Desecration of democracy
Threats to prosecute witness and defence attorneys at public portion of secret trial dominate Court Hearing for security certificate target Mohamed Harkat
By MATTHEW BEHRENS*
The following article was published in Shunpiking Online, Volume One, Number One, 7 August 2003
GATINEAU, QUEBEC -- OTTAWA IN SUMMER is a bustling, energetic tourist town, a political Disneyland, a massive set piece for a potboiler called "Canadian Democracy, Love It or Leave It."
But as with any Hollywood North epic, a visit to the set reveals that much is facade, much is myth and make-believe. While the most pressing issue of debate on the morning drivetime CBC radio show is whether the "Canada and the World" Pavilion is boring, tourists and bureaucrats alike nightly gather for a jazz festival in Confederation Park, watched over by the towers of the War Department.
As music fans quaff beers under postcard-perfect sunsets, it seems almost impossible to believe that in those towers, high-level War Department. officials, along with "just doin' my job" bureaucrats, are guiding the illegal occupation of Afghanistan, an occupation for which one commander immediately resigned upon its announcement, and for which War Minister John McCallum confidently concedes at least 10 Canadian soldiers will not return alive.
These officials are also pressing for the expansion of the Joint Task Force 2 (JTF-2) training area in Dwyer Hill over the objections of the community and a beleaguered farmer, Ron Mayhew, whose 36 hectares borders the site. He has been harassed by military security while on his own property, and part of his property was flooded when the military trespassed on his property to dig two ditches. JTF-2 is infamous for pictures of its commandos handing over Afghan prisoners to the U.S. for the illegal detention camp at Guantanamo Bay.
It might equally seem impossible to believe that in a building many jazz fans will stroll past later that evening - Citizenship and Immigration Canada - a man, minister Denis Coderre, signs papers that can have you declared a threat to national security, without telling you why. He is also behind a bill whichwill allow him to rescind the citizenship of permanent residents, using secret evidence, with no right of appeal.
But wait. The tour guides keep telling us that this is Canada, true north strong and free. Sure, we have our problems (okay, so over 5 million Canadians do go to bed hungry every night and hundreds of homeless die each year for lack of housing; sure, 5,000 people will die prematurely from air pollution while others will die from poor water treatment; sure, lots ofwar veterans still cannot access benefits from their government). But at least we have national security (whatever that means), and are onside in the war on terrorism (whatever that means).
For those who peek behind the happy facade that is carefree Ottawa in summer, though, something sinister can be found. A short stroll across the river to Hull (aka Gatineau) and a trip through the ridiculous security into one of the Gatineau courthouse's airless, windowless chambers (no shorts, no water, no throat lozenges), and one is suddenly on the wrong end of the rainbow.
It is here that the public portion of a secret trial is taking place. It sounds odd that a secret trial can have a public portion, but this is Canada, which is always short of the courage to do things straight up, damn the torpedoes, full speed ahead.
Indeed, just as close to 1,000 Canadian troops took part in the recent slaughter of Iraqi people - all, mind you, in the name of standing up to the Americans (who says irony died with 9/11?) - Canada likes to have it both ways when it comes to secret trials. If we must be repressive, let us at least appear to be democratic about it. If we are to enact a procedure in which someone in the prisoner's dock has absolutely no rights and zero chance of success, let's at least try to make it look fair with some fancy words and pretty window dressing.
And so, in this mid-July set piece, the latest players are gathered for a security certificate hearing for Mohamed Harkat, a sweet-faced man who seems almost embarrassed to be the subject of so much attention. Mo, as he is affectionately known to family and friends, is an Algerian refugee who represents the face of Canada's economic apartheid: he is part of that refugee and immigrant class of folks who do much of the low-paying, thankless hard work in this country. Until his arrest on International Human Rights Day, December 10, 2002, he was pumping gas and delivering pizzas on average 20 hours a day. He no doubt would have driven a taxi as well if the constraints of a 24-hour day and the requirement for some sleep did not exist.
Since December 10, Mo has been in solitary confinement at the Ottawa Detention Centre, held without charge or bail, on the vague assertion by Canada's scandal-ridden Canadian Security Intelligence Service (CSIS) that he may have in the past, could at present, or may at some point in the future be associated with an organization whose allegedly terrorist activities might make Mo a member of a class of persons who would be "inadmissible" to Canada.
Of course, in this game of smoke and mirrors, no one is actually saying Harkat has actually done anything wrong (though press reports noted with horror that he had taken pictures of Parliament Hill upon his arrival in Ottawa, a crime committed by postcardcompanies and thousands of tourists annually).
In a hearing earlier this year, Harkat lawyer Bruce Engel requested additional disclosure when all he received was a mandated "public summary" of a secret security intelligence report that outlines the foggy allegations against his client, allegations which are a collection of meandering reasons to believe, suppositions and theories which are not explained, for to do so would be "injurious" to national security and the safety of persons.
Of course, this concern about the safety of persons does not extend to the likes of Harkat who, if returned to Algeria, would be in mortal risk. If things were bad when he left as a refugee, they can only be worse upon a return stamped with "alleged terrorist" by the Canadian government.
Engel's spring request for additional disclosure was turned down by Federal Court Judge Eleanor Dawson. (One hesitates to use her official title of "Justice," for she presides over a hearing in which there is none.)
And so, Harkat, his lawyers, friends and family, are literally searching in a dark room to find a light switch that does not exist. They will not be told why this young man cannot see the "evidence," if such exists, against him.
But for anyone just peering in for the first time, the optics are intimidating. A judge is handed a 1,500-page dossier on terrorism-related news clippings, none of which mentions Harkat, but CSIS says it has "reasonable grounds to believe" he is somehow in the past, at present, or perhaps in the future associated with that dossier.
Nowhere in the public summary does it say that Harkat has broken any law or harmed any individual. But nonetheless, he still sits in solitary confinement, without charge or bail, for the protection of Canada and the preservation of Canadian democracy.
The court is full of security. On the left, in the centre near the judge, and on the right stand three expressionless RCMP tactical squad members, POLICE written across their bullet-proof vests and wires going into their ears. They are joined by three of their brethren who sit behind Harkat in the prisoner's box. Another crew of court security make sure no one puts their elbow on the back of their seat, chews gum, sips water or does anything to interfere with the demeanour of the court or the administration of justice.
A series of six microphones hang down from the ceiling, allegedly to capture the words of the judge, the lawyers, the Crowns, and the witnesses, but, as is appropriate in the public portion of a secret trial, they don't appear to work very well, so those in the gallery must strain to hear what is being said.
The two government lawyers -Michael Dale and Jim Mathieson, to be joined on the second day by a Donald Rennie, forming a menage of miserable men - are among the most unhappy men you are unlikely to see. One wonders if this sort of illegal proceeding eatsaway at the souls of those who prosecute them in the same way that it must have somehow, at some point, eaten at the conscience of those southern prosecutors who enforced segregation laws or Nazi lawyers who pursued Aryanization laws.
It's worth noting that Mathieson worked on the only case since 1991 that CSIS lost big time when it was impossible to lose - that of Mahmoud Jaballah. So he's likely going to be quite sensitive, especially when the lawyer who bested him, Rocco Galati, is also on the Harkat defence team. But just to be sure, Mathieson has added a megaton of overkill to his "case." He has written to Engel and Galati, threatening both them and a potential witness with prosecution under the Security of Information Act, the revised Official Secrets Act, with potential jail terms of 5 to 14 years. Why would such a threat be necessary? When you rely on secret evidence which neither the accused nor the defence lawyer can see, you can never be too sure!
It is this threatening letter and the intimidation of a witness, former CSIS agent Jean-Luc Marchessault, which forms the bulk of the second day of the hearing. But before that begins, the private lives of Sophie and Mohamed Harkat must be aired as part of a defence to show that the government's contention that Mo is a sleeper cell is about as accurate as claiming that the world is flat.
At first, it appears that this is like any other court hearing in Canada. Robed lawyers stand about, cracking knuckles and jokes, the prisoner in the box does not enjoy white skin privilege, and court security makes sure no one is wearing a hat. Then a doorbell rings, and a "quiet on the set!" order is enforced as the judge, Eleanor Dawson, walks in.
After the standard reading into the record of why we are gathered here, CSIS lawyer Jim Mathieson announces there is new information regarding contacts between CSIS and Harkat, but it cannot be released to Harkat's lawyer until an in camera (behind closed doors) meeting occurs with the judge and CSIS, without defence counsel present. After this meeting, a "public summary" of information will be given to Harkat. Although the "new" information, received the previous Friday, was from a 1998 interview, Mathieson says it was "overlooked" and just found. This is typical CSIS sloppiness (anyone interested in a 20-year history of incompetence, sloppiness and illegality on the part of Canada's national spy agency can wade through the voluminous reports on thewebsite of the Security Intelligence Review Committee).
Meanwhile, Engel reveals that he received a phone call late Friday from defence witness Marchessault, the former CSIS agent, who expressed a reluctance to attend because of the threatening letter which was sent by CSIS attorney Mathieson. Citing a fear of civil and criminal repercussions, Marchessault has sought legal counsel and the once cooperative witness is now afraid. As a result, an abuse of process motion will be brought forward due to this intimidation of a witness.
Following an hour break, the judge returns, satisfied that the "new" information is relevant, and that some of the information contained would be injurious to national security if revealed. She is"satisfied" that the summary provided is sufficient for the defence.
At this point, the judge and lawyers discuss how best to proceed. Dawson says she wants the hearing to go as quickly as possible for the sake of Harkat, given his ongoing detention, but the irony is lost here on those unfamiliar with Dawson's recent history (she is also the judge for the bail hearing of Muhammad Mahjoub, held since June of 2000 on a security certificate. She promised a decision from his May 11 bail hearing in "a few weeks," but almost three months later,he is still in detention, unable to hug and kiss his little children).
Things get sorted out, and Sophie Harkat takes the stand. She discusses her January 2001 marriage to Mo, and the courtship they undertook beforehand, begun when she was struck by the cute guy with the beautiful smile at the PetroCanada gas outlet. So cutethat she found excuses to go and buy diet Pepsi during his shifts, so cute that she even sent her mother over to check the guy out.
A good portion of Sophie's testimony focuses on Mo's former gambling addiction. On their first date, they went to the casino in Hull and he won $16,000. She says they didn't talk much about politics, and Mo's main interest was going to the casino when he was not working crazy hours at three jobs.
Like any couple, they had discussed having children, buying a house, settling down for a life together. The only major crisis in their lives was confronting Harkat about his gambling, and Sophie's persistent efforts to get him to stop, especially as his gambling debts went through the roof, eventually paid off, and things were getting better by the time he was arrested.
Sophie relates that although Mo does not talk much, he did tell her a bit about his past, when as a teenager, his family's house was used as a membership office for the Algerian FIS, a legal political organization which was brutally repressed when it appeared they would win an election in Algeria almost 15 years ago. As his friends were arrested, Harkat felt threatened and went to Pakistan, where heworked in a refugee camp distributing food and blankets. He eventually went to Malaysia for a week and then came to Canada. Mo told her he wanted to come here "because it's supposed to be a free country," a comment which draws laughter from the gallery.
Engel asks Sophie Harkat if Mo was ever evasive or inconsistent in discussing this with her, to which she firmly replies, "No." She says the only time he ever lied about his whereabouts was when he went to the casino, and she usually found out about this when she went through his receipts. It is clear through the testimony that Mo and Sophie were in almost constant contact with one another - he would call her five or six times during his shifts (she could tell where he was calling from on her call display), and in their free time they hung around their apartment or went to movies or out to dinner.
Was there ever a time when you did not know where Mo was, apart from his trips to the casino, Engel asks. No, Sophie replies, noting Mo is a bad liar, and she could always tell when he went to the casino even if he said he hadn't.
Sophie says the only time Mo gets emotional is in discussing how much his misses his mother in Algeria. He often sent money to his family, including one lump sum of $10,000 which he won gambling. He last saw her in 1990.
"He always said he wanted landed status so he could go and see his mom," Sophie says.
She also says Harkat is very disorganized, leaving his bills everywhere. "He used his car as a filing cabinet, and we lost some bills when our car was stolen in 2001." She found the stealing of the car strange, as it was a "crappy old Buick," but when they found the car a few blocks away the next day, those bills and receipts were missing. (Sophie later learned that CSIS often undertooksuch car thefts in looking for information.)
Establishing herself as the boss of the house, Sophie notes she took care of all the bills, even depositing Mo's cheques, so if she had seen anything suspicious - a long distance call, a weird transaction- she would have noted it.
Sophie details the process of trying to get Mo his landed status, and how it was taking incredibly long. This was difficult, as for refugees, healthcare is not as accessible as it is for landed immigrants. "I wanted his leg checked out, because he has a limp from when he was a young kid and dropped a propane tank on his foot. The bones in his foot were never operated on so one foot is larger than the other." Every time Sophie called to inquire about his status, they would tell her his file was with CSIS, or with Immigration. She was never interviewed by either organization with respect to his status.
She discusses how she and Mo watched in horror the events of September 11, 2001. "He was genuinely upset, we couldn't believe it was happening." She says she was more protective of him after that day. "It was obvious when we went grocery shopping that people looked funny at him because of his nationality. I could see he was being looked at in a different way."
On September 14, CSIS visited Mo while Sophie was at work. She was furious. Since Mo is not the type of guy who likes to argue or be disagreeable, she says, he spoke with them. They had asked him if he knew anyone connected to the events of the previous three days. "I was furious that they could come over like he was part of this event. We should have been brought to an office with a lawyer present. I felt this was an invasion of our privacy."
But Mo wasn't too offended. "He has the sweetness of a five year old child, he doesn't get into arguments, he's a bit too compliant sometimes."
Engel asks how Mo is when it comes to providing consistent information.
"He sucks,"Sophie says. "His English is terrible. He does not use complete sentences. He would say "This thing there, the thing there, that's how he speaks' (a real contrast to the perfectly formed English sentences that comprise his answers in CSIS interviews, interviews which were not tape recorded, but transcribed from written notes.)
"One question he was asked is what is the definition of discrimination," Sophie relates. "He didn't even know what it meant, he thought it was an appliance. Now that he's in jail he knows what it means."
Sophie says Mo doesn't remember names or dates, that it took him six months to remember her sister's name, and that he simply calls Sophie's mother "Mom" because he could never get her name right.
"He's an open book. He leaves everything lying around, he relies on me to do everything, his resumes, his bills, everything."
Sophie recounts how she consistently received strange calls every night at 11:30 pm. There was never any voice, just the sound of someone picking up on the other end. This happened for about six months until she finally called police. It stopped immediately. She thinks it was CSIS tapping her line.
She then describes the arrest. "It was like a horror movie." She didn't see Mo until almost two days later, at the detention centre. "We didn't really talk. We just looked at each other and said, 'what the...' We said we'll be strong. He didn't understand why he was there. It took two months to explain to him the difference between an allegation and a charge. He kept thinking he was there for 'tourism,' not 'terrorism.' He couldn't even get that straight."
Does Sophie have any doubts about the allegations against Mo? "None." Are you concerned for your safety if he returned home, she's asked. No. Has anyone ever come to protect you from Mo? Never. Did anyone warn Sophie about marrying him? No.
"You've seen the summary and the allegations. Are those allegations consistent with the man you know?" Engel asks.
"Do you love Mo?" Engel asks.
"I love him a million timers more," Sophie replies.
"What happens if he's deported?"
"If he goes to Algeria, he'd be going back to his death. I married him for better or worse, so I would go with him. I'm ashamed of the hell the government of Canada has put me through. I'm only asking the government to give us a fair trial. The more CSIS comes up against him the more I will support him. I love him more every day for his strength."
After lunch, Sophie is cross examined by CSIS attorney Michael Dale. His tone drips with contempt. He seems disturbed that Sophie has been so much in the media talking about the case. He quotes from some of the articles in which she has appeared and a Canada AM program in which she mistook Pakistan for Afghanistan. She explains she was called at 4:30 am to do the interview, was tired and stressed, and made the error, correcting it afterwards. His questions are short and designed to trip her up. He asks how Mo can see his mother if he feels threatened by return to Algeria. She explains no plans have been made, and they might have chosen to go to a third country for such a visit. Afterwards, she gets to sit with Mo for fiveminutes. She jokes, "I'm paying far too much for five minutes with my husband."
It's Wednesday morning, and a former CSIS agent has come to court to explain why he is afraid to testify.
Jean-Luc Marchessault was a rising star at CSIS who, disturbed by the corrupt workings of the agency, raised some questions and, as a result, was, as documented in Andrew Mitrovica's book Covert Entry,"the victim of a well coordinated campaign by CSIS to destroy his reputation, raise doubts about his allegiance and force him out of the service he loved."
As Mitrovica documents, Marchessault "saw some senior officers routinely return from lunch unsteady on their feet, while others didn't return at all. 'Some supervisors that I worked with would go out for two- to three-hour lunches and come back smelling like a brewery,' he says. 'And by four o'clock, the office was a ghost town.' He learned of senior officers who were involved in serious car crashes with CSIS vehicles. The accidents were covered up to protect reputations and careers. He saw officers embellish their reports with information from questionable sources to curry favour with their superiors. He learned that some money from intelligence operations had been used to buy stereo equipment instead. He saw safe houses used by officers for nightly trysts or weekend getaways. He learned that an officer had invited his mother along to a debriefing with a source....'There is an understanding, a culture at CSIS that says that to get along, you have to belong,' Marchessault says. 'The drinking, the laziness, the vices were all secrets of that fraternity.'"
Marchessault was eventually forced out of CSIS.
"They wanted to break me, but they couldn't," he told Mitrovica. "The service said I couldn't do my job, but it was a lie. They believe they are above the law, but they are not. They play by their own rules, and they make them up as they go along. They have absolutely no respect for the law, and it's time that CSIS was held to account. It may sound naive, but I truly believe that the rule of law is at stake here."
Marchessault's concerns about the rule of law are certainly on the minds of many in the courtroom that morning. After all, this is the second day of a hearing in which we are supposed to accept at face value the secret, uncontested word of CSIS, which, 20 years after its creation, is still criticized by its generally lap-dog oversight committee for not getting basic facts correct in writing affidavits.
Marchessault is here to discuss why he is afraid to testify. "If I answer [certain questions] I'm fearful of prosecution," he explains.
He explains that he is concerned that even if he provides truthful evidence, "for example, if I alluded to the fact that some of my colleagues play computer games all day," thathe could still be prosecuted. "It was my intention to speak in general terms," but not to reveal the nature of CSIS operations. But the penalty of 5 to 14 years in prison is a heavy one, and "even by providing the truth I could be prosecuted. I have two young children who are dear to me." He says if he were provided with some form of protection he would feel better.
The problem, it appears, is that Marchessault could inadvertently "cross the line,"even though he would not discuss operational methods. Theproblem is exacerbated by the fact that even if it is clear he does not cross that line, CSIS, being a vengeful organization, would say he had.
Galati asks whether CSIS agents have the capacity to make judgment calls on whether they are crossing the line while in court. Marchessault answers yes.
"Do you fear CSIS would have you prosecuted even if you didn't cross the line?"
"Yes, based on my experience with CSIS. I didn't intend to [cross the line], but I consider it a very powerful organization and I am fearful."
At the heart of this matter is a letter from CSIS lawyer Jim Mathieson to Harkat attorney Bruce Engel (and by extension to Rocco Galati, who joined the case later), written April 29, 2003. Without even knowing what Marchessault will testify to, Mathieson writes that nevertheless, provisions of the Security of Information Act (the revised Official Secrets Act) "apply to the testimony of M. Marchessault as an expert for Mr. Harkat. It also applies to any discussions he has with you as Counsel forMr. Harkat in preparation for his testimony." The letter further threatens the attorneys that, even in the process of preparing the witness, lawyers asking certain questions "could be construed to be an act by you counselling M. Marchessault to commit an offence contrary to sections 13 and 14 of the Security of Information Act."
In other words, even a discussion of potential testimony could wind all three - Marchessault, Galati and Engel - in the slammer for many years.
In a response, Galati wrote that the letter is "indigestively threatening and arrogant in its tone which, in its reference to already deliberated assertions of fact and law, orbits on the extortive with its threat that the calling of this expert and even talking to him could lead to criminal charges against counsel."
With respect to CSIS concerns about testimony regarding the means by which it gathers evidence, Galati points out "as the Supreme Court of Canada has already stated, in this context, there is only so many ways any investigative agency can collect information and/or evidence which is known to the Courts, and any illegal, or unconstitutional actions by your service agents cannot be blanketed by any non-disclosure privilege."
Galati concludes that he and Engel should not be subject to "in limine threats of criminal prosecution" in "an already oppressive and questionable procedure not yet reviewed, on its substance, by the Supreme Court of Canada."
"This threat by the CSIS counsel to criminally prosecute any potential witness and Mr. Harkat's counsel, if evidence to contradict the analysis or the assumptions in the CSIS summary were called, is medievally oppressive,"Galati explains. "That hasn't happened since the Middle Ages. You can't have the king in a sense telling the witnesses and the jury what to do... or else. How are we supposed to work under the threat of 5 to 14 years in prison for simply calling evidence?
"How would you feel if you sat there as a witness with the lawyer looking at you who's threatened to prosecute you depending on what you say, and how would you feel as the lawyer calling the witness with a lawyer sitting there who's threatened to prosecute you depending on what you lead into court? How do you conduct a fair, independent hearing with that kind of oppressive stench in the courtroom?"
Galati points out that no notice has been given to indicate Mr. Marchessault is permanently bound to secrecy. Galati says that a question can be asked and, if Mathieson objects on national security grounds, it goes to the judge for determination.
"CSIS agents regularly testify at these proceedings without fear of prosecution, because they are empowered to determine when they cross the line,"Galati explains.
As a result of this threatening atmosphere, an abuse of process motion has been brought forward calling for the certificate against Harkat to be quashed.
"This is an issue which pierces the integrity of the administration of justice and the independence of the judiciary," Galati points out. "We have threats of prosecution which have had the effect of chilling a witness. How does Mr. Harkat have a right to be heard if his lawyers are under threat of prosecution if they call evidence on the analysis in the public summary itself?"
Galati says Mathieson "as CSIS Counsel, is sitting as finder of fact, judge and jury," and that his letter threatens prosecution "without a hint about what the evidence is about." Galati says the letter is akin to a crown attorney sending a letter to all defence witnesses in a case threatening them with perjury if they provide testimony. "You wouldn't have too many witnesses" in that situation.
Once an operation is complete, the Supreme Court has ruled that the methods employed by police cannot remain secret. "It's no secret there are limited means of covert actions, from informants, surveillance, seizure of property, break and enter, but the threat of charges for me to speak of operational methods?" Galati asks. "To speak that the world is round is heresy - that's what is sounds like. If we cannot do this then my client cannot be heard. We have severe prejudice in undermining and removing his reasonable opportunity to be heard. It's an oppressive, abusive threat, especially in these post 9/11 times. Even if it's not designed to be, it doesn't matter, the effect is the same.
"In our view, Mr. Marchessault's responses to our questions would not cross the line, but if the respondents (CSIS) feel they do cross the line, then Mr. Engel and I will have to mortgage our houses. We don't have the information to make that judgment call, only the CSIS officer is in that position. We shouldn't have to be put into this position in a courtroom. It's a bad way to run the railroad. It taints the entire judicial proceeding."
Galati clarifies that at the least, for Mr. Marchessault to speak, an order would be needed that he can testify without fear of charges.
"It's common knowledge that Mr. Engel and I are under wiretap," Galati says. "I don't want to be prosecuted for preparing a witness. Without a blanket prohibition [regarding prosecutorial charges], the air of suppression lingers like smog on a summer day. We're not only uneasy for ourselves but, more important, it ties our hands in representing our client."
Galati then moves to the issue of calling a current CSIS officer, whose name no one except the CSIS lawyers knows, to clarify the broad allegations in the public summary.
"The summary is the only, and I put this word in quotes, 'disclosure,' for lack of a better word.... At the end of the day it's the only glimpse we have. Under the barest notions of natural justice, Mr. Harkat is entitled to have a witness speak to the nature of those allegations. We need someone who put this together for clarifying and focusing on what the statement is so Mr. Harkat can have a reasonable opportunity to respond and be heard."
Galati points out, for example, a reference made to Afghanistan (a country Harkat denies visiting). It does not say whether Harkat was alleged to be there when the U.S. supported those resisting Russian occupation, or at sometime later. The distinction, in defending Harkat, would obviously be a crucial one, and answering the question could in no way endanger national security.
At paragraph 65 of the summary, it says Harkat supports individuals and groups involved in political violence and terrorism, a broad allegation. Are these two terms to be equated as the same?
"Without clarification," Galati concludes, "this summary says if you're a Muslim touching on any conflict anywhere, anytime, you're an extremist."
Dawson suggests written questions could be put to a CSIS officer behind closed doors, without Galati there to hear the responses. Any responses would then be filtered for "national security" and returned to Galati and Engel, who would then provide additional written questions for follow-up. Galati insists in-person questioning is easier and more effective.
The CSIS attorneys respond to the abuse of process motion and request for a CSIS agent to testify by essentially pooh-poohing the whole thing. Attorney Rennie actually stoops to the point of suggesting things would go a lot smoother if Galati and Engel actually worked on a close level together with the CSIS lawyers, cooperating to present the case to the judge in a collegial, friendly spirit.
It is a disturbing, Kafka-esque idea which Galati dismisses. "To say it is our job to work with the crown is nonsensical, absurd. It's our job to make sure our client gets a fair hearing, that's our only job, to make sure we uphold the rules of the court and the laws of our country. It's not our job to help the crown prosecute our client."
Rennie says the threatening letter is in fact "measured in tone, informative in content," and dismisses the notion that any prosecution is intended.
CSIS lawyer Mathieson says that to allow a CSIS witness to testify would be to seek additional disclosure, and that matter was already dealt with in the spring. Galati has said on half a dozen occasions that he does not seek additional disclosure, but clarification of what is a minestrone of allegations that reads like "around the world in 80 minutes."
Mathieson counters that "we all know" how Mr. Galati operates (as if to defend your client as best as you can is a crime) and that "I can only assume answers (to Galati's questions) would be injurious to national security."Mathieson asserts this not knowing what questions will be asked, or why.
He says in terms of clarification from Galati, "it would not end there, it could not end there. It would force the witness to go behindthe summary and tread on ground covered in the [secret] security intelligence report [which neither Harkat nor his lawyers can see]."
Both Mathieson and Rennie refer to the Ahani security certificate case in a disturbingly detached manner. They do not explain what eventually happened to this Iranian refugee who spent nine years in Canadian prison on secret "evidence," without charges or bail, before he was deported back to Iran last year against the objections of the UN Human Rights Committee. He has disappeared.
Galati responds that he does not see how his questioning the service's view that the FIS (Islamic group in Algeria) constitutes a terrorist group would injure national security.
As we leave the court that afternoon, a critical question remains unresolved. It is unclear how a defence can be mounted without a judicial order preventing the attorney general from taking legal action against Harkat's lawyers or their expert witness.
Dawson says she needs a day to figure this all out and will return on Friday morning with a decision.
It's Friday morning, and Dawson's answers are not positive at all. Like a southern judge throwing Rosa Parks in jail because the law is the law, and the law says black people can't sit in the whites-only area of the bus, Dawson adheres to the unfair security certificate law, explaining what her role is and how she has been "careful" in the process. "Throughout, I am mindful that the openness of court proceedings is one of the important protections of our free and democratic society. At the same time, our free and democratic society depends upon the protection of our nation's security."
She then says Harkat may submit written questions, and "to the extent that the Ministers have any concerns that the answer to any question may be injurious to national security or the safety of any person, they may request that the Court hear such information in the absence of Mr. Harkat and his counsel."
So much for an open court proceeding.
Dawson then dismisses the abuse of process motion, quoting Rennie as saying the letter is informative and measured. She also says, with respect to protecting Marchessault, that "it would be a matter of significant surprise to me if truthful testimony given in this Court in this proceeding could result in prosecution."
Afterwards, Engel says the "language" of her ruling doesn't go far enough to make anyone "comfortable" with testifying or questioning a witness about CSIS methods.
"I still have some very strong concerns and some reservations about continuing in this manner," Engel says, as "none of us still have the protection we want and that's a problem."
He calls the decision "a brick wall" which ties his hands and which could lead to a long, drawn-out process.
And so it was handcuffs and another trip back to the Ottawa Detention Centre and the solitary confinement cell for Mohamed Harkat. With his fellow Muslim security certificate detainees Muhammad Mahjoub (jailed since June 2000), Mahmoud Jaballah (August 2001), Hassan Almrei (October 2001) and Adil Charkaoui (May 2003), he awaits a more enlightened time both in the courts and in the legislature, when the use of secret evidence by an organization with a shoddy record when it comes to truthtelling, will be a nightmare in our collective past.
In the meantime, four upcoming events will provide folks concerned about this desecration of democracy an opportunity to be heard. In Toronto on Thursday, August 14, friends and families of the detainees will be in front of the CSIS headquarters at 277 Front Street from 12 noon to 1:30 pm, handing our flyers and gathering signatures on a petition that will be presented to the Prime Minister's office in Ottawa on Monday, August 25. There will also be a Festival of Rights in Grange Park in Toronto on Saturday, August 23.
On Friday, October 31, friends and supporters are organizing a national day of actions against secret trials in Canada, with a nonviolent civil disobedience at CSIS headquarters in Ottawa. If you would like to organize a vigil or public eventin your community on that day, please get in touch with us. The greatest threat to CSIS' bulldozing of civil rights is exposure. Join us in that campaign of exposure, and demand an end to the security certificate and use of secret evidence.
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