FROM: http://cforcese.typepad.com/ns/2009/11/parsing-the-law-on-torture-criminal-culpability-in-the-afghan-detainee-controversy.html
Cross-Referencing: National Security Law (NSL), Ch. 10, pp. 542 et seq.
There has been substantial attention directed in the last week to parliamentary testimony by a Foreign Affairs official on who knew what and when about the possible torture of Afghan detainees transferred by Canadian Forces to Afghan prisons. Much remains to be resolved about the facts in this case (not least contradictions between the official's testimony and that of Canadian generals this week), and the dust has not yet settled. But even at this juncture, there is a subtext of commentary on the possible criminal culpability of Canadian Forces personnel, and perhaps those in the civilian chain of command in Ottawa, for these transfers. All of the discussion I have seen so far raises “war crimes”, whether in the context of the Crimes Against Humanity and War Crimes Act or the International Criminal Court, or “torture”, within the meaning of section 269.1 of the Criminal Code.
I’m not persuaded by what I’ve seen so far on these two issues (at least insofar as Canadian law is concerned). I thought I’d memorialize my doubts, perhaps enticing a correction from those who know this area better than I do.
In preface, let me repeat observations made in NSL: the prisoner transfer “arrangement” between Canada and Afghanistan that existed before revisions in 2007 was inadequate. The absence of independent follow-up after transfers was an obvious flaw, one not present in the transfer agreements concluded by other NATO countries. This was a critique advanced by others – such as Amir Attaran – well before me, and I believe he and others were correct and insightful to do so.
The more recent 2007 arrangement is much more robust, although like others, I persist in the view that no arrangement can really guard against torture where such acts are pervasive. I remain among those who think that Canadian investment in properly run prisons (run by NATO or under close NATO supervision) should have been part of our involvement at the outset. People I respect tell me that’s naïve. It’s hard for me to believe, however, that the downside of such an investment would be worse that the torture controversy that has since swirled around the Afghan deployment. Nor do I agree with the “sovereignty” complaint; that such a prison would unduly infringe Afghan sovereignty. The 2007 “arrangement” does sovereignty infringement in a big way – a NATO run prison would simply be more of the same.
This is all water under the bridge. The question of the day is now criminal culpability. That issue raises a number of sub-questions. In dealing with these, I shall assume the worst-case description described in the parliamentary testimony; namely, that Canadian soldiers and officials knew that prisoners they were transferring were being tortured. I do so for the purpose of the discussion below, without prejudging what may become known about the facts in the future.
War Crimes?
First, could a Canadian Forces (CF) soldier doing the transferring (or their superior who ordered the transfer) be culpable under the Crimes Against Humanity and War Crimes Act (CAHWC Act). Torture is a war crime. This is true whether we assume the conflict in Afghanistan is a non-international or international conflict. It is the former and has been at for some time, in my view. But either way, torture is precluded by Geneva Convention III (for international conflicts) and Common Article III and Additional Protocol II (for non-international conflicts) and by customary international law.
But I’m not aware of any credible allegations of Canadian soldiers doing the torturing. We’re in the realm of transfer to torture. Transfer to torture is dealt with in international law; not least in the UN Convention Against Torture, Art. 3. And I think there are reasons to believe that that treaty’s bar on removal to torture could apply to Canadian conduct within Afghanistan. See NSL, pp. 542-3. But Article 3 is not a source of individual criminal culpability (as opposed to state responsibility).
If this were an international conflict, governed by Geneva Conventions III and IV, there would be concrete rules in international humanitarian law on prisoner transfers – not least, the sending state must be satisfied that the receiving state will abide by the Conventions in terms of prisoner treatment.
But this isn’t an international conflict, so we have no codified rules on prisoner transfer of any particular note. That said, s.6 of the CAHWC Act makes it clear that one can be culpable of a war crime when one “conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to” that war crime; e.g., torture. So an obvious limitation on prisoner transfers, even in a non-international conflict, is “don’t transfer in a manner that amounts to conspiring, attempting, being an accessory or counseling” torture. If you do, then there is a possibility of criminal culpability, both individually and through command responsibility.
Which brings us to the specifics of the Afghan detainee issue. I don’t see how, even if all allegations made last week prove absolutely true, you reach any of these “inchoate” offences of conspiracy, attempting, being an accessory or counseling. As I suggest in the table below, all of these things require an actus reus and mens rea aimed at producing the criminal conduct (the torturing). As such, they just don’t fit what, as suggested in the testimony, was a careless, indifferent, wrong-headed, and foreseeably inadequate policy, but not one intended to produce torture.
As for command responsibility, s.7 does use the words “criminally negligent” to describe a failure of supervision by a superior officer. But that language can’t be read in isolation. It refers to criminal negligence in terms of supervising the person under the superior’s authority who actually commits the actual war crime. So you still need someone within the CF chain of command committing the underlying war crime. Per the discussion above, that doesn't exist on the present facts. Command responsibility based on an argument that CF officers had effective control over the Afghan prison guards who did the torturing seems a total non-starter.
(As an addendum, the concept of aiding and abetting applied in international criminal law appears to be less demanding of the mens rea requirement that is the case for the inchoate offences listed in the CAHWC Act. There, knowledge may suffice, without a more specific intent to assist in the perpetration of the crime aided and abetted. See the discussion in Joseph Rickhof, "Complicity in International Criminal Law and Canadian Refugee Law," (2006), 4 Journal of International Criminal Justice 702 at 707. Aiding and abetting is not, however, mentioned in the CAHWC Act. Moreover, this international jurisprudence was developed by the ad hoc tribunals for the former Yugoslavia and that for Rwanda. I note that the concept of aiding and abetting in the Rome Statute, creating the international criminal court, specifies that the aiding and abetting must be for "the purpose of facilitating the commission of the crime", which seems to impose a test that precludes mere transfer with knowledge of torture from being cognizable as aiding and abetting. If I am wrong on this, I certainly welcome a correction.)
Torture?
Section 269.1 of the Criminal Code makes torture a crime, whether it occurs within Canada or abroad. Once again, we are not discussing here torture committed by the Canadian Forces. So could a CF soldier still be culpable under the Criminal Code for torture committed by an Afghan official? Like the CAHWC Act, the Criminal Code includes inchoate offences, most notably those in section 21 et seq. The one of greatest note here is “aiding and abetting”. As the chart below suggests, aiding and abetting comes closest to “transferring to torture” from an actus reus perspective. But the mens rea (in Canadian law) appears to require more than recklessness – it requires more specific intent to actually contribute to the criminal offence. (And this ignores the mind-bending issue of whether s.21 itself has extraterritorial reach when tied to section 269.1, or instead is confined to aiding and abetting that occurs in Canada).
(SEE LINK FOR CHART)
What’s Left?
I readily concede that in my quick musings on this question I may be missing something. But until corrected, I’m left with the view that the war crimes and torture culpability discussions I’ve heard to date skate quickly over “complicity” to criminal culpability, without unpacking what “complicity” really means. That complicity has to fit the round peg of Canadian criminal law, and to date the facts don’t fit that round peg.
So does that mean the criminal law has no place here? No, of course not. Here’s what I would be most concerned about if I was in the CF or government.
Under s.130 of the National Defence Act, the Criminal Code travels with the CF, and applies to their conduct abroad. So criminal culpability remains to be measured against all of the offences in that tome. The most obvious is criminal negligence:
219. (1) Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.
221. Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
(Note that a CF soldier was recently prosecuted for criminal negligence in relation to the discharge of a weapon that killed a fellow soldier in Afghanistan). Everything hinges on the facts of the Afghan transfer issue and whether it transgresses the standard of “wanton or reckless disregard”. As noted, the dust hasn’t settled on that yet, but criminal negligence may be a likely candidate. A wanton and reckless transfer would be causally linked to the ultimate bodily harm, and presumably cognizable as criminal negligence.
An interesting subsidiary question is whether the prisoner transfer arrangement applicable at the time insulates those doing the transferring from any claim that they were acting wantonly or recklessly. Would it matter that the arrangement was inferior to others applied by other Alliance forces? Could its actual existence be used as evidence of actual knowledge of risk, which was then recklessly disregarded through continued transfers even once the inadequacies of the arrangement became clear?
A further question concerns those in the civilian chain of command who may have issued the instructions that culminated in the transfer to torture. Could culpability extend to these people? Well, if we assume that instructions were issued in Ottawa that transgress the criminal negligence threshold, at least part of the conduct that might be construed as criminal negligence took place in Canada. In these circumstances, it seems plausible that a Canadian court would have jurisdiction per the Supreme Court’s reasoning in Libman v. The Queen.
All of this leads to my view that Canadian criminal law could be in play in the Afghan detainee controversy, just not the criminal law I hear most discussed to date. To repeat – I think we need more facts to make a clear-headed judgment on this issue. And getting to those facts must be an absolute priority.
[1] See, e.g., R. v. Alcantara, [2009] ABQB 524 at para. 31 et seq.
[2] R. v. Ancio, [1984] 1 SCR 225.
[3] R. v. Hamilton, [2005] SCC 47 at para. 29.
[4] R v. Helsdon, (2007) 84 OR (3d) 544 (On CA).
Showing posts with label Craig Forcese. Show all posts
Showing posts with label Craig Forcese. Show all posts
Saturday, December 26, 2009
SECURITY CERTIFICATES - PLAN B
FROM: http://cforcese.typepad.com/ns/2009/12/security-certificates-time-for-a-plan-b.html
Security Certificates: Time for a Plan B
Cross-referencing: National Security Law (NSL), Ch. 10 pp. 410 et seq. and Ch. 14, pp. 569 et seq.
In an October 2009 opinion editorial in the Globe and Mail, I wrote that “[t]he security certificate system as a tool of anti-terrorism is dead.” This op-ed followed the dismissal of the certificate against Adil Charkoui, upon withdrawal of much of the secret information deployed against him. The latter act, in turn, followed a court order to disclose more information than the government (and the Canadian Security Intelligence Service, in particular) believed that it could without prejudicing national security interests. (CSIS director Richard Fadden has since described this decision as follows: “the demands for disclosure in the Charkaoui security certificate case pushed us beyond what we could accept. We were faced with a pretty fundamental dilemma: to disclose information that would have given would-be terrorists a virtual road map to our tradecraft and sources; or to withdraw that information from the case, causing a security certificate to collapse. We chose the path that would cause the least long-term damage to Canada and withdrew the information.”)
In my op-ed, I noted that four other security certificate cases “continue, and the government could ‘win’ a few in the short-term. But even if it demonstrates a reasonable basis for its allegations, the saga will continue – security certificates are supposed to be about deportation. And that prospect seems vanishingly remote because of the risk that the four remaining individuals will be tortured if deported. All of this means that the government will inevitably need a ‘plan B’ for the future.”
It seems useful to expand on my contentions in this blog, in more than the 800 words permitted for the op-ed.
The Objectives of Security Certificates
Security certificates were (and are) supposed to about removal of security threats from Canada. Detention, or other restrictions on liberty, associated with the security certificate are supposed to be temporary, persisting only up to removal. That removal is supposed to be speedier under a security certificate than are regular inadmissibility proceedings in front of immigration adjudicators. A security certificate goes directly to a Federal Court judge (whose decision on the reasonableness of the certificate is final, and amounts to a removal order). Immigration adjudicator decisions are subject to more layers of possible review.
Of course, none of these objectives have been met in relation to the five (now, four, post-Charkaoui) security certificates issued against suspected terrorists/terrorist affiliates. Unlike in past cases involving, e.g., Russian sleeper agents, removal has been vigorously contested by these five, each of whom risks removal to a jurisdiction with (at best) a spotty record on torture. Effectively, the Canadian security certificate labels (or reveals, depending on the truth of the matter) these individuals as members of organizations whose purposes are invariably at variance with the interests of their countries of origin to which they may be removed. In these circumstances, it is to be suspected that authorities in those states will have their own agendas to pursue with these individuals, giving rise to a prospect of torture that does not exist with, e.g., the removal of Russian sleeper agents.
In the result, these individuals have been detained (or subject to strict conditions on their liberty) for very long periods of time as each dimension of the security certificate system is tested up and down the court system. For these individuals, caught between the rock of removal to torture and the hard place of limitations on liberty in Canada, security certificates have become a de facto system of “control orders”, analogous in effect to the system existing in the United Kingdom and Australia.
This scenario seems likely to recur each time a security certificate is used against an individual suspected of being a terrorist/terrorist affiliate, and removal is to a country that a) has a poor record on torture and b) whose own national security interests are engaged by the individual’s suspected acts or affiliations. Moreover, this scenario is likely to recur even if, instead of security certificate, the government resorts to the regular inadmissibility proceedings under the Immigration and Refugee Protection Act (IRPA). This may be a different system, but it creates the same incentive to contest removal, and the same constitutional issues in terms of detention and removal to torture.
The Inadequacies of Immigration Law
This raises the question of whether immigration law can ever be used as an effective tool of anti-terrorism. (There is an argument that, factually, immigration remedies just displace the security risk – fortifying the Canadian border does not reduce the playing field for terrorists elsewhere. Still, I can see how displacement may still be strongly desirable, especially if it disrupts a terrorist agenda.)
Examining the question from the narrower perspective of “legally, can immigration law ever be used as an effective tool of anti-terrorism” my answer would be: Yes, to the extent immigration law can be used to, e.g., pre-screen suspected terrorists before arrival in Canada (for example, security checks and the issuance of visas). Yes, to the extent suspected terrorists/terrorist affiliates who do arrive in Canada are subject to removal to a country that doesn’t torture. No, in other circumstances.
No Removal to Torture, Period
To expand on this last statement: the IRPA at present does permit removal where national security interests are substantial enough, even where there is a serious prospect of torture. But international law does not. As discussed in NSL, Article 3 of the Torture Convention is unequivocal: no removal, no matter what, “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Article 3 further specifies: “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.” (It is worth noting that the UN Human Rights Committee has construed the International Covenant on Civil and Political Rights, Art. 7, as containing an equivalent restriction).
Accordingly, any application of the IRPA (or the Charter of Rights and Freedoms) that would allow removal in the face of these “substantial grounds for believing” would violate our international obligations. It really is that simple.
Much ado has been made about the Supreme Court’s 2002 decision in Suresh that seemed to open the door a crack under the Charter to removal to torture where the extenuating circumstances were dire enough. I think, personally, that that crack no longer exists. Suresh wasn’t dealing squarely with the issue – the comment was obiter. Since 2002, the courts seem to have become much less sympathetic to government national security claims. Most importantly, as I argue at p.577 of NSL, the Supreme Court has also since reaffirmed its commitment to interpret the Charter in keeping with Canada’s international obligations. And, as noted, those international obligations are unambiguous.
No Guarantees from Assurances
A frequently cited solution to the conundrum of removal to torture is the concept of “diplomatic assurances”; essentially, supplementary promises from the receiving state that it won’t abuse the person upon his or her return. If credible, these assurances would vitiate the “substantial grounds to believe” the person will be tortured. As discussed in NSL, p.576, assurances are regarded as doubtful guarantees by the human rights community and attracted negative commentary by the Supreme Court in Suresh (and in subsequent Federal Court cases).
The assurance concept has been pursued most earnestly in the United Kingdom. Human Rights Watch has prepared an overview of this policy. This approach earned a conditional blessing from the House of Lords in its 2009 decision of RB v. Secretary of State. Essentially, whether the assurance displaces the reasonable grounds to believe threshold is a question of fact, dependent (among other things) on the state in question and the nature of the assurance. (See in particular, the reasoning of Lord Phillips in paragraphs 106-126, Lord Hoffmann in paragraphs 182-194 and Lord Hope in paragraphs 235-242).
However, I find it hard to believe that those facts ever add up to a viable assurance in the Canadian context. The problem with assurances, of course, is that they constitute a promise not to do something that is already illegal in conventional and customary international law and, invariably, the law (and perhaps even the constitution) of the torturing country. It strains credulity that when these robust sources of obligation prove ineffectual, some supplementary memorandum of understanding will prove effective, especially if that understanding includes no on-going monitoring by the deporting country of the returnee’s status. The following are, for me, a sobering and damning indictment of assurances:
First, the assurance is not enforceable in international law. It is not a treaty obligation. The deporting state would have no standing to enforce it, even assuming that there was an international venue competent to assume jurisdiction over the dispute.
Second, a diplomatic assurance issued by one branch of government – the foreign ministry, for example – may be done completely in good faith and have no impact whatsoever over the actions of the security services. As CSIS director Fadden commented in his recent speech, “in some countries the intelligence agencies are more influential than their foreign ministries”. Whether a security service will feel bound by a diplomatic assurance entered into by some other branch of government is no sure bet.
Third, even if the security service itself agrees to the assurance, compliance depends entirely on a cost-benefit analysis: what is the cost of non-compliance against the benefits of violating the agreement. A country that views its key national security interests imperiled by the actions of the terrorist entity with which the returnee is implicated and which takes the view that extreme interrogation/intimidation is in its interests may have strong incentives to violate the agreement. The countervail is the disrepute that country would then be held in by the deporting country (assuming the latter even found out about the abuse, an uncertain possibility). That disrepute might imperil future returns and other forms of intelligence cooperation.
This may be a reasonably potent countervail where the assurance is given to, e.g., the United States or the United Kingdom – states with whom the torturing state may have important relationships. Canada’s place in the hierarchy of global power is very different, and the countervail is accordingly much weaker. Moreover, for a long time, the government has repeatedly urged (in submissions on the need to protect foreign-provided intelligence from disclosure and elsewhere) that Canada is a practical supplicant in the world of information-sharing. All told, the government’s evidence in Canada Evidence Act and security certificate cases is that we receive more intelligence from our partners than we give – we need them more than they need us. In Mr. Fadden’s words: “just as we have diplomatic links with countries with poor human rights records, so must there be intelligence links. If Canada’s only intelligence sharing took place with countries that had pristine human rights records, there would be little we could do to track threats across a turbulent planet.” It seems very unlikely indeed that we would truly imperil or curtail a relationship with a foreign state’s intelligence services over the treatment of someone we ourselves regard as a security threat.
Also of note, our record in terms of forestalling torture appears to be spotty, even where we do (presumably) have influence. The record of treatment of battlefield detainees transferred from the Canadian Forces to Afghan authorities in Afghanistan is now a matter of some controversy, but it seems very likely that some number of them have been maltreated. This is true even with the prisoner transfer arrangements concluded between Canada and Afghanistan – arrangements that while imperfect, are probably more demanding than anything likely to be found in a diplomatic assurance.
In sum, diplomatic assurances are an unsustainable solution to the inadequacies of immigration law as a tool of anti-terrorism.
Plan B
So the solution must come from a completely different body of the law. RCMP Commissioner Elliot championed a criminal law-led approach in an October 2009 speech, and it is a view I also expressed in my op-ed.
To be clear, the criminal law is no solution to the dilemmas posed by the five anti-terrorism security certificates that have proven so contentious (that is, those of Almrei, Charkaoui, Harkat, Jaballah, and Mahjoub). The alleged behaviour that has been used to implicate these individuals pre-dates the anti-terrorism provisions in the Criminal Code and Security of Information Act added by Bill C-36 in 2001. This criminal law cannot, for constitutional reasons, be applied retroactively.
Still, these individuals have been incarcerated and subject to restraints on liberty for length periods of time, and courts have now universally agreed that that fact attenuates the security threat they are alleged to pose. Put another way, if they were dangerous, they are now less dangerous and that danger can be contained by measures short of detention and even the initially very strict limitations on liberty imposed on their initial release. Plan B should not, therefore, be driven by a preoccupation with these five individuals – it risks contorting policy to fit the peculiarities of a handful of cases.
The Criminal Law’s Reach
Critically, the criminal law now reaches very far in terms of terrorist activity. As discussed in NSL chapter 7, it has a strong preemptive dimension, encompassing behaviour that once would have been unassailable in criminal law because it was “merely preparatory” to an actual offence. Indeed, it captures much – if not all – of the sorts of actions apparently at issue in the security certificate cases. Note, for example, the provisions included (rather incongruously) in the Security of Information Act:
20. (1) Every person commits an offence who, at the direction of, for the benefit of or in association with a foreign entity or a terrorist group, induces or attempts to induce, by threat, accusation, menace or violence, any person to do anything or to cause anything to be done
(a) that is for the purpose of increasing the capacity of a foreign entity or a terrorist group to harm Canadian interests [a very broadly defined concept, set out in section 3]; or
(b) that is reasonably likely to harm Canadian interests.
(2) A person commits an offence under subsection (1) whether or not the threat, accusation, menace or violence occurred in Canada.
(3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for life.
22. (1) Every person commits an offence who, for the purpose of committing an offence under … 20(1), does anything that is specifically directed towards or specifically done in preparation of the commission of the offence, including
(a) entering Canada at the direction of or for the benefit of a foreign entity, a terrorist group or a foreign economic entity; …
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years.
Note also this provision from the Criminal Code:
83.18 (1) Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
…
(3) Participating in or contributing to an activity of a terrorist group includes … (d) entering or remaining in any country for the benefit of, at the direction of or in association with a terrorist group …
Under the latter provision, entering Canada to serve as a “sleeper” for a terrorist group is almost certainly a crime. Under the former provision, entering Canada for the purpose of extorting, e.g., Tamils to provide financial support to the Tamil Tigers (a terrorism financing offence) would likely be guilty of a crime.
Proving Crimes
Proving criminal offences is another story, and is the true disincentive to pursuing this Plan B. Criminal proceedings are open – much more so than the security certificate proceeding – and disclosure rules are robust (although the difference between the two bodies of rules has been narrowed by the Supreme Court’s Charkaoui II ruling).
Accordingly, if the evidence to be deployed against an individual comes from an allied security service, extreme sensitivity over its disclosure would likely terminate a prosecution – as discussed in NSL, chapter 10, the “third party rule” and “originator control” make disclosure of foreign-provided intelligence a damning sin in intelligence sharing circles. Likewise, domestic security services are extremely wary of their own sources and techniques being dragged into open court. The Canada Evidence Act does provide a means for protecting this information from disclosure. It also allows a trial judge to toss criminal charges if non-disclosure would produce an unfair trial.
This reality makes criminal trials possible in the following circumstances:
1. The information supplying state consents to the disclosure of the key inculpatory information; or,
2. In the absence of that consent, a security-sanitized summary of the evidence can be prepared that accommodates the national security preoccupation while not materially impairing the fairness of the trial; or
3. The Canadian security services have enough inculpatory evidence of their own which does not prejudice their own sources and techniques to support a conviction (note that the common law has long recognized informer privilege in criminal trials).
(There is, of course, a fourth possibility: Canada ignores the third party rule, and uses foreign-provided intelligence in criminal prosecutions without consent. Such a course of action would almost certainly destroy Canada’s relationship with foreign intelligence services, putting in great peril further information sharing of a sort that may be absolutely critical to Canada. I do not, therefore, believe that this fourth possibility merits discussion).
Option 3 appears to be in play in the “Toronto 18” proceedings. Option 2, in effect, arose in the Khawaja case (through the Canada Evidence Act). Option 1 is the most thorny issue. The bottom line is that every state faces the dilemma of the third party rule in terrorism cases – modern terrorism straddles borders and implicates a whole web of information sharing networks. To the extent each state treats the third party rule as absolute – and refuses to consent to disclosure in the court proceedings of another state – each pursues a policy that may, applied against it, imperil its own prosecutions. The result is a sort of intelligence “beggar thy neighbour” approach.
In these circumstances, states must consider requests for disclosure of their shared intelligence carefully (and not dismiss them out of hand, or demand secrecy for even the most banal information). Indeed, it seems wise to develop protocols on how and where information can be disclosed in court proceedings, perhaps concluded initially between states with similar legal systems. These protocols would vitiate CSIS’s complaint in some of the security certificate cases that even asking for permission to disclose foreign provided intelligence creates the impression that the agency is soft on secrecy, and not to be trusted.
(As an aside, I would not support the introduction of IRPA-style special advocates in criminal cases. It departs too radically from our criminal law tradition to exclude the accused from his or her own trial – I can’t see it being desirable or constitutional or (given recent successful prosecutions in Canada) necessary. That said, I think there is a role for special advocates to represent the interests of the accused in the collateral Canada Evidence Act proceedings where decisions on the disclosure of secret evidence to the accused are made).
Preventive Detention?
Objections to a Plan B focused on the criminal law also often urge that there will be instances where actions needs to be taken immediately, perhaps even precipitously, to disrupt a terrorist plot before evidence of a quantity or calibre to support a conviction beyond a reasonable doubt has been collected.
As noted, the post-2001 terrorism provisions reach very far into once “merely preparatory” behaviour. It stands to reason that these urgent scenarios arise less often if behaviour several steps removed from actual terrorist violence is criminalized. But of course, urgent situations where the criminal law is not yet engaged will still arise, even if more rarely.
In these circumstances, the state does need a tool. As discussed in NSL, chapter 14, the United Kingdom and Australia both have tools of preventive detention and so-called “control orders” that remove or limit the liberty of action of terrorist suspects. Comparative systems of preemptive detention – or detention without charge – are described in a report by the UK human rights organization, Liberty.
Canada’s system of so-called “preventive detention” – sunsetted several years ago – is modest in comparison. The bill currently before Parliament would restore this same system. As I will describe in a supplemental blog, I believe that this system is appropriate (although the bill deserves some tightening up). I think it is enough, in the absence of a very compelling case grounded in the actual facts of the Canadian security situation that something more draconian is necessary.
Conclusion
In sum, I believe that as a legal matter, the tools for an effective system of anti-terrorism are available, even though the back of the immigration approach is broken. I defer to RCMP Commissioner Elliot on whether the sort of plan B that I support – a back to basics criminal law approach – is adequately financed. His view is that law enforcement has been the poor cousin in the post-9/11 terrorism strategy. His opinions on this point are certainly consistent with what I’ve heard from others. All of this leads to my final (and perhaps banal) conclusion: Rather than throwing more money at security certificates, we should now be better financing criminal investigations.
Security Certificates: Time for a Plan B
Cross-referencing: National Security Law (NSL), Ch. 10 pp. 410 et seq. and Ch. 14, pp. 569 et seq.
In an October 2009 opinion editorial in the Globe and Mail, I wrote that “[t]he security certificate system as a tool of anti-terrorism is dead.” This op-ed followed the dismissal of the certificate against Adil Charkoui, upon withdrawal of much of the secret information deployed against him. The latter act, in turn, followed a court order to disclose more information than the government (and the Canadian Security Intelligence Service, in particular) believed that it could without prejudicing national security interests. (CSIS director Richard Fadden has since described this decision as follows: “the demands for disclosure in the Charkaoui security certificate case pushed us beyond what we could accept. We were faced with a pretty fundamental dilemma: to disclose information that would have given would-be terrorists a virtual road map to our tradecraft and sources; or to withdraw that information from the case, causing a security certificate to collapse. We chose the path that would cause the least long-term damage to Canada and withdrew the information.”)
In my op-ed, I noted that four other security certificate cases “continue, and the government could ‘win’ a few in the short-term. But even if it demonstrates a reasonable basis for its allegations, the saga will continue – security certificates are supposed to be about deportation. And that prospect seems vanishingly remote because of the risk that the four remaining individuals will be tortured if deported. All of this means that the government will inevitably need a ‘plan B’ for the future.”
It seems useful to expand on my contentions in this blog, in more than the 800 words permitted for the op-ed.
The Objectives of Security Certificates
Security certificates were (and are) supposed to about removal of security threats from Canada. Detention, or other restrictions on liberty, associated with the security certificate are supposed to be temporary, persisting only up to removal. That removal is supposed to be speedier under a security certificate than are regular inadmissibility proceedings in front of immigration adjudicators. A security certificate goes directly to a Federal Court judge (whose decision on the reasonableness of the certificate is final, and amounts to a removal order). Immigration adjudicator decisions are subject to more layers of possible review.
Of course, none of these objectives have been met in relation to the five (now, four, post-Charkaoui) security certificates issued against suspected terrorists/terrorist affiliates. Unlike in past cases involving, e.g., Russian sleeper agents, removal has been vigorously contested by these five, each of whom risks removal to a jurisdiction with (at best) a spotty record on torture. Effectively, the Canadian security certificate labels (or reveals, depending on the truth of the matter) these individuals as members of organizations whose purposes are invariably at variance with the interests of their countries of origin to which they may be removed. In these circumstances, it is to be suspected that authorities in those states will have their own agendas to pursue with these individuals, giving rise to a prospect of torture that does not exist with, e.g., the removal of Russian sleeper agents.
In the result, these individuals have been detained (or subject to strict conditions on their liberty) for very long periods of time as each dimension of the security certificate system is tested up and down the court system. For these individuals, caught between the rock of removal to torture and the hard place of limitations on liberty in Canada, security certificates have become a de facto system of “control orders”, analogous in effect to the system existing in the United Kingdom and Australia.
This scenario seems likely to recur each time a security certificate is used against an individual suspected of being a terrorist/terrorist affiliate, and removal is to a country that a) has a poor record on torture and b) whose own national security interests are engaged by the individual’s suspected acts or affiliations. Moreover, this scenario is likely to recur even if, instead of security certificate, the government resorts to the regular inadmissibility proceedings under the Immigration and Refugee Protection Act (IRPA). This may be a different system, but it creates the same incentive to contest removal, and the same constitutional issues in terms of detention and removal to torture.
The Inadequacies of Immigration Law
This raises the question of whether immigration law can ever be used as an effective tool of anti-terrorism. (There is an argument that, factually, immigration remedies just displace the security risk – fortifying the Canadian border does not reduce the playing field for terrorists elsewhere. Still, I can see how displacement may still be strongly desirable, especially if it disrupts a terrorist agenda.)
Examining the question from the narrower perspective of “legally, can immigration law ever be used as an effective tool of anti-terrorism” my answer would be: Yes, to the extent immigration law can be used to, e.g., pre-screen suspected terrorists before arrival in Canada (for example, security checks and the issuance of visas). Yes, to the extent suspected terrorists/terrorist affiliates who do arrive in Canada are subject to removal to a country that doesn’t torture. No, in other circumstances.
No Removal to Torture, Period
To expand on this last statement: the IRPA at present does permit removal where national security interests are substantial enough, even where there is a serious prospect of torture. But international law does not. As discussed in NSL, Article 3 of the Torture Convention is unequivocal: no removal, no matter what, “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Article 3 further specifies: “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.” (It is worth noting that the UN Human Rights Committee has construed the International Covenant on Civil and Political Rights, Art. 7, as containing an equivalent restriction).
Accordingly, any application of the IRPA (or the Charter of Rights and Freedoms) that would allow removal in the face of these “substantial grounds for believing” would violate our international obligations. It really is that simple.
Much ado has been made about the Supreme Court’s 2002 decision in Suresh that seemed to open the door a crack under the Charter to removal to torture where the extenuating circumstances were dire enough. I think, personally, that that crack no longer exists. Suresh wasn’t dealing squarely with the issue – the comment was obiter. Since 2002, the courts seem to have become much less sympathetic to government national security claims. Most importantly, as I argue at p.577 of NSL, the Supreme Court has also since reaffirmed its commitment to interpret the Charter in keeping with Canada’s international obligations. And, as noted, those international obligations are unambiguous.
No Guarantees from Assurances
A frequently cited solution to the conundrum of removal to torture is the concept of “diplomatic assurances”; essentially, supplementary promises from the receiving state that it won’t abuse the person upon his or her return. If credible, these assurances would vitiate the “substantial grounds to believe” the person will be tortured. As discussed in NSL, p.576, assurances are regarded as doubtful guarantees by the human rights community and attracted negative commentary by the Supreme Court in Suresh (and in subsequent Federal Court cases).
The assurance concept has been pursued most earnestly in the United Kingdom. Human Rights Watch has prepared an overview of this policy. This approach earned a conditional blessing from the House of Lords in its 2009 decision of RB v. Secretary of State. Essentially, whether the assurance displaces the reasonable grounds to believe threshold is a question of fact, dependent (among other things) on the state in question and the nature of the assurance. (See in particular, the reasoning of Lord Phillips in paragraphs 106-126, Lord Hoffmann in paragraphs 182-194 and Lord Hope in paragraphs 235-242).
However, I find it hard to believe that those facts ever add up to a viable assurance in the Canadian context. The problem with assurances, of course, is that they constitute a promise not to do something that is already illegal in conventional and customary international law and, invariably, the law (and perhaps even the constitution) of the torturing country. It strains credulity that when these robust sources of obligation prove ineffectual, some supplementary memorandum of understanding will prove effective, especially if that understanding includes no on-going monitoring by the deporting country of the returnee’s status. The following are, for me, a sobering and damning indictment of assurances:
First, the assurance is not enforceable in international law. It is not a treaty obligation. The deporting state would have no standing to enforce it, even assuming that there was an international venue competent to assume jurisdiction over the dispute.
Second, a diplomatic assurance issued by one branch of government – the foreign ministry, for example – may be done completely in good faith and have no impact whatsoever over the actions of the security services. As CSIS director Fadden commented in his recent speech, “in some countries the intelligence agencies are more influential than their foreign ministries”. Whether a security service will feel bound by a diplomatic assurance entered into by some other branch of government is no sure bet.
Third, even if the security service itself agrees to the assurance, compliance depends entirely on a cost-benefit analysis: what is the cost of non-compliance against the benefits of violating the agreement. A country that views its key national security interests imperiled by the actions of the terrorist entity with which the returnee is implicated and which takes the view that extreme interrogation/intimidation is in its interests may have strong incentives to violate the agreement. The countervail is the disrepute that country would then be held in by the deporting country (assuming the latter even found out about the abuse, an uncertain possibility). That disrepute might imperil future returns and other forms of intelligence cooperation.
This may be a reasonably potent countervail where the assurance is given to, e.g., the United States or the United Kingdom – states with whom the torturing state may have important relationships. Canada’s place in the hierarchy of global power is very different, and the countervail is accordingly much weaker. Moreover, for a long time, the government has repeatedly urged (in submissions on the need to protect foreign-provided intelligence from disclosure and elsewhere) that Canada is a practical supplicant in the world of information-sharing. All told, the government’s evidence in Canada Evidence Act and security certificate cases is that we receive more intelligence from our partners than we give – we need them more than they need us. In Mr. Fadden’s words: “just as we have diplomatic links with countries with poor human rights records, so must there be intelligence links. If Canada’s only intelligence sharing took place with countries that had pristine human rights records, there would be little we could do to track threats across a turbulent planet.” It seems very unlikely indeed that we would truly imperil or curtail a relationship with a foreign state’s intelligence services over the treatment of someone we ourselves regard as a security threat.
Also of note, our record in terms of forestalling torture appears to be spotty, even where we do (presumably) have influence. The record of treatment of battlefield detainees transferred from the Canadian Forces to Afghan authorities in Afghanistan is now a matter of some controversy, but it seems very likely that some number of them have been maltreated. This is true even with the prisoner transfer arrangements concluded between Canada and Afghanistan – arrangements that while imperfect, are probably more demanding than anything likely to be found in a diplomatic assurance.
In sum, diplomatic assurances are an unsustainable solution to the inadequacies of immigration law as a tool of anti-terrorism.
Plan B
So the solution must come from a completely different body of the law. RCMP Commissioner Elliot championed a criminal law-led approach in an October 2009 speech, and it is a view I also expressed in my op-ed.
To be clear, the criminal law is no solution to the dilemmas posed by the five anti-terrorism security certificates that have proven so contentious (that is, those of Almrei, Charkaoui, Harkat, Jaballah, and Mahjoub). The alleged behaviour that has been used to implicate these individuals pre-dates the anti-terrorism provisions in the Criminal Code and Security of Information Act added by Bill C-36 in 2001. This criminal law cannot, for constitutional reasons, be applied retroactively.
Still, these individuals have been incarcerated and subject to restraints on liberty for length periods of time, and courts have now universally agreed that that fact attenuates the security threat they are alleged to pose. Put another way, if they were dangerous, they are now less dangerous and that danger can be contained by measures short of detention and even the initially very strict limitations on liberty imposed on their initial release. Plan B should not, therefore, be driven by a preoccupation with these five individuals – it risks contorting policy to fit the peculiarities of a handful of cases.
The Criminal Law’s Reach
Critically, the criminal law now reaches very far in terms of terrorist activity. As discussed in NSL chapter 7, it has a strong preemptive dimension, encompassing behaviour that once would have been unassailable in criminal law because it was “merely preparatory” to an actual offence. Indeed, it captures much – if not all – of the sorts of actions apparently at issue in the security certificate cases. Note, for example, the provisions included (rather incongruously) in the Security of Information Act:
20. (1) Every person commits an offence who, at the direction of, for the benefit of or in association with a foreign entity or a terrorist group, induces or attempts to induce, by threat, accusation, menace or violence, any person to do anything or to cause anything to be done
(a) that is for the purpose of increasing the capacity of a foreign entity or a terrorist group to harm Canadian interests [a very broadly defined concept, set out in section 3]; or
(b) that is reasonably likely to harm Canadian interests.
(2) A person commits an offence under subsection (1) whether or not the threat, accusation, menace or violence occurred in Canada.
(3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for life.
22. (1) Every person commits an offence who, for the purpose of committing an offence under … 20(1), does anything that is specifically directed towards or specifically done in preparation of the commission of the offence, including
(a) entering Canada at the direction of or for the benefit of a foreign entity, a terrorist group or a foreign economic entity; …
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years.
Note also this provision from the Criminal Code:
83.18 (1) Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
…
(3) Participating in or contributing to an activity of a terrorist group includes … (d) entering or remaining in any country for the benefit of, at the direction of or in association with a terrorist group …
Under the latter provision, entering Canada to serve as a “sleeper” for a terrorist group is almost certainly a crime. Under the former provision, entering Canada for the purpose of extorting, e.g., Tamils to provide financial support to the Tamil Tigers (a terrorism financing offence) would likely be guilty of a crime.
Proving Crimes
Proving criminal offences is another story, and is the true disincentive to pursuing this Plan B. Criminal proceedings are open – much more so than the security certificate proceeding – and disclosure rules are robust (although the difference between the two bodies of rules has been narrowed by the Supreme Court’s Charkaoui II ruling).
Accordingly, if the evidence to be deployed against an individual comes from an allied security service, extreme sensitivity over its disclosure would likely terminate a prosecution – as discussed in NSL, chapter 10, the “third party rule” and “originator control” make disclosure of foreign-provided intelligence a damning sin in intelligence sharing circles. Likewise, domestic security services are extremely wary of their own sources and techniques being dragged into open court. The Canada Evidence Act does provide a means for protecting this information from disclosure. It also allows a trial judge to toss criminal charges if non-disclosure would produce an unfair trial.
This reality makes criminal trials possible in the following circumstances:
1. The information supplying state consents to the disclosure of the key inculpatory information; or,
2. In the absence of that consent, a security-sanitized summary of the evidence can be prepared that accommodates the national security preoccupation while not materially impairing the fairness of the trial; or
3. The Canadian security services have enough inculpatory evidence of their own which does not prejudice their own sources and techniques to support a conviction (note that the common law has long recognized informer privilege in criminal trials).
(There is, of course, a fourth possibility: Canada ignores the third party rule, and uses foreign-provided intelligence in criminal prosecutions without consent. Such a course of action would almost certainly destroy Canada’s relationship with foreign intelligence services, putting in great peril further information sharing of a sort that may be absolutely critical to Canada. I do not, therefore, believe that this fourth possibility merits discussion).
Option 3 appears to be in play in the “Toronto 18” proceedings. Option 2, in effect, arose in the Khawaja case (through the Canada Evidence Act). Option 1 is the most thorny issue. The bottom line is that every state faces the dilemma of the third party rule in terrorism cases – modern terrorism straddles borders and implicates a whole web of information sharing networks. To the extent each state treats the third party rule as absolute – and refuses to consent to disclosure in the court proceedings of another state – each pursues a policy that may, applied against it, imperil its own prosecutions. The result is a sort of intelligence “beggar thy neighbour” approach.
In these circumstances, states must consider requests for disclosure of their shared intelligence carefully (and not dismiss them out of hand, or demand secrecy for even the most banal information). Indeed, it seems wise to develop protocols on how and where information can be disclosed in court proceedings, perhaps concluded initially between states with similar legal systems. These protocols would vitiate CSIS’s complaint in some of the security certificate cases that even asking for permission to disclose foreign provided intelligence creates the impression that the agency is soft on secrecy, and not to be trusted.
(As an aside, I would not support the introduction of IRPA-style special advocates in criminal cases. It departs too radically from our criminal law tradition to exclude the accused from his or her own trial – I can’t see it being desirable or constitutional or (given recent successful prosecutions in Canada) necessary. That said, I think there is a role for special advocates to represent the interests of the accused in the collateral Canada Evidence Act proceedings where decisions on the disclosure of secret evidence to the accused are made).
Preventive Detention?
Objections to a Plan B focused on the criminal law also often urge that there will be instances where actions needs to be taken immediately, perhaps even precipitously, to disrupt a terrorist plot before evidence of a quantity or calibre to support a conviction beyond a reasonable doubt has been collected.
As noted, the post-2001 terrorism provisions reach very far into once “merely preparatory” behaviour. It stands to reason that these urgent scenarios arise less often if behaviour several steps removed from actual terrorist violence is criminalized. But of course, urgent situations where the criminal law is not yet engaged will still arise, even if more rarely.
In these circumstances, the state does need a tool. As discussed in NSL, chapter 14, the United Kingdom and Australia both have tools of preventive detention and so-called “control orders” that remove or limit the liberty of action of terrorist suspects. Comparative systems of preemptive detention – or detention without charge – are described in a report by the UK human rights organization, Liberty.
Canada’s system of so-called “preventive detention” – sunsetted several years ago – is modest in comparison. The bill currently before Parliament would restore this same system. As I will describe in a supplemental blog, I believe that this system is appropriate (although the bill deserves some tightening up). I think it is enough, in the absence of a very compelling case grounded in the actual facts of the Canadian security situation that something more draconian is necessary.
Conclusion
In sum, I believe that as a legal matter, the tools for an effective system of anti-terrorism are available, even though the back of the immigration approach is broken. I defer to RCMP Commissioner Elliot on whether the sort of plan B that I support – a back to basics criminal law approach – is adequately financed. His view is that law enforcement has been the poor cousin in the post-9/11 terrorism strategy. His opinions on this point are certainly consistent with what I’ve heard from others. All of this leads to my final (and perhaps banal) conclusion: Rather than throwing more money at security certificates, we should now be better financing criminal investigations.
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