How To Protect Canada From Terrorism

The 1985 Air India bombings that killed 331 people, the majority of whom were Canadian citizens, were the most deadly acts of aviation terrorism until 9/11. Despite this fact, the Canadian government did not mobilize itself against terrorism until 9/11.  The Toronto terrorism prosecutions, as well as many home-grown terrorism convictions in the United States, suggest that the terrorist threat remains pertinent a decade after 9/11.

To its credit, the Harper government appointed an inquiry into the botched investigation of the Air India bombings, a long overdue act into a major Canadian tragedy. Unfortunately, however, the government has rejected two of the inquiry’s main recommendations.

The first recommendation was to give the Prime Minister’s National Security Advisor’s enhanced authority to oversee whole of government counter-terrorism activities including the troubled relationship between the Canadian Security Intelligence Service (CSIS) and the RCMP.

Although the Toronto terrorism prosecutions provide evidence that the relationship between the agencies has improved, CSIS will always have an interest in keeping intelligence – especially sources and information obtained from others – secret while the RCMP has an incentive to turn that intelligence into evidence or at least to disclose it to the accused under Canada’s broad disclosure laws. The Air India inquiry recommended that the National Security Advisor have additional control, including a new privilege to shield information from disclosure, to decide whether it was in the public interest to keep intelligence secret or risk its disclosure by giving it to the police.

The second recommendation that the government rejected was that Canada follow international best practices and allow criminal trial judges to review and decide whether secret information must be disclosed to the accused in terrorism prosecutions. Such decisions are made by specially designated Federal Court judges in Ottawa, who cannot revise their non-disclosure during a criminal trial. In 2011, the Supreme Court, in a case stemming from the Toronto terrorism prosecutions, held that Canada’s two-court system was constitutional and noted that many, including the retired Supreme Court Justice Major who authored the Air India report, believed it was inefficient.

Should Canadians care about these technical matters? Yes they should. Although Canada’s record of terrorism prosecutions has improved in recent years, it still lags well beyond the records of the United States, the United Kingdom and Australia. Canadians are obsessed with the Omar Khadr case, but they should be more concerned about his older brother Abdullah Khadr who was freed by Canadian courts in 2010 after they concluded he should not be extradited to the United States because of abuses in his capture and detention in Pakistan. The United States was prepared to prosecute Abdullah Khadr for supplying money and weapons to terrorists in Afghanistan and Pakistan; Canada apparently is not.

Where possible, criminal prosecutions are the best response to a terrorist threat. Prosecutions have a higher legitimacy than other measures including immigration security certificates, which are based on evidence disclosed to the accused and to the public. The government has thrown millions of dollars on the three remaining security certificates, but is fighting a losing battle. The ultimate remedy of such immigration proceedings (i.e, deportation) will not be available in most cases because of torture concerns.

Legitimacy is important as al-Qaida evolves from a central organization into an ideology based on the idea that Muslims throughout the world face discrimination and humiliation. Fair prosecutions are not a luxury,  but an essential way to combat the expansion of home-grown terrorism. The Obama administration’s use of military commissions and targeted killing may backfire if they become a recruiting tool for al-Qaida.

We should also not think of review of national security activities as a luxury that cannot be afforded in dangerous times. The Harper government has an atrocious record on review. It has rejected the Arar Commission’s recommendation for enhanced and integrated review of national security activities while at the same time committing itself to increased informal sharing with the United States as part of the Perimeter Security Agreement. The Arar Commission recognized that information sharing was necessary, but it stressed the need for proper review.

The government has done nothing to give Parliamentarians a role in review of national security activities and would not trust them with secret information in the Afghan detainee affair until it was vetted by retired judges. We are the only developed democracy that refuses to trust our legislators with secret information. More recently, the government has proposed to axe CSIS’s Inspector General and it has left CSIS’s other review body, the Security Intelligence Review Committee (SIRC), rudderless since the departure of doctor Arthur Porter. Review is not the enemy of security; it provides both legitimacy and lessons learned from past successes and failures.

A decade after 9/11, Canada has made some progress on protecting Canadians from terrorism, but much work remains to be done.

Photo courtesy of Reuters