CSIS did not disclose informant failed polygraph

On June 5, 2009 the Federal Court released details of the “significant” information that had been withheld by CSIS about a human source. The expurgated version of the top secret May 26th letter delivered to Justice Noel reveals that the informant who had implicated Mohamed Harkat as an al Qaeda operative did not pass a polygraph in 2002. The polygraph had been administered because of undisclosed issues that caused CSIS to question the informant’s loyalty to the Service. Although the polygraph results indicated that the informant had been truthful about his own associations with other agencies or militant organizations, the examiner concluded that the informant lied when asked other questions, presumably about Harkat. CSIS had previously disclosed to the court that the informant had been truthful about certain questions – but failed to disclose the negative polygraph results related to Harkat.

The expurgated letter also reveals that Justice Noel has been urging CSIS to approach “foreign agencies” to reconsider their position on the release of their information relevant to the case. Such consent is required by the third party rule, pursuant to which information that originated with a foreign agency is protected by national security confidentiality unless the foreign agency lifts its caveats. CSIS had previously refused to seek consent again from the relevant agencies, but as a result of the developments involving the informant, CSIS confirmed on June 5 that the Ministers have directed CSIS to seek the consent of foreign agencies to release information to Harkat.

CSIS is clearly worried about its credibility given these events. In his June 5th letter, Michael Duffy, CSIS’ senior general counsel, acknowledged the seriousness of the issue and stated that the “Service is resolute in its determination to restore judicial confidence” in the integrity of the Service’s evidence and in the credibility of its employees. Duffy announced that an internal investigation is being conducted into the matter, and all security certificate related human source matrices (disclosures) were being reviewed by two intelligence officers, two senior managers and a Department of Justice lawyer.

For its part, the Court is recalling three CSIS witnesses who had previously testified in closed hearings. Justice Noel has also reserved the right to call other witnesses should circumstances so warrant.

In an interview with the Globe and Mail, Harkat’s lawyer Norman Boxall stated that in light of all of the facts, he can only conclude that the negative polygraph results had been buried. This is particularly problematic in security certificate cases since none of the original notes of interviews have been kept and only summaries prepared by CSIS have been provided. Given that CSIS had actively misled the Court, Boxall believes that none of these summaries can be trusted, and that the integrity of the security certificate process is in question. He also commented that CSIS cannot be relied on to review its own procedures, and that any serious review should be conducted by an outside body such as a judge or the Security Intelligence Review Committee.

Posted by Professor Jasminka Kalajdzic, University of Windsor, Faculty of Law