeal court also said that human sources recruited by CSIS do not have the sort of blanket protection that shields the identities of police informants, even from the judge. In the case of CSIS, the issue is instead decided on a case-by-case basis.

Neither side was pleased with the ruling, and each asked for a hearing in the Supreme Court.

One of three scenarios is likely:

The court upholds both the security certificate system and rules the certificate against Harkat reasonable, opening the door to the next step in deporting him.

The judges find the security certificate regime constitutional but rule that the case against Harkat must be re-examined or even tossed out.

The court rules the security certificate system unconstitutional, making the certificate against Harkat invalid as well.

Two other men -- Mahmoud Jaballah and Mohamed Mahjoub, both originally from Egypt -- could face removal from Canada in long-running certificate cases.

© 2014 Bell Media All rights reserved.

D-day for Harkat as Supreme Court rules on security certificates

posted on May 12, 2014 | in Category Mohamed Harkat | PermaLink

by Kelly Roche
Source: The Ottawa Citizen
URL: [link]
Date: May 12, 2014

The fate of alleged al-Qaida sleeper agent Mohamed Harkat will be decided by the Supreme Court of Canada on Wednesday following a 12-year legal battle.

“This day’s going to change our lives, so it’s do-or-die,” said his wife, Sophie Harkat.

A former pizza delivery man, Harkat, 45, has been contesting the federal government – maintaining innocence – after being arrested outside his Ottawa home in 2002 on a national security certificate.

He’s accused of running a safe house in Pakistan when he was 19, and communicating with senior al-Qaida members.

The issue at hand in this ruling is whether security certificates, which allow non-citizens deemed security threats to be detained and deported without seeing all evidence against them, are constitutional.

Public and private hearings, excluding Harkat and his lawyers, took place last October.

If the Supreme Court decides in Harkat’s favour, “he would be a free man,” said Norm Boxall, one of Harkat’s lawyers.

“Mixed success” means there could be a new hearing, Boxall continued, while a government victory would move the process to a pre-removal risk assessment, with Harkat facing deportation to Algeria.

Harkat has said he will be tortured or killed if sent back.

Appeals have been filed by the feds and Harkat’s legal team regarding constitutionality in this case.

In 2007, the Supreme Court ruled the security certificate unconstitutional because it relied on secret evidence, denying a right to a fair trial.

The feds introduced special advocates in 2008 — essentially lawyers with security clearance who could attend secret hearings and partially access secret evidence.

Harkat wants to see the proof and challenge its sources.

Other concerns with the Harkat file include determining if Canadian Security Intelligence Service informants have the same protection privilege as police sources, Boxall said, as well as the destruction of evidence.

“I think it’s pretty important to note that Mr. Harkat has been in the country since 1995. He never committed a criminal offence,” said Boxall.

Harkat spent nearly four years behind bars after his arrest.

“We think the security certificate process, as it exists, violates international human rights standards with respect to fair trials, and it needs to be struck. It needs to be overturned,” said Amnesty International Canada Secretary General Alex Neve.

Sophie Harkat said family and close supporters will be in court for the decision.

Copyright © 2014 All rights reserved The Ottawa Sun is a member of Canoe Sun Media Urban Newspapers.

TRAILER: The Secret Trial 5

posted on May 06, 2014 | in Category Security Certificates | PermaLink

The documentary The Secret Trial Five, long in the making, has now been released. It screened recently at the Toronto HotDocs Documentary Film Festival and was well received there. HotDocs audiences voted it 8th best out of a total 200 films that were shown during the 11-day festival.

Watch the trailer:

Ottawa lawyers Matt Webber and Robert Wadden named to bench

posted on April 08, 2014 | in Category Mohamed Harkat | PermaLink

by Andrew Duffy
Source: The Ottawa Citizen
URL: [link]
Date: April 8, 2014

Matt Webber

OTTAWA — A prominent Ottawa defence lawyer and motorcycle enthusiast, Matt Webber, has been appointed to the bench of the Ontario Court of Justice.

Webber’s judicial appointment, which is to be made official this week, was welcomed Monday by the city’s legal community.

“He can think quickly and make sound decisions, which are great attributes for a trial lawyer — and also for a judge,” said defence lawyer Norm Boxall, past president of the Criminal Lawyers’ Association.

Boxall called Webber, his co-counsel on the Mohamed Harkat security certificate case, a hard-working, thoughtful lawyer.

“He understood that his role was to be an advocate for his clients and he advanced their positions fearlessly and forcefully,” he said.

Longtime Crown attorney Robert Wadden has also been appointed as a judge. Wadden, who has been working as a prosecutor since 1993, most recently served as coroner’s counsel in the inquiry that examined the death of high school student Eric Leighton. The 18-year-old Barrhaven student was killed when he cut into a sealed metal barrel in May 2011, igniting the explosive gases inside.

Webber’s decision to seek a judicial appointment caught many by surprise given his star status among the city’s defence bar.

Webber became a founding partner of Webber Schroeder Goldstein Abergel in 2004 and has since built a reputation as a gruff and effective defence counsel while helping to establish his firm as the largest criminal practice in the city.

Webber, who looks equal part biker and lawyer with shoulder-length hair and a full beard, has acted for a parade of high-profile clients, including Harkat, Father Joseph LeClair, and an Ottawa woman strip-searched in a police lock-up after being arrested for public drunkenness.

He has been counsel on two epic court cases. The Harkat case has been before the Federal Court since 2002 and has twice gone to the Supreme Court of Canada. Webber was also involved in a case that came to be known simply as “the Cumberland murders.” Webber’s client, Richard Trudel, spent 15 years in prison for the shotgun slaying of a Cumberland couple before Superior Court Judge Colin McKinnon freed him in January 2007, ruling that his conviction could not stand given long trial delays, lost evidence and unreliable testimony from Crown witnesses.

In an interview Monday, Mohamed Harkat said Webber became “like a family member” during the past decade. “I’m so attached to the guy. After 10 years, he’s not just a lawyer: If I want to cry, I cry on his shoulder.”

Harkat’s wife, Sophie, said Webber has guided them through a roller-coaster decade of court defeats and victories. “Matt has seen me at my worst: kicking, screaming, yelling. But I know he will make a terrific judge. He has given us 10 years and two Supreme Court challenges. We couldn’t ask for more.”

Webber, a graduate of Osgoode Hall law school, was called to the bar in 1992 and moved to Ottawa eight years later. He is an occasional member of the Illegals Motorcycle Club, a group of bike enthusiasts drawn from the ranks of Ontario lawyers.

© Copyright (c) The Ottawa Citizen

OPINION: Right to a Fair Trial is not just for Canadian Citizens

posted on October 23, 2013 | in Category Security Certificates | PermaLink

by Hayley Pitcher
Source: Pro Bono Students Canada / CCLA Rights Watch Blog
URL: [link]
Date: October 10, 2013

The opinions expressed here are those of the author's. They do not necessarily represent CCLA or PBSC policy. Please visit CCLA’s website, www.ccla.org, for official CCLA publications and policies.

Today, the SCC hears an important case regarding the constitutional rights of immigrants in Canada. Mohamed Harkat will challenge the constitutionality of security certificates. Harkat is an Algerian who came to Canada in 1997. He has been subject to a security certificate since 2002. He was detained until 2006 and has since been under strict bail conditions. While his conditions have relaxed over time, they have included: a GPS monitoring device, curfew, surveillance cameras at the front of his house, interception of mail and phone calls, and no internet access.

Security certificates allow the Canadian government, on the basis of secret evidence, to deport non-citizens who are deemed a security threat to Canada. The regime also allows for detention – with no statutory limitations on the length – so long as the detention is reasonable. Because it is not a criminal proceeding, the standard of proof is much lower than beyond a reasonable doubt. The standard applied is whether there are reasonable grounds to believe that the named person is a security threat.
Furthermore, the disclosure of secret evidence in the security certificate proceedings does not require the judge to balance the interests of the named person for disclosure against the interests of national security for non-disclosure, as is required in the Canada Evidence Act. In response to the Supreme Court of Canada’s first ruling on security certificates in 2007, the Canadian government introduced special advocates who are able to challenge the secret evidence. However, procedural safeguards for a fair trial are still not comparable to those given to Canadians in a criminal trial. Yet, both security certificate proceedings and criminal proceedings present the possibility of detention and, in the case of security proceedings, potentially indefinite detention.

The Supreme Court of Canada has previously held in Charkaoui that a deportation scheme will not be discriminatory so long as the detention is linked to the deportation. In cases where the named person faces the risk of torture upon return, deportation is no longer a viable option, and there are no statutory limits to the length of detention. Furthermore, according to the Centre for European Policy Studies Special Report on the Canadian Security Certificate Regime, the average time in custodial detention for those named on a security certificate in 2007 was almost six years (page 5). Immigrants facing allegations of being a threat to national security deserve comparable procedural safeguards to Canadians charged with terrorism activity. The current regime does not provide this and is discriminatory on this basis. Immigrants facing detention in Canada have a right to a fair trial.

The current regime cannot be justified. For one, it is unnecessary. The Canada Evidence Act addresses disclosure of secret evidence, and the Anti-Terrorism Act allows the government to charge individuals for terrorist activity. Even if the security regime is necessary as a tool to protect national security, the security certificate regime is ineffective because it assumes that a person who is a danger to Canada’s security ceases to become a risk once outside of Canada. When declaring the then UK system of detaining and deporting non-UK suspected terrorists, Lord Bingham wrote: [A]llowing a suspected international terrorist to leave our shores and depart to another country, perhaps a country as close as France, there to pursue his criminal designs, is hard to reconcile with a belief in his capacity to inflict serious injury to the people and interests of this country” (para 33). Finally, even if the regime is effective, then it is not appropriate to limit it to immigrants. Immigrants are no more inherently dangerous than citizens and, as such, if preventative detention effectively prevents terrorism, then Canadians should be subject to a similar regime.

Immigration proceedings that allow for indefinite detention cannot be shielded from section 15 scrutiny merely because the scheme also allows for deportation. There is no logical basis to conclude that immigrants suspected of terrorism are any more or less dangerous than suspected terrorists holding Canadian citizenship. Either those subject to security certificates must be afforded comparable procedural safeguards as a Canadian facing terrorism charges or Canadians must be subject to a similar preventative detention scheme. Until then, security certificates are discriminatory.

For more information on the Harkat hearing at the Supreme Court of Canada: http://www.scc-csc.gc.ca/case-dossier/info/sum-som-eng.aspx?cas=34884

The opinions expressed here are those of the author's. They do not necessarily represent CCLA or PBSC policy. Please visit CCLA’s website, www.ccla.org, for official CCLA publications and policies.

Harkat ‘optimistic’ of second appeal of security certificate at high court

posted on October 16, 2013 | in Category Security Certificates | PermaLink

by Joe Lofaro
Source: Metro News Ottawa
URL: [link]
Date: October 10, 2013

Mohamed Harkat speaks to reporters in the foyer of the Supreme Court of Canada on Oct. 10, 2013. Photo by Joe Lofaro.

An Algerian-born Ottawa man accused of being an Al Qaeda “sleeper cell” agent was at the Supreme Court of Canada Thursday as federal lawyers argued for the court to uphold laws that would deport terrorist suspects.

Mohamed Harkat, a former gas station attendant and pizza deliveryman, was arrested in 2002 under a security certificate. The tool gives Canada permission to deport foreigners without charging them on the basis of national security.

He was placed on house arrest after spending 43 months in prison. It was only this past July the Ottawa man was permitted to remove his GPS tracking bracelet from his ankle.

On Thursday he was appealing for the second time the constitutionality of the security certificate provisions in the Immigration and Refugee Protection Act.

“I hope for the best and I’m still optimistic what’s going on so far,” said Harkat in the court foyer during a break in the hearing.

In his argument to Canada’s highest court, federal lawyer Robert Frater called for government informants to be kept under a veil of secrecy, otherwise “the informants will close up like a clam.” Federal lawyer Urszula Kaczmarczyk also argued for those named in a security certificate to only receive a summary of the case against them, without divulging sensitive intelligence information.

But what defence counsel is left with is a summary of “bald” allegations, argued Harkat’s lawyer, Norm Boxall.

“You must have information and other evidence and it’s not just being told the allegation,” said Boxall. “For example, there’s an allegation that he went to Afghanistan. When? Where? How? Why?”

Matthew Webber, Harkat’s other lawyer, also asked for an exclusion of the original Canadian Security Intelligence Service (CSIS) wiretaps used in building a case against Harkat, which were destroyed in 2009. The destruction of that evidence is “prejudicial” to his client, said Webber.

Outside the courtroom the foyer was bustling with supporters who came to observe the rare proceeding. Harkat also had the support of his wife, Sophie, during the hearing.

“I’m hoping one day I’m going to clear my name,” Harkat told reporters. “I’m telling the Canadian people and the world I’m not part of bin Laden, what they’re saying. It will prove itself.”

The hearing will continue Friday behind closed doors.

Copyright 2001-2013, Free Daily News Group Inc.

Supreme Court urged to accept revamped national security certificate rules

posted on October 16, 2013 | in Category Mohamed Harkat | PermaLink

by Tonda MacCharles
Source: The Toronto Star
URL: [link]
Date: October 10, 2013

OTTAWA —As the Supreme Court of Canada prepared to take the rare step of going behind closed doors Friday to hear secret government evidence in an anti-terror case, it was warned secrecy is becoming the alarming trend in federal courts.

The Canadian public is unaware that secret evidence is being invoked in lot more than anti-terror cases, said lawyer Barbara Jackman of the Canadian Council for Refugees.

Jackman said while there have been some 30 security certificate proceedings in the past 22 years, there is a huge upswing in the use of secret evidence and closed-door proceedings in a range of other civil proceedings, notably immigration matters.

Jackman told the Supreme Court that since 2008 the Federal Court has conducted secret proceedings in more than 100 cases of judicial review of decisions such as sponsorship applications where the Ottawa cites national security as a reason to bar a public hearing. The number could not be confirmed immediately with federal court officials

“Secrecy is becoming the norm,” Jackman said, intervening in a crucial test case of the federal government’s power to deport non-citizens who are suspected of terrorist ties or spying.

The federal Conservative government is urging the Supreme Court of Canada to uphold the country’s second attempt at crafting special immigration warrants — known as security certificates — to deport terror suspects, and to go further: to grant a “class privilege” or blanket protection to the identity of secret informants.

Mohamed Harkat, an Algerian-born man suspected of running guest houses for training Chechen terrorists in Pakistan on behalf of Al Qaeda-affiliated groups, came to Canada in 1995, claiming refugee status.

Arrested in 2002 on suspicions he was a “sleeper agent,” Harkat has long denied the allegations against him and challenged the latest version of security certificates as unconstitutional.

The high court already struck down in 2007 the first security certificate regime as drafted under Liberal governments. The Conservative government re-tooled the law and modelled it on the British regime, which drew inspiration from Canada’s watchdog agency’s powers over CSIS.

It named “special advocates” — lawyers cleared by the Justice Department — to hear the secret government evidence in a closed courtroom along with the judge. But it does not allow those advocates to disclose the evidence or even talk to the defence without clearing it with the judge.

Intervening for the Canadian Bar Association, lawyer Lorne Waldman, who often acts as a top-secret-cleared special advocate, told the high court it’s a far from ideal system that does not adequately protect a suspect’s rights.

The appeal took a bizarre turn Thursday when federal lawyers argued most of the evidence justifying the deportation of Harkat is already public and known to Harkat.

Ottawa nevertheless wants the high court to affirm the rules that allow the person named in the security certificate to receive only a summary of the case against them without access to original material or supporting details to protect sensitive intelligence information. It says the special advocates provide enough protection to Harkat’s rights.

In fact, Ottawa wants the high court to back the regime and go further — to grant government informants a “class privilege” or blanket protection against revelation of their identity.

former gas station attendant and pizza delivery man, argues the regime remains a violation of Charter guarantees of due process and fundamental justice.

Federal lawyer Urszula Kaczmarczyk urged the judges not to decide whether the whole regime is unconstitutional based on Harkat’s challenge, because most of the evidence against him is already known.

Kaczmarczyk said Harkat, who came to Canada on a false passport claiming refugee status, has received summaries of 14 allegations against him, which amounted to enough information to allow him to defend himself.

Original CSIS tapes and notes about the wiretaps used against Harkat have been destroyed, but Federal Court trial Judge Simon Noel concluded the evidence supported the security certificate issued against him, and declared it “reasonable,” she said.

Noel dismissed Harkat’s story that denied any knowledge or involvement with terrorists training in Peshawar as “meticulously fabricated” but not at all credible.

Chief Justice Beverley McLachlin told Kaczmarczyk the constitutionality of the whole regime has been challenged and “you have to answer that or face the consequences.”

Harkat’s lawyer Norm Boxall said the new system “is better than nothing,” but it does not allow the defence to make any substantive challenge of the Crown’s case in the portion that is held in open courtrooms.

Justice department lawyer Robert Frater said the court should grant a blanket protection to informants, not decide on a case-by-case basis, because otherwise “the informants will close up like a clam.”

© Copyright Toronto Star Newspapers Ltd. 1996-2013

La cause de Harkat de retour en Cour suprême

posted on October 16, 2013 | in Category Mohamed Harkat | PermaLink

par Marc Godbout
Source: Radio-Canada
URL: [link]
Date 10 octobre 2013


La Cour suprême du Canada entend, jeudi et vendredi, la cause de Mohamed Harkat, cet Ottavien d'origine algérienne soupçonné d'activités terroristes par le gouvernement canadien.

Mohamed Harkat conteste la constitutionnalité du certificat de sécurité délivré contre lui et qui a permis aux autorités canadiennes de l'arrêter.

L'audition de la cause sera entourée de secret. Pour la première fois dans l'histoire du plus haut tribunal du pays, la journée d'audience de vendredi aura lieu à l'extérieur de l'édifice de la Cour suprême. Les juges seront retranchés dans un endroit tenu secret pour des raisons de sécurité nationale.

Une dizaine d'intervenants doivent défiler devant le tribunal, dont la directrice générale du Conseil canadien pour les réfugiés, Janet Dench.

« C'est une ironie, parce qu'on est en train de contester l'utilisation des preuves secrètes pour décider du sort d'un non-citoyen et là, on va également utiliser des audiences secrètes », souligne Mme Dench.

Mohamed Harkat réclame l'abolition du certificat de sécurité parce qu'il repose sur des documents secrets qui ont été détruits. Des groupes qui l'appuient estiment que cette procédure va à l'encontre des droits fondamentaux de Mohamed Harkat.

Au cours de l'audition, les avocats spéciaux nommés par le gouvernement et chargés de défendre les intérêts de Harkat viendront dire au tribunal qu'ils ne peuvent pas faire leur travail.

De son côté, le gouvernement fédéral demandera au plus haut tribunal du pays de maintenir le certificat de sécurité. Il estime toujours que Mohamed Harkat représente une menace à la sécurité du pays.

Jeudi matin, une cinquantaine de personnes arborant des affiches se sont rassemblées devant l'édifice de la Cour suprême en appui à Mohamed Harkat pour dénoncer les certificats de sécurité.

Rappel des faits

Mohamed Harkat, 45 ans, a été arrêté en décembre 2002 en vertu d'un certificat de sécurité parce que le Canada le soupçonnait d'être un agent dormant du réseau terroriste Al-Qaïda. Il avait ensuite été remis en liberté sous des conditions très strictes.

En avril dernier, la Cour d'appel fédérale confirmait la constitutionnalité du système canadien des certificats de sécurité dans le dossier de Harkat. La Cour estimait toutefois que certaines preuves déposées contre lui devaient être exclues d'un nouvel examen du certificat de sécurité.

En juillet, Mohamed Harkat a reçu l'autorisation de retirer le bracelet de surveillance électronique qu'il portait à la cheville depuis sept ans.

L'ancien livreur de pizza et préposé dans une station-service habite à Ottawa avec sa femme, Sophie Harkat. Il nie toute activité terroriste.

Avec les informations de René Hardy

Tous droits réservés © Société Radio-Canada 2013.

Supreme Court set to weigh appeals of Mohamed Harkat case

posted on October 16, 2013 | in Category Mohamed Harkat | PermaLink

by Ian McLeod
Source: The Ottawa Citizen
URL: [link]
Date: October 10, 2013

OTTAWA — Mohamed Harkat looks anxious, like a man with a trap door beneath his feet.

He’s seated in the living room of his modest brown-brick rowhouse on Ottawa’s southeast side. Sophie Lamarche Harkat, his wife and foremost defender, is at his side. The place is neat and tidy. The rest of their life is a mess.

Canada’s national security apparatus has had a stranglehold on Harkat since Dec. 10, 2002, when the gas station cashier was arrested here as an alleged al-Qaida “sleeper” agent.

It was international Human Rights Day. The recently married Algerian refugee claimant was hauled off to prison for 42 months under a secretive security certificate that allows federal immigration authorities to deport non-citizens deemed a threat to national security.

Then came seven years of virtual house arrest. All with no criminal charge and no trial.

After more than a decade Harkat, now 45, and his lawyers are still fighting deportation on grounds that call into question the state of fundamental justice in Canada.

On Thursday, the Supreme Court sits in open session to consider aspects of the case and whether national security secrecy trumps judicial transparency, accountability and the right to a full defence.

Both the government and Harkat are appealing a 2012 Federal Court of Appeal decision, which ruled that Harkat deserves a new Federal Court hearing to determine if he’s a threat to national security; that his right to a fair hearing was compromised by the Canadian Security Intelligence Service, which destroyed recordings of taped conversations from the mid-1990s; and that CSIS informants are not entitled to the blanket legal protection given to police informants to shield their identities.

On Friday, the high court is to reconvene in an extraordinary session at an ultrasecret, secure location to hear classified arguments. Harkat and his lawyers are barred from attending.

And therein lies the central issue — secrecy.
They’ve never been told the full extent of the security certificate case against him. They have never been allowed to confront and challenge the anonymous human source who supposedly led CSIS to label Harkat an Islamic terrorist and member of a “sleeper cell.”

They can’t converse with the “special advocate” — a security-cleared lawyer who represents Harkat’s interests at secret court hearings — about the classified information at the heart of the case.

And the special advocate can’t interview or cross-examine the CSIS human source.

Security-intelligence agencies, meanwhile, exist on sources and secrets. Human sources understandably want air-tight anonymity. Disclosing covert information can reveal an agency’s methods and tradecraft.

An intelligence service that can’t protect its sources and tradecraft is doomed.

The courtroom clash between individual rights and freedoms and the sanctity of state secrets is a growing post-9/11 phenomenon. Lawyers on both sides are testing the bounds of nascent and existing national security laws as they apply to disclosure, evidentiary standards and the courtroom testimony of security service personnel and human sources.

The ground is shifting under organizations such as CSIS. In 2009, a Montreal judge ordered government lawyers to reveal the evidence they had against Moroccan-born Adil Charkaoui, arrested on a security certificate in 2003. CSIS balked at the disclosure demand, withdrew the evidence and the case collapsed.

A Canadian citizen in Harkat’s shoes would never face such a legal straitjacket. Security certificates only target people the government considers dangerous foreigners. It’s a powerful tool, intended to quickly remove a perceived national security threat.

Until Harkat, that is.

He came to Canada as a refugee claimant in 1995, after living in Pakistan, where CSIS alleges he once operated a guest house in the city of Peshawar for Islamic extremists travelling to Chechnya. CSIS monitored his activities upon his arrival and, for at least two years beginning in the fall of 1996, intercepted his telephone conversations.

In the months following the 9/11 attacks in the United States, CSIS concluded Harkat was a high-level al-Qaida “sleeper” agent awaiting instructions to launch a mission, much like the old Soviet KGB days.

But a decade later, there’s no evidence al-Qaida ever had sleeper operatives, says a leading U.S. expert on security intelligence and al-Qaida.

“There’s a big difference between having somebody who is potentially sympathetic to al-Qaida, or even an al-Qaida member abroad, in Canada or wherever, and having a sleeper agent who has been consciously placed there waiting for a particular message to take a particular action,” says Mark Stout, program director of global security studies at Johns Hopkins University and a former intelligence analyst with the U.S. State Department and Central Intelligence Agency.

“I am completely unaware of any evidence of sleeper agents in that formal sense ever existing. What it really boils down to is that in the first months and few years after 9/11, the notion of an al-Qaida sleeper agent was entirely plausible, but it just never ever panned out.”

An updated 2009 CSIS assessment concluded Harkat’s alleged role in the international Islamic extremist movement prior to his arrival in Canada “appears to have been largely logistics and facilitation.”

Judges have twice deemed Harkat a terrorist and ordered him deported, only to have their findings overturned by higher courts that found the legal process wanting. It wasn’t until 2009, for example, that CSIS informed a federal judge that a key source in the case — believed to be the crucial informant — flunked a lie-detector test, bringing the service’s credibility under fire.

“Charge me or let me go,” Harkat says now, sitting beneath the spot where an unblinking government closed-circuit television camera was once bolted to the living room ceiling to monitor the couple’s home life.

“You can’t drag me for 11 years. I’m not criminal, I’m not like hurt anybody. I’m not bad person, I’m a family person, a good person, a loving person. I wish I’m made from glass, they just can see through me, what’s in my heart.”

The pugnacious Sophie Harkat jumps in and drops the gloves: “Let’s put it on the table,” in open criminal court. “If it’s such a strong case, put it on the table for all Canadians to judge.

“By having secret evidence they get away with too much, they get away with stuff that nobody else will ever know. National security is an excuse now for not having to show stuff that might not be even strong enough to be put in a (criminal) court of law.”

The Supreme Court’s ultimate decision could go many ways. In 2007, the court struck down a previous incarnation of the security certificate process as fundamentally unjust since it denied defendants, including Harkat, the right to meet the case against them. The government responded by introducing special advocates to the mix. Federal lawyers say the move provides defendants a “substantial substitute” to full government disclosure.

Should the court uphold the constitutionality of the current regime, Harkat will descend to a new circle of hell.

Deportation as an accused jihadist will lead to an Algerian torture chamber, he says.

Any move toward deportation would trigger “a whole separate (legal) battle,” featuring Canada’s signature on the United Nation’s Convention Against Torture, says Sophie Harkat.

“It would be nice,” she says, “if the government took a step back and looked at it and said, ‘We made mistakes, we destroyed the evidence, the informant didn’t pass his (polygraph) test, we’ll just end it right here.’”

© Copyright (c) The Ottawa Citizen

VIDEO: AlJazeera Canada Reports on Security Certificates

posted on October 15, 2013 | in Category Mohamed Harkat | PermaLink

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