A Presentation on National Security Certificates

Earlier today, I gave a presentation called "National Security Certificates: Organizing Against Secret Trials in Canada" as part of a conference called Canadian Security Into the 21^st Century: (Re)Articulations in the Post-9/11 World, held at Laurentian University.

I have mixed feelings about the conference as a whole. The first day was mostly non-academic presentations, and tomorrow and Friday are reserved for scholarly material. I went to the first session today, which was basically given by the organizers to the military as a vehicle to sell Canada's role in the occupation of Afghanistan. It actually would've been good to take detailed notes and use that to dissect the military's justifications for the war in a post on this blog, but it didn't occur to me until too late. There was some useful information about what's going on in Afghanistan, or at least the military's particular take on that, but it was mostly a pretty unpleasant experience -- lots of racist-sexist silliness about it being all a noble campaign to save helpless Afghan women and patronizing stuff that amounted to these lesser people having no idea how to do basic things without Western tutelage. There was even one frightening General -- a relic of Cold War fanaticism, I guess -- who kept saying outrageous things, like actually using the expression "red hordes," without any hint of irony, when describing the post World War II purpose of the Canadian army reserves.

In my session there was a graduate student who talked about work on security issues at the municipal level in Sudbury, which was probably interesting but he presented in French and I was too preoccupied with my own stuff to give it the kind of concentration that it would've taken me to get even the basics. There was also someone from the War Resisters Support Campaign, who made some interesting points.

I didn't stick around for the afternoon session. I figure I'll go to one of the sessions tomorrow, in which a friend is presenting, but I'm not sure how much time I can spare, otherwise -- this has been kind of an intense week on multiple levels and I have a lot of work that hasn't been getting done.

Anyway, here is the text of what I presented:

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Hello. As __________ said, my name is Scott Neigh. Among other things, I'm a member of a group called Sudbury Against War and Occupation, which is some local residents of this city who are doing what we can to oppose war and occupation, broadly understood, as well the many nasty things that go with them. I want to thank the organizers for the opportunity to speak today about one of those nasty things, so-called "national security certificates," which we regard as a very negative domestic consequence of Canada's involvement in and support of war and occupation.

Now, I say I'm here to talk about security certificates, but that really means I'm talking about people. I'm here to talk about the five men – all Muslim and all racialized – who are currently in the security certificate process. Their names are Adil Charkauoi, Mohammed Harkat, Mahmoud Jaballah, Mohammad Mahjoub, and Hassan Almrei. If you look ______ you will see posters with pictures of these men and a little information about them. So I'm talking about them. I'm talking about their families. I'm talking about their communities. It's easy to hear a lot of the things that I have to say as abstract injustices, as wrongheaded ideas, and even at that level they are bad enough; but they are also things that are being done to people.

Security certificates are a legal mechanism that the Canadian state can use to indefinitely detain non-citizens, including refugees, refugee claimants, and permanent residents, and ultimately deport them. They have existed in Canadian law since 1976, though their form has shifted over time. New legislation was just passed earlier this year, in fact, because early last year the Supreme Court of Canada found the existing security certificate regime to be unconstitutional. However, little is fundamentally different in the new legislation.

Those of us who oppose the security certificate process have a number of grounds for doing so. One version of the quick, bullet point list would be: two-tier justice, secret trials, shocking lack of due process, and deportation to torture.

They work like this: The first thing to keep in mind is, as I said, that this process cannot be invoked against human beings who have access to the legal category of "citizen", and is only used against human beings who do not. To set this process is motion, the Canadian Security and Intelligence Service, or CSIS, recommends it and two cabinet ministers must sign off on it. Then the targeted individual is detained.

Some time later, the certificate is reviewed by a Federal Court judge. The information for the review is provided by CSIS. This information can contain hearsay and all manner of speculative, unverifiable material, as well as information based on racial profiling. The legislation quite openly permits CSIS to submit information that would be inadmissable in a court of law, and even the judge does not get full disclosure from CSIS. Other serious problems have been raised with the ways in which CSIS goes about collecting and compiling information. The detained person and the lawyer of their choice never get to know the allegations or whatever detailed supporting information might exist for them, and only a very abbreviated, highly pruned summary is released. Needless to say, the public is also forced to remain ignorant about why public servants acting in our name are depriving fellow human beings of their liberty. The standard for the judge to make a decision in the review based on this information is far, far lower than the standard of "beyond a reasonable doubt" that is used in criminal proceedings. The only way for this process to end is deportation – which, by the way, the government has shown a willingness to pursue even when their own assessments have determined that the detained individual is at risk of torture or death if they are deported.

The version of the law passed this year makes a number of changes over the previous legislation, though they are largely superficial changes. One of the most visible shifts is the system of "special advocates." What happens is the government, using the device of the security clearance assessment, assembles a list of lawyers that it finds acceptable. So you are starting from a list put together by the very entity that is targeting these individuals and harassing their communities. For the judicial review of the certificate, the detained individual is then assigned one of these "special advocates" by a Federal Court judge – the detainee gets to provide some input into which one, but the final decision rests with the judge. The special advocate then gets to see the secret information that CSIS has submitted to the court (which, remember, is not necessarily everything anyway). And once the advocate has seen the secret evidence she can no longer communicate with the detained individual, except in rare instances when special dispensation is given by the judge. They cannot even ask basic questions like, "Where were you on the night of October 28th?" and so on, which means they are forbidden to engage in most of the routine activities that lawyers need to do to gather information to respond to accusations against their clients. A similar system has been used in Britain, and it has been roundly criticized as a failure. It seems clear that the main impact of instituting a special advocate system in Canada will be to make it less obvious to the casual observer that what you really have is not due process, but a secret trial.

There were a few other changes introduced in the newest version of the legislation, again mostly cosmetic. There are some changes to the rules for speed and frequency of review of the detention, though the experience of the men currently detained indicates that minor shifts in the rules on paper don't necessarily mean much in practice. As well, certain kinds of appeals are allowed now when they weren't before, though other kinds that were previously allowed are now prohibited.

Another highly touted change was that the new legislation states that information believed to have been obtained as a result of torture is inadmissable. There is something profoundly sick about the idea that information obtained from torture has ever been openly acceptable in our legal system, so this change, however symbollic it is, is good. However, it is hard to see how this can actually be implemented in practice in a meaningful way. As long as CSIS gets information from U.S. and other foreign intelligence sources, there is just no way for them to be sure that it hasn't been obtained by torture. Even CSIS's own oversight body, the Security Intelligence Review Committee, admitted in a 2006 report that CSIS could not absolutely guarantee that information from such sources was not tainted by torture.

So even with these changes, the legislation remains discriminatory, with one set of rules applying to citizens and another set to everyone else in a way that just assumes that if you are an immigrant, you are a potential 'threat to national security.' Despite the fancy manoevers of the special advocate system, targeted individuals are subjected to a secret trial and they are never permitted to know or adequately defend themselves against the allegations. Rules of evidence and standards of proof remain absurdly low. Opportunities for appeal remain strictly limited. And nothing has been done to change the way in which, in practice, this process has been used to target Muslim men of colour and their communities.

It is also important to note that before the new legislation passed, a number of the most prominent mainstream lawyer's organizations in the country declared that the new legislation would still be unconstitutional. Yet the Conservatives passed it, and the Liberals voted for it, including our own MP, Diane Marleau. Those of you in the audience might want to ask her why she voted for legislation that she knows is unconstitutional, and that she knows creates the conditions for secret trials and deportation to torture.

SAWO and many other groups across the country are making a number of demands around this issue. We want the secret trials process to be abolished – there is no place for two-tier justice. We want those men currently detained to either be released or to have access to fair and open trials. We demand that the Canadian state end its profiling and harassment of racialized communities. And we demand a commitment that the Canadian state live up to its international human rights commitments and end all deportation that might result in torture.

To these ends, people across the country are taking action. Organizing against security certificates has been going on in a sustained way for at least five years in some parts of the country, and is continuously expanding into new areas. Sudbury, for example, has only seen activity around this issue for the last six months or so. More than 15 cities across the country have seen activity against security certificates in the last year.

Groups have engaged in a number of different kinds of actions. They have provided support for the detained men and their families, both direct material support and political support. They have confronted politicians. Public education has been very important as well, since one of the biggest obstacles to opposing security certificates is that most people don't know about them. The most recent focus for activity, and what has consumed most of SAWO's energy on this issue, has been opposing Bill C-3, the recent legislation reauthorizing secret trials as part of the Canadian legal landscape. Though the efforts to prevent its passage were unsuccessful, more people than ever before know about and oppose national security certificates. Many, many organizations beyond those directly involved in the organizing endorsed the mobilization against Bill C-3. Already detainees and their supporters are preparing to mount new legal challenges, and those will likely provide at least one focus for continuing to build political momentum against security certificates in communities across the country that will eventually become unstoppable.

Now, I can see how some people might object to the position I've outlined. They might say, "Well, yes, this isn't a great process, but for the sake of the security of Canadians, don't we need it?"

I would reply, "Absolutely not." And I reach that conclusion just by looking around me.

I look around the world at how "terrorism," as understood in its narrow and distorted mainstream usage, has been effectively addressed. This is, after all, the very narrow slice of real security that security certificates are meant to address. And what I see is that even in that narrow area, it is ordinary police work rather than extraordinary powers that has achieved results.

I look around me – at my life, at the lives of people I care about, and at the lives of people I don't know but whose interests matter to me – and think about how the security of these lives could be improved in real, practical ways. What I see, the threats of harm that are most frequent and most likely, not only have very little to do with that slice of security usually labelled "terrorism" but could only be meaningfully addressed by courses of action to which the strongest proponents of security certificates are staunchly opposed.

I look at the root causes of whatever risk might exist of acts commonly understood as terrorist in nature being directed at Canadian targets, and I see a consistent refusal by the Canadian state to deal with those root causes.

I look at the political advantages that some powerful interests derive from mobilizing fear and hate and racism.

I look at the history of what "national security" has always been about. It has always been about expelling certain groups of people from the nation, about organizing exclusion, and also about those who have power within the nation retaining that power.

And I look at what security certificates are actually doing. The government has not presented one single shred of evidence that anything done with security certificates has actually done anything to enhance the wellbeing of any ordinary people. And there is plenty of evidence of how the lives of many ordinary people have been affected in very negative ways by security certificates and the larger campaigns of profiling and harassment of racialized communities of which they are a part.

Thank-you very much.

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So that's what I said, more or less, plus answering a couple of questions from the floor. The only thing I would add is that a couple of fellow activists in attendance pointed out that I did say a couple of things that they, and I, don't really believe. In one place I argue that "ordinary police work" is a good alternative to the extraordinary powers exerted in security certificates, and in another I demand in an unnuanced way "fair and open trials" for the detained men. Both of these give the impression that I think that the ordinary functioning of the legal system is somehow okay when it comes to "terrorism" and to racialized people in particular, and with respect to its place within social relations more generally. Which is not what I think at all. If I have time (big if) I'll maybe see if I can write a post or two to come up with concise, accessible ways of including those concerns for the next time I'm writing/talking about security certificates.