Security Legislation A Double-Edged Sword (By Jeremy Loome in The Ottawa Sun)

September 12, 2005: Security Legislation A Double-Edged Sword (By Jeremy Loome in The Ottawa Sun

Mon, September 12, 2005

What price freedom?
DAY 2: Security legislation a double-edged sword

Liberty at risk

A voice from the wilderness

Special transit constables were on extra alert in Toronto after the London bombings this summer. (File photo)

The Canada we live in now is a little less free than it was four years ago.

As we struggle to fill the intelligence gap, weve followed a path familiar to the U.S.: the introduction of security legislation to ease pressures on the intelligence community. Whether theyve been effective and necessary is debatable Canadas two most onerous legal provisions, for example, have yet to even be used.

Under the Anti-Terrorism Act and the Evidence Act, the Canadian Civil Liberties Association points out, Canadians could technically be arrested for supporting a revolution in a dictatorial state, such as communist China; or for financing striking workers supporting electoral protests in Ukraine.

Under the Immigration and Refugee Protection Act, landed immigrants can be deported without being convicted of a crime, sometimes to countries where theyll face execution, and without being told what evidence is held against them.

The language of the terrorism act currently under review by senate and commons subcommittees encompassing the disruption of essential services, or a serious risk to health or safety. A peaceful protest might not intentionally cause either, but nothing says it has to be intentional.

Under regulations to curb fundraising, its an offence to work with terrorist groups. Though the government keeps a terrorist entitities list, it is not all-inclusive. How are we to know who and what is off limits? asks the association brief.

Alexi Wood, the CCLUs director of public safety, says theres one compelling reason to scrap the legislation. The question we need to ask isnt whether the federal government is using these powers, its why they have them at all, she said. The CSIS act was so broad already that it already had the power to do many of the things in the Anti-Terrorism act. What we have lost here is a layer of oversight.

CSIS actions are scrutinized by the Intelligence Review Committee. The RCMP is not. A lot of the covert investigations going on have been shifted to other law enforcement such as the RCMP, which does not have the same oversight, she said. Thats why were calling for a national oversight body to look at all national security and terrorism issues.

The federal government has created at least a measure of new oversight, via a cross-cultural roundtable. And the legislations supporters cite realism: agents of the Crown are unlikely to go after domestic protesters or people who deal with Muslim businessmen.

That argument might hold more weight were it not for the case of Liban Hussein. Hussein was a new immigrant from Somalia in 2000 when he came up with two business ideas: to open a cleaning company in Ottawa that could employ his family members, thereby giving him a route to sponsor them into the country; and to open a money transfer agency.

He chose Boston for the latter, and had his brother run it. He then contracted the services of Al-Barakaat, a financial conglomerate in Somalia, to actually transfer the money.

Two months later, the Somali agency was tied to al-Qaida by the U.S., and Liban Hussein joined the list of terrorist entities. That Hussein knew nothing of the ties between the financiers and Osama bin Laden was beside the point.

His assets were frozen, his brother in Boston was arrested, and the cleaning company revoked his franchise. The U.S. shared its list with other UN nations, including Canada, so Hussein became a terrorist to countries around the world.

The case was suspect; U.S. officials conceded it was possible Hussein was not aware the ties.

Back home in Canada, Hussein turned himself in, only to be released by a judge after the Crown produced no evidence. But his family were all laid off with the closure of the business and for nearly a year, Hussein remained persona non grata.

It destroyed my life, he told media. It took away everything I had worked so hard for, for my family. This shouldnt happen to anyone.

Canada refused to extradite Hussein and in August 2002 the U.S. relented to Canadian pressure and delisted him, although it refused to admit fault and stated that he was being delisted because he disassociated himself from terrorists.

Eventually, Hussein was given an undisclosed settlement by the Canadian government, regained his franchise and rebuilt his life. But to many, he remains a suspect. That includes some U.S. states: Massachussets, for example, includes earlier versions of the terrorist entities list on its state attorneys website, without updating any removals.

Liban Hussein feels the consequences of the War on Terror daily. Other Canadians will as well, predicts Reid Morden, former director of the Canadian Security and Intelligence Service. Powers such as preventive detention in which Canadians facing no charges can be held and forced testimony, in which people can be compelled to speak to investigators, again without charge, cross an uncomfortable boundary.

There are things such as preventive detention and forced testimony that a number of people including myself feel have gone too far, says Morden. My view, certainly, was that the powers of the police and CSIS were perfectly adequate to do the job.

So adequate, in fact, that according to Justice Department statistics, the two provisions have never been used federally and compelled testimony has only been used once, during the Air India case. In fact, the Anti-Terrorism Act, which as an omnibus bill affected 17 different federal statutes, has had a limited role in fighting terrorism.

Instead, to the dismay of Amnesty International, the government has relied on existing Immigration act provisions to hold landed immigrants under security certificates. As much as it was worried by the ATA, the security certificate system frightens it more.

The scariest part is that the individual being held doesnt get to see the evidence against them, which would seem to me to go against one of the basic principles of fundamental justice in this country, says Wood.

Sensitive information

The CCLA and other groups want a special court-appointed lawyer to be able to review the evidence, as is the case in Britain, but not be allowed to convey that information to his client. In effect, thered be the same protection against giving out sensitive information but there would also be oversight to ensure the process is fair, says Woods.

Take the case of Adil Charkaoui. Charkaoui is a Moroccan under house arrest in Montreal as part of bail conditions. Charkaoui, who did not return calls for comment, has compared his detention to the troubles faced by Maher Arar, a Canadian handed over to the U.S. then deported to Syria despite little evidence against him.

The suspicion exists that high risk immigrants are deported to countries where torture is likely to obtain a confession, genuine or otherwise.

Charkaoui is getting the same public backing as Arar. Groups such as Homes Not Bombs and the Justice Coalition are demanding his security certificate be revoked.

Whether its circumstantial or not, there is more evidence against the Moroccan. But any hearings into his arrest, detention and investigations are behind closed doors, so little of it has been supported publicly by CSIS or the RCMP.

Charkaoui has been identified by two convicted terrorists jailed Millenium Bomber Ahmed Ressam and former Al-Qaida third-in-command Abou Zubayda as taking part in 1998 in terrorist training camps in Aghanistan. Arar hasnt.

Charkaoui was identified by Nouredine Nfia, the former head of the terrorist group that bombed Madrids train station in 2004 and killed 191 people, as a member of the group. CSIS further claims — although it publicly cites only newspaper reports that Charkaoui sent $2,000 and a laptop computer to one of the bombers.

Arar is the focus of a public inquiry, because neither CSIS which lobbied to have him kept in the Syrian prison where he claimed torture nor can the RCMP prove that Arar helped anyone. The two cases, then, are not really comparable but for one thing: an absence of public accountability.

Arresting and prosecuting terrorists, is a shared responsibility, says Alex Neve, secretary general of Amnesty International. And we dont live up to that by just deporting them and making it someone elses problem.

Then there are more tangible examples of civil liberty concerns such as the RCMP searching reporter Juliet ONeills home. I mean, really, talk about clomping around in their size 13s, says Morden. I think its an abject lesson to all of whether its appropriate for law enforcement to have those kind of powers. Because if you give it to them, ultimately they will use it.

Recognizing such potential problems, the government introduced a sunset clause.

Both detentions and the investigative hearings critics say force testimony will be wiped off the books if not amended to make them permanent before 2007. Until then, says Morden, the public must be vigilant.

This has to be kept under pretty careful scrutiny at all times. You give an agency additional authority in national security and the next thing you know, you find somebody in some detachment in, say, Prince Rupert whos just about to the point where hes got a case. And it isnt quite there. And he starts thinking if I were to just allege this is a front for a terrorist group, Id be able to do things I cant do now.

But theres also a risk, says former CSIS agent Dave Harris, of blaming civil liberty violations that dont really exist.

The reaction to everything from the Muslim community has been greatly complicated by the exaggerated and unreliable representations provided by some self-appointed Islamic advocacy groups, he said.

Unnecessary anxiety

Harris said politically driven statements regarding abuse by CSIS have likely been designed to make it harder for the agency to do its job.

The public would do well, he said, to consider whether the groups are providing any evidence when making harassment claims.

Theyve caused a great deal of unnecessary anxiety within the Muslim community, he said.

Those same advocacy groups often get media attention, says Harris, because no one bothers to look into their backgrounds.

If they did, he notes, theyd find that there are plenty of self-proclaimed moderate muslims in North American who nonetheless support the same radical salafist position as terrorists.

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