Courts jeopardising terrorism fight: minister

Well, I suppose the issue is liberty or security -- but it's easy to blame judges who can't reply. My instinct is that terrorist crime is, first, crime and the terrorist label simply puts it into a specific category of crime. So, it should be prosecuted as crime and that means the accused has the usual rights.

By the way, an interesting factoid for those who believe Canada is soft on crime -- how many acquittals are there from a hundred charged?

Three

(See Professor Roach's new edition)

Generally people charged are convicted.

Courts jeopardizing terrorism fight: minister

Janice Tibbetts, Canwest News Service
Sunday, Sep 27, 2009

OTTAWA - Public Safety Minister Peter Van Loan says he fears for the government's ability to fight terrorism in light of "an increasingly complex legal environment" in which judges are no longer deferring to the government in its efforts to deport foreign suspects.

"It raises questions about whether we can protect national security and I can tell you I am concerned," Van Loan told Canwest News Service. "I spend a fair bit of time thinking about it."

His comments followed a disastrous week in the courts for the Conservative federal government as it watched one of its key tools for fighting terrorism -- the power to detain non-Canadian suspects without charge or without knowing the case against them -- suffer critical blows that have left the regime in tatters.

On the approval of two cabinet ministers, the government can issue immigration "security certificates" that permit the incarceration of a suspect in "administrative detention" until a Federal Court judge determines whether he or she should be returned to his or her home country.

The program has been losing steam in recent months amid revelations of Canadian Security Intelligence Service gaffes, court orders for the government to disclose more information, and government admissions that it poses too much of a threat to state secrets to continue the pursuit.

"All this adds to the already tenuous legitimacy of the regime," said Mike Larsen, a security analyst at York University's Centre for International and Security Studies.

"They've never done anything to serve the intended purpose to facilitate a swift deportation process, through secret proceedings."

Van Loan would not comment on whether the Harper government is officially reviewing its security-certificate program.

Larsen scoffed at complaints, raised not only by Van Loan but also by former CSIS director Jim Judd, that overzealous judicial scrutiny of anti-terrorism intelligence is threatening national security.

Rather, court oversight is serving the purpose of revealing shoddy CSIS practices in the post 9/11 era rather than state secrets, Larsen said.

Last week, judges lifted strict bail restrictions on two of the five Muslim men whom the government is seeking to deport on allegations they have ties to the al-Qaida terrorist network.

Adil Charkaoui, a Morrocan-born father of three, won his liberty in Montreal when federal lawyers withdrew much of the evidence against him in court -- collected largely through wiretaps and foreign intelligence sources -- saying it must be kept secret to protect national security.

Justice Daniele Tremblay-Lamer declared the security certificate against him, issued in 2003, will inevitably fall after a closed-door hearing this week with federal lawyers.

Mohamed Harkat, a former pizza delivery man from Ottawa, also secured more freedom than he has had since his arrest seven years ago.

The case against the Algerian-born man has been temporarily suspended after a judge revealed last spring that CSIS misled the Federal Court about the credibility of an intelligence informant.

Lawyers for a third man -- Syrian-national Hassan Almrei of Toronto -- are also seeking to have his case thrown out in light of recent revelations that CSIS had admitted that one of its informants was deceptive and another source never took a lie-detector test, despite earlier claims from the spy agency that he had passed.

The seldom-used security-certificate regime has existed since 1989 and the government was successful in deportation proceedings in almost all of its cases until the program became a chief element of the federal "war on terror."

Under a security certificate, unlike a charge under the Criminal Code, accused terrorists and their lawyers do not have a right to see the intelligence gathered against them.

Van Loan says he is puzzled about the crash of the previously successful regime.

"It held up quite well until 2006,"he said. "We started getting different court decisions in the exact same facts."

It was in 2006 that the Conservatives formed the government, replacing the Liberals.

Lorne Waldman, Almrei's lawyer and vocal security-certificate opponent, credits the Federal Court's change of course to the presence of new "special advocates" for the accused who are permitted in the closed-door hearings to challenge government evidence.

The advocates were ordered by the Supreme Court of Canada in January 2007 when it struck down the security-certificate regime as unconstitutional and forced the government back to the drawing board.

Waldman also noted that the Federal Court, which decides in secret hearings whether the security certificates should stand, is demanding more federal accountability than it did in the early years following the 2001 terrorist attacks against the United States.

"We have seen the pendulum swing to a more balanced approach where you can't sacrifice the rights of individuals on the altar of national security," Waldman said.

The government has not issued a security certificate against a terrorism suspect for six years. A facility that opened in 2006 to detain the current suspects has been virtually mothballed and its future is under review.

All four of the men incarcerated at the facility's peak have been freed by the courts. The only remaining resident is Egyptian-born Mohammad Mahjoub, who voluntarily returned to detention last winter after convincing a judge he would rather be incarcerated than force his family to endure the strict surveillance that was a condition of his 2007 release.
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