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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Saturday
Jun132015

Cops without Borders: The RCMP's long anti-terror arm

The RCMP has arrested one of the alleged protagonists in the Somali kidnapping of Amanda Lindhout.  This is remarkable, for several reasons

First Real Extraterritorial Terror Case:

First, this is the first time that I am aware off -- having collected terrorism cases for the last 15 years -- that charges have been laid in relation to a terrorism offence that took place entirely outside of Canada.  This statement requires unpacking.  Police have charged the Somali accused under s.279.1 of the Criminal Code.
This creates a crime of hostage taking, and implements Canada's obligations under the international treaty on hostage taking.  That latter is a "golden oldie" anti-terror treaty.  Section 279.1 is one of the first Canadian anti-terror provisions, pre dating 9/11. Further, while the cross referencing is complicated between the s.2 definition of "terrorism offence", section 83.01 defining "terrorist activity", s. 7(3.1) giving hostage taking crimes extraterritorial reach, and s.279.1 itself, this really is a terrorism offence as defined in the Criminal Code.  It just isn't one of the complex new terror crimes created after 9/11.
Second, like most terrorism offences, but few other Criminal Code offences, hostage taking has extraterritorial reach.  That means that because of s.7(3.1), it does not matter where it takes place.  Among other things, if the perpetrator ends up in Canada, he or she can be prosecuted.
International law and extraterritoriality:
This may raise international law concerns in the minds of some.  And in fact, if Canada were attempting to assert jurisdiction entirely on the basis, simply, that the accused was arrested in Canada, this might be doubtful in international law.  Hostage taking is not a likely candidate for what is know as "universal jurisdiction" in international law, unlike things like genocide, war crimes, crimes against humanity or the even older (but in the waters off Somalia still relevant) crime of piracy.
But there are other grounds for a state to assert what is known as extraterritorial "prescriptive" jurisdiction -- the power to regulate conduct outside its borders.  One is known as the "passive personality" principle: a circumstances in which the victim of the overseas crime is a national.  Canada does not often assert extraterritorial jurisdiction on this basis, but other countries -- especially in Europe -- do.  And if Canada were ever challenged by Somalia as to how it can purport to criminalize the Lindhout hostage taking, passive personality is a likely response.
Which raises another interesting element: it is not likely Somalia would ever challenge Canada's conduct.  For one thing, there isn't really an international venue likely to have jurisdiction.  For another, Somalia barely has a government.

Fantastic evidence:
And that too is interesting.  The RCMP investigation was itself extraterritorial, but certainly very different from standard mutual legal assistance style investigations.  What this means is unclear.  Will the case be built on intercepts conducted by Communications Security Establishment, acting as a technical proxy for the RCMP?
This is legally possible, and it would surely be very interesting to see how this sort of cooperation operates, as evidence is presented in open court. In addition, perhaps the RCMP had agents in Somalia?  Perhaps even members?  The latter is hard to believe, but if there were, they deserve some serious danger pay.
All of this is to say that I can't wait to see the evidence in this case.

Coming to Ottawa:
As a last initial issue, the RCMP arrested this Somali protagonist in Ottawa. What he was doing in Ottawa and how he got here is unclear.  But this will prove an intriguing aspect of the case.  I think it's reasonable to assume, for one thing, that his presence was facilitated by the CBSA.  How else he managed to enter Canada is hard to imagine.
 
What motivated him to come is another question.  Maybe he was enticed under false pretences?  This would, however, not be entrapment -- classically, entrapment is being improperly induced to commit a crime, not a circumstance where police lure you where they can nab you.
This does not appear to be a circumstance like the famous Alvarez Machain case in the United State or the Eichmann case in Israel where the accused was bundled from a foreign street and whisked away under duress to serve trial -- that is what we used to mean by "rendition to justice" before the Bush era variant of being whisked away to be tortured.
But even if there was a forceable removal, it is not clear whether that would matter.  For the US and Israeli high courts, what mattered was the accused's presence in court, not how he got there.  How he got there in both cases was a clear violation of international law -- you can't enforce your law on the territory of another state, absent its consent.  But international law for these two decisions was a matter between states, to be decided as between states through international means, not a question that affected the court's criminal law jurisdiction.  
We don't have bang-on precedent in Canada that I can think of off the top of my head, but it would not surprise me in the least if Canadian courts were to adopt this same approach, on this particular question.  To be clear, I think courts might well entertain abuse of process claims, especially given some of the language in the Supreme Court's Hape decision.  But when it comes to rendering persons to serve justice, the real objection is that states really should prioritize formal extradition over, well, kidnapping.  On the facts of this case, I am inclined to think that such formal processes might not work well.  See above re Somalia not having much of a government. In these circumstances, forceable removal may be a less bitter bill to swallow, whatever the formal international law issues.
But this is merely theoretical, since the facts we have at present suggests that the accused arrived in Canada under his own steam.  If so, then this arrest looks squeaky clean.
Personally, I greet this announced arrest with some enthusiasm.  This is not just because of the notoriety of the crime, but also because many of us in the legal business might reasonably be excused for fearing that, in flailing about for a security silver bullet, our government has begun to abandon the criminal justice model in favour of covert, untested and potentially very problematic disruption tools.  For a very long list of reasons, my anti-terror preference is for open court criminal trials, even (and indeed especially) on complex security issues.  

 

Thursday
May282015

The Ugly Canadian? International Law and Canada’s New Covert National Security Vision

Speaking Notes

CBA National Section on International Law Notes
May 28, 2015

Craig Forcese

Thank you for your invitation.  I have been asked here this evening to speak about the international law aspects of two new laws – bill C-44, now enacted, and bill C-51, all but certain to be enacted by next week.

Most of you are probably familiar with at least C-51.  It is a large omnibus, with a number of moving parts.  But perhaps the most controversial part of the bill would give our covert security service -- CSIS – the powers to “reduce” threats to the security of Canada by taking any “measure”, except bodily harm, violation of sexual integrity or obstruction of justice.  

The government calls these “disruption” powers, although no one has clearly articulated what that means.  What we do know, however, from the legislative history is that the government intends CSIS to be able to pick from a menu of responses.  Politically, this has been painted as an anti-terror response.  Legally, CSIS’s new powers reach its entire national security mandate, and so apply to sabotage and espionage, violent subversion and so-called foreign influenced activities, as well as terrorism.

We also have some sense from the legislative history as what specifically the government has in mind.  Famously, the government has said it wants CSIS to be able to speak to parents of radicalizing children.  CSIS already does so, and so we need to look further. 

The parliamentary record includes suggestions that, legally speaking, the government believes the new powers could be used to interfere with mobility rights (as in returning Canadians); that the door is not closed legally speaking on rendition; and that the door is not closed in terms of some form of detention, although not criminal arrest. 

Other things that CSIS specifically identified as being among its new powers are “disrupting a financial transaction done through the Internet, disabling mobile devices use in support of terrorist activities, and tampering with equipment that would be used in support of terrorist activities”.

And the government also pointed to analogs – actually quite poor – in other laws that allows the state to remove content from the internet, in the context of discussing the CSIS power.  This suggests internet site take-downs are on the list. 

Exercising some of these powers would require warrants, because the bill requires a warrant where a measure would breach Canadian law or the Charter.

You may be less familiar with bill C-44.  This bill was tabled in the Fall, and on its face seeks to remedy confusion caused by a series of Federal Court cases concerning the extraterritorial reach of CSIS’s conventional surveillance jurisdiction.  Specifically, the court cases cast doubt on whether CSIS may legally conduct covert surveillance in violation of foreign law, and therefore territorial sovereignty. At any rate, they held that the court itself was not empowered to issue a warrant permitting such activity. 

Through a perplexing serious of events, these questions are now before the Supreme Court in the Re X matter, scheduled for hearing this Fall.

Critically, both C-51 and C-44 provide new extraterritorial reach for CSIS activities: they emphatically allow CSIS to operate internationally, and they emphatically allow courts to issue warrants in violation of foreign and "other (aka international) law.

Which brings me to today’s topic:  how it this to be evaluated with an eye to international law?  And do we risk becoming the proverbial “ugly Canadians”, because of international law banditry?

I will start by saying that the international law of spying is underdeveloped.  Certainly, sovereignty is a core precept of public international law, guarding a state’s essentially exclusive jurisdiction over its own territory.  A concomitant principle is the rule of non-interference in the internal and external affairs of any other state.

I want to focus first on collection of intelligence from human or electronic sources by non-diplomats.  Non-diplomatic state agents collecting human intelligence or engaging in electronic surveillance do not benefit from any diplomatic cover, or arguments that their activities fall within the scope of a diplomatic mission. 

They are, therefore, personally culpable for any violation of the laws of the state in which they spy, and their states are responsible for any resulting breaches of international law. 

On this last point, however, everything hinges on the breadth of the customary prohibitions on intervening in the internal or external affairs of any other state.  Does, for instance, a failure by a state agent to comply fully with the territorial state’s laws always amount a breach of sovereignty, and therefore of international law?

The exercise of what is known as “enforcement jurisdiction” by one state and its agents in the territory of another is clearly a breach of international law – it is impermissible for one state to exercise its physical power on the territory of another, absent consent or some other permissive rule of international law.  And so I pause here to say that much of the physical, kinetic activity that CSIS might undertake under C-51, done covertly without state consent, would violate international law.

More uncertain is whether a state agent’s violation of domestic rules through spying necessarily constitutes a violation of international law.

There is no international jurisprudence on peacetime espionage, state practice is a muddle, and the academic literature is deeply divided on the question of legality. 

Helpfully, the academic literature splits into three categories: those who regard espionage as illegal in international law; those who see it as “not illegal”; and those who envisage espionage as neither legal nor illegal. 

The very fact that there are three camps with such diametric and somewhat uncertain positions itself suggests that the third view – neither legal nor illegal -- lies closest to the truth: there is no clear answer on the international legality of extraterritorial espionage, assessed from the sovereignty perspective. And the international community seems content with an artful ambiguity on the question.

On the other hand, human rights principles constrain the means and methods of spying by prohibiting torture, cruel, inhuman and degrading treatment and unauthorized intrusions into privacy.  But when and whether these rules apply to extraterritorial spying is a complex question.

The answer to that question depends on whether international human rights instruments have extraterritorial reach.  Put succinctly, a state’s obligations under the Torture Convention extend to territories over which it has factual control.  Its ICCPR responsibilities, meanwhile, attach to persons under its effective control, including potentially those detained surreptitiously for purposes of interrogation. 

The rules governing extreme forms of interrogation do, therefore, extend to extraterritorially.  It is difficult to see, however, how the ICCPR concept of “effective control” applies to privacy interests and constrains, for instance, extraterritorial electronic surveillance.  Extraterritorial surveillance, almost by definition, will not be of persons within the spying state’s effective control.

I would note that since the Snowden revelations, there has been a lot of soft law emerging in this area – and so customary law here will likely become a moving target.  But we’re not there yet.

And so what does all this mean for CSIS going forward.  First, covert surveillance done without the consent of a foreign state may currently be ungoverned by international law – although whether it would nevertheless be governed by section 8 of the Charter is a novel issue that may well be reached by the Supreme Court in the Re X case.  And so international law is mostly unhelpful in assessing C-44.  (Subject to the caveat that the more kinetic the surveillance -- the more it amounts to a physical exercise of state powers -- the more likely it is to stray across an enforcement jurisdiction boundary).

The situation with C-51 is more complex.  Some of CSIS’s possible, so-called disruption activities clearly stray into the enforcement jurisdiction range: holding someone in custody; rendering someone.  These are kinetic activities of a sort that amount to enforcing state powers on the territory of another state. 

It is also possible to conceive of hacking into a foreign bank account to delete an account or attacking a foreign server to bring down a website as sufficiently physical acts in today’s world to amount to the wrongful exercise of enforcement jurisdiction.

More than this if CSIS detains someone or renders someone, it seems very likely that the human rights standards in the ICCPR apply.  The effective control standard would be met.

CSIS, review bodies, and courts will need to keep this range of possibilities in mind as they approach CSIS’s new powers.  It would be cardinal mistake to treat every exercise of CSIS’s new powers as equivalent, in international law. Each requires a unique international law assessment.

I will end on a final point: I mentioned that in both bills, the Federal Court is empowered to issue a warrant authorizing CSIS conduct.  At issue, however, is when the Service needs to seek a warrant – if it doesn’t need to actually seek a warrant, it can act unilaterally. 

C-44 is ambiguous – probably intentionally -- on this question.  It specifies no precise trigger for seeking a warrant.  The implied trigger would be whenever a warrant is required under the Charter.  Since the extraterritorial reach of the Charter is a disputed issue, we will need clarity from the Supreme Court on that question in Re X.

In C-51, a warrant must be sought if CSIS’s conduct will violate Canadian law or the Charter.  Canadian statutory law rarely applies outside Canada, and again the reach of the Charter is contested.  And so, this too risks becoming a closely litigated issue. 

To obviate the possibility of CSIS unilateral extraterritorial action, my own view would be that principles of customary international law, such as state sovereignty, are part of the common law of Canada.  Common law persists unless displaced by statute.  These are settled issues in Canadian law.  I would then argue that there has been no such displacement of the common law by C-51.  And since CSIS requires a warrant for a breach of Canadian law – a concept that properly includes common law – a warrant is required under C-51 every time the Service does anything that violates state sovereignty.

I suspect that the government will not warmly embrace this analysis.  And so I imagine some of these arguments will soon be made in a more formal setting.

Thanks for your interest.

Wednesday
May202015

Getting to Yes on National Security Law and Policy

Speaking Notes

May 2015

I’m on this panel to offer the perspective of a government outsider.  I suppose in my case, I might be described as an outsider with some occasional insider experience and who, by reason of the fact that I work in Ottawa, is usually lurking around the doors.

So I have been on the periphery of government and government policy issues for my entire professional life, most recently in the area of national security law. I am also (in a much less informed and much more distant way) an observer of how public policy in national security works in other democracies, such as the United States and the UK and Australia.

Based on that perspective, I’ll make three brief points.

First, Canadian national security policy making suffers from significant silos.   Some of this silo effect is compounded by today’s unproductive political environment.  But some of it is more structural and long-standing.

Silos exist between government and those outside of it.  But from where I sit, I believe silos also exist within government, between and even within agencies. Policy is developed internally, through a sometimes imperfect interdepartmental process, and then sometimes shared and applied unevenly.

I confess, I am sometimes dumbfounded by admissions suggesting that even those you’d expect to have their finger on the pulse aren’t able to stay on top of the whole picture.  I see a lot of agencies focusing on trees, but I am sometimes left wondering whether the government is good at seeing forests.

And that may be the reality of a complicated world, where officials are distracted by the crises of the hour in big sprawling bureaucracies.  But bigness can be overcome as a collective action problem, so long as there is more transparency.  Transparency allows us to capitalize on what, in the modern jargon, we call “crowdsourcing”.

And that brings me to the poverty of our consultative tradition. 

In Canada, national security (and many other) policies or law projects are almost always sprung on the world without any meaningful advance external consultation.  Yes, sometimes, some people – a select few -- are given advanced notice of a policy development.  But this is not real consultation, and at any rate this process is uneven and itself opaque.  And more than that, it sometimes done for optics, not for effect.

We are nowhere near having emulated the quite important UK tradition of floating policy ideas in national security law through detailed discussion papers and emphatically eliciting responses.  Nor have we emulated the UK and Australian experience of an independent reviewer of anti-terrorism law – more on that in a second.

We have had, through the now terminating Kanishka initiative, an emerging process of feeding academic research into government.  There are also academic outreach initiatives in some of the security services.  But in my experience, those events are often either the presentation of a finished government product, or a one way expression of views by academics to a sometimes very inert government audience.

Perhaps I look across the Atlantic with rose coloured glasses.  But again, the Canadian practice is quite different from apparently meaningful and seemingly rich, prior consultation on actual policy and law that occurs in the UK.

It is not as if the UK always arrives a good outcomes -- quite the contrary.  Consultation is not a perfect foil to bad ideas, especially if it is pro forma.  But it also seems clearly the case that the result in Canada of our stovepiped, closed door policy making is suboptimal outcomes.  Not all wisdom is monopolized by government.  I promise not to beat up on C-51, but I will say this: Had it been floated through a UK style process, I firmly believe it would have been possible to arrive at each and every one of the bill’s security objectives, without much of what has and will happen in response to that bill, including at least a decade of avertable litigation.

So to sum up on this point: the silo approach risks outcomes reflecting tunnel vision and creates unnecessary adversaries.

Second, because the silo approach spits out untested policy and law as a finished product, efforts to improve that outcome necessarily becomes a political issue.  In our current unhappy political environment, the political executive seems to view any change as a loss of face, to be avoided at all costs.  As a consequence, the political process polarizes and makes no distinction between those pressing for changes in good faith to improve outcomes, and those opposing measures because of more myopic agendas.  All tend to be tarred with the same brush, and all tend to be dismissed, sometimes through ad hominem attacks.

This is a not a phenomenon confined to national security law.  Nor should we assume that it is always unintended.  In 2009, the PM’s former chief of staff reportedly explained at an academic conference at McGill that it has been politically helpful to have academics and others attack government positions in the criminal justice area, on the theory that academic opposition actually enhances support in the famous “base”.  More than this, it meant, in his words, that the government “never really had to engage in the question of what the evidence actually shows about various approaches to crime.”  And ironically, this propensity exactly explains why government criminal laws are faring poorly in the courts, not least in the recent Nur decision.

At some level, the C-51 debate again is a classic and depressing example of this problem.  Indeed, the problem is even more acute with C-51 because the level of national security law knowledge in Parliament and among political staffers is very low, sometimes because of indifference, but probably more often as a knock-on effect of our closed-door silo approach. 

Having now appeared before more than 20 parliamentary committees, my experience is that it is close to impossible to address complex issues in a parliamentary environment, even without today’s acidic partisanship and ready recourse to non-sequitur speaking lines.

We suffer here again from the absence of an independent reviewer of anti-terrorism law able to feed disinterested and credible data into a distracted Parliament.  In the UK, for instance, that person issues periodic reports, and also scrutinizes government law projects.  This sparks thorough and meaningful government responses, and all this feeds into what appears to be a more sophisticated parliamentary process, relative to our experience here.

Moving on to my third point, which I will try to make more uplifting than my prior two.  We need an exit strategy from this morass.  We will not, as a society, meet sustainable national security objectives in our current manner.  I confess, many of my colleagues in the legal and academic profession simply take the view that there is little point trying to break down the silos at this point.  They await the next government.

But while some governments will be worse on this issue than others, we suffer in Canada from an excessively closed culture on national security – and always have.  Changing that does not just happen with a change in political leadership.  It requires also a changed culture within government institutions and also among those of us outside government.

I won’t propose specific, concrete suggestions – we could spend a lot of time on that.  But let me end by throwing out three, high level attitudinal steps. 

First, our security services need to decide that this is a priority.  For instance, when invited to speak at events and explain positions, they need to be willing to enter the lion’s den.  In my experience, now, they won’t, except in the most controlled circumstances.  It really is unfortunate to attend events which do influence opinion, and look down the table and realize that no one will be able to offer the government perspective, and not for lack of trying by the organizers. 

In those situations and because I am a contrarian who dislikes intellectual love-ins, my practice is often to try to act as a proxy for government positions, as best I can.  But having me acting as government proxy is not something that should really enthuse anyone in government. 

The risk post-C-51 is that the security services will just circle the wagons more closely, especially as they are subjected to heightened scrutiny in court cases and through a renewed media interest.

Second, and in keeping with this comment, we need the recruit and advance people inside these institutions who resist confirmation bias and do not become captive to their institutional cultures.  That is, we need people who are prepared to run the risk of greater transparency and are prepared to trust that this transparency can produce better outcomes.  

Which is a form of saying, we need the best and the brightest – there is a reason I encourage the students in my national security law classes to look seriously at government work.

Third, those of us outside, in civil society, also need to take a big breath.  There is now a culture of “gotcha” accountability.  This is partly because there is very little trust-building across the silos, and essentially none at the political level. 

It is partly because it is easy to assume the worst of faceless agencies, and much harder to assume bad faith when the human beings in those agencies are your neighbours who welcome you into the tent to work on a common cause.  

And honestly, I think this is a huge issue – most people have never met a CSIS officer, or Public Safety policy official, or a Justice lawyer.  And so their impression of these people can be like something out a fairytale.  And I must say – it goes both ways.  Those in government can perceive those outside as inevitable adversaries and beyond redemption, based on superficial stereotyping.

The gotcha environment is also partly a function of the 24 hour news cycle and social media.  And the general level of attention deficit in public discourse make communicating nuance very hard.

But that is not to say we shouldn’t try.  There will always be shock-jocks on both sides of the silo whose objective is to tarnish, not improve.  But it is a huge mistake to react to the existence of those persons by shutting off relationship building.  The shock jocks are undercut to the extent that relationship building creates a constituency more inclined to nuance. 

The challenge for civil society is to develop a mantra of “criticism if necessary, but not necessarily criticism”. 

The challenge for government is to open up so that those of us outside of government, making independent decisions on whether to criticize or not, do so based on fact, and not ignorance.

And the challenge for all of us is not to conflate good faith disagreement on the many contested issues in this field with animus.

Let me end there.