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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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Thursday
Aug112016

Aaron Driver Matter: Questions awaiting Answers

[Upate: We have prepared two pieces outlining our post-RCMP press conference questions on this matter in the Globe and National Post.]

Yesterday, Aaron Driver was killed during a police anti-terror operation in southern Ontario. RCMP are expected to provide more details today, but early media reports suggest that bombs were involved. See Stewart Bell's Post reporting here. There are now also several overviews of Driver's history (see, e.g., the Globe story here) -- he was well known to police. Most notably, he was subject to an anti-terror peace bond, a mechanism that allows intermediate constraints on liberty on evidence short of what is required to prove an outright terrorism offence. That peace bond was sparked by Driver's online expression of pro-Daesh views and support.

It is a recurring truth that every terrorism incident tends to affirm each person's prior policy preferences. Those who wish tighter laws see them as justifications for tighter laws. (Or in Donald Trump's case, torture). Those who prefer softer forms of anti-terrorism see every incident as a failure to apply properly that approach. Evidence in support of such different positions is often a secondary consideration.

I am vulnerable to that tendency as well, and strive to counter it by self-imposed socratic probing of my own reactions. And so here are some of the questions to which I need answers in order to gauge the law and policy implications of this latest event.

As I write this, I am also cognizant that this is a very human case -- there was loss of life, and by all accounts, there could have been even graver loss of life. Both of those things needs to always be in our minds.

1. Did the peace bond work or did it fail?

For a more detailed account of peace bonds and how they work, see here.

A hasty assumption may be that the peace bond here failed. After all, if the reporting is correct, Driver was well on his way to building a bomb (and may have done so), despite being subject to peace bond limitations.

The peace bond "failed" argument may come in several forms.

a) Prison Uber Alles Theory

First, there will be those who think Driver should have been outright incarcerated a long time ago.  And indeed, when anti-terror peace bonds were created in 2001, they were derided as too weak for real terrorists, and critiqued as potentially too strong for false positives -- that is, innocent persons swept into their embrace by the very low burden of proof on government. Peace bonds are vulnerable to what Kent Roach and I describe as the "Goldilocks" problem.

Incarceration depends, however, on a crime. And our terrorism criminal law already sets the tripwire for terrorism crime very far from actual acts of violence. (None of the two dozen or so persons in prison for post-9/11 terrorism crimes got further than plotting before they were charged and convicted).

So does that mean that we should set the tripwire even further back? In essence, bill C-51 did that by creating a new speech crime -- had it been in force at the time, perhaps it might have reached Driver's speech conduct.

Of course, broadening the sweep of criminal law means that more people will go to jail for ideas that would never, left alone, have resulted in violence -- the terrorist fanclub is many multiples bigger than the terrorist cadre.

There will be those who take no discomfort in the idea of people imprisoned for their hateful thoughts. Personally, I can think of nothing more counterproductive from both a civil liberties and security perspective. The civil liberties implications of imprisoning people for opinions should be obvious. As for security: past practice suggests that putting a radicalized person in prison is a good way of ensuring that person emerge after there sentence radicalized and violent. That seems to be the pattern in recent French terrorist incidents, where imprisonment served as a radicalization-to-violence boot camp.

Canada does not have a sustained prison "deradicalization" program. Nor is it clear that deradicalization is even possible, although terrorist disengagement from violence may be.

So those advocating incarceration as a silver bullet should be careful what they wish for.

b) The peace bond conditions constraining liberty were not stringent enough

This is a more pressing issue. I do not, however, think we know enough to pass judgment. It may have been a mistake to relax the peace bond terms to eliminate (reportedly) an electronic bracelet requirement -- perhaps that was enough to allow Driver a greater range of action. On the other hand, maybe the peace bond conditions provided police with investigative access to Driver greater than would have been the case if reliant on regular surveillance powers. If so, then the peace bond might have facilitated disruption of the apparent plot.

c) The peace bond condition on deprogramming should have been imposed

Driver successfully challenged in court the constitutionality of part of the peace bond law (as amended by C-51) allowing the state to impose counselling -- billed by the court as "deprogramming". Was this decision an example of the constitution getting the way of good security?

Well, the government chose not to appeal the Manitoba lower court decision -- which was rather thin in its reasoning. It is difficult to see this decision from a single lower court as the last word on the matter.

But more than that, there is the question of whether a "treatment program" would have worked. Deradicalization is a novel area of the social sciences, and there is considerable doubt in the literature that I have read as to whether it can ever work. Moreover, forced participation in such a program may have the effect of simply entrenching views.

On the other hand, it may be possible to dissuade people from making the leap to violence. And we do need some sort of exit strategy from an endless cycle of disrupt or incarcerate. A UK parliamentary study (correctly) urged the need for an exit ramp from that country's equivalent to peace bonds, known originally as control orders: "a “graduated scheme, which commences concurrently with the [liberty limiting] measures, with the sole purpose of engagement and de-radicalisation”.

Parking someone on a peace bond is not a permanent solution.

It is possible to see, therefore, the Driver case as underscoring the need for serious investment in counter-violent extremism, so that such matters do not end with an explosion and preventive use of lethal force. Some will scoff at this conclusion, but I do not think the evidence exists one way or another as to whether we can develop an effective counter-violent extremism strategy to preempt these situations. And I don't think we have much choice but to try.

d) C-51 was good! No C-51 was bad!

Already commentators are approaching this case through the optic of the debate on 2015's anti-terrorism law. I am on record with my views about C-51. As careful readers will know, I am not among those who contested C-51's objectives. Rather, as Roach and I discussed in our book (still very bang-on-topic! still reasonably priced!), the law managed to muddle solutions to real problems. We believe it will have negative consequences for civil liberties and security if the powers accorded in C-51 are exercised to their legal limit. (And it is therefore those ill-conceived limits that demand reconsideration).

But in relation to Driver and peace bonds, C-51 so far is a minor cast figure. Peace bonds were not the key controversy in C-51. They have existed since 2001 to respond to feared terrorism offences. The government began its proceedings against Driver under this old law, only switching to the C-51 regime when that law came into force. C-51 did relax the standards for obtaining a peace bond -- they went from very low to very, very low. But I have little doubt that Driver would have been subjected to a peace bond under the original, very low standard -- certainly that was the Crown's belief.

I think that this is more generally true for other peace bonds since C-51 came into force in June 2015. The impediment to peace bonds prior to C-51 wasn't the law -- it was police resources, a different security environment and generally a more conservative approach to using this tool.

As noted, C-51 may have made Driver vulnerable to new speech crime charges, had it been in force. But as also noted, I do not believe incarcerating people who say the wrong things is a good idea.

C-51 also opened the door to CSIS threat reduction activities -- known popularly as "disruption". These include (most controversially) disruption activities that break the law and breach human rights in the Charter. We do not know if any of these new powers were material in this case, although we do know from Minister Goodale's statement that CSIS was involved in this case somehow (probably in its intelligence capacity). To date, there is no reason to believe that CSIS used its law breaking powers. (Nor, incidentally, does this case seem to have any of the controversial hallmarks of the Nuttall/Korody entrapment matter.)

e) CSIS and RCMP Coordinated

There seem to be early indications of police/CSIS coordination, and it is welcome. But the how of the coordination will be interesting, given our longstanding critiques that Canada does not manage inter-agency anti-terrorism investigations as seamlessly as we believe necessary in the current threat environment, or as seamlessly as the UK's MI5 and police do.

The system worked, sort of. And it is important to understand whether this was by design or luck. There will necessarily be questions about whether there was an intelligence/police failure. Here are some bottom-line questions:

  • How did someone known to authorities and subject to a peace bond get as far as posing a credible (and perhaps actual) suicide bomb threat?
  • Why was the police intervention 11th hour, in the nick of time (and perhaps after it, given that there was a reported explosion causing injury)?
  • Given the presence of a weapon and that there was apparently a computer video involved, Driver was in clear violation of his peace bond terms (and so basically automatically subject to imprisonment for up to 4 years). So why was there no arrest much earlier?
  • Why was there no public warning?
  • All of this is to say: Where was the early detection? Was this a resource issue? Did something go missing? Will be discussing a failure to "connect the dots"?

In truth, these are elemental, key questions, and I fear we will not learn the answers. Unlike other countries, we do not do thorough, public lessons-learned reports. We still, for instance, do not know all the details about what went wrong (or right) in the October 2014 terrorism events.

To be clear, I am not advocating gotcha inquiries. Just fact-based, clear-eyed assessments that can be evaluated outside of the hothouse of the security services themselves.

I am told the RCMP will be holding a press conference today at 1:30. In a perfect world, these questions will be asked and answered.

f) Civil liberties groups did their jobs

I add a commentary. I am seeing some suggestions on social media that the civil liberties group that contested Driver's peace bond was wrong to do so. But most of today's rights exist because someone -- often a civil liberties group -- defended them in relation to a deeply unpopular person or group. The core right at issue here was expression, something that enables me to write this blog and tweeps to tweet. 

Defending liberty while preserving security is like balancing an umbrella on the tip of one's finger: it is never in perfect equilibrium. Instead it is always a dynamic exercise in balance involving constant reaction and correction. Without an active espousal of civil liberties values, we risk the umbrella falling forward in constant reaction, and never any correction. Civil liberties groups do their jobs, just as security services do. We need them both to bring their A games.

 

Monday
Jul112016

Pragmatism & Principle: Intelligence Agencies & International Law

I have just post my most recent article on the topic of international law and extraterritorial intelligence agency activities on SSRN here (alternative download: here).  This article focuses on (to borrow the US parlance) "covert action", and was a reponse piece to an excellent, lengthier article by University of Virginia law school Professor Ashley Deeks, found here.

Despite this US context, I hope my essay is useful to Canadian circumstances as well.  Given changes to CSIS's mandate in C-51, the observations in the article are relevant to CSIS's new overseas "threat reduction" powers.  As I have argued before, the customary international law principles discussed in this article are deemed part of the common law of Canada through the Canadian rules of reception of international law.  Trangressing these standards would, in this manner, violate a "Canadian law".  This would trigger the requirement to obtain a Federal Court warrant prior to engaging in this activity, per the (C-51 amended) language in the CSIS Act.  Under those same amendments, the Federal Court could issue a warrant, even in violation of this international law.  But I suspect based on past practice, it would scrutinize carefully the international law principles at issue, and would be anxious about the implications of blessing conduct that may prove controversial. 

The abstract of my article is as follows:

This essay dissects the concept of “intelligence activities” and distinguishes international law as applicable to spying versus that relevant to convert actions. It urges that while international law is mostly silent on peacetime spying per se, it is engaged by specific activities that rise to the level of intervention in a state’s sovereign affairs and which transgress the bar on the extraterritorial exercise of enforcement jurisdiction. There are, therefore, international norms that may be readily violated by at least some sorts of covert actions, above and beyond human rights principles protecting the individual. Ambiguity exists, but should not be over claimed. The article then contemplates the virtues of tempering this legal formalism to permit less than full legal compliance in the area of international law and intelligence activities. While sympathetic to the necessity for pragmatism, the article warns that a sliding compliance scale may result in the weakening of norms better served by being honored in the breach rather than abandoned in the name of realism.

Tuesday
Jun282016

10 Minute Primers: An Enigma Wrapped in a Secret, Governed by Uncertain Law: CSE and metadata

Over the last several years and certainly since the Snowden revelations, there has been considerable discussion and controversy over the interception amd acquisition by Canada’s signals intelligence agency, the Communications Security Establishment, of metadata.  In this 10 minute primer, I do my best to lay out the basics on the legal and policy framework of this interception and collection, as well as discussing controversies and reform possibilities.

 

10 Minute Primer: An Enigma Wrapped in a Secret, Governed by Uncertain Law: CSE and metadata from Craig Forcese on Vimeo.