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Too Guilty to Fly, Too Innocent to Charge?
by Faisal Kutty
 As the Canadian government forges ahead with its cleverly named Passenger Protect Program, the timing could not be better to seriously reconsider what is for all intents and purposes a no-fly list.
The attention to the issue of watch lists generated by the struggles of Maher Arar (the Canadian citizen detained by Americans and shipped off to torture and interrogation in Syria) to clear his name should make us all sit back and reflect. There are many lessons to be learned from the Canadian government’s recent apology and financial settlement with Arar for its role in his “extraordinary rendition.”
One of these lessons is that hasty and ill considered national
security initiatives which are essentially aimed at managing
perceptions more than they are in really addressing legitimate and
manageable security concerns are not harmless. In fact, they cause
disproportionate harm in return for very minor gains in terms of
intelligence and law enforcement. The innocent and unintended victims
of such initiatives are real human beings with lives, rights and
dignity. When not properly designed to address the negative impacts
such initiatives can significantly disrupt and even destroy lives.
Another
lesson from the Arar saga is that religious and racial profiling, no
matter how vigorously it is denied, is too often the reality for a
growing number in Canada’s Muslim and Arab communities at least in the
national security context. In fact, this was confirmed by none other
than the Department of Justice in a report leaked a couple of years ago.
A
number of other men of Muslim/Arab heritage have made similar
allegations as Arar. Three of them will get their own less
comprehensive inquiries. One of the common denominators of each of
their stories is the fact that they were placed on one kind of watch
list or the other.
The proliferation of government watch
lists is a troubling development in the “war on terrorism.” The
challenges of such lists include differences of opinion on who’s
actually a security threat, consolidating information across agencies
by making the computer systems communicate the with one another. In
fact, Canada’s Auditor General Sheila Fraser found in 2004 that
watch-lists used to screen visa applicants, refugee claimants and
travelers seeking to enter Canada were in disarray because of
inaccuracies and shoddy updating.
And now we have another list to worry about.
As
we consider the need to improve our intelligence and law enforcement
systems, we must have an open and informed dialogue about what measures
truly make us safer while ensuring that our fundamental values,
liberties and rights are not sacrificed. The proper forum for such a
debate is our legislature. Bypassing this vital and necessary debate –
as was done with the Passenger Protect Program -- is irresponsible and
cavalier particularly given the findings of Justice Dennis O’Connor in
the Arar Inquiry, the Canadian track record with watch lists to date as
well as the experience with such lists south of the border. The
information sharing protocols and mechanisms which were criticized by
Justice O’Connor have not been improved, yet the government continues
with the no-fly initiative which mandates that we share – and even
merge and consolidate -- information with foreign entities and
agencies, which may have less scruples in listing and targeting
innocent people on flimsy grounds.
Making lengthy watch lists
based on subjective and political criteria and then giving the power to
add and remove names to agencies that have a vested interest in the
national security agenda is akin to asking the fox to guard the hen
house. Such lists – which will inevitably fill up very quickly with
“false positives”, political dissidents, and those whom our friends and
neighbours subjectively designate as threats – will not make us any
safer or interrupt any terrorists, if the U.S. experience is any
indication. To make matters worse, real terrorists may not even be
placed on the list for fear of tipping them off. According to the U.S.
homeland security department, known terrorists are not placed on the
list for fear that they would know they are being watched. Even this
new “made-in-Canada” list will be shaped by the U.S. and other nations’
lists as they cross-fertilize pursuant to intelligence agreements, the
Smart Border Declaration and the Security and Prosperity Partnership of
North America (SPP), both of which call for increased cooperation and
information sharing.
How can such a list provide anything more
than a false sense of security while leaving it rife for blacklisting
innocent people as well as racial and religious profiling? Indeed,
Canadians should be asking the government how an individual can be too
dangerous to fly, yet be free to roam the streets and plot terror.
The
no-fly list threatens liberty, equality and mobility rights guaranteed
in the Canadian Charter of Rights and Freedoms. Moreover, it leaves
little practical recourse to get off the list.
The experience of
some individuals who are already encountering difficulties in flying
within Canada without even having a list of our own does not give one
much confidence. The extraterritorial application of U.S. watch lists
is already impacting on Canadians – how will Canadians fare once
Transport Canada introduces its own official list and over time it
becomes increasingly shaped by other nations’ intelligence, criteria
and practices?
As the CATO Institute’s Jim Harper pointed out, the unilateral process is alien to our legal system:
“Rather
than watch-listing, people who are genuinely suspected of being
criminals or terrorists should be sought, captured, charged, tried,
and, if convicted, sentenced. Watch-listing allows law enforcement to
be very active and intrusive without actually doing what it takes to
protect against crime and terrorist acts. ... watch listing and
identification checking [are] like posting a most-wanted list at a post
office and then waiting for criminals to come to the post office.”
Anti-terrorist
watch lists may serve a very limited useful function, such as
separating individuals deserving of increased investigative attention,
but they will never be complete or be totally accurate. They should
not, however, be the basis for serious restrictions on liberty such as
the denial of transportation or violations of privacy or other rights
without the benefit of due process and the principles of fundamental
justice. They may have a limited role in designating who to investigate
further or watch so long as there is no deprivation of rights or
privacy violations and provided that they are compiled pursuant to due
process of law and without resort to subjective criteria or
racial/religious profiling.
In raising her voice against the
no-fly list, the Privacy Commissioner of Canada, Jennifer Stoddart,
said the list “represents a serious incursion into the rights of
travelers in Canada, rights of privacy and rights of freedom of
movement.” To this I would add, increasing likelihood of racial and
religious profiling, silencing dissent and persecuting unpopular
religious and political views.
Transport Canada must not be
given a carte blanche to deprive Canadians of our liberty, mobility,
equality and privacy rights, even though aviation security has now
become a legitimate national security concern. The government’s appeal
to national security should not exempt it from due process, principles
of fundamental justice, accountability, transparency, oversight and a
full Parliamentary debate.
The system envisaged by Passenger
Protect is wholly inadequate, as it will be over inclusive, with high
likelihood of false positives, pose a serious potential for racial
profiling, and completely lack any meaningful redress mechanism or
process.
Perhaps, what is needed is not this list, but better
investigative and intelligence work to gather evidence so that those
who are real threats are charged and kept off the streets, not just
flights.
Faisal Kutty is a Toronto lawyer, writer and
doctoral candidate at Osgoode Hall Law School of York University. He
serves as vice chair and counsel to the Canadian Council on American
Islamic Relations and filed submissions against the Canadian no-fly
list on behalf of more than two dozen organizations from across the
country. The submission entitled “Canada’s Passenger Protect Program:
Too Guilty to Fly, Too Innocent to Charge?” is available at
www.caircan.ca. His articles are archived at www.faisalkutty.com
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