By Mohammed Adam, The Ottawa Citizen, April 1, 2010

The federal government case against Ottawa terror suspect Mohamed Harkat appears to have suffered a significant blow Wednesday when a document was introduced in court showing that Abu Zubaydah, once considered a senior terrorist and 9/11 mastermind, actually had nothing to do with the attacks. Even more surprising, the document, which quotes U.S court filings declassified last week, shows that Zubaydah, once believed to be one of the top leaders in al-Qaeda, was not even a member of the terrorist group. One of Harkat’s lawyers, Norm Boxall, said the information is significant because part of the government’s case against Harkat is that he is an associate of Zubaydah. If Zubaydah has no ties to al-Qaeda, as now appears to be the case, a large chunk of the case against Harkat is under question.

The document, a report under the byline of Jason Leopold, quoted U.S. court documents that say the American government now admits that Zubaydah did not have “any direct role in or advance knowledge of the terrorist attacks of September 11, 2001,” and was neither a “member” of al-Qaeda nor “formally” identified with the terrorist organization.

Leopold works for Truthout, a non-profit news organization that operates a website and distributes a daily newsletter. The U.S. court documents are also referred to in recent articles on the Guardian website in Britain and the Huffington Post, an online news site.

The document distributed in the Federal Court Wednesday quotes a redacted U.S. Justice Department filing on Zubaydah as saying the U.S. government “does not contend that (Zubaydah) was a ‘member’ of al-Qaeda in the sense of having sworn bavat (allegiance) or having otherwise satisfied any formal criteria that either (Zubaydah) or al-Qaeda may have considered necessary for inclusion in al-Qaeda. Nor is the government detaining (Zubaydah) based on any allegation that (Zubaydah) views himself as part of al-Qaeda as a matter of subjective personal conscience, ideology or worldview.”

Rather, it says Zubaydah’s detention is based on conduct and actions as part of hostile forces in Afghanistan.

The information comes from a Justice Department response to 213 discovery requests by Zubaydah’s attorneys in his habeas corpus case seeking evidence behind the U.S. government’s claim that their client was a top al-Qaeda official.

“The Government’s accounts frequently have been at variance with the actual facts, and the government has generally been loath to provide the facts until forced to do so,” Zubaydah’s attorney, Brent Mickum, is quoted in the article as saying.

“When the government was forced to present the facts in the form of a discovery in Zubaydah’s case, it realized that the game was over and there was no way it could support the Bush administration’s baseless allegations,” he is quoted as saying.

The report, dated March 30, was received by Paul Copeland, one of Harkat’s special advocates. He informed Federal Court Judge Simon Noël, who is presiding over a hearing looking at Harkat’s case, and the judge gave Copeland permission to release it to Harkat’s defence lawyers.

Government lawyers, who saw the document for the first time Wednesday, would not comment on the contents or its impact on their case.

But Harkat’s lawyers said this is another in a series of setbacks for the federal case against their client. It follows the February release from U.S. custody of Hadje Wazir, a Harkat associate whom CSIS has characterized as Osama Bin Laden’s “money handler.” Last year, the case was rocked by the revelation that three CSIS witnesses failed to reveal that a key informant failed a lie-detector test.

No one in the Ottawa court has seen the actual U.S. court documents referred to in the Leopold report and there has been no discussion in court about them.

In CSIS’s security intelligence report on Harkat, the agency says Zubaydah used an intermediary to ask Harkat to perform a task for him in Ottawa. He was to help pay the legal fees of a terror suspect who was being held at the Ottawa-Carleton Detention Centre. Even though Harkat denied in federal court in 2004 that he ever met or was acquainted with Zubaydah, CSIS believed the contrary.

“Based on its investigations, the Service concludes that Harkat has associated with Abu Zubaydah, one of Bin Laden’s top lieutenants since the early 1990s,” the 2009 security report said.

Boxall says if CSIS knew of the information that is now coming to light in the U.S. and kept quiet about it, maintaining that Zubaydah is a major al-Qaeda terrorist, then it seriously undermines the credibility of the agency. If they didn’t know, but U.S. authorities knew but kept it under wraps for a long time, it casts serious doubt on any information from U.S. authorities that CSIS has relied on in the Harkat case.

Zubaydah was the first major alleged al-Qaeda detainee captured by the U.S. after 9/11. He is said to have been waterboarded nearly a dozen times. Then-U.S. president George Bush described him as one of al-Qaeda’s “top operatives plotting and planning death and destruction in the United States” and senior politicians, including then vice-president Dick Cheney, defended the use of waterboarding on him. But Zubaydah’s status in al-Qaeda has always been the subject of debate and disagreement among U.S. intelligence officials, some of whom have always said that he was a small player in al-Qaeda.

The new information came to light in court the same day that defence lawyer Matt Webber blasted the credibility of CSIS, accusing it of “egregious breaches” of Harkat’s rights that bring into question the administration of justice.

He listed a number of abuses by Canada’s security agencies, including violation of solicitor-client privilege, unlawful detention, destruction of documents and unlawful search and seizure of documents. Webber accused CSIS of destroying “enormous bodies of material” and the violations are so “profound” that the only remedy is for Noël to stay proceedings.