Crown to argue for better protection of state secrets

posted on September 30, 2009 | in Category Security Certificates | PermaLink

by Colin Freeze and Bill Curry
Source: The Globe and Mail
URL: [link]
Date: September 30, 2009

Crown lawyers acting for CSIS will argue today that judges need to better safeguard state secrets, after the agency sabotaged a high-profile terrorism case rather than disclose sources.

One week ago, Adil Charkaoui, 36, left a Montreal courtroom a free man, six years after the Moroccan was first branded an al-Qaeda suspect by the Canadian Security Intelligence Service. Today the case against him will officially die as much of it had lived - in complete secrecy.

Crown lawyers will go to a closed Federal Court hearing in Ottawa to explain specifically why they pulled CSIS evidence from the "security-certificate" case. They will argue it had to be sacrificed for the greater public good, after a Federal Court judge ordered CSIS to disclose information related to informers and wiretaps - disclosures the spy service insisted it could not make.

What's at stake are disclosures in a range of cases and, perhaps, the future of CSIS itself.

Madame Justice Danièle Tremblay-Lamer, the presiding judge who ordered Mr. Charkaoui freed at a public hearing last week, will preside over today's secret hearing. In a narrow sense, her decision is a fait accompli concerning the viability of the case - "The certificate will fall. How, is the question," she said last week - but some big-picture questions remain unresolved.

Judge Tremblay-Lamer will determine whether any questions from the Charkaoui affair are to be salvaged for the contemplation of appellate courts. Alternatively, she could rule the Crown simply resorted to legal shenanigans to save face and decline to send issues to the higher courts.

The government's legal gambit yields an insight into intelligence disputes, even as it leaves some of Canada's most learned legal observers mystified. One thing that is clear is federal security certificates - the rare cases where state secrets are invoked to jail and deport foreigners - have become no-win situations."What is the exit strategy? Maybe this is the exit strategy," said Kent Roach, a University of Toronto law professor. Explaining the cases could be litigated until doomsday without resolution, he added that "it's not only a legal quagmire it's a public-relations quagmire."

And an intelligence quagmire, too. Canada's spies are complaining they are being forced to make too many disclosures, a state of affairs never contemplated when Parliament created the spy service 25 years ago.

The business of being a spy is changing, as CSIS is drawn into open court against its wishes. Agents are archiving notes and tapes they used to destroy. They are devoting more time and resources to preparing documents and testimony. They are reconsidering anonymity assurances they give to informers and allied states that pass along secrets.

Apart from Mr. Charkaoui, four other foreigners are being held on CSIS-initiated security certificates. They have generally been held to be greater threats than Mr. Charkaoui. The decision to jettison his case may have been part of a conscious effort to keep the others alive, mired as they are in their own disclosure battles.

Yesterday, Mr. Charkaoui held a news conference on Parliament Hill urging the Conservative government to apologize. "This case stood on nothing and has collapsed," he said.

He was joined by Monia Mazigh, the wife of CIA-rendition victim Maher Arar. Ottawa compensated the Arar family with $10.5-million after finding Canadian agents wrongly branded him an al-Qaeda member.

Mr. Charkaoui has not yet sued Ottawa for compensation. But he's thinking about it.

"I have a very long list of abuses. You can't imagine," he said. "I didn't say today that I will seek compensation. I said if I do it, I really deserve it."

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