It’s kind of sad to write my last blog post for this project about the challenge to engaging the public. It could be exciting but it’s kind of depressing how much people just don’t care. I hope we’ve made a good case here. I think because it seems fairly self-evident to me that all people should be treated equitably and with respect, I find it hard to make the arguments. However, there is a larger culture of fear that has taken over, not accidentally, that has to be countered, so that people feel safe enough to return to their values. A colleague of mine is talking about civil society organizations, media and direct action as being part of engaging the public. I’m going to look at public education, countering fear and humanizing the detainees.
There is a need for public education and raising awareness of the situation of security certificates. Before the public can act, they must be conscious of what’s happening. This education has to go beyond what’s happening now. Many activist organizations have held speaking events; had information pickets at related places (i.e. the Minister’s office); publicize updates by email listserve; and so on. The problem with these approaches is that you already have to be involved or care to get access to this information. I’m not going to go to a speaking event mid-week after a long day at work, if I’m not already engaged. Some of the more eye-catching events may make the news, which will then reach a larger population. I think ways of getting this information to a broader audience is crucial. Going to events where a larger segment of the population may be would be helpful. Going into the schools to do presentations to classes may be another way of accomplishing this. The more mainstream participants in this process, such as the lawyers involved, will be instrumental in attracting a larger audience. They are less easily dismissed than the youth in a hoodie! Unfortunately, but I think this is part of the reality. Sympathetic members of parliament can also use their role as a platform for pushing the issues and education the public, and many have. The key is to use our knowledge of what’s worked and hasn’t, and approach education and awareness-raising strategically.
A related issue is addressing the fear people are feeling. When I’m in survival mode, I’m not going to pay much attention to anything other than getting through and protecting myself. This is a huge subject to tackle. The obvious points are more awareness raising and education. I’m reminded of the students who tried to sue MacLean’s for being Islamophobic. They collected a series of articles that showed a persistent bias, and went to the Human Rights Commission requesting an action on hate speech. One of their suggested redresses was to allow them to write a counter-piece to a particularly offensive article. A smaller action is writing in to papers to complain when they demonstrate these biases. Many newspapers are already critical of the security certificate process, but do not often address the larger issues of fear, Islamophobia, and bias beyond that. Holding them to account, and writing letters to the editor will raise these issues and hopefully get people to use a more critical lens when reading such coverage. If one had money, there are many other media avenues available such as buying advertisements and getting movies produced. Some mainstream movies have started to look at related issues, such as Rendition (2007) and Taxi to the Dark Side (2007). These blockbusters may be far more successful in opening people’s eyes than any newspaper article.
Such portrayals will humanize the detainees. It’s awful this has to be done. How are they not human?! Because they have been othered. They are the scary other, less than human, not worthy of respect. As sick as it is, I heard many people be much more sympathetic and concerned after seeing Omar Khadr cry on the recently released video. Similar reactions have occurred in response to information being released about the security certificate detainees, but it’s taken a long time for this to happen. Their families and friends have given interviews all along, and the media mentions details about their personal lives. The publicized hunger strike attracted a lot of attention, and produced sympathy for their plight. Perhaps the slowness in response is partially because there isn’t a video as dramatic as there was with Omar. So how can this happen on a larger scale? The public may now see these figures as being human and worthy of dignity, but what about the next round of arrests? What happens when more people are othered as terrorists, reigniting the fear of the public? I think all the strategies mentioned in this post will help, but really, until the culture of fear is definitively addressed, it’s going to come back to ‘humanizing’ on a case by case basis. We all have a responsibility to question our assumptions, and educate ourselves and each other.
These are some of the steps I think need to be taken to engage the public. It hasn’t been and won’t be an easy process. It is imperative to keep trying though, so that we can protect security, human rights, and due process simultaneously. For all people. Good goals, eh? So let’s get working people!
Tuesday, December 2, 2008
Proposed External Monitoring (part 2)
I mentioned a few ways to engage groups who can externally monitor the implementation and execution of the new policy. I made reference to The Canadian Bar Association, Facebook groups and online websites.
Another major resource is the Canadian Centre for Policy Alternatives. The CCPA is a non-partisan research institute that focuses on social justice. CCPA is one of Canada’s leading contributors in public policy debates.
They perform thorough research and engage in outreach through democratic dialogue. They also publish studies, policy briefs, books, editorials and commentary, and other publications, including The Monitor, a monthly magazine which can be viewed online free of charge.
CCPA has offices in n Nova Scotia, Ontario, Manitoba, Saskatchewan and British Columbia, and are willing to address local and national issues.
Regarding the Security Certificates, CCPA has published The Harper Record, where they discuss the issue at length: http://www.policyalternatives.ca/documents/National_Office_Pubs/2008/HarperRecord/Canadas_Secret_Trial_Detentions.pdf
CCPA argues that changes have been made in terms of availability of ‘special advocates’ and the release of a few detainees, but they admit that much needs to be done. CCPA states that grassroots action has made a difference and should continue on in their efforts.
We suggest that Canadian Centre for Policy Alternatives would be a great source to garner support for the abolition of the security certificates due to their wealth of knowledge and research on policies and security certificates and their activity in national social justice issues.
The interesting thing about issues like this, is that its often the grassroors action groups and organizations that are having to make a difference. What happened to the governmental bodies that are responsible for National Security? Why are they not seeing the injustices? Why are they not defending the rights of the people that are paying taxes to keep this country running?
Why are they not the ones lobbying to make a change?
Why must detainees starve themselves to death for 25 days (Jaballah) before their voices are heard? CPPA states that grassroots action groups are causing improvements in the process. Why must grassroots organizations and associations like the Canadian Bar Association and teenagers on Facebook and family members hosting websites and rallys be the ones lobbying for human rights (access to facts, evidence, visitation, fair trials)?
Is it not the government that should be ensuring human rights?
Your thoughts are welcome.
Another major resource is the Canadian Centre for Policy Alternatives. The CCPA is a non-partisan research institute that focuses on social justice. CCPA is one of Canada’s leading contributors in public policy debates.
They perform thorough research and engage in outreach through democratic dialogue. They also publish studies, policy briefs, books, editorials and commentary, and other publications, including The Monitor, a monthly magazine which can be viewed online free of charge.
CCPA has offices in n Nova Scotia, Ontario, Manitoba, Saskatchewan and British Columbia, and are willing to address local and national issues.
Regarding the Security Certificates, CCPA has published The Harper Record, where they discuss the issue at length: http://www.policyalternatives.ca/documents/National_Office_Pubs/2008/HarperRecord/Canadas_Secret_Trial_Detentions.pdf
CCPA argues that changes have been made in terms of availability of ‘special advocates’ and the release of a few detainees, but they admit that much needs to be done. CCPA states that grassroots action has made a difference and should continue on in their efforts.We suggest that Canadian Centre for Policy Alternatives would be a great source to garner support for the abolition of the security certificates due to their wealth of knowledge and research on policies and security certificates and their activity in national social justice issues.
The interesting thing about issues like this, is that its often the grassroors action groups and organizations that are having to make a difference. What happened to the governmental bodies that are responsible for National Security? Why are they not seeing the injustices? Why are they not defending the rights of the people that are paying taxes to keep this country running?
Why are they not the ones lobbying to make a change?
Why must detainees starve themselves to death for 25 days (Jaballah) before their voices are heard? CPPA states that grassroots action groups are causing improvements in the process. Why must grassroots organizations and associations like the Canadian Bar Association and teenagers on Facebook and family members hosting websites and rallys be the ones lobbying for human rights (access to facts, evidence, visitation, fair trials)?
Is it not the government that should be ensuring human rights?
Your thoughts are welcome.
Monday, December 1, 2008
Building Support for Policy Change through Research
Critiques of security certificates and the larger issues of national security, the "war" on terror and human rights have been undertaken by a range of scholars both in Canada and internationally. We have referenced a number of them in the course of this blog, including legal scholars Colleen Bell (OISE), Wesley Wark (CHRC), Audrey Macklin (UofT). The work of these researchers can help to frame our arguments in support for policy change as they provide a range of conceptual tools to talk about why security certificates matter and the challenge they pose to the values Canadians purportedly cherish. Having well-respected researchers supporting the policy we are advocating also lends credibility to our arguments an evidence-base to work from.
It will be important to contact some of these researchers in order to access additional information, to tap into the network of academics writing about these issues and, possibly to propose some new research initiatives. In particular, public engagement is going to require stories that put a human face on the issue and that can then be situated within the broader geopolitical context identified by scholars like Bell. A participatory research design that engages civil society organizations and those directly affected by security certificates to work with academics to develop these 'case studies' would be powerful in getting our message out and linking it to the policy change we are advocating.
Another area where researchers could be engaged to support a policy shift would be the development and dissemination of public opinion surveys regarding security certificates, national security, Canada's anti-terrorism response, etc. We don't really know how much the general population actually knows about these issues concretely, although we get the sense anecdotally that there is a lot of misinformation. Clarifying how Canadians are currently feeling about the threat of terrorism and Canada's response to it, and particularly how to reconcile human rights and security, would provide strong guidance on how to approach a broad public awareness strategy about the proposed repeal of security certificate provisions.
Some preliminary evidence has been made available, from (of all places) CSIS. A public opinion survey was completed in April and October of 2005 by the CSIS Communications Branch "to get a clearer picture of public perceptions about the Service".
From the April survey findings:
This research provides some insight into the ambivalence that Canadians are feeling about the response to issues of national security and the way in which it may have a differential impact on some group. It provides a foundation for our public awareness initiatives and a guide for further research.
It will be important to contact some of these researchers in order to access additional information, to tap into the network of academics writing about these issues and, possibly to propose some new research initiatives. In particular, public engagement is going to require stories that put a human face on the issue and that can then be situated within the broader geopolitical context identified by scholars like Bell. A participatory research design that engages civil society organizations and those directly affected by security certificates to work with academics to develop these 'case studies' would be powerful in getting our message out and linking it to the policy change we are advocating.
Another area where researchers could be engaged to support a policy shift would be the development and dissemination of public opinion surveys regarding security certificates, national security, Canada's anti-terrorism response, etc. We don't really know how much the general population actually knows about these issues concretely, although we get the sense anecdotally that there is a lot of misinformation. Clarifying how Canadians are currently feeling about the threat of terrorism and Canada's response to it, and particularly how to reconcile human rights and security, would provide strong guidance on how to approach a broad public awareness strategy about the proposed repeal of security certificate provisions.
Some preliminary evidence has been made available, from (of all places) CSIS. A public opinion survey was completed in April and October of 2005 by the CSIS Communications Branch "to get a clearer picture of public perceptions about the Service".
From the April survey findings:
- 82% believe that it's important to have an organization such as CSIS to investigate threats to national security.
- 38% of Canadians agree that they "trust CSIS to strike the right balance between security and civil liberties." 28% disagree.
- 39% of Canadians agree that "CSIS should have more powers to ensure national security even if Canadians have to give up some personal privacy safeguards", while 41% disagree.
- 63% of Canadians believe CSIS investigates any protest group, whether it is believed to be violent or not.
- Fifty-two per cent (52%) of those interviewed believe that CSIS might treat Canadians differently because of their ethnicity.
This research provides some insight into the ambivalence that Canadians are feeling about the response to issues of national security and the way in which it may have a differential impact on some group. It provides a foundation for our public awareness initiatives and a guide for further research.
Changing how policy is designed
One of the most important lessons from our exploration of the security certificate issue is the need to ensure that policy development occurs in an open and transparent way. Policy is often reactive and laws are written and introduced based on a response to a crisis, real or perceived. In evaluating a policy, however, we cannot limit our critical reading only to the details or content of the policy itself. We should also question why it is being introduced, what it is responding to, what it is contributing to the cultural and legal discourse of the country, what risks there are in its implementation (and the explicit and implicit assumptions contained within it). In a nutshell, what agenda is it serving and what will it mean for people in real life?
We need to also look at how the policy debate occurred. Who had input? What type of consultation was held and for how long? What outreach was done to ensure a diversity of voices were heard? What measures are in place to ensure effective monitoring of its implementation and to evaluate whether or not it is reaching its objectives?
As I reviewed the transcripts of the House and Senate Committees, the submissions made by civil society organizations, grassroots activists, and advocates for the detainees, I realized that the policy development and review procedures has in many ways mirrored the security certificate process itself. Lawmakers were responding to vague and undefined risks, often with only partial information. Access to information, participation and full debate was limited. The outcome was in many ways clear from the outset. Fear was used as a powerful political tool to force through this policy.
The difference however is that, unlike a reversal of an individual security certificate, policy change is relatively easy (if not uncomplicated), if there is the political will. Unlike the "behind closed doors" reality of security certificate decision-making, there are accountability mechanisms in place for policymakers and we can hold our politicians responsible for the judgements they have made. We have a whole range of possible allies and strategies to bring about this change, as have been described in previous posts.
Public policy is often seen as something technical and complex that the public has no role in. Demystifying policy development is an important part of this initiative. Good policy development and implementation require active public engagement. We need to ask more questions of our policymakers, critically analyze the rhetoric that underlies proposed legislation, and ensure that our voices inform its direction. If we reject our role as "sheep" and actively challenge the democratic deficit that currently exists in policymaking, we can ensure that policies such as the IRPA security certificate provisions receive the debate they require and are ultimately rejected.
We need to also look at how the policy debate occurred. Who had input? What type of consultation was held and for how long? What outreach was done to ensure a diversity of voices were heard? What measures are in place to ensure effective monitoring of its implementation and to evaluate whether or not it is reaching its objectives?
As I reviewed the transcripts of the House and Senate Committees, the submissions made by civil society organizations, grassroots activists, and advocates for the detainees, I realized that the policy development and review procedures has in many ways mirrored the security certificate process itself. Lawmakers were responding to vague and undefined risks, often with only partial information. Access to information, participation and full debate was limited. The outcome was in many ways clear from the outset. Fear was used as a powerful political tool to force through this policy.
The difference however is that, unlike a reversal of an individual security certificate, policy change is relatively easy (if not uncomplicated), if there is the political will. Unlike the "behind closed doors" reality of security certificate decision-making, there are accountability mechanisms in place for policymakers and we can hold our politicians responsible for the judgements they have made. We have a whole range of possible allies and strategies to bring about this change, as have been described in previous posts.
Public policy is often seen as something technical and complex that the public has no role in. Demystifying policy development is an important part of this initiative. Good policy development and implementation require active public engagement. We need to ask more questions of our policymakers, critically analyze the rhetoric that underlies proposed legislation, and ensure that our voices inform its direction. If we reject our role as "sheep" and actively challenge the democratic deficit that currently exists in policymaking, we can ensure that policies such as the IRPA security certificate provisions receive the debate they require and are ultimately rejected.
Our Policy Recommendation
After reviewing the policy options advocated by MPs, legal scholars, NGOs and activists, we ultimately determined that the use of security certificate is unsalvageable as a policy option. We are calling for the repeal of the provisions of the IRPA that deal with security certificates. We believe that immigration legislation is the wrong framework for addressing the alleged risks posed by terrorist activities by non-citizens and promotes a racist "othering" of all non-Canadians within our borders, particularly those of Arab and/or Muslim descent.
Further, we feel that current provisions of the Criminal Code of Canada are sufficient to address any alleged threat, particularly within the context of the Anti-Terrorism Act. There are already provisions within the Criminal Code addressing violent crimes, conspiracy, property destruction, hate crimes, etc. The Anti-Terrorism Act, enacted in 2001, and reviewed in 2005, provides law enforcement agencies with considerable authority and latitude to investigate suspected terrorists/terrorist activities. For more information about the Act, see: www.justice.gc.ca/eng/antiter/index.html
Here are the differences in the way the current policy treats citizens and non-citizens differently:
Non-citizens alleged to represent a security threat are subjected to the security certificate regime of the IRPA, which includes arrest and detention on the basis of secret allegations and secret evidence; in camera ex parte hearings; indefinite detention in inhumane conditions; and the prospect of deportation, possibly to torture.
A Canadian citizen alleged to represent an identical security threat is subject to the Criminal Code anti-terrorism provisions, which include fair hearing provisions, detention reviews, alternatives to detention, and detention for a fixed term following a trial and sentencing, with access to appeal.
With the repeal of the IRPA provisions, the Criminal Code could be applied equally to citizens and non-citizens alike, providing the same access to a fair and open trial including the right to a full defence, and conviction based on a finding of guilt 'beyond a reasonable doubt', and possible incarceration of those convicted and the unconditional release of those acquitted.
Another protection within this framework is that there are 5-year sunset clauses on many of the most controversial and intrusive elements of the Anti-Terrorism Act. In fact, some provisions (including one regarding preventive arrest) expired in March 2007 and are currently being reintroduced and debated. Further, annually the Attorney General and the Minister of Public Safety and Emergency Preparedness must report about whether the provisions should be maintained and must provide evidence/reasons to justify their position.
The use of the Criminal Code to address threats to national security recognizes that the threat or crime itself is what is relevant and not the identity of the suspect. It is based on a much clearer (although imperfect) integration of individual freedom and collective security, the stated objectives of current security certificate provisions. It provides a more transparent legal process to lessen the likelihood of state coercion of the accused and eliminates the risk of torture posed by deportation. It also provides for the incarceration of those individuals convicted of undertaking or planning violent/terrorist activities in Canada and abroad and prevents further violence.
It is not a perfect policy option as is discussed in the posts laying out pros and cons, however, it is a first step in rejecting the 2-tiered human rights structure in Canada that the use of security certificates currently ensures. It is also a policy option that has considerable support, both within the opposition parties federally and within civil society. This will facilitate mobilizing action around this proposed policy shift.
Further, we feel that current provisions of the Criminal Code of Canada are sufficient to address any alleged threat, particularly within the context of the Anti-Terrorism Act. There are already provisions within the Criminal Code addressing violent crimes, conspiracy, property destruction, hate crimes, etc. The Anti-Terrorism Act, enacted in 2001, and reviewed in 2005, provides law enforcement agencies with considerable authority and latitude to investigate suspected terrorists/terrorist activities. For more information about the Act, see: www.justice.gc.ca/eng/antiter/index.html
Here are the differences in the way the current policy treats citizens and non-citizens differently:
Non-citizens alleged to represent a security threat are subjected to the security certificate regime of the IRPA, which includes arrest and detention on the basis of secret allegations and secret evidence; in camera ex parte hearings; indefinite detention in inhumane conditions; and the prospect of deportation, possibly to torture.
A Canadian citizen alleged to represent an identical security threat is subject to the Criminal Code anti-terrorism provisions, which include fair hearing provisions, detention reviews, alternatives to detention, and detention for a fixed term following a trial and sentencing, with access to appeal.
With the repeal of the IRPA provisions, the Criminal Code could be applied equally to citizens and non-citizens alike, providing the same access to a fair and open trial including the right to a full defence, and conviction based on a finding of guilt 'beyond a reasonable doubt', and possible incarceration of those convicted and the unconditional release of those acquitted.
Another protection within this framework is that there are 5-year sunset clauses on many of the most controversial and intrusive elements of the Anti-Terrorism Act. In fact, some provisions (including one regarding preventive arrest) expired in March 2007 and are currently being reintroduced and debated. Further, annually the Attorney General and the Minister of Public Safety and Emergency Preparedness must report about whether the provisions should be maintained and must provide evidence/reasons to justify their position.
The use of the Criminal Code to address threats to national security recognizes that the threat or crime itself is what is relevant and not the identity of the suspect. It is based on a much clearer (although imperfect) integration of individual freedom and collective security, the stated objectives of current security certificate provisions. It provides a more transparent legal process to lessen the likelihood of state coercion of the accused and eliminates the risk of torture posed by deportation. It also provides for the incarceration of those individuals convicted of undertaking or planning violent/terrorist activities in Canada and abroad and prevents further violence.
It is not a perfect policy option as is discussed in the posts laying out pros and cons, however, it is a first step in rejecting the 2-tiered human rights structure in Canada that the use of security certificates currently ensures. It is also a policy option that has considerable support, both within the opposition parties federally and within civil society. This will facilitate mobilizing action around this proposed policy shift.
Policy Options Examined
In determining the policy to propose, we explored three options. This post will explore the first two options examined, and rejected. The following post will discuss the policy option we chose.
The first policy option we looked at was to maintain the status quo and rely on the revised provisions of the IRPA as described in earlier posts. This is the position of the current government and received some support in the recent Federal Court ruling. In that recent decision, the judge determined that it was too soon to fully gauge the impact of the revised provisions in terms of human rights violations (this despite the considerable evidence provided by Canadian special advocates and well as experience from other jurisdictions that the special advocate model cannot effectively protect detainees).
Not surprisingly, we rejected this option. As we have argued, the current legislation does not effectively meet either of its main objectives - it neither protects us from violent/terrorist acts (given in part on its reliance on deportation rather than criminal prosecution), nor does it meet appropriate standards for protecting the legal rights of detainees (e.g. given the lack of access to evidence by the detainee or his counsel, use of indeterminate detention).
The second policy option we looked at was maintaining the security certificate model but replacing the special advocates with SIRC (Security Intelligence Review Committee) or a SIRC-like body. SIRC is an arms-length body that reviews CSIS (Canadian Security Intelligence Services) activities and reports directly to Parliament. According to a SIRC submission to the Senate Committe on The Anti-Terrorism Act in 2005, it was established "to provide assurance to Parliament that CSIS is complying with the law in the performance of its duties. In doing so, the Committee ensures that CSIS does not undermine the fundamental rights and freedoms of Canadians while it carries out its mandate to guard against threats to national security."
www.sirc-csars.gc.ca/nwsspr/spcdsc/20050418_ottawa-eng.html
Members of SIRC have full security clearance and would be able to view the evidence against detainees/individuals subject to the security certificates in ways that even special advocates and federal judges currently do not. It is argued that this would provide better safeguards to detainees as SIRCs would be able to weigh evidence more effectively and make more informed decisions regarding the actual risks posed by detainees. However, SIRC currently undertakes retrospective reviews of CSIS files and cases rather than monitoring current activities and this framework would clearly require a substantial overhaul in order to bring it back into line with the requirements of the security certificate process.
This option was one of the models recommended within the Supreme Court decision that struck down the original IRPA security certificate provisions. In that judgment, Supreme Court Chief Justice McLachlin highlighted the fact that under previous legislation, security certificates were not be issued without a SIRC review until 1988 for foreign nationals and 2002 for permanent residents. The Court saw the SIRC model as more effectively striking the right balance between national security and human rights. Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9
This position was also strongly endorsed by many Liberal MPs and Senators, despite ultimately voting for the current legislation due to fears of the looming deadline.
Despite some additional safeguarding offered to detainees by a SIRC review, we ultimately rejected this policy option as well. It did not address the use of deportation vs criminal prosecution for those deemed to require the use of a security certificate. While it may have allowed for a more detailed, thorough exploration of the evidence against individuals subject to the certificates, it continued to deny detainees full access to that evidence and maintained the use of indeterminate detention. It also fully maintained the discriminatory distinction between perceived threats by Canadian citizens and non-citizens, focusing exclusively on the latter. In fact, in the above quote by SIRC Executive Director Susan Pollack, she is explicitly clear that SIRC's mandate is to protect the rights and freedoms of Canadian citizens from state abuse in the name of national security.
So, if the status quo was unacceptable and the use of alternative Canadian models such as SIRC cannot address the flaws of the current legislation, what policy option could we recommend? In the next post, I will lay out the policy changes that we are advocating.
The first policy option we looked at was to maintain the status quo and rely on the revised provisions of the IRPA as described in earlier posts. This is the position of the current government and received some support in the recent Federal Court ruling. In that recent decision, the judge determined that it was too soon to fully gauge the impact of the revised provisions in terms of human rights violations (this despite the considerable evidence provided by Canadian special advocates and well as experience from other jurisdictions that the special advocate model cannot effectively protect detainees).
Not surprisingly, we rejected this option. As we have argued, the current legislation does not effectively meet either of its main objectives - it neither protects us from violent/terrorist acts (given in part on its reliance on deportation rather than criminal prosecution), nor does it meet appropriate standards for protecting the legal rights of detainees (e.g. given the lack of access to evidence by the detainee or his counsel, use of indeterminate detention).
The second policy option we looked at was maintaining the security certificate model but replacing the special advocates with SIRC (Security Intelligence Review Committee) or a SIRC-like body. SIRC is an arms-length body that reviews CSIS (Canadian Security Intelligence Services) activities and reports directly to Parliament. According to a SIRC submission to the Senate Committe on The Anti-Terrorism Act in 2005, it was established "to provide assurance to Parliament that CSIS is complying with the law in the performance of its duties. In doing so, the Committee ensures that CSIS does not undermine the fundamental rights and freedoms of Canadians while it carries out its mandate to guard against threats to national security."
www.sirc-csars.gc.ca/nwsspr/spcdsc/20050418_ottawa-eng.html
Members of SIRC have full security clearance and would be able to view the evidence against detainees/individuals subject to the security certificates in ways that even special advocates and federal judges currently do not. It is argued that this would provide better safeguards to detainees as SIRCs would be able to weigh evidence more effectively and make more informed decisions regarding the actual risks posed by detainees. However, SIRC currently undertakes retrospective reviews of CSIS files and cases rather than monitoring current activities and this framework would clearly require a substantial overhaul in order to bring it back into line with the requirements of the security certificate process.
This option was one of the models recommended within the Supreme Court decision that struck down the original IRPA security certificate provisions. In that judgment, Supreme Court Chief Justice McLachlin highlighted the fact that under previous legislation, security certificates were not be issued without a SIRC review until 1988 for foreign nationals and 2002 for permanent residents. The Court saw the SIRC model as more effectively striking the right balance between national security and human rights. Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9
This position was also strongly endorsed by many Liberal MPs and Senators, despite ultimately voting for the current legislation due to fears of the looming deadline.
Despite some additional safeguarding offered to detainees by a SIRC review, we ultimately rejected this policy option as well. It did not address the use of deportation vs criminal prosecution for those deemed to require the use of a security certificate. While it may have allowed for a more detailed, thorough exploration of the evidence against individuals subject to the certificates, it continued to deny detainees full access to that evidence and maintained the use of indeterminate detention. It also fully maintained the discriminatory distinction between perceived threats by Canadian citizens and non-citizens, focusing exclusively on the latter. In fact, in the above quote by SIRC Executive Director Susan Pollack, she is explicitly clear that SIRC's mandate is to protect the rights and freedoms of Canadian citizens from state abuse in the name of national security.
So, if the status quo was unacceptable and the use of alternative Canadian models such as SIRC cannot address the flaws of the current legislation, what policy option could we recommend? In the next post, I will lay out the policy changes that we are advocating.
Rejecting the politics of fear
In our discussions of this topic, both online and in person, the fact that so few individuals are actually subject to the current law was raised several times. When we discussed the denial of legal rights to detainees, the risk of torture for those deported and the risk of indefinite confinement for those that remain in Canada, people were generally pretty appalled. When we mentioned that currently only a handful of people are subject to these provisions, however, attention drifted and our focus on a policy aimed at this small group was questioned.
This leads me back to the topic that we have touched on repeatedly in our previous posts but which is fundamental to this policy focus for us. This law affects us all - some as current targets (the 5 men subject to the certificates), and others as potential targets due to race/ethnicity/country of origin who are constantly forced to prove that they belong in the Canadian "us" and not the dangerous "them". The final group is comprised of the "real Canadians" ostensibly being protected by this law, and in whose name these policies are enacted.
There is an interesting concept that a friend described to me that was outlines in her police training, just before her graduation ceremony. The soon-to-be police officers were told that there are three kinds of people in the world: the wolves ('bad guys'), the sheep (general population), and the sheep dogs (law enforcement). The sheep dogs' job was to protect the sheep (vulnerable passive, easily confused and easily led) from the wolves (cunning predators). While the sheep dogs would engage with wolves when the sheep were under attack, most of the work of sheep dogs was actually herding, corralling, patrolling and monitoring the sheep. Safety was ensured by controlling the behaviour of the sheep and ensuring their learned compliance with the sheep dogs' "directions".
The more we talked about the issue of security certificates, the clearer this parallel was to me. The anti-terrorism legislation, both the provisions of the Immigration and Refugee Act focused on security certificates that have been in place for years, or the more recent anti-terrorism legislation that came into effect after the September 11th attacks, are not only aimed at the few individuals suspected of (past/current or future) terrorist activities but are interested as much in achieving a compliant population, grateful for the state protection offered through these measures.
As a woman, and a feminist, it feels too familiar. Be afraid, we have been told all of our lives. Be afraid of the unknown, the stranger, the dark alley, the world. Protect yourself by staying inside at night, finding a man to protect you, limiting your movements. We are taught to sacrifice freedom for alleged security. These messages make us forget that the risk of violence is greater from those we know, from partners, and family members and friends. The fear instilled by those messages also makes us ignore the economic and social conditions that lead to greater vulnerability to violence and that state action could remedy many of those structural constraints. It isn't that there are no risks from the unknown, stranger, dark alley but that the violence done to us by turning the whole world into a threat is, I would argue, that much more damaging as women. We are also told who to be afraid of and the image of that person is often a racialized, "othered" image.
We are embracing the same fear as a nation that has been fed to us as women and Canadians are trusting that by sacrificing freedom for security, as women have been asked to do for so long, that we will be safe. It's just not true - it doesn't keep us safe, and even if it did, it would not be worth it.
This is not just about five men, although it would be just as outrageous a law if it was. It would still be unjust and ineffective and wrong and a change in policy would be justified. However, it is much more than that. Changing this policy is one tiny step in rejecting a politics of fear that promote a false sense of security in exchange for extreme limits on some, but invisible limits on all of us.
Interestingly, the one role left out of the police training sheep/sheepdogs/wolves analogy was the farmer. It is the farmer who controls and benefits from the work of the dogs and the compliance of the sheep and whose economic interests are built on protecting his livelihood from poaching by wolves. It is impossible to separate security issues and economic issues, particularly in this time of global movement of people and capital. Measures to monitor and control the movement of people (particularly those deemed undesirable or dangerous) is occurring concurrently with an emphasis on loosening measures that monitor and control the movement of capital. Any discussion of national security and human rights is incomplete without an analysis of the intersections with global capitalism, and the current neoliberal climate that shapes policy in most of the western world. For more on this topic, see Colleen Bell's article Subject to Exception : Security Certificates, National Security and Canada’s Role in the “War on Terror” in the Canadian Journal of Law and Society 2006, Volume 21, no. 1.
This leads me back to the topic that we have touched on repeatedly in our previous posts but which is fundamental to this policy focus for us. This law affects us all - some as current targets (the 5 men subject to the certificates), and others as potential targets due to race/ethnicity/country of origin who are constantly forced to prove that they belong in the Canadian "us" and not the dangerous "them". The final group is comprised of the "real Canadians" ostensibly being protected by this law, and in whose name these policies are enacted.
There is an interesting concept that a friend described to me that was outlines in her police training, just before her graduation ceremony. The soon-to-be police officers were told that there are three kinds of people in the world: the wolves ('bad guys'), the sheep (general population), and the sheep dogs (law enforcement). The sheep dogs' job was to protect the sheep (vulnerable passive, easily confused and easily led) from the wolves (cunning predators). While the sheep dogs would engage with wolves when the sheep were under attack, most of the work of sheep dogs was actually herding, corralling, patrolling and monitoring the sheep. Safety was ensured by controlling the behaviour of the sheep and ensuring their learned compliance with the sheep dogs' "directions".
The more we talked about the issue of security certificates, the clearer this parallel was to me. The anti-terrorism legislation, both the provisions of the Immigration and Refugee Act focused on security certificates that have been in place for years, or the more recent anti-terrorism legislation that came into effect after the September 11th attacks, are not only aimed at the few individuals suspected of (past/current or future) terrorist activities but are interested as much in achieving a compliant population, grateful for the state protection offered through these measures.
As a woman, and a feminist, it feels too familiar. Be afraid, we have been told all of our lives. Be afraid of the unknown, the stranger, the dark alley, the world. Protect yourself by staying inside at night, finding a man to protect you, limiting your movements. We are taught to sacrifice freedom for alleged security. These messages make us forget that the risk of violence is greater from those we know, from partners, and family members and friends. The fear instilled by those messages also makes us ignore the economic and social conditions that lead to greater vulnerability to violence and that state action could remedy many of those structural constraints. It isn't that there are no risks from the unknown, stranger, dark alley but that the violence done to us by turning the whole world into a threat is, I would argue, that much more damaging as women. We are also told who to be afraid of and the image of that person is often a racialized, "othered" image.
We are embracing the same fear as a nation that has been fed to us as women and Canadians are trusting that by sacrificing freedom for security, as women have been asked to do for so long, that we will be safe. It's just not true - it doesn't keep us safe, and even if it did, it would not be worth it.
This is not just about five men, although it would be just as outrageous a law if it was. It would still be unjust and ineffective and wrong and a change in policy would be justified. However, it is much more than that. Changing this policy is one tiny step in rejecting a politics of fear that promote a false sense of security in exchange for extreme limits on some, but invisible limits on all of us.
Interestingly, the one role left out of the police training sheep/sheepdogs/wolves analogy was the farmer. It is the farmer who controls and benefits from the work of the dogs and the compliance of the sheep and whose economic interests are built on protecting his livelihood from poaching by wolves. It is impossible to separate security issues and economic issues, particularly in this time of global movement of people and capital. Measures to monitor and control the movement of people (particularly those deemed undesirable or dangerous) is occurring concurrently with an emphasis on loosening measures that monitor and control the movement of capital. Any discussion of national security and human rights is incomplete without an analysis of the intersections with global capitalism, and the current neoliberal climate that shapes policy in most of the western world. For more on this topic, see Colleen Bell's article Subject to Exception : Security Certificates, National Security and Canada’s Role in the “War on Terror” in the Canadian Journal of Law and Society 2006, Volume 21, no. 1.
Building Support through Partnerships
One way to build support for this policy change is through creating partnerships. It is important to work with others who are already in support of this type of policy change to ensure that the change does in fact occur. As explained in an earlier blog the NDP, BQ and some Liberal MPS already support the policy shift. It is important to continue to work with these individuals and groups to repeal the security certificate provisions.
Another way to form partnership would be to work with legal associations and experts. The Canadian Bar Association could play a very important role in this process. They are needed to ensure that the repeal process does in fact go through and that any changes that are made are still constitutional. It would also be important to have their expertise in the legalities of the change. Also the Muslim Lawyers Association in particular would be of great help to this cause. Many of the members of this association have been very vocal in their criticisms of the security certificates and have already been asking for the immediate repeal of them.
Civil society organizations would also be of assistance in ensuring this repeal happens. The Canadian Council on Refugees is an organization that has been involved in studying and criticizing security certificates for quite some time now. This organization has criticized how the Canadian government creates policies related to immigrants and refugees. They have recently been very vocal on the negative consequences of the current immigration, refugee and citizenship policies, including security certificates in Canada.
The Council has repeatedly called on the Canadian government to abandon the use of security certificates. The replacement security measure recommended by the Council is the same policy change that we have been promoting. The Council also believes that using criminal proceedings are a viable alternative and as such support their repeal.
Amnesty International is another civil society organization that could build support for the change. Amnesty International is an internationally recognized and well respected global organization that is committed to the values of freedom, equity and justice. Amnesty International has already expressed great concern for the way in which the security certificates violate human rights. They have criticized the certificates for ignoring international human rights standards and have asked the government to replace security certificates with a type of measure that is fair and just.
Another way to form partnership would be to work with legal associations and experts. The Canadian Bar Association could play a very important role in this process. They are needed to ensure that the repeal process does in fact go through and that any changes that are made are still constitutional. It would also be important to have their expertise in the legalities of the change. Also the Muslim Lawyers Association in particular would be of great help to this cause. Many of the members of this association have been very vocal in their criticisms of the security certificates and have already been asking for the immediate repeal of them.
Civil society organizations would also be of assistance in ensuring this repeal happens. The Canadian Council on Refugees is an organization that has been involved in studying and criticizing security certificates for quite some time now. This organization has criticized how the Canadian government creates policies related to immigrants and refugees. They have recently been very vocal on the negative consequences of the current immigration, refugee and citizenship policies, including security certificates in Canada.
The Council has repeatedly called on the Canadian government to abandon the use of security certificates. The replacement security measure recommended by the Council is the same policy change that we have been promoting. The Council also believes that using criminal proceedings are a viable alternative and as such support their repeal.
Amnesty International is another civil society organization that could build support for the change. Amnesty International is an internationally recognized and well respected global organization that is committed to the values of freedom, equity and justice. Amnesty International has already expressed great concern for the way in which the security certificates violate human rights. They have criticized the certificates for ignoring international human rights standards and have asked the government to replace security certificates with a type of measure that is fair and just.
Methods of Formal Monitoring
Two methods of formally monitoring and evaluating the change in policy would be through the use of the Canadian Human Rights Commission and through the creation of a federal ombudsperson.
The creation of a federal ombudsperson is one way to formally monitoring the change in policy. The role of an ombudsperson is to investigate complaints that are laid. This individual acts as a neutral third body in attempting to resolve these matters. He or she has a role that is independent of the chain of command as well as of other offices in an attempt to ensure s/he can avoid conflicts of interest.
When hearing complaints, this individual is to be impartial and listen to complains objectively and needs to be readily available to the constituency. The guiding purpose of the ombudsperson is a commitment to justice. As such s/he will have a consideration for the use and misuse of power and how that relates to the interests of individuals and larger groups.
The creation of a federal ombudsperson would have far reaching positive effects. There have been a few calls in the past for the creation of a federal ombudsperson. In May 2004 one report stated that the creation of a federal ombudsperson would actually help to reduce the "democratic deficit" that is apparent in current Canadian politics. In addition the Forum of Canadian Ombudsmen made a recommendation for the creation of a federal ombudsperson. If this were to happen, it would certainly help monitor the recommended security certificate policy change.
The Canadian Human Rights Commission will also be able to determine if we are meeting the goals and objectives of this policy change. One of the most important objectives is to ensure that human rights are not being violated as the country tries to purpose national security. The Canadian Human Rights Commission administers the Canadian Human Rights Act and will be central in determining if the policy change goals are met. In one research program conducted by the Commission, the results led them to recommend certain changes to the security certificate process. As such, the Commission would also be responsible for the continued evaluation of this issue after the changes have been made.
The creation of a federal ombudsperson is one way to formally monitoring the change in policy. The role of an ombudsperson is to investigate complaints that are laid. This individual acts as a neutral third body in attempting to resolve these matters. He or she has a role that is independent of the chain of command as well as of other offices in an attempt to ensure s/he can avoid conflicts of interest.
When hearing complaints, this individual is to be impartial and listen to complains objectively and needs to be readily available to the constituency. The guiding purpose of the ombudsperson is a commitment to justice. As such s/he will have a consideration for the use and misuse of power and how that relates to the interests of individuals and larger groups.
The creation of a federal ombudsperson would have far reaching positive effects. There have been a few calls in the past for the creation of a federal ombudsperson. In May 2004 one report stated that the creation of a federal ombudsperson would actually help to reduce the "democratic deficit" that is apparent in current Canadian politics. In addition the Forum of Canadian Ombudsmen made a recommendation for the creation of a federal ombudsperson. If this were to happen, it would certainly help monitor the recommended security certificate policy change.
The Canadian Human Rights Commission will also be able to determine if we are meeting the goals and objectives of this policy change. One of the most important objectives is to ensure that human rights are not being violated as the country tries to purpose national security. The Canadian Human Rights Commission administers the Canadian Human Rights Act and will be central in determining if the policy change goals are met. In one research program conducted by the Commission, the results led them to recommend certain changes to the security certificate process. As such, the Commission would also be responsible for the continued evaluation of this issue after the changes have been made.
Formal monitoring and evaluation
It is important to have a number of different monitoring and evaluating methods for the change in policy to ensure that the new changes are in fact being made and the policy is being followed. This will monitor the progress and also allow us to be aware of any adaptations that need to be made. Also, it will allow us to measure the success of the new policy and to determine whether or not it is being effective.
One way to formally monitor the policy change is to use the federal government. In particular, the Department of Justice can play a very important role in the evaluation. The role of the Department of Justice is to support the Minister of Justice and to make sure that Canada is a just society in which there is a just and fair system. It aids the federal government in developing policy and also in reforming policy if needed.
The Department will be able to ensure that the policy change that is made to security certificates is one that is legally valid and relevant. It will regularly review the changes that are made to security certificates and call for reform if it is found that some new issues have emerged.
Similarly, the Department of National Defense will also work to monitor the effectiveness of the policy change. Since the issue security certificates were created to deal with is that of national security, the Department of National Defense has quite a vested interest in ensuring that the security of the nation is not compromised. It will work to provide advice on the effectiveness of the change and assistance in managing resulting security concerns.
The Standing Committee on Public Safety and National Security is also mandated to exercise certain powers which will help in the monitoring process. This committee of the House of Commons has the power to report on studies of policies and legislation. Under Standing Order 108(2) one of the agencies this committee can study the policies and programs of is Public Safety and Emergency Preparedness Canada. This committee has already conducted similar studies. It reviewed the Anti-Terrorism Act of 2001 taking into consideration concerns about rights and limits.
One way to formally monitor the policy change is to use the federal government. In particular, the Department of Justice can play a very important role in the evaluation. The role of the Department of Justice is to support the Minister of Justice and to make sure that Canada is a just society in which there is a just and fair system. It aids the federal government in developing policy and also in reforming policy if needed.
The Department will be able to ensure that the policy change that is made to security certificates is one that is legally valid and relevant. It will regularly review the changes that are made to security certificates and call for reform if it is found that some new issues have emerged.
Similarly, the Department of National Defense will also work to monitor the effectiveness of the policy change. Since the issue security certificates were created to deal with is that of national security, the Department of National Defense has quite a vested interest in ensuring that the security of the nation is not compromised. It will work to provide advice on the effectiveness of the change and assistance in managing resulting security concerns.
The Standing Committee on Public Safety and National Security is also mandated to exercise certain powers which will help in the monitoring process. This committee of the House of Commons has the power to report on studies of policies and legislation. Under Standing Order 108(2) one of the agencies this committee can study the policies and programs of is Public Safety and Emergency Preparedness Canada. This committee has already conducted similar studies. It reviewed the Anti-Terrorism Act of 2001 taking into consideration concerns about rights and limits.
Goals and Objectives
The proposed policy change will satisfy a number of goals and objectives. The policy change is meant to satisfy both security and human rights needs. Under the current system the idea exists that one of these needs can be compromised to have more of the other. In order to have more security, certain human rights need to be given up. The mentality begin this is the belief that these two extremely important needs cannot coexist equally. This does not need to be the case and with the proposed change, these two rights will not need to be scaled against each other.
The first goal is to protect security. As a nation it is imperative that we protect the security of this country and the people within it. By abolishing security certificates we will be able to achieve this goal because it will not only continue to protect the country, but also the security of the people the certificates effect.
Under the current policy, the security of the nation is not being protected. The provisions of the certificates simply allow for the deportation of individuals who are seen as potential security threats. What is does is simply stops them from being a threat or planning a terrorist attack from within the country. This does not prevent the individual from being a threat altogether though. The individual can continue to be a threat from outside of Canada. As a result this current policy is ineffective at actually protecting and promoting security.
The second goal of the policy change is the protection of human rights. As a leader in the international arena, Canada has regularly proclaimed its acceptance of universal human rights and it has also been expected to adhere to the international human rights norms and ideal standards. To ensure the government follows these norms, Canada, along with three quarters of the world's states has accepted legal obligations to implement these rights by becoming party to the International Human Rights Covenants.
The current policy of using security certificates is in clear violation of many of these human rights. It is imperative that the government fulfill its obligations and protect the rights of both citizens and non-citizens of this country. By abolishing security certificates the individuals in question will be accorded these rights.
The first goal is to protect security. As a nation it is imperative that we protect the security of this country and the people within it. By abolishing security certificates we will be able to achieve this goal because it will not only continue to protect the country, but also the security of the people the certificates effect.
Under the current policy, the security of the nation is not being protected. The provisions of the certificates simply allow for the deportation of individuals who are seen as potential security threats. What is does is simply stops them from being a threat or planning a terrorist attack from within the country. This does not prevent the individual from being a threat altogether though. The individual can continue to be a threat from outside of Canada. As a result this current policy is ineffective at actually protecting and promoting security.
The second goal of the policy change is the protection of human rights. As a leader in the international arena, Canada has regularly proclaimed its acceptance of universal human rights and it has also been expected to adhere to the international human rights norms and ideal standards. To ensure the government follows these norms, Canada, along with three quarters of the world's states has accepted legal obligations to implement these rights by becoming party to the International Human Rights Covenants.
The current policy of using security certificates is in clear violation of many of these human rights. It is imperative that the government fulfill its obligations and protect the rights of both citizens and non-citizens of this country. By abolishing security certificates the individuals in question will be accorded these rights.
Sunday, November 30, 2008
...and the cons : (
Okay, so we think our idea of getting rid of security certificates and relying on the criminal justice system to deal with all people accused of terrorism makes sense. It makes a lot more sense than the current system. However, this recommendation doesn’t address all the issues involved. (I don’t know that any policy could). I’m going to talk about the limits to our policy in this post.
Making these changes is only the first step. The macro national security framework would stay as is other than this minor change. There are issues with the macro system also that need to be addressed. We only took on one tiny piece of the puzzle because it’s just so overwhelming. But this little piece is indicative of the rest of the system.
There is no guarantee that either policy will work 100%. There may be unforeseen gaps that this policy doesn’t address, and so revisions will need to be made along the way as necessary. Gaps in security or gaps in human rights or due process can be looked at and addressed as needed.
In addition, making these changes doesn’t touch the social construction of security, terrorism, etc. that we have discussed so much on this blog. It leaves those concepts enact and unquestioned. In some ways, it reinforces those concepts as being real, necessary and true as popularly defined. Terrorism and security are socially constructed ideas that are thus understood to mean very particular things. Making this policy change doesn’t facilitate deconstructing meaning around these concepts, or look at how fear plays out. We struggled with this but decided that it was important to have something in place to deal with the potentially ‘real’ while also addressing in discourse the constructions.
The Challenge to Public Engagement
“... most Canadians will not be terribly inconvenienced by [Bill C-36]. Instead, the costs will be borne by people who find themselves targets of police suspicion because of their ethnic background, radical political views or association with immigrant communities that have ties with groups deemed to be terrorist fronts.”
- Audrey Macklin, U of T Faculty of Law (http://www.utoronto.ca/ethnicstudies/BorderlineSecurity.pdf)
It could be difficult to promote this policy. Unfortunately, because there is such a culture of fear currently, it is difficult to look at what underlies the issues. Dissent is seen as unpatriotic and divisive. Naomi Klein talks about Milton Friedman’s shock doctrine – that the time to push through really oppressive policies is when people are scared. After Sept. 11, 2001, there was a huge increase in such policies, which are still being maintained. Many people were suddenly okay with giving up their rights because they were so scared. Since most people will not be directly affected by security certificates, they are content to let a few people have their rights violated as a tradeoff for feeling more secure. We are locked into this false dichotomy that rights must be violated to ensure security. We can have both, but making the public understand this and be comfortable with it is difficult. The government has embraced the opportunity to bring in oppressive policies, and is being ‘encouraged’ to do so by other countries, such as the United States and Britain. That will be a huge barrier to overcome. Remember all the talk about Canada being a training ground for terrorists? It’s difficult to make your policies more lenient while having to defend oneself against such accusations.
Although, the policies won’t really be more lenient. I’m sure that’s how the Conservatives will see these changes, but it’s really just about making the processes transparent and fair. Another concern about these changes is that it does nothing to address the problems of the criminal justice system. The criminal justice system does not operate equitably. Racial profiling continues to be a problem, and a person of colour is much more likely to get a worse deal at each step of the process. Much more likely to be stopped by police, to be charged, to be sentenced to jail time if convicted, to be denied parole and so on. The criminal justice system may still be used to target certain groups, but at least it will be possible to integrate the process, and to appeal more readily inequities that do happen.
These are some of the potential cons we considered regarding our proposed policy change. I think the pros outweigh the cons, and many of the latter are implementation problems or larger issues, as opposed to actual problems with the policy change. Any thoughts?
Making these changes is only the first step. The macro national security framework would stay as is other than this minor change. There are issues with the macro system also that need to be addressed. We only took on one tiny piece of the puzzle because it’s just so overwhelming. But this little piece is indicative of the rest of the system.
There is no guarantee that either policy will work 100%. There may be unforeseen gaps that this policy doesn’t address, and so revisions will need to be made along the way as necessary. Gaps in security or gaps in human rights or due process can be looked at and addressed as needed.
In addition, making these changes doesn’t touch the social construction of security, terrorism, etc. that we have discussed so much on this blog. It leaves those concepts enact and unquestioned. In some ways, it reinforces those concepts as being real, necessary and true as popularly defined. Terrorism and security are socially constructed ideas that are thus understood to mean very particular things. Making this policy change doesn’t facilitate deconstructing meaning around these concepts, or look at how fear plays out. We struggled with this but decided that it was important to have something in place to deal with the potentially ‘real’ while also addressing in discourse the constructions.
The Challenge to Public Engagement
“... most Canadians will not be terribly inconvenienced by [Bill C-36]. Instead, the costs will be borne by people who find themselves targets of police suspicion because of their ethnic background, radical political views or association with immigrant communities that have ties with groups deemed to be terrorist fronts.”
- Audrey Macklin, U of T Faculty of Law (http://www.utoronto.ca/ethnicstudies/BorderlineSecurity.pdf)
It could be difficult to promote this policy. Unfortunately, because there is such a culture of fear currently, it is difficult to look at what underlies the issues. Dissent is seen as unpatriotic and divisive. Naomi Klein talks about Milton Friedman’s shock doctrine – that the time to push through really oppressive policies is when people are scared. After Sept. 11, 2001, there was a huge increase in such policies, which are still being maintained. Many people were suddenly okay with giving up their rights because they were so scared. Since most people will not be directly affected by security certificates, they are content to let a few people have their rights violated as a tradeoff for feeling more secure. We are locked into this false dichotomy that rights must be violated to ensure security. We can have both, but making the public understand this and be comfortable with it is difficult. The government has embraced the opportunity to bring in oppressive policies, and is being ‘encouraged’ to do so by other countries, such as the United States and Britain. That will be a huge barrier to overcome. Remember all the talk about Canada being a training ground for terrorists? It’s difficult to make your policies more lenient while having to defend oneself against such accusations.
Although, the policies won’t really be more lenient. I’m sure that’s how the Conservatives will see these changes, but it’s really just about making the processes transparent and fair. Another concern about these changes is that it does nothing to address the problems of the criminal justice system. The criminal justice system does not operate equitably. Racial profiling continues to be a problem, and a person of colour is much more likely to get a worse deal at each step of the process. Much more likely to be stopped by police, to be charged, to be sentenced to jail time if convicted, to be denied parole and so on. The criminal justice system may still be used to target certain groups, but at least it will be possible to integrate the process, and to appeal more readily inequities that do happen.
These are some of the potential cons we considered regarding our proposed policy change. I think the pros outweigh the cons, and many of the latter are implementation problems or larger issues, as opposed to actual problems with the policy change. Any thoughts?
The pros of our proposed policy change!
I’m going to talk about the Pros and Cons of our proposed policy changes over the next couple posts. I think the easiest way is to first talk about the good things and then the bad in a separate post, even though it makes the second post grimmer and less fun to read. Let’s start with the good news!
Fulfilling our goals of protecting human rights, security and due process by changing the policy would be much more consistent with federal and provincial/territorial human rights legislation. It would also be more consistent with the international commitments Canada has made to human rights, such as the International Covenant on Human Rights that was discussed in a couple of earlier posts.
By eliminating these contradictions around human rights, Canada’s credibility would be increased internationally. The USA is ridiculed and criticized worldwide for its violations of human rights. It’s the example people hold up as indicative of what’s wrong. As knowledge of Canada’s current policies grows, it too will be looked down on. The UN has published several reports criticizing Canada’s actions around other human right abuses, such as the treatment of Indigenous groups. The politicians get very embarrassed but beyond just feeling bad we need change to avoid this criticism. Canada needs to step up to make changes to bring its policies into line with human rights covenants. Canada should be setting a precedent internationally to show that human rights and due process are as important as security concerns, and that there concerns are not either/or but all/and.
Transparency and accountability are fundamental to our conception of good government. One of the functions of the judiciary is to act as a check on the government, and it is crucial that they also exemplify these principles. Our system of government relies on the judiciary to review the actions of government, and to limit the executive power of the state. They are the review for government actions, which ensures the government doesn’t just do whatever it wants to. This is called judicial authority. Relying on the criminal system rather than the security certificate process would be a return to judicial authority, a principle that is still held in discourse, although it has been much reduced in practice.
The judiciary is complicit in the government’s violations at this point, and is actually producing many of the violations. The new system would place the process back into the realm of possible transparency of process, thereby making the players accountable for their actions. Rather than operating behind closed doors, the judiciary, governmental actors, and agencies such as CSIS would have their actions up for review. Rather than not knowing why a person continues to be detained, everyone can know why and if it’s unfair, appeal. There would once again be recourse for abuse of power, and the public would be more confident in the process than all this cloak and daggers silliness. It is the lack of transparency that makes people suspicious and distrustful, and does damage to the credibility of the involved agencies.
From a purely practical perspective, having one policy to deal with all terrorist issues will be much simpler. A ‘one size fits all’ framework is a much easier and fairer process for all involved. There will be less inequities and discretionary power will not be exercised in the same way, as everyone will face the same process. We also think this will be more cost effective, because there is only one system to fund. A great deal of money is being used to fund the separate prison for security certificate detainees, even now when there is only one man being held there. This money can be better used to strengthen the existing criminal justice system.
Imprisoning people convicted of terrorism also seems to be safer than simply deporting them to other countries. If they are truly a risk, shipping them elsewhere doesn’t seem to address it at all. Theoretically, the idea of imprisoning someone guilty of a crime is supposed to punish, detain and rehabilitate them. Deportation doesn’t necessarily address these issues but does put people at risk. The money saved from unifying the systems could be used to put programming back into prisons. Many programs aimed at rehabilitation and skills training have been cut in recent years, so that the prisons do little more than detain and punish individuals. It’s important that this be changed also, and the savings from having one system could potentially go to that system to strengthen it, including putting in adequate programming.
So these are the pros of scraping the security certificates and handling all concerns under the criminal justice system. It paints a pretty attractive picture, but I’m sure you can see a few cons already from reading this. And I’ll address those in my next post!
Fulfilling our goals of protecting human rights, security and due process by changing the policy would be much more consistent with federal and provincial/territorial human rights legislation. It would also be more consistent with the international commitments Canada has made to human rights, such as the International Covenant on Human Rights that was discussed in a couple of earlier posts.
By eliminating these contradictions around human rights, Canada’s credibility would be increased internationally. The USA is ridiculed and criticized worldwide for its violations of human rights. It’s the example people hold up as indicative of what’s wrong. As knowledge of Canada’s current policies grows, it too will be looked down on. The UN has published several reports criticizing Canada’s actions around other human right abuses, such as the treatment of Indigenous groups. The politicians get very embarrassed but beyond just feeling bad we need change to avoid this criticism. Canada needs to step up to make changes to bring its policies into line with human rights covenants. Canada should be setting a precedent internationally to show that human rights and due process are as important as security concerns, and that there concerns are not either/or but all/and.
Transparency and accountability are fundamental to our conception of good government. One of the functions of the judiciary is to act as a check on the government, and it is crucial that they also exemplify these principles. Our system of government relies on the judiciary to review the actions of government, and to limit the executive power of the state. They are the review for government actions, which ensures the government doesn’t just do whatever it wants to. This is called judicial authority. Relying on the criminal system rather than the security certificate process would be a return to judicial authority, a principle that is still held in discourse, although it has been much reduced in practice.
The judiciary is complicit in the government’s violations at this point, and is actually producing many of the violations. The new system would place the process back into the realm of possible transparency of process, thereby making the players accountable for their actions. Rather than operating behind closed doors, the judiciary, governmental actors, and agencies such as CSIS would have their actions up for review. Rather than not knowing why a person continues to be detained, everyone can know why and if it’s unfair, appeal. There would once again be recourse for abuse of power, and the public would be more confident in the process than all this cloak and daggers silliness. It is the lack of transparency that makes people suspicious and distrustful, and does damage to the credibility of the involved agencies.
From a purely practical perspective, having one policy to deal with all terrorist issues will be much simpler. A ‘one size fits all’ framework is a much easier and fairer process for all involved. There will be less inequities and discretionary power will not be exercised in the same way, as everyone will face the same process. We also think this will be more cost effective, because there is only one system to fund. A great deal of money is being used to fund the separate prison for security certificate detainees, even now when there is only one man being held there. This money can be better used to strengthen the existing criminal justice system.
Imprisoning people convicted of terrorism also seems to be safer than simply deporting them to other countries. If they are truly a risk, shipping them elsewhere doesn’t seem to address it at all. Theoretically, the idea of imprisoning someone guilty of a crime is supposed to punish, detain and rehabilitate them. Deportation doesn’t necessarily address these issues but does put people at risk. The money saved from unifying the systems could be used to put programming back into prisons. Many programs aimed at rehabilitation and skills training have been cut in recent years, so that the prisons do little more than detain and punish individuals. It’s important that this be changed also, and the savings from having one system could potentially go to that system to strengthen it, including putting in adequate programming.
So these are the pros of scraping the security certificates and handling all concerns under the criminal justice system. It paints a pretty attractive picture, but I’m sure you can see a few cons already from reading this. And I’ll address those in my next post!
Proposed External Monitoring (part 1)
My co-blogger previously mentioned how we would implement a new process for the accused if they are actually found guilty.
As noted in a previous post (http://maskedinjustice.blogspot.com/2008/10/how-reliable-are-secret-keepers.html ), there is clearly a need for someone to keep a check on the CSIS process and use of security certificates and treatment of evidence. Further, there is a need to ensure the rights and proper treatment of the detained and operations of a fair trial.
In addition to having monitoring of CSIS, the hearing process and ensuring the rights from bodies on ‘the inside’, there should also be external bodies to make sure there are no cracks. There should be a neutral third party. For example, we suggest the Canadian Bar Association (CBA) could take part in monitoring the hearings and ensuring the human rights of detainees are being ensured during detention.
The mandate of the Canadian Bar Association is to improve the law, the administration of justice, improve and promote access to justice and promote equality in the legal profession and in the justice system improve.
The President of the bar has, along with others, spoken out about US detainees in Guantanamo and their invitation for the detainees “to challenge the validity of their detention in US courts”. He has also supported the statement that the “war on terrorism will not and cannot be won by denying those suspected of terrorism the fundamental right of a fair opportunity to test the evidence against them.
The CBA also spoke out on the matter regarding Omar Khadr, the only Western citizen being held in Guantanamo. The CBA wrote to Harper advocating for the release of Khadr into Canada and stated that facilitating Khadr’s detainment is affront to the rule of Canadian law.
Due to The Canadian Bar Associations familiarity and activism regarding other detainees, they would be suited to advocating for the rights and fair trials of Canada’s detained non-citizens.
I leave you on this note as quoted in the Globe and Mail:
"I don't think the Canadian Bar Association has ever shied away from controversy. We are not a shy, retiring organization.” The CBA has a huge amount of credibility nationally and internationally.
Sources:
http://www.guardian.co.uk/world/2004/aug/13/usa.guantanamo
http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20070812/khadr_release_070812?s_name=&no_ads=http://www.theglobeandmail.com/servlet/story/RTGAM.20070811.wmakin20811/BNStory/National/?page=rss&id=RTGAM.20070811.wmakin20811
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