A lifetime of suspicion

Yet another story has emerged in the wake of the recent WikiLeaks disclosures illustrating how Canada shares intelligence on Canadian citizens and residents with the United States. In today’s Globe and Mail, Colin Freeze reports on the story of one man who, by mere association with a terrorism suspect, was reported as a potential terrorist to American authorities, and found himself on foreign watch lists.

According to the G&M, “Ali” was designated as an associate of the “number one” terrorism suspect in Canada based on nothing more than friendship. It does not appear that there was any evidence that Ali himself was engaged in any criminal conduct, or even suspected of planning to engage in criminal conduct. Ali claims that he had no knowledge of his friend’s links to terror. If that is true, then Canada’s only justification for informing the Americans that Ali was a terrorist threat is that he happened to be friends with an individual he didn’t even know was involved in terrorist activities.

Indeed, as the G&M reports:

In recent months, [Ali] and his wife have arranged repeated meetings with CSIS and RCMP officials in hopes of clearing his name. The counterterrorism agents, they say, admit they broadcast suspicions based on association, and even expressed regret they wasted valuable “legwork” on Ali. Still, they insist they had valid reasons for investigating at the time and that there’s not much they can do to clear his name abroad.

The consequences of this — as it turned out, faulty — designation are set out in Colin Freeze’s article, which is worth reading in its entirety. As yet, they don’t rise to the horror of what was faced by Maher Arar, but it shouldn’t come to that for Canadians to be concerned about how citizens and residents are being branded as terrorist threats. As the example of Ali shows, mere association is enough to cast a lifetime of suspicion over you and your family.

An aside. An important thing to note about the publicly-available version of these WikiLeaks cables: many of the names are redacted, and for good reason. (Only select news organizations have full, unredacted copies of the communications.) Many of the individuals on these cables have yet to be publicly charged, prosecuted, or convicted of any crime in Canada or anywhere else. It appears that the only names left unredacted in the publicly-released cables are ones already known to the public — perhaps an effort on WikiLeaks’ part to protect individuals like “Ali” from further prejudice. You can view the public version of these cables via the following links:

http://wikileaks.ch/cable/2009/10/09OTTAWA768.html

http://wikileaks.ch/cable/2010/02/10OTTAWA57.html

http://wikileaks.ch/cable/2010/02/10OTTAWA79.html


The potential negative consequences cannot be overstated

Last week, Jim Bronskill with the Canadian Press reported on the findings in an annual review conducted by the CSIS inspector general, which he obtained via the Access to Information Act. According to that annual review (published in November 2010), CSIS has continued to fail in ensuring the accountability standards set by the Supreme Court of Canada in 2008 in Charkaoui v. Canada (Citizenship and Immigration), (2008) 2 S.C.R (“Charkaoui II”) are met. Under the Court’s ruling in Charkaoui II, the agency is required to, inter alia, “retain all operational notes, electronic intercepts, and other investigative material”. As reported by the Canadian Press:

During her review, CSIS inspector general Eva Plunkett asked the service for original, hard-copy notes cited in agency reports.

“In a number of cases the service was unable to locate hard copies of the operational notes,” Plunkett wrote.

After further examination, CSIS determined that its own reports were wrong and that no notes had been taken to support the information in them, she found.

The spy service also had trouble figuring out the process for referring to original notes — a problem Plunkett considered “significant.”

“One must know where to look to determine whether operational notes exist and where to find them for retrieval and future reference,” says her review.

Disturbingly, Plunkett found problems relating not only to record-keeping but reporting as well, and noted that “the rate of errors continues to grow”. Again, from the Canadian Press:

Once errors — even small ones such as incorrect interview dates — are introduced, it can result in wrong information being shared or forming the basis for operational decisions, her review says.

“The potential negative consequences that errors of this type could have on service investigations, and on individuals affected by the use of service information, cannot be overstated.” 

Plunkett says accuracy is essential if CSIS is to make fair and balanced use of the information it collects.

“When errors of this nature do come to light, they have a highly detrimental effect on the service’s credibility both with Canadians, the judicial system and with other intelligence agencies.”

This report comes as troubling news to the BCCLA. As we discussed in our most recent post, mistakes made by CSIS can have devastating consequences for individual Canadians. Given the highly secretive nature of intelligence gathering and sharing, Canadians need to have confidence that CSIS is doing its job carefully, accurately, and in an accountable fashion. Accuracy in data collection and document retention is crucial in ensuring accountability, as we saw in the Almrei security certificate case. In light of the intensive intelligence-sharing between CSIS and foreign governments, it goes without saying that there is a great need for CSIS to exercise caution and care in carrying out its duties.

CSIS plays an important role in protecting our national security, but its work must be accomplished in a responsible and scrupulously careful manner. The inspector general’s review serves to remind us that concerns regarding the agency’s practices are still active and require attention.


“Once you give the name to the Americans, that’s the end of the game.”

This week, Neil Macdonald at the CBC has been reporting on WikiLeaks cables illustrating how Canada shares intelligence on Canadian citizens and residents with the United States. That CSIS routinely shares intelligence with the U.S. should come as a surprise to no one, of course. That CSIS provides details to the U.S. with names and personal details of Canadians “suspected” of what CSIS refers to as “terrorist-related activity” should perhaps also not be too surprising, either, given what we learned during the Arar Inquiry and other similar proceedings. What is surprising — and alarming — is how little evidence of wrongdoing, or even suspected wrongdoing, is required before a Canadian is named a terrorist threat. As the CBC reports:

The criteria used to turn over the names are secret, as is the process itself.

But a new cache of WikiLeaks documents pertaining to Canada lays bare the practice. It contains not only frank assessments by U.S. officials of Canadian co-operation, but the names of 27 Canadian citizens turned over by their own government as possible threats, along with 14 other names of foreign nationals living in Canada.

In at least some cases, the people in the cables appear to have been named as potential terrorists solely based on their associations with other suspects, rather than any actions or hard evidence.

Of the 41 people named, 21 do not appear to have ever been charged, and some had never come to the attention of the Americans before being named by their own government. Most of the remaining 20 names comprise the group known as the Toronto 18. Some of that group were charged and convicted; others had charges against them stayed.

The cables are a snapshot of periods in 2009 and 2010. Over the years, the number of names handed over is certainly much higher.

The experience of Maher Arar has taught us of the terrible consequences that can flow from cavalier designations of individuals as terrorist threats. Acting on faulty intelligence supplied by the RCMP, the United States arrested, interrogated, and renditioned Arar to Syria, where he was tortured. The Arar Commission ultimately found that the actions of Canadian authorities led to his mistreatment at the hands of the Americans, and recommended that strict limitations be placed on how information about Canadians is shared with foreign governments. This recommendation has yet to be implemented, and indeed, as the Council of Canadians points out, the Canadian government is actually working to increase the flow of personal information from Canada to U.S. government databases.

But as Paul Cavalluzzo, lead counsel for the Arar Commission, told the CBC, “Once you give the name to the Americans, that’s the end of the game.”

And the process for naming, as reported by the CBC, is distressingly faulty:

… as Cavalluzzo points out, the process is secret, with no judicial oversight, and takes place without the knowledge of the individual being “targeted.”

“It certainly doesn’t meet any criteria of due process in the sense that the individual has no representation whatever. Don’t tell me there’s a devil’s advocate. That and a dollar will get you a cup of coffee.”

And nor, does it seem, there be any requirement of evidence that the named individual has actually engaged in criminal conduct or is even suspected of engaging in criminal conduct. As we’ve said before in these pages, the anti-terrorism laws in Canada’s criminal code are breathtakingly broad in scope, and offences run the gamut from “facilitation” and “harbouring” to conspiracy, threats to commit a terrorist act, and to the actual terrorist act itself. Without even a requirement of reasonable suspicion to commit any sort of criminal offence, individuals can be deemed terrorist threats and their names provided to the U.S. government.

As if all this wasn’t troubling enough, the CBC reports today that one of the individuals named in the cables as a potential terrorist is Mubin Shaikh,  a Canadian citizen and CSIS operative whose testimony was critical in securing convictions in the Toronto 18 terrorism trials. As Neil Macdonald points out, Shaikh’s inclusion on this list can only really mean two things.

The first is that the listing process employed by CSIS is seriously flawed, and resulted in the incorrect designation of a Crown agent as a terrorism suspect, exposing him to all of the attendant consequences flowing from being named a potential terrorist.

The second is that Shaikh’s inclusion on the list is not a mistake, and that the Canadian government did legitimately suspect him to be involved in terrorist activities. In which case, the question becomes why this information was not provided to the defendants in the Toronto 18 trials, where Shaikh’s evidence was crucial to the Crown’s case. Indeed, this is the question that counsel for the defendants are asking now, and demanding that the government answer. As reported in the CBC:

“It was his evidence that took them all down,” Alberta lawyer Dennis Edney told CBC Wednesday night. Edney represented Fahim Ahman, a ringleader who eventually pleaded guilty and remains in prison.

“Most of the warrants for wiretaps that were obtained were obtained as a result of conversations he had with the suspects.”

“It takes your breath away,” said Mitchell Chernovsky, a lawyer who represented another of the Toronto 18. “It rings alarm bells all over the place.”

Both Chernovsky and Edney said they would probably make formal demands to the Crown, asking why they were not told of whatever information led CSIS to denounce Shaikh to the Americans. Defence counsel are legally entitled to disclosure of all such information, in order to prepare their cases.

And these cables likely represent just a small sampling of the names provided to the Americans in recent years. The number of names provided is likely to be much higher than the 41 reported in the WikiLeaks cables, so it’s unclear how many more cases like Shaikh’s there are. Given the extreme secrecy of intelligence sharing, it’s also impossible to know whether adequate safeguards are in place to ensure that there are controls over the use of personal information by foreign governments.  What is clear is that some true accountability mechanism must be available to ensure that individuals are not branded as terrorists and their personal information disclosed to foreign governments without any limitations. So far, however, CSIS isn’t responding to CBC’s request for comment on its stories, and it isn’t providing the public with any real answers either, so it remains unclear whether — and how — the rights and security of Canadians are being protected.

ETA: National security expert Wesley Wark provides his views on the implications of Shaikh’s listing in the Ottawa Citizen.


Can we hold you for a while?

Yesterday, BCCLA Counsel Carmen Cheung appeared before the House of Commons Committee on Public Safety and National Security to present the BCCLA’s position on Bill C-17, legislation seeking to resurrect the preventative detention and investigative hearing provisions from the 2001 Anti-terrorism Act.

The 2001 Anti-terrorism Act was made into law in the immediate aftermath of 9/11, and provided for the expiration of its preventative detention and investigative hearing provisions in early 2007. The government is now seeking to put these provisions into law again.

What do these two provisions do?

The preventative detention provision permits law enforcement officials to arrest — without a warrant — any individual, so long as law enforcement has reasonable suspicion that detaining the person is “necessary in order to prevent a terrorist activity.” This individual can be held up to 72 hours, without charge. And as Donald Piragoff, a senior assistant deputy minister from the Department of Justice, informed the Committee, “[t]hat doesn’t mean that the person who’s arrested is the perpetrator. It may be other individuals who are involved.”

Simply put — this piece of legislation would allow for the detention of individuals who are not even suspected of attempting to carry out a terrorist act. To appreciate just how attenuated this justification for detention is, keep in mind that the scope of what constitutes terrorism as currently defined in the Criminal Code is breathtakingly broad. Terrorism offences include everything from “facilitation” and “harbouring” to more traditional inchoate offences of conspiracy, attempts, or threats to commit a terrorist act, and of course, the actual terrorist act itself. This piece of legislation would allow for the warrantless detention of individuals who cannot even be shoehorned into the Criminal Code’s expansive view of terrorism.

The second prong of this bill — investigative hearings — creates an inquisitorial role for judges, permitting them to compel testimony from individuals in situations where no charges have been laid, and no pending controversy before the court at stake. Individuals must answer the judge’s questions, even if doing so would result in self-incrimination. The narrow exception to this mandatory disclosure is with respect to information that is considered privileged or otherwise protected  by law against disclosure. Individuals refusing to testify can be arrested and detained.

Perhaps unsurprisingly, the BCCLA is very concerned about attempts to put these provisions into law again, especially given their dubious efficacy in keeping Canadians safe. From 2001 to 2007, when these provisions were last in force, the preventative detention provision was never invoked, and the investigative hearing provision was used only once during the Air India inquiry (which was arguably not an intended use of that power). And when government witnesses, such as Justice Minister Rob Nicholson, were asked by the Committee whether they knew of any instances from 2007 to the present when law enforcement officials would have required the use of these two provisions in order to protect public safety, no examples were provided. This stands in contrast to the examples how the existing anti-terrorism provisions in the Criminal Code have successfully been used to prosecute past terrorism offences and to prevent future ones from taking place, as the case of the Toronto 18 and other similar prosecutions have shown.

For a rundown of the BCCLA’s arguments against adopting this legislation, please take a look at our submissions, available here: C17 Submissions.


“A machine of shame” (updated)

MS St. Louis Memorial / Globe and Mail

Today, in Halifax, a memorial to the MS St. Louis was unveiled, in memory of the hundreds of Jewish refugees turned away from North American shores on the eve of the Holocaust. The MS St. Louis carried over 930 German Jews, seeking asylum and sanctuary from Nazi persecution. After being turned away from Cuba, the United States, and finally, Canada, the ship was forced to return to Europe, where about 250 of its passengers eventually died in concentration camps.

Today, in Vancouver, Public Safety Minister Vic Toews held a news conference to promote the Government’s Bill C-49, a piece of anti-refugee legislation seeking to penalize asylum seekers who attempt to enter Canada through so-called “irregular arrivals”. (By “irregular arrival”, the Government means “by boat”.) We here at the BCCLA National Security Blog don’t think it’s too much of a stretch to say that this Bill was proposed (in October 2010) as a direct response to the August 2010 arrival of the MV Sun Sea off the coast of British Columbia. The boat carried about 490 Tamil asylum seekers — men, women and children — from Sri Lanka, but to hear Minister Toews describe it, the boat carried 490 terrorists getting ready to set up shop in Canada, and was paving the way for hundreds more.

The juxtaposition of these two events begs obvious comparisons. The Halifax memorial is not simply about the refugees turned away by Canada in 1939. It is a reminder of the terrible consequences of a society’s failure to offer asylum and sanctuary to those fleeing persecution. It is a reminder of why, in the wake of the atrocities of World War II, the contemporary human rights regime was developed, and why the Convention Relating to the Status of Refugees and its Optional Protocol have been adopted by over 140 nations. Refugee protection is often spoken of in terms of “international protection”, and for good reason. Refugees facing persecution in their countries of origin can only be safe from harm if the international community is willing to offer sanctuary and asylum.

Canada is a signatory to both the Convention and Optional Protocol. As such, it’s legally obligated to provide refuge to persons fleeing persecution. Legislation such as Bill C-49 and rhetoric suggesting that Canada needs to be less receptive to refugee claims in order to protect national security runs afoul of our international obligations and betrays Canada’s historical commitment to human rights.

(For further thoughts on Bill C-49, keep a lookout for the BCCLA’s upcoming position paper. We’ll post a link to it here when it becomes available.) Here’s our position paper.


Blacklisted

Welcome back to a new year at the BCCLA National Security Blog.  We returned from our winter break to find a copy of the European Center for Constitutional and Human Rights’ new report on terrorist blacklists at our desk — highly recommended reading (and not just because our blog gets a footnote in it!).

The report, by Gavin Sullivan and Ben Hayes at the ECCHR, with a foreword by Martin Scheinin (the outgoing UN Special Rapporteur on the promotion and protection of human rights while countering terrorism) is terrific — comprehensive, thoughtful, and timely.

In addition to tackling the 1267 Regime, the ECCHR’s report also deals with the European blacklists — products of the Security Council’s 1373 Regime, an anti-terrorism sanctions regime implemented after 9/11 to supplement the 1267 Regime.  The 1373 Regime runs in parallel to the 1267 Regime, targeting anyone accused of committing, participating in, or facilitating terrorism.

Like many other commentators on the subject, the ECCHR finds that terrorist blacklisting regimes such as the 1267 Regime breach fundamental human rights.  As the ECCHR states: “The time has come for radically rethinking the issue and for the international legal framework underpinning the blacklisting regimes to be abolished.”

Here’s a teaser, from Martin Scheinin’s introduction:

Whatever justification there was in 1999 for targeted sanctions against Taliban leaders as the de facto regime in Afghanistan, the maintenance of a permanent global terrorist list now goes beyond the powers of the Security Council.  While international terrorism remains an atrocious crime … it does not justify the exercise by the Security Council of supranational sanctioning powers over individuals and entities.


Back from hiatus! (briefly)

So one of our readers pointed out recently that the National Security Blog’s long overdue for an update, and he’s absolutely right, especially given the things we’ve been up to recently.

  • In November, hearings resumed at the Military Police Complaints Commission on the transfer of Afghan detainees to risk of torture.  The Commission heard testimony from all of the subjects of the complaint — the senior members of the Military Police who would have had responsibility to ensure adequate investigations into whether the Canadian Forces were properly transferring detainees to Afghan authorities.  Cross-examination of these witnesses was conducted by our pro bono counsel Paul Champ, BCCLA Litigation Director Grace Pastine, and BCCLA Counsel Carmen Cheung.  The evidence we heard was distressing:  again and again, senior members of the Canadian Forces Military Police informed the Commission that they never initiated meaningful investigations into the transfers, despite the fact that transfers had to be halted following one of many reports of detainee abuse by the Afghans.  One witness even told the Commission that he didn’t know which country the CF was transferring to.  We’ll be back in Ottawa and before the Commission in early February, as it hears final submissions from all of the parties.
  • While Grace and Carmen were at the MPCC, BCCLA Policy Director Micheal Vonn was down the street, testifying before the Standing Committee on Transport at the House of Commons on Bill C-42 and the US Secure Flight Program, and our concerns about the imposition of a foreign blacklist on Canadian soil.

Some things we’re keeping our eye on too, in the coming months:

  • The Federal Court’s three decisions concerning Mohamed Harkat, one of the remaining individuals subject to the federal government’s deeply troubling security certificates regime.  In its rulings, the Federal Court approved the reasonableness of the security certificate against Harkat, which permits the government to maintain Harkat’s virtual house arrest.  It also affirmed the constitutionality of the new security certificate regime, which was modified following the Supreme Court of Canada’s ruling in an earlier case involving Adil Charkaoui, whose own security certificate was eventually struck down.
  • The Standing Committee on Public Safety and National Security started hearings this week on Bill C-17, which seeks to reintroduce into the Criminal Code so-called anti-terrorism legislation permitting investigative hearings and preventative detention without charge.  The BCCLA is on the Committee’s list of witnesses; hearings on the measure are expected to resume following Parliament’s holiday recess.

And speaking of holiday recesses, the National Security Blog will be back in the new year with our updates and commentary, so we’ll see you then.