Ottawa chooses to ignore its own security watchdog
Mohammed Mansour Jabarah, second from right, was sentenced yesterday for plotting to blow up American embassies in Singapore and the Philippines.
Government sides with CSIS on case of terror suspect who was moved from Oman to U.S.
July 10, 2008

Canada's public safety minister, Stockwell Day, is in the process of effectively dismantling the national security system that has served this country since the mid-1980s. Since that time, an independent watchdog agency (the Security Intelligence Review Committee [SIRC]) has conducted regular audits of the policies and practices of our national security agency, the Canadian Security Intelligence Service (CSIS). Several months ago, a SIRC report declared that CSIS had violated the constitutional rights of a Canadian citizen. CSIS reportedly disagrees with that assessment and Day has sided with CSIS.

During the spring of 2002, a 21-year-old Canadian citizen from St. Catharines, Mohamed Mansour Jabarah, found himself in the custody of CSIS in the country of Oman. The public does not have a complete account of how it happened. We do know that he was suspected of involvement in terrorist activity. According to the SIRC report, CSIS subsidized his return to Canada and then managed "to facilitate" his transmission to the United States. There, he languished in an American jail for some time and finally pleaded guilty in an American court to participation in a conspiracy to bomb U.S. and Israeli embassies abroad. Having found him guilty, the U.S. court imposed upon him a life sentence in jail.

Inevitably, circumstances such as these generate suspicions of wrongdoing. After all, CSIS never had a power of arrest. Thus, it could not legally keep and transport Jabarah against his will. Indeed, the government and CSIS have said that he went to the United States voluntarily. It's clear to the rest of us, however, that it would not have been in his interests to go there. What, then, persuaded him to do so? Did anyone provide, or even offer, the assistance of a lawyer to this 21-year-old Canadian citizen?

Since the summer of 2002, we at the Canadian Civil Liberties Association (CCLA) have been badgering the government of Canada for an account of what happened. Three successive ministers of the Crown (two Liberals and one Conservative) have insisted that the behaviour of CSIS was lawful and proper. But SIRC, the watchdog, claims otherwise. In its view, Jabarah was "arbitrarily detained" by CSIS in violation of the Charter of Rights and Freedoms. And, because of this detention, his right to silence and to counsel were also reportedly infringed. Significantly, SIRC obtained legal advice from no less an expert than retired Supreme Court Justice Gérard La Forest.

It is acceptable, of course, for the government and CSIS to differ with the opinions of SIRC. Governments have been elected to govern; thus, the opinions of government are entitled to prevail.

But the rub in this situation is the failure of the government to offer the public an explanation of exactly why it differs with SIRC. After all, SIRC was created for the very reason that, since so much security activity is conducted in secret, the public should not be expected simply to trust the government. In addition to their national security duties, governments have partisan political interests. At any given time, it's impossible for the public to know how far a particular decision of government is influenced by the genuine security needs of the country and how much may be influenced by more crass political considerations.

Similarly, the public cannot be expected simply to trust CSIS. Because of the CSIS mandate, national security must be the agency's top priority. Thus, in any conflict between the perceived security needs of the country and the claimed legal rights of a citizen, CSIS would be expected to harbour a bias in favour of security.

Such a situation is not likely to generate much confidence that the civil liberties of individual Canadians would be adequately factored into the scheme of things. This realization is what led a key royal commission to propose – and ultimately for Parliament to adopt – the creation of an independent audit agency, SIRC, that would be fettered neither by partisan consideratio ns nor by security priorities. Its job would include ferreting out situations in which CSIS had unjustifiably infringed the legal rights of any individual Canadians.

What, then, should happen now? SIRC has told us that CSIS has committed such an infringement and both the government and CSIS have denied it. If nothing more happens, the public will simply have to do what it was not intended that it have to do: trust the government.

In view of the allegations against Jabarah, he is not likely to attract a mountain of public sympathy. But there is an issue here of transcendent importance. Our official national security agency, CSIS, has been fingered by our official watchdog agency, SIRC, for having violated the rights of a Canadian citizen. No matter what we may think of that citizen, his legal rights must be protected by the agencies of our government. Thus, Stockwell Day owes the Canadian public a lot more than he has offered thus far.

At the very least, Day should spell out the reasons why he prefers the legal opinion of CSIS to that of SIRC. This means revealing enough of the facts so that the public can determine which of its agencies got it right.

If the security interests in this situation are such that adequate disclosure of the relevant evidence would not be wise, the government should provide for some kind of independent probe of the conflict at issue. Whatever alternate or additional redress might appear appropriate, the government's current position should be universally rejected. Agencies such as SIRC were not created for purely decorative purposes. Its opinions have to be taken seriously. The current posture of the government reveals a disquieting insensitivity to the delicate balance that is required of a democratic national security system.

A. Alan Borovoy is general counsel for the Canadian Civil Liberties Association.