Why stripping citizenship is a weak tool to fight terrorism: Roach and Forces

2016/03/07 Leave a comment

Usual good analysis and assessment:

First, even assuming that citizenship revocations produced the removal of dangerous people from Canada, that strategy would amount to anti-terrorism NIMBYism. More concretely, Canada would embark of a policy of catch and release – setting up today’s convicts as tomorrow’s foreign fighters, with travel to foreign locales facilitated by the Canadian government. It seems unlikely other countries would embrace the “return” of people converted to violence in Canada, and deposited on their doorstep because of a potentially tenuous residual link of nationality.

Nor would it be sensible to assume that deported former Canadians would thereafter be unable or uninterested in engineering acts dangerous to Canada and Canadians. Operating far from Canada and its security services, they would enjoy a greater freedom to do so than would those kept closer to home, under watch and potentially more invasive strictures, such as peace bonds.

Second, the provisions only applied to dual nationals. The rationale for this focus was simple – making someone stateless would violate Canada’s international obligations. But this focus on a small subset of Canadians encouraged the dangerous delusion that terrorism is (or can be made into) a foreign threat and problem. The so-called Toronto 18 plot, the terrorist attacks of October, 2014, and the 1985 Air India bombing underline the fact that terrorism is a Canadian phenomenon. Some of those plotters were dual nationals, others were not. In almost all of the recent terrorism cases, the violent radicalization of plotters was made-in-Canada, not the product of residence in some foreign locale.

Citizenship revocation for dual nationals is at best a capricious and close to arbitrary tool, focused not on a class of people who are the most objectively dangerous, but on a population most legally vulnerable to the extraordinary revocation power.

Third, the law now being repealed would in most cases commit Canada to long and costly battles about whether it can deport a convicted terrorist to countries such as Iran without the person running the risk of torture. This is a path we have been down before, with the infamous (and to date fruitless) security certificate disputes – legal proceedings that have consumed millions of taxpayer dollars and have yet to result in the removal of any of the five foreign-born men accused of terrorism and subjected to removal orders after the terrorist attacks of Sept. 11, 2001.

The costs here stem not only from the extensive litigation but also from the reputational hit Canada incurs when it risks complicity with torture. The O’Connor and Iacobucci inquiries into the role of Canadian authorities in contributing to the maltreatment of Canadians in foreign jails are now a decade old, but their lessons remain acute. Stripping someone’s nationality before sending him to a foreign jail in a torturing country does not change in the least the ethical or legal implications of such conduct.

Fourth, the prospect of deporting terrorists who have served their prison terms provides Canada with another excuse not to dedicate resources to problems of prison disengagement from terrorism and rehabilitation. The Western world is slowly awakening to the reality that many people convicted under broad, post-9/11 laws enacted to prevent terrorism before it happens will eventually be released. The idea of citizenship stripping encourages the illusion that Canada can displace the risk of terrorism, rather than take responsibility for fighting it through programs that counter violent extremism, including for people convicted of terrorist plots.

All of these points condemn citizenship revocation even without considering questions of constitutional law and principle. But those, too, are ripe – not least, the issue of whether our courts would have followed their U.S. counterparts and condemned citizenship revocation as an underhanded supplemental punishment for things a citizen did, while still a citizen.

Source: Why stripping citizenship is a weak tool to fight terrorism – The Globe and Mail

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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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Kent Roach & Craig Forcese: Press the reset button on security

2015/09/19 2 Comments

Always worth reading, and likely one of the first in a series of ‘transition advice’ should there be a change of government:

The problem is, however, that our anti-terrorism dilemmas are more acute than “C-51 good; C-51 bad.” To be sure, we believe strongly that it is bad. It infringes the Charter rights of Canadians without appreciable security gains.

That said, Canadians are right to be concerned about terrorism. A close examination of the data suggests it is not an existential threat, but it is a real one. Terrorist attacks are overt acts of political violence, the scope and lethality of which are limited only by the capacity and imagination of their perpetrators. They are unpredictable and designed to make us do things, or at the very least fear things. Terrorism is a conscious assault on freedom, in a way that is dramatically different from the accidental perils of living. Such conduct demands a response from the state.

But Canadians are also right to be concerned about the freedoms sacrificed by C-51. They should be even more alarmed that those rights are sacrificed unnecessarily, for no appreciable security gain. And they should be especially concerned that no party has so far shown itself prepared to grapple with the real problems that ail anti-terrorism efforts in Canada.

In our new book, False Security: The Radicalization of Canadian Anti-terrorism, we urge that C-51’s misguided “quick fixes” are no substitute for efficient terrorism investigations and prosecutions leading to convictions and meaningful prison terms for terrorism offences. They are also no substitute at the front end for multi-disciplinary and community-based programs attempting to curb radicalization to violent extremism, including in prison.

Bill C-51, read in association with the earlier Bill C-44, runs the serious risk of undermining anti-terrorism efforts, while at the same time sacrificing elemental constitutional rights. But even if C-51 were swept from the earth, we would still have a woefully deficient anti-terrorism strategy. There are many reasons for this, but two stand out.

First, as compared to other democracies, Canadian terrorism prosecutions are unnecessarily unwieldy, complex and remarkably infrequent. The inquiry into the Air India bombings pointed urgently to the need to resolve this issue in its 2010 report, and also underscored long-standing (and still persisting) difficulties in the process by which CSIS intelligence can be used as evidence in criminal trials.

The government ignored the Air India report even in the face of decisions, like one from the famous Toronto 18 case, where a trial judge reported that, “CSIS was aware of the location of the terrorist training camp.… This information was not provided to the RCMP, who had to uncover that information by their own means.”

Any suggestion that C-51 fixes the structural reasons for this dangerous conduct is nonsense. It allows information to be shared about just about everything, but does not compel CSIS to share information about terrorism.

Second, Canada lags behind other democracies in developing multidisciplinary programs to counter violent extremism. Counter violence extremism initiatives require close attention, and then careful consideration of empirical evidence on how best to dissuade persons from moving toward political violence (or for those at risk of further radicalization in prison, disengage from it).

Bill C-51’s new speech crime, the government’s political messaging and its near exclusive focus on hard-nosed tactics without a meaningful overall anti-terrorism strategy are serious barriers to success.

Exactly what the parties would do in these and related areas if elected is unclear. Certainly, we welcome proposals for enhanced accountability review of the security services — long overdue and identified in detail by the Arar inquiry almost a decade ago. We support the idea of a more informed parliamentary process, including parliamentarians competent to review secret information. Our book outlines suggestions in both these areas.

But accountability reform alone is insufficient.

After Oct. 19, a government of some sort will take office. Canadians deserve a government willing to embrace complexity, and the maturity to step back from anti-terrorism as a subset of gotcha politics. There are members in each political party who share this ambition — we have spoken to them. We hope those voices are raised in the weeks to come.

Source: Kent Roach & Craig Forcese: Press the reset button on security

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Roach and Forcese: The government’s new speech crime could undermine its anti-terror strategy

2015/02/12 Leave a comment

A different and valid take:

Here’s why: the data suggests that our most promising means of combating radicalization is with on-the-ground programs that anticipate threats and steer people away from violence. Thus the RCMP has launched its new counter-violent extremism (CVE) program, an all-of-civil-society initiative designed to navigate people away from trouble in the “pre-criminal space” — that is, before they violate the law.

This is an uncertain and challenging undertaking. However, it may be the most rational response to a social problem that no prosecutor or penitentiary will ever solve, and may actually make worse. And the government’s new speech crime could undermine it. Let us illustrate why, with a very plausible hypothetical situation.

The new CVE program reaches out to a mosque, wishing to involve it and its membership. It wants people to assess honestly the merits of, and confront squarely, the Al-Qaeda-inspired world view that says Islam is under attack by “Western crusaders,” and that it is the duty of good Muslims to act in defence, even with violence. This airing of views will require, at minimum, a venue in which people can speak freely, and the mosque is asked to provide it.

The imam is aware of the new speech offence, and is worried that some of his members, though they show no propensity for violence, nevertheless hold radical views. He fears what will happen if the RCMP hear statements such as, “the use of violence in defence of Islam is just and religiously sanctified and should be supported.” Some community members are also keen to send money to groups overseas whose conduct may include acts of violence.

And so, wisely, the imam decides to consult with a local lawyer, who concludes that statements like the one above might well be seen as knowing and active encouragement of the concept of “terrorism offences in general.” And he concludes that in making these statements at the CVE meeting, the speaker may be aware that some of his fellows may commit some terrorist offence, including perhaps sending money to group listed as, or associated with, a terrorist group.

Reasonably, the lawyer concludes there is a risk that the meeting could violate the new speech crime. The RCMP’s “pre-criminal” CVE space then turns into a “criminal space.” The imam has no choice but to cancel the meeting.

Roach & Forcese: The government’s new speech crime could undermine its anti-terror strategy

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Kent Roach and Craig Forcese: Putting CSIS surveillance on a firmer legal footing

2014/10/30 Leave a comment

Hard to disagree:

A smarter bill would link the enlargement of CSIS’s powers with better Parliamentary review. It also would address more integrated review of how CSIS’s actions affect terrorism policing and investigations. The Air India commission proposed that this difficult task be handled by a National Security Co-ordinator, but the government rejected this fix.

In sum: The government deserves credit for a legal initiative that will put CSIS extraterritorial surveillance on a more clear legal footing, clearly acknowledges a judge may violate international and foreign law in authorizing this surveillance, and that will protect CSIS sources, subject to an innocence-at-stake exception (in criminal proceedings, at least).

In so doing, it squarely puts on the table important policy issues that should be debated in full. But along the way, it will be useful to add more to the “accountability” side of the “reform of CSIS” ledger.

Kent Roach and Craig Forcese: Putting CSIS surveillance on a firmer legal footing

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Radicalization: Les lois existantes suffisent, disent des experts

2014/10/25 Leave a comment

Will be part of the debate next week as the Government introduces its new measures to give CSIS more powers:

Pour Kent Roach, professeur de droit à l’Université de Toronto et expert reconnu des lois antiterrorisme au Canada, les services de sécurité ont déjà tout ce qu’il faut. « Avant d’attribuer les événements de lundi [Saint-Jean-sur-Richelieu] et mercredi [Ottawa] à des carences dans la lutte antiterrorisme canadienne, il faut être prudent », dit-il au Devoir. Il suggère d’« éviter d’aller vers des changements législatifs faits dans l’urgence ».

Selon lui, « l’enjeu est beaucoup plus de mettre en application les lois existantes que d’en adopter de nouvelles », même si le cas de Martin Couture-Rouleau qui a tué un militaire à Saint-Jean montre qu’il peut être difficile d’accumuler une preuve suffisante permettant d’arrêter une personne que l’on sait potentiellement dangereuse. « Mais dans ce cas, nous ne savons pas pourquoi son passeport a été confisqué sans que d’autres actions soient prises », dit-il prudemment.

L’avocat criminaliste Jean-Claude Hébert pense sensiblement la même chose que M. Roach. « Il est faux de prétendre que les lois ne prévoient pas les outils juridiques nécessaires, au contraire », dit-il. M. Hébert estime que les forces policières et de renseignement ont le « fardeau de la preuve de démontrer qu’ils manquent de pouvoirs et que cela empêche les agents de faire leur travail correctement ».

Les lois existantes suffisent, disent des experts | Le Devoir.

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