Introduction On January 7, 2015, the brothers Saïd and Chérif Kouachi stormed the offices of the satirical newspaper Charlie Hebdo in Paris, killing eleven people and injuring twelve others. In the course of the ensuing man hunt, Amedy Coulibaly, in a separate but related incident, took Jewish shoppers hostage at a kosher grocery store, ultimately killing five and injuring eleven. The perpetrators as well as the victims of the terrorist attacks were French nationals. At first glance, the Paris attacks were a domestic incident – a matter for French law, not international law. In this respect, the Paris events seemed to differ from the attacks perpetrated in the United States on September 11, 2001, which were directed from abroad and executed by foreign nationals who entered the United States in order to carry them out. However, as quickly became apparent, the Paris attacks too had an international dimension. Indeed, they serve to illustrate the adapt able nature of transnational terrorism. Rather than planning and direct ing large-scale operations abroad, as did Osama Bin Laden’s Al Qaeda, or fighting rival combat forces for territorial control, as do the various groups now operating in Syria and Iraq, today’s terror networks of ten resort to training foreign nationals or simply to inducing attacks by “home-grown” terrorists through local contacts or Internet-based prop aganda and “how-to” information. In the case of the Paris attackers it turned out that one or both of the Kouachi brothers had previously travelled to Yemen for training with Al Qaeda in the Arabian Peninsula, the organization that later took credit for the Charlie Hebdo attack. Am edy Coulibay, for his part, released a video in which he proclaimed his affiliation with the Islamic State in the Levant (ISIL).
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This chapter offers a reflection on the challenges that transnational terrorism poses for the international legal order, on how states have sought to improve law’s capacity to address terrorism, and on the po tentially significant impact of these efforts on international law. Challenges It is easy to see why transnational terrorism is challenging for interna tional law. In its basic structure, international law remains focused on the rights and obligations of states. While it envisages rights for indi viduals (human rights law, refugee law, and so on), individuals have no obligations under international law, other than those enshrined in international criminal law. International criminal law, however, cur rently knows only certain categories of international crime: genocide, war crimes, crimes against humanity, and, less clearly, the crime of aggression. Although individuals can be held accountable for these crimes, each of them presupposes that the perpetrators acted on be half of states. In other words, transnational terrorism is not currently a crime under international law. What then of states’ ability to apply and enforce their domestic laws to acts of transnational terrorism? International law actually sets out some limits in this respect, resulting from the fact that states’ rights and obligations are generally based on, as well as limited by, jurisdic tion over territory or persons. In this framework, a state can apply its laws to acts of terrorism that occur within its territory. A state can also extend the reach of its laws to terror acts that are perpetrated by its nationals abroad, and terrorist attacks against its nationals abroad. However, while states can enforce their laws in their own territories, they have traditionally been limited in their ability to take enforcement action abroad, especially in the territories of other states. Hence, when terrorists manage to slip out of the country or are based abroad in the first place, there is often a practical barrier to the application and en forcement of domestic law. A state wishing to see terrorists held legally accountable for their actions would have to rely on another state’s will ingness to make arrests, and its willingness either to prosecute or to extradite the perpetrators. There are many good reasons for this framework of limited national jurisdiction. In a world of sovereign states, extraterritorial application of one state’s law, let alone its extraterritorial enforcement, risks en croaching on the sovereign spheres of other states. In minimizing such
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encroachments, the basic jurisdictional framework not only reflects the sovereignty interests of states, but also provides a measure of protection to their citizens and societies against the imposition of foreign values and standards. But in dealing with a phenomenon like transnational terrorism, the jurisdictional limits inherent in the framework also pose obvious problems. Indeed, transnational terrorist organizations exploit these limits by operating through diffuse networks, by sheltering them selves beyond the jurisdictional reach of target states, and by using cy berspace (in its own right a difficult phenomenon for the traditional jurisdictional framework) to communicate, coordinate, direct, or entice. Requesting the cooperation of other states in the application of do mestic law is one avenue for dealing with a terrorist attack or threat that has a transnational dimension. But case-by-case cooperation, although clearly important, is a cumbersome way to pursue highly mobile ac tors and address fast-moving threats. What is more, terrorist networks typically seek out “host” states that are either unwilling or unable to suppress their activities, or to cooperate with other states in combat ting transnational terrorism. The key question, therefore, is whether international law provides any other options to states for responding to transnational terrorism. Responses Given the basic jurisdictional framework sketched out above, there are only two avenues (short of extra-legal action) for overcoming the in herent constraints. The first is to argue that there are circ*mstances in which a state that is subject to a transnational terrorist attack or threat is permitted to take unilateral, extraterritorial response action. This ap proach leads to the law of self-defence. The second approach is to pro mote the harmonization and strengthening of national anti-terrorism regimes by imposing international obligations on states to enact and enforce appropriate laws and to cooperate with other states in sup pressing transnational terrorism.
Self-Defence The scale and severity of the 9/11 attacks, and the initial fear that fur ther attacks might be imminent, prompted the United States to ad vance, and other states to endorse, the notion that states have a right to self-defence against a terrorist attack. While this proposition may
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seem intuitive at first glance, it was not actually a foregone conclusion under the rules that governed interstate use of force. Those rules, it is important to recall, grew from the world’s experience with two world wars, and the untold suffering and death toll they visited upon soldiers as well as civilian populations – by most counts over 60 million people were killed in the Second World War alone. To help “save succeeding generations from the scourge of war,” the UN Charter placed stringent legal constraints on resort to military force. It imposed an absolute prohibition on the threat or use of force against other states (article 2(4)). In the Charter framework, therefore, recourse to interstate force is legal only under two narrowly defined exceptions to this sweeping rule. First, pursuant to an authorization by the UN Security Council under chapter VII of the UN Charter, states may take collective action to address a breach of or threat to international peace and security (including crises involving grave human rights abuses). And second, states may unilaterally (that is, outside the collective se curity regime) use force to defend themselves against an armed attack (article 51). The overarching goals of this framework were to protect states against military intervention and to suppress interstate use of force as much as possible. The pursuit of these ambitious goals, difficult enough in a world riddled with political conflict, was further complicated by the rise of various kinds of irregular forces, sometimes operating at the behest of states and sometimes pursuing their own goals. Beginning with its judgment in the Nicaragua case, the International Court of Justice, when confronted with situations involving trans-border operations of nonstate forces, has repeatedly confirmed that a right to unilateral recourse to force in self-defence was available only when such actions were at tributable to a state, such that it could be said to have perpetrated an armed attack (International Court of Justice 1986). Only then, consid ered the Court, would the target state be legally justified in taking de fensive military action against or in the other state. All indications are that, in the aftermath of 9/11, international law has come to embrace the right of self-defence against non-state at tacks. The United States, to be sure, had asserted for some time that it was permitted under international law to defend itself against ter rorist attackers. Whereas this proposition was once subject to debate, most commentators read the UN Security Council as having endorsed it in its Resolution 1368, adopted immediately after 9/11. State practice since then seems to have confirmed this reading. There remains ambi guity on a number of crucial points, however.
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First, self-defence against terrorist attacks will almost always in volve operations within another state. Even if there is now agreement that an armed attack can be undertaken by non-state actors and trigger the target state’s right to self-defence, there still remains a question as to the circ*mstances under which that state can take response action in another state. Since the 9/11 attacks, some states and a good number of commentators have asserted that strikes against terrorists in another state are lawful when that state is either unwilling or unable to handle the situation. This line of reasoning may seem sensible at first glance. But it extends the right to self-defence considerably beyond the delib erately tight requirement that only an armed attack by the state itself, or attributable to it, legally justifies unilateral military response by the victim state. In any case, what circ*mstances justify strikes against ter rorists in other states remains a murky issue (Weller 2015). Witness the current military operations against ISIL. The fact that ISIL calls itself a “state” does not resolve the matter, since ISIL does not meet the criteria for statehood and, furthermore, is asserting con trol over areas that are located within existing states, Iraq and Syria. In respect of the operations in its territory, Iraq communicated to the UN Security Council in September 2014 that it had asked the United States to lead international efforts to strike terrorist sites in its territory. The United States, in turn, asserted that the efforts to help defend Iraq against ISIL extended to attacking its sites in Syria, which had proven to be “unwilling or unable” to prevent the use by ISIL of its territory for attacks on Iraq. Some commentators have suggested that states always have had the provisional right to take necessary and proportionate action against actual or imminent attacks, including forcible action abroad, without the need for direct attribution of the attacks to the state. If the state in which the terrorists are located takes steps to counter an attack or im minent threat, military intervention by the target state is unnecessary and hence unlawful. In turn, if there is no actual or imminent attack, the mere fact that the territorial state is unwilling or unable to assist can not carry a self-defence argument. According to this view, operations against ISIL in Syria are necessary and therefore lawful as self-defence because of the close connections between ISIL’s ongoing attacks in Iraq and its resources in Syria. It is irrelevant, so goes the argument, whether Syria consented to the operations, or has shown itself unwilling or un able to control ISIL (Weller 2015). Whether one agrees with this assessment or not, it highlights another area of ambiguity in the law of self-defence: the question whether and
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under what circ*mstances states can exercise the right to self-defence in advance of an armed attack. Although, immediately after the 9/11 attacks, more expansive “preventive self-defence” arguments were ad vanced, the dominant view today seems to be that anticipatory action is justified only when an attack is imminent. The existence of even such a narrowly circ*mscribed right of anticipatory self-defence was long in dispute, with many states and commentators insisting that an actual armed attack was required to trigger the right to self-defence. There is much at stake in this debate. After all, the greater the scope for anticipatory action, the more the prohibition on the interstate use of force risks being hollowed out by the right to self-defence. The rise of transnational terrorist networks and their modes of operation have helped reignite, and further complicate, the debate. As we have seen, even leaving aside the thorny question of attribution, the right to selfdefence justifies strikes against terrorists only when they have launched an attack or are about to do so. But just what the requirement of immi nence means in the context of transnational terrorism is a difficult ques tion, and the push for strikes against terrorists, whenever and wherever they may be located, has been strong. The spectrum of justifications runs the gamut from assertions of much wider concepts of imminence, to reliance on the notion of ongoing attacks, to the much-invoked “War on Terror.” Others warn that these arguments fail to legally justify what may really amount to extrajudicial killings, in violation not only of the interstate prohibition of force, but also of humanitarian law and hu man rights law, let alone the due process requirements of criminal law (O’Connell 2010).
Collective Action and Standard-Setting The second broad approach to tackling transnational terrorism has been to narrow the gaps resulting from international law’s basic juris dictional framework. In principle, this gap-filling, and the elimination of safe havens for terrorists, can be advanced through international regimes that require states to adopt adequate laws and enforcement measures and to cooperate with other states in combatting transnation al terrorism. Such initiatives would normally require the negotiation of treaties that set out the measures parties have to take to meet their obligations under the relevant agreements. And, indeed, over the years states have negotiated nineteen anti-terrorism conventions, including the Con
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vention for the Suppression of Terrorist Bombings (1997), the Conven tion for the Suppression of the Financing of Terrorism (1999), and the Convention for the Suppression of Acts of Nuclear Terrorism (2005). Each of these conventions requires parties to criminalize the conduct in question under their own domestic law, to assert jurisdiction over the relevant offences even if they occurred abroad, to either extradite or prosecute the alleged offenders, and to cooperate with other states in criminal matters within the ambit of the treaty. The treaty-based approach has a number of drawbacks, however. The first may be obvious – states are not required to join treaties, and any treaty can bind only those states that do in fact become parties to it. As a result, the treaty approach cannot guarantee that all states that give shelter, wittingly or unwittingly, to terrorist networks will be obli gated to step up their counterterrorism efforts and participate in global efforts to suppress transnational terrorism. An additional difficulty is that the need to engage as many states as possible in the treaty regime may require compromises on the scope and stringency of obligations. One emblematic illustration of this difficulty has been the inability to arrive at an overarching definition of terrorism, although some common ground seems have begun to emerge in recent years (Roach 2011; Peters 2014). Finally, leaving aside unwillingness to combat terrorism, many states simply do not have the financial, legislative, and technical capac ity to do so. Even if they joined a counterterrorism treaty, therefore, they may find themselves unable to meet their commitments. The United Nations has pursued a range of strategies to address these ratification and capacity issues. The Terrorism Prevention Branch of the United Nations Office on Drugs and Crime, for example, pro vides technical and legislative assistance to promote ratification and implementation of the terrorism prevention and suppression treaties. Universal ratification remains elusive, but the UN efforts have borne some fruit. For example, while the Nuclear Terrorism Convention has ninety-nine parties, the Terrorist Bombing Convention and the Terror Financing Convention have attracted the ratification of 168 and 186 states, respectively (United Nations 2015). A second major plank in the effort to harmonize and coordinate na tional responses to terrorism, and to turn the patchwork of national counterterrorism efforts into a more seamless global web, is the exercise of UN Security Council powers. Under chapter VII of the UN Charter, in the face of threats to international peace and security, the council can impose legally binding requirements on all states. Although this
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unique power arguably was intended to enable the council to adopt decisions that address specific situations, its post-9/11 decisions on ter rorism have taken on an increasingly “legislative” flavour. That is, on the grounds that terrorism constitutes a serious threat to international peace and security, the council has adopted a series of resolutions that impose general, open-ended requirements on states. These resolutions address the various modes of transnational terrorism – attacks directed from abroad, recruitment and training of foreign fighters, and incite ment of home-grown terrorism around the world – and require states to take sweeping domestic measures to choke off the staging grounds, mobility, communication, and finances of terror networks. The strength of the Security Council’s recourse to binding resolutions is the very fact that all states now have the same obligations to take domestic counterterrorism measures. However, the existence of univer sally binding international obligations does not mean that a seamless web of domestic regimes is actually in place. Recalcitrance and capac ity limitations pose problems, whether the international obligations are treaty-based or imposed by the Security Council. And, quite apart from these practical challenges, the Security Council’s counterterrorism reso lutions also raise a number of fundamental questions. One such question is whether the council does in fact have to power to “legislate.” This issue was debated with considerable passion fol lowing the adoption in 2001 of the council’s first legislative counterter rorism resolution, Resolution 1373 (Talmon 2005). The series of similar resolutions adopted since 2001, however, suggests that the member states of the UN have come to accept the council’s power in this respect. Nonetheless, there remains a related question as to the legitimacy of universal lawmaking by a body of limited membership. This legitima cy question feeds into the demands for a more representative Security Council, expanded beyond its current membership of fifteen – five per manent members (China, France, Russia, United Kingdom, and United States) and ten other states on rotating terms. Another major question concerns the manner in which the council’s counterterrorism resolutions have affected individuals. Technically, ob ligations are imposed only on UN member states. But since member states are legally required to enact the measures mandated by the Secu rity Council, individuals find their mobility restricted and finances cut off. These concerns were most significant in relation to a list of persons and entities associated with terrorist organizations that was drawn up under the auspices of Security Council Resolution 1267. Originally fo
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cused on the Taliban and expanded by subsequent resolutions to Osa ma Bin Laden, Al Qaeda, and related organizations, the list system is managed by a UN committee. On the basis of secret evidence submit ted by member states, persons and organizations are added to the 1267 list, which in turn requires states to take stringent measures, including travel bans and asset freezes. As originally conceived, the list system did not provide for any access of the affected persons or entities to in formation about the reasons for their inclusion in the list, or any avenue for the review or reversal of the listing decision. The criticism of the regime was harsh. National and European courts found ways to reject measures that implemented travel bans and asset freezes, such as on the grounds that they violated domestic or European due process and human rights guarantees. The UN listing regime itself has since seen some reforms, principally through the appointment of an ombudsper son tasked with reviewing petitions by listed individuals. For many observers, the process is not strong enough to allay human rights con cerns (Roach 2011). But it has resulted in some de-listing decisions. Conclusion Although the tragic events surrounding the Charlie Hebdo attacks in Paris were ultimately an all-French affair, they also constituted an en counter with one of the many faces of transnational terrorism. Transna tional terrorism, in its many permutations, challenges the state-centric apparatus of international law and has prompted an array of responses that, taken together, entail potentially significant changes to the inter national legal order. As between states, the fight against diffuse networks and highly mo bile actors has entailed a series of developments that chip away at the legal protections against external intervention in the sovereign spheres of states. This pattern ranges from armed interventions abroad in the guise of self-defence against terrorists, to the imposition of universal legal requirements for domestic counterterrorism measures through Security Council resolutions. As between states and non-state actors, the intensifying global coun terterrorism efforts struggle with the inherent limits of international law. Terrorists do not have obligations directly under international law, although the Security Council, in its most recent counterterrorism resolution, made the unprecedented demand “that all terrorist fighters disarm and cease all terrorist acts and participation in armed conflict”
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(Resolution 2178 (2014), para. 1). Meanwhile, as individuals, terror ists and terrorism suspects have human rights and due process rights, rights on which some of the Security Council’s counterterrorism meas ures have trenched. When it comes to dealing with the terrorist actors themselves, therefore, domestic legal systems have turned out to be indispensable, both in criminalizing and suppressing terrorist activity and in protecting the rights of those who are targeted by counterterror ism measures. International law has a role to play in addressing transnational ter rorism, in enabling states to defend themselves while also constrain ing the impulse to strike back incautiously, and in framing a genuinely global effort to suppress terrorism. But we must remember to step back and examine the cumulative effect on the global legal order of the many smaller and larger shifts brought about in the name of fighting terrorism. REFERENCES International Court of Justice. 2014. Case Concerning the Military and Paramili tary Activities in and against Nicaragua (Nicaragua vs United States), (1986) ICJ Reports 14. O’Connell, Mary-Ellen. 2010. “Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004–2009.” Notre Dame Law School Legal Studies Research Paper No. 09-43,https://www.law.upenn.edu/
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12 Looking Back and Looking Forward:
Authenticity through Purification
janice gross stein
The world’s attention is fixated on Daesh (the Islamic State) and its ca pacity to inspire young people in the Arab world and in Muslim com munities around the globe to join its cause. Abu Bakr al-Baghdadi, the ruler of the Islamic State, a descendant of the tribe of the Prophet, is the first to proclaim a caliphate since Turkey ended the last one ninety years ago. The creation of a caliphate that controls territory is for its leaders a seminal moment; the laws of Shari’a now apply in their en tirety, and Muslims from all over the world are enjoined to come and live under Islamic law. Recoiling in horror from the brutal violence, the beheadings, the de struction of historic works of art, the enslavement of women who have been captured in battle that has accompanied the creation of the Islamic State, leaders and publics are asking, Who is Islamic State? Who do they speak for? Are their followers amongst us? And how do we cope? Unfortunately, the answers are not straightforward. In the Arab world, a cacophony of voices has always spoken for Is lam. Immediately after the Prophet’s death, a struggle for succession and legitimacy broke out, and the Islamic world, small as it was at the time, heard more than one voice that claimed authority through au thenticity. At that time, authenticity came from the immediacy of the relationship to the Prophet and the capacity of his heirs who knew him to provide faithful – and “true” – interpretations of his teachings. Even as the descendants of the Prophet claimed to be the sole, the ex clusive, and the authentic voice of Islam, multiple voices spoke in noisy chorus. Almost from the outset, the Muslim world has been pluralist in form, if not in content. As the Muslim Empire expanded and grew, multiple sites of scholarship developed, and seats of learning, science, and law emerged in Baghdad, Damascus, and Cairo. Universities and
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communities of legal scholarship became especially important in a reli gion governed by law, and over time, four major Sunni legal traditions as well as Shi’a jurisprudence developed, all enriched by arguments, commentaries, and interpretations. It is this diversity of voices, and a lively tradition of reform and re newal, that paradoxically opened up space for an impulse by some to return to fundamentals, to the “true” and authentic Islam, and by oth ers to look forward to apocalyptic redemption. Whether they looked backward or forward, they shared an emphasis on the purification of Islam. When the Islamic world began to bump up against a West that was undergoing a renaissance of science, the development of revolutionary new military technologies, and a drive for expansion, Islamic scholars began to ask how Islam should renew itself to engage with the West but preserve its distinctiveness. Movements of renewal and reform become increasingly important in the nineteenth century as the Ottoman Em pire began to decay and Western powers forced their way into the heart of the Arab world. A vigorous reform movement developed that focused on the renewal of Islam and its adaptation to a “modern” world. This was far from the first time that Islam engaged with modernity. Not surprisingly, this conversation about reform also enabled the rise of those who wanted not reform, but return, return to the roots of Islam, to the authentic teachings of the Prophet that were unsullied by encounters with for eign religions and alien cultures and customs. A conversation began about purification, some urging return and others redemption so that Islam could fulfil its mission. In the last few decades, the drive to purify has been amplified by the failure of Arab governments to improve the lives of their citizens, to promote basic health and education, to deliver services to their poor, and to rein in the visible corruption that has so badly infected the auto cratic regimes that governed in the Arab world. The anger and despair evoked by this failure has encouraged the search for the authentic and the turn to redemption. Young people especially have turned not only against their own governments, who have enriched themselves while they exploited their citizens, but also against the takfir, the infidel West, that has sustained and supported these governments. Not all these an gry voices, however, are alike. It is important to distinguish two strains. Those who want a return to the true faith that is uncorrupted by the modern, especially the West,
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look back. There are also those who are apocalyptic and seek redemp tion through purification; they look forward. Common to both, how ever, is a militant emphasis on purification, often through violent strug gle, and a commitment to fundamentals. This is not the first time that the Arab world has been galvanized by the search for the authentic and the pure. In the eighteenth century, Muhammad ibn ’Abd al-Wahhab, born in Nejd in the Arabian Penin sula, was determined to “purify” Islam from the corrupting influences of innovation and to return believers to the practices of the Prophet; he looked backward to early Islamic history. Al-Wahhab formed an alli ance with the house of al-Saud, and today, the kings of Saudi Arabia, the guardians of the holy places of Mecca and Medina, are the heirs to Wahhabism, the determination to purify Islam. For decades, they have financed and exported fundamentalist movements to the Arab world, while keeping a tight grip on dissent at home. They have done so in the name of purity, as the guardians of the holy sites of Islam, and the custodians of Islam in the face of corrupting foreign influences. The House of Saud was not alone in claiming to speak for a pure, authentic Islam in the face of modernity. In 1881, the Sudanese Muslim cleric Muhammad Ahmad conquered Khartoum and created a state that lasted until 1898. He invoked messianic writings in Islamic texts and declared himself the Mahdi – a millenarian who would lead Mus lims to victory before the end of the world. Muhammad Ahmad gave voice to many of the strains of redemption and purification that Daesh articulates today. His was the first millenarian Islamic state of the mod ern period, the predecessor of today’s Islamic State. In Egypt, in 1928, Hassan al-Banna founded the Ikhwan or Muslim Brotherhood, to return believers to the faith in the face of Westerniz ing British colonial influence and the grotesquely corrupt government of the Egyptian king. The Muslim Brotherhood developed a syncre tic form of Islam, combining religious tenets with social welfare. The Brothers not only issued a call to purify the faith, they also ran schools and clinics among the poorest urban and rural populations in Egypt. The Brotherhood would grow to be the strongest Muslim organization in Egypt and across the Arab world, with branches in almost every country, even after they were forced underground by President Gamal Ab’dul al-Nasir. Theirs was an Islam defined against corruption that served the poor and returned the faithful to purity without, however, the millenarian and apocalyptic overlay. It is no surprise that the House of Saud fears and detests the Broth
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ers, because they are competing largely for the same political and social space. The Ikhwan fully returns the enmity. This has been and continues to be a “close in” argument about legitimacy and voice, and between them, there is room for only one. When the Ikhwan finally won the pres idency of Egypt after the overthrow of President Mubarak, the Saudi monarch allied with the ruling family of the United Arab Emirates and used every possible means to undermine the newly elected President Morsi. The fierce ongoing enmity toward the Brotherhood by some of the ruling families in the Gulf is understandable only as a continuing struggle for the mantle of purifier. Even within the heartland of Wahhabi Saudi Arabia, militants con sider the ruling family corrupt, despoiled by its riches and compro mised by its close contact with the West. In 1979, long before al-Qa’eda and the Islamic State, an apocalyptic movement led by Islamist mili tants inside the kingdom seized the Grand Mosque in Mecca and called for the overthrow of the House of Saud; the group claimed one of its own leaders as the Mahdi, the redeemer and purifier. The Saudi royal family crushed the uprising with visceral ferocity. These angry voices are heard most loudly today through al-Qa’eda that operates across the Arab and Muslim world and through Daesh, the Islamic State that is attracting recruits from across the Muslim world as well as the West. While they share an emphasis on purification, they are not alike: al-Qa’eda largely looks back, while Daesh largely looks for ward. Neither can live with the other, and the struggle between them is fierce. One competes with the other as the “true” voice of Islam, but both are a beacon to angry young men and women who respond to the call for authenticity or redemption through purification, a call that gives meaning and purpose to their lives. What makes these contemporary Islamist movements so threatening to Western societies? The Mahdi in Sudan, also an apocalyptic purifier who ruled an Islamic state more than a hundred years ago, alarmed the British but few others. The first difference is in the ordering principles of the international system. Today, the tight interconnections of the contemporary glo balized world, the open societies that encourage people to migrate and form communities abroad, and the digital technologies that allow un precedentedly quick patterns of communication through social media make impossible the indifference shown to the Mahdi in Sudan in co lonial times. The contemporary round of millenarian militancy in the Arab world diffuses outward through online recruitment fuelled by
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sophisticated social media campaigns, videos that glorify purification through violence, and, finally, through militant attacks in Western cit ies. Whether these attacks are coordinated or spontaneous, the violence comes “home” to the West. Globalization has also enabled migration and the creation of diaspo ra communities that stay connected in ways that would have been im possible even a generation ago. Daesh draws on networks of militants, women as well as men, who facilitate travel, visas, and safe passage to recruit and move young people who find little meaning in their post industrial lives. Al-Qa’eda and Daesh are the first calls to purification from the heart of the Islamic world that are echoed and amplified through the technologies and networks of a globalized world. It is not the call but the globalizing conditions and technologies that are espe cially new. It is no small irony that they use the technologies that define our contemporary era of globalization to wage war for purification. A second and related difference is the weakness, possibly the col lapse, of a 100-year-old order built by colonizers who drew borders and created states. It is the fracturing of the states of Iraq and Syria that opened up the political space and the physical territory to create a caliphate. It is inconceivable, for example, that the Islamic State could have been created when Saddam Hussein and Hafez al-Assad ruled their republics of fear. That this violent millenarian movement grew out of the collapse of the authoritarian order should neither surprise nor evoke nostalgia for the past. The collapse of the autocrats was inevi table; no authoritarian order endures forever. In this case, the midwife was the invasion of Iraq by the Bush administration, but the unmaking of the Middle East would have happened sooner or later. The unmak ing of orders is quick, brutal, violent, and dramatic, but remaking is slow, arduous, painful, and uncertain. It is the work of generations, and if the outcome is to be legitimate, it can be led only from the inside. The rest of the world can only try to contain the spread of the pathogen of purification and limit its capacity to infect and kill. How has the West reacted? With understandable confusion, laced with horror at the ferocity of the personalized violence. The West has to reach back a long time to remember the 100-year ferocity of its religious wars, but the memory of the Nazi orgy of blood and violence less than 80 years ago should still be fresh. What seems incomprehensible, even genocidal, is different in form and texture but hardly unique. There are at least three broad strands in the response of the West to Daesh. The first, the criminalization of support for the Islamic State by
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those living in Western societies, is well analysed in this volume. It ranges from the confiscation of passports of young men and women, often at the behest of their agonized Muslim parents; enhanced surveil lance of the speech and actions of suspected supporters; increased shar ing of information among intelligence agencies; relaxation of eviden tiary standards for intervention; and the criminalization of support for terrorism, all of this without significant increase in civilian oversight and partnership with police and intelligence agencies. This is a danger ous dance in democratic societies. History shows again and again that citizens will turn against their governments when unsupervised agen cies inevitably exceed their authority and threaten deeply held demo cratic values. The second set of responses, partnership with Muslim communi ties, should be more prominent than it is. Muslim communities living in Western societies are at an exposed intersection of conflicting fears, needs, and feelings. First, they are the victims of public horror at the incomprehensible brutality of Daesh, stereotyped by Westerners who often do not recognize that the overwhelming majority of Muslims who live amongst them reject both the violence and the legitimacy of the Is lamic State. Muslims living in Western societies are also frightened that their young people will be seduced by the call of a violent, millenarian organization. Finally, when information is released about young Mus lims from the West who have left to join the Islamic State, community leaders at home not only worry about the fate of their young people but about the backlash and hardening of public attitudes that follows after each new case comes to light. Yet Muslims in Western societies are essential partners, leaders in establishing interpretations of Islam that reject the literal reading of texts that promotes violence. Even as they speak out against the vio lence, however, Muslims are angered by the demand that they do so and by the collective stigmatization that the request from political lead ers implies. There are no easy answers to these conundrums, only the deepening of civility, respect, and commitment to inclusive and shared citizenship. Finally, the West has created a broad military coalition to contain the Islamic state within its present borders and then gradually to push it back and degrade its capabilities. There is, inevitably, deep concern about the destabilizing consequences of yet another Western military action, but it is essential that the Islamic State be contained. And coa lition air strikes have largely accomplished that objective; they have
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stopped the expansion of the millenarian state and pushed it back in a few critical areas. The hard part, of course, lies ahead, but paradoxically, despite the sophisticated use of social media and networked patterns of recruit ment, the struggle against the Islamic State is a fairly old-fashioned war centred on the control of territory. Once the Islamic State loses control of the territory it now rules, it will no longer be a caliphate and it will lose its legitimacy and its appeal. The loss of territory would constitute a strategic defeat, even though elements of the millenarian ideology would live on, reconstituted in a different form. What distinguishes Daesh is the creation of the caliphate, and when that fails, so does Daesh, its legitimacy and its capacity to recruit deeply compromised. As the Islamic State continues to struggle to control its borders and fails to expand, over time it loses the magnetic appeal of a truly millenarian movement. Since the moment of redemption cannot be forever post poned, persistent containment is a powerful repudiation of the mille narian claims of Islamic State leaders. The West, however, cannot lead the attack on the ground against the Islamic State. An all-out assault by Western forces would fulfil the moist violent apocalyptic fantasies of Daesh leaders. It must be led by those who live next door, by neighbours who reject the brutality, the violence, and the genocidal impulses. But it must be led in a way that reassures those who now live under the rule of the Islamic State that the violence and the brutality will not continue under the liberators. Here, past performance is not encouraging. The West can only support from behind those who seek to overthrow the Islamic State, even while it restrains from behind those who seek vengeance and reprisals. Over time, this story is mildly optimistic. The fires of purification burn fiercely for a while, but then are generally quenched by the grind ing realities that organizations face. The kings of Saudi Arabia, the part ners and inheritors of Wahhabi ideology, make the compromises that they must, and the Muslim Brotherhood that won the election in Egypt a few years ago was but a pale imitation of the Ikhwan that was born in the slums of Cairo in 1928. Our own history confirms that the puritans cannot remain puritanical forever. What can the West do in the face of a struggle that will go on for generations? Endure, with resolve, stoicism, patience, and intelligence. The fight among this generation of purifiers continues, but its primary victims are the hundreds of millions of believing Muslims whose voices are drowned out by this quarrel, the millions who have been made ref
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ugees from their homes, and the hundreds of thousands who have lost their lives in the ongoing wars in Iraq and Syria. This quarrel, like all others in history, will eventually be transformed, institutionalized, and routinized. In these early days, as the fires of purification burn strongly, we in the West need to be resolute in our commitment to contain, to prevent the spread of the violent, brutal impulse, but not to lead. Our best protection from the flying debris is the use of our intelligence as sets in ways that are compatible with our basic values, the deepening of our open and inclusive societies, and a long view of history.
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PART THREE
From Headlines to Analysis: The Media
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13 After the Paris Attacks: Reflections on the Media natasha fatah
Every January we tell ourselves this year will be better. This year we’ll be better. We make resolutions to be a healthier, thinner, smarter, more productive, kinder, or gentler. And there is a hope that, through our in dividual acts, our world will be a better, kinder place. So it was that we started 2015 with that promise of a better year ahead. But how quickly that resolution was broken, when a hail of bullets and the shouts of Is lamist rhetoric were fired out into the streets of Paris outside the offices of a group of provocative cartoonists. On January 7 – just a week into our new collective promise – two brothers struck terror into the people of Paris, France, Europe, the West, the world, anyone on the side of civility. As a response, on January 11, forty international leaders linked arms and led a march through the streets of Paris, behind them followed a crowd of millions right across France. Smaller demonstrations were held around the world. Those who could not make it to the streets went to the digital town square, where they declared “Je suis Charlie,” a statement of solidarity with freedom of expression and an attempt to unify when the world seems so divided. The shootings of the cartoonists at the Charlie Hebdo magazine was a moment that forced many of us to stop, stare in horror, and try to make sense of what was happening around us. It was not the first attack car ried out by Islamist extremists, and sadly it was not the last. When a tragic, horrifying, and complicated story like this presents itself, we in the media have to tell the story as responsibly as we can and to the best of our ability. For those who don’t work at newspapers, broadcasters, and media offices, it might seem that there are clear rules about how to move for
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ward when reporting a story like this, or any story, for that matter. But the truth is there aren’t. There are best practices, corporate guidelines, legal considerations, and common sense. Ultimately it comes down to a group of individuals in the newsroom making those calls, and the answers to those calls can vary widely, depending on the values of the individuals involved. Below I offer my assessment, based on my experience as a journal ist and as a consumer of news, of what the media in Canada got right, what we got wrong, and what we need to do better surrounding the coverage of the Charlie Hebdo attacks and beyond. What We Got Right This section is short and easy. The Canadian media gave the story a tremendous amount of coverage; it was the lead story for several days, across all media platforms. This was absolutely the right way to han dle this story. The attack on Charlie Hebdo cartoonists was an attack on freedom of expression and freedom of the press, but that’s not all that it was. It was an attack on the rules of civilized society. In the Western world, where the Kouachi brothers grew up, there are agreed upon rules of engagement. If a magazine publishes an im age that you find offensive, you are welcome to write an op-ed, and if you can’t find a publisher, then the Internet provides the ability to self-publish. You can take legal action, as one group did in 2007. The Grand Mosque of Paris filed a lawsuit against the editor of Charlie Heb do on the basis that the depictions of Islam’s Prophet Muhammad were tantamount to hate speech. The tribunal did not find in the mosque’s favour, but the point had been made that the cartoons were offensive to some. Those offended also have the option to lobby politicians, run for political office, change the laws, or create another publication that counters the offending content. But nowhere in our collective rules of engagement do we accept physical violence and murder as a suitable response. It isn’t just about “Western” values, it is about civility, decen cy, and rationality. Most of us were offended on all those fronts, which made the attacks highly harmful to our society and made them worthy of an exceptionally high degree of news coverage. I think reporters, writers, and broadcasters presented the informa tion fairly, quickly, responsibly, and for the most part got the facts right.
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What We Got Wrong Following the attacks on Charlie Hebdo, only a handful of Canadian news outlets published illustrations of Muhammad from the French sa tirical magazine: the National Post, Sun News Network, CBC’s French network services Radio-Canada, and multiple French-language news papers based in Quebec. They got it right, and I applaud them for it. But for the most part, English-Canadian broadcasters and news papers chose not to publish the Charlie Hebdo cartoons of the Prophet Muhammad, or the cover of the Charlie Hebdo issue following the at tacks that featured the Prophet holding a sign in French that read “All Is Forgiven.” This decision was wrong on two fronts: It was the wrong decision for journalists, whose responsibility it is to tell the story and let the facts speak for themselves. It was also wrong because the notion that there is a religious edict against showing images of the Prophet is invalid, which I will explain in further detail below. In choosing not to publish the illustrations, some suggested that you don’t need to see the images to understand the story. However, that argument can be used for any story. And when it comes to visual me dia like TV and print, where the picture can boost the understanding of the story for the public, there is an obligation to show the picture, particularly in this case, where the images were an essential element of the story. This was addressed by Andrew Coyne of the National Post, who par ticipated in a panel discussion on CBC Radio’s show The Current on the issue of publishing the cartoons. Coyne said, “This is the news story. The story here is that this magazine was slaughtered for publishing cartoons that some people found objectionable. It’s a little precious to write about it but then not show people what the fuss is about.” He went on to say that this issue is near and dear to many journalists, that this is a broader issue of freedom of press and expression. Coyne said we can’t have religious fanatics dictating what we can and cannot pub lish. We can’t apply rules selectively. We cannot bend our freedoms for one religious group.1
1 “Media Split on Publishing Charlie Hebdo Prophet Muhammad Cartoons,” The Cur rent, January 9, 2015,http://www.cbc.ca/radio/
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Some media managers have said they were not publishing the car toons the day before the Charlie Hebdo attacks, so why change the policy after the attacks? The answer to that question is that the day before the attacks, the cartoons themselves were not newsworthy. The parameters of the story changed after people were gunned down in the street and in their workplaces. When the story changes, the policies on the cover age might have to change, and they often do. Denise Bombardier of the Journal de Montreal was also on The Cur rent’s panel. She described the decision by most broadcasters to not publish the cartoons as “gutless.” She went on to point out that not all Muslims feel that depictions of Islam’s Prophet are offensive, and that the media should not be kowtowing to a fundamentalism and radical interpretation of Islam.2 That brings me to the most common argument presented for not pub lishing the cartoons: illustrations of Prophet Muhammad are strictly forbidden in Islam and will offend Muslims. The former is false. This highlights that Muslims themselves were, and continue to be, absent from much of the discussion about these editorial decisions. CBC News Network’s show Power and Politics hosted a discussion with two Muslims about the publishing of the Charlie Hebdo cartoons. Shahid Mahmood is a political cartoonist, who had to flee his native Pakistan because of the lack of freedom of expression in that country, and the danger it had posed to his life. He corrected a common mis conception: “In early Islam, the Prophet was depicted. It was only in the eighth century that you have a stream of fundamentalists, not un like the Wahhabi culture that we have in much of the Middle East, that started to control the religion and what was portrayed to the public … This is detrimental to faith and detrimental to society. You have to be able to speak your mind.”3 Christine Gruber is one of the foremost authorities in North America on the issue of artistic representations of the Prophet Muhammad. Gru ber is a professor of Islamic arts at the University of Michigan and is writing a book called “The Praiseworthy One: The Prophet Muham mad in Islamic Texts and Images.”
2 Ibid.
3 “Charlie Hebdo Controversial Cartoon,” Power and Politics, January 14, 2015, http://
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During an interview on Public Radio International Gruber offered the following arguments:4 1. Nowhere in the Quran, Islam’s holy book, does it forbid the depic tion of the Prophet. 2. Muhammad has been depicted in illustrated manuscripts dating back to the thirteenth century, created by both Sunnis and Shias. And she points out that at the time these illustrations were created, there were no negative reactions amongst Muslims. 3. Islamic texts give detailed notes about the Prophet’s appearance, referred to as “Characteristics Texts.” They describe Muhammad’s height, eye shape, complexion, beard length, and so on. So an un derstanding of his appearance is important for Muslims. Gruber makes the distinction that, in Islam, it is strictly forbidden to worship idols. So perhaps over the years, and as the most conserva tive voices of Islam have become the loudest, depictions of Muhammad have been forbidden to avoid idolatry. But depictions are not forbidden in the Quran or in the hadiths, which are religious writings and teach ings from the Prophet that Muslims use as supplementary resources. In fact there are images of the Prophet Muhammad on display at the New York Metropolitan Museum.5 The Bibliothèque Nationale in France recently had a display of Islamic art in which the Prophet was represented.6 There is a large volume of Muhammad illustrations at the Edinburgh University Library in Scotland. Depictions of the Prophet by Muslim artists have been found in regions currently known as Iran, Turkey, Uzbekistan, Afghanistan, and India. Then some would argue that those paintings of Muhammad are re spectful, whereas the vulgar satirical cartoons are hurtful. Well, either the depiction is forbidden or it is not. And it is not. As it relates to hurt feelings, Rosie DiManno, a columnist with the Toronto Star, put it this way: “Sometimes journalism involves taking risks. And that doesn’t
4 “You Can’t Draw Muhammad – Unless You’re One of the Many Muslim Artists Who Did,” PRI, January 15, 2015. 5 “The Birth of Islam,” Metropolitan Museum of Art, New York,http://www.metmuseum.org/toah/hd/isla/hd_isla.
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just mean reporting from war zones. It means taking a stand … We are a secular profession. We do not make a habit of cowering before any other faith. We do not allow potential ramifications to pre-censor. We do not defer to the hurt.”7 And just to cover the entire ground, let us say, for the purposes of argument, that the Quran did clearly prohibit the depictions of Prophet Muhammad, thereby making it a duty of Muslims to not present him in an illustrative way. Even then, the cartoons should have been printed. A newspaper or broadcaster has no religion: these are secular, public institutions, and why should the rules for religious believers be forced on them or adopted by them? In extreme cases, if a Muslim reporter or editor did not feel comfortable with the story, which should be respect ed, then he or she should not be assigned it, as though it were a matter of conflict of interest. If Muslims are ordered to not show Muhammad, then what does that matter to the Christians, Jews, Hindus, Sikhs, Bud dhists, atheists, and agnostics in the newsroom? If I were in the position to make the decision, I would have published the cartoons and the Charlie Hebdo covers. Not to offend, but to inform – which is my primary responsibility as a journalist. What We Need to Do Better One of the main goals of journalism is to hold people to account. When covering Islamist extremism stories, we need to be braver, be bolder, and push harder. Journalists must continue to work on improving the coverage of these stories and not allow the fear of being labelled antiMuslim dictate our analysis of news events, particularly around the motivations of the attackers, and what is demonstrably a rise in Islamist extremism in the West. Canadians have a well-deserved reputation for being open-minded and tolerant, particularly to visible, ethnic, and religious minorities. In that same vein, the media in Canada, located largely in Toronto, most ly white, liberal, insulated, and hom*ogeneous, share common values. And in the business of storytelling we often present someone – with or without intention – as the good guy or the bad guy. Because there
7 Rosie DiManno, “Star Should Have Published Charlie Hebdo Front Cover,” Toronto Star, January 13, 2015.http://www.thestar.com/news/
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is a history of minorities being the victims of actions of the dominant communities, journalists have fallen into the familiar and lazy pattern of presenting Muslims as victims. This is a form of well-meaning, un intentional racism, to presume that all Muslims are victims at all times. Muslims are as varied, as complicated, as kind-hearted, and as meanspirited or vicious as any other community. They must be seen as indi viduals, not as a group. Following the Charlie Hebdo attacks, Canadian media turned to the “Muslim community” for their reaction – again, as though there is one community or a singular reaction. Average daily news reporters are un der a tight deadline, and if they need a “Muslim voice,” it’s easy to go to the local mosque and ask the imam what he thinks. But then what “Muslims are thinking” is misrepresented. Like most people born into Christianity or Judaism, most Muslims do not attend religious service. They are, for the most part, living their lives like mainstream Cana dians, but their voices and opinions are shut out. If the media over whelmingly turn to mosques and Islamic organizations that represent a narrow, often conservative perspective of what it means to be a Mus lim, and they speak on behalf of the thousands of Muslims in Canada, then we’re painting a highly skewed picture. Once that imam, or representative, or spokesperson starts talking on behalf of Muslims, there has to be accountability. If every interview with a politician is in some way an accountability interview, then the same should be true for those who claim to represent a religious group, especially when that religious group has political aspirations, like the implementation of sharia law, for example. On more than one occasion, following the Charlie Hebdo attacks, on national broadcasts, representatives from Islamic organizations said that, while they deplored the violence and bloodshed of the attack, the actions were explicable because of U.S. or Western involvement in Mus lim countries. And often the journalist conducting the interview did not challenge this assertion. If a white supremacist or a conservative politician had made similar remarks, the reporter would be obliged, in fact emboldened to challenge. But my sense is that a fear of appearing racist or Islamophobic has prevented Canadian journalists from asking Muslim representatives tougher questions. It is not good enough to have a “Muslim voice” say, “This has noth ing to do Islam” and “Islam is a religion of peace.” There is evidence that there is a strain of Islam that is radical and violent, and it is build ing momentum.
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After the Charlie Hebdo attacks, the BBC conducted a poll of British Muslims about their perspectives on the attacks, and on life in the West in general. While 95 per cent of British Muslims polled felt a loyalty to Britain, there were disturbing numbers that need further analysis:8 · 24 per cent feel violence can be justified against those who depict Prophet Muhammad. · 11 per cent feel sympathy for the people who want to fight against Western interests. · 8 per cent know Muslims who are sympathetic to ISIS or Al Qaeda. · 45 per cent feel there is some justification for clerics to preach vio lence against the West. There was a much more comprehensive, five-year, “Six Country Immigration Integration Comparative Survey” done by a German research institute, WZB Berlin Social Science Center, which surveyed Muslim communities in Austria, Belgium, France, Germany, the Neth erlands, and Sweden. Some of the findings suggest a disconnection be tween “Muslim” values and “Western” values:9 · 65 per cent of Muslims interviewed say Islamic/sharia law is more important to them than the laws of the country they live in. · 54 per cent believe that the West is out to destroy Islam. · 60 per cent reject hom*osexuals as friends, 45 per cent say Jews can not be trusted. · 20 per cent of non-Muslim Europeans expressed Islamophobia, whereas 54 per cent of Muslims expressed Occidentophobia or antiWestern sentiment. No similar national survey has been conducted in Canada since 2006. Nevertheless, these Western surveys give reporters scientific, researchbased evidence that there is a schism between Western values and those
8 “BBC Radio 4 Today Muslim Poll,” ComRes, February 25, 2015,http://comres.co.uk/polls/bbc-radio-4-today-
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of some Muslims who live in those countries, including here in Canada. And increasingly that is leading to sympathy towards anti-Western ter rorist organizations, which could be resulting in the steady stream of young Muslims joining the global, violent, armed jihad. Of course we need to understand what is driving hundreds of young people, born and raised in the Western world, to leave their lives of promise and freedom to fight and die alongside a “death cult,” as so described by former foreign affairs minister John Baird, U.S. President Barack Obama, U.K. Prime Minister David Cameron, and Australian Prime Minister Tony Abbott. But we need to acknowledge that it is hap pening and not minimize the issue in the first place. As journalists it our responsibility to be neutral, to not show bias or take sides. However, there are occasions, particularly when talking about an extremist ideology, that we do not need to offer balanced cov erage, to present the other side of the argument for the purposes of seeming fair. For example, when the Taliban shoot a fourteen-year-old girl in the head because she wants to get an education, there is no need for balance. When Boko Haram kidnap more than 200 girls from a Ni gerian village, forcing the Christians to convert to Islam, and then sell ing them into sexual slavery, there is no other side to this story. When ISIS militants slit the throat of a Japanese war reporter, there is no other side to this story. These acts are disgusting and go against our very understanding of decency. The same I would say can be applied to the murders at the Charlie Hebdo offices. Rosie DiManno said it brilliantly: “I’m tired of being told this is not Islam. I know this is not Islam. But it is a strain of and a stain on Islam.”10 That extremist stain is smeared each and every day across the head lines of our national newspapers and on our TV screens during broad cast reports. Three middle-class British girls go to Syria to become ji had-brides. A group of chocolate shop customers are held hostage in Sydney. A young man is shot in the head at a synagogue in Copenha gen. A Bangladeshi-American atheist is hacked to death in Dhaka. A Canadian military officer is gunned down in our capital. If we can tell each story individually, then we also have a responsibility to offer the analysis of the shared ideology that ties these stories together and ask for accountability. Think of it as a New Year’s resolution.
10 DiManno, “Star Should Have Published.”
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14 Journalism and Political DecisionMaking in an Age of Crises brian stewart
Introduction The Paris shootings and latest security alarms in Europe and North America were profoundly important events, yet such brutal happen ings are scarcely isolated shocks anymore. Rather, they are part of what journalists see as the “terrible torrent” of crises in a hyper-alert age. It’s difficult to analyse the Paris shootings and our response to them without taking into account the unprecedented influence mainstream and social media news coverage has on governments, which are de termined to “seize the narrative” by promising rapid, effective action. The race is to both calm an anxious public and grab political gain by appearing bold. It never stops, does it? Our 24/7 all-news environment has become a vortex in which the increasing mass of information and an unprec edented velocity of communications produce a force that threatens to overwhelm media and government alike. We are starting to feel we are in a permanent state of siege. We have struggled just within the past twelve months to grasp eve rything from the rise of ISIS and the near-collapse of Iraq to the emer gence of a possible new Cold War in Europe, as Russia has seized the Crimea and supported insurgency in the Ukraine. There’s been Boko Haram in Africa and an Ebola crisis as well. Add to that a mysteriously missing airliner yet to be found and another shot down, as well as a new Canadian military mission abroad and new terrorist acts at home, along with Paris and its aftermath. Since 9/11 we have really lived within an Age of Crises, so our public discourse is severely distorted by a tempo of upheavals that tend to ex
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acerbate an obsession with short-term dangers while drawing attention away from critical long-term issues. It’s often said it was ever thus in the world, but it really wasn’t – this is overdrive as never seen before. I can remember long ago, in November 1956, being fascinated by what seemed media frenzy as the Suez Invasion and Hungarian upris ing exploded at the same time, and of course in 1962 by the extraordi nary drama of the Cuban Missiles Crisis. But when I view archival news footage from those times, media stakeouts and once-a-night newscasts seem almost languid compared to the media bombardment today. The Surge in Information The whole manner in which crises are covered changed irrevocably in the 1980s when both the Internet and satellite TV feeds married nearinstantaneous information to real-time or live reporting. A more trans parent and well-informed world was at hand, or so it was hoped, but for politicians and journalists it arrived as both a blessing and curse. It meant governments could grab attention more often, while TV journal ists could feed same-day stories from a distant famine or an artillery duel in Beirut into that night’s newscasts. The new immediacy had im mense attractions. The curse, as politicians found out, was that the sheer number of problems needing urgent answers offered up not only the possibility of political gain, but also far more opportunities to stumble in public. Ma jor resources were shifted into public information operations to stickhandle, or more often just block, the media inquiries now pouring in. Crisis-mode management became far more a preoccupation of those near the centre of power. For reporters, the downside soon arrived in an escalating demand for stories from now-insatiable news departments at the very time media began to chop back the number of journalists employed and even whole foreign and domestic bureaux. Foreign reporters who once had days to research reports found themselves often asked to file shorter, same-day reports, sometimes for all morning, noontime, and evening newscasts, which often were expected to include almost instant analysis. More alertness and rapid-fire analysis has unfortunately not meant an end to misjudgments. There is still a media tendency to exagger ate good news (admittedly rare) or the more common bad happenings. Both journalism and government remain myopic to a surprising degree
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– we did not foresee the collapse of communism around 1990; failed to really forecast the rise of China in such spectacular form; certainly did not predict the Great Global Recession of 2008; were astonished by “the Arab Spring”; and were mystified by stumbling upon the spectre of Cold War Two, as well as still another Iraq War. In fairness, however, nothing prepared policymakers or journalists for the shock effects of our time. Even if the unbelievable savagery of the war as waged by ISIS and Boko Haram and seen often on YouTube had been foretold, who would have believed such gory predictions? We believe ever more information should enlighten out darkness, but American political scientist Philip Tetloch has studied the misfires of pundits and notes that the immediacy of more information does not seem to increased accuracy of predictions, but rather the reverse (2005). This is the turbulent environment in which we try to absorb current events such as the Boston Marathon bombing and Paris shootings, and in which governments naturally seek to act as if firmly in charge of events, even as our decision-makers are increasingly overwhelmed by cascades of seemingly incomprehensible problems. At one level it is a problem of sheer numbers. The list of independent countries in the world has tripled to 196 since I graduated as a jour nalist a half-century ago, all with problems, causes to defend, and de mands to make at international forums. At last count 50 of these nations are failing or failed states, hollowed out by years of conflict, corruption, and rule by oligarchs, and most in an almost permanent state of ruin ous internal conflicts. The demands on the attention of leaders and advisors is unprece dented. It’s not just countries, of course, that need attending to, but also economies as well, global health emergencies, along with an ever-ex panding number of non-state actors in national and global affairs – tens of thousands of NGO and volunteer groups, diaspora and commercial lobbies, all seeking, demanding attention for their cause and increas ingly skilled in using Internet and social media campaigns to influence opinion. To this we should add the remarkable growth of outside con sultants of all kinds that governments are now reliant on to help handle the sheer volume of issues they face. Talk to former policymakers in almost any democratic government and one senses nostalgia for a slower pace of decision-making in a time when leadership still had moments for calm reflection, even for bluesky sessions when long-term strategy could be devised. Madeline Al
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bright, President Bill Clinton’s secretary of state, stresses that it’s not just the volume of international problems, it’s also the fact they all ur gently “need fixing.” Forty years ago, few in office likely cared overly about an distant upheaval in East Timor or Somalia, or Yemen, but today any small nation can suddenly threaten world stability and so launch yet another diplomatic emergency. So turbulent is our world that leaders need a strong, supporting body of knowledge already in place before they take office. It’s a common complaint of policy advisors, albeit deeply off-the-record, that many of today’s younger crop of leaders arrive in power with little if any concept of strategy and are deficient in the historical knowledge that strategy requires (and to some extent similar complaints are made of many journalists today). More Information, More Pressure to Act The greater transparency that media provide has benefited the world in many ways, and there is much to be said for bringing foreign and secu rity problems, once the preserve of highly trained, elite public servants, at least partially into the “public market place of ideas,” as the media like to call it. But it has also significantly increased pressure on govern ment to often react, even to directly intervene, in distant trouble spots they know too little about. As Robert Bothwell, Canadian historian and distinguished Munk School professor, wrote of the 1990s era of post–Cold War interven tions, “The Canadian public, spurred on by the media and by specialinterest non-governmental organizations was prone to demand action as one crisis after another was perceived and adopted by journalists – sometimes for good reason, sometimes not” (2006, 519). Canada was hardly alone in this development. As the Cold War de frosted, numerous political and global affairs commentators have com plained of a lack of coherent strategy, or even clear policy or doctrine evident in top government circles. The complaint is often heard that today governments seem most guided by a series of news strategies to appease a media hungry for drama and the public’s demand for quick results whenever the latest headline crisis erupts. According to Canadian Donald Savoie, the much-quoted analyst of governance, some recent prime ministers often seem to govern through “bolts of electricity” – hurried actions meant to keep both party follow
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ers and Parliament in line at a time of such fast-moving and complex events. “For the centre of government, coordination now means oper ating an early warning system for the prime minister, anticipating and managing political crisis, and pursuing prime ministerial priorities. The emphasis is less on policy coherence and more on keeping the lid on, so that the prime minister and the centre can get this done” (2000, 336). Government actions are shaped at a time when too much informa tion increases the difficulty in setting clear strategy. The undeniable benefits of the computer’s information floodtides coincide with a loss of perspective, even a weakening of our capacity to separate merely important issues from the most critical ones. “Because information is so accessible and communications instan taneous, there is a diminution of focus on its significance, and even on the definition of what is significant,” Henry Kissinger writes in World Order. “This dynamic may encourage policy makers to wait for an issue to arise rather than anticipate it, and to regard moments of decision as a series of isolated events rather than part of a historical continuum. When this happens, manipulation of information replaces reflection as the principal policy tool” (2014, 351). The old diplomacy had many faults, including failure to support de serving political forces, he concedes. Governments today, however, too often plunge into commitments they scarcely understand. It is not dif ficult to think of some recent Canadian operations when reading from Kissinger, “The new diplomacy risks indiscriminate intervention dis connected from strategy. It declares moral absolutes to a global audi ence before it has become possible to access the long-term intentions of the central actors, their prospects for success, or the ability to carry out a long-term policy” (2014, 357). This tendency is happening at a time when the various news or ganizations supposed to cover government, even the best of them, are straining to provide balanced reporting in such a period of deep finan cial constraints and reduced staffs. The media have less ability even to analyse and give context to the material government feeds them. Both print and television journalism can still provide brilliant mo ments, often under enormous stress, as they did during the immediate hours and days following the Ottawa and Paris shootings. When the need for deeper information and understanding is required, however, we are often left dissatisfied.
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The arrival of access to information had admittedly increased the power of some journalists to penetrate more deeply into government workings. Yet, with few exceptions, skeletal news organizations have ditched detailed examination of how government functions in favour of highlighting party clashes in the restricted “gotcha circus” of tele vised Question Periods or media scrums. This reality has collided with those increasingly powerful power circles mentioned by Savoie, here primarily the Prime Minister’s Of fice, that are at all times determined to ensure government wagons are in a circle, protected from any slip of the lip or release of information that might rebound to the opposition’s favour. Even very senior offi cials are restricted from speaking freely to media, while departments either clam up entirely or merely hand out position-paper talking points. Yet while attempts to manage media have increased significantly in Canada under Prime Minister Stephen Harper, even strong critics of such control admit it’s not just a Harper problem or even a Conserva tive problem, but rather a tendency in governments generally. There is little optimism that another party in power might act very differently, for there’s a dynamic at play that increasingly pits inner power circles against media. As Mark Bourrie, author and media expert notes, “The reporters in Obama’s White House are treated with the same contempt that Harper holds for the Parliamentary Press Gallery and subject to the same kind of controls” (2015, 7). In his just released Kill the Messengers: Stephen Harper’s Assault on Your Right to Know, Bourrie sees new restraints on media as a threat to democracy, not just here but in most Western countries: “The use of corporate communications strategy to hide public information, the development of retail politics, the invention of intrusive technology and the defanging of media and other governmental watchdogs have become normal … a new kind of controlling, arrogant, and often vin dictive government has emerged since the 1980’s and is getting more emboldened and entrenched” (2015, 7). What is deeply worrisome is that governments today, beset by a sense of continuous siege, and media driven by hunger for the dramat ic, will find it ever harder to avoid falling back on superficial answers or bumper-sticker slogans to explain the deeply complex dangers fac ing us. In this extraordinary period of rapid change, political writer Joshua Ramo titled his study of such risks The Age of the Unthinkable. He argues
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that ideas and institutions once relied on are failing, “and the best ideas of our leaders seem to make our problems worse, not better. A global war on terror produces, in the end, more dangerous terrorists” (2009, 9–10). After Paris I was reminded of something historian and author David Fromkin predicted fully forty years ago in his Foreign Affairs article, “The Strategy of Terrorism.” He warned that an age of terrorism would flourish in the rapidly expanding world of global, instantaneous com munications that was even then on the near horizon. As terrorists gar nered more news coverage, they would continually increase shock tac tics in attempts to goad governments into overreacting. “All too little understood, the uniqueness of the strategy lies in this: – that it achieves its goal not through its acts but through the response to its act” (1975). More psychologically shocking, more deadly attacks will dangerously rattle our societies. He added, “Increasingly we will be under pressure to abridge our laws and liberties, in order to suppress the terrorist. It is a pressure that should be resisted.” Conclusion One can sympathize with leaders today with all that they confront. Still, as we now face a new cycle of shocks over the Paris shootings, Iraq, and our domestic security, one would surely wish for more considered and transparent examinations of issues. One cannot be hopeful, given cur rent time restrictions on debate in Parliament and the deep freeze that has settled over government and media. New technology seems in many cases to be actually hardening politi cal attitudes and cultural divides, rather than softening them by bring ing factions closer, a tendency towards bitterness and distrust found not only nationally, but internationally as well. We face major challenges at a time when the public seems deeply disenchanted with governments and media alike. A yearning for improved dialogue may have positive effects, over time. Certainly academia has a renewed responsibility to provide deep er, more balanced, and calmer study of issues, and social media as well can sometimes provide important new insights. On the plus side, the Canadian public appears to have so far embraced the need for social resilience in the face of so many new anxieties. We’ll need plenty of this quality in future. However, it’s hard to escape the conclusion that the latest batch of
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crises only highlights for us: we have profound weaknesses in our pub lic discourse and no consensus yet how to fix them. REFERENCES Bothwell, Robert. 2006. The Penguin History of Canada. Toronto: Penguin Canada. Bourrie, Mark. 2015. Kill the Messengers: Stephen Harper’s Assault on Your Right to Know. Toronto: HarperCollins Canada. Fromkin, David. 1975. “The Strategy of Terrorism.” Foreign Affairs Quarterly, July,http://www.foreignaffairs.com/
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PART FOUR Canada: Security and Society
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15 Legislating in Fearful and Politicized Times: The Limits of Bill C-51’s Disruption Powers in Making Us Safer kent roach and craig forcese1
Introduction The high, though apparently declining levels of public support for Bill C-51, the Canadian government’s proposed Anti-Terrorism Act, 2015, in the face of sustained criticism can best be explained by growing con cerns about the increased risk of terrorism. These fears are understand able. Alas they can be exploited for political gain. The result may well be legislation that threatens rights without advancing security. Since its release on January 30, 2015, we have written and released over 200 pages of legal analysis of several parts of the omnibus bill (Forcese and Roach 2015). We have tried to discuss both threats to rights and threats to security, including unintended or second-order consequences of the legislation to security operations and terrorism prosecutions. In this chapter, we will focus on the latter. We will argue that the new powers that Bill C-51 provides to CSIS and the police are best understood as powers of disruption. As such, they provide only partial and temporary solutions to real security prob lems presented by those radicalized to violent extremism. The first part of this chapter will examine the context in which C-51 was introduced and debated. It will also situate C-51’s new disruption powers in a broader continuum of counterterrorism strategies from pre vention to prosecution. The second part will critically examine the new
1 We thank Leah Sherriff for excellent research assistance and Professor Roach ac knowledges the generous support provided by his 2013 Fellowship granted by the Pierre Elliott Trudeau Foundation.
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disruption powers that will be given to CSIS, the role that judges will play in granting and supervising such powers, and the unintended and harmful effects that the powers may have on terrorism prosecutions. The final part will critically examine C-51’s enhanced preventive arrest and peace bond powers with a focus on their limited role and efficacy. The Context: Fearful and Politicized Times The UN Security Council in Resolution 2178 has recognized terrorist foreign fighters as a threat to international peace. Estimates of Canadi ans who have joined foreign terrorist fights range from 30 to 130. These are significant numbers, albeit much fewer than those who have left Europe to join the forces of ISIL’s brutal regime that is trying to im pose a caliphate in parts of Syria and Iraq. The two “lone wolf” terrorist attacks in Quebec and Ottawa in October 2014 shook Canadians. The ability of an armed gunman to enter Parliament both scared and em barrassed Canadians. The threat then seemed to get even worse. The Paris and Copenhagen attacks of January 2015 were symbolic and unsettling. In Canada, there were constant domestic echoes of these threats. The police charged two people with conspiracy to commit murder by shooting people in a Hali fax mall. The minister of justice stated that this was not an act of terror ism because of the absence of a “cultural” element – a peculiar turn of phrase, given the absence of such a concept in the law. For some, it was a coded suggestion that invoked a double standard for Islamic terror ism (see Fadel, this volume), but the arrests also increased fears. Al Shabaab, the al Qaeda–linked Somalia terrorist group, issued threats to shopping malls, including the West Edmonton Mall. This led to thirty-five teams withdrawing from a cheerleading competition that was fortunately still held with 2700 competitors and without incident. This threat was cited by the government as an indication of the need to enact Bill C-51 in a hurry. In March, a permanent resident was held in immigration detention, pending deportation to Pakistan, with allega tions that he told an undercover officer of plans to bomb the Ameri can consulate in Toronto. In other developments, a mysterious tunnel near a Pan Am Games venue turned out to be a man cave, and a white powder sent to Quebec ministers turned out to be innocuous, but these incidents still stoked fears. Bill C-51 was also introduced in highly politicized times. Prime Min ister Harper introduced the bill in an election-style rally in a highly
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sought after “905” riding in suburban Toronto. He used the rhetoric of war by suggesting that “violent jihadism is not a human right. It is an act of war, and our government’s new legislation fully understands the difference” (CBC News, 2015). Although the official Opposition even tually opposed the bill, other parties did not, in part to avoid a wedge issue in the upcoming October 2015 election. Though some recent polls suggest a sharp decline in support, Bill C-51 seems politically popular, especially in Quebec, where some sup porters have rekindled a divisive debate about the Quebec Charter of Values and debates about secularism. The Paris attacks may have had a greater effect in Quebec than the rest of Canada. The fearful and politicized context in which C-51 was introduced and debated is not conducive to clear thinking or recognition of its longterm and unintended implications. Indeed, the government’s “com mon sense” approach rejected key recommendations from the 2006 Arar Commission report, the 2010 Air India report, and a 2011 report by a Special Senate Committee. C-51, like much of the government’s criminal justice agenda, was not evidence-based, and proudly so.
Situating Disruption Powers in a Broader Continuum of Counterterrorism Strategies from Prevention to Prosecution Disruption needs to be situated in a continuum of counterterrorism measures that, as outlined in Canada’s 2012 counterterrorism strategy, range from prevention to detection, denial, and response. At the softer preventive end of the spectrum are multidisciplinary interventions of the type contemplated in the United Kingdom’s Crime and Security Act, 2015 c 6. As in the United Kingdom, these measures are often imple mented not by police or intelligence agencies, but by schools, health services, local authorities, prisons, and even universities. They may best be implemented by and with close cooperation from community groups. The fact that some of the Paris and the Copenhagen attackers had spent time in prison underlines the need for prison de-radicalization programs. The problem of prison radicalization may be particularly acute in Europe, but it is not limited to Europe. Ali Mohamed Dirie went to jail for his role in the Toronto 18 terror ism plot. He remained radicalized and perhaps became more radical ized while serving two years in a special handling unit with others con victed of terrorism in Canada. He was released, and though restricted
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under a peace bond from possessing a passport, he subsequently joined ISIL forces and died in Syria. C-51 makes it easier for judges to impose the type of conditions that Dirie breached, but it does nothing to ad dress radicalization within prison even though deradicalization pro grams may provide more lasting and effective remedies than peace bonds. This is another example of C-51’s failure to take a comprehen sive or balanced approach to counterterrorism. Bill C-51’s powers of disruption include increased periods of preven tive arrest and lowered standards for both preventive arrests and peace bonds. Such powers do nothing to address the factors that may moti vate terrorism or to facilitate actual terrorism prosecutions. Bill C-51’s focus on disruption is unfortunate, because there is need for both pre ventive counter-radicalization and terrorism prosecutions, including prosecution of four new criminal offences that Parliament enacted in 2013 that apply to those who attempt to leave Canada to engage in ter rorism abroad. Bill C-51, combined with Bill C-44, which allows CSIS human sources to veto their participation or identification in terrorism prosecutions (Roach 2014a), may have the unintended effect of making it more difficult to apply these valuable new offences. CSIS can disrupt and perhaps even detain, but even under C-51, it cannot arrest or charge. The police can use preventive arrests, and judg es can impose peace bonds that may prevent travel and certain associa tions. If they are violated, under C-51 a terrorist suspect can be jailed for a maximum of four years. However, such a person will not be jailed for terrorism but for the less serious offence of breaching a peace bond. Bill C-51’s new powers of disruption are designed to be used in cases where there is not enough evidence to justify laying criminal charges under the fourteen existing terrorism offences and related offences. Disruption will be used when criminal charges are not possible. From a security perspective, criminal charges are generally better than disrup tion. An accused will often be denied bail awaiting trial and will often receive a long sentence if convicted. From a rights perspective, charges ensure that the accused will receive a fair and public trial.
Increasing False Positives by Using Disruption Bill C-51’s increased disruption powers are designed to avoid one vari ety of security failure: cases where CSIS or the police were able to iden tify suspected terrorists but were unable to charge them or take other actions to prevent them from engaging in terrorist violence. Below we
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will address the limited efficacy of C-51’s disruption powers in prevent ing terrorism, but at this juncture we note that the new powers raise the problem of false positives: the disruption or detention of those who may not be terrorists. In the United Kingdom, only 34 per cent of over 1500 individuals subject to preventive arrests since 9/11 have been charged with an offence (United Kingdom 2012). Following the late Ronald Dworkin, we should recognize that in de termining balances between security and liberty, sacrifices of the latter in the post-9/11 terrorism context will be distributed unequally, and the burden will fall on Muslim persons, often on the basis of so-called extremist beliefs and associations (Dworkin 2002). The increased falsepositive rates of disruption raise important issues of community rela tions and the adequacies of review and oversight of the security agen cies whose disruption activities may often not be scrutinized by courts in the context of a criminal trial. The New CSIS Powers of Disruption CSIS engaged in “soft” forms of disruption before C-51 by contact ing family members or community leaders close to a terrorist suspect. SIRC expressed the view that such actions were within the CSIS Act. It recommended that ministerial guidelines manage the risk of such measures, but it is not known whether any were issued, because many ministerial directives remain confidential (SIRC 2010). In 2011, a Spe cial Senate Committee recommended that the CSIS Act be amended to clarify CSIS’s powers of “lawful disruption” (Senate 2011). For reasons that the government has yet to explain or justify, C-51 dramatically ramps up CSIS’s powers to engage in disruption. Al though the government has used the example of CSIS interviews to dissuade persons from leaving to join ISIL as an example of the new CSIS powers under C-51, the powers are actually much greater. They include powers to violate both the law and the Charter under a judicial warrant granted by the Federal Court. When C-51 is enacted, CSIS will be expressly authorized to “take measures, within or outside Canada, to reduce” very broadly defined “threats to the security of Canada.” These threats are not limited to ter rorism but include espionage, clandestine or deceptive foreign-influ enced activities, or the undermining of the constitutionally established system of government in Canada by covert unlawful acts or by violence. Where authorized by Federal Court warrant, these “measures” may
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“contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms” or may be “contrary to other Canadian law.” The only categorical restriction is that such measures must not intentionally or by criminal negligence cause death or bodily harm, violate sexual integrity, or wilfully obstruct justice. A judge must also determine that illegal disruption is reasonable and proportionate, having regard to the threat and the reasonable availability of less drastic measures. The CSIS changes are dramatic, even radical. In 1984, in the wake of illegalities, including the burning of a barn and theft of Parti Québécois membership lists by the Security Service of the RCMP, Parliament cre ated CSIS and gave it the powers only to collect intelligence. Parliament accepted CSIS’s broad mandate because it lacked what we have called “kinetic” or physical powers – the powers to do things to people in the physical world (except as necessary to, for example, install a wiretap or listening device). That will change with Bill C-51. The bill superimposes kinetic powers on the broad mandate CSIS has had for the last thirty years to be a pure intelligence agency. Perhaps the new powers could be justified to re spond to new terrorist threats, but they will be available for CSIS to take physical measures to reduce all threats to Canadian security, including those relating to subversion that may touch on protest and advocacy that does not comply fully with the law. CSIS will also be able to enlist or deputize domestic and foreign part ners when engaging in such disruption. Again, this may be an appro priate response to whole-of-government and transnational responses to terrorism. But we are extremely troubled by the fact that C-51 leaves in place the 1984 review structure, where the independent reviewers in SIRC have no jurisdiction to review CSIS’s security partners, including those who are deputized into assisting in the execution of new disrup tion warrants.
Giving Judges New Powers to Authorize Charter Violations in One-Sided and Secret Warrant Hearings Jason Kenney has argued that C-51 does not really grant CSIS new powers: it grants them to judges. Such arguments are disingenuous. First, C-51 requires only a warrant if CSIS must break a law or violate the Charter to reduce threats to security. It will expand CSIS’s warrant less powers. Second, the idea of judicial oversight will understandably invoke
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images of public adversarial hearings subject to appeal, ultimately to the Supreme Court of Canada. This is not the case under C-51. Judicial oversight of CSIS’s new powers will be conducted in a secret hearing with only a judge and a government lawyer. The target of the disrup tion will not be present and will never be informed. No civil rights group can weigh in. There will be no appeals. At best, the Federal Court judge might appoint a security-cleared spe cial advocate to challenge the government’s case, but even this is not specifically provided for in C-51. Even if this occurs, there is hardly an equality of arms between the special advocate and the government’s lawyer. Indeed special advocates’ constitutionally required access to information will be significantly reduced under the immigration law amendments in C-51, so that they may no longer be able to detect that some human sources used by CSIS have not been reliable. C-51 also does not contemplate that special advocates will be able to challenge the secret intelligence used to place someone on a no-fly list. When secret in telligence is used as evidence, the problem of false positive looms large. We have concerns about what will happen in one-sided CSIS disrup tion warrant hearings. There are an alarming number of judicial deci sions finding that CSIS has failed to meet its duty of candour in closed door proceedings. It is very difficult to know whether these reports represent the sum total of CSIS shortcomings – a failure to be candid is something that is, by definition, very difficult to detect. The government will argue that all warrants proceedings are onesided and the new CSIS warrants are no different. But the quick and facile analogy to search-and-seizure and surveillance warrants breaks down upon reflection. Judges who grant such warrants are trying their best to prevent Charter violations – it is the warrant that makes the search constitutional. C-51 is different and radically so. It contemplates that the Federal Court will be able to grant warrants that authorize CSIS to contravene a Charter right. To imagine that a court can pre-authorize a violation of any Charter right in response to an open-textured invitation to do so is to misunderstand the way our constitution works, on a fundamental level. This is especially so when the contravention of the Charter will be justified by the judge in a secret one-sided hearing without any right of appeal. For instance, a judge could in theory be asked to authorize a violation of the right against cruel and unusual treatment under the Charter. In the present security context, with its focus on foreign terrorist fighters,
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we expect that the first Charter right to be violated by a new CSIS war rant will be the section 6 Charter right of Canadian citizens to leave or return to Canada. Imposing restraints on returning foreign fighters is a controversial issue. The U.K. Parliament recently had a robust debate about wheth er temporary exclusion orders can be justified to prevent citizen for eign terrorist fighters from returning to the United Kingdom. No such debate is happening in Canada – but C-51 will allow this result to be achieved covertly, through a one-sided judicial process. All rights, including section 6 Charter rights, can be subject to reason able limits under section 1 of the Charter. Nevertheless, the restraint on the right is usually spelled out in advance in legislation that can be debated by the public and interpreted by the courts. But C-51 contains only an open-ended and generic reference to authorizing violations of any Charter right, so long as the violation is reasonable and proportion ate to the threat and the reasonable availability of less drastic measures. C-51’s new CSIS disruption warrants differ dramatically from inves tigative hearings that were one of the most controversial parts of the post 9/11 terrorism law. Investigative hearings are consistent with the Charter, because they are presumptively held in open court, with the target represented by counsel. Those safeguards do not exist in C-51. Even then, a strong minority of the Court concluded that investigative hearings did violence to the role of judges by turning them into police investigators (Re Section 83.28, 2004). This concern about the fusion of judicial with executive powers is even more true in the context of new disruption warrants. Moreover, a Federal Court will be asked to do Par liament’s work by fleshing out how and why Charter rights must be limited to reduce security threats. The judges are being asked to do the dirty work of both the executive and Parliament. Our expectation is that the Federal Court will do its best to ensure that the government justifies the need for illegal measures, and our hope is that it will resist the notion that the executive can violate the Charter in this novel manner. Nevertheless, C-51 places the Federal Court in a very awkward position, one that may reflect the govern ment’s lack of understanding of the judicial role. The judiciary is tradi tionally expected to uphold the rule of law and the Charter. It will now be asked to provide ex ante justification and cover for their violation. We suspect all this will be anathema to the Court. It will rightly worry about its reputation, especially if a Court-authorized “Charter breach
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warrant” is associated with an operation that goes wrong and gener ates public scandal. In any case, the Federal Court will have to devise ad hoc procedures to ensure that CSIS and other individuals who assist it do not go be yond the terms of the warrant in what may be a dynamic and danger ous context, sometimes in foreign lands. We expect that the Federal Court will also do its best to issue redact ed versions of its judgments in these novel warrant cases. Nevertheless it will have to respect the need for secrecy to protect both ongoing and perhaps international investigations. Under Bill C-44, it will also have to ensure that no identifying information about CSIS human sources is revealed. The warrant decisions will be made by specially designated Federal Court judges, generally acting without the benefit of appellate guidance.
The Need for Judicial Oversight to Be Complemented by Adequate Review The Federal Court will not automatically know what is done under its authorization. Past experience suggests that what it authorizes and what is actually done may not always line up. Justice Mosley found that surveillance that he had authorized CSIS to conduct had been sub contracted to foreign intelligence partners. He learned of this subcon tracting only from reading review body reports (Re X 2013). The Federal Court would be well advised to reach out to review bod ies for monitoring and feedback. Alas they will find the existing ones to be overburdened and stuck in twentieth-century silos. SIRC will be mandated under C-51 to annually examine one aspect of the new pow ers, but it has only seventeen people and a budget under $3 million. C-51 also contemplates that judges may authorize and CSIS may uni laterally deputize any person, including foreign persons, to assist in the execution of their warrants. It will be very difficult for the Federal Court or SIRC to supervise their actions if these deputies violate rights or do not do their jobs well. CSIS will appropriately work with CSE, our signals intelligence agency, but SIRC and the CSE reviewer, contrary to the Arar Commis sion’s 2006 recommendations, still cannot share secret information or conduct joint investigations. There will be no independent review of the actions of other officials such as foreign, border services or the mili
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tary who will likely assist CSIS in disruption at home or abroad. The case of Maher Arar case and other Canadians tortured in Syria remind us that all bets are off once CSIS enlists foreign agencies to assist it. In a populist manner, the government has painted enhanced review as duplicative red tape and as the enemy of those who do very dif ficult jobs in our security forces. But security agencies recognize that informed review bodies can assist them, to defend them from unfair criticism, to ensure adequate resources, and to improve performance. The accountability gaps that existed before C-51 may become signifi cantly wider after its enactment.
Unintended Effects of New CSIS Powers That May Harm Security The government is banking on Canadians dismissing the concerns of rights groups and “so-called experts,” in part because Canadians are understandably scared about terrorism. The government may be right in this political calculation, but C-51 may have unintended effects that will harm security efforts, especially terrorism prosecutions, which re main the best means to incapacitate and denounce terrorists. Here are some of our concerns: · Criminal trials: CSIS’s operation and new powers are often “pre criminal.” As such, they may overlap, affect, and perhaps taint a subsequent RCMP investigation and evidentiary record. A crimi nal trial may be mired in questions arising from the Federal Court authorization of violations of the law and the Charter and doubts about whether the CSIS operation contributed to the alleged crime or constituted an abuse of process that requires a terrorism prosecu tion to be terminated. · Interaction with informer privilege: Bill C-44, now in the Senate, will give CSIS “human sources” broad privilege from being compelled to be a Crown witness or having identifying information disclosed in court proceedings. Crown prosecutors may find this frustrates their witness list. Good defence lawyers will fight the new privilege, especially when the first thing they suspect is that a CSIS kinetic operation lies at the heart of a subsequent criminal case. They will argue, as they have done with success in criminal cases, that inform ers have lost the protective shield of privilege by becoming active agents or even agent provocateurs with respect to the criminal trial. They will demand disclosure of CSIS material to make such claims.
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Disclosure disputes and abuse of process claims may make terror ism trials – already long and complex – even more difficult. · Interaction with the RCMP: The RCMP already have legal powers under section 25.1 of the Criminal Code to engage in disruptions. Peace officers in these situations likely remain preoccupied with the effect their conduct might have in any future criminal proceedings. For cultural and institutional reasons, the Air India Commission concluded in 2010 that CSIS was still not sufficiently aware of its evidentiary obligations and the effects of their actions on criminal investigations and prosecutions. How will CSIS and RCMP arrange their affairs so that CSIS’s kinetic activities do not undermine RCMP criminal investigations, either ongoing or prospective? · Lack of police independence: CSIS, unlike the RCMP, does not have constitutional protections of police independence designed to en sure that governments do not order the police to investigate and charge their enemies or to investigate or charge their friends. CSIS’s new powers apply to attempts to reduce all threats to the security of Canada, including threats associated with its counter-subversion mandate and threats that may be conducted in conjunction with even lawful protest and advocacy. Especially when read in tandem with the even broader definition of security threats in C-51’s pro posed information-sharing act, this raises concerns that government may use their legitimate powers of providing political direction to CSIS effectively to encourage the service to focus on “enemies,” such as Aboriginal, environmental, “anti-petroleum” protesters, or certain diaspora groups. · Institutional skills and culture: CSIS is a security intelligence organiza tion. If it gears up kinetic activities, it will presumably require skills and aptitudes that presently are not part of its arsenal. C-51 allows them to use “any person” to carry out activities that reduce secu rity threats – not just their own employees. Intelligence assets gone rogue is one thing, but rogue behaviour by individuals charged with physical interventions with targets might be even more con cerning. CSIS is a law-observant service, adhering to legal expecta tions is an important part of its culture, and it remains to be seen what effects C-51 will have on this culture. · Social licence: The world is rife with misunderstandings and con spiracy theories about spy services, including CSIS. With the new measures, many conspiracy theories move from the “implausible because they require compounded illegal steps” to “within CSIS’s
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powers in principle.” There will be a consequence in social licence for a clandestine service empowered to act in violation of the law and the Charter, especially in communities that feel targeted. · Limited efficacy of disruption powers: A likely scenario is that CSIS will obtain a warrant to do illegal acts to prevent would-be or former foreign terrorist fighters from exercising their rights as Ca nadian citizens either to leave or return to Canada. The new war rant will, subject to one renewal, allow CSIS to violate the law and the Charter for 120 days. But what if, after this time, the person is still determined to leave or return to Canada? Criminal prosecu tions under the 2013 foreign terrorist fighter provisions may be the answer, but CSIS actions may frustrate rather than facilitate such prosecutions.
Summary CSIS already engages in “soft” forms of disruption by making people, their families, and friends aware that they are being investigated. C-51 deliberately goes far beyond the Special Senate Committee’s 2011 rec ommendation that “legal disruption” powers be codified. It does so by authorizing disruptions that may even violate the law and the Charter, and stop only at the outer limit of bodily harm, obstructions of jus tice, and violation of sexual integrity. These new powers may have farreaching and unintended consequences, for rights but also for security, including subsequent terrorism prosecutions that may be necessary to deal with foreign terrorist fighters not amenable to CSIS’s persuasion. New Police Powers Bill C-51’s new police powers are even more of a temporary fix than CSIS’s disruption powers. Although the police, unlike CSIS, must col lect evidence for criminal charges, C-51 does little to encourage or facili tate terrorism prosecutions, as recommended by the Air India Commis sion. Instead, it will make it easier for the police to engage in temporary disruption in the form of preventive arrests and peace bonds.
Preventive Arrests Under C-51, it will be easier to make preventive arrests, and the maxi mum period of detention will be increased from three to seven days.
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Preventive arrests can also be used as investigative detention, because judges will be required after three and then five days’ detention to de termine whether the investigation is being conducted diligently and expeditiously in order to justify an extension. The standards for preventive arrest will be lowered from the current reasonable grounds that a terrorist activity “will” be carried out, to a requirement that it “may” be carried out. In addition, the current re quirement that the imposition of controls on the person is “necessary” to prevent a terrorist activity will be lowered to the standard that such controls are “likely” to prevent such a terrorist activity. Preventive and investigative detention should always be used with restraint. The original preventive arrest provisions enacted after 9/11 allowed a maximum of three days’ preventive arrest. In any event, they were not used before the powers expired in 2007 or after they were re enacted in 2013. The Canadian approach was comparatively restrained (Forcese 2010). With C-51’s increased maximum period of seven days, Canada is now drifting towards the upper end of the spectrum in com parative duration of detention without charge (Liberty 2010). The government has not responded to Gary Trotter’s criticisms of original post-9/11 preventive arrests for refusing to regulate where a person will be detained under the now extended period (Trotter 2001). We have recommended to the committee studying the bill that Austral ian legislation provides a useful template, either in restricting interro gation during the period of preventive detention or in ensuring that it is conducted in a humane and transparent manner (Forcese and Roach 2015). The U.K. experience suggests that increased use of preventive arrests – which have never been used in Canada – will increase false positives in the form of detention of those who are never charged and may never have an opportunity to clear their name.
Recognizances and Peace Bonds The end result of a preventive arrest is not designed to be a charge but a judicial imposition of a recognizance commonly known as a peace bond. This is an order that allows a person to live in the community, but under judicially imposed conditions. Such conditions can be imposed by a judge, either following a preventive arrest or as a result of an inde pendent judicial proceeding under the Criminal Code. Bill C-51 quite sensibly instructs judges to consider new conditions such as preventing a person from having a passport.
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C-51 will allow peace bonds when there are reasonable fears that a person “may” – as opposed to “will” – commit a terrorism offence. In other words, the state will now have to establish only a reasonable basis to conclude that there is a possibility that a terrorism offence will be committed as opposed to a probability. It is difficult to criticize these provisions because almost six months later, the public still has not been given details about why prosecutors refused to consent to a request that Martin Couture-Rouleau, the ter rorist attacker in St Jean-sur-Richeleau, be subject to a peace bond. If there was clear evidence that the requirements of reasonable fears that a terrorism “will” be committed was the stumbling block, this would constitute evidence in support of the proposed lowering of the stand ard. Unfortunately, the government has not made public information about this security failure. Again, however, the lower standard in C-51 increases the risk of false positives.
The Limited Efficacy of Peace Bonds for Terrorists We join Professor (now Justice) Trotter in questioning the efficacy of what he called “peace bonds for terrorists” (Trotter 2001). In other words, even if a peace bond could have been imposed on CoutureRouleau, it is not clear that it would have prevented him from using his car to kill Warrant Officer Patrice Vincent. Ali Mohamed Dirie was subject to a peace bond that prohibited his possession of a passport, a condition encouraged under C-51. Never theless, Dirie was still able to leave Canada and join ISIL in Syria, where he was killed. Dirie is not the only example of someone who walked away from a peace bond. Mohammed El Shaer has apparently left Can ada for Syria in what would be his second breach of a recognizance not to leave the country (Bell 2015). The very limited efficacy of peace bonds for determined terrorists suggests the continued need for criminal prosecutions. A criminal charge will generally result in long-term pre-trial detention, because the accused must establish that bail is consistent with public safety and public confidence, as well as attendance at trial (Roach 2014b). Questions abound about why Couture-Rouleau was not prosecuted for terrorism offences. Why was there enough evidence to seize his passport and prevent him from flying to Turkey in July 2014, but not enough evidence to prosecute him under the new law for attempting to leave Canada to participate in foreign terrorist offences enacted in 2013?
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Canada was ahead of the foreign terrorist fighter curve in enacting these offences, but it lags behind other democracies in converting secret intelligence into public evidence. One hypothesis is that the continued problems of converting intelligence into evidence may have been a fac tor in the failure to prosecute Couture-Rouleau for attempting to leave Canada to join foreign terrorist fights. In truth we do not know. These are precisely the sort of questions that a parliamentary committee that was given access to secret information (which no committee now has) should ask. Preventive arrests and peace bonds are emergency powers of tem porary disruption. The most lasting and most effective intervention for those prepared to engage in terrorism is a criminal prosecution. Canada has a troubled history of terrorism prosecutions, caused in large part because of conflicts between CSIS’s mandate to produce secret intel ligence and the mandate of the police and prosecutor to produce public evidence, dramatically seen in the ill-fated investigations and prosecu tions of the 1985 Air India bombings. Although there have been some improvements, the Air India Com mission warned in 2010 that many problems remained. The govern ment has chosen to ignore many of the commission’s major recommen dations. The result may well be to make it more difficult to conduct terrorism prosecutions precisely at a time when they are most needed. Successful terrorism prosecutions can denounce and de-glorify terror ism and incapacitate would-be terrorists in a way that temporary dis ruption measures cannot.
Control Orders by the Back Door The eased standards in C-51, combined with increased radicalization, may well lead to increased use of preventive arrests and peace bonds. But will this be a success in fighting terrorism? In some cases, tempo rary disruption may be necessary and might even avert serious vio lence. Preventive arrests may buy police officers a few days’ more time to find evidence. But the endgame is a peace bond that will control a suspected terrorist in the community. If the person is not a terrorist, the controls may turn out to be harsh and disproportionate. The United Kingdom’s experience with control orders, as well as Canada’s experi ence with community controls on security certificate detainees, indi cates that the controls may be controversial and challenged as violating human rights. Conversely, if the person subject to a peace bond turns out to be a terrorist, community controls may be too weak.
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In the end, C-51 offers only one type of strategy – temporary disrup tion – to an emerging and serious security threat that requires a holis tic and evidence-based strategy, ranging from community engagement and prevention, including prison de-radicalization, through to the unique ability of criminal prosecutions to provide sustainable incapaci tation and denunciation of terrorism. Conclusion Bill C-51 is not about putting terrorists in jail: it is about sharing in formation and giving both CSIS and the police new powers to engage in temporary disruptions. To be sure, we are deeply troubled about the adverse effects of C-51 on freedom of expression, liberty, privacy, equality, and other rights, but we also genuinely believe that, in light of the publicly available evidence, including the Air India Commission’s report, C-51 will not make us safer. C-51 should not be oversold, be cause it does nothing at the front end to prevent people from becoming radicalized, and it does nothing at the back end to facilitate terrorism prosecutions. Disruption measures can make us safer for only relatively short pe riods. They may also have the unintended consequences of making terrorism prosecutions more difficult. This deprives us of longer-term incapacitation of those who intend to commit violence and the unique ability of criminal prosecutions to denounce, de-legitimize, and de-glo rify violence for political or religious ends. The government’s reputa tion as tough on crime has blinded many to seeing the real security deficiencies in its rushed legislative response to the October 2014 and Paris attacks. The result is a bill that threatens rights and freedoms without offer ing obvious or robust security gains. This no doubt reflects the rushed and politicized nature of the legislative process. A fearful public may be reassured for a time, but this will likely not be the last of panicked amendments to our security laws that are unsupported by evidence. The result may be a slow-motion self-immolation on the rights side and counterproductive incoherence on the security side. REFERENCES Bell, Stewart. 2015. “Windsor Extremist Who Had No Passport and Was a ‘High Risk Traveller’ Joins Jihadists in Syria.” National Post, March 10.
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CBC News. 2015. “Stephen Harper Makes His Case for New Powers to Com bat Terrorism.” CBC News, January 30,http://www.cbc.ca/news/
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16 What Lessons Have We Learned about Speech in the Aftermath of the Paris Attacks? david schneiderman
I fear that we may have learned the wrong lessons in the aftermath of the attacks in Paris and Ottawa. We seem to be operating under the fantasy that if we clamp down on expressive activities having only a tangential relationship, or none at all, to actual terrorist activity, we will somehow make ourselves safer. There is no necessary relationship between criminally proscribed silence and the cessation of terrorist threats. It is undoubtedly true that communication via social media is made easier and faster than ever and that it facilitates the spread of beneficial, benign, and harmful speech. There also is no question that the sophisti cated use of social media by ISIS and other jihadist groups is offensive and potentially harmful, underscoring that “we are not safe even in our own land,” according to Canada-based and now deceased terrorist Michael Zehaf-Bibeau. The challenge for Western liberal democracies is to devise a response that is effective and proportionate to the threat that this sort of communication poses, without, at the same time, prohibit ing speech that liberal democracies should be loath to restrain. The first widespread response to the Paris attacks among the citizens of Western democratic states was to proclaim “Je suis Charlie.” The slo gan likely had different meanings for different people – from “we are all secularists” to the condemnation of murder in the name of religion. The slogan, I think, was commonly understood to support freedom of expression, even forms of expression of which one might not approve and might even loathe. The second response was to clamp down on speech construed as be ing supportive of terrorism at home or abroad. Within one week, up to one hundred people were under investigation in France for making
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or posting comments that glorify, or amount to an apologie of, terror ism. Those arrested included drunken and disturbed individuals who shouted out their support for jihad in public streets, to a fourteen-year old girl who threatened to “bring out the Kalashnikovs” in response to a request to produce a ticket for public transit. The anti-Semitic comedi an Dieudonne M’bala M’bala posted “Je me sens Charlie Calibouly” on his Facebook page and was given a suspended two-month jail sentence for being a terrorist apologist. The government of Canada has embraced a similar sort of response. To be sure, with the experience of home-grown, if lone-wolf, terrorist attacks like Zehaf-Bibeau’s, coupled with the phenomenon of young Canadians travelling abroad to join ISIS, there is a felt need to do more than we have been doing to respond to these threats. Bill C-51’s prohi bition on the “promotion of terrorism in general” is an example of the sort of wrong lesson drawn from these threats. Similar concerns can be expressed about proposed new powers to seize “terrorist propaganda,” which is defined with reference to the same language of promoting ter rorism in general. The new proposed power for CSIS to disrupt “threats to the security of Canada” as defined in the CSIS Act also gives rise to serious concerns about freedom of expression. Judicial warrants will be required only if, in the view of CSIS, a measure violates Charter rights and freedoms. Given the available space, my focus here will be on the proposed offence of promoting terrorism in general. The omnibus anti-terrorism law, Bill C-51, proposes that the Criminal Code be amended to make it an offence to communicate statements that “knowingly” advocate or promote the commission of “terrorism offences in general,” knowing that those offences “will be committed or being reckless as to whether those offences may be committed.” Those convicted of the offence are liable to a penalty of imprisonment for up to five years (section 83.221). Though narrower than the French offence of apologizing for terror ism, the proposed offence raises disturbing free speech concerns: it is vague and overbroad, contemplates no good faith defences, and is drafted to catch as wide a swath of speech – legitimate or illegitimate – as possible. It evinces no concern with the fact that freedom of expres sion is a constitutionally protected right. In a free and democratic society, we should be loath to ban speech that merely is offensive and poses no real or substantial risk of harm to anyone. Yet the proposed offence is drafted so that there need not be any connection between the words spoken or written and the com
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mission of terrorism offences. There need not be, in other words, any causal connection between words and deeds. It is sufficient that some one merely “promotes” something called “terrorism in general” and is reckless about its consequences. We are, in short, punishing speech that we fear. An array of speech acts having a closer and more intimate connection to the commission of terrorist activities are already caught by the crimi nal law. Criminal conspiracies, attempts or threats to commit, being an accessory after the fact or counselling the commission of terrorist activi ties are caught as a consequence of Canada’s first anti-terrorism law in 2001 (Roach 2001). Mr Namouh, a hard-core Al Qaeda supporter, was convicted of “participating” in a terrorist group and “facilitating terror ist activity” by, among other things, calling for support of the group, distributing its materials, and “singing the praises” of jihadi leader ship. In Mr Namouh’s case, we have the prohibition of speech acts more closely connected to the commission of terrorist activities. If the criminal law already catches speech that facilitates the commission of terrorist acts, what else is intended to be caught by the new “promotion of terrorism in general” offence other than merely offensive speech? What does it mean, then, to promote “terrorism in general’? This is not a term of art nor is it defined anywhere in the proposed bill or in the Criminal Code. The term “terrorism offence” is defined with some precision in the Criminal Code: it encompasses offences already in cluded within the code. There is no definition, by contrast, of terrorism offences “in general.” Why such vague language? We are given some insight into the matter by virtue of two explanations that were offered by the Department of Justice and the minister of public safety, respec tively. First, the federal Justice Department explains that the prohibition is intended to fill a gap in the present law, namely, those circ*mstances where “someone who instructs others to ‘carry out attacks on Canada.’” As “no specific terrorism offence is singled out,” no one can be charged, claims the Department of Justice, hence, the need to construct a new, more general, offence (Canada 2015). This indicates that the rationale behind the law is to move beyond the list of prohibited terrorist ac tivities already listed in the Criminal Code to include something called “terrorism in general.” The new offence clearly is intended to lower the bar for offensive speech acts. The backgrounder otherwise provides no further guidance. A similar sort of rationale was offered by the minister for public safe ty, Steven Blainey. When someone calls for the “killing of all infidels,”
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he explained, “we would not be able to charge them.” As they would be “threatening in broad terms all Canadians,” there would otherwise be no criminal law with which to ensnare them. In his testimony be fore the House of Commons Committee on Public Safety and National Security, Minister Blainey clarified that such calls amounted to “hate propaganda … and the time has come for the government to take our responsibility.” One wonders why propagandizing along these lines, with the aim of participating in or facilitating terrorism offences, would not already be caught by the Criminal Code. Why wouldn’t such a call to arms – “kill all the infidels” – also be caught by the Criminal Code’s prohibition of the promotion of hatred? “Infidels” are an identifiable group distin guished by “religion,” which is one of the grounds mentioned in the hate promotion provisions. At least the existing prohibition on the pro motion of hatred has the benefit of being better drafted – it is cabined in by a number of good faith defences, such as speaking out on matters of public interest. It also requires the threshold consent of the attorney general for a prosecution to proceed. In addition to the vagueness of the offence of promoting terrorism in general, there is the problem of overbreadth and chilling effect. The offence, as mentioned, is not tied specifically to any of the fourteen ter rorist activities that are already labelled criminal. Rather, “terrorism in general” is an opaque standard nowhere defined. It has the potential of catching those who express support for insurgent activities around the globe. Those activities for which support is expressed need not even be violent ones. Activities that cause “substantial property dam age” or “serious disruption of an essential service” fall within the wide definition of “terrorist activity” in the Criminal Code (Schneiderman and Cossman 2001). Expressions of support for the overthrow of the Somoza government in Nicaragua by the Sandinistas would have run afoul of the proposed offence, as would support for the Free Syrian army during the Syrian uprising in Homs. One wonders how well Bruce co*ckburn’s song, “If I Had a Rocket Launcher,” rising to number eighty-eight on the 1984 Billboard charts, would fare in the current en vironment.1 One can reasonably envisage expressions of support for
1 In his recent autobiography, co*ckburn describes a crowd of 600 Chileans erupting in response to the song’s lyric “Some son-of-a-bitch would die,” in Bruce co*ckburn, Rumours of Glory: A Memoir (Toronto: HarperOne, 2014), 262.
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liberation movements in various locales running afoul of the prohibi tion. The more likely response is that folks will choose to remain silent – the phenomenon of the chilling effect. A democratic society should be expected to do otherwise: to allow people the courage to tell their own truths. There also is the reasonable likelihood that the law will not even have its desired effect of silencing the promotion and advocacy of jihadi ter rorism over the Internet. ISIS beheading and recruitment videos do not originate from within Canada. They are stored and available on servers offshore. The proposed law does not contemplate an effective means of policing these offshore servers unless these sites are under the control of persons resident within Canada (Zundel 2002). Nor does the pro posed law contemplate preventing access to these sites in Canada. In other words, if the motivation for the proposed law is to silence jihadi speech, it will not be capable of securing its objective without the coop eration of jurisdictions that host offshore servers. Documents released by American whistle-blower Edward Snowden reveal that Canada’s communication security establishment has the capacity to engage in cyber sabotage in order to disrupt and disable Internet activities at home and abroad (CSEC 2015). These are capa bilities in addition to those proposed under Bill C-51: those that enable judges to order the deletion of terrorist propaganda (including material that promotes “terrorism in general”) from computer systems within the court’s jurisdiction or that authorize CSIS to take measures, with or without judicial warrant, to reduce security threats “within or outside Canada.” Setting aside the considerable oversight and review prob lems that follow upon the Snowden disclosures, if there is no appar ent correlation between securing the law’s objectives and the proposed offence, it hardly justifies enactment of a law having such chilling ef fects. Moreover, on those occasions when the law might presumably have some effect, for messages and images originating within Canada, law enforcement agencies will be denying to themselves one of the few means of identifying and tracking the sentiments of lone-wolf extrem ists (Benson 2014, 327–8). Indeed, the empirical evidence to date reveals that the Internet plays a modest role in the rise of jihadism. The evidence indicates, instead, that it is “peer group leaders” who are likely to secure recruits from among family, friends, and extended social networks (Dalgaard-Nielson 2010, 807). Take, for instance, Hamaad Munshi, Britain’s eighteen-year old terrorist. He had an active online presence but was radicalized in
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person at the Dewsbury central mosque. It was a combination of per sonal recruitment together with communications over the Internet with like-minded jihadists that fuelled Munshi’s extremism (ICSR 2009, 14). Not only will the law be unlikely to secure its desired outcomes, it may undermine efforts at counter-radicalization. Forcese and Roach (2015) argue that the new “terrorism in general offence” likely will de ter participation in de-radicalization strategies currently promoted by security intelligence agencies. The concern is that, for these strategies to be successful, they need to be pursued where young Muslim men are likely to congregate, namely, in mosques. Imams are expected to bring youth together to speak frankly about issues of concern to them. There is less likely to be genuinely frank, or any, talk if there is a concern that participants could run afoul of such an excessively broad law. The new offence appears to be drafted without regard for the fact that freedom of expression is a constitutionally protected activity. In short, there are no qualifications attached to the new promotion of “terror in general” offence. This disregard of constitutionally protected freedoms is all the more striking when the offence is contrasted with the Aus tralian law, a jurisdiction without constitutionally protected rights that appears to have inspired the Government of Canada’s Bill C-51. In Australia, the advocacy of terrorism is tied specifically to advocating the commission of terrorism offences that are defined in the Australian Criminal Code. There is no legally untethered crime of “terrorism in general.” Significantly, defences for the promotion of terrorism offence are included for “acts done in good faith,” including pointing out mis taken beliefs, good faith errors, or seeking to remove conditions that give rise to “feelings of ill-will or hostility between different groups.” Courts are directed to take into account a variety of factors when con sidering these defences, including whether the acts are done with a “genuine” artistic, academic, or scientific purpose, or for the purpose of “disseminating news or current affairs.” The absence of any defences – or any seeming consideration that the new offence may chill legitimate speech that a democratic society should be loath to inhibit – gives rise to more overbreadth problems. We are led to wonder, for instance, whether the Conservative fundraising ef fort on Facebook, which reproduced a screen shot from an Al-Shabaab video calling for violent attacks on shopping malls in various locales around the Western world, including the West Edmonton Mall, might not run afoul of the proposed law. The Conservative Party of Canada is knowingly disseminating a message that advocates the promotion
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of a very specific act of terrorism and are reckless about whether an act of terrorism may come about by promoting this message. Of course, we can expect no charges will be laid against the CPC. If they were, a court might draw an adverse inference that no statutory defences, such as dissemination of information concerning matters of public interest, are available. On the other hand, a court could just as well read in new defences deliberately omitted in order to salvage the law and so work around its overbreadth problems. In that case, if the act is passed in its current form, there is no ques tion that it will be up to the courts to clean up the mess. It is hard to predict precisely what the Supreme Court would do with this new of fence. It has indicated that “threats of violence” associated with exist ing terrorism offences are not constitutionally protected speech (Kha waja 2012, ¶70). It would be surprising, however, if the Court were to exempt speech from section 2(b) protection that is so far removed from threats of actual violence. As well, given the Court’s past response to vague and overbroad laws, it can be expected to read down the broad language and perhaps read out certain categories of speech. Whatever the case, it is a serious neglect of parliamentary duty not to anticipate these constitutional concerns and not to address them in the course of drafting and then enacting this law. All of this raises suspicions about the motivation for the new offence and related ones in Bill C-51. It seems reasonably clear that the primary motivation for the law is not to silence jihadi speech – as mentioned, it will not reach offshore websites and is as likely to have the perverse result of stifling efforts to counter radicalization in Canada. Rather, as the Conservative Party of Canada fundraising effort reveals, this is part of a concerted effort to create winning conditions for the re-election of the Conservative government in 2015. By appealing to the basest fears and instincts of the Canadian electorate, the Conservatives are betting that voters will cast their ballots in favour of the party that takes the heaviest hand to the terrorist threat. Any political party that proposes doing less is labelled as being more concerned with protecting terrorists than Canadians. There is a further suspicion. In the context of other recently enacted Conservative laws – for instance, Bill C-25, enacted in response to the Supreme Court’s Bedford decision (2014), which prohibits the pur chase of sexual services – one can see a pattern emerging, pointing to a subsidiary motivation. The Conservative government seems to be lay ing the groundwork for recurring invocations of the notwithstanding
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clause. If re-elected – that is, if the above-mentioned plan works – one can predict that the fourth Conservative government, whether a minor ity or majority one, will be the first to shield federal law from the Char ter’s application. That laws are enacted notwithstanding the Charter for five-year renewable terms, also conveniently lays the groundwork for a Conservative re-election campaign next time around. REFERENCES Bedford, Canada (Attorney General) v. 2013. 3 Supreme Court Reports 1101. Benson, David. 2014. “Why the Internet Is Not Increasing Terrorism.” Security Studies 23:293–328. Canada, Government of. 2015. “Backgrounder: Criminalizing the Advocacy or Promotion of Terrorism Offences in General,”http://news.gc.ca/web/article-en.do?nid=926049&_ga=
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17 C-51 and the Canadian Security and Intelligence Community: Finding the Balance for Security and Rights Protections wesley wark
Canada faces a universal challenge shared by all democracies confront ing national security threats. That challenge is to provide sufficient protections for both the security of the state and its inhabitants, and for civil liberties and privacy. The challenge is further enlarged through international law obligations and global collective action against bor derless threats. The notion that we must balance security and rights is not a new one, and it has resounded through public debate on na tional security for a very long time. In recent times, Canadian society grappled with these issues in 2001, in the aftermath of the 9/11 attacks and during the passage of Canada’s first anti-terrorism legislation. The security-rights conundrum has continued to command some attention ever since, especially in the context of arrests and trials with regard to terrorist plots and to the privacy impacts of Edward Snowden’s leaks about global electronic surveillance conducted by the United States and its partners. Now the security-rights balance is the focus for re newed and intense scrutiny once again, in the context of a succession of recent terrorist attacks in Canada in October 2014, in Sydney, Aus tralia, in December 2014, and in Paris in January 2015. In the aftermath of the Canadian terror attacks of October 2014, the government began to assemble new anti-terrorism legislation, which was tabled in the House of Commons on January 30 2015 as Bill C-51. The Canadian prime minister, Stephen Harper, has argued, “To fully protect Canadians from terrorism in response to evolving threats, we must take further action … as the terrorists refine and adapt their meth
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ods, our police and national security agencies need additional tools and greater coordination.”1 In considering the construction of a current balance between secu rity and civil liberties protections, we need to keep in mind two things. One is that the Canadian security and intelligence community has been radically transformed since the 9/11 attacks. The other is that Cana dian national security legislation has been put on a strong foundation through previous parliamentary debate, through subsequent legislative enactments after 2001, and through the adversarial process of Charter of Rights challenges and trial proceedings in terrorism cases. It is also important to understand that while we have the tools to be appreciative, even on occasion hyper-vigilant, about our civil liber ties and privacy protections, the same cannot be said for the other side of the equation – figuring out the nature of security threats and what might comprise reasonable and proportional responses to them. There are real-world limits to our understanding of a fast-changing terrorism threat environment, and how we might appropriately respond through the capacities of our intelligence and security agencies. We also lack a framework for democratic expectations of national security agencies. Understanding the role of Canadian security and intelligence agen cies in responding to threats is made challenging by two phenomena – the entrenched problem of high levels of official secrecy, and the unac knowledged scale of the transformation of the intelligence sector in the years after 2001. The Canadian security and intelligence system is now much more fully resourced, more capable, more globally engaged, and more important to decision-making than was the case prior to the 9/11 attacks. With greater power have come greater challenges to its man agement, greater challenges in potential abuses of power, and greater public expectations of transparency. Our ability to assess what the prime minister described as the need for additional tools and greater coordination for a “mature” security and intelligence system would have benefited from three things. One would have been an update to the government’s counterterrorism strategy, which was last released in August 2014, prior to the recent wave of global terror attacks. A second would have been the availabil
1 “PM Announces Anti-Terrorism Measures to Protect Canadians,” text of speech delivered in Richmond Hill, Ontario, January 30, 2015,http://pm.gc.ca/eng/news/2015/01/30/pm-announces-
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ity of any inquiry report into the terror attacks in Ottawa and Quebec in October 2014, so as to be able to better assess any shortcomings in operational, intelligence, or lawful powers that affected these first suc cessful terrorist attacks on Canadian soil since 9/11. The third thing would have been the publication of more detailed explanations for the development and rationale for the various elements of Bill C-51. We are left instead with generalities. The generalities problem is not restricted to the rationale for the bill it self. It also extends to an understanding of the new threat environment. There can be no question that the nature of terrorism threats is evolving rapidly, and that we are now in a post–Al Qaeda age. The debate on C-51 tends to pay lip service to this reality.2 We face serious threats to inter national security from jihadist terrorist groups, such as ISIL and Boko Haram, engaged in sustained insurgency campaigns abroad to seize territory and acquire the resources and capabilities of a state. We face threats from jihadist terrorists inspired and mobilized by cyber com munications to engage in attacks at home. There can be no more chill ing expression of this threat than the video exhortation delivered by the ISIL media lieutenant, Abu Muhammad al-Adnani, in September 2014, which urged jihadist supporters of the so-called Islamic State: “Do not let this battle pass you by wherever you may be. You must strike the soldiers, patrons, and troops … Strike their police, security, and intelli gence members, as well as their treacherous agents. Destroy their beds. Embitter their lives for them and busy them with themselves. If you can kill a disbelieving American or European, especially the spiteful and filthy French, or an Australian, or a Canadian, or any other disbeliever from the disbelievers waging war, including the citizens of the counties entered into a coalition against the Islamic State, then rely upon Allah and kill him in any manner or way, however it may be.”3 The overseas threat posed by jihadist groups attempting to seize and build states and the domestic threat posed by individual terrorists are not completely distinguishable; they threaten to fuse. We face threats
2 For example, the “Open Letter to Members of Parliament on Bill C-51,” organized by the Nathanson Centre at York University, simply states that the signatories are “not dismissive of the real threats to Canadians’ security that government and Parliament have a duty to protect.” 3 Helen Davidson, “ISIS Instructs Followers to Kill Australians and Other ‘Disbeliev ers,’” Guardian, September 23, 2014, with excerpt from the al-Adnani video message.
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posed by the literal and figurative bridge between overseas jihadist in surgencies and home-grown attacks, in the form of the foreign fighter problem. The three broad strands of the current terrorist threat suggest the nature of the necessary responses. One is to find ways to prevent ji hadist terror groups from seizing territory and becoming state-like. A second is to find ways to diminish the capacity for cyber recruitment and incitement of domestic jihadist terrorism. A third is to dismantle the bridge that connects domestic and overseas jihadist campaigns by stopping the flow of foreign fighters. The Canadian legislative response to the terrorist threat clearly at tempts to speak to the second and third imperatives. It contains meas ures to deal with cyber recruitment and incitement, and measures to deal with the foreign fighter phenomenon, layered on top of existing legislative powers. Bill C-51 does not address the international chal lenge of jihadist insurgency campaigns abroad directly. It is domesti cally focused, and operationally focused on tactical as opposed to stra tegic capabilities. To measure Bill C-51’s supposed security enhancements against our understanding of the current terrorist threat is a starting point for as sessing how a security-rights balance might be achieved. From this perspective, we can position the new powers proposed in Canadian legislation into two categories: 1. Enhanced powers to deal with jihadist terrorist cyber recruitment and incitement 2. Enhanced powers to deal with the foreign fighter problem Enhanced powers to deal with cyber recruitment and incitement in clude Criminal Code amendments to allow for seizure of terrorist prop aganda and dismantlement of web-based sites, a new criminal sanction against promoting and advocating terrorism, an extended reach for peace bonds and preventive arrest, and possibly proposed new pow ers for the Canadian Security Intelligence Service (CSIS) to engage in “disruption.” Enhanced powers to deal with the foreign fighter problem would in clude all of the above measures, as well as changes to Canada’s “no-fly” list, officially known as the Passenger Protect Program. In the background, not designed specifically to deal with either the cyber recruitment or foreign fighter problems, but presumably meant
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to facilitate both elements of counterterrorism, are the provisions in the bill for a new information-sharing regime. Among these measures, a reasonable case can be made that security enhancement would follow from improvements to the no-fly list, in cluding a new definition of the construction of the list itself to encom pass those who might engage in threats to transportation security and those who might attempt to use air travel to engage in terrorism abroad. The no-fly list would thus supplement existing powers to arrest and charge persons who attempt to travel abroad to commit terrorism, and executive powers to refuse or cancel passports. Equally a case could be made for security enhancements that might follow from the extension of the provisions for peace bonds and preventive arrest. Seizure of ter rorist propaganda and the dismantling under court order of jihadist websites based in Canada are likely of limited efficacy and should be focused on the greater dangers posed by website propaganda. An enhanced information-sharing regime is also a reasonable meth od for security change but is imperilled in the current legislation by a bad construct that overburdens the system and under-protects privacy and rights. This part of the legislation could be saved by a tightening of the baseline definition of threats, greater transparency reporting, man dated engagement by the privacy commissioner, and a strengthening of provisions for use of caveats and respect for the principle known as “originator control” of information. Measures that do not clearly enhance security capabilities include new sanctions against promoting and advocating terrorism, and CSIS disruption powers. With regard to the former, the operational burdens of sweeping up speech offences, compared to the likely security ben efit, strike me as too high. With regard to CSIS disruption powers, dis ruption or threat diminishment powers are a necessity and are already practised by Canadian security and intelligence agencies, but the do mestic lead should be left to the RCMP. It is important that CSIS stick to its mandate – challenging enough – as an agency charged with col lecting and assessing information about threats to the security of Cana da, and advising government. What CSIS requires domestically, as the Security Intelligence Review Committee argued in its 2009–10 annual report, is proper ministerial accountability and strong internal policies and controls around threat diminishment.4 4 Security Intelligence Review Committee, Annual Report 2009–2010, “SIRC Review: CSIS’s Use of Disruption to Counter National Security Threat.”
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With regard to overseas operations, there may be a stronger case for a lead CSIS role, and clarification of its legal mandate, not least as its op erational footprint is expanding abroad and as other Canadian agencies such as the RCMP would have only a small overseas reach. But even in overseas threat diminishment operations, perhaps targeted at Canadi ans engaged in the foreign fighter pipeline, or involved in facilitation, or engaged in jihadist propaganda, the CSIS mandate needs to be more narrowly defined, and such operations should not be allowed to distort CSIS’s intelligence-focused mandate. Measures that pass muster as potentially enhancing security still re quire scrutiny of their impact on rights protections, including privacy rights. In my view, none of the measures that promise security enhance ments in Bill C-51 need involve negative impacts on rights and privacy protections. They have the power to do so only if improperly framed. Here there is clearly a role for a parliamentary process that seeks to im prove national security legislation through amendments, with the goal of ensuring that the best form of legislation emerges, one that might secure a social consensus. But in the context of an election year with political passions running high, such a high-minded parliamentary role may be out of reach. If an un-amended Bill C-51 ultimately passes, the results will not be disastrous for Canadian democracy. The reasons are to be found in the overall maturity of our intelligence and security system, in the maturity of our national security legislation, on which this bill will be layered, and in the fortunes of electoral politics. National security issues, most importantly the security-rights balance, have now been raised to a po sition of political prominence, and so long as terrorism threats remain persistent, may stay there for Election 2015 and beyond. Bill C-51, touted as omnibus anti-terrorism legislation and as a major response to a changing threat environment, is also, strangely, narrowly focused and tactical. Despite elements that might enhance security, and despite all its more negative features, it may be less than meets the eye. It is not genuinely adaptive, as betrayed by its many missing elements, and it lacks any underlying strategic vision of how a democracy should use its security and intelligence system to meet threats, from terrorism or other sources. The missing elements in the Canadian legislative response to the new terrorism threat are many and include the lack of measures to strengthen the accountability regime for security and intelligence to match greatly expanded powers; the obdurate refusal to increase federal transparen
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cy on national security matters in the face of heightened public expec tations; the secret “elephant” in the room that is the Communications Security Establishment, with its impressive technological powers to in tercept communications, its established counterterrorism mission, and its creaky enabling legislation, dating back to 2001 and untouched by Bill C-51; the lack of attention to improving Canadian threat-assessment capabilities; and the divorcing of new powers from new resources. The security-rights balance is engaged by all of these elements, especially in strengthened accountability and increased transparency. Of all of these missing elements in Bill C-51, only accountability questions have really engaged our attention, on the legitimate assumption that strengthened accountability might help rescue the security-rights balance. As the col lective open letter on Bill C-51 by four former prime ministers put it, “A strong and robust accountability regime mitigates the risk of abuse, stops abuse when it is detected, and provides a mechanism for remedy ing abuses that have taken place.”5 As for the other missing elements, they have remained invisible in the public debate. But accountability cannot function without reasonable transparency; the significant role played by CSE has to be acknowledged and better legislated; collection of tactical information and intelligence is of little or no value without strong capabilities for strategic threat assessment; and intelligence, de spite historic Canadian tendencies in this direction going back to the dawn of the Cold War, cannot be done on the cheap if it is to be done well. As we deal with a more complex threat environment blending stateactor and non-state-actor threats, and threats that have no nexus with either but encompass such things as climate change impacts and pan demics, we will increasingly require a strategic “social contract” on the democratic conduct of security and intelligence power. Such a social contract should be an expression of the security-rights balance that transcends individual pieces of legislation. It may be too much to ex pect signs of such a social contract in a politically contested bill such as C-51. But what might such a contract look like? In essence it would borrow from the long-established doctrine of “just war” to furbish a doctrine of ethical “just intelligence.” Relating an ethical doctrine of just intelligence to legislation is easy. As Sir David Omand has said,
5 Jean Chrétien, Joe Clark, Paul Martin, John Turner, and other signatories, “A Close Eye on Security Makes Canadians Safer,” to the Globe and Mail, February 19, 2015.
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“Primary legislation should set down limits on what the intelligence machine can be used for, to remove fears that the power of modern intelligence methods will become ubiquitous and thus seriously erode individual liberty.”6 The key components of a “just intelligence” doc trine include just cause (determining the right priorities for the deploy ment of security and intelligence powers); right authority (having the proper command and control systems in place and ensuring lawful ness); proportionality of methods (using security and intelligence pow ers in ways appropriate to the seriousness of the threat and the harm to human security); and reasonable prospect of success (including a cal culation of the benefits and costs of deploying security and intelligence powers). A more controversial transfer from just war doctrine might be the requirement of “last resort” use. While this makes eminent sense for a classic doctrine of war prevention and limitation, it may make less or little sense for an age of complex threats where intelligence can be both a knowledge and preventive tool. The more we are exposed to reactive national security legislation, the more we are exposed to a fast-changing world of threats, the more important it will become to have an anchoring doctrine for the use of intelligence powers in a democracy.
6 David Omand, Securing the State (London: C. Hurst, 2010), 286.
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18 Freedom and Security: The Gordian Knot for Democracies hugh segal
Perspective While it may well appear that the end of the Cold War and the concur rent bipolar world has bred a series of new asymmetric, non-state-actor threats to global security, embracing this appearance too fully may well deny some pre-1990 hard facts, as would, by the way, any association of the asymmetric non-state-actor menace exclusively with extreme Is lamic violent jihads. One need only list entities like Spain, Corsica, Northern and Southern Ireland, Indonesia, Malaysia, the pre-1948 British Palestinian protector ate, various South and Central America insurgencies, or India before 1948 to assemble a generous list of places where civilian security was seriously threatened by armed non-state actors intent on using violence to advance political or denominational goals. This meets the present determination of what constitutes “terrorism” under the terms of the Anti-Terrorism law legislated under the Chrétien government after the 9/11 attacks. The notion that the terrorist threat or phenomenon is new is without foundation. When, over forty-five years ago, the Trudeau government initiated the War Measures Act, sending troops into the streets of Quebec cities and Ottawa, suspending the de facto Bill of Rights, and arresting, with out charge, hundreds of Quebecers in the middle of the night, we saw a massive overreaction and dilution of freedom. This far oversteps the nature of even a worst-case interpretation of what present, proposed anti-terrorist legislation might cause to transpire. It is in that context, and with appreciation of the ultra vires provi sions of the post-9/11 Chrétien laws, which were amended by a Sen ate committee on which I sat from 2005 to 2012, that the debate over
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present measures in Parliament, the Senate, and, in a very short time, the courts, should be engaged. To ignore the recent post-war history is to weaken any intellectually coherent context for the present debate. Critical Balancing The tendency of post–Second World War Canadian governments to reframe the search for the right balance between security and freedom is consistent without regard to which of the two major political parties are in government. The general tendency of the security agencies, the bureaucracy, or the Privy Council Office and Prime Minister’s Office to limit any parliamentary role in the pursuit for the right “balance du jour” is also quite consistent. This tendency, both to search for new bal ances and constrain who is actually part of the search, comes, in my view, from some devastatingly strong historic tendencies at both the agency and bureaucratic level. The “Need to Know Exclusionary Cultures” This is endemic to many intelligence, surveillance, military, or police operating units and reflects the “knowledge is power” bias of most hi erarchies, equating the internal fidelity of a closed circle with the ulti mate efficacy of the agency or an operation engaged or underway. Points of access to the “need to know” circle were usually defined by who reported to whom, or who had vital technical data essential to the operation. Also, who does or does not provide the money and authori zation and who takes the rap for failure are both serious parts of this exclusionary, if on occasion necessary, operational bias. Who Can Be Trusted Within any military, intelligence, police, or criminal intelligence force, however high and compelling the prevailing ethical standards, distrust of elected politicians and aides and advisors close to them is endemic. Concluding that “the less ‘they’ know about operations, risks, strate gies, tactics, threats, or detailed deployments, the better it would be” is the normative stance. This is not a deep-seated contempt in any sub versive or disloyal sense. It is usually a sadly self-reverential view that some political actor will leak, or will be unable to manage or cope with the truth, or that some of the political clan will want to meddle without
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the skill or expertise to do so constructively. This last part about exper tise becomes a self-fulfilling defining exclusion that continues to im peril any constructive accountability for our national security services. The Executive vs Legislative Branch In the United States the clear division between the Executive Branch and the legislative-congressional (and funding branch) makes some legislative oversight essential to the funding of security, military, or clandestine activities. In the United Kingdom or Canada, the blending of ministers in Parliament makes that requirement, at least for fund ing purposes, not that clear. A majority parliamentary government from which ministers responsible for security matters would come, es sentially controls the funding rates required through their majority in Parliament and on committees. Hence, funding and oversight are not necessarily joined up. As well, as all funding is approved (albeit in a pro forma way when there is a majority government) by Parliament, its two Houses and committees and ministers are subject to questioning in the House, and some modest, narrow, and resource-limited extra-parliamentary over sight does exist, a plausible (if shallow) case that oversight is present can be, and has been, made. The problem here is that with this stance, Canada is at odds with the balanced oversight apparatus of its major NATO allies, including the Westminster Parliament. This also suggests that the regular in-camera statutory and legislative oversight faced by MI6, CIA, DSA, the NSA, MI5, and others in the anglophone world does not exist for Canadian national security operations. It means that elected Canadian legislators, unless ministers, are essentially out of the loop, lacking and having no way to acquire the expertise and facility necessary to conduct compe tent, diligent, and discrete legislative oversight on behalf of Canadian taxpayers. Practices in Other Countries1 To put intelligence practices in Canada, my focus in the following sec
1 Gabriel Reznick, “Looking Ahead: Creating a Legislative Oversight Committee on National Security,” research paper for the Special Committee on Anti-Terrorism, 2011.
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tion, into context, it is helpful to review practices in other Western countries. In the United Kingdom, the Intelligence and Security Committee (ISC) was, at its inception a quarter century ago, made of nine members drawn from both the House of Commons and the House of Lords. This committee is not like a regular parliamentary select committee because it reports directly to the prime minister and then he or she reports to Parliament, as opposed to reporting directly to Parliament. The ISC meets once a week and is tasked to “examine the expenditure, admin istration and policy of the main three intelligence agencies.” Under the Official Secrets Act 1989, ISC is given access to classified materials. Germany’s intelligence agencies have a long history dating back to the 1950s when the first intelligence agency was created in West Germany. The Bundesnachrichtendienst (1956), the Militärischer Abschirmdienst (1956), and the Bundesamt für Verfassungsschutz (1950) make up the German intelligence community. All of these intelligence agencies are overseen by three intelligence oversight committees. The Confidential Committee currently comprises ten members of the Budget Committee, who are legally bound to secrecy. The main purpose of this committee is to establish the budget for the intelligence agencies. Italy has two main intelligence agencies: Agenzia Informazioni e Si curezza Interna (AISI) and Agenzia Informazioni e Sicurezza Esterna (AISE), which have been under the direct control of the prime minister since 2007. AISI gathers intelligence within the border, and AISE gath ers intelligence outside the border. In order to oversee these agencies, the Parliamentary Committee for the Security of the Republic (COPA SIR) was created. French parliament passed a law in 2007 establishing a parliamentary oversight committee for security/intelligence, the Délégation parle mentaire au renseignement (DPR), which oversees the General Direc torate for External Security, as well as a few other intelligence agencies. The purpose of the DRP is to allow members of the national assem bly and senators to follow the general activity of intelligence agencies. The committee is made up of eight members of the senate and national assembly. In the United States, intelligence agencies, especially the CIA, play a very significant role in government. In order to oversee these powerful intelligence agencies, the U.S. government created the House Perma nent Select Committee on Intelligence as well as the Senate Select Com mittee on Intelligence. There are three subcommittees of the HPSCOI:
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the Subcommittee on Oversight, the Subcommittee on Technical and Tactical Intelligence, and the Subcommittee on Terrorism. Australia’s six main intelligence agencies are the Australian Security Intelligence Organization, the Australian Secret Intelligence Service, the Defence Intelligence Organization, the Defence Signals Directorate, the Defence Imagery and Geospatial Organization, and the Office of National Assessments. In order to oversee these organizations, the Par liamentary Joint Committee on Intelligence and Security (PJCIS) was created in 2002. According to section 29 of the Intelligence Services Act, 2001, there are two main activities that the PJCIS is tasked with: conducting a Review of the Administration and Expenditure of the Australian Intelligence Community and preparing an Annual Report of Committee Activities for the Parliament. PJCIS may review any mat ter that relates to the Australian intelligence community if they are re quested to do so by the Parliament or the Executive. The Expertise/Discretion Construct: Contrasting the U.K. and Canadian Models The U.K. Intelligence and Security Committee, the model upon which the Special Senate Committee on Anti-Terrorism framed its parliamen tary oversight recommendations, is a joint committee of the Commons and the Lords. Its members were not only elected MPs with prior ex pertise as home secretary, defence secretary, foreign secretary, and simi lar posts in prior governments, but also appointed peers who had been Cabinet Office permanent secretaries, chief of the defence staff, etc. It has operated for over twenty years without a leak. It is made up only of parliamentarians, has a separate set of offices away from Westminster, and a separate staff. Over two decades, the prior expertise of many of its members, as well as the acquired expertise from meeting with senior security agency heads and staff have increased the committee’s activ ity and impact. There is no similar capacity in Canada at the legislative level. The Security and Intelligence Review Committee (SIRC) is appointed (with consultation) by the government. Its membership, while usually worthy, brings no particular security oversight expertise. It is parttime, has a small staff, and is retroactively complaint driven. The U.K. committee is a weekly meeting of experienced legislators with exper tise looking prospectively and retroactively at security agency plans, budgets, strategies, and operations. The notion that, even for purposes
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of accountability, parliamentarians with expertise sufficient to provide competent oversight is, of course, quite self-fulfilling in an analysis and prophecy. Part of the awkward and, on occasion, dysfunctional rela tionship between security services (RCMP, CSIS, CSEC, military intel ligence, etc.) and Parliament is advanced by this expertise cul-de-sac. For a complex, modern parliamentary democracy to be caught in this sort of roundabout is, to be kind, highly problematic. For all of the above reasons, the Special Senate Committee on AntiTerrorism made the following recommendation in its 2011 report en titled Security, Freedom, and the Complex Terrorist Threat: Positive Steps Ahead. (16) That, consistent with the practices in the United Kingdom, Australia, France, the Netherlands, and the United States, the federal government constitute, through legislation, a committee composed of members from both chambers of Parliament, to execute Parliamentary oversight over the expenditures, administration and policy of federal departments and agencies in relation to national security, in order to ensure that they are effectively serving national security interests, are respecting the Canadian Charter of Rights and Freedoms, and are fiscally responsible and properly organized and managed. The proposed committee of Parliamentarians shall have the same right to access information as the Security Intelligence Review Commit tee. Members of the Committee shall be appointed by the Governor in Council, and will hold office during periods of prorogation. Meetings of the Committee shall be held in camera whenever the Chair, a majority of members present or the Minister considers it necessary for the Committee to do so. Members of the Committee shall be required to swear an oath of secrecy similar to that found in the schedule to the Canadian Security Intelligence Service Act or to the Oath of a Privy Councillor, or both, and be permanently and statutorily bound to secrecy for purposes of appli cation of the Security of Information Act. The Committee shall report to the Prime Minister, who would make that report public within 60 days of receipt. When matters in the report need to be removed for national security reasons, the report, when made public, must indicate that this has transpired.2
2 Chap. 3, 5.
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The Courts and the Charter When, in 2011, the Special Senate Committee on Anti-Terrorism (in the same report referenced above) recommended that CSIS be given the capacity by statute to “lawfully disrupt” terrorists and terrorist activity (including conspiracy to commit terrorist acts), it did so on the basis of the recommendation of the Major Inquiry into the Air India Terrorist bombing. Mr Justice Major found unacceptable delays in the transmis sions of sensitive surveillance information between CSIS and the police and less than rapid execution of appropriate police action once the in formation was received. Hundreds died as a result. The use of the adjective “lawful” was both very explicit and purpose ful. It was anticipated that the Charter of Rights and Freedoms would apply with all the interdictions and implications appropriately associ ated therewith. There are many ways to “lawfully disrupt” a potential conspiracy – as by chatting with parents or teachers – in a fashion that contributed to the famous “Toronto Eighteen” being only eighteen. After 9/11, when the Chrétien government brought in its anti-ter rorism laws, senior officials received representations regarding the po tential and value of using the “notwithstanding clause” in our present constitution for the new anti-terror law. The notion advanced was “this would signal to the country that this law is extraordinary and not per manent, it would automatically expire etc.” The official response was that there was an expiry/sunset clause built into the act and it was “Charter proof.” As the Special Senate Committee on Anti-Terrorism spent much of its subsequent time rewriting the anti-terror laws with significant amend ments, accommodating a series of court decisions based on the Charter that had struck down key provisions and imposed more protections for privacy and rights, it was clear that the post-9/11 law was far from “Charter proof.” The same may be said for the present law before Par liament. Whatever its final form, legal challenges will inevitably follow, and some will in all likelihood be successful. Conclusion The critical bias about “need to know” and “who can be trusted” runs deep and hard within the upper and middle echelons of Canada’s secu rity services. It is encouraged and fertilized by the usual predisposition in the PCO and PMO du jour. A new government, regardless of pre
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election commitments, would most likely fall prey to the same preju dices. And until and unless we have a legislative oversight role, man dated by law and made up of parliamentarians who will, over time, acquire expertise and demonstrate due discretion, the existing biases will carry the day. While Charter of Rights judicial victories, and the general respect for the law by the able men and women in our security services, will moderate undue excess, there will be no structural impact either in pro phylactic influence or protection from impunity as part of our national security parliamentary framework without statutory parliamentary oversight.
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19 Anti-Terrorism’s Privacy Sleight-ofHand: Bill C-51 and the Erosion of Privacy lisa m. austin
Introduction1 One of the components of Bill C-51, the federal government’s proposed anti-terrorism legislation, is the Security of Canada Information Shar ing Act (SCISA). SCISA would facilitate information sharing between government institutions. In its backgrounder on SCISA, the Canadian government claims two things: that this legislation responds to the Air India Inquiry, and the fact that the Privacy Act continues to apply to government information sharing ensures the appropriate balance be tween privacy and national security. Neither claim withstands critical scrutiny. SCISA facilitates broad information sharing that goes far be yond the kind of coordinated investigations the Air India Inquiry called for and does so while ignoring important recommendations of both the Air India Inquiry and the Arar Commission. There is no privacy protec tion on offer for this broad sharing. The Privacy Act has always offered weak privacy protection in the context of national security and law en forcement, and SCISA further and rather dramatically undermines that protection. It does so in disregard of the constitutional framework for privacy protection. Although the lack of effective oversight is, for many, one of the chief defects of C-51 as a whole, the lack of substantive privacy protection is a more serious defect with respect to SCISA. Without such substantive
1 I would like to thank Edward Iacobucci, Christopher Prince, Denise Reaume, Arthur Ripstein, Kent Roach, David Schneiderman, and Martha Shaffer for their very helpful comments on an earlier draft. All errors remain mine.
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protection, better oversight risks achieving little but the official confir mation of the erosion of privacy. SCISA cannot be saved through tinker ing, either with its provisions or by addressing oversight more gener ally. The government has not offered a public justification for SCISA that withstands public scrutiny, and its statements regarding privacy mislead. SCISA should be scrapped, and the government should in stead actually implement the recommendations of the Air India Inquiry as well as those of the Arar Commission. Collecting Haystacks SCISA authorizes any government institution to share information with one of seventeen recipient institutions where that information is “relevant” to the recipient’s responsibilities “in respect of activities that undermine the security of Canada” (section 5). Three aspects of this are crucial: first, this is not about information sharing between institutions with national security responsibilities; second, the understanding of national security here is extremely broad; and third, allowing sharing when information is “relevant” sets a very low standard and enables bulk data collection. Put together, SCISA authorizes a “collect it all” philosophy with respect to all personal information held by the govern ment, enabling government to build “haystacks” of personal informa tion, to then analyse and share access to these haystacks with foreign partners (Nakashima and Warrick 2013). The information-sharing recommendations in the Air India Inquiry Report were quite specific when compared with what is contemplated by SCISA. They did not involve all seventeen of the recipient national security institutions listed in SCISA, and they did not involve sharing by all government institutions with these recipient institutions. Justice Major recommended greater and even mandatory information sharing between CSIS and the RCMP in particular. In fact, an important recom mendation was to require CSIS to share investigatory information with the RCMP in order to avoid turf wars between the two agencies. There is no such requirement in SCISA, or anywhere else in C-51. Justice Ma jor also discussed information sharing between Transport Canada and the RCMP in relation to transport security clearances. In other words, all the information sharing recommendations from the Air India In quiry concern specific and targeted sharing between a small subset of SCISA’s recipient institutions, not the broad sharing contemplated by SCISA.
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The breadth of the national security definition in SCISA is striking and goes well beyond the focus on the prosecution of terrorism offences of the Air India Inquiry. Under SCISA, an “activity that undermines the security of Canada” encompasses activities that undermine “the sov ereignty, security or territorial integrity of Canada or the lives or the security of the people of Canada” (section 2). This is also much broader than the definition of “threats to the security of Canada” that constrains the scope of CSIS’s authority to collect intelligence under the CSIS Act. SCISA’s broad understanding of national security is underscored by the fact that there are seventeen recipient institutions – all thought to have some responsibility in relation to national security. There is an exception for “lawful protest” activities, although the qualifier of “law ful,” in combination with the broad understanding of national security, has led many to query whether a broad range of protest activity may actually be caught rather than excluded. The threshold for all of this information sharing is “relevance” to the recipient institution’s “jurisdiction or responsibilities” in relation to na tional security. It is important to note that this provides a much broader scope than permission to share information that an institution sus pects or believes pertains to activities that undermine national security. SCISA attenuates any direct link between the information and national security by asking merely whether the information is connected to the recipient institution’s responsibilities. Moreover, it links this informa tion to those responsibilities on the very low threshold of “relevance.” To put the “relevance” threshold in perspective, it is important to note that the controversial U.S. phone metadata program, which aims to collect the phone metadata of all domestic calls in the United States, was authorized under section 215 of the Patriot Act, which allows the government to collect information “relevant” to “an authorized inves tigation.” This is not discrete and targeted information collection but bulk collection in order to create databases that can be queried in vari ous ways. This is what the federal privacy commissioner pointed to recently as the Big Data potential of SCISA (OPC 2015). It goes well beyond the concern that a person or group will be wrongly subjected to increased surveillance. Big Data thrives on bulk collection, and bulk collection is non-targeted, suspicion-less collection. For example, if you want to analyse who is at risk of joining ISIL, it is relevant to examine data on all people who have not joined ISIL. This information sharing is further augmented by section 6 of SCISA, which indicates that SCISA is not meant to prevent the recipient
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institution from “further disclosing it to any person, for any purpose” (emphasis added). This would include foreign partners. While section 6 adds the qualification that sharing be “in accordance with the law,” the Privacy Act permits government institutions to share information with foreign governments and their institutions under an “agreement or arrangement” with that government and does not even require that such arrangements to be in writing (section 8(2)(f)). If we put all this together, a potentially vast amount of information held by all government institutions is quite easily available to the sev enteen national security recipient institutions, and these are quite free to share this with foreign partners. None of this sharing requires that a government institution actually suspect any particular terrorist activity, even broadly construed. In other words, SCISA is about building and linking haystacks, both domestically and internationally. Privacy Exceptions If the Snowden revelations have shown anything, it is that the shift away from targeted surveillance towards bulk data collection remains highly controversial from the perspective of privacy and human rights. If SCISA enables bulk collection from all government institutions, then the government must show that this is necessary, likely to be effective, has a review mechanism to assess its effectiveness, and ensures that privacy or other civil liberties and human rights concerns are propor tionately balanced. Unfortunately, SCISA does none of these things. According to the government’s backgrounder, because the Privacy Act continues to apply, privacy and national security will be appropri ately balanced. What the government fails to acknowledge is that the Privacy Act contains both privacy protections and exceptions to those privacy protections. In the context of national security, or even more routine law enforcement, the exceptions dominate. What SCISA does is extend the scope of these exceptions. In other words, the government is not extending privacy protection so much as expanding exceptions to privacy protection. There is no “balance” here between privacy and na tional security – there is simply the erosion of privacy that is given the illusion of protection because most people think that if the Privacy Act applies then privacy is being protected. How does this work? The Privacy Act has two main purposes. First, it protects privacy through a set of rules regarding the state’s collection, use, and disclo
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sure of personal information. For example, the act requires that the col lection of personal information “relates directly” to a program or activ ity of the government institution (section 4), that where possible the information be collected directly from individuals (section 5(1)), that individuals be told the purpose of the collection (section 5(2)), that the information be accurate (section 6(2)), that the use of the information is for the purpose for which it was obtained (section 7(a)), and that the information not be disclosed without consent unless authorized by the act (section 8(1)). The second purpose of the Privacy Act is to provide individuals with a right of access to their personal information held by the state. The act provides individuals with a right of access to personal information held by a government institution (section 12(1)), along with the entitlement to request corrections to inaccurate information (section 12(2)(a)). This right of access is central to the scheme of the act. Both the individual complainant and the privacy commissioner can apply to the Federal Court for judicial review of a government decision to refuse access, whereas there is no such review for violations of the collection, use, and disclosure rules (sections 41 and 42). In the national security context, few of these protective provisions apply. Indeed, the Office of the Privacy Commissioner of Canada has stated that “the antiquated nature of the Privacy Act renders it of little significance to the public debate on security and privacy in Canada” (OPC 2008, 7). For example, information does not need to be collected directly from an individual, with notice of the purposes of collection, where this would result in inaccurate information (section 5(3)(a)) or “defeat the purpose or prejudice the use for which information is col lected” (section 5(3)(b)). Most national security activities would fit within this exception. Exceptions to the right of access include informa tion obtained in confidence from another government (section 19), in formation where disclosure would be injurious to international affairs and defence (section 21), law enforcement (section 22), and information where disclosure could threaten the safety of others (section 25). Again, most national security activities would fit within these exceptions. Use or disclosure of personal information without the consent of the individual and for a purpose other than the purpose for its original collection, is governed by the exceptions listed in section 8 of the Pri vacy Act. These include disclosure for a “consistent use” (section 8(2) (a)), for law enforcement purposes (section 8(2)(e)), and where the pub lic interest in disclosure outweighs privacy interests (section 8(2)(m)).
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These were all mentioned by Justice O’Connor in the Arar Commission as appropriate exceptions whose specific terms did not impose undue impediments to information sharing but ensured that privacy received at least some minimal protection. For example, the law enforcement exception requires a written request from an investigative body that “specifies the purpose and describes the information to be disclosed.” If the issue is about targeted information sharing in the context of co ordinating shared and overlapping duties, then the “consistent use” exception already suffices. Instead of relying on these existing exceptions, SCISA effectively nullifies any use and disclosure protections offered by the Privacy Act. Section 8(2)(b) of the Privacy Act permits disclosure “for any purpose in accordance with any Act of Parliament or any regulation made there under that authorizes its disclosure.” Section 7(b) allows for any of the section 8(2) exceptions to also apply to the use of personal information without consent. In other words, SCISA is a grant of authority that ef fectively allows for the use and disclosure of broadly defined national security information without any further protections. Because it does so through engaging section 8(2)(b), the government can also mislead ingly claim in its backgrounder that SCISA “does not override existing legal restrictions on information sharing.” One aspect of the protective portion of the Privacy Act that remains applicable is the obligation of accuracy (section 6(2)). However, this scope of protection is limited. The obligation is engaged in the con text of the use of information “for an administrative purpose.” The act defines “administrative purpose” as “the use of that information in a decision making process that directly affects that individual” (section 3). This would not catch cases of information disclosure to other coun tries – the very context that the Arar Commission was concerned about. Sharing information with a foreign partner is a disclosure rather than a use, and when the disclosure is in the context of an ongoing investiga tion or for other intelligence purposes, it is not necessarily a “decision making process.” Even in the contexts where this accuracy obligation might have some purchase, such as the granting or denying of security clearances, it is far from clear that the Office of the Privacy Commis sioner is the most appropriate body to review for compliance – under the CSIS Act, it is SIRC that hears complaints regarding the denial of security clearances. The Arar Commission pointed to the importance of caveats when sharing information with foreign states in order to prohibit the dissemi nation of information to third parties without originator consent. While
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caveats are mentioned in the guiding principles outlined in section 4 of SCISA, their use is not obligatory, and it is unclear what legal effect the guiding principles are supposed to have or how they relate to what Roach and Forcese have aptly named the “anti-caveat” language of sec tion 6 of SCISA, which permits further sharing with any person for any purpose (Roach and Forcese 2015). As already mentioned, SCISA also does not adequately address the issue of accuracy. Instead, SCISA hides behind the Air India Inquiry, while failing to implement its actual rec ommendations. Not only does SCISA eradicate the use and disclosure protections of the Privacy Act, it also disregards the constitutional framework for pri vacy protection. It cannot be that there is no “reasonable expectation of privacy” in the information at issue because it is somehow routine administrative data. The Supreme Court of Canada recently held that warrantless access to basic subscriber information held by telecommu nications providers violated the Charter (R v Spencer, 2014 SCC 43). I suspect that most Canadians would think the information they provide to various government departments is more private than that. Nor can the government claim that because the government already holds this information that there is no remaining constitutionally protected in terest in it. Numerous cases have affirmed the Supreme Court’s state ment from R v Mills ([1999] 3 SCR 668, ¶108), that “Privacy is not an all or nothing right. It does not follow from the fact that the Crown has possession of the records that any reasonable expectation of privacy disappears. Privacy interests in modern society include the reason able expectation that private information will remain confidential to the persons to whom and restricted to the purposes for which it was divulged.” Information collected by the state can have a residual rea sonable expectation of privacy that attracts Charter protection against unreasonable uses, including uses for different purposes and without appropriate safeguards. The Supreme Court has even recently accept ed that some cross-border data sharing attracts Charter scrutiny (R v Wakeling, 2014 SCC 72). SCISA looks as if it was drafted in deliberate disregard of all of this. Conclusions The Privacy Act as it stands does not offer strong privacy protection in the context of national security, and SCISA further, and rather dramati cally, undermines that protection. SCISA does so while also ignoring the lessons learned from the Arar Commission regarding the need for
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safeguards when sharing information with foreign partners. It also does so without any attention to the Canadian constitutional framework for privacy protection. And it does all of this in the name of implementing the lessons of the Air India Inquiry when that inquiry called for none of this. This is smoke and mirrors, an exercise in “privacy sleight-of hand” that distracts from what SCISA really accomplishes: the facilita tion of bulk surveillance. This sleight of hand is all the more puzzling when one considers that this is the same government that scrapped the long-form census in Can ada out of privacy concerns. And yet the Statistics Act includes fines and jail terms for the misuse of information, whereas SCISA provides civil immunity for “good faith” disclosures under the act (section 9). When addressing information sharing in the national security con text, Canadians should expect their government to do two things: to follow the recommendations of the various commissions that have looked into information sharing or publicly indicate why they are not; and to respect constitutional rights. In proposing SCISA, the govern ment does neither. There might be appropriate amendments for other parts of C-51, but SCISA should be scrapped in its entirety, as the gov ernment has not been able to articulate a coherent public reason for its introduction nor to articulate a framework for the protection of privacy. REFERENCES Nakashima, Ellen, and Joby Warrick. 2013. “For NSA Chief, Terrorist Threat Drives Passion to ‘Collect It All.’” Washington Post, July 14,http://www.washingtonpost.com/world/
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20 Who Knows What Evils Lurk in the Shadows?1 ronald deibert
Introduction Charlie Hebdo. Ottawa. Peshawar. Westgate. Mumbai. Acts of terror such as these have become an unfortunate by-product of the hypermedia world in which we now live. Governments worldwide have responded to these incidents with a sense of urgency: new anti-terrorism laws and expanded law enforcement and intelligence capabilities. Canada’s version is now before us as Bill C-51, an omnibus crime and anti-terrorism bill that introduces two new security laws and amends fifteen existing laws, including the Criminal Code and the CSIS Act. C-51 sets out to counter not just “terrorism” but the vast undefined ex panse C-51 describes as “threats to the security of Canada.” The Harper government has pushed variations of these laws unsuccessfully for years. But it was the Ottawa attacks, followed quickly by those in Paris, that created a window of political opportunity prior to federal elections to throw together the package. These measures are the most sweeping change of Canadian national security laws since the 2001 terror attacks on the United States (9/11). As the law is being debated, it is important that Canadians understand the full implications. Many stakeholders and experts have weighed in on various aspects of C-51 as the proposed legislation has touched off a vigorous public debate. I am going to focus on the role of Canada’s Communications Security Establishment (CSE), our country’s main signals intelligence
1 I am grateful to Ed Iacobucci, Christopher Parsons, Chris Prince, and John Scott Railton for comments on earlier drafts.
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(SIGINT) agency and the subject of significant media coverage since June 2013, and the disclosures of former National Security Agency (NSA) contractor Edward Snowden. As one of Canada’s principal security and intelligence agencies, CSE would factor into C-51 in a substantial way. One of the most conten tious parts of C-51, the Information Sharing Act, would relax rules on information sharing among at least seventeen government agencies, CSE included. As the lead agency charged with gathering intelligence from the global information infrastructure (the Internet and all Inter net-connected systems), protecting Canadian networks from threats abroad, and providing “technical assistance” to Canada’s other security agencies, CSE will be front and centre in the Big Data analysis opened up by C-51 and would take on an even more prominent role than it has today in our security, foreign intelligence, and law enforcement. In order to make an informed opinion, it is imperative that Canadians un derstand how this highly classified agency operates, what the statutory limits are to its authority, and how it will change, should C-51 pass into law. What Is CSE? Little is known about CSE because of secrecy. Just about everything regarding the CSE and its operations are among the most highly classi fied in the Canadian government. Although CSE traces its origins to the Second World War, it was not officially acknowledged as existing until 1974, when a CBC investigative news program disclosed details about the agency that led to questions in the House of Commons. Even so, public officials rarely publicly mentioned its name or acknowledged its existence before 9/11. It was only once Snowden’s disclosures opened up a steady stream of media reporting about the CSE that many Cana dians even heard about the agency. Even now, CSE remains a mystery to most citizens and many policymakers. What should Canadians know? First, CSE is a very large agency with an enormous budget, which continues to grow. CSE holds the largest operational budget of all of Canada’s intelligence and security agen cies. Its annual budget has grown from roughly $100 million annually prior to 2001 to about $600 million today. Its new headquarters in Ot tawa is enormous – roughly 89,000 square metres – and cost more than one billion dollars, leading some government insiders to refer to it as the “Taj Mahal.” One reasons the new headquarters facility is so large
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is that it must house supercomputers and data storage equipment, and ensure a reliable stream of power and water to keep them all running and cool. Second, CSE possesses extraordinary capabilities that have been transformed since 9/11. Part of the changes are increased financial and other resources outlined above. But the more important part of the transformation is a function of the Big Data universe in which we now live, and a corresponding philosophical change after 9/11 to col lect as much of that Big Data universe as possible. Former NSA director Keith Alexander infamously summed up this approach as “collecting the entire haystack.” Practically speaking, “collecting the entire hay stack” translates into gathering as many data as possible from as many sources as possible of our daily digital exhaust. Like all Western SIGINT agencies, CSE collects unimaginably vast quantities of data, as much as them legally allowed to collect (which, as I will explain below, is a very large window). It also has truly glo bal reach: this is not a passive SIGINT agency scanning the horizon for stray radio signals, as we might nostalgically recall from the Cold War. CSE is engaged across the globe, tapping into undersea cables, in secure routers, Internet service providers, telecommunications compa nies, computers, and even mobile devices in dozens of countries and regions. One slide-deck from the Snowden disclosures, for example, shows that CSE operates a global data-mining operation code-named EONBLUE that collects data at “backbone Internet speeds” from “200 sensor points around the globe.” Third, part of CSE’s extraordinary capabilities and global reach comes from the fact that it is part of the “Five Eyes” (FVEY) alliance and is thus closely integrated with the operations and data collection of not only the NSA, but the United Kingdom’s Government Com munications Headquarters (GCHQ) and the SIGINT agencies of New Zealand and Australia. The FVEY partnership goes back to the Second World War and has been increasingly integrated after 9/11. The FVEY agencies convene regularly to share tradecraft and best practices, to benefit from each other’s data collection, and to improve their access to and integration of the massive databases each agency develops and maintains. In many respects, it is more accurate to conceive of CSE as part of a single FVEY machine than it is a stand-alone national agency. When CSE’s analysts gather intelligence or target specific individuals or groups, they routinely access NSA and GCHQ databases as part of that exercise.
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Oversight, Public Accountability, and Review By widespread acknowledgment, Canada’s signals intelligence pro gram has the least rigorous oversight, review, and public accountability system of all FVEYs. First, there is no “independent oversight” in the proper definition of the term. CSE has no outside, independent body double-checking its operations or looking over its shoulders. Nor does it have meaningful public accountability, meaning that it does not of ficially report to Parliament. No security-cleared MPs can compel CSE to testify before them, and, unlike in the United States or United King dom, Canada has no standing committees designated to scrutinize CSE’s activities or budgetary allocations. Instead, there is only a system of annual “review” undertaken by the Office of the CSE Commissioner to ensure that CSE is operating lawfully. That review is delivered in clas sified form to the minister of defence, with a redacted version delivered to Parliament. The CSE Commissioner’s Office is staffed by a retired judge who is assisted by eleven employees (at the time of writing). While it may be tempting to focus on the “single retired judge” part as the questionable aspect of the setup, more important than the person, his age, or his present employment status is the structure, power, inde pendence (or lack thereof), and culture of the review mechanism itself. A little digging reveals some dubious characteristics. Although the commissioner emphasizes his office can review anything concerning CSE, he has admitted it does not review everything that CSE does to en sure compliance – only a selection of activities. Of that selection, commis sioners have noted that records essential to determining compliance are missing or not properly recorded by the CSE. But rather than asserting that such poor record-keeping indicates non-compliance with the law, the commissioner instead shelves the issue for “further discussions” between the CSE and the himself. Even on the rare occasions when con cerns about potential non-compliance have been tepidly broached, the government is given wide latitude to correct the issue – in some cases, many years. But by far the biggest problem is that the CSE commission er does not act as a court of law or make legal determinations; instead, he only confirms that the CSE follows its own secret interpretations of secret laws. While, in theory, a retired judge can disagree with CSE’s interpretation of the law, in practice he rarely does because the deck is stacked against him. As one CSE commissioner noted, “With respect to my reviews of CSE activities carried out under ministerial authoriza tion, I note that I concluded on their lawfulness in light of the Depart
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ment of Justice interpretation of the applicable legislative provisions” (Office of the Communications Security Establishment Commissioner 2006). In other words, the CSE commissioner is basing assessments of legality on the government’s own interpretation of the law (see also Robinson 2015). Should it come as any surprise, then, that in all of the years the commissioner has undertaken reviews, there has been not a single finding of non-compliance with the law? This arrangement is highly convenient for CSE, of course, but terribly misleading for Cana dians and the rest of the world, who are routinely assured by repeated public pronouncements from the Government of Canada that CSE is and always has been in compliance with the law. And what about those secret interpretations of secret laws them selves? It is on this basis of friendly “review” that prime ministers, CSE spokespeople, and commissioners can say on the one hand that CSE is prohibited by law from spying on the communications of Canadi an citizens, while on the other it routinely collects limitless amounts of metadata of those very Canadians (metadata being a record of IP addresses, phone numbers, email addresses, websites visited, times tamps and geolocation information, social media identifiers, cookies, and more). Why? Because, according to the government’s own legal definition, metadata are not “private communications,” and what the government is doing when it collects all of that Canadian metadata is not “targeted” or “directed at” Canadians. Never mind that according to common sense and most English dictionaries, that is precisely what they are doing. The government uses its own vocabulary according to its own legal interpretations, and the CSE commissioner affirms year in and year out they are, well, compliant. One feels compelled to ask, under such a setup, what else could CSE be but compliant? Many who have commented about C-51 have noted concerns about boosting the powers and information sharing among seventeen securi ty agencies when only three of those agencies has any type of oversight or review, and the three that do (CSE, CSIS, and RCMP) are “stove piped” (meaning they do not share or coordinate with each other). While I share those concerns, it is also important to understand that for oversight, review, and accountability of arguably the most well-re sourced and powerful of those security agencies (the CSE), we have in the CSE commissioner what is clearly a deferential, inherently limited, and thus fatally flawed “review” body. Given that C-51 will mean an expansion of CSE’s activities, these flaws are deeply disturbing and a sure recipe for abuse.
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The Information-Sharing Black Hole As mentioned above, one of the more controversial aspects of C-51 is the Information Sharing Act, which would permit sharing of informa tion among seventeen security agencies, including CSE. Under its Man date C, CSE already provides technical assistance to domestic federal agencies when they are acting under their lawful mandate, such as pos sessing a warrant to collect a targeted person’s or group’s communica tions traffic. C-51 would amplify this assistance mandate in light of the broad “threats to national security” that could justify intelligence gath ering by law enforcement and other security services. The other six teen agencies will find CSE to be an irresistible source to which to turn, given its formidable collection powers and links to the FVEY resources. Should other agencies make more requests of CSE, the Establishment will likely request – and receive – more federal dollars to enhance its already enormous spying capabilities. Even notwithstanding C-51, there are aspects of how information is acquired and shared by CSE now that are a mystery, and what little we do know already raises some disturbing questions. First, even under existing law and practice, there have been concerns raised about how often, when, and how CSE provides this type of tech nical assistance. In one landmark case, Canadian Justice Mosley rep rimanded CSIS and CSE when he discovered that a warrant he gave CSIS to seek technical assistance from CSE led to CSE tasking its FVEY allies with the job (Freeze 2013). The only problem was that neither CSIS nor CSE told Justice Mosley they would be doing that. Records obtained by the Globe and Mail under freedom of information requests revealed that CSE has received hundreds of such requests for techni cal assistance from CSIS, the RCMP, and other agencies over the years. CSE tried (unsuccessfully) to block the release, which ended up being highly redacted, leaving Canadians with only a vague sense of what type of “technical assistance” is provided and how often. Second, CSE operates in close coordination with the other FVEY agen cies, to the point of CSE analysts routinely accessing databases oper ated by the GCHQ and NSA, and vice versa. Whatever limitations there are on CSE’s collection of Canadian communications (and recall how questionable these controls are), they do not apply to CSE’s allies. As a result, should Canada share data with allies, the information about Ca nadian citizens could be used by our allies to target Canadians. In plain terms, such sharing could put Canadian citizens or permanent residents
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at bodily risk as they travel abroad and pass into our allies’ sovereign territories (see the Mahar Arar case). Moreover, CSE also receives data from allied SIGINT agencies and these data might be provided to do mestic authorities acting in their legal mandates; what the NSA collects about Canadians, in other words, could be provided to the RCMP, CSIS, or other agencies CSE supports. It could even mean that RCMP, CSIS, and other security agencies, through CSE’s assistance, directly access databases operated by the NSA, GCHQ, and other allied SIGINT agen cies. Even the CSE commissioner (not normally inclined to worries) has raised concerns about such arrangements, warning that beyond “cer tain general statements and assurances” between CSEC and the FVEYs, the Commissioner’s Office was “unable to assess the extent” to which the four partners “follow the agreements with CSEC and protect pri vate communications and information about Canadians in what CSEC shares with the partners” (Bronskill 2013). The review agency for CSIS – SIRC – recently raised the same sort of concerns. Clearly, information sharing among the FVEYs is extensive, but the full extent of that shar ing is shrouded in secrecy, even from the review bodies themselves, and thus takes place largely without public accountability. Third, while CSE (and other security agencies) have long operated their own eavesdropping and wiretapping equipment, today most of what they acquire comes from the private sector: the telecommunica tions, mobile, Internet, social media, advertising, and search engine companies that own and operate cyberspace and are the frontline sen sors of our digital exhaust. Probably the most infamous of such ar rangements is the PRISM program, outlined in one of the first Snowden disclosures and showing how the NSA and FBI had acquired direct ac cess to data clouds of major U.S. Internet companies, like Google, Ya hoo!, Facebook, and others. A glance through many of the CSE-related slides reveals that similar arrangements are in place for Canadian op erations, though no details about specific companies are given outside of the oblique reference to a “special source” (intelligence parlance for a compliant telecommunications company). How often and under what legal authority these Canadian “special source” companies share data with security agencies is a mystery. What little evidence has emerged has been shocking. A recent confidential report undertaken by the law firm Gowlings and involving the participation of several Canadian tel cos, acquired through a freedom of information act request by Ottawa Law Professor Michael Geist, estimated that Canadian security agen cies request user data from telcos in the order of millions of times a
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year … all without a warrant. Reports like these strongly suggest that a culture of informal sharing between at least some Canadian telcos and government agencies is common. Given how much data we routinely share hourly with the private sector as we go about our daily lives, these revelations should be alarming. Before further enhancing inter-agency information sharing, we need to first clarify what information is allowed to be shared, and how, with whom, and from where, in the first place. With respect to existing CSE’s practices in this respect, we are in a big black hole. Digitally Enabled Disruption Part of C-51 includes new proposed new powers to “disrupt” threats to national security, including preventing individuals from travelling abroad, interfering with money transfers and financing, disrupting websites, manipulating and removing content on computers, and coun tering propaganda and social media messaging. As the lead agency with the most advanced capabilities of disruption in cyberspace, CSE would be a principal player in these disruptions. Here it is essential to grasp CSE’s already formidable offensive capabilities to appreciate just what type of operations could be unleashed if such powers were exer cised by CSE at the behest of domestic agencies. SIGINT agencies like CSE typically have responsibilities that cover a broad spectrum of activities in cyberspace, from defence at one end to computer network exploitation, attack, and sabotage at the other. The offensive parts of the toolkit are easily among the most highly clas sified, since they routinely involve operations that can violate other countries’ local laws or involve the manipulation of the normal opera tions of computers and devices. As the U.S.-Israeli Stuxnet on Iran’s nuclear enrichment facilities demonstrated, computer network attacks like these can even bring about real physical damage to critical infra structure. If Canadians believe that our SIGINT agency only passively scans the digital horizon looking to vacuum up data, they are sorely mistaken. The Snowden disclosures have shown that CSE possesses an impres sive arsenal of offensive weapons, and a willingness to use them. For example, an August 2014 report on the Snowden disclosures provided a detailed list of FVEY offensive capabilities that included previously classified slides from a CSE presentation on a program called “Land mark.” Landmark is the codename for CSE’s massive covert global
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botnet of thousands of compromised computers, which it calls “Op erational Relay Boxes” or ORBs. Why does it need ORBs? To disguise whatever computer network exploitation and attacks CSE and its al lies may be engaged in. Whose computers are compromised? Hard to say from the slides, but it appears these are the computers of whatever unwitting individuals outside of the FVEYs alliance CSE’s clever hack ers can manage to infiltrate and take over – in “as many non 5-Eyes countries as possible.” Another Snowden disclosure shows that while the Canadian government publicly chastises China-based cyber espio nage as a major threat to security, intellectual property, and a violation of international norms, CSE covertly “piggybacks” on those very same cyber espionage networks behind the backs of the Chinese operators, making their own copies of the same data exfiltrated by China. Several Snowden disclosures show that CSE has fashioned a suite of tools to infiltrate and take over mobile phones, under the codename WARRIOR PRIDE, a federated project among the FVEYs. Some of these tools were invaluable in GCHQ’s hack of Belgium’s main telecommunications net work (a NATO ally) and are integrated into NSA data collection. As part of its collaboration with the NSA and GCHQ, CSE has helped subvert encryption standards worldwide to make the job of signals intelligence collection easier (while weakening everyone else’s security), and likely hoards known computer vulnerabilities as exploits (instead of disclos ing them in the public interest). Another slide deck suggests Canada is familiar with and may use a powerful technique called “QUANTUM,” known to be used by NSA and GCHQ in which agents insert malicious packets into data streams at national scales, which then allow them to take effective control of any device that happens to connect to unen crypted content on the Internet. These are just a few examples of the offensive toolkit that CSE now controls and will be available to the RCMP, CSIS, and several other Ca nadian security agencies as part of their legal mandate to “disrupt.” Considering C-51’s broad definition of “threats to national security,” it seems logical to conclude that these tools will be used more frequently, against more targets, and with many unintended side effects. Such a pronounced emphasis on “offensive” measures such as this will inevi tably result in an escalating arms race in cyberspace, as Russia, China, and other adversaries work to catch up, and a litany of grey market companies profit on lucrative defence contracts for computer network attack and exploitation products and services. It would mean more cov ert efforts to weaken the security of information systems in the interest
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of national security. Given Canada’s long-term interest in an “open and secure cyberspace” for commerce, communications, and human rights, Canadians must deliberate about whether our goals would be better served by the promotion of norms of mutual restraint in cyberspace instead. At the very least, we should fully appreciate just what “disrup tion” will mean in practice. Conclusion Notwithstanding C-51, Canadians are long overdue for a serious dis cussion about the proper legal limits of powerful security agencies like CSE in the era of Big Data. Within a few short years we have funda mentally transformed our communications environment, turning our digital lives inside out and leaving a trail of highly revealing personal information around us wherever we go. Meanwhile, CSE and other sig nals intelligence agencies have reoriented their mission and capabilities to “collect it all” without public debate, and without any corresponding adjustment in the Cold War–era limitations that ostensibly safeguard citizens from potential abuse. C-51 takes us in a direction that is dramatically different from the one we need to take: more covert collection and disruption against a broader range of targets at the behest of a larger number of security agencies; looser information sharing practices among a broader range of domes tic and foreign intelligence agencies; less, rather than more, rigorous checks and balances, oversight, and public accountability. To be sure, societies face serious threats and need properly trained and equipped state security services to deal with them. But without proper checks and balances, we lose sight of what those services are ostensibly designed to secure in the first place. Twenty-first-century SIGINT agencies like CSE are massive electronic omnivores. They are extraordinarily power ful arms of the state. C-51 will boost CSE’s capabilities, resources, and reach. Canadians need to ask themselves, is 1950s-era oversight still the right fit for a twenty-first-century signals intelligence agency? REFERENCES Bronskill, Jim. 2014. “CSE Commissioner Calls for Safeguards on ‘Five Eyes’ Info Sharing.” Canadian Press, July 14,http://www.huffingtonpost.ca/2014/07/15/csec-
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Who Knows What Evils Lurk in the Shadows? 201 Freeze, Colin. 2013. “CSIS Not Being Forthcoming with the Court, Judge Says.” Globe and Mail, November 25,http://www.theglobeandmail.
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21 The Complex Ecology of Policing, Trust, and Community Partnerships in Counterterrorism ron levi and janice gross stein
Over the course of three days in early January 2015, Paris experienced the deadliest attacks in France since the Second World War, at Charlie Hebdo, in the southern suburb of Montrouge, and at a kosher super market in the twentieth arrondissem*nt. Faced with these parallel and connected attacks, the police ordered stores closed in the classic Jew ish neighbourhood of the Marais, and put nearby schools in lockdown, until they stormed both locations later that day and killed all the assail ants inside. Days later, the Obama administration announced that an interna tional counterterrorism summit would be held in Washington the next month. There were widespread calls for new research methods, de-radicalization programs, and data-gathering techniques to prevent future terrorist attacks. At the summit, a consensus emerged that law enforcement, or everyday municipal policing, needs to partner with relevant community groups to prevent terrorism. Relying on examples of programs in U.S. cities such as Boston, Los Angeles, and Minneapo lis, White House officials at the conference emphasized the benefit of community outreach to Muslim-American groups. The claim was not uncontested: in response to privacy concerns voiced by the American Civil Liberties Union, a Los Angeles Police Department Official insist ed, “This has nothing to do with intelligence, it has nothing to do with surveillance, this is about developing healthier, resilient communities” (Acosta and Liptak 2015). We argue that the importance of community information for polic ing should not be reduced to a notional trade-off between efficacy and privacy. Nor are formal, legally driven review mechanisms for informa tion sharing and review likely to be the most effective way of engaging
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in counter-terror policing, particularly given the pressures on police, government officials, and community leaders to prevent future attacks. Instead, what is needed is a framework for information sharing that enhances a culture of legitimacy around policing by greater integration – rather than increased separation – of community and policing groups. We are already seeing evidence of this approach within France. We ar gue that the question of how to build community feedback and trust in policing across community groups should shape the analysis of how to build legitimate information-sharing approaches for counterterrorism policing. We begin with two data points from the French context. The first is that Tunisian neighbours of the Kouachi brothers who attacked Charlie Hebdo had long been concerned by the cache of weapons they found in the Kouachi home in the weeks prior to these attacks – but they did not report these weapons or their concerns to the Paris police because of what one reporter called the “chasm” between the French police and the Muslim community of the Paris banlieus (Mackinnon 2015). Given the massive resources required to closely monitor individuals known to police as potential threats, this lack of trust between community residents and local police – a strained relationship in which charges of community treason and threats of reprisal carry particular weight – is particularly problematic for successful counterterrorism. The second data point comes from the relationship of policing to po tential victim groups. In the wake of an outpouring of concern from the French Jewish community over its safety, a provocative call by Is raeli Prime Minister Benjamin Netanyahu to the Jews of France to come home to safety in Israel, and French Prime Minister Manuel Valls’s impassioned plea that “if 100,000 Jews leave, France will no longer be France,” and the “French Republic will be judged a failure” (Goldberg 2015), a new policing position was created. On January 12, the French Minister of the Interior Bernard Cazeneuve appointed a police prefect, who is charged with the protection of religious sites across the coun try (Cazeneuve 2015). The prefect’s mandate is over and above the increased security vigilance and dedication of resources through the Vigipirate security system. Often referred to in the media as prefect for the Jews of France, Patrice Latron’s role appears to instead turn in great measure on building police-community trust across community groups. His mandate is to maintain regular contact, at the highest levels, with representatives of different religious groups in order to enhance the protection of com
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munity members and of religious and cultural sites. Jewish sites as well as mosques are specifically delineated in the appointment letter. Early reports suggest that this building of police-community ties may be hav ing some positive effects on building confidence in the police. Although these two data points may appear unique to the Parisian context, there is much to learn from them. Each draws on robust social psychological and criminological evidence to emphasize the impor tance of police legitimacy for achieving cooperation in investigations – a legitimacy that turns on people’s assessments that law enforcement is conducted in procedurally just and respectful ways, and that law en forcement policies are enacted through consultation and coordination with their communities. Research led by Tom Tyler at Yale Law School demonstrates that when police behave in procedurally fair ways, trust persists, even when residents do not believe in the efficacy of police ac tions, and even when they do not believe that the problem is one that warrants serious attention. In other words, community members do not identify a trade-off between police efficacy (requiring information and cooperation) and privacy (in which police outreach is regarded as suspicious and as surveillance). Rather than a zero-sum game between efficacy and privacy, when police officers engage with community members in ways that are perceived to be fair, participatory, and even handed, residents are more likely to regard the police as legitimate and are more likely to engage with police investigations (Tyler 2012). When we unpack the empirical components of procedural justice, the legitimacy of criminal justice institutions turns to a significant extent on the quality of face-to-face interactions with community members. Tyler and his colleagues have identified the importance of neutrality, respect, trust, and the opportunity to have voice for institutional legiti macy. Research in New York City demonstrates that perceived fairness also explains why people cooperate with the police, including the will ingness to report suspicious activity and help police to locate suspects (Tyler and fa*gan 2008). The most recent research from their team explicitly examines the im pact of these same processes on counterterrorism investigations. Draw ing on studies that include Muslim communities in London and New York, Tyler and his colleagues find that belief in fair and equal treat ment predicts the willingness to cooperate in counterterrorism inves tigation, while the political views of respondents have limited impact. While there are differences between the two sites, people’s willingness to cooperate with the police turns largely on their perceptions of how
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law enforcement policies are implemented, with weaker importance at tached to community consultation and community voice in the policymaking process itself. In addition, there is also a relationship between the general belief that one ought to defer to legal authorities and the willingness to cooperate – though here too, this belief in legitimacy is predicted largely by one’s interactions with law enforcement, and even then it is more relevant among Muslims in New York than in London. In contrast, perceptions of foreign policy, even when appearing to ex ert influence on police legitimacy, are not related directly to this will ingness to cooperate with the police (Tyler, Schulhofer, and Huq 2010; Huq, Tyler, and Schulhofer 2011a, 2011b). We anticipate that the public assessment of the quality of data collec tion and information sharing protocols would have some effect on the general belief that one ought to obey the law and the public’s attribu tions of perceived fairness, and with it some effect on the willingness to cooperate. Yet this is only one part of the equation, and surveillance itself is not found to affect police legitimacy: a core issue would turn on the perceived even-handedness of these procedures with respect to minority groups (Tyler and Jackson 2013). In particular we do not know how people’s perceptions of fairness are affected by Big Data, where large amounts of information are collected across the spectrum, com pared to intelligence efforts that might be perceived as biased insofar as they target some minority communities rather than others. We specu late that, in the context of counterterror policing, the broad collection of data and its sharing across government agencies may raise fewer concerns for residents’ assessments of the legitimacy of police institu tions than would more targeted data collection efforts that run the risk of being perceived as biased. This approach may also underlie the newest polling data from An gus Reid. A large majority of survey respondents support Bill C-51 and do not express concern about its effects on privacy. What does emerge reflects the findings of research on procedural justice: though the data suggest that a majority of surveyed Canadians are not concerned about a security/privacy trade-off, a majority of respondents continue to ad vocate for better operational oversight of law enforcement agencies that will have expanded counterterrorism powers. Indeed, the procedural justice research suggests that ensuring procedural fairness is important for Muslim and non-Muslim respondents alike (Angus Reid Institute 2015). Yet something we do know is often left out of the conversation. For
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Muslim respondents, these procedural justice studies uncover the nor mative importance of a “community voice in government policy forma tion,” including assessments of the frequency of community meetings and the degree to which government took into account community views about how to address terrorism. This community opportunity to have a voice builds on a consistent earlier finding in the literature on procedural justice; and in the context of counterterrorism, this suggests to us the importance of a greater reliance on community voices and partnerships with community members, as the French have tried to do through the creation of the new prefect who works with Jewish and Muslim communities alike. We often neglect the integration of com munity voices in our conversations about oversight, which turn instead on measures to design bureaucratic, legal, or political controls. These results suggest the central importance of voice and fairness in the proc ess of policy formation and, even more so, in implementation by law enforcement agencies. University of Chicago law professor Aziz Huq speaks of “cooperative coproduction” as a central element in legitimate and effective policy (Huq 2013). Consistent with this approach, Scot land Yard created its Muslim Contact Unit, which has for some years been working to produce greater trust and engagement with commu nity groups. Criminological research also suggests other potential spin-off ben efits from this approach. We know that in neighbourhoods with a high degree of collective efficacy, in which there are shared expectations that community residents will intervene on behalf of the common good, we also see greater effectiveness of informal social controls, a bulwark against legal cynicism, and enhanced legitimacy of law enforcement agents. Harvard sociologist Robert Sampson (2013) has recently sug gested that this community characteristic can perhaps be enabled through increased institutional integration and partnership between the police and neighbourhood organizations. Others suggest that the legitimacy of government institutions such as the police may encour age residents to invest in their communities and social ties (Tyler and Jackson 2013). In the context of counterterrorism policing, we can im agine such voice-based approaches at all stages in the process – from policy formation, to police implementation, and to a civilian-based re view mechanism to monitor compliance – across affected community groups. We are currently engaged in research that builds on criminological evidence to design effective counterterrorism policies. Building on the
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research results above, we suggest that the question of privacy and in formation oversight, so dominant in our current debate, can fruitfully be recast to appreciate the complex ecology of information, trust, and community engagement with law enforcement. We would ask instead, in light of what we know, how we can build and strengthen the legiti macy of law enforcement efforts for those communities that seek pro tection and fair treatment. We identify steps toward this approach in the new French prefectual mandate, which relies on information shar ing and communication in an effort to build institutional trust and com munity-police alignment. As communities become confident that they are being treated fairly, they are more likely to believe in the legitimacy of law enforcement, and in turn to cooperate and voluntarily enhance the efficacy of counterterrorism policing. REFERENCES Acosta, Jim, and Kevin Liptak. 2015. “Obama to Strike Inclusive Tone in Countering Extremism Speech – CNN.com.” CNN, February 19. Angus Reid Institute. 2015. Bill C-51: Strong Support for Proposed Anti-Terror Legislation, but Additional Oversight Wanted Too. Vancouver: Angus Reid Institute. Cazeneuve, Bernard, to Patrice Latron, January 12, 2015.http://www.interieur.gouv.fr/content/download/
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Managing the Risk of Terrorism.” In Evidence-Based Counterterrorism Policy, edited by Cynthia Lum and Leslie W. Kennedy, 353–63. New York: Springer. Tyler, Tom R., and J. fa*gan. 2008. “Why Do People Cooperate with the Po lice?” Ohio Journal of Criminal Law 6:231–75. Tyler, Tom R., and Jonathan Jackson. 2013. “Future Challenges in the Study of Legitimacy and Criminal Justice.” In Legitimacy and Criminal Justice: An International Exploration, edited by Justice Tankebe and Alison Liebling, 83–104. Oxford: Oxford University Press. Tyler, Tom R., Stephen Schulhofer, and Aziz Z. Huq. 2010. “Legitimacy and Deterrence Effects in Counter-Terrorism Policing: A Study of Muslim Americans.” Law & Society Review 44:365–402.
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Postscript: The Paris Attacks as a Turning Point? stephen j. toope
In organizing the conference on which this book is based, the assump tion was that the attacks on Charlie Hebdo and a kosher supermarket marked an inflection point in the continuing struggle for security in the face of global terrorism. That assumption was immediately chal lenged on two fronts. First, one commentator asked why we assumed that anything had changed for the world outside Europe and North America. Perhaps it was only for Western countries that the Paris at tacks meant something particular, and only because we were so caught up in an incoherent defence of “free speech.” While proclaiming that we were all Charlie, the French state went ahead to prosecute a Mus lim “comic” whose stock-in-trade is anti-Semitism. How should that be understood in societies where individual free speech is less privileged than in our own, but where the preaching of the West has been insistent in the post–UN Charter era? Even more provocatively, another conference participant asked why the Paris attacks had drawn such attention when, comparatively, the brutal assault by Anders Breivik in Norway was so much more deadly. Breivik killed 77 people in 2011, most of them teenagers and young adults attending a Norwegian Labour Party youth camp. Although causing widespread revulsion, the gruesome events in Norway were not commonly treated as a turning point for Europe or the world. Yet Breivik was driven by open Islamophobia and a rejection of multicul turalism. Why was this attack not linked to attacks on immigrants in Europe, prompting soul-searching over a new era of right-wing vio lence? Or as journalist Mark Steel argued in the Independent, why were there no calls for Christian clerics to denounce violence, or to apologize
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for Breivik’s actions, yet a different set of expectations seems to be in place when Muslims commit terrorist acts (Steel 2015)? Although one must admire critical challenges to assumptions, there is good reason to treat the Paris attacks as particular, and worthy of spe cial attention and analysis. It is important to note that in the immediate aftermath of September 11, 2001, the same debate roiled on: had “every thing” changed? I was one of those who argued that it had not, that the attacks were in a continuing line of terrorist outrages that had affected many parts of the world (Toope 2002). I was wrong in my analysis – guilty of mixing what I thought should be the case with what was likely to happen. It turned out that the issue was not what al-Qa’eda’s capa bilities portended, but what the reactions of states around the globe would mean for human rights, for growing expectations around secu rity, and for some states’ willingness to resort to war. It seems to me readily apparent that the Paris attacks represent an important moment in global affairs, recalling the dramatic effects of the events in September 2001, even though the scale of the Paris attacks was much smaller. First, the widespread reaction of horror and the prompting of a renewed discourse on terrorism in Western countries are undeniable. On January 11, four days after the attacks, roughly 2 million people, including more than forty world leaders, rallied in Par is to express solidarity against terrorism. Across France, an estimated 3.7 million people joined demonstrations. Vigils and demonstrations involving millions of people took place across Europe, in the United States, Australia, and here in Canada. A crowd in Trafalgar Square sang the “Marseillaise,” a remarkable show for the sometimes-francophobic English. News media were fixated on the attacks for weeks, and media references to Paris are constant in discussions of terrorism associated with seemingly distinct phenomena like Islamic State and the lone-wolf attacks in Ottawa and Sydney. A second indication of the potential influence of the events in Paris is the fear that they appear to have generated in minority communities, especially Jewish ones, across Europe. In the days after the assaults on Charlie Hebdo and the kosher supermarket, many reports circulated of Jews looking to emigrate from France (Connolly 2015). Similar reports surfaced in the United Kingdom, where the home secretary wrote, “I know that many Jewish people in this country are feeling vulnerable and fearful and you’re saying that you’re anxious for your families, for your children and yourselves. I never thought I would see the day when members of the Jewish community in the United Kingdom
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would say they were fearful of remaining here in the United Kingdom” (Chorley 2015). Belgian and Italian Jews expressed similar fears (As sociated Press 2015). The third set of dramatic effects associated with the Paris attacks is the renewal of national efforts to further tighten anti-terrorism regimes. Bill C-51 in Canada is a clear example, discussed in many contributions to this volume. Although the pressure to grant ever-expanding powers to security services seems to have been almost constant across the globe since September 11, 2001, the drama of the Paris attacks has heightened the rhetoric and accelerated governmental anti-terrorism initiatives. In the United Kingdom, Prime Minister Cameron has promised new anti-terror legislation that would allow the security services to moni tor encrypted communications (Guardian 2015). Terror-inspired legisla tive initiatives are planned or being reinforced across Europe (Euractiv 2015), in Australia (MSN 2015), and in China (Kinetz 2015). These legal initiatives have prompted justified fear in many Muslim communities around the world. The fact that the new laws are target ed primarily at Islamic extremism has put communities on edge, with worries that expanded governmental powers will put innocent people at risk of arrest and abuse. Attempted reassurance that we must “bal ance” rights and security ring hollow for people who fear that “we” will feel more secure but “they” will be more threatened in any such “balance.” In a world where media must react instantaneously to dramatic events, and where governments are required to show decisiveness, even in the face of uncertainty, the Paris attacks have prompted swift and forceful reactions – first of solidarity, but then of generalized fear and widespread legislative overreach. The tendency has been to see contemporary terrorist threats as singular phenomena that can be dealt with in isolation from historical, sociological, and cultural factors. Gov ernments must show immediately that they are “strong,” but that often means a complete neglect of social and economic context, and a failure of serious analysis. In this volume, many contributors have demonstrated that it is not possible to understand and effectively deal with the terrorist impulse without relating it to factors beyond the simpleminded assertion that “they hate our values.” In Europe, the legacies of colonialism still play out in hugely damaging ways: in patterns of immigration that do not favour economic integration; in low education levels for second-gener ation immigrants; in the social isolation of some ethnic communities; in
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repeating patterns of exclusion rooted in colonial-era attitudes of who counts as part of the citizenry; and in profound frustration at the failed promise of a better life. Even when some social and economic integra tion is achieved, lingering racism can prompt real anger. None of this is to say that all terrorists are economically deprived. “Root causes” are complicated and diverse. Not all triggers are even within the influence, much less control, of local and national authori ties. The increasing power of transnational terrorist organizations to use the Internet to lure adherents and to radicalize them is a serious challenge that cannot simply be wished away. This reality has led to debates over how international law should respond to cross-border ter rorist recruitment, financing, and transit. Although most legal respons es will take place at the national level, significant efforts are being made to coordinate and to create international regulation when needed. But as in the case of national efforts to fight terrorism, a backlash is emerg ing because of the difficulty international organizations like the UN have in creating a framework that ensures the protection of individual human rights in the face of socio-political demands for effective action. A continuing debate rages over the question how reactions to the threat of terror, specifically radical Islamic terror, actually feed the phe nomenon. If there is any consensus reflected in these pages, it is that the biggest threat to “our” way of life may be from the inability of Western nations carefully to calibrate responses to terrorism. But no one sug gests that the calibration is easy or that it is simple to extract any shared understanding about what is to be done from the myriad voices call ing for action or restraint. Part of the problem is that there is no single phenomenon to be addressed; the approaches of al-Qa’eda and Islamic State are completely different. Their shared motivation to purify Islam is expressed in ways that may require quite different responses. In these chapters, we read powerful demands that freedom of speech be upheld, moderated by calls for civility in discourse that requires self-restraint, but not self-censorship. Deeply knowledgeable experts insist that we recognize and address the real threats that we face, but are balanced against warnings that we risk losing our own values in a thoughtless and indiscriminate pursuit of security, a security that is often false. Commentators also worry that we risk repeating the ex cesses of past eras, not having learned from the internment of Japanese Canadians during the Second World War, the false accusations of the McCarthyism in the 1950s, the marginalization of Aboriginal and First Nations peoples, or the torture committed in secret prisons after 9/11.
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A particularly hard question is whether or not Western societies are beginning to force upon Muslims an impossible choice: to reject ortho dox interpretations of the faith or risk being viewed and treated as po litically, and even criminally, suspect. Inversely, we are warned that the media are shaping our thoughts perversely by casting all Muslims as orthodox, failing to recognize the pluralism of belief or the possibility of “secular” Muslims who nonetheless self-identify as part of a religiously inspired tradition. Through both an erasure of Muslim “moderates” in the media or the forcing of a choice to reject orthodoxy, are Western societies destroying the possibility of a “critical middle” in Islam itself, force-feeding greater extremism? In Canada, the crucible for all of these pressures is the federal legisla tive process being employed, the government insists, to “strengthen” anti-terrorism laws. Even the writers in this volume who generally share the government’s evaluation of the risk Canadians are exposed to from transnational and homegrown terrorism nonetheless worry that the legislation being contemplated is not well considered. There is vir tual unanimity that the Canadian security services are not subject to appropriate civilian oversight, especially as they are accorded increas ingly intrusive powers. We in Canada have strikingly less supervision of intelligence services than any of our closest information-sharing partners: the United States, the United Kingdom, Australia, and New Zealand. Many commentators also warn that the broad and loose language in the proposed ban on speech promoting terrorism could inadvert ently catch entirely innocent people. The new ability granted the ju diciary to pre-authorize the “disruption” of possible terrorist threats is also widely drawn, and probably violates the Canadian Charter of Rights and Freedoms. So too the extraordinarily broad mandate given to security agencies to gain access to the data of individual Canadians from any part of government and to share it widely, even with foreign intelligence agencies. The repeated assurances that Canadians will be protected through existing privacy legislation turns out, upon exami nation, to be completely illusory. All in all, the legislation that we are told will “protect” us seems to be so badly drafted, so expansive in scope, and so open to abuse that one must wonder how a responsible political leadership could bring it forward. The answer seems to be two-fold. First, it is a reaction to the attacks in Paris, Ottawa, and Sydney that may be authentic, but it is based in fear and is too quick and unreflective – just the sort of bad
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policy that fear often generates. Second, and less charitably, it capital izes on a crisis to create political capital by reaffirming the “tough” cre dentials of a government that claims to be hard-headed in confronting all threats. Threats are real, and governments have a duty to protect citizens. But we must consider carefully the means we choose to com bat those threats. Even in times of danger, not all means are acceptable in free and democratic societies. That is what it means to be free and democratic. Roughly a month and a half after the attacks in Paris, suicide bomb ers attacked two mosques in Yemen. More than 130 people died. A Yem eni political analyst noted that “Yemenis knew violence, but not this brutal … There are no norms. It’s a very scary moment” (Kalfood and Fahim 2015). The bombers were Sunni, self-proclaimed followers of the Islamic State, and they attacked the Shiite mosques because they con sidered the worshippers to be heretics. These terrible events remind us that the primary victims of the “purifying” wars taking place through out the Arab world are Muslims. The fundamental conflict between Sunni and Shiite extremists is almost certainly a long war, perhaps a multi-generational war, akin to the raging battles within Christianity that crossed centuries. The conflict is exacerbated by the overlay of re pressive and corrupt regimes that have suppressed all dissent but are inevitably collapsing. The abject failure of world political leaders to act in the face of mas sive war crimes and crimes against humanity in Syria has only height ened a sense of hypocrisy and impotence that helps in the radicaliza tion of youth, not only in the Middle East, but in Western countries as well. In considering the news that seven young Montrealers had dis appeared from their families, seemingly on the way to volunteer for the Islamic State, a young friend of theirs is quoted as saying that the seven, like so many young adults, wanted to contribute to something meaningful, bigger than themselves: “In this case, it’s the chance to de fend their faith from the evils of [Syrian leader] al-Assad” (Perreaux and Stevenson 2015). Those young people from Montreal are deeply misguided and they are dangerous. And anyone who would seek to kill worshippers in a mosque or church or synagogue is worthy of condemnation and se vere punishment. Yes, terrorist threats are real and they must be ad dressed. But collectively, the chapters in this volume remind us that our responses must be measured and balanced. We need to remember that in Western societies we have committed to the fundamental principle
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of equal citizenship. That does not require uniformity of belief; perhaps ironically, it requires acceptance of diverse beliefs within our shared civic framework. Though intolerance must be resisted, that does not mean that toler ance is the highest civic virtue. Beyond tolerance, we must strive for genuine inclusion – social, cultural, and perhaps above all, economic. Without broad inclusion we create risks for our society that no secu rity legislation, no amount of surveillance, can address. In the words of the distinguished Quebec professor Gerald Bouchard, “Unless the trend [towards alienation of minorities] is reversed, we will finish by creating ourselves what we wanted to avoid at all costs – a minority that through stereotype and discrimination gives up little by little on integration and ghettoizes itself. Do we not recognize here the rich soil that produces radicalization?” The events in Paris are an inflection point in global affairs, if only because they present us with a moment to ask ourselves as Canadians and as global citizens how we want to respond. Are we committed to trying to erase our fears through the imposition of greater and greater constraints on our own freedoms? Are we hoping to protect ourselves by drawing fences around certain communities and treating them as dangerous outsiders to our values? Are we imagining that current mili tary actions in Iraq and Syria will be enough to remove the dangers of those who seek religious and social purity? As citizens, we are called upon to make political choices. The horrors of Paris reveal that those choices will be hard, and the consequences of our choices will affect our lives and the lives of generations to come. The hope that flows through the often-gloomy pages of this book is that we can still pause, consider carefully, and choose wisely. REFERENCES Associated Press. 2015. “French Terror Attack Deepens Fears among Europe’s Jews,” January 12. Chorley, Matt. 2015. “‘Without Its Jews, Britain Would Not Be Britain,’ Warns Theresa May over Fears of an Exodus in Wake of Anti-Semitic Attacks.” Daily Mail, January 18. Connolly, Kevin. 2015. “‘Not Safe’: French Jews Mull Israel Emigration.” BBC News, January 13. Euractiv.com. 2015. “Anti-Terrorist Measures in EU Go in All Directions,”
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January 16,http://www.euractiv.com/
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Contributors
Lisa M. Austin is an Associate Professor in the Faculty of Law at the University of Toronto. Jutta Brunnée is Metcalf Chair in Environmental Law and a Professor in the Faculty of Law at the University of Toronto. Simone Chambers is Director of the Centre for Ethics and a Professor in the Department of Political Science at the University of Toronto. Ronald Deibert is Director of the Canada Centre for Global Security Studies and the Citizen Lab at the Munk School of Global Affairs at the University of Toronto. Mohammad Fadel is an Associate Professor and Canada Research Chair in the Law and Economics of Islamic Law in the Faculty of Law at the University of Toronto. Natasha Fatah is a Toronto based journalist and broadcaster. Craig Forcese is an Associate Professor in the Faculty of Law at the University of Ottawa. Randall Hansen is Director of the Centre for European, Russian, and Eurasian Studies at the Munk School of Global Affairs and Canada Research Chair in Immigration and Governance in the Department of Political Science at the University of Toronto.
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Contributors
Edward M. Iacobucci is Dean and James M. Tory Professor of Law in the Faculty of Law at the University of Toronto. Anna C. Korteweg is an Associate Professor in the Department of Soci ology at the University of Toronto. Ron Levi is George Ignatieff Chair of Peace and Conflict Studies, Dep uty Director of the Munk School of Global Affairs, and an Associate Professor in the Department of Sociology at the University of Toronto. Ruth Marshall is an Associate Professor in the Department for the Study of Religion and the Department of Political Science at the Uni versity of Toronto. Ronald W. Pruessen is Director for International Partnerships and Research at the Munk School of Global Affairs and a Professor in the Department of History at the University of Toronto. Jeffrey G. Reitz is Director of the Ethnic, Immigration, and Pluralism Studies program at the Munk School of Global Affairs and a Professor in the Department of Sociology at the University of Toronto. Arthur Ripstein is a Professor of Law and Philosophy at the University of Toronto. Kent Roach is a Professor and Prichard Wilson Chair in Law and Public Policy in the Faculty of Law at the University of Toronto. David Schneiderman is a Professor in the Faculty of Law and the De partment of Political Science at the University of Toronto. Hugh Segal is Master of Massey College and a former Senator and Chair of the Senate Committee on Anti-Terrorism. Ayelet Shachar is Canada Research Chair in Citizenship and Multi culturalism and a Professor in the Faculty of Law at the University of Toronto. Janice Gross Stein is Belzberg Professor of Conflict Management in the Department of Political Science and the Munk School of Global Affairs at the University of Toronto.
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Brian Stewart, former senior correspondent of CBC News, is Distin guished Fellow at the Munk School of Global Affairs, University of Toronto. Stephen J. Toope is Director of the Munk School of Global Affairs at the University of Toronto. Mark G. Toulouse is Principal of Emmanuel College and a Professor in the Department for the Study of Religion at the University of Toronto. Wesley Wark is a Professor Emeritus in the Munk School of Global Af fairs at the University of Toronto.
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