OPINION: The Supreme Court's secret hearing

posted on October 13, 2013 | in Category Mohamed Harkat | PermaLink

By Kent Roach
Source: The Ottawa Citizen
URL: [link]
Date: October 8, 2013

The Supreme Court’s decision to hold a closed hearing this week as part of Mohamed Harkat’s security certificate hearing is disquieting.

Nevertheless, it is part and parcel of the problematic practice of using secret intelligence as evidence.

The closed Supreme Court hearing will involve an adversarial challenge between government lawyers and security-cleared special advocates. Neither Harkat, an Algerian refugee who was arrested in Ottawa in 2002 on suspicion of being an al-Qaida sleeper agent, nor his lawyers will be present. This will strike many as unfair, but it replicates what happens in security certificates.

As also happens under security certificates, the special advocates who are supposed to represent Harkat’s interests in the closed hearing were only allowed to meet with Harkat’s lawyers in limited and judicially controlled circumstances.

In February of 2013, the Supreme Court allowed the special advocates to meet with Harkat’s lawyers, but only to discuss matters of “legal strategy.” The special advocates were warned that “no classified information will be directly or indirectly disclosed during such communications.”

And there is the rub. What if one’s “legal strategy” depends on what the “classified information” says?

The Supreme Court in its public order about the secret hearing used the telling and American term “classified information.” As found by both the Arar and Air India commission, the government over-classifies information. The security certificate regime encourages this practice by not allowing judges to balance the competing interests in secrecy and disclosure.

The special advocates are supposed to ensure that the detainees are treated fairly and that judges are fully informed about the relevant law and facts. But can the special advocates do their job properly if they are not allowed to consult with the detainee about the secret evidence that is being used against him? That is a central question the court must decide in this important appeal.

The secret evidence used in security certificate proceedings is intelligence that does not have to satisfy evidentiary standards. It may have been obtained from foreign agencies that use torture. It may be obtained, as is a concern in the Harkat case, from unreliable human sources.

The reliability of the secret evidence is often difficult to judge because the Canadian Security Intelligence Service (CSIS) — effectively the police force in these cases — destroyed original notes and intercepts after it made summaries until the Supreme Court ruled in 2008 that such a policy was illegal. Another issue in the appeal is whether it is fair to use CSIS’s summaries when they cannot be verified against the original information. The Court of Appeal concluded the summaries were the problem, not the solution.

The governments that are defending security certificates will have a strong argument that the system is fairer than a previous one struck down by the Supreme Court in 2007 that provided for no adversarial challenge of the secret evidence. In addition, Parliament attempted to charter-proof the new regime by allowing judges to allow special advocates to do what is necessary to ensure the fairness of the proceedings.

But the idea of judicial approval is problematic. It is based on a fear that the security-cleared advocates may inadvertently spill secrets even though they could go to jail for doing so. It requires the special advocates and the detainee to share their litigation strategies with the judge and perhaps even the government. Government lawyers have access to the same and likely more secrets, but they are not subject to the same restrictions if they decide to consult colleagues or experts about the case.

The governments have undermined their arguments that the new system is better than the old and consistent with the charter by making the aggressive argument that the identity of CSIS sources should be protected by a near absolute privilege that could mean that even special advocates will not be able to know who the sources are.

The governments argue that the identity of CSIS sources should be secret, just like the identity of police sources. The critical difference, however, is that if the evidence of a police informer is used in a prosecution, the informer’s identity will be revealed when they take the stand and are cross-examined. The identity of CSIS sources remain secret. They are never cross-examined even though their evidence can be used to indefinitely detain and deport non-citizens, possibly to torture.

The special advocates in the Harkat case asked the judge to allow them to cross-examine at least one of the human sources, but the judge said no. Presumably part of the closed hearing will examine this important question. It will test the traditional view that cross-examination is the best way to determine truth.

The Supreme Court will have to decide not only if the new system is constitutional but also whether secret intelligence can fairly be used as evidence. The court’s novel use of closed hearings means that the court will gain first-hand experience with this problematic practice.

It remains to be seen whether the court will conclude that the practice is fair.

Kent Roach is the Prichard Wilson Chair in Law and Public Policy at the University of Toronto and the author of The 9/11 Effect: Comparative Counter-Terrorism.

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