Mohamed Harkat Condemned by Secret Allegations – Part 1 of 2

Matthew Behrens. Published on December 17, 2010

A week ago, three interconnected Federal Court decisions upholding the regime of secret hearings and judicially sanctioned rendition to torture were issued in Ottawa. On the eve of International Human Rights Day, the 8^th anniversary of his arrest on a secret trial certificate, Algerian refugee Mohamed Harkat and his wife broke down in tears as they received the news.

For the past eight years, Harkat has been subject to a “security certificate”, a measure by which individuals can be detained, held indefinitely without charge based on secret allegations neither they nor their lawyers can contest, and ultimately be deported, despite the risk of torture. The standard of proof in such hearings, which only apply to refugees and immigrants, is the lowest of any court in Canada, and a judge may accept as evidence anything not normally admissible in a court of law.

Despite a unanimous 2007 Supreme Court ruling that found the secret trials process was unconstitutional, Parliament in 2008 simply rubberstamped new legislation that very much mirrored the old. Despite a limited process of consultation with Parliamentarians, during which leading legal experts, academics, and human rights organizations showed in stark terms how the new law would not withstand a Charter challenge, the bill sailed through Parliament and, in 2008, resulted in new certificates being issued against Harkat and four other Muslim men (two of which have since been quashed).

In dismissing Harkat’s Charter challenge to the new regime, Federal Court Judge Simon Noel writes “Parliament has designed a security certificate regime that provides a named person such as the Applicant, Mr. Harkat, with a fair hearing”. Yet Noel fails to reconcile this belief with the finding of the Supreme Court that “a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case”.

At a packed December 10 press conference, Harkat lawyer Norm Boxall took reporters through a dozen of Noel’s inflammatory findings and noted that in each and every case, there was “absolutely no evidence” presented in public to support them, despite the legal team’s persistent requests for disclosure. Summing up the frustration that lies at the heart of the secret trial detainees’ struggle, Boxall asked, “What can an innocent person do other than to say ‘I didn’t do it,’ and then to be told that they’re a liar based on material they can’t face?”

While his lawyers have promised to pursue every legal angle they can, limited as they are under the legislation, Harkat now faces the threat of deportation to torture in Algeria. He is currently under bail conditions that require him to wear a GPS tracking bracelet, to report once a week to an immigration office, and to seek permission should he wish to travel outside Ottawa. Compared to the harsh house arrest conditions that he faced when first transferred out of prison in 2006, his current relatively easier conditions, though certainly frustrating, serve as an ironic counterpoint to Mr. Noel’s finding that Harkat suddenly poses a “danger” to Canadian security.

That finding is based on allegations that, among other things, Harkat allegedly operated a Peshawar guesthouse that “may be linked to Ibn Khattab” (a leader in the fight against Soviet occupation in Afghanistan who was later killed in Chechnya). Harkat denies this. Yet even if it were true, in a 2009 decision quashing the security certificate against Hassan Almrei, Federal Court Judge Richard Mosley found that the Almrei’s admitted “association with Khattab does not, in my opinion, support a finding that he is a danger to the security of Canada.” The fact that Noel would contradict his fellow judge in such a manner is, according to lawyer Norm Boxall, “at the very least embarrassing.”

In addition, Noel argues that Mr. Harkat’s statement that while in Pakistan he did not visit Afghanistan because it was a long 4.5 hour trip was “exaggerated” because when the judge looked at a map, it did not seem that far. Noel concludes, based on “closed evidence” that Harkat was in fact in Afghanistan (certainly no crime), and backs up his conclusion by saying this was information that was “tested” by the special advocates, as if their presence in the secret room somehow makes it true.

Such broad, unsubstantiated conclusions are rife throughout Noel’s decisions. Much is based on guilt by alleged association, regardless of the degrees of separation. Noel agrees with the unsubstantiated CSIS claim that Harkat may be a member of the “Bin Laden network”.  This concept whose existence is thoroughly rejected by top national security experts because this “network” uses false passports. When Harkat arrived in Canada he, like most refugees, also had a false Saudi passport.This, we are also informed, was the “passport of choice for Muslim extremists entering Canada prior to 2002”.

Noel also believes Harkat facilitated the entry to Canada of an individual who arrived with a “shopping list of munitions and weapons…and instructional documents on how to kill”. This does not sound like anything out of the ordinary for Ottawa, where weapons buyers from the likes of Lockheed Martin, L-3 Communications and other manufacturers of weapons of mass destruction regularly gather for trade shows that feature “lowest cost per kill” machinery. However, Noel says the fact that this individual also had in his possession what appears to have been excerpts from an Al-Qaeda instruction manual makes this all the more sinister. Harkat denied knowing and assisting this individual, yet Noel nevertheless goes on at length over several pages, reproducing the contents of the shopping list and manual. It’s a fairly blunt guilt-by-association maneuver that is all the more damaging to Harkat because has has no way of responding: the only information that allegedly links the two men was heard in secret. Where did this come from? Who was the informant, and how well-paid? Was the informant truthful?

Many of the allegations against Harkat appear to arise from summaries of alleged phone calls that took place a dozen years ago. Noel says that the public summaries “do not specifically mention where they originate from. This was deliberate”. Harkat argued they should not be admitted as evidence, since the original recordings have been destroyed, and all that remain are skeletal summaries of notes. Harkat is unable to determine which voices were on the phone (if in fact those calls did exist); who did the translation, and whether that translation was accurate; why his phone was apparently being intercepted; who actually wrote the summaries.

The summaries themselves are boilerplate CSIS, and read very much like those in related cases in which certain keywords are inserted and repeated to make it sound like Harkat is being deceptive or hiding something. Hence, we learn that Harkat “revealed” he would register for an ESL course, as if this were a decision bathed in mystery.

Noel comes to the startling conclusion that although Harkat disagrees with the existence and summarized content of specific calls, the fact that Harkat does allow that a couple of summaries of conversations with family members appear to ring true “can only demonstrate that the summaries of the conversations produced by CSIS are more reliable than not.” Noel then goes on to quote “John,” a CSIS witness who did concede “that errors can occur, but CSIS followed various methods to minimize them.”

Harkat denies making numerous of the calls. The Court, Noel says, could only accept Harkat’s denials “if the Ministers had made up this evidence in order to support the allegations.” He says there is no such evidence, but how would he know, and can he trust the word of CSIS, the RCMP, and other “intelligence” agencies when they normally come up with false allegations. One can only think of the non-existent weapons of mass destruction in Iraq or the commonly used “imminent threat” label wrongly affixed to numerous Canadians who were tortured overseas as a result. 

Indeed, Noel, who waxes on that “For the Court, honesty, truthfulness and transparency are essential to establish credibility”, knows full well that CSIS has failed on all three counts both before other judges as well as himself. In the Almrei case, his fellow judge Richard Mosley found CSIS agents “were in breach of their duty of candour to the Court”, noting  that the allegations against Hassan Almrei were assembled “with information that could only be construed as unfavourable to Almrei without any serious attempt to include information to the contrary, or to update their assessment.” He also found that ” certain of the human sources in this case had motives to concoct stories that cast Almrei in a negative light.”

Part 2 of this article will be published soon.

Matthew Behrens is a free-lance writer and coordinator of the groups Campaign to Stop Secret Trials in Canada and Stop Canadian Involvement in Torture