Last Wednesday Federal Court Justice Simon Noël gave CSIS a bit of a public spanking. The "troubling situation" involved the case of Mohammed Harkat, the subject of a security certificate, and Justice Noël went public with accusations that Canada's national security intelligence agency may have disobeyed court orders by withholding information concerning the reliability of an informant. He issued instructions that previously secret information was to be shared with two lawyers who represent Harkat by 4 pm today and announced his intention to recall several CSIS witnesses.
Tonda MacCharles followed up with a piece in yesterday's Toronto Star in which she revealed that the information in question may have been withheld not once but five times and the informant in question is "key to the Harkat case." It's no surprise then that a number of sources MacCharles quotes suggest that the credibility of CSIS is on the line as is the credibility of the security certificate itself and the process surrounding it. Consider:
... [University of Ottawa law professor Craig] 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.
And there's more.
In reviewing the media reports on this I stumbled across this in Saturday's Ottawa Citizen:
To make matters worse, [Harkat's lawyer, Matthew Webber] said, CSIS has destroyed original records in the Harkat case.
That seems to be a habit with CSIS and it's gotten them in trouble before.
Civil libertarians have opposed the security certificate in its present form because it allows the state and its agents to conceal the evidence used to cast suspicion on the subject. In effect, it allows for a secret trial with secret evidence that neither the accused nor his lawyer is allowed to see. Following a Supreme Court ruling that found the process to be unconstitutional, it was amended in 2008 to allow for "special advocates", lawyers with security clearance who would be allowed to see a summary of the evidence and plead on behalf of the accused though they still can't reveal the evidence to the accused. It's the special advocates in this case who will now, based on Justice Noël's order, be privy to information that had previously been denied to them. Unfortunately, neither Harkat nor the rest of us may ever be allowed to find out what's going on here in any detail.
The reason for due process, including the right of the accused to face his accuser(s) in open court, has always been to protect the individual from abuse by the state. The argument against the security certificate and the secrecy surrounding the process has always been that it subverts due process and creates a greatly increased possibility of abuse. Guess what? Harkat was almost deported in 2005 on the basis of evidence that is now being called into question. And in terms of the final result it doesn't matter whether the miscarriage of justice is the result of malign intent or simple incompetence.
I can't help but think back again to CSIS Director Jim Judd's complaint about the deference deficit. I wrote about that last December when it was revealed that CSIS had been taping conversations between suspects and their lawyers. I think Judd wants us to grant organizations like his some kind of moral authority. We should just trust them and not concern ourselves about these minor deviations from normal, democratic practices. I wonder if he's come to regret bringing the whole thing up.
Excellent post. Legitimate questions. Well done.
Of course, you know (don't you?) that each time you raise valid points like these about the failings of our security legislation and the chronic ineptitude and arrogance of the CSIS bureaucracy that the 'personal file' they keep on your blog just grows some more!
Add to the story the very odd raid that Canada Border Services Agency made on Harkat's home in mid-May, just before an upcoming court date, and it starts to look as though someone in government might be panicking over this case.
There have been claims as well that some of the evidence used against Harkat both in the U.S. and here comes from the confessions of Abu Zubaydah, waterboarded by the CIA 83 times in August 2002 (CIA IG's report, classified, but quoted in DoJ memo) and otherwise horribly abused (ICRC report), in spite of the questionable state of his mind and his questionable status re al-Qaeda (FBI). Now it appears that CSIS may have been running on the testimony of another unreliable witness and then trying to cover that up?
Mounting evidence suggests that Mr Judd is not capable of regretting much except offences to his own amour-propre.
FA:
Given the number of posts I've done about CSIS and the RCMP, I think it's too late to worry much about that file.