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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Latest Book: Available from Irwin Law in April 2018.

Monday
Dec042017

My New Project: Commander Andrew Drew RN

 

As my forthcoming book, Destroying the Caroline: The Frontier Raid that Reshaped the Right to War, goes to layout and printing at Irwin Law Books, the events that led to the destruction of the Caroline 180 years ago are upon us!  I have created a new Twitter feed, Cdr_Drew_RN, in the person of the Royal Navy Commander who led the raid. Tonight, he starts live-tweeting the 1837 rebellion in Upper Canada. I am hoping this will be a mildly entertaining way of introducing interested followers to the Caroline and its impact on international law and relations. This summer, I will be expanding my "Commander Drew" project into an online database on self-defence and use of force in international law.

In the interim, here is the abstract to my new book:

In the middle of night on December 29, 1837, Canadian militia commanded by a Royal Navy officer crossed the Niagara River to the United States and sank the Caroline, a steamboat being used by insurgents tied to the 1837 rebellion in Upper Canada. That incident, and the diplomatic understanding that settled it, have become the short-hand in international law for the “inherent right to self-defence” exercised by states in far-off places and different sorts of war. The Caroline is remembered today when drones kill terrorists and state leaders contemplate responses to militarily-threatening adversaries. But it is remembered by chance and not design, and often imperfectly. This book tells the story of the Caroline affair and the colourful characters who populated it. Along the way, it highlights the various ways in which the Caroline and self-defence have been used – and misused – in response to modern challenges in international relations. It is the history of how a forgotten conflict on an unruly frontier has redefined the right to war.

Thursday
Nov232017

60 Shades of Gray: Measuring "Foreign Fighter" Returnees

Over the last few days, people have poured a lot of meaning into the number "60".

Not least, in some hands, this has become the number of "foreign fighters" who have returned to Canada from Syria and Iraq. In actual fact, though, this is the number of "extremist travellers" who have returned to Canada, according to the 2016 public report on terrorism.

The concept "extremist travellers" is not clearly defined, but it is a broad one. It is not simply people returning from Iraq, Syria and Turkey. And it is not just "foreign fighters". That last concept is itself a non-legal colloquial expression. It too means different things to different people. In some hands, it means "people who fought for terrorists". In other hands, it can mean people doing a lot of things other than actually fighting.

To begin, and for what it matters: It probably bears noting that this number "60" is smaller than that estimated in other contexts in the past. During its 2014-2015 hearings into security threats to Canada, the senate security committee learned that “93 Canadians have been identified as seeking to join Islamist extremist groups like the Islamic State of Iraq and Syria (ISIS), al Qaeda, Boko Harem, and al Shabaab. Eighty radicalized Canadians have been identified as participating with terrorists overseas and have returned to Canada and approximately 145 Canadians are believed to be abroad providing support to terrorist groups.”[1]

Assuming it was correctly reported, this earlier number "80" was more helpful because it told us that the individuals in question were viewed "as participating with terrorists overseas".  Participation is much closer to a legal concept than "extremist travelling" or the mutable "foreign fighting".

This overall number -- whether 60, 80 or anything else -- is important. But we need to know more about what it means if we are to judge how important it is. Because the issue is what should happen to these people.  Should they be prosecuted or "reintegrated" is the focus of the current debate. Stephanie Carvin and I go into a lot of this in Ep 11 of A Podcast Called Intrepid.

To answer that question, we need to know more about these people's risk profile. There are efforts to categorize dangerous people. The RCMP “High Risk Individual” Framework has been a form of triage, prioritizing security files into four cartegories: Priority 1 (in-country or in-bound and present an immediate terrorist threat); Priority 2 (in-country and present a possible threat); Priority 3 (in-country and present a non-immediate threat); and, Priority 4 (out of country).

But that is a prospective risk assessment. For returnees, I'd like also to know more about what they did in the course of their "extremist travelling". So I might suggest a returnee triage categorization as follows:

Category of “Extremist Traveler”

Policy Issue

Suspected of having engaged in acts of violence in association with a terrorist group (especially an actual terrorist activity or war crime, in the legal sense)

These are what I have called "right of boom" terrorists -- they have committed acts of violence. These should be priorities for prosecution. If they are not being prosecuted, why not? Is because there is insufficient information? Or is it because that information is intelligence and we struggle to redeploy intelligence as evidence?  If the latter, can we fix it? If not, why not?

Suspected of having participated in some other manner with a terrorist group or engaged in instruction, facilitation, or financing of a terrorist activity.

These are people I call "left of boom" terrorists -- they have crossed a criminal line, but not to violence. These people probably should be prosecuted, raising the same issue as above.

That said, there may be people who are close to the de minimis threshold in terms of their involvement. Perhaps incarceration would be counterproductive, creating new boot camps for the next generation of terrorists. Alternatively, perhaps disillusioned (and disengaged) former, de minimis participants can be redeployed to deter others in creative preventing violent radicalization programs, as has happened elsewhere. Everything depends on what they might have done in the  past – and the risk they may be believed to now present.  And it the latter is difficult to predict.

Suspected of having done something else somehow raising concern, but falling short of participation, instruction, facilitation or financing of a terrorist group or of a terrorist activity.

These are not terrorists. They are not people who can be prosecuted under our laws.

Of course, like the other categories, they may be on their way to violence, and they may be dangerous, but that danger is prospective. Some sort of intervention is required, since being labeled an "extremist traveller" suggests there is some reason to suspect radicalization toward violence. So we need a graduated system of triage, to rank risk, and plan interventions likely to be effective. See the RCMP triage system above, for instance.

 

Getting this right matters. The past is no definite guide to the future in this area. But data from prior "foreign fighter" events (pre-Daesh) suggest than a small but still significant percentage (11%) of returnees may engage in domestic acts of terrorism. And these acts are more lethal when done by someone with foreign fighting experience.

But until we have the kind of resolution I suggest above, we cannot actually evaluate how well the government is doing in managing returnee "foreign fighters" or "extremist travellers" or whatever non-legal, indefinite, bureaucratic category we wish to use.  And that is a problem.  And it has been a problem for a long time.

 

Thursday
Nov232017

A Listener's Guide to Bill C-59

Bill C-59 is back with a rush. The initial debate in the Commons was disappointing and I fear for the future of the little that remains of my hair. So without pointing specific fingers: We need to debate what is *really* in this bill (or not), not what various political bases want to *believe* is in the bill. There are important things that can be meaningfully debated about what *is* in the bill and what *is not* in the bill.  There is no meaningful debate to be had about things one *imagines* are in the bill.

Once more unto the breach, I will try to squeeze a few compact video primers into the short space between the end of the teaching term and the beginning of the grading purgatory. Kent Roach and I did a basic early assessment here.  And I posted a meditation here. But for those following along with A Podcast Called INTREPID, Stephanie Carvin and I are getting into the weeds .  So here is a Listener's Guide to Bill C-59:

  • Episode 3: The Challenge of Warching Watchers: bill C-59's new "review" body, the National Security and Intelligence Review Agency.
  • Episode 6: Commissioner, Minister, Lawyer, Spy: bill C-59's fix to CSE's current (very) constitutionally-suspect system of foreign intelligence and cybersecurity activities implicating Canadian private communication or metadata. (We did not discuss how we haven't quite fixed the problem but could with a few words of amemdment. See here. I think I have been persuaded that my one-word fix may fix the a constitutional problem and create an operational problem. So I have a different, five or six word fix.)  This podcast also discusses new powers for CSIS to receive and analyze and retain information not tied only to threats to the security of Canada. (Feel free to shake your head should anyone claim that C-59 does not include substantial new powers for intelligence services).
  • Episode 8: The Legal Pile-One, the No-Fly Glitch, and the Police Probe: includes a discussion of Canada's creaky no-fly list and how C-59 fixes it in part, but still fails to resolve it in full.
  • Episode 9: Cyber-Cyber-Bang-Bang: discusses C-59's considerable expansion of CSE's mandate to include offensive and defensive cyber.  (Again, feel free to shake your head should anyone claim that C-59 does not include substantial new powers for intelligence services).
  • Episode 10: The first thing we do, let's disrupt all the lawyers: discusses C-59 and CSIS threat reduction powers and what changes and what doesn't.  And discusses new criminal immunity powers for CSIS sources (and officers) doing intelligence work and the checks and balances. (Please keep shaking that head if people try to tell you this bill doesn't offer anything to the security services).

In Episode 12, we will discuss C-59 and the Security of Canada Information Sharing Act.  And in Episode 14, we intend to discuss C-59 and changes to the C-51 speech crime and some of C-51 changes to preventive detention.

You can decide for yourself whether you like what's in C-59 or not, and whether its good policy.  You can decide for yourself if the bill grapples properly with hard dilemmas. We have our own views and perhaps make our own errors. But we believe that any opinion on C-59 is necessarily guided by (a) knowing what those dilemmas are and (b) what is in C-59. Hope this helps.

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