Federal Government to Appeal Harkat Bail Decision

The federal government has announced its intention to appeal the decision by Justice Dawson to release Mohamed Harkat on bail / house arrest. Lawyers for the federal government will be asking a judge to delay Harkat’s release pending the conclusion of the appeal, according to the Ottawa Citizen. Mohamed’s wife, Sophie, has expressed ‘disgust’ at the announcement. It should be noted that Mohamed was never actually released following the May 23 decision by Dawson; The Justice for Mohamed Harkat committee has been working to raise the necessary $35,000 in bail to secure his release, and is still short. You can read Sophie’s comments on the situation, and her request for assistance, on the freemohamed website.

John Gray, writing for CBC In Depth, has an interesting commentary on the ability and willingness of Canadians to overlook secret evidence, detention without trial, and other practices in Canada, owing to the fact that they are not as egregious and recognizable as the practices at Guantanamo.

Mike L

Ottawa Police to Get Shoot-to-Kill Policy

Ian MacLeod of the Ottawa Citizen reports this morning that the Ottawa police will be getting new weapons and a mandate to shoot to kill in order to ‘eliminate’ mass murderers.

The new weapons will be given to 700 frontline police patrol officers. The Citizen says that the standard police policy in relation to ‘active killers’ will be moving from ‘containment’ to ‘neutralization.’ Compact C-8 CQB carbines (military weapons of the same caliber as the M16 or M4 – and of the type recommended by the IACP for suicide bomber interdictions) and the tactical response training required to use them will be provided to Ottawa police officers, at a total cost of $360,000.

In establishing the need for such a shift in policy and equipment, the Citizen cites a number of events, including the 1999 shooting spree at OC Transpo headquarters in Ottawa, the 1999 shootings at Columbine High School, the 1989 shootings at Montreal’s Ecole Polytechnique, and “the worsening global phenomenon of deranged and often suicidal gunmen opening fire in schools, shopping malls, restaurants and offices and randomly killing anyone in sight.”

Absent from the article is any reference to national security response activities, and it does not appear as though this development is being overtly related to any counter-terrorism programs. However, it is worth thinking about the recent history of ‘shoot to kill’ policies. The Operation Kratos program of the London Metropolitan Police and the Suicide Bomber Training Keys published by the influential International Association of Chiefs of Police (IACP) clearly associate ‘shoot to kill’ mandates with national security enforcement activities. The July 22, 2005 fatal shooting of Jean Charles de Menezes in London, on the erroneous belief that he was a suicide bomber, is an illustration of shoot-to-kill in action. In this situation, the suspicion that de Menezes was a bomber led police to adopt a ‘neutralization’ approach.

Again, there has been no statement by the Ottawa Police linking their new shoot-to-kill ‘neutralization’ policy in relation to ‘active killers’ to shoot-to-kill policies designed to preemptively ‘neutralize’ suspected suicide bombers. However, the ongoing shift towards a paramilitary style of policing, coupled with the anti-terrorism mandate given to all Canadian police officers through Canada’s Anti-Terrorism legislation, means that it is unlikely that this policy shift will not have some kind of national security component. It will be interesting to see whether the Ottawa Police are willing to comment on this aspect of their new training program.

- Mike L

Regarding Guantanamo:

From UN to US: “…cease the rendition of suspects; cease to detain any person at Guantánamo Bay and close this detention facility; take immediate measures to eradicate all forms of torture …”

The United Nations Committee Against Torture released its final report on the actions of America at home and abroad, in the context of the ‘war on terrorism.’ The recommendations of the Committee are unambiguous, and they run contrary to the US position.

Among other things, the Committee has recommended that the US should:

• Enact a federal crime of torture consistent with Article 1 of the Convention Against Torture (including psychological torture);
• Recognize that the Convention Against Torture applies at all times, and in all contexts;
• Ensure that no one is secretly detained – and disclose the location of any existing secret detention facilities;
• Investigate and prosecute any violations of the Convention Against Torture, be they related to the practices of interrogators or the orders of authority figures;
• Cease to detain any person at Guantanamo Bay and close this detention facility;
• Give detainees access to a judicial process or release them;
• Stop using sexual humiliation, water boarding, short shackling, dog exposure, and other acts that constitute torture or cruel, human, or degrading treatment;
• Review national penal practices, specifically execution and supermax imprisonment policies and conditions.
• And respond to core recommendations within one year.
  
  This report represents the latest and perhaps the strongest in a series of recent criticisms of US detention policy, including calls for the closing of the Guantanamo from the UK Attorney General and Amnesty International.
  
  Of particular interest is recommendation 14, which reads:
  
  14. The Committee regrets the State party’s opinion that the Convention is not applicable in times and in the context of armed conflict, on the basis of the argument that the “law of armed conflict” is the exclusive lex specialis applicable, and that the Convention’s application “would result in an overlap of the different treaties which would undermine the objective of eradicating torture”. (articles 1 and 16)
  
  The State party should recognize and ensure that the Convention applies at all times, whether in peace, war or armed conflict, in any territory under its jurisdiction and that the application of the Convention’s provisions are without prejudice to the provisions of any other international instrument, pursuant to paragraph 2 of its articles 1 and 16.
  
  In essence, this argument – and others like it throughout the report – rejects the idea of a ‘new normalcy’ in the rules of armed conflict. It proposes that, despite the nature of the American ‘war on terror,’ it is unreasonable to create legal exemptions to the Convention Against Torture, and to the rules governing the detention of prisoners.
  
  Also on the topic of Guantanamo, reports indicate that there was a clash between detainees and guards at the facility today, allegedly stemming from actions taken by guards to prevent a suicide attempt (using prescription drugs). The BBC reports that detainees used improvised weapons to attack guards, and that the ‘disturbance was quelled with minimum force.’ Six inmates were injured. Today’s events are said by the US military to represent the largest act of resistance by detainees since the inception of the facility. CBC’s description of the confrontation describes a coordinated plan by detainees to lure guards into a trap.

- Mike L

July 7 ISC Report and Home Office Official Account Released

The UK Intelligence and Security Committee Report on the London Terrorist Attacks on 7 July 2005 has been released. The headlines in relation this report are focusing on the findings that additional intelligence resources could (perhaps) have helped to prevent the attacks, and that several of the bombers were under surveillance as part of other investigations, as well as the differences in interpretation coming from UK security experts. The official UK Government response to ISC Report can be read here.

Note that the ISC Report is NOT the same as the UK Home Office Official Account of the July 7 bombings, which was also released to day and is available here. We will have a synopsis and analysis of this report available in the next few days. I highly recommend downloading and skimming through each report; the relative importance given to certain findings by the media differs from that given by the authors, and it is interesting to see what the 'official position' on the documents is.

Below are some items of interest from the Intelligence and Security Committee Report on the London Terrorist Attacks on 7 July 2005 (note that these points are in addition to the summaries of the report available from BBC, the Guardian, and in section 7 of the document itself):

• The preamble of the report notes that it does not contain all available information, so as not to prejudice ongoing judicial proceedings, indicated by large stars in the text. Additionally, sections of the report are redacted with ‘***’ for reasons of intelligence secrecy. For example, page 4 of the report states that “We record that *** terrorist plots in the UK have been thwarted by the intelligence and secrity agencies since 11 September 2001.”
• The report focuses on the events of and leading up to the July 7 bombings, the July 21 attempted bombings, and the investigations related to these events. The July 22 shooting of Jean Charles De Menezes, while directly related to the July 21 event, is not mentioned in this report.
• In writing the report, the ISC has drawn on the findings of reports produced by a number of other British security and intelligence agencies.
• The report focuses on answering several specific questions:
  
  -whether any intelligence which may have helped prevent the attacks was missed or overlooked;
  -why the threat level to the UK was lowered prior to the attacks and what impact this had; and
  -what lessons were learned on the back of the attacks and how these are being applied, in particular:
  – what reassessments of the threat have been made; and
  – what is being done to increase coverage of the threat.
• The UK counter-terrorism strategy is known as CONTEST, and has been operating since 2002. This strategy aims to “reduce the risk from international terrorism so that people can go about their business freely and with confidence.” The strategy focuses on active prevention and mitigation. Preparedness and protection are also focal points. JTAC is the body within the UK intelligence sector responsible for the compilation and analysis of intelligence on the ‘Islamist threat.’ The report describes personnel resource allocation in relation to threats and activities, although specific information is redacted.
• From the report: “In 2001, at around the time of 9/11, the Security Service knew of approximately 250 primary investigative targets in the UK.8 By July 2004 this had risen to over 500, of which only about *** could be investigated, and only *** intensively. By July 2005 the number of primary investigative targets in the UK had risen to around 800, only about *** % of which the Service was able to cover. Even then the degree of coverage on the most essential subjects was far from complete.”
• Pre-July 2005, the Security Service categorized targets into ‘essential,’ ‘desirable,’ and ‘other’ aggregate categories, in order to maximize resources on priority targets. Note that this implies a structural commitment to risk-based analysis and response.
• In describing the threat environment in the UK prior to July 2005, the report cites a number of official speeches and texts, which – as with Canadian discourses – describe imminent but non-specific threats. The ‘not a matter of if, but when’ line is mentioned.
• The focus of the report does not touch on the background of the July 7 bombers, the process(es) through which they became radicalized, or how they planned the attacks; rather, it deals with the actions of intelligence agencies in relation to the events. The report notes that the Home Office Official Account will touch on these areas.
• Some specifics about the July 7 bombings and investigation:
• The fourth bomber, Hasib Hussein (who detonated his bomb on a bus), stopped to purchase batteries before carrying through with the attack.
• The report finds that the date – July 7 – was of no particular significance, nor was the then-ongoing G8 summit a factor in the timing of the attack.
• Despite the claims of responsibility for the attacks made by al Qaeda representatives, the real extent of external involvement (if any) is still under investigation.
• From the report (p. 13): “We have been assured by the Agencies that there was no prior warning of the attacks that took place from any source, including from foreign intelligence services.We have looked in detail into claims that the Saudi Arabian authorities warned the British Agencies about the attacks. We found that some information was passed to the Agencies about possible terrorist planning for an attack in the UK. It was examined by the Agencies who concluded that the plan was not credible. That information has been given to us: it is materially different from what actually occurred on 7 July and clearly not relevant to these attacks.”
• A number of the July 7 attackers were ‘known’ to intelligence and security agencies, and had come up in relation to previous investigations. See p. 16 of the report for more on this.
• Reports from unspecified “detainees (from outside the UK)” referred to one of the bombers as having trained with al Qaeda in Pakistan in 2003; following the bombings, one of these ‘detainees’ identified bomber Siddeque Khan from a photograph.
• A significant section of the report is dedicated to explaining the lowering of the UK threat level prior to the July bombings, and whether and to what extent this facilitated the attacks. In May 2005 the threat level was reduced from ‘SEVERE GENERAL’ to ‘SUBSTANTIAL.’ Note that, prior to the bombings, the UK threat level system had two focal points: a general ‘country threat level’ status, and a ‘Critical National Infrastructure’ status. The system was more varied than the US alert system, and included seven levels, ranging from Negligible to Critical. The UK threat level system is not to be confused with the UK threat alert system, which issues BLACK, BLACK SPECIAL, AMBER, and RED alerts based on different government departments’ needs.
• The report concludes that the lowering of the country threat level in May 2005 is unlikely to have altered the alertness or responders or to have affected the chances of preventing the attacks. This being said, it also concludes that the threat level system is confusing to both the public and security intelligence operatives. If changes can be made to threat levels without producing effects in preparedness and alertness, then, the report argues, the usefulness of the system is questionable. The UK threat level system is currently under review.
• From the report (p. 22): “Practitioners have to take and justify difficult risk-based decisions about security measures and the use of resources on the back of threat assessments. It is arguable that a system which reflects only the ‘worst case’ threat scenario because of fears of the unknown would be of little use to them.”
• Of note, the report highlights the serious problems associated with the communication of threat information to the public, particularly in differentiating between different categories of threat. Because the public at large does not understand the differences between different threat categories, they tend to focus on the fact that a threat level reduction or increase has taken place, rather than the implications of the new threat level.
• British intelligence officials were concerned about ‘homegrown’ terrorism prior to the July 2005 attacks. This area increased in priority status between 2001 and 2005. The targeting of transportation infrastructure was also a recognized area of concern for intelligence officials – although it took some time for agencies to consider ‘soft’ targets to be priorities after September 11, 2001, which was interpreted as an indication that al Qaeda had shifted its focus towards ‘spectacular’ ‘hard’ targets. In fact, considerable effort was directed towards the investigation of ‘tier one’ targets and the possibilities of ‘another 9/11.’ Still, by July 2005, UK authorities were already speculating that attacks could likely emerge from homegrown terrorists, on soft targets such as the London underground, and with limited connection to al Qaeda.
• In terms of post-July 7 changes in priority and focus:
• The role of suicide terrorism is being considered more seriously than before.
• The speed with which individuals can become radicalized has been acknowledged in post-July 7 counter-terrorism strategies, and there is now a focus on ‘identifying individuals being groomed for terrorism (and those doing the grooming) at an early stage.’ It has also been acknowledged that ‘there is no simple Islamist extremist profile in the UK.’
• The target priorities used before July 7, 2005 – ‘Essential’ and ‘Desirable,’ have been replaced with ‘***’ and ‘***.’ It is unclear as to why the names of these new categories were redacted.
• An enigmatic paragraph in the report: “The potential value of *** and *** as a means for identifying new threats has been highlighted to the Committee. The fact that the 7 July group was in contact with others under Security Service investigation has emphasised the potential for new threats to be identified through the examination of information and contact networks relating to existing targets. Greater capacity to *** to generate new leads is being developed within the Security Service.” This is another situation where it would be nice to know what the *** sections mean.
• The report acknowledges that the July attacks ‘acted as a catalyst for change within the intelligence and security Agencies.’
• It also notes that the need to maintain a balance between security and civil liberties presents challenges in relation to counter-terrorism, particularly as increased intelligence capacity would likely means ‘some increase in intrusive activity.’
• For a succinct summary of the key points mentioned in the report, see section 7, starting on page 41. Even better, check out the same list of key points and recommendations with the official UK Government responses here.
  
  - Mike L

News(?) from CSIS: We can probably look forward to terrorist attacks

The Canadian Press has written an article in which it claims that Jim Judd, director of CSIS, has told the government that a terrorist attack on Canadian soil is “now probable.” This revelation is based on an annual report to the minister of PSEPC, obtained under a CP Access to Information request.

Apparently, Judd has declared that CSIS’ “highest priority involved trying to prevent assaults occurring in, or originating from, Canada.”

Also from the report, according to the CP article:

“The threat of further attacks by Sunni Islamic extremists and
other like-minded groups continues, bringing with it elevated demands on the
service's resources."

[…]

"During the past year,
Canada and Canadian interests abroad continued to be under threat from Al Qaeda
and its affiliated groups," Judd says.

"While the threat remains
concentrated overseas, an attack on Canadian soil is now
probable."

The Acting National Security Advisor to PM Harper, Stephen Rigby, says that the government is aware of the CSIS report, and that it is maintaining “a very high degree of vigilance” with respect to Al Qaeda, despite the lack of intelligence about a specific plot.

CBC notes that the annual report (from Judd to then PSEPC Minister McLellan) was top secret at the time of writing, and that the copy obtained by CP was declassified.

To provide some background and context to this story, it’s important to look back at previous CSIS reports. The 2003 Public Report is a good place to start.

Written in 2004, the 2003 Public Report (which is, by definition, publicly available) contains many of the exact same statements that are receiving so much attention in the Canadian media today in relation to the ‘top secret’ declassified report.

For example (from the 2003 Public Report):

“The many tensions across the world, stemming mainly from
terrorist activities, continue to have potentially serious consequences for
Western nations and put their security resources, including those of CSIS, under
great pressure..”

[…]

“Safeguarding against the
possibility of a terrorist attack occurring in, or originating from, Canada is
the highest national security priority.”

“Current signs point to
increased terrorist threats, particularly from Sunni Islamic extremists either
directly aligned with or supporting of the ideology espoused by Al Qaeda. Osama
Bin Laden has vowed to use Al Qaeda to strike the United States and its allies,
including Canada.”

And so on.

So, despite the front page coverage and news headlines that this new document is receiving, from what we can tell, there is very little that differentiates it from previous CSIS reports on the threat posed by terrorism to Canada and Canadians. Of course, we can’t see the ‘new’ report in its entirety, and it is possible that it contains some significant information. But from what we have seen, this report seems to re-assert an assessment that has been valid for a few years now. The only real departure from previous reports appears to be the assertion that terrorist attacks in Canada are ‘now probable.’ But even this assessment is difficult to contextualize without some additional quantitative and qualitative information about what ‘probable’ means. Previous reports have described the terrorist threat to Canada thusly:

“The most significant threat to Canada is that posed by
terrorism. As Canada continues to be an active player in the international
struggle against terrorism, it will face increasing threats from transnational
terrorist organizations.” – CSIS Public Report 2003

“The world is a
dangerous place, even if the relative safety of life in Canada sometimes
obscures just how dangerous it is. As recent events have highlighted, there is a
wide range of threats facing Canada from pandemics to terrorism. […] In a taped
message released on November 12, 2002, Osama bin Laden identified Canada as a
target for attack.” – Securing an Open Society (Canada’s National Security
Policy) 2004

To these more substantive quotes, we can add the numerous statements by Canadian Ministers and officials who have repeated the “very real but non-specific” threat assessment whenever the subject of terrorism has come up over the last five years.

When considering today’s reports then, it is important to note that, in the context of recent Canadian discourses on terrorism, the latest assessments are much more ‘normal’ than they are ‘new.’

Also on the subject of CSIS, a press release from May 1 announced that CSIS has changed its organizational structure. The big change appears to be the implementation of semi-autonomous regional headquarters.

From the release:

“CSIS has undertaken a realignment in order to:
- increase operational capability;
- consolidate and enhance analysis and production functions; and
- enhance corporate support.
The Service’s new structure is geographically-based, with each branch being responsible for investigating all threats emanating from their respective geographic areas. It will provide the
flexibility required to accommodate current and anticipated operational
needs.”

And finally, given that this week was Emergency Preparedness Week in Canada, the government announced a new Emergency Management Act, which was tabled for first reading. The Act will replace the outdated (1985) Emergency Preparedness Act, and it also involves amendments to the Public Safety and Emergency Preparedness Act (regarding the responsibilities of ministers), the Access to Information Act, and the forthcoming Federal Accountability Act.

All the best,

- Mike L

Canadian terrorism trials; American detention policies

Air India Inquiry

The Globe and Mail released an article this morning on the subject of the terms of reference that have been given to Justice John Major at the outset of the new Air India Commission of Inquiry. The full details on the commission are not available to the public yet, but we can expect a website dedicated to the proceedings to be launched in the near future, along the lines of the Arar Commission’s site.

Colin Freeze of the Globe and Mail is reporting that Justice Major is being asked to undertake a full review of the methods the Canadian government uses to try terrorism suspects, and to ponder the merits of judicial tribunals for terrorism cases as well as the relationship between security intelligence and ‘normal’ evidence in the context of a criminal trial.

Needless to say, this is a big deal. It broadens the scope of the inquiry beyond the events surrounding the Air India investigation, and sets the stage for potentially serious policy changes. Legal critics, including the lawyers representing Maher Arar, have expressed concern at what they see as the terms of references’ implication that the existing Canadian system for prosecuting terrorists is in some way inadequate.

There is some speculation that one of the driving forces for this section of the inquiry is the desire of the Canadian government to appear to be taking a harder line on terrorism prosecutions, following the recent US State Department Country Report on Terrorism, which slams Canada for having ‘only one’ person currently standing trial for terrorism in this country.

Kent Roach, of the University of Toronto, has written on this story for the Toronto Star. Among other observations, Roach calls the Air India bombings ‘Canada’s own 9/11,’ and suggests that the Commission of Inquiry ought to be as much about the future [of terrorism trials and investigations] as the past. He enumerates a few of the challenges faced by Justice Major.

US Detention Practices

In an interview with German television, US President George W Bush has said that he would like to ‘end’ the detention centre in Guantanamo Bay. The problem, he says, is figuring out how to try the detainees. In a press release, Amnesty International called for Bush to ‘make it happen.’

This statement, a departure for the Bush administration, comes at a time when the Guantanamo facility is becoming increasingly unpopular amongst America’s allies. The Guardian reported on Sunday that the British Attorney General, Lord Goldsmith, will be calling for the closure of the ‘unacceptable’ facility at a conference this week. This will represent a departure from the official British position on Guantanamo, which is one of cautious acceptance.

To provide further context for these stories, it is important to note that US detention policy and practice are currently the subjects of discussion for the UN Committee Against Torture, in Geneva. A US delegation today told the committee that the American government is taking (and has taken) steps to deal with the widespread reports of detainee mistreatment in Guantanamo, Iraq, and Afghanistan. The UN Committee is asking the US delegates a series of questions regarding American detention policy, the US position on torture, the steps taken to deal with situations like Abu Ghraib, and the operation of secret prisons (‘black sites’) in Europe. Additional information on the proceedings can be found here.

All for now,

- Mike