Judicial Jihad and Analytical Tradecraft: Intelligence and the Courts

A former director of the Canadian Security Intelligence Service referred to the courts as being involved in “a form of judicial jihad” against the intelligence community.  A former Minister of Public Safety – Canada’s Department of Homeland Security – fears for the government’s ability to fight terrorism in light of “an increasingly complex legal environment.” He complained that judges are not deferring to the government in its efforts to deport foreign suspects. He adds: “It raises questions about whether we can protect national security.”

While he was the director of CSIS, Richard Fadden referred to the “the turbulent legal environment” as a problem for the intelligence services. Are these comments valid? As with many other things in the intelligence community, the reality of the situation is quite different from the perception.

A quick review of the role of the courts after the attacks of 911 is required to understand the reality.

In 2005, Mr Justice Binnie of the Supreme Court of Canada addressed a conference of lawyers in Ottawa and stated that: “The greatest threat to our rule of law is terrorism” and 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.”  This is commonly what is known as direction!

What happened after that? How did we go from a statement that the courts must show deference to the state agencies to “the courts are involved in a judicial jihad” against the intelligence agencies?

In Toronto, on Monday June 27th 2005, a representative from CSIS was testifying in the case concerning the national security certificate of Hassan Almrei. The witness states that the terrorists will remain committed to their beliefs as long as they live and that “it is our belief that individuals who fervently believe in the Al Qaeda ideology do.”

This was an unfortunate statement as it is incorrect and anyone with a substantive knowledge would recognize the fallacies involved. In reality, many terrorists walk away from their beliefs after realizing the futility of the use of political violence.  A number of Nobel Peace Prize winners are in fact, ex-terrorists. As such, this statement indicates that the witness lacks both a general knowledge of terrorism and a specific knowledge of AQ. In fact, a large number of Al Qaeda members have walked away. Some junior and some very senior Al Qaeda individuals walked away in the mid-1990s and many more have left since then. (See specific details in the You-tube video link provided above)

In another national security certificate case, a government official named only as ‘David’ testified on terrorism. As it turns out, he could not name the countries in North Africa that were Arabic, did not know the population of Egypt were he claimed specific expertise and did not know that the Iranians were not Arab. His testimony by itself went a considerable way to damaging the credibility of the intelligence community. (See more on this in the Youtube video)

In another serious faux pas, the intelligence community sent two different individuals to testify on two separate national security certificate cases. In one case, (Almrei) the analyst, who testified as “PG” stated: Mr. Khattab I would put in the category of Al Qaeda affiliated as opposed to Al Qaeda core. Yet in another case, (Harkat) the same agency sent an analyst who argued that Ibn Khattab was not part of al Qaeda at all. In both cases, the position of their experts served their case – but both cannot be right. Again, it is the credibility that suffers and the courts will look upon this agency and these individual with great skepticism.

Take a look at this statement from the Judge in the Almrei Decision of December 2009: “The Court’s task was, in part, to sort the fact from the rumour and truth from the speculation in the filed material to determine what was reliable and appropriate information and other evidence upon which a decision could be rendered.”

In this situation, the judge notes that it has been left to himself and the court to do the analysis of the documents and information put before the court. This is not the responsibility of the court, but rather the intelligence agencies concerned. However, the judge was left at the end of the day to do the work himself. What happened in that case in 2009 and 201 was not ‘intelligence.’ It was simply throwing raw information at a wall and hoping that it stuck.

Canada – and other states – need an effective and well trained intelligence service. The country has a right and an obligation to protect its citizens. But credibility is the issue here. If you are seen to be credible, you will be treated with deference and respect by the courts as well as journalists, politicians and the citizenry as a whole. In addition to the cases presented here, I have found more than 20 other similar examples of highly questionable so-called intelligence documents being entered into the courts.

Let us be clear. The courts are not soft on terrorism and there is no judicial jihad against the intelligence community.

The problem is a lack of analytic trade craft, a lack of basic terrorism knowledge and a questionable level of analytical oversight. By putting unprocessed and weak information into court, the intelligence community damaged itself. The courts, which originally supported the CT efforts and suggested deference, have rightfully turned around and suggested that the intelligence community start being accountable for their work.
Of notice, the courts have been generally supportive of terrorism cases run primarily by police agencies in cases such as Momin Khawaja and the Toronto 18. The police, who have to meet much higher standards in criminal court have learned the lessons of credibility.

As a quick note, it would be easy to be critical of the intelligence community in the chaotic days of 2001 in the immediate aftermath of 911. The choices of material used here focuses on the time period of 2005 to 2010. This was four to nine years after 911. By then, the agencies had plenty of time to get things sorted.

For the intelligence community – credibility is everything. It can take years to build up personal and institutional credibility, but only minutes to lose it. Analytical trade craft – so desperately missing in many situations – is not the answer to all the problems.

But it may be the best place to start.

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