The Supreme Court and Open Justice – The Case of Mohamed Harkat

How does the Government of Canada find that Mohamed Harkat is an ‘Al Qaeda sleeper agent’ when it has been reasonably and repeatedly established by the Government of Canada that Al Qaeda never had a sleeper agent network? Earlier concerns about such networks may have been valid, but they have since been discounted. The current Supreme Court secret court hearings are troubling to democracy and they may be creating a situation whereby unsound evidence and intelligence to be used.

First, it should be established that the Government of Canada has a right, and in fact an obligation, to protect the citizens of Canada from a variety of threats, including foreign and domestic based terrorism. The government has the valid option of using coercive measures such as arrest, trial, jailing and/or deportation. This includes national security certificates. In order to support these activities, the government needs as effective, trained, well-funded and competent intelligence community capable of collecting and accurately assessing information from sources both foreign and domestic.

There have been claims that the courts in Canada are involved in a form of judicial jihad against the intelligence agencies or that the judges are ‘activist’ or that they live in an Alice in Wonderland world.i

The opposite is true. Mr. Justice Binnie,  a Justice of the Supreme Court of Canada, stated in 2005 that the courts should not take an activist role with respect to terrorism cases. He pointed that “the greatest threat to our rule of law is terrorism.” He also opined that in matters of international security it is “absolutely necessary” for courts to show deference to state agencies because they have more expertise, information and resources on such matters than do judges.ii It appears, however, that after a series of cases where weak, misleading or irrelevant information was entered into court and passed off as intelligence/evidence, the Courts appear to have turned. Judges now will ask the tough questions and expect real answers. The fault here does not lie with the courts but rather with those putting analytically weak information before the courts.

The need for an open court system does not discount the requirement that sources, agents, and methods be protected. This can be done and has been done regularly in criminal cases involving murder, drugs, and assaults. 

The information against Harkat, that he is a sleeper agent is increasingly weak. The government ‘agent’ that provided much of the information against him was later subjected to a lie detector test and found to be unreliable. Much of the information provided in open court was entered by an individual whose own use of sources and material was shown to be unreliable in a different but concurrent Federal Court of Canada case. In one situation, the Court noted the witness had “not conducted any specific research on that topic and has relied on secondary or tertiary sources of information.”iii

What are the current views about whether or not Al Qaeda had a sleeper agent network?

Dr. Marc Sageman is former CIA field operative turned psychiatrist who has been described in court as the foremost terrorist profiler in the world.iv His work is regularly used by Government of Canada intelligence agencies to support their views. He stated in his book Leaderless Jihad (and was quoted in court) as saying that there are no sleeper agent in the USA with one possible exception (in 2001) which itself seems unlikely.v

Dr. Mark Stout, the program director of global security studies at Johns Hopkins University, a former intelligence analyst with the U.S. State Department and Central Intelligence Agency and the author of multiple books and articles on Al Qaeda has his own views. He recently stated, “I am completely unaware of any evidence of sleeper agents in that formal sense ever existing. What it really boils down to is that in the first months and few years after 9/11, the notion of an al-Qaida sleeper agent was entirely plausible, but it just never ever panned out.”

Dr. Brian Williams has a Ph.D. in Middle Eastern and Islamic Central Asian History and two Masters degrees, one in Russian and East European History and another in Ottoman Language and Turkic History. Perhaps more importantly, Dr. Williams has had hands-on experience. He carried out field work in Afghanistan for the Central Intelligence Agency’s Counter-Terrorism Center in 2007 tracking suicide bombers and has served as an advisor for the U.S. Army’s Special Operations Command and Joint Information Operations Warfare Command. In 2008 he wrote the field manual for the U.S. military on Afghanistan and testified as an expert witness in the trial of Osama Bin Laden’s driver, Salim Hamdan. He has conceded that he used the ‘sleeper’ terminology to describe persons arrested in the US but now considers that Sageman is correct, that Al Qaeda sent agents to conduct operations within a planned time-frame, not to integrate into the community and await further instructions at some later

In 2010 testimony in Federal Court, a Canadian court expert on terrorism who was also recognized as having court expertise in intelligence collection and reliability, testified in open court that there was no evidence that Al Qaeda sleeper cells existed.vii

What of the Federal Court of Canada? Does the Court itself believe that Al Qaeda had a sleeper agent program? Note the findings of the Federal Court of Canadaviii in this 2009 decision:

[424]      The supposition that Al Qaeda has created “cells” and sent “sleepers” abroad is a matter of some controversy. As noted, the sole source for the statement about cells is a newspaper article from January 2001. In paragraph 34 of the summary there is a statement that the Bin Laden network uses “sleepers” in its international terrorist operations. These are described as individuals who establish themselves in foreign countries for extended periods of time prior to being given orders to execute an operation. Preceding the activation of the operation, they may live as regular citizens, leading unremarkable lives, and avoiding attention from local authorities.  The sole source that is given for these propositions is a 1999 book by Simon Reeve entitled The New Jackals. The implication is that Mr. Almrei was such a sleeper. The closed information indicates that is how he was perceived by CSIS after he came to their attention in 1999. But, as far as I could determine, this was based solely on the inferences drawn from human source information of doubtful reliability. 

[425]      A great deal of knowledge has been acquired since 2001 about Al Qaeda’s methods of operation. Sageman, for example, states at pages 106 and 162 of Leaderless Jihad that there have been no sleeper cells in the United States with the possible exception of one individual who was arrested in December 2001, which he doubts. Dr. Williams conceded that he has himself used the “sleeper” terminology to describe persons arrested in the US but now considers that Sageman is correct that Al Qaeda sent agents to conduct operations within a planned time-frame, not to integrate into the community and await further instructions at some later date. 

[426]      It is understandable that the Service would have been concerned between 1999 and 2001 that Al Qaeda was employing methods similar to those used by foreign espionage services when little was known about Al Qaeda and the jihadi phenomenon. And I can appreciate that there may be differences of opinion on this among security experts. But the SIR presented in 2008 simply recycled stale information without attempting to offer a more balanced and nuanced view.

Conclusion – Why should you Care?

An open court system is needed to establish the veracity of competing claims. Without this, justice and security both fail. Secret trials, which we once mocked when they were used in the USSR and other dictatorships, are contrary to our own values. The current contradictions created by the Harkat case demonstrate this.

You should care about this. Muslims currently bear the brunt of suspicion for real or suspected activities. In the not-so-distant past, this role was filled by the Irish, the Italians, and a variety of other newly arrived immigrant groups. The black and native communities have often suffered for the same reasons. 

Which group falls under suspicion next will likely be determined by events. Will you be a member of the next group that bears the burden of suspicion? In the meantime, the most effective means of sorting out who is a threat and who is not is an open court system where all the cards are put on the table. Secret hearings hurt us.


i See Leak about CSIS deemed embarrassing, but innocuous by Colin Freeze  or see Canada has ‘Alice In Wonderland’ attitude on terrorism: Wikileaks by Mitch Potter.

ii See the National Post Monday, March 21, 2005 or the website of the Canadian Lawyers Abroad

iii See paragraph 269 of Federal Court of Canada decision, In The Matter of Hassan Almrei, Ottawa, Ontario, December 14, 2009. 

iv See paragraph 409 of Federal Court of Canada decision, In The Matter of Hassan Almrei, Ottawa, Ontario, December 14, 2009.

v See pages 106 and 162 of Leaderless Jihad by Dr Marc Sagemen. See also paragraph 425 of Federal Court of Canada decision, In The Matter of Hassan Almrei, Ottawa, Ontario, December 14, 2009.

vi For more on Dr Willians, see paragraphs 349 to 353 of Federal Court of Canada decision, In The Matter of Hassan Almrei, Ottawa, Ontario, December 14, 2009.

vii No evidence al-Qaida deploys sleeper agents, expert tells Harkat hearing, The Canadian Press, Mon Feb 8 2010

Tom Quiggin

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