SETTING THE STAGE
Wednesday, February 11, 2015
Troubled Times Ahead with New Anti-Terror Legislation
Troubled Times Ahead with New Anti-Terror Legislation
By Matthew Behrens
Just in time for an election campaign in which Stephen Harper is positioning himself as a wartime Prime Minister, Bill C-51 (Anti-Terrorism Act 2015) was recently introduced to play a dual role: granting extraordinary new powers to already hyperactive and unaccountable state security agencies, and baiting as “soft on terror” anyone who questions the bill’s necessity and the human rights violations it will further legitimize.Harper started off 2015 by claiming “jihadists” had “declared war” on Canada, later addinga line from the George W. Bush playbook: “They want to harm us because they hate our society and the values it represents.” (One thing Harper and others have yet to address is why so-called “jihadists” have not declared war on democracies like Brazil, Argentina, or Costa Rica, which have similar “values,” not to mention vibrant celebrations of hedonistic sexuality that might make ISIS cringe.)
SETTING THE STAGE
Introducing C-51, Harper declared “violent jihadism…is not a human right. It is an act of war, and our government's new legislation fully understands that difference.” Even though one of the RCMP’s own internal documents advises against using terms like “jihadism” and “Islamic terrorism” – based on the understanding that “distorted and inflammatory linkages between Islam and terrorism” succeed only in “conflating terrorism with mainstream Islam, thereby casting all Muslims as terrorists or potential terrorists” – Harper refuses to respect those cautions, going so far as to slanderously suggest that mosques are terrorism incubators.
The bill’s introduction on a Friday afternoon was stage managed to take advantage of a series of planned events: the start of two terror-related trials the following Monday (the “BC pressure cooker” and the “Toronto Via Rail” plots) and the subsequent arrest of 25-year-old Awso Peshdary for allegedly helping young men travel overseas to fight in Syria. The Mounties held a press conference to report the arrest of Peshdary, who has been under surveillance for five years and posed no imminent threat, and also to suddenly announce two warrants for overseas fighters who have long been in the news. Taken together, things were perfectly timed to produce a cascading mirage that Canada was, as Harper said, under attack.
Following the Mounties’ press conference, Public Safety Minister Steven Blaney commended the men and women in uniform and added his own lines to this well-scripted melodrama: “Our Government is confronting the terrorist threat at home and has introduced the Anti-Terrorism Act, 2015 to give our law enforcement and national security agencies the tools they need to protect Canadians against these ever-evolving threats.”
Against this backdrop, the Liberals cowardly caved and announced they would support the bill even before it was studied in the House of Commons. A wary NDP expressed tepid opposition, with only Elizabeth May calling it what it is: “The Act to Create a New Secret Police.”
In reality, Bill C-51 does not create a secret police so much as it further entrenches what has been Standard Operating Procedure for Canada’s secret security agencies for years. That secretive netherworld of deliberate deception, complicity in torture, refusal to respect court orders, surveillance, harassment, racial and religious profiling, and a complete lack of accountability will, with C-51, benefit from a massive bulking up of very dangerous powers. It will also invite the Canadian courts to approve dirty tricks and illegal acts, and provide immunity to those whose “good faith” actions break the law and abuse human rights in acts that may constitute torture.
The sheer size of the 63-page bill prevents as detailed an analysis as one might like in this space, so what follows is a broad overview of some key provisions and concerns.
WHO WILL BE TARGETED?
In the initial flurry of C-51 coverage, much focus has been devoted to the potential restraints on speech, advocacy, and the media. The bill’s overly broad, vague terminology – the term “terrorist offences in general” could capture just about any activity – could, for example, be used against a journalist interviewing a Taliban commander or a columnist who urges anti-Russian forces in Ukraine to blow up oil refineries. Frightening as the chilling effect of these provisions will be, it is perhaps helpful to remind ourselves that like its antecedent, the Anti-Terrorism Act of 2001, this bill will be used to continue targeting, disrupting, and roughing up very specific and often marginalized communities. Among those are indigenous rights activists, Arab Muslims and those perceived as such, refugees and immigrants, and those who quite rightly have concluded that the only way to initiate meaningful social change in this country is to operate outside the boundaries of “acceptable” legal definitions of protest and resistance.
Even though the government must know that sections of its legislation may eventually fall victim to a Charter of Rights and Freedoms court challenge, Bill C-51 will nonetheless be a hugely effective tool of repression and control. The mere possibility of charges being laid will have a major chilling effect on whole communities and, especially, community media outlets that might report on home country conflicts in a manner that might conflict with Canada’s foreign policy objectives. There is certainly precedent for this concern. As the International Civil Liberties Monitoring Group reported in a 2003 report, In the Shadow of the Law, there had been “hundreds” of instances where people in Canada “are being visited for interviews by security forces without warrants, and taken away for interrogation. Although the full extent of Bill C-36 [so-called "anti-terror" legislation hurriedly passed by Parliament in 2001] was not implemented in these cases, it has been used as a threat to ‘encourage’ voluntary interviews by citing the risk of preventative detention allowed under the Act. Victims of such police conduct have been afraid to come forward publicly for fear of further retaliation.”
In activist circles, Bill C-51 may spur self-censorship even when it comes to theoretical discussions of railroad blockades, sabotage of pipelines, life-affirming property destruction (such as the dismantling of a CF-18 bomber on display at a war show), and actions designed to disrupt business as usual in the Canadian economy.
The communication section of C-51 is so alarming that even a state security academic who supports preventive detention, Craig Forcese, has coauthored with his colleague Kent Roach a 10,000-word critique that outlines the serious issues raised by this section. The law professors explore a wide variety of scenarios under which individuals may be charged, the lack of statutory defences allowed, and the lower threshold in language that has evolved from “will” engage in nefarious activities (which implies a probability) to “may” (a mere possibility). They also note that unlike hate speech provisions, Bill C-51 appears to apply not just to public speech, but also to private communications that are recorded by security agencies. Ironically, this section may also hinder police investigation of potential threats, given that it could lead to the shutdown of online chat rooms where those likely to engage in violence are sometimes first spotted by investigators.
Those who attend and film demonstrations may also be at risk given the section that defines terrorist propaganda as “any writing, sign, visible representation or audio recording that advocates or promotes the commission of terrorism offences in general…or counsels the commission of a terrorism offence.” Given that some Palestinians are represented by a government considered terrorist by Canada (Hamas), will signs declaring “I support Hamas” make one culpable, along with the video images of them? Will the provision of information in Canada about contributing material aid to Gaza medical clinics or schools be viewed as such propaganda?
Bill C-51 also authorizes seizure of “terrorist propaganda,” a wide-open concept likely to be enforced against a broad range of political materials with the same zeal that lesbian and gay magazines and books were regularly held up at the US border under obscenity laws. Notably, the Anarchist Cookbook, freely available at amazon.com, was nonetheless used in a recent Toronto “terror” prosecution as a damning piece of evidence when it was found on a suspect’s flash drive.
Communications restrictions appear to be based on the theory that exposure to certain images and ideas on the internet leads to violence, but the Canadian government has yet to show any substantive, causal link. As University of Chicago researcher David Benson argued last year in Security Studies, “Although access to the Internet has increased across the globe, there has been no corresponding increase in completed transnational terrorist attacks…the Internet is not a force multiplier for transnational terrorist organizations.”
“UNDERMINING THE SECURITY OF CANADA”
This might be called the Gandhi clause, since it speaks to any “interference” related to government operations including “intelligence, defence, border operations, public safety, the administration of justice, diplomatic or consular relations, or the economic or financial stability of Canada.” Under this absurdly broad definition, those facing possible charges could include organizers of a national day of action that involves economic targets, nonviolent railway blockages, freeway occupations, or sit-ins that stop business as usual in government offices. It could include a blockade of the U.S. embassy to protest continued operation of the torture camp in Guantanamo Bay, encouraging people across the country to refuse to speak with CSIS agents, or urging Muslim groups to end the odious practice of hosting the Mounties at Ramadan celebrations.
Indeed, this section of C-51 could also capture any form of civil disobedience with the perceived aim of “changing or unduly influencing a government in Canada by force or unlawful means.” This is also a Gandhi clause inasmuch as his concept of satyagraha, or soul-force, did exactly that, through mass acts of nonviolent direct action that challenged the British salt monopoly and overall colonial control of India. Also targetted are hackers, those who would interfere with “the global information infrastructure.” It is ironic that Anonymous, likely one of the targets of this bill, did in one afternoon last week what governments have never been able (or wanted) to do: shut down ISIS twitter and facebook feeds.
Furthermore, human rights campaigners concerned with ending the overseas abuses of Canadian mining companies, or those sailing a ship to bring medical supplies to Gaza, may fall under the clauses that covers “an activity that takes place in Canada and undermines the security of another state.” More specifically, this clause appears directed at the Boycott, Divestment, and Sanctions movement which seeks to end the illegal Israeli occupation of Palestinian lands. Notably, just last month, Canada and Israel signed a memorandum of understanding that addressed this very issue, committing to stop any criticism of Israel’s brutal human rights abuses.
Like its predecessor in 2001, C-51 takes pains to point out that “it does not include lawful advocacy, protest, dissent and artistic expression,” but such reassurance is meaningless when state security agencies have no concept of what “lawful” means. For example, CSIS and the RCMP were recently caught out playing an active role infiltrating and monitoring anti-pipeline groups. The agencies shared their findings with the oil industry and the National Energy Board, before whom many environmentalists and First Nations were set to testify regarding their concerns over the proposed Northern Gateway pipeline.
Freeing government agencies to share even more private, personal information will only result in further abuses of power. For example, anyone who calls 911 for feeling suicidal can forget about crossing the U.S. border. All such Canadian police information goes into a shared database with U.S. officials, who have stopped Canadians suffering from depression from entering the U.S. on at least four occasions.
Furthermore, the potential for misuse or unauthorized use of information shared between government agencies is ever-present, for nothing in the bill prevents the recipient of personal information from, “in accordance with the law, using that information, or further disclosing it to any person, for any purpose.” And while such information sharing has led to the torture of Canadians (for which no government official has ever been held accountable or charged), C-51 proposes that individuals misusing or improperly passing along personal information enjoy blanket immunity, for “No civil proceedings lie against any person for their disclosure in good faith of information under this Act.”
While the principle underlying this section is that “effective and responsible information sharing protects Canada and Canadians,” that was the exact language used by retired judge Frank Iacobucci when he defended the actions of those who created and then shared inflammatory and false accusations that led to the torture of Canadians Abdullah Almalki, Ahmad El Maati, and Muayyed Nureddin. (Indeed, Iacobucci believed such government individuals tried, in good faith, to “carry out conscientiously the duties and responsibilities of the institutions of which they were a part,” even though they were sending questions to Syrian and Egyptian torturers.)
Meanwhile, the free flow of information amongst a wider circle of agencies brings the Canada Revenue Agency into the picture with changes to the Excise Tax Act and the Customs Act. Despite the bureaucratese of this section, there is clear danger: under changes to the Income Tax Act, an official may provide to another government institution “taxpayer information, if there are reasonable grounds to suspect that the information would be relevant to” a national security investigation. In a climate dominated by the politically motivated targeting of certain charities, this means that someone who received a Canada Revenue tax receipt for contributing money to the recently banned humanitarian organization IRFAN might have a CSIS agent knocking on their door to ask questions. This will seriously affect mosques and NGOs that work in troubled hot spots, and create fear among potential donors.
Part of the danger here involves the fact that the government often holds inaccurate information without an individual’s knowledge or consent. For example, FINTRAC, Canada’s “financial intelligence” unit, holds over 165 million files with Canadians’ personal information. Among its extensive holdings are the agency’s Terrorist Property Reports (TPRs), which allege certain properties in or outside Canada are owned or controlled by terrorists. Almost 50% of those reports have been filed on the basis of a “possible match” to terrorist listings.
Disturbingly, according to a 2013 report from the Privacy Commissioner of Canada, “Where identity could not be confirmed, FINTRAC did not pursue further analysis; however, the information remained in FINTRAC’s database. The practice, by default, was to retain these reports regardless of whether or not there was knowledge, belief, or suspicion of terrorist affiliation.” The Privacy Commissioner found that FINTRAC continues to collect information that goes beyond its mandate, and refuses to destroy these extraneous files, thus posing “a significant risk to privacy by making accessible information which should never have been obtained.” In other words, a Muslim cleric who runs a rural summer camp – perhaps anonymously reported but never confirmed as a terrorist property – stays in a database that is shared with CBSA, CSIS, and the RCMP, with utterly predictable consequences for that individual as well as anyone who regularly attends his mosque.
NO FLY LIST
Canada has long had a no-fly list, the so-called Passenger Protect Program, but it did not arise out of a specific piece of legislation that was subject to Parliamentary debate. With C-51, the no-fly list officially becomes entrenched in law as The Secure Air Travel Act, with a legal infrastructure that inherits much of the same machinery that has undergirded the secret trial security certificate regime. Being included on the list is courtesy of the lowest standard of proof available (reasonable grounds to believe), and while this information will be shared with Canadian agencies, the Minister of Public Safety may also share this “with the government of a foreign state, an institution of such a government or an international organization.” This means the secret police of Egypt or Syria, for example, upon hearing “Ahmad in Canada” is now on the list, may use this national security suspicion to investigate, harass, detain, interrogate, and torture his family members in that country, perhaps as a means of punishing “Ahmad in Canada” for refusing to spy on his community for CSIS. This is in fact exactly what happened to the overseas relatives of numerous Egyptian-born security certificate detainees in Canada.
Appealing placement on the no-fly list is as futile an exercise as trying to defend oneself under security certificates. The process is largely secret and the judge may receive into evidence anything, “even if it is inadmissible in a court of law, and may base a decision on that evidence.” As with security certificate cases, someone in a no-fly case is no longer in a court of law, and a judge’s final decision may be based on anything, even if “a summary of that information or other evidence has not been provided to” the person on the no-fly list. The concerns originally submitted in 2007 by the National Council of Canadian Muslim’s predecessor organization continue to apply to the new legislation (see their report Too Guilty to Fly, Too Innocent to Charge?
In addition, while Bill C-51 empowers the government to take away passports, seize computers and documents, and prevent individuals from boarding airplanes, it also authorizes law-breaking and immunity for possibly illegal acts. Indeed, any act or omission required in enforcing the Act will not result in charges even if it “would otherwise constitute a contravention of this Act or its regulations.”
TERRORIST PEACE BONDS
These repressive measures, part of the 2001 Act, allow the government to arrest and detain someone without a warrant or charge when there are “reasonable grounds” to fear a terrorism offence “will” occur, with an option of release under conditions that may include house arrest, electronic monitoring, and more. Under C-51, the threshold for arrest has been lowered to “may”, as has the language used to describe the effect of a peace bond, which will go from “necessary” to prevent the offence to “likely” to prevent. The bond will last for up to 12 months, and any detainee who cannot or will not to enter into such an agreement, will face a similar amount of time in prison. Persons with previous terrorism convictions will face longer periods under peace bonds or in jail (up to 5 years). Similarly, such orders will continue to be made available against young people under the Youth Criminal Justice Act, imposing conditions on teenagers or jailing them for 30 days.
DISRUPTION, COURT-ORDERED TORTURE
Changes to the CSIS Act will allow the agency for the very first time to take on policing roles under which they are allowed to “take measures, within or outside Canada, to reduce the threat” of any act they have reasonable grounds to believe is a security risk. While they are allowed to do anything as long as it presumably complies with the Charter of Rights and Freedoms (a caution the agency regularly ignores to begin with), if they feel the need to rough someone up and violate their rights in the process, they can go ahead and play Jack Bauer from the U.S. torture glorification TV series, 24. Indeed, CSIS is being allowed here to undertake certain measures in a manner “contrary to other Canadian law” if they are “authorized to take them by a warrant.” In plain English, this opens the door to courts approving illegal acts.
The language of this section recalls the bone-chilling justification of torture by former White House counsel John Yoo (who advised “cruel, inhuman, or degrading” treatment is not torture, and the threshold for something to be deemed torture must be “serious physical injury, such as organ failure, impairment of bodily function, or even death”). Under C-51, CSIS is provided a lot of room for cruel, inhuman and degrading treatment when they are advised that in the process of their terror plot disruption, they cannot intentionally or through negligence cause “death or bodily harm to an individual,” a very vague statement when intentionality is factored in. (Bodily harm is defined as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.”) CSIS cannot be held responsible, therefore, if someone in their custody “accidentally” falls out of a helicopter or 6th floor window, as often happens in police states.
In addition, CSIS agents cannot “willfully attempt in any manner to obstruct, pervert, or defeat the course of justice” (which implies they can do these acts as long as they are not willful in doing so). Nor can they “violate the sexual integrity of an individual” (even though that’s already standard practice at police stations from Northern BC to Abu Ghraib). An important question arises herein: if the Canadian government actually feels the need to spell out such a prohibition, what does it know about illicit CSIS practices behind closed doors that would lead it to include such bold wording?
CSIS is also authorized to violate the national sovereignty of other nations and commit illegal acts abroad, with C-51 noting that “without regard to any other law, including that of any foreign state, a judge may, in a warrant issued [under these circumstances], authorize the measures specified in it to be taken outside Canada.” Such measures include breaking and entering, theft of documents “or any other thing,” installation, maintenance or removal “of any thing” (i.e., eavesdropping devices), and “any other thing that is reasonably necessary to take those measures.”
Those who believe the courts of Canada might be wary of approving such warrants may wish to recall that, as the Globe and Mail reported, “between 1993 and 2003, CSIS filed warrant applications at a rate of between 200 and 300 a year for a total of 2,544 applications [a less than 1% rejection rate]. Only 18 of these requests were rejected by the Federal Court.”
MORE SECRET CLOSED-DOOR HEARINGS
As if things were not difficult enough for those detained under secret hearing security certificates, even the questionable “improvement” made to what Amnesty International has called a fundamentally flawed and unfair process – the introduction of security-cleared “special advocates” who can see and argue some of the case behind closed doors – is targeted under C-51. Also further undermined is the ability of any refugee who has been declared inadmissible to Canada to properly meet the alleged case against them.
In a classic case of stacking the deck, C-51 proposes that when a security certificate is first signed, the Minister may now file with the court evidence “that is relevant to the ground of inadmissibility stated in the certificate.” Translated, this means that the whole case file will NOT be included, but only that which, in the already biased Minister’s opinion, is “relevant,” thereby excluding information which may exonerate the detainee. It is just such exonerating information that special advocates have been able to uncover in a couple of these controversial cases, and ever since, every effort has been made to further weaken the already limited powers of the advocates. An additional clause would allow the Minister to be exempted even from sharing with the special advocate the entirety of the now limited file that was provided in secret to the judge.
In addition, the government will win the right to object at any stage of the process when something that was formerly secret is considered safe enough to share with the detainee. These appeals will suspend proceedings and seriously bog down the already extensive process, lengthening the amount of time an individual must remain behind bars or under house arrest. That same right of immediate and unquestioned government appeal of disclosure decisions (without even requiring what is known as “an application for leave”) will also apply to refugees at Immigration Appeal Division hearings, detention reviews, admissibility hearings, and judicial reviews.
WHAT TO DO?
In the short term, groups are actively working to testify before Parliamentary hearings, and while this will be an important public education effort, the bill is likely to pass with Conservative and Liberal support. Hopefully, debate around C-51 will go beyond demands for state security oversight (long called for by the O’Connor Inquiry, which condemned Canadian complicity in the torture of Maher Arar) to address a much broader concern: Canada’s state security agencies already have a lengthy track record of violating the law, lying to the Courts, misleading the public and Parliament, and refusing the recommendations of the extremely limited review committees which currently investigate their “excesses.”
Short of the the abolition of CSIS and its brother agencies (a worthy goal, calls for which would possibly violate C-51), a much firmer hand needs to be applied to rein them in, throw open their “mandates” to public discussion and scrutiny, and invite a national discussion about the REAL threats to democracy and human rights posed by government and corporations.
Part of such a discussion could begin with a serious examination of our own language in discussing these issues, one that would help us better frame our relationship to the state and point to future paths of resistance. As Noam Chomsky declared in a 1971 discussion with French philosopher Michel Foucault, “We should stop allowing illegitimate powers to define what is legal.…the state has the power to enforce a certain concept of what is legal, but power doesn't imply justice or even correctness…
“For example, in the United States, the state defines it as civil disobedience to, let’s say, derail an ammunition train that’s going to Vietnam, and the state is wrong in defining that as civil disobedience, because it’s legal and proper and should be done. It’s proper to carry out actions that will prevent the criminal acts of the state, just as it is proper to violate a traffic ordinance in order to prevent a murder…. A good deal of what the state authorities define as civil disobedience is not really civil disobedience: in fact, it’s legal, obligatory behaviour in violation of the commands of the state, which may or may not be legal commands. … Just because the criminal happens to call your action illegal when you try to stop him, it doesn't mean it is illegal.”
Following 9/11/2001, activists huddled in groups and asked themselves: what’s next? The best answer I heard came from the now 95-year-old pacifist Frank Showler of Toronto, who reminded one church group that all through the Bible, there is a pretty consistent message that we can all take heart from: Be not afraid. And so perhaps a very good response to Bill C-51 is to declare that its potential passage will not deter, censor us, or make us back down: we will unashamedly continue our work for justice, our solidarity with those unjustly tageted, and our loving resistance to the criminal actions of this government and its agencies.