Harkat lawyer keeps up chase for key witness

posted on March 19, 2008 | in Category Website-Related | PermaLink

by Andrew Duffy Source: The Ottawa Citizen URL: N/A Date: March 15, 2008 Paul Copeland is determined to hear evidence from an al-Qaeda lieutenant being held by the U.S. at Guantanamo Bay

The federal government has said it will no longer rely on the evidence of waterboarded al-Qaeda lieutenant Abu Zubaydah -- but that does not end his involvement in the case of Ottawa terror suspect Mohamed Harkat. Mr. Harkat's defence lawyer, Paul Copeland, has again petitioned the Canadian and U.S. governments to gain access to Mr. Zubaydah, who's now held in the Guantanamo Bay detention facility. The Canadian government alleges in its re-issued security certificate that Mr. Harkat "has associated" with Mr. Zubaydah since the early 1990s, but offers no evidence to support that contention. Mr. Copeland wants to know from Mr. Zubaydah himself whether the allegation is true."In my view, fundamental justice requires that I interview or get someone to interview Abu Zubaydah to see if he has evidence that will refute the allegations," Mr. Copeland wrote in a recent letter to Federal Court Chief Justice Allan Lutfy.

If Mr. Copeland gets his way, Mr. Zubaydah's evidence will either make the government's case -- by confirming he knew Mr. Harkat in Pakistan in the early 1990s -- or devastate it.

"I'm prepared to take the risk," Mr. Copeland said in an interview yesterday.

The evidence that underpins the government's allegation that Mr. Harkat has associated with Mr. Zubaydah will be delivered in a secret hearing, which means defence lawyers will not have the ability to mount a specific defence to it.

As a result, Mr. Copeland believes Mr. Zubaydah -- a man whom U.S. officials have described as al-Qaeda's logistics chief -- offers his client the best chance at exoneration. "If I can establish that the relationship is not true, then it seems to me a whole lot of the rest of the case falls apart."

The issue of whether Mr. Harkat has the right to question Mr. Zubaydah could prolong the Harkat case for years. Mr. Copeland said he's prepared to take the issue to the Supreme Court of Canada.

While there's no case law that says a Canadian terror suspect has the right to call a witness from Guantanamo Bay, he said, it's reasonable to argue the federal government must take steps to make important evidence available from a witness detained by its ally.

"That seems to me a part of fundamental justice," Mr. Copeland said. "My client has a right to call witnesses to defend himself."

The Supreme Court last year struck down as fundamentally unjust the security certificate process that found Mr. Harkat to be an al-Qaeda terrorist in March 2005.

The government has since passed a new security certificate law that gives more legal rights to immigrants accused of terror links. The law also prohibits the federal government from using evidence when it's reasonable to believe it flows from torture.

As a result, the federal government will no longer rely on the statements from Mr. Zubaydah previously entered as evidence in the cases of Mr. Harkat and Montreal's Adil Charkaoui.

The move has been remarked upon by Newsweek magazine, which earlier this month termed it "the latest sign of potential international fallout from the CIA's recent confirmation that it waterboarded a handful of high-profile al-Qaeda suspects in 2002 and 2003."

A date has not yet been set for Mr. Harkat's new security certificate hearing, which will determine whether the government made a reasonable decision in declaring him an al-Qaeda sleeper agent.

Mr. Copeland has pursued Mr. Zubaydah as a witness for three years, writing repeatedly to senior officials in both Canada and the U.S.

Last September, U.S. officials closed the door on the idea. "Any access to Abu Zubaydah would pose an unacceptable risk to the national security of the United States and could cause irreparable harm to the ongoing efforts in the war on terrorism," Sandra Hodgkinson, the U.S. deputy assistant secretary of defence, wrote on Sept. 26.

Mr. Copeland has not been deterred by the rejection. He recently appealed to Canada's justice department for help in breaking down U.S. resistance.

In a March 7th letter to Deputy Attorney General John Sims, Mr. Copeland notes that Mr. Zubaydah now has U.S. legal counsel, who could put questions to the Guantanamo Bay detainee. Mr. Zubaydah's defence lawyers are under a protective order, however, that requires them to treat all communications with their client as classified information.

Mr. Copeland has asked the Canadian government to approach U.S. officials about "a relaxation" of the order that would allow him to gather evidence from Mr. Zubaydah.

Mr. Sims has yet to give any indication that the federal government is willing to press for Mr. Zubaydah's testimony.

During the 2004 hearing to determine whether it was reasonable to declare Mr. Harkat a danger to national security, federal lawyers introduced a statement from Mr. Zubaydah as evidence. It said he had identified Mr. Harkat "by description and activity" as having operated a guest house in Peshawar, Pakistan, for mujahedeen travelling to Chechnya.

Mr. Copeland challenged the reliability of that evidence, citing reports by Human Rights Watch, the New York Times and Washington Post that suggested Mr. Zubaydah had been coerced, and quite possibly tortured, into giving evidence while in U.S. custody.

James Mathieson, a lawyer for CSIS, told court that the assertions of journalists and human rights groups did not amount to proof in a courtroom. "If this were Starbucks," he told Judge Eleanor Dawson at the time, "and you ordered a latte, it would be all froth and no caffeine. There is nothing there."

Last month, CIA director Michael Hayden admitted that Mr. Zubaydah and two other al-Qaeda suspects were subjected to waterboarding in the year that followed the Sept. 11 terror attacks. The practice simulates the feeling that a drowning person experiences.

The Canadian government has refused to explicitly define waterboarding as torture.

In response to a recent Citizen question about whether Canada considers waterboarding to be torture, Foreign Affairs spokesperson Rodney Moore would only say that Canada does not waterboard suspects it detains.