May 31, 2006

Counterterror tool time

Controversial Bill C-36, lower-profile security certificates under review


He doesn't look much like a spy. Real spies never do, of course.

What Brian C. Rumig looks like more than anything, with his pale brown three-piece and briefcase, is a bureaucrat - who just happens to be the regional head of Canada's most secretive and least-understood federal agency.

"You don't hear much about our successes," said Rumig, Prairie region director-general for the Canadian Security Intelligence Service. He was speaking in front of a mostly-Muslim audience at a roundtable meeting on security law and civil rights Sunday in Edmonton.

"Much of what we've done to make this country safe can't be made public. But we have disrupted terrorist activities. We've prevented sensitive nuclear and biological material from falling into the wrong hands.

"There are more terrorist organizations represented in Canada than in any other country in the world, apart from the U.S. If there are any journalists in the room, I'd like them to take particular note of that, please."

So noted. What brought Rumig in from the cold was a Muslim community looking for assurance that the legal structures introduced after the 9-11 terror attacks aren't out to get them.

"This is a law that puts our traditional notions of civil liberties at risk," said Larry Shaben, chair of the Edmonton Council of Muslim Communities, who attended the meeting.

He was talking about C-36, the so-called "anti-terrorism" bill, up for review by House of Commons and Senate committees. The Commons review was launched in late 2005, but an election and a change of government threw a wrench in the works - the committee is set to report sometime this fall.

Oddly enough, while C-36 has gotten most of the heat in the debate over terrorism and civil liberties, the five-year-old law itself hasn't been terribly useful. C-36 has just one scalp on its belt: Canadian Mohammad Momin Khawaja is accused of taking part in a failed bombing conspiracy in Britain two years ago. His trial starts next year.

"My view is that the definition of terrorism in C-36 sets the bar pretty high for prosecutors," said Craig Forcese, a University of Ottawa law professor who studies state security law.

"It has to be an act of violent coercion motivated by politics, ideology or religion. They have to prove the act and the motivation, which makes it a lot easier for the defence."

The committee is also reviewing the use of security certificates, a blunt-force anti-terror tool which predates C-36 and which the feds have wielded far more often than the anti-terror law. Security certificates are used against non-Canadian citizens - some of whom enjoy every right of citizenship short of the right to vote - considered by the state to be threats to public safety.

Their use is controversial because, pending deportation, people held under security certificates can be held indefinitely.

Five men are being held under security certificates now, all Muslims. Some have been held in prison without criminal charges for four to six years already.

Fighting a security certificate deportation order is hard as hell, because defence counsel isn't entitled under the law to see the evidence against the accused.

That 'evidence' usually takes the form of raw intelligence which couldn't be entered in a court of law anyway.

The fact that security certificates have a much lower burden of proof probably explains why Ottawa prefers them to criminal charges under C-36. They're faster, easier, cheaper.

One unnamed lawyer who spoke at Sunday's roundtable asked Rumig the obvious question: if someone can be seized and deported from Canada without a proper trial, to third countries which aren't shy about using torture, exactly which human rights are we defending from the scourge of al Qaida?

"If we abandon the right to a fair trial, we've abandoned everything," said the lawyer.

Rumig agreed, to a point. He said the committee is looking at changing the law to allow the appointment of "special advocates," following the British legal model. Special advocates are third-party lawyers who can review the intelligence case against someone facing a security certificate deportation, and ask the hard questions the defendant's lawyer isn't allowed to ask.

"Personally speaking, I have no difficulty with that whatsoever," said Rumig. "I think we need to honour the principle of an open justice system, something Canadians hold dear. But of course, we don't frame the laws."

Forcese said the appointment of special advocates would pave over a "constitutional deficiency" in the current law. But it wouldn't solve the problem: the advocate might find gaps or flaws in the intelligence case against the accused, but he still wouldn't be able to tell anyone but the judge.

"In the U.K., a number of these advocates have resigned in protest. It's pretty hard to defend someone you're prevented by law from speaking to."