We Have a New Anti-Terror Bill: Anyone Else Terrified?
We have a new anti-terror bill. Anyone else terrified?
By Michael Harris; April 25, 2013 - iPolitics
Under Stephen Harper’s reign — and a reign it is — Canada has entered a kind of maple syrup Middle Ages.
Covered by the most treacly platitudes, things happen without solid reasons and at the pleasure of the king. Sometimes, the way the official narrative unfolds is funny in a macabre sort of way.
Take those Mounties at this week’s terror-arrest presser. They looked like extras from Jason Kenney’s department fresh from impersonating new citizens on Sun TV. No wonder the Big Bust was laughed off Fox News as a bunch of guys self-censoring in multiple languages.
Iran, al-Qaida — yet no threat to public safety? Really? So why end the investigation? Do you end terror investigations at the point where there is no threat — but the possibility of learning more remains? Or do you very publicly arrest some and then hope that the others you have under surveillance don’t watch TV?
And that wasn’t the only thing about our week in terror news that bordered on the peculiar.
Take the simultaneous resurrection of anti-terrorist legislation that passed a Commons vote this week. Bill S-7, introduced in the Senate in February 2012, has been ready for third reading in the House since February. Yet the government wasn’t breaking a leg to advance it until a few days ago. Why now?
Only the king knows — though the ones partaking of the magic mushroom of conspiracy theories have their suspicions. It’s all about politics.
The best part of Bill S-7 is its name: the Combating Terrorism Act. Who could be against that? There is a time-honored tradition of giving dubious legislation a name that disarms, reassures, persuades or induces sleep. It also has the handy benefit of blunting one’s critics. After all, if someone is against the Combating Terrorism Act, that can only mean they are in favour of not combating it. You’re for us or against us, right?
Political schemers have known for a long time that naming legislation is as important as naming new planets and babies. There was a time in the United States when the U.S. Defence Department measured the amount of radioactive material in humans in “sunshine units.” Almost sounds like vitamins. In fact, sunshine units were the measure of how much strontium 90 human beings had in their bodies, where it is absorbed into their skeletons exactly as if it were calcium. It took comedian George Carlin to shame the government into admitting that this was about radioactive contamination, not suntanning. Hence the slow poisoning of human beings by radioactive fallout got its proper metric: strontium units.
Maybe it’s time to call in Rick Mercer on Bill S-7. The government says the bill is about making people “safer” — a goal to be achieved by giving police the right to pre-emptive arrest, forcing suspects not charged with any offence into testifying at investigative hearings, and sending anyone who won’t cooperate in those proceedings — where the judge is essentially an agent of the police — to prison for up to 12 months. Lending your cellphone to dubious people could also get you 14 years in jail, depending on what they do with it.
But will S-7 deliver what its supporters promise and make the public safer? In the U.S., the government has been suspending the Miranda rights of suspected terrorists since 9/11. At Guantanamo Bay, they have detained prisoners for years without charge or trial. Yet the Boston Marathon bombing was not prevented. Despite sweeping away habeas corpus rights as if it really were the Middle Ages, despite massive intelligence gathering by multiple agencies and security expenditures into the billions, the bombers were not disrupted.
(Perspective on the actual risk of death by terror: Nate Silver reported in the Wall Street Journal that all these government actions do is move a nonzero risk factor to a slightly smaller nonzero number. The odds of being killed in a terror attack are one in three million — same as the odds of being killed by a tornado. The U.S. Department of Homeland Security has a budget 50 times that of the Weather Service.)
So if extraordinary laws like S-7 don’t work to prevent terrorist attacks, do they give authorities better tools to go after the plotters?
Judging from the Harper government’s own comments, the answer is that either it doesn’t know or it’s not telling. All Public Safety Minister Vic Toews has said is that municipal and provincial police forces in Canada are “ready” to deal with a Boston Marathon-style attack. Yet despite that readiness, he also insists that we need tougher laws to deal with terrorists. When asked to describe situations in which the provisions of S-7 might assist authorities where current laws do not, he declined to comment.
The reason might be that there aren’t any. Under anti-terrorist legislation passed by the Chretien government post-9/11, authorities were given the two most draconian powers of S-7 — pre-emptive arrest and investigative hearings. Despite the fact that terrorism cases were successfully brought forward by authorities during that time — including the trial of the Toronto 18 — these provisions were never used. Not once.
And so we come to this week’s ballyhooed anti-terrorist investigation that ended in two men being charged with conspiring to commit a terrorist act in association with al-Qaida, an alleged plan to attack a VIA train operating between Toronto and New York City. It appears that the authorities’ current powers were sufficient to pursue, investigate, disrupt and prosecute this pair of alleged terrorists without bringing back a beefed-up version of Jean Chretien’s anti-terror laws.
Perhaps that’s why the Canadian Bar Association is against Bill S-7. The CBA makes the point that the legislation does not give investigators new tools, but merely duplicates, with a few new wrinkles, laws that already exist. So why would any society based on the rule of law want to bring in legislation that doesn’t prevent terrorist acts and doesn’t make people safer?
That question becomes all the more pressing when you consider that S-7 will authorize the arrest, detention and forced testimony of people who have not been charged with any offence, and who don’t know the evidence against them. In fact, S-7 could be used against a citizen who is not even suspected of a crime, but simply suspected of knowing other people who might be cooking up a plot.
And then there is the fact that the application of S-7 extends beyond Canada’s borders, which means that investigators in this country might have to rely on foreign intelligence services for their information in order to apply the legislation.
What if that information — completely uncheckable, because it is classified — is wrong? That might sound theoretical — unless your name is Maher Arar. And although the Harper government apologized to Arar for helping to get him deported to Syria, where he confessed under torture to visiting a terrorist training camp in Afghanistan, it nevertheless gave the green light to Canadian authorities to accept intelligence gathered by countries that practice torture.
Here is another cautionary note from the U.S. experience with extending special powers to law enforcement in the battle against terrorism. After 9/11, the FBI was granted the right to issue national security letters to combat foreign terrorists or counter-intelligence officers operating in the United States. It was supposed to cut down on all that pesky legal paperwork. But instead of using their special powers against those groups, they used them against American citizens a full 60 per cent of the time.
They were tempted to do it because Americans enjoy constitutional protection from unreasonable search-and-seizure. Accordingly, law enforcement normally would have to get a judicial warrant before putting a U.S. citizen under surveillance or seizing his information. By issuing national security letters, the FBI disposed of the obligation of making its case before a judge. Suddenly, their jobs became a lot easier, especially that part that dealt with informational fishing trips. But by using the power against U.S. citizens, rather than foreign terror suspects or spies, the FBI violated the constitution, the Patriot Act and its own internal guidelines.
A year after getting caught doing this, the FBI issued a further 50,000 national security letters, the majority of them against American citizens whose phone and financial records were targeted. When you give police extraordinary powers, it’s a shaky exercise of the honor system to assume they will use them only in the way they were intended.
And now with S-7 the law of the land, some dark possibilities present themselves in this country.
The federal government already has established five Integrated National Security Enforcement Teams across Canada, most recently in Alberta. Those teams, made up of officers from the RCMP, CSIS and the Canada Border Services Agency, have identified Greenpeace as a group that might attack critical infrastructure.
Harper cabinet ministers have described environmentalists as radical extremists controlled by foreign elements. Add into the mix the fact that former First Nations chiefs like Terry Nelson and Dennis Pashe have appeared on Iranian television in a bid for closer relations with that country and a chance to describe their plight and ask yourself — what would happen if either group disrupted Canadian commerce in a peaceful protest?
There may be people who see the Harper government’s speedy passage of anti-terror legislation, the Boston bombings, and the arrests of terror suspects in Canada as a trinity of coincidence. There may also be people who will not be bothered by the fact that in congratulating the police authorities in the House of Commons for foiling a terrorist plot, the prime minister neglected to use that inconvenient judicial word “alleged”.
There is more than a whiff of political opportunism in the air. Just when the polls show that Justin Trudeau is getting Canadians to think about hope, the PM returns them to his special metier — fear.
When a prime minister’s favorite part of the justice system is the police, it is a proclivity that bears watching.
Michael Harris is a writer, journalist, and documentary filmmaker. He was awarded a Doctor of Laws for his “unceasing pursuit of justice for the less fortunate among us.” His eight books include Justice Denied, Unholy Orders, Rare ambition, Lament for an Ocean, and Con Game. His work has sparked four commissions of inquiry, and three of his books have been made into movies. He is currently working on a book about the Harper majority government to be published in the autumn of 2014 by Penguin Canada.