CSIS forced to reveal info on secret source in Harkat case
Tonda MacCharles
Ottawa Bureau
May 31, 2009 09:25 PM
OTTAWA—-The reputation and credibility of CSIS, Canada's spy agency, is on the line Monday.
Defended by director Jim Judd as “the most reviewed” intelligence agency in the world, CSIS suddenly finds itself under a much more critical Federal Court microscope for questionable conduct in the government's effort to deport terror suspect Mohamed Harkat.
Justice Simon Noel revealed last week the agency withheld “significant” information about the reliability of a human source on five past occasions and possibly lied in defending a government-issued security certificate to remove the former Ottawa pizza delivery man to his native Algeria.
He has given CSIS until 4 p.m. on Monday to produce, uncensored, the classified information about the human source whose identity CSIS had sought to protect that is key to the Harkat case.
A security certificate is an extraordinary immigration warrant that relies on secret evidence and is used to deport individuals deemed a threat to the security of Canada.
A legal challenge went all the way to the Supreme Court of Canada, and the security certificate law was rewritten last year to create a new system of court-appointed special advocates whose job it is to challenge the secret evidence behind closed doors.
In the Harkat case, the special advocates have been pushing for more disclosure.
Now they're going to get it.
Although the special advocates cannot share the information with Harkat, his lawyers, or the public, it will allow them to further test the government's case.
“My responsibility is to protect his interests in the in camera proceedings,” said special advocate Paul Cavalluzzo. “And unfortunately I'm obliged not to talk about the proceedings at all because the legislation prohibits us.”
On top of ordering CSIS to disclose the information about the source and the source's identity, the judge put on hold indefinitely the hearing that will decide the validity of the government's certificate against Harkat, until he can sort through the mess. He may recall CSIS witnesses.
It all stemmed from a letter Noel said government lawyers provided on Tuesday outlining “new information dating from 2002 and 2008” that they admitted should have been flagged earlier.
The federal lawyers assured the judge that CSIS is “investigating why this information was not provided” and would report back to the court.
But the judge said the disclosures raise questions about whether CSIS has complied with past disclosure orders, whether CSIS witnesses have lied in the past, and whether they have complied with their obligation to act in “utmost good faith” when it comes to secret judicial proceedings authorized by the law.
“This is really strong stuff and staggering frankly, because these cases are the better part of a decade old and still we have concerns about the level of disclosure,” says University of Ottawa law professor Craig Forcese.
“The credibility of the service has very seriously been tarnished by this,” he said.
Clearly there may be consequences for the outcome in Harkat's case because “everything hinges” on how compelling and credible the government's information against him is, but Forcese noted that if the same human source, or some of the same CSIS witnesses are involved in the other security certificate cases, there may be ripple effects on those as well.
Forcese points out that the special advocate system depends entirely on good faith disclosures by the government, and there's no systemic mechanism to ensure it doesn't happen again.
But lawyer Lorne Waldman, counsel for another security certificate defendant Hassan Almrei, said the belated revelations show the special advocate system, however imperfect, does work.
“It seems pretty clear that without their probing and pushing, none of this would have come to light,” he said in an interview.
Nevertheless, he said, “When something like this happens in this type of case, it really casts a pall on the whole process.”
“These are cases in which the service has invested millions of dollars and an immense amount of political capital, so you would expect in a case like this the scrutiny that would go into ensuring that everything was above board would be extreme.”
He has no evidence something similar has happened in Almrei's case, “but I can tell you it raises serious concerns . . . it really undermines your confidence in the agency.”
Others say any move to force CSIS to reveal human sources or their methods will have a chilling effect on the foreign intelligence networks that now share information with CSIS, and lead to less intelligence sharing in the future.
“Clearly our allies are watching what is transpiring at the court and governmental level in Canada,” said David Harris, a former CSIS analyst and now a lawyer working with Insignis, a private counter-terrorism research and strategy company.
“There are going to be a lot of questions in the minds of some people abroad as to how far into the file the court's interest will ultimately penetrate.”
Two ministers for public safety and immigration signed the security certificate against Harkat. The government claims the Algerian-born Harkat is an Islamic extremist who came to Canada as a sleeper agent for Al Qaeda.
Arrested and detained in December 2002, he was recently released under extremely strict conditions.
CSIS would not comment Friday when asked if it would comply or contest the judge's order. Spokesperson Manon Brub emailed the official line on the ruling last week which said CSIS “has the utmost respect for the Federal Court of Canada and for the Canadian judicial system. Because this case is still a matter before the courts, any further comment would be inappropriate at this time.”
