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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Most Recent Blog Postings
Thursday
Sep082016

Quick Knee Jerk List of Pros/Cons on Government's new national security Green Paper

So, it's the first week of the new semester. No. time. to. write. But on a first read of the government’s national security Green Paper, released today:

Pros: 1. It exists (mean this honestly, not cynically -- we've never actually had such a thing in this area before as best I can recall); 2. It has decent (though not perfect) scope. For instance, pleased we are at least discussing lawful access. Very pleased we are discussing intelligence to evidence (although I find some of the hypotheticals implausible and rather slanted to government perspectives); 3. It provides more explanation of C-51 changes than we ever had during the 2015 debate. 4. A lot of hard work probably went into it and there are parts that are quite good.

Cons: 1. The government is doubling-down on some problematic and novel legal theories advanced by the last government (e.g., averting to CSIS threat reduction warrants as if were a variant of search warrants – apples and orange comparison). 2. Inserting an even more aggressive view on the power of the information sharing law than offered during enactment (e.g., the idea that the information sharing act constitutes an exception to -- and, in effect trumps -- the Privacy Act.  Very hard to see how that is, given the language of s.5). 3. Sugar-coating some powers to make them seem benign, by understating their reach (e.g., the speech offence; the examples of CSIS powers).  Put another way, the law may allow the government to drive 200 km/h on the wrong side of the road, but the Green Paper offers discussion of the government choosing to drive at a sensible 90 km/h in the correct lane; 4. Similarly, offering policy construals of some of Bill C-51’s doubtful language that diminishes exactly how contorted some of the actual legal provisions are (and policy comes and goes with governments); 4. Some serious omissions (for instance, whither discussion of Communications Security Establishment collection of Canadian private communication and metadata under Mandate A and B? Has the campaign promise to address CSE activities evaporated?  Why no clear question on whether the existing expert review bodies should be recrafted as a single entity?)

Worries: The discussion paper reflects positions that are “baked in” at the bureaucratic level that will be unmoveable via a consultation. My hopes: this will be a real chance to get it right, including avoiding a number of false security/rights clashes created by C-51 that are unnecessary to accomplish the stated security objective.

Friday
Aug262016

Killing Citizens: Core Legal Dilemmas in Targeted Killing of Cdn Foreign Terrorist Fighters 

My article with Capt. (Ret.) Leah West Sherriff on Canadian and international law and targeted killing is now accepted and forthcoming, Canadian Yearbook of International Law. We have posted the current version here. The abstract is as follows:

For the first time since the introduction of the Canadian Charter of Rights and Freedoms, Canada is an armed conflict with an insurgency that has actively recruited Canadians and directed them to use or promote violence against Canada. In the result, the Canadian government may ask its soldiers to target and kill fellow Canadians, or to assist allies in doing so. This situation raises a host of novel legal issues, including the question of “targeted killing” confronted by the United Kingdom in 2015 when it directed military force against several Britons believed to plotting a terrorist attack. That incident sparked a report from the British Parliament highlighting legal dilemmas. This article does the same for Canada by focusing on the legal implications surrounding a targeted killing by the Canadian government of a Canadian citizen. It examines how a Canadian policy of targeted killing would oblige Canada to make choices on many weighty legal matters. First, it discusses the Canadian public law rules that apply when the Canadian Armed Forces deploy in armed conflicts overseas. It then analyzes the international laws governing military force, scrutinized from the perspective of use of force (jus ad bellum) and the law of armed conflict (jus in bello). It also examines an alternative body of international law: that governing peacetime uses of lethal force. The article concludes by weaving together these areas of law into a single set of legal questions that would necessarily need to be addressed prior to a targeted killing of a Canadian.

Friday
Aug122016

Learning Lessons from the Driver Terror Matter

Between them, the Nuttall/Korody case and the Driver take-down raise tremendous questions about Canadian anti-terror strategies. And there is a tremendous temptation to rush to judgment, which can be perilous. On the other hand, there should be judgment and it should be expeditious.

A. Are we a learning society?

Canada is bad at drawing public lessons from past incidents. Lessons, when articulated and even when heeded (sometimes), usually follow time-consuming, expensive, protracted and often delayed (and in the Air India bombing, woefully delayed) commissions of inquiry. Even now, close to two years after the October 2014 attacks, we know very little. The focus of accounting there was on Parliament Hill's security structure, not the broader security and intelligence landscape.

All of this opaqueness can be contrasted with Australia’s detailed seventy-five-page report released shortly after a December 2014 terrorist attack in Sydney.

B. The Risk of Insta-Conclusions

An early judgment from the Driver case might be that we got lucky. The peace bond failed. The tip-off came from the FBI, not a domestic service.  And the intervention from authorities came when the bombing plot was on the cusp of execution. This is too Jack Bauer a plot line for comfort.

Another early judgment might be that authorities got it wrong. The court got it wrong. The people who concluded Driver was not violent got it wrong. The insta-judgment may be that Driver was always dangerous. The conditions should have been tightened, not relaxed. Surveillance should have been unrelenting.

Those are the narratives that risk becoming rooted, which is fine if they are true. But they may not be.

1. Was everyone wrong?

For instance, it could be the case that the authorities were right: Driver was not at high risk of violence when the peace bond was issued. Instead, Driver made the move from radicalized to radicalized-to-violence after the peace bond -- and perhaps (as colleagues Dawson and Amarasingam have suggested) because it unrooted him from the few stabilizing elements in his life, however unpalatable those were. Psychology is not physics. Things change, they are not immutable.

If this is true, it leads to very different policy conclusions than the "everyone was wrong" thesis. Not least, it reaffirms the need to get to grips with counter violent extremism programming and develop best practices in that area.

2. Surveillance on steroids?

There will be very close consideration also of whether the authorities should have maintained more intrusive surveillance. Those will be compelling calls. And more intrusive surveillance could have been facilitated by a more intrusive peace bond.

The conditions imposed, for instance, on Mr. Harkat in an (analogous) security certificate were, at one time: fitting of an electronic monitoring bracelet, to be worn at all times; a strict curfew, with solo departures from his house precluded and accompanied departures only on CBSA approval; strict geographic limits on his ventures outside his house; no visitors other than those listed in the order; no communication with anyone supporting “violent Jihad”; consent to interception by CBSA of all communications; consent to CBSA searches of his house and possessions; surrender of travel documents; and, a bar on possessing weapons.

These conditions seem of the sort that would have forestalled a Driver-type plot.

But there is the difficulty of tailoring conditions to actual risk -- with hindsight certainly, security certificate conditions were overkill, and also deeply controversial.

And more materially (literally), there is cost. By the end of the last decade, the government was budgeting $59 million for two-year periods on security certificates – over $11 million per person on a security certificate. This included more than surveillance costs -- it also included legal costs for the fraught legal contest. But even if you limit these costs to CBSA, CSIS and CIC funding, it still amounts to $3 million per person per year in support of the security certificate.

In February 2016, the government was aware of more than 180 individuals with Canadian connections who were abroad and suspected of engaging in terrorism related activities. One hundred of these were believed to be in Iraq and Syria. Another 60 had returned home. Earlier, in October 2014, the RCMP was reportedly tracking 90 individuals who intended to travel, or had returned from overseas, although it is not clear how many of these were affiliated with Daesh. And these numbers don't include the terror fans who are prepared to be think globally, act locally.

For the sake of argument, let us assume that we impose peace bonds on only 50% of 100 of these potentially dangerous people -- some proportion of the others are prosecuted (even more expensive), die overseas, never return or return and a decision is made that they are not dangerous. (And some of the latter would probably be surveilled anyway, even if no other legal step is taken against them).

Now, given Driver, we decide to apply security certificate-style surveillance to these 50 people. If we assume that the agency costs noted above cover surveillance, that works out to $150 million dollars a year. In 2016-2017, the RCMP's planned budget for all federal major criminal investigations into "serious and organized crime to reduce its impact on Canada and Canadian interests; financial crime to maintain the integrity of the Canadian economy, government and financial systems; and national security threats to support and protect Canada’s national security" is $294 million. So we are talking about adding the equivalent of 1/2 of that total budget in the form of terror-peace bond surveillance costs alone. 

I am not saying this is beyond Canada's means -- the RCMP has a huge budget and CSIS has a big one. And I am not disputing that the $3 million/year cost might be bloated and that policing can be very inefficient. But it is not so bloated and inefficient that there are no real costs at issue. And real costs require real prioritization. 

Keep in mind, meanwhile, that the government has pledged $35 million over five years on counter-violent extremism. This looks like chump change against the costs of persistent surveillance.

So what should our priorities be? I spend more time than I care to admit trying to understand this area of law and policy. But I am not comfortable arriving at a definitive conclusion on the data we have before us.

C. Learning to Learn Lessons Learned

So I circle back to my original point: If this were Australia, we might have a prompt, public lessons-learned report to help us decide and justify, based on facts and not rooted insta-judgment.

This is one practice well worth emulating.