National security framework needs major overhaul
By Faisal Kutty
Over the next few weeks, rights groups, lawyers, activists, experts and concerned individuals will all weigh in on how to achieve a National Security framework upholding both security and rights. The problems with the existing framework are too many to canvass here, but there are a few things that must be done.
First, CSIS must stop its practices of: showing up at homes and workplaces unannounced at odd hours; speaking with employers (who are ordered not to disclose this fact); offering incentives for “information”; intimidating newcomers; questioning people about specific institutions; inquiring about one’s religiosity; and discouraging people from legal counsel.
The situation is so dire that rights groups have had to distribute thousands of “know your rights” guides and organize workshops across the country on dealing with security agencies.
Most don’t have the courage to stand up, as anti-war activist Ken Stone did. “The visit was not warranted under the mandate of CSIS,” says Stone. “It caused anxiety for me and my family.”
Stone was allegedly flagged for his trip to Iran and a 2012 Hamilton Spectator oped he wrote, titled “Harper is wrong in demonizing Iran.”
Like the hundreds of others (who our law firm is aware of), Stone felt agents showing up at his house unannounced was an attempt at intimidation. Stone raised funds, in part through crowdfunding, and complained to the Security Intelligence Review Committee (he is awaiting for decision from his 2015 hearing).
Most Canadians would be aghast at some of the innocuous actions that trigger such visits.
A sample from my own clients include: An engineering student searching, wait for this, engineering journals; hugging someone at an Eid gathering when this is part of the festive rituals; and attending lectures about rights. The net effect is to bring an end to, or curtail a person’s exercise of, basic constitutional rights (association, religion and expression).
Such visits can only multiply considering the additional extraordinary police and disruption powers, pre-authorized warrants to violate charter rights and the overbroad offence of advocating or promoting “terrorism offences in general” — all courtesy of Bill C-51.
A second black mark concerns Canada’s “complicity” in torture and other rights violations as called out in a stinging report earlier this year by the United Nations Committee Against Torture.
The government did own up to Maher Arar in 2007 after a Commission of Inquiry. Sadly, despite calling for this while in opposition, the Liberals now refuse to apologize and compensate Abdullah AlMalki, Ahmad Abou El-Maati, and Muayyad Nureddin for suffering the same fate. Disturbingly, Ottawa is also not prepared to rescind a directive allowing our agencies to use information obtained through torture.
Other Canadians (Dr. Mahboob Khawaja and Kassim Mohamed) have come forward publicly with allegations of our complicity in their detentions (and even torture) in Egypt, Saudi Arabia and Pakistan. Numerous others fear coming forward.
As noted by prominent national security lawyer Barbara Jackman, Canada has effectively but quietly adopted an indirect form of rendition — getting foreign governments with questionable human rights records to do the “dirty work.”
Presumably only a few are on lists to be detained overseas, but many more find their names on lists barring them from flying, wiring money to loved ones and even having bank accounts as the ever-expanding matrix of terror lists (without adequate checks) cross-pollinate across agencies and beyond borders. In most cases there is no recourse and if there is then the victims lack resources to mount legal challenges.
Ottawa must release the number of national security “visits,” those questioned overseas at our behest, those caught up on other lists, their nature and the groups targeted, if not publicly then to the new parliamentary oversight committee envisaged by Bill C-22 (which has issues of its own).
Legal aid must also be made available to those ensnared in our national security web merely through guilt by association and the inevitable false positives. Too many innocents are compelled to clear their name and participate in interviews without legal counsel with serious implications on their immigration and citizenship status, jobs and fundamental freedoms.
The government says it is committed to openness, transparency, and accountability. It must address the above if it wishes to have any real success recruiting Muslims in fighting terror. Otherwise, the anti-radicalization and counter-terrorism office may be a non-starter with the community it seeks to engage.
Faisal Kutty is counsel to KSM Law, an associate professor at Valparaiso University Law School in Indiana and an adjunct professor at Osgoode Hall Law School. @faisalkutty.
[This Op-ed was originally published in The Toronto Star on Friday, October 21, 2016]