by Andrew Duffy
Source: The Ottawa Citizen
URL: [link]
Date: December 9, 2010


OTTAWA - Mohamed Harkat planned to hold a press conference Friday morning to respond to a Federal Court decision that brands him a member of the Osama bin Laden terrorist network and a threat to national security.

In a 186-page judgment released Thursday, Judge Simon Noël endorsed the government's view of Harkat as an active and dangerous member of the extremist network allied with al-Qaeda.

Harkat, 42, now faces the prospect of being deported to his native Algeria where, he contends, he will be tortured or killed.

Defence lawyer Matt Webber vowed to fight any attempt to send Harkat back to the country from which he fled in 1990.

"He was completely devastated," Webber said of Harkat's reaction to Thursday's Federal Court judgment.

That judgment, Webber charged, relies heavily on evidence heard in secret and unavailable to Harkat's defence team. "So we come out of this," he said, "still feeling as if we were deprived of the ability to meaningfully respond to the allegations."

Harkat, a former pizza delivery man and gas station attendant, has lived in Ottawa since September 1995.

A federal immigration officer must now assess whether Harkat faces a significant risk of torture if deported to Algeria, and whether that is outweighed by the danger he poses to Canada.In his judgment, Noël concluded that the government position "on almost all of the allegations made against Mr. Harkat must be accepted."

He dismissed Harkat's sworn testimony as simplistic, dishonest and misleading. Harkat, the judge said, gave the impression that he had memorized "a fabricated story" to hide the nefarious details of his life.

"When a person lies, that in itself does not mean that he is a terrorist or a member of the a terrorist organization," Noël said. "However, when those lies are viewed in light of contradictory evidence, the Court may reasonably accept the evidence submitted by the ministers on a balance of probabilities."

The judge found that Harkat:

- Operated a guest house for Saudi-born terrorist Ibn Khattab in Peshawar, Pakistan for at least 15 months;

- Had links to Al Gamaa Al Islamiya (AGAI), an Islamic extremist group in Egypt;

- Used the methods of a "sleeper agent" after arriving in Canada with false documents in 1995;

- Maintained contact with Islamic extremists such as Ahmed Said Khadr, a Canadian and "key leader" of al-Qaeda, and Abu Zubaydah, a "facilitator" in the bin Laden network;

- Assisted two Islamic extremists, Abu Messab Al Shehre and Mohammed Aissa Triki, during their travel to Canada.

Noël dismissed a defence application to declare the security certificate process unconstitutional and another that sought a stay of proceedings due to mishandled evidence.

The Harkat rulings represent a major victory for the federal government and its security certificate law, which was designed to rid the country of foreign-born terrorists.

Harkat is the first terror suspect to have his security certificate upheld by the court since a revised law was passed in February 2008.

Two other men, Adil Charkaoui and Hassan Almrei, have had their security certificates quashed and are now suing for millions in damages.

University of Toronto professor Wesley Wark, an expert in security intelligence, called the Harkat case "a win that the government needed."

"It shows the security certificate process is still viable from their perspective," he said.

Wark said, however, that Harkat may end up staying in Canada under a new kind of control order since so many legal hurdles must be vaulted before he can be deported.

Security certificates give federal authorities the power to arrest, imprison and deport foreign-born terror suspects without revealing in public all of the evidence against them.

Public Safety Minister Vic Toews welcomed the Harkat decision in the House of Commons. "Our Conservative government is steadfast in our commitment to ensure Canadians are safe from terrorist threats," he said Thursday.

The government has been trying to deport Harkat since Dec. 10, 2002, when he was first arrested on a security certificate. The case has been before the courts for eight years.

In March 2005, Federal Court Judge Eleanor Dawson found it was reasonable for the government to conclude Harkat was a terrorist. But that decision was overturned by the Supreme Court of Canada when it ruled the security-certificate process was too secretive.

A second certificate was issued against Harkat in February 2008 under the revised law.

Judge Noël began hearing evidence in the case later that same year, both in camera and in public.

The case generated considerable controversy. In May 2009, for instance, government lawyers revealed for the first time that a key informant in the Harkat case had failed a polygraph test. Harkat's lawyers, meanwhile, sought to have the case dismissed due to the fact CSIS had destroyed original recordings of intercepted phone calls.

Written summaries from those intercepts were used as evidence against Harkat.

In his ruling Thursday, Noël said the destruction of the tapes did not adversely affect Harkat's right to a fair trial, and that other mistakes in the case did not amount to an abuse of process.

"In general," Noël said, "the duties of utmost good faith and candour were respected by both the Ministers and CSIS."

CSIS presented court with transcripts from 13 telephone conversations, intercepted between September 1996 and September 1998, to demonstrate that Harkat had links to Khattab, Khadr and Al Shehre, a Saudi deported from Canada after being stopped at the Ottawa airport with a garrote, a samurai sword and a balaclava.

Noël said Harkat could have offered the court an explanation for his "shadowy life" in Canada, but instead he chose to deny any connection to Islamic extremists, even when the intercepts clearly contradicted him.

"His behaviour was never, in the view of the Court, satisfactorily explained," the judge concluded.

Harkat testified that he fled Algeria because of a crackdown on the political party to which he belonged, the Front Islamique du Salut (FIS). He said he came to Canada as a refugee in October 1995 after spending five years in Pakistan as an aid worker. He denied any connection to terrorism.

Noël said Harkat remains a threat to national security even though time has diminished the danger level associated with him.

Harkat's bail conditions will remain the same for now, but that could change in the near future. The judge asked lawyers to make submissions on what changes are needed within 15 days.

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