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State agents say inquests causing 'judicial terrorism'

Since 9/11, Canada has secured no convictions under the terrorism laws it passed two months after the attacks, but it has launched three judicial inquiries, all aimed at exploring the missteps of security agencies. This situation has left some state agents complaining it is they who have been put on trial.

How much supervision should be applied against agencies working in the shadow of surveillance and counterterrorism? Mindful of past oversteps, authorities are struggling to find better ways to vet wiretapping practices, to share information with foreign allies and to avoid any involvement in torture in overseas prisons.

Tomorrow, a security conference begins in Ottawa on adjudicating terrorism in democracies. It is being billed as the first event of its kind and the speakers, most of them judges from across North America and Europe, will address a common quandary - how to balance civil liberties with national security.

It's a fine balance. Mr. Justice Dennis O'Connor, the Canadian judge who cleared former Syrian detainee Maher Arar of wrongdoing, will be one of the panelists describing the added scrutiny he's recommended for Canadian investigators. While his recommendations have been broadly praised, his inquiry and related ones have prompted some backlash from officials, who wonder whether Canada will retain the tools it needs to prevent attacks.

"The term I've used in the past is judicial terrorism," said Ben Soave, a recently retired RCMP chief superintendent, who argues that a debilitating damned-if-you-do, damned-if-you-don't malaise has begun to hamper Canadian investigations. "The fear factor kicks in," he explained in an interview. "The fear of being tied up in another public inquiry."

"Legal jihad is the one we use," said Jack Hooper, a top official who recently left the Canadian Security Intelligence Service. CSIS, he said, is struggling to comply with the judicial inquiries atop of processes already laden with overseers. While hindsight may always be 20/20, he cautions that those who investigate cases in real time find it "difficult to connect the dots when the whole page is black."

Terrorism cases are, by nature, difficult to prosecute. Conspiracies are transnational, gathering evidence is tricky and the work is often left to agencies that operate in different legal regimes.

The bureaucratic infighting and artificial barriers - "stove pipes" in the jargon - that existed between Canadian security agencies in 1985 are now under review, by Mr. Justice John Major, after a failed criminal probe. The intelligence gaps of the day allowed Sikh extremists in Canada to place bombs on airplanes, killing 330 people.

In 2001, the peril of sharing imprecise or inaccurate information was highlighted when several Canadian Arabs were jailed in Syria after being arrested in international airports. Now free, all say they were tortured on the basis of false information from an investigation that started in Canada but led to no charges.

It was these episodes that gave rise to the O'Connor commission and its sequel, the inquiry into the other Syrian detentions now being led by Mr. Justice Frank Iacobucci. Judge O'Connor's right-hand man for the Arar investigation, Paul Cavalluzzo, says that in cases like these, counterterrorism agencies have only themselves to blame for the scrutiny they invite.

"It's because of events they created, " he said, adding he finds references to "judicial terrorism" to be "hyperbole at its highest" and "unbelievably disrespectful."

But agencies anticipate they are about to be presented with a flurry of competing directives.

"[Judge] O'Connor will say white and [Judge] Major will say black, and at the end of the day the policy silence will be deafening and we'll be back trying to reconcile the right thing to do," said Mr. Hooper, who retired from CSIS in March. "We need people to recognize we don't deal in black and white. We deal in various shades of grey ... and it's hard to build policy around that."

CSIS, he said, is trying to streamline bureaucracy, not to build more. The intelligence service recently arranged to have fewer officials sign off on the paperwork used to launch investigations.

Canada is in the process of prosecuting two alleged al-Qaeda inspired conspiracies. Last year, 18 suspects were arrested and the ringleaders accused of a plan to detonate truck bombs in Toronto. The trial remains far off.

Meanwhile, an Ottawa computer programmer who was arrested in 2004, has launched a series of constitutional challenges of terrorism laws that have delayed his trial.

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