About this Project

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.

 

For a continuing conversation on Canadian national security law and policy, please join Stephanie Carvin and me at A Podcast Called INTREPID.

 

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
Saturday
Feb072015

Understanding How Much Terrorist Propaganda is already criminal, even without C-51

In reviewing the commentary on the new speech crime in Bill C-51, there appears be to an underappreciation of how much speech is already criminalized in Canada's current anti-terrorism law. We invite readers to consider the actual record.  For instance, in 2010, Mr. Namouh was charged and successfully prosecuted for (among other things) "enthusiastically participat[ing] in most of [a terrorist groups' propaganda activities".  Among other things, the accused participated in conveying "a message to Austria and Germany threatening terrorist action if their soldiers are not withdrawn from Afghanistan".  The accused also participated in most of the groups more clearly propagandistic activities, including (as described by the court):

  • analyzing the speeches of Al Qaeda leaders
  • inciting violent jihad
  • calling for support for jihadist groups
  • redistributing Al Qaeda materials
  • acting as a spokesperson for captured jihadists
  • singing the praises of jihadist leaders who died for the cause 
  • ensuring the security of online communications between jihadists
  • taking part in psychological warfare
  • providing military training with the purpose of implementing violent jihad 
  • producing a series of videos called the “Califate Voice Channel,” with the aim of transmitting news from the jihadist front
  • publishing jihadist magazines online
  • acting as an official media outlet for two groups taking part in terrorism. 

The accused was deeply invested in his cause and was not an idle apologist of things terroristic.  This undoubtedly contributed to the ultimate outcome.  But still, the behaviour cited by the Court in support of the participation and facilitation convictions ranges from outright threats to propaganda more distantly linked to violence.  Nevertheless, this propaganda style speech contributed to the convictions.

If you wish to review a digest analyzing the reach of the current law (and listing the practical reasons why we should be very cautious in going further in criminalizing speech), see the law review article Professor Roach and I prepared, issued as a working paper for TSAS, and now forthcoming, Alberta Law Review.

To sum up: this is not, and never has been and never should be, a debate about "is free speech absolute".  In our law, it clearly is not, and never has been.

And so the debate about the proposed new speech crime -- which Professor Roach and I assess as extremely vague and potentially vast -- is not (and never has been) "should terrorist incitement, threats, recruiting, instruction, or similar sorts of propaganda be outlawed".  It already is.  Instead it is about "what else should be considered 'terrorist propaganda'" -- that is, how much speech should be swept into that orbit. 

Professor Roach and I have argued in both the media and in our more detailed analysis that too much is caught up in the new offence -- we have no difficulty naming situations in which the law will penalize unpopular speech very far removed from violence.  We have no difficulty naming situations in which the law could penalize popular speech very far removed from violence.  We have also been underscoring our concerns about what speech chill may mean for the most important tools available to the state in dealing with radicalization to violence -- counter violent extremism programs and open source intelligence. 

We fear that the offence overreaches and violates rights while at the same time diminishing security.  If we are right, this would be an accomplishment few would be content to claim.  It takes some doing to offend civil liberties while at the same time making it harder for the RCMP to keep us safer.  Whatever this offence's constitutionality, it certainly pays little heed to the "law of unforeseen (or even foreseeable) consequences".

This concern with forseeable consequences and unforeseeable second order effects will animate our critiques of the areas of this bill, which we are working on now.

And so we hope that these are exactly the issues before every lawmaker contemplating this law. 

As lawyers, we can set out in firm detail our opinion on the speech provision's reach and its constitutionality, and are happy to have the usual lawyerly debate. 

But there are also operational issues in play, and lawmakers and the public deserve a response.  Can we expect an unfettered and unmanaged explanation of how the new offence would dovetail with the RCMP's important counter violent extremism program, one that appeals to our logic and does not simply reflect "marching orders" from political masters?

We live in this society too, and we want an effective response to radicalized violence, even if we do not believe the facts (as they exist at present) require us to go as far as the prime minister in seeing it as an existential crisis.

Thursday
Feb052015

On Polemics and Substance in Bill C-51 Antiterrorism Act

In another departure for this blog, I am adding a somewhat personalized commentary.

I am a mild-mannered middle aged law professor, not habituated to the world of high politics and sustained media involvement.  In dealing with Bill C-51, I have learned a lot over the last few weeks about both the media world and the world of politics.  In due course, I shall reflect on this in my blog on legal academia, Bleaching Law.

Here though, I pause over the feature in today's Ottawa Citizen that has a distressingly huge photo of me and a discussion in which I figure (disproportionately) as signalling significant concerns with Bill C-51, using what will be greeted by some as strong language.  To be clear: I do not, in fact, think that what is at issue is impunity.  Nor do I, as others have suggested, believe we are on the cusp of a "secret police". 

But I do think the changes represent a radical rupture with what has gone before.  I believe these changes will have foreseeable negative second order impacts.  I suspect there will also be unforeseeable second order impacts.  I do think that in some of their very key elements, they do "do violence" to well established norms and expectations of law, rejecting the insights of the past, implicating novel concepts of the role of the courts and the scope of the Charter, and by embarking on a new, untested course, without attention to sufficent safeguards (including, but not restricted, to an amped up security review system).

Having witnessed the patterns of the past, I confess to deep concern about this debate becoming about "experts and who they are" and not about (simply) the merits (or not) of the positions they take.  And I may be provoking that development by being so pointed. 

So to be clear: I lay no claim to some sort of omniscient expertise, and am not inclined (to use the Prime Minister's term) to "self-appoint" myself an expert.  I am simply someone who has spent the better part of the last 12 years steadily working my way though national security law, and along the way done teaching and writing in the area.  The focus on this area is idiosyncratic for a law professor. There is a reason that Professor Kent Roach (uToronto) and have been so active on this matter -- our areas of focus cross many traditional law school "silos" and over the years we have been forced to expand our range in a manner that allows us to look at this kind of bill with reasonable comfort. 

(If you wonder who we are, legal academics are among the most transparent people on the planet.  You will find our cvs on line, many of our publications, our teaching responsibilties and even some of our courses.  If you want, you can even look at the Ontario disclosure database and find out how much we are paid for our academic posts.)

I can say though that in the usual "not for attribution" way, that we are not so lonely in our concerns.  That said, there are others whose expertise and opinion we respect who do not, and will not, agree with us. 

Media coverage often focuses on the critique and the conclusions, and not always the full reasons.  That is the nature of limited column inches and time constraints.  If my conclusions in the media are expressed in language that seems strong, all I can offer to do is to thoroughly air the reasons for those strongly held assessments.  Readers like you can then evaluate the merits of my conclusion.  One of the potential tragedies of the current political environment is that readers will be in no position to evaluate the reasons of those who disagree with us, at least where they are based on grounds more compelling than political positioning.

And so those with no power offer as fulsome explanations as they can for their concerns, while those with power need not justify their rationale, or even acknowledge or respond.

Unlike in the UK or Australia, Canada has no arm's length, independent and resourced individual (and privy to secret information) empowered to critique government anti-terror law propsals.

And so we are the poor alternative.  We shall continue to post our detailed legal assessments with all the dispatch people with many other commitments can -- dealing with the complexities of just the five lines of text in the new speech offence required a sustained effort and 10,000 words.  You will find that on www.antiterrorlaw.ca.  The CSIS amendments, their potential second order impacts, and the like will take even more time and space.  I have already posted a digest of our initial concerns -- a hypothesis that we shall test thoroughly in our detailed analysis.  Our analysis, when ready, will also be posted on www.antiterrorlaw.ca

Along the way, if our understanding of the facts change, our opinions shall change.  Personally, I would dearly love to be persuaded that all is right in the most perfect of worlds, and that I can focus on my now delayed book on international law history.  Until then, however, it is my obligation as an academic who need not account to any client or take instruction in response to any master to continue raising (reasonably, but also forceably, and in any venue that will take me) concerns with the preoccupying changes to our law at issue in Bill C-51.

I apologize for contaminating this feed with such introspective reflections.

 

Wednesday
Feb042015

New Ottawa Terrorism Arrests: The Role of the Internet

Unusually for this blog, I am posting in response to police arrests that have just occurred.  I do so, only because these arrests come at a time when we are debating a new antiterror bill (Bill C-51) with quite concerning -- in some respects, quite radical -- legal content, including in the area of free speech.  The new arrests risk becoming fodder in the political debate.

I leave it to others to discuss the difficulties of law enforcement, administration of justice, presumption of innocence and the like in a highly politicized environment.

I make here only two points: My own view is that the new arrests are not an argument for extending those laws.  Quite the contrary -- they demonstrate the long reach of those laws.  Anyone who points to these arrests and says they justify new laws asks too much of our ability to suppress logic.

Second, I voice a note of caution about the apparent emerging narrative concering "radicalization by internet".  The Ottawa Citizen reports today: the "eventual trial could offer some critical insights into how young jihadis are radicalized, recruited and sent overseas. The RCMP said Project Servant collected evidence through witness statements, social media postings, and intercepted communications, including 'different snippets from Skype'. The RCMP said the radicalization of the three men who were charged primarily took place on the Internet."

The role of the internet in radicalization (and more particularly radicalization to violence) is a topic of both active discussion (and assumptions) and academic inquiry.  It would be foolish to suggest that it never happens.  Moreover, the past is little guide to the present and future in the cyberworld.  But the available research tends to support the view that the internet is enabler, but not cause.  See the paper Kent Roach and I prepared that deals, in part, with this topic.

It is important, also, to distinguish between the internet as broadcaster (that is, the archiving of information) and the internet as communications tool.  Does the RCMP mean that radicalization took place because the men were exposed to terrorist propaganda on the internet, or does it mean (as the examples above suggest) that the internet was a communicaiton tool?

This matters: radicalization to violence caused by internet propaganda is an argument for internet censorship.  Internet use as a tool of communication is an argument for suveillance powers.

Since both of these matters raise different issues (free speech in one, privacy in another), a careful disaggregation of the facts is necessary.  There is risk in simply saying "the internet caused it" and then using that to justify the full range of censorship, surveillance, regulation etc.  The facts actually matter.

We need that criminal trial to understand what is at issue.