Canada’s embattled spy service won three key court rulings Thursday, all centred on a single terrorism suspect: Mohamed Harkat, said a Federal Court judge, is a probable terrorist sleeper agent, one who needs to be banished for the greater good.
The rulings by Mr. Justice Simon Noel amount to a rare and unequivocal victory for the Canadian Security Intelligence Service, which has suffered many legal setbacks of late. A battery of top defence lawyers had failed to impugn CSIS – a fact made all the more significant given that some of Mr. Harket’s counsel had scrutinized highly secret “human source reports” whose release to outsiders would have been unthinkable not very long ago.
The judge’s rulings could have big implications for Canada’s so-called security-certificate law, a polarizing power that allows federal ministers to jail and deport foreigners on the basis of secret CSIS intelligence.
The rulings uphold three points. First, the security certificate alleging Mr. Harkat is a terrorist threat is reasonable. Second, CSIS’s investigative missteps – and there were some – do not constitute “abuses” significant enough to fundamentally undermine the Harkat case. Third, the government’s security-certificate power remains consistent with Canada’s Charter of Rights and Freedoms.
The federal government hasn’t used the power to launch any new terrorism cases since 2003, when debates about the rights of five Muslim detainees arrested in that era began prompting politicians and judges to blow up Canada’s security-certificate system and rebuild it. The government lost two cases last year; three remain active, including Mr. Harkat’s.
Will Canada now see the return of the law from the crypt to which it’s apparently been relegated? Security certificates remain an “an important piece of kit in the armoury,” said Reid Morden, a former CSIS director. He expressed guarded optimism that Judge Noel’s rulings might “provide quite a bit of comfort to ministers who want to sign off on it.”
University of Toronto law professor Kent Roach disagreed. “Does this mean more security certificates are going to be granted? I would think not,” he said. The cases, he explained, are multimillion-dollar marathons fraught with problems. “CSIS may have won this battle, but are they losing the larger war? This is kind of a war of attrition.”
The Harkat case was launched with his arrest in 2002. Today he lives under a form of house arrest, proclaiming his innocence.
But Judge Noel found that the 42-year-old Algerian refugee claimant is a demonstrable liar – and one who was likely sent to Canada 15 years ago to plan or fund terrorism.
The rulings suggest Mr. Harkat, an ostensible pizza delivery driver, got distracted from his mission by a gambling habit that cost him at least $100,000. Still, CSIS fingered him for having a past life in Islamist extremism he never owned up to. The rulings endorse the CSIS contention that he was affiliated with North African terrorist groups, prior to heading to Pakistan and Afghanistan to fraternize with members of Osama bin Laden’s network.
Judge Noel says Mr. Harkat met and phoned fellow veterans of Islamist guerrilla campaigns after coming to Canada. The most significant association is his relationship with Abu Zubaydah, a Palestinian detainee held in Guantanamo Bay, and the man now known to have been only one of three al-Qaeda suspects ever water-boarded – 83 times – by the U.S. Central Intelligence Agency.
Now, Mr. Harkat faces possible deportation to his homeland, but more hearings are to delve into that debate. Given that Canadian courts are reluctant to send such suspects to countries that torture prisoners, it’s more likely he’ll be subjected to low-level monitoring in Canada for the foreseeable future.
Mr. Harkat’s lawyers plan to appeal the new rulings.