Thursday, June 4, 2009 By Terry Milewski, CBC News

Mikhail Lennikov’s self-described “very desperate act” — taking sanctuary in a church — has attracted wide public interest and more than 150 pages of commentary on CBCnews.ca. Terry Milewski has been covering the story for CBC News and offers his take on some of the questions raised about the case.

1. The government says it is just respecting the courts and enforcing the law. Is that correct?

Not entirely. The law does not require that former spies be deported if the minister of public safety decides otherwise; the question is why the minister agreed to this particular deportation. That’s his own decision, and it is the government that chose to deport Lennikov; the courts have merely confirmed that it’s legal to do so. They have not ruled on whether it’s a good idea.

Section 34 (1) of the Immigration and Refugee Protection Act (IRPA) makes former enemy spies “inadmissible” to Canada — but not necessarily. The next line — Section 34 (2) —empowers the minister of public safety to cancel that “inadmissibility” if the person is no threat to Canada. It says that the provisions excluding spies “do not constitute inadmissibility in respect of … a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.”

The issue, then, is why Public Safety Minister Peter Van Loan thinks Lennikov is “detrimental to the national interest.” In the words of Pastor Richard Hergesheimer of Vancouver’s First Lutheran Church, where Lennikov is living, “Well, what’s the issue here? What are we supposed to be afraid of with this man?”

2. What does the government say about why Lennikov is “detrimental to the national interest”?

Nothing. The CBC has repeatedly asked ministers, their spokesmen and the Canada Border Services Agency to explain how Lennikov is “detrimental to the national interest.” None of these officials have answered the question. When it was put to him on June 2 by the CBC’s Julie van Dusen, Van Loan chose not to address the question, instead quoting Section 34 (1), which says nothing about his discretionary powers.

3. Has the government explained its reluctance to answer this question?

No. Asked if the government simply has no answer to offer, Van Loan’s spokesman, Chris McCluskey, chose not to respond.

4. But haven’t the courts ordered Lennikov deported, as the government says?

Yes. The deportation order is legal; the issue is whether it’s a good idea.

5. Didn’t the courts rule that it is?

No court has ever ruled on that question. The courts have merely confirmed that the government followed proper procedure and that the deportation is legal. But the question of whether he is “detrimental to the national interest” has never been tested in court.

The latest decision by the Federal Court was strictly focused on whether to stay Lennikov’s deportation pending a hearing on Van Loan’s decision. The court heard no witnesses and accepted as fact the findings of the government. Justice Russel Zinn ruled that the “stress, depression and anxiety” caused by breaking up the Lennikov family was a “usual consequence of deportation” and was not sufficient cause for a stay. He was not asked to rule on whether Lennikov is “detrimental to the national interest.”

A previous Federal Court hearing was focused strictly on whether Lennikov was, indeed, inadmissible under Section 34 (1) — not on whether he is “detrimental” or on whether the minister should let him stay under 34 (2).

6. If the government can’t say why Lennikov is “detrimental,” why is it deporting him?

The public safety minister adopted as his reasons a ministerial briefing note by Stephen Rigby, the head of the Canada Border Services Agency (CBSA). These say that Lennikov’s “account of his KGB service does not provide satisfactory evidence that his presence in Canada is not detrimental to the national interest.”

Rigby does not say, though, why the evidence is not satisfactory or why Lennikov is detrimental. Instead, he confirms that Lennikov has done no spying here and has a clean record, both in Canada and in Japan, where he lived after leaving Russia.

The briefing note also makes factual errors that tend to discredit Lennikov.

For example, it accuses Lennikov of “failing to express any understanding or remorse for the espionage the KGB conducted.” In fact, Lennikov has denounced the KGB both publicly and in his application for residency. In a statutory declaration to the government in March 2005, for example, he said that, in the KGB, “I was exposed to the cynicism, arrogance, lack of morality and alcoholism that afflicted most officers. I was then convinced that the Soviet regime was an evil force in the world … I was absolutely committed to finding a way to quit the KGB.”

The government does not dispute that he did, in fact, quit the KGB and that he could be subject to prosecution for betraying details of his service to the Canadian authorities.

Even so, the briefing note says that Lennikov was “not forthcoming” about his service in the KGB. In fact, everything the government knows about Lennikov’s service it learned from him. He revealed it simultaneously with his application for permanent residence in March 1999, when he provided his official Soviet “work book” describing details and dates of his employment history with the KGB.

7. What does the government say about these problems?

The government does not deny that these factual errors exist. Asked if Van Loan was aware of and concerned about these errors, the public safety minister’s spokesman, Chris McCluskey, chose not to respond.

Asked specifically if the minister was concerned that the errors undermined the credibility of the government’s position, McCluskey chose not to deny the errors but replied, “Any deficiency in the process would be subject to judicial review.”

He added that, “The Courts have thoroughly reviewed all aspects of the case.” Actually, the June 1 ruling by Justice Russel Zinn of the Federal Court made no comment on the factual errors in the minister’s rationale for the deportation.

8. Lennikov would not be separated from his wife and son if they simply went with him. Why don’t they?

Not so simple. His son, Dmitri, who has grown up in Canada and is just graduating from high school, would automatically be subject to the Russian draft. Hazing rituals in the Russian army are notoriously brutal and occasionally fatal. They would certainly not be suspended for the son of a traitor — which Dmitri is under Russian law. Far from being a friend of the KGB, his father has betrayed it by revealing details to CSIS. He could be subject to prosecution in Russia, although the government describes this possibility as “speculation.” While the KGB no longer exists, it is thought to have “morphed” into the new FSB. Meanwhile, the most powerful man in Russia is a former KGB officer: Prime Minister Vladimir Putin.

9. Why doesn’t Mikhail Lennikov settle in a third country and bring his family there?

He has no Russian passport; only a one-way permit to Vladivostok. When and if he gets a passport, his deportation from Canada would make him ineligible for a visa to many countries, including the European Union.

10. Don’t former KGB agents have blood on their hands?

The government makes no such allegation in Lennikov’s case. It accepts that he started out doing translations (he speaks Japanese) and that, while he did later spy on Japanese contacts, he received no espionage training and quit in 1988, three years before the dissolution of the Soviet Union. He says he joined reluctantly when recruited in 1982, fearing the consequences of saying no to the all-powerful secret police. The government disputes this, saying that the KGB was a sought-after place to work in Soviet Russia.