How law to strip terrorists of citizenship fits into global picture

2015/10/05 Leave a comment

Good piece by Sean Fine in the Globe comparing revocation practices in other countries:

What other democracies allow citizenship to be revoked?

Twenty-two countries in Europe allow denaturalization for terrorism or other behaviour contrary to the national interest, according to a 2014 paper by University of Ottawa law professor Craig Forcese. These include Britain, Belgium, Denmark, France, Germany, Greece, Spain, Switzerland and the Netherlands. Australia introduced a new law in June to revoke the citizenship of dual nationals who engage in terrorism. Britain has broadened its revocation powers; the government may now make an individual stateless.

Why does the United States, with its well-known ‘war on terror,’ not revoke terrorists’ citizenship?

The U.S. Supreme Court has expressed abhorrence: In a 1958 case, chief justice Earl Warren called it “a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development.” In a 1949 case, the court deplored the removal “of a right no less precious than life or liberty.”

What does the Canadian Charter of Rights and Freedoms say about citizenship?

Section 6 says, “Every citizen of Canada has the right to enter, remain in and leave Canada.” But Section 1 says rights and freedoms are subject to limits that government can justify as reasonable in a free and democratic society. However, Section 6 is not subject to the Charter’s “notwithstanding” clause (Section 33); government cannot opt out of a court ruling on citizenship rights.

Source: How law to strip terrorists of citizenship fits into global picture – The Globe and Mail

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Tories move to strip citizenship from Canadian-born terrorist

2015/10/02 Leave a comment

So what this means, is that someone born in Canada, whose radicalization happened in this country, can have their citizenship revoked (pending the court challenge).

The Harper government is attempting to revoke the citizenship of a convicted terrorist who was born and raised in Canada, Maclean’s has learned—a first under a controversial new law that has triggered intense debate during the election campaign.

Saad Gaya, 27, is believed to be the only Canadian-born citizen (terrorist or not) to ever face the prospect of being stripped of his citizenship. Until now, there was no legal mechanism to undo what has long been considered an irreversible birthright.

A member of the so-called “Toronto 18,” Gaya pleaded guilty to his role in an al-Qaeda-inspired bomb plot and was sentenced to 18 years in prison. Although he was born in Montreal and grew up in Oakville, Ont., the Tories say recently enacted legislation provides the power to rescind Gaya’s citizenship because they believe he is a dual national of Pakistan—by virtue of the fact his parents, who immigrated to Ontario more than three decades ago, were born there.

Gaya, who has never lived in Pakistan, has launched a Charter challenge in Federal Court, arguing that the government’s revocation system amounts to “cruel and unusual punishment” and could have “a sufficiently severe psychological and social impact.”

“For many individuals captured by the new revocation provisions and who would now face deportation, including the Applicant, their other nationality derives from a country with which they have no meaningful connection, have little or no familiarity with the language or culture, and have no family or other support network,” reads Gaya’s court filing, submitted Sept. 18. “The Applicant was born and grew up in Canada. His family is in Canada and has been since before he was born.”

That Saad Gaya was a terrorist is not in dispute. A former honours student at Hamilton’s McMaster University, he confessed to participating in a 2006 conspiracy to detonate bombs in southern Ontario in retaliation for Canada’s military mission in Afghanistan. Although a judge concluded he was not the plot’s driving force, he was a loyal, willing underling who followed every order; the day he was arrested (June 2, 2006), police videotaped him at a north Toronto warehouse unloading what he believed to be a truckload of explosive fertilizer.

Gaya himself described his criminal behaviour as “shameful,” “politically naïve,” and “irrational.”

Yet despite his undeniable guilt, the Tories’ push to revoke Gaya’s citizenship presents an uncomfortable (and potentially unconstitutional) possibility: that a person born in Canada could lose his Canadian status and be deported to a country he’s never known—all because his parents were born there and, by extension, passed their dual nationality onto him.

Source: EXCLUSIVE: Tories move to strip citizenship from Canadian-born terrorist

And in giving credence to the slippery slope argument, and reinforcing the wedge politics, the PM suggests expanding this to other crimes:

A re-elected Conservative government might look to strip dual citizens of their Canadian citizenship if they commit other heinous crimes, Stephen Harper said in a radio interview Wednesday.

Harper was on The Andrew Lawton Show to talk about Bill C-24, a new law the Tories passed this spring that strips dual citizens convicted of terrorism of their Canadian citizenship.

Lawton asked Harper if he might strip other dual citizens in the future if convicted of other crimes, giving by way of example a serial killer, a rapist or someone who did something to children.

“Well, you know, obviously we can look at options into the future,” Harper responded.

“The reason we did this expansion… to terrorists and treason offences really is consistent with the way the law has always worked. You know we’ve been able to revoke citizenship, for example, for war criminals. So it is really been in cases where the person’s criminal acts are not just vile, but they actually demonstrate that the person has no loyalty of any kind to the country or its values.”

Harper said he couldn’t understand why Liberal Leader Justin Trudeau and NDP Leader Thomas Mulcair believe C-24 demeans Canadian citizenship.

“I think most Canadians, whether they are immigrants or other Canadians, understand that what demeans Canadian citizenship would be to allow war criminals and convicted terrorists and people who are actually out to destroy and defame our country to keep their citizenship,” Harper said. “They have a position that is frankly indefensible to virtually all Canadians.”

Bill C-24: Harper Says Tories May Consider Stripping Other Criminals Of Citizenship

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Banishment is a poor tool in fight against terrorism: Roach and Forcese

2015/09/30 Leave a comment

Apart from the principled concern regarding revocation (two classes of citizenship), Roach and Forcese outline practical concerns:

Given all this, how should we evaluate revocation as anti-terrorism? Cancelling the citizenship of convicted terrorists may be politically popular because it appeals to our fear and anger at terrorists. However, there are both principled and practical concerns about revocation as an anti-terror tool.

The principled issue can be summarized simply: Whether a government can take away citizenship (for something other than fraud in acquiring it) is a totally novel constitutional issue. The question has never arisen, because revocation of this sort has never existed since the Charter came into existence. But if Canadian courts follow the path of their U.S. counterparts, they will guard sternly against revocations.

Add to that the discriminatory nature of the citizenship-stripping law – confined to dual nationals – and the due process minimalism that afflicts the system and you have the makings for a serious constitutional dust-up.

But focus also on the practical issues. In the best-case scenario, the government actually banishes a truly dangerous individual, but only by displacing risk to a foreign country, even assuming that foreign state co-operates in their removal.

In the worst case, the government tries to remove the individual to the tender embraces of a torturing state. Under international law, no one can be removed to face torture and maltreatment. And whatever it might have said in earlier cases, the Supreme Court would have to ignore a lot of its recent Charter pronouncements to permit deportations to torture.

And so, since the men the government wishes to banish would be removed to countries with poor records on torture, we should expect citizenship revocation proceedings to spill over to endless disputes over deportation.

The last time we tried this – with “security certificates” – the government was budgeting more than $5-million a year, a person, by 2009 in its decade-long effort (so far 100-per-cent unsuccessful) to use a procedurally doubtful process to remove people to maltreatment.

To put that in context: The entire national annual budget for the RCMP’s much-delayed front-line “terrorism prevention program” has been $1.1-million (slated to rise to a very modest $3.1-million under the 2015 budget).

There is every reason to believe, therefore, that Canada is now repeating its prioritization of expensive, noisy, controversial, often-fruitless efforts to chase problems out of the country, rather than focus on fixing them before they become problems.

Moreover, despite intelligence warnings about prison radicalization, Canada has no developed policy countering prison radicalization.

Inattention to what experts call terrorist “disengagement” is a mistake. If the Islamic State’s call to violence resonates among the disaffected, there should be more prosecutions and convictions. Some convicts, such as the VIA train plotters, will be sentenced to life imprisonment, but others will not. They will eventually be released. It is in all our interests to attempt to rehabilitate them.

Citizenship-stripping of those terrorists who have dual nationality reduces pressure to take this matter seriously by fostering the illusion that we can simply prosecute and deport our way out of the problem of IS-inspired terrorism.

Source: Banishment is a poor tool in fight against terrorism – The Globe and Mail

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Justin Trudeau vows to repeal ‘2-tiered’ citizenship law

2015/09/01 Leave a comment

Unclear whether he would repeal the complete Citizenship Act (the reporting suggested that) or just the revocation and a few other provisions:

Liberal Leader Justin Trudeau says if elected his government will repeal the Conservative government’s “two-tiered” citizenship law and that he would do more to help free imprisoned Egyptian-Canadian journalist Mohamed Fahmy.

“Liberals believe in a Canada that is united — strong not in spite of its differences, but precisely because of them,” Trudeau told an audience at the Jalsa Salana Islamic conference in Mississauga, Ont., on Saturday afternoon.

He added that under Conservative Leader Stephen Harper, Canadians are being encouraged to be fearful of one another and there has been a decline in refugees coming to Canada, and in citizenship applicants.

In an accompanying news release, Trudeau said his government would repeal the Conservative government’s controversial Strengthening Canadian Citizenship Act, saying it “devalues Canadian citizenship by creating two classes of citizenship.”

“Liberals will guarantee that all Canadians’ fundamental rights are respected as guided by the Canadian Charter of Rights and Freedoms,” the statement said.

The act became law in June 2014. While several elements of the law remain controversial, a provision that came into effect in May of this year expands the grounds on which the federal government can strip dual nationals of their Canadian citizenship, even if they were born in Canada.

The provision gives the power to revoke citizenship, in some cases, to elected officials and not a federal court.

“There is a suggestion that some of us might be less Canadian than others, a suggestion of who ought to decide who stays or goes from Canada be an elected politician instead of our justice system. I think that’s wrong,” Trudeau said during his speech.

The changes are currently being challenged in court by a coalition of civil liberties groups.

In a statement, the Conservative candidate for Ajax [and current Minister of Citizenship and Immigration] described Trudeau’s remarks as “more evidence that he’s just not ready,” to be prime minister.

“Canadians know that only Conservatives can be trusted to take action against those who would do Canada harm and stand up for Canadian values,” Chris Alexander said.

Liberal position is consistent with their opposition to the revocation provisions during the C-24 Citizenship Act hearings (NDP also opposed).

In a sign that either the Conservatives continue to think they have a winner on this issue (earlier polling would suggest that) or whether they are worried that they don’t, the heavy hitters, Jason Kenney and Jenni Byrne were denouncing Trudeau’s position vigorously on Twitter.

Source: Justin Trudeau vows to repeal ‘2-tiered’ citizenship law – Politics – CBC News

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Government seeks to revoke Canadian citizenship of convicted terrorist Misbahuddin Ahmed

2015/07/27 Leave a comment

And then there were two. The focus (so far) is on those who have been convicted in Canadian courts (which avoids all sorts of due process issues with respect to those convicted overseas):

Pakistan-Canadian Ahmed, 32, is serving 12 years at Warkworth, a medium-security prison in Ontario.

A third accused was acquitted of the one conspiracy charge against him and charges against the fourth man were dropped.

“Misbah knows about this and instructed me to do whatever is possible to prevent the revocation of his citizenship,’ said lawyer Ertel. “We intend to challenge the legislation and oppose this in every way.

“Like many Canadians I’m no fan of the draconian legislation or the apparent lack of restraint in its application,’ he added.

Ahmed now has 60 days to respond to the government’s application.

When he sentenced Ahmed, Ontario Superior Court Justice Colin McKinnon said he was convinced that Ahmed had renounced his terrorist inclinations.

He refused to impose a maximum sentence, meaning Ahmed could apply to the parole board for early release after serving one-third of his sentence.

“But for the fact that Mr. Ahmed has been convicted for terrorism offences rather than some other serious offence,” said the judge, “he would likely be considered an appropriate candidate for a conditional (non-custodial) sentence.”

He rejected the prosecutions request for a 20-year sentence saying it would be an “injustice.”

Ahmed, a former Ottawa Hospital diagnostic-imaging technician and the father of three young daughters was convicted of conspiracy to facilitate terrorism and facilitating terrorism. He was acquitted of a more serious third charge of possessing an explosive device.”

Crown prosecutors say Ahmed’s sentence is too lenient and are appealing.

Ahmed, for his part, is appealing the sentence on the grounds it is too harsh.

Government seeks to revoke Canadian citizenship of convicted terrorist Misbahuddin Ahmed | Ottawa Citizen.

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Australia: Citizenship laws ‘not a bravado issue’ says Malcolm Turnbull

2015/06/04 1 Comment

Observing the polarized debate within the Australian Cabinet over citizenship revocation, I can only wonder whether there was a similar debate behind closed doors in the Canadian Cabinet.

I suspect not. Despite the Harper government’s discipline, some glimmer of internal disagreement would likely have become known had it been major:

[Communications Minister and former Liberal party leader] Turnbull has warned that the fight against terrorism is “not a bravado issue” and emphasised the importance of safeguarding the rule of law in Australia.

The communications minister and former Liberal party leader said terrorists “want to destroy us because they hate the rule of law” and he argued a controversial proposal to strip sole nationals of their Australian citizenship raised “very big legal and practical issues”.

Turnbull’s comments provide an insight into the Coalition’s internal dispute over how to deal with the citizenship of Australians suspected of involvement in terrorism. The government has agreed to introduce a bill to give the immigration minister, Peter Dutton, the power to revoke the citizenship of dual nationals linked to terrorism, but deferred a decision on powers to deal with sole nationals after a cabinet backlash last week. Turnbull was among those cabinet critics.

“What is the essence of a democracy? Some people would say a democracy is one where the majority get to do what they want. That’s not a democracy. That’s a tyranny,” Turnbull said at a media conference in Queanbeyan on Wednesday.

“The genius of a democracy governed by the rule of law, our democracy, is that it both empowers the majority through the ballot box, and constrains the majority, its government, so that it is bound by law.”

Turnbull added: “Why does Daesh [another term for Islamic State] hate us? Why do they want to kill us? Why do they want to kill, destroy our society? They want to destroy us because they hate the rule of law.

“They hate the fact that the government has to stand up – can be stood up by citizens and held to account. They hate the fact that we have freedom of speech. They hate the fact that we are a free society governed by law not just by whatever the direction of one religious leader is from time to time.

“Our freedoms are absolutely critical and it is important that we have a debate about this but I just want to be very clear … some people like to suggest that some people are tougher on terrorism or tougher on national security than others.

“Let me say this to you – honest people, knowledgeable people, really well-informed people can have very different views about what the right measures are on national security and have very different views about the right balance between, say, citizenship and national security.”

Citizenship laws ‘not a bravado issue’ says Malcolm Turnbull | Australia news | The Guardian.

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Government of Canada now able to revoke citizenship of dual citizens convicted of terrorism – Coming into Force

2015/05/30 1 Comment

Clear signal on which cases will be a priority: those tried and convicted in Canada, neatly avoiding some of the foreign judicial process issues raised during C-24 hearings.

But not avoiding, of course, the more fundamental issue of differential treatment for dual citizens compared to Canadian-only citizens:

Measures came into force officially today that enable Canada to revoke citizenship from dual nationals convicted of terrorism, treason and high treason, and/or spying for foreign governments.

Canadian citizenship can now also be revoked from dual citizens for taking up arms against Canada and the Canadian Armed Forces, whether as a member of a foreign army or in non-state terrorist groups like ISIS.

Also officially in force as of today is a new, more streamlined citizenship revocation process.  This new process will help ensure Canada and Canadians are protected, and that revocation decisions can be made quickly, decisively and fairly.

Citizenship and Immigration Canada (CIC) officials will be implementing these new measures immediately and will prioritize cases that have been tried and convicted here in Canada on at least one of the grave crimes listed above.

Government of Canada now able to revoke citizenship of dual citizens convicted of terrorism

 

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Australia: Debacle over terrorism and citizenship is leak-based policy in its purest form | Lenore Taylor | Australia news | The Guardian

2015/05/30 Leave a comment

Lenore Taylor of The Guardian on the leak strategy being used to sell the proposed Australian revocation policy change for convicted terrorists:

One might ask what is to be gained from so many headlines galloping so far ahead of actual decisions, or indeed, actual facts.

Does it help the police and intelligence agencies with their very important task of “keeping Australians safe” either by preventing acts of violence in this country, or preventing dangerous foreign fighters from returning, or the strategy for countering violent extremism aimed at stopping people here from becoming radicalised and dangerous?

Or is it playing to a very different audience – with the much more political aim of keeping security threats at the forefront of the national conversation and, perhaps, goading Labor into disagreement so that they can be portrayed as “weak on terror”?

The prime minister’s most powerful advisor is taking a keen interest in the policy and politics of the issue – his chief of staff, Peta Credlin, told a recent meeting of Coalition staff she was spending at least 40% of her time on the issue.

Another clue might lie in yet more information from the prime minister’s office to the Daily Telegraph, this time in an article entitled “The first cracks in Australia’s bipartisan approach to terrorism could doom Bill Shorten” which revealed that the prime minister received 900 emails in the week after the budget expressing anger at the possibility that “repentant Australian jihadis” might be allowed back into the country.

The article praised the prime minister’s “instinctive” response that “If you go abroad to join a terrorist group and you seek to come back to Australia, you will be arrested, you will be prosecuted and jailed” in comparison with Shorten’s reaction that “There are laws in place, I’m not going to play judge and jury.”

But of course, there are laws in place, and they do have evidentiary requirements. Which means the courts may not in every case implement the prime minister’s “instinct”. Which is presumably where the new policy-thought about citizenship-stripping comes in. And Shorten has been pretty careful to make sure there are no “cracks” in the bipartisanship on these issues, no matter what the government proposes.

There is, of course, an alternative to slap-dash policy in response constituent-email reaction, or policy by cabinet-pre-empting, headline-seeking press leak, and that is that old-fashioned idea of policy developed to address a real problem, thought through and discussed by cabinet, before public announcement.

Debacle over terrorism and citizenship is leak-based policy in its purest form | Lenore Taylor | Australia news | The Guardian.

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Dual-national jihadists face loss of Australian citizenship, but not sole nationals yet

2015/05/27 Leave a comment

Out of the Canadian Conservative government (and UK) playbook, with interesting internal disagreement over whether or not this should include revocation in case of statelessness:

Tony Abbott will push ahead with proposed changes to strip dual citizens of their Australian nationality if they are suspected of terrorism, but has deferred a decision on strong new powers against sole nationals after a cabinet backlash.

The prime minister confirmed a bill to be introduced to parliament in coming weeks would grant the immigration minister the discretion to strip dual nationals of their citizenship if they were deemed to be involved in terrorism, even if the person had not been convicted of an offence.

But the government is yet to settle on a position on punishing Australians who hold no other citizenship after several ministers raised significant concerns in cabinet on Monday evening.

It is understood Abbott backed the push by the immigration minister, Peter Dutton, for the power to strip sole nationals of their Australian citizenship in cases where they were entitled to apply for citizenship in another country.

But the attorney general, George Brandis, the defence minister, Kevin Andrews, and the communications minister, Malcolm Turnbull, are believed to be among numerous ministers who raised concerns during the cabinet discussion.

Fairfax Media reported that the foreign affairs minister, Julie Bishop, had also questioned whether another country would be likely to approve a citizenship application for a person from whom Australia had deprived citizenship.

In an interview with Sky News on Tuesday, Brandis emphasised that the government had not made any decisions about second-generation Australians and had instead opted to “lead a national conversation about the rights and obligations associated with citizenship”. This will begin with the release of a discussion paper for community feedback on Tuesday.

Dual-national jihadists face loss of Australian citizenship, but not sole nationals yet | Australia news | The Guardian.

New Zealand Prime Minister Kay takes a different tack with respect to an Australian/New Zealander dual national:

NZ ‘unlikely’ to strip woman’s citizenship – PM

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Australia to Revoke Citizenship of Australian-Born Jihadis – NYTimes.com

2015/05/23 Leave a comment

More the Canadian model than the UK model (given the provision would not be applied to Australians without claim to another nationality to avoid statelessness).

With, of course, the same problems with respect to security (does sending people to countries where they may be free increase or decrease security) and fairness (treating people who have committed similar crimes differently on the basis of nationality):

Australia plans to strip citizenship from Australian-born children of immigrants who become Islamic State fighters in its crackdown on homegrown jihadis, a minister said on Thursday.

The government wants to change the Citizenship Act to make fighting for Islamic State in Syria and Iraq a reason for losing citizenship, Immigration Minister Peter Dutton said.

The government also wants to adopt the British legal model by revoking the citizenship of extremists who are Australian-born children of immigrants or an immigrant, forcing them to take up citizenship in the birth country of their parents, or parent, Dutton said.

Dual nationals could also lose their Australian citizenship, while Australians without claim to another nationality could not.

“The principle for us, which is very important, is that we don’t render people stateless,” Dutton told Sydney Radio 2GB.

Australia to Revoke Citizenship of Australian-Born Jihadis – NYTimes.com.

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