The Book

 

 

 

 

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Monday
Sep112017

Government Proposals for Reforming National Security Criminal and Civil Trials

In August, the government circulated a targetted consultation document propoing a series of changes to the way in which national security secrets are kept in criminal and civil proceedings. This is very inside-baseball stuff, but essentially the government is responding to long-standing concerns about "intelligence-to-evidence", the thorniest matter in Canadian national security law.

The criminal law changes would reform the Canada Evidence Act, s.38 process to, among other things, open the door to provincial superior court trial judges, allowing them to participate more fully in it. (Section 38 allows the government to block disclosure of national security secrets in legal proceedings. This preserves sensitive information from exposure, but there is a trade-off: the government cannot then use these same secrets in the legal proceeding to defend or prosecute a case.) The civil law proposals echo these Canada Evidence Act changes, but then also propose "closed material proceedings" (CMP). The latter is a novel proposal. Basically, CMP would allow secret trials in civil cases: the government could use secrets in closed proceedings on the merits of the case, in a closed hearing from which the public and the other litigants are excluded.

Kent Roach and I have prepared a brief response to these proposals, generally supporting the criminal law reforms, but also urging that the need for reform here is as much operational as legal. We also express doubts about the closed material proceedings proposal.  Our paper is posted here. The abstract for that paper is as follows:

This paper responds to the government’s proposals for redressing the “intelligence-to-evidence” (I2E) dilemma in national security judicial proceedings, discussed in its targeted consultation document distributed in August 2017. The paper urges the need for not just law reform, but also operational reform in terms of how police and the Canadian Security Intelligence Service (CSIS) manage their "parallel" national security investigations. We renew our doubts about the parallel investigation and the dangers it poses for national security. The paper supports the government's proposed changes to the Canada Evidence Act, s.38 national security confidentiality procedures for criminal trials. In particular, it agrees that trial court judges should be able to make and modify s.38 non-disclosure orders. It urges, however, that Parliament codify the Stinchcombe disclosure rules, and their application to national security proceedings, and not simply double-down by codifying the O'Connor "third party" rule -- something that may reinforce parallel police/CSIS investigations. The paper expresses considerable skepticism for the "closed material proceeding" (CMP) proposal in civil trials implicating national security proceedings. These would produce, in essence, secret civil trials. We suspect secret civil trials would be challenged on division of power grounds, under s.96 of the Constitution Act 1867 and even under the Charter and the open court principle and, if it remains applicable, the Canadian Bill of Rights. More immediately, the CMP proposal seems likely to make a bill responding to neglected criminal law I2E issues much more controversial than it needs to be.

Tuesday
Jul112017

A Once & Final Parsing of the Legal Context for the Khadr Settlement

I have a few moments this morning for a “once more unto the breach” post on the Khadr settlement.  Please read my prior one, because I will try to make a few other points in this one, given how the discussion has evolved.  (This will be my last foray, hopefully for a long time, as I need to finish writing my book for my anticipated audience of 4.)

Disclosure Statement

In the interest of disclosure, I provided minor assistance to Khadr’s US JAG defence lawyer a decade ago, and was co-counsel in the amicus brief by law professors and parliamentarians in the US Supreme Court case of Boumediene, which had a Khadr angle. I also supervised law student directed research projects on the Khadr matter.

These were small involvements. I don't raise them because of some excessive sense of importance, but because people will want to know where I come from.

 

I am mad as hell and so should you be

I may be mad for different reasons than you are, but here are my reasons:

1. As an excellent team of law students discussed here in detail, Khadr could have been (and, in my view, should have been) Canada’s first modern terrorism case. By summer 2002, Canada had a whole raft of new, shiny, extraterritorial terror offences. They were available, and would not (all) have required adjudicating who did what in the 2002 firefight: no need to debate grenades. Participating with Al Qaeda would have been enough, and the evidence of that would have been straightforward and required no extreme detention, maltreatment, or doubtful confession.  Nor would we have had to resort to made-up retroactive crimes, like in the US military commission process, or a patently flawed commission structure.  We could have used real courts, with real judges, adjudicating real crimes, using real evidence. 

  • Further addendum: no, the fact that Khadr was in the midst of an armed conflict would not have immunized him. Under the laws of armed conflict, he would have been an unprivileged belligerent, disentitled to what is known as “combatant’s immunity”.  Basically, he was a civilian who fought.  That can be treated as unlawful (although is not in itself a war crime), whether done in Afghanistan for AQ or in Syria for ISIS.
  • As a prosecutor, I would not have sought treason charges for one reason in particular: our treason crime is so antiquated that it hasn’t been used since the 1950s, and would be really complicated.  And I wouldn’t need it, because of the terror charges. (In recent cases, we have not used treason.  See Ribic.)

2. The youth offender issue was one our system could grapple with, and often does.  This didn’t need to be a overstated debate about a “child soldier”.  And any other extenuating or mitigating issues could have been part of sentencing.

3. It was past negligent for Canada to not only be the only Western country that left one of its nationals at Guantanamo, but then send CSIS [and DFAIT] interrogators to interrogate/inteview Khadr (softened up by the Americans through maltreatment that was probably torture, and if not torture, the equally unlawful cruel, inhuman or degrading treatment). 

4. And then to top it off: Sharing the fruits of that interrogation for use in a military commission system the United States Supreme Court itself concluded was unlawful, compounded the Canadian delinquency.  It also meant that Canada was contributorily tied to the whole Guantanamo mess, running up the meter on Canada’s moral and legal culpability.

5. And then to have the gall to claim that we had no choice, because our legal system could not have dealt with Khadr (which, if true, will be tremendously happy news to Canadians now fighting for ISIS.  Fortunately, it was never true). The other doubtful argument: the Americans would be angry at us if we asked for Khadr back.  By the end of this saga, the Americans really wanted us to take Khadr back.  There are even Hilary Clinton emails.

In sum, the Government of Canada screwed this up. Massively.  And now a criminal trial is impossible because of tainted evidence, maltreatment, double jeopardy (from the US process that may, ironically, end up overturned on appeal in DC because of all the retroactive crimes).  Nor would a trial serve any purpose: even with a conviction, hard time in Guantanamo (in pre-trial detention, no less) exceeds anything a Canadian court would hand out.

 

What about Khadr’s lawsuit: Shouldn’t the government have fought it?

It did. Since 2004. Here’s the Federal Court docket. It got to the point that the government’s legal tactics were costing it. For instance, in resisting Khadr’s amendment of his statement of claim, the government skated past the point of credibility. And here’s what the judge ordered in 2014:

The Plaintiff [Khadr] was successful on nearly every aspect of this motion. Only a handful of the Defendant’s [Canada’s] myriad arguments had any merit. By opposing this motion, the Defendant considerably increased the costs and delay of this complex action, which has occupied this Court for ten years now. Consequently, I exercise my discretion to award costs in favour of the Plaintiff, pursuant to Rules 400 and 401

In the end, Khadr was suing Canada for a lot of things, not just the Charter breaches everyone is talking about:

$20,000,000 in compensatory damages alleging negligence, negligent investigation, conspiracy with the United States in the arbitrary detention, torture, cruel, inhuman and degrading treatment, false imprisonment, intentional infliction of mental distress and assault and battery of the Plaintiff, failure to comply with domestic and international obligations with regard to treatment while confined, and misfeasance in public office. In the alternative, he sought an award of damages pursuant to s 24(1) of the Charter and a declaration that the Defendant violated the Plaintiff’s ss 7, 8, 9, 10, 12 and 15 Charter rights.

Would he have won? On the Charter breaches, the Supreme Court of Canada had already concluded (twice) that Canada had breached Khadr’s Charter s.7 rights through the CSIS/DFAIT interrogations and sharing of resulting information with the Americans.  The issue of what damages should be paid for that had not been decided – it was not before the Supreme Court and that was what the Federal Court lawsuit was about.  But the existence of the constitutional breach was probably governed by “issue estoppel” – it had already been decided by the Supreme Court, and so that legal question was decided (although, per its habit, the government would have likely contested this, racking up more costs).  

I don’t underestimate the complexities of the Ward case and its standard for damages in Charter cases. But basically, the Khadr case was probably mostly just a question of quantifying the damages.

On the other causes of action, well, there was a good chance for some of them -- although suing government for negligence can be tough.  And some of them would have required some really interesting (and uncomfortable evidence).  Which brings me to…

 

But no one really can say how litigation should unfold.  So perhaps the government should have fought it.  Why not?

Well, if I had been advising the government, I would have urged them to settle.  Here’s why.  First, don’t underestimate the cost to the taxpayer of fighting: 

1. Maybe if you do not care about sharp legal practice, you can wear the plaintiff down through stalling tactics. Let injustice be done, though the sky fall! But sooner or later, you will end up in front of a judge, probably now very irritated and happy to assess costs against you.

2. You won’t win everything in this case. You are almost certain to pay some damages, and quite possibly a lot of damages. 

3. Either way, if you fight a trial, here’s what will happen:

  • Because of what he needs to prove for the negligence and misfeasance causes of action especially, plaintiff will call the former Prime Ministers Chrétien, Martin and Harper, and all of their former foreign affairs and public safety ministers, CSIS, DFAIT and RCMP officials (former and present) and any number of other officials.
  • Former officials will have their own reputational exposure (at minimum), and will likely want independent legal advice, indemnified by the government of Canada.
  • Departments will divert resources, as they did during the commissions of inquiry of the last decade. There will be oodles of lawyers and staff time on this – do not underestimate the resources poured into this.
  • Plaintiff will be seeking confidential information, on top of what is on the public record. Some of that will raise national security interests. It will need to be fought, probably in Canada Evidence Act s.38 proceedings. Those are long and arduous and costly.  See above about staff resourcing.
  • The trial will be several weeks long, and the costs skyrocket. (There is a reason most civil cases settle).

Put another way, this will cost a bundle. And that’s not including resources expended by the court itself.  And that’s assuming in the end the government isn’t stuck with the plaintiff’s legal costs (which, as noted, was already starting to happen).

The Arar commission cost $20 million. Commissions and courts are different, but the Khadr case has been a longer process.  All costs in, I suspect a full trial in the Khadr matter would have been close to Arar number – certainly more than $10 million.  The government had already spent $5 million – and the process looks like it had not yet reached the full discovery process (let alone trial), or resolved the section 38 issues.

So I think an all-in number in the $30-40 million range, including damages, costs to the court, etc was very possible, even likely, and maybe even low-balling.

But then there are the more intangible (but perhaps even more pressing) costs:

  • Some of these section 38 proceedings would probably mean some information would come out the government does not want out for plausible security reasons (in this case, outweighed by the fair trial interest). You may not care, but the security services do, passionately.
  • Since the lawsuit (by definition) implicates the Americans, they will have an interest and perhaps reaction, especially if some of their confidential information was potentially in play. This is an unpredictable US administration.  This trial pokes a hornet’s nest.
  • The last thing the security services need is for graphic exposure concerning misdeeds of the prior decade.  It diverts resources, and diminishes morale and public confidence and makes it very difficult to do their jobs if the public believes that they are rogue operators. (Losing a misfeasance claim would be disastrous; we are getting into intentional malice territory there.)
 

If I were the security services, I would have wanted this case settled, badly. 

In sum: You can still wish there had been trial for a lot of different reasons. Maybe you’d like all this to have come out in open court – certainly, I would have found it interesting as a national security law academic.  Maybe it would have been good to expose the government malfeasance.  Maybe the responsible should be exposed, and heads put on spikes.  Maybe all that would serve as a cautionary tale for security services, on the (unlikely) assumption they would do a repeat in the same manner.  Maybe you don’t care about any of the reasons, but do care about the symbolism.

That is your prerogative. But none of your reasons for supporting a full civil trial in Khadr should be “because it would have been cheaper” or “because it would be a good way to support the security services”.

But was this really worth the $10.5M, and wasn't this too secretive?

I wasn't part of the process, but a couple of thoughts: First, a settlement depends on what you negotiate.  The negotiations are confidential, and so too (often) is the settlement.  (Public settlements advertise to all future plaintiffs what the going rate is, leading to a bidding war).

Why $10.5 million? Probably because the (public) Arar matter set that as the benchmark for the cost of participating, however indirectly, in maltreatment with a foreign government.  Legally, I don’t think it make a difference that Mr Arar was picked up and rendered from JFK airport, and Khadr from the battlefields of Afghanistan.  I don't see how their relative virtues would affect the lawsuit.  An “eye for an eye” is ancient Sumerian law, not Canadian.

Maybe the government should have negotiated a better deal – $10.5M is several million more than wrongful convictees have typically received.  Maybe the government should have conceded liability and gone to court on damages.  Personally, I am not sure that would have obviated all (or even many) of the problems with going to trial, noted above, since the conduct of those same officials would have been what compounded damages. 

But bottom line: the current government made a judgment call, burdened with the conduct of 3 prior governments and lingering legacy cases that continue to cast a shadow over the security services. 

Perhaps there were other more partisan political reasons for settling.  This is not my area. I leave it to others to discern the partisan political upside of this settlement for the Trudeau government.  It is not immediately apparent to me.

 

What about Canada paying Ms Speer and Mr Morris?

I certainly know what I hope for on this question, as a human being.

But a couple of lawyerly points:

As a principle, the Canadian government has no legal exposure for Khadr’s (alleged) conduct in the 2002 firefight. Canada is not responsible for the conduct of its private citizens overseas – if that were a principle, I imagine there would be many fewer passports issued.

Whether Khadr is himself liable for the 2002 firefight is a question that has never been adjudicated in an adversarial process in front of a real court, applying real evidence.  Basically, we have no idea what happened in 2002.  Anyone with clarion vision on this point is exhibiting motivated fact-interpretation.

As I understand it, the Utah default judgment (in which Khadr’s side did not appear) was built on the Guantanamo record.  Enforcing that judgment in Canada will be hard, although perhaps aspects of it can be teased away from the tainted Guantanamo process.

(Unfortunately, a new “clean” civil proceeding is likely precluded by expiry of limitations periods. Too bad Khadr wasn't repatriated sooner.)

If there can be enforcement, whether there are assets to be seized is a question beyond my knowledge.  (The negotiated settlement may be structured so that the money is paid out in increments, not as a lump sum. This is not my area, at all, so I defer to others on the civil procedure and civil action components of this case.)

Finally, whether the Speer and Morris proceeding itself will settle remains an open question.  It may be a good way to judge character.

 

Take home:

So to sum up: there are many villains and few heroes in this saga. There are degrees of victimization, and there are stages in it.  There is too much “eye for an eye”, and too little “rule of law”.  None of this had to be this way.  Justice could have been served.  Be angry at your government, but make sure you are angry at them for all the right reasons.

It is possible to believe:

  • Khadr is not a folk hero and should have been held to account and he should not have been maltreated and railroaded in a patently flawed process.
  • Khadr should have been repatriated much earlier and held to account.
  • Khadr was wronged and was in the wrong, with the degree of that error something that deserved careful, evidence-based inquiry.
  • That settling this case was smart for financial and security reasons, and that others may deserve compensation.

 

Addendum

I want to end with a nod to Dennis Edney and Nate Whitling, Khadr’s chief lawyers on the criminal side (who will not agree with all I have said here). They represented the country’s most unpopular client for almost two decades, without any real prospect of compensation and in the face of public vitriol.  If any of us are ever targeted by governments willing to toss centuries of due process into the dumpster, we would be fortunate to be represented by two such dogged advocates.

And while I am less familiar with the civil side, I have reason to believe that similar credit is owed to John Kingman Phillips.  And there are any number others that I risk damning by not mentioning, for which I apologize. These would include many of the US JAG defense lawyers who I knew in person or by reputation, and who stand out as defending fidelity to the rule of law.

Friday
Jul072017

Twelve Points about the Khadr Saga

I have been buried in a book project, and trying to stay away from 2017. But against my better judgment, I thought I'd take a moment to distill a few thoughts on the Omar Khadr damages settlement. As most people likely know, Omar Khadr -- the boy who was captured in a firefight in Afghanistan and grew to a man in detention at the United States' infamous Guantanamo Bay prison -- has been paid $10.5 million by the Canadian government.

This is compensation for the Canadian govenments own (mis)conduct in that matter faced with a lawsuit for a much larger amount, not some sort of holiday present.  But that fact is lost on social media.

My colleague Audrey Macklin has an excellent piece in the Globe responding to the waves of outrage -- and especially the wave of outrage from Jason Kenney. (I am sure Audrey's mailbox is full of hate mail in consequence -- mine certainly was when Audrey and I and others worked with students a decade ago to help Khadr's then-military lawyer, Lt Cmdr Bill Kuebler, navigate the Canadian legal scene. Some of those students went on to produce some excellent analysis, noted below. Tragically, Bill passed away two years ago, a young man and father and victim of the disturbing cancer cluster among those who worked at the Guantanamo court complex).

But I offer a few additional thoughts to Audrey's.

First, unlike others caught in acts of tacit complicity with maltreatment by the Canadian government, Omar Khadr is not a blameless victim. He was an unprivileged belligerent when captured in 2002 in what was, by then, a non-international armed conflict between the new Afghan government and its allies and the Taliban and remnant AQ. Being an unprivileged belligerent is not, itself, a war crime -- that is reserved for more serious conduct.  But nor does an unprivileged belligerent enjoy combatant's immunity: he or she can be held accountable for their conduct.

Second, Omar Khadr was prosecuted at Guantanamo after being mistreated, in a patently delinquent process for, in some instances, crimes made up after his conduct (and thus applied retroactively).  Put another way, the United States took a clean case and screwed it up. (Being a child soldier is not and never has been an absolute bar to prosecution for crimes.  But it does matter and the US completely ignored that as well.)

Third, along the way, for transparently political reasons, the Chrétien, Martin and Harper governments refused to seek Khadr's repatriation.  And the Harper government in particular made an art of this refusal, claiming falsely Khadr could not be prosecuted in Canada. My students wrote a 150 page paper laying out how this was wrong (when they presented that brief before a parliamentary committee certain Conservative MPs derided them, just because). The Obama administration would have been happy to be rid of Khadr.

Four, but still the government stuck to its guns, and was slapped with two Supreme Court and several lower court holdings collectively finding that the government had violated its obligations -- including under the Charter -- in using Khadr's detention in a system violating international law as an interrogation opportunity.

Five, that meant that the government now had its own legal exposure for, essentially, a form of complicity, as it did in other cases and still does for still others before the courts.

Six, the government will eventually lose such cases. For one thing, as with Arar, Almalki, Elmaati, Nureddin and (likely in the future) Abdelrazik, there were ample court or commission of inquiry findings setting out its wrongful conduct in graphic detail. The government can (and often has) engaged in procedural trench warfare in court to try to stuff Pandora back into her box -- but it takes a particularly unedifying government to dispute a meritorious case with endless legal chicanery. Plus, the ultimate legal costs will likely exceed any settlement.

Seven, even where a government case has merit, the evidence of that merit may be clothed in secrecy, leading to a form of gray mail: you cannot prove the merit.  And whether your case has merit or not, it is usually not a great idea to allow the plaintiff's lawyer to get a bunch of senior government and security agency officials on the stand in open court and rip them to shreds.

Eight, and so that is why it is a very smart idea to settle cases like Omar Khadr's.

Nine, but that is not to say, again, that Khadr was a blameless victim. Whatever may have happened in that 2002 firefight, he was an obvious unprivileged belligerent. There is now no prospect of a Canadian prosecution -- the record is likely irremediably tainted by the maltreatment in Guantanamo, a prison that has become the world's largest poison pill to justice.  (And that sets aside the interesting double jeopardy issue.)

Ten, nor would prosecution now meet any of the purposes for which the criminal law serves.

But, eleven, when someone hurts another person, tort law is available to compensate for injury. Put another way, it is perfectly reasonable, in my view, that there be a civil suit in this case. I know nothing more than I have read in the media about its particulars, but the issue with the lawsuit brought by Tabatha Speer and Layne Morris may be that the default Utah judgment for $134M is also irredeemably tainted by events at Guantanamo, including the so-called confession.  What happened in that 2002 firefight has never been adjudicated in a proper adversarial process in front of a real court using real rules of evidence.

Twelve, that will make enforcing the judgment in Canada difficult.  And it may now be too late for a proper action, given limitations periods. (Although maybe not -- limitations periods and rules differ).

But bottom line: the lesson learned, once again, is that taking off the gloves and playing footsie with some basic legal principles has blowback.

The interests of justice would have been much better served had Khadr been repatriated earlier from Guantanamo.  I wonder why that never happened?