by Andrew Duffy
Source: The Vancouver Sun
URL: [link]
Date: January 14, 2011

OTTAWA — Previously secret documents released in the Mohamed Harkat terrorism case reveal that the judge wrestled in closed court with how to gauge the credibility of spy agency informants.

Harkat, 42, has been declared a security threat and faces deportation to his native Algeria, where he says he will be tortured or killed.

The Canadian Security Intelligence Service (CSIS) relied on at least two "human sources" in building its case against Harkat, a former Ottawa pizza delivery man.

One of the sources failed a lie-detector test in 2002, a fact that was not disclosed in court until May 2009.

Judge Simon Noel ultimately decided that the source's information could only be relied upon if corroborated.

Another CSIS source was deemed sincere and reliable after Noel reviewed his file.Noel relied on the source's information in concluding last month that Harkat was a member of the Osama bin Laden terrorist network. He said Harkat remains a threat to national security.

Harkat's legal team has launched an appeal of that decision, citing a series of issues, including the court's handling of CSIS informants.

Those informants, including the one who failed the lie detector test, were never cross-examined. Noel ruled that the sources enjoyed special legal status that meant they could not be questioned by defence lawyers, even in a closed courtroom.

Harkat's lawyer, Matt Webber, said criminal cases have shown that paid informants often have a powerful motive to lie. "From my perspective, nothing short of exhaustive cross-examination addresses the very real threat posed by that kind of witness," he said. "Criminal court has recognized that these are the most dangerous types of witnesses."

During secret portions of the security certificate hearing, Harkat was represented by two special advocates — senior defence lawyers with top-secret clearance.

Documents released Friday reveal the special advocates, Paul Copeland and Paul Cavalluzzo (who was the commission counsel for the Maher Arar inquiry), sought to have the case dismissed during one closed hearing.

The special advocates argued that the government breached its duty of "good faith" in the case by failing to gather all available information. Among other things, they said CSIS had failed to obtain the latest information about alleged al-Qaida members Abu Zubaydah and Haji Wazir.

U.S court filings declassified last year suggest that Zubaydah, once described as a senior al-Qaida leader, was not a member of the terrorist group.

Meanwhile, Wazir — a Harkat associate CSIS characterized as the "main money handler for Osama bin Laden" — was released from U.S. custody last year.

He was held for seven years at the U.S.-run Bagram prison on suspicion that he offered money and loans to al-Qaida.

Noel dismissed the application for a stay of proceedings, ruling that the government had taken reasonable steps to update its intelligence when necessary.

It could not be held responsible, the judge ruled, for inadequate responses from foreign governments.

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