Security forces in Canada arrested two people on Monday afternoon and announced a terrorist plot backed by al Qaeda had been disrupted. The Federal Bureau Investigation had been working for the past year with Royal Canadian Mounted Police (RCMP), which tracked suspects who were allegedly planning to attack a passenger train headed from the United States to Toronto.
In the wake of the arrests, it was reported by Embassy in Canada that Canadian and US police agencies were “locked in private talks over how to effectively launch pilot projects that would allow American agents from organizations like the FBI and the US Drug Enforcement Administration to be accredited as police officers in Canada, with the power to arrest individuals on the street like any Canadian cop.”
Prime Minister Stephen Harper and conservatives also used the shock of the moment to pass restore authoritarian counterterrorism powers that had been part of anti-terrorism legislation, which had passed after the September 11th attacks. Yet, there has been essentially no coverage of these developments in US media. (In fact, because the men were tracked for a year, it was suspected the arrests may have been made on Monday to increase support for the bill.)
State Department spokeswoman Victoria Nuland was asked during a press brief about Canada working with the US to thwart a terror plot on April 23. She would not answer the question. “Sorry to disappoint, but I really refer you to the Department of Justice and the FBI in terms of law enforcement cooperation.” (The FBI and Justice Department put out no press releases on the arrests by the RCMP.)
The Canadian Broadcasting Corporation put up an article that clearly outline the powers the anti-terrorism bill had restored:
1. Investigative hearings are reinstated
An individual can be forced to appear at a secret hearing without any charges being laid if authorities believe he or she has knowledge of a terrorist activity. The individual must appear and answer questions or risk being jailed for up to 12 months.
2. Preventive detentions are reinstated
An individual can be held for up to three days on suspicion of being involved with terrorism. Upon release, he or she can be ordered to uphold probation-like conditions, such as not contacting certain people, for up to 12 months, without ever being charged with any offence.
Both measures passed with sunset provisions, as they did in 2001. That is how they went off the books in 2007; they were not renewed.
When the measures were last on the books, according to The Globe and Mail, neither of these measures were used. There was an investigation into the bombing of an Air India plane. A court order had granted authorization for an investigative hearing. The order was challenged. The Supreme Court ruled in 2004 that investigative hearings were not unconstitutional, however, the hearing never was held.
Harper invoked the Boston bombing and the two arrests in order to justify expanding the government’s power. He also said, “This is not a time to commit sociology.”
“Global terrorist attacks, people who have agendas of violence that are deep and abiding, are a threat to all the values that our society stands for and I don’t think we want to convey any view to the Canadian public other than our utter condemnation of this kind of violence, contemplation of this violence and our utter determination through our laws and through our activities to do everything we can to prevent and counter it,” he declared.
A US State Embassy cable released by WikiLeaks and sent on June 10, 2009, when Conservatives in Canada were making their third attempt to restore the two measures, suggests the US State Department has never opposed the measures, even though they have been controversial.
Here’s how US Ambassador to Canada, David Wilkins, described the measures and made a point to emphasize “safeguards” in the provisions:
6. (U) Investigative hearings compel a person with information or materials about a past or future terrorist offense to appear before a judge and answer questions or provide material. The purpose is to gather information, not to prosecute. The hearings are limited to cases where reasonable grounds exist to believe that a terrorism offense had been or would be committed. A police officer must obtain the consent of the Attorney General to invoke the tool and apply to a provincial court or higher court judge of a superior court for an order for the hearing. The person compelled to appear has the right to counsel at any stage of the proceedings. A witness who evades the order, or is deemed by authorities about to abscond, can be arrested without warrant and detained for up to thirty days for the purpose of giving evidence at the hearing. The information gained from the person cannot be used against him or her in any criminal proceeding, except for perjury. An additional safeguard in the bill requires police to satisfy the judge that “reasonable” attempts have been made to obtain the information by other means.
7. (U) Recognizance with conditions (preventive arrest) gives the police the authority to arrest a person without a warrant to disrupt nascent terrorist activity and prevent [???]. A detained person must be brought before a judge within 24 hours of his/her arrest or “as soon as possible” up to a maximum of 72 hours of detention before a hearing. If the judge is satisfied that reasonable grounds for suspicion exist, the person could be required to enter into a recognizance of conditions or conditional commitment (such as having no contact with specified persons). The person could be imprisoned for up to 12 months if he/she refuses to enter into the recognizance.
Wilkins provided no comment at the end of the cable to indicate whether he supported the effort by conservatives. Then, again, he did not express concern over the commitment of Conservatives to ensuring these measures were re-instituted either.
In contrast, the British Columbia Civil Liberties Association (BCCLA), which opposed reinstating the anti-terror measures, wrote in a letter to leaders in Parliament:
…Individuals subject to these provisions do not necessarily have to be suspected of committing any crime. It is enough that they are alleged to have information relating to a terrorism offence, or that they are alleged to be associated with another individual suspected of committing (or about to commit) a terrorism offence, or that they are otherwise suspected of potential future involvement with a terrorism offence. Furthermore, the scope of Bill S-7 extends beyond Canada’s borders and could potentially result in reliance on foreign intelligence. Without the ability to challenge that the evidence is accurate or was not obtained from a third country or source that conducts or condones torture as a method to elicit information. [It should be noted that the Canadian government has already given the green light to law enforcement agencies to accept information that may have been derived through torture, in violation of international agreements and standards].
In all such cases, individuals may find themselves caught up in these detention and interrogation provisions without any effective legal recourse…
Additionally, it is worth noting the Conservatives chose to claim new powers. Individuals, according to CBC, “can be charged with leaving or attempting to leave the country with the intent of committing an act of terrorism. This provision could apply if someone travelled from Canada to attend a terrorist training camp overseas.” It gives Canada the authority to prosecute individuals for “hijacking an aircraft or endangering safety on a plane or at an airport in another country if that person is found in Canada.” It also grants the authority to prosecute “anyone who knowingly facilitates the communication of false information — such as by knowingly lending someone his or her cellphone, outside Canada, to make an emergency call about a false bomb threat against an aircraft.”
And, since this being written from the perspective of an American and primarily for an American audience, this Globe and Mail editorial from 2010 in defense of “preventive detention” merits attention. It suggested, “Canada’s system of preventive detention is, by the standards of the democratic world, a modest and reasonable attempt at an emergency measure when other protections fail. It should be made law once again.”
Citing a widely referenced Canadian expert, Craig Forcese, the newspaper further argued:
It is “extremely modest in its reach and impact,” he said after comparing it to systems that give Britain and Australia a much wider set of reasons for holding individuals pre-emptively, and for much longer – 28 days in the Britain and 14 days in Australia. (The latest wrinkle in the U.S. is preventive, but much stronger than detention: the government is claiming it has the right to assassinate a U.S. citizen, Anwar Al-Awlaki, a Muslim cleric born in New Mexico, believed to be in Yemen; human-rights lawyers are contesting that authority.) In Canada, the upper limit on preventive detention is three days, the situation needs to be urgent and a judge considers the matter promptly. [emphasis added]
In other words, an actual defense in Canada for granting government these authoritarian powers is at least we are not claiming the power to target and assassinate terror suspects like the US government and, therefore, in comparison, the measures are entirely reasonable. Out of countries that have terrorism policies violating human rights and civil liberties, Canada is not winning the race to the bottom nor does it have any intention to try and win.
The BCCLA stated it best when it argued to parliament that renewing the provisions “would normalize exceptional powers inconsistent with established democratic principles and threaten hard-won civil liberties.”
Even though it undermines and likely violates the Charter of Rights and Freedoms in Canada, which has in the past decade provided some constraints to the government’s ability to exercise authoritarian powers, the FBI and parts of the national security state in America may fully endorse this development. The Obama administration may trust the government has safeguards and the Justice and State Departments may believe that this is all acceptable in the effort to build greater cooperation between the intelligence apparatuses of the two countries to fight terrorism.