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of Law University of Ottawa at the Department of Justice Human Rights Law Charter Conference Ottawa, Ontario November 9, 2010 INTRODUCTION It is a great honour and privilege to address this year’s Human Rights Law Charter Conference and I thank the organizers for their invitation. But of course, the invitation posed its own problems, not least what to say and how to say it. I ultimately arrived at the decision of being provocative; provocative in a mild, restrained and pleasant manner, but provocative nevertheless. My decision was prompted, not by a desire to be some sort of polemicist, but rather in the hope that in being provocative, I might galvanize responses from you that might help me to understand better the policy environment in which all of you operate – that is, in provoking feedback I might help cure, at least in part, one of the things that troubles me about the work I do as an academic looking in from the outside – the lingering but often strongly felt fear that I may not know what I’m talking about at all. THE RULE BY LAW CRITIQUE And so that brings me to the title of my presentation – I’d like to begin by unpacking my title a bit and then focusing on its implications from a general point of view. I them want to illustrate some of these general issues with an eye to a specific illustration; the UN Security Council 1267 system, as implemented into Canadian anti-terrorism law. And in the interest of full disclosure, this reflects some writing Kent Roach and I have been doing recently, including a piece forthcoming in the GWU international law journal, and sparked in part by a more descriptive research paper he and I compiled for your department earlier this year I’ll start with “legalism” – for my purpose, legalism is the view – often strongly held in our profession – that law can cure problems; or as Eric Posner has put it, “the view that law and legal institutions can keep order and solve policy disputes”. In its conventional manifestation, legalism is reflected in the view – help with greater or lesser degrees of explicitness by legal academics – that law is better than policy and both law and policy are better than politics; and that courts are more worthy than politicians. There is much truth in this, and I have strong legalist propensities myself – but l acknowledge that legalism is highly elitist and almost entirely anti-democratic For our purposes in this talk, I intend to focus on legalism as a reaction to dilemmas in national security. But the focus is not the bright shiny legalism of the small “l” liberal – the legalism of rational rules applied by rational individuals, many of them be-robed and behind elevated daises. Instead this is a legalism labouring under what I will call the philosophy of “rule by law”. Some of you may be familiar with David Dyzenhaus and what he has been saying about rule by law. I shall borrow from him and describe rule by law as a framework of governance in which all the trappings of legalism are maintained, but divorced from certain underlying values that animate legalism as a system governed by the “rule of law”.
In the views of Dyzenhaus and others, the rule of law means more than the minimum requirements of say, the Manitoba Reference case: there must be law, the law applies to everyone and power can only be exercised as authorized by the law. Instead, it requires more: adherence to certain fundamental values without which the rule of law is largely empty; not least close adherence to due process. Legalism without adherence to these fundamental values is just a form of social control without countervailing virtue – it is literally the act of ruling by law. The South African system of apartheid is an archetypical illustration of this – richly legalist and morally bankrupt Now on to my topic proper. There is a strongly held view in some quarters that Canada’s – and not just Canada’s – but much of at least the common law world’s -- approach to national security over the last decade is about rule by law, not rule of law. This is not to say that we have witnessed the extremes of an apartheid-era South African legalism – or at least not usually, although some of the convoluted discussions of the reach (or non-reach) of various principles of domestic and international law to the conduct of militarized anti-terrorism has some of the same sort of flavour – the famous torture memos in the United States, for example, are legalism is service of power, not speaking truth to power In Canada, the rule by law critique has several dimensions (not all of which are necessarily captured in the writings or positions of any one critic). I’ll lay them out for you in a sort of reverse order of what I think is their importance – I should say, in fairness, that I have a large measure of sympathy for these views: First, national security law in this country is more about muddling through than effective design. Laws are crafted on almost a piecemeal basis to deal with particular issues as they arise, and when ineffective or discredited they linger on the statute books or as some latent policy, ticking away to germinate a new crisis. A brief list of things that need some careful thinking, only some of which seem to be on the legislative agenda: 1. Repealing and replacing the unconstitutional anti-leakage provision (s.4) in the Security of Information Act; 2. Curing operations of the Canada Evidence Act (especially s.38 and its bifurcated court system in which Federal Court judges adjudicate s.38 matters even while provincial superior court judges hear underlying criminal proceedings); 3. Security certificates (and especially the question of intelligence as evidence, the implications of Charkaoui II and the issues raised in the unsuccessful effort to appeal the ultimate holding in Charkaoui through certified questions); 4. Removal to torture, and the question of diplomatic assurances or some other alternative; 5. Revamped lawful access rules (especially in relation to internet communications); 6. Information-sharing between Canada and foreign governments, which continues to percolate as at least a legacy issue from the Arar and Iacobucci inquiries and in the annual reports of the Security Intelligence Review Committee; 7. The scope of the Communications Security Establishment Canada intercept authority under the National Defence Act; 8. Preventive detention; 9. Investigative hearings; 10. Review by specialized review agencies of the security services (most notably, the RCMP); and, 11. Enhanced Parliamentary review in the national security area
I could add more administrative issues to these – including the fact that CSIS’s review body – SIRC – has grown at only a fraction of the rate as CSIS in terms of funding and personnel, and, my suspicion is, can’t possibly perform its role as effectively as it would be able to do if better funded Second, when national security is balanced against rights, the solution seems to be one of rights minimalism – that is, when compelled to incorporate due process protections in things like, for instance security certificates after the 2007 Charkaoui decision, the government prefers a course that is minimally accommodating of rights – yes, we are obliged to have special counsel, but no, once apprised of the secret information, they can’t speak to the person subject to a certificate, even with strict non-disclosure obligations and even though there counterparts in SIRC, when that body dealt with security certificates, could Third, there is what I’ll call salted earth litigation strategies. I know that there are people here that have worked on some of these cases – I know that I am about to be controversial. But at least some of the lawyers on the other side of you take the view that the government strung out losing cases and took untenable positions and used legal proceedings to delay inevitable results rather than conceding the broader points at issue. I know that there are strongly held views on your side of the table – and in some of these cases I think there were important principles to be defended. I’m no so sure about others: the prosecution should not have been brought in Mejid given the actions of the CSIS officer; the pitched battle over whether Abdelrazik should be able to return from Sudan was a loser and should never have been fought; the secrecy claims in relation to the embarrassing paragraphs in the Arar report should never have been contested in Federal Court; the government’s claims that it would be detrimental to national security even to ask for release of third-party controlled secret intelligence from the originating intelligence service in Charkaoui was problematic; the abuse of process findings in Harkat and Almrei were devastating and depressing, although it may be unfair to ask the lawyers to wear the consequences of their CSIS client in those cases; I’m not yet sure what to make of the mess around the Afghan detainee saga, but I doubt that in the end all will come up rosy, and I think the government could have moved much earlier to improve the transfer arrangement, and not simply on the eve of the Amnesty judicial review hearing. The list could go on. I’m sure there is a story for each of these cases – and I am not close enough to any of these matters to truly be able to rebut that defence. Suffice it say that there is a view out there that zealous advancement of the interests of the government client needs to be balanced by a prosecutor-like inclination to see justice done, even in matters that are superficially civil given the consequences that can and do befall those subject to these legal proceedings. And there is a view out there that that balance has not been struck by the government and their lawyers in these and other cases. Some of this view is held by persons who’s viewpoints are such that I might doubt their good faith in making such assertions. But still others have also expressed this opinion in my presence, and these individuals include members of the bar of some standing, albeit as defence lawyers, but ones who are not blinkered to the other side of the coin There is, of course, the flipside: namely, that doing national security law is hard and that government lawyers are on the pointy end of the stick, constantly grappling which situations in which, were they to err, danger – possibly of an almost unimaginable sort – might ensue. As as an outside observer, therefore, one cannot fully and fairly understand until one has lived that life. I have not, and so I believe the rule by law critique must be provisional; there is, however, enough evidence in support of it to leave me uneasy about the current state of the practice of national security law and leave me wondering about whether we are able, as a profession and a society to reach what I call the Goldilocks point – the point of fine balance between national security and the rule of law where neither rights nor national security is either too hot or too cold, but just right
THE 1267 PROCESS AS AN ILLUSTRATION OF THE DILEMMAS OF NATIONAL SECURITY LAW In the time that remains for me, I want to ask what the implications of the quest for a fine balance will be for a matter of current controversy – the infamous UN Security Council 1267 Al Qaeda and Taliban affiliates listing process. And I intend to do so with am eye to several regular dilemmas that confront anyone trying to find the Goldilocks point. Preserving democracy in combating tyranny For those who don’t know, the 1267 Committee is a subcommittee of the UN Security Council established originally in the late 1990s as a body listing members of the Taliban and then Al Qaeda on a list of persons with whom UN members were then obliged to bar their nationals from having certain dealings, most notably of a financial sort. It is a form of international blacklist – more doctrinally known as a smart sanction – established by the Security Council but implemented domestically Having gone through several rounds of revision and refinement, it persists and is implemented in Canada by regulation under the UN Act, the instrument which authorizes the Governor in Council to implement into Canadian law measures required by the Security Council involving things other than use of force. It is, however, unusual, in being global in reach, indefinite in duration and in including a substantial number of individuals. These individuals are placed on the list unilaterally by the highly political body -- the Security Council (or more correctly, its committee subset) -- based on some rather undemanding expectations as to what is required to justify listing. And it is very difficult to get off this list, something that has galvanized a round of reforms – including more recently an ombudsperson to facilitate de-listing requests, but who lacks the capacity to do much more than facilitate. Both listing and delisting are mired in secrecy – not just secrecy in terms of SC deliberations themselves, but also secrecy surrounding the actual evidence that supports listing – there is no requirement that the country seeking listing disclose any of this in any real sense to anyone – whether other SC members, the ombudsperson or the listed person It is also unusual that the regulations implementing the system – the Al Qaeda and Taliban Regs -enumerate a large number of effectively criminal penalties for having financial dealings with listed individuals of a type that overlap in part with the sort of financing of terrorism crimes one now finds in the Criminal Code. But of course in the case of the Criminal Code, those are true crimes enacted by Parliament. The Al Qaeda and Taliban Regulations are not offences enacted by Parliament, an issue to which I will return You will know that the Security Council is a body comprising 15 states, five of whom sit on the Council permanently. It is not a representative body; nor is it a democratic body – those five members enjoy a veto. Resolution 1267 and a few others such as 1373 and 1540 are unusual – they mark a new era in Security Council practice where the Council in essence prescribes the introduction of new legislative measures in UN member states – that is, the UN Security Council legislates. The result is what elsewhere I have called a form of hegemonic federalism: a non-representative international body on which the great powers – the hegemons in international relations parlance – exercise substantial powers – dictate the content of law for member states. In the Canadian context, that decision is then implemented by the executive without recourse to Parliament, because of the reach of the UN Act – a statute formed before the Security Council got into the legislative business.
There are obvious democratic implications of this system; hence the reference to the dilemma of preserving democracy in combating tyranny – in this case terrorism. I’d give us at best a “D” on that front in relation to the 1267 system. It risks becoming an “F” if, as will inevitably happen and may be happening in the continuing litigation around Abdelrazik produces the outcome witnessed before the UK Supreme Court in the al-Ghabra et al cases: namely, that the aggressive use of a UN Act to then introduce comprehensive anti-terrorism crimes via regulation is viewed as ultra vires the quite different authority parliamentarians likely had in mind when they passed the statute. It’ll be back to the drawing board, as to a certain case is has been in the UK Using Law to respond to chaos The 1267 system also, of course, is a form of legalism – it has all the trappings of law, both international and domestic. But it is come very close to becoming a posterchild for the rule by law critique of legalism First, at some level it is attainder without due process – in essence a purely political body, applying political judgment, blacklists using something that looks a little like a judicial mechanism but without acting in a judicial manner – without applying natural justice. The result is not far off a bill of attainder – the act of legislatively prescribing guilt – something we’ve moved away from a few centuries ago in the common law world. That may be well and good at the international level, but international rule by law meets domestic rule of law, and the result may not be pretty. The 1267 list depends on domestic implementation and by one count, a few years back, there were some 30 states in which challenges were afoot to the 1267 process, as implemented domestically. The result is what Kent Roach and I have called the dualist challenge to the 1267 process – domestic courts applying domestic constitutional and rights rules second guess domestic measures implementing an international system bereft of due process. In a number of instances, they are effectively indifferent to the Security Council origin of this obligation The most famous example of this is the European Court of Justices’ decision in Kadi, invalidating the listing of Kadi for, in essence, due process shortcomings. While it was careful to confine its critique to the due process shortcomings of the EU implementing measures, those shortcomings were a product of the Security Council shortcomings. The EU cannot cure what it cannot control. That is why the European Court of First Instance just in September invalidated the relisting of Kadi along with half-hearted measures that superficially intended to capture due process standards. In doing so, it condemned the 1267 process: the Security Council has still not deemed it appropriate to establish an independent and impartial body responsible for hearing and determining, as regards matters of law and fact, actions against individual decisions taken by the Sanctions Committee. … the creation of the … the Office of the Ombudsperson cannot be equated with the provision of an effective judicial procedure for review of decisions of the Sanctions Committee What is true for Europe is almost certainly true for any other jurisdiction inclined to require due process before imposing the significant strictures associated with 1267 listing, including Canada I can imagine no circumstances in which the 1267 approach can survive a Charter s.7 challenge – and listing has such a significant impact on an individual’s security of the person I think it indisputable that section 7 is triggered. Whether it would be saved by a section 1 analysis depends, it would seem, on whether a court would accept a “the Security Council made us do it” defence, situated in the
appropriate place in the section 1 discussion. There are many persons in this room more expert on section 1 than I am – but I have my doubts that such an argument would prevail, given the thumbing of the nose now given the Security Council in Europe. But I also think there is reason to doubt whether the 1267 listing is at all useful – there is some doubt expressed in the literature even by those who generally favour these kind of measures. Ineffectiveness when coupled with the Security Council’s stubborn resistance to truly cure its process does not make the government’s defence of this case much easier Acting transparently in responding covertly At the end of the day, as in so many other national security matters, the problem with the 1267 regime lies in secrecy. There will be a balancing, of course, between security and disclosure. But the wisdom of many – if not most -- courts that have recently sat in judgment of this question and concluded that some disclosure must be preserved, is the fear that secrecy at some level means impunity; freedom to act capriciously without being held to account. In the 1267 context, states will not provide their intelligence to the Security Council, let alone all the national courts that may be adjudicating these questions In the result, rule by law reaches its limits as soon as the bumps up to an irreducible minimum element of law that requires some modicum of disclosure – and so the 1267 system will crash and burn. I think there are only three solutions, given this conundrum: • abolish the 1267 system and rely on potentially uneven domestic systems of dealing with Al Qaeda and Taliban terrorism financing • maintain the status quo and accept dualist complexity – the fact that the list will no longer be universal and that states who toe to the due process line and where challenges are brought will apply a list stripped of those who do bring challenges. My personal view is that Canada will join the ranks of those states • upload the rule of law On this last point, the Security Council is not without experience is creating international entities that honour the rule of law – the ad hoc tribunals for Rwanda and the former Yugoslavia are creatures of Security Council resolutions. There is no legal reason – although there are surely political and financial reasons – why they cannot repeat the exercise and establish at 1267 tribunal. But to meaningfully honour due process, states must be prepared to share intelligence with the tribunal, perhaps involving compromise solutions like our special advocate system. It is hard to see states doing so happily, but then I suppose everything will turn on how important it is to preserve the 1267 system. And so in conclusion, let me ask what Canada should do in all of this: which of the hard fights do we choose: do we fight to save the Al Qaeda and Taliban Regs from a Charter challenge and an ultra vires challenge, or do we acknowledge the Kadi world-view and realize that our fight should be to build a better system at the international level; to upload the rule of law, in other words. The choice we make, I think, will say something about whether the critique I began this talk with today is a propos the way we do national security law in this country, or not. My pitch I suppose – as naïve as it may sound -- is to expend money and effort where it is deserved: in the UN, not in the Federal (and probably ultimately, the Supreme) Courts. Canada may not have been selected to be on the Security Council; but we surely can still play a role in making it a better place for the rule of law Thank you.
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