Harkat deserves new hearing, federal appeal court rules

posted on April 26, 2012 | in Category Mohamed Harkat | PermaLink

by Andrew Duffy and Don Butler
Source: The Ottawa Citizen
URL: [link]
Date: April 26, 2012

[PHOTO: Mohamed Harkat, centre, with lawyers Matt Webber, left, and Norm Boxall, holds a press conference Wednesday in Ottawa after the Federal Court of Appeal said he deserves a new hearing to determine if he’s a threat to national security.]

OTTAWA — Mohamed Harkat has been sleeping poorly of late. The Ottawa man knew the Federal Court of Appeal was about to make a decision that could have life or death consequences for him.

Depending on how the court ruled, Harkat — who was arrested in 2002 on a security certificate and has been in prison or under house arrest ever since — was facing deportation to his native Algeria, where he feared he would be tortured or killed.

That threat receded Wednesday — perhaps for good — after the appeal court ruled that Harkat, 43, deserves a new hearing to determine if he’s a threat to national security.

“It’s not over, but at least one day I’m going to see the light at the end of the tunnel,” said a visibly relieved Harkat, who couldn’t seem to stop smiling.

“It gives me another day to breathe on this earth. It’s just a matter of time to clear my name and declare I’m innocent.”

The appeal court found Harkat’s right to a fair hearing was compromised by the Canadian Security Intelligence Service (CSIS), which destroyed recordings of taped conversations from the mid-1990s.

The original recordings were destroyed in keeping with what was then internal policy at the CSIS. Analysts prepared written summaries of the conversations, which became key evidence at Harkat’s hearing. Federal Court Judge Simon Noël relied on those classified summaries in 2010 when he determined that Harkat was an al-Qaeda agent who maintained contact with Islamic extremists such as Canadian Ahmed Said Khadr, a key al-Qaeda figure, and Abu Zubaydah, a facilitator in the Osama bin Laden network. Harkat received a more limited summary — a “summary of the summaries” — of the wiretapped conversations. The appeal court, however, said Harkat deserved more since his right to a fair trial was compromised by the destruction of the original tapes. “The summaries are the remnants of the destroyed originals. They are the problem, not the solution,” said Justice Gilles Létourneau, writing for the panel. To remedy the problem, the appeal court ordered Noël to reconsider the case without the benefit of those summarized conversations in which Harkat was not one of the speakers. That way, the court reasoned, Harkat will be able to point out inconsistencies or other problems with conversations in which he was involved. The ruling means Noël will have to reconsider the case with a more limited collection of evidence. It’s conceivable that a new judge will start the case from scratch. It will be the third time that a Federal Court judge must rule on whether the government made a reasonable decision in declaring Harkat a threat to national security. Harkat has twice been found by the Federal Court to be an al-Qaeda sleeper agent, but both of those “reasonableness” rulings have now been overturned. Harkat learned of the latest decision from Matt Webber, one of his lawyers, who called his house Wednesday morning. “My eyes started tearing down and my heart started pounding hard,” he told reporters. “I was actually worried that the decision was coming today, because my life’s on the line.” Harkat remains under house arrest, required to wear a GPS device at all times. He’s forbidden to use the Internet or a cellphone, cannot leave Ottawa without permission and must report weekly to the Canadian Border Services Agency. In fact, Wednesday was his day to check in with the CBSA. “I’m still living under really hard restrictions,” Harkat said. But after Wednesday’s decision, “I’m hopeful for the future. I would like to have children like anybody else, and live a normal life.” That future remains uncertain. But Webber and Harkat’s other lawyer, Norm Boxall, were both optimistic that their client will win his case on its merits at the new hearing. Boxall called the excluded conversation summaries “pivotal evidence,” while Webber said they were instrumental in Noël’s finding that issuing a security certificate in Harkat’s case was reasonable. “Without those conversations, we’re optimistic that the ultimate result should be very different,” he said. The appeal court also overturned Noël’s decision to grant CSIS sources a “class privilege,” a special legal status which meant they did not have to face cross-examination, even in a closed courtroom. Wednesday’s ruling was not an unblemished success for Harkat’s legal team, however. To their dismay, the appeal court upheld the constitutionality of the revised security certificate regime. The law, remade by Parliament in 2008, is used to deport foreign-born terror suspects from Canada. “The revised Act provides the judge with the necessary tools to ensure a fair process,” wrote Létourneau. Not surprisingly, Harkat’s lawyers disagree. “We remain convinced that this regime is unconstitutional,” Boxall said. “It’s just not enough to be advised in a hearsay fashion of some summary of the case. You have to be able to meet and challenge a case to have a real right to act in your own defence.” Should Harkat lose his case at the new hearing, Boxall said he would seek leave from the Supreme Court for a definitive ruling on the law’s constitutionality. The previous version of the security certificate law was ruled unconstitutional by the Supreme Court in February 2007. The new iteration of the law gives defendants the right to be represented in secret hearings by security-cleared lawyers known as special advocates. They’re also shown more government evidence than in the past. Harkat’s lawyers argued the new law did not go far enough, and continued to leave the terror suspect in the dark about key details of the government’s case. What’s more, they said the government made it impossible to meaningfully challenge key wiretap recordings. Without the original tapes, Harkat’s lawyers said they couldn’t challenge the accuracy of translations or put the conversations into context. CSIS relied on at least two sources in building its case against Harkat. One of the sources failed a lie-detector test in 2002, a fact that was not disclosed in court until May 2009. Noël ultimately decided that the source’s information could only be relied upon if corroborated. But the appeal court noted that some of the summarized conversations at issue in the case involved the same source, identified only as XXX. And some of the corroborating evidence that Noël relied upon, the appeal court noted, “is significantly more limited than XXX’s information had been.” Harkat, a former pizza delivery man and gas station attendant, has lived in Ottawa since September 1995. He came to Canada from Pakistan, where he lived for five years after fleeing his native Algeria. Noël found that Harkat, while living in Pakistan, operated a guest house for a Saudi-born terrorist, Ibn Khattab, and maintained links to Al Gamaa Al Islamiya and Islamic extremist group in Egypt. In Canada, according to Noël, Harkat used the methods of a sleeper agent and maintained contact with Islamic extremists. Harkat is one of three men still in the security certificate process. The other two, Mohamed Majoub and Mahmoud Jaballah, are both under house arrest. A hearing for Majoub is currently under way and Jaballah’s hearing is scheduled to resume in May. Two other men, Adil Charkaoui, of Montreal, and Hassan Almrei, of Toronto, have had their security certificates quashed. Both men are now suing the federal government for millions in damages. The government deployed security certificates with some regularity between 1991 and 2003. But it has issued just one in the past decade, arresting a suspected Russian spy in 2006. He was subsequently deported. Matthew Behrens, of the Campaign to Stop Secret Trials in Canada, said the government has backed away from security certificates because the political climate has changed. “Once people found out that people like Mr. Harkat and Mr. Majoub and Jaballah and others were being subjected to this Star Chamber medieval process, a lot of people got very upset,” he said. Though CSIS “continues to play up paranoia and threats,” Behrens said, “I think they can smell the public opinion that says these things are simply unacceptable.” © Copyright (c) The Ottawa Citizen