Cablegate: Court Quashes Security Certificate, Four Remain

DE RUEHOT #0747/01 2681512
O 251512Z SEP 09




E.O. 12958: N/A

REF: 08 OTTAWA 360

1. (SBU) Summary: On September 24, the Federal Court of Canada
announced it will quash an immigration security certificate against
Moroccan-born Adil Charkaoui, reducing the number of active
certificates in suspected terrorist cases to four. The decision is
the latest setback for the government in a series of legal rulings
against the controversial process. Though the government has
indicated it may appeal, the ruling raises doubts about the
government's ability to uphold the remaining cases and leaves Canada
with fewer options to remove non-citizens deemed a danger. End

--------------------------------------------- -----

2. (U) Only a few hours into a scheduled two-day hearing into the
ongoing security certificate case against Moroccan-born Adil
Charkaoui on September 24, a Federal Court judge announced that she
would issue an order by that day's close of business to revoke all
bail conditions against the defendant. The judge also signaled her
intent to quash Charkaoui's security certificate entirely. She
postponed an official ruling on the latter until she has heard legal
arguments in a closed-door hearing the week of September 28.
However, she declared that the "certificate will fall," and noted
that "how, is the question." Until those legal arguments wrap up,
the security certificate remains valid.

3. (U) In use since 1978, the security certificate system allows the
government to detain and deport non-citizens, both permanent
residents and foreign nationals, whom the government deems
inadmissible to Canada under security-related provisions of the
Immigration and Refugee Protection Act, including those related to
terrorism, serious and organized crime, or human rights violations.

4. (U) Canadian authorities arrested Charkaoui on a security
certificate in 2003 on suspicion of links with al-Qaeda and had
released him conditionally in 2005. The Federal Court had
substantially relaxed his bail conditions on February 20, but still
required him to wear an electronic monitoring device, prohibited
contact with specific people, and denied him access to a passport.
In August, the Canadian Security Intelligence Service (CSIS)
withdrew most of the wiretap evidence and human source evidence
rather than comply with the Court's March order to disclose the
sources of confidential information against him. Federal lawyers
argued that the disclosure of information against Charkaoui would be
"injurious to national security," compromise CSIS' ability to
investigate security threats, and force the agency to reveal its
confidential sources. It admitted that its remaining evidence was
too weak to support a security certificate against him.

5. (U) When the certificate hearing resumed on September 24, federal
lawyers asked the Court to continue restrictions on Charkaoui until
higher courts clarify what sensitive information may be disclosed in
court. CSIS contended that its sensitive information against
Charkaoui remains accurate. However, the judge ruled that the
government had failed to meet its burden of proof. CSIS signaled
that it may consider an appeal. For his part, Charkaoui stated that
he wants an official apology and will decide later whether to launch
a lawsuit against the federal government.


6. (U) Canada has issued thirty-three security certificates
(including five re-issued in February 2008 after revisions to the
immigration law) since 1978 to detain and remove non-citizens who
Qimmigration law) since 1978 to detain and remove non-citizens who
pose a threat to national security. [Note: the government has not
issued any new certificates since 2006.] The government issues the
certificates on the basis of confidential evidence and a warrant
signed by two cabinet ministers, subject to review by the Federal
Court. The government does not have to disclose the secret evidence
to the defendant. In response to a 2007 ruling by the Supreme Court
of Canada, Parliament passed amended legislation in February 2008 to
provide access to security-cleared lawyers ("special advocates") to
examine and challenge confidential evidence on the defendants'
behalf, to prohibit use of evidence that may have been obtained
through torture, and to expand mechanisms for review and appeal, to
better balance national security with civil rights.


7. (U) In addition to the Charkaoui case, the government has four
other security certificates before the courts. Courts released all
four individuals with conditions, but one voluntarily returned to
custody in March after failing to convince a judge to relax his bail
conditions. The remaining certificate cases are:

OTTAWA 00000747 002 OF 002

-- Algerian-born Mohamed Harkat; Canadian authorities allege that
Harkat is an al-Qaeda sleeper agent and detained him, pending
deportation, in 2002. Authorities released him in 2006 on strict
conditions. In June, the Federal Court temporarily suspended
hearings in his case after CSIS acknowledged that it did not inform
the Federal Court that a key informant against him had failed
polygraph tests in 2002. On September 21, a Federal Court judge
significantly eased bail conditions on Harkat, ordering Canada
Border Services Agency (CBSA) to cease monitoring Harkat's mail and
other communications, and lifting his 24-hour surveillance by the
Canadian Border Services Agency (CBSA). It also relaxed
restrictions on his excursions outside the home and screening of

Harkat was given permission to use computers and land-line
telephones, but not the internet or cell phones. He must report to
authorities weekly, continue to wear a GPS ankle-monitoring device,
obtain permission to travel outside the Ottawa area, and does not
have access to a passport. Harkat's next public court hearing is
September 30. The Court will hold in camera hearings in November,
with further public sessions scheduled in January through April, at
which his lawyers said they will press for the lifting of all
remaining restrictions. The government conceded in the most recent
hearing that the passage of time and Harkat's high public profile
have reduced any threat he may have posed to national security.

-- Egyptian-born Mahmoud Jaballah; Canadian authorities first
detained him on a security certificate in 1999, but the Federal
Court threw out the case. Authorities arrested him on a second
certificate in 2001, alleging that he was a member of Al Jihad, and
released him conditionally in 2007. The Federal Court last reviewed
his case on September 10.

-- Syrian-born Hassan Almrei; Canadian authorities contend that he
participated in an international forgery ring with ties to al-Qaeda.
Authorities arrested and detained Almrei in 2001, and conditionally
released him in January 2009. The Federal Court last reviewed his
case on September 14.

-- Egyptian-born Mohamed Zeki Mahjoub; Canadian authorities contend
that Mahjoub was a member of the Egyptian Vanguards of the Conquest.
Authorities arrested him in 2000 and released him conditionally in
2007, although he voluntarily returned to custody on March 18.

8. (SBU) Comment: The collapse of the government's case against
Charkaoui sets an important precedent for the remaining four
certificate cases. The controversial process has for some time been
producing diminishing returns for the government. If the security
certificate regime collapses from the weight of repeated judicial
setbacks, the government will be left with fewer options to remove
non-citizens deemed a danger to Canada.

© Scoop Media

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