(In Two Federal Court Rulings, we learn that part of the case against secret trial detainee Mohamed Harkat is born out a love affair between a CSIS employee and a “person of interest to the Service,” while in another we learn that special advocates will not be allowed to examine “human source” witnesses who have come up with the unsubstantiated allegations against Harkat and the other detainees.)
March 1, 2009 – Just as “information” gleaned from torture is hardly reliable (the victim will say anything to make the torture stop), information gleaned from a spy’s torrid affair with a “person of interest to the Service” (the spy’s sexual partner will say anything to keep the lovin’ comin’) is just as questionable.
But in the case of secret trial detainee Mohamed Harkat, it appears that secret information obtained both from sex and torture is now being used to have him deported to torture in Algeria.
And so marks yet another chapter in the ongoing secret rendition-to-torture hearings of Canada’s secret trial detainees, all of whom have yet to see the so-called case against them.
In a series of “expurgated reasons for judgment” written last November but only released a few days ago, Simon Noel of the Federal Court revealed that a Canadian Security Intelligence Service (CSIS) officer working on the Harkat case had what appears to have been an affair with a “person of interest to the Service.” Throughout the decision are a series of markings that look like this: “[...]”. They represent information not shared for unexplained “reasons of national security.”
Hence we learn in paragraph 2 of the decision about “the [...] relationship that developed between her and a person of interest to the Service [...] in the context of the Harkat investigation.” One is not sure if the secret part of the sentence relating to the relationship should read “intimate,” “totally hot,” “dysfunctional,” “inappropriate,” or just plain “platonic.” After all, inquiring minds need to know, but as in all security certificate proceedings, the hot stuff stays behind closed doors.
SPIES HAVING A [...] RELATIONSHIP!
T.S. (we are never sure what the acronym stands for, whether Totally Sexy or an actual name) was a CSIS employee from the 1980s until 2002. We don’t learn much about her, because three paragraphs of material state only that she “[...].” Shortly after T.S. began suffering from domestic difficulties, a “person of interest to the Service” known as A.B. (Absolutely Buff?) initiated phone contact at her workplace, and as the relationship developed, “gifts and photos were exchanged.” After receiving written instructions to end the relationship in 1998, T.S. refused.As the chronology continues, only a grocery store bodice ripper can compete. “In April 1999 T.S. travelled to [...] for a holiday where she had a [...] encounter with A.B. CSIS was unaware of the [...] encounter until 2001, at which time the decision was made to begin an internal security investigation.” In January 2002 T.S. was dismissed, following which [...]. A grievance filed by T.S. was denied because of [...]
The Special Advocates (security-cleared lawyers who are allowed to go behind closed doors and challenge some of what is supposedly there) argued that they should have access to the employment records of the agent. They had raised concerns about “the reliability and credibility of the information provided [...]” and requested copies of T.S.’s employment records, which the government argued against based on privacy grounds. Even though everything that takes place in the closed hearings stays behind closed doors, at the risk of being prosecuted and sent to jail for 14 years under the Security of Information Act , Noel of the Federal Court insists that “privacy rights do exist even in the closed portion of the proceedings,” a brilliant bit of illogic that allows CSIS to withhold whatever it does not wish to reveal in secret hearings (perhaps information that shows there is no case against Harkat, among others!)
Noel states that the employment records of former CSIS intelligence officer T.S. are not necessary for the court to determine the accuracy of allegations against Mr. Harkat. Noting that employment records would contain such things as annual evaluations, positions held within the agency, salaries and benefits, Noel states “this type of information, which is inherently personal, will not help determine the reliability of the information [...] nor will it allow for an assessment of the quality of the reporting [...]”
But simple common sense states that it WOULD be helpful to see an annual assessment of an employee in CSIS, whose actions result in targetting individuals for years of misery under security certificates. What if an annual assessment states said employee relied rather heavily on tarot cards, the advice of Sybil the Soothsayer, articles in The National Post, or similarly bizarre sources to build the alleged case? What if an assessment found that, like many in CSIS, T.S. was prone to bouts of paranoia, Islamophobia, and a hatred of all things Halal?
Noel states that all of this would be subject to privacy rights, yet the hearing is taking place behind closed doors in a secure location, where it becomes a major crime for any of the security-cleared lawyers to utter a whisper about any of this. More importantly, all of this impacts on the case of a man, Harkat, who needs every chance he can get to prove his innocence, given that he faces torture or death if forcibly deported to Algeria based on secret allegations he will never be able to see, much less contest.
Noel’s decision is a split one, however, for he does see the value in the special advocates’ request that “has as its object the [...] report that studies the reliability and veracity of the information [...] which was primarily reported by [...] who had a [...] encounter with a person of interest to the Service [...]”
This might refer to an internal CSIS report that makes such an evaluation, but CSIS is an organization whose own review committee (and whose former agents) all critique an institutional tunnel vision that would prevent the organization from making an honest assessment. If the Special Advocates can only see what CSIS chooses to allow them to see, they can hardly get a clear, unbiased picture.
SPECIAL ADVOCATES DENIED ACCESS TO SECRET HUMAN SOURCES
Meanwhile, the much-criticized Special Advocate system (which then “Public Safety” minister Stockwell Day praised as the answer to all of the unconstitutional problems with secret hearings) took a major body blow in Noel’s companion decision, written in early December but also not released until last week. In essence, it creates the firewall CSIS has been praying for all along: the security-cleared lawyers can see some, but not ALL, of the secret case, and certainly not the most crucial parts that the government will likely be relying upon.Must the drafters of secret trials legislation now go back to the table and call for Super Special Advocates (who will act in a capacity even more restricted than the Regular Brand Special Advocates, thus creating a two-tier system of special advocacy that mirrors the two-tier justice of security certificates?). We know from recent history that two of the Special Advocates, though security-cleared, were nonetheless initially denied their posts based on secret information, requiring them to hire their own Special Advocates to fight for the right to begin their jobs.
In any event, Noel has done a terrific job of protecting CSIS from what it most feared: that skilled lawyers would actually cross examine the “human sources” behind closed doors and have their credibility picked apart in the same manner in which CSIS witnesses who appear in the limited public portions of the proceedings are generally mincemeat within five minutes of cross examination.
Thus, the security certificate, which denies an accused from challenging his/her accuser, now denies even the special advocate, who is supposed to protect the interests of the accused, from confronting said accuser. That Noel would have no problem with this is apparent in the way in which it appears his mind is already made up in these proceedings. While writing of the “two weeks of closed hearings” from September 2008, he says the government presented evidence in support of their case “and the danger associated with Mr. Harkat.” This is a public ruling, available on the court’s website. No finding of danger has been made with respect to Mr. Harkat. The least a federal court judge could do is put in the words “alleged danger” or “alleged danger the government claims is associated with him.”
IGNORING THE DANGER OF FALSE LABELLING
Noel, like many judges and journalists in Canada, has yet to take a lesson from the inquiries into the torture of Canadians Maher Arar, Abdullah Almalki, Ahmad El Maati, and Muayyed Nureddin. Throughout those inquiries, we learn time and again about the dangers of false labelling, and the particular need for great care to be taken when referring to anyone who is deemed suspect. The same agency responsible for the false labelling leading to torture in the above cases is behind the security certificate cases.In Noel’s second ruling, he states that “the evidence currently before this court discloses that [...] human source(s) provided information to the Service in relation to the intelligence investigation into Mr. Harkat’s activities.” The Special Advocates (who in this case were clearly not special enough) sought an order producing those witnesses for a secret cross-examination, a request Noel ultimately denied. What, then, is the purpose of a special advocate if they cannot get to what is allegedly, in secret, the heart of the case?
What if, for example, one of the covert human sources received his information from an overseas torture session in which the victim made up whatever the torturers wanted in order to stop the torture? As we learned from the Security Intelligence Review Committee (SIRC)’s 2008/09 annual report, this would hardly be a surprise, since CSIS “uses information obtained by torture.” That assessment comes from a complaint generated by Mr. Harkat’s public lawyers.
Yet thanks to Mr. Noel, this human source, even in secret, need not be questioned about his complicity in the torture of someone else, nor about the assumptions that guided his theories about Mr. Harkat, nor about the accuracy or reliability of what this individual has produced. In other words, Mr. Harkat is no further ahead than he was before the Supreme Court of Canada declared the security certificate regime unconstitutional.
Noel’s ruling is filled with useless rationalizations for why said sources must be protected even from a secret cross examination in which all parties are sworn to secrecy. The court relies on jurisprudence with respect to police informer privilege, protecting the informer’s identity unless the innocence of the accused is at stake (which is the case in all secret trial cases). Noel declares that “covert human intelligence sources are individuals who have been promised confidentiality in return for their assistance in gathering information relating to the national security concerns of Canada,” but he does not explain how that confidentiality would be violated if they were to testify only in a secret hearing.
EVIDENCE OF ANYTHING CAN BE FOUND AT [...]
His illogic continues, stating “If the Service is unable to protect the identity of its sources or is required to produce them in the context of a Court proceeding (even one that is closed to the public), the number of individuals willing to come forward with information would be reduced. Indeed, there is evidence before this Court that the recruitment of human sources would be harmed if the guarantees of confidentiality given by the Service were not upheld by this Court.”Anyone interested in considering such evidence can go to Mr. Noel’s footnotes, which read thusly: “[...]”
Of course, if a CSIS witness is forced to appear in a secret session, how on earth would A.B., potential CSIS informant in the community, even know, unless CSIS agents violated their own oath of secrecy and told them? In another case of CSIS easily pulling the wool over Noel’s eyes (something CSIS regularly does in these cases, simply making unsubstantiated, bold absolutist statements), “Evidence before this Court established that identifying a source to a Special Advocate or requiring a source to testify in a closed proceeding, even anonymously, will almost certainly end the Service’s relationship with that source.”
Again, the source of said bold statement is “[...]”
No proof required, for reasons of national security.
How, then, does one test the case against Mr. Harkat, as well as the cases against Mssrs. Jaballah, Mahjoub, Almrei, and Charkaoui? The answer, to CSIS’s satisfaction, is that the case will never be fully tested, even within the extremely problematic Special Advocate system where the detainee cannot see the case nor consult with the Special Advocates after the latter have viewed the secret file. All of the information on an individual will not have to be released, and CSIS is using secret arguments to build in even greater protections to cover it’s own derriere with respect to the errors, misinterpretations, and falsifications that are its trademark.
Clearly taken in by the spy agency’s scare-mongering press releases, Noel sounds the alarm, stating that “widening the number of people with access to the identity of a human source puts both the personal safety of the source and the national security of Canada into jeopardy.”
COURT COVERS CSIS BUTT
Special Advocates have argued that they should be able to see any information related to the Harkat investigation because of their top secret clearance and because they are bound to secrecy under the Security of Information Act. Noel disagreed, thereby rendering the Special Advocates to even more of a window dressing position than could have been imagined.Mr. Harkat’s right to defend himself is thoroughly gutted by the court’s deference to undisclosed, unsubstantiated national security considerations.
In concluding, Noel asserts the special advocates “have not established that the production of human source(s) as a witness in these proceedings is necessary to avoid a flagrant denial of procedural fairness,” which is quite rich given that the whole security certificate proceeding, special advocates or not, represents just such a denial of procedural fairness.
Noel ends with a political broadside, stating “there are issues which, on occasion, transcend the proceeding in which they arise. Issues that impact not only on similar proceedings but potentially on the intelligence system as a whole. The issue before me is one such question which will reverberate throughout our intelligence network – nationally and internationally. Great care must be taken by the Court in balancing the competing issues that have been reviewed in these reasons.”
Hence, CSIS remains protected from revealing its alleged case, increasing the likelihood of Mr. Harkat’s rendition to torture with Simon Noel’s judicial seal of approval.
The reasons for such a rendition to torture will also likely be a secret, because, as we can see from all the [...], we simply cannot be allowed to know.
CSIS GETS NO PUNISHMENT FOR ILLEGAL ACTIVITY
The Federal Court’s ongoing deference to CSIS in such matters is not surprising. Indeed, in December, 2008, it was revealed that CSIS, one party to these proceedings, had been listening in on two years’ worth of solicitor-client phone calls in three of these cases, a clear and well-understood violation of one of the bedrock principles of a democratic justice system.But while the Federal Court did issue an order calling on CSIS to stop listening to such calls, the judge hearing the case stated: “I don't want to hear any more about it. It is done. It is over. It is finished. It has happened. We understand it happened. It is unfortunate, but there is nothing we can do to change the past. We can only look at what goes from here in terms of where it will go from here.”
There is no sanction, no punishment, for CSIS. No indication that such behaviour will not be tolerated in the future.
Starting next month, the public portion of some of the rendition to torture hearings will get underway. Little of substance is likely to be heard from the government’s side because of “reasons of national security.” Thanks to Mr. Noel’s ruling, it appears increasingly clear that little of substance will be heard behind closed doors either.
Campaign to Stop Secret Trials in Canada, tasc@web.ca
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