Second Letter to the Hon. Carolyn Bennett, regarding Bill C-3

Today, MPs will vote on C-3. If it passes this third reading, it will go to the Senate. With the vast majority of Liberals supporting the Conservative bill, it looks like C-3 will become law. However, a number of Liberals have taken a principled stance and expressed their intention to vote against the bill. I have been trying to convince my MP, Carolyn Bennet (Liberal), that this is a flawed and unjust piece of legislation (which it is). Below is my latest letter. I have yet to receive a response to my written communications (both email and snail mail) on this topic, but when (if) I do, I will post it.

*Update: I have received a short response from Carolyn Bennett's office, which is copied below:

February 5, 2008

Dear Mr Larsen,

Thank you for your correspondence to Dr. Bennett's office, dated on
February 5,2008.

Please rest assured that your comments regarding Bill C-3 ans security
certificates will be brought to the Hon. Carolyn Bennett's attention.

Thank you again for contacting us,


Elise BONNEAU
Special Assistant
Hon. Carolyn Bennett, P.C., M.P., M.D.

To: The Honourable Dr. Carolyn Bennett, MP St Paul's, Toronto

Dear Dr. Bennett,

Today, MPs will vote on Bill C-3, An Act to amend the Immigration and Refugee Protection Act. As a citizen in your riding, I urge you again to vote 'no' on C-3. Please join your colleague and fellow Liberal Party member, the Hon. Andrew Telegdi (MP, Kitchener-Waterloo) in taking a stand against a flawed and unjust piece of legislation. In doing so, you would demonstrate your commitment to a substantive concept of human rights - one that does not treat non-citizens as persons undeserving of due process or full and fair trial.

In the current context, Security Certificates are an ineffective and unjust response to alleged national security threats. They are ineffective because, although they are intended to facilitate the deportation of non-citizens deemed 'inadmissible' to Canada, in reality they lead to prolonged and indefinite detention without charge or trial. Further, even if they did lead to the swift deportation of individuals deemed to threaten our national security, this would simply displace the threat, rather than dealing with it. They are unjust because - despite Conservative assertions to the contrary - they use immigration law as a stand-in for criminal law. This results in a two-tiered justice system. Security certificates lead to arrest, long-term detention on the grounds of a federal penitentiary, severe bail conditions and surveillance, lasting stigma, disruption to families, and potentially deportation to probable torture. This process is as severe in its ramifications as any criminal proceeding, but without the safeguards provided by a full and fair trial before a court of law.

Recently, members of the Liberal Party have criticized the Conservative government for its evasiveness and secrecy in relation to the handling of Afghan detainees. I applaud this criticism. Canadians do not want our armed forces involved detainee transfers if they result in the torture or abuse of prisoners. Security certificates can result in the deportation of individuals (officially alleged of links to terrorism by the Canadian government) to countries that routinely engage in torture, disappearances, and the abuse of prisoners. If you agree that it is wrong for us to follow policies that place Afghan detainees at risk of torture, I urge you to extend that principle to the cases of security certificate detainees. The only way to guarantee that we do not deport individuals to face torture is to get rid of security certificates, and the best way to do that is to make sure that C-3 does not pass.

In closing, I would like to emphasize that a vote of 'no' on C-3 does not represent a lack of commitment to Canadian national security. We have a robust criminal code, with extensive anti-terror laws. We are more than capable of issuing criminal charges against any individuals engaging in - or planning to engage in - terrorist activity. If security certificates disappeared tomorrow, we would not be any less secure.

Thank you for your attention to this matter.

Sincerely,

Mike Larsen

Researcher, York Centre for International and Security Studies

Fellow, Nathanson Centre on Transnational Human Rights, Crime & Security

Federal Court Orders Harkat Released

Judge Dawson of the Federal Court has ordered CBSA to return Mohamed Harkat to his home, where he is to remain under house arrest and strict 24-hour supervision by his sureties, until the Federal Court hears submissions regarding his bail conditions next week.

The Federal Court ruling ordering his release can be found here.

CBC has this report on the order. It contains the facts, but as Brian O'Connor has pointed out, the headline "Harkat, accused of al-Qaeda links, freed for weekend", is misleading. House arrest is not freedom, and it is only comparatively 'free' when opposed to a weekend behind bars. Brian's excellent letter of complaint to the CBC calls on them to embrace their journalistic calling and recognize Harkat's situation as a story of manifest injustice.

For me, the CBC headline illustrates a problem that is at the heart of the public discussion about security certificates: The media either lacks the vocabulary to make sense of the issues, or, more likely, lacks the inclination to use an unofficial vocabulary in an effort to speak truth to power. House arrest isn't freedom - at least, not if we apply the same definitional standards to Mohamed Harkat's situation that we would to our own. 'Suspected of' does not mean 'guilty of', despite the government's best efforts to blur the line. The Kingston Immigration Holding Centre is most decidedly not a 'prison with three walls'. Individuals held at KIHC are not 'Individuals Subject to Security Certificates' - they are detainees, or, if we want to be accurate, prisoners being held indefinitely without trial. We are in the midst of a discursive conflict, and if the proponents of security certificates are allowed to define the language of the debate, security certificates will remain entrenched within the system.

Canadian media outlets need to remember that commitments to journalistic integrity and objectivity do not require that the state should be uncritically regarded as the source of neutral truth, particularly on matters related to human rights and justice. I am not suggesting that the coverage of the security certificate cases has consistently been flawed - there have been some solid, critical reports, and some journalists have diligently kept on top of the story. But coverage of the arrest of Mohamed Harkat has been weak, and the heavy-handed and politicized tactics used by the government have not been subjected to sufficient scrutiny. Coverage of C-3 has been much, much worse. The definitive (and obvious, and easily-researched) story that links the C-3 legislative process to the Charkaoui ruling and critiques both in light of the objections raised by human rights and legal associations has yet to be written. This is particularly bizarre given the furore over the Afghan detainee transfer scandal this week; for some reason, the mainstream media has been happy to criticize the government for politicking around the who-knew-what-and-when of that issue, but unwilling to address C-3 in a similar fashion, despite the fact that it effectively enshrines the possibility of return-to-torture in Canadian immigration law.

See also this Vancouver Sun article for a brief outline of some of the arguments made by the government regarding the decision to arrest and detain Mohamed Harkat. The government's position remains rooted in the assertion that Mr. Harkat is a sleeper agent for al Qaeda. The construction of threat in this case is biopolitical; that is, the government has inscribed a notion of permanent dangerousness into the physical being of Mohamed Harkat. This, they argue, justifies (indeed, demands) the most intrusive forms of surveillance and control, both of his life and the personal, intimate lives of his family, since any slip up could allow Mr. Harkat to - well, it's not clear what they think an unsupervised Mohamed Harkat might do. In a saner and more compassionate world, Stockwell Day's continued assertions that Harkat represents the perpetual embodiment of the terrorist threat would be dismissed by an overwhelming majority of Canadians as a ludicrous, politically expedient fantasy.

More to come, later.

Also, the C-3 Security Certificate legislation was discussed in the House of Commons yesterday, with further debate deferred until Monday. See here for the official Edited Hansard. The tone of the discourse has not changed since the last time C-3 was discussed in Parliament: The NDP are making excellent, well-reasoned submissions that highlight both the human rights flaws and lack of increased security for Canada associated with the legislation, and they are not supporting it; the Liberals, who are implicated in the history of the detention of the Secret Trial Five, are quibbling about certain points of C-3, but are going to support it (it takes tremendous courage and conviction for Liberal MPs to speak out against C-3 right now. I am still hoping that my own MP, Carolyn Bennett, will rise to the occasion); The Bloc Quebecois are making many critical statements about C-3, but have somehow been convinced by the government and security services that the IRPA security certificate mechanism is necessary to protect Canadians, and that no viable alternative exists; and the Conservative minority government is sticking to its talking points - arguing that the Secret Trial Five represent threats to Canada (a position that is less tenable as time goes by), insisting that there is an urgent and pressing need to pass C-3, and disingenuously sticking to the position that since security certificates are immigration mechanisms and not criminal justice mechanisms, all comparisons between the two systems are flawed.

More to come on this as well.

- Mike

Regarding the Arrest of Mohamed Harkat

* Jan 31, 2008: See update at bottom.

I had one of those ‘this isn’t happening’ moments yesterday afternoon, when a colleague in Ottawa emailed me a breaking story with the headline: Harkat Arrested for Alleged Bail Violation. Mohamed Harkat is one of the Secret Trial Five, an ‘Individual Subject to Security Certificate’ or ISSC in governmentspeak (*see bottom of post). Between June 21, 2006 and yesterday afternoon, Mohamed had been released from custody on strict bail conditions. Between April and June 2006, he was briefly held at the Kingston Immigration Holding Centre (KIHC). He was arrested on a security certificate on December 10, 2002, and between that time and the opening of KIHC, he was held in provincial detention. At no point has he been charged with a crime. Mohamed’s bail conditions remain among the most severe in Canadian history, and they effectively place him, his wife and most vocal advocate Sophie, and his mother in law, inside a bubble of complete surveillance and control. Putting aside for a moment the absurdity of a mechanism that can enforce strict bail conditions for someone who has never committed a crime, it is important to note that the Harkats have done everything they can to comply with the terms of his release. And, for over a year, Sophie and Mohamed, while still advocates for the abolition of security certificates, have lived in a state of comparable normalcy, understanding strict bail to be a lesser evil compared to indefinite detention. They were due to appear before the Federal Court next Monday to apply for the relaxation of some conditions.

Normalcy came to an end yesterday when ‘agents’ of the Canada Border Services Agency (CBSA) burst into the Harkats’ Ottawa home and arrested Mohamed for violating the conditions of his bail. He is now in custody, at the Ottawa Jail on Elgin Street. Should the Federal Court decide that the alleged breach of bail was significant enough to warrant incarceration, it is likely that Mohamed will be transported to Bath, Ontario, to KIHC, where he would join fellow ‘ISSD’ Hassan Almrei (who is currently the only detainee at the facility).

Reports on the allegations against Mohamed Harkat were sketchy at first, but the media seems to have pieced things together by this morning. Note that the story has already migrated away from the headlines of the main news sites.

From the Globe and Mail:

[...] Canadian Border Services Agency officials arrested 39-year-old suspect Mohamed Harkat. The breach of bail accusation apparently stems from Mr. Harkat's mother-in-law - one of his guardians and the owner of the Ottawa house where he and his wife Sophie lived - no longer residing in the home, according to Mr. Harkat's lawyer, Paul Copeland.

From the CBC:

Sophie Harkat said that agents from the Canada Border Services Agency came to the house a few days earlier and took photos of some of her mother's possessions in boxes.

She said her mother is looking for a new place to live after separating from her longtime partner.

Copeland also said the conditions had not been breached, saying he suspects the raid might have been related to an upcoming court case in which Harkat plans to argue for a loosening of his stringent bail conditions. That federal court case will take place next week.

See also reports from the Ottawa Citizen, CTV.ca, (the original Canadian Press flash) and, for a roundup and regular updates, the Justice Coalition for Mohamed Harkat.

I have a few comments about this story.

First, I think that Canadians should be appalled at the actions of the Canada Border Services Agency, whose actions yesterday were, at best, thuggish and wholly disproportionate to the demands of the situation. They barged into the house unannounced, in force, and arrested Mohamed while he was in the shower. To appreciate the absurdity of this, you have to understand how closely the Harkats have been monitored by CBSA since he was released on bail. They are under constant surveillance, and 24-hour supervision. He wears an electronic monitoring bracelet at all times, and all of his communications are tapped. He has never been uncooperative with the CBSA, and the Harkats, Sophie in particular, have dedicated an enormous amount of time and energy to challenging the validity of security certificates before both the Federal and Supreme Courts - ergo the absolute last thing that either of them would do, at this point, is jeopardize their case by resisting the CBSA. There was no need for an unannounced daytime raid. I guarantee that a pair of officers politely knocking at the door and explaining the situation would have been met with full cooperation. The Harkats are at the forefront of the campaign against security certificates, but the terrain of their battle is the courtroom, not the living room. This is yet another example of Canadian authorities exercising power and displaying force for its own sake. Well, maybe not for its own sake - which brings me to my second point.

I would suggest that this entire escapade was political, part of a government effort to demonstrate the need for its C-3 security certificate legislation. At the risk of sounding like a conspiracy theorist, let me lay out a brief timeline to explain myself:

Context: In February, 2007, the Supreme Court in Charkaoui struck down certificates on Charter grounds, but withheld the effect of their ruling for one year, in order to give the government time to create a ‘Charter-proof’ security certificate regime. In late fall 2007, the government tabled C-3. When Parliament adjourned for its lengthy winter break, C-3 had just returned from committee, and was ready to be read a third time and then passed on to the Senate. See my earlier posts on C-3 for a discussion of the political discourse surrounding the legislation.

January 18, 2008: A Federal Court Judge orders (see here as well) reporters with La Presse to reveal their sources for a June story that referenced leaked CSIS documents that smeared Adil Charkaoui, another individual subject to security certificate.

January 27, 2008: A previously-unseen CSIS report mysteriously emerges and finds its way into Adil Charkaoui’s Federal Court file. CSIS claims to have recently discovered the report, based on an April 2001 interview with Charkaoui. The circumstances surrounding the discovery of the report are highly suspicious, leading many to accuse CSIS of attempting to smear Charkaoui prior to an upcoming Federal Court appearance.

January 28, 2008: Parliament resumes after the winter break. The Order Paper and Notice Paper for the House of Commons list C-3 as an agenda item, as does the projected order of business. The government is grilled about the Afghanistan detainees scandal, and the 18:30 close of day arrives before C-3 is discussed.

January 29, 2008: The Parliament agenda, published in the morning, does not include C-3, which appears to have been ‘bumped’. Around 15:00, CBSA agents enter the Harkat residence and arrest Mohamed Harkat for an alleged bail violation. Lawyers for Mohamed Harkat suggest that the arrest is a theatrical event designed to smear Harkat prior to his upcoming Federal Court appearance (see a pattern?), and to provide the government with convenient (fabricated) ammunition for the upcoming C-3 vote.

January 30, 2008: The projected order of business for Parliament today includes several bills, but C-3 remains missing.

The pattern: Parliamentary debate and the vote over C-3 has been postponed at the same time that the two most vocal members of the Secret Trial Five - both of whom have pending Federal Court appearances - have been the subject of government action. In the case of Charkaoui, a damning CSIS file has mysteriously fallen from the sky. In the case of Harkat, a vague accusation of bail violation stemming from speculations on the living arrangements of his mother in law has resulted in his arrest.

The result: When C-3 does come before the House, the government will be able to reference recent allegations regarding Harkat and Charkaoui as part of its argument. It doesn’t matter that both cases are dubious; for the Conservatives, a ‘tough on terror’ talking point just needs to sound good. This, combined with the rapidly-approaching end-of-February deadline on security certificate reform imposed by the Supreme Court, will allow the government to rush C-3 through third reading.

This may not reflect a plan. It may just be convenient, coincidental timing. I’m inclined to think otherwise, though. The history of the past 6.5 years tells us that major policy decisions on matters of national security tend to be curiously preceded by unexpected ‘revelations’ or news-grabbing non-events related to terrorism. Draw your own conclusions.

A final thought: For the last several years, members of the Secret Trial Five have gradually been released on strict bail conditions, starting with Charkaoui, then Harkat, then Jaballah and Mahjoub, until now only Almrei is behind bars. The bail conditions are unbelievably strict, and they require a tremendous sacrifice from the families of the detainees, who must agree to restructure their lives and submit to Orwellian surveillance, in order to secure quasi-freedom for their loved ones. I have argued in the past that these conditions represent a form of collective punishment, in that they subject a group of people to invasive discipline and control on the basis of familial relation or close association with an individual deemed (but never proved) threatening. I’m certain that the families of the detainees released on bail would agree with this assessment, but they also experience the bail conditions as a ‘lesser evil’, with the alternative being the indefinite incarceration of a husband, son, or father. As such, while they have continued to campaign for the general abolition of security certificates and the relaxation of bail conditions in specific cases, the families and supporters of the Secret Trial Five have not been able to truly condemn the injustice of the bail regime, for fear that the government would respond by returning the men to prison.

But yesterday’s events should speak for themselves as a condemnation of a manifestly unjust system. Place yourself in the position of Sophie Harkat’s mother: Your son-in law has just been arrested and incarcerated because government agents drew conclusions about your living arrangements based a change in your relationship status. Imagine the sense of guilt.

Security certificates are an affront to justice, and they cannot be legitimized. They are, to use David Dyzenhaus’ term, ‘unlegalizable’. They circumvent the court system, operate under a veil of secrecy, and force people to make impossible choices (indefinite detention or ‘voluntary’ deportation to probable torture? Let someone rot in jail or reorganize my entire life and the lives of my family to supervise them on indefinite bail?).

We need to get rid of security certificates. I encourage all readers to contact their MPs and demand a vote of NO on C-3.

Mike

* Something to add to your dictionaries of governmentspeak. It seems that the Canada Border Services Agency is somewhat torn about what to call the people it keeps behind bars at KIHC. I have recently received the KIHC President’s Directives, Standing Orders, and Post Orders, following a request under the Access to Information Act. While many documents refer to them as ‘Detainees’, some President’s Directives have switched to the term ‘Individual Subject to Security Certificate’ or ISSC. This may reflect the well-established fixation on acronyms that characterizes the Canadian government bureaucracy. I suspect that it also reflects an understanding of the political weight attached to the term ‘detainee’, which generally conjures images of prisoner transfers in Afghanistan.

An example, from CBSA KIHC President’s Directive 081 on Redress Process:

Update (January 31, 2008):

Some additional information and resources regarding Mohamed Harkat's current situation:

• See YaYaCanada's excellent coverage of the story, with some information about the arrest and follow-up that you won't find in the mainstream media, along with some photos.
• The Justice for Mohamed Harkat site has a report from an interview Sophie Harkat did with the Ottawa Sun, talking about her experience.
• CBC.ca follow-up, talking about the likelihood that Mohamed will be spending Thursday night at the Ottawa-Carleton Detention Centre.

A Letter to my MP on C-3 and Security Certificates

Below is the text of a letter I have written to my MP, Carolyn Bennett (Liberal). I have tried to strike a balance between brevity and detail, concern and tact. Please feel free to cut and paste sections for use in your own letters of concern. I will be sure to post any responses that I receive.

- Mike

January 7, 2008
The Hon. Carolyn Bennett
M.P. St. Paul’s (Liberal)
1650 Yonge Street, Suite 103
Toronto, Ontario M4T 2A2

Dear Dr Bennett,

I hope that this letter finds you well. I am a resident of your St. Paul’s riding, and I am writing to you about a bill that is currently before Parliament, C-3 - An Act to Amend the Immigration and Refugee Protection Act (Certificates and Special Advocates). I am deeply concerned about this legislation, and I strongly encourage you to vote against C-3 when Parliament reconvenes.

C-3 represents a ‘bare minimum’ response to the Supreme Court’s ruling on security certificates in Charkaoui. Security certificates are fundamentally unjust, and their continued existence - regardless of minimalist amendments - represents a black mark on Canada’s human rights record. The ‘special advocate’ system that C-3 will put in place closely resembles the British special advocate system, which is so flawed that lawyers have recused themselves in protest. We should not be importing a broken model.

During debate on C-3 in the House of Commons, Members of the Conservative Government repeatedly redirected discussion away from the real problems underlying security certificates, arguing that debate should focus only on the limited range of issues associated with the bill. No matter how many layers of complexity are added to the process, the fact remains that security certificates use immigration law to address national security concerns. There is no justifiable reason for this. Canada’s anti-terrorism laws are capable of handling everything from involvement in active plots to membership in a terrorist organization (‘listed entity’). Further, if the Government of Canada believes that an individual represents such a threat to this nation that it is prepared to deport them to face probable torture in their countries of provenance, then the reasonable person would have to conclude that there is a sufficient dossier of evidence against that person to lay criminal charges. Our international reputation suffers from our continued use of the Immigration and Refugee Protection Act as a convenient substitute to the Criminal Code of Canada.

Please stand up for universal human rights and a substantive understanding of the rule of law, and vote against C-3. It is a flawed bill, bound to result in additional Supreme Court challenges. It supports an unjust and unnecessary mechanism. It is, quite simply, bad legislation.

I should close by saying that the issues at stake here are of sufficient importance that the outcome of C-3 will be a major factor in my mind when I cast my ballot in the next Federal election (I note that the NDP has spoken out against the legislation). I have respected your moral compass on matters such as health care, the death penalty, and the Iraq war, and I hope that you will take a similarly principled stance on immigration security detention.

Sincerely yours,

Mike Larsen

This is a good time to be thinking critically about exceptional detention

January 11, 2008 should be a day for reflection and action. On that day, the US detention facility at Guantanamo will have been in operation for six years. The ACLU is among a number of human rights organizations planning action on the 11th. Among other things, they are calling on opponents of the institution to wear orange on that day. I have five days to find some orange clothing. You can click on the link script at the top of my sidebar to go to the ACLU's excellent online activist toolkit. See also Cageprisoners' planned day of action. I will be blogging on Guantanamo and exceptional detention more generally throughout January.

January 28, 2008 should also be a day for action. On the 28th, the House of Commons reconvenes after its winter holiday. One of the items at the top of the Parliamentary agenda is Bill C-3, the Act to Amend the Immigration and Refugee Protection Act. This legislation has been returned to Parliament after brief review by the Standing Committee on Public Safety and National Security (without significant amendment). It is slated for final reading during the last week of January. In previous posts, I have discussed the political maneuvering that has accompanied this legislation, and the emphasis that has been placed on rushing it through the House. C-3 is the Government's response to the Supreme Court's ruling in Charkaoui. It includes the bare minimum alterations of the IRPA security certificate mechanism required to ensure that the Charter is not being violated (or so the Government says - many argue that the revised IRPA will not hold up to court challenge). The February 23, 2007 ruling in Charkaoui gave the government exactly one year to make the amendments. If February 23, 2008 arrives without C-3 being passed, the Federal Court will have no choice but to strike down any existing security certificates, and the Government will be unable to issue any new ones. They will be forced to either lay criminal charges against the 'Secret Trial Five' or release them. 

It is extremely unlikely that the political winds in Ottawa will be blowing against C-3. The Conservatives will obviously vote for their own bill, and the Liberals (who, during their last turn at the helm, issued all of the existing security certificates) will almost certainly go along, (1) because they actually support the security certificate mechanism, (2) because a vote against C-3 would open them to charges of 'flip flopping' and hypocrisy, and (3) because our political process has sunk to such a level that parties will bend over backwards to avoid allegations of being 'soft on terror'. 

For a moment, though, we might pretend that C-3 is not a forgone conclusion, and that concerted effort by Canadian citizens might still exert sufficient pressure to make voting in favor of the legislation politically risky. We can use the time before January 28th to ensure that our Members of Parliament understand that we strongly disapprove of C-3 and security certificates, and that we expect them to vote against the bill when the House reconvenes. I recommend writing letters to the effect that a vote in favor of C-3 by your MP will translate to one less ballot cast for them during the next election. For more information on the campaign against security certificates, check out the Justice for Mohamed Harkat website - the planned action for the 15th and 16th should be of particular interest to those in the GTA.

I will be writing my MP on Monday, and I will post the letter here (and the response, if any, when it arrives). 

January 2008 could pass as the month that saw the sixth birthday of the abomination that is Guantanamo Bay and the rubber-stamping of a reincarnated secret trial system in Canada. Or, it could pass as the month when citizens gave notice to government that habeas corpus and the rule of law are fundamental principles that cannot be diluted or worked around.

Happy New Year,

- Mike 

Criminalizing the merely suspicious

One of my intentions with this blog is to explore, expand upon, and think out loud about issues relating to papers that I'm preparing for various conferences. Today I prepared abstract for a paper I've been invited to deliver at the Canadian Law and Society Association annual conference in Montréal this May. The panel topic is very exciting. It is on "the criminalization of the merely suspicious", a concept that Richard Ericson introduced and developed in his last book, Crime in an Insecure World. if the session goes forward as planned, I'll be sitting on the panel alongside two excellent colleagues, and I anticipate some engaging discussion.

This is the (working) session description:

As Richard Ericson has argued, a recent trend in policing and security work is to treat allegedly suspicious acts as criminal matters, leading to what he calls “criminalization of the merely suspicious”. Criminalization of the merely suspicious occurs when policing and security agencies preemptively regulate what they define as possible risks under the auspices of criminal law even though the acts targeted may be legal and protected under Canada’s Charter or similar guarantees in other countries. In particular, this panel seeks papers documenting cases where acts deemed problematic by the authorities become encoded or treated as criminal or even “terrorist” as part of such a process. We are interested in papers showing how such criminalization and accompanying surveillance measures are asymmetrically targeting those who pose a challenge to dominant economic and political agendas.

I have submitted the following abstract:

“A Mechanism to Remove Individuals Who Pose a Threat to National Security”: Security Certificates and the Criminalization of the Merely Suspicious

In his discussion of the contemporary politics of uncertainty, Richard Ericson draws our attention to the growing trend of criminalizing the merely suspicious. At the heart of this trend is a proliferation and normalization of security measures intended to "preempt imagined sources of harm" (Ericson 2007). This paper explores the contemporary Canadian immigration security certificate mechanism as a case study in the politics of uncertainty. Political-discursive and concrete legal processes are discussed. Official government discourse about security certificates is characterized by a valuation of precautionary action against non-citizens on the basis of categorical suspicion. Certificates are applied through an executive act of “deeming” (Butler 2004) that translates suspicion into a finding of threat. In concrete terms, this involves the use of “counter-law” (Ericison 2007) to arrest and detain individuals through a process that employs coercive means but carefully avoids the traditional criminal justice system – and its associated safeguards. The paper concludes by discussing the ways in which security certificates and other mechanisms associated with the new politics of uncertainty recognize and reinforce pernicious binary distinctions between ‘good citizens’ and ‘threatening others’.

Over the next few months, I will use this blog to develop my abstract into a working paper. I welcome any feedback!

The paper itself seems pretty straightforward. I envision four sections. In the first section, I will offer a brief introduction of the security certificate mechanism, and a short overview of recent developments related to it. I'd like to conclude this section by reflecting on the nature of the term "criminalization of the merely suspicious" - in particular, I'd like to emphasize the fact that the processes that fall under this concept do not necessarily correspond to criminalization as it is traditionally understood and criminology. In fact, many cases involve the deliberate circumvention of the traditional criminal justice system. and more appropriate term might highlight the "threat-itization", the "securitization [though this term is already widely used and means something different]", or simply the "official stigmatization and control" of the merely suspicious. I'm not saying that we should change the term, but it's worth noting that are very understanding of what "criminalization" means requires significant refinement. I think that Ericson recognized this in his book.

In the second section, I would like to explore the "criminalization of the merely suspicious" through the lens of official state discourse about security certificates, and particularly in the C-3 debates. I might go so far as to describe these discourses as reflective of a new mentality of governance, complete with its own rules, logics, and speech acts. On this last point, I will draw on Waever's argument that 'security' utterances are acts in and of themselves. This is easy to illustrate given the declarative nature of security certificates.

In the third section, I will explore some of the concrete legal and counter-legal measures that are in place to translate discursive categorizations of suspicion into sanctioned coercive force. I will briefly discuss the way that C-3 constructs legal grey holes, the ways in which intelligence -which is all about suspicion - replaces evidence in security certificate cases, and the way the immigration law in general is used in this context to circumvent the criminal justice system.

The fourth and concluding section will recap, and exercised the need to understand the criminalization of the merely suspicious as a governing mentality and a set of counter-legal processes. It will also highlight the uneven application of these discourses and processes in the contemporary Canadian context; it is important to note that this particular set of precautionary measures is applicable only to non-citizens. The politics of uncertainty are revealed as a biopolitics of exclusion.

Again, comments and suggestions are welcome.

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.

C-3 and the Talking Points of Extraordinary Detention (2)

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 15^th 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 Canada?

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 Canada on grounds of security such as espionage, subversion or terrorism, violating human or international rights, serious criminality or organized criminality.

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 ***

Inaugural Post – C-3 and the Talking Points of Extraordinary Detention (1)

I have been opposed to security certificates since I first became aware of them in 2002. In my opinion, security certificates represent a distillation of everything that is flawed with post-September 11 western responses to terrorism: they invoke national security imperatives to justify the differential treatment of citizens (us) and non-citizens (them); they raise the very real spectre of indefinite detention without charge or trial; they operate behind a veil of official secrecy; they make a mockery of due process and instead ask the public to place trust in the honesty and good intentions of the government and its national security agencies; they offer ‘named individuals’ the impossible choice between indefinite detention and ‘voluntary’ deportation to probable torture; and, by their very nature, they require the warping of the traditional (and already problematic) institutions of the Canadian criminal justice system.

This post is not about security certificates in general. For background the certificate mechanism, its many shortcomings, and the legal grey hole surrounding the Kingston Immigration Holding Centre (KIHC), check out this YCISS working paper (Incarcerating the ‘Inadmissible’) published with my colleague Justin Piché. See also the text of the Immigration and Refugee Protection Act (IRPA), the legislation covering security certificates, and the February 2007 ruling of the Supreme Court in the Charkaoui case. I also recommend the Justice for Mohamed Harkat page, which is effectively a clearing house for critical commentary and activism related to security certificates.

The remarks that follow relate to the current talking points of the Canadian Government in its support of security certificates and the new C-3 legislation. I suggest that we can understand the major themes or talking points of the government and other security certificate supporters as tactical components (language games) of a broader discourse (a strategic mode of power, following Foucault) that seeks to shape and circumscribe our understanding of contemporary security and politics. This (in)security discourse is inherently problematic. It reproduces the image of a post-September 11 ‘new normalcy’ where transnational terrorism is an ambiguous but omnipresent peril that acts as a fulcrum upon which democracies must balance security and liberty – a corrosive worldview that guarantees consequences and fails to deliver benefits.

Some quick background: Two Federal Government Ministers, operating on intelligence from the Canadian Security Intelligence Service (and other agencies), can sign a security certificate against a non-citizen deemed to be a threat to national security (among other reasons). The certificate is reviewed by a Federal Court judge. If upheld, it is considered conclusive proof of inadmissibility, and the named individual is detained pending deportation to their country of provenance. Since this is an administrative procedure and not a criminal justice procedure, there are no charges laid, and no trial. The individual is given only a brief summary of the evidence against them, but does not have the opportunity to challenge it in a court of law. In the post-September 11 context, five security certificates have been issued against Muslim men alleged to be involved in terrorist activity. The ‘Secret Trial Five’ have not been deported, as their countries of provenance – Algeria, Syria, Egypt – are known to practice torture on alleged terrorists (see the Maher Arar case for an example); to deport these men would place Canada in violation of the ‘non-refoulement’ clause in the United Nations Convention Against Torture (UNCAT). This has resulted in the long-term and indefinite detention of the named individuals, and / or the imposition of extremely strict bail conditions. In the February 2007 Charkaoui case, the Supreme Court found security certificates to violate that Charter on two main grounds. First, the secrecy of the proceedings violates the s. 7 right to life, liberty, and the security of person, and second, the prospect of indefinite detention without regular review violates the s. 9 protection against arbitrary imprisonment. The Court suspended the implication of its ruling until February 2008, in order to give the government a year to revise and ‘Charter-proof’ the security certificate mechanism. In late October of this year, the Conservative 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”, a piece of legislation that addresses the specific procedural fairness concerns of the Charkaoui Court in a bare-minimum fashion. C-3 leaves the fundamental underlying problems of the certificate mechanism unaddressed. It papers over these problems and attempts to give both legality and legitimacy to something (indefinite detention without trial and deportation to probable torture) that is, to use David Dyzenhaus’ words, ‘un-legalizable’.

In my next post, I will introduce and problematize five key talking points that emerge from the debates over C-3 - five maneuvers in a political process that is seeking to entrench security certificates in Canadian law.