Canada

Via plot judge took unusual steps to protect FBI agent's identity

In the trial within the trial of the two men charged with plotting to derail a Via Rail passenger train, Judge Michael Code went to unusual lengths to protect the identity of the FBI undercover agent who was central to the case. Laura Lynch explains what happened and why.

Media were cleared from courtroom while FBI undercover agent testified, no recordings or photos

Chiheb Esseghaier, left, and Raed Jaser, centre, are accused of plotting multiple attacks. (Pam Davies/CBC)

Tamer el-Noury, the Crown's star witness in the case against Chiheb Esseghaier and Raed Jaser, the two alleged Via train plotters, is not who he appears to be.

El-Noury is an FBI undercover agent, posing in this case as a wealthy Egyptian-American real estate developer whose views had supposedly become more hard line in recent years and who was a willing accomplice in the alleged conspiracy.

He rented a "safe house," which had been bugged by police, for the operation. And he bought the two accused plotters meals, drove them to scouting locations and handed out cash.

But until now, the media could not report a basic fact about agent el-Noury: that Tamer el-Noury is not his real name.

And while it is not unusual for an undercover officer to use a pseudonym, what is unusual in this case is that Judge Michael Code ordered journalists not to report that it was, in fact, an alias.

Indeed, he swore his oath to tell the truth in the trial under a fake identity.

It was one of several strict measures — including rules barring the recording or broadcast of the agent's voice or image — imposed by the judge to protect the agent as he testified for close to two and a half weeks in a Toronto courtroom.

Those measures can only be reported now as the jury retires to consider its verdict in a case largely built around el-Noury's undercover work.

They reveal a significant measure of caution Judge Code said was needed because of the sensitivity of this cross-border case.

Separate courtroom for press

Adding to the intrigue, the judge cleared the courtroom during the agent's testimony, allowing only the jury, the lawyers, the accused and police officers to remain inside.

Media were sent to a second courtroom where the trial was displayed on closed-circuit television with camera angles that obscured el-Noury's face.

VIA attack plot

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New details are revealed at the trial of two men accused of plotting to attack a VIA train 3:05

Unusually, the media were also forbidden to report at the time that they were forced to sit in a separate courtroom.

Reporters also had to sign individual undertakings vowing not to record any of the proceedings. Otherwise they would have been barred from taking smartphones and laptops inside.

This was in an effort to prevent the possibility of the agent's voice being broadcast.

Unlike another terrorism case unfolding in British Columbia, the media were refused access to the secretly recorded conversations played in this court in order to prevent the agent's voice from reaching the airwaves.

All of these measures had been imposed by Judge Code at a pre-trial hearing last May. Media were alerted beforehand, but none objected to the measures imposed by the judge.

Small coterie of agents

In his ruling setting out the orders, Judge Code noted he was relying on two affidavits from "senior police officials in Canada and the U.S."

He said the affidavits set out the ongoing undercover work of this officer as well as what is "anticipated" in terrorism investigations in the future.

Trial Judge Michael Code tried to keep Esseghaier engaged in the process. (University of Toronto faculty of law)

The extra precautions were needed, the judge said "because of the ongoing efforts of terrorist groups and of certain individuals operating internet websites to identify the small number of undercover officers who are trained and are suitable for these kinds of investigations."

The agent calling himself el-Noury comes from what is apparently a small coterie of undercover operatives, perhaps of Middle Eastern or South Asian descent, who speak Arabic or other languages and who are capable of infiltrating suspected jihadist networks.

(In his ruling, Judge Code wrote that he had considered using a large screen to block the public's view of the agent instead of clearing the courtroom. But he said it "would arguably signal to the members of the jury that there was some danger to the witnesses and perhaps allow speculation that that danger emanates from one or both of the two accused.")

Confronted the judge

In court, the agent was a careful witness, but he did not shy away from defending his investigative techniques.

At one point, in the absence of the jury, he angrily confronted Judge Code after believing that the judge had questioned his reluctance to answer a question about how he met Esseghaier.

"What your honour said to me I took great offence to regarding the sensitivity of my oath [as an FBI agent]. If there is anyone on the planet who should appreciate the serious nature of my oath it is your honour.

"I was offended by the suggestion that I took my oath too seriously. I wanted to point out that I do take that seriously — national security in addition to my oath."

If the two accused are found guilty by the jury, it may well be because of the agent's work, in addition to the large-scale surveillance efforts of the RCMP.

Yet, in another related case, this agent's work was not entirely successful.

Esseghaier introduced the agent he knew as el-Noury to a man named Ahmed Abassi.

Eventually Abassi was arrested in New York after being lured there by el-Noury and put up in an apartment that was wired with recording devices. His arrest came on the same day that Esseghaier and Jaser were taken into custody in Canada.

Abassi was charged with terror-related offences, but later pleaded guilty to other charges that did not include any mention of terrorism.

His lawyer said her client was a victim of a "failed entrapment." The FBI did not comment on the case.

ABOUT THE AUTHOR

Laura Lynch

Correspondent

CBC Radio correspondent Laura Lynch has reported from many parts of the world, most recently Europe and the Middle East. She has also worked as the CBC's Washington correspondent and as a parliamentary reporter in Ottawa. She is based in Vancouver.

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