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 ***