Divisive terror law losing traction

TORONTO — From Monday’s Globe and Mail
Last updated on Monday, Sep. 21, 2009 07:07AM EDT

Ottawa will scuttle one of its high-profile "security-certificate" terrorism cases later this week, amid a growing reluctance to use the extraordinary power to deport suspected terrorists, according to recent court filings.

The move is likely the beginning of the end of the controversial tool that Ottawa has relied upon since the end of the Cold War, to kick out foreign spies and alleged terrorists. This position follows several embarrassing court-ordered revelations, including that the country’s spy agency, the Canadian Security Intelligence Service, has buried information from its own dubious sources and repeated evidence from U.S. allies who subjected al-Qaeda suspects to the harsh interrogations.

The security-certificate tool has been used about once a year since it was put on the books in the late 1980s, but no new cases have been launched in three years.

Through this power, federal ministers sign off on a certificate after viewing secret CSIS information, which allows officials to immediately jail, and eventually deport, a non-citizen.

The "intelligence" used to do this is disclosed to judges but never fully revealed to the accused, drawn as it usually is from secret agents and wiretaps, sometimes placed within Canada but also frequently "loaned" from foreign governments on condition that the provenance be kept secret.

The case involving Adil Charkaoui, a Moroccan living in Montreal who has been jailed and closely watched since he was branded an al-Qaeda operative in 2003, has already prompted two Supreme Court rulings forcing greater transparency of intelligence practices.

In Federal Court filings in the case, government lawyers contend that judges are misinterpreting the Charter of Rights to force the spillage of state secrets, and argue that this transparency is jeopardizing Ottawa’s spy sources and relationships with allied intelligence agencies.

Officials aren’t commenting ahead of this week’s hearing, but the filings reveal the CSIS is saying it has had enough.

Rather than comply with a judge’s order to disclose sensitive intelligence, they want to pull the evidence – saying they now hold Mr. Charkaoui to be less of a threat to national security than further court-ordered revelations of the secret information that was used to build the case against him.

"The ministers are of the opinion that divulging certain information obtained from communications intercepts and human sources would undermine national security," say Crown lawyers acting for CSIS in their filings this month.

Yet even as it torpedoes its own case, the Crown is asking the Federal Court to let its agents keep Mr. Charkaoui – who could leave this week’s hearing a completely free man for the first time in six years – under close surveillance as higher courts settle what intelligence should and should not be disclosed in this case and others.

Countering this position, the Moroccan’s lawyers say the government can’t have its cake and eat it too: If it no longer has adequate evidence to brand the man a threat, Ottawa must let him go – no strings attached.

The Federal Court must decide how to proceed. All of this amounts to a stark example of the "intelligence-to-evidence" debate, a chronic conundrum with which every Western country grapples.

U.S. spy services are growing increasingly scornful of allies who spill secrets.

And as more and more CSIS agents are grudgingly compelled into court, they are digging in their heels against revealing secrets – not just in the handful of active security-certificate cases, but also in trials for terrorism suspects facing jail or extradition. (For example, the spy service is girding for more secrecy battles in next month’s trial to extradite al-Qaeda suspect Abdullah Khadr, and has largely won its battles to keep its role from public view in the ongoing "Toronto 18" terrorism-conspiracy prosecution.)

This week’s hearing won’t be the first time the evidence has been pulled in the Charkaoui case. A few years ago the government was forced to drop hearsay intelligence emanating from a leading terrorist figure held in Guantanamo Bay. It’s now known that incriminating information concerning Mr. Charkaoui travelled to Canada only after the U.S Central Intelligence Agency "water-boarded" a detainee, Abu Zubaydah, 83 times.

Problems have also arisen from Canadian sources. This summer in another security certificate case, judges revealed that CSIS used a secret human source to brand an Algerian an al-Qaeda threat – but, for seven years, buried information that that source flunked polygraph tests.

Spies are, by nature, unaccustomed to testifying in open court. But former CSIS head Jim Judd recently lamented in a speech the growing "judicialization" of intelligence matters; he told an audience that "this has to be the decade that spies came in from the cold – whether voluntarily, or kicking and screaming." Some of his subordinates have been less polite in the past, complaining they have suffered nothing less than a "judicial jihad" on their secret sources and methods.

In any event, security certificates have long been showing diminishing returns for the government, to the point that some officials now talk about the power in the past tense. The five active security certificate cases are legacies of mid-1990s intelligence investigations involving immigrants from the Middle East and North Africa.

Initially jailed for two years, Mr. Charkaoui remains watched, but is now able to travel, work and board airplanes. No new security certificates have been issued since 2006 – and that involved a Russian spy posing as a Canadian, who did not fight his removal.


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