Confidentiality and Censorship

The CBC reports that two youths who were among the 17 individuals arrested in Toronto on charges under the Anti Terrorism Act are in court for bail hearings today. It is unlikely that we will hear much in the way of details regarding the proceedings in the court, owing to the sweeping publication ban imposed on all aspects of the trial and related hearings. Lawyers for CBC, the New York Times, and Associated Press are currently challenging the ban on the grounds that it is in the public interest to ensure that the proceedings are open and transparent. Beyond the specifics of the case, we can see two larger areas of interest here: first, we see beginnings of the first intersection between federal anti-terror law and youth criminal justice legislation; and second, we see the state testing the limits of its capacity to invoke ‘national security confidentiality’ in relation to anti-terrorism activities. The final disposition of both of these issues will be of great importance to the future of national security in Canada.

Speaking of national security confidentiality (known in some manifestations as ‘censorship’), the Bush White House is up in arms over the reporting of a secret international banking surveillance program in yesterday’s newspapers. Bush is quoted as saying “…the disclosure of this program is disgraceful. We're at war with a bunch of people who want to hurt the United States of America, and for people to leak that program, and for a newspaper to publish it, does great harm to the United States of America." I’m not sure if it’s possible to find a better example of a chilling effect in recent political discourse. The Washington Post quotes critics who argue that the White House has adopted a “shoot the messenger strategy” in relation to national security operations, where reporters are painted as near-treasonous (and even full-blown treasonous) for reporting on programs while the disturbing questions about those programs go unanswered. In defence of the printing, New York Times executive editor Bill Keller argues that:

“Since September 11, 2001, our government has launched broad and secret
anti-terror monitoring programs without seeking authorizing legislation and
without fully briefing the Congress. Most Americans seem to support
extraordinary measures in defense against this extraordinary threat, but some
officials who have been involved in these programs have spoken to the Times
about their discomfort over the legality of the government's actions and over
the adequacy of oversight. We believe The Times and others in the press have
served the public interest by accurately reporting on these programs so that the
public can have an informed view of them.

[…]

“We
weighed most heavily the Administration's concern that describing this program
would endanger it. The central argument we heard from officials at senior levels
was that international bankers would stop cooperating, would resist, if this
program saw the light of day. We don't know what the banking consortium will do,
but we found this argument puzzling. First, the bankers provide this information
under the authority of a subpoena, which imposes a legal obligation. Second, if,
as the Administration says, the program is legal, highly effective, and well
protected against invasion of privacy, the bankers should have little trouble
defending it.”

The right-wing contingent of the American media and blogosphere have, of course, adopted Bush’s position on this matter, but with additional vitriol and bitterness. For example, Fox’s Bill O’Reilley has posted a rather confused response that proposes that the New York Times has reached a ‘tipping point’ and become a threat to national security; he arrives at this conclusion by imputing anti-administration motives to the ‘far left’ media, but without really addressing the substance of the Times report, which is illustrative of the “shoot the messenger” strategy adopted by the White House.

The larger issue here – and one that runs through all of these stories and commentaries – is the increasing trend towards the normalization of ‘national security confidentiality’ as a core component of all aspects of national security campaigns. Without adequate democratic mechanisms to provide oversight or vet claims to security-secrecy (an issue in the Toronto trials, the Security Certificate hearings, the Arar Commission, and numerous American activities and trials), the state is able to automatically exercise its role as information gatekeeper in situations where ‘national security’ is invoked. Secrecy is the starting point, and it is becoming increasingly difficult to make important details about security activities available to the public in time for us to have an influence on the decision-making process.

Ultimately, what these situations demonstrate is the need for a third-party arbiter of confidentiality to act on behalf of the public when secrecy is to be invoked, at all levels. The alternative is to continue the game of cat-and-mouse currently being played between the press and the state as regards national security, a game where the media is always reacting post-facto to state decisions. The press has successfully brought many important security-related stories (scandals) to light, against the wishes of administrations – Abu Ghraib, Guantanamo conditions, extraordinary rendition, black sites, lax prisoner transfer rules, extraordinary surveillance regimes, and the politics of war-making, to name a few. However, all of these stories are reactions after-the-fact, exposing secret activities that exist outside the law or are at the very least cause for immense public debate; in other words, the damage was already done (to people, if not to the state) when the story broke, and the fast-paced forward-looking nature of newsmaking ensures that these incidents are quickly moved over in favor of the next big story. This is, of course, to be expected from the media, whose job is to report and inform (albeit with an ideological bent), but not to directly influence the political process. In the absence of a more trustworthy, transparent, democratic, and accountable process for vetting security confidentiality claims, the media seems to be the best we can hope for. If this voice is effectively shut out or chilled (more so than it is now) though, then the removal of civil society from the national security debate will in effect be complete.

All of which is to say that there is good reason to keep a sharp eye on the relationship between the state and the media as regards national security, and to be prepared to resist the encroachment of secrecy prerogatives upon public knowledge in the future.

The Air India Inquiry Begins

Commissioner John Major announced Air India Inquiry was opened this morning; CTV has posted two segments of the press conference on its website.

The Commissioner has set the terms for the inquiry, but must first establish which parties will have legal standing. The submission process begins today, with hearings occurring in July and testimony to begin in September. In the press conference, Major alludes to an information kit that will contain more details.

The first two questions; of the extent of the threat of Sikh terrorism and the inter-departmental disconnects between CSIS and the RCMP as well as whether the legislative or policy changes are needed to resolves them have been resolved, but the rest remain. Of particular interest to our recent discussions, as Mike noted in his earlier discussion of security certificates, are the very problematic relationship between surveillance evidence and criminal proceedings. Perhaps one of the most widely publicized is Major’s authority to initiate a full review of the system and determine: “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.” Major is also given discretion to weigh however he feels appropriate the series of reports and commissions into the event.

The criminal aspects are of particular interest, as Mike pointed out eariler, in the wake of the certificate hearings. They grappled with a far less monolithic security apparatus, and a more nebulous philosophy than I believe most reports would suggest. If the hearings on this subject are indeed public, it could establish at least a 21 year lineage for the current discourses on ‘balance’.

Major also made a statement regarding perception, that an early tendency to not to consider Air India a ‘Canadian tragedy’ because of foreign political motivation may have contributed to the investigation’s failure.

The inquiry itself was announced by Steven Harper pursuant to the Lessons to be Learned report that was issued in November. The three stages show a slight expansion of the goals of the inquiry, notably the progression from the lessons report scrutiny of the evidence and prosecution process to the specific question of the three judge tribunal. It would be interesting to see whether and to what extent both the recient security certificate hearings and the arrests of 'home grown bombers' will further change the focus of the inquiry.

- Jessica R

Regarding the June 13 Supreme Court Hearings on Security Certificates

On June 13, the Supreme Court of Canada began hearing arguments in relation to the Immigration Security Certificate component of the IRPA, with presentations by counsel for several of the men currently being detained (or on bail). A few members of the NSWG attended the hearings yesterday, and we will be sitting in on the proceedings today and on Thursday as well.

Yesterday’s submissions featured a variety of arguments against the security certificate process, ranging from objections about conditions and procedure to outright condemnations on the grounds that the certificates violate principles of fundamental justice. The multi-faceted approach seemed to be generally effective, although individual arguments met with mixed responses from the assembled Justices. The core argument presented by all counsel was that security certificates represent an intolerable aberration, and should be abolished. However, this position on what ought to be done about the certificates was tempered by series of arguments about what might be done to modify or improve the existing process, at least to the extent that it reflects international standards. The overall effect was a series of discussions on the subject of security certificates, ranging in focus from the need to institute amicus curiae to challenge confidential evidence to the need to abandon certificates on the grounds that they perpetuate an image of racial profiling.

I’m looking forward to obtaining the transcripts from the proceedings, and I’ll wait for them rather than attempting to piece together my own play-by-play synopsis of the submissions. Rather, I’d like to focus on a few themes that stood out as particularly important.

Whither Security?

A significant component of the government’s argument in defence of the security certificate apparatus hinges on its status as an immigration tool designed to facilitate the effective deportation of unwanted foreign nationals – something that most states have in one form or another. The state is quick to point out that the certificates are not a post-September 11 mechanism, and not a component of current (‘new normal’) counter-terrorism initiatives. This argument is typically presented in order to justify the existence of certificates by referring to their age and to their legitimacy as immigration enforcement tools.

Yesterday, the ‘just an immigration tool’ argument came under attack on a variety of different grounds. In general, it was argued that security certificates are not all about immigration enforcement, but rather about national security. Specifically, counsel maintained that their challenge was not directed at the state’s right about to control immigration, but rather at this specific national security mechanism masquerading as an immigration enforcement tool. As a national security tool, security certificates use their legal status as immigration mechanisms to circumvent the need to afford detainees a variety of Charter rights. They take the ideal image of a swift and efficient (and judicious) deportation of a foreign national as their starting point, despite the unlikelihood of this outcome. Taking deportation out of the equation (which Canada’s commitments to Conventions Against Torture effectively does) reveals security certificates as a national security measure that allows for the indefinite detention of foreign nationals on Canadian soil – but without the legal rights afforded to individuals charged under Canadian law. Since this outcome appears to be a given in the contemporary context (and since the only way to get around it would be to follow a British model of obtaining largely cosmetic memorandums from the countries of origin guaranteeing that the individuals deported would not be tortured – something that I doubt the Canadian public is ready to embrace at this point) we can conclude that security certificates, as they are applied, have more to do with national security than they do with immigration or deportation.

De Facto Criminal Justice

Related to the argument that security certificates are components of national security policy as opposed to immigration policy is the contention that they are also a de facto form of criminal justice practice. I think that this is a strong argument, especially apparent to those of us who are looking at this practice through a criminological / sociological lens as opposed to a strictly legal one.

Counsel at the hearing pointed out that the acts (or alleged acts – or alleged potential acts …) that lead to the imposition of a security certificate are inherently criminal by their nature. The government alleges that the men currently being held are terrorists, or at least linked to terrorist groups and plots. CSIS and CBSA propose that to release these men would create an intolerable risk to Canadians. So it can be argued that the certificates are a response to some sort of serious wrongdoing or potential wrongdoing that would otherwise be considered criminal in nature.

Add to this the prospect that the imposition of a security certificate will lead to indefinite detention – or at the very least a lengthy detention followed by very severe and indefinite bail conditions. It is entirely possible that the application of a security certificate (a response to wrongdoing or imminent wrongdoing) will lead to a lengthy period of incarceration for the individual in question.

My earlier arguments about the legal conditions surrounding the detention of individuals held on security certificates support this. I still haven’t been able to find out what loopholes or special arrangements CBSA is using to operate KIHC on the grounds of Millhaven penitentiary. The Corrections and Conditional Release Act which empowers Corrections Canada sets out very specific guidelines about who can be detained on penitentiary grounds, and for what reason. KIHC is on penitentiary grounds, but the detainees being housed there are not ‘inmates’ or ‘offenders’ by any legal definition, and they are most certainly not ‘sentenced’ to a term of incarceration exceeding two years as is required for detention at a federal penitentiary. In fact, they have neither been charged with nor convicted of any crime. And yet, they are de facto inmates at a federal prison. Legally, there are differences between them and other inmates (specifically in that other inmates are inmates …), but in practice – in substance – this looks like a criminal justice practice.

Counsel argues that the Supreme Court needs to look at the substance of security certificates – and not their legal form – when making its decision about their propriety. Substantively, they operate as a parallel form of criminal justice, with many of the components of a criminal prosecution, but with drastically reduced rights for the ‘accused’ and significant impairments for their lawyers. Given this, why not simply proceed though traditional criminal justice channels? Why construct a parallel system?

Prevention vs. Prosecution

The answer to these questions, according to the state, has much to do with the differing objectives of prevention and prosecution. Security certificates are designed to prevent acts from occurring, while the justice system is geared towards the prosecution of wrongful acts.

This argument is specious and contradictory, and I don’t think it holds up under even moderate scrutiny.

First, as counsel noted, we can identify a number of preventative aspects of criminal legislation, as well as a number of crimes that are ‘acts preparatory’ to something. The Anti-Terrorism act created a number of criminal code sections that deal with terrorist planning and training, or even the involvement in terrorist groups. Terrorism need not happen (in the form of an act of violence) for the criminal law to take effect – as we are currently seeing with the 17 Toronto arrests.

Additionally, the argument that the preventative nature of security certificates precludes the use of criminal law ignores the larger problem of societal protection, particularly if we assume that Canadian citizens can be involved in the same activities that, when undertaken by foreign nationals, are indicative of a grave threat to national security and worthy of the application of a security certificate. The state argues that it would not be possible to criminally prosecute the ‘secret trial five,’ owing to the sensitive and / or preventative nature of the evidence involved. Hence, a security certificate is issued instead.

But what if the exact same activity was being perpetrated by Canadian citizens? What if a third generation native of the Ottawa region was involved in the exact same behaviour that the state alleges Mr. Harkat was involved in? Are we to understand that this citizen could not be prosecuted criminally for the same activity that supposedly makes Mr. Harkat a grave threat to Canada’s national security? How could this be? If this really were the case, would the government not be pushing for an expansion of anti-terror legislation to address this dangerous gap? After all, the hypothetical citizen in question could not be detained on a security certificate (which, as noted above, the state maintains is strictly an immigration control measure).

If we believe the state’s position about the different evidentiary standards associated with the preventative nature of security certificates (which preclude the use of the criminal justice system), then we are forced to conclude that it is possible for Canadian citizens to engage in the exact same activities that allegedly make the ‘secret trial five’ grave threats to our security without worrying about any sort of prosecution. This would mean certain actions, permissible for ordinary citizens (or at the very least, not prosecutable), when taken by foreigners can threaten Canada’s national security. I submit that if this were the case, we would see a headlong rush to broaden and deepen the state’s anti-terror powers, particularly in light of the current panic over ‘homegrown terrorists.’ And yet, as recently as yesterday, we have heard that the government has no intention to expand C-36.

If this is not the case, it means either that the state can prosecute the ‘secret trial five’ criminally but is deliberately choosing not to (which is cause for immense concern), or that the state cannot prosecute because it simply does not have sufficient evidence (which seems likely).

Combined, I think that these three themes or lines of argumentation constitute a damning case against immigration security certificates. To effectively convince the Supreme Court of this, however, counsel will have to focus the discussion on the substance of the certificates as they exist in the contemporary context. If the Crown is able to keep the attention of the Court focused exclusively on the legalistic aspect of the certificates as a component of IRPA, then they may be able to win a legal victory at the expense of both justice and logic.

Constitutional Challenge of Security Certificates Begins Tomorrow

The long anticipated challenge, or rather series of challenges, to the consitutionality of Security Certificates will begin tomorrow at 1 pm in the Supreme Court Building, 301 Wellington St.
The Court will review the cases of Adil Charkoui, Hassan Almrei and Mohammed Harkat and members of the public are permitted to attend. the schedule of hearings is as follows: (the links below are the case summaries as posted on the SCC website)

2006-06-13 Adil Charkaoui v. Minister of Citizenship and Immigration, et al. (FC) (Civil) (By Leave) 30762

2006-06-14 Hassan Almrei v. Minister of Citizenship & Immigration, et al. (FC) (Civil) (By Leave) 30929

2006-06-15 Mohamed Harkat v. Minister of Citizenship and Immigration, et al. (FC) (Civil) (By Leave) 31178

The Politics of Security

Five days after the Toronto arrests (and almost five years after September 11, 2001), security has once again become the primary focus of Canadian political, media, and public discourse. Details about the arrests, the allegations and charges associated with them, and the investigation are still far from complete. This hasn’t stopped the flow of analysis and speculation in the media; a quick Google search shows thousands of articles from across the world on the subject of Toronto’s ‘homegrown’ terror plot, and the story has been front page news in all Canadian newspapers this week. On television, the news channels have quickly assembled special reports, expert commentary, and mini documentaries, all geared towards exploring all angles of this weekend’s events.

The actual amount of raw data and confirmed information available about the arrests is limited, and many news reports are citing other news reports as sources, which means that speculation becomes circulated and given a rather alarming degree of legitimacy. Take a look at some recent articles about the arrests, and count the number of times the words ‘may’ and ‘might’ appear. For example, CBC’s headlines today include an article on how ‘CBC building in Toronto may have been target,’ and one on how the ‘Internet may have played role in bomb plot.’

It’s possible that these stories (particularly the latter) are entirely accurate. It’s possible that they are off-base, as more than a few articles have been this week. The point that needs to be kept in mind is that the veracity of the allegations does not need to be confirmed for them to have a very real impact on Canadian national security policy and the public discourse on security. Discourses on terrorism are as much driven by what might have been and what might be as what is or was, and this is especially true in the wake of an ‘incident.’ This is a difficult situation to work around. On the one hand, rampant speculation and innuendo can and does enhance public fear and insecurity, and create a political atmosphere where the pursuit of security opens a dangerous policy window; on the other hand, a free press is one of the cornerstones of a democracy, and active, open public discourse is needed to circumvent the ‘chilling effect’ that often accompanies terrorist events. What is needed is not less reporting, but better analysis and discourse from a variety of backgrounds and perspectives. In particular, we need to resist the urge to accept the position of the state as Truth (given that there has been no trial and no conclusive evidence presented at this point), and to challenge media outlets that adopt this discourse uncritically. The World Socialist Web Site has produced an article that touches on some of these points, and a weekend article by the Toronto Star also questions some otherwise taken-for-granted aspects of the investigation. CBC adds some critical analysis with a discussion of the potential for fair terrorism trials in Canada.

As it is impossible to comment on the veracity of the charges without further information (which is, of course, why we have a court system in the first place), I’d like to look at a few additional aspects of the political responses to the arrests:

US - Canada Border Security

The best example of the politicization of this incident can be seen at the Canada-US border, and in the discourses about heightened border security in the face of this ‘new threat’ from Canada.

When thinking about this subject, it’s important to note a few points:

By all accounts, the Toronto arrests were the culmination of a lengthy investigation involving a variety of agencies, and with the cooperation of American law enforcement. CBC has proposed a rough investigation timeline that goes back to the fall of 2004. Established post-September 11 policy in both countries emphasizes information exchange and collaboration, and we know that joint Canada-US investigations and intelligence-sharing has taken place in the past.

Also, the current understanding seems to be that the ammonium nitrate obtained by the 17 accused was a) provided by the RCMP as part of a sting operation, and b) not really ammonium nitrate, but a harmless substance (the real order of ammonium nitrate was switched out by police before delivery). So the actual capacity of this group to carry out any bombing was, if we are to believe the official position, kept in check by police action. While the RCMP does indicate that additional arrests might be pending, authorities have stated that there is no imminent threat associated with this situation.

If these points are accurate, we are left to wonder why American officials were so quick to heighten border security AFTER the June 2 arrests. Surely such precautions would have been more reasonable when there was still some potential for a ‘homegrown’ Canadian attack on the US? Is this move not similar to waiting until a storm has passed to open an umbrella? Given the cooperation between Canadian and American security intelligence agencies (something they proudly assert in public reports), and given the fact that the 17 men were unlikely to pose a substantial threat to the United Sates after their arrest and maximum security detention, it is difficult to comprehend how the border security escalation could be a response to an identifiable risk.

The CBC reports that the US is ‘beefing up’ traffic checks, adding ‘enforcement capabilities,’ and ‘increasing security’ at border stations, which are on ‘high alert.’ Forbes magazine notes that “U.S. Border Patrol Chief David Aguilar said patrol stations along the 4,000-mile border - especially those adjoining Ontario - are on high alert because of the arrests, although investigators say the suspects' alleged plot apparently involved only targets in Canada.” In the same Forbes article, security consultant, media fixture, and senior fellow of the Canadian Coalition for Democracies (check out their web discussion forum for a sense of how they approach these matters) David Harris is quoted:

"Canadians are determined to keep the border open at almost any cost, because so much of Canada's economy relies on U.S. trade," said Harris, who now is a private security consultant in Ottawa. "The general theory of the trade devotees is the border should be open all the time, at virtually any cost - but you can only enjoy your prosperity if you're alive to do so."

Harris has urged Canada to tighten its immigration policies - it welcomes some 250,000 new immigrants and refugees each year - and work with the United States on bolstering border controls with such high-tech devices as such as sensors and infrared cameras.”

Note that, despite any evidence that the Toronto plot(s) involved any direct threat to the United States, it is being used as a mobilizing event in order to push border security and immigration control political agendas. The Toronto Star notes in an editorial that American politicians have been quick to jump at the chance to ‘perpetuate the myth’ that Canada is a ‘gateway to potential attackers’ attempting to target the US. The Star makes the very obvious link between this discourse and the pending changes to border crossing identification policy, although they stop short of actually saying that those wishing to institute tightened border controls have a vested interest in describing Canada as ‘soft on terrorism.’ The National Post’s Sheldon Alberts discusses the calls for increased border security, including the building of a fence. The article notes that a preoccupation with the Canadian ‘homegrown terrorist threat’ is working in the favour of US lawmakers advancing policies that call for heightened security measures. And the Star quotes US Re. Peter King as saying that "There's a large Al Qaeda presence in Canada ... because of their liberal immigration laws, because of how political asylum is granted so easily," This despite the absence of any direct connection between Canadian immigration policy and terrorism – and absolutely no connection between immigration policy and the alleged actions of the 17 suspected ‘homegrown terrorists.’

I submit that the calls for increased border security following this evidence of a Canadian ‘homegrown’ terrorist threat have nothing to do with countering terrorism, and everything to do with advancing a security narrative that embraces even the slightest examples of threats in order to expand a politically profitable social control apparatus.

Air India Review

The use of the Criminal Code sections created under C-36 come at an important time in the policy review process. In a recent announcement regarding the Terms of Reference for the forthcoming Air India Commission of Inquiry, the Government of Canada indicated that part of the Commission’s mandate would involve a full review of Canada’s anti-terror legislation, with an eye to considering alternative models (read: expansions). This announcement caused some concern, as the new Anti-Terrorism Act (the focus of any legislative review) had not been tested, save for one criminal charge that has not yet gone to trial. Without evidence that the current legislation was adequate, it was feared that steps would be taken to expand and add upon it, perhaps following in the footsteps of recent British anti-terrorism bills. In the wake of this weekend’s arrests, and the use of C-36 charges, the review process has the potential to become more complex. It will be possible to argue that Friday’s arrests represent the culmination of a successful investigation, and that no additional legislative changes need to be made (particularly since none of the more extraordinary components of C-36 were used in the process); others will undoubtedly argue that toughened legislation is required to ensure that future threats can be countered.

Other policy areas that will be affected by the political atmosphere surrounding the Toronto arrests – and areas of ambiguity associated with the prosecution of the suspects - include:

The relationship between the goals and guidelines of the Youth Criminal Justice Act and the imperatives of the Anti Terrorism Act: A number of the suspects are technically minors, and Canadian law treats minors differently than adults when it comes to criminal trials; however, the as-yet untested C-36 sections of the Criminal Code have never been applied to minors before (having been used only once previously, in a case that has not gone to trial), and it there is very little discussion of the prosecution of ‘terrorist minors’ in any of the legal or academic literature.

Security at the Parliament Buildings: Given the allegations that the Hill and the PM may have been targets, the debate about securing Parliament (which has been going through periods of dormancy and peaks of discussion since 2001) has taken on a new intensity. I suspect that the allegations associated with an attack on Parliament will not need to be proven (which could take a year or more) for steps to increase Parliamentary security to be taken.

Security Certificates: As mentioned in previous posts, the creation of the KIHC facility, coupled with the Harkat bail decision and appeal and the pending court dates regarding the detention of the ‘Secret Trial Five,’ represent an extremely important moment for Canadian national security. The de facto indefinite detention associated with Security Certificates has been condemned by just about every human rights group in existence, and the popular movement in support of due process and fair trials for the men currently being held has been gathering momentum over the last few months. The Security Certificate process is entirely separate from the ATA, and the underlying issues have nothing to do with the Toronto arrests. In fact, it is impossible for someone to be a ‘homegrown Canadian terrorist’ and the subject of a Security Certificate, which can only apply to foreign nationals. However, it is almost certain that the upcoming hearings will be, at best, overshadowed by the Toronto story. At worst, the Security Certificate issue and the ‘Homegrown Terrorist Threat’ will be conflated under a broad security narrative, which will add an additional layer of murkiness to an already complex legal process.

And of course, regulation for ammonium nitrate, a subject that has been bouncing around for years.

Will we be writing about ‘Post-June 2’ Canadian national security policy at this time next year? It remains to be seen, but by all indications the Toronto arrests, regardless of the eventual decision of the courts, are seen by many as catalysts for political action.

- Mike L

17 Arrested for Alleged Terror Plot

On Friday, a team of more than 400 officers led by the RCMP Integrated National Security Enforcement Teams (INSET) and involving the OPP, York, Durham and Peel regional police arrested 17 men on charges under the Anti-Terrorism Act. As it has unfolded in the past few days, the events touch upon a great many dimensions of security in Canada, and it is possible to consider the events as at once a snapshot of terror discourse in Canada and indeed north America, and an event that is likely to catalyze change.

It also comes it the wake of several significant events:

• The UK raid in on Friday morning in which one suspected ‘home-grown’ bomber was shot by police. A failure to locate evidence of the cyanide chemical bomb and a second shooting of a terror suspect are generating increasing concern.
• A second report on the London bombings by the London Assembly.
• The decision by CBSA to appeal Mohammed Harkat’s pending release on bail (see May )
• The new shoot to kill policy adopted by Ottawa police (see May entry)
• The ongoing struggle between Canadian and American officials over border security
• measures and immigration policy.
• Growing concern about the Canada’s role in Afghanistan and its possible on domestic security.
• The second US surveillance scandal.
• Statements by Jack Hooper that there is a homegrown threat in Canada, partly owing to the fact that CSIS can only vet an estimated 10 per cent of immigrants from Afghanistan and other countries of concern.

The Accused:

Five of the individuals were minors and cannot be named, the rest have been listed as:

• Fahim Ahmad, 21, Toronto;
• Zakaria Amara, 20, Mississauga, Ont.;
• Asad Ansari, 21, Mississauga;
• Shareef Abdelhaleen, 30, Mississauga;
• Qayyum Abdul Jamal, 43, Mississauga;
• Mohammed Dirie, 22, Kingston, Ont.;
• Yasim Abdi Mohamed, 24, Kingston;
• Jahmaal James, 23, Toronto;
• Amin Mohamed Durrani, 19, Toronto;
• Steven Vikash Chand alias Abdul Shakur 25, Toronto;
• Ahmad Mustafa Ghany, 21, Mississauga;
• Saad Khalid, 19, of Eclipse Avenue, Mississauga.

The Toronto Star has published brief profiles of each of the men, but media have been swift to uncover many details about their lives. All of the suspects are reportedly either born or long-naturalized Canadian citizens, prompting an enormous amount of discourse and speculation on the possibilities and extent of a home-grown threat in Canada. Yesterday, the McDonell announced that more arrests were likely and the investigation is not over.

The Charges

At the press conference Satruday, RCMP Asst. Commission Mike McDonell that the charges are of three types under section 83 of the Criminal Code as modified by the Anti-Terrorism Act, 2001:

Participating, Facilitating, Instructing and Harboring

83.18 (1) Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Prosecution

(2) An offence may be committed under subsection (1) whether or not

(a) a terrorist group actually facilitates or carries out a terrorist activity;

(b) the participation or contribution of the accused actually enhances the ability of a terrorist group to facilitate or carry out a terrorist activity; or

(c) the accused knows the specific nature of any terrorist activity that may be facilitated or carried out by a terrorist group.

Meaning of participating or contributing

(3) Participating in or contributing to an activity of a terrorist group includes

(a) providing, receiving or recruiting a person to receive training;

(b) providing or offering to provide a skill or an expertise for the benefit of, at the direction of or in association with a terrorist group;

(c) recruiting a person in order to facilitate or commit

(i) a terrorism offence, or

(ii) an act or omission outside Canada that, if committed in Canada, would be a terrorism offence;

(d) entering or remaining in any country for the benefit of, at the direction of or in association with a terrorist group; and

(e) making oneself, in response to instructions from any of the persons who constitute a terrorist group, available to facilitate or commit

(i) a terrorism offence, or

(ii) an act or omission outside Canada that, if committed in Canada, would be a terrorism offence.

Factors

(4) In determining whether an accused participates in or contributes to any activity of a terrorist group, the court may consider, among other factors, whether the accused

(a) uses a name, word, symbol or other representation that identifies, or is associated with, the terrorist group;

(b) frequently associates with any of the persons who constitute the terrorist group;

(c) receives any benefit from the terrorist group; or

(d) repeatedly engages in activities at the instruction of any of the persons who constitute the terrorist group.

2001, c. 41, s. 4.

83.03 Every one who, directly or indirectly, collects property, provides or invites a person to provide, or makes available property or financial or other related services

(a) intending that they be used, or knowing that they will be used, in whole or in part, for the purpose of facilitating or carrying out any terrorist activity, or for the purpose of benefiting any person who is facilitating or carrying out such an activity, or

(b) knowing that, in whole or part, they will be used by or will benefit a terrorist group,

is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years.

2001, c. 41, s. 4.

83.2 Every one who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a terrorist group is guilty of an indictable offence and liable to imprisonment for life.

2001, c. 41, s. 4.

This is only the second attempt to prosecute alleged plots since the inception of the legislation, lending itself to speculation that authorities believe that the case is indeed strong.

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CTV carries statements from both Steven Harper and Stockwell Day praising police and saying that current measures and security apparatus have worked and that the new government will continue to pursue the necessary means to keep Canadians safe. Both declined to detail what shape this pursuit might take or what measures had proven effective in this case. Among Harper’s comments on June 3^rd was the statement that Canada was threatened because of its values.

A mixed reaction is reported in the United States. Both George W. Bush and Condoleeza Rice have praised Canadian efforts as have FBI Chief Robert Mueller whose agency collaborated in the arrests in the course of investigating two men in Georgia and a handful of experts, but Chair of the Homeland Security Committee Peter King (R-NY) went as far as to say that:

"I think there is a disproportionate number of al-Qaeda in Canada because of their very liberal immigration laws, because of how political asylum is granted so easily."

This line of discourse is expected to further complicate the debate mentioned above regarding not only the feasibility but the desirability or even relevance of tightening border security.

While CBC reports that several high-level security officials will be traveling to Washington to liaise with lawmakers and counterparts, one issue that is conspicuous by its absence is the context of cross border information sharing. While the current system has been deemed to have ‘worked’, the true extent of cross border and global networking is unclear given the political bracing that seems to be occurring.

More to follow

- Jessica R