(1) OTTAWA–Canada's spy agency, CSIS, has ordered a wholesale review of all five security certificate cases after a Federal Court judge slammed the spooks for withholding lie detector results that cast doubt on a human source key to the effort to deport Mohamed Harkat.
In a scramble to restore its credibility in the face of a tougher line coming from the Federal Court on Harkat and several other national security cases, CSIS advised in a letter the mistake was "inexcusable."
The agency says it is taking several steps to allay any doubts about the "integrity" of its evidence or its employees.
"The Service is resolute in its determination to restore judicial confidence in (CSIS) integrity and credibility," lawyer Michael Duffy, senior general counsel for CSIS, wrote in a letter addressed to Federal Court chief justice Alan Lutfy.
CSIS says "the incident ...is a matter of profound concern to the Service" especially given its obligation to present the court with a "frank view of the human source."
The federal government alleges Harkat and four other men are threats to national security, and is using extraordinary immigration warrants that permit secret evidence to be used against them in deportation proceedings.
In the Harkat case, CSIS now admits it should have disclosed negative polygraph test resultsfrom 2002 and 2008 about a male source whose "loyalty to the Service" was considered suspect.
In an edited version of a letter sent to the court, CSIS indicates an independent review of the polygraph charts determined the source "was truthful when stating he was not involved with other agencies and militant organizations" — in other words,not a mole or double agent.
The new developments come just as the government was to have begun its final hearings against Harkat this week. Those have now been postponed indefinitely.
Among other moves, CSIS says it is:
• Conducting an "exhaustive review" of the files on all human sources related to the five high-profile security certificate cases to see if any other omissions were made.
It acknowledged the omission in Harkat raises questions about whether the same has happened in the cases of the other four Muslim men subject to similar secret proceedings: Mahmoud Jaballah, Mohamed Mahjoub, Hassan Almrei, or Adil Charkaoui.
• Taking the unusual step of approaching foreign intelligence agencies to seek consent to release more information to the court-appointed special advocates responsible for challenging the government's secret case against Harkat in particular. That evidence, however, would not be shared with Harkat.
• Creating more "checks and balances" within CSIS — adding more layers of legal review and challenge — to make sure all relevant information on a human source file is disclosed, including information that undermines the credibility of its case.
• Assigning a senior CSIS manager to a "fact-finding review" to determine what went wrong and to report to the court.
The moves were outlinedin documents released today by Justice Simon Noel, who is overseeing the Harkat case.
Last week, it was Noel who revealed the stunning admission by CSIS that it had not been entirely forthright with the court. This week, he suggested the watchdogs of CSIS — including the Inspector General or SIRC, the Security Intelligence Review Committee — should review whether the original judge on the case, Justice Eleanor Dawson, was similarly left in the dark on the Harkat matter.
Justice Noel said he will recall three CSIS witnesses, and possibly more, to explain the agency's actions.
Because evidence is heard in courtrooms closed to the men or their lawyers, Noel had repeatedly advised CSIS of the need to act in the "utmost good faith" — an obligation CSIS said it takes seriously.
"The failure to include relevant information...was inexcusable and is a matter of profound concern to the service," wrote CSIS lawyer Michael Duffy.
"It belies the commitment of the service and its employees to the judicial process and their respect for the fundamental legal principles" referred to by Noel, he said.