The Charkaoui ruling came down in February 2007, and the Court delayed the effects of their decision for one year, during which time security certificates were allowed to remain in operation (despite their now-now confirmed violations of the Charter). The government was given until February 2008 to address the problems identified by the Court. In late October 2007, as part of a blitz of security and crime legislation, the government tabled Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act.
The recent ‘official’ debate over security certificates has been shaped by the tabling of this legislation, by the ways that it responds to the ruling of the Supreme Court in Charkaoui, and by the underlying problems with the security certificate mechanism that C-3 leaves unresolved and in many cases unaddressed.
For samples of official discourse about security certificates in the C-3 context, we can look to the press release announcing the introduction of the legislation, from the Department of Public Safety website, and the transcripts of the Parliamentary speeches and debates during the second reading of C-3, from November 19, 2007 and November 20, 2007. Incidentally, C-3 is currently before the Standing Committee on Public Safety and National Security (SECU). I’m sure that there are some really fascinating discussions going on there, but the only information available at this point is in the form of summarized meeting minutes, stripped of content.
I have been looking closely at this discourse recently, in light of a paper I am working on for the 15th Annual Conference at YCISS, taking place in February 2008. This year’s theme is “Violent Interventions”. Here’s what I’m working on:
Paper Title: Three-Walled Prisons and the Prospect of Torture: The Impossible Choices of Canada’s Security Certificate Scheme
Abstract:
This paper examines the latent threat of deportation to probable torture that underpins Canadian state policy and discourse on immigration security certificates. This is exemplified in the Minister of Public Safety’s insistence that non-citizens facing indefinite detention can elect to ‘voluntarily’ return to their countries of provenance – all of which are known to practice torture on alleged ‘terrorists’. The illusion of choice allows the violence of torture to exist as a spectre within Canadian immigration security policy. The paper explores this ‘impossible choice’ as the product of official techniques of neutralization (Cohen, 2001), reflecting a broader culture of official denial associated with Western anti-terrorism activities and their implications.
(Cohen, 2001) refers to Stanley Cohen’s amazing text, States of Denial: Knowing About Atrocities and Suffering. This is the essential sociological text on the complex phenomenon of denial, and it offers important insights into – among other things – the political language games undertaken by officials to minimize, trivialize, obscure, or otherwise deny atrocities. What precisely constitutes an atrocity is a discussion for another time. I believe that security certificates violate fundamental democratic principles and a substantive understanding of the rule of law, and they certainly create the possibility of return-to-torture, which is undoubtedly an atrocious practice. Cohen’s work is broadly applicable, however, and his study can help us to make sense of a range of abuse and immoral behaviour, and related processes of rationalization and denial.
Cohen provides examples of official denial in action. He notes that the speech acts that surround sanctioned human right violations or other gross misconduct by authorities are complex, operating on several levels at once. Political-ideological justification exists alongside acts of interpretive denial and various techniques of neutralization. What emerges is a sophisticated “vocabulary of exoneration” (Cohen, 2001:76).
Let’s consider the case of security certificates. To get at the underlying problem – the existence and implications of which are being denied – we have to strip away the layers of rhetoric, bureaucratic procedure and law. We have to momentarily shift our attention away from the debates about what certificates are intended to do and what they ought to do, and focus instead on the real effects that they have on individuals, and on the range of possible outcomes that they create. The results of this clarification process look something like this:
Security certificates make possible the long-term and indefinite detention of non-citizens, without charge or trial, based on allegations that will never be subjected to an open and fair adversarial contestation. Further, security certificates, either through the omnipresent offer of ‘voluntary deportation’ or the latent but as-yet unused ‘Suresh Exception’, raise the possibility – indeed, the probability – that individuals deemed inadmissible will be removed to face torture in their countries of provenance.
These are facts, stripped of procedural details and ideology. These are also the very issues that official accounts of security certificates go to great lengths to avoid addressing. Instead, the official discourse is characterized by a set of mercurial language games that shift the terrain of debate, deny the implications of the certificate mechanism, blame the victims, and otherwise attempt to justify the unjustifiable.
Five Manoeuvres – Components of the Official Account of Security Certificates:
1. "If we don't act quickly ..." - Appeals to Necessity and Urgency:
This language game is directed at potential opponents of security certificates within Parliament (the NDP and Bloc Quebecois, and to a lesser extent, the Liberals). Here, necessity, the imperatives of security, and above all the temporal constraints associated with the Charkaoui decision, are invoked to justify security certificates, and to avoid responsibility for failing to address the underlying problems that they raise. Recall that the Court deferred the effects of its decision until February 2008. C-3 contains provisions to deal with the existing security certificates immediately upon coming into force, updating the procedures in place and effectively rendering them ‘Charter-proof’ by addressing the Court’s main concerns. If February arrives and C-3 has not been passed, the existing certificates will be struck down upon challenge in court. Additional pressure is added by the pending Parliamentary break in December. The implication is that attempts to engage in debates that address deeper issues than those directly associated with C-3 are diversionary tactics that invite delay and risk imperilling Canadians – failure to swiftly pass C-3 would see the ‘Secret Trial Five’ walking the streets without restrictions (unless, of course, the government decided to charge them with something …). Debate is both circumscribed and rushed as a result of this language game. The intention of the government here is to read so much urgency into the official account that it becomes politically untenable to be seen to oppose C-3. And it’s working. Despite repeated arguments that the second reading of the bill needed to proceed swiftly so that crucial issues could be addressed in committee, we are now seeing a further circumscription of discussion at the committee level, this time through the exclusion of certain voices. As reported by the NDP:
OTTAWA – NDP Public Safety Critic Penny Priddy (Surrey North) today demanded the Standing Committee on Public Safety and National Security hold additional hearings into the Conservatives’ controversial security certificate legislation.
Priddy made this call after a number of individuals and organizations tried to testify before the committee last week — but were told there isn’t enough time to hear all witnesses before this Parliament breaks in December.
Here is an example of the necessity / urgency manoeuvre in use, from CPC MP Dave MacKenzie’s November 19 remarks in Parliament:
Mr. Speaker, it is essential that these do come into place, otherwise we have lost the whole provision of detention for people who do represent some sort of serious threat to Canada, whether it be terrorism or industrial espionage, as was the last case. I think it would be incumbent upon members of this House to quickly pass this legislation, so that it is not lost at a date set by the Supreme Court early in 2008.
And here’s a response that reflects the current Liberal position, from Liberal MP Ujjal Dosanjh, also from the November 19 debate:
It is worth looking at in that light, because it might tell us that what the government has presented basically meets the concerns expressed by the Supreme Court, but does not deal with some of the other concerns. Let me say at the outset that we will support this bill at this stage so that it goes to committee, but while in the committee, I think that some amendments might improve this bill to make it better than it is.
Another Liberal response, this time from MP Mario Silva (Liberal), from the November 20, 2007 Parliamentary debate. This one really captures the debate-constraining effect of the urgency imperative:
… What is the proper balance between fundamental human rights protections and the need to protect the state and its citizens from persons of risk and, in particular, non-citizens who seek to take up residence in
This is a fundamental question, a question that we will need to consider carefully over the next short period of time leading up to our vote on this matter.
The absurdity of – in the same breath – describing such a “fundamental question” and affirming a window of roughly two months to address it seems lost on Mr. Silva.
2. "Non-citizens only" - Reassurance through Othering:
Almost without exception, official speeches about security certificates include in their first few sentences an important clarification – security certificates cannot be issued to Canadian citizens. They are for non-citizens only. Here’s an example. And another. And another. And another, a fact sheet from the Canada Border Services Agency, that includes the following sub-section in its summary:
□ Security Certificates do not apply to Canadian citizens:
□ The provisions of the IRPA do not apply to Canadian citizens or to persons who are registered Indians pursuant to the Indian Act;
□ Certificates only apply to permanent residents or foreign nationals who are inadmissible to
One could read this emphasis as innocuous or simply factual. After all, the whole point of security certificates is that they are only applicable to non-citizens. So, when government officials make a point to emphasize that certificates are not part of the Anti-Terrorism Act or the Criminal Code, we could assume that they are simply stating the facts. In some cases, I’m sure that this is true.
However, the manner in which this ‘clarification’ frequently arises seems more strategic to me. I would suggest that the repetition of the “non-citizens only” point is intended to minimize concern about certificates among Canadians by ‘defining them out’ as stakeholders in the debate. Additionally, by underscoring the exclusive applicability to non-citizens – outsiders, foreigners – officials invoke the age-old us-them distinction. They promise that certificates only exist to protect us – good Canadian citizens – from them – threatening foreigners.
The message is two-pronged: security certificates are ok because they protect us from them, and besides, since they only apply to them, we really aren’t stakeholders in the debate – we are protected by our passports.
Here’s an example from an Opposition MP, Mario Silva (Liberal), from the November 20, 2007 Parliamentary debate:
However, we need to remember that these situations are unique and rare. They apply only to non-Canadian citizens and there is judicial recourse, albeit limited in comparison to standard legal practices with which we are generally accustomed as citizens. [note that the official account of security certificates is in many ways a cross-party collaboration – the current Conservative regime is aggressively advancing C-3, but the previous Liberal regime issued the certificates for the ‘Secret Trial Five’].
At a deeper level, the repetition of this point seems intended to structure the terrain of discussion so that Canadians do not consider security certificates from the position of a universal everyman or woman (from Rawls’ original position, a thought experiment where we are invited to consider what laws and procedures ought to be in place in a just society, without knowing our position in said society). If, in adopting the original position, we allow for the possibility that we will not be full-fledged citizens in our hypothetical just society, we will be inclined to reject laws that recognize differential rights based on certain statuses, and to strive for laws that reflect substantive understandings of fundamental rights. Evaluated from this position, security certificates would clearly be rejected by the vast majority of rational individuals. By emphasizing the “non-citizens only” point, however, the official account encourages a much more parochial approach. The ‘security’ in ‘security certificate’ is revealed as a ‘club good’ (Loader and Walker, 2006), available to members at the expense or exclusion of non-members.
*** Points 3 through 5 coming soon ***
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