C-3 and the Talking Points of Extraordinary Detention (3)

Continuing from my previous post, here are three additional talking points of extraordinary detention - language games that circumscribe debate and deny the underlying implications of the security certificate process:

3. "It's about deportation, not detention" - Denial of Implications:

This is the most problematic form of implicatory denial associated with the current official discourse on security certificates. It has been present since the potential for long-term detention arising from certificates first became apparent. The government continues to talk about security certificates as administrative mechanisms associated with the Immigration and Refugee Protection Act (IRPA). And, to be sure, the IRPA legislation as it is written does describe a deportation process, justified on grounds of ‘inadmissibility’ (usually for national security reasons). But we know that the stated intentions of security certificates conflict with the demonstrable effects of their use, precisely because they lead to long-term indefinite detention without trial. They are national security mechanisms disguised as immigration mechanisms.

By repeatedly describing security certificates in a ‘deportation / inadmissibility’ framework, the state avoids discussing the very crucial underlying issues associated with their demonstrable use in a ‘security / detention’ framework.

Here is an example from the Canada Border Services Agency (CBSA) Fact Sheet on security certificates:

A Security certificate under the Immigration and Refugee Protection Act (IRPA) is one way for the Government of Canada to remove a person who poses a danger to national security or to the safety of any person.

And this from the speech by Dave MacKenzie (Parliamentary Secretary to the Minister of Public Safety, CPC) at the opening of the second reading of C-3 in the House of Commons, on November 19:

Let me again stress this very important aspect of the security certificate process. It is not about detention, but rather about removing non-Canadian citizens from Canada because they represent threats to public safety and national security. These individuals are inadmissible under our immigration law.

Another example from Ms. Yasmin Ratansi (Don Valley East, Lib.), from the November 20 debate in the House of Commons:

The Supreme Court was very clear. The government does require a mechanism to remove individuals from Canada who pose a threat to national security.

Another comment from the Liberals, this time from Derek Lee (Scarborough-Rouge River), from the November 20 Debate:

The reasons for removal are all set out in the statute. To my way of thinking, the security certificate provisions are simply a refined component of immigration deportation procedures. It is not a special thing developed to remove whomever the government thinks it might want to remove. In fact, if I can take that other perspective, it is simply a deportation procedure on a faster track with one important difference.

The person involved has been found by the government, not simply an official in the government, not an immigration officer or not a bunch of immigration officers, and not the Canada Border Services Agency but two ministers of the Government of Canada and effectively the cabinet, to be a danger under national security and under security definitions, and must be removed.

Mr. Lee continues with this disingenuous example rather than drawing on the five very real Canadian cases:

I will just offer a hypothetical example, one that is not too bizarre. I will refer to the mythical Carlos the Jackal, who I understand is now deceased. Imagine that person had been found living in Moose Jaw under an alias and we wanted to remove him from this country, but he had not committed any offences in Canada. Would he have been a simple deportee? Would we invite him for a hearing in front of an immigration officer and then tell him to come back a week later when a decision would be made? Would we ask him if he wanted a lawyer?

Dozens of other examples emerge from government speeches (Liberal and Conservative), from testimony before the Supreme Court in Charkaoui, and from various reports and fact sheets. They form an official account of security certificates that deliberately includes a blind spot for their detention-producing effects. The intended outcome of security certificates – deportation – is emphasized, while the implications of the policy in the contemporary context remain largely unaddressed. Where they are discussed, it is in a procedural fashion, in keeping with the government’s minimalist response to the Charkaoui ruling: any detention is framed as ‘pending deportation’, and is considered reasonable so long as it is subject to regular review.

This form of implicatory denial seeks to maintain the alleged legitimacy of IRPA security certificates as exceptional deportation tools, and, in the context of C-3, it produces an official discourse that appears comprehensive but in reality completely avoids addressing the reason for the prolonged detention of Canada’s ‘Secret Trial Five’ – the potential of removal-to-torture.

4. " ... " - Refusal to Acknowledge the Torture Issue:

This brings us to the elephant in the room – the torture issue. I include this as a form of denial by omission, closely related to the implicatory denial associated with the possibility of long-term detention, but worthy of its own special mention. We can understand the strategic absence of certain discussions within discourses as components of those discourses that structure-out, omit, and occlude. The silence of the government on the torture is problematic, and it speaks to the underlying ideological forces that operate through security certificates (the citizen – non-citizen / us – them distinction and subsequent recognition of two tiers of rights).

A reasonable discussion of security certificates must engage with the issue of return-to-torture. It is because of this issue that the current security certificate detainees (or house arrestees …) continue to languish in a limbo of uncertainty, simultaneously ‘inadmissible’ according to security certificates and ‘un-deportable’ by virtue of Canada’s obligations under Article 3 of the UN Convention Against Torture.

Article 3

1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Syria, Algeria, and Egypt are all on record as engaging in torture. Canada’s own complicity in such practices – as discussed in the O’Connor Commission into the experience of Maher Arar, the ongoing Iaccobucci Inquiry into similar abuses, and arising from the as-yet unresolved issue of military involvement in the transfer of detainees to face torture in Afghanistan – is cause for immense concern. Each of the ‘Secret Trial Five’ has argued that an official Canadian declaration of ‘inadmissibility on security grounds’ related to terrorism would result in their probable torture, killing, or disappearance upon return to their country of provenance.

Despite the clear language of Article 3 of the UNCAT (above), Canada does maintain that it can deport to probable torture in truly exceptional circumstances, by invoking what has become known as the ‘Suresh Exception’. The Supreme Court, in the 2002 security certificate case of Suresh v. Canada, acknowledged that international law bans absolutely returns to countries where there is a risk of torture, but in an extraordinary departure from that law, stated, “We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified”.

Thus far, the government has not attempted to use this shameful ruling in an end-run around UNCAT in relation to the ‘Secret Trial Five’. Currently, it has become popular to ask governments with questionable human rights records to provide non-binding diplomatic assurances that citizens returned to their custody will not be tortured. These informal agreements are, according to many (myself included) not worth the paper they are written on, but they are seen by practicing states as protection against accusation of a breach of Article 3.

In Canada, the government has opted not to attempt to use ‘full powers’ in order to facilitate deportation (likely due to an awareness of the inevitable public and international backlash that would occur). Instead, it has pursued a policy of indefinite detention by default. Official discourse almost never makes mention of the Article 3 barrier to deportation; instead, security certificates are cheerfully discussed as an extraordinary immigration tool designed to facilitate removal, even though everyone ‘inside’ the discourse knows that removal is impossible (without using the Suresh exception).

Serge Ménard (Marc-Aurèle-Fortin, BQ) did a good job of articulating this very simple issue during the November 19 C-3 debate:

Mr. Speaker, in the Charkaoui case, the Supreme Court suggested a number of amendments to the procedure for issuing the deportation order made necessary by security certificates. This becomes a committal order when the person cannot be deported to another country. This is currently the case with those who have been imprisoned for a long time under security certificates in Canada.

[…]

How long will we review these decisions, in the event that we cannot deport an individual to another country without endangering his life or likely subjecting him to torture? Why have we not answered the question put to us by the court?

Again, the net result of the failure to address the torture issue is the construction of legislation (C-3) that fixates on (admittedly important) procedural minutiae while denying the ‘big picture’ implications associated with security certificates.

The reasonable person, upon observing this bizarre gap in the current debate, would no doubt express confusion and concern. Members of the NDP and Bloc Quebecois have certainly taken this issue up in their comments during the C-3 debates in the House of Commons.

As illustration of this form of ‘implicatory denial by omission’ in action, we can turn to Dave MacKenzie’s response on behalf of the government to the above comments by Serge Ménard:

Mr. Speaker, Bill C-3 deals with the two issues that the Supreme Court addressed that needed to be changed in the Supreme Court's decision. Those issues are the review of the security certificates and the role of the special advocate.

That is what this bill is about. It is not about any broader areas. The Supreme Court has ruled that the process is a reasonable one that fits within our charter. Bill C-3 deals specifically with the two issues that the Supreme Court addressed and referred back to Parliament.

5. "A prison with three walls" - Denial of the Victim:

The fifth and final theme of denial that I see present in the current official account of security certificates is directly related to the previous two (the denials of detention and of the latent presence of the torture issue). In many ways, it is operates tactically to avoid addressing both indefinite detention and refoulement.

I am referring to the government’s (particularly the Minister of Public Safety and his spokespeople) callous assertion that security certificate detention takes place “in a prison with three walls” (see our comments in ‘Incarcerating the Inadmissible’ for more on this).

When faced with accusations that security certificates operate as ‘committal orders’ or raise the possibility of Canadian state involvement in violations of Article 3 of UNCAT, the government attempts to exculpate itself by reframing both issues in such a way that the disposition of a security certificate detainee is ultimately the result of choices made by that individual. Legitimate concerns about indefinite detention are dodged or dismissed by official statements that point out how individuals subject to certificates are free to leave at any time, provided that they return to their countries of provenance. This same construction of voluntariness exonerates the state from any torture or mistreatment that may result from the ‘return’ of the individual to Syria, Algeria, or Egypt. After all, Article 3 of UNCAT applies to official acts of expulsion, return, or extradition – and not to voluntary departures.

Ultimately, this language game denies that security certificates produce victims. The state emerges as a reasonable body, dutifully protecting the citizens of Canada by identifying and isolating threatening foreigners – and then (in truly polite Canadian fashion) offering them the option to either remain in Canada subject to security certificate restrictions indefinitely or to voluntarily ‘go home’.

This choice is, of course, impossible. It is really a choice between indefinite detention / highly-restrictive bail (which affects the named individual and their family) or deportation to probable torture. The illusion of voluntariness shields the Canadian state from responsibility.

The third option – to recognize that security certificates are inherently flawed and that they will always lead to this impossible choice when states with questionable human rights records are concerned, and to thereby jettison them in favour of an alternative criminal justice approach that offers the protection of due process (a charge or release model) – remains off the table. C-3 ensures that this option, the only option that involves anything that resembles justice, will not be implemented.