The secret court: Judges to go into hiding for Harkat hearing

The Globe and Mail

Mohamed Harkat listens to arguments at the Federal Court of Appeal in Ottawa on Feb. 21, 2012. (Adrian Wyld/Adrian Wyld/The Canadian Press)

When the Supreme Court of Canada returns from its summer hiatus, it will go underground – convening for an unprecedented bunker-style session.

During a unique, closed hearing on Oct. 11, the nine top court judges will meet with sworn-to-secrecy lawyers inside a secure room – and not necessarily at the Supreme Court itself. Together, they will review top-secret files relating to how informants passed intelligence to the government on terrorism suspect Mohamed Harkat.

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How sensitive is this information? Canada’s top court won’t even reveal where the hearing will take place. “The court cannot disclose the location of the in camera portion of the hearing for reasons of national security,” executive legal officer Owen Rees wrote in an e-mailed response to Globe and Mail questions.

Such secrecy is unheard of for the Supreme Court, an institution that televises its hearings, while writing rulings upholding open courts (and sometimes alleging that closed court hearings can give rise to “mischief that flows from a presumption of secrecy”).

“This is a court and a Chief Justice that have always moved in the direction of more openness to the public,” said Adam Dodek, a University of Ottawa law professor. Given this history, he said “there’d have to be incredibly compelling evidence of a security risk” for any sort of secret hearing.

The matters at hand are legal tangents relating to the decade-old Harkat case being mulled by the Federal Court of Canada, a level of court that so frequently deals with state secrets that it has built ultra-secure courtrooms impenetrable to outsiders or even sophisticated spying equipment. Now the Supreme Court is being pulled into this subterranean legal world as the nine justices ponder a pivotal question: How much secrecy should judges afford to Canadian Security Intelligence Service sources?

Government lawyers argue that CSIS informants need to be invested with a “class privilege” – a legal distinction that would make the anonymity surrounding the CSIS-informant relationship legally inviolable. Anything less, the government argues in a public filing, would cause CSIS informants to “close up like a clam.”

The legal issues arise in the Harkat case, which has twice landed on the Supreme Court’s doorstep and is poised to do so again this fall. Accused of being an Algerian al-Qaeda sleeper agent under Canada’s controversial “security-certificate” law, Mr. Harkat has seen his liberties restricted in Canada since 2002, when a CSIS dossier first persuaded a Federal Court judge to brand him as too dangerous to remain at large in Canada.

Eleven years later, Mr. Harkat is still here, denying ties to al-Qaeda, and fighting forms of house arrest and a looming deportation. On Thursday, the Federal Court allowed Mr. Harkat to stop wearing an electronic monitoring bracelet that had been on his ankle for years.

Demanding that he be allowed to confront his accusers and specific allegations, he is challenging the law.

The CSIS sources who first informed on Mr. Harkat are unknown. On Oct. 10, the Supreme Court will have a public hearing into the constitutionality of the so-called “security-certificate” regime that’s being used to neutralize Mr. Harkat. The next day, the judges will disappear to the secret hearing so as to better peruse the CSIS files.

Never drawn as deeply into a security-certificate case before, the Supreme Court must abide by laws requiring judges to do all they can “to ensure the confidentiality of information” in such cases. Their counterparts at Federal Court have done this, sources say, by being very cautious indeed – for example, by installing secure data networks in the secret courtrooms, and periodically sweeping these facilities for listening devices.

The quandary now is that, while the Supreme Court is not known to have sufficiently secure courtrooms built into its home base, the Federal Court’s facilities are said to be too small to accommodate nine judges. So the best location for the Harkat hearing is not clear.

What is clear is that secure intelligence courtrooms appear to have been in Canada for at least 30 years. In 1984, Parliament passed the CSIS Act, which created the standalone spy service from the remains of the discredited RCMP Security Service. This, in turn, led the Federal Court to build an ultrasecure courtroom, with a separate, top-secret-cleared staff.

For years, this primary secure Federal Court facility was known to insiders only as “the bunker,” for its cheerless ambience – a grotty, windowless, cinder block room in the basement of an Ottawa federal building. The bunker eventually expanded as a secondary court was cobbled out of an adjacent storage room. More recently, the two courts moved together to some more cheery surroundings – somewhere.

Roula Eatrides, a spokeswoman for the Federal Court, explained in an e-mailed reply to Globe questions that even Federal Court staffers only learn about these facilities on a “need to know” basis. She stressed that “these proceedings involve highly classified and sensitive information” and added that those who attend are “permanently bound to secrecy.”

Today’s facilities are “two secure courtrooms located in the same secure facilities,” said Ms. Eatrides, before adding that “the exact location is not widely disclosed for security reasons.”

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