Khadr decision: what it means
Posted: January 29, 2010 Filed under: GTMO | Tags: afghanistan, canada, GTMO, guantanamo, khadr, scc 2 Comments »Today the Supreme Court of Canada issued its decision in Prime Minister of Canada, et al. v. Omar Ahmed Khadr. The practical outcome is that, for now, the government does not have to ask for the return of Guantanamo detainee and alleged child soldier Omar Khadr. The decision turned on a procedural point about the authority of the court in governmental affairs: the court could not order the government to ask for Mr. Khadr’s return as such an order would interfere with foreign affairs, the exclusive territory of the executive branch of government.
The government may have won that procedural battle, but it appears to be losing the substantive war. The Government of Canada lost on several critical points, and may face further court direction if it does not take appropriate actions to remedy Canada’s violation of Mr. Khadr’s Charter rights. The Supreme Court found that Canadian officials violated Mr. Khadr’s rights and that the remedy of asking for Mr. Khadr’s repatriation is sufficiently connected to that violation.
Image courtesy of the CBC
Here’s a breakdown of what happened:
The Charter applies in this case
Generally, Canadians abroad are governed by the laws of the country hosting them, not by Canadian law. However, there are exceptions to this general rule. The Court sets these out in its judgment:
[14] As a general rule, Canadians abroad are bound by the law of the country in which they find themselves and cannot avail themselves of their rights under the Charter. International customary law and the principle of comity of nations generally prevent the Charter from applying to the actions of Canadian officials operating outside of Canada: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 48, per LeBel J., citing United States of America v. Dynar, [1997] 2 S.C.R. 461, at para. 123. The jurisprudence leaves the door open to an exception in the case of Canadian participation in activities of a foreign state or its agents that are contrary to Canada’s international obligations or fundamental human rights norms: Hape, at para. 52, per LeBel J.; Khadr 2008, at para. 18.
In its 2008 decision on Mr. Khadr, the Supreme Court stated that “the principles of international law and comity that might otherwise preclude application of the Charter to Canadian officials acting abroad do not apply to the assistance they gave to U.S. authorities at Guantanamo Bay.” The Court reiterated this reasoning in its latest decision:
[18] Though the process to which Mr. Khadr is subject has changed, his claim is based upon the same underlying series of events at Guantanamo Bay (the interviews and evidence-sharing of 2003 and 2004) that we considered in Khadr 2008. We are satisfied that the rationale in Khadr 2008 for applying the Charter to the actions of Canadian officials at Guantanamo Bay governs this case as well.
Canada violated Mr. Khadr’s Charter rights
Omar Khadr being interrogated at GTMO by two Canadian officials while a CIA agent supervises. This photo was released by Khadr's lawyers. Photo: Wikimedia.
To establish that Canada had violated Mr. Khadr’s section 7 rights to liberty and security of the person, Mr. Khadr had to prove two things:
- That Canada’s actions “contributed to his past and continuing deprivation of liberty” (para. 19); and
- That the “deprivation is not in accordance with the principles of fundamental justice” (para. 22).
In addressing these two questions, the Court looked to the role Canada played in Mr. Khadr’s detention. It addressed the repeated interrogations by CSIS officers in February and September 2003, the use of the information collected in criminal proceedings against Mr. Khadr, and the fact that Canada knew that Mr. Khadr had been a part of the “frequent flyer program” (a systematic sleep deprivation technique designed to make detainees “more compliant and break down their resistance to interrogation” (para. 24, citing Jawad)) at the time of his CSIS interrogations. The Court also considered Mr. Khadr’s age and the fact that he was not provided access to counsel at the time of the CSIS interrogations.
The Court found that both conditions were met, and that Canada had violated the section 7 rights of Mr. Khadr:
[21] An applicant for a Charter remedy must prove a Charter violation on a balance of probabilities (R. v. Collins, [1987] 1 S.C.R. 265, at p. 277). It is reasonable to infer from the uncontradicted evidence before us that the statements taken by Canadian officials are contributing to the continued detention of Mr. Khadr, thereby impacting his liberty and security interests. In the absence of any evidence to the contrary (or disclaimer rebutting this inference), we conclude on the record before us that Canada’s active participation in what was at the time an illegal regime has contributed and continues to contribute to Mr. Khadr’s current detention, which is the subject of his current claim. The causal connection demanded by Suresh between Canadian conduct and the deprivation of liberty and security of person is established.
…
[25] This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.
Asking for Mr. Khadr’s return would be “appropriate and just”
When crafting Charter remedies, the judiciary has great discretion to come up with a remedy that addresses the unique circumstances of the Charter violation being addressed. While the remedy of an order to seek the return of an individual being held abroad is unusual, usual-ness is not the standard by which Charter remedies are judged. Remedies must be “appropriate and just”, responding to the violation in a way that “meaningfully vindicates the rights and freedoms of the claimants” (Doucet-Boudreau v. Nova Scotia at para. 55).
The Court considered whether there was a “sufficient connection ” between the breach of Mr. Khadr’s Charter rights and the remedy sought. The remedy sought is unusual, but so are the circumstances of Mr. Khadr’s ongoing detention. The Supreme Court found that the ongoing consequences of the Charter breach means that a request to have Mr. Khadr turned over to Canadian custody would potentially vindicate those rights:
In our view, the sufficiency of this connection is established by the continuing effect of these breaches into the present. Mr. Khadr’s Charter rights were breached when Canadian officials contributed to his detention by virtue of their interrogations at Guantanamo Bay knowing Mr. Khadr was a youth, did not have access to legal counsel or habeas corpus at that time and, at the time of the interview in March 2004, had been subjected to improper treatment by the U.S. authorities. As the information obtained by Canadian officials during the course of their interrogations may be used in the U.S. proceedings against Mr. Khadr, the effect of the breaches cannot be said to have been spent. It continues to this day. As discussed earlier, the material that Canadian officials gathered and turned over to the U.S. military authorities may form part of the case upon which he is currently being held. The evidence before us suggests that the material produced was relevant and useful. There has been no suggestion that it does not form part of the case against Mr. Khadr or that it will not be put forward at his ultimate trial. We therefore find that the breach of Mr. Khadr’s s. 7 Charter rights remains ongoing and that the remedy sought could potentially vindicate those rights. (para. 30)
Division of authority
Finally, the Court had to consider whether the order from the Federal Court stepped inappropriately into the territory of the executive branch of government, which has the prerogative in matters of foreign affairs. While courts may exercise oversight, the Supreme Court decided that in this case, the court must defer to the judgment of the executive branch:
[39] Our first concern is that the remedy ordered below gives too little weight to the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada’s broader national interests. For the following reasons, we conclude that the appropriate remedy is to declare that, on the record before the Court, Canada infringed Mr. Khadr’s s. 7 rights, and to leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter.
The Court stated it would exercise its oversight role with caution, giving the changing circumstances around Mr. Khadr’s detention and eventual trial and the court’s “incomplete picture of the range of considerations currently faced by the government in assessing Mr. Khadr’s request” (para. 44). However, the Court did not close the door completely:
The government must have flexibility in deciding how its duties under the power are to be discharged: see, e.g., Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 101-2. But it is for the courts to determine the legal and constitutional limits within which such decisions are to be taken. It follows that in the case of refusal by a government to abide by constitutional constraints, courts are empowered to make orders ensuring that the government’s foreign affairs prerogative is exercised in accordance with the constitution: United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283. (para. 37).
Image courtesy of the CBC
Conclusion
While it overturned the Federal Court’s order for the government to seek Mr. Khadr’s immediate return, the Supreme Court has not let the government off the hook for Canada’s violations of Mr. Khadr’s Charter rights. The Court has issued “a declaration advising the government of its opinion on the records before it which, in turn, will provide the legal framework for the executive to exercise its functions and to consider what actions to take in respect of Mr. Khadr, in conformity with the Charter” (para. 47). The government must do something to vindicate Mr. Khadr’s Charter rights, and the court has set out requesting his return as an option that would possibly do just that.
Seeing through airport scanner rhetoric
Posted: January 28, 2010 Filed under: Security | Tags: airports, body scanners, bodyscanners, canada, privacy, Security, terrorism 2 Comments »The BCCLA unpacks the Canadian response to the Underwear Bomber, pointing out critical flaws in the body scanning machines that will be appearing in Canadian airports in the near future. This article will break down the BCCLA’s complaints with the scanners, focusing on privacy concerns, weaknesses of the technology, and issues with the lack of public debate before the devices were purchased.
Unless you’ve spent the past month in a media vacuum, you know by now that on December 25, 2009, Umar Farouk Abdulmutallab allegedly attempted to blow up an airplane with explosive underpants.
The “Underwear Bomber” has since pleaded not guilty to charges of attempted murder and possession of weapons of mass destruction. For the next few weeks, what Bruce Schneier calls airport security theatre—attempts to do something (anything!) for the sake of being seen to do something—became a theatre of the absurd.
In Canada, carry-ons were banned completely from U.S.-bound flights. Controversies erupted over what exactly could be brought onto a plane and who got to decide. Books were thought to be banned and then promptly unbanned. Travellers were told that they can’t be told what not to bring, because telling them would threaten security. Final decisions on many items not included on “the list” of approved items would be left to the discretion of airport screeners, and might vary based on criteria like the length of the flight.
While the carry-on restrictions and other new rules are both frustrating to travellers and illustrative of the knee-jerk reactions to obscure threats we’ve seen over the past few years (liquid bombers, shoe bombers), they pose few serious concerns for the BCCLA. The real threat to our liberties comes from what is set to be the real legacy of the Underwear Bomber—virtual strip search machines.
The BCCLA has several critical concerns with the scanners:
1. The privacy implications
A. Genital blurring bait-and-switch
When CATSA recommended the scanners for use in Canada in October, 2009 and placed its initial order for 7 of the machines, they were ordered without the ‘genital blurring software’ that had been in place during the Kelowna trial.
The images that have been plastered all over newspapers around the world are an example of what can seen with the genital blurring software enabled. That’s the picture below, center. To the left, you see the cartoony image that will be available to screeners interacting with passengers. To the right, you see what the scanners will see with genital blurring software disabled. These images are far more detailed and far more revealing.
B. Image retention and transmission
Canadians have been assured that the scanners being installed in Canadian airports will delete images after a passenger has passed through security screening, and will not have the capacity to save or send the images they capture. Putting aside the reality that screeners could just take photos of the image on their screen with their own cameras or even their cellphones, claims that the image cannot be saved or sent appear to be false.
Yesterday, the Electronic Privacy Information Center (EPIC) posted documents it has received as part of a lawsuit involving body scanners. The documents came from the Transportation Security Authority (TSA) in the United States, and detail administrative overrides on the scanning machines that would allow images of passengers to be saved and sent over the internet.
C. Secondary today, primary tomorrow?
One of the lessons of the war on terror has been that technology that is implemented for one purpose will soon be used for another. While Canadians are being promised that the machines will be used only for secondary screening and that concerned individuals can opt for a physical patdown search, how long will it be before we are told that it is necessary for these machines to be used in primary screening and without an option for a patdown?
The push for virtual strip search as primary screening has already begun in the U.S. and in Britain.
In the United States, body scanners are still mostly used as secondary screening, but they are a primary screening device in at least six airports, though patdown searches are also an option.
In Britain, travellers are being told that a random selection of passengers will be sent through the scanners, and they won’t have the option for a patdown instead:
Airline passengers will have no right to refuse to go through a full-body search scanner when the devices are introduced at Heathrow airport next week, ministers have confirmed.
The option of having a full-body pat-down search instead, offered to passengers at US airports, will not be available despite warnings from the government’s Equality and Human Rights Commission that the scanners, which reveal naked bodies, breach privacy rules under the Human Rights Act.
D. The patdown option
While some people say that they would prefer a body scan to a patdown search, the assured pressure to make scans more prevalent will disproportionately impact people whose religious beliefs include maintaining bodily modesty and people who have a profound dignity interest in preventing various items from being viewed, including those wearing incontinence garments, sanitary napkins, colostomy equipment, and so on.
E. Won’t someone think of the children?
In one of the more bizarre twists of the body scanner saga, concerns have been raised in the United Kingdom that scanned images of people under the age of 18 may run afoul of Britain’s child pornography laws:
A 12-month trial at Manchester airport of scanners which reveal naked images of passengers including their genitalia and breast enlargements, only went ahead last month after under-18s were exempted.
The decision followed a warning from Terri Dowty, of Action for Rights of Children, that the scanners could breach the Protection of Children Act 1978, under which it is illegal to create an indecent image or a “pseudo-image” of a child.
In Canada, minors have also been exempted, but this raises entirely new questions. How effective can the machines be if people under the age of 18 aren’t being screened?
2. The technology
A. Effectiveness
The BCCLA wholeheartedly agrees that security measures are necessary to make sure air travel is safe. However, it appears that the scanners being rushed into operation in Canada would not have detected the Underwear Bomber’s bomb, and in fact have difficulty detecting much that would not be detected by a metal detector. To quote security expert Bruce Schneier, body scanners are “not just a dumb idea, they don’t actually work.”
The failings of the body scanning technologies have been pointed out many times, including on this German TV clip showing a man bringing bomb making supplies through a scanner:
All varieties of body scanners available are good at picking up dense items, like metal or thick plastic, but looser items—powder, gels, or thin layers of plastic—are as invisible as your clothing. A 2007 report from the Committee on Assessment of Security Technologies for Transportation of the U.S. National Research Council found that “there is insufficient technology available to develop a system capable of identifying concealed explosives”, and recommended continued research before the systems are implemented.
Similar results have come out of the UK:
Yesterday, the London Independent reported on “authoritative claims that officials at the [UK] Department for Transport and the Home Office have already tested the scanners and were not persuaded that they would work comprehensively against terrorist threats to aviation.” A British defense-research firm reportedly found the machines unreliable in detecting “low-density” materials like plastics, chemicals, and liquids—precisely what the underwear bomber had stuffed in his briefs.
Even if the systems could detect explosives secreted on the surface of the body, they are not foolproof. They could not detect anything between folds of flesh or inside body cavities. Are cavity scans just around the corner?
B. Efficiency
The Kelowna trial also showed that the scanners would further slow the lines at airport security, processing people at only a fraction of the speed. Efficiency cannot be the deciding factor in what security measures are appropriate for airports, but when combined with the ineffectiveness, privacy concerns, and cost of the full body scanners purchased by CATSA, the additional time spent screening passengers is not worth it.
C. Health concerns
There are many health questions being raised around full body imaging systems, and the only definitive answer so far seems to be “we don’t know yet.” In all likelihood, the machines are safe. The American College of Radiation and American Roentgen Ray Society have both said they are not concerned by the technology. All the same, long term studies on the safety of millimeter wave technology have not been conducted, and the health impact on sensitive individuals—pregnant women, for instance—is still unclear.
3. The process
A. Lack of debate
The BCCLA has been monitoring the Canadian Air Transport Security Authority’s (CATSA) efforts to get the machines approved for and installed in Canadian airports for some time now. From June 2008 through January 2009, the machines were put through a trial at Kelowna International Airport in BC. The trial was cursory at best, designed to gauge passenger acceptance and not test the efficacy of the machines. Based on those results, the machines were recommended by CATSA in September 2009, and seven were ordered before they had even been approved by the Privacy Commissioner of Canada. Finally, the machines were given approval by Canada’s Deputy Privacy Commissioner, Chantal Bernier, in October 2009.
On January 5th, Transport Minister John Baird announced that Canada will be installing 44 “body scanners”, virtual strip search machines that see through travellers’ clothing to reveal items concealed beneath. The first 12 of the scanners arrived in Canadian airports the week after.
On January 13th, Minister Baird claimed that the machines had been ordered months ago, and stressed the need to act immediately. “We’re taking the leadership in this. We have to move quickly and expeditiously.”
It’s very hard for politicians to say no to heightened security. They have to be seen to do something to respond to an attack, even if, as is the case with body scanners, that response wouldn’t have prevented the attack being responded to.
This type of security logic is badly broken. It amounts to an arms race, where security is geared toward the last attack that was tried, completely ignoring what might be tried in the future. Baird himself highlighted this issue, saying that, “We’ve always got to be raising our game, because the terrorists are always going to be changing theirs.” We’ve been “raising our game” ever since 2001; the benefits for safety are dubious and the cost to liberties has been high.
Ironically, the best security fixes since 2001 are incredibly non-intrusive, adapt to nearly every possible in-air terror plot, and costs the government next to nothing. Cockpit doors have been secured, and passengers now know they have to fight back. That knowledge—not shoe removal or naked scans—is what kept the shoe and underpants plots from being successful.
We need to sit back and think about that simple fix. We need to think about the real risks of terrorism and debate what measures are sensible to take to prevent it. The worst time to make decisions like that is in the emotional moments after an attack, yet we continue to do just that.
B. The body scan lobby
Michael Chertoff, founder of the Chertoff Group of security consultants and former head of the Department of Homeland Security, has been making the rounds on cable news promoting the use of body scanners in the wake of the attack. It was recently revealed in the Washington Post that Rapiscan, one of the manufacturers of body scanners, is a client of Chertoff’s company.
The conflict of interest apparent in the U.S. body scan lobby has made a difference in Canada, as well. The TSA’s assessment of body scanners weighed heavily in Minister Baird’s decision:
“We’re confident that these are the best machines available on the market and they are the only ones recognized by the (U.S.) Transportation Security Administration, so that was an important part of our decision.”
C. A better way
Where is the way forward on body scanners? There are several options.
The best option would be to hold off until the technology has improved, but that ship has sailed. If the scanners are deemed a necessity, there are options that are no more expensive, no less effective, and better at protecting privacy than the L-3 machines purchased by CATSA.
Some systems have a “privacy mode” that only show cartoon-like images of the body, highlighting areas where suspicious items are detected in red. There are also millimeter wave scanners that operate on exactly the same principles as the L-3 scanners, but do not generate images at all. Much like the metal detectors currently used in airports, these machines will sound an alarm if suspicious items are detected, and the individual who triggers the alarm can be searched physically.
Read this: “The Guantanamo ‘Suicides’”
Posted: January 20, 2010 Filed under: GTMO, Torture | Tags: GTMO, guantanamo, khadr, Torture, united states Leave a comment »
Photo: takomabibelot
In an upcoming article in the March issue of Harper’s, Scott Horton reports on a possible (and ongoing) cover-up of the circumstances surrounding the death of three Guantanamo inmates in 2006. According to Horton:
… new evidence now emerging may entangle Obama’s young administration with crimes that occurred during the Bush presidency, evidence that suggests the current administration failed to investigate seriously — and may even have continued — a cover-up of the possible homicides of three prisoners at Guantanamo in 2006.
Horton’s article — which relies in large part on interviews with camp guards present the night of the deaths and reports from Seton Hall University’s Center for Policy and Research (which, by the way, has done some impressive work reviewing and analyzing the government’s own documents to piece together the abuses and misconduct that has taken place in Guantanamo) — is a chilling account of death (likely) by torture, the government’s refusal to engage in a meaningful investigation of the deaths, and the possible existence of a black-ops site at Guantanamo itself.
Horton’s account of the Obama DOJ’s almost cursory dismissal of the evidence presented by the guards present on the night of the deaths is, of course, deeply troubling, and further exemplifies the serious lack of accountability and disregard of fundamental principles of the rule of law which continue to plague the entire Guantanamo regime. Meanwhile, the federal government of Canada refuses to abide by a Federal Court order to seek the repatriation of Omar Khadr from Guantanamo, thereby abandoning one of its own citizens to — in the words of Horton — “an extra-constitutional prison camp.”
“The Guantanamo ‘Suicides’: A Camp Delta sergeant blows the whistle” (Harper’s)
ETA Dahlia Lithwick over at Slate has some very interesting commentary on why Horton’s article isn’t getting coverage in the American press (and a fairly thorough summary of the contents of Horton’s article, though it really deserves a full read).
“Too Terrible To Be True? Why aren’t we talking about the new accusations of murder at Gitmo?” (Slate)
