Spy agency got legal opinion on controversial case five years after fact

The Security Intelligence Review Committee study also says CSIS received written legal advice on its controversial dealings with Mohammed Mansour Jabarah only last year - half a decade after the events unfolded.

"Obtaining such advice 'after the fact' is not - in the committee's opinion - a sufficient exercise of due diligence, especially given the important legal issues which confronted CSIS during this investigation."

A heavily censored version of the top secret review was obtained by The Canadian Press under the Access to Information Act. The 55-page document expands on a summary of the review committee's findings published last year in the watchdog's annual report.

The committee found CSIS "arbitrarily detained" Jabarah, a Canadian citizen, in contravention of the Charter of Rights and Freedoms, and strayed beyond its security mandate into the realm of law enforcement.

It stressed that he had fundamental rights under the Charter, no matter how despicable his actions.

CSIS spokeswoman Manon Berube disputed the findings, saying Wednesday the intelligence service did not violate Jabarah's constitutional guarantees.

The Kuwaiti-born Jabarah, who attended high school in St. Catharines, Ont., is an admitted al-Qaida member and leader of a terrorist cell that plotted to bomb the American and Israeli embassies in Singapore and Manila. He was arrested in Muscat, Oman, in March 2002 after the plan was derailed.

CSIS officials travelled to the Middle Eastern nation and arranged for Jabarah's return. He then signed a "parole agreement," which the study describes as "an unusual if not unique document."

Jabarah was subsequently flown to New York - again in the company of CSIS officials - on a government-owned aircraft, as he apparently could not be charged with a crime under Canadian law.

In the U.S., he was sentenced to life in prison after pleading guilty to a number of terrorism-related offences.

The review committee, which reports to Parliament, concluded Jabarah's decisions - made without the benefit of independent advice from a lawyer - resulted in his self-incrimination and surrender to U.S. authorities.

The committee said a court would also have considered various factors, including: Jabarah's age, his emotional state, whether his fear of the alternatives influenced his return to Canada from Oman, the length of time he spent in the company of CSIS officials while in Canada, and the circumstances surrounding his decision to surrender himself to a foreign jurisdiction.

The committee was told by a CSIS investigator that Jabarah was not "read his rights" because CSIS is not a police service.

Based on those and other circumstances, the committee found Jabarah was "arbitrarily detained" by CSIS in violation of the Charter. In addition, it said his right to silence, to legal counsel and to remain in Canada were breached.

The review committee, which made several recommendations to CSIS, also expressed concerns about missing meeting minutes, details of inter-departmental consultations and operational e-mail messages.

The newly released study says the committee "was unable to review 18 e-mails" as CSIS deleted the messages, considering them "transitory" records.

It adds there was no record of verbal legal advice CSIS received on the case.

The committee was troubled "that an investigation of such importance and sensitivity, which had a direct impact on the indictment and prosecution of a Canadian by U.S. authorities, could be conducted without any formal, written legal advice" from the Justice Department.

The department's legal services division did provide CSIS with an opinion in March last year - "five years after these events occurred."

Even then, however, the opinion did not discuss Charter issues.

Berube said the service had acted on several committee recommendations.

She added it is CSIS's view "that Mr. Jabarah's case was conducted in accordance with the Charter of Rights and Freedoms, the CSIS Act and other relevant legislation and policies."

She could not immediately elaborate on how the service arrived at that conclusion.

The Canadian Civil Liberties Association, which has been pressing for answers about Jabarah for years, wants a fuller explanation.

"The public is left in the dark," said association lawyer Alan Borovoy.

He added that if answers aren't forthcoming, the government should establish a "limited, independent inquiry" into the Jabarah case.