Editorial: A work in progress

posted on December 19, 2010 | in Category Security Certificates | PermaLink

by Wesley Wark The Ottawa Citizen, special URL: [link] Date: December 18, 2010 The Harkat case shows the security certificate process needs much improvement -- but the alternatives for dealing with suspected terrorists are likely worse

[PHOTO: Supporters of Mohamed Harkat rally at the Human Rights Monument in Ottawa. Harkat is living in Ottawa under strict conditions imposed by Canada's security certificate process.] Security certificates remain one of the most controversial elements in the Canadian legal tool kit for dealing with terrorist threats. Although used sparingly by the government, they have come under intense public and judicial scrutiny in the post 9-11 period. The Supreme Court struck down the original security certificate process in 2007 -- deeming that, because of its reliance on secret intelligence, it denied those named by the government as national security threats the right to adequately defend themselves. Parliament responded by passing new security certificate legislation in 2008 with additional constitutional protections. The government issued renewed certificates against five individuals, all Muslim men it believed were terrorists. Since 2008, these five cases have been winding their way through Federal Court. If a security certificate is found to be "reasonable" by the presiding judge, then the government can attempt to return terrorist suspects to their countries of origin -- itself a difficult process given Canada's international law obligation not to return a person to a country that practices torture or abuse of detainees. The varying outcomes of these five cases show that, despite changes to the law, the process remains a problematic one. All are time and resource-consuming legal marathons. In fact, two of the cases are ongoing. Judgments have been reached in three of the cases, with one case dismissed, and one withdrawn by the government on the grounds that its continuance threatened the public disclosure of sensitive intelligence.Recently, Justice Simon Noel reached the first affirmative ruling under the revised Security Certificate law, finding Algerian-born Mohamed Harkat, who is currently residing in Ottawa under strict conditions, to have been involved in terrorism and to present a threat to Canada's national security. Harkat's lawyers have promised an appeal of this ruling.

Justice Noel's ruling in the Harkat case reveals the complexity of these cases, the difficulties they entail, and speaks to their uncertain outcome. The Harkat case turned on the nature of his travels from his native Algeria to Pakistan in 1990, his activities while in Pakistan between 1990 and 1995, and his potential involvement in terrorist facilitation once he came to Canada as a refugee claimant in 1995. Harkat was first arrested on a security certificate in December 2002.

The Canadian Security Intelligence Service (CSIS), which is responsible for preparing the intelligence analysis that leads to the issuance by two cabinet ministers of a security certificate, alleged that Harkat was involved in terrorist activities in Pakistan in the 1990s, through providing support for a Saudi-born commander in the Chechen conflict named Ibn Khattab. Khattab was killed in 2002 after receiving a poisoned letter, possibly of Russian provenance. CSIS also alleged that Harkat assisted suspected or known Islamist extremists while in Canada and that he operated as a "sleeper agent" for the bin Laden "network." Justice Noel found himself weighing the evidence presented by CSIS, along with expert witness reports and testimony, against the evidence presented by Harkat when testifying on his own behalf.

Justice Noel was harshly critical of Harkat's testimony, finding that it lacked credibility and, waxing poetic, that Harkat "has surrounded himself in layers of clouds in which he does not let any light come through." Unlike Justice Richard Mosley, who ruled in the Hassan Almrei security certificate case that was dismissed, Justice Noel advanced no criticisms whatsoever of CSIS's work on the file.

This might temper some of the sour remarks that have emerged from senior CSIS officials about the "judicialisation" of their work and the Alice in Wonderland atmosphere that surrounds Canada's courts, a colourful if odd phrase attributed to the former CSIS director Jim Judd, in the most recent WikiLeaks dump of U.S. diplomatic cables. Justice Noel also weighed the expert testimony but appeared to be frustrated by the fact that the experts could not agree on such complex issues as the nature of the bin Laden network, the activities of the shadowy and late Ibn Khattab, or the attributes of a sleeper agent.

One thing that the Harkat ruling did make crystal clear is the degree to which security certificate findings will continue to be indebted to secret intelligence. In part, this is natural. In part it may be a function of the relative inability of CSIS to compose a strongly analysed public report. When the Supreme Court required the revision of the security certificate process, it did so with one eye on this problem of reliance on secret intelligence.

Following an established British model, the new security certificate process introduces security-cleared lawyers known as special advocates, who can see and test the CSIS evidence against the accused to provide a stronger defence mechanism. But, to protect sensitive information, a wall is erected between the special advocates and the public counsel for the accused -- special advocates cannot communicate with the accused except in exceptional circumstances when permitted to do so by the presiding judge.

These legal details matter -- for the effectiveness and fairness of the security certificate system rests on the ability of the special advocates to probe, the public counsel to provide an alternate explanation indicating innocence, and the judge to weigh the evidence on a "balance of probabilities" so as to determine whether reasonable grounds exist to believe that the accused presents a national security risk. These are challenging and unusual roles for members of the judicial system.

Judges are going to have to operate beyond the realm of "triers of fact," and become interpreters of the complex and shadowy world of terrorism. They are going to have to get used to weighing competing versions presented by expert witnesses. Special advocates themselves are going to need to become experts in terrorism and intelligence -- an expertise not widespread in Canadian legal ranks. And the Canadian public is going to have to get used to seeing security certificates for what they are: not a star chamber or secret trial (not a trial at all), but rather an imperfect yet potentially workable judicial process for dealing with non-citizens suspected of serious terrorist activities.

The lessons of the Harkat case, whatever its ultimate resolution upon appeal and in terms of Harkat's potential removal to Algeria, point to the fact that security certificates are still a judicial work in progress. More work needs to be done to strengthen the training of selected judges and special advocates, ways have to be found to allow for more of the secret intelligence to become available to the accused, and CSIS has to improve its capacities to deliver solidly analysed public summaries of their evidence.

Without such improvements the security certificate law will ultimately wither, leaving us with potentially worse alternatives -- clandestine surveillance and disruption tactics, or lengthy and expensive trials with their own problems of turning intelligence into evidence.

Wesley Wark, a visiting research professor at the University of Ottawa's Graduate School of Public and International Affairs, served as an expert witness in the Harkat case.

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