© Mike Larsen, 2006
Contemporary terrorism is perceived as a phenomenon largely unbound by geography, and this has posed challenges for state responses, at both operational and normative levels. Multi-national and multi-sectoral cooperation in anti-terrorism, while demanding collaboration between actors, also gives rise to moral-ethical conflicts and barriers to effective accountability. These two issues – the transgression of norms and the problem of accountability – are fundamentally related, with the latter facilitating the former. I will discuss this through the example of the recently-concluded Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (2006), and discuss the value of transnational criminology as a means to make sense of the Commission findings and to explore ‘conditions of possibility’ that might reduce the potential for future violations of this kind.
To begin, it is important to note a few salient features of the contemporary (post-September 11) national security context, as influenced by the US-led ‘war on terror’. Western responses to the perceived imperatives of the ‘new normalcy’ (Serfatay, 2002) have been characterized by broad expansions in the powers of policing and intelligence agencies, in the transmission of intelligence between states and between state and non-state actors, and in the general expansion of security portfolios. At a rhetorical level, these expansions have been couched in a state narrative that emphasizes themes of urgency, exceptionality, pervasive threat, and novelty; terrorism, in other words, is described as the most pressing threat to western states (CSIS, 2004), and one that demands us to ‘do something’ serious in response. At the same time, we are time and again told that the context in which this action must take place is essentially new and exceptional – the Canadian government prefers the term ‘new reality’ (PCO, 2004; PSEPC, 2005) – and that our responses must be equally novel and exceptional.
In Canada, one of the products of the post-September 11 state mobilization has been the drafting and implementation of the country’s first ever formal national security policy, ‘Securing an Open Society’ (PCO, 2004). One of the key themes of this policy document is the need to build an integrated security system (ibid, p.p. 9-14), whereby ‘key partners’ work in close collaboration, and share resources and information. This is a common characteristic of post-September 11 security policies, partly due to the perception that the September 11 attacks were the result of a ‘failure of intelligence’ caused by ineffective communication.
The emphasis on collaborative national security efforts has translated into a re-blurring of the operational boundaries between policing and intelligence gathering that were created following the 1981 McDonald Commission’s investigation into the practices of the RCMP (Friedland, 2001). Criminologists have described this blurring as a post-September 11 intensification of the relationships between ‘high policing’ and ‘low policing’ (ex. Brodeur & Leman-Langlois, 2006). At the same time, the common understanding of terrorism as a threat with “transboundary implications” (PCO, 2004, p. 16) has meant that intelligence-collection and sharing has an increasingly transnational quality. Information flows are multi-directional, fluid, complex, and governed by an array of agreements ranging from informal arrangements to contractual partnerships (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, 2004). Of critical importance, both national and transnational security intelligence practices are governed by an increasingly robust regime of secrecy, such that important mechanisms and arrangements are ‘protected’ from public scrutiny under national security confidentiality privileges.
The final report of Justice O’Connor in the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (2006) points to serious problems with the mechanisms through which security intelligence is gathered, evaluated, and transmitted – both internally and to other agencies – by the RCMP. Mr. Arar’s detention by US officials, rendition to Syria, and year-long torture and interrogation in that country provides a case study in the consequences of an approach to security intelligence that fails to pair the transnational flow of information with effective commitments to oversight and individual rights.
The Commission has found that the RCMP knowingly passed poorly-screened (and therefore inaccurate) information about Mr. Arar to American authorities, with the insinuation that he was a suspected member of the terrorist organization al Qaeda. In the immediate post-September 11 context, given the climate in the United States, this set off a chain of events that resulted in the decision to render Mr. Arar to Syria, and prolonged period of torture and interrogation there, during which time Canadian officials not only failed to take strong action to secure his release but availed themselves of intelligence products produced by his torture, and then attempted to cover up their actions (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, 2006, p. 14). The decision to render (extra-judicial transportation for purposes of national security or state-sanctioned kidnapping) Mr. Arar to Syria – as opposed to a Western country – was a deliberate one, designed to take advantage of the lack of restraints surrounding detention, interrogation, and prisoner treatment practices in that country. This reputation was well-known to the officials who made the decision, and to international human rights groups and governments. What was done to Mr. Arar in Syria could not have been done legitimately in Canada or the United States, due to established norms of conduct, standards of due process, and mechanisms of oversight. In the context of a transnational ‘war on terror’, however, it was possible for American (and Canadian) officials to circumvent these norms by outsourcing this particular aspect of the intelligence-gathering process.
In addition to the troubling findings of the Commission report, testimony from Canadian intelligence officials during the Commission hearings provides further illustration of the problems associated with ‘new’ (and pre-existing) forms of intelligence-gathering and sharing. Ward Elcock, former director of the Canadian Security Intelligence Service (CSIS) testified that “ all [security intelligence] services now increasingly, even larger ones, would recognize that they cannot secure their own security if you will by themselves; that the necessity is to have relationships with other organizations in the international sphere” (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, 2004, p. 90). Upon further questioning about the nature of these relationships, Elcock acknowledged that CSIS has a great deal of leeway in the development of information-sharing policies, both in terms of giving and receiving intelligence. Critically, CSIS enters into reciprocal intelligence-sharing relationships with states in the knowledge that the other party may have a dubious human rights reputation. Moreover, on the subject of the value placed on information that comes from torture, Mr. Elcock’s testimony indicates that not only is such intelligence not automatically discounted, but that CSIS as an agency does not have an official definition of torture, and therefore does not have an official legal basis for determining whether or not it is making use of the products of torture (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, 2004, pp. 213-216).
Clearly, the Arar Commission points to a number of very serious problems associated with the practices of ‘high policing’, intelligence gathering, and intelligence sharing in Canada and abroad – many of them the result of decisions to deliberately transgress or wilfully ignore norms through the mechanism of transnational cooperation. It also points to fundamental problems with the accountability and oversight of policing and security-intelligence actors in the contemporary context. The commission itself suffered from a severely-restricted mandate. It was empowered to conduct a fact-finding mission, and to offer recommendations in relation to the oversight of the RCMP. Members of other stakeholder agencies, such as Mr. Elcock, offered testimony, but the commission was not empowered to make recommendations about the governance of these agencies. Key parties in the affair – notably the American authorities and the Syrians – could not be compelled to provide information or indeed to participate, and Commissioner O’Connor notes that “In a few instances, however, I have been hampered by the lack of evidence of officials of these other countries” (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, 2006, p. 11). This is perhaps an over-generous statement; in point of fact, the Commission’s terms of reference reflect the absence of an empowered, transnational mechanism to provide accountability and oversight in such complex situations.
The relations of policing and intelligence-gathering that gave rise to the ‘Arar affair’ transcend the boundaries of traditional criminology in a way that is well-understood by scholars with a transnational focus. Wood & Kempa’s (2005, p. 297) discussion of ‘nodal governance’ captures this well, in that it recognizes the plurality of ‘auspices and providers’ that take part in the governance of new forms of policing. Rather than focusing on public-private dichotomies, a ‘nodal’ approach makes it possible to theorize the practice of policing as one that takes place at the nation-state level, above the nation-state level (Sheptycki, 1998, cited in Wood & Kempa, 2005), and at a ‘glocal’ level. It seems that just such an approach is needed to make sense of the new dimensions of policing and intelligence-gathering. The ‘Arar affair’ is perhaps best understood as the product of a set of relations between a loosely-governed (ad-hoc, even) network of policing and intelligence nodes. A proper study of these relationships would probably find that the experience of Mr. Arar was not an aberration, but rather an inevitable result of post-September 11 policy.
I propose that one of the reasons for this inevitability is the absence of effective oversight and accountability mechanisms for transnational security intelligence practices. In a complex and transnational system of relationships where the normative (and legal) constraints of one actor can be overcome through collaboration with other actors, where key arrangements take place under the veil of secrecy, and where the outcomes of decision-making processes have direct consequences for social control, transgressions of this nature are essentially built-in. Moreover, attempts to overcome this inherent complexity that remain bounded by traditional concepts and categories fail to address crucial underlying problems. In the case of the Arar Commission, this manifests in the possibility of a limited-mandate inquiry, with a strictly national focus that deals primarily with one actor (the RCMP). Actions taken to increase the oversight of the RCMP may have ripple effects on the other ‘nodes’ of the security-intelligence relationship, but this is altogether different that a reflexive, transparent, and democratic governance process.
Transnational criminological approaches can offer opportunities for expanded ‘governmental reflexivity’ – particularly through democratic accountability – in relation to security intelligence. This sort of intervention has produced successes in the field of public policing, notably in conflict areas such as South Africa and Northern Ireland (Wood & Kempa, 2005). As important as the success stories is the fact that the discipline of criminology is equipping itself to engage in and take ownership of such challenging problems of governance in the first place, as noted by Hardie-Bick, Sheptycki, and Wardak (2005), and Chan (2005). Exactly what forms effective security-intelligence accountability mechanisms might take is unclear, although the current problems suggest that a transnational, arms-length governing body able to contend with the plurality of actors and jurisdictions would be ideal. Viewed as a form of globalized inquiry that is attempting to move past the debate of relativism vs. positivism by acknowledging and adhering to commitments to human rights, transnational criminology seems well-equipped to explore the challenges of new security-intelligence relationships. This reflexive but post-relativistic commitment, expressed by Sheptycki (2005) through the recognition of the universality of harm, is particularly appropriate as a tool to challenge the deliberate normative transgressions that characterized the experiences of Maher Arar.
