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


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.


Challenging the UN Security Council

Today, the BCCLA, in conjunction with the International Civil Liberties Monitoring Group (ICLMG) and Abousfian Abdelrazik, will launch a lawsuit in Federal Court challenging the U.N. Security Council’s anti-terrorism sanctions regime, also known as the “1267 Regime”.  The 1267 Regime is designed to limit the rights and freedoms of individuals alleged to have ties with terrorism, and the U.N.’s 1267 Committee maintains a list of such individuals, known as the “1267 List”.

UN Security Council in session / photo: Downing Street

Individuals placed on the 1267 List are subject to, among other things, an asset freeze and an international travel ban.  They must petition the U.N. to access their own funds to pay for food and shelter.  Individuals are placed on this list without notice, and until recently, could not be told why they were even placed on the list to begin with.  Once placed on the 1267 List, individuals have no recourse to judicial – or even independent – review to challenge the listing.  Challenges to a listing are reviewed by an ombudsperson appointed by the U.N. – the very body responsible for compiling the 1267 List in the first place.

The 1267 Regime has drawn criticism from Canada’s Federal Court, the United Nations’ own experts, and the European Court of Justice.  Earlier this year, the House of Lords struck down the domestic implementation of the 1267 Regime in the United Kingdom, criticizing the lack of an effective judicial remedy against a listing by the UN’s 1267 Committee. In March, the Swiss Parliament issued a resolution declaring that Switzerland should not longer participate in the 1267 sanctions regime, as it currently exists.

Abousfian Abdelrazik, a party in this lawsuit, remains the only Canadian citizen on the 1267 List, despite the fact that both the Canadian Security Intelligence Service and the Royal Canadian Mounted Police have cleared him of involvement in any criminal activities.  Mr. Abdelrazik was listed on July 31, 2006.

Since his listing, Mr. Abdelrazik has been subjected to an asset freeze at the direction of the Canadian government.  He has had difficulty finding employment because potential employers would have to petition the United Nations for permission to pay his wages.  Recently, the Canadian government attempted to invoke his status on the 1267 List as justification for denial of his Charter rights to return home to Canada; ultimately, the Federal Court rejected Canada’s position and ordered Mr. Abdelrazik’s repatriation.

The 1267 Regime is implemented in Canada through the United Nations Al-Qaida and Taliban Regulations, SOR/99-444.  Section 2 of the United Nations Act, R.S.C. 1985, c. U-2, permits the Governor in Council to make orders or regulations to implement measures requested by the U.N. Security Council.  The requirements set out in Security Council Resolution 1267 and other related Security Council Resolutions are implemented into Canadian law via regulations issued by Order in Council; these regulations are known collectively as the United Nations Al-Qaida and Taliban Regulations.

We are seeking declarations that the United Nations Al-Qaida and Taliban Regulations are of no force and effect based on the following grounds:

  • That they are ultra vires of (that is, outside the rule-making authority granted by) the United Nations Act;
  • That they violate freedom of association as protected by section 2(d) of the Charter;
  • That they violate the rights to liberty and security of the person under section 7 of the Charter in a manner that does not accord with the principles of fundamental justice; and
  • That they violate sections 1(a) and 2(e) of the Canadian Bill of Rights – the right to enjoyment of property and not to be deprived thereof except in accordance with due process of law.

Databases: We’ll show you ours if you show us yours

The Afghan detainee file has been taking up a lot of our time lately, but the BCCLA national security team hasn’t dropped the ball on other issues.

One area we’ve been watching is transnational data sharing, especially between Canada and the United States. Canada and the U.S. have been sharing police records since the Reagan era, and the relationship has only become cozier since 2001. An article in the USA Today illustrates just how close that relationship has become:

Thousands of times each day, Canadian authorities tap into sensitive U.S. government databases to check the criminal histories of U.S. citizens who are crossing the border or have been entangled in the Canadian criminal justice system, FBI records show.

During the Winter Olympics, Canadian authorities ran nearly 10,000 criminal history checks per day, more inquiries than some U.S. states perform each day, FBI records show.

Even more Canadian citizens receive similar scrutiny by U.S. officials with access to Canadian records, according to RCMP records. Since January, Canada has conducted 400,000 queries and the U.S., 1.4 million.

Systems used that widely have a gross potential for abuse. We wouldn’t just trust another nation to troll through our most sensitive records, would we? There must be some oversight built into the system, right? Wrong:

The U.S. has no independent authority to audit Canada’s use, Weise says, and Canada has no authority to police U.S. queries of its system. Weise and RCMP Sgt. Greg Cox say the two countries conduct regular internal audits of their own use.

Well, if it’s widely used and there’s absolutely no accountability, we shouldn’t be worried if we’ve nothing to hide, right? Wrong again:

Canada’s access to such detailed — and possibly outdated — personal histories of U.S. citizens, including decades-old misdemeanors, can result in wrongful detention, interrogation and foreign travel bans.

About half of the arrest records in the system have not been updated to reflect convictions, dismissals or acquittals, Weise said, adding that local law enforcement agencies are responsible for giving the FBI updated information.

So to sum up: Border agents in Canada and the United States have unlimited access to the other country’s criminal databases. There are no checks and balances to ensure that U.S. use of the Canadian system is appropriate, and vice versa. Even if our border guards are using their database access appropriately, the information in the database is wildly inaccurate and out of date, often resulting in wrongful detention, embarrassing interrogations and searches, or even travel bans.

Despite these enormous problems, we’re still rushing to share even more information between our nations. This week, BCCLA Policy Director Micheal Vonn is off to Ottawa to appear at a parliamentary committee meeting discussing the Passenger Protect Program and plans to bring the U.S. No-Fly List to Canada. We’ll have more on that when she reports back.