When Governments Take a Leak, it Can Smell Very Bad

The recent leak to La Presse of an alleged CSIS document implicating Adil Charkaoui and Abousfian Abdelrazik in a plot to bomb an airliner raises the most serious issues.

These emphatically do not include the specific allegation nor the implication that either man represents an actual terrorist threat. These are without substance, as the government’s own conduct of the Charkaoui security certificate appeal and its handling of Abdelrazik’s case clearly demonstrate.

The real issues surround the behaviour of Canadian security agencies in apparently violating the Security of Information Act to defame individuals whom they have been unable to convict in the courts; media complicity with such behaviour; and finally the potential responsibility of high government officials in either deliberately failing to investigate and charge the leakers, or by covertly authorizing such actions by their appointees.

What makes matters worse is that this leak is not the first. The agencies are repeat offenders, and there is worrisome reason to believe that this is a recurrent pattern in which the agencies, after failing to make a case, use media leaks to smear the individuals in question.

The Charkaoui-Abdelrazik leak to La Presse is itself a repeat of a similar leak to the same newspaper in 2007. The first instance, the template as it were, for this pattern of deliberate leaking, was the notorious leak to Juliet O’Neill of the Ottawa Citizen of material in secret files allegedly implicating Maher Arar in terrorism following his release in 2003 from extraordinary rendition and torture in Syria. It is worth examining each of these leaks in turn.

THE O’NEILL LEAK

By the time the first Report of the O’Connor inquiry into the Arar affair was released in 2006, the media had become largely sympathetic to Arar as an innocent victim of the War on Terror.

This had not, however, always been the case. At the time of his release, anonymous ‘officials’ were quoted by eager journalists as casting aspersions over Arar; claiming falsely that he had been to Afghanistan “several times”; denying that he had been tortured in Syria; insinuating that he had critical information on terrorist plots in Canada; sneering, in the crude terms attributed to one senior official: “This guy (Arar) is not a virgin.” As Justice O’Connor wrote, these leaks were “timed to implicate Mr. Arar in a terrorist scheme just after his return to Canada.”

These leaks paled beside the bombshell that appeared in the Ottawa Citizen on November 8, just four days after Arar’s press conference on his return. The front-page story by Juliet O’Neill was replete with numerous details that could be found only in the files of Project A-O Canada, the RCMP investigation of alleged terrorist activity in the Ottawa area.

It was patently evident that a person or persons from within the high security investigation had deliberately leaked classified information (cherry-picked for particular effect, and some of it inaccurate) purporting to discredit Arar. In O’Neill’s own words: “it was in defence of their investigative work – against suggestions that the RCMP had either bungled Mr. Arar’s case, or worse, purposefully sent an innocent man to be tortured in Syria – that security officials leaked allegations against him”.

O’Connor of course found that the allegations were without foundation, that there was no evidence whatsoever of Arar’s involvement in terrorism, a finding accepted unreservedly by the Harper government.

To cover their butts, officials in positions of public trust were willing to betray that trust by selectively leaking secret information to which they held privileged access, in violation of the Security of Information Act. Worse yet was the intention to smear the reputation of a man who had been kidnapped and tortured, partially as a result of the very actions of those doing the leaking. And worst of all, they were able to do this with complete impunity.

The first reaction of the RCMP brass was to land with ham-fisted incompetence not on its own leakers, but on the reporter chosen as their conduit. A raid on Ms. O’Neill’s home and subsequent charges against her were intended to force her to disclose her sources. That failed. In the courts, the abortive raid served only to invalidate three sections of the Security of Information Act.

No one has ever been identified and charged with the offence of passing classified information to O’Neill, despite a supposed internal investigation by the RCMP. It should be understood that a finite number of people had access to the leaked information. Yet every officer who could have been the source of the leaks has subsequently been promoted or otherwise rewarded for their service.

There are obvious issues arising from this less than exemplary story concerning the ethics of government officials, both civilian and RCMP.

There are also issues of the ethics of the media, in uncritically accepting and publishing leaks from self-serving sources within the security establishment – in effect acting as unwitting agents of disinformation. Some reporters who were used in this way have subsequently apologised for their credulousness. Ms. O’Neill has not.

This is an unresolved debate about the responsibility of the media in dealing with the machinations of the secret state. Are reporters justified in grabbing a national security scoop dangled before their eyes without critically interrogating the motives of the leakers? And are they justified in protecting their sources, even when it has become apparent that they are thereby protecting lawbreakers with no legitimate whistleblowing motives?

THE LA PRESSE LEAK PART 1

The first leak about an alleged conversation between Adil Charkaoui and two other persons, one of whom may have been Abousfian Abdelrazik, concerning an attack on an airliner, was in 2007. Charkaoui was contesting the legality of his security certificate before the courts.

In 2007 a landmark Supreme Court decision compelled the government to revise its security certificate regime significantly. The case against Charkaoui was already beginning to crumble: it would ultimately be thrown out of court altogether in 2009.

Abdelrazik was the unfortunate Canadian imprisoned and tortured twice in Sudan; he had been the target of CSIS surveillance and may have been detained in Sudan on CSIS advice. In 2007 he was still in Sudan and wanted to return to Canada. Evidence against both men came from Abu Zubayda, the repeatedly waterboarded and mentally unstable Guantanamo prisoner. His torture-induced ‘evidence’ was so untrustworthy that in 2008 the Crown declared that it could no longer rely on Zubayda ‘hearsay’ against Charkaoui. It was against this background that the leak was produced supposedly linking Charkaoui, and perhaps Abdelrazik, to aviation terrorism.

That leak was the subject of RCMP and CSIS internal investigations, the results of which have never been made public. Charkaoui won a Federal Court challenge against La Presse in 2008. The paper was ordered to reveal the identity of the source who provided the document, but this too has never been made public. Mr Justice Simon Noel said that “the court has unproven information concerning Mr. Charkaoui to the effect that, at a meeting in June, 2000, he discussed with two people hijacking a commercial aircraft for violent purposes.” There the matter rested, uneasily, until La Presse re-leaked a few weeks ago.

Related Videos:

Abousfian Abdelrazik

The other Arars

Abousfian in his own words

THE LA PRESSE LEAK PART 2

The second leak explicitly names Abdelrazik as co-conspirator with Charkaoui. La Presse claims that its story is based upon a different document than the one referred to in its 2007 story. It also claims that while CSIS will not publicly acknowledge the authenticity of the document, the agency also requested that the paper not reveal the CSIS agents named in it. At issue is a purported summary of an intercepted conversation in the summer of 2000 in which Charkaoui and Abdelrazik appear to discuss ways to blow up a passenger flight from Montreal.

Consider the context of this leak. Charkaoui has been freed after the government in effect abandoned its case against him in Federal Court. Abdelrazik’s return to Canada was forced upon a recalcitrant government by another Federal Court decision that found no evidence of his association with terrorist activity. Both Charkaoui and Abdelrazik have launched lawsuits against the federal government and federal officials for violations of their constitutional and human rights. Charkaoui sought disclosure of documents used by the government to justify the security certificate that had kept him in detention for years. The government released only pages of redactions. And then, in Charkaoui’s own words, “four or five days later they leak a document to La Presse. It’s really incredible. It’s not something you would say happens in Canada. It’s Mozambique or Zimbabwe… ”

Sadly, it is Canada, not Zimbabwe. Instead of Robert Mugabe, we have Jason Kenney who from his post as immigration minister, instead of calling for an investigation into the deliberate leak of a supposed secret document, declared that “people should give the government and its agencies the benefit of the doubt,” since there was “very robust evidence” of terrorism that is “hair-raising”. Menacingly, Kenney went on to say that groups supporting Charkaoui and Abdelrazik should “think very carefully about this” (perhaps intimating government retribution?).

Exactly why Kenney cast himself in this role is unclear: his ministerial duties include no responsibility for either case, Charkaoui falling under the jurisdiction of Public Safety minister Vic Toews, and Abdelrazik under Toews and the Foreign minister. But more importantly, the claim that the leaked document provides “very robust evidence” is nonsensical: if it was such, why was it not used in court against Charkaoui?  If CSIS wished to claim the right not to disclose such sensitive intelligence in court, why did it then leak it to the press?

As for Abdelrazik, Mr. Justice Zinn of the Federal Court who examined his case for return to Canada asked for the opinions of CSIS and RCMP as to any security threat posed by him. This is what he received:

“The Service has no current substantial information regarding Mr. Abdelrazik”: CSIS letter dated November 6, 2007.

“Please be advised that the RCMP conducted a review of its files and was unable to locate any current and substantive information that indicates Mr. Abdelrazik is involved in criminal activity”: RCMP letter dated November 15, 2007.

We can only conclude that this leak is either an outright fabrication, or a document the provenance of which is so dubious that a government determined to keep Charkaoui under a security certificate and Abdelrazik out of Canada would not dare to use it even as secret evidence. But CSIS would dare to leak it to a newspaper ready to print an apparent scoop without asking any questions about how the media were being misused and manipulated by an agency operating suspiciously in the shadows.

The O’Neill leak at least called forth an apparent investigation, even though it was designed to fail. The La Presse leak has not even brought the pretence of a search for culprits who may have violated the Security of Information Act.

There is a possible explanation for this, one which minister Kenney’s ill-chosen remarks may hint at. The leaker or leakers would not be in violation of the Act if they were in fact authorized to disclose an otherwise confidential or secret document by their superiors, or by a minister of the Crown. If this turns out to be the case, we face an even more appalling situation than we did at the time of the O’Neill leak. This time it would be the senior management of CSIS, or worse, government ministers who have chosen to subvert the rule of law and judicial process in order to smear innocent persons in an attempt to cover their own incompetence.

When governments take a leak, it can smell very bad indeed.

Reg Whitaker is a Distinguished Research Professor Emeritus at York University and an Adjunct Professor of Political Science at the University of Victoria