Published in the Ottawa Citizen, May 14, 2014
It was not a jailhouse door that slammed in Mohamed Harkat’s face this week, but something ultimately more definitive: a Supreme Court ruling. Harkat has lost a long legal battle that commenced in 2002 when he was detained under a security certificate and faced allegations that he was engaged in terrorism, in fact that he was an Al Qaeda “sleeper” agent.
Harkat has lost; security certificates have won, but perhaps the victory will ultimately be a pyrrhic one. The Supreme Court ruled on Wednesday that security certificates, as amended by Parliament, are constitutional. The court admits that the security certificate process is not perfect and stands apart from the usual rules of courtroom criminal proceedings, but argues it provides for fairness for the accused and his counsel while protecting secrets.
Security certificates may be deemed constitutional and fair, but the law may, in other respects, still be an ass.
Harkat is probably the most famous face of a controversial legal power that allows the government, under the Immigration and Refugee Protection Act (IRPA), to determine that a non-citizen is a threat to national security and order them removed to their country of origin. Its most vociferous critics lambast the process as a secret trial conducted by a “Star Chamber.” These critics will not be moved by the court’s reasoning. Supreme Court rulings cannot be appealed. So this is the end of the road for Harkat, at least so far as efforts to prove his innocence, overturn a lower court decision, or contest the constitutionality of the Security Certificate process.
But legal roads perhaps rarely just end. Harkat now faces a different legal battle over his deportation. The issue there will be whether Canada can deport him to his native Algeria, while upholding its obligations under international law not to deport to counties that practice torture or mistreatment. That battle may, in turn, end up before the Supreme Court.
There will be much sorrow and tears among Harkat’s supporters, foremost of whom was his staunch wife, Sophie Harkat. Broader public and Muslim community reaction may be muted by the fact that the Canadian government appears to have decided to quietly sideline the use of security-certificate powers against terrorism suspects after an initial surge (resulting in five high-profile cases) following the Sept. 11, 2001 attacks. No new security certificate cases have been launched since Parliament amended the process in 2008, following a 2007 Supreme Court ruling finding security certificates constitutionally deficient.
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With the Supreme Court having now burnished the security certificate process, and condemned Mohamed Harkat to an uncertain fate, what might the future hold? Will the government be emboldened to renew their use of security certificates against future terrorism suspects, even of the homegrown variety? Security certificates may be deemed constitutional and fair, but the law may, in other respects, still be an ass.
For one thing, security certificate actions are immensely time and resource consuming. Security certificates also suffer from a bad political optic, which even the Supreme Court cannot completely correct. In practice, they can amount to a form of indefinite detention, particularly if deportation is stymied. Critics see them as a back door to full-on criminal trials and also a weapon that specifically targets Muslim Canadians. These criticisms are not warranted, but they remain alive and well.
Security certificate proceedings also amount to exporting a terrorism problem elsewhere. We have criminalized the travel of Canadians to engage in terrorism training or activities abroad. It seems counter-intuitive that we would be happy to export a known terrorism problem abroad under security certificate proceedings. Nor do we want, as a country, to be implicated in any torture or mistreatment of persons deported — but how could we ever be sure of the outcome?
There is always the prospect, on top of all these problems, that security certificates may not be a proportional instrument. They may be used, at inordinate expense, to rid Canada of terrorism suspects who are low threats to our security. There is no proportionality test in the way the Immigration and Refugee Act is written or necessarily deployed.
- Wesley Wark, Reforming the Spy Game
Security certificates are not perfect; there is no perfect alternative. You can’t ignore terrorism and you can’t always deal with it by trial. Nor can you, as is often believed, simply leave it to the intelligence and security people to quietly deal with through unseen surveillance and counter-measures. The government can and should keep security certificates in their tool box, but would be wise to use them sparingly for counter-terrorism cases (they can be brilliant in counter-espionage matters), and to ensure that the Canadian Security Intelligence Service (CSIS), which is responsible for developing a case against the accused, can do so in a way that is beyond reproach.
Security certificates also place an enormous burden on the specially designated Federal Court judges who hear these cases. These judges bear a heavy responsibility to ensure the fairness of the proceedings and weigh the secret intelligence and expert opinion before them.
A forthright appreciation of all the challenges presented by security certificates — their length, costs, political optics, disputable outcomes, and burdens on intelligence agencies and the courts — suggest they should remain buried in the state counter-terrorism tool kit. The Supreme Court has burnished an instrument of limited use.