Thoughts on the May 2009 Auditor General's Status Report Chapter on National Security: Intelligence and Information Sharing

This is my first blog post in a long time, and hopefully the start of a resumed commitment to this project. I am cross-linking the post to my new blog site, which is easier for me to use and maintain. This will be my last blog post on the blogger site, though I will keep the page around as an archive.

On to today's post:

The following is a very rough set of notes on a recent Auditor General's Report. It is written with my current work on security certificates in mind.

- Mike

On March 31, 2009, the Office of the Auditor General (AG) of Canada issued a Status Report that included a chapter on National Security: Intelligence and Information Sharing. This chapter is concerned with the implementation status of recommendations made in two previous AG reports, a 2003 report on independent review mechanisms for security and intelligence bodies and a 2004 report on intelligence management. The latest report covers 14 departments and agencies, and addresses a range of issues, though the media response has focused on the finding that “Transport Canada may still be allowing high-risk individuals with criminal links to be cleared for access to restricted areas at airports” (AG 2009, p. 3). The discussion of intelligence sharing arrangements between government departments is of general interest, with the AG finding that the flow of information between agencies is still uneven. By virtue of the nature of the AG mandate, emphasis is put on progress towards the goal of developing a fluid information sharing system, with little attention paid to the socio-political ramifications of the ongoing shift towards an intelligence-based governing framework. 

As Regards Security Certificates:

The AG Report does not specifically mention security certificates at all. Nor does it take into account the recent Federal Court jurisprudence (from certificate cases) that deals with issues such as intelligence disclosure and retention or the ‘covert informer shield’ for intelligence sources, or the implications of intelligence-gathering related to compliance monitoring in certificate cases. The discussion of intelligence sharing also excludes any references to the Charkaoui # 2 SCC ruling. I would suggest that this reflects a failure to appreciate the extent to which the legal battles over security certificates have shaped - and continue to shape - the Canadian (in)security field.

Despite this, the Report does touch on several issues of relevance to a discussion of security certificates, particularly as regards the role of the Canada Border Services Agency (CBSA - one of the 14 ‘intelligence departments and agencies’ under scrutiny by the Auditor General). Among its many other duties, CBSA is responsible for the enforcement of security certificates and with the monitoring of detainees on conditional release. The Report adds some additional weight to the ongoing debate over national security accountability reform, and - of particular importance - the review and oversight of the CBSA.

CBSA Review

The Report notes that the CBSA does not have a separate review body charged with monitoring its intelligence activities. This puts CBSA in a category with DFAIT and DND, as agencies that openly claim to be engaging in ‘security intelligence’ activities, but are not subject to review or oversight in this regard. Indeed, CBSA stands out as an agency with an obvious and critical lack of any meaningful review body, despite the fact that it engages in both policing and intelligence-gathering, as well as immigration detention, all at the federal level. By contrast, Canada’s federal police force (the RCMP), its primary intelligence service (CSIS), and its federal correctional service (CSC) all have review, oversight, and / or ombudsman bodies. The need for effective review of CBSA’s national security activities was addressed by Commissioner O’Connor in his Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, and O’Connor made a number of sensible recommendations - including the expansion of the mandate of the Security Intelligence Review Committee (SIRC) to include CBSA. To date, the Government has yet to act on this recommendation, and I have seen nothing to indicate that CBSA is voluntarily working towards developing a review capacity.

CBSA is clearly in need of a robust review body, for a variety of reasons. While the Auditor General’s Report does not call for the creation of such a body, it does point to a core principle that should be referenced in efforts to create one - the principle of proportionality. In its 2003 Report, and in reference to SIRC, the Commission of Public Complaints against the RCMP, and the Commissioner of CSE, the Office of the Auditor General recommended that “security and intelligence agencies be subject to levels of external review and reporting that is proportionate to their level of intrusion into the privacy of individuals” (AG 2009, p. 1). The AG Report notes that this principle has been endorsed by background papers prepared by Public Safety Canada regarding the activities of Canadian intelligence agencies.

CBSA is part of Canada’s ‘intelligence community’, and it has it’s own intelligence directorate. It gathers and processes intelligence, and distributes it to / receives it from partners. For example, CBSA’s security certificate case monitoring manual notes that:

The use of the listed tools in the collection of information and evidence is directed toward proving or disproving a breach of conditions. Even when a breach of conditions is not apparent, the information may be beneficial for intelligence purposes.

Where possible, monitoring officers should attempt to gather intelligence for use by headquarters, the regions and other government departments. 

[...] Intelligence provides a useful tool in risk-based management of the ISSC, so it is key to involve intelligence specialists in the management of these cases (CBSA case monitoring manual, s. 9.13)

We know from the security certificate cases that this combination compliance monitoring / intelligence gathering can be incredibly invasive, and can directly - and negatively - impact the privacy of the families and associates of persons subject to security certificates. The Federal Court has held that where certain bail conditions are concerned, the ostensibly voluntary participation of the family in the monitoring agreement effectively waives their reasonable expectation of a right to privacy. Mr. Mahjoub has recently ‘voluntarily’ returned to solitary indefinite detention, rather than continue to expose his family to that level of intrusive surveillance. 

If we apply the principle of proportionality endorsed by both the Auditor General and - in a parallel context - Public Safety Canada, whereby review should be commensurate with the level of intrusion, it is clear that CBSA represents the opposite of the gold standard. The Agency has the power to be pervasively invasive in its intelligence activities, and has no review body whatsoever - for its national security activities or its ‘normal’ operations. Complaints about CBSA’s intelligence activities are dealt with in-house or, as has been the case since 2006, through Federal Court jurisprudence in the individual security certificate cases. In fact, the Federal Court, already involved in the administration of the secret portion of certificate proceedings by virtue of its role as the gatekeeper of information, has taken on the role of a strictly-reactive, inconsistent, and inadequate pseudo-review body for CBSA. Security certificate hearings regularly involve ‘revelations’ about the nature of CBSA’s activities, coupled with Federal Court decisions about their reasonableness. Most of these matters could and should be handled more effectively - and with the care they clearly deserve - by a dedicated review body. 

Review of Integrated Activities

I have previously emphasized the importance of developing an effective integrated national security review framework for Canada. For example, in an October 2008 op-ed on the Iacobucci Inquiry, in Embassy Magazine, Wade Deisman and I stated:

“... as the O'Connor and Iacobucci inquiry reports show, the transnationalization of security sector operations has not been accompanied by a comparable revolution in accountability and oversight capacities. CSIS and the RCMP have their own review or oversight mechanisms, but the specificity of these institutions makes them anachronisms in a context defined by multi-agency, transnational operations. How can rigid accountability structures be expected to govern complex, integrated activities?

The answer is that they can't. And this is the major lesson that we must take from the Iacobucci Inquiry, and the Arar Inquiry before it: While both reports found deficiencies to exist within agencies, the real problems occurred in that murky space between them. It is these murky spaces that give root to the branching problem of accountability gaps identified by both inquiries.”

Commissioner O’Connor made some thorough recommendations regarding the review of integrated national security activities - including intelligence activities - but the Government has yet to take action on this. The Office of the Auditor General has expressed similar concerns about integrated review gaps, both in previous reports and in the May 2009 Report. The AG Report notes that 

“Because the external review agencies have a mandate to review only single agencies, but more and more security work is done by joint task forces, there is an increased potential for review agencies to be unable to access the entire record of an investigation” (AG 2009, p.9).

This is, in part, attributed by the AG to a lack of coordination around information sharing between agencies. But the larger picture is still one of agency-specific review bodies attempting to respond to integrated, multiagency security activities and intelligence flows. 

Security Certificate cases are a prime example of this. They involve complex, multi-year interactions between CSIS, the CBSA, and a variety of other departments and agencies (CSC, RCMP, DFAIT, provincial agencies, etc.). Some of these collaborative activities are governed by Memoranda of Understanding (such as the MOU between CBSA and CSC regarding the operation of the Kingston Immigration Holding Centre) or formal letters (such as the letter that sets out the relationship between CSIS and CBSA regarding wiretapping and electronic intercepts related to security certificate bail monitoring). Other activities seem more informal, and the terrain is constantly shifting in response to jurisprudence around the security certificate cases, making for a very fluid dynamic; what is standard operating procedure one day - for example, the interception of solicitor-client telephone conversations - may be discontinued on the next. While the agency-specific review bodies can engage with those parts of the puzzle that fit their mandate, there is no single entity tasked with reviewing the security certificate process in its entirety.

Combined with the findings of various previous reports, the Office of the Auditor General’s finding of deficiencies in review potential for integrated activities can be drawn on to support a call for meaningful supra-agency national security review body. Such a body would - drawing on O’Connor’s recommendations - be in position to coordinate the review of complex activities like security certificate cases.

Conclusion:

The creation of a review body for the CBSA’s national security (and / or other) activities and / or the development of an integrated review body with the mandate to review the various processes related to security certificates would not be solutions to the problems inherent in the certificate mechanism. However, they would definitely be steps in the right direction. A strong CBSA review body is particularly necessary, as the Agency is presently operating beyond the scope of meaningful independent review. If the Government is serious about developing a meaningful intelligence review framework (and, in the current political context, this is far from evident), then review capacities should match intelligence capacities, according to a principle of proportionality, rather than being tied to agency-specific stovepipes. In other words, it is the intelligence-related activities of agencies / departments that require oversight, not just the activities of intelligence agencies. The findings of the May 2009 Auditor General’s Report can be cited in support of this argument. 

Remember the Arar Commission?

There was much discussion and fanfare yesterday, as the government announced the creation of a new council to oversee the restructuring of the RCMP. 

The RCMP Reform Implementation Council has been created to follow up on and implement the recommendations made by the Task Force on Governance and Cultural Change in the RCMP. Some months back, I did a three-part blog on RCMP reform, comparing the Task Force report to the recommendations made by the Arar Commission of Inquiry. You can see part 1 of the series here, part 2 here, and part 3 (the comparative analysis and discussion) here. In particular, I compared the two models of oversight put forward by the two reports. In my conclusion, I noted that the model put forward by the Task Force fails to address the problems that RCMP national security activities (and other forms of collaborative or integrated policing) pose for governance and oversight. In short, the Task Force report seems to have ignored the lessons learned from the Arar Inquiry (or rather, conveniently ignores that the whole Arar Affair took place at all). 

We are now at the implementation stage, and it is clear that the government has opted to follow the Task Force report as a guideline for the restructuring of the RCMP (see, for example, the Council's terms of reference). You can look at the bios of the Council members (as provided by Public Safety Canada) here. The RCMP has announced that it welcomes the creation of the new Council, and that an internal Change Management Team has been established to work with the Council on restructuring.

I am not entirely critical of the Task Force report, and some of the recommended changes which will be implemented in the coming months have merit. But, the report is a management document, written by managers and bureaucrats, and its goal is to improve the "organizational excellence" of the RCMP as a corporation. The O'Connor Report, following from the Arar Inquiry, is based on a different set of objectives, and it follows from one of the most serious and consequential episodes in the history of the force. If RCMP reform is not to take place along the lines recommended by O'Connor, at the very least his remarks about the review of RCMP national security activities must be taken into consideration.

Major structural changes to the RCMP do not occur often, and it is unlikely that we will see another window of opportunity for the substantive enhancement of the organization's accountability, review, and oversight mechanisms in the near future. So, if the recommendations of the O'Connor Commission on this matter are to have any teeth at all, the time for them to be taken up is now. The very idea that, less than two years after the filing of the final report in the Arar Inquiry, RCMP reform could go forward with no formal reference to the Arar Affair is troubling, to say the least.  That such a reform plan could be announced without the media asking any questions related to Arar or the Commission is baffling. Sure enough, though, the CBC, The Globe and Mail, and CTV all allowed their reporting on the story to be framed by the government's own remarks (which omit any mention of Arar). The critical commentary that I have seen from the Canadian media deals with whether and to what extent the new Council will follow all of the recommendations of the Task Force, and about the composition of the Council itself. 

The Task Force report, Rebuilding the Trust, makes only one mention of the Arar Affair. On page vii, in the introduction, the report notes that

"At the time of our appointment and throughout the term of our mandate, the RCMP was under intense public scrutiny. In addition to the Investigative Report, Justice O'Connor had recently released his report on the Arar affair and made very significant recommendations."

That's it. 

My concern is that, for political reasons, specific references to the O'Connor Report, and through it, to the Arar Affair, will be conspicuously absent from the publications of the RCMP Reform Implementation Council, its internal RCMP counterpart, and other parties involved in this restructuring effort. And, consequently, it will be very difficult for us as citizens to evaluate the end product of the process in light of the concerns raised by Commissioner O'Connor. 

I will be following the progress of the Council, and writing about the RCMP restructuring process as it unfolds.

All the best,

- Mike

Dispatch from the Surveillance Society: Panoptic Playthings

There are many ways to approach the study and critique of the emergent surveillance society. Often, those of us who take a strong normative stance against the expansion of systems and assemblages of surveillance will engage with this discussion by drawing on Michel Foucault's work Discipline and Punish, in which he uses Bentham's concept of the Panopticon as a metaphor for disciplinary technologies and related deployments of power and reorganizations of the social. It is also popular to draw on Orwell's image of Big Brother, the embodiment of sovereign power and Argus-like surveillance in the totalitarian setting of Nineteen Eighty-Four. Both Orwell and Foucault offer useful entry points for the study of top-down and imposed surveillance, and a good deal of contemporary literature has drawn on them to critique the expanding infrastructure of the late modern surveillance state.

But the vast expansion of state-coordinated (and otherwise top-down) systems of watching is only one component of the surveillance society. Another component, and in the long run, probably a more pernicious one, is the growing banality of surveillance - the increasing normalization of watching and being watched that has come to characterize our digitized and monitored lives in the 21st Century. Foucault and Orwell offer us resources for making sense of this dimension as well. For Foucault, it is the internalization of the panoptic gaze and ensuing processes of self-policing and voluntary docility that marks the full realization of disciplinary power. And the true horror of Orwell's dystopian and prescient work of fiction is not found in the character of Big Brother, but in the fearful obedience of the populace, the inscription of citizens as components of the overarching surveillant assemblage (Little Brothers), and the way that total surveillance is experienced as a normal part of everyday life.

Indeed, insofar as surveillance powers remain associated with the structures of government, they are at least made intelligible as components of a set of class and power relations that can be identified and resisted. This is not to say that resisting the expansion of the surveillance state is an easy or straightforward task - but compared to the current state of things, a straightforward relationship between the totalitarian watcher and the surveilled populace would at least involve a manageable cast of characters. Alas, at present, when systems of surveillance and processes of watching have become diffused throughout the range of social interactions, resistance seems comparatively far more difficult.

Today, submission to processes of monitoring has become a prerequisite for access to the full benefits of late modern society. Examples abound, and I won't review the creep of surveillant assemblages in the form of 'preferred customer' technologies, identity verification schemes, and the growth of access-controlled spaces (both virtual and real, if such a distinction can hold).

Instead, I want to spend some time thinking about the onset of the contemporary surveillance society from the perspective of those who have been born into it and who are now being socialized to its normalcy.

My question is this: How will someone who was born in the opening years of the 21st Century (or even the last decade of the 20th) read Nineteen Eighty-Four? What will the dystopian vision of Orwell look like to someone who has grown up with biometrics, CCTV cameras on street corners, RFID, interconnected personal information databases, a dominant discourse that conflates surveillance and security, Facebook, MySpace, and a culture that recognizes social experience as having 'happened' only after it has been digitally recorded and broadcast on the Internet for posterity's sake? How will privacy be understood by those who come of age at at time when the profoundly anti-democratic but nonetheless popular slogan 'nothing to hide, nothing to fear' coexists alongside forms of sociality that encourage us to live through our data doubles? Will the message of Nineteen Eighty-Four be lost on a generation for whom its vision of surveillance seems obsolete? Will the image of the telescreen on Winston's wall hold any horror for people who communicate with videophones and validate their identities with iris scans before taking a test in school?

I don't know. I'm not entirely pessimistic, and I don't want to appear dismissive of the spirit of resistance to be found in the coming generation. Perhaps it will take the widespread solidification of the most extreme forms of the surveillance society to wake up a somnambulant public; certainly, those of us who are living through its emergence are doing a bloody poor job of standing up for ourselves at the moment.

But I believe that resistance is an act of consciousness. And for there to be resistance to the growth of the surveillance society, there must be a conscious recognition of its existence, of its problematic nature, and of the possibility of alternatives. This is why I am concerned less with the growth of the surveillance state than I am with the broader development of scopophilia - a normalization (indeed, valuation) of watching and being watched, viewing and being viewed, throughout all aspects of social life in late modern society (see David Lyon's excellent essay "9/11, Synopticism, and Scopophilia in the edited volume The New Politics of Surveillance and Visibility for more on scopophilia).

I get particularly concerned about the socialization of and towards surveillance when I come across things like this:

This is the Playmobil 'Airport Security Check-In' set, a toy set designed for young children. Playmobil's website says that "The figure's size is perfectly suited for the hand of a child and the pleasant facial expression makes it ideal for any play situation". Let's ignore the obvious superficial problems - the 'pleasant facial expressions' are entirely out of place given the setting, which almost universally regarded as, at best, a necessary evil; and the realism of the situation is lessened by the fact that the person about to be scanned is still sporting footwear.
At a deeper and more serious level, I wonder about what it means that we have, in the contemporary context, internalized the structures of the surveillance society to such an extent that we think nothing of making an airport security checkpoint the setting of a children's playset. What message does this impart? I would love to speak with a parent who has purchased this toy for their child. Does the security checkpoint now fall into that group of everyday life situations that we understand as normal, functional, and unproblematic? What social dynamics and power relations are being mimicked and internalized when a child interacts with this toy? For a hint, we might turn to Playmobil's description of the set:

"Every single smuggler is caught at the security check-in. With a modern X-ray machine every item not allowed on board is detected. At the same time, the passengers have to pass the passenger check-in under the watchful eyes of the security staff. Only then can they start in their hard-earned vacation."

At the risk of being accused of reading too much into this, I think it is important to note that even this short description reproduces the idea at the heart of the surveillance society - that the trade-off of privacy or personal information for some kind of benefit (in this case, permission to go on vacation) is normal and unproblematic.
Here's a breakdown of the parts in the playset:

It's all there, then. Two authority figures, some fancy and apparently infallible technology, and a citizen that need only comply in order to reap the rewards (vacation playset sold separately).

(It's unclear as to whether the second pistol is supposed to accompany the fellow with the scanner or the passenger - I'll leave that one up to the imaginations of children).

I'll close with an excerpt from Cory Doctorow's weekend article at boingboing, which is about the fingerprint readers that have become features of Walt Disney World's turnstiles, ostensibly to "keep Disney World customers from sharing or re-selling their admission tickets" (see also Clifford Shearing's classic article "From the Panopticon to Disney World: The Development of Discipline - 2002).

from Doctorow:

The readers aren't very effective at stopping admission cheats. You can choose not to register your fingertip, and to use photo ID for admission instead (I'm thinking of having a random piece of photo identification made with the words "OFFICIAL BOGUS SECURITY IDENTIFICATION FOR HOTELS, THEME PARKS AND OTHER JUNIOR G-MEN" printed on it). So it would be very easy to share your pass: the person named on the pass enters with his ID, and the person with whom he's sharing the card uses a fingertip -- you could visit with your sister's family and half of you could use the tickets in the morning while the other half hung around the pool and relaxed, then switch at lunch: the morning crew uses fingertip, the afternoon uses ID.

What these readers are effective at is conditioning kids to accept surveillance and routine searches and identity checks without particularized suspcion. One morning at Epcot Center, as we offered our ID to the castmember at the turnstile and began to argue (again -- they're very poorly trained on this point) that we could indeed opt to show ID instead of being printed, a small boy behind us chirped up, "No you have to be fingerprinted! Everybody has to be fingerprinted!"

To all those parents who worry that Disney will turn their kids into little princesses, it's time to get priorities straight: the "security" at the parks is even more effective at conditioning your children to live in a police state.

All the best,

- Mike

New Security Certificates Law Escapes Both Public Scrutiny and Democratic Dissent

I haven't had the chance to post an article here for the last few weeks, but I intend to remedy that this week.

Below, please find the text of an article co-authored by Wade Deisman and myself for Embassy: Canada's Foreign Policy Newsweekly. Professor Wade Deisman is a long-time friend and colleague, and the Director of the National Security Working Group, at the University of Ottawa.

Here's the original URL

And here's the text:

Embassy, March 5th, 2008

OPED

New Security Certificates Law Escapes Both Public Scrutiny and Democratic Dissent

By Wade Deisman and Mike Larsen

When the Supreme Court last February declared security certificates to be unjust, the mood amongst the five men currently held by such certificates was cautiously optimistic, though a far cry from festive. 

Although the high court concurred with the petitioners in finding the then-extant security certificate process unconstitutional, its judgment fell short of fully denouncing the practice. 

The decision contained caveats that quashed any hope for the men's immediate release, and placed their fates in a kind of suspended animation. 

In fact, the high court suspended applying its judgment for a year to allow lawmakers time to decide how to proceed, and even outlined some ways the process might be modified. 

The high court said that a better balance between the state's desire to protect secret information and an individual's right to a fair hearing might be achieved by introducing a special advocate into the security certificate process. 

The court reviewed a number of special counsel models, including the amicus curiae format used in the Arar Inquiry, the model associated with the Air India trial, the process used for secret information under the Canada Evidence Act, the British Special Immigration Appeals Commission (SIAC), and the Security Intelligence Review Committee (SIRC) model. 

Of these, the court emphasised the last, which attempts to preserve an adversarial process, and was used for security certificate cases until 2002. 

In the following weeks, those involved in the challenge called for a full public debate on the court-identified models identified. But the government remained silent, apart from indicating it intended to draft new legislation. 

Such public reticence seemed initially understandable—arguably excusable. After all, some argued, the government ought to take time behind closed doors to weigh its options and formulate a strategy aimed at meeting the court-imposed deadline. 

As time wore on, however, this allowance wore thin. Some began to suspect that silence itself was a part of the strategy. 

The government, critics charged, was not dragging its feet so much as biding its time, waiting until the last possible minute to introduce new legislation and create an eleventh-hour scenario that would deter dissent by creating a situation wherein anyone associated with its expression might run the risk of being seen as sympathizing with the five men being held, or worse still, being responsible for setting them free. 

Whether or not this allegation is true, the fact remains that by the time Bill C-3 reached the Senate, the court's grace period had very nearly expired. Faced with a do-or-die situation, those in the upper chamber saw fit to forfeit a full interrogation of the new law in the name of a higher duty. 

Normally, this kind of legislation would receive at least four weeks of Senate hearings. Bill C-3 was dealt with in a single 10-hour session. In the end, the Senate's decision contrasted sharply with the submissions made by the hastily-compiled group of witnesses, the vast majority of whom expressed serious misgivings with both the bill's content and the truncated legislative process that produced it. 

Indeed, the only submission to the Senate in support of the bill came from the public safety minister himself. 

The new security certificates law was so expertly manoeuvred through the system that it largely escaped both Scylla of public scrutiny and the Charybdis of democratic dissent. 

So Canada now has a new security certificate process, but at what cost? 

One obvious price is confidence in the fairness and probity of the new process. The new approach is based heavily on the British SIAC model despite expert testimony favouring Canada's SIRC system. 

It places limits on contact between the advocate and the individual subject to a certificate once the advocate has had access to secret information. 

This will make it difficult to seek simple but potentially important clarifications from the named individual. 

Additionally, while the SIRC model immediately grants counsel access to the full dossier of government information except cabinet confidences, the new Canadian model merely allows an advocate to ask that certain data be made available. 

This means that advocates will have to engage in fishing expeditions to get material that is not introduced by the government but might be of value to the case. 

It seems only a matter of time before the special advocate system is challenged before the Supreme Court. 

A second cost lies in the missed opportunity for broad participation in both debate and problem solving. 

At every stage in the legislative process, the government was presented with detailed and reasoned criticism of its proposal; and, at every stage, meaningful debate and the opportunity to revise and strengthen the bill was short-circuited by assertions that that hesitation would endanger Canada's national security. 

Even if the security certificate system is procedurally fair, its intended outcome is still deportation. In each of the five existing cases, this would involve returning an individual to a state known to engage in torture, contravening Canada's international obligations. 

What can we learn from the delayed tabling of C-3 and how it was rammed through Parliament? Not much that is particularly novel or even profound. 

Canadian democracy is still highly susceptible to the politics of fear. The spectre of complacency in the face of an unspecified terrorist threat can be leveraged to tilt the field in favour of fear and push aside major reservations and misgivings. 

And, perhaps, that the façade of urgency can be fabricated as a matter of stratagem, for there is nothing so unifying as the illusion of exigency and the fiction of a heroic, come-from-behind, saves-the-day effort in the name of securing the country. 

Wade Deisman is director of the Ottawa-based National Security Working Group and has taught courses on terrorism, law and policing at the University of Ottawa. Mike Larsen is a PhD candidate in sociology at York University, and a researcher at the York Centre for International and Security Studies. 

editor@embassymag.ca 

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.