By YayaCanada OTTAWA - Friday, November 4, 2005 Judge François Lemieux opened by saying that there had been, during the morning, an interim ex parte [ Lat. 'By or for one party' or 'by one side' ] session. He summarized it as follows: There was evidence given by one witness for the respondent [ CSIS ] with respect to the operational reliability of the GPS [Global Positioning System] device that is proposed as a condition of Harkat's bail, and how it could be "exploited" by Harkat in ways that would be injurious to national security. YYC: If they are referring to jamming, this is old news. The Pentagon was indeed concerned in 2003 that GPS could be jammed, and then they declared the jammers weren't working, but now anti-jamming devices are being developed. Other evidence presented should either have been given in public or was not relevant, and so will not be included in the decision process. Defence counsel Paul Copeland began summations for the Defence by introducing a Washington Post article about "black sites" being maintained offshore by the CIA for US national security suspects, which reads in part: "The top 30 al Qaeda prisoners exist in complete isolation from the outside world. Kept in dark, sometimes underground cells, they have no recognized legal rights, and no one outside the CIA is allowed to talk with or even see them, or to otherwise verify their well-being." Abu Zubaydah, who CSIS says fingered Mohamed Harkat as operating an Al Qaeda guest house in Peshwar, would be one of those prisoners. Copeland then referred to an article from the New York Times in which it was stated that the CIA detainee policy is sharply dividing officials in the Bush administration, and there is debate over whether or not to exclude CIA detainees in the anti-torture legislation. The 2004-2005 SIRC operational review of CSIS was also admitted into evidence with specific regard to assurances by CSIS that they would closely scrutinize information received from "foreign agencies" to ensure its reliability. Mr. Copleland said that he, personally, was not prepared to give any assurance that the CSIS information was reliable. Copeland went on to say that Ward Elcock, former director of CSIS and prominent in the Maher Arar case, could never reach the conclusion that Syria engaged in torture [ "It is not a simple yes or no question." ] which Copeland said was "the most evasive comment heard so far!" to which counsel for CSIS objected that the comment was not called for. The Judge reminded CSIS counsel that this was a summations argument, to which CSIS counsel said, "The Court doesn't have the context ...", and Judge Lemieux said he would take that into account. Copeland then argued that Judge Dawson had no evidence before her of any torture of Abu Zubaydah when she made her decision that Harkat should be deported, which he considered to be "admission by silence" on the part of CSIS. Judge Dawson was "very soft" in her approach to the possibility that Zubaydah's information might not be reliable. Although Ward Elcock did raise the issue with CSIS in July 2004, P.G.'s testimony showed no change in dealing with that issue. "Lawyers are sworn to uphold the law," said Copeland, and yet the CSIS lawyers objected to defence counsel asking P.G. "over and over" the question of whether CSIS ever inquired as to whether or not the information was obtained through the use of torture. Nothing has been done in this regard in spite of CSIS and their counsel having an obligation to uphold issues of international law and human decency. Instead they introduce the "Kafkaesque" evidence of P.G., proving that CSIS remains "blind to the issue of torture", and provides government officials with "misleading, fraudulent" reports designed to show that detainees return to terrorist activities based on 5% of the total number of 202 detainees released from Guantanamo - evidence that an ex parte injunction would set aside. Judge Lemieux at one point said that he himself had been aware of the issue of secret sites. The Gonzales opinion was widely publicized. "Unbelievable!" said defence counsel. This has "profound implications" for the reliability of CSIS intelligence. The law courts in the UK are dealing with the issue of how information is obtained, and as a result Blair is in trouble in his bid to introduce tougher terrorism legislation. To the Judge directly, Copeland said, "I am disappointed as a Canadian with this lack of concern and turning a blind eye, and ask that you deal with that issue loudly and clearly". Copeland went on to discuss "removal and reasonableness of time", and the legislation that is in place to guarantee "fairness and natural justice". He showed how defence counsel had expeditiously prepared its case but that the government has not, and that over twice the legal allowance of 120 days had passed, and therefore Harkat was entitled to apply for bail. In addition, defence was required to show some evidence that Harkat would not pose a risk, and having done so the onus had now shifted onto the party opposing the release. Judge Lemieux agreed that he would have to look into the causes of the delay when making his decision. There was some discussion as to whether the upcoming challenge to the Security Certificate itself should have any bearing on when Harkat could be released on bail. Defence counsel argued that this was a separate issue entirely, and should not weigh against his client's release. As to the question of why it had taken so long for the CBSA (Canada Border Services Agency) to prepare its submissions to the ministry delegate in response to defence counsel's much earlier submissions on why Harkat should not be deported to Algeria, their reasons should be explained in great detail, yet none have been forthcoming. Mr. Copeland was also under the impression that a ministry delegate had not yet even been appointed to receive the submissions - again with no explanation. Mr. Copeland argued that the delays had reached prima facie unreasonableness at this point. [ A prima facie case is one that at first glance presents sufficient evidence for the plaintiff to win. ] The onus was now on the opposition for explanation. Mr. Copeland had also asked for materials from the CBSA to be provided in electronic format, and had not been responded to, and he was not optimistic that he would receive the materials any time soon. The Judge interjected that he had received no evidence of conditions in the detention centre where Harkat is being held. He admitted that he has never seen the inside of a detention centre, but was not aware of any allegations of mistreatment in this case. Defence counsel reminded the Judge of the psychiatrist's testimony that incarceration alone creates trauma, not to mention the threat of deportation. Judge Lemieux then cited a case wherein it was established that the judicial process does take time, and that this must be factored in, to which defence countered that Harkat's case had already gone at least 6 months over the time allowed, whereupon the Judge responded, "Okay." The Judge went on to say that it was mere speculation for defence to assume that a ministry delegate would not be appointed or would not render a decision on a timely basis. Defence counsel reiterated that Harkat's case had already reached an unreasonable time. "I think I can accept that," replied the Judge. Judge Lemieux then asked why he should not take into account the challenge to the Security Certificate, to which defence counsel said that it is a fundamental challenge to the whole process, important for Canada in how to balance dealing with terrorism against fundamental justice. It is applicable "across the board, to Maher Arar and to other issues not specific to Harkat". Part II - Defence Counsel Matthew Webber's summations Related: Alberto Gonzales: A Record of Injustice Bush 'operating secret gulag in eastern Europe' yayacanada.com Main Page - "Abolish the Security Certificate" |