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

CSIS hid evidence in Harkat case

Disturbing news of CSIS misconduct emerged last week in the security certificate review hearing of Mohamed Harkat. Federal Court Justice Simon Noel released an unprecedented decision ([2009] F.C.J. No. 619) ordering CSIS to disclose the name of a key confidential informant, and to produce its uncensored file on the informant, to the two special advocates charged with protecting Harkat’s interests in the in camera proceedings.

Justice Noel’s ruling came a day after CSIS delivered a top secret letter to the judge acknowledging that information about the CSIS source, dating from 2002 and 2008, had not been presented to the Court. Justice Noel had specifically asked for all evidence relevant to the reliability of the witness in an in camera hearing last year and was assured all had been given. The new information, wrote the judge, is “significant”, and goes to the weight to be given to the informant’s evidence.

Late last year, the special advocates sought disclosure of CSIS’ intelligence files and access to CSIS informants who had implicated Harkat as a sleeper al Qaeda operative. At that time, the Ministers took the position that they had complied with the Court’s previous disclosure orders and had provided all of the information required to be disclosed in accordance with the Supreme Court of Canada’s decision in Charkaoui #2, [2008] S.C.J. 39. The Ministers advised the Court that the special advocates were in possession of all the information in the possession or control of CSIS regarding Harkat. On this basis, Justice Noel rejected the request for further disclosure, and further held that CSIS informants’ identities were protected by covert human intelligence source privilege, analogous to the common law police informant privilege.

In last week’s ruling, however, Justice Noel referred to the one exception to the rule – if failure to disclose the information would constitute a “flagrant breach of procedural justice” and bring the administration of justice into disrepute. After reviewing the contents of the Ministers’ letter, Justice Noel concluded that “the Special Advocates have a need to know the contents of the human source file even if this results in the revelation of the source's identity. The rule of law requires no less. Once the Court has evidence that leads it to question the completeness of the information being provided to it by the Ministers, in apparent violation of their obligation of utmost good faith, it must allow the Special Advocates access to all information which they have a need to know” (at para. 14).

In light of “possible prevarication” by CSIS witnesses and the withholding of important evidence, Justice Noel also stated that the Court would review all orders issued and evidence provided to date “to see if any further judicial action is required to preserve the integrity of the administration of justice” (at para. 15). The hearing to assess the reasonableness of the security certificate has been postponed.

In the meantime, Justice Noel is considering submissions by Harkat’s counsel that a search of Harkat’s home in mid-May 2009 was unconstitutional. Thirteen Canadian Border Service officials, three police officers and three dogs searched the home and seized, among other things, photo albums, Harkat’s wife’s computer (containing correspondence with Harkat’s counsel), and her agendas. During the June 3rd hearing, Justice Noel expressed concern that the search was “out of proportion” and “extremely instrusive”.

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