National Security Cases and Written and Oral Evidence

1. National Security Cases and Written and Oral Evidence Kent Roach University of Toronto kent.roach@utoronto.ca Prepared for Oral and Written Evidence Conference, University of Bologna at Ravenna May 13-14, 2001

2. Comparison of written v. oral evidence • Oral evidence and value of cross-examination • Written evidence and use of intelligence and written analysis as evidence

3. Comparison of written v. oral evidence • International issue: 1267 listing committee and the Kadicases in European courts • Relevant to issue of transnational co-operation in investigation of international terrorism

4. Intelligence v. evidence • Evidence in common law systems at least subject to cross-examination and confrontation of one's accuser • Intelligence based on written record and not subject to cross examination because of need to protect sources, methods and promises of confidentiality (caveats) given to foreign  agencies

5. Intelligence v. evidence • Not a conflict when intelligence is used to provide government with security warnings • Conflict when intelligence is used as evidence for a terrorist listing and sanctioning regime at UN (1267 committee) and EU and domestic levels

6. Kadi cases • European Court of Justice and General Instance find that not enough information is disclosed to allow a right to defence • Significant that this due process challenge emerged from civilian and not common law based substance • Common due process minimums?

7. Abdelrazik 2009 FC 580 (FCTD) (Canada) • Judge denounces 1267 listing as Kafkaesque • “The 1267 Committee regime is, as I observed at the hearing, a situation for a listed person not unlike that of Josef K. in Kafka’s The Trial, who awakens one morning and, for reasons never revealed to him or the reader, is arrested and prosecuted for an unspecified crime.” at para 53

8. UN Security CouncilResolution 1267 • But countries (often USA) will not disclose intelligence or allow it to be tested as evidence by cross-examination and disclosure of the circumstances under which it was collected • Forcese and Roach “Limping into the Future: The 1267 Committee” (2011) 42 Geo Wash Int. L. J. (forthcoming)

9. 1267 Narrative Summary • Abelrazick (A) was listed on 31 July 2006 pursuant to paragraphs 1 and 2 of resolution 1617 (2005) as being associated with Al-Qaida, Usama bin Laden or the Taliban for “participating in the financing, planning, facilitating, preparing or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf, or in support of” and “recruiting for” Al-Qaida (QE.A.4.01) and Ansar al-Islam (QE.A.98.03). • Additional information: • A has been closely tied to senior Al-Qaida (QE.A.4.01) leadership. He has provided administrative and logistical support to Al-Qaida. • A was closely associated with Abu ZubaydahUsama bin Laden’s ormer lieutenant responsible for recruiting and running Al-Qaida’s network of training camps in Afghanistan. A recruited and accompanied Tunisian RaoufHannachi for paramilitary training at Khalden camp in Afghanistan where Al-Qaida and other listed entities were known to train. A advised another individual concerning Al-Qaida training camps prior to this individual’s departure for these camps. A also told this individual that he had been personally acquainted with Usama bin Laden while attending one of these camps himself. Abd al-Razziq has also been associated with the Ansar al-Islam (QE.A.98.03) network. A was a member of a cell in Montreal, Canada, whose members met in Al-Qaida’s Khalden training camp in Afghanistan. Members of this cell with whom Abd Al-Razziq was closely associated included Ahmed Ressam and AbderraoufJdey. After training in the Khalden camp, Ressam attempted to attack Los Angeles International Airport in conjunction with the Millennium celebrations in January 2000. Jdey has been closely linked with Al-Qaida operatives and involved in plans for conducting hijacking/terrorist operations. • In 1996, A attempted to travel to Chechnya to participate in the fighting but never made it there. In 1999 he journeyed to Chechnya in the company of others wanting to participate in fighting but was never able to travel further than a small area of Chechnya under the Russian control.

10. Diab case in Canada • Extradition procedure in Canada allows use of a written and certified record from the requesting country • Written record enjoys a presumption of reliability • Comity

11. Diab case in Canada • But record is subject to reliability challenge • Record features “new” but unsourced intelligence linking Mr. Diab to Paris bombing in 1981 • Challenged in Canada as manifestly unreliable because unsourced, uncircumstanced and possibly obtained by torture

12. Diab case in Canada • I was allowed to present expert evidence on differences between intelligence and evidence • Domestic focus and judge avoids adjudicating on the use of intelligence by specialized French investigating magistrate • Canadian government withdraws some of the intelligence assertions

13. Diab • But judge accepts French handwriting evidence despite being disputed by three experts and • French handwriting expert (second and third one) not being subjected to cross-examination • If extradited will face increased use of written evidence and intelligence in French proceedings

14. Common Law and written evidence • Pockets of reliance on written evidence as in extradition, mutual legal assistance • Pressure of co-operation with countries and international institutions that rely more on written evidence and use of unsourced intelligence as evidence

15. The Future? • Conflict between written and oral traditions and potential barrier to increased co-operation including with 1267 or • Increased acceptance of written evidence in common law countries or • Convergence on minimal due process standards for both written and oral systems