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Imagined fears : from mass terror to authoritarian legality, and the future of liberal reform Diab, Robert 2012

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IMAGINED FEARS: FROM MASS TERROR TO AUTHORITARIAN LEGALITY, AND THE FUTURE OF LIBERAL REFORM by Robert Diab LL.M., The University of British Columbia, 2007 LL.B., The University of British Columbia, 2001  A THESIS SUMBITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE STUDIES (Law)  THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) DECEMBER 2012 © Robert Diab, 2012  Abstract In the decade after 9/11, a series of extraordinary counter-terror measures have come to be entrenched in law and policy in Canada and the United States. These include indefinite detention without charge, expanded state secrecy and surveillance, and (in the US) targeted killing. This thesis examines policy debates, jurisprudence, and public opinion relating to these measures with a view to advancing three claims. First, by virtue of a common political insistence that such measures were legal, and a broad acceptance of such on the part of the judiciary and the public, the measures can be understood collectively as marking a shift in the cultural currency of liberal legality to what can be called authoritarian legality. Second, the shift was made possible in part by the prevalence of a “catastrophic imagination.” This was a belief that an attack was likely to occur in the near future involving weapons of mass destruction or casualties on the order of 9/11 or greater, and that to defend against this, states were justified in embracing a larger preemptive turn in law and security. Third, in the process of defending liberal legality, rights advocates, scholars, and jurists have tended to either defer to or ignore claims about the imminence of mass terror, when a more effective case for reform might have been made by challenging those beliefs directly. The final part of this thesis offers a model for advocating reform of extraordinary measures that is premised on showing (a) why an attack involving WMD is not in fact imminent or probable; and (b) why future attacks in North America are likely to be no more serious or frequent than previous attacks (Oklahoma, Air India), which were capable of being addressed effectively through the criminal law and liberal legal principles. The conclusion addresses potential obstacles to the use of this model as a basis for reform advocacy, including the claim that concerns other than a fear of mass terror (e.g., racism, xenophobia, broader fears of violent crime) are the true basis of public support for authoritarian measures.  ii  Table of Contents Abstract ....................................................................................................................................ii Table of Contents ....................................................................................................................iii Acknowledgements .................................................................................................................vi Dedication ............................................................................................................................viii 1  Introduction .......................................................................................................................1 1.1 An overview of relevant literature...............................................................................................9 1.2 An overview of this thesis ..........................................................................................................13  2  From Extraordinary Measures to Authoritarian Legality ..............................................30 2.1 Defining liberal legalism............................................................................................................31 2.2 Defining authoritarian legalism ................................................................................................37 2.2.1 Qualifications and antecedents..........................................................................................37 2.2.2 Catalyzing events ................................................................................................................42 2.3 Defining characteristics of authoritarian legality.....................................................................46 2.3.1 The abandonment of the concept of absolute or non-derogable rights..........................46 Indefinite detention in US law ...................................................................................47 Indefinite detention without charge in Canadian law ..............................................58 Torture or cruel and unusual treatment in the American context ...........................65 Torture or cruel and unusual treatment in the Canadian context ...........................71 Targeted killing ...........................................................................................................74 2.3.2 Legislative entrenchment of expanded secrecy and surveillance .....................................80 Expanded scope for secrecy and surveillance in US law ...........................................80 Expanded scope for state secrecy and surveillance in Canadian law........................84 2.3.3 Judicial deference to executive discretion in national security.........................................88 Judicial deference in the US context: Hamdi, Boumediene, and habeas corpus .....89 Post-Boumediene habeas challenges..........................................................................91 Executive privilege in tort actions..............................................................................93 Judicial deference in the Canadian context ...............................................................97 2.3.4 Resisting accountability or redress for human rights violations......................................99 2.4 Conclusion ...............................................................................................................................106  3  The Fear of Mass Terror as a Political Rationale for Authoritarian Legality ..............107 3.1 The catastrophic imagination in US political discourse and public opinion .......................108 3.1.1 Statements by members of the executive ........................................................................108 3.1.2 Statements by security officials........................................................................................117 3.1.3 Wider public perceptions of WMD terror and security policy ......................................121 3.2 The catastrophic imagination in Canadian political discourse and public opinion ............126 3.2.1 Statements by members of the executive ........................................................................127 3.2.2 Statements by security officials and experts....................................................................130 3.2.3 Wider public perceptions of WMD terror and security policy......................................135 3.3 Conclusion ...............................................................................................................................139  iii  4  Mass Terror in Expert Literature and the Advocacy of Extreme Measures...................140 4.1 Apocalyptic fear among experts on mass terror.....................................................................142 4.1.1 The imminent prospect of nuclear terror .......................................................................142 4.1.2 The imminence of biological terror ................................................................................151 4.2 Scholarship on the evolving nature of terrorism ...................................................................158 4.3 The catastrophic imagination in the advocacy of extreme measures....................................166 4.3.1 Richard Posner and the poetics of catastrophe...............................................................168 4.3.2 Alan Dershowitz and the preemptive turn .....................................................................179 4.3.3 John Yoo and the exigencies of war .................................................................................188 4.4 Conclusion ...............................................................................................................................195  5  The Lack of Threat Skepticism in Rights Advocacy and Liberal Law Scholarship .......196 5.1 Common arguments in defence of liberal legality .................................................................198 5.2 Approaches to reform that ignore or play down the question of mass terror ......................199 5.2.1 Examples from juridical advocacy ...................................................................................199 The 2009 ICJ Report .................................................................................................200 The ‘Ottawa Principles’ .............................................................................................206 5.2.2 Examples from reform-oriented law scholarship............................................................209 Jeremey Waldron .......................................................................................................209 Kent Roach ................................................................................................................212 5.2.3 Examples from journalism or mainstream non-fiction .................................................216 Cole and Lobel...........................................................................................................216 Mark Danner .............................................................................................................222 5.3 Liberal deference to claims about mass terror ........................................................................225 5.3.1 Dworkin’s defence of liberal legality ................................................................................225 5.3.2 Authors in defence of liberal legality involving certain ‘lesser evils’ ..............................228 Michael Ignatieff .......................................................................................................228 Bruce Ackerman ........................................................................................................230 5.4 Conclusion................................................................................................................................232  6  An Alternative Model for Reform Advocacy .................................................................234 6.1 Challenging assumptions about the imminence of WMD terror ........................................237 6.1.1 Why nuclear terror is much less likely than many suggest .............................................237 6.1.2 Why the supply of fissile material poses less of a risk than alleged...............................240 6.1.3 Why building a nuclear bomb is much harder that it seems..........................................245 6.1.4 On recent terrorist efforts to obtain a nuclear weapon ..................................................258 6.1.5 Why terrorism involving a biological weapon is harder than it seems..........................260 6.1.6 Skeptical perspectives on radiological and chemical terror ...........................................271 6.1.7 Conclusion to first half of chapter...................................................................................277 6.2 Why current threats do not warrant a “preemptive turn” .....................................................278 6.2.1 Strong and weak forms of the argument for a preemptive turn ....................................278 6.2.2 Evidence about current and future threats......................................................................284 6.2.3 Security without the fear of imminent mass terror........................................................290 6.3 Conclusion ...............................................................................................................................293  7  Conclusion .....................................................................................................................295 7.1 Issues and concerns..................................................................................................................296 7.1.1 Can mass terror not be caused by simple methods?.......................................................296 7.1.2 Other causes for the embrace of authoritarian legality ..................................................304  iv Racism, xenophobia, or fear of a foreign other?......................................................305 Counter-terror law as part of an older “culture of control” ...................................307 7.1.4 Two responses ...................................................................................................................310 First Response: conceding obstacles.........................................................................310 Second Response: official reasons matter ...............................................................311 7.2 Recommendations that flow from this research.....................................................................312 7.2.1 Reform of counter-terror measures.................................................................................312 Reinstating absolute or non-derogable human rights ............................................312 Raising threshold for granting privilege and for lawful surveillance. ....................315 Codifying rules for compensation ...........................................................................316 7.2.2 Which measures should be kept?.....................................................................................318 7.3 How this research might be applied by lawmakers, jurists, and rights advocates.................319 7.3.1 Intervening at the legislative and policy-making stages .................................................319 7.3.2 Interventions in constitutional litigation ........................................................................322 7.3.3 Rights advocacy among NGOs, scholars, and activists...................................................326 7.4 Conclusion ...............................................................................................................................327  Bibliography.........................................................................................................................328  v  Acknowledgements I chose to pursue a doctoral degree in law very much as a result of the encouragement and support of Dr. W. Wesley Pue, for which I am profoundly indebted. Wes has been an exceptional mentor, an exceedingly insightful reader of my work, and a continual source of good humour, energy, and inspiration. I am extremely fortunate to have worked with him. I was also privileged to have on my committee two outstanding scholars, Dr. Ben Goold and Dr. Michael Burgess, who were each unfailingly generous with their time and enormously supportive. In addition to his perspicuity as a reader, I am indebted to Ben for helping me avoid many pitfalls in drawing the boundaries of my inquiry. He also expanded my horizons in crucial ways by pointing out many new ideas and perspectives I needed to grapple with. Michael’s approach as an outsider brought a level of clarity and rigour that I could only begin to strive toward in this thesis. Our conversations were among the most exciting and rewarding moments of the doctoral program. My research was generously funded by the Vanier Canada Graduate Scholarship, for which I am deeply grateful. A critical portion of my research was conducted as a visiting scholar at the Yale Law School (Winter term 2011). I would like to express a debt of gratitude to Professor Paul Kahn who was an exceptionally warm host and a brilliant interlocutor. I am also indebted to Jonathan Schell whose discussions with me about the literature on nuclear terror set me on the path that led to a larger body of skeptical literature on weapons of mass destruction that would form the centre-piece of my inquiry. I would also like to thank Dr. Gordon Christie for leading the graduate seminar that helped me prepare for my research, and for the generosity of his time and the rigour and engagement with which he approached my comprehensive exams and doctoral defence. Dr. Brian Jobs and Dr. Jonathan Simon kindly served on my doctoral examination  vi  committee. Their questions and insights are invaluable to me as I venture future iterations of this project. I would especially like to thank Joanne Chung for her constant support and guidance throughout my experience as a graduate student at UBC. She has been an extremely encouraging and comforting presence to me and to so many of my fellow graduate students. We have been very lucky to work with you! And finally, I would not have enjoyed the freedom to study or the time to write without my wife Ciara’s patience, love, and support. A PhD is, if nothing else, a collaborative work, entailing sacrifice and commitment from those around you. I worked hard on this, but she worked harder. I am forever indebted.  vii  Dedication To Ciara, Rosemary, and Sean.  viii  Chapter 1  1  Introduction  Ten years after 9/11, US and Canadian law have been transformed in ways unimaginable in August of 2001. The nature of the change is best understood not in terms of what captures public attention or provokes debate, but in terms of what – for the majority – now goes virtually unnoticed. After a decade in which two presidents have claimed the authority to detain indefinitely and without charge both foreigners and citizens, the power has now been entrenched in law.1 Many of those detained after 9/11 are still being held without charge. Many have been tortured, or subject to cruel and inhumane treatment.2 Others have been kidnapped, held for years in secret prisons, and tortured – all as a result of mistaken identity, reliance on faulty information, or some other error. Yet no form of redress or accountability has followed. With no oversight, President Obama has ordered hundreds of drone strikes against persons in Asia and Africa he deems to be terror suspects, killing hundreds more innocent civilians in the process. He has also openly targeted and ordered the killing of an American citizen not charged with an offence or substantially tied to a specific crime. Two other US citizens, including a minor, were killed in similar strikes.3 For these and other measures, the administration has relied in large part upon a congressional “Authorization to Use Military Force” (‘AUMF’) issued in September of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1  See section 1021 of the National Defense Authorization Act for Fiscal Year 2012, H.R. 1540, 112th Cong. (2011). The section was successfully challenged as unconstitutional in Hedges v. Obama, 12 Civ. 331 (May 16, 2012), a decision of the US District Court for the Southern District of New York. It is, however, unclear whether the decision enjoins (or strikes down) all of section 1021, or only portions of it. An appeal to the US Court of Appeals, Second Circuit, is pending. The NDAA is discussed in more detail in Chapter 2. 2  Evidence for this is explored in Chapter 2.  3  Sources and details about the killing of all three Americans – Anwar Awlaki, Samir Khan, and Awlaki’s 16year-old son, Abdulrahman – are provided in Chapter 2.  !  1  Chapter 1 2001.4 This ‘joint resolution’ of congress allows for the use of force against members of al Qaeda, or related groups or individuals, on the basis that they pose “an unusual and extraordinary threat” to the United States. Yet often the connection between targeted suspects and al Qaeda has been tenuous, and evidence for the claim that the group or individual involved poses an extraordinary or imminent threat has been unclear. Despite this, the administration insists that the power to detain suspects or carry out killings should be subject to either limited or no judicial oversight. A majority of the public approves. A Washington Post-ABC poll of February 2012 found that “by a margin of more than 2 to 1, Americans say the president’s handling of terrorism is a major reason to support rather than oppose his bid for reelection.”5 Seventy percent of respondents approve of the president’s decision to keep the prison at Guantanamo Bay open.6 Eighty-three percent of those polled approve of his drone policy, including 77 percent of Democrats.7 The proportion in favour of such strikes drops “only somewhat when respondents are asked specifically about targeting American citizens”.8 Thus, among the most striking changes in US legal and political culture is not only the fact that both foreigners and citizens are now being detained indefinitely or assassinated solely at the discretion of the president, on criteria not known to the public. What is also striking is the government’s insistence on, and the public’s broad acceptance of, its legality.  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 4  The “Authorization to Use Military Force” Public Law 107-40 [S. J. RES. 23].  5  Scott Wilson and Jon Cohen, “Poll Finds Broad Support for Obama’s Counterterrorism Policies” (7 February 2012) Washington Post. 6  Ibid.  7  Ibid.  8  Ibid.  !  2  Chapter 1 Extraordinary measures have come to be entrenched in US law in a host of other ways. In military tribunal cases currently underway at Guantanamo, the US seeks the death penalty against a group of detainees whose trials will allow for the use of secret hearsay evidence, and possibly also information obtained through torture.9 This, in turn, points to the broader issue of US involvement in torture over the course of the decade at Guantanamo and various “black sites” around the world. The Red Cross and Amnesty International, among other groups, have provided ample evidence of US complicity in torture,10 and called repeatedly for investigations or prosecutions. Yet the Bush and Obama administrations have consistently resisted – invoking, among other law, an expansive interpretation of the state privilege doctrine, and courts have consistently deferred. Meanwhile, the US continues to hold some 170 detainees at Guantanamo without charge, and has made clear its intention to hold roughly a third of them indefinitely.11 In carrying out these measures, both administrations have relied upon a range of authority including the AUMF, the USA PATRIOT Act,12 and more recent law allowing for greater state secrecy and surveillance. For President Obama, however, the AUMF has come to play a more central role, purportedly serving as sufficient authority for some of the more serious measures, such as targeted killing and extended detention without !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 9  The first case involved Saudi national Abd al-Rahim al-Nashiri for his alleged involved in the bombing of the USS Cole in 2000; Charlie Savage, “Accused al-Qaeda Leader is Arraigned in U.S.S. Cole Bombing” (9 November 2011) New York Times. This is being followed by the trial of 9/11 plotter and “mastermind” Khalid Sheikh Mohommed, along with four others; John Cushman, “Sept. 11 Suspects to Be Tried by Military” (4 April 2012) The New York Times. Rules governing military tribunal hearings at Guantanamo are discussed in Chapter 2. 10  See, e.g., International Committee of the Red Cross, “ICRC Report on the Treatment of Fourteen ‘High Value Detainees’ in CIA Custody” (February 2007), online: <http://www.nybooks.com/media/doc/2010/04/22/icrc-report.pdf> 11  “Text: Obama’s Speech on National Security” (21 May 2009) The New York Times, online: <http://www.nytimes.com/2009/05/21/us/politics/21obama.text.html>. 12  !  P.L. 107-56, 115 Stat. 272 (2001).  3  Chapter 1 charge. Although many have questioned this reliance, one objection to it had begun to raise serious concerns for the administration. The AUMF contains no time limit. But at some point in the near future, it was argued, the Authorization would lapse due to the passage of an implied time limit. Partly in response to this, in December of 2011, congress passed a bill, signed by the president – with relatively little public notice or concern – which effectively renews the AUMF, lending it several more years of unquestionable currency.13 The same bill further entrenches legal powers that support indefinite detention, targeted killing, and limited judicial review. Over the course the past decade, a similar expansion of executive power has taken place in Canada. One important example involves an immigration law allowing for detention pending deportation.14 The statute, which pre-dates 9/11, authorizes officials to issue a certificate to arrest and detain anyone deemed “inadmissible” to Canada. Grounds for inadmissibility include “serious criminality” or, more broadly and vaguely, “being a danger to the security of Canada.”15 On review of the certificate, the court can hear evidence in the case in private, without the detainee or their counsel present. It can also deny disclosure of evidence to the detainee, and limit their knowledge of the case against them to a brief and general summary. Thus, the process falls far short of the protections found in criminal proceedings, but detentions were meant to be brief, with deportations usually carried out in short order. In the wake of 9/11, however, Canada would come to use these powers in a different context. It would detain 5 men, suspected of ties to al Qaeda, for between 2 and 10 years – by any measure, an extraordinary period of time to  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 13  See the discussion in Chapter 2 of the National Defence Authorization Act of 2012, supra, note 1.  14  Immigration and Refugee Protection Act, S.C. 2001, c. 27.  15  Ibid, section 34.  !  4  Chapter 1 be detained without charge, on secret evidence.16 Although all have now been released, three continue to be subject to some of the most restrictive conditions ever imposed in Canadian law.17 None has yet been deported. Canada has also been found to be complicit in the torture and unlawful detention of its own citizens traveling abroad in a number of cases.18 Aside from a settlement reached with Maher Arar, the federal government has resisted accountability, transparency, or redress in each case. In public inquiries and lawsuits against it, the government has sought to cloak much of the evidence in secrecy by invoking broad claims of privilege. More broadly, in parliamentary reviews of counter-terror law, and in new legislation, Canada has sought to bolster a host of powers, ranging from pre-charge detention and investigation to state secrecy and surveillance.19 As in the United States, the general acceptance of these measures in Canadian law and society reflects the embrace of a new set of legal norms. Thus, a series of extraordinary measures brought about in response to 9/11 have come to be entrenched in US and Canadian law. But rather than being understood as temporary, exceptional departures from the rule of law, they have gained a large measure of acceptance as legally valid or constitutional, and remain current. This thesis explores !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 16  For details of the cases of Mohammad Mahjoub, Mahmoud Jaballah, Mohamed Harkat, Adil Charkaoui, and Hassan Almrei, see Robert Diab, Guantanamo North: Terrorism and the Administration of Justice in Canada (Fernwood Publishing, 2008). 17  Currently, Mahjoub, Jaballah, and Harkat remain subject to release conditions as part of the “security certificate” regime discussed in Chapter 2. 18  These include the cases of Maher Arar, Abdullah Almalki, Ahmad Abou-Elmaati, Muayyed Nureddin, and Abufsian Abdelrazik. For findings of Canada’s complicity, see the “Report of the Events Relating to Maher Arar: Analysis and Recommendations” (Ottawa, 2006). The Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. See also the “Final Report of the Iacobucci Inquiry”, Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad AbouElmaati and Muayyed Nureddin; online: < http://epe.lac-bac.gc.ca/100/206/301/pcobcp/commissions/internal_inquiry/2010-03-09/www.iacobucciinquiry.ca/en/documents/final-report.htm>. See also Abdelrazik v. Canada, 2009 FC 580. 19  !  These developments are explored in Chapter 2.  5  Chapter 1 two questions in response to these developments: what made them possible and why were efforts to prevent or reform them not more effective? More specifically, what were some of the key assumptions and beliefs about terror and security among government, security experts, and the public that made it possible for extraordinary measures to arise and become entrenched? And by contrast to this, given the fact that for much of the past decade many rights advocates and law scholars have agreed on the need for reform, and a great deal has been done to advance the cause of reform, why has relatively little reform been accomplished? The possible reasons are of course numerous and complex. The first part of this thesis examines one facet of the problem by focusing on a common rationale for extraordinary measures in political discourse and public opinion, and a common response to this reasoning among reform advocates. A survey of a range of discourses – political, scholarly, and juridical – along with public opinion in both nations, suggests that a central facet of a wider acceptance of extraordinary measures was the prevalence of a belief that another large-scale attack on a North American city would occur at some point in the near future. More specifically, this was a belief that al Qaeda, or an affiliated or analogous group, would soon make use of a weapon of mass destruction (WMD), with cataclysmic or possibly “existential” consequences for the state – or that terrorists without WMD might soon carry out another attack on the scale of 9/11 or greater. Either might entail thousands or more casualties rather than tens or hundreds, as in earlier events, such as the Air India or Oklahoma City bombings. Put otherwise, 9/11 was seen by many as a harbinger of a new order of terror rather than a profoundly anomalous event. This belief often served in turn to support a larger claim, made in a number of contexts, that given the catastrophic nature of the outstanding threat, more invasive measures had become necessary. !  6  Chapter 1 Even after bin Laden’s death in May 2011, and the targeted killing or capture of several ‘high-level’ al Qaeda operatives, polls suggest that concerns about large-scale terror remain current among both the US and Canadian public. And although governments of both countries have shifted the tenor of their rhetoric on outstanding threats in the post-bin Laden period – no longer insisting as they often did, for example, that terror involving WMD is an imminent possibility – both maintain that terrorists continue to pose a “direct and significant threat,” a “substantial threat,” or an “urgent and undeniable” danger.20 In short, neither the public nor the government of either country has abandoned the harbinger theory. Both states continue to justify extraordinary measures in light of it. Yet, in contrast to the public and political embrace of illiberal measures, a strong consensus has held throughout the post-9/11 period among a broad range of scholars, rights advocates, and NGOs that many of the measures brought about after 9/11 were excessive, unnecessary, contrary to the rule of law, and in need of reform. This was expressed in part through an enormous body of scholarship on counter-terror policy, in fields ranging from law and criminology to psychology, political science, literary studies, and history.21 It was also conveyed to a broader public by civil liberties and human rights groups, and other NGOs, through numerous public awareness campaigns, copious reports and declarations, and several high-profile court challenges to oppose the measures. Many have therefore resisted the embrace of extraordinary measures, and their efforts to advance the cause of reform have been diverse and extensive.  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 20  The context and sources for these statements are explored in Chapter 3.  21  A portion of this literature is canvased below.  !  7  Chapter 1 Since 2001, a divide has thus persisted between, on the one hand, a large portion of the public and those in government who harbor fears of large-scale terror and embrace extraordinary measures, and on the other, a wide assortment of liberal scholars, jurists, and rights advocates who agree on the need for reform. And as the events of 9/11 recede further into the distance, the divide appears to persist. In the second part of this thesis, I argue that reform advocates might have been more effective in bridging this divide if they had placed a greater emphasis on challenging some of the common beliefs and assumptions about the nature of outstanding threats that are said to justify extraordinary measures. For much of the period at issue, rather than seeking to challenge the harbinger theory, or the claim that terror had come to pose a much greater and imminent threat to national security, many if not most law scholars and rights advocates have been concerned primarily with questions of law and principle. In ways to be explored below, the prevailing approach to reform was not to question common claims and assumptions about outstanding threats, but to show instead how new laws and policies were unconstitutional or in violation of core human rights. Liberal advocates have often, therefore, been silent, ambivalent, or deferential to claims about the nature of the threats that are said to justify more elaborate measures. In response to this finding, I suggest that by focusing predominantly on questions of law and principle in the period after 9/11, rights advocates missed an opportunity to make a potentially more effective case for reform by marshaling a large body of evidence and opinion in support of the view that the threat of terrorism at the hands of al Qaeda, its offshoots, and homegrown extremists, has been largely overstated. Those seeking reform might instead have challenged – more often and more directly – assumptions about the need to resort to extraordinary measures by citing evidence as to why the  !  8  Chapter 1 likelihood of a large-scale attack involving WMD at the hands of a non-state actor is, as one commentator has suggested, “vanishingly small,”22 and why the threat posed more recently by offshoots of al Qaeda or by “lone wolf” terrorists employing conventional methods does not amount to a “significant threat” to Canadian or American national security as is often alleged. On the contrary, ample evidence supports the view that future attacks in North America are likely to be no more serious or frequent than previous attacks (Oklahoma, Air India), which were effectively addressed through the criminal law and liberal legal principles. At the least, by drawing more frequently on skeptical evidence, reform advocates might have addressed – and might still – a significant gap that continues to exist in critical responses to state claims about the nature of outstanding threats in political and public discourse. To advance this argument, this thesis draws on a range of literature. In addition to legal scholarship, it explores work in the fields of security studies, political science and journalism, the history of terrorism, expert opinion on technologies and probabilities of terror, and the psychology of threat perception. In what follows, I briefly attempt to situate the inquiry within these bodies of literature, and articulate the scholarly contribution this thesis attempts to make. I then provide an overview of each chapter.  1.1 An overview of relevant literature US and Canadian scholarship on counter-terror law is extensive. Much of it, however, is focused on the constitutional merits of recent measures, or their consistency with other liberal legal principles (the rule of law, human rights, and democracy).23 Much !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 22  John Mueller, “The Atomic Terrorist: Assessing the Likelihood” (International Commission on Nuclear Non-Proliferation and Disarmament, 2009), 13. 23  See, e.g., Ronald Dworkin, “The Threat to Patriotism” 2002 New York Review of Books 49, 3 (February); Kent Roach, September 11: Consequences for Canada (Montreal: McGill-Queens UP, 2003); and Jeremy Waldron, “Torture and Positive Law: Jurisprudence for the White House” (2005) 105 Colum. L. Rev. 1681.  !  9  Chapter 1 of it also neglects to explore deeper assumptions and beliefs about the nature of current threats, or their role as a primary rationale for the use of extreme measures. In distinction to this larger body of law scholarship, a smaller but still significant group of law scholars advances a more supportive view of extreme measures.24 Authors in this group commonly ground their support of such measures on the greater threat posed by terrorism after 9/11. To substantiate this case, some draw upon work in secondary fields such as terrorism and security studies, or expert opinion on weapons of mass destruction.25 Within this secondary literature, a further divide can be traced. For many, the threat of terror – particularly, terror involving WMD – has become more likely after 9/11, while others remain skeptical. The first category includes prominent scholars in the field of terrorism studies, including Walter Lacquer and Philip Bobbitt. They in turn draw on and contribute to a literature among security experts, such as Graham Allison and Matthew Bunn, who explore the nature and likelihood of terror involving WMD.26 Soon after 9/11, a strong consensus emerged among both groups to the effect that terrorism had become more complex, ambitious, and menacing. And for many scholars, this meant  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 24  See, e.g., Alan Dershowitz, Preemption: a Knife that Cuts Both Ways (New York: Norton, 2006); Richard Posner, Not a Suicide Pact: the Constitution in a Time of National Emergency (Oxford: Oxford University Press, 2006); and John Yoo, War By Other Means: An Insiders Account of the War on Terror (New York: Atlantic Monthly Press, 2006). 25  Chapter 4 explores this tendency in the work of Posner and Dershowitz.  26  Walter Lacquer, The New Terrorism: Fanaticism and the Arms of Mass Destruction (Oxford: Oxford University Press, 1998); No End to War: Terrorism in the Twenty-first Century (New York: Continuum, 2004); Philip Bobbitt, Terror and Consent: The Wars for the Twenty First-Century (New York: Knopf, 2008). On nuclear terror, see Graham Allison, Nuclear Terror: the Ultimate Preventable Catastrophe (New York, Henry Holt: 2005), Charles D. Ferguson and William C. Potter, The Four Faces of Nuclear Terrorism (London, Routledge: 2005), Mathew Bunn, Securing the Bomb 2010: Securing All Nuclear Materials in Four Years. Cambridge, Mass. And Washington, D.C.: Project on Managing the Atom, Belfer Center for Science and International Affairs, Harvard Kennedy School and Nuclear Threat Initiative, April 2010; online: <www.nti.org/e_research/Securing_The_Bomb_2010.pdf>. On biological terror, see Barry Kellman, Bioviolence: Preventing Biological Terror and Crime (Cambridge UP, 2007); Jim A. Davis, “A Biological Warfare Wake-Up Call: Prevalent Myths and Likely Scenarios”, in Jim A. Davis and Barry R. Schneider, eds., The Gathering Biological Warfare Storm (Praeger: Westport, Connecticut, 2004), and Frank Barnaby, How to Build a Nuclear Bomb and other Weapons of Mass Destruction (London: Granta Books, 2004.  !  10  Chapter 1 that terror involving WMD, or another attack on the order of 9/11 or greater, had become both likely and imminent. By contrast, a more critical approach to the question of current threats could be found elsewhere in the expert literature on WMD, and in work by more skeptical political scientists, historians of terror, and security theorists. Notable figures include John Mueller, Michael Levi, and William Clark.27 For this group, mass terror involving WMD is highly improbable due to the complexity, expense, and variety of barriers and potential pitfalls involved in acquiring, building, or deploying such weapons. The prospect of a more serious attack also runs contrary to evidence about the capability of al Qaeda and other groups, and of past practices and events involving non-state actors. Between these two bodies of secondary literature, however, there has been relatively little intersection or debate. Many scholars and experts taking an alarmist view of outstanding threats have also enjoyed a greater prominence or public profile. Perhaps in part as a consequence of this, the imminent prospect of mass terror has often been presented as self-evident or beyond serious dispute. In any case, as either a reflection or consequence of the prevalence of this view, liberal law scholars have made relatively little use of skeptical opinion on pending threats in their critique of counter-terror measures. For various reasons, then, in much of the legal scholarship on counter-terrorism in the past decade, authors have either been reluctant to examine controversial measures in light of beliefs about pending threats, or – if they do acknowledge them – they tend to  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 27  John Mueller, Atomic Obsession: Nuclear Alarmism from Hiroshima to Al Qaeda (Oxford: Oxford University Press, 2010); Michael Levi, On Nuclear Terrorism (Cambridge: Harvard University Press, 2007); and William Clark, Bracing for Armageddon: the Science and Politics of Bioterrorism in America (Oxford: Oxford UP, 2008).  !  11  Chapter 1 assume that some form of catastrophic terror may be imminent. The tendency is visible on both sides of the spectrum – those in favour of illiberal measures and those opposed. Put otherwise, few liberal law scholars have undertaken a critical exploration of assumptions and claims about the nature of current threats. And the few who have done so have relied primarily on arguments rooted in psychology. For example, co-authors David Cole and Jules Lobel, along with Cass Sunstein and others, have offered a critical view of the more dire threat assessments commonly invoked by advocates of extreme measures.28 Their common approach, however, is to address assumptions about growing threats not by directly challenging them in a technical or scientific sense, but by characterizing them as effects of psychologically based misperceptions.29 In short, liberal law scholars arguing against extreme measures have tended not to draw on a skeptical body of opinion on the technical or practical plausibility of pending “catastrophic” threats. This study seeks to make a contribution to the debate about counter-terror law in three ways. One is to suggest that the measures at issue in law and policy after 9/11 can be characterized not only in terms of a departure from liberal constitutionalism, as many have argued, but also as an epochal shift in conceptions of legality itself. I suggest that the entrenchment of these measures marks a broad shift from the cultural currency of liberal legality to what might be called authoritarian legality.30 Second, in distinction to the predominantly doctrinal focus of much of the scholarship on counter-terror law, I demonstrate how extraordinary measures have been justified and embraced in large part !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 28  David Cole and Jules Lobel, Less Safe, Less Free: Why America is Losing the War on Terror (New York: the New Press, 2009); Cass Sunstein, Worst Case Scenarios (Cambridge: Harvard UP, 2009). See also Dan Gardner, Risk: the Science and Politics of Fear (Toronto: McLelland and Stewart, 2008). 29  These include what Sunstein calls “cognitive availability” (or fearing events that one can more easily imagine) and “probability neglect” (allowing strong emotions to distract from rational recognition of the low probability of an event). Ibid, at 26. 30  I am indebted to my doctoral supervisor, Professor W. Wesley Pue, for suggesting this formulation, in favour of my earlier phrase: “post-liberal legality.”  !  12  Chapter 1 due to the prevalence of a specific set of assumptions about the greater threat that terror had come to pose after 9/11. Third, I suggest that in contrast to earlier approaches to reform, a potentially more effective defence of liberal legality lies in being more critical of prevailing threat assessments, and I set out to model the kind of argument and evidence that might be used for this purpose.  1.2  An overview of this thesis  The inquiry begins with a chapter that surveys extraordinary measures in US and Canadian counter-terror law after 9/11. The survey is meant to support a larger argument about changing conceptions of legality. Together, I suggest, the measures can be seen as part of a deeper normative shift from a liberal to an authoritarian form of legality – in the area of national security. I begin by briefly defining liberal legality and exploring how liberal values can be distinguished from legality as such. I draw here upon the work of Joseph Raz, Lon Fuller, and Ronald Dworkin. I then define authoritarian legality in terms of its basic features. These include the repudiation of absolute or “non-derogable” human rights in practices such as torture, rendition, targeted killing, and indefinite detention without charge. It also entails the expansion and increased use of state secrecy and surveillance; judicial deference to executive discretion; and a reluctance to remedy serious rights violations, or to be held accountable for them. The remainder of the chapter provides examples of these elements in both US and Canadian law. I offer two reasons at the outset for invoking the concept of authoritarian legality. One is to highlight the significance of the claim – on the part of governments and the courts – that the measures are legal and intended to be valid indefinitely. A theory of authoritarian legality is thus meant to draw attention — in a way that scholars have not done before — to the possibility that entrenching such measures in law and jurisprudence  !  13  Chapter 1 has transformed cultural conceptions of legality itself. The second reason for introducing the concept is that it invites the reader to see the measures as part of a cohesive whole, or a closely interrelated set of developments. This second purpose is more critical to the broader argument of my thesis than the first. The third and fourth chapters explore beliefs and assumptions about the threat of terror that made it possible to defend or entrench extreme measures in law and policy. I argue in both chapters that, after 9/11, a form of belief that I term the “catastrophic imagination” became prevalent in a series of discourses. It assumes a stronger and weaker form. The stronger form holds that al Qaeda or a related group may soon carry out an act of terror using a weapon of mass destruction, causing tens or hundreds of thousands of deaths, or even millions. The weaker form holds that an attack may soon occur on the scale of 9/11, not necessarily involving WMD, but still resulting in thousands of casualties rather than tens or hundreds, as in earlier attacks. In both the stronger and weaker form, therefore, a quantitative difference grounds an argument for a qualitative difference. Chapter 3 surveys the role of the catastrophic imagination in political discourse and public opinion. It shows how members of government, security officials, and other policy makers consistently invoked the prospect of mass terror in defence of extreme measures. It draws on statements by members of the executive, submissions to congressional or Parliamentary committees; as well as policy statements, such as the biannual US National Security Strategy, and Canadian equivalents. The chapter also cites public opinion surveys in both nations to highlight the link between a widespread fear of mass terror and a high degree of public support for illiberal counter-terror measures. Chapter 4 examines the role of the catastrophic imagination in three fields of scholarship: expert opinion on the prospect of nuclear, biological, and radiological terror; !  14  Chapter 1 the history of terrorism; and legal scholarship in support of extreme measures. My aim in exploring these fields in a single discussion is to show that experts on WMD and historians of terror helped to legitimize a belief in the imminent prospect of mass terror, which in turn bolstered the credibility of its use by law scholars arguing in support of extreme measures. Experts on the use of WMD and historians of terror advance a common set of arguments for the imminent prospect of nuclear, biological, or radiological terror. 31 Briefly, the case for why nuclear terror is a real possibility in the near future often begins with the collapse of the Soviet Union, and the proliferation of nuclear technology in recent decades. Both have given rise to a copious supply of poorly guarded fissile material, or fully functional bombs. At some point very soon, a terrorist group will either steal a bomb or obtain the material to build one. Since in the view of some experts the task of building a nuclear bomb is not thought to be onerous, stealing the material overcomes the greatest hurdle. The plans for building a bomb are readily available in the public domain, and constructing a crude but reliable “gun-type” nuclear weapon would not involve much technical expertise. Finally, an act of nuclear terror has seemed likely for much of the past decade given the fact that al Qaeda and other groups are known to be interested in this. A similar set of arguments is often made about bio-terror. A number of known toxins offer the most lethal potential weapons in existence. Many can be produced with limited knowledge or equipment, from natural or readily accessible sources. Samples can be easily dispersed – at least in theory – to cause mass casualties. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 31  See, e.g., Lacquer, Bobbitt, Allison, Bunn, Ferguson and Potter, Kellman, Davis, and Barnaby, supra, note 26.  !  15  Chapter 1 Analogous arguments are often made in relation to radiological terror. Building and deploying a radiological or “dirty bomb” is relatively simple. Radioactive material is available in countless commercial and industrial settings. Constructing and using a ‘dispersal device’ would not be too complicated. It would likely cause fewer deaths than a nuclear or biological attack, but could easily cause large-scale disruption – i.e., large portions of a major city becoming uninhabitable for decades. A small but prominent group of jurists has drawn on these arguments to advance a credible and compelling case for a deeper preemptive turn in the law. John Yoo, Richard Posner, and Alan Dershowitz, among others, have invoked – with some frequency – images of nuclear explosions in Manhattan or Chicago, or aerosol dispersions of anthrax or radiological particles in large airports or subway stations, causing tens or hundreds of thousands of casualties. In light of the danger, each has made the case for the necessity of measures that include torture, targeted killing, or indefinite detention without charge. And while members of this group may represent a fringe element in the North American legal academy, the public profile that each enjoys, and the arguments they have circulated, have contributed some measure of legitimacy to the case for extreme measures among a wider public. Chapter 5 returns to the field of legal scholarship and rights advocacy. It examines the role that liberal scholars and jurists have played in countering extreme or extraordinary measures. It begins by acknowledging that liberals have made a number of strong arguments in defence of rights. Key among them is the claim that there ought to be clearer proof that certain measures are necessary, proportionate, and effective – which is seldom seen, if ever. But while advancing these and other powerful arguments against extreme measures, liberals have also tended to be less inclined to challenge beliefs about  !  16  Chapter 1 the gravity of current threats, or the claim that they compel the state to adopt a more preemptive approach. To demonstrate this, I survey various forms of rights advocacy, including reports by NGOs such as the International Commission of Jurists and the International Committee of the Red Cross. I also examine work by law scholars and legal journalists, including Jeremy Waldron, Kent Roach, David Cole and Jules Lobel, Mark Danner, Ronald Dworkin, Michael Ignatieff, and Bruce Ackerman. I show that this reform-oriented literature divides into two camps. One group tends to downplay or ignore claims about the growing threat posed by terrorism, and often also the claim that it warrants the use of extraordinary measures. The other group highlights or pays deference to either or both claims. As a result, liberal law scholarship and advocacy has tended not to unsettle a deeper set of beliefs essential to authoritarian legality: namely, that current threats are catastrophic in nature, and as a result, a deeper “preemptive turn” is in order, involving more invasive or possibly extreme measures of one kind or another. The sixth chapter sets out a blueprint for an alternative approach to advocating reform. It is comprised of two parts, corresponding to the two central assumptions of authoritarian legalism noted above (a growing threat, justifying extreme measures). The first part challenges the first assumption by focusing on claims about terror involving WMD. It does not, however, seek to establish a case against the imminent likelihood of WMD terror conclusively. It seeks instead to model the form of argument that reform advocates might advance to establish this claim. The model centers on technological and scientific evidence as to why nuclear and biological terror in particular are not likely to occur soon, if at all. This part highlights a contrary body of opinion to that explored in Chapter 4.  !  17  Chapter 1 As noted earlier, the case for the imminence of nuclear terror often rests on a claim about the abundance of poorly guarded material; the simplicity of building and deploying a bomb; and al Qaeda’s ambitions in this regard. In response, a body of skeptical experts, including Michael Levi, 32 Steven Younger, 33 and co-authors Christoph Wirz and Immanuel Eggerts, 34 argue that in the various stages of acquiring or building, and then deploying a bomb, terrorists would face a host of significant challenges.35 Together, they render the prospect of a nuclear attack far more complicated and improbable than some would suggest. To begin with, both nuclear terror alarmists and skeptics agree that the production of fissile material is beyond the capacity of a non-state actor. Acquiring a fully functional nuclear bomb, by theft or other means, is unlikely because most are stored disassembled or with elaborate codes closely guarded by a small few. In the seventy-year history of the bomb, no nuclear power has ever shared the technology with another state, let alone a non-state actor. And while there may be an abundance of fissile material, very little of it has been stolen. The danger posed by the occasional report of stolen fissile material, or a black market, is implausible for a host of reasons that range from better detection of radiological materials in transit to much increased security and surveillance around existing installations, and a high rate of success in arresting or tracking down such material within short order. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 32  Michael Levi, On Nuclear Terrorism (Cambridge: Harvard UP, 2007).  33  Steven Younger, Endangered Species: How We Can Avoid Mass Destruction and Build a Lasting Peace (New York: Harper Perennial, 2008). 34  Christoph Wirz and Emmanuel Egger, “Use of Nuclear and Radiological Weapons by Terrorists?” International Review of the Red Cross 87: 859, 497 (2005). 35  Other skeptical perspectives include the first report of the US Congressional “Gilmore Commission” (Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction), “First Annual Report: Assessing the Threat,” (15 December 1999) [“Gilmore Commission Report”] www.rand.org/nsrd/terrpanel; and some of the contributions to Paul Leventhal and Yonah Alexander, eds, Preventing Nuclear Terrorism: the Report and Papers of the International Task Force on Prevention of Nuclear Terrorism (New York: Lexington Books, 1987), including J. Carson Mark, Theodore Taylor, Eugene Eyster, William Maraman, and Jacob Wechsler, “Can Terrorists Build Nuclear Weapons?”  !  18  Chapter 1 Yet, even if fissile material of a sufficient quantity could be obtained – a significant hurdle in itself – non-state actors would confront several more challenges at the bomb building stage. These include the task of shaping the material to be used in a bomb device, and crafting the weapon itself. Creating a nuclear explosion involves not just the slamming together of two pieces of highly enriched uranium, as some have suggested, but slamming together two pieces of an appropriate size and shape, at the right speed.36 The material would be highly challenging to shape or mold, requiring special expertise, equipment, and time. The tasks of crafting and transporting the bomb (and testing, if the group chose to do so) would furnish further opportunities for detection, accidents, or failure. Given all of these hurdles, concerns about the imminence of an act of nuclear terror on the part of al Qaeda, or one of its offshoots, seem largely overstated. Apart from an apparent attempt by bin Laden in 1993 to purchase what turned out to be a counterfeit sample of uranium, only a few further general expressions of interest on behalf of the group have been noted. A similar set of arguments against the likelihood of biological terror have been made by, among others, William Clark, 37 Milton Leitenberg, 38 and Andreas Wenger.39 Certain bio-toxins may be quite lethal, produced from natural materials, and widely dispersed to cause mass casualties. Yet, at each stage, the practical challenges are extensive – with no group ever succeeding in causing significant casualties, despite considerable effort in some cases, including and perhaps most notably the Japanese Aum Shinrikyo !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 36  Levi, On Nuclear Terrorism, 36-42.  37  William Clark, Bracing for Armageddon: the Science and Politics of Bioterrorism in America (Oxford: Oxford UP, 2008). 38  Milton Leitenberg, “Evolution of the Current Threat,” in Andreas Wenger and Reto Wollenmann, eds, Bioterrorism: Confronting a Complex Threat (Boulder: Lynne Rienner Publishers, 2007). 39  “Securing Society Against the Risk of Bioterrorism” in Andreas Wenger and Reto Wollenmann, ibid. See also the contributions to the same collection by Peter Lavoy and Marie Isabell Chevrier.  !  19  Chapter 1 cult in the mid 1990s. A highly dangerous bio-toxin can indeed be produced from natural sources, or illicitly obtained from an industrial lab or other source. But the problem of cultivating it into sufficiently large quantities, and then stabilizing it, has proven exceedingly challenging to experts and military personnel in nations with the largest and most advanced militaries, including Russia and the United States. If these hurdles can be surmounted, the act of dispersing the material in an effective manner presents a greater challenge still. The packaging, storage, and dissemination of a bioweapon would require considerable expertise in a range of fields, special equipment, and sufficient personnel and space in which to work. All of this would increase the prospect of detection, logistical error, or illness and death on the part of the participants. It would also entail a high likelihood of the material destabilizing or spoiling, or resulting in a much less lethal attack than planned. The Aum Shinrikyo group encountered all of these pitfalls, in ways that are instructive, including the key fact that the group did not succeed in producing a deadly strain of anthrax or any other bio-toxin. The sole example of a non-state actor’s effective use of a deadly bio-toxin in world history was the 2001 congressional incident involving anthrax in letters addressed to Senators Tom Daschle and Patrick Leahy, which caused a total of five casualties.40 An extensive FBI investigation concluded in 2010 that the likely source of the sample in this case was a senior bio-weapons researcher in the US military by the name of Bruce Edwards Ivans.41 Experts taking a critical view of radiological terror concede that it poses fewer hurdles than either nuclear or biological terror. Thus it may be more likely to happen. Yet, upon closer inspection, a wide gap exists here too between theory and practice. More !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 40  Leitenberg, ibid., at 65.  41  United States Department of Justice, “Amerithrax Investigative Summary,” (19 February 2010) http://www.justice.gov/amerithrax/docs/amx-investigative-summary.pdf.  !  20  Chapter 1 specifically, there are varying degrees of probability involved in accomplishing varying degrees of destruction. In theory, large samples of radioactive material can be easily obtained from universities, hospitals, or other industrial sites. These can be used in a bomb that might not kill many people, but could render a good portion of Manhattan or Toronto uninhabitable for decades. But significant hurdles would be faced at two stages. Building a bomb, or an effective dispersal device, would require substantial expertise, equipment, and time – along with an adequate amount of material, and material of an appropriate kind for use in the chosen device.42 Nuclear physicists Wirz and Egger contend that most of the material available in common industrial sources would be insufficient to cause extensive damage or disruption, due to the fact that they are found in metallic form and are thus not likely to be effectively dispersed by an explosive device.43 In any case, the magnitude of the damage one might cause using a bomb or other dispersal method would still depend on a range of variables. In addition to the quantity and nature of the material used, much would depend on the quality of the device itself, meteorological conditions, and the speed of the natural decay of the material once dispersed. In short, theoretically, a simple bomb could cause mass disruption. In practice, several factors make it more likely that far less damage would be caused than is often feared. The model for reform advocacy set out in the first part of Chapter 6 is thus meant to show how liberal jurists might have employed (and might still) a technologically informed skepticism about WMD to challenge claims about the imminent threat that they have often been said to pose. The model is also meant to show how a broader critical !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 42  Michael Levi and Henry Kelly, “Weapons of Mass Disruption,” Scientific American 77 (November 2002), 78; Peter Zimmerman and Cheryl Loeb, “Dirty Bombs: the Threat Revisited,” Defense Horizons 1 (January 2004), 5; and Christoph Wirz and Emmanuel Egger, “Use of Nuclear,” 505-6. 43  !  Wirz and Egger, ibid., 503.  21  Chapter 1 spirit about threat assessments might play a more important role in challenging similar law in other areas. It would be especially useful where governments seek to justify authoritarian powers on the basis of new and “unprecedented” dangers that technology is said to have brought about. The second part of Chapter 6 sketches the second part of the model. It focuses on the second key assumption in authoritarian legality: that current threats warrant the embrace of illiberal, preemptive measures. I argue that to respond to this claim more effectively, rights advocates should advance two counter-claims. First, in all likelihood, future acts of terror are going to be no more frequent or serious than acts prior to 2001. That is to say, the probability that future acts of terror will be larger in scale than the Oklahoma or Air India bombing (involving hundreds rather than thousands of deaths) is remote. Second, in the absence of a growing threat of terror – or a threat to national security of a much greater magnitude – the case for extraordinary measures becomes more difficult to sustain. In brief, a strong argument against the “growing threat” theory can be made by drawing on skeptical evidence gathered over a series of works by John Mueller and Mark Stewart about the extent of the threat posed over much of the post-9/11 period by the core al Qaeda group (in Afghanistan and Pakistan) and more recently by its offshoots and ‘lone wolf’ imitators.44 Over a decade after 9/11, the core al Qaeda group has not carried out a single attack in Canada or the US.45 No al Qaeda cell since been discovered in either  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 44  John Mueller and Mark Stewart, Terror, Security, Money: Balancing the Risks, Benefits, and Costs of Homeland Security (Oxford: Oxford UP, 2011); “Civil Liberties, Fear, and Terrorism,” Notre Dame Journal of Int’l & Comp. Law 2:2 (2012) 282; and “The Terrorism Delusion: America’s Overwrought Response to September 11,” International Security, 37:1, 81 (2012). 45  !  Ibid., “Civil Liberties, Fear, and Terrorism”, 285.  22  Chapter 1 country.46 And apart from seven Americans who were briefly persuaded to travel to a training camp in Afghanistan in the summer of 2001 (shortly after which six of them returned disillusioned), al Qaeda has failed to recruit anyone in either nation.47 The few known cases in which westerners have sought links with the group resulted in what can best be described as a limited threat. For example, US citizen Najibullah Zazi, the wouldbe New York subway bomber (2008), and London-educated Umar Abdulmutallab, the underwear bomber (2009), were both involved in foiled plots that were much smaller in scale than 9/11 and much less skillfully attempted.48 Documents obtained in 2001 from computers belonging to members of al Qaeda in Afghanistan revealed that the group’s budget for WMD research and development at the time was only two to four thousand dollars.49 Data obtained in 2011 from computers at bin Laden’s compound confirmed the group’s limited power and capacity in later years. Expecting to uncover a wealth of information about future attacks, investigators instead found that the group had been “primarily occupied in dodging drone missile attacks, complaining about lack of funds, and watching a lot of pornography.”50 Drawing on recent studies of political Islam, Mueller and Stewart also highlight a growing resistance to and unpopularity of al Qaeda and other radical groups in much of  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 46  Ibid., see also Brian Ross, “Secret FBI Report Questions Al Qaeda Capabilities,” ABC News Online (Mar. 9, 2005), http://abcnews.go.com/WNT/Investigation/story?id=566425&page=1#.TyoD366ryKw (cited in Mueller and Stewart). 47  Mueller and Stewart, “The Terrorism Delusion,” 93.  48  John Mueller, ed, “Terrorism Since 9/11: the American Cases” (Columbus: Mershon Centre, 2012), http://polisci.osu.edu/faculty/jmueller/since.html, 19. 49  Mueller and Stewart, “The Terrorism Delusion,” 98.  50  Ibid., 82.  !  23  Chapter 1 the Islamic world after 9/11.51 They note that nations such as Sudan, Syria, Libya, and Iran have made “diligent and aggressive” efforts against the group and its affiliates, given the threat posed to those regimes. This, together with increased US involvement in the region, has resulted in large numbers of suspects being arrested, detained, killed or otherwise deterred.52 More recently, much official rhetoric on terrorism has shifted to groups affiliated with al Qaeda – primarily “al Qaeda in the Arab Peninsula.” While “al Shabaab” and other affiliates have focused mainly on local matters,53 the threat that AQAP poses to North Americans is frequently substantiated with reference to the attempts to carry out bombings aboard aircraft bound for US cities – one in 2009 (the underwear bomb plot) and the other in 2010 (bombs in printer cartridges on two cargo flights from Yemen).54 These events point in turn to the continuing threat posed by a supposed “mastermind” bomb-maker in Yemen. But given the failure of each plot, some have questioned the mastery involved, or the magnitude of the threat that AQAP poses.55 Mueller and Stewart question whether the underwear bomber’s approach marked much of an advance on the approach taken in the shoe-bomb attempt of 2001. Both appear to have failed for the same reason: “the chosen explosive, PETN, is fairly stable and difficult to detonate, particularly because the most reliable detonators, like blasting caps, are metallic and !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 51  Terror, Security, Money, location 584 (Kindle edition). Mueller and Stewart draw here Fawaz Gerges, The Rise and Fall of Al-Qaeda (New York: Oxford UP, 2011) and Peter Bergen and Paul Cruickshank, “The Unraveling: The Jihadist Revolt against bin Laden,” New Republic (11 June 2008). 52  Mueller and Stewart, Terror, Security, Money, location 584 (Kindle edition).  53  James Clapper, Director of National Intelligence, “Unclassified Statement for the Record on the Worldwide Threat Assessment of the US Intelligence Community for the Senate Committee on Armed Services,” (31 January 2012), http://intelligence.senate.gov/120131/clapper.pdf. 54  See, e.g., James Clapper, ibid., and Canada, “Building Resilience”, 7.  55  Mueller and Stewart, “Terrorism and Counterterrorism Since 9/11” (Paper presented to the International Studies Association, April 2012), 7 (http://polisci.osu.edu/faculty/jmueller/ISA12ter.pdf); see also Peter Bergen, “And Now Only One Senior al Qaeda Leader Left,” CNN.com (6 June 2012) and Joshua Foust, “How Strong Is al Qaeda Today, Really?” The Atlantic (1 May 2012).  !  24  Chapter 1 cannot be used because they are likely to be picked up even by screening methods in place before 9/11.”56 And, as the authors note, a BBC investigation of the same explosive material on a decommissioned airplane similar to the one involved in the 2009 attempt suggests that the plane “would have been able to land safely even if the bomb had gone off.”57 AQAP may well be capable of more than this, and thus certainly poses a danger; but it is one that ought to be placed in perspective. This leaves the threat posed by smaller groups of “homegrown extremists” or “lone wolf” terrorists. To assess their potential impact, Mueller assembled a collection of case studies on 50 terror plots since 9/11 in which the US was a target.58 Despite rhetoric that emphasizes the competence and effectiveness of terrorists involved in some of these attempts, as Mueller notes, the authors of the case studies “with remarkably few exceptions, describe their subjects with words like incompetent, ineffective, unintelligent, idiotic, ignorant, inadequate, unorganized, misguided, muddled, amateurish, dopey, unrealistic, moronic, irrational, and foolish.”59 Some of the cases involved quite serious plots, including plans to topple the Sears Tower in Chicago, to bomb the Brooklyn Bridge, or to use radiological weapons. Yet, in each of these more serious cases, the plot proved well beyond the capacity of those involved, for a host of reasons ranging from a lack of expertise with explosives, a lack of access to material, weaponry, or funding, and poor planning.60 “In ten years,” Mueller notes, “no terrorist in the US has been able successfully to detonate even a primitive bomb. …[And] the only method by which Islamist terrorists have managed to kill anyone at all in the United States since 9/11 has been through the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 56  Mueller and Stewart, “Terrorism and Counterterrorism,” 7.  57  Ibid.  58  John Mueller, ed, “Terror Since 9/11”.  59  Mueller and Stewart, “The Terrorism Delusion,” 88.  60  Ibid.  !  25  Chapter 1 firing of guns—inflicting a total of perhaps 16 deaths over the decade.”61 Homegrown terrorists are, of course, capable of setting off bombs and do pose a threat – but not a “cataclysmic” or “existential” threat to national security. To summarize, ample evidence supports the view that terror involving WMD is highly unlikely, and that future acts are very likely to be no more grave or frequent than earlier acts. If so, the argument about current threats warranting new measures becomes much more difficult to sustain. Air India and other large attacks before 9/11 were properly understood, as Kent Roach has put it, not as failures of the criminal law, but of law enforcement.62 Those attacks have come to be seen, in hindsight, as anomalous, exceptional, and rare. They were not significant threats to national security, and were dealt with appropriately by both the criminal law and by incremental improvements to security practices. A more persuasive case might therefore have been made – and might still be made – for the reform of counter-terror law by undertaking a more direct challenge to common claims and assumptions about current threats. Rights advocates have focused mainly on the excessive, illiberal, or unconstitutional nature of controversial measures. Much of the argument for reform has rested on the call for clearer proof of their necessity and proportionality. But a stronger case might be made by going further and demonstrating the lack of necessity. In the Conclusion to this thesis, I attempt to address three potential counterarguments. One is that a mass terror attack may still be imminent, because it can be easily done through simple technological methods (Molotov cocktails in the crowded subway, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 61  Mueller and Stewart, “Terrorism and Counterterrorism,” 5. Twelve of these deaths occurred in the 2009 shooting at the military base at Fort Hood, Texas. 62  !  Kent Roach, September 11, supra, note 23.  26  Chapter 1 suicide bombers in a large, busy urban space). Or it might be accomplished by carrying out several smaller attacks simultaneously. In response, I concede that many conventional methods of terror might be more readily employed than a weapon of mass destruction, and many are capable of inflicting large-scale harm or damage. I suggest that a technically-informed skepticism is still helpful in this context. Upon closer inspection, a host of obstacles and technical issues make it more likely that the real extent of the damage would be limited. For this reason, I argue that these and other low-tech possibilities do not alter the assessment set out, in Chapter 6, that mass terror – on the order of 9/11 or greater – is highly improbable. The conclusion also considers two important alternative accounts of the cultural conditions for post-9/11 security policy. Instead of foregrounding the fear of mass terror as key, various scholars in political theory, critical race theory, and post-colonialism, such as Sherene Razack and Judith Butler, point to larger social and historical forces.63 For example, Razack argues that extreme measures became possible due in large part to an underlying racism, xenophobia, or fear of a Muslim, Arab, or foreign other. Analogously, for contemporary criminologists, including David Garland, Lucia Zedner, and Jonathan Simon, the measures were not only a response to fears about current threats, but also part of an older shift toward a “culture of control,” a “pre-crime society,” or a pattern of “governing through crime.”64 Each of these perspectives is nuanced and distinct. Yet, together, the authors offer a perspective on recent measures as an extension of a tendency, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 63  Sherene Razack, Casting Out: The Eviction of Muslims from Western Law and Politics (Toronto: University of Toronto Press, 2008); Judith Butler, Precarious Life: Powers of Mourning and Life (Verso: London, 2004) and Frames of War: When is Life Grievable? (Verso: London, 2010). 64  David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001); Lucia Zedner, “Seeking Security by Eroding Rights: The Side-stepping of Due Process”, in Benjamin J. Goold and Liora Lazarus, eds., Security and Human Rights (Oxford: Hart Publishing, 2007); and Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (Oxford: Oxford UP, 2007).  !  27  Chapter 1 over the past three decades, for lawmakers to engage deeper fears about violence to impose greater forms of control, surveillance, and racial or class exclusion. The trend has also proven remarkably unreceptive to evidence-based reasoning, claims about equity, or appeals to liberal standards on appropriate limits on the state’s use of force. In response, I concede that these and other alternate explanations of the cultural conditions for authoritarian legality offer important insights. They also point to large obstacles for reform – not easily overcome by the model I propose in Chapter 6. It is likely true, for example, that racial, imperialist, and xenophobic attitudes render much of the North American electorate unsympathetic or indifferent to the mostly Muslim or Arab subjects of extreme measures – and thus, unlikely to mobilize in support of reform. It is also true that the thrust of criminal law reform in recent decades has clearly favoured victims’ rights over those of the accused. Restoring fairness or due process for terror suspects in the current political climate is obviously a daunting challenge. I argue in response that there is merit in distinguishing between these alternative accounts for why authoritarian measures were embraced and what can be called the official account. As I attempt to show throughout this thesis, the single recurring thread in the public and juridical defence of authoritarian measures – from the executive, to lawmakers, judges, and security officials – is that the catastrophic nature of current threats has rendered them necessary. The measures may therefore be part of a larger and older movement toward a “culture of control.” But they are not justified in this light. They may reflect racist or imperialist attitudes and beliefs. But they are not defended in this light. On the contrary, the argument to justify and defend the measures is consistent and specific. Therefore, while the argument in favour of the measures may be informed on some level by other beliefs and assumptions, the single recurring form of the official argument serves  !  28  Chapter 1 as a compelling focal point for a direct response – which has not been forthcoming. I suggest that by addressing the “grave threat” argument more explicitly and directly, liberal advocates would offer a more persuasive case in defence of rights going forward. My inquiry concludes with a sketch of recommended reforms and suggestions for how the approach to advocacy set out in this text might be applied in practical situations. I join many others in calling for a return to a more faithful adherence to absolute or nonderogable human rights – against extra-judicial killing, torture, and cruel or inhumane treatment. I also recommend reinstating a stricter threshold for granting state privilege and for lawful surveillance. Finally, I call for domestic law compensating victims of torture and other serious violations for state complicity in their injuries. As noted earlier, I propose that rights advocates would offer a stronger defence of rights by employing a technologically informed skepticism about threats, wherever these are invoked in defence of new and more invasive measures. One place to do this is in the course of submissions to parliamentary or congressional committees tasked with assessing new measures, and their necessity in relation to perceived threats. Another place is in constitutional litigation, when questions are raised about reaching a reasonable balance between rights to due process and public safety. Lastly, I argue that NGOs, scholars, and activists advocating in defence of rights might make greater use of evidence and expertise on current threats in the course of scholarship and public advocacy. Both Canada and the US continue to insist upon the validity of the measures based in large part on the gravity of current threats. Meaningful reform will therefore depend at least in part on unsettling this line of reasoning. This presents an opportunity for rights advocates, and a measure of hope for those committed to the future of constitutionalism and human rights. !  29  Chapter 2  2  From Extraordinary Measures to Authoritarian Legality  Over the course of the past decade, an extensive body of legal scholarship has explored the nature of a series of extraordinary counter-terror measures employed by the US and Canadian governments in response to the events of September 11. The thrust of the vast majority of this literature is to point out ways in which the measures mark a break from principles of liberal legality, or a commitment to upholding constitutionalism, human rights, and the rule of law. In distinction to those who view these measures as a violation of civil liberties, or as a departure from the rule of law, I suggest that, taken together, they can be understood in terms of a shift from a liberal form of legality to what might be called authoritarian legalism. The argument here is concerned, therefore, not with a break from legality as such but with a deeper shift in the idea of legality. I will argue in later chapters that this shift was made possible in large part by the prevalence of two beliefs: (a) the imminent possibility of a mass terror attack that would pose an unprecedented danger to society or the state; and (b) the need to embrace a new, more pre-emptive and extreme set of measures to avert this. This chapter begins with a brief discussion of liberal legalism and its constituent principles. It then examines the emergence of authoritarian legality in US and Canadian counter-terror law and policy in terms of its four basic features: (i) the suspension of absolute or non-derogable rights; (ii) the legislative entrenchment of greater powers of secrecy and surveillance; (iii) judicial deference to the executive; and (iv) the state’s reluctance to remedy past violations of core human rights.  !  30  Chapter 2  2.1  Defining liberal legalism  While there is no single, canonical definition of “liberal legalism” in legal scholarship, the phrase is often used to refer to procedures and principles that give legal expression to political and economic aspirations of liberalism.1 I propose to use it here in a broader sense, to describe an approach to law that reflects a commitment to core philosophical as well as political precepts of Enlightenment liberalism; namely, the notion that each individual is to be treated humanely and with equal value in law, on the basis of the inherent dignity and equal value to be accorded to each human life. A liberal legal order seeks to foster these values by preserving the individual’s liberty to pursue self-defined goals of the good life, so long as they do not infringe unreasonably upon the freedoms of others. It also seeks to protect a sphere of individual dignity by respecting a person’s privacy and asserting limits on inhumane treatment or punishment. It assumes that all persons, citizens and foreigners alike, are equally entitled to due process or ‘natural justice’ when deciding questions that concern their core freedoms – so that truth rather than prejudice may form a basis for state action. Liberal legalism is therefore embodied in a commitment to democratic government, constitutionalism, human rights, and the rule of law – or, more profoundly, on the principle that government should not be arbitrary. Yet all of these concepts have become so central to our understanding of law itself that some have questioned whether we can conceive of legality apart from them. A number of legal theorists have taken up this issue in the period after Nazi Germany, and the advent of other modern fascist or totalitarian regimes. Views on the issue are worth canvassing briefly to lend a clearer sense of the difference between legality and liberalism, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1  See, e.g., Sandford Levinson, “Escaping Liberalism: Easier Said Than Done” (1983) 96:6 Harvard LR, 1466; see also Robert Gordon’s “Some Critical Theories of Law and Their Critics” in David Kairys, ed. The Politics of Law: A Progressive Critique (Basic Books: New York, 1982). Reviewing this collection, Sanford Levinson, ibid, links liberal legalism to liberal individualism, the distinctions between the private and public sphere, and the notion of the rule of law as “a means for resolving the inevitable conflicts among the atomistic individuals who inhabit liberal society” (1467).  !  31  Chapter 2 and how liberal beliefs might inform a legal framework — or, as in authoritarian legality, be notable by their absence. For legal positivists, the rule of law, or legality as such, is indispensable to the notion of a liberal legal order, but is conceptually distinct from it. For example, Joseph Raz conceives of the rule of law as a “neutral” instrument, the essential features of which are equally amenable to a totalitarian state as they are to a liberal state. He asserts: …the rule of law is just one of the virtues a legal system may possess and by which it is to be judged. It is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man. A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies. It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law.2 For Raz, the rule of law entails only two propositions: (a) “that people should be ruled by the law and obey it” and (b) “that the law should be such that people will be able to be guided by it.”3 It is thus distinct from liberal ideals, yet its value consists in its promotion and support of them.4 By contrast to Raz and other positivists, another tradition maintains that the essential hallmarks of legality are inextricable from liberal ideals. Key figures in this tradition include the Victorian constitutional scholar A.V. Dicey and American law scholars Lon Fuller and Ronald Dworkin. In Dicey’s work, the rule of law is defined by three basic assumptions: (i) that discretion is the antithesis of law; (ii) that law should strive to protect individual rights through their application to all persons; and (iii) that disputes !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2  Joseph Raz, The Authority of Law (Oxford: Oxford UP, 2009; 2nd ed), at 211. See also H.L.A. Hart, The Concept of Law (Clarendon Press: Oxford, 1965).  3  Raz, ibid, at 213.  4  Ibid, at 221.  !  32  Chapter 2 are to be resolved by courts rather than officials or councils exercising unreviewable administrative discretion.5 For Dicey, the function of the rule of law as a guarantor of stability and order is one facet of a larger project of creating a liberal state regime, based on a notion of liberal citizenship. With no one person standing above the law, and authority never being exercised beyond the law, it becomes possible to protect a sphere of individual liberty from arbitrary state power, and to govern the collective order through a set of laws democratically created and impartially enforced. Writing in the wake of the Second World War, Lon Fuller sought to demonstrate the close connection of legality to liberal values by posing a question that took on a particular resonance after the Holocaust. What basic qualities must a legal system possess in order to be considered legitimate and just to contemporary observers?6 Such a system would, in his view, abhor the practice of arbitrary rule, vested in a single, unaccountable individual or group, who issued secret orders and applied the law selectively or retroactively. It would require instead that laws be, at the least, publicized, clear, coherent, general in nature, and non-retroactive.7 Although he spoke of these as amounting to a distinct “morality of law,” it is clear that the larger morality that law is meant to serve is liberal in nature. A system of secret, partial, or arbitrary law, as found in authoritarian or totalitarian states, would appear illegitimate to contemporary western sensibilities due in part to its inconsistency with a larger liberal ‘morality’ that values individual liberty and equality.  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 5  A. V. Dicey, Introduction to the Study of the Law of the Constitution (London: MacMillan and Co, 1889). See also, H.W. Arthurs, “Rethinking Administrative Law: A Slightly Dicey Business” (1979) 17:1 Osgoode Hall LJ 1, at 22.  6  Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1964).  7  Ibid, chapter 2.  !  33  Chapter 2 The link between liberal values and the notion of legality becomes even more explicit in the work of Ronald Dworkin. In Taking Rights Seriously,8 Dworkin asserts that in contemporary western legal systems, “no ultimate distinction can be made between legal and moral standards, as positivism insists.”9 On the contrary, for Dworkin, we can neither create nor enforce law without reference to moral standards. Indeed, the very notion of constitutionalism “rests on a particular moral theory, namely that men have moral rights against the state. The difficult clauses of the Bill of Rights, like the due process and equal protection clauses, must be understood as appealing to moral concepts rather than laying down particular conceptions”.10 At the heart of this morality are concepts of freedom and equality deeply rooted in the liberal Enlightenment: Government must treat those whom it governs with concern, that is, as human beings who are capable of suffering and frustration, and with respect, that is, as human beings who are capable of forming and acting on intelligent conceptions of how their lives should be lived. Government must not only treat people with concern and respect, but with equal concern and respect.11 More recently, Dworkin has extended this logic to a theory of the nature and purpose of human rights. Such rights are, in his view, vehicles for preserving “two dimensions of human dignity”.12 Each human life has “intrinsic value” by virtue of its “potentiality,” and each holds “personal responsibility” for “realizing the success of his or her own life”.13 We seek to uphold human rights on the assumption that to treat a person contrary to these principles is to offend their human dignity.  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 8  Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977).  9  Ibid, at 47.  10  Ibid, at 147.  11  Ibid, at 272-3.  12  Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate (Princeton: Princeton UP, 2006), at 9.  13  Ibid.  !  34  Chapter 2 Thus, although theorists may disagree about whether the notion of legality can be distinguished, in any meaningful sense, from liberal values, they generally agree on the content of liberal legalism. Canadian law scholar, W. Wesley Pue, has sought to distill these principles in a way that captures the broader scope of liberal legality: a. All law should seek to attain minimal infringement of civil liberty. b. There should be maximum clarity of definition regarding powers conferred, restrictions imposed, and offences created. c. All exercise of governmental power should be accountable, visible, and reviewable by the ordinary courts in the ordinary ways. The core constitutional principle of responsible government requires clear and effective channels of political and legal accountability. d. Secrecy should only be tolerated in the smallest possible zone, only as absolutely essential, and only for limited duration. Power exercised in secret is never accountable. e. Where extraordinary powers are invoked in times of perceived crisis, they should be of limited duration, renewable only by full reconsideration and re-enactment by Parliament.14 To Pue’s list, one might add two further propositions that are not essential to legality as such, but are commonly embraced in a liberal legal framework. One is the notion of absolute limits on the state’s use of force against an individual, or what are called ‘non-derogable’ rights. As Jeremy Waldron, David Luban, and others have suggested, the absolute prohibition on torture, cruel or degrading treatment is not simply an important facet of liberal legalism but almost its very essence — a kind of archetype for legality itself.15 As Waldron writes, “in the heritage of Anglo!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 14  W. Wesley Pue, “The War on Terror: Constitutional Governance in a State of Permanent Warfare” 2003 41 OHLJ No. 2&3, 267 at 270.  15  Jeremy Waldron, “Torture and Positive Law: Jurisprudence for the White House” (2005) 105 Colum. L. Rev. 1681; at 1687: “the rule against torture operates in our law as an archetype – that is, as a rule which has significance not just in and of itself, but also as the embodiment of a pervasive principle.” See also David Luban, “Liberalism, Torture, and the Ticking Bomb” (2005) 91 Va. L. Rev. 1425; Ronald Dworkin, Is Democracy Possible Here?, supra, note 12, chapter 2; and Tamar Meisels, “Torture and the Problem of Dirty Hands” (2008) XXI:1 Can. J.L. & Jur 149.  !  35  Chapter 2 American law, there is a long tradition of rejecting torture and regarding it as alien to our jurisprudence… Actually, a case can be made that torture is now to be regarded as alien to any system of law.”16 The prohibition on torture is recognized in a series of treaties, including the UN Declaration and the Geneva Conventions. The 1984 U.N. Convention Against Torture is categorical in its prohibition, stating that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”17 Both Canada and the US are signatories to the convention; yet the prohibition is also arguably implied in the US Constitution and the Canadian Charter of Rights and Freedoms.18 A further aspect of liberal legality relates to the role of individuals in violent acts. Liberal jurists tend to assume that violent acts by individuals or groups of non-state actors are best understood in terms of the criminal law rather than the law of war.19 They also assume, however, that even if actions by non-state actors are believed to amount to a threat of war, human rights and other international humanitarian laws still apply.20 In short, neither framework — crime or war — entails a space beyond law, with the law at issue always conceived in liberal terms. Yet, it is precisely the lack of a middle ground, a concept other than crime or war, which serves as an opening for an authoritarian form of legality. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 16  Jeremy Waldron, ibid, at 1719.  17  Article 2(2), United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85, (entered into force 26 June 1987).  18  The constitutionality of torture is explored in the next section.  19  See, e.g., David Luban, “The War on Terrorism and the End of Human Rights” 22:3 (2002) Philosophy and Public Policy Quarterly 9.  20  See, e.g., works explored in Chapter 5 by Ronald Dworkin, Jeremy Waldron, Kent Roach, and David Cole and Jules Lobel.  !  36  Chapter 2  2:2  Defining authoritarian legalism  2:2:1 Qualifications and antecedents A glance through some of the extensive literature on US and Canadian counter-terror measures after 9/11 will show that for a majority of commentators, at least some of the measures at issue have amounted to a departure from liberal legal principles. In this section, I propose to survey some of the most salient of these measures not in the negative terms of a departure but in the positive sense of a new conceptual formation. In making this claim, I assume that legality can be distinguished from liberal values, and that one can discern, from surveying some of the recent measures, the broad contours of a new and distinct concept of legality.21 I should note, however, that I advance an argument for the emergence of authoritarian legalism here in a provisional spirit. The reader may remain skeptical about whether legality can be distinguished from liberal values, or doubt the fact that a distinct, coherent, and widely shared conception of legality came into existence in this period. The larger argument in this thesis about the fear of mass terror as a motivator for extreme measures would still stand. On this view, beliefs about mass terror would serve as a key  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 21  The concept of authoritarian legality is not new in the sense that it has no antecedents, but new in the sense of marking a break with late modern Anglo-American legal beliefs and practices. Other commentators have gestured in the direction of authoritarian legality by referring to a deeper conceptual shift in thinking about law and security. See, e.g., Jane Mayer, The Dark Side: the Inside Story of How the War on Terror Turned into a War on American Ideals (New York: Random House, 2008), referring to a “new paradigm” for the use of force in the wake of 9/11; and Alan Dershowitz, Preemption: a Knife that Cuts Both Ways (New York: Norton, 2006). Other commentators, including Oran Gross, David Dyzenhaus, Gabriella Blum and Philip Heymann have queried the relationship of extreme measures to legality. See, e.g., Oren Gross, “Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?” (2003) 112:5 Yale L.J. 1011; David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006); and Gabriella Blum and Philip Heymann, Laws, Outlaws, and Terrorists: Lessons from the War on Terrorism (Boston: MIT Press, 2010). To my knowledge, however, no other commentator has proposed reading aspects of post-9/11 North American counter-terror law and policy as tantamount to a new conception of legality in itself.  !  37  Chapter 2 factor in the embrace of extreme measures, if not of authoritarian legalism in a broader sense. Why, then, is it necessary or useful to speak of an authoritarian legality rather than extreme or extraordinary measures on their own? I do so for two reasons. First, the concept is useful as an interpretive device — as a way of inviting the reader to see, in a brief survey of extreme measures, a coherent whole or larger pattern. Doing so leaves the theory open to the claim that any continuity or coherence it purports to find is illusory; that what we find instead is a series of laws with some superficial similarities, a disparate set of controversial court decisions, and a few regrettable but unusual policy decisions. But a few poor decisions and over-reactive laws do not make a coherent or rational paradigm — and to attempt to read them as such amounts to an effort to discern a larger intent where there is none. While this is a forceful counter-argument to keep in mind, it must also contend with a second rationale for speaking in terms of a new, post-liberal form of legality. The laws and policies at issue have not evolved in isolation. They have evolved, to some extent, in response to each other, and to a deeper shift in assumptions about threats to national security and appropriate limits on the use of force. A theory of authoritarian legality seeks, therefore, to identify a common framework of belief that links the various laws and policies together in an evolving legal and juridical sensibility about pending threats and necessary measures. I should also note at the outset that the theory of authoritarian legality proposed here is not tantamount to an expanded concept of presidential powers or executive discretion. While this may contribute to it, it remains conceptually distinct and viable without it. Nor does the concept rely on the belief that the threat of terror after 9/11 !  38  Chapter 2 amounts to a war rather than a crime, or, as John Yoo and others have argued, that many of the controversial measures employed by Presidents Bush and Obama are incidental to their powers as Commander in Chief in a time of war. These are further important facets of authoritarian legality, but not synonymous with it. Authoritarian legality arises in the US context in part as a result of the belief that the nation is at war, but that the “enemy combatants” in this war are entitled to neither the full protections of the laws of war, nor many of the basic privileges afforded by due process.22 More crucially, in both Canada and the US, it arises as a result of the belief that the nature of the threat facing the nation is sufficiently grave that it makes the use of extraordinary measures necessary. The various measures contribute to a form of legality precisely to the extent that officials, jurists, and commentators conceive of them as lawful. Thus, while scholars may continue to debate the lawful character of these measures (on liberal legal standards), the measures in question possess a degree of positive legality by a number of indicia. Many of them are entrenched in legislation. Many have been constitutionally challenged but upheld. Others assume the form of court decisions that acquiesce in or approve of serious departures from constitutional or human rights principles. And finally, other measures bear a kind of official legality by virtue of the executive’s unchallenged insistence to this effect.23  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 22  Gabriella Blum and Philip B. Heymann, Laws, Outlaws, ibid, at 3.  23  Drawing on the work of Stephen Griffin, Tracey Lightcap argues that “actions by the executive in the United States can attain legal status in several ways. In the past, legal change has been straightforward; legislation is passed or the constitution revised. But this is not the only way legality can be established, especially in recent times. Actions taken by presidents exercising their executive discretion can also be informally legalized by becoming routine actions that are neither forbidden by specific legislation nor declared out of constitutional bounds by the courts.” Tracey Lightcap, Review of Kent Roach’s ‘The 9/11 Effect: Comparative Counter-terrorism’ (2012) 22:1 Law and Politics Book Review, 129 at 132. See also  !  39  Chapter 2 An authoritarian form of legality has emerged gradually, then, through law, jurisprudence, executive policy and practice, and a wider public or cultural acceptance. I should note before proceeding, however, that this new form of legality has not emerged out of a vacuum – or should not be understood exclusively as a response to 9/11. Its cultural and conceptual antecedents are indeed much wider in scope and far older than the events of 9/11, and the debates about counter-terror policy that followed. The role of these antecedents is crucial, yet at this point I seek to canvas it briefly and to revisit it in the concluding chapter of this thesis. Suffice it to say here that the emergence of authoritarian legality cannot be understood without reference to changing assumptions in Anglo-American criminology and crime prevention over the last third of the twentieth century. Tracing developments from roughly the 1970s onward, David Garland, Lucia Zedner, Jonathan Simon and others have noted a general shift in emphasis from a long-standing perception of crime as a social welfare problem, calling for the rehabilitation of disadvantaged populations, to one of risk and control of “dangerous predators” and “incorrigible career criminals.”24 Throughout this period, the fear of crime and the idea of security had become primary preoccupations of politics and culture. As a part of this process, a tradition of protecting individual rights and civil liberties had come to be eclipsed in the US and the UK, and to a lesser extent in Canada, by a form of law making in which the role of the victim had become central. Criminal codes and statutes began to expand rapidly with new law  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Stephen M. Griffin, “Constitutional Change in the United States,” in Dawn Oliver and C. Fusaro, eds., How Constitutions Change: a Comparative Study (Oxford: Hart Publishing, 2011). 24  David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001), at 10.  !  40  Chapter 2 fashioned in what Kent Roach has described as a “narrative” style meant to “memorialize terrible crimes”.25 As a corollary to the rising status of the victim, the figure of the prosecutor also became more central to the rhetoric of politics and government. As Simon has demonstrated, the role and identity of the stern and effective prosecutor had become an indispensible quality in perceptions of the able politician. Rather than seeking to strike a balance between public safety and civil liberties, presidents, governors, and other members of the executive were encouraged to foreground their earlier careers as prosecutors, or to embrace a kind of quasi-prosecutorial rhetoric in their approach to law and order. It had also become incumbent upon politicians of any political persuasion to emphasize a willingness to employ harsh measures – either as an expression of or response to the public’s fear, anger, and desire for retribution.26 At the same time, the scope of criminal law and policy had vastly expanded. Broader racial, class and gender-based tensions would come to be addressed through penal and drug policies clearly discriminatory in their effects. There was also a growing criminalization of deviance in schools and of violence in family relations and in the workplace.27 Zedner complements this analysis by exploring the emergence, before 9/11, of various “pre-crime” control measures, which seek to impose penal or other restrictive  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 25  Kent Roach, September 11: Consequences for Canada (Montreal: McGill-Queen’s University Press, 2003), at 25.  26  Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (Oxford: Oxford UP, 2007), chapter 2.  27  Ibid, chapters 5, 6 and 7.  !  41  Chapter 2 measures as a means of segregating and controlling disenfranchised, disadvantaged portions of the population.28 In short, the practice of using the criminal law, or punitive measures, as a response to a set of social tensions or fears had long pre-dated 9/11 and the various amendments to criminal and immigration law that followed. Authoritarian legal measures should therefore be seen at least in part as elaborations of these earlier tendencies. A question I will explore in later chapters is how the legacy of 9/11, and beliefs about terrorism in particular, have come to shape authoritarian legality in ways unique from this earlier “culture of control,” or “governance through crime.”  2.2.2 Catalyzing events Two legal developments in the wake of 9/11 have served as a catalyst for much of the law and policy that comprise authoritarian legality. The first, pertaining to the United States, was congress’s passage of the “Authorization to Use Military Force” (AUMF) on September 18, 2001.29 This “joint resolution” of both houses of congress functions as a declaration of war against the perpetrators of 9/11, and other possible targets. The document contains only a preamble and one substantive section. The preamble invokes the nation’s right to self-defence, in response to the “grave acts of violence” that occurred on September 11, and the fact that those responsible “continue to pose an unusual and extraordinary threat to the national security” of the United States. The main section is sweeping in its scope and not limited in duration: !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 28  Lucia Zedner, “Seeking Security by Eroding Rights: The Side-stepping of Due Process”, in Benjamin J. Goold and Liora Lazarus, eds., Security and Human Rights (Oxford: Hart Publishing, 2007).  29  Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).  !  42  Chapter 2 ... the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.30 The AUMF is worded broadly enough that it authorizes attacks against nations or groups that had not yet assisted terrorists in 2001, but may have begun to do so later (for example, groups operating in Yemen).31 The scope of its most important phrase – the authority to use “all necessary and appropriate force” – is also left unclear. Both the Bush and Obama administrations have taken the view that this allows the president to detain indefinitely and without charge either foreigners or citizens; to try detainees in military tribunals; and to carry out secret domestic surveillance and targeted killing.32 There were, however, two limitations to the AUMF – but both appear to have been removed by recent legislation. The first limitation had to do with its open-ended nature. As some have argued, at some point, the Authorization would cease to be valid due to the passage of an implied time limit.33 The second limitation was the nexus requirement. The president had to draw a connection between an individual, group, or nation and the attacks of September 11: i.e., detainees or targets must have “planned, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons…”34 Both administrations had taken the view !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 30  Ibid, section 2(a).  31  I credit Oona Hathaway for noting this, in a presentation in the spring of 2011 at the Yale Law School.  32  The use of the AUMF as a basis for these practices is discussed further below, and in later chapters.  33  See, .e.g., Deborah Perlstein, “More on the New AUMF” (26 June, 2011) Opinio Juris, online: <http://opiniojuris.org/2011/05/26/more-on-the-new-aumf/>; Bruce Ackerman and Oona Hathaway, “Did Congress Approve America’s Longest War?” (27 January 2011) The Guardian, online: <http://www.guardian.co.uk/commentisfree/cifamerica/2011/jan/27/afghanistan-congress>; John Bellinger, “A Counterterrorism Law in Need of Updating” (26 November 2010) The Washington Post.  34  Oona Hathaway, Samuel Adelsberg, Spencer Amdur, Philip Levitz, Freya Pitts, and Sirine Shebaya, “The Power to Detain: Detention of Terrorism Suspects After 9/11” (forthcoming in the Yale Journal of International Law 2012); online, Yale Law School: <www.law.yale.edu/documents/pdf/Intellectual_Life/YLS_PowertoDetain.pdf>, at 8.  !  43  Chapter 2 that if a person had not engaged directly in any of those acts, it would suffice if they were part of a group that did, or if they substantially supported such a group.35 But in either case, the group itself had to be connected with the attacks of September 11. In response to the first limitation, congress debated explicitly renewing the powers contemplated in the AUMF in a bill passed in 2011, but chose not to do so. However, while the National Defence Authorization Act of 2012 (NDAA) does not explicitly renew the powers of the AUMF, it does affirm their continuing validity.36 Section 1021 of the Act states: Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons […] pending disposition under the law of war. The section is structured as a form of clarification – the AUMF “includes” the authority to detain a certain class of persons. But notably, the section speaks of the president’s powers under the AUMF in the present tense. By implication, then, the AUMF itself is not only still valid, but would appear to remain so for the foreseeable future. A further key provision of the NDAA supports this reading. The section at issue is one that expands the president’s authority to detain.37 Now, the president may detain not only those who planned, aided, or harbored those involved in the attacks of September 11, but also those who were “part of or substantially supported al-Qaeda, the Taliban or associated forces that are engaged in hostilities against  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 35  Ibid, at 11.  36  National Defense Authorization Act for Fiscal Year 2012, H.R. 1540, 112th Cong. (2011).  37  Ibid, section 1021(b)(2).  !  44  Chapter 2 the United States or its coalition partners…”38 A nexus to September 11 is no longer necessary. It will suffice if a person or group is substantially linked to an “associated force,” or what is called a “co-belligerent” force.39 The detainee may be either a foreigner or a US citizen, and he or she can be detained “under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.”40 The second measure that has prompted new counter-terror law in response to 9/11 was the adoption of Resolution 1373 by the United Nations Security Council, on September 28, 2001.41 This called on member states of the UN to reform criminal law regimes to more effectively prevent “those who finance, plan, facilitate or commit terrorist acts”.42 It also called on states to establish “terrorist acts… as serious criminal offences in domestic laws”; to accelerate the exchange of information or evidence relevant to terror investigations,43 and to “prevent the movement of terrorists [...] by effective border controls”.44 Within a month, the US government had passed the USA PATRIOT Act,45 and two and a half months later, Canada enacted the Anti-terrorism Act.46 Through these and other acts, both governments sought to meet the demand to introduce new  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 38  Ibid.  39  See the discussion in Hathaway, et al, supra, note 34, at 12, of Hamlily v. Obama, 616 F. Supp. 2d. As Hathaway et al note, the D.C. District Court in Hamlily made clear that co-belligerents “do not include terrorist organizations who merely share an abstract philosophy or even a common purpose with al Qaeda – there must be an actual association in the current conflict with al Qaeda or the Taliban.” (Hamlily at 74.)  40  National Defense Authorization Act, supra, note 36, section 1021(c)(1).  41  S/Res/1373 (2001) [“Resolution 1373”]. On the role of this resolution as a primary impetus for legislative responses to 9/11 by the United States, Canada and other commonwealth nations, see Kent Roach, “Sources and Trends in Post-9/11 Anti-terrorism Laws” in Benjamin J. Goold and Liora Lazarus, eds., Security and Human Rights (Oxford: Hart Publishing, 2007).  42  Resolution 1373, ibid, section 2(d), ibid.  43  Ibid, section 3.  44  Ibid, section 2(g).  45  P.L. 107-56, 115 Stat. 272 (2001).  46  S.C. 2001, c. 41.  !  45  Chapter 2 terrorism offences, but also took the opportunity to expand the scope of state secrecy and surveillance, and powers of detention, in ways to be explored below. In what follows, I define authoritarian legality in terms of four basic elements. Given the wealth of commentary on these measures, the intention here is only to provide a basic overview of law, policies, or court decisions that support essential facets of the paradigm. For a more detailed exploration of these developments, I refer the reader to earlier studies of both US47 and Canadian law.48  2.3  Defining characteristics of authoritarian legality  2.3.1 The abandonment of the concept of absolute or non-derogable rights In authoritarian legality, there are no non-derogable rights. Put otherwise, all constitutional and human rights have proven to be derogable, including rights against torture, cruelty, and “extra-judicial” killing. Yet in every case where a government or !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 47  See, e.g., Jules Lobel, “The War on Terrorism and Civil Liberties”, 63 U. PITT. L. REV. 767 (2002); Patricia Mell, “Big Brother at the Door: Balancing National Security with Privacy Under the USA PATRIOT Act”, 80 DENV. U. L. REV. 375 (2002); Kim Lane Scheppele, “Law in a Time of Emergency: Terrorism and States of Exception”, 6 U. PA. J. CONST. L. 2004; Stewart Baker and John Kavanagh, eds., Patriot Debates: Experts Debate the USA PATRIOT Act (Chicago: American Bar Association, 2005; Mark Tushnet, ed., The Constitution in Wartime: Beyond Alarmism and Complacency (Durham: Duke University Press, 2005); David Cole and Jules Lobel, Less Safe, Less Free: Why America is Losing the War on Terror (New York: the New Press, 2007); Ronald Dworkin, “The Threat to Patriotism” (2002) New York Review of Books 49, 3 (February) and “Terror and the Attack on Civil Liberties” (2003) New York Review of Books 50, 17 (November); and Blum and Heymann, Laws, Outlaws, supra, note 21, at 3.  48  Commentary on Canada’s primary legislative response to 9/11, the Anti-terrorism Act (S.C. 2001, c. 41) includes Ronald Daniels, Patrick Macklem and Kent Roach, eds., The Security of Freedom: Canada’s Antiterrorism Bill (Toronto: University of Toronto Press, 2001); David Daubney, ed., Terrorism, Law and Democracy: How is Canada Changing Following September 11? (Themis: Montreal, 2002). For commentary on Canadian counter-terror measures of a wider scope, see Kent Roach, September 11: Consequences for Canada (Montreal: McGill-Queen’s University Press, 2003); W. Wesley Pue, “The War on Terror: Constitutional Governance in a State of Permanent Warfare?” (2003) 41:2&3 Osgoode Hall L.J. 267; Kent Roach, “Must We Trade Rights for Security? The Choice Between Smart, Harsh, or Proportionate Security Strategies in Canada and Britain” (2006) 27 Cardozo L. Rev. 2151; W. Wesley Pue, “Protecting Constitutionalism in Treacherous Times: Why Rights' Don’t Matter” in A. V. Narsimha Rao, ed., Constitutionalism: an International Perspective (Hyderabad: Amicus Books, 2008); and Robert Diab, Guantanamo North: Terrorism and the Administration of Justice in Canada (Fernwood Publishing: Halifax, 2008).  !  46  Chapter 2 court violates an absolute prohibition, the violation is not acknowledged as such. That is to say, while the act or court decision may amount to a de facto violation of the prohibition, governments or courts have either ignored the fact or insisted upon the legality or reasonable character of their actions.49 Thus, despite the fact that both the US and Canadian governments are constitutionally and by treaty bound to uphold the absolute prohibition on torture, cruelty, and extra-judicial killing, each government and each nation’s courts have sanctioned the violation of these rights (with the exception of targeted killing in the case of Canada). In many cases, the violations were carried out either without prior judicial review, as conventionally understood in liberal democracies, or on lower evidentiary standards or thresholds than are found in a liberal legal paradigm. A series of specific examples can be considered. Indefinite detention in US law With the AUMF as a backdrop, President Bush issued an order on the 13th of November, 2001, purporting to give himself the power to detain, indefinitely, any individual who is not a citizen of the United States and who there is “reason to believe” has engaged in or aided or abetted a terror group — or, more generally, anyone who “it is in the interest of the United States” to detain.50 The order allows that detainees may be tried by a military tribunal for any violations of the laws of war, and if convicted could face the death penalty. Given the “danger to the safety of the United States” posed by !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 49  By contrast, in November of 2001, when Britain sought to legislate the power to detain non-citizens without charge for extended periods under new immigration legislation, it invoked the emergency derogation clause under the European Convention on Human Rights, 213 U.N.T.S. 221. The measure was thus conceived of as a derogation from a core human right. The validity of the derogation, and thus the law on which it was based, was successfully challenged in A and others v Secretary of State for the Home Department [2004] UKHL 56.  50  Military Order of November 13, 2001; Federal Register: November 16, 2001 (Volume 66, Number 222) Presidential Documents, pp. 57831-57836; available online: <http://georgewbushwhitehouse.archives.gov/news/releases/2001/11/20011113-27.html>.  !  47  Chapter 2 terrorism, the order states that it is “not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.”51 The order also precludes a detainee’s right to seek “any remedy or maintain any proceeding, directly or indirectly … in any court of any court of the United States”,52 or any other nation or international tribunal. Thus, a conviction and death sentence could follow from a split decision of a panel, and the only appeal would lie with the President or Secretary of Defence — the same officials carrying out the prosecution.53 The order states that these measures are necessary given the fact that the attacks of 9/11 occurred “on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces.”54 The measures were also appropriate considering the “magnitude of the potential deaths, injuries, and property destruction that would result from potential acts of terrorism against the United States, and the probability that such acts will occur”.55 The day after the order was issued, Vice President Cheney asserted that detainees in America’s military initiative against al Qaeda and its affiliates did not “deserve to be treated as prisoners of war” and were not entitled to the protection of the Geneva Conventions.56 In January of 2002, legal opinions corroborating this view were issued by Donald Rumsfeld, on behalf of the Department of Defence, and Jay Bybee, for the  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 51  Ibid, s. 1(f).  52  Ibid, s. 7(b).  53  Mayer, The Dark Side, supra, note 21, at 87.  54  Military Order of November 13, 2001, supra, note 50, section 1(a).  55  Ibid, section 1(g).  56  Barton Gellman and Jo Becker, “A Different Understanding with the President” (24 June 2007) Washington Post, online: <http://blog.washingtonpost.com/cheney/chapters/chapter_1/> .  !  48  Chapter 2 Department of Justice.57 On February 7th, President Bush gave these legal force by issuing an order stating “none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, al Qaeda is not a High Contracting Party to Geneva.”58 As Jane Mayer notes, President Bush’s February 2002 order marked the first time the US has explicitly declined to uphold the Geneva Conventions for prisoners in an armed conflict. During the Vietnam war, the Conventions were applied to detainees of the Viet Cong despite the fact that the Viet Cong had ignored them.59 Mayer also notes that in Vietnam, as with Guantanamo, there had been concerns that some of the detainees were innocent civilians. The US was able to devise a system of status hearings — known as “Article 5 tribunals” — to extend to prisoners the right to make a case against detention.60 These tribunals were used again in Grenada, Panama, and the Gulf War. In the latter case, as Mayer points out, among the 1200 or so Iraqi combatants initially imprisoned, Article 5 tribunals would determine that only 310 detainees should be held as prisoners of war.61 Among the many protections afforded by the Geneva Conventions is a right against punishment for refusing to cooperate with interrogators. The Third Convention states that “No physical or mental torture nor any other form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatever.”62  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 57  Rumsfeld’s January 19th memo is available online at ‘lawofwar.org’: <http://www.lawofwar.org/Rumsfeld%20Torture%20memo_0001.jpg>; Bybee’s> memo of January 22nd: <http://www.washingtonpost.com/wp-srv/nation/documents/012202bybee.pdf>.  58  Section 2(a) of the order is available online at ‘lawofwar.org’: <http://www.lawofwar.org/Bush_memo_Genevas.htm>.  59  Mayer, The Dark Side, supra, note 21, at 121.  60  Ibid, at 121.  61  Ibid.  62  International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 135; article 17, available at:  !  49  Chapter 2 In the post-9/11 period, the US would detain thousands of terror suspects, from battlegrounds in Afghanistan and Pakistan, and from a host of other Asian nations, and hold them at prisons in Iraq, Afghanistan, Guantanamo Bay in Cuba, and at various CIA “black sites.” Many were interrogated and tortured.63 To focus for the moment on detainees at Guantanamo, beginning in January of 2002, the US would bring roughly 800 men to the base over the course of the past decade. While 7 have died in custody, 172 remain.64 With the base situated on foreign soil, the Bush administration assumed that detainees were beyond the jurisdiction of American courts or the US constitution, for the purpose of challenging the grounds of their detention under a writ of habeas corpus, or their prosecution using military tribunals. Through a series of decisions of the US Supreme Court, the scope of detainee rights has become clearer. The decisions can be roughly divided into two classes of cases. One set of cases concerns the right of detainees to habeas corpus, or some form of judicial review, to determine whether their detention is lawful. The question in these cases is whether a detainee is in fact the “enemy combatant” the government alleges he is, or an innocent bystander caught up in the initial sweep.65 A second set of cases, dealing with a !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! http://www.unhcr.org/refworld/docid/3ae6b36c8.html; noted in Mayer, The Dark Side, supra, note 21, at 120. 63  The issue of torture is explored in more detail below.  64  On the deaths in custody, see Mayer, The Dark Side, supra, note 21, at 333.  65  A 2006 report by scholars at Seton Hall School of Law found that “Only 8% of [Guantanamo] detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40% have no definitive connection with al Qaeda at all and 18% are have no definitive affiliation with either al Qaeda or the Taliban”. It also found that “Fifty-five percent (55%) of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies.” Most concerningly, “Only 5% of the detainees were captured by United States forces. 86% of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States custody.” Commenting on this report, Jane Mayer, ibid, note 21, at 184-5, suspects that many if not most of the detainees arrested by non-US forces were handed over by bounty-hunters. See Mark Denbeaux and Joshua Denbeaux, et al, “Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defence Data”, Seton Hall Law School, 2006; online, Seton Hall: <http://law.shu.edu/ProgramsCenters/PublicIntGovServ/policyresearch/GuantanamoReports.cfm>.  !  50  Chapter 2 smaller group of detainees charged with war crimes, concerns the validity of the military tribunal scheme set up to try them. The question in these latter cases was whether the Geneva Conventions do in fact apply, along with any other, more stringent, US laws dealing with the use of military tribunals. With the exception of the US Supreme Court’s decision in Hamdan v. Rumsfeld,66 holding that the Geneva Conventions do apply to detainees held at Guantanamo, the courts have been largely deferential to the assertions of expanded executive authority. (The deferential role of the courts, as a key feature of authoritarian legality, is explored in more detail below. I canvas the cases briefly here to lend coherence to the present discussion of indefinite detention and torture.) The first of these decisions involved the case of Yaser Hamdi, an American citizen who was captured in Afghanistan in late 2001 while fighting for the Taliban against Northern Alliance forces. Initially brought to Guantanamo for interrogation, authorities moved him, upon learning of his citizenship, to a Naval brig in Virginia for a period, then to a brig in South Carolina. In the view of the Bush administration, Hamdi’s involvement in Afghanistan qualified him as an “enemy combatant”. On this basis, the US could detain him indefinitely, as a lawful incident to the powers set out in the AUMF. But the US also asserted the right to keep him in solitary confinement, with no contact with anyone apart from the military, and to deprive him of access to counsel and to any judicial review of his detention. On a petition for habeas corpus brought by his father, the case made its way to the US Supreme Court.67 A plurality of the court agreed with the government that the AUMF authorizes the detention of combatants captured abroad — including citizens — !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 66  415 F.3d 33 USSC (2006).  67  Hamdi et al. v. Rumsfeld, Secretary of Defence, et al, 542 U.S. 507 (2004).  !  51  Chapter 2 and that the detention could continue as long as hostilities lasted, which could be indefinitely. It also held that Hamdi was entitled to counsel and judicial review of his detention, but that the executive was entitled to considerable deference in the process. The standard of review could be lower, it could involve secret evidence or hearsay, and it could take place in a military tribunal rather than a civilian court. In response to this decision, the US military put in place “Combatant Status Review Tribunals” [“CSRTs”] to provide detainees with a process for review that accorded with the Hamdi decision. However, detainees were appointed counsel by the tribunal (limited to members of the military); the military controlled who could be called as a witness; and detainees (or their counsel) were not able to examine government witnesses.68 Hearsay was also admitted, and factual assertions by the military were assumed valid unless rebutted.69 On the same day that Hamdi was decided, the Court issued its decision in Rasul v. Bush.70 This case affirmed that a statutory right to bring a habeas corpus petition extended not only to those within the United States, but also to those held in territories under the authority or control of the US.71 In response, congress passed the Detainee Treatment Act (2005),72 which explicitly precluded detainees at Guantanamo from seeking habeas corpus under the former statutory scheme.73 The act also limited review of decisions from the Combat Status Review Tribunal to the Court of Appeal for the District of Columbia, on the narrow grounds that the decision was “consistent with the standards and procedures !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 68  Dworkin, “Why It Was A Great Victory”, (16 July, 2008) New York Review of Books.  69  Dworkin, ibid.  70  Rasul v. Bush, 542 U.S. 466 (2004).  71  Title 28, Part VI, Chapter 153, section 2241.  72  Detainee Treatment Act of 2005 (H.R. 2863, Title X).  73  Section 1005.  !  52  Chapter 2 specified by the Secretary of Defence”, and with the US Constitution, to the extent that it applied. Thus, by early 2006, detainees at Guantanamo seeking habeas corpus were limited to CSRTs, followed by an appeal to a single court in Washington D.C. The validity of the President’s military tribunals for those facing war crimes prosecutions under military tribunals remained unclear. The latter question was addressed in Hamdan v. Rumsfeld (2006),74 which dealt with a challenge to military tribunals brought by a detainee facing prosecution for the crime of conspiring to commit an act of terror against the US. The majority in this case held that Common Article 3 of the Geneva Conventions applied to detainees at Guantanamo, setting out minimal standards the US was obliged to uphold. This included a prohibition on “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”75 The Bush administration’s intended military tribunal scheme contravened Article 3, because it allowed for the admission of any evidence that, in the opinion of the presiding officer, “would have probative value to a reasonable person”; the accused and his counsel could be denied access to evidence; and the accused and his counsel could be excluded from and prevented from ever learning what evidence was presented during any part of the proceeding the presiding officer decides to “close”.76  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 74  Hamdan v. Rumsfeld, 548 U.S. 557 (2006).  75  Common Article 3, section 2(d).  76  Hamdan, supra, note 74, section vi(a)  !  53  Chapter 2 In response, congress passed the Military Commissions Act of 2006.77 This codified a revised scheme for both status review hearings and war crimes prosecutions. Statements obtained through coercive interrogations or torture could be admitted,78 along with secret evidence, and detainees could be excluded from hearings altogether.79 While the validity of the new military commission scheme for those facing prosecution remained unclear — i.e., was it consistent with the Geneva Conventions? — detainees continued to litigate the issue of habeas corpus. In Boumediene v. Bush (2008),80 the court was asked the more expansive question of whether the Constitution’s guarantee of habeas corpus extended to non-citizens held by the US on foreign soil in its permanent control. And if so, was the scheme for review of detentions under the Detainee Treatment Act of 2005 and in the Military Commissions Act of 2006 consistent with this right? The court sided with the detainees, holding that they do have a constitutional right to seek habeas corpus in US federal court, and that the legislative scheme for review under both acts was not an adequate substitute for this. However, the court continued to sanction a form of habeas corpus favourable to the government (more on this below). And, although a series of habeas challenges have since been brought in US federal court, no prisoner has yet gained his freedom from a post-Boumediene habeas challenge. At the time he campaigned for president, Barack Obama expressed the intention to try prisoners at Guantanamo in civilian US courts, for terrorism offences or crimes under the international law of war. In 2009, facing vigorous resistance in congress to holding trials in the United States, Obama reversed course and acquiesced in the plan to !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 77  Public Law 109-366.  78  s. 948r.  79  s. 949.d(3)(f)(B)  80  Boumediene v. Bush 476 F. 3d. 981 (2008).  !  54  Chapter 2 hold trials in military tribunals. In the Military Commissions Act of 2009,81 congress amended the scheme set out in the 2006 MCA, to explicitly rule out the use of evidence obtained by torture or cruel treatment “whether or not under the color of law”, but it continued to allow for the use of hearsay and secret evidence.82 To date, six detainees have been convicted in the military commission regime created by President Bush and continued, in modified form, by Obama.83 A further five are due to be prosecuted, including Abd al Rahim al Nashiri (for his role in the bombing of the USS Cole in Yemen in 2000) and Khalid Shaikh Mohammed (for involvement in 9/11).84 The US is seeking the death penalty in each of these pending cases. Only one detainee, Ahmed Ghailani, has been tried in a civilian court in New York for his involvement in the 1998 bombings of US embassies in Kenya and Tanzania.85 The status of the other remaining Guantanamo detainees (some 165 men) remains unclear. The most recent explanation of the administration’s policy with respect them was set out by President Obama in a May 2009 speech at the National Archives in Washington. He spoke of the detainees as falling into one of four categories. Some of them, he said, would be tried for criminal offences in American courts, for offences committed in the United States (an option since abandoned). Others, detained on battlefields abroad and whose cases concern sensitive evidence, would be tried by military commissions where greater secrecy could be maintained. A third group of some 20 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 81  P.L. 111-84, 2009.  82  Ibid, s. 1802, (4), and (5) and (7)  83  Human Rights First, “Military Commissions,” online: <www.humanrightsfirst.org/our-work/law-andsecurity/military-commissions/>.  84  Reed Brody, “No Real Justice in Guantanamo,” (19 April 2012) Human Rights Watch, online: < http://www.hrw.org/news/2012/04/19/no-real-justice-guantanamo>.  85  The conviction was handed down in November of 2010. See the ACLU press release online: <http://www.aclu.org/national-security/former-guantanamo-detainee-found-guilty-conspiracy-federalcourt-terrorism-trial>.  !  55  Chapter 2 detainees would be released pursuant to habeas challenges (now under appeal, discussed below). A fourth and final group, comprising some 40 to 50 detainees, posed the greatest challenge. These were men who “cannot be prosecuted yet who pose a clear danger to the American people.”86 For persons in this category, there may be no offences against them to prosecute, or no untainted evidence on which to rely. These are people who may have “received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans.” The conundrum for Obama was how to reconcile the indefinite detention of these detainees with the rule of law. Seeking to distinguish his own approach from the overreactive and “ad hoc” approach of the Bush administration, Obama stated that: […] we must recognize that these detention policies cannot be unbounded. They can’t be based simply on what I or the executive branch decide alone. That’s why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. The President sought to clarify these terms in an executive order of March 7, 2011.87 The order sets out a framework for annual review of a detainee’s status, with a range of procedural protections. These include notice of the grounds for continued detention, the assistance of counsel, and the opportunity to make written and oral submissions. However, the information provided to the detainee is still to be limited to an “unclassified summary” of the material on which the person’s detention is based. The board may order !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 86  “Text: Obama’s Speech on National Security” (21 May 2009) The New York Times, online: <http://www.nytimes.com/2009/05/21/us/politics/21obama.text.html>.  87  Section 3, Executive Order 13567, F.R. v. 76, no. 47.  !  56  Chapter 2 the person’s continued detention on the vague standard that it is “necessary to protect against a significant threat to the security of the United States.”88 Thus, in both Obama’s speech, and in his order, the rule of law here is conceived in terms that are compatible with the notion of indefinite detention without charge on secret evidence. As a capstone to this long and tangled history of presidential powers to detain is congress’s endorsement of the President’s March 2011 order in the National Defence Authorization Act of 2012, discussed earlier.89 The order, and the provisions endorsing it, provide a way for detainees to seek periodic review of their detention. But a point of larger significance, noted at the outset of this thesis, is the fact that section 1021 of the Act codifies the president’s authority to indefinitely detain without charge any person – citizen or foreigner – who aided in the 9/11 attacks, or who assists al Qaeda or any “associated forces that are engaged in hostilities against the United States or its coalition partners”.90 This not only tacitly renews the powers of the AUMF, but also considerably extends the possible scope of the president’s detention powers. The PATRIOT Act provides one further notable means for indefinite detention. Section 412 allows the Attorney General of the United States to issue a certificate against an alien where there are “reasonable grounds to believe” that he or she has “engaged in !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 88  Executive order, ibid, section 2.  89  In addition to endorsing the scheme, Section 1023 of the Act requires the administration to issue a report on the implementation of the scheme within 180 days of the enactment of the National Defence Authorization Act, supra, note 36.  90  Section 1021(b)(2), National Defence Authorization Act, supra, note 36. As Glenn Greenwald has noted, both Human Rights Watch and the American Civil Liberties Union observed in mid-December 2011, after Obama indicated a willingness to sign the NDAA into law, that the bill would mark the first time indefinite detention has been entrenched in US law since the Internal Security Act of 1950 – an act that President Truman vetoed on the basis that it would “make a mockery of our Bill of Rights”, and which congress passed by overriding the veto. As Greenwald also notes, the ISA was overturned by the Non-Detention Act of 1971, 18 U.S.C. 4001(a). Glenn Greenwald, “Obama to Sign Indefinite Detention Bill into Law” (15 December 2011) Salon.com; online: <www.salon.com/2011/12/15/obama_to_sign_indefinite_detention_bill_into_law/singleton/>  !  57  Chapter 2 activity that endangers the national security of the United States.”91 Once certified, the Act requires the Attorney General to detain the person. Within 7 days, removal proceedings must be initiated, or the person must be charged with an offence or released. If removal proceedings have been initiated, or the person is charged, they can continue to be detained indefinitely, with review every six months. The person may continue to be held only if the Attorney General, or a court on a habeas corpus petition, finds that “the release of the alien will threaten the national security of the United States or the safety of the community or any person”. David Cole notes that largely in reliance on these provisions, the US government detained at least 5,000 mostly Arab or Muslim foreigners in the two years following 9/11.92 Indefinite detention without charge in Canadian law While Canada opted in the fall of 2001 to send troops to Afghanistan, in support of the US-led mission to defeat the Taliban and hunt down members of al Qaeda, it has not sought to detain terror suspects in a foreign base equivalent to Guantanamo.93 It has, however, employed a set of immigration laws to accomplish an analogous purpose within Canada: to indefinitely detain, without charge, non-citizens suspected of involvement in terror, on secret evidence. The focus of these laws involves a scheme for the issuance of “security certificates,” which act as warrants for the arrest and detention of persons pending their removal from !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 91  PATRIOT Act, P.L. 107-56, 115 Stat. 272 (2001), section 412(a), adding 236A(3)(A) to 8 U.S.C. 1101. The full title of the Act is: “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT).”  92  David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (New York: The New Press, 2003), at 25-6.  93  Canada’s handling of detainees in Afghanistan has been the subject of long-standing controversy, but lies beyond the scope of the present argument for authoritarian legality. In distinction to the measures canvassed here, such transfers have not occurred, explicitly or impliedly, for reasons that fall within a framework of belief about threats to national security and necessary measures.  !  58  Chapter 2 Canada. The certificate regime has been a part of immigration law since the late 1970s. It was added to the Immigration Act in something close to its present form in 1988, and was carried over in substantially the same form in the Immigration and Refugee Protection Act of 2002.94 Although it had been used in various cases prior to 2001, it became an important tool in Canada’s counter-terror policy after 9/11. Between 2000 and 2003, the government issued certificates to arrest five Muslim men believed to be associated with terrorism and has detained them for periods ranging from two to ten years.95 Briefly, during the period when these detentions first occurred, the security certificate regime worked as follows. Section 34 of the Immigration and Refugee Protection Act96 stated that a permanent resident or foreign national is ‘inadmissible’ to Canada “on security grounds” for a number of possible reasons, including “engaging in terrorism,” or being involved with an organization that is engaged in terrorism, or simply “being a danger to the security of Canada”. Section 77 ordered the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, together, to sign a certificate stating that a permanent resident or foreign national is inadmissible to Canada on grounds of “security” or “serious criminality,” among others, and to refer the matter to Federal Court for review. Once signed, the certificate functioned as a warrant for the person’s arrest and detention. A hearing in Federal Court then had to be held within 48 hours of arrest in the case of a permanent resident. For a foreigner, it could be as late as 120 days.97 The question for the court on review of the certificate was whether, “on the basis of the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 94  Kent Roach and Gary Trotter note that as of 2005, Canada had issued 27 security certificates: “Miscarriages of Justice in the War Against Terror” (2005) 109 Penn State Law Review 109, 967.  95  For a discussion of these cases, see Robert Diab, Guantanamo North, supra, note 48, Introduction.  96  Immigration and Refugee Protection Act, S.C. 2001, c. 27.  97  Ibid, the previous section 77.  !  59  Chapter 2 information and evidence available,” it was “reasonable”.98 If it were found reasonable, deportation proceedings would begin. In practice, however, deportations could be deferred indefinitely where there were concerns that detainees would face the risk of torture or death if deported. The process itself placed the detainee at a serious disadvantage. The court could conduct the hearing in camera; prevent the disclosure of information to detainee; consider information or evidence in private (and for up to seven days after the matter has been referred for determination); and could hear all or part of the evidence in the absence of the person named in the certificate.99 The court could receive into evidence “anything that, in the opinion of the judge, is appropriate”. The person named in the certificate was provided only a summary of the information or evidence against them sufficient to “enable them to be reasonably informed of the circumstances giving rise to the certificate” – but excluding anything which, if disclosed, would be “injurious to national security”.100 As Craig Forcese notes, in some cases, the summary provided was “of the most general sort”.101 He also points out that the framework did not call for a “balancing of the secrecy interest against the fair trial imperative” – as does the Canada Evidence Act.102 And where the use of secret evidence did lead to a serious violation of procedural fairness, there was no provision for dismissing the government’s case (as there is in the CEA, with a power to grant a judicial stay in criminal proceedings).103  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 98  Ibid, section 80(1).  99  Ibid, the previous section 78(1).  100  Ibid.  101  Craig Forcese, “Assessing Secrecy Rules” (2009) Institute for Research on Public Policy: Choices, 15:5, at 15.  102  Ibid. See the discussion of section 38 of the CEA below.  103  Ibid.  !  60  Chapter 2 Separately, the five men detained since 2000 brought a number of court challenges to the certificate regime.104 The central question in these cases was whether the scheme violated the detainee’s right in section 9 of the Charter to be free from arbitrary detention, the right in section 12 to be free from cruel and unusual treatment, and the broader and more comprehensive right in section 7 to “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”105 In Re: Charkaoui106 the Federal Court of Appeal upheld the constitutionality of the regime. This decision was appealed to the Supreme Court of Canada, in a case combining the appeals of two other detainees, giving rise to the most significant judicial assessment of the certificate regime to date.107 A unanimous court of nine justices held that the scheme was unconstitutional, but that with a few slight modifications, this could be rectified. First, the regime violated the right against arbitrary detention, because it lacked an immediate initial review in all cases (i.e., sooner than 120 days), and timely reviews thereafter. Second, given the psychological stress caused by indefinite detention without timely review, the framework also violated the right against cruel or unusual treatment. The court suggested that if Parliament amended the scheme to include timelier, periodic reviews, these violations could be remedied. Parliament took up this invitation in Bill C-3 a year later.108  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 104  In addition to Adil Charkaoui, the following have been detained and have launched challenges to various aspects of the security certificate regime: Hassan Almrei, Mohammed Harkat, Mohammad Mahjoub, and Mahmoud Jaballah. See, e.g., Almrei v. Canada (Minister of Citizenship and Immigration) 2005 FCA 54; Harkat v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1104; Canada (Minister of Citizenship and Immigration) v. Mahjoub, 2004 FC 1028; Re: Jaballah 2005 FC 399.  105  Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.  106  Charkaoui (Re) 2004 FCA 421, [2005] 2 F.C.R. 299.  107  Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350.  108  Revisions were included in Bill C-3, An Act to amend the Immigration and Refugee Protection Act, S.C. 2008, c. 3.  !  61  Chapter 2 However, the court also held that the scheme violated section 7 of the Charter because it failed to provide the detained person a fair hearing, as required by “the principles of fundamental justice.” A fair hearing is one that is held before an independent and impartial judge, where a detainee enjoys the right to know the case he has to meet and has an opportunity to respond. In this case, the judge presiding over a certificate hearing maintains independence and impartiality, but because of the provision for the use of secret evidence and in camera hearings that exclude the detainee, the right to know the case and to make full answer and defence is violated. The court recognized the real danger that a judge could decide matters without all of the relevant information, precisely because the detainee was unable to speak to or contradict a point raised by the secret evidence. To satisfy the requirements of section 7, the court held, “either the person must be given the necessary information, or a substantial substitute for that information must be found.” The question, then, was whether a “substantial substitute” could be found. One possibility appealed to the court: the use of “special advocates.” These are lawyers with security clearances who would have access to both the detainee and the secret evidence, on the promise that in the process of obtaining instruction from detainees, they would not divulge the evidence. In this curious position, they should, in theory, still be able to carry out an effective cross-examination of government witnesses. And on this basis, the court found that a regime modified for the use of special advocates would indeed present a “substantial substitute” for full disclosure. Given the availability of this less intrusive way of breaching the right in question, the violation of section 7 here could not be justified as a “reasonable limit” on the rights set out in section 1 of the Charter. In Bill C3, Parliament amended the certificate regime to include the use of special advocates.  !  62  Chapter 2 Yet the decision, and the later amendments to the scheme, give rise to two general concerns. The first is that special advocates alone would not guarantee a fair hearing. The judge could still receive evidence, and hold hearings with respect to it, in the detainee’s absence. Disclosure to the detainee would also continue to be as limited as before — indeed, in Bill C-3 (the act amending the certificate regime), after having seen the secret evidence, a special advocate may not disclose it to the detainee, and may not even speak to the detainee without the court’s approval.109 Commenting on the bill, Craig Forcese writes: A special advocate can never share the secret information with the interested person. Thus, there will never be a case in which that person can inform a special advocate that the government’s chief witness (say, a secret detainee interrogated by an allied intelligence agency) has a personal animus prompting him to fabricate a story. For this reason, issues of credibility – the meat and potatoes of a fair trial – cannot be effectively raised by advocates.110 Forcese also notes that Bill C-3 fails to provide special advocates with a basis on which to “seek and review government records not already disclosed to the court.” Advocates must therefore rely on the government’s own decisions about what may or may not be relevant. This is a significant concern because, as Forcese writes, …what the government considers ‘relevant’ and what a special advocate charged with defending the best interest of the detained person considers ‘relevant’ will not always correspond. This discrepancy of views has arisen in Britain, where the government has sometimes failed to give special advocates relevant (and exculpatory) information. It is also an observation affirmed by the Arar commission experiences: Commission counsel (because they were able to compel everything from the government) found information the government initially had declined to disclose.111 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 109  See Bill C-3, s. 85.2(c). The test for speaking to a detainee after seeing the evidence is whether the court finds it “necessary to protect the interests of the permanent resident or foreign national”. Kent Roach notes: “This in itself is a fairly stringent standard that requires the judge to conclude that the requested power is necessary and not just advisable in order to protect the interests of the non-citizen.” Kent Roach, “Charkaoui and Bill C-3: Some Implications for Anti-Terrorism Policy and Dialogue between Courts and Legislatures” (2008), 42 S.C.L.R. (2d) 281, at 315.  110  Craig Forcese, “Is Bill C-3 the Security Way to Go?” (6 February, 2008) Globe and Mail, A17.  111  Ibid.  !  63  Chapter 2 Forcese also raises the concern that Bill C-3 does not expressly affirm the “ability of the advocate to meet the interested person once the former has seen the secret information.” A judge has the discretion to allow this, but as Forcese points out, a similar provision in Britain has resulted in “little or no contact, hurting the advocate’s effectiveness.”112 Regardless of whether special advocates make the process fairer, a more serious concern remains. The court’s decision in Charkaoui has the effect of deeming the remainder of the scheme constitutional. Thus, with an earlier initial review, followed by periodic reviews, and the use of special advocates, all of the other concerns raised about the scheme have been held consistent with “fundamental justice.” In essence, Charkaoui confirms the constitutional validity a framework allowing for indefinite detention without charge on secret evidence. The amending legislation, Bill C-3, confirms this inference by virtue of the fact that, with one exception, it deals only with the concerns raised by the court in Charkaoui.113 This remains valid law in Canada, with ongoing consequences for the liberty interests of three of the five subjects of the certificates.114  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 112  Ibid. Forcese and Roach have noted that Bill C-3 employs the most restrictive of the options before Parliament in terms of how to craft a scheme for the use of special advocates. Other models, including one employed by Canada’s Security Intelligence Review Committee, allow special counsel the freedom to communicate with clients after having seen secret information (with an obligation to maintain secrecy). As Forcese writes: “for reasons that have never been satisfactorily explained to this author, the government opted for the secrecy-maximizing and fair-trial-minimizing United Kingdom approach.” Craig Forcese, “Assessing Secrecy Rules” (2009) Institute for Research on Public Policy: Choices, 15:5, at 26. See also Kent Roach, “Charkaoui and Bill C-3”, supra, note 109, at 305.  113  Section 83(1.1) of the bill also includes a provision stating that the prohibition in section 269.1 of Criminal Code on the use of evidence obtained by torture or ‘inhuman or degrading treatment’ also applies to security certificate hearings.  114  At present, Mohammad Mahjoub, Mahmoud Jaballah, and Mohamed Harkat remain subject to onerous terms of community supervision as part of their pending security certificates. In a June of 2011 profile of Mahjoub, Sara Falconer writes: “Despite a recent detention review that relaxed his conditions slightly, Mahjoub is still held under surveillance that is completely unprecedented in the judicial system in Canada. He wears a GPS tracking bracelet at all times. A camera outside his door monitors his every move, and he is only permitted to leave the house for four hours a day, and only within a few blocks of his apartment. CSIS monitors every phone call -- in fact, they were caught listening to protected solicitor-client phone calls between Mahjoub and his lawyer, contrary to a court order.” Sara Falconer, “Mohammad Mahjoub: the Life of a Security Certificate Detainee” (June 1, 2011) Rabble.ca, online: <http://rabble.ca/news/2011/06/mohammad-mahjoub-life-security-certificate-detainee>.  !  64  Chapter 2 An important caveat to add to this is that, as Kent Roach has noted,115 the court was not, strictly speaking, passing judgment on the constitutionality of indefinite detention per se. It was asked only whether indefinite detention pending deportation violated the Charter. A more precise reading of the central holding of this decision is that indefinite detention on secret evidence, pending deportation, is constitutional if a special advocate scheme can be employed.116 Torture or cruel and unusual treatment in the American context The Bush administration has continuously denied ever having resorted to torture.117 It has conceded the use of “special” or “enhanced” coercive interrogation methods, or “alternative procedures,” including waterboarding, and has also admitted to the detention of prisoners at “black sites” run by the CIA.118 Yet in each case that the use of these !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 115  Roach, supra, note 94.  116  The court avoided the larger question of indefinite detention per se, but did note in passing that, in an individual case, where a person could not be deported, given the risk of deportation to torture, the prospect of their indefinite detention could be found to violate section 7 or 12 of the Charter. This would, however, remain to be determined on a case by case basis. McLachlin, C.J., at para. 123, Charkaoui, supra, note 107: “I conclude that extended periods of detention pending deportation under the certificate provisions of the IRPA do not violate s. 7 or s. 12 of the Charter, provided that reviewing courts adhere to the guidelines set out above. Thus, the IRPA procedure itself is not unconstitutional on this ground. However, this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice, and therefore infringes the Charter in a manner that is remediable under s. 24(1) of the Charter.”  117  For example, in an interview with the New York Times, in January 2005, Bush stated that “torture is never acceptable, nor do we hand over people to countries that do torture” (cited in Jane Mayer, “Outsourcing Torture: The Secret History of America’s ‘Extraordinary Rendition’ Program” 14 February 2005, The New Yorker). In a speech on September 6, 2006, Bush described the detention and use by the CIA of an “alternative set of procedures” in the interrogation of suspects at prisons in undisclosed places abroad and at Guantanamo. Bush insisted on the need to keep the specifics of the techniques used confidential but affirmed that “the procedures were tough and they were safe and lawful and necessary.” For the text of the speech, see the New York Times online: <http://www.nytimes.com/2006/09/06/washington/06bush_transcript.html?pagewanted=all>  118  In addition to Bush’s speech on Sept 6, 2006, ibid, in February of 2008, CIA Director Michael Hayden confirmed that Guantanamo detainees Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim alNashiri were waterboarded in 2002 and 2003: Associated Press, “White House Defends Use of Waterboarding” 6 February 2008, online: <http://www.msnbc.msn.com/id/23030663/ns/politicswhite_house/t/white-house-defends-use-waterboarding/>. On February 7, 2008, White House spokesman Tony Fratto impliedly conceded the past use of waterboarding by describing it as a legal technique that the President might reauthorize “under certain circumstances”, including when there is a “belief that an attack might be imminent” (cited in Greg Miller, “Waterboarding Is Still An Option” 7 February 2008, Los Angeles  !  65  Chapter 2 measures was conceded, the administration insisted that they never amounted to torture or cruel or unusual treatment.119 President Obama has made numerous pronouncements to the effect that under his administration, the United States does not torture.120 In one sense, then, torture, or cruel and unusual treatment, has played no part in official or explicit US counter terror law or policy after 9/11, and strictly speaking forms no part of an authoritarian legal paradigm. On another reading, however, ample evidence suggests that the United States has resorted to, and continues to resort to, torture or cruel treatment —and that by seeking to inscribe the legality of its conduct through euphemistic phrases and concepts such as “enhanced,” “robust,” or “special” interrogation, its handling of torture and cruel treatment exemplifies authoritarian legality. Evidence of the use of torture by US officials, after 9/11, has been investigated by various rights groups, jurists, and journalists.121 A 2011 report by Human Rights Watch, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Times). In July 2008, Attorney General John Ashcroft affirmed that waterboarding, and other harsh interrogation techniques, had served a “valuable” purpose: CNN, “Ashcroft Defends Waterboarding before House Panel” 17 July 2008, online: <http://articles.cnn.com/2008-0717/politics/ashcroft.waterboarding_1_waterboarding-interrogation-technique-torture?_s=PM:POLITICS>. 119  See, e.g., Bush’s speech in February 2006, and the Hayden and Ashcroft appearances, ibid.  120  See, e.g., Obama’s archive speech, supra, note 86, “I can stand here today, as President of the United States, and say without exception or equivocation that we do not torture…”. See also: “Statement of President Barack Obama on Release of OLC Memos” (Apr. 16, 2009), online: <http://www.whitehouse.gov/the_press_office/Statement-of-President-Barack-Obama-on-Release-of-OLCMemos>; and Obama’s speech in Cairo, “I have unequivocally prohibited the use of torture by the United States...”: online, New York Times 4 June 2009, online: <http://www.nytimes.com/2009/06/04/us/politics/04obama.text.html?pagewanted=all>  121  See, e.g., Human Rights Watch, “Getting Away with Torture: the Bush Administration and Mistreatment of Detainees” July 2011, HRW, online: <http://www.hrw.org/en/node/100262/section/1>; The International Commission of Jurists, “Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism, and Human Rights” February 2009, ICJ, online: <http://ejp.icj.org/IMG/EJP-Report.pdf>; the International Committee of the Red Cross, “Report on the Treatment of Fourteen ‘High Value’ Detainees in CIA Custody”, February 2007, ICRC, online: <http://www.nybooks.com/media/doc/2010/04/22/icrc-report.pdf>; the United Nations’ Commission on Human Rights, “Situation of the Detainees at Guantanamo” February 2006, UNHCR, E/CN.4/2006/120, online: <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G06/112/76/PDF/G0611276.pdf?OpenElement>; Human Rights Watch, “By the Numbers: Findings of the Detainee Abuse and Accountability Project” April 2006, HRW, online: <http://www.hrw.org/en/node/11352/section/1>. See also Mayer, The Dark Side, supra, note 21; Karen Greenberg, The Lease Worst Place: Guantanamo’s First 100 Days (London: Oxford University Press, 2009); and David Cole and Jules Lobel, Less Safe, Less Free, supra, note 47.  !  66  Chapter 2 drawing upon various earlier reports, alleges that “[a]s a direct result of Bush administration decisions, detainees in US custody were beaten, thrown into walls, forced into small boxes, and waterboarded—subjected to mock executions in which they endured the sensation of drowning. Two alleged senior al Qaeda prisoners, Khalid Sheikh Mohammed and Abu Zubaydah, were waterboarded 183 and 83 times respectively.”122 The report also alleges that other techniques used on prisoners at Guantanamo and at sites in Iraq and Afghanistan included “painful ‘stress’ positions; prolonged nudity; sleep, food, and water deprivation; exposure to extreme cold or heat”; and also “beatings, near suffocation, [and] sexual abuse”.123 In a series of memos authored in 2002 and 2003,124 the Bush administration took the position that conduct amounted to torture only if it caused physical pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”125 It also held the view that, given reservations and qualifications with which the United States had agreed to enter into the 1984 UN Convention Against Torture, the President remained free to determine acceptable interrogation techniques, to the limit of those that would “shock the conscience” of a court.126 John Yoo authored a memo in March of 2003 arguing for the legality of dousing a prisoner with “scalding water, corrosive acid, or [a] caustic substance,” or even “slitting an ear, nose, or lip, or disabling a tongue or limb.”127 As late as the spring of 2005, the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 122  Human Rights Watch, “Getting Away with Torture” (2011) supra, note 121, at 4.  123  Ibid.  124  The New York Times provides links to each memo, with a chronology and explanation at: http://www.nytimes.com/ref/international/24MEMO-GUIDE.html.  125  See, ibid, the August 1, 2002 memo from Office of Legal Counsel to Alberto Gonzales, Counsel to the President.  126  See, ibid, the memo of March 14, 2003, from Office of Legal Counsel to William Hanes, General Counsel of the Department of Defence, online: <http://www.aclu.org/pdfs/safefree/yoo_army_torture_memo.pdf>.  127  Mayer, The Dark Side, supra, note 21, at 230.  !  67  Chapter 2 Office of Legal Counsel in the Department of Justice received memos from Steven Bradbury, Assistant Attorney General, purporting to endorse the legality of several techniques and their use simultaneously, including: “waterboarding, head and belly slapping, sensory deprivation, sleep deprivation, temperature extremes, and stress positions”.128 Officials employing these techniques would remain beyond the scope of criminal prosecution, or could avail themselves of the defence of necessity if prosecuted.129 In short, the torture carried out by the Bush administration was either not torture in law, or if indeed it was torture or cruelty in law, it was a justifiable use of the President’s power as Commander in Chief in a time of war. A further aspect of US counter-terror policy that represents a suspension of the right against torture or cruelty is the practice of extraordinary rendition. This involves the kidnapping of suspects and their covert transportation either to third countries for imprisonment, interrogation and torture, or to CIA “black sites” for interrogation and torture by US officials.130 In both cases, all activity unfolds beyond the purview of the law. As Jane Mayer explains, the practice of kidnapping and covert transport has its roots in the Reagan administration, in a program “aimed at a small, discrete set of suspects — people against whom there were outstanding foreign arrest warrants”.131 After 9/11, “the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 128  Ibid, at 309; the memos are available online: <http://www.aclu.org/accountability/olc.html>.  129  Further protections against criminal liability set out in the Detainee Treatment Act of 2005 are explored below.  130  Mayer, The Dark Side, supra, note 21. At 320, Mayers notes that the existence and use of CIA Black sites was first reported in the American press in Dana Priest’s article “CIA Holds Terror Suspects in Secret Prisons” (2 November 2005), Washington Post, online: <http://www.washingtonpost.com/wpdyn/content/article/2005/11/01/AR2005110101644.html>.  131  Mayer, The Dark Side, supra, note 21, at 108. Human Rights Watch, “Getting Away with Torture” (2011) supra, note 121, at 33 to 38, lists a series of cases, including those involving the October 2001 arrest of Australian citizen Mamdouh Habib in Pakistan; the November 2001 arrest of German citizen Muhammad Zammar in Morocco; the December 2001 arrest of Egyptians Ahmed Agiza and Mohammed al-Zari in Stockholm; the November 2003 arrest of Italian citizen Osama Nasr (‘Abu Omar’) in Milan; and the January 2002 arrest of Pakistani citizen Muhammad Madni in Jakarta. See also Leila Sadat, “Extraordinary Rendition, Torture and Other Nightmares from the War on Terror” 75:05/06 George Washington Law Review 105.  !  68  Chapter 2 program expanded beyond recognition”, and would soon include “the wide and illdefined population that the administration terms ‘illegal enemy combatants’.”132 In contrast to extradition, therefore, the rendition program would have the effect “disappearing” detainees into secret CIA sites, or the hands of foreign governments, for torture and lengthy detention. Among the most notorious and well-documented cases of rendition is that involving Canadian citizen Maher Arar. In 2003, CSIS and the RCMP had provided US customs officials with erroneous information that tied Arar to a person of in interest in Montreal. On his return from a family vacation in Tunisia, Arar was detained on a stopover in New York. After holding Arar for 13 days in an immigration detention centre, initially without counsel, then with counsel who was provided almost no information, US authorities rendered Arar to Jordanian custody, who interrogated him, then turned him over to Syria. He was interrogated further, tortured repeatedly, and imprisoned for a year. Months after news of the case had surfaced, Arar continued to languish in a small, damp, windowless, underground cell. Due in large part to the persistent efforts of Arar’s wife, the Canadian government eventually intervened and lobbied for his release. One further case worth noting involved the CIA’s kidnapping of a Muslim cleric, Abu Omar, from Milan in 2003. Upon detaining Omar, CIA operatives flew him from an American air base in Italy to a base in Germany, then to Egypt, where he was tortured and detained for four years. Following his release, the Italian government initiated a prosecution of the CIA base chief in Italy, and 22 others, mostly CIA operatives, on the  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 132  Mayer, The Dark Side, supra, note 21, at 108.  !  69  Chapter 2 charge of kidnapping. A trial in Italy was held with the accused in absentia, and in November of 2009, all were found guilty.133 In August of 2009, officials in the Obama administration confirmed that the United States would continue the practice of rendition, but with greater oversight of interrogations conducted abroad to ensure that detainees were not tortured.134 The policy raises the obvious question of why the US would continue to render suspects to the third countries if not to avoid its obligation to comply with US law. A recent report by The Nation supports this view. It alleges that in July of 2011, the CIA has set up a compound behind the presidential palace in Mogadishu, Somalia, at which it is running a “counterterrorism training program for Somali intelligence agents and operatives aimed at building an indigenous strike force capable of snatch operations and targeted ‘combat’ operations against members of Al Shabab, an Islamic militant group with close ties to Al Qaeda.”135 In the basement of the compound, prisoners are being held who have been “snatched off the streets of Kenya and rendered by plane to Mogadishu.”136 The article also alleges that prisoners are being interrogated and held in small, damp, windowless cells, some for well over a year, and none has been charged with an offence or provided any form of judicial process.  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 133  Rachel Donadio, “Italy Convicts 23 Americans for C.I.A. Renditions” (4 November 2009) New York Times.  134  David Johnson, “U.S. Says Rendition to Continue, but With More Oversight” (24 August, 2009) New York Times.  135  Jeremy Scahill, “The CIA’s Secret Sites in Somalia” (12 July 2011) The Nation, online: <http://www.thenation.com/article/161936/cias-secret-sites-somalia>.  136  Ibid.  !  70  Chapter 2 Torture or cruel and unusual treatment in the Canadian context A significant statement about torture was made in the unanimous 2002 decision of the Supreme Court of Canada in Suresh v. Canada.137 The case concerned Manickavasagam Suresh, a Sri Lankan refugee whom the Canadian Security and Intelligence Service (CSIS) believed to be a member of, and fundraiser for, a group known as the ‘Liberation Tigers of Tamil Eelam.’ The Canadian government believed this group to be involved in terrorism, but also knew that members of the group had been tortured in Sri Lanka.138 Suresh, who was detained on a security certificate in 1995, was awaiting deportation.139 At the review of Suresh’s detention in Federal Court, Justice Teitelbaum found that Suresh had been a member of the Tamil Tigers; the group had been involved in terrorist activities; and some members of the group had been subject to torture by the Sri Lankan government.140 Despite these findings, deportations proceedings followed. The challenge to these proceedings at the Supreme Court of Canada concerned several issues that Suresh raised about the process of arriving at the decision to deport. Among them was the larger constitutional question of whether “returning a refugee to the risk of torture because of security concerns violates the principles of fundamental justice [i.e., section 7 of the Charter] where the deportation is effected for reasons of national security”.141 The court surveyed various international law instruments and treaties to which Canada is a party, including the International Covenant on Civil and Political Rights !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 137  Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3.  138  The Court in Suresh, at paragraph 11, refers to a 2001 report from Amnesty International attesting to the use of torture in Sri Lanka.  139  R.S.C. 1985, c. 1-2.  140  This is noted at paragraph 13 of the Supreme Court of Canada decision; see also the trial decision at (1999), 173 F.T.R. 1.  141  Ibid, para. 49.  !  71  Chapter 2 (1966), and the Convention Against Torture. It held that the court’s interpretation of Charter rights could be guided by these treaties, but was not determined by them. It also acknowledged that international law absolutely prohibited the practice of deporting people to face the risk of torture — a point on which the court below had disagreed. In its conclusions, however, the court introduced a subtle twist in logic: …both domestic and international jurisprudence suggest that torture is so abhorrent that it will almost always be disproportionate to interests on the other side of the balance, even security interests. This suggests that, barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter.142 In other words, although the deportation to torture was generally prohibited under the Charter, it was not absolutely prohibited. Although no explanation was provided for the decision to introduce a measure of executive discretion here, the court sought to confine this discretion to a small ambit of cases, yet to be encountered: We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified, either as a consequence of the balancing process mandated by s. 7 of the Charter or under s. 1. […] the fundamental justice balance under s. 7 of the Charter generally precludes deportation to torture when applied on a case-by-case basis. We may predict that it will rarely be struck in favour of expulsion where there is a serious risk of torture. However, as the matter is one of balance, precise prediction is elusive. The ambit of an exceptional discretion to deport to torture, if any, must await future cases.143 In short, the court held that in some cases, national security will trump a person’s right to be free from torture – and the outcome would still be consistent with the Charter’s guarantee of “fundamental justice”. The Suresh exception was applied by the Federal Court in Nlandu-Nsoki v. Canada (2005),144 suggesting that it may become more than an academic curiosity. Nsoki was a !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 142  Suresh, supra, note 137, at para. 76.  143  Ibid, para. 78.  144  Nlandu-Nsoki v. Canada (Minister of Citizenship and Immigration), 2005 FC 17.  !  72  Chapter 2 refugee claimant from Angola who was found inadmissible to Canada on the basis of his membership in an Angolan terror group. He sought a stay of deportation on the basis of a risk of torture upon his return to Angola. An opinion issued by a “pre-removal riskassessment officer” had concluded that there was in fact a “very serious risk of torture and severe sanctions” if he were returned. Nsoki brought a Charter challenge to the order, which Mr. Justice Shore dismissed, citing Suresh and its holding that deportation could proceed despite the risk of torture in “exceptional circumstances”. A notable fact here is how broadly the exception was conceived. As Shore J. asserted, “In this case exceptional circumstances do exist, namely the need to protect Canada’s security.”145 In support of this, the decision cites a passage in the deportation order noting that the group to which Nsoki is alleged to be involved had tortured and killed unarmed civilians. Although Nsoki denied involvement, the panel had “serious reasons to believe that the claimant was complicit, that he had information and knew the plans of attack.” No further argument was made about the danger he posed to the security of Canada. One further example can be noted of a shift in Canada’s policy in relation to torture. In December of 2010, Public Safety Minister Vic Toews issued a directive (uncovered by the Canadian Press) to the Canadian Security and Intelligence Service.146 In “exceptional circumstances,” its states, CSIS should “share the most complete information available at the time with relevant authorities, including information based on intelligence provided by foreign agencies that may have been derived from the use of torture or mistreatment.”147 Exceptional circumstances include “situations where a  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 145  Ibid, at para. 22.  146  Jim Bronksill, “Ottawa Tells Spies to Use Possible Torture Info in ‘Exceptional’ Cases,” (7 February 2012) The Globe and Mail.  147  Directive, cited in Bronskill, ibid.  !  73  Chapter 2 serious risk to public safety exists, and where lives may be at stake”.148 In such cases, the Minister states, “I expect and thus direct CSIS to make the protection of life and property its overriding priority, and share the necessary information – properly described and qualified – with appropriate authorities.”149 Prior to this directive, the Ministry had taken the position that CSIS should discount any information known to have originated from torture,150 and presumably to resist sharing it. Although this policy shift relates only to the sharing of information in Canada’s possession, the concern, as Alex Neve of Amnesty International Canada has pointed out, is that “as long as torturers continue to find a market for the fruit of their crimes, torture will continue.”151 Targeted killing The practice of targeted killing on the part of the US has roots that extend to at least the early 1960s, with CIA plots to assassinate Cuban leader Fidel Castro, and later plots to assassinate leaders in Vietnam and Chile.152 In the late 1990s, following attacks on US embassies in Kenya and Tanzania, President Clinton approved the use of “lethal force in self defence” against members of al Qaeda in Afghanistan.153 After 9/11, however, President Bush would authorize targeted killing against a wider class of targets, in a range of countries.154 Targets could include US citizens, where, as intelligence officials speaking to the Washington Post explained, there was “strong evidence that an American was  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 148  Ibid.  149  Ibid.  150  Ibid.  151  Cited in Bronskill, ibid.  152  Blum and Heymann, Laws, Outlaws, supra, note 21, at 73.  153  Ibid, at 74.  154  Ibid.  !  74  Chapter 2 involved in organizing and carrying out acts of terrorism against the US”.155 In November of 2002, CIA operatives are alleged to have killed six members of al Qaeda traveling in a vehicle through the Yemeni dessert, including a US citizen whom the CIA knew was in the vehicle.156 Targeting killing using unmanned Predator aircraft continued throughout the Bush administration in Afghanistan, Iraq, Pakistan and Yemen.157 On at least two occasions, Bush administration officials claimed the AUMF as a sufficient legal basis for the practice.158 The Obama administration has not only escalated the use of targeted killing, but also explicitly endorsed the view that American citizens involved in terrorist activity against the US are appropriate targets.159 In 2010, Philip Alston, Special Rapporteur on Extrajudicial Executions, authored a report on targeted killing for the UN Human Rights Council. He articulated a series of concerns raised by the US and other nations engaging in targeted killing as a form of counter-terrorism: [T]he States concerned have often failed to specify the legal justification for their policies, to disclose the safeguards in place to ensure that targeted killings are in fact legal and accurate, or to provide accountability mechanisms for violations. Most troublingly, they have refused to disclose who has been killed, for what reason, and with what collateral  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 155  Dana Priest, “US Military Teams, Intelligence Deeply Involved in Aiding Yemen on Strikes” (27 January 2010) Washington Post, online: <http://www.washingtonpost.com/wpdyn/content/article/2010/01/26/AR2010012604239.html?sid=ST2010012700394>; cited in Blum and Heymann, Laws, Outlaws, supra, note 21, at 74.  156  Priest, ibid.  157  Blum and Heymann, Laws, Outlaws, supra, note 21, at 74.  158  Eban Kaplan, “Q&A: Targeted Killings,” (25 January 2006) New York Times.  159  Dana Priest, supra, note 155.  !  75  Chapter 2 consequences. The result has been the displacement of clear legal standards with a vaguely defined licence to kill, and the creation of a major accountability vacuum.160 Recent cases involving the United States highlight all of these concerns. In 2010, the Washington Post reported that the CIA was targeting at least three American citizens, including Anwar al-Aulaqi, a radicalized imam born in New Mexico then residing in Yemen. Al-Aulaqi was wanted in part due to an alleged link to a military psychologist accused of killing 12 soldiers and a civilian at a base in Fort Hood Texas.161 Seeking to stop the Obama administration from targeting his son, al-Aulaqi’s father filed an action in US federal court.162 In December of 2010, the case was dismissed, for a lack of standing on the father’s part.163 Yet the court noted that the case had raised a host of unresolved issues, including whether the program was unconstitutional where it targeted US citizens (violating the “due process” clause of the 5th Amendment); whether it ought to be subjected to some form of legal process, in the selection of targets and the timing of killings; and whether mechanisms should be provided for compensating the families of the many innocent victims of the drone attacks.164 The targeted killing of Osama bin Laden on May 1, 2011, is perhaps the most notorious example of the practice to date. Bin Laden had been a fugitive of the US justice system since his indictment in 1998 for his involvement in the US embassy bombings in  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 160  Philip Alston, “Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions” (UN General Assembly, Human Rights Council 14th Session) A/HRC/14/24/Add.6 (28 May 2010) para. 1. (I am indebted to Ben Goold, Caitlan Goss, and Liora Lazarus for this source.)  161  Ibid.  162  Charlie Savage, “Suit Over Targeted Killing Is Thrown Out” (7 December 2010) New York Times, online: <http://www.nytimes.com/2010/12/08/world/middleeast/08killing.html>.  163  Nasser Al-Aulaqi v. Obama et al. US District Court for District of Columbia, 2010, online: <http://www.investigativeproject.org/documents/case_docs/1436.pdf>.  164  These issues have provoked considerable debate among legal scholars. See, e.g., chapter 4 of Blum and Heymann, Laws, Outlaws, supra, note 21, and Jeremy Waldron “Targeted Killing” 7 May 2011, LRB Blog, London Review of Books, online: <http://www.lrb.co.uk/blog/2011/05/07/jeremy-waldron/targeted-killing/>.  !  76  Chapter 2 Tanzania and Kenya that year. But after 9/11, one reading of the AUMF would suggest that he had become a legitimate target of assassination. Yet circumstances around bin Laden’s killing, and more recent assassinations involving US citizens have raised significant questions about the necessity or justification for the practice – even on the government’s own terms. For example, there is credible evidence to suggest that bin Laden might have been detained rather than killed, given the limited threat he personally posed to US security forces carrying out the raid on his compound. Thus, when announcing the event at a late-night press conference, the President explained that US agents had located bin Laden, and that he was killed “after a firefight”.165 But administration officials soon offered conflicting accounts, including one suggesting that the firefight in question had taken place earlier in the incident, in an adjacent guesthouse, and did not involve bin Laden.166 When he was killed, bin Laden was alleged to be only “within reach of an assault rifle and pistol.” He may not have been killed, therefore, in an act of self-defence or a necessary use of force on the part of US operatives, but in a deliberate effort to assassinate him.167 This account is not contradicted by the President’s own initial report. Jane Mayer offers a suggestive contrast between the Clinton and Obama approaches to bin Laden that illustrates the shift in legal frameworks. In 1998, prior to bombings of the US embassies in Kenya and Tanzania, CIA officials had approached Janet Reno, Attorney General in the Clinton administration, with a plan to locate bin Laden in Afghanistan and transport him to Egypt for “rough” interrogation that would likely result !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 165  Peter Baker, Helene Cooper and Mark Mazzetti, “Bin Laden is Dead, Obama Says” 1 May 2011, New York Times, online: <http://www.nytimes.com/2011/05/02/world/asia/osama-bin-laden-is-killed.html>.  166  Robert Booth, “The Killing of Osama bin LAden: How the White House Changed Its Story” 4 May 2011, The Guardian, online: <http://www.guardian.co.uk/world/2011/may/04/osama-bin-laden-killing-us-storychange>.  167  See also Yochi Dreazen, Aamer Madhani and Marac Ambinder, “The Goal Was Never to Capture bin Laden,” (4 May 2011) The Atlantic.  !  77  Chapter 2 in his death. Reno is said to have balked at the proposal. Even though evidence of bin Laden’s involvement in attacks on the World Trade Centre in 1993, and on US service men in Somalia in the mid-90s, was well known at the time, in Reno’s view, any operation to capture and remove bin Laden from Afghanistan could only be approved if he were first indicted and the goal of the operation was to bring him to the US to stand trial for criminal offences.168 In contrast to this approach, there has been no discussion on the part of the Obama administration – of an explicit nature – as to why it was necessary to kill rather than capture bin Laden.169 The President’s late-night announcement of the killing as having followed a “fire-fight” suggested a rationale for the killing, but notably, the President did not state this explicitly. A justification was implied here, and in later administration accounts, but not offered. The reasonable inference to draw is that, in the administration’s view, for most Americans, a justification for killing rather than capturing was neither necessary nor expected nor possibly even appropriate. In September of 2011 another important threshold was crossed when the United States carried out drone strikes killing two American citizens, the radical cleric Anwar alAwlaqi, and Samir Khan.170 Following the event, the President described Awlaki as “the leader of external operations for al Qaeda in the Arabian Peninsula” and claimed that he had taken “the lead role in planning and directing the efforts to murder innocent American abroad.”171 He also suggested that Awkali had encouraged or inspired militants in several plots, including the 2009 attempt to blow up a passenger jet flying to Detroit.172 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 168  The Dark Side, supra, note 21, at 38.  169  See Robert Booth, supra, note 166, on the administration’s varying accounts of the deadly force that commandos encountered, which impliedly made the killing necessary.  170  Laura Kasinof, Mark Mazzetti, and Alan Cowell, “U.S.-Born Qaeda Leader Killed in Yemen” (30 September, 2011) The New York Times.  171  Mark Mazzetti, Eric Schmitt, and Robert Worth, “Two-Year Manhunt Led to Killing of Awlaki in Yemen” (20 September, 2011).  172  Ibid.  !  78  Chapter 2 Yet no proof was offered in support of these claims. In addition, as the New York Times has noted, the administration has refused to disclose a memo from the Office of Legal Counsel setting out the President’s purported legal grounding for the authority to include Americans on its list of targets, and its criteria for doing so.173 The paper had earlier reported that officials with access to the memo had explained that it authorized Awlaki’s killing “because he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans”.174 The action was also lawful given the imminent risk posed by the target, on the assumption that imminent risks “could include those by an enemy leader who is in the business of attacking the United States whenever possible, even if he is not in the midst of launching an attack at the precise moment he is located.”175 Samir Kahn was the editor of a radical online news organ and was not explicitly targeted, making his death a collateral casualty.176 Weeks later, in another drone attack Awlaki’s 16-year-old son, Abulrahman, was killed along with eight others.177 The administration has not indicated whom it sought to target in the attack, and initially claimed that Abulrahman was 21 years old at the time.178 The Washington Post soon published the boy’s Colorado birth certificate, dating to 1995.179 Constitutional scholar and journalist Glenn Greenwald has suggested that the failure to disclose the target in this !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 173  Editorial board, “Justifying the Killing of an American” (11 October 2011) The New York Times.  174  Charlie Savage, “Secret U.S. Memo Made Legal Case to Kill a Citizen” (8 October 2011) The New York Times.  175  Ibid.  176  Ibid.  177  Peter Finn and Greg Miller, “Anwar al-Awlaki’s Family Speaks Out Against His Son’s Death in Airstrike” (17 October 2011) The Washington Post.  178  Ibid.  179  Available online, The Washington Post: <http://www.washingtonpost.com/wpsrv/world/documents/abdulrahman-al-awlaki-birth-certificate.html>  !  79  Chapter 2 case indicates at least the possibility that Awlaki’s son was explicitly targeted.180 It also highlights the failure to take accountability for what occurred.  2.3.2 Legislative entrenchment of expanded secrecy and surveillance In addition to a suspension of core human rights, authoritarian legality is marked by the entrenchment of a greater scope for state secrecy and surveillance. Canadian law provides a better example of the former, and American law a better example of the latter. Expanded scope for secrecy and surveillance in US law An early example of the expanded scope of both secrecy and surveillance concerns an order that Attorney General John Ashcroft issued in October of 2001, under a power pursuant to federal legislation governing US prisons and military tribunals.181 The order authorizes the Attorney General to monitor communications between prisoners or detainees and their lawyers that would otherwise be private and subject to attorney and client privilege. The order also allows for monitoring where “reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism”.182 The Attorney General may issue an order for monitoring in a given case without judicial approval, if notice is provided. But with a court’s approval, a client’s communication with his or her counsel could be monitored without either being aware of it. The order has been the subject of considerable  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 180  Glenn Greenwald, “The Killing of Awlaki’s 16-year-old son” (20 October 2011) Salon.com.  181  “National Security; Prevention of Acts of Violence and Terrorism,” 66 Fed. Reg. 55,062 (October 31, 2001), codified at 28 C.F.R. 501.2, 501.3 (2003).  182  Section 501.3(d) of the order, Ibid.  !  80  Chapter 2 opposition from civil liberties groups,183 and has been challenged in two cases,184 but remains in effect. Through other new laws, the US government has expanded the scope of surveillance in ways that are not in themselves inconsistent with an earlier liberal legality, but together suggest a shift toward an authoritarian legal framework. The PATRIOT Act, for example, contains provisions that expand the scope of availability of warrants under both the Foreign Investigation and Surveillance Act of 1978 [“FISA”] and the Wiretap Act of 1968 (“Title III”).185 Prior to the PATRIOT Act, a warrant could be issued under FISA on the lower threshold of probable cause to believe that the target of surveillance is a “foreign power” or an agent of