The neverending Harkat saga and the future of security certificates

One would think that a state has fundamental rights and obligations in the same way that people do.  Any state must, for instance, have a monopoly on the use of force since in the absence of such we would live in anarchy.  I agree that the state exists only – or rather should exist only as there are unfortunately far too many counter examples – for the benefit of and at the pleasure of those who constitute it: i.e. a country’s citizens.  Should those citizens rise up against the very nature of the state, and do so in adequate numbers, the state can change (unless elements therein use force to prevent such change).  A few examples would include the decline of communism in Eastern Europe post 1989 and the fall of apartheid in South Africa.  Nevertheless, it is an interesting question whether a state has rights.

Do these rights extend to deciding who can become a citizen (I ask that question realising of course that those born in a state become citizens by default)?   Does everyone have an inherent right to do so?   To answer yes is preposterous and this is why the ‘No one is illegal’ movement is naive.  If an individual abroad submits an application to become a Canadian, or even visit Canada, that person’s fate is in the hands of immigration officials at Canadian embassies, high commissions and consulates.  There are all kinds of reasons why requests are denied: criminal record, serious illness, no real way of making a living and hence a net contribution to Canada, etc.  I do not know what the appeal process is like in case of rejection nor how many such appeals are registered in a given year but I imagine that there are thousands (tens of thousands?) of instances where applicants are not given the opportunity to come to Canada.

What, then, should be the state’s right to remove someone who successfully gains a foothold here but who, it turns out, was not forthcoming and truthful in his/her application (i.e. he/she lied)?  In a perfect world officials making decisions on immigration have full and unfettered access to all relevant data before they make a ruling but in some cases such data arises only after the fact.  To my mind, the state, in such cases, must be able to reverse earlier decisions since those were not fully informed.  Those who lied must be told they can not stay in our country.

This is exactly why several governments here have tried to apply what are known as National Security Certificates.  This is an immigration tool, not an intelligence tool as is commonly misinterpreted, that seeks to build cases in which the state can make the determination that a given individual misrepresented himself and thus has no right to be here.  These cases, some of which are very well known in Canada, have actually worked out well for the Canadian government on many occasions, i.e. people were deported.  A few, all of which have involved coincidentally Muslim men, have become cause-celebres and are still outstanding decades later.

In these instances lawyers retained by potential deportees have argued that they cannot represent their clients because much (in some cases all) of the information is classified, meaning it is intelligence, and they cannot access that information.  Some workarounds have been tried – the declassification of some data, the establishment of amici curiae to see the data, and the provision of summaries based on classified data – but the system is badly broken.

A good example of the shortcomings of security certificates is that of Mohamed Harkat.  He was detained back in 2002 and is still here: in fact the conditions under which his freedoms have been limited keep getting lifted.  The government claims he is an Al Qaeda sleeper agent: Mr. Harkat claims he is innocent and will be tortured if he is returned to his native Algeria.  This one case has used up government resources for more than 15 years.  I cannot imagine how much this has cost the taxpayer.

I make no boast of neutrality in the case of Mr. Harkat.  I testified for the Crown on several occasions and firmly believe the government’s case (I had access to the intelligence).  He should be deported.  And yet it looks increasingly unlikely he ever will be, the Algerian state’s pledge that he will not be mistreated notwithstanding.

The bottom line is that the national security certificate regime is broken, at least in these cases, and something has to be done.  Whatever one thinks of Mr. Harkat he and his family do not deserve to remain in limbo for almost two decades.  The government should deport him – the optimal and correct option – and if it cannot do so within a reasonable period of time he should be released.  We cannot continue to waste tax dollars ad infinitum.

By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. Phil is a 32-year veteran of CSE and CSIS and the author of six books on terrorism.

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