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Panel 1: Security Intelligence Roundtable
Speakers: Paul Kennedy, Paul Champ
Moderator: Francois Crepeau, McGill University
Paul Kennedy:
- CSIS was created in 1984 with two oversight bodies.
- RCMP retained principal primary police investigative body for criminal activity arising from threats to security of Canada – no independent external review. Police are independent under common law and detain a lot of discretion. No external review for RCMP was put into place until 1988 (Commission for Public Complaints against RCMP, which has much less powers than SIRC).
- National security files handled by RCMP rarely caught attention of the Commission. Where it did, the failure of its mandate to review become apparent because they don’t have enough access to information.
- 2006 directive- Information can be withheld from Commission once ground is recognized but the RCMP must say it is withholding it (but after 18 yrs of its functioning!).The problem with the 2006 directive is that RCMP gets to choose what “relevant” information is and therefore what information it must say it is withholding and what it does not.
- The weakness of the legislative mandate was less problematic in 1988 than it is today. The last 5 years have seen a shift in social landscape that has allowed RCMP to engage with national security much more than it used to.
- What kind of changes? The legal protection of s.7 applied to anyone present (Singh v. Minister of Employment) – this lead to creation of Immigration and Refugee Board
Technological changes: Internet facilitated ability to plan, plot, organize.
a) CSIS: More challenging domestic environment for CSIS. It was hard for CSIS to make a case for security certificates.
b) RCMP: Police world related to national security has not been static. Before, terrorism was straight-forward. Proving plot to assassinate was easy. The emergence of organizations with domestic presence and global reach put pressures on RCMP to enlarge its scope of action (large scale public mayhem).
Post 911: Recognitions that like any other criminal enterprise, terrorism had to be attacked on all its constituent elements (leadership, facilitators, financial base). Change in terrorist targets (from identifiable targets to mass murder)
International scope of terrorism (due to sympathetic diaspora and relations with groups) called for relationships in international community beyond policing community.
Legislative responses to change
DoJ with reference to Anti-terrorism Act
Enables to take steps to detect money-laundering
Deny terrorist financing
Recognizes role of prevention and deterrence
Underlying activities.
Problems with intelligence gathering: Reliability of the information and non-disclosure caveats.
Organised Crime Act – 2002- Allowed Police to do undercover activity
“acts or ommissions” that may end in loss or harm of property
RCMP can burn the barn lawfully now (in irony of the situation that lead to Macdonald Commission Report).
RCMP uses same tactics as CSIS with emphasis on deterrence and prevention of terrorism but without any of the oversight!
MAIN POINT: WE HAVE TO ADDRESS THIS OVERSIGHT ISSUE!
Paul Champ:
Charter rights – new horizons in s.15 (right to equal benefit and burden of the law)
Intelligence gathering
Intelligence sharing
Extra-territorial issues
What are the controls we should have in CSIS?
Legislative powers given to CSIS?
1) s.12 – gather information in general with respect to threats to security
2) s.13 – security assessments (immigrants or government employees)
Champ sets out the distinction between intelligence and law enforcement
Intelligence investigations are based on beliefs and associations and can go on indefinitely
Law enforcements investigations are based on criminal conduct; limited in time with view of prosecution.
But remember that beliefs and associations are protected by s.2(b) Charter. People are attracting scrutiny from CSIS because of beliefs. It used to be “subversive organisations” like universities, trade unions, and opposition parties. Our views of subversive activities can change over time.
Intelligence gathering is inherently secret and covert. We don’t know what they are doing, what standards they are applying, despite oversight bodies which have horrendously failed.
Use of torture and intelligence sharing
Getting information from foreign agencies: Problem because it can a) flags a person as suspicious to the agency by asking for information or b)condone the methods of the foreign intelligence agencies.
Almatei – used information derived from torture to issue a search
Muhammad Harkat – big piece of evidence derived from interrogation from Abu Zubaidah in Guantanamo (subjected to 80 waterboarding sessions).
Sleep deprivation – Khadr
AboudSoudian Abderazik – traveled to Sudan – CSIS asked the Sudanese to detain him
Extra-territoriality:
Does Charter apply on activities of CSIS when it operates abroad?
Federal government has taken the view it hasn’t
Abderazik, Almatei, Khadr – all interrogated outside
Panel 2: Crafting a Just National Security Policy
Speakers: Craig Forcese, Pearl Eliadis
Moderator: Frederic Megret, McGill University
F. Megret:
National Security is often concerned with efficacy, rather than justness. This has been a lesson over the past few years. Post-9/11, national security has been developed in an ad hoc fashion. Human rights are an afterthought.
Pearl Eliadis:
Canada’s behavior matters, because it sets standards. The key instruments concerned with counter-terrorism and civil liberties in Canada are the Charter and the Anti-Terrorism Act. In recent years, there have been Charter violations—the authorities have failed in their duty to protect us.
There are a number of international law provisions that intersect with the Charter—most significantly, the International Covenant for Civil and Political Rights. Importantly, the covenant calls attention to certain non-derogable rights, for which there is no flexibility. Any derogation needs to be justified by strict standards. The Covenant also focuses on positive obligations.
It seems that anti-terror law in Canada should abide by the premises set out in the International Covenant for Civil and Political Rights. Acts such as preventative detention without charges—taken as a tell-tale sign of torture—must be in accordance with these fundamental freedoms.
Craig Forcese:
Sometimes we lose sight of a sense of urgency in conversations about counter-terrorism. A recent speech from the throne mentioned that government aimed to “modernize judicial tools to help it fight terrorism”. Consider as well the damage that would follow from an attack or detonation of a bomb in downtown Montreal. These actions require rapid responses.
We must begin from a series of assumptions. First, we live in an era of mass-casualty terrorism, where economic and political consequences are severe. Second, the state’s job is to protect citizens. Third, the state needs tools to do this.
There are three principle dilemmas facing security service agents: they must move expeditiously and pre-emptively, they must act covertly, and they act “in a fog of war”, with insufficient information.
The legal tools currently being used are security certificates, the criminal law, surveillance, and preventative detention.
1. Security Certificates: Good in that they require a balance of probabilities [low burden], there is no immediate threat required. They are based on secret evidence. Bad in that the low burden leaves room for bias tunnel vision and misunderstanding. Covert action is unfair here because the accused is unaware of the case against him.
2. Criminal Law: Good in that RCMP can move relatively fast. The burden, however, is difficult. There is little room for secret intelligence because of disclosure requirements here. Criminal law can only work, then, where a. foreign state consents to release of secret evidence; where you can provide a security-neutralized summary to be disclosed to the accused [Khawaja]
3. Surveillance: Good in that security serve can do what it wants. Bad in that it does not catch everything- observing someone bad does not equate with stopping them from causing harm. This system is not water-tight.
4. Preventative Detention: Oversight and review processes must be repaired for this to work.
Panel 3: Canada-United States National Security Cooperation
Speakers: Maher Arar, Edna Keeble, Simon Potter
Moderator: Ms. Maureen Duffy, McGill University
Mr. Maher Arar
Founder, Prism Magazine
Summary: Mr. Arar criticized the United States’ response to the events of September 11, 2001 as disproportionate. To Mr. Arar, post-9/11 national security legislation did not heighten the safety of Western nations, which are increasingly vulnerable to the threat of terrorism. He argued that terrorists can adequately be charged and prosecuted under the Criminal Code. Mr. Arar was cautiously optimistic about the Government’s decision to revamp the Commission for Public Complaints against the RCMP. He called upon Canada to resist American pressured to adopt excessive national security policies and suggested that Canada might be best served by securing new relationships with emerging powers in order to avoid excessive reliance on its bilateral relationship with the United States.
Key points:
- The US’ reaction to September 11, 2001 was disproportionate and led the US to compromise the values upon which it was founded. The wars in Iraq and Afghanistan have increased the threat of terrorism. In fighting terrorism, the United States also formed allegiances with some of the Middle East’s most oppressive governments.
- Our national security laws have been tailored to satisfy US interests, such as the use of security certificates
- The Criminal Code is sufficient to prosecute terrorism. Indeed, the worst terrorist attack in Canadian history was the Air India bombing and at the time we did not deem it necessary to draft anti-terrorism legislation.
- The Afghan detainee issue is connected to the issue of security certificates – in both cases, Canadian policy is driven by a desire to please the US.
- The US must treat us as an equal partner, if they don’t do that we should gradually secure greater and long-lasting partnerships with the European Union and other emerging economies like China, India and Brazil
- The decision to launch the O’Connor and Iacobucci inquiries should be commended, but more than 3 years since the O’Connor Inquiry we haven’t seen the Government commit to the establishment of a credible RCMP oversight agency. The Prime Minister’s statement in the Throne Speech that such an agency will soon be created was, however, promising.
- Authorities excuse anti-terrorism legislation b/c it is not often used but that is not a meaningful justification.
- We have enough laws to prosecute terrorism under the Criminal Code without recourse to extra-judicial mechanisms. Our extra-judicial strategy has not helped fight terrorism, it has alienated communities and created fear. In the meantime, terrorism is on the rise.
Prof. Edna Keeble
Chair of the Department of Political Science, Saint Mary’s University
Summary: Barak Obama’s assent to the Presidency has not hailed dramatic change in US counter-terrorism policy since the Office of the President remains constrained by US political culture and institutional constraints. We’ve seen a similar continuity in Canadian policy over the years. Canada’s Government must constantly remind the US Administration that it is doing its share to fight terrorism while demonstrating to the United Stares that security concerns must not be allowed to undermine the prosperity of cross-border trade.
Key points:
- In the Obama era, and given the forthcoming release of a new Canadian security statement, what “tone from the top” have we seen and should we expect from the US and Canadian governments in the area of national security?
- Enduring issues in counter-terrorism include racial profiling, which continues to be a problematic phenomenon within Canadian security institutions.
- An aversion to the judicialization of counter-terrorism is also major challenge for Canada. If Canada extends the court’s reach to the domain of counter-terrorism, it risks losing access to the most well-funded and resourced intelligence from the US.
- Canada must continue to demonstrate that it is doing its part in the fight against terrorism. This US pressure has not subsided since the assent of the Obama administration
- Despite his initial commitment to resolve some of the civil liberty compromises caused by the war on terrorism, Obama is limited in terms of his ability to reform US policy by institutional constraints and US political culture.
- US political culture is a limitation on the President’s ability to bring in more moderate counter-terrorism policy since Americans are deeply affected by the scar of war
- Institutional constraints – checks and balances constrain his power to act
- Obama’s Nobel Prize acceptance speech indicated that the US’ foreign policy approach would not change sigfnificantly under his Administration
- The Executive Office of the President does however allow the President to set a tone from the top, we have seen – in this regard – some progress, for example, in Obama’s appointment of a special envoy to the OIC, as well as his landmark Cairo speech. His cautious response to the Fort Hood killing was also promising.
- Canada nevertheless needs to continue convincing the US that we are doing our share.
- Canadian governments have always seen security issues in broader context – i.e. smart border agreement – we link security to our prosperity. We are working closely with Congress to show them the importance of our trade relationship
- We therefore see continuity in Canadian policy as well
Me Simon Potter
McCarthey Tetrault LLP
Summary: Canada’s approach to counter-terrorism must be guided by principles and clarity of thought. Although the threat of terrorism is real and pressing, Canada must not compromise the liberty of its citizens in confronting the threat. Canada’s current policies are often ad-hoc, inconsistent and unpredictable.
Key points:
- We need to ask what we can do to make things better rather than dwelling on the past
- Our national security policy needs to be principle-driven and needs to be characterized by clarity of thought
- The danger of terrorism is real and present and should not be minimized. 300 people have been convicted in US Federal Courts since 9/11. There have been 9 interrupted plots in New York City alone since 9/11
- But if security is the be all and end all, we will see major trampling of our liberties. Examples in Canada include the use of security certificates, preventive arrests, in-camera criminal proceedings without the accused in attendance, money laundering legislation, which forces people to rat on each other and proposed legislation that would require lawyers to rat on clients
- Theses changes were unimaginable 20 years ago
- The point is that – necessary or not –these policies are dangerous and we need to be alert to them
- We have a mentality of the “knee jerking the wrong way,” where we are allowed to be excessive in the interest of security
- This is seen in the fuzziness of our approach to national security laws, where people speak in successions of contradictions. On Gauntanamo Bay, for example, the US has had an ad hoc approach, an absence of principle where no one knows what to expect, some prisoners will be tried in the US, some in military tribunals…
- Similarly, the Canadian Government’s treatment of Omar Khadr reflects a knee-jerk ad hoc approach to national security. The government justifies the mistreatment of Khadr on the grounds that he is accused of “serious crimes” but the seriousness of a crime should never compromise a party’s procedural rights, someone who is accused of murder doesn’t have fewer rights before being convicted than someone accused of theft. In both cases, the individual should have access to a fair trial.
- Our instincts are wrong on these issues. The Government’s approach to national security cases is part of a broader culture of ad hocery in the administration of justice. A poignant example is the Government’s case-by-case approach to seeking the commutation of the death penalty for Canadians sentenced abroad
- This knee-jerk ad hoc approach to justice is compounded by legislation, which takes power away from court in sentencing, as well as by an increasing number of laws, which impose absolute liability for criminal offences
- We need an instinct, which recognizes that the protection of liberties is as important as security
- We need to know that the Government will stand on guard for us. The state should be there to protect our liberties, we need to know that Government power will be used for the citizen, not against the citizen. The Government must welcome judicial scrutiny, not argue immunity from it, so that we are not simply told by the state what balance is good for us.
- The Government must stand up for liberties and the rule of law, even when we are under attack.
