Dec. 29, 2004. 01:00 AMRights and security: We must have both
Nine Muslims launched the appeal after being held for nearly three years under the country's Anti-terrorism, Crime and Security Act.
In its ruling the court stressed both the disproportionality of the measures — "draconian measures" that "cannot strictly be required by the exigencies of the situation" — and their clear and present violation of the rule of the law.
The British ruling rings familiar. In June of this year, the U.S. Supreme Court held, 6-3, that Guantanamo Bay prisoners are entitled to due process "no less than American citizens" to challenge the evidence against them, among other rights.
In Canada, the issues ring familiar. Five Muslim non-citizens have waited a combined total of more than 174 months — about 14 years — in Canadian jail cells under what might be the country's dirtiest little secret: security certificates.
The men have languished in a legal black hole, without bail or charge and unable to respond to the evidence against them. All face the risk of deportation to torture.
Much to the shock of human rights advocates, the Federal Court of Appeal recently upheld the use of secret evidence and the differential treatment of non-citizens. The case will likely be appealed to the Supreme Court.
The decisions underscore a key intellectual battle of our times that is usually presented as a take-it or leave-it binary: security or human rights.
In Canada, as in a number of other countries, the victor has been an expansive security agenda that has seen a host of legislation passed with much still in the works. The loser has been both a number of fundamental rights — the right of an open trial, to due process, to see the evidence against you, to be free from torture, not to be held without cause — and the rule of law, with its insistence that state actions cannot be arbitrary, discriminatory or without accountability.
These rights have been rolled back in Canada since 9/11 and, in many instances, culled from the legal architecture.
Take the anti-terrorism legislation, C-36, for example. Though it has not been used vigorously after 9/11, there have been many abuses in the "shadow of the law," as the International Civil Liberties Monitoring Group has argued.
This is fundamentally because C-36 institutionalizes norms that violate the rule of law: secret evidence, secret proceedings, secret processes to list people and individuals as terrorists.
The end-game of such measures is illustrated by the case of Maher Arar, the Canadian who was extradited to torture by the United States on the basis of suspect evidence supplied by the RCMP.
After Arar's return to Canada, numerous anonymous Canadian officials waged a cloak-and-dagger campaign against Arar by releasing segments of a torture-extracted confession obtained from the Syrians. Such confessions would be flatly rejected in any regular court proceeding but can easily be used, without effective scrutiny, under current security legislation.
By introducing ideology and religion into a definition of terrorism, C-36 provides a green light to racial profiling and witchhunts.
The threat of a warrantless arrest under C-36 pressures individuals into being compliant subjects for interrogation. It is not uncommon for Canadian Muslims and Arabs to be visited at work by security agents, dissuaded from speaking to a lawyer, or asked to become informants. When individuals assert their rights, to a lawyer for example, they are told to buck-up, co-operate and be "good citizens."
Many of the measures contained within C-36 also find expression in other anti-terrorism initiatives, from the security certificate provision of the Immigration and Refugee Protection Act, to aspects of the Public Safety Act related to the exchange of airline passenger information, to components of the Smart Border Agreement that deal with the creation of databases.
Protection of personal information remains a key concern of Canadian Muslims and Arabs who, in addition to regularly undergoing the ignominies of being treated like second-class criminals when they travel to and through the U.S., fear that "dirty information" on them could have dire consequences when they travel — especially to countries that violate human rights with impunity.
The well-publicized torture cases of Canadians Arar, Abdalla alMalki, Ahmed Abou Elmati, Muayyid Nureddine and Arwad alBouchi give pause to those who wish to travel.
There are outstanding allegations in almost all of the cases about the complicity of both CSIS and the RCMP in passing information abroad, to, in effect, outsource interrogations that are illegal under Canadian law.
Domestic casualties of the war against terror have also been numerous: Liban Hussein, Ahmed Shehab, Mohammed Attiah, and the 19 Pakistanis caught in Operation Thread, to name a few.
In almost all cases, the mere unsubstantiated stigma of being a terrorist has destroyed lives irreparably. The recently released Garvie report on the RCMP noted that the agency did not have the capacity or ability to conduct security investigations post-9/11.
Much of this inability proceeds from the lack of real communication channels between security forces and the Canadian Muslim and Arab community; and much of it remains the fact that Muslims and Arabs are still a misunderstood mystery.
The mythologies of Muslims and Arabs as violent, fifth columns and unpatriotic are common and continue to be peddled, with relentless zeal, by a number of writers and commentators.
Ironically, the history of Muslims and Arabs in Canada, reaching back to the mid-19th century, has been one of almost seamless integration — by no account a clash of civilizations.
There is no red alert to signal human rights lost. And hindsight, painfully, is 20/20.
The fear that ought to confront us in any retrospective is that, given the current trend, the rule of law might be irrevocably erased and impossible to reassert.
No doubt, that with a transnational security threat, the aim of collective safety has become a public good and a policy priority. But true security is the preservation, not merely of life, but of a dignified life, a life worth living.
And the erosion of the rule of law is not merely the erosion of some antiquated legal fixture but the beginning of the end of true democracy.
It has never been so important for all citizens of conscience to insist that there is no dichotomy between security and human rights.
We can, and must, have both.
Riad Saloojee is executive director of the Canadian Council on American-Islamic Relations.