CSIS’s desperate plea for secrecy in B.C. terror case reveals more than it conceals

Image description: a courtroom sketch of Amanda Korody wearing a green shawl and a short-haired and clean-shaven John Nuttall wearing a blue suit, sitting in what appears to be a bulletproof-glass enclosure in a vaguely rendered courtroom.

The months-long mainstream media silence on the ongoing trial of John Nuttall and Amanda Korody ended explosively yesterday with revelations of a secret CSIS-requested closed-door in camera hearing this past Monday.

As a team of media organizations fights in court for the release of a transcript from the hearing, questions are being raised yet again about just what exactly CSIS’s involvement in this convoluted plot was, and about what the surveillance agency wants to conceal from the public.

For those who are new to the Nuttall/Korody trial, here’s the basics: the pair of ex-heroin addicts and recent converts to Islam were the subjects of a massive RCMP undercover sting operation. The ultimate conclusion of this operation was the planting of (completely inert) pressure cooker “bombs” on the grounds of the British Columbia legislative building’s ground on Canada Day 2013 by Nuttall and Korody, and the arrest of the pair by the RCMP to national acclaim.

As their trial has wound on, however, it has become increasingly clear that the RCMP didn’t so much foil the plot as fabricate it entirely, providing the clueless and unmotivated Nuttall and Korody with all of the cash, the training, the planning, the transportation, and the encouragement/intimidation necessary to ensure that the plot happened. The competence, willingness and ability of the pair to execute the plot on their own has been called into question multiple times throughout the trial.

Nuttall and Korody were found guilty of terrorist offences in mid-2015, but their trial continues as the defence seeks a finding of entrapment. If it is proven that the pair were manipulated into this plot by their RCMP handlers, the conviction will be thrown out.

(For more coverage from The Alfalfafield of the Nuttall/Korody trial, see here.)

On Monday, the court heard testimony either from or about a “possible human source” for CSIS, and at the request of the Crown, that testimony was conducted in camera – no outside observers allowed, no transcript made available to the public, no alerting of the media that the session was even taking place.

This is, needless to say, an extraordinarily unusual event in what is supposed to be an open judicial system, and has prompted a challenge from a coalition of local and national media outlets.

Media lawyer Daniel Burnett argued to Justice Catherine Bruce that an extremely high threshold needs to be met in order to hold secret hearings in Canada’s court, and that this threshold was not even close to being met in this case, which he alleges could have been dealt with effectively with a simple publication ban on personally identifying information of the alleged CSIS source.

Crown and CSIS/Department of Justice lawyers obviously felt differently. Apparently, they even wanted yesterday’s proceedings to be subject to a publication ban, so concerned are they about the slightest hint of CSIS involvement in this case:

Crown lawyer Sharon Steele objected to lifting the in-camera order, arguing that nearly everything discussed in Monday’s closed-door proceedings would risk identifying the alleged CSIS operative.

“Anyone who’s been in the (courtroom’s public) gallery for any length of time in this proceeding could readily identify who’s being talked about based on the information that was provided at the (in-camera) hearing,” Steele said.

“Mr. X was referred to specifically by his name.”

Department of Justice lawyer Helen Park echoed Steele’s concerns, arguing that a simple publication ban on this individual’s identity would be insufficient to protect the man and his family.

“While the decision to proceed in camera limits the freedom of expression and the freedom of the press, we submit that those rights have to be balanced against this person’s individual privacy and safety interests,” Park said.

Now, there’s something obviously flawed in this argument. The Crown and DOJ lawyers are making such an almighty fuss over the merest reference to the fact that a hearing about a CSIS operative in relation to this case, alleging that the revelation of even the fact that this hearing happened could put this person’s safety at risk – while simultaneously conceding that anybody who’s been following this trial closely could easily figure out who the CSIS operative in question is with the information revealed on Monday.

Which is to say, people who have been following the trial closely could probably make a decent educated guess even without access to Monday’s testimony.

There are, of course, completely valid and legitimate reasons to want to keep identifying details of certain people involved in court cases out of the news. And it’s done on a routine basis, not just for undercover operatives and informants, but also for minors and for victims of sexual assaults, to name just some examples. But it’s typically handled with a simple publication ban on identifying details.

This case has, by necessity, involved the use of multiple publication bans to hide the identity of the many undercover Mounties involved in the operation. These bans have worked perfectly well – I read virtually every article that comes out of this trial, and I haven’t got a clue what the actual identities of the undercover officers involved are. It would be entirely reasonable, in the case of this CSIS operative, for the Crown and DOJ to follow this standard practice and ask for a publication ban on any personally identifying details, and for the media to abide by that ban, or, to the extent that they found aspects of it overly censorious, to challenge those aspects.

Now, however, media lawyers are relying on the same judge who approved the in camera hearing in the first place to go through the transcript and decide what they are and aren’t allowed to see – and even then, DOJ lawyer Helen Park indicated that CSIS wants to have a say as to which scraps the court throws to the press:

She added that if Bruce agreed to release the transcripts, that CSIS be permitted to redact any sensitive information.

“That’s unusual for CSIS to get an opportunity to edit the transcript,” said Bruce, noting she’s never heard of such a thing and that the court is normally responsible for redactions.

“Maybe we’d all have a hand in editing,” Park replied. “We thought that we’d do the first cut.”

This risks setting a terrifying legal precedent. Essentially allowing CSIS veto power over when and how the public can find out about its operatives’ activities in supposedly open trials would be a major blow to this country’s justice system.

And make no mistake about it, that kind of power is exactly what DOJ lawyers are advocating that CSIS should have. Media lawyer Daniel Burnett gave an excellent interview with Vancouver’s CKNW 980 AM which is well worth a listen in its entirety; here are his comments specifically on this point (interview begins at 4:52; comments quoted begin at 7:38) [UPDATE: the clip in question seems to have disappeared from the internet, sorry!]:

Charmaine de Silva: But it’s clear today, one of the people undercover in the case was an informant that they’re trying to protect. They haven’t said who it is – although if you [frequent?] the trial, you probably know.

Burnett: Well there was statements today by the various lawyers that there is an “allegation of a human source” – that was said by many people – and that that alone justifies protecting whoever that person might be. Again, because we weren’t there for the in camera hearing, we can’t really assess, well, is there or isn’t there? What was their status exactly? Only the judge is going to be able to assess that…The one thing that everyone did agree on is that we have this open-court principle in Canada, and that’s the presumption. Where we disagree is when it yields. Crown and others want it to yield – at least my take on it is – fairly readily…

This is, legally speaking, terrifying. The notion that open, publicly accessible justice should be thrown by the wayside at the slightest allegation that any person is a source (or might be a source) for CSIS, however tangential this may be to the testimony at hand, is profoundly dangerous, and the fact that Justice Bruce consented to this in camera hearing to begin with is incredibly discouraging and bodes poorly for the eventual release of a partial transcript of Monday’s testimony.

It’s part of a worrying global trend in jurisprudence towards extreme secrecy in cases with even the slightest bearing on national security. (Here in Canada, this trend is not nearly as pronounced as it is in the United States, but under legislation introduced by the outgoing Harper government in its final omnibus budget bill, courts in this country are now empowered to revoke the passports of terrorist suspects in secret and without the participation of any defence lawyers.)

Ironically, the Crown and Department of Justice, in their attempts at extreme secrecy, have drawn renewed attention to the fact that extensive CSIS involvement in the entrapment of Nuttall and Korody has long been suspected. In fact, the entrapment phase of the trial began last June with Nuttall’s lawyer, Marilyn Sandford, asking the judge to compel the RCMP to disclose all communications they had with CSIS regarding her client and his wife:

Ms. Sandford told the court on Tuesday that it appeared as though CSIS had information on Mr. Nuttall’s and Ms. Korody’s case beyond what the RCMP has so far released.

She pointed to the possible involvement of another individual in the case who may have acted as a source for a CSIS investigation, which Ms. Sandford argued would be “of extreme relevance to the issue of entrapment.”

“We require disclosure concerning [the individual] in order to investigate his potential role, if he was a human source, as an agent provocateur who encouraged Mr. Nuttall to commit violent acts,” Ms. Sandford told the court.

She referenced wire intercepts disclosed in the earlier trial, which, she said, strongly indicate “that that’s what he was doing in the name of Islamic jihadist extremism.”

On the face of it, this would seem to be exactly the same Mr. X whose very existence DOJ and Crown lawyers tried this week to suppress. (And in this case, his identity was protected just fine by a publication ban! See those square brackets with “the individual” inside them? That’s where the reporter removed a real person’s name, just like they were supposed to!)

At the time, lawyers for the Crown argued that (a) the RCMP only had a one-line mention regarding Nuttall on file from CSIS; (b) the RCMP couldn’t compel CSIS to give them anything; and (c) that the request from the defence was a “fishing expedition” and a “pure shot in the dark”. In other words, we’ve got nothing, we can’t get anything, and besides there’s nothing to get.

It now appears that all of these arguments were disingenuous at best. (In fact, it appeared that way at the time, given what we knew about CSIS infiltration of the mosque that Nuttall and Korody attended, but the current fracas only serves as further confirmation.)

In the end, CSIS agreed to provide some documents not to the defence, but to the judge, who would then rule on whether it was safe for them to be disclosed to the defence. The Vancouver Sun has the details:

After an earlier disclosure order, the judge agreed to elaborate procedures so she could review CSIS files brought to court in a locked security case by an agent.

The documents never left the spy’s sight and the judge was prohibited from keeping notes.

Ironically, however, the intelligence service later returned to embarrassingly admit it inadvertently shredded the secret documents and had to recompile them.

Additionally, the fact that the operation was conducted under the aegis of the Integrated National Security Enforcement Team (INSET) – which is a national security joint operation squad including the RCMP, the Canadian Border Security Agency, provincial/municipal police forces, and, uh, CSIS – was never a secret; it’s something that the Mounties have boasted about from Day 1.

In other words, it’s been clear to close observers of this trial for quite some time that an undercover CSIS operative was intimately involved with the RCMP’s sting operation. Although I haven’t got a damn clue who the CSIS operative is, working as I am from thousands of kilometres away without access to the court transcripts, I think it’s fair to say from the tone that multiple reporters are taking that reasonably informed observers would be able to make a pretty solid educated guess even without the benefit of access to Monday’s testimony.

What the Crown and the DOJ are trying to cover up here, then, is likely something much more significant than the mere fact that a CSIS operative was involved in this operation. Though they protest that they are merely trying to protect the identity of this (possible) agent, might it not be far more likely that they’re trying to keep the public from knowing what exactly his role in this plot was, how exactly he behaved, what exactly he said?

Marilyn Sandford, Nuttall’s lawyer, speculated that the CSIS operative may have been an agent provocateur. I think it’s possible that he was the main driver of Nuttall and Korody’s radicalization – that he was the one pushing the couple into extreme violent jihadist ideology. We know that CSIS had contact with this couple a year before the RCMP did – that it was CSIS who tipped off the RCMP to the fact that Nuttall may be a threat to begin with.

What exactly is it about CSIS’s involvement in this plot that they want to keep hidden from the public?

We may never know all the details. Depending on Justice Bruce’s decision, expected early next week, we may never reliably know any of them. But what seems certain, given this extraordinary effort to keep the details secret, is that there’s far more at stake here for CSIS than the identity of one operative.

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