Wall of secrecy

“We had to go to court for six days over that one,” Jackman recalls, a look of benign, seen-it-all resignation on her face. “The judge finally ordered the jail to give him shoes.”

A charter member of a growing cadre of Canadian lawyers who have learned to traverse the nuanced byways of terrorism law, Jackman says an individual who faces deportation lives under constant psychological pressure.
“They focus enormous energy on the most picayune living conditions — perhaps because it is the only arena they have some possibility of control,” she says.

Frenzy of fear

Six years after the 9/11 attacks on the World Trade Center launched a frenzy of fear and legislation around the world, lawyers fighting on both sides of Canadian national security cases have met the unusual challenges raised by it.

For prosecutors, that has meant facing a thicket of issues involving the use of clandestine information-gathering techniques. Succumb too easily to demands for disclosure, and you can jeopardize international alliances, endanger sources — perhaps even precipitate a violent incident on Canadian soil.

Defence counsel face quite different challenges. Clients tend to lack resources to pay legal fees, the work hours are grueling, and evidentiary blind alleys loom at every turn.

Take Dennis Edney, an Edmonton criminal lawyer who can only dream of having Jackman’s problems. She, at least, has access to her clients. Edney, on the other hand, has spent the past four years attempting to safeguard the interests of Omar Khadr without having once laid eyes on his 20-year-old client, who stands accused of hurling a grenade that killed a U.S. serviceman in Afghanistan in 2002.

Under draconian U.S. anti-terror provisions, Khadr — the only Canadian imprisoned in the notorious Guantanamo Bay detention centre — cannot meet with either Edney or his co-counsel, Nathan Whitling of Parlee McLaws LLP. The lawyers twice thought they had made a breakthrough and were preparing to leave for the airport when they learned U.S. officials had withdrawn permission for a face-to-face meeting.

Edney’s frustration is palpable. “You have a gutless country called Canada where the government has not been able to extract even the most meager of concessions from the U.S.,” he says. “My client is a boy who was shot twice and is blind in one eye, but they won’t even let an independent medical person in to visit him. Out of all the cases I have done, Khadr is the one that gives me nightmares. He has been completely abandoned — and we in Canada have done this. I feel sometimes as if I’m representing Charlie Manson, instead of some youth being held in Guantanamo Bay who has not been proven to have done anything wrong.”

The Khadr case has proved to be an odyssey for Edney and Whitling. It has taken them from U.S. courtrooms, where they made amicus curiae arguments, to the Federal Court of Canada, where they fought for an injunction to prevent CSIS and RCMP agents from interrogating Khadr in Guantanamo Bay in violation of his Charter rights.

Simultaneously, they have submerged themselves in an Ontario Superior Court proceeding involving the extradition of Khadr’s brother, Abdullah, to the U.S. They will ultimately argue that the U.S. — with help from Canadian authorities — is relying on evidence obtained under torture while Abdullah Khadr was in a Pakistan prison. “His story is far harsher than what happened to Mr. Arar,” Edney remarked. “We can prove this man was tortured, that he was arbitrarily detained and questioned for days at a time by both the RCMP and FBI.”

 As if his terrorism file is not thick enough, Edney is also representing a member of the so-called Toronto 17 — a group of alleged terrorists facing criminal charges under the Anti-Terrorism Act for hatching plans that purportedly included exploding buildings and beheading the prime minister.

Being enmeshed in the world of terrorism, torture, and international spying has “opened up a door to issues that were completely unforeseen to us,” Edney reflects. “Right now, I’m going through three million documents on the Toronto 17. The more I see, the more fascinated I am. Big cases like this often don’t make you any money, but they are often the most meritorious cases that help change society and the legal system. We are fighting to protect the laws that govern us; to keep them from eroding away.”

Roots lie in deportation cases

The terrorism provisions these lawyers find themselves dealing with today trace their roots back to deportation cases in the ‘60s, ‘70s, and ‘80s — cases that targeted refugees from Chile, political activists from Turkey, Marxist ideologues from behind the Iron Curtain, and U.S. anti-Vietnam war protestors. As is the case nowadays under the Anti-Terrorism Act, extraordinary secrecy tends to surround allegations made by Canadian authorities. “It was draconian,” Jackman recalls. “You would make submissions without any idea what the allegations were.”

In 1984, the government cleared the way for proper disclosure procedures and relatively fair hearings before the Security Intelligence Review Committee (SIRC).

Back in the heyday of SIRC, targeted individuals were rarely detained. And, while a defendant’s lawyer could not be present for in camera evidentiary hearings, he or she could at least ask questions through a security-cleared, independent counsel. Edited transcripts gave the defendant and his counsel a further understanding of the evidence against him.

After 9/11, however, Canada introduced or expanded the reach of a barrage of legislation allowing for undisclosed allegations, secret proceedings, preventive detention, and the possibility of long prison terms for associating with the wrong people.

Three categories of terror

Nowadays, terrorism cases fall into three main categories. The first are security certificate cases involving alleged al-Qaida agents or sympathizers — Almrei, Mahmoud Jaballah, Adil Charkaoui, Mohamed Harkat, and Mohamed Mahjoub.

After years of detention, isolation from their families, and well-publicized hunger strikes to better their living conditions, the five men received an enormous boost in mid-February when the Supreme Court struck down provisions denying them access to the information against them.

The second category features individuals who were born abroad and later allegedly tortured in Egypt or Syria, arguably with the knowledge or complicity of Canadian spy or police agencies. These include: Maher Arar, Abdullah Almalki, Ahmad El Maati, and Umayyad Nurredin.

The third category involves those charged under Canadian anti-terrorism provisions — primarily the Toronto 17 — and their cases are likely to go to trial next year.

Security clearance certificates

However, it is the security certificates cases that rapidly acquired the highest profile — and will likely continue to do so as Parliament struggles to replace the aspects struck down by the Supreme Court. Under the certificate procedure, a Federal Court judge decides whether it was “reasonable” for the federal ministers who signed a certificate to believe that the named person genuinely constituted a danger to national security.

Since so many of the early cases involved deportations, national security cases became almost a sub-field within the immigration bar, drawing the early interests of stalwart immigration specialists such as Jackman, Lorne Waldman, Rocco Galati, John Norris, Raoul Boulakia, and Ron Poulton.

Another lawyer who is heavily involved in terrorism cases — Toronto’s Paul Copeland — scoffed at a commonly expressed belief that the “marquee” names are largely absent from national security cases. How many of these media-celebrated marquee players “would spend two years on legal aid, flying up to Ottawa regularly?” asks Copeland, a lawyer at Copeland Duncan. “These clients are not getting the lawyers who are paid the most, but they are getting the ones who know the most. Having a historical knowledge of how security works is important.”

Copeland and Jackman both pine for the days when SIRC judged the adequacy of evidence in security cases based on a balance of probabilities standard. In contrast, the “reasonableness” test used by the Federal Court presents an almost impassible hurdle. “We actually won cases before SIRC,” Jackman says. “Now, it’s so unfair. It’s like going back in time. They give you a little summary with a bunch of newspaper clippings that tells you nothing. The Federal Court uses the lowest possible threshold. The process has been totally gutted.”

Judges lack experience

Unlike criminal proceedings, which are presided over by provincial court judges with considerable experience in the rights of accused, Federal Court judges tend to have little such experience.

 “The judges have no real experience in security matters,” Jackman says. “I think they are nervous about doing anything that might threaten national security. Maybe, because the cases largely involve non-citizens, there is a sort of xenophobic fear in dealing with them.”

Barbara McIsaac, a lawyer at McCarthy Tétrault LLP’s Ottawa office with extensive experience in security cases, isn’t convinced that Federal Court judges are not up to the job of thoroughly questioning CSIS and RCMP witnesses in secret hearings.

 “I wonder how many people have really read those Federal Court decisions,” she says. “I think they tend to suggest that the judges really have been asking those questions.”

John Norris, a philosophy graduate who gravitated toward law, first ran headlong into the reality of the security certificate regime four years ago. Challenging them was more daunting than anything he had faced previously, yet Norris, a lawyer at Ruby & Edwardh in Toronto, was thrilled to be at the epicentre of a legal regime that carries enormous impact for individual liberties. Before long, his practice had been swamped by terrorism cases.

“There was no turning back,” Norris says. “This is certainly why I became a lawyer; it is exactly the kind of work I hoped to do. This is what law is all about. These cases are helping define our legal culture and who we are as a country.”

Norris is currently involved in three of the big five security certificate cases — Mahjoub, Jaballah, and Almrei. He also represents two defendants in the Toronto 17 case, while another client, Abdellah Ouzghar, is a Canadian charged in France with terrorism-related offences.

Compared to the Criminal Code offences, he says, the security certificate cases are unique.

“Evidence such as wiretaps is kept from you. If there is a confidential informant, you will never know his identity. You know that secret evidence will be used in deciding guilt or innocence in making a final decision in a case. As a lawyer, it is tremendously frustrating.”

The cases occupy a niche of their own when it comes to delay. With one exception — the Jaballah case — it is not the “reasonableness” hearing that has been lengthy. “The others have dragged on because of the removal-to-torture problem, which arises only after the certificates have been upheld,” Norris says. “At this stage, the cause of the delay has been the complete failure of the minister’s delegates to come up with decisions to remove that can withstand the scrutiny of the Federal Court.”

Like other lawyers, those on terrorism cases set aside any personal views they may hold about their clients’ guilt or innocence. Yet, a certain baseline reality has tended to stoke a belief in their clients’ causes.
At any time, an individual named in a security certificate can obtain their freedom if they are willing to return to their country of origin.

“These people could go back tomorrow if they wanted to,” Norris says.

“That they do not speaks volumes about what they fear would happen to them if they went back. These men are not fools. They know very well what fate awaits them if they are ever removed.”

On a dull Saturday afternoon in February, Barbara Jackman’s mid-town Toronto office — a converted apartment with a long, creaky hallway — is dark and silent. The usual straggle of immigration activists, refugee families, and coffee-toting office staff are nowhere to be seen.

Three decades of passionate fighting for immigrants and refugees — groups whose rights are particularly vulnerable — has taken its toll on Jackman. Known for her perky dynamism, she looks positively weary. “These cases are very time-consuming,” she says. “In the last year or two, I just go from one case to another.”

As many good immigration lawyers as there are, Jackman says only a minority are prepared to expend the arduous hours terrorism cases demand. They must also contend with the prospect of less-than-handsome remuneration. Lawyers on security cases almost invariably work at legal aid rates or pro bono.

In one of Jackman’s cases, legal aid allotted her a mere three hours to prepare an application to have a client released from detention. The hearing took three weeks. She was able to wangle a discretionary increase, but it still left her with a substantial shortfall.

Some counsel, like Norris, also face a peculiar Catch-22. Since legal aid views security certificate cases as being a civil matter, a criminal law specialist like Norris nets only the “rock bottom” of the civil rate: $74 per hour.
“It’s a trade-off,” Jackman says. “I like being involved, but you can’t even hope to run an office and cover your practice at the same time.”

The sacrifices would be easier to bear were victories more easily attainable. Jackman refers to a famous statement authored by Federal Court Justice James Hugessen at a security conference in 2003, when he remarked that sitting on a security certificate case makes a judge feel like “a bit of a fig leaf” that covers over a dubious procedure.

Is it any different for lawyers? Not according to Jackman: “We are fig leaves, too. It does make you feel useless as a lawyer.”

Wall of secrecy

So can a system that is predicated on fair and proper representation expect lawyers to lend dignity to procedures involving unspecified allegations, delivered behind closed doors in the absence of both client and counsel?

The implacable wall of secrecy has forced defence counsel to think creatively — as Paul Copeland did a couple of years ago when he realized the government had no intention of providing him with information underlying its belief that his client, Harkat, had run a guesthouse in Pakistan catering to Mujahadeen guerillas.

By overlaying newspaper coverage with hints contained in the cryptic 17-page summary of CSIS allegations he was given, Copeland deduced that a main pillar of the case against Harkat had come from a former driver for Osama bin Laden — Abu Zubaydah — who had been captured by U.S. authorities and allegedly “co-operated” in responding to their questions.

Copeland sent queries out to a web of contacts he has made over years of doing security cases. A New Zealand lawyer who is active on the security front supplied him with experts who had knowledge about torture in Algeria, in case Harkat’s security certificate was ruled “reasonable,” and the fight moved to the question of whether he would be tortured if deported.

U.S. contacts steered Copeland toward an English lawyer who supplied him with torture-related information he could import straight into a factum.

“If I weren’t as paranoid as I am, I’m not sure I would have thought of the possibility that he had been tortured,” says Copeland, who has spent decades stalking the RCMP on behalf of left-leaning clients and organizations. And if Zubaydah had pointed a finger at Harkat while being tortured, it could be argued that his information was useless.

“If I can make a judge as paranoid and suspicious of CSIS as I am, then I’ve done my job,” Copeland says.
Going forward, action is likely to heat up in three areas: security certificates, Charter challenges to criminal provisions, and civil litigation.

The defendants charged with Criminal Code terrorism offences gravitated toward Copeland, Marlys Edwardh, Lawrence Greenspon, Michael Block, and Dennis Edney — criminal law experts with a rich experience in immigration, criminal, and security cases were also ideally situated. In addition, the long list of interveners in Supreme Court security certificate cases drew such top-drawer talent as Edward Greenspan, Neil Finkelstein, and Michael Code.

Most of these lawyers give the same explanation for their zeal: helping shape law and aiding people in trouble is what attracted them to law in the first place.

Jackman, for instance, started out in labour law and drifted into immigration — a field where clients in deep peril could fall back on only a small handful of practitioners for help. Norris was a graduate student in philosophy who wanted to put ethical considerations to practical use, while Copeland — a youthful rebel with a lifelong suspicion of the state — has made enough money through his thriving practice to take on some security cases virtually pro bono.

“If anybody is vulnerable, it is clients in immigration cases,” Jackman says. “And when it comes to security certificate cases, they are the most vulnerable of the vulnerable. It really doesn’t matter to me whether they are or are not terrorists. What matters is whether they are going to have their fundamental human rights violated.”

They’re like a death penalty case

Edney equates these cases to U.S. death penalty cases, where a horrific lack of funding often condemns the accused to fall back on help from law students and disbarred lawyers. Lawyers face a moral obligation to make sure they are properly litigated, he says. “I work night and day on this. We have spent so much time on Omar Khadr that it’s a pro bono case.”

Edney issued a warning to other counsel. “Lawyers doing these cases can expect a long, drawn-out battle. Don’t expect assistance from your government; it will fight you every step of the way.”

Inexperience has become an issue only in the Toronto 17 case, where Edney observed that personality clashes and differing levels of expertise can sometimes make it difficult to strategize in concert.

While some Muslim lawyers are beginning to filter into the field, they are learning on the job. However, some of them enjoy a helpful advantage. “One of the difficulties in these cases is not understanding the culture and background, and lacking the language skills,” Jackman says. “There is a knowledge curve.”

Take the government’s assurance that all those on security certificates have to do to win their freedom is find a third country willing to take them, for instance. “You come to know that it’s impossible,” Jackman says. “But someone coming in fresh wouldn’t know that.”

On the other side of this wall of secrecy, Department of Justice prosecutors and lawyers representing CSIS and the RCMP suffer from separate pressures. Attacked by defence lawyers, civil libertarians, and editorialists, they cannot respond by producing the chilling evidence that might squelch their critics.

Barbara McIsaac, who has extensive experience in SIRC reviews, security certificate cases, and as commission counsel in Justice Dennis O’Connor’s Arar inquiry, says it can be extremely difficult to foresee whether a particular snippet of information could potentially, when fit into a larger mosaic, reveal the identity of a source. A bad judgment call can mean shutting off an ally who has been sharing information with Canada about security threats, or bring bodily harm to a civilian informant or an undercover source.

“Several times during the Arar inquiry, we tried to make the point that it really is an art, not a science,” McIsaac observed. She says a tough tasks at the inquiry was to chart a course between those who said it was wrong to “pander” to the torture policies of a country like Syria, and those who say that focusing too much on its dubious policies could cause embarrassment and endanger Canadian citizens who may end up there in future.

“It is probably quite frustrating for some [government lawyers] because they are the bad guy,” she says. “They are often accused — frequently wrongly — of hiding things for the sake of hiding them. It’s all very well to accuse the government of using national security just to hide stuff, but I don’t think that really happens.”

To add to the pressure, she says, government lawyers often don’t know how reliable intelligence information really is. McIsaac says another burden involves coming into possession of information which, since it’s known by so few, would make counsel an automatic suspect should it ever be leaked.

Finally, she adds, government lawyers can become privy to information they are bound never to reveal, and which may chill them to the bone. “We all like to keep the thought in the back of our minds, to blindly believe or pretend that things aren’t as bad as some would suggest they are. Then, if you become privy to information that [informants] are not overreacting, and that there really is a problem, you might wish you didn’t know.”

The security certificate issue is far from settled. Parliament will ultimately cobble together a procedure that is effective from a security standpoint, yet which will satisfy the top court’s concerns about full answer and defence.
In the meantime, civil libertarians are taking dead aim at the Supreme Court’s 2002 Suresh decision, which left a loophole the government can use to deport suspected security risks to countries despite a genuine risk of torture, and the Toronto 17 cases will present appellate courts with opportunities to pronounce judgment on various aspects of the Anti-Terrorism Act.

Next up, civil suits

There is also activity on the civil side. Indeed, what may drive the government and RCMP most may be the threat of paying damages to those who have been wrongly imprisoned or tortured in other countries partly on our behalf. The recent resolution of Maher Arar’s civil suit was a strong sign that there can be a substantial price tag attached to human rights violations.

For those on the front lines, there is no squelching the hope that the worst excesses of post 9/11 apprehension are receding.

“There has been a pretty strong response from the legal establishment,” says Copeland. “Some of the work that is being done has changed the climate dramatically.”

McIsaac adds that it’s not just courts and people that are gradually moving toward a knowledgeable balance of rights versus security, the government also learns a lesson from each case about what sort of information can be disclosed.

Still, she says, the balance can’t veer too far back toward a libertarian stance. “On the other side of the coin, I think there is a growing recognition that many of these concerns about terrorism are not spurious, but are actually necessary.”