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Democracy Desecrated: The Secret Trial of Mohamed Harkat in Ottawa

Threats to Prosecute Witness and Defence Attorneys at Public Portion of Secret
Trial Dominate Court Hearing for Security Certificate Target Mohamed Harkat
Judge refuses protection to former CSIS agent, defence lawyers

by Matthew Behrens

July 30, 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 Dept.

As music fans quaff beers under postcard-perfect sunsets, it seems almost
impossible to believe that in those towers, high-level War Dept. 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
(JTF2) 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 which
will 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 of war veterans
still cannot 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. Mohamed, 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 taxi as well if the constraints of
a twenty-four hour day and the requirement for some sleep did not exist.

Since December 10, Mohamed 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 Mohamed a member of a class of persons who would be "inadmissible" to

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 postcard companies 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 eats away 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 Mohamed is a sleeper cell is about as accurate as claiming
that the world is flat.

DAY 1 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 in to 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 the
website 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 or 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 Mohamed, 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 cute that 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 Mohamed'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 Mohamed's main
interest was going to the casino when he was not working crazy hours at three

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 Mohamed 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 he worked in a refugee camp distributing food and
blankets. He eventually went to Malaysia for a week and then came to Canada.
Mohamed 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 Harkat if Mohamed was ever evasive or inconsistent in discussing
this with Sophie, 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 Mohamed 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 Mohamed was, apart from his
trips to the casino, Engel asks. No, Sophie replies, noting Mohamed is a bad
liar, and she could always tell when he went to the casino even if he said he

Sophie says the only time Mohamed 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
undertook such 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 Mohamed's cheques, so if she had seen anything
suspicious --a long distance call, a weird transaction -- she would have noted

Sophie details the process of trying to get Mohamed his landed status, and how
it was taking incredibly long. This was difficult, as for refugees, health
care 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 Mohamed watched in horror the events of Sept. 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 Sept. 14, CSIS visited Mohamed while Sophie was at work. She was furious.
Since Mohamed 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 Mohamed 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 Mohamed 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 Mohamed 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 6 month 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
Mohamed 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 Mohamed? "None." Are
you concerned for your safety if he returned home, she's asked. No. Has anyone
ever come to protect you from Mohamed? 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 Mohamed?" 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 Mohamed can see
his mother is 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 Mohamed  for five minutes. She jokes "I'm
paying far too much for 5 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, twenty 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," that he 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. The problem 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 intent 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 for Mr. 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

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

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

"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

"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 linkers
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

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 Mathiseon 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 behind the 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.

Day 3 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

"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 event in 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.


You can contact  Matthew Behrens via Homes not Bombs, PO Box 73620, 509 St.
Clair Ave. West, Toronto, ON M6C 1C0,[1],  (416) 651-5800.


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