Sunday, May 07, 2006

Suspicion and False Positives


Five men, including an Israeli and four Angolans, were detained by airport security authorities in Newark, NJ yesterday, after a US Air Marshal called in a report of ‘suspicious passengers on board’ an inbound American Airlines flight from Dallas-Fort Worth. The men were apparently speaking in foreign languages (Portuguese) and carrying aircraft flight materials, which caused passengers – and the Air Marshal – to become suspicious (although officials would not comment on exactly what about the men aroused suspicion).

Upon landing in Newark, the men were detained (searched, handcuffed, and taken into custody), but they were released a short time later when it was discovered that they were returning from helicopter flight school in Texas. Four of the men belong to the Angolan military (The New York Post online edition, reporting a day after the incident, still elected to entitle their article “TERROR SCARE ON NEWARK FLIGHT,” and to propose that “Five foreign nationals caused an air scare on an American Airlines flight to Newark Airport yesterday …”).

After the passengers became suspicious, the Air Marshals and a DEA agent onboard the flight took up positions to guard the plane, according to the New York Times. Also from the Times “Some passengers interviewed last night said there was nothing suspicious about the men. The men acted like "a group of people traveling together who didn't get seats together," said Barbara O'Reilly, 66, a passenger from Tulsa, Okla. "I was really surprised" that they were taken into custody, she said.”

The Times reports that, despite the ‘false positive’ scenario that took place, an FBI spokesperson feels that “"We would never second-guess anyone who sat through this," he said. "We'd rather people report their observations. That's exactly what happened here."”

Press releases from officials on this incident are apparently unavailable, except via media reports. In searching for a statement from the Newark Liberty International Airport (maintained and operated by the New York / New Jersey Port Authority), I checked the NLIA website. The front page didn’t offer any information on the incident, but I was struck by the prominent ‘Report Suspicious Activity’ link. The whole event aboard the American Airlines flight was, after all, a reaction to ‘suspicious activity.’ Clicking on the link takes you to a big .pdf poster with a red background and white lettering that says: “Now’s the time to report something, not when it’s on the news. If it looks suspicious, it is suspicious.”

If it looks suspicious, it is suspicious.

It’s a simple statement, but it’s also a launching point for an exploration of the psychology of suspicion and vigilance that has emerged in the United States and elsewhere under the guise of post-September 11 anti-terrorism efforts. The four Portuguese-speaking Angolans aboard the flight clearly ‘looked suspicious’ to the Air Marshalls and some of the passengers; enough to warrant a secure landing procedure and their detention and questioning, at least. Of course, despite the FBI’s position that the passengers and marshals acted in a textbook fashion, there has been no official statement as to exactly what it was about the actions of the men that was suspicious.

In December 2005, US Air Marshals shot and killed a man with bipolar disorder who had failed to take his medication, behaved erratically, and claimed to have a bomb (which he did not). Clearly this behaviour aroused suspicions. There are training manuals and publications that articulate ‘official’ positions on what constitutes suspicious behaviour regarding terrorism. The International Association of Chiefs of Police, for example, have published ‘training keys’ (number 581 and 582) regarding suicide bombers that clearly articulate a checklist of attributes that ought to arouse suspicion (check out no. 581 for a review of attributes). British Metropolitan Police affiliated with Operation Kratos profiled, shot, and killed Jean Charles de Menezes based on a similar specialized knowledge of what constitutes suspicious activity (shortly after he was shot eight times, it was discovered that de Menezes was not a suicide bomber).

The sort of profiling and the doctrine of pre-emption that underlies the IACP training keys, Operation Kratos, the December 2005 Air Marshal action, the July 2005 shooting of Jean Charles de Menezes, and – most likely – the detention of the Angolan passengers is problematic and worthy of close scrutiny. As we have seen, not all ‘false positives’ lead to a few hours’ worth of detention and questioning. But the Newark Airport poster speaks to something altogether more generalized, and I would argue, more insidious. The London Metropolitan Police have used similar posters in their recent anti-terrorism campaign (entitled ‘You Are That Someone’).
What we see in these campaigns is the official endorsement of attitudes of generalized suspicion and mistrust. If it looks suspicious, it is suspicious. If you see something, say something. Officially, four Angolan men speaking Portuguese and looking at flight manuals on an airplane cannot be described as suspicious activity, but when Air Marshals and passengers react to it with suspicion, it is considered a ‘textbook’ example of what ought to be done. It is recommended that citizens be vigilant and imaginative in their roles as unofficial anti-terrorism agents. Posters in the UK call on the public to watch out for suspicious vehicles, transactions, tenants, and storage facilities. The Newark poster goes a step further and suggests that no suspicion is invalid. In a time where embracing the precautionary principle and engaging in pre-emptive prevention is seen the gold standard in counter-terrorism (and indeed war), a tremendous emphasis is placed on suspicion at the same time that the importance of verification is waning. It goes without saying (or, at least, it ought to) that generalized suspicion of the ‘other’ is not a characteristic associated with functioning democratic societies. Increasingly, though, campaigns that seek to generate anxious citizen-informants are becoming accepted in Western states, with the stated goal of protecting the nation against terrorism. The damage that such campaigns cause to the fabric of society – the net loss in the public experience of security and trust and the maintenance of paranoia – is considered to be a reasonable price to pay for the opportunity to gather information about suspicious activity.

In conclusion, though I can’t claim to be an expert on the scientific method, it seems to me that there is something wrong (broken, even) with a system that applauds false positives and encourages the behaviour that leads to them.

- Mike L

Thursday, May 04, 2006

May 4th Brief: Transport Security

On Tuesday, the DHS issued a nationwide warning to municipal public transport systems. Citing the arrest of several ‘foreign’ persons who were videotaping trains and stations in metro systems of unnamed European countries, it said that the risk of attack remained high. According to the Washington post “The bulletin…said the episodes provided "indications of continued terrorist interest in mass-transit systems as targets and potentially useful insight into terrorist surveillance techniques." One tape included 17 minutes of subway footage, but no tourist sites. The memo also specified that this did not consitute a specific threat and the alert level would not be raised.

In the DHS’ 2004 memorandum on information sharing between infrastructure operators and authorities, the first three criteria for reporting deal with reconnaissance and uncommon interest.


Yesterday, in
London, Sir Richard Mottram the UK government's Security and Intelligence Co-ordinator told MP's in regards to transit security that "It would be unreasonable to expect ... absolute protection against the terrorist threat we faced,”

He made the statement during the Transport Committee’s inquiry entitled “Traveling without Fear”. He said that airport style checkpoints would be impossible in an open transport system and that a better approach must include a social ‘process’ that would prevent radicalization and a more open system of communication between the government and public regarding risk. The inquiry will hear testimony over two days in an attempt to establish the government’s assessment of risk and infrastructure needs, the current state of transport security and international information sharing and lessons learned from other attacks.

Jerry Savill, the Met Police’s Commander of Special Operations also testified, saying that the level of risk currently borne by commuters is ‘very high’, the same as it was on July 7th.

- Jessica R


Wednesday, May 03, 2006

Trying to Understand the 'How' of the Kingston Immigration Holding Centre (KIHC)

Sophie Harkat, wife of Mohamed Harkat (who is currently being detained on a security certificate), reports that Mohamed (Moe) hates being in the new Kingston facility, and that he is concerned that the public will forget about him now that he is in the new institution. Sophie Harkat notes that it is possible to send letters of support to Mohamed at

MOHAMED HARKAT
Kingston Immigration Holding Centre
c/o CSC RHQ Ontario Region
440 King Street West
PO Box 1174
Kingston, ON
K7L 4Y8

The CBSA press release announcing the April 24 opening of the KIHC acknowledges that the facility is located on the premises of the Millhaven Penitentiary in Bath (near Kingston). The CBSA info sheets on security certificates are available here. CBSA notes that the four men currently being detained are “free to leave Canada any time they wish, and return to their country of origin or another country, provided that these countries are willing to accept them.” This is one of the responses the Canadian government has been citing to deflect criticism that it is holding the men indefinitely.

The location of the KIHC on the premises of a federal penitentiary is of some concern. One of the most significant effects of post-September 11 national security policy and legislation in Canada has been an ongoing process of ‘mandate creep,’ whereby the new imperatives of national security result in the expansion of existing organizational mandates or the blurring and crossing of mandates between organizations.

The KIHC appears to be an example of mandate creep / crossover in action. Millhaven is a maximum security prison, administrated by the Correctional Service of Canada. The Corrections and Conditional Release Act (1992) sets out the terms of reference and legal mandate for the Correctional Service of Canada. A few excerpts of note should demonstrate the problematic nature of the KIHC facility.


From the Corrections and Conditional Release Act (bolding is mine):

Purpose:
3. The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and
(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.

[…]

5. There shall continue to be a correctional service in and for Canada, to be known as the Correctional Service of Canada, which shall be responsible for
(a) the care and custody of inmates;
(b) the provision of programs that contribute to the rehabilitation of offenders and to their successful reintegration into the community;
(c) the preparation of inmates for release;
(d) parole, statutory release supervision and long-term supervision of offenders; and
(e) maintaining a program of public education about the operations of the Service.

[…]

“inmate” means
(a) a person who is in a penitentiary pursuant to
(i) a sentence, committal or transfer to penitentiary, or
(ii) a condition imposed by the National Parole Board in connection with day parole or statutory release, or
(b) a person who, having been sentenced, committed or transferred to penitentiary,
(i) is temporarily outside penitentiary by reason of a temporary absence or work release authorized under this Act, or
(ii) is temporarily outside penitentiary for reasons other than a temporary absence, work release, parole or statutory release, but is under the direction or supervision of a staff member or of a person authorized by the Service;

“penitentiary” means
(a) a facility of any description, including all lands connected therewith, that is operated, permanently or temporarily, by the Service for the care and custody of inmates, and
(b) any place declared to be a penitentiary pursuant to section 7;

‘Offender’ is defined by the Canadian Criminal Code as “a person who has been determined by a court to be guilty of an offence, whether on acceptance of a plea of guilty or on a finding of guilt.”


From the
Criminal Code of Canada:

743.1 (1) Except where otherwise provided, a person who is sentenced to imprisonment for

(a) life,

(b) a term of two years or more, or

(c) two or more terms of less than two years each that are to be served one after the other and that, in the aggregate, amount to two years or more,

shall be sentenced to imprisonment in a penitentiary.

[…]

Regarding Transfers:

(5)
Where, at any time, a person who is imprisoned in a prison or place of confinement other than a penitentiary is subject to two or more terms of imprisonment, each of which is for less than two years, that are to be served one after the other, and the aggregate of the unexpired portions of those terms at that time amounts to two years or more, the person shall be transferred to a penitentiary to serve those terms, but if any one or more of such terms is set aside or reduced and the unexpired portions of the remaining term or terms on the day on which that person was transferred under this section amounted to less than two years, that person shall serve that term or terms in accordance with subsection (3).

So, putting it all together, this picture emerges:

Millhaven is a penitentiary operated by CSC, and it falls under the provisions of the Corrections and Conditional Release Act. CSC is mandated to operate the federal correctional system, specifically with carrying out the sentences imposed by courts of law and by rehabilitating offenders. CSC is responsible for the care and custody of inmates, and an ‘inmate’ is a person who is in a penitentiary pursuant to a sentence, committal, or transfer (meaning the transfer to a penitentiary of persons imprisoned elsewhere for terms that when combined equate to two or more years). ‘Offender’ refers to a person who has been determined by a court to be guilty of an offence. Inmates / offenders who are sentenced to terms amounting to two or more years are to serve their time in a federal penitentiary, with those serving up to two years less a day serving their time in a provincial facility. A penitentiary is a facility (and connected lands) that is operated by CSC for the care and custody of inmates.

All of which is to say that the legislation governing CSC and federal penitentiaries does not appear to cover persons such as Mohamed Harkat or the other security certificate detainees. They do not fit the legal definition of ‘inmates’ or ‘offenders,’ as they have not been tried or convicted of any crimes. They are not sentenced to any specific term of imprisonment, which means that they technically should not be held on penitentiary grounds, as penitentiaries are meant for persons who are sentenced to terms of two years or more. And finally, since a penitentiary is defined as a facility (and its grounds) operated by CSC for the care and custody of inmates – which security certificate detainees are not – it would seem that the location of the Kingston Immigration Holding Centre on the grounds of Millhaven penitentiary is contrary to CSC’s own operating rules and mandate.

We can assume that there is some sort of legal loophole that allows for this co-location, but the point is that it must be a loophole, as the straightforward guidelines of the Criminal Code and Corrections and Conditional Release Act seem to preclude it. Unless some piece of legislation allows for the operation of the KIHC on the physical grounds of Millhaven but not on its ‘legal grounds’ as set out by the Corrections and Conditional Release Act, this facility is apparently operating in violation of CSC policy. In the coming weeks, we will be looking into this in greater detail. For now, it is sufficient to conclude that, despite the minimal attention it has received in the Canadian media, the KIHC represents a significant departure from the normal business of CSC – even though it is administrated by CBSA. Critics have called it ‘Guantanamo North,’ and while the exact nature of the facility remains to be seen, it clearly shares some of the ‘legal black hole’ status associated with the Cuban institution.

- Mike

Monday, May 01, 2006

May 1, 2006 News Items

This weekend was a busy one for national security policies, politics, and discourses. Here are a few highlights:

Canada

The Government of Canada has announced a full, formal inquiry into the Air India bombing of 1985 (to date, the largest terrorist event in Canadian history). The inquiry will be led by retired Supreme Court Judge John Major.

The purpose of the inquiry, according to Prime Minister Stephen Harper, is “about finding answers to several key questions about the worst mass murder in Canadian history.”

This decision differs from the conclusions of Bob Rae’s November 2005 report for the Canadian government, which called for a focused inquiry but stopped short of recommending a full, formal inquiry.

The Commission’s terms of reference call for it to report on these questions (as presented on the Government of Canada website):

· whether any systemic issues relating to the assessment of the potential threat posed by Sikh terrorism prior to 1985, and the response to that threat by Canadian government officials, have been resolved and, if not, the further changes in practice or legislation that are required to resolve them,
· whether any systemic problems in the effective cooperation between government departments and agencies, including the Canadian Security Intelligence Service and the Royal Canadian Mounted Police, in the investigation of the bombing of Air India Flight 182, either before or after June 23, 1985, have been resolved and, if not, the further changes in practice or legislation that are required to resolve them,
· the manner in which the Canadian government should address the challenge, as revealed by the investigation and prosecutions in the Air India matter, of establishing a reliable and workable relationship between security intelligence and evidence that can be used in a criminal trial,
· whether Canada's existing legal framework provides adequate constraints on terrorist financing in, from or through Canada,
· whether existing practices or legislation provide adequate protection for witnesses against intimidation in the course of the investigation or prosecution of terrorism cases, and
· whether the unique challenges presented by the prosecution of terrorism cases are adequately addressed by existing practices or legislation and, if not, the changes in practice or legislation that are required to address these challenges, in particular whether there is merit in having terrorism cases heard by a panel of three judges.
· whether further changes in practice or legislation are required to address the specific aviation security breaches associated with the Air India Flight 182 bombing, particularly those relating to the screening of passengers and their baggage.
The Inquiry’s terms of reference also call for the Commissioner to accept as conclusive or to give such weight as he considers appropriate to the findings of other examinations of the circumstances surrounding the bombing of Air India Flight 182.
Note that the focus of the inquiry – and its mandate – is the production of a report on ‘lessons learned,’ as opposed to formal conclusions about guilt, innocence, or wrongdoing.

US

The US State Department has released its annual Country Reports on Terrorism document, with data from the US National Counterterrorism Center. The report proposes that terrorist attacks worldwide quadrupled in 2005, with a total tally of 11,111 incidents. 30% of terrorist attacks took place in Iraq. Closer reading shows that the report methodology casts a much wider and more comprehensive net than the one used in previous years, which limits comparability.

The Washington Post notes that the State Department report uses the term ‘the long war’ to describe current global anti-terrorism efforts. This fits with current US administration discourses on the ‘war on terror.’

The report describes terrorist attacks as “premeditated, politically motivated violence perpetrated against noncombatant targets.” This definition is similar to that used by the US State Department, although the full State Department definition (Title 22 of US Code, Section 2656f(d) ) has traditionally added “by sub-national groups or clandestine agents, usually intended to influence an audience.”

The report tracks trends in organization and methodology, and it emphasizes an increase in ideologically motivated attacks perpetrated by unskilled / untrained and independent groups. Iran is mentioned as the “most active state sponsor of terrorism.”

The State Department has harsh words for Canada as well. It argues that Canada has become a safe haven for Islamic terrorists, and it proposes that open immigration policies and ‘weak’ counterterrorism efforts are to blame. Of note, the report argues that the political fallout from the (ongoing) Arar Inquiry is to blame for poor information-sharing between Canada and the US. It is clear from the report that, contrary to the Canadian position, the US still believes that Maher Arar was or is involved in terrorist activity. From the report: “However, media outcry over the U.S. deportation to Syria of a dual nationality
Canadian/Syrian terror suspect, and his alleged mistreatment there, threatened to disrupt
valuable information sharing arrangements between the United States and Canada.” Note that the report uses the word ‘alleged,’ which does not fit with the publicized and official conclusions of the Arar Commission’s Fact Finding Report, where Maher Arar’s experience in Syria is clearly described as torture. In fact, the ongoing Commission of Inquiry is not actually referred to in the State Department report; instead, the ‘fallout’ from the Arar case is described as being grounded in politics and media pressure. The State Department report also points out that ‘only one person’ has been arrested under the C-36 Anti-Terrorism legislation in Canada, with the implication being that countries that are serious about counter-terrorism ought to be arresting more people. Interestingly, the examples the report uses to condemn Canada are (in addition to Arar) the ‘secret trial five’ currently being held on Immigration Security Certificates (some since 2001), as well as the Khadr family’s activities. How the long-standing detention of these men (none of whom were apprehended in 2005) indicates a heightened terrorist presence in Canada or poor Canadian security efforts is unclear. The report was obviously written prior to the banning of the LTTE in Canada, as it identifies this as a problem area. I highly recommend reading the section of the report that relates to Canada, as it gives a brief but telling example of how the US administration and the Canadian public appear to be on completely different wavelengths regarding counter-terrorism (the position of the new Canadian government remains to be seen).

The report describes the Internet as a “Virtual Safe Haven” that has “empowered the enemy with the ability to produce and sustain its own public media outlets and to present its own distorted view of the world to further its agenda.” By contrast, Iraq is NOT currently described as a terrorist safe haven.

- Mike