General Commentary

Meng Extradition: What to Watch For

Today is reportedly the deadline for the Minister of Justice to issue an “authority to proceed” in the extradition committal hearing in the Meng (Huawei) case. Because there has been much attention lately to the functions of Minister of Justice (MoJ) and AG and much confusion, I have sat down and compiled some observations on extradition proceedings. (This was initially prepared as a tweet string, last night, but I messed that up. I'd add that I have become a student of extradition law these last few months and do not claim a deep-seated expertise. But still, it might be helpful in this blog to codify what I have learned, and what has occurred to me as I have).

A Podcast Called INTREPID

Readers will note that this space has been quiet this Fall. In part, that is because of the final post-peer review edits to my new book, Destroying the Caroline: The Frontier Raid that Reshaped the Right to War. The book should be available for purchase by year's end, from Irwin Law books. I shall blog about it further later, but I found this project among the most intellectually satisfying of my career. It is a real yarn: how a forgotten clash on the Niagara frontier has reshaped the international law of self-defence, which in turn has changed how states justify use of force in international relations. And there is considerable misunderstanding about exactly what happened during that 1837 raid, and the circumstances in which it occurred.

But the other new dedevelopment is the podcast series that Stephanie Carvin and I have been producing: "A Podcast Called INTREPID". As our description explains, here we "discuss and debate issues in Canadian national security law and policy, sometimes ripped from the headlines, and in other instances, just because they seem interesting." We are about to record this week our 10th episode and figure this is now a going concern. So we have a website as well: https://www.intrepidpodcast.com/. And subscribers can join via iTunes and Google Play. We have had a double mandate so far: a steady march through the details of bill C-59 and also our efforts to respond to developments in national security law and policy as they arise in the news. If you enjoy this podcast, we'd be very grateful for your reviews. It is worth keeping up if people are getting something out of it.

As for this blog, expect it to start filling as I begin to march through updating National Security Law: Canadian Practice in International Perspective for a long-overdue second edition.

Thanks for your continuing interest.

A Once & Final Parsing of the Legal Context for the Khadr Settlement

I have a few moments this morning for a “once more unto the breach” post on the Khadr settlement.  Please read my prior one, because I will try to make a few other points in this one, given how the discussion has evolved.  (This will be my last foray, hopefully for a long time, as I need to finish writing my book for my anticipated audience of 4.)

Disclosure Statement

In the interest of disclosure, I provided minor assistance to Khadr’s US JAG defence lawyer a decade ago, and was co-counsel in the amicus brief by law professors and parliamentarians in the US Supreme Court case of Boumediene, which had a Khadr angle. I also supervised law student directed research projects on the Khadr matter.

These were small involvements. I don't raise them because of some excessive sense of importance, but because people will want to know where I come from.

 

I am mad as hell and so should you be

I may be mad for different reasons than you are, but here are my reasons:

1. As an excellent team of law students discussed here in detail, Khadr could have been (and, in my view, should have been) Canada’s first modern terrorism case. By summer 2002, Canada had a whole raft of new, shiny, extraterritorial terror offences. They were available, and would not (all) have required adjudicating who did what in the 2002 firefight: no need to debate grenades. Participating with Al Qaeda would have been enough, and the evidence of that would have been straightforward and required no extreme detention, maltreatment, or doubtful confession.  Nor would we have had to resort to made-up retroactive crimes, like in the US military commission process, or a patently flawed commission structure.  We could have used real courts, with real judges, adjudicating real crimes, using real evidence. 

  • Further addendum: no, the fact that Khadr was in the midst of an armed conflict would not have immunized him. Under the laws of armed conflict, he would have been an unprivileged belligerent, disentitled to what is known as “combatant’s immunity”.  Basically, he was a civilian who fought.  That can be treated as unlawful (although is not in itself a war crime), whether done in Afghanistan for AQ or in Syria for ISIS.
  • As a prosecutor, I would not have sought treason charges for one reason in particular: our treason crime is so antiquated that it hasn’t been used since the 1950s, and would be really complicated.  And I wouldn’t need it, because of the terror charges. (In recent cases, we have not used treason.  See Ribic.)

2. The youth offender issue was one our system could grapple with, and often does.  This didn’t need to be a overstated debate about a “child soldier”.  And any other extenuating or mitigating issues could have been part of sentencing.

3. It was past negligent for Canada to not only be the only Western country that left one of its nationals at Guantanamo, but then send CSIS [and DFAIT] interrogators to interrogate/inteview Khadr (softened up by the Americans through maltreatment that was probably torture, and if not torture, the equally unlawful cruel, inhuman or degrading treatment). 

4. And then to top it off: Sharing the fruits of that interrogation for use in a military commission system the United States Supreme Court itself concluded was unlawful, compounded the Canadian delinquency.  It also meant that Canada was contributorily tied to the whole Guantanamo mess, running up the meter on Canada’s moral and legal culpability.

5. And then to have the gall to claim that we had no choice, because our legal system could not have dealt with Khadr (which, if true, will be tremendously happy news to Canadians now fighting for ISIS.  Fortunately, it was never true). The other doubtful argument: the Americans would be angry at us if we asked for Khadr back.  By the end of this saga, the Americans really wanted us to take Khadr back.  There are even Hilary Clinton emails.

In sum, the Government of Canada screwed this up. Massively.  And now a criminal trial is impossible because of tainted evidence, maltreatment, double jeopardy (from the US process that may, ironically, end up overturned on appeal in DC because of all the retroactive crimes).  Nor would a trial serve any purpose: even with a conviction, hard time in Guantanamo (in pre-trial detention, no less) exceeds anything a Canadian court would hand out.

 

What about Khadr’s lawsuit: Shouldn’t the government have fought it?

It did. Since 2004. Here’s the Federal Court docket. It got to the point that the government’s legal tactics were costing it. For instance, in resisting Khadr’s amendment of his statement of claim, the government skated past the point of credibility. And here’s what the judge ordered in 2014:

The Plaintiff [Khadr] was successful on nearly every aspect of this motion. Only a handful of the Defendant’s [Canada’s] myriad arguments had any merit. By opposing this motion, the Defendant considerably increased the costs and delay of this complex action, which has occupied this Court for ten years now. Consequently, I exercise my discretion to award costs in favour of the Plaintiff, pursuant to Rules 400 and 401

In the end, Khadr was suing Canada for a lot of things, not just the Charter breaches everyone is talking about:

$20,000,000 in compensatory damages alleging negligence, negligent investigation, conspiracy with the United States in the arbitrary detention, torture, cruel, inhuman and degrading treatment, false imprisonment, intentional infliction of mental distress and assault and battery of the Plaintiff, failure to comply with domestic and international obligations with regard to treatment while confined, and misfeasance in public office. In the alternative, he sought an award of damages pursuant to s 24(1) of the Charter and a declaration that the Defendant violated the Plaintiff’s ss 7, 8, 9, 10, 12 and 15 Charter rights.

Would he have won? On the Charter breaches, the Supreme Court of Canada had already concluded (twice) that Canada had breached Khadr’s Charter s.7 rights through the CSIS/DFAIT interrogations and sharing of resulting information with the Americans.  The issue of what damages should be paid for that had not been decided – it was not before the Supreme Court and that was what the Federal Court lawsuit was about.  But the existence of the constitutional breach was probably governed by “issue estoppel” – it had already been decided by the Supreme Court, and so that legal question was decided (although, per its habit, the government would have likely contested this, racking up more costs).  

I don’t underestimate the complexities of the Ward case and its standard for damages in Charter cases. But basically, the Khadr case was probably mostly just a question of quantifying the damages.

On the other causes of action, well, there was a good chance for some of them -- although suing government for negligence can be tough.  And some of them would have required some really interesting (and uncomfortable evidence).  Which brings me to…

 

But no one really can say how litigation should unfold.  So perhaps the government should have fought it.  Why not?

Well, if I had been advising the government, I would have urged them to settle.  Here’s why.  First, don’t underestimate the cost to the taxpayer of fighting: 

1. Maybe if you do not care about sharp legal practice, you can wear the plaintiff down through stalling tactics. Let injustice be done, though the sky fall! But sooner or later, you will end up in front of a judge, probably now very irritated and happy to assess costs against you.

2. You won’t win everything in this case. You are almost certain to pay some damages, and quite possibly a lot of damages. 

3. Either way, if you fight a trial, here’s what will happen:

  • Because of what he needs to prove for the negligence and misfeasance causes of action especially, plaintiff will call the former Prime Ministers Chrétien, Martin and Harper, and all of their former foreign affairs and public safety ministers, CSIS, DFAIT and RCMP officials (former and present) and any number of other officials.
  • Former officials will have their own reputational exposure (at minimum), and will likely want independent legal advice, indemnified by the government of Canada.
  • Departments will divert resources, as they did during the commissions of inquiry of the last decade. There will be oodles of lawyers and staff time on this – do not underestimate the resources poured into this.
  • Plaintiff will be seeking confidential information, on top of what is on the public record. Some of that will raise national security interests. It will need to be fought, probably in Canada Evidence Act s.38 proceedings. Those are long and arduous and costly.  See above about staff resourcing.
  • The trial will be several weeks long, and the costs skyrocket. (There is a reason most civil cases settle).

Put another way, this will cost a bundle. And that’s not including resources expended by the court itself.  And that’s assuming in the end the government isn’t stuck with the plaintiff’s legal costs (which, as noted, was already starting to happen).

The Arar commission cost $20 million. Commissions and courts are different, but the Khadr case has been a longer process.  All costs in, I suspect a full trial in the Khadr matter would have been close to Arar number – certainly more than $10 million.  The government had already spent $5 million – and the process looks like it had not yet reached the full discovery process (let alone trial), or resolved the section 38 issues.

So I think an all-in number in the $30-40 million range, including damages, costs to the court, etc was very possible, even likely, and maybe even low-balling.

But then there are the more intangible (but perhaps even more pressing) costs:

  • Some of these section 38 proceedings would probably mean some information would come out the government does not want out for plausible security reasons (in this case, outweighed by the fair trial interest). You may not care, but the security services do, passionately.
  • Since the lawsuit (by definition) implicates the Americans, they will have an interest and perhaps reaction, especially if some of their confidential information was potentially in play. This is an unpredictable US administration.  This trial pokes a hornet’s nest.
  • The last thing the security services need is for graphic exposure concerning misdeeds of the prior decade.  It diverts resources, and diminishes morale and public confidence and makes it very difficult to do their jobs if the public believes that they are rogue operators. (Losing a misfeasance claim would be disastrous; we are getting into intentional malice territory there.)
 

If I were the security services, I would have wanted this case settled, badly. 

In sum: You can still wish there had been trial for a lot of different reasons. Maybe you’d like all this to have come out in open court – certainly, I would have found it interesting as a national security law academic.  Maybe it would have been good to expose the government malfeasance.  Maybe the responsible should be exposed, and heads put on spikes.  Maybe all that would serve as a cautionary tale for security services, on the (unlikely) assumption they would do a repeat in the same manner.  Maybe you don’t care about any of the reasons, but do care about the symbolism.

That is your prerogative. But none of your reasons for supporting a full civil trial in Khadr should be “because it would have been cheaper” or “because it would be a good way to support the security services”.

But was this really worth the $10.5M, and wasn't this too secretive?

I wasn't part of the process, but a couple of thoughts: First, a settlement depends on what you negotiate.  The negotiations are confidential, and so too (often) is the settlement.  (Public settlements advertise to all future plaintiffs what the going rate is, leading to a bidding war).

Why $10.5 million? Probably because the (public) Arar matter set that as the benchmark for the cost of participating, however indirectly, in maltreatment with a foreign government.  Legally, I don’t think it make a difference that Mr Arar was picked up and rendered from JFK airport, and Khadr from the battlefields of Afghanistan.  I don't see how their relative virtues would affect the lawsuit.  An “eye for an eye” is ancient Sumerian law, not Canadian.

Maybe the government should have negotiated a better deal – $10.5M is several million more than wrongful convictees have typically received.  Maybe the government should have conceded liability and gone to court on damages.  Personally, I am not sure that would have obviated all (or even many) of the problems with going to trial, noted above, since the conduct of those same officials would have been what compounded damages. 

But bottom line: the current government made a judgment call, burdened with the conduct of 3 prior governments and lingering legacy cases that continue to cast a shadow over the security services. 

Perhaps there were other more partisan political reasons for settling.  This is not my area. I leave it to others to discern the partisan political upside of this settlement for the Trudeau government.  It is not immediately apparent to me.

 

What about Canada paying Ms Speer and Mr Morris?

I certainly know what I hope for on this question, as a human being.

But a couple of lawyerly points:

As a principle, the Canadian government has no legal exposure for Khadr’s (alleged) conduct in the 2002 firefight. Canada is not responsible for the conduct of its private citizens overseas – if that were a principle, I imagine there would be many fewer passports issued.

Whether Khadr is himself liable for the 2002 firefight is a question that has never been adjudicated in an adversarial process in front of a real court, applying real evidence.  Basically, we have no idea what happened in 2002.  Anyone with clarion vision on this point is exhibiting motivated fact-interpretation.

As I understand it, the Utah default judgment (in which Khadr’s side did not appear) was built on the Guantanamo record.  Enforcing that judgment in Canada will be hard, although perhaps aspects of it can be teased away from the tainted Guantanamo process.

(Unfortunately, a new “clean” civil proceeding is likely precluded by expiry of limitations periods. Too bad Khadr wasn't repatriated sooner.)

If there can be enforcement, whether there are assets to be seized is a question beyond my knowledge.  (The negotiated settlement may be structured so that the money is paid out in increments, not as a lump sum. This is not my area, at all, so I defer to others on the civil procedure and civil action components of this case.)

Finally, whether the Speer and Morris proceeding itself will settle remains an open question.  It may be a good way to judge character.

 

Take home:

So to sum up: there are many villains and few heroes in this saga. There are degrees of victimization, and there are stages in it.  There is too much “eye for an eye”, and too little “rule of law”.  None of this had to be this way.  Justice could have been served.  Be angry at your government, but make sure you are angry at them for all the right reasons.

It is possible to believe:

  • Khadr is not a folk hero and should have been held to account and he should not have been maltreated and railroaded in a patently flawed process.
  • Khadr should have been repatriated much earlier and held to account.
  • Khadr was wronged and was in the wrong, with the degree of that error something that deserved careful, evidence-based inquiry.
  • That settling this case was smart for financial and security reasons, and that others may deserve compensation.

 

Addendum

I want to end with a nod to Dennis Edney and Nate Whitling, Khadr’s chief lawyers on the criminal side (who will not agree with all I have said here). They represented the country’s most unpopular client for almost two decades, without any real prospect of compensation and in the face of public vitriol.  If any of us are ever targeted by governments willing to toss centuries of due process into the dumpster, we would be fortunate to be represented by two such dogged advocates.

And while I am less familiar with the civil side, I have reason to believe that similar credit is owed to John Kingman Phillips.  And there are any number others that I risk damning by not mentioning, for which I apologize. These would include many of the US JAG defense lawyers who I knew in person or by reputation, and who stand out as defending fidelity to the rule of law.

Twelve Points about the Khadr Saga

I have been buried in a book project, and trying to stay away from 2017. But against my better judgment, I thought I'd take a moment to distill a few thoughts on the Omar Khadr damages settlement. As most people likely know, Omar Khadr -- the boy who was captured in a firefight in Afghanistan and grew to a man in detention at the United States' infamous Guantanamo Bay prison -- has been paid $10.5 million by the Canadian government.

This is compensation for the Canadian govenments own (mis)conduct in that matter faced with a lawsuit for a much larger amount, not some sort of holiday present.  But that fact is lost on social media.

My colleague Audrey Macklin has an excellent piece in the Globe responding to the waves of outrage -- and especially the wave of outrage from Jason Kenney. (I am sure Audrey's mailbox is full of hate mail in consequence -- mine certainly was when Audrey and I and others worked with students a decade ago to help Khadr's then-military lawyer, Lt Cmdr Bill Kuebler, navigate the Canadian legal scene. Some of those students went on to produce some excellent analysis, noted below. Tragically, Bill passed away two years ago, a young man and father and victim of the disturbing cancer cluster among those who worked at the Guantanamo court complex).

But I offer a few additional thoughts to Audrey's.

First, unlike others caught in acts of tacit complicity with maltreatment by the Canadian government, Omar Khadr is not a blameless victim. He was an unprivileged belligerent when captured in 2002 in what was, by then, a non-international armed conflict between the new Afghan government and its allies and the Taliban and remnant AQ. Being an unprivileged belligerent is not, itself, a war crime -- that is reserved for more serious conduct.  But nor does an unprivileged belligerent enjoy combatant's immunity: he or she can be held accountable for their conduct.

Second, Omar Khadr was prosecuted at Guantanamo after being mistreated, in a patently delinquent process for, in some instances, crimes made up after his conduct (and thus applied retroactively).  Put another way, the United States took a clean case and screwed it up. (Being a child soldier is not and never has been an absolute bar to prosecution for crimes.  But it does matter and the US completely ignored that as well.)

Third, along the way, for transparently political reasons, the Chrétien, Martin and Harper governments refused to seek Khadr's repatriation.  And the Harper government in particular made an art of this refusal, claiming falsely Khadr could not be prosecuted in Canada. My students wrote a 150 page paper laying out how this was wrong (when they presented that brief before a parliamentary committee certain Conservative MPs derided them, just because). The Obama administration would have been happy to be rid of Khadr.

Four, but still the government stuck to its guns, and was slapped with two Supreme Court and several lower court holdings collectively finding that the government had violated its obligations -- including under the Charter -- in using Khadr's detention in a system violating international law as an interrogation opportunity.

Five, that meant that the government now had its own legal exposure for, essentially, a form of complicity, as it did in other cases and still does for still others before the courts.

Six, the government will eventually lose such cases. For one thing, as with Arar, Almalki, Elmaati, Nureddin and (likely in the future) Abdelrazik, there were ample court or commission of inquiry findings setting out its wrongful conduct in graphic detail. The government can (and often has) engaged in procedural trench warfare in court to try to stuff Pandora back into her box -- but it takes a particularly unedifying government to dispute a meritorious case with endless legal chicanery. Plus, the ultimate legal costs will likely exceed any settlement.

Seven, even where a government case has merit, the evidence of that merit may be clothed in secrecy, leading to a form of gray mail: you cannot prove the merit.  And whether your case has merit or not, it is usually not a great idea to allow the plaintiff's lawyer to get a bunch of senior government and security agency officials on the stand in open court and rip them to shreds.

Eight, and so that is why it is a very smart idea to settle cases like Omar Khadr's.

Nine, but that is not to say, again, that Khadr was a blameless victim. Whatever may have happened in that 2002 firefight, he was an obvious unprivileged belligerent. There is now no prospect of a Canadian prosecution -- the record is likely irremediably tainted by the maltreatment in Guantanamo, a prison that has become the world's largest poison pill to justice.  (And that sets aside the interesting double jeopardy issue.)

Ten, nor would prosecution now meet any of the purposes for which the criminal law serves.

But, eleven, when someone hurts another person, tort law is available to compensate for injury. Put another way, it is perfectly reasonable, in my view, that there be a civil suit in this case. I know nothing more than I have read in the media about its particulars, but the issue with the lawsuit brought by Tabatha Speer and Layne Morris may be that the default Utah judgment for $134M is also irredeemably tainted by events at Guantanamo, including the so-called confession.  What happened in that 2002 firefight has never been adjudicated in a proper adversarial process in front of a real court using real rules of evidence.

Twelve, that will make enforcing the judgment in Canada difficult.  And it may now be too late for a proper action, given limitations periods. (Although maybe not -- limitations periods and rules differ).

But bottom line: the lesson learned, once again, is that taking off the gloves and playing footsie with some basic legal principles has blowback.

The interests of justice would have been much better served had Khadr been repatriated earlier from Guantanamo.  I wonder why that never happened?

 

 

Diplomatic Protection of Canadians: Time to Ratify Optional Protocol to the Vienna Convention

The House of Commons Foreign Affairs Committee is reportedly set to study Canadian consular practices and procedures starting this Fall. This has been an important issue since the Arar and Iacobucci commissions of inquiry and remains an issue -- especially for dual national Canadians. It is possible the policy on (not) paying ransom where Canadians are held hostage by terrorist groups may also be part of the study, a matter that has attracted some attention lately.

A decade ago, I wrote a sequence of law review articles on diplomatic protection and consular relations in international and Canadian law. These articles deal with international law and the unusual peril faced by dual nationals [behind paywall], the law of diplomatic protection and antiterror rendition, and the legal status of diplomatic protection in Canadian domestic law.

Nothing much has changed in the last decade to overtake the conclusions reached in these articles, although the Supreme Court's two Khadr decisions clarify the circumstances in which Canadian conduct overseas in relation to a Canadian can transgress the Charter of Rights and Freedoms.

One other thing that has not changed: Canada still has not become party to the Optional Protocol to the Vienna Convention on Consular Relations.

The Vienna Convention establishes the treaty bases of basic consular guarantees.  See in particular Art 36.  For its part, the Optional Protocol allows disputes concerning a state's failure to permit consular access to be taken to the International Court of Justice.

The Vienna Convention has been an issue in several ICJ cases, including ones focused on whether the United States meet its consular relations in terms of death penalty cases.  See LeGrand and Avena.  And very famously, it was an issue in the Tehran hostage-taking case in 1980.

In each instance, the Optional Protocol was (at least one) of the bases for ICJ jurisdiction -- and close observers of international law will know that ICJ jurisdiction is often a huge stumbling block.

But for reasons that I have never understood, while Canada is party to the Vienna Convention, it has not acceded to the Optional Protocol.  That is true even while countries like...Iran... have. 

And so, as has often been the case, when Canadians have been detained (and in at least one case killed) by Iranian authorities, and along the way violated the consular relations treaty, Canada has no recourse to the World Court.

I have no idea why Canada has failed accede to the Protocol. I can't think of any good reason.

And so if I were to have a single recommendation for the Commons Foreign Affairs committee (and for the Canadian government), it would be: time for Canada to accede to the Optional Protocol.

In Memoriam: The Honourable Ron Atkey, PC QC

I learned this week that my friend and colleague Ron Atkey, PC, QC, has died. This is very sudden and sad news, and my thoughts go to his family.

As I process Ron’s passing, I have been reaching for some way to memorialize his accomplishments. One of the few initial avenues open to me is a short essay on this blog.

Ron was the first chair of the Security Intelligence Review Committee (SIRC), between 1984-1989.  Both before and after that, he was a partner at Osler, Hoskin & Harcourt LLP, where he chaired the Arts, Entertainment and Media Law Group.  He was also a law professor – at Western (1967-1970) and Osgoode Hall Law School (1971-1973). There, he authored an array of law review articles and co-authored Canadian Constitutional Law in a Modern Perspective (1970). In the 1990s, he wrote a novel (The Chancellor’s Foot).  And after his retirement from Oslers in 2007, he returned to parttime teaching at both Western and Osgoode, leading classes in national security law. He worked on the Arar commission of inquiry and was a special advocate under the Immigration and Refugee Protection Act.

I know Ron best from his work on national security law – he was a generous mentor and gave of his time and expertise, including by commenting on and then writing the forward to National Security Law in 2008. He also reviewed and commented on the 2015 book that Kent Roach and I authored on Bill C-51, False Security.

And throughout debates on that law, and more recently in discussions of reformed national security review, Ron served as a confident and compass. I valued his wisdom and experience.

As first chair of SIRC, Ron played an invaluable role. As Peter Gill detailed in his study of national security accountability systems, Ron’s chairmanship “symbolise[d] a willingness to extract as much mileage as possible from the review process”.[1] A later study would note SIRC’s review mechanisms “work to the extent that committed and energetic persons staff them. The first Chairman of SIRC, the Hon. Ron Atkey, was such a person…”.[2]

In Ron’s early career, he was an MP and ultimately the Minister of Employment and Immigration in the Joe Clark government (1979-1980). In the latter role, he was instrumental in Canada’s decision to admit large numbers of Vietnamese refugees – the famous “Boat People”. This was Ron’s greatest professional legacy.

A study of Canada’s immigration policy noted in “June 1979, Ron Atkey, the new Conservative government’s Immigration minister, raised the year’s intake [of Vietnamese newcomers] to 12,000, of whom 4,000 were to be sponsored by private organizations.” Then, in July, “Atkey announced that Canada would increase its intake of refugees to 3,000 a month, with 50,000 to arrive by the end of 1980.”[3] 

Ron was not, of course, singlehandedly responsible for this humanitarian effort – and he would never so claim.  But without Ron, his Cabinet colleague and ally Flora MacDonald, and a supportive Prime Minister, this policy shift would never have happened.  A recent study credits the role of Prime Minister Joe Clark in backing Ron and Flora MacDonald “in the face of skeptical Cabinet colleagues”. It observes: “The courage and leadership of MacDonald and Atkey in fighting for an unprecedented commitment, and in inspiring officials and ordinary Canadians to deliver on it, cannot be overstated.”[4]

With characteristic humility, in a foreword to that same book, Ron attributed much of the success of this humanitarian project to Canadian communities and organizations, and to the public service.

But the details of Ron’s involvement in Canada’s response to the Southeast Asian refugee crisis has almost mythical status in public policy lore. In 1979, Ron read a scholarly manuscript detailing Canada’s appalling conduct in turning away Jewish refugees from the Nazis, authored by Irving Abella and Harold Troper. His response is recorded in those authors’ later book, None is Too Many: Canada and the Jews of Europe, 1933-1948:[5]

Atkey was shocked and dismayed at the seeming historical parallels between the Vietnamese crisis and that of Jewish refugees from Nazis. Already decided on a path of activism on behalf of Vietnamese refugees, he later explained “The article stiffened my resolve to be bold.” True to his word, he convinced the Cabinet that Canada must not turn its back on Vietnamese refugees as it previously had done to Jews. As a result of Atkey’s efforts, Canada’s refugee resettlement program, enriched by unparalleled citizen participation, was second to none among nations of the world.

Ron never abandoned his humanitarian commitments.  Along with other prominent Canadians, he pressed the government to increase its intake of Syrian refugees in 2015. As reported in the Toronto Star:

Ron Atkey believes the 25,000 Syrians Ottawa is promising to re-settle initially is a “noble objective” but he wants Canada to up the ante.

“If Canada can do another 25,000 — that would make a significant contribution in line with Canada’s contribution with the Vietnamese boat people in 1979 to 1980. It will demonstrate to the Americans that they have to do more. We’ll shame them into it, similarly the Australians,” says Atkey, who was immigration minister in the Joe Clark government in 1979 when 50,000 Vietnamese refugees were granted asylum in Canada. By the end of 1980, that number had risen to 60,000.

 “For us to take a dramatic position on the world stage is important. We won a medal from the United Nations High Commission for Human Rights. We gained a lot of prestige as a humanitarian country. I think that’s consistent with Canadian tradition.”

In 1988, Morton Beiser interviewed Ron about his role in opening Canada’s doors to Vietnamese refugees:

Over tea served in elegant porcelain cops, Mr. Atkey talk with obvious pride about the role he and his government had played in admitting refugees. I asked him what prompted a country that had not been notably generous in the past to bring in so many Southeast Asians. The former minister recalled the headiness of being a member of the freshly elected cabinet leading a prosperous nation, and seizing on a global issue like the “Boat People” crisis to show both its UK parents and its US big brother that Canada could do better. …

Speaking more personally, Mr. Atkey mused that one is not often given the chance, as he put it, “to make a difference.” … Atkey told me “I didn’t want my children to have to remember me as somebody who said ‘None is too many.’” [6]

There is no chance of that. Ron’s legacy is found in headlines like this: “Vietnamese boat people of more than 3 decades ago now thriving, proud Canadians”.

Ron was a lawyer who helped build Canada’s national security review system, then persistently advocated correction of its shortcomings; a warm mentor who supported more junior colleagues; a politician who put country before party; and, a humanitarian who acted on his principles.

He will be missed. Rest in peace my friend.

 


[1]           Peter Gill, Policing Politics: Security Intelligence and the Liberal Democratic State (Frank Cass, 1994) at 287.

[2]           Jean-Paul Brodeur, “The Globalization of Security and Intellience Agencies: A Report on the Canadian Intelligence Community,” in Peter Gill, Democracy, Law and Security: Internal Security Services in Contemporary Europe (Ashgate, 2003).

[3]           Ninette Kelley and M. J. Trebilcock, The Making of the Mosaic, University of Toronto Press, 1998, at 407.

[4]           Michael Molley, Peter Duschinsky, Kurt Jensen and Robert Shalka, Running on Empty: Canada in the Indochinese Refugees, 1975-1980 (McGill-Queens University Press, 2017) at 458.

[5]           University of Toronto Press, 1983.

[6]           Morton Beiser, Strangers at the Gate: The “Boat People’s” First Ten Years in Canada (University of Toronto Press, 1999) at 41.

National Security Law Blog: 2017 agenda

An entirely misleading but famous portrayal of the raid on the Caroline, by A Sandham, c.1839

I anticipate this year will be a busy one on this blog space. On the agenda are three major projects. First, I am busily working on the "Secret Law Gazette", an archive of ministerial directives, memoranda of understanding and internal policies and procedures for Canada's security services.  These are documents that have been released in fits and starts through access to information, but are very difficult to track and organize.  The Secret Law Gazette will hopefully provide a navigation tool of sorts, however imperfect.

Second, I am still on track to complete my book on the 1837 Caroline incident and its impact on the concepts of use of force and self-defence in public international law. As a spin-off of this book, I shall be creating an archive of documents related to the event and its subsequent trajectory through public international law.

Third, as we enter the post-Green Paper consultation on national security period in Canada, I am hoping things will firm-up in terms of changes to Canada's laws. For the last several years, since late 2014, the trajectory of Canada's laws has been uncertain -- making me wish my books were all like the Caroline project and focused on history. But now the time is arriving to release a second edition of National Security Law (now long in the tooth in some chapters).  My plan is to post revised chapters online throughout 2017, and crowdsource feedback, before assembling the final book for publication in 2018.

The New Abnormal Normal for the Canadian Security & Intelligence Community with…President Donald J Trump

Things just got way more complicated in the world of Canadian security and intelligence.  And they were already complicated.

The Predictable Political Priorities

After last night’s US election results, Canada will be enormously preoccupied with maintaining trade access to the United States market, currently governed by a NAFTA much maligned by Donald Trump. A reversion to simple WTO rules (assuming the WTO itself survives) would sucker-punch the Canadian economy, as I understand the economic analyses.  And so preserving the trade relationship and a seamless border will likely be the consuming foreign policy objective of the Canadian government.

As after 9/11, preserving trade may mean talking-up security. This is especially true given that the consequences of a terror incident originating in Canada and directed at the US have gone from disastrous to probably something closer to existential. 

For these reasons, and more traditional reasons relating to our dependency on the much larger US security and intelligence community for shared intelligence, Canada will be even more keen than usual to show no daylight between us and the United States on security.

Trumpian National Security

And so a huge question is “what will a Trump security paradigm look like”.  So far, the answer from the campaign is a mix of incoherent and scary. If a Trump administration returns to torture as part of the anti-terror toolkit (and, to take him at his word, goes well beyond the sort of practices at issue in the Bush period) and is inclined to the sort of unequivocal war crimes mooted as desirable policy, Canada will need to distance itself even as it shows no daylight.  That is not an easy goal to achieve.  Take information sharing: will Canada now find itself needing to apply the 2011 ministerial directives (on sharing of information that might come or induce torture) to every information exchange with US services? That would suddenly impose a lot of stickiness in a system that depends on being seamless.

So the next question is: how likely is a Trump administration to do the things Trump said he thinks would be good things to do?  The soothing, technocratic answer is: the US intelligence and defence community would resist such departures from law and ethics, having learned their hard lesson from the post 9/11 years.  See the discussion here. The less soothing answer for those of us who would never have predicted what happened after 9/11 is that the present day “imperial” presidency can bend gravity appreciably, especially if Trump appointees share his dispositions.  In other words, a president with Louis XIV self-regard (although no equivalent savoir-faire) is capable of much mischief, especially if surrounded by sycophants much less able than Cardinal Mazarin.  See the utter contortion the Bush administration (possessed of more worldliness on paper than the feared incoming crowd) made of the US intelligence community, in the lead-up to the Iraq War.

All of which is to say that I am not persuaded that bureaucratic resistance will suffice, especially with all three branches of government controlled by the Republicans (and that party tilting to Tea Party and now Trumpian world views).

But even if the United States does not backslide into abusive practices, it seems all but certain that the next administration will not be a government of law by lawyers. If Charlie Savage’s excellent book on security in the Obama years shows anything, it shows the degree to which the arbitrary and unpersuasively-lawyered Bush administration practices were replaced by an intensively legalized model. Whatever your doubts about the content of those legal views, it at least established a decisional rigour, relative to what went before.

I would not expect that rigour to survive a Trump administration.  Rigour is clearly not part of the man’s personality, and the rule of law is equally clearly an arcane concept to him. I fully expect a seat-of-the-pants, arbitrary approach.

Knock-On Effects in Canada

That then raises the question: what happens to our security and intelligence relations with our chief ally.  I leave it others to discuss the implications for things military and NATO. On that point, I will simply say that I suspect NATO will be tested. Bilateral military relations will be strained, although perhaps this is the easier issue. In truth, I have confidence in the uniformed military because of its tradition of laws of war compliance. Yes, it is not a perfect record (Somalia) and horrible new legal issues arise (the transfer of Afghan detainees).  But I cannot imagine a Canadian officer giving or obeying a command to commit an outright war crime, as part of an allied operation or otherwise. The rules are clear here: that is an unlawful order and is not to be obeyed.

I am more concerned about the Canadian security and intelligence community.  Here, secrecy is more acute, operations more porous, and the legal rules more pliable.  And we have a tradition, post-9/11, of very doubtful activity tied to the allied relationship: The CSIS rendering of Mr Jabarah illegally and unconstitutionally in 2002. The use of information procured by the United States through torture in Canada immigration security certificate matters. The conduct of CSIS and RCMP in the maltreatment of Messieurs Arar, Almalki, El-Maati and Nureddin. The CSIS interrogation of Omar Khadr at Guantanamo Bay.

And of course, we are not alone among Five Eyes in having sacrificed some of our values post 9/11.  The British, for instance, are still trying to unpick the contours of their conduct in the Intelligence and Security Committee’s current, new study on rendition. And before that, we had the Chilcott Report on intelligence and the Iraq War.

I am very worried, in other words, about the security services being bent by the gravitational pull of the US alliance relationship in an unpalatable direction. But the difference between post-9/11 and now: because of bill C-51, the Canadian services have an untested and poorly-bounded new host of powers at their disposal, for them to deploy as they are swept up in the new culture emanating from the United States. Put another way, this could get bad.

The question then becomes: what do we do about this? And here, I will say this: there is now, more than ever, an urgency to getting our house in order. Add the rigour that C-51 lacked so that our services don’t cruise to its outer limits, with all the predictable deleterious impacts.  Perhaps even give serious thought to an enhanced Canadian foreign intelligence capacity – to reduce our dependence on the allied relationship (and potentially our value to it). And massively invest in our underpowered review and accountability system.

This is no longer business as usual, and we risk unpleasant surprises if we treat it as so.

Secret Law and Canadian National Security

A recurring issue in national security law, especially since 9/11, is the proliferation of what I (and many others) now call "secret law". A recent report from the Brennan Center at NYU School of Law traces this development in the United States, supplementing earlier critiques.

Canada also labours with the problem of secret law in national security. In our case, it comes in different guises:

  • As reported, the last government issued secret orders-in-council.
  • Ministers issue directives under various statutory authorities that are not proactively disclosed. Copies obtained under access to information are sometimes heavily redacted. For instance, it is more than ironic that the 2015 ministerial directive to CSIS on accountability is mostly censored. These directives are cardinal aspects of Canadian national security law: they can amount to the nuts and bolts rules that govern how vague, open-textured statutory powers are exercised. They matter, in other words, and by any reasonable definition amount to law.
  • Justice Canada legal opinions construing the scope of vague, open-textured statutory powers have the de facto effect of legislating the practical reach of those powers. These opinions are clothed in solicitor-client privilege -- with the end effect of allowing a tool permitting frank advice between lawyer and client to be used to deny the public access to a true understanding of how the government interprets its legal powers. That may happen also in other areas, but in this one, the Justice Canada legal advice often is the last say: the covert nature of national security activities means that no one may be aware of how these powers are being used, and in a position to adjudicate the true scope of the law in front of an impartial magistrate. In the hot-house of internal government deliberations, legal positions that might not withstand a thorough vetting become sacrosanct. And subsequent construals of powers build on earlier, undisclosed legal positions, producing outcomes that are very difficult to understand. Just two recent examples are: a conclusion that the actual physical amalgamation of information does not amount to collection in a legal sense (CSIS; and possibly also CSE); a conclusion that the compilation and analysis of metadata from travellers at a Canadian airport is not (as a legal matter) "acquisition and use" of information in a manner "directed" at Canadians or any person in Canada (CSE).
  • Secret or quasi-secret Federal Court caselaw involving issues of public law importance, with much credit to the court for doing its utmost to publish public (albeit redacted) versions of its decisions.

Last Spring, a talented JD student at uOttawa compiled all the ministerial directives we could get a-hold of under access to information. I have struggled to find time to post her workproduct into a viable on-line database (that won't cost me a fortune). But it is still on my task list. Less clear to me is why it is on our task list, and not the government's. And even less clear to me is whether the scope of claimed redactions to these documents can withstand close scrutiny.

Similarly, it surprises me that the government does not waive solicitor-client on some of the legal construals that drive its national security powers.

In both instances, there are clear rule of law issues. Sooner or later this will end up in court. I think it's only a matter of time, for instance, before these matters go up through an access to information appeal in which someone tests the true meaning of the Supreme Court's s.2 Charter holding in the Canadian Lawyers Association case, garnished with a rule of law argument.

But secret law also ends up creating train wrecks in other ways, with serious operational significance. Indeed, that's precisely what happened with Justice Canada's construal of the CSIS Act at issue in the Re X saga.

And the even graver risk is that bumping along using untested legal views will end up in court as a collateral issue in a criminal matter. Say, for instance, the seed for RCMP charges is information-sharing from CSE based on its metadata program, done under its "Mandate A" foreign intelligence activities. And the trial court learns that CSE's collection of Canadian metadata, although done incidentally, was never authorized by a court (it never is, at present). And more than that, the subsequent de-minimization of the Canadian identifying information by CSE was done on request of the RCMP pursuant to a Privacy Act exception. That is, all this information ends up with the RCMP administratively, and not supported by a warrant. Does this happen? I don't really know (because of the secret law problem). but extrapolating from hints about the secret law governing the workings of the CSE de-minimization process, I think it may.

We know from the caselaw that courts have treated this kind of thing as an end-run around the Charter (see Cole and Colarusso).

Surely it would be better to know the government's legal theory now (we can infer much of it anyway) and point out the risks before it becomes a central issue collapsing a criminal trial.

Better yet, change law and practice to bring it into alignment with a necessary concomittant of the rule of law in a democratic state: that we have actual notice of what the law is so that we know what we are authorizing our security services to do in our name.

Righting Security: A Contextual and Critical Analysis and Response to Canada's 2016 National Security Green Paper

Kent Roach and I have posted a review copy of our response to the government's consultation paper on national security & bill C-51. It can be downloaded here. The abstract reads:

This article responds to the Canadian government’s 2016 consultation on national security law and policy. It outlines a series of concerns, both with laws enacted in 2015 (and especially bill C-51) and some interpretations of C-51 and other laws in the consultation documents. It urges the need for a systematic and contextual understanding of the many issues raised in the consultation. For example, information sharing and increased investigative powers should not be discussed without attention to inadequate review and accountability structures. Similarly CSIS’s new disruption powers need to be understood in the context of the intelligence and evidence relationship. The article proposes concrete and significant changes to the current legal and policy regime motivated both by civil liberties and security-based concerns.

 

Quick Knee Jerk List of Pros/Cons on Government's new national security Green Paper

So, it's the first week of the new semester. No. time. to. write. But on a first read of the government’s national security Green Paper, released today:

Pros: 1. It exists (mean this honestly, not cynically -- we've never actually had such a thing in this area before as best I can recall); 2. It has decent (though not perfect) scope. For instance, pleased we are at least discussing lawful access. Very pleased we are discussing intelligence to evidence (although I find some of the hypotheticals implausible and rather slanted to government perspectives); 3. It provides more explanation of C-51 changes than we ever had during the 2015 debate. 4. A lot of hard work probably went into it and there are parts that are quite good.

Cons: 1. The government is doubling-down on some problematic and novel legal theories advanced by the last government (e.g., averting to CSIS threat reduction warrants as if were a variant of search warrants – apples and orange comparison). 2. Inserting an even more aggressive view on the power of the information sharing law than offered during enactment (e.g., the idea that the information sharing act constitutes an exception to -- and, in effect trumps -- the Privacy Act.  Very hard to see how that is, given the language of s.5). 3. Sugar-coating some powers to make them seem benign, by understating their reach (e.g., the speech offence; the examples of CSIS powers).  Put another way, the law may allow the government to drive 200 km/h on the wrong side of the road, but the Green Paper offers discussion of the government choosing to drive at a sensible 90 km/h in the correct lane; 4. Similarly, offering policy construals of some of Bill C-51’s doubtful language that diminishes exactly how contorted some of the actual legal provisions are (and policy comes and goes with governments); 4. Some serious omissions (for instance, whither discussion of Communications Security Establishment collection of Canadian private communication and metadata under Mandate A and B? Has the campaign promise to address CSE activities evaporated?  Why no clear question on whether the existing expert review bodies should be recrafted as a single entity?)

Worries: The discussion paper reflects positions that are “baked in” at the bureaucratic level that will be unmoveable via a consultation. My hopes: this will be a real chance to get it right, including avoiding a number of false security/rights clashes created by C-51 that are unnecessary to accomplish the stated security objective.

Comparative Thinking on National Security Lawyering

I am part way through Charlie Savage's so-far very interesting new book, Power Wars: Inside Obama's Power 9/11 Presidency.  I was struck by a particular passage in chapter 1, woven into the blow-by-blow narrative.  It concerns the role of lawyers in national security decision-making in the United States.  My personal sense is that these observations cross the border, and are true in Canada as well (although perhaps not to the same degree, because Canada has not tested the bounds of conventional understandings of international and constitutional law quite as aggressively as has occurred in the United States):

As the government has grappled with one terrorist crisis after another since 9/11, tremendous power and pressure have descended on the executive-branch lawyers charged with handling national security issues.  Remarkably few of these attorneys ... came up professionally as trained specialists in national security law.  Law schools barely taught the subject before 9/11, and its substance has evolved rapidly since then. ... Interpreting and applying law to such turbulent and rapidly changing conditions [stemming from changes in the threat environment and new technologies] has created an unending series of novel dilemmas.  Often, even identifying what the legal rule is is subject to a range of viewpoints, and there is little prospect that a court will ever definitively resolve the question because it is very difficult for anyone to establish the legal standing to file a lawsuit about it.

This passage affirms three positions I have adopted, more through happenstance than truly prescient design. 

First, the situation this passage describes is one reason why I believe vigorously in the need for national security lawyers to reach into the law schools, preferably in a manner that allows dialogue between government insiders and outsiders. Co-teaching my uOttawa national security law course with Public Safety lawyer Michael Duffy has been particularly rewarding for me, and our students.

Second, I believe the law schools must ensure the development of non-governmental expertise in this area of the law -- I teach and write in large measure with this objective in mind.  And I am very keen to cultivate interest in the area among other colleagues -- I will happily share information on my course, and provide whatever assistance I can to colleagues at other Canadian law schools contemplating a national security law course.  So far, they are very rare.  Kent Roach teaches his anti-terrorism courses at Toronto.  Ron Atkey has taught a national security law course at Osgoode and Western.  Michael Duffy and I teach at uOttawa.  And then I run out of courses of which I am aware.  (Please let me know if there are more).

Third, the points made in the Savage passage also go a long way to explaining why I believe strongly that Canada should adopt a UK/Australian-style Independent Monitor on National Security Law, as part of a larger overhaul of national security accountability described in this paper and our book.  Government lawyers should not have a monopoly on defining the legal questions, offering advice on those questions, and then having their opinions protected behind a secrecy wall, all but guaranteeing that they will never be known or challenged.  Groupthink can afflict the best of us, and (as painful as it can be) I have come to relish the chance to throw my conclusions and opinions into the maw of debate. That process works -- opinions come out better. 

Government lawyers should take comfort in the idea of an Independent Monitor probing Canada's national security laws, for exactly the same reason.

And as an addendum, I'd add the need for this "mixing it up" function is more acute in Canada than in the United States, where there is a tradition of revolving door between government and non-government service.  In Canada, that is close to unknown, and we live in silos.

Capstone comments on security for 2015 election

In February, I departed from the usual mission of this blog to write personal reflections on the challenges presented by bill C-51 and my role as a law professor in addressing those questions.  A lot has happened since then, as followers of this blog and www.antiterrorlaw.ca know.

Now, as voting day looms, a number of things have happened prompting me to craft a further reflection, with apologies to those who read this blog for other purposes.  There may be those who regard what follows as a partisan statement.  But a partisan is someone who prefers (or dismisses) policies based on which party those ideas come from.  In comparison, my political preferences are determined by the merits of the policies advanced by a party. 

I have decided to write this blog for three reasons.

First, last week an upper year Muslim law student reported reluctance reading in public places my (and Kent Roach's) new book, False Security: The Radicalization of Anti-terrorism, because it included "terrorism" in the title, and that student was concerned about the reaction.  That student's comments reflect a now common pattern of reports and anxiety about animus directed at Muslim Canadians.  Concern about this pattern is now so acute that a very experienced lawyer whose judgment I trust immensely has urged the need for academics and others to speak out more vigorously in defence of tolerance.  Even in the old Ottawa neighbourhood I grew up in, I have heard reports of hateful conduct towards Muslim Canadians.  (Different but similar reports are described here.)

There comes a time when a muted response to unreasonable conduct becomes itself unreasonable.

I shall be blunt.  I believe, like others, that the Conservative Party of Canada's conduct since the introduction of bill C-51 (and in particular during this election campaign) has been detrimental to tolerance and to security.  I find instructive and cogent the views of former CSIS analyst Phil Gurski: "If the Conservatives are returned to power on October 19 they face a Sisyphean task of undoing the damage they have done with Muslim Canadians.  It is not impossible, but it will take time.  Trust is hard to achieve and easy to lose. For a party that bills itself as the best guardians of national security, it is ironic that under its mandate we have become less safe in a way."  (I await Mr Gurski's new book on counter violence extremism with much anticipation).

Second, with Kent Roach, I have spent hundreds and hundreds of hours researching, analyzing, assessing and examining the current government's record on anti-terrorism, especially in relation to law-making.  There is some possibility that Kent and I have now spent more time on anti-terrorism law -- and C-51 in particular -- than any other single person in the country. 

The only conclusion I can form from that labour is that this current governing party is disinterested in rights and either grossly ill-informed or simply inept in security.  False Security did not set out to be an indictment, and we did not write it to fit the title.  The indictment wrote itself, and the title followed naturally. The Harper government's overall record, its year's long staggering indifference to curing real security problems and its bullheaded charting of false solutions to still other problems in 2015, its apparent unwillingness to listen to basically anyone outside of a myopic inner circle, its stark unwillingness to appreciate the strategic implications of its constant recourse to short-term counterproductive tactics, all convey a lack of maturity dangerous in a complicated society like that of Canada.

I waited to see what would appear in the Tory platform, hoping (as rumour suggested) that there would be a nod to enhancing the national security review accountability system in the manner recommended almost a decade ago by the Arar Commission.  I naively hoped there would finally be recognition that we need to move on the recommendations of the Air India Commission. 

Instead, in that platform there is a promise for new criminal law in the form of a designated travel ban, an idea I actually support, if done properly (a big "if" as I suggest here). And the Tories promise a revamped treason law, as if the conduct it would cover isn't already criminalized in many different ways in the Criminal Code.

But in so promising, and in imagining that in their tenure they have crafted the most perfect policy in the most perfect world, the Conservatives have opted to be the party that is so enamoured with hammers that it sees every problem as a nail.  A government needs a full toolbox.  I hoped for some tangible realization that jailing and citizenship stripping, disrupting and alienating only gets you so far -- and indeed, can be counterproductive -- in a complicated anti-terrorism context.  Other than a nod to financing for more research, there was no real hint in the platform of any glimmer of understanding. And while I am all for more research, it is meaningless without a government willing to listen to it.

Third, I am distressed by what I have learned through access to information documents and quiet discussions about the inner workings of executive government under the Conservatives.  I do not wish to exaggerate.  I do not think the civil service is broken.  But there are key units in the security area that seem dangerously impaired.

In this election, I gave money to candidates from each party, supporting individuals who I believe were and could be excellent MPs, guided by personal friendship and by the innovative approach of GreenPAC.  But the fact is: if I were a single issue voter whose only concern in the world was security, even then -- especially then -- I could not cast a vote for the Conservative Party.

Because whatever their flaws (and there are flaws) and despite being encumbered by a status of opposition parties without access to the resources of government, the anti-terror aspects of the opposition party platforms show more real promise -- and a closer grounding in reality.

I know that barbs have been traded between the NDP the Liberals over bill C-51 and whether it should be amended or repealed.  Our work seems sometimes to have been deployed in that dispute -- not something I wished or anticipated when we set out to dissect C-51. 

It is time to move past which party was most incapable of swaying an indifferent Conservative Party from its reckless course during the enactment of C-51.  This is an argument over which party had the noblest failure, faced with a government that was deaf to reason.

As best as I can tell, there has never been any doubt that both parties would reject C-51 in its present form.  And it has never been clear to me that much difference should exist between "amend" and "repeal", since the problems that C-51 tries to so ineptly cure (and indeed, often makes worse) are real problems that any government will need to fix.  As we have said repeatedly, this is not a "C-51 good, C-51 bad" conversation.  It is bad.  The question then becomes how to fix it, and go beyond it to address the accumulated backlog of ignored problems.

In False Security, we offer our views in 600 pages or less.  But we are just two voices grappling with immense complexity, and the last thing we need is a repeat of the Harper government hubris in thinking a shambling, omnibus Frankenstein law can emerge in perfect form from the deep recesses of a handful of idiosyncratic minds -- ours or anyone else's. 

In all the opposition platforms, with their various pledges, there is much to work with.

But I will take special heart from the statement in the Liberal platform, promising amendments to C-51 and pledging that "as this legislation is tabled in Parliament, we will launch broad public consultations, to engage and seek the input of Canadians and subject-matter experts."  Readers may scoff that I single-out a process promise.  And I certainly do not believe good process always guarantees good outcomes.  But it is certainly a prerequisite to them.  C-51 is "exhibit A" to what happens with the failure of rational process.

And so my analysis, and ultimately my faith in this promise, shall guide my political preferences in this election, in the earnest hope that False Security will have a short shelf life. 

 

 

 

 

On Polemics and Substance in Bill C-51 Antiterrorism Act

In another departure for this blog, I am adding a somewhat personalized commentary.

I am a mild-mannered middle aged law professor, not habituated to the world of high politics and sustained media involvement.  In dealing with Bill C-51, I have learned a lot over the last few weeks about both the media world and the world of politics.  In due course, I shall reflect on this in my blog on legal academia, Bleaching Law.

Here though, I pause over the feature in today's Ottawa Citizen that has a distressingly huge photo of me and a discussion in which I figure (disproportionately) as signalling significant concerns with Bill C-51, using what will be greeted by some as strong language.  To be clear: I do not, in fact, think that what is at issue is impunity.  Nor do I, as others have suggested, believe we are on the cusp of a "secret police". 

But I do think the changes represent a radical rupture with what has gone before.  I believe these changes will have foreseeable negative second order impacts.  I suspect there will also be unforeseeable second order impacts.  I do think that in some of their very key elements, they do "do violence" to well established norms and expectations of law, rejecting the insights of the past, implicating novel concepts of the role of the courts and the scope of the Charter, and by embarking on a new, untested course, without attention to sufficent safeguards (including, but not restricted, to an amped up security review system).

Having witnessed the patterns of the past, I confess to deep concern about this debate becoming about "experts and who they are" and not about (simply) the merits (or not) of the positions they take.  And I may be provoking that development by being so pointed. 

So to be clear: I lay no claim to some sort of omniscient expertise, and am not inclined (to use the Prime Minister's term) to "self-appoint" myself an expert.  I am simply someone who has spent the better part of the last 12 years steadily working my way though national security law, and along the way done teaching and writing in the area.  The focus on this area is idiosyncratic for a law professor. There is a reason that Professor Kent Roach (uToronto) and have been so active on this matter -- our areas of focus cross many traditional law school "silos" and over the years we have been forced to expand our range in a manner that allows us to look at this kind of bill with reasonable comfort. 

(If you wonder who we are, legal academics are among the most transparent people on the planet.  You will find our cvs on line, many of our publications, our teaching responsibilties and even some of our courses.  If you want, you can even look at the Ontario disclosure database and find out how much we are paid for our academic posts.)

I can say though that in the usual "not for attribution" way, that we are not so lonely in our concerns.  That said, there are others whose expertise and opinion we respect who do not, and will not, agree with us. 

Media coverage often focuses on the critique and the conclusions, and not always the full reasons.  That is the nature of limited column inches and time constraints.  If my conclusions in the media are expressed in language that seems strong, all I can offer to do is to thoroughly air the reasons for those strongly held assessments.  Readers like you can then evaluate the merits of my conclusion.  One of the potential tragedies of the current political environment is that readers will be in no position to evaluate the reasons of those who disagree with us, at least where they are based on grounds more compelling than political positioning.

And so those with no power offer as fulsome explanations as they can for their concerns, while those with power need not justify their rationale, or even acknowledge or respond.

Unlike in the UK or Australia, Canada has no arm's length, independent and resourced individual (and privy to secret information) empowered to critique government anti-terror law propsals.

And so we are the poor alternative.  We shall continue to post our detailed legal assessments with all the dispatch people with many other commitments can -- dealing with the complexities of just the five lines of text in the new speech offence required a sustained effort and 10,000 words.  You will find that on www.antiterrorlaw.ca.  The CSIS amendments, their potential second order impacts, and the like will take even more time and space.  I have already posted a digest of our initial concerns -- a hypothesis that we shall test thoroughly in our detailed analysis.  Our analysis, when ready, will also be posted on www.antiterrorlaw.ca

Along the way, if our understanding of the facts change, our opinions shall change.  Personally, I would dearly love to be persuaded that all is right in the most perfect of worlds, and that I can focus on my now delayed book on international law history.  Until then, however, it is my obligation as an academic who need not account to any client or take instruction in response to any master to continue raising (reasonably, but also forceably, and in any venue that will take me) concerns with the preoccupying changes to our law at issue in Bill C-51.

I apologize for contaminating this feed with such introspective reflections.

 

Bill C-13: Does the Trojan Horse Contain Lawful Access Gifts, or Just Greek Hoplites

Yesterday, the government tabled Bill C-13, Protecting Canadians from Online Crime Act.  Notwithstanding this quite generic short-title, the public seems to have dubbed the law project "the cyber bullying bill".  And indeed this is exactly how the government has explained and promoted it.

But I am writing about this bill here, in a blog on national security law, not because of its cyberbullying aspects but because it has a lot of interesting lawful access provisions. For this reason, critics have called it a Trojan Horse; that is: a nice gift on the outside, but full of attackers waiting in ambush.

As the now venerable (but still very relevant) 2002 government consultation paper on the topic defines it, "lawful access" "consists of the interception of communications and search and seizure of information carried out pursuant to legal authority as provided in the Criminal Code, the Canadian Security Intelligence Service Act, and other Acts of Parliament such as the Competition Act."

In the national security area, lawful access involves, principally:

  1. judicial warrants for intercepting "private communications" under Part VI of the Criminal Code (intercept warrants);
  2. judicial warrants for searches and seizures under Part XV of the Criminal Code (regular search warrants);
  3. judicial warrants for access to "information, record[s], document[s] or thing[s]" under Part II of the CSIS Act (CSIS warrants);
  4. ministerial authorizations permitting inadvertent interception of private communications by CSEC as part of its foreign intelligence mandate under Part V.1 of the National Defence Act (CSEC authorizations).

The Trouble with Warrants

I commend to you Steven Penney's comprehensive article on surveillance law.  But let me summarize briefly my own observations: Part VI of the Criminal Code creaks with age.  It is a product of the 1970s, though obviously updated regularly since then.  In 2002, the government consultation document noted the following:

The requirements for intercepting a "private communication" are more onerous than those required to obtain a search warrant to seize documents or record. ...  Part VI of the Criminal Code, defines the expression "private communication" to cover any oral communication, or any telecommunication made under circumstances creating a reasonable expectation of privacy.  This appears to suggest that, once a communication is put in writing, it can no longer be considered a "private communication" for the purpose of the interception of communications provisions of the Criminal Code. ... However, some cases dealing with e-mails in Canada have taken the position that they are to be considered "private communications." ...

These decisions, along with the definition of "private communication," create some confusion as to whether an e-mail should be seized or intercepted.  The problem stems from how this "store and forward" technology works. It is in fact possible to access an e-mail in various places or at various stages of the communication or delivery process using various techniques.  ... The way e-mail messages are transmitted, the relationship between the transmission and/or reception of the message, and the interplay between the sender and the recipient would appear to be covered by the current definition of the term "intercept" in the Criminal Code.

Two stages are more problematic:

  • while e-mail is stored at the sender's ISP
  • while e-mail is stored at the recipient's ISP

The acquisition of e-mails under these circumstances can on occasion be at the same time as the transmission of those e-mails, but it may also be delayed.  Additionally, e-mails may be stored for long periods (weeks or months) before they are opened by the recipient.  The simultaneous transmission and acquisition of the content of an e-mail could be similar to an "interception" under Part VI the Criminal Code.  However, the acquisition of those contents when they are stored could also be considered a "seizure" under Part XV of the Criminal Code.

In other words, email may be either an intercept (and governed by Part VI depending on how earnestly you focus on "oral" in the definition of "private communication) or a seizure, subject to regular search warrant requirements.  It really depends how long you wait.  See, for instance, R. v. Bahr, 2006 ABPC 360.  This is surely not a sensible system and it calls out for clarification.

In essence, this is the issue addressed in a small way by the Supreme Court this year in R. v. Telus, 2013 SCC 16.  That case considered whether text messages were subject to intercept through general search warrants in s.487.01 or under intercept warrants. 

Put simply, the Court's majority concluded that the more stringent intercept warrant requirements had to be followed.  In so concluding, they focused on aspects of text messaging that rendered it a form of "telecommunications".  Emails don't share all the technical qualities of text messages described by the Court, at least not always.  But it would seem the height of formalism to imagine that intercept warrants are required when you email through a mobile device using a cellular service but not when you use your home computer with a direct highspeed cable connection.  So a betting man might be inclined to the view that absent amendment, Part VI applies to emails and other forms of oral or non-oral electronic communications over an ISP.

The caveat is this: the case seemed to turn upon a peculiarity of s.487.01: that warrant power could only be used where there "is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done."  Absent that language, the outcome of the case could have been very different.  The police might have been able to choose to use s.487.01.  Maybe.

CSIS, meanwhile, has none of these troubles.  The CSIS Act is omnivorous, applying the same warrant standard to the seizure of all sorts of information, be they a thing or a communication.  So while the Mounties may have to sweat how to characterize an email for lawful access purposes, CSIS doesn't.  And CSIS gets to wiretap without all the heavy formalism of the Part VI Criminal Code requirements.  And that has been true since 1984.

In this respect, this is an opportune moment to list the ways in which a wiretap authorization differs from a regular warrant (an edited digest of the list provided by the Supreme Court in Telus):

  •  Part VI authorizations must indicate the identity of persons whose private communications will be intercepted, the place at which they are intercepted, and the manner of the interception.
  • Intercept warrants required to contain such conditions as the judge considers advisable and will only be valid for a limited period of time not to exceed 60 days (in most cases -- there are exceptions).
  • Intercept warrants must be supported by a written application by the Attorney General, Minister of Public Safety or a designated agent is required.
  • With intercept warrants, a judge must be satisfied that the authorization is in the best interests of the administration of justice and "that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures" (again, with exceptions). 
  • Part VI includes notice requirements. Among other things, notice must be given to targets of interceptions within a certain period (quite variable). And the government must produce an annual report with respect to the use of Part VI authorizations.

Now, it is important to note that to get any of these types of warrants (so all of those lawful access powers discussed above, except the ministerial authorization for CSEC), the agency in question needs to appear in front a judge and satisfy a reasonable and probable grounds to believe standard. 

So, as an Ontario Superior Court judge recently observed in relation to an intercept warrant: "In order for the first part of that test [to issue a warrant] to pass muster under s. 8 of the Charter, it has been interpreted as importing the same legal requirements as for a  search warrant - i.e. there must be reasonable and probable grounds for believing that a specified crime has been or is being committed and that the interception of private communications will afford evidence of the crime" (R v. Durban, 2012 ONSC 6939 at para. 7). 

For CSIS, the magic language also appears in the more slender jurisprudence: "The judge is required to be satisfied, on reasonable and probable grounds established by sworn evidence, that a threat to the security of Canada exists and that a warrant is required to enable its investigation" (Atwal v. Canada, [1988] 1 F.C. 107 at para. 36).

(CSEC, when exercising its foreign intelligence mandate, is in a different universe, and that is why the relevant statutory provisions are now being challenged in court by the BC Civil Liberties Association).

The New Lawful Access

The world has changed, and now the hot topic isn't intercept of communications but intercept of metadata.  Here's a decent definition of metadata, from clause 20 of the new Bill C-13:

a) relates to the telecommunication functions of dialling, routing, addressing or signalling;

b) is transmitted to identify, activate or configure a device, including a computer program as defined in subsection 342.1(2), in order to establish or maintain access to a telecommunication service for the purpose of enabling a communication, or is generated during the creation, transmission or reception of a communication and identifies or purports to identify the type, direction, date, time, duration, size, origin, destination or termination of the communication; and

c) does not reveal the substance, meaning or purpose of the communication.

(A shout out to Steven Penney as I see that para (c) lines up with one of his recommendations in his article, noted above.)

It is, in a phrase, data-about-data, not about communication content.  Of course, as we all know, collect enough data-about-data and you can piece together a portrait of an individual more intimate than even that person's oral recitation of his or her biography in a wiretapped telephone call.

Now, for about eight years, the government has been trying to enact new rules for data-about-data intercepts, dating back to the Martin government.  Up to and including last year's abandoned Bill C-30, the government sought to introduce measures compelling ISPs to cough up metadata on government request, without judicial warrant.

In C-13, this effort is abandoned.  And so I said "hurrah" when I read it.  It seems an acknowledgement by the government that metadata does give rise to a reasonable expectation of privacy -- something increasingly evident.  And that has implications for all this ongoing discussion about what CSEC is doing with metadata and whether ministerial authorizations are enough when it inadvertently collects Canadian metadata.

And meanwhile, everyone else on the twittersphere and on the country's editorial boards seemed to see the bill as the latest reincarnation of Vic Toews. (That is, when they talked substance.  A lot were just offended by the Trojan Horse idea of bundling lawful access in with cyberbullying.  On this process issue, I guess I don't see why when you're trying to deal with a cyber crime you shouldn't also include long overdue updates to cyber investigative techniques in what is, actually, not that long a bill).

Electronic Content

But on substance: as I read the bill, computer communication content-rich data (as in email etc.) must be produced by the ISP pursuant to a warrant issued on a reasonable grounds to believe standard (which needs to be read as reasonable and probable grounds for constitutional reasons).  See clause 487.014.  This clause replicates the infrastructure of a regular search warrant (replacing the prior s.487.012) and not the more onerous Part VI requirements. 

It is worth a brief pause here.  An obvious question is whether the old s.487.012 and the new clase 487.014 carry much water, given the Supreme Court's Telus decision, noted above.  As I have suggested, it is only a skip and a jump from text message to other forms of electronic communication.  But there is that important wrinkle: Telus was very attentive to that provision of the warrant power there at issue -- s.487.01 -- that allowed it to be used only where some other warrant provision was inapplicable.  Absent that subordination provision, the outcome might have been different.  And proposed clause 487.014 does not have this same subordination language.  So that would suggest that the police may prefer it over Part VI, unless Part VI's extra special protection are a constitutional requirement (not an established conclusion).

Metadata

Meanwhile, under the bill, the ISP must provide metadata (or what the bill calls "transmission data") pursuant to a warrant issued by a judge on a reasonable grounds to suspect standard.  See, e.g., clause 487.016.

And so this begs the question: is reasonable grounds to suspect appropriate.  Because there is no doubt that up until now, if the state wished to search an ISP for computer (as opposed to telephone) metadata, it would do so under a conventional warrant (that is, one issued on a reasonable grounds to believe standard). (See current Criminal Code s.487.011).

The first point is that whatever "reasonable grounds to suspect" means, a judicial warrant issued under this threshold is way, way better than earlier proposals allowing warrantless access to metadata.  So the glass already is, in my view, half full. But is it full enough?

The reasonable suspicions standard is sprinkled through the criminal law in areas like drunk driving stops, production orders to financial institutions, tracking devices, telephone number tracking devices and use of sniffer dogs.  The Supreme Court said this about the concept in R. v. MacKenzie, 2013 SCC 50, a dog sniffing case: 
 

74   Reasonable suspicion means "reasonable grounds to suspect" as distinguished from "reasonable grounds to believe" (Kang-Brown, at paras. 21 and 25, per Binnie J., and at para. 164, per Deschamps J.). To the extent one speaks of a "reasonable belief" in the context of reasonable suspicion, it is a reasonable belief that an individual might be connected to a particular offence, as opposed to a reasonable belief that an individual is connected to the offence. As Karakatsanis J. observes in Chehil, the bottom line is that while both concepts must be grounded in objective facts that stand up to independent scrutiny, "reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime" (para. 27). ...

85     The reasonable and probable grounds standard is a more demanding standard than the reasonable suspicion standard. It follows inexorably from this that more innocent persons will be caught under a reasonable suspicion standard than under the reasonable and probable grounds standard. That is the logical consequence of the way these standards have been defined.

86     However unappealing that result may be, we should candidly acknowledge that it is the foundation on which Kang-Brown, A.M., and the other reasonable suspicion cases have been built. Indeed, Karakatsanis J. does just that in Chehil, explaining that the "factors that give rise to a reasonable suspicion may also support completely innocent explanations" because the "reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so" (para. 32 (emphasis in original)). We accept this cost to individual privacy as a reasonable one in part because properly conducted sniff searches are "minimally intrusive, narrowly targeted, and highly accurate" (Chehil, at para. 28). In short, we have judged the trade-off between privacy and security to be acceptable.

And so is collection of metadata minimally intrusive, narrowly targeted and highly accurate?   And is there reason to conclude that metadata collection from ISPs is more suspect and intrusive than telephone number recorders and tracking devices?  The courts have been all over the map on whether reasonable grounds to suspect is constitutional for the latter types of searches, although the Supreme Court's continued enthusiasm for the concept in other contexts may hint that the high court see reasonable grounds to suspect as a growth industry.

For my part, it is not clear to me that the metadata provision in C-13 is any different really than these sorts of searches. Is it more intrusive than a dog sniff search?  Is it more inaccurate?  I don't really know. But I am having trouble saying "yes".  Surely, metadata is capable of being more sweeping in what it reveals about us because electronic fingerprints go far, wide and last a long time. But sweep is something dealt with by the judge in setting out the scope of the warrant.  Whether the standard is believe or suspicion, I do not think either translates into "fishing expedition through you entire electronic archaeology". 

So in sum: I accept that I may be completely wrong about all of this.  But I am having some difficulty objecting to at least those provisions of C-13 discussed in this very long blog post.  I was not at all happy about warrantless access in prior bills.  But I am quite content with the half-full glass of a judicial warrant.  "Believe" vs. "suspicion" weighs less heavily in my concerns.

One final point, though.  If this is enacted, CSIS and Criminal Code warrants for metadata would now be on a different footing.  Before, CSIS had the cleaner system: one type of warrant application.  No worries about Part VI.  Now, though, the cops would have access to a warrant system that gets them metadata on the lower reasonable grounds to suspect standard.  If it sought the same data, CSIS would need to meet the reasonable grounds to believe expectation.  Whether this matters much in terms of affecting the complex information sharing arrangements between the agencies is hard to predict.  Maybe it will.  It wouldn't surprise me.  But it's not like we'll ever know.

So the C-13 "cyberbullying" bill may be a Trojan Horse. But it surely is better on lawful access than earlier bills tabled over the last eight years.  And so I don't believe in looking the gift horse in the mouth, even while always being wary of Greeks bearing gifts.

A Tale of Two Evil Men: More Droning on Targeted Killing

Cross-referencing: NSL ch. 6 & General Commentary

I recently received a call from a US reporter writing a story on Mary Ellen O'Connell, one of the most prominent US legal academics who has persisted in questioning the legality of the US policy of targeted killing.  The reporter wished to gauge the views of non-US international lawyers on this topic.  I cannot speak for that larger community, but I can speak for myself.

I doubt the legality of this policy, at least outside of the context of conventionally understood armed conflicts.  I have blogged before on my concerns, and shall do so again.  But this time I shall explore the topic with reference to two Evil Men Who Deserved to Die (EMDOD).

The two EMDODs in question are Adolph Eichmann and Osama bin Laden.  Both were killed by the state whose citizens were victimized by their acts.  By the standards of any era, both were evil.  And because of the manner in which they expressed that evil, I agree that they deserved their ultimate fate (whatever my views on the death penalty).

But from this point forward there is a difference.  Adolph Eichmann was rendered (snatched and removed from Argentina to Israel), and then tried and executed by judicial order.  Osama bin Laden was executed by executive fiat.  To be fair, the facts in relation to bin Laden are contested.  Was he armed, did he resist?  Were there actually capture orders?  Recent reporting suggests that President Obama wanted him tried.  But those same accounts are also fuzzy about what the special forces unit involved in the event was expected to do.

The Lex Specialis of Killing

Let us assume, however, that bin Laden is in fact a representative of that class of persons who has been targeted for killing and his death was not the result of an extraction rendition that went sideways. If I am wrong about this, then we could just insert the names of some other EMDOD in lieu of bin Laden -- there are all sorts who have been on the receiving end of a drone missile.  

I am not aware of any argument advancing the view that an outright execution of Eichmann by the "volunteers" who snatched him from the street of Buenos Aires would have been legal.  The snatching itself was illegal of course -- and Argentina did voice its views on the violation of its sovereignty.  A killing would have been even more illegal -- a violation of sovereignty and an extrajudicial execution.  (To be fair, the Eichmann case predates the full development of international human rights law, so there is an anachronistic aspect to this last assertion).

Osama bin Laden was killed long after the concept of extrajudicial execution received full treatment in human rights law.  And we needn't rehearse convoluted arguments about the extraterritorial reach of this ban.  I have discussed this elsewhere, and I am content that the views of the UN Human Rights Committee represent the proper and only sensible approach to the question.  That is, "it would be unconscionable to so interpret the responsibility under article 2 of the Covenant [on Civil and Political Rights] as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory".  Sergio Euben Lopez Burgos v. Uruguay, Communication No. R.12/52, U.N. Doc. Supp. No. 40 (A/36/40) at para. 12.3. 

(I know there could be a protracted argument about whether the effective control concept now associated with the extraterritorial reach of the Covenant applies when someone is shot from a distance.  It is hard to envisage, however, the success of arguments advancing a version of the law that limits what a state does once it grabs someone but permits them to do whatever they wish if they do so from a distance.  That said, I acknowledge that exact and problematic distinction is one possible explanation for the confusing European Court of Human Rights jurisprudence under the equivalent rules of the European Convention on Human Rights).

So how is Eichmann different from Osama bin Laden?  Everything turns of whether human rights constitutes the basis for assessing the legality of the killing, as opposed to international humanitarian law (IHL).  The latter permits extrajudicial killings.  The former does not.  Whether IHL applies depends on whether there is an armed conflict -- in practice a non-international armed conflict between a state and a non-state actor (Al Qaeda).

The seemingly majority view in the United States is that there is, in fact, an armed conflict against Al Qaeda wherever it may be found.  I believe this to be a doubtful proposition that becomes even more doubtful with the passage of time.  

And on this point there is a doctrinal objection and a political objection.

When it Comes to Theatres is the World a Stage?

In terms of doctrine, we have a serious problem of round pegs and square holes.  The round peg is the measures taken in relation to 9/11 terrorism.  The square hole is conventional rules on non-international armed conflicts.  I outline these issues here.  But in summary, I subscribe to a Tadic style intensity requirement for non-international armed conflicts that serves as a on-off switch for the existence of such a conflict.  

I shall call my view "theatre specific" as opposed to the "theatre independent" approach preferred by many US commentators.  In my version, non-international armed conflicts between a state and a non-state actor only exist in those geographic theatres in which violence reaches a protracted intensity requirement, per Tadic.  I think this is the only plausible approach when a non-state actor is as (increasingly) amorphous and intangible as Al Qaeda.  The latter is now more movement than formal entity.

To be fair, there are defences of the "theatre independent" view.   The clearest and quite compelling vision of it that I have encountered is Professor Michael Lewis's "Drones and the Boundaries of the Battlefield".  Professor Lewis critiques a theatre specific definition of non-international armed conflict: "By limiting IHL to territory on which the threshold of violence for an armed conflict is currently occurring [in keeping with the Tadic test], [the theatre specific view of] IHL would effectively create sanctuaries for terrorist organizations in any state not currently involved in a domestic insurgency in which law enforcement is known to be ineffective" (at text around footnote 91).  Professor Lewis instead proposes that the existence of an armed confict, and thus the applicability of IHL, should depend on the overall level of violence between the state and non-state actor, pooled regardless of geography.  The result, of course, is the theatre independent approach to non-international armed conflict, leavened in Professor Lewis's analysis by a recourse to a neutrality style law.  That is, states harbouring the non-state actor would be the locus for use of force unless they declined to cure the problem themselves.

Professor Lewis's argument is creative -- it offers a legal argument and not simply an invocation of expendiency to justify the theatre independent view.  But I think that on simply doctrinal terms, the Tadic view has the upper hand. That is, there is more clear law here.

That, of course, is no real answer.  (In international law, it seems that doctrine is the last refuge when all else fails.)  The real answer to Professor Lewis's concern about sanctuaries is that the theatre specific view does not create sanctuaries.  It creates a test for assessing which rules of law apply.  The zone in which lethal force cannot be used is the one in which there is no armed conflict.  To equate that to a sanctuary supposes that the only tool available in the arsenal is a hammer.  And yet, a hammer was not the tool used by the Israeli "volunteers" to bring Eichmann to justice. 

That might a trite comparison, since Eichmann was an old man in quasi-hiding, not (or at least no longer) the member of an organized group able to resist with violence.  That said, it is also overbroad to imagine that every terrorist is different from Eichmann.  Take Osama bin Laden, when he was killed.  He was a lot more like Eichmann than like a para-military chieftain protected by hard military power.

All of this is to say that the logic of "theatre specific approach = no use of lethal force = impunity for terrorists in havens" is not clear cut.  Since this logic is the defining justification for letting people be killed by military force (in large number and often not the right ones), surely we should expect it to be watertight.

More than that, it is entirely unclear how one tabulates the violence attributed to Al Qaeda per the Lewis approach to consider whether a global conflict exists.  Bombings in Madrid, London, Bali and elsewhere, spaced in time and conducted by an array of terrorists, including "home grown".  To be included in the calculus, would these have to be commanded and controlled by Al Qaeda Central?  Would you include copycats and ideological fellow-travellers?  If so, suddenly your non-international armed conflict is a global armed conflict against an idea, and the drones are launched in a game of shadow boxing.

Blowback 2.0

More generally, in terms of politics, the risk presented by lowered thresholds on the use of armed force is extreme.  We are confronted with legal arguments marshalled to support to actions of the goose that would be more universally troubling if applied to the gander: prospective Russian drone attacks on Chechen terrorists in border states; Chinese targeted killings of Uyghur "splittists"; Indian commando attacks in Pakistan against Kashmir militants.  Or, to use a more actual, historical example: apartheid South Africa assassinations of ANC fighters in frontline states.  These are not just implausible hypotheticals.  Iran is apparently developing its own drones.  Surely it is better to gird your law firmly when the technology it should govern proliferates like weeds.

Poll most people in my neigbourhood and I suspect the "ick" factor of targeted killing goes up when you change the person launching the attack from "Obama administration" to any of the above players.

More generally and more critically, anything that opens the door wider to legitimate state use of violence will, with the passage of time, cause a blowback that hurts international stability (among other values).  Put another way, legal expediency that facilitates hard power solutions to complicated, endemic problems bites back.  Great powers can often skate above the repercussions of their acts, until they can't anymore.  And then, they, like the rest of us, benefit from rules that stay the hand of vengeance in the interest of collective security.

All of this is to say that Osama bin Laden and his confreres killed in drone attacks (and by whatever other means) in theatres removed from actual zones of conflict may have been EMDOD.  But I do not believe the international community deserves the long term implications of the legal arguments advanced to justify their killings.  

And so bravo to Mary Ellen O'Connell for her vocal dissent.  For those more inclined to find international law justifications for the killing of EMDOD, be wary of what you have wrought.  The extra-judicial executions of evil men makes for bad law.

Vic Toews, Kant and Mill: Torture Again

Back in the news: The question of how in-bound intelligence information that may be the product of torture by a foreign intelligence service may be used.  At issue is a ministerial directive by Public Safety Minister Vic Toews which reads, in part:

I wish to reiterate my direction to the Service, as expressed to you verbally following my appointment as Minister of Public Safety, regarding the handling of intelligence received from or given to foreign agencies. This letter expands on the guidance contained in the Ministerial Direction to CSIS on "Information Sharing with Foreign Agencies" of 14 May 2009, which states that CSIS must not knowingly rely upon information which is derived from torture, and have in place reasonable and appropriate measures to identify information that is likely to have been derived from the use of torture.

In exceptional circumstances where there exists a threat to human life or public safety, urgent operational imperatives may require CSIS to discharge its responsibility to share the most complete information available at the time with relevant authorities, including information based on intelligence provided by foreign agencies that may have been derived from the use of torture or mistreatment. In such rare circumstances, it is understood that it may not always be possible to determine how a froreign agency obtained the information that may be relevant to addressing a threat. It is also understood that ignoring such information solely because of its source would represent an unacceptable risk to public safety.

Therefore, in situations where a serious risk to public safety exists, and where lives may be at stake, I expect and thus direct CSIS to make the protection of life and property its overriding priority, and share the necessary information - properly described and qualified - with appropriate authorities. The final decision to investigate and analyze information that may have been obtained via methods condemned by the Government of Canada is to be made by the CSIS Director, or the Deputy Director Operations; this decision shall be made only in accordance with Canada's legal obligations. Consistent with the 2008 Ministerial Direction to CSIS on "Operations." I further expect to be notified of any such decision as appropriate.

The directive was obtained by one of the best reporters on the national security beat, Jim Bronskill.  The minister's note has provoked outrage and consternation among opposition parties and the human rights community.  Because I never learn, I have tried to inject a voice of caution in too sweeping and absolute a condemnation of the policy (with the usual consequences in terms of my email inbox).

In so doing, I am guided by a) the actual law on this issue (as opposed to norm entrepreneurship), b) the Ottawa Principles on Human Rights and Antiterrorism (a document drafted by a host of persons, including those with indisputable human rights pedigrees) and c) the logic laid out in prior posts such as this one.  And to be clear, we are not talking here about Canada aiding and abetting, inducing or facilitating torture -- the discussion is about passive consumption.

I won't repeat my analysis and readers may refer to the above-noted post and to art. 4.3.2 of Ottawa Principles on Anti-terrorism and Human Rights (far from an absolutist ban on acting on tips derived from torture).

Instead, I will simply propose a variant of the same question that I pose to my students in my national security law class every year.  (And in using this hypothetical, I don't mean to imply that events even close to these actually took place in the Air India case or to impugn or disrespect anyone touched by that tragedy.  I use the real life context to make the point that there are dangerous people in this world that would do us harm.)

On June 22, 1985, while working at CSIS, you receive a telex from a liaison with the Indian police that, summarized to its essence, reads: "We have a member of a Sikh militant group in our custody and we've given him our usual treatment and he's told us there is a bomb in the baggage of Air India Flight 182, scheduled for departure soon from Vancouver".  You know and are right that torture is practiced by the Indian police of the era and that the "usual treatment" in this missive is a euphemism for torture.

Question: Do you tip off the RCMP and airport security officials to search the baggage for Air India Flight 182 again?

There is no law that governs this situation, domestic or international (and no, Art. 15 of the Torture Convention simply does not reach this far).

If you answer "no", then like Immanuel Kant, you believe in absolutes and walk with the angels.  That certainty should fortify your conscience.  But the fact is that 329 people die when the bomb explodes over the Atlantic near Ireland.  And laws are likely tightened and new security powers created in response, and civil liberties diminished.  But at least you did not create a "marketplace" for tortured information by using it in any way.  You acted on the (pious) hope that by ignoring the Indian police tip off, the next time torturers somewhere decide whether they will torture, they will stay their hand, because the Canadians don't torture and they will ignore torture information.  Because the torturer cares about all this, after all.

If you answer "yes", then you are like me and the vast majority of law student in every class to whom I have posed this dilemma (there are always a few who like Kant).  You are unprepared to cry "let justice be done and the world perish". Or more specifically, you are unwilling to gamble someone else's life for your absolute principles.  You grew up reading John Stuart Mill, not Kant.  (Yes, I know, I'm dumbing down both Mill and Kant for effect).  You "use" tortured evidence in these "exceptional circumstances", where "a serious risk to public safety exists, and where lives may be at stake" (to cite to the ministerial directive).  You advise that the baggage be searched.  You violate no laws in doing so.  And maybe it makes a difference.

There are inevitable counterarguments.  First, torture intelligence is unreliable.  It certainly is, generally.  There's a whole literature on this point, as discussed in part in NSL, ch. 15.  And that unreliability is hugely problematic if on the basis of a tortured tip, huge swathes of resources are poured into chasing false leads.  But we needn't always follow that slippery slope.  Redoing a search of baggage on Flight 182 doesn't fall into this category of "resource intensive".

Second, critics contend that the "ticking time bomb" type scenarios of the sort I paint above don't happen.  And they are probably mostly right when we talk about the sort of extreme ticking time bomb scenarios portrayed in TV shows like "24" -- instances of extreme urgency where Jack Bauer is led inexorably by piled implausibility upon implausibility to shoot someone in the knee cap.  But the reality is that sometimes tainted information does point to actual peril.  Yuval Ginbar worked (and maybe still works) for Amnesty International and he wrote Why Not Torture Terrorists? Moral, Practical, and Legal Aspects of the “Ticking Time Bomb” Justification for Torture  (Oxford University Press, 2008).  He is strongly opposed to torture -- that is what is book it about. But he acknowledges (however briefly) empirical evidence of cases that appear to satisfy the ticking time bomb’s premises. 

All of this is to say that the conversation about what to do with tips from torturing states should not be about "never".  Instead, it should be about what the "extraordinary circumstances" are that Minister Toews speaks about, and what then can be done with the information.  "Yes" to a search of Flight 182's baggage.  "No" to deporting someone on the strength of problematic information.  Where to draw the line?  In essence, that is the dilemma with which the Ottawa Principles try to grapple.

As for Minister Toew's directive: Where I fault the directive is in its lack of precision: what does it mean by extraordinary circumstances, and what then can happen to the information.  Where can it creep?  A little Ottawa Principles-like language would be preferred. 

But more generally, to this point, CSIS policies have made earnest (and unrealistic and unfulfilled) promises about non-use of doubtful intelligence.  Toews's directive no longer leaves it in the hands of the person on the end of the telex in 1985 to decide "what do I do".  It no longer expects CSIS to protect us and wear the consequences of both doing and failing to doing so when the telex comes through.  Put another way, Minister Toews' directive is politically courageous, in the manner intended by Sir Humphrey Appleby in "Yes Minister".  He takes political responsibility for the difficult dilemma.  I doubt Minister Toews numbers me among his fan club.  But I find it difficult to fault him for tackling this issue.


Criminalizing glorification of terrorism: Bad idea on stilts

NSL, ch.7; general commentary

[See end of post for developments on this issue in October 2014]

The National Post reported Wednesday that the "federal government is considering additions to the Anti-Terrorism Act that would outlaw glorifying terrorism and attending a terrorist training camp".  The glorification idea, in particular, is a solution in search of a problem.  In fact, it is a solution in search of years of protracted constitutional litigation.  If it had merit, that might be tolerable.  But it has none.  Let me explain.

Tony Blair's Long Shadow

Glorification of terrorism is a crime in the United Kingdom -- one of several surprising aspects of the post-9/11 UK anti-terrorism legal renovation.  It is actually an offence of "encouragement of terrorism", of which glorification is an example (s.1).  So in the UK scheme, a "statement" is illegal where it is likely to be understood by some portion of the public as a direct or indirect encouragement or inducement to terrorism.  The statements deemed to have this effect include every statement that "glorifies the commission or preparation (whether in the past, in the future or generally) or such acts or offences" and "from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances."  "Glorification" includes "any form of praise or celebration" (s.20).

It does not matter if anything in the statement actually relates to terrorist acts or whether, in fact, any person is in fact encouraged or induced by the statement to do a terrorist act (s.1). 

Tony Blair fought off resistance from his own caucus opposing these measures, and the new crime was enacted in 2006 to deal, it was urged, with militant preachers and terrorist sympathizers.

The British also became international proselytizers for the new concept and engineered UN Security Council Resolution 1624 (2005).  In the preamble to latter, the Security Council condemns "in the strongest terms of the incitement of terrorist acts" and repudiates "justification or glorification...of terrorist acts that may incite further terrorist acts".  In its operative paragraphs, the Security Council "calls upon" states to "prohibit by law incitement to commit a terrorist act or acts" and "prevent such conduct". More on this resolution below.

All this looked tremendously exciting to the House of Commons Sub-Committee on National Security and Public Safety, which in 2007 recommended

that the Criminal Code be amended to make it an offence to glorify terrorist activity for the purpose of emulation. Any such amendment should require the consent of the provincial attorney general to a prosecution, require the prosecution to prove that the accused intended to encourage emulation by the glorification of terrorist activity, and make available to the accused special defences similar to those included in section 319(3) of the Code [hate crime provisions].

And then the idea seemed to go away.  Until now.  But like many bad ideas, it seems to have legs.  And so, let's see how well it stands on those legs.

Justification Based on Necessity: Failing Grade

On Wednesday, the government spokesperson defended that proposed idea as follows:

"Our government received a strong mandate from Canadians to continue making our streets and communities safer." "The proposed amendments to the Anti-terrorism Act will help us fulfill that commitment. While our government's actions have averted terrorist attacks, the threat of terrorism is still very real. We need to provide law enforcement and national security agencies with the means to anticipate and respond effectively to terrorism."

The first bit is the boilerplate the government uses to justify all its criminal law measures.  But let's take it at face value: we need it to make Canada safer and to give our security service tools to do so.

But even the most cursory look at Canada's criminal law shows that Canada in 2011 is not the United Kingdom on 2006.  In the UK, prior to the encouragement offence that included the reference to glorification, there were (as I understand it) relatively sparse incitement offences.  Tony Blair reached very far and trenched very deeply on free speech, but he did have a point.  There should be a crime of incitement.  What is left is to quibble over the details.

Canada in 2011 is very different. As I write in NSL:

Section 83.22 [of the Criminal Code] makes it an offence to knowingly instruct, “directly or indirectly, any person to carry out a terrorist activity, whether or not (a) the terrorist activity is actually carried out; (b) the accused instructs a particular person to carry out the terrorist activity; (c) the accused knows the identity of the person whom the accused instructs to carry out the terrorist activity; or (d) the person whom the accused instructs to carry out the terrorist activity knows that it is a terrorist activity.” Again, this provision would capture the remote leader of a terrorist group issuing a directive through a chain of terrorist cells to the ultimate perpetrator of a terrorist activity. Roach urges, however, that “general instructions to political or religious groups or the public at large to commit a terrorist activity could fall under this new offence.”[1]

Instructing is so broad it is basically an incitement offence.  Bad guys recruiting or communicating terrorist badness can be prosecuted. Tony Blair's radical preachers could almost certainly be prosecuted under this measure.  And if instructing doesn't cover it off, facilitation and counselling under the Criminal Code would.

So what gap would a Canadian glorification crime fill?  That would depend on its drafting, but a UK style offence could possibly capture a Tamil waving a Tamil Tiger flag and saying "Hurray for the brave fighters of the Tamil Tigers.  If we were only all so noble".  Or a member of the Muslim community carrying a placard reading "Celebrate the Magnificent 19 and may you join them in paradise", read as a celebration of the 9/11 hijackers.  Or an environmental activist praising the worthiness of tree spiking, or the sabotage of natural gas pipelines, or some such thing.

These are not popular things to say.  But should they be criminalized?  Would they make our "streets and communities safer"?  People do and have said them. Surely there should be some evidence that these statements cause harm before we make speech a crime.  I suppose we can always hope that such evidence will be duly marshalled, but some might say that this government applies a rather "post-factual" philosophy in the area of criminal law.  So the only thing we can say at present about criminalizing glorification is that it may permit the government to camouflage a dragnet: it will allow the government to prosecute sympathizers on the theory that when you're looking for a needle, maybe its better to put the whole haystack behind bars. We'll call that a North Korean approach to public safety.

Jonathan Kay makes cogent observations about how sweeping a loose concept of glorification could really be in his own condemnation of the idea.

Justification of "The Security Council made us do it": Wrong

The National Post article suggests that a new glorification crime "would also put Canada in compliance with a 2005 United Nations Security Council resolution that called on countries to 'prohibit by law incitement to commit terrorist acts' and to 'prevent such conduct.'"

The "Security Council made us do it" argument is a common refrain in anti-terrorism law.  Various Liberal ministers went before Commons committees in relation to the original Anti-terrorism Act in 2001 and urged that Security Council Resolution 1373 obliged the measures found in the Act.  That, of course, was only partially true.  We certainly needed to introduce terrorism financing crimes to meet the strictures of 1373.  In other respects, however, we were probably in compliance even before the Anti-terrorism Act.  And 1373 didn't say anything about enhanced secrecy provisions in the Canada Evidence Act, or amendments to the Security of Information Act, that were also part of the Anti-terrorism Act.  We can call all of that homegrown.

So what about this time?  As noted, Resolution 1624 calls upon states to criminalize incitement.  Looks impressive.  But oblige anyone who tells you that this language makes criminalization of incitement mandatory to take an international law primer.  Understanding whether a resolution is binding or not requires careful exegesis.  The Security Council calls upon states to do an awful lot.  When it does that, it is basically making recommendations.  When it wants to issue mandatory resolutions, pursuant to its UN Charter powers to do so, it uses different language ("declares" being the most notable).  Resolution 1624 does not oblige states to criminalize incitement.  If you don't believe me, well look at the UN Office on Drugs and Crime "Manual on International Cooperation in Criminal Matters related to Terrorism": "Although resolution 1624 (2005) is not binding, it is considered a recommendation to criminalize incitement to terrorist acts."

So it's a recommendation.  And actually, we have already acted on it.  As noted, our instructing offence is broad enough to capture any reasonable definition of incitement.  And there are also other the offences of counselling, facilitating, participation etc in terrorist activity.  This, said the Canadian government in 2009, is enough for Canada to comply with Resolution 1624.  Actually, this is also what we told the UN in 2006. We reviewed our rich anti-terrorism criminal law when asked about criminalizing incitement and then said "Canada is not presently considering any additional measures in this area."

So don't blame the UN for this one.

Objection One: Blowback

Ok, so the new offence would serve no purpose and isn't required by any international obligation.  Now on to the downsides.  The most obvious is blowback.  Here's a hypothesis.  If the government starts targeting the fellow with the flag or the obnoxious poster, entire communities that might sympathize with entities the government labels terrorist groups or is inclined to causes associated with terrorist acts will be alienated.  When you alienate communities, intelligence and policing sources dry up. More that that, ideas don't go away.  They go underground, with a new martyred status.  And martyred ideas have a street credibility and cool chic.  And so you attack statements, you fuel resentment, close off relationships with the authorities, create grievances and make it cool to resist. 

Note to government: Refer back to the bit about safer streets and communities.  Apply that objective, please.

Objection Two: Oh, the Charter

And at last we get to principle.  That principle is actually found in our Charter (read: our fundamental constitutional law): freedom of speech.  Sure, free speech has limits.  No crying fire in a crowded theatre.  And no, freedom of speech is not offended by the infamous "motive" provision in the definition of terrorist activity, because of its close link to violence in that definition.  But now, in a UK style glorification offence, you're criminalizing statements that celebrate, without necessarily inducing or really being anywhere proximate to, violence.  Or more specifically, statements that celebrate a particular form of violence that we condemn.  Not all violence.  Certain hockey commentators can breathe easy. 

The latter bon mot makes a point: we celebrate violence all the time in everyday life.  When does the statement cross the line to celebrate the wrong sort of violence?  Which movie is too sympathetic to a disapproved cause?  "Cry Freedom" in the 1980s, when some states said the ANC was a terrorist group?  Which TV commentator has said too much?  Which blogger or artist or protestor?  When does speech now become poison?  Things get Orwellian very quickly.

I could wax on about the importance of free speech as an inherent value.  But let's just return to the practical argument.  As summarized by Fredrick Siebert one justification of free speech is this: "let all with something to say be free to express themselves. The true and sound will survive. The false and unsound will be vanquished."

If we don't like Tamil Tiger flags and "Magnificent 19" posters, let's confront them, belittle them, mock them.  Criminalize them, and you turn obnoxious ideas into the ground over which the meaning of democracy must be fought.  And that, let me propose, gives them the world's biggest bandstand on which to propagate their message.

As for the inevitable hate speech analogy, call me a civil libertarian, but I don't much like hate speech crimes either.  So that argument doesn't carry any persuasive value with me.  See above for the reasons.

 


[1]           Roach, September 11: Consequences for Canada at 44.

 

Abdelrazik and Charkaoui: Questions Ministers Should be Asking

General commentary

As was widely reported several days ago, La Presse ran a story describing an alleged conspiracy between Adil Charkaoui and Abousifian Abdelrazik to highjack an aircraft using an explosive device.  To summarize: the plot was apparently revealed in a conversation between the two, recorded by CSIS in 2000.  It would appear that the document leaked to La Presse is not an actual transcript but a four page, 2004 document citing portions of this recorded conversation. 

The revelation comes as the two men pursue separate lawsuits for their quite different hardships: Abdelrazik at the hands of the Sudanese authorities acting in arresting him in Sudan at the request (he alleges) of Canadian officials and Charkaoui in response to the lengthy (and ultimately collapsed) security certificate case against him.

In response to the press reports, immigration minister Jason Kenny is quoted in the Globe and Mail as follows: "I read the protected confidential dossiers on such individuals, and I can tell you that, without commenting on any one individual, some of this intelligence makes the hair stand up on the back of your neck ... I just think people should be patient and thoughtful and give the government and its agencies the benefit of the doubt.”

I leave it others to ask whether the security services' track record over the last decade in its use (and misuse) of intelligence entitles the government to the "benefit of the doubt".  I confine my comments to the following questions Minister Kenny (and even more so, public safety Minister Toews) should now be asking:

1. Why, officials, were no criminal charges laid?

Conspiracy to hijack and aircraft is a crime.  It was also a crime in 2000.  Section 76 of the Criminal Code dates to 1972.  It reads:

Every one who, unlawfully, by force or threat thereof, or by any other form of intimidation, seizes or exercises control of an aircraft with intent

(a) to cause any person on board the aircraft to be confined or imprisoned against his will,

(b) to cause any person on board the aircraft to be transported against his will to any place other than the next scheduled place of landing of the aircraft,

(c) to hold any person on board the aircraft for ransom or to service against his will, or

(d) to cause the aircraft to deviate in a material respect from its flight plan,

is guilty of an indictable offence and liable to imprisonment for life.

Under section 7 of the Code, this a crime whether it takes place in Canada or abroad.  Indeed, conspiracy to hijack an aircraft is a crime whether it takes place inside or outside Canada.

So, on assumption that the CSIS document is accurate, one must ask why no criminal charges were laid.  Why, instead, was Abdelrazik (allegedly) outsourced to the Sudanese and Charkaoui tied up in an ultimately fruitless security certificate. 

The conventional answer is that CSIS doesn't like sharing its secret intelligence marbles -- but then, wasn't this document just provided to La Presse?  So maybe the marbles get shared according to the flavour of the era or the needs of the Service.  Maybe these strategic leaks are the sort of underregulated tactics of disruption that CSIS's review body, the Security Intelligence Review Committee, has warned about?  Please, officials, inform the ministers.

2. Which also begs the question, officials, about whether there is now a criminal investigation into the leak of this document.

The government keeps its secrets secret, except when it doesn't.  Less than laudatory things were said about Maher Arar by someone in the RCMP and splashed about the Ottawa Citizen.  And so the RCMP launched an investigation -- a lousy one from their perspective, actually, given that it resulted in reporter Juliet O'Neill's successful lawsuit against them.  But the point remains: the Security of Information Act should be as good for the goose as for the gander.  So please, officials, and with all due regard to police independence, the ministers look forward to a vigorous investigation of this leak.

3. Meanwhile, speaking of information sharing, please explain to me, officials, why the RCMP reported in November 2007 that it had "conducted a review of its files and was unable to locate any current and substantive information that indicates Mr. Abdelrazik is involved in criminal activity."

Were they wrong, or was CSIS still hoarding its marbles even from the RCMP (with whom it is supposed to be sharing more cooperatively)?  And are we to suppose that the alleged 2000 conversation was insufficiently useful in making the government's case about Abdelrazik during controversy over his repatriation from Sudan that it needn't have been invoked in that debate?  Please advise the ministers, officials.

Those inclined to give the government the benefit of the doubt will have no doubt that, even as I write, all these questions are being asked and answered.