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