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Ottowa Man Deported On Basis Of Secret Evidence

Ottowa Citizen | March 24, 2005
By Andrew Duffy

Ottawa resident Mohamed Harkat faces deportation to his native Algeria after a Federal Court judge yesterday endorsed the government’s opinion that he’s a terrorist who poses a threat to national security.

Judge Eleanor Dawson ruled that two federal cabinet ministers made a reasonable decision in December 2002 when they concluded that Mr. Harkat was a member of al-Qaeda, the world’s foremost terrorist organization.

And she flatly dismissed Mr. Harkat’s sworn testimony, during which he denied any connection to terrorism or the al-Qaeda network, as the work of a liar.

There is credible, reliable information from a number of independent sources, including the Canadian Security Intelligence Service (CSIS), that contradicts Mr. Harkat’s evidence, the judge said.

“On the basis of the confidential information,” she said, “it is clear and beyond doubt that Mr. Harkat lied under oath to the court in several important respects.”

Based on evidence heard in-camera, the judge concluded that Mr. Harkat lied when he denied assisting Islamic extremists abroad and in Canada; when he denied any association with al-Qaeda lieutenant Abu Zubayda; and when he denied travelling to Afghanistan or living in Peshawar, Pakistan.

The ruling means that Mr. Harkat, 36, who has resided in Ottawa since September 1995, is under an automatic deportation order to his native Algeria.

A federal immigration officer must now assess whether Mr. Harkat faces a significant risk of torture if returned to Algeria, a country from which he fled in 1990 as a political dissident.

In an interview with the Citizen in December, Mr. Harkat said he would be tortured or killed if returned to his homeland and would sooner stay in jail for the rest of his life than return to Algeria.

Mr. Harkat’s lawyer, Paul Copeland, said yesterday he was disappointed with the decision. “It’s depressing,” he said. “I had some fond hope that we might have been successful in establishing that the certificate wasn’t reasonable.

“I still don’t know anything about the case and I don’t know what she (the judge) relied on to come to that conclusion.”

The ruling relies heavily upon evidence heard in secret.

Judge Dawson concedes that her reasons, like others issued in security certificate cases, “cannot fully justify and explain a result publicly when the evidence the court relies upon cannot be disclosed.” But the judge defends the use of that secretive process to protect national security, and insists that all of the evidence was assessed to determine if it can be relied upon and can be corroborated by independent sources.

What’s more, the judge said, she did not rely on the evidence of Mr. Zubayda, who was thought by Mr. Harkat’s defence team to be a linchpin in the government’s case.

Mr. Zubayda was captured in March 2002 in Pakistan and was later handed over to U.S. officials, who reportedly tortured him to gain his co-operation.

According to CSIS, Mr. Zubayda identified Mr. Harkat “by description and activity” as operating a guest house in Peshawar for jihadis travelling to Chechnya.

Judge Dawson said she could not rely upon Mr. Zubayda’s evidence because she was not told exactly what he said or the circumstances under which he identified Mr. Harkat.

Mr. Zubayda had been the only informant identified by the court as giving credible evidence against Mr. Harkat.

As a result, the defence team spent considerable time trying to establish that Mr. Zubayda had been tortured into giving that evidence.

Mr. Copeland said the experience highlights the “impossibility” of defending someone against a security certificate: “In these cases, you have no idea of the case you have to meet, and you have no idea of how to meet it.

“It is a process that is unfair and violates fundamental justice. But the courts don’t seem to agree with me on that issue.”

Indeed, Judge Dawson defended the process in her decision, arguing that it is constitutionally sound and offers fundamental justice to foreign citizens accused of terrorism.

The judge concluded there were reasonable grounds to find Mr. Harkat is a member of al-Qaeda who has repeatedly lied to Canadian officials about his terrorist links.

Mr. Harkat came to Canada in 1995 after five years in Pakistan, during which time he said he worked as a warehouse manager for the Muslim World League.

But Judge Dawson said there’s reasonable grounds to believe Mr. Harkat travelled to Afghanistan during the early 1990s and developed an association with Mr. Zubayda, who ran two al-Qaeda training camps.

The judge found that Mr. Harkat was also unbelievable when he described his relationship with Ahmed Said Khadr, a known associate of Osama bin Laden’s who was once the ranking al-Qaeda member in Canada. (Mr. Khadr was killed in the fall of 2003 during a gun battle with Pakistani forces after fleeing Afghanistan.)

Mr. Harkat admitted on the witness stand that he met Mr. Khadr in Ottawa and travelled with him to Toronto by car. Mr. Harkat claims he met Mr. Khadr through his roommate, Mohamed El Barseigy, and that he did not converse at length with him during a five-hour ride to Toronto.

Judge Dawson concluded that testimony was “inherently implausible and incredible.”

Mr. Harkat worked in Ottawa as a pizza delivery man and gas station attendant, and married an Ottawa woman, Sophie Lamarche, on Jan. 2, 2001. He trained to drive trucks, but couldn’t find work, and was in the process of obtaining his taxi licence when he was arrested.

Sophie Harkat, who went to visit her husband yesterday afternoon at the Ottawa-Carleton Detention Centre, was unavailable for comment yesterday.

But a spokesman for the Justice for Mohamed Harkat committee denounced the judgment. “It’s a sad day for human rights in Canada,” said Kevin Skerrett.

In her ruling, Judge Dawson noted that the federal government produced 10 legal volumes of evidence in support of its case against Mr. Harkat, while a CSIS agent answered hundreds of questions about the material.

Although not revealing the precise manner in which she cross-examined the CSIS agent, Judge Dawson suggests that she vigorously assessed the quality of the spy agency’s information.

Judge Dawson’s decision on the reasonableness of the security certificate cannot be appealed to a higher court.

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