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Administrative detentions : balancing civil rights and national security Meir, Adiel 2007

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A D M I N I S T R A T I V E D E T E N T I O N S : B A L A N C I N G C I V I L R I G H T S A N D N A T I O N A L S E C U R I T Y by Adie l Meir L L . B . , T h e Hebrew Univers i ty Jerusalem Israel, 1997 A THESIS S U B M I T T E D IN P A R T I A L F U L F I L L M E N T O F T H E R E Q U I R E M E N T S F O R T H E D E G R E E O F M A S T E R O F L A W S in T H E F A C U L T Y O F G R A D U A T E S T U D I E S (Law) T H E U N I V E R S I T Y O F B R I T I S H C O L U M B I A October 2007 © Adiel Meir, 2007 A b s t r a c t In r e s p o n s e to the threat of modern terror ism, democra t i c gove rnmen ts take s teps wh ich curtai l civil r ights, os tens ib ly to protect nat ional secur i ty . Admin is t ra t ive detent ion is one of the more c o m m o n l y taken s teps . Th is paper t races the history of civil l ibert ies and administ rat ive detent ion in Br i ta in, C a n a d a , the Uni ted S ta tes , and Israel and e x a m i n e s why d e m o c r a c i e s d e e m the cont inued u s e of this tool n e c e s s a r y in dea l ing with pe rce ived nat ional secur i ty threats. T h e advan tage of the perspec t ive ga ined f rom histor ical d i s tance , and w a y s in wh ich d e m o c r a c i e s might learn f rom e a c h other 's e x p e r i e n c e s will be exp lo red . T h e first chapter will e x a m i n e e ras in wh ich admin is t ra t ive detent ions have been u s e d , r e a s o n s they we re d e e m e d n e c e s s a r y , w h o m they w e r e u s e d against , and the p rocedures e m p l o y e d in impos ing them. Th i s ref lect ion p rov ides insight into what const i tu tes a true cr is is in the life of a d e m o c r a c y , and w h e n it has been cons ide red appropr ia te to take ext raord inary s t eps to curtai l civil l ibert ies in order to protect a nat ion's democra t i c w a y of life. T h e s e c o n d chapter will su rvey the legal tools u s e d to comba t terror ism by the Uni ted S ta tes fo l lowing the a t tacks of S e p t e m b e r 11 , 2 0 0 1 , a s t hese pertain to detent ion of immigrants , and to the relevant p rov is ions in the Patr iot Ac t . T h e detent ion of non-c i t i zens a s wel l a s A m e r i c a n c i t izens de ta ined and c lass i f ied a s e n e m y comba tan ts , ra ises profoundly important i s s u e s centra l to the m e a n i n g of life under const i tut ional government . 11 T h e third chapte r will highlight Israel, a un ique d e m o c r a c y wh ich has g rapp led with terror ism f rom its very incept ion. T h e m a n n e r in wh ich Israel has u s e d adminis t rat ive detent ions prov ides va luab le l e s s o n s regard ing me thods wh ich work, and me thods wh ich shou ld not be sanc t i oned . T h e fourth chapter will a d d r e s s the use of secur i ty cert i f icates in C a n a d a . A l though C a n a d a ' s recent S u p r e m e Cour t ruling that secur i ty cert i f icates are unconst i tut ional shou ld be l auded , so lu t ions to the i s s u e s ra ised in ba lanc ing individual rights to p rocedura l fa i rness and fundamenta l jus t ice, aga ins t publ ic safety, remain largely unexp lo red . Prac t ica l me thods u s e d by other W e s t e r n d e m o c r a c i e s in o rder to reach a "middle g round" wh ich wou ld afford the de ta inee an appropr ia te m e a s u r e of due p r o c e s s , whi le p reserv ing nat ional secur i ty , will be d i s c u s s e d . 111 T a b l e of C o n t e n t s Abstract • " Table of Contents i v Acknowledgements v i Introduction 1 The Development and History of Habeas Corpus 4 Britain 4 Darnel's Case 5 Habeas corpus Suspension Acts and Martial Law 10 The First World War 11 The Second World War 14 The United States 16 The Civil War 16 The Second World War 20 Canada 21 World War One 21 World War Two 27 The October Crisis 30 Conclusion 32 The American Experience in the Wake of September 11 34 The Guantanamo detainees 34 The Patriot Act 43 Defining Terrorism 45 Alien Detentions and The Patriot Act 48 Clear and Convincing 50 Zadvydas v. Davis $3 The PENTTBOM Investigations 54 Issues of Secret Evidence 59 Military Tribunals 61 Novel Approaches, New Legal Problems: the Zaccarias Moussaoui Case 63 Conclusions 65 Administrative Detention in Israel -69 A Historical Review • 69 The Emergency Powers (Detention) Law of 1979 70 Evidence, Ministerial discretion and the Standard of Proof 73 Administrative Detention and Judicial Review 76 iv Security Certificates in Canada: Balancing civil rights and national security 86 Procedural Process in the Issuance of Security Certificates 89 Stage 1 90 Stage 2 91 Stage 3 '. 92 Stage 4 : 93 Stage 5 95 Standards of Review 96 Diagnosing the Problem and Suggested Solutions 100 Amicus Curiae and special counsel 107 Standard of Proof 114 Thesis Conclusion 118 Bibliography 120 v A c k n o w l e d g e m e n t s T w o peop le d e s e r v e credit for mak ing this comp le ted thes is poss ib le . First ly, I wou ld like to thank Prof. W e s P u e for his gu idance , suppor t and t ime and for mak ing the expe r i ence of writ ing this thes is fulfi l l ing. A n d last but certainly not least I wou ld like to thank my wife K a r e n w h o endured m e throughout the p r o c e s s of writ ing this thes is and prov ided e n d l e s s hours of suppor t , help and mot ivat ion. vi Introduct ion Administrat ive detentions, in various forms, are not new; they have a fairly long history. During the S e c o n d World War , the British government administratively detained considerable numbers of people under Regulat ion 18B of the Emergency Powers (Defence) Act 1939. Ye t even then, in t imes of great crisis, the British Pr ime Minister, Winston Churchi l l , who was , at first, an enthusiast of the extensive use of administrative detention, wrote: The power of the Execut ive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers , is in the highest degree odious and is the foundation of all totalitarian government whether Naz i or Commun is t 1 . To understand why Britain and other democrac ies d e e m the cont inued use of administrative detention necessary in their deal ings with threats such as modern terrorism, one must first investigate the origins of administrat ive detention. How did use of this drastic measure come about? This paper examines the historical roots of civil l iberties and of administrative detention in Eng land , and the modern use of administrative detention and the erosion of civil liberties as tools in the "war on terror" in the United States, C a n a d a and Israel. The advantage of the perspect ive ga ined from historical distance will be shown. W a y s in which modern democrac ies might learn from each other's exper iences will be explored. Quotation from a telegram sent by Winston Churchill from Cairo in 1943 regarding Regulation 18B as cited in W. Brian Simpson, In the Highest Degree Odious: Detention Without Trial in Wartime Britain, (United States: Oxford University Press Inc., 1992) [Simpson]. 1 The first chapter will examine past occas ions on which administrative detentions were used, reasons they were deemed necessary , who they were used against, and the procedures employed in imposing them. T h e following reflection is based primarily on the use of emergency powers in t imes of turmoil in the histories of Britain, the United States, and C a n a d a , and provides insight into what constitutes a crisis in the life of a democracy , and when it has been considered appropriate in the past to take extraordinary s teps to curtail civil liberties in defence of a nation's democrat ic way of life. The Second chapter surveys the tools used to combat terrorism by the United States following the attacks of September 11, 2001. F o c u s will be given to administrative detent ions of immigrants, and on the relevant provisions in the Patriot Act . The detention of non-cit izens as wel l a s Amer i can ci t izens detained and classif ied as enemy combatants, raise profoundly important issues that go to the heart of what it means to live under constitutional government. The third chapter focuses on Israel, which unlike the United States and C a n a d a , has had to grapple with terrorism from its very incept ion. With the advantage of hindsight, an understanding of Israel's use of administrative detentions provides valuable lessons regarding both eff icacy and methods which should not be sanct ioned. The fourth chapter examines the use of security certif icates in C a n a d a . Issues relating to the principles of fundamental justice and procedural fa i rness are examined as these relate to administrative detention. In this context, the Supreme Court of C a n a d a ' s landmark decis ion pertaining to the use of security 2 certificates in this country will be ana lyzed. Whi le the dec is ion d o e s much to promote individual rights, this paper will show how the dec is ion 's impact will be limited at best. The implementation of a number of methods used by other Western democrac ies in an attempt to reach a "middle ground" which would on the one hand afford the detainee the right to an appropriately cal ibrated measure of due process, and at the s a m e time preserve national security, will be suggested. The method most likely to prove the most robust will be one which will alter the burden of proof to that of the "clear and convinc ing" standard of ev idence. 3 The Development and History of Habeas Corpus Britain In early t imes, the Engl ish monarch could detain any subject for any reason. Even the rudimentary civil liberty of protection from arbitrary imprisonment did not exist, until a landmark c a s e in which a handful of individuals fuelled the transformation that produced the legal concept of habeas corpus. In democrat ic countries today, the writ of habeas corpus reflects the foundat ional principle that persons cannot be detained at the whim of the government. Never theless Western democrac ies such as England, C a n a d a , and the United States have enacted legislation a imed at curtailing the writ of habeas corpus under specif ic c i rcumstances. In 1215, feudal lords forced England 's King John to s ign the M a g n a Car ta . Th is document provides the germ of subsequent deve lopments in civil rights in modern democrac ies . Art ic les 38 and 39 of the M a g n a Car ta establ ished the foundation for what are known as "habeas corpus" laws, the Fourth through Eighth Amendmen ts of the United States Consti tut ion, and many due process provis ions 2 . Accord ing to Art ic les 38 and 39 of the Magna Car ta : 38. In future no official shal l p lace a m a n on trial upon his own unsupported statement, without producing credible w i tnesses to the truth of it. 39. No free man shall be se ized or impr isoned, or str ipped of his rights or possess ions , or out lawed or exi led, or depr ived of his standing in any other way, 2 Thorn Hartmann, "First They Came for the Terrorists" (10 January 2005), online: Common Dreams News Center <http://www.commondreams.org/views05/0110-33.htm>. 4 nor will we proceed with force against him, or send others to do so , except by the lawful judgment of his equals or by the law of the land. The Magna Car ta protected only feudal lords, barons, and other "free men" from governmental abuses of power. For another four hundred years, until 1628, the average person could be arbitrarily arrested and impr isoned by royal decree, with no recourse to the cour ts 3 . In the thirteenth century "habeas corpus" (Latin, meaning "produce the body") was a part of the civil procedure, requiring, simply physical ly bringing a defendant before the court 4 . At first, the writ was neither used as a m e a n s to detain, nor associated with the idea of liberty 5. It did not involve the court examining the reason for the detent ion 6 . The transformation of the writ of habeas corpus into a mechan ism for the court 's scrutiny of the reason for an appl icant 's detention, began in c a s e s in the fifteenth and sixteenth centur ies 7 , whereby deta inees by order of the Privy Counc i l used the writ as a means to facilitate their re lease by posting ba i l 8 . Darners C a s e 9 The c a s e of the five knights in 1627 is illustrative. In the words of one of the judges who presided over the case , [it was] "the greatest c a u s e that I ever knew 3 ibid. 4 R. J. Sharpe, The Law of Habeas Corpus, 2 n d ed. (United States: Oxford University Press, 1989) at 2 [Sharpe]. 5 Ibid, at 2-3. 6 Ibid, at 2. 7 Ibid, at 4. 8 Cases collected at Moore K.B. 838 as cited in Sharpe, supra note 4 at 7 footnote 31. 9 Darnel's Case, 3 How. St. Tr. 1 (K.B. 1627). Often referred to as The five Knights' Case [Darnel's Case]. 5 in this court" 1 0 . "The fact that such a dispute could be ra ised on habeas corpus demonstrates that it had truly become. . . the highest remedy in law for any man that is impr isoned" 1 1 . Through this case we begin to s e e an early conceptual change occurring with regard to use of the writ of habeas corpus. A number of subjects who refused to contribute to a forced loan imposed by Char les I were detained "per specia le mandatum domini regis", the true reason for the detention und isc losed. A m o n g the deta inees, f ive petit ioned the court for their re lease by way of habeas corpus, with the crux of the c a s e being whether or not the lack of statement of the reason for the imprisonment empowered the court to bail the appl icants. W a s the court s imply to trust the monarchy 's judgment that cont inued imprisonment was legally justif ied, or did non-disclosure of the grounds for detention entitle the court to bail the pr isoners until trial? What should the role of the courts of common law be when sovere ign power arbitrarily imprisons a s u b j e c t ? 1 2 Despi te the ex is tence of the M a g n a Car ta and of due p rocess provisions in the law, the court refused to bail the prisoners. However, the judges later said that "a further appl icat ion from the same prisoners would have been entertained the next day " 1 3 . In outraged response to the court 's ruling, Par l iament issued a Petition of Right, re-assert ing hitherto unenforced ancient laws regarding forced loans, arbitrary taxation, the imposit ion of martial law, and the speci f ic prohibition ^ Ibid at 31, as cited in Sharpe, supra note 4 at 9-10 footnote 43. Ibid at 95, as cited in Sharpe, supra note 4 at 10 footnote 44. Sharpe, supra, note 4 at 10. 1 3 Darnel's Case', supra note 9 at 160-163, as cited in Sharpe, supra note 4 at 12 footnote 57. 6 of arbitrary impr isonment 1 4 . The principles implicit in c o m m o n law held that the individual had a ' fundamental propriety in his goods and a fundamental liberty of his person ' and this principle was reconci led with the need for taxation by means of the idea of consent in par l iament" 1 5 . T h e s e events illustrate s o m e of the difficulties that necessar i ly ar ise when power is "shared" by two institutions: parl iament and the monarchy. The conflicts which arose were critical in shaping both civil l iberties and future laws curtailing those liberties. Al though Char les I endorsed the Petit ion of Right, he would not allow his powers to be limited by it, and flagrant abuses of power in the form of arbitrary detent ions cont inued. In 1629 the King instructed the S p e a k e r to refuse the demand of severa l members of Parl iament to raise the issue of the collection of tonnage and poundage for debate, a tax which w a s not sanct ioned by Parl iament and was therefore inconsistent with the provis ions of the Petition of R ight 1 6 . The standoff led to the imprisonment of severa l members of Parl iament, who in turn sought habeas corpus. T h e writ w a s returned that they were detained "for notable contempts. . .commit ted against ourself and our government, and for stirring up sedit ion against u s " 1 7 . The King ordered that the pr isoners not be brought before the courts and that the opinion of the judges who were to hear the case be sought prior to the hearing. Sharpe, supra note 4 at 12-13. 1 5 J.W. Gough, Fundamental Law in English Constitutional History, 2 n d ed. (London: Oxford University Press, 1961) at 70 [Gough]. 1 6 David Plant, "King Charles the First and Parliament 1625-29", online: British Civil Wars and Commonwealth website <http://www.british-civil-wars.co.uk/glossary/parliament-1625-29.htm>. Darnel's Case, supra note 9 at 240, as cited in Sharpe, supra note 4 at 14 footnote 65. 7 The judges, however, were eventual ly able to conv ince Char les I that the prisoners should be re leased on the condition that they post bail. S ince the King only agreed on the condit ion that the pr isoners produce suret ies for good behavior (a demand refused by several of them as it was s e e n on their part as an admiss ion of guilt), the imprisonment of severa l members of Par l iament continued for over a decade , until 1640, when Par l iament next c o n v e n e d 1 8 . The Habeas Corpus Act 1640, sought to grant any person impr isoned by the King or Counc i l the right to habeas corpus without delay and the right to be told the reason for their imprisonment. The Act a lso stipulated that a judge,wou ld have to rule with regard to the legality of the detention within three d a y s 1 9 . The reign of Char les I was a time of great constitutional struggle as King and Parl iament fought over how ancient "fundamental laws" should be interpreted 2 0 . The King bel ieved in political absolut ism based on the doctr ine of the divine right of k ings 2 1 while Par l iament, fearing tyrannical despot ism, opposed many of the King's act ions. O n e f lashpoint concerned the imposit ion of taxes, an action for which parl iamentary support was required. Par l iament argued that '"the receiving of tonnage and poundage, and other imposit ions not granted by Par l iament ' . . .was 'a breach of the fundamental liberties of the k ingdom' as 'there ought not any imposit ion to be laid on the goods of merchants. . .wi thout common consent by Ac t of Parl iament ' . Th is , they told the king w a s 'the right and inheritance' of his subjects, ' founded.. .upon the most ancient and original 1 8 Sharpe, supra note 4 at 15. 1 9 Sharpe, supra note 4 at 16. 2 0 Gough, supra note 15 at 2 - 3, 67. 2 1 Gough, supra note 15 at 53. 8 constitution of this kingdom'22. The power struggle between Parliament and the monarchy resulted in two civil wars, and in the eventual trial and execution of Charles I in 164923. Over the next 30 years, Britain was to see the uneven and inconsistent division of power between Parliament in various forms, the military, and the restored monarchy of Charles II. What eventually emerged from this struggle was the "modern doctrine of legislative sovereignty"24. The history of habeas corpus is part and parcel of the larger transformations by which the rule of law was established over the whim of the executive. The Habeas Corpus Act 1640 was not fully effective and was replaced by The Habeas Corpus Act 1679. The new Act, considered among the most important statutes of English constitutional history, sought to ensure that procedural shortcomings would not prevent prisoners from being able to assert their rights under the Act. A prisoner had to be presented with a warrant for his arrest so that he would be informed of the reason for his detention. Furthermore, prisoners could not be jailed where the writ had no standing, and the writ was to be available to the prisoners at any time of year. It could be granted by any court or judge at Westminster. Further, the jailor would have to obey the writ without delay, and judges would have to issue decisions expeditiously. Upon release, a prisoner could not be thrown back into prison25. Although other habeas corpus acts were subsequently passed, it is the Act of 1679, described by Blackstone as Gough, supra note15 at 70 footnote 2. Gough, supra note15 at 80 - 97, 105. Gough, supra note15 at 3, 68. Sharpe, supra note 4 at 19. 9 a "second magna charta, and stable bulwark of our l ibert ies." 2 6 , wh ich bears the greatest constitutional importance, marking the turning point by which the writ took on its modern f o rm 2 7 . Habeas corpus Suspens ion Ac ts and Martial Law The manner in which administrative detentions have been legally imposed and reviewed in Britain has changed over the course of t ime. A m o n g the first forms of legislation explicitly permitting execut ive detent ions are H a b e a s Corpus Suspens ion Ac ts . T h e s e legal ized the incarceration of individuals accused of treason without either bringing them to trial or enabl ing their re lease by posting bail. In effect, there was no suspens ion of the right of habeas corpus per se , rather a suspens ion of s o m e of the rights afforded by m e a n s of the writ of habeas corpus, such a s the right to be tried or re leased without d e l a y 2 8 . T h e last recorded use w a s in Ireland in 1866 and 1 8 6 7 2 9 . Administrat ive detentions could a lso be imposed through the implementation of martial law. Rare ly used , this was last resorted to in Britain in 1 7 8 0 3 0 . Unlike the suspens ion of the writ of habeas corpus, act ions taken under martial law did not require speci f ic legislation. However, in certain instances, Par l iament passed laws confirming these act ions after the fact. T h e problem with martial law w a s *° W. Blackstone, Commentaries on the Laws of England, vol. 1 (Oxford: Clarendon press, 1765) at 133 as cited in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) at 557. 2 7 Sharpe, supra note 4 at 20; http://vvww.answers.com/topic/habeas-corpus-act-1679. 2 8 Sharpe, supra note 4 at 94; Simpson, supra note 1 at 3. 2 9 Sharpe, supra note 4 at 94; Simpson, supra note 1 at 3. 3 0 Clinton L. Rossiter, Constitutional Dictatorship, (Princeton, NJ: Princeton University Press, 1948) at 139 footnote 10 [Rossiter]. 10 that it was neither c lear what powers it actually accorded , nor when those powers could be u s e d 3 1 . The First Wor ld W a r Despite Britain's procla imed commitment to civil l iberties and the centrality of individual f reedom in national mythologies, protections created and celebrated through centur ies of constitutional evolution have proved surprisingly fragile in t imes of cr isis. Par l iament p a s s e d The Defence of the Realm (Consolidation) Act 1914 ("DORA") on Augus t 8, 1914 at the outbreak of Wor ld W a r O n e 3 2 . O n e critic cal led it the "most radical parl iamentary enactment in the history of England" , passed without debate, alteration and or protest 3 3 , the D O R A dec lared that: "His Majesty in counci l has power during the cont inuance of the present war to issue regulations for secur ing the public safety and defence of the realm, and as to the powers and duties for that purpose of the Admiralty and A rmy C o u n c i l " 3 4 . In effect, all of the Uni ted K ingdom was subjected to martial law and full legislative power w a s given to the government 3 5 . Al though Par l iament did not grant the execut ive speci f ic authority to detain or limit the personal f reedom of persons thought to be of danger to the realm, the execut ive secured its own powers in this respect by promulgating regulation 14B under the D O R A 3 6 , which stipulated: 3 1 Simpson, supra note 1 at 3. 3 2 Rossiter, supra note 30 at 153. 33 Ibid. 34 Defence of the Realm (Consolidation) Act 1914 (U.K.), 1914 s.1. 3 5 Rossiter, supra note 30 at 153. 3 6 Sharpe, supra note 4 at 96. 11 Where on the recommendation of a competent naval or military authority, or of one of the Advisory Committees hereinafter mentioned, it appears to the Secretary of State that the securing of the public safety or of the defence of the realm it is expedient in view of the hostile origin or associations of any person that he shall be subjected to such obligations and restrictions as are hereinafter mentioned37. Thus, suspicious individuals could be detained, subjected to restrictions on residence or movement, and/or to mandatory reporting to the police3 8. The new legislation was born out of fear of a concealed "fifth column" of enemy aliens, or of citizens with enemy alien connections. It also addressed the felt need to remedy the problem of the inevitable weakness of the evidence against such persons, a weakness which would almost certainly preclude their conviction in court39. The regulation was designed to cast a net wider than that of the ordinary law. The executive's broad interpretation of the DORA was challenged in R .v. Halliday40 in which a German-born naturalized British citizen was detained as an enemy alien for eighteen months without either trial or the right to challenge his detention41. Halliday argued that the general power to protect the realm could not be used to curtail the liberties of an individual because the internment was ultra vires in the sense that specific provisions for such curtailments were not outlined in the DORA. The argument was rejected by the House of Lords which held that J ' Regulation 14 of the DORA as cited in Simpson, supra note 1 at 12-13. 3 8 Simpson, supra note 1 at 13. 39 Ibid, at 14. 40 R v Halliday, [1917] A.C. 260 (H.L) [Halliday]. 4 1 Lord Phillips, "Address to the Pilgrims of the United Kingdom" (Address delivered to the Magna Carta Trust, November 2003), online: National Society Magna Charta Dames and Barons Web Site < http://www.magnacharta.org/Pilgrims03.htm>. 12 the internment w a s justified given the disproport ionate danger to the public sa fe ty 4 2 . Lord Chance l lo r Finlay wrote for the majority: "it may be necessary in a time of great publ ic danger to entrust great powers to His Majesty in Counc i l and that Parl iament may do so , feel ing certain that s u c h powers will be reasonably exe rc i sed " 4 3 . In a dissent ing opinion Lord S h a w wrote: There is a constructive repeal which has, so far as I a m aware, no parallel in our annals - a getting behind the habeas corpus by an implied but none the less effective repeal of the most famous provis ions of M a g n a Car ta itself...If there be any, my Lords, who in this t ime of storm and stress think these chapters use less reading or their lessons out of date I am not of their number" 4 4 . The use of administrative detentions under D O R A cont inued in mainland Britain until August 31, 1921, as the war was prolonged by legislat ion, with some detention orders executed as late as 1923. Al though passed in an attempt to combat the threat of a G e r m a n "fifth column", D O R A ' s provis ions were a lso used to quell the Irish rebell ion of 1916 4 5 . In all, approximately 30,000 people were detained during the wa r 4 6 . A s stated by S impson : Al l this c o m e s to prove that once government is, for one reason, empowered to bypass the tedious requirements of the rule of law, and lock up its ci t izens without charge, trial, or term set, the temptation to extend the use of s o convenient a power s e e m s to be quite i rresist ible 4 7 . Sharpe, supra note 4 at 96. Halliday, supra note 40 at 268 as cited in supra note 42. Halliday, supra note 40 at 294 as cited in supra note 42. Simpson, supra note 1 at 17. Simpson, supra note 1 at 15. Simpson, supra note 1 at 14. 13 The Second Wor ld W a r W h e n Europe plunged into World W a r for the second time, Parl iament passed the Emergency Powers (Defence) Act 1939 ("The 1939 Act"), which legal ized the detention of individuals whenever such a course "appears to the Secretary of State to be expedient and in the interests of the public safety or the defence of the rea lm" 4 8 . Under Regulat ion 18B (1) of the 1939 Act: If the Secretary of State has reasonable c a u s e to bel ieve any person to be of hostile origin or assoc ia t ions, or to have been recently concerned in acts prejudicial to the public safety or de fence of the realm, or in the preparation or instigation of s u c h acts, and that by reason thereof it is necessary to exerc ise control over him, he may make an order against that person directing him to be detained. The legality of internments under this regulation could not be quest ioned, as it provided "any person detained in pursuance of these Regula t ions shal l be deemed to be in lawful cus tody" 4 9 . However, the 1939 Ac t w a s not a true habeas corpus suspens ion act. Al though the detainee could not appea l to the court regarding the legality of his arrest and detention, he could petition the court for review of his case in order to determine whether the government 's power to detain had been properly e x e r c i s e d 5 0 . Th is determination could be based on one of two interpretations. T h e court could objectively interpret the statute to mean that the proper condit ions for internment in a given c a s e , did in fact exist. Emergency Powers (Defence) Act 1939 (U.K.), s. 1(2)(a). Defence (General) Regulations 1939, s. 18B(8). Sharpe, supra note 4 at 99. 14 Alternatively it could apply a subjective interpretation, meaning that it was enough for the Home Secretary to bel ieve these condit ions to ex is t 5 1 . In at least one c a s e an internee was re leased on grounds of insufficient ev idence to support a detention order 5 2 . By 1942, at the height of the war however, such reviews were effectively halted as a result of two rulings of the House of Lords. In Liversidge v. Anderson53, and Greene v. The Secretary of State for Home Affairs54, the House of Lords ruled that a subject ive power had been intended according to the 1939 Act. Thus , as long as the presumed good faith of the detention order was not countered by ev idence produced by the internee, the validity of the order would not be reviewed. Severa l arguments combined to produce this result. First, the Crown could c la im that the ev idence in support of the Minister 's dec is ion was privi leged and that its d isc losure could not be compel led in court. Furthermore, there was no requirement that the Home Secretary base his decis ion on ev idence of a legally admiss ib le standard. Moreover, an advisory committee was in p lace to review the Minister 's decis ions. These factors coupled with the fact that the power to detain w a s given to a Minister and not to a low ranking official led the court to conc lude that the Secretary 's decis ion was necessar i ly a subjective one, as intended by the 1939 Act, and as such , could not be rev iewed 5 5 . 5 1 Sharpe, supra note 4 at 99 - 100. 52 Ex p. Budd (No. 1) (unreported), cited in Ex p. Budd (No. 2), [1941] 2 All E.R. 749 at 751 cited in Sharpe, supra note 4 at 101 footnote 31. 53 Liversidge v. Anderson, [1942] A.C. 206. Greene v. Secretary of State for Home Affairs, [1942] A.C. 284. Sharpe, supra note 4 at 102-104. 15 Thus , in Britain, the rulings of the judiciary are often reflective of the inf luence of external c i rcumstances such a s war. Whether or not the ruling on the appea l of a detainee falls in his favour may depend less on the merits of his own c a s e than on the prevail ing political c l imate 5 6 . The United States The Civil W a r S o central is H a b e a s Co rpus to the rule of law, that it is the only common law writ to be explicitly ment ioned in the United States Const i tu t ion 5 7 . Art icle 1, Sect ion 9, c lause 2, devoted to the Legislat ive Branch, states that: "The privilege of the Writ of Habeas Corpus shall not be suspended , un less when in C a s e s of Rebel l ion or Invasion the publ ic Safety may require it". The events of Sep tember 11, 2001, however grave, did not threaten the existence of the nation. They led neither to economic co l lapse nor to civil war. The events of the spring of 1861, however, did, caus ing a cr isis which Pau l F inkelman cal led "the greatest the nation has ever f a c e d " 5 8 . Pe rhaps the greatest example of the emergency suspens ion of civil l iberties in Amer i can history was that by Ab raham L inco ln 5 9 . On Apri l 27, 1861, with Cong ress out of sess ion , the government faced a crisis as saboteurs attacked rai lways in order to prevent Northern regiments from reinforcing Wash ing ton . Lincoln responded by 5 6 Sharpe, supra note 4 at 102. 57 Hamdi v. Rumsfeld, 542 U.S. 507 (2004) at 558. 5 8 Paul Finkelman, "Limiting Rights in Times of Crisis: Our Civil War Experience - A History Lesson For A Post-9-11 America" (2003) 2 Cardozo Pub. L. Pol'y & Ethics J. 25 at 33. 5 9 Michael Ignatieff The Lesser Evil: Political Ethics in an Age of Terror, (Princeton, NJ: Princeton University Press, 2004) at 27. 16 authorizing the C o m m a n d i n g Genera l of the United S ta tes Army, Genera l Winfield Scott, to suspend the writ of habeas corpus "at any point or in the vicinity of any military line which is now or which shal l be used between the city of Phi ladelphia and the city of Wash ing ton " 6 0 . A m o n g the most famous arrests w a s that of Lieutenant John Merryman, a wealthy landowner, state legislator, and officer in the Mary land cavalry. Merryman was instrumental in demol ishing a bridge in an attempt to inhibit the movement of Union forces. Ar res ted pursuant to the order of a military officer in Pennsy lvan ia , Mer ryman w a s imprisoned at Fort McHenry , whereupon he petitioned for his re lease by way of a writ of habeas corpus. T h e command ing officer upon whom the habeas corpus w a s served, however, responded that by authority of the President, he could suspend the writ of habeas corpus at his discret ion, and as such , was not obl igated to obey it 6 1. The case , heard by Sup reme Court Chief Just ice Taney , in his capacity as a Circuit Court Judge for the District of Maryland (at the t ime it was customary for Just ices of the Sup reme Court to a lso serve as Circuit Court Judges when the Supreme Court w a s not in s e s s i o n ) 6 2 , became a landmark ruling. Just ice Taney condemned Lincoln 's dec is ion to suspend the writ of H a b e a s corpus stating that the decis ion was unconstitutional, as the Constitution granted that power only to the Congress . Taney w r o t e 6 3 : T h e s e great and fundamental laws. . .have been d isregarded and suspended , like the writ of habeas Rossiter, supra note 30 at 227; Supra note 59 at 34. ^ S u p r a note 58 at 35-36; Ex parte Merryman, 17 F. Cas. 144 (U.S. Court of Appeals 1861) at 6 2 Jeffrey D. Jackson, "The Power to Suspend Habeas Corpus: An Answer from the Arguments Surrounding Ex Parte Merryman" (2004) 34 U. Bait. L. Rev. 11 at 17 footnote 141 Ex parte Merryman, 17 F. Cas. 144 (U.S. Court of Appeals 1861) at 152 17 corpus, by a military order, supported by force of arms. S u c h is the case now before me, and I can only say that if the authority which the constitution has conf ided to the judiciary department and judicial officers, may thus, upon any pretext or under any c i rcumstances, be usurped by the military power, at its discret ion, the people of the United States are no longer living under a government of laws, but every cit izen holds life, liberty and property at the will and p leasure of the army officer in whose military district he may happen to be found. Lincoln ignored the ruling. O n September 24, 1862, in an attempt to "suppress the insurrection existing in the United States" and combat opponents of the draft laws, he issued a proclamation stating: The Writ of H a b e a s Corpus is suspended in respect to all pe rsons arrested, or who are now, or hereafter during the rebell ion shal l be, imprisoned in any fort, camp, arsena l , military prison, or other p lace of conf inement by any military authority or by the sen tence of any Court Martial or Military C o m m i s s i o n 6 4 . A l though C o n g r e s s did ratify the suspens ion of H a b e a s C o r p u s as well as the President 's act ions following from that suspens ion , L incoln s a w this as a mere technical i ty 6 5 . In his v iew it w a s his right and duty in an emergency situation, to defend the Union above all e lse, as without the Union the Constitution would be nothing more than a scrap of p a p e r 6 6 . In his own words: A re all the laws but one to go unexecuted, and the Government itself go to p ieces lest that one be v io lated? Even in such a case , would not the official oath be broken if the Government should be 64 Proclamation Suspending the Writ of Habeas Corpus issued September 24 1862- Rossiter supra note 30 at 235. 6 5 Rossiter, supra note 30 at 236. 6 6 Abraham Lincoln First Inagural Address Monday, March 4, 1861; Rossiter, supra note 30 at 18 overthrown when it was bel ieved to that disregarding the single law would tend to preserve i t ? " 6 7 It w a s not until the end of the Civi l W a r that the United Sta tes Sup reme Court ruled on the suspens ion of H a b e a s Corpus in a landmark ruling which overturned the conviction of Lambdin Mil l igan. Mil l igan (and others), a c c u s e d of traitorous activities, was arrested, tried and convicted by military court, and sentenced to death. The war ended before Mil l igan's execut ion was carr ied out. S ince it was likely that Lincoln, had he not been assass ina ted , would have pardoned Mil l igan, Mill igan appealed his convict ion to the Supreme Cour t 6 8 . In overturning the conviction and ruling that the suspens ion of Habeas Co rpus by President Lincoln was unconstitutional, Just ice David Davis wrote: Th is nation, as exper ience has proved, cannot a lways remain at peace , and has no right to expect that it will a lways have wise and humane rulers, s incerely at tached to the principles of the Consti tut ion. W i c k e d men, ambit ious of power, with hatred of liberty and contempt of law, may fill the place once occup ied by Wash ing ton and Lincoln; and if this right is c o n c e d e d , and the calamit ies of war again befall us, the dangers to human liberty are frightful to contempla te 6 9 . Ironically, L incoln, who directed the most extreme constitutional dictatorship in the United States, is widely regarded as a great man and patriot. The potential exists, for others to exploit the precedent set by L incoln, particularly through Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in 4 Works of Lincoln at 421, 426 as cited in Rossiter, supra note 30 at 229 and supra note 58 at 40 Supra note 58 at 41-2. en 1 Ex parte Milligan, 71 U.S. 2 (1866) at 125. 19 detention without charge or t r ia l 7 0 . Just ice Davis 's words illustrate a concern which is pertinent today perhaps more than ever. The Second Wor ld W a r A modern example of extreme civil liberties infr ingements in Amer i can history occurred during the S e c o n d Wor ld W a r with the m a s s internment of some 110,000 persons of J a p a n e s e origin. Under Execut ive Order 9066, issued by President Rooseve l t in February, 1942, following the J a p a n e s e assaul t on Pear l Harbour authorized: the Secretary of W a r and the Military C o m m a n d e r s whom he may from time to time designate. . . to prescr ibe military areas in such p laces and of such extent as he or the appropriate Military C o m m a n d e r may determine, from which any or all persons may be exc luded, and with respect to which, the right of any person to enter, remain in, or leave shal l be subject to whatever restriction the Secretary of W a r or the appropriate Military Commande r may impose in his d iscre t ion" 7 1 . Publ ic Law 503, passed by Congress on March 21 , 1942, confirmed the Order. In Korematsu v. the United States72, the Sup reme Court found that the President and Cong ress did not go beyond their war powers by implementing exclusion and restricting the rights of Amer icans of J a p a n e s e descent . In a 6-3 decis ion the Court ruled that the internment was not unconstitut ional. In the words of Just ice Black: Rossiter, supra note 30 at 239. 7 1 Executive Order No. 9066 February 19, 1942 Authorizing the Secretary of War to Prescribe Military Areas; Rossiter, supra note 30 at 281. 7 2 323 U.S. 214(1944). 20 we are not unmindful of the hardships imposed by it upon a large group of Amer ican ci t izens. But hardships are part of war, and war is an aggregat ion of hardships. Al l ci t izens alike, both in and out of uniform, feel the impact of war in greater or lesser measure . Ci t izenship has its responsibi l i t ies as well as its privi leges, and in time of war the burden is a lways heavier. Compu lsory exc lus ion of large groups of ci t izens from their homes, except under c i rcumstances of direst emergency and peril, is inconsistent with our bas ic governmental institutions. But when under condit ions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened dange r 7 3 . Like the House of Lords in wartime Britain, the U S S u p r e m e Court was unwilling to constrain the execut ive 's authority, even in the face of gross violation of the most bas ic human rights of a large group of Amer i can ci t izens. Under the guise of protection from "threatened danger", these rights can certainly be violated a g a i n 7 4 . C a n a d a World W a r One With the outbreak of Wor ld W a r One C a n a d a fol lowed the British example. The War Measures Act, 1914, S C . 1915, c. 2 ("The W M A " ) 7 5 passed on Augus t 22 1914, w a s drafted in about 10 days, and sai led through Par l iament with little Korematsu v. the United States, 323 U.S. 214 (1944) at 219-220. Rossiter, supra note 30 at 283. 7 5 James R. Carruthers, "The Great War and Canada's Enemy Alien Policy" (1978) 4 Queen's L J. 43 at 54. 21 opposit ion or scrut iny 7 5 . It gave the government unprecedented power, effectively transferring the role of the legislature to the execu t i ve 7 7 . Government assumed the authority of censorsh ip , suspended habeas corpus in certain c a s e s , and took on extended powers of ar res t 7 8 . Unlike the D O R A which had a provision stating that it would lapse at the end of the war, the W M A had no such provision and was not limited by t ime 7 9 . It w a s up to the government, and not a separa te body, to officially proclaim the end of the crisis, which in turn w a s to signify the W M A ' s off ic ialexpirat ion. The dangers posed by this situation to a free society are clear. A s Carruthers writes: "When the parl iament is ec l ipsed, the press is censored, and the courts are rendered acquiescent , only the guiding hands of the execut ive are left to protect the f reedom of the individual from its own potential abuses of power" 8 0 . By order in counci l p a s s e d on October 28, 1914 pursuant to the authority granted to the government by the W M A , all al iens of "enemy nationality" were subject to registration. Fai lure to register, failure to answer quest ions, or the opinion of the registrar that an enemy alien posed a security threat, all led to detention. Furthermore, an al ien was not permitted to leave C a n a d a unless the registrar was satisf ied that he would be unable to ass is t enemy forces , 0 F.M. Greenwood, "The Drafting and Passage of the War Measures Act in 1914 and 1927: Object Lessons in the Need for Vigilance" in W. Pue and B. Wright, eds., Canadian Perspectives on Law & Society: Issues in Legal History (Ottawa: Carleton University Press, 1988) 291 at 293-295. 77 Supra note 75 at 56; Supra note 76 at 295. 78 Supra note 75 at 56 79 Supra note 76 at 295. 80 Supra note 75 at 56. 22 material ly 8 1 . In all, between the years of 1914 and 1920, 8,579 men were interned, most of them of Ukrainian descent . G e r m a n s , Po les , Italians, Bulgarians, Croat ians, Turks, Serb ians, Hungar ians, Russ ians , Jews , and Romanians were a lso impr isoned 8 2 . It is noteworthy that of the 8,579 men detained only 3,179 were connected with the war effort, the rest being c iv i l ians 8 3 . In 1915, Rudol f Beranek, a German-born British subject by naturalization, detained as an enemy al ien, petitioned the Ontario Sup reme Court for a writ of habeas corpus. In R e B e r a n e k 8 4 the Court examined the language of Sect ion 11 of the W M A which states: No person who is held for deportation under this Ac t or under any regulation made thereunder, or is under arrest or detention as an alien enemy, or upon susp ic ion that he is an alien enemy, or to prevent his departure from C a n a d a , shal l be re leased upon bai l or otherwise d ischarged or tried, without the consent of the Minister of jus t ice 8 5 . The court then ruled: It is quite true that...al l are amenab le to the p rocess of this Court ; but it is equal ly true that, where the law of the land confers upon Court or person any power, this Court has no right to interfere with the exerc ise, in good faith, of that power; it is only when the power so conferred is exceeded that this Court can interfere; un less s o m e right of appea l to it is a lso con fe r red 8 6 . 0 1 P. Peppin, "Emergency Legislation and Rights in Canada: The War Measures Act and Civil Liberties" (1993) 18 Queen's L. J. 129 at 141 [Peppin]. 8 2 Peppin, supra note 81 at 142; Diana Breti, "Canada's Concentration Camps - The War Measures Act" Centre for Education, Law and Society Simon Fraser University (1998), online: BritishColumbia.com <http://www.britishcolumbia.com/general/details.asp?id=44> [Breti]. 8 3 Peppin, supra note 81 at 142. 84 Re Beranek, (1915), 24 C C C . 252 (Ont. H.C.) [Beranek], 8 5 Section 11 of the WMA as cited in Peppin, supra note 82 at 147 footnote 72. 8 6 Beranek, supra note 84 at 253. 23 In choosing to accord deference to the registrar's dec is ion to intern, the Court ruled that: it should be plain to every one that in the st ress and danger to the life of any nation in war, the Cour ts should be exceed ing careful not to hamper the action of those especia l ly charged with the safety of the nation; careful, among other things, not to take up the time and attention of those who should be fighting the enemy in the field, in fighting law suits in the law Courts over private rights. It is not a time when the pr isoner is to have the benefit of the doubt; it is a t ime when, in all things great and smal l , the country must have every possib le advantage; a time when it must be the general safety first in all things a lways; until the final victory is won; even though individuals may suffer meanwhi le. Private wrongs can be righted then: while final defeat would not only prevent that but bring untold disaster to a l l 8 7 . In other words, a sovereign Parl iament granted the Execut ive power to protect the nation. A s such , the court could only intervene in the event that it was convinced that the Execut ive 's use (or misuse) of that power, was not in good faith. In Re Gusetu88, an Austr ian native interned as an enemy al ien petitioned the Court requesting the i ssuance of a writ of habeas corpus so that the cause of his detention could be investigated. The superior Court of Q u e b e c reached a similar conclusion to that reached in Re Beranek, stating: T h e registrar had jurisdiction to intern the petitioner and his judgment as to the necessi ty of the interment is not subject to review by the Cour ts without the consent of the Minister of Jus t i ce 8 9 . 87 Ibid. 89 Re Gusetu, (1915), 24 C C C . 427. Re Gusetu, (1915), 24 C C C 427 at 428. 24 The concept of habeas corpus was raised indirectly when the Sup reme Court of C a n a d a cons idered Re Gray90 in 1918. The petitioner, Gray, who had originally been exempt from military duty, was ordered to report for serv ice due to removal of the exempt ions to the Military Service Act that y e a r 9 1 . Upon refusal, he was arrested by military authorities. Gray asked the Cour t to issue a writ of habeas corpus and order his re lease from the military authorit ies. Gray argued that the government could not override the Military Service Act, 1917, an act of Parl iament, by an order in counci l . In a majority dec is ion the petition for habeas corpus was den ied. The Court examined sect ion 6 of the W M A which states: The Governor- in-Counci l shal l have power to do and authorize such acts and things and to make from time to time such orders and regulations as he may, by reason of the ex is tence of real or apprehended war, d e e m necessary or advisable for the security, defence, peace , order and welfare of C a n a d a 9 2 . T h e Court ruled that the orders in counci l were not ultra vires, in that Parl iament did have the power, as well as the intention, under sect ion 6 of the W M A , to confer except ional powers on the execut ive. T h e Court stated that Parl iament may delegate its powers within reason to the execut ive, although it may not abdicate its functions complete ly . 9 3 . Furthermore, the Court stated that extraordinary t imes demanded extraordinary measures , and as such : At all events all we, as a court of just ice, are concerned with is to satisfy ourselves what powers Re Gray, (1918), 57 S.C.R. 150. Peppin, supra note 81 at 147. Section 11 of the WMA as cited in Re Gray, (1918), 57 S.C.R. 150. Peppin, supra note 81 at 149. 25 Parl iament intended to confer and that it p o s s e s s e d the legislative jurisdiction requisite to confer them. Upon both these points, after giving to them s u c h considerat ion a s has been possib le, I entertain no doubt, and, but for the respect which is due to the contrary opinion held by the majority of the learned judges of the Sup reme Court of Alber ta [Re Lewis (1918), 41 D.L.R. 1], I should add that there is, in my opinion, no room for doubt 9 4 . It should however be noted that there were c a s e s where it w a s ruled that regulations which purported to do away with habeas corpus went beyond the powers of the W M A and thus could not be u s e d 9 5 . In Perlman v. Piche96 the Q u e b e c Super ior Cour t found that execut ive suspens ion of the recourse to habeas corpus was ultra vires because only Par l iament itself was authorized to suspend habeas corpus. In Blanshay v. Piche97 the Q u e b e c Super ior Court found that Re Gray addressed only the Military Service Act and that Par l iament never intended to address the habeas corpus provisions. Moreover , had Parl iament intended to suspend habeas corpus, this mandate would be void s ince only the Imperial Par l iament could suspend habeas corpus under the Colonial Laws Validity A c f 9 8 , wh ich stipulated that where there w a s a conflict between British law and the law of a British colony, the imperial legislation would take p recedence 9 9 . However , the precedent set in R e Gray cont inues to be a defining M4 Re Gray, (1918), 57 S.C.R. 150 at 181-2. 9 5 Peppin, supra note 81 at 151. 96 Perlman v. Pich6, (1918), 57 S.C.R. 150. 97 Blanshay v. Pich6, (1918), 32 C.C:C. 151 (Que. Sup. Ct.). 98 Colonial Laws Validity Act, 1865 (U.K.), 28 & 29 Vict., c. 63. 9 9 L. Kinvin Wroth, "Notes for a Comparative Study of the Origins of Federalism in the United States and Canada" (1998) 15 Ariz. J. Int'l & Comp. Law 93 at 114. 2 6 case with regard to the execut ive 's ability to amend the law in order to curtail an individual's f reedom where Parl iament had not specif ical ly given that author i ty 1 0 0 . World W a r Two The W M A w a s next invoked on September 1, 1939, with the outbreak of World W a r Two. O n Sep tember 3, 1939 the Defence of Canada Regulations 1939 ("The Regulat ions") were enacted pursuant to sect ion 3 of the W M A . A s in World W a r O n e the Regulat ions empowered the execut ive to use preventive detention and to detain enemy al iens in an attempt to protect national secur i t y 1 0 1 . In accordance with Regulat ion 21 : 21(1) The Minister of Just ice, if sat isf ied, that with a v iew to preventing any particular person, from acting in any manner prejudicial to the public safety or the safety of the State it is necessary so to do, may, notwithstanding anything in these Regulat ions, make an order:... (c) directing that he be detained in such p lace, and under such condit ions, a s the Minister of Just ice may from time to time determine; and any person shal l , while detained by virtue of an order made under this paragraph, be deemed to be in legal custody. Regulat ion 22 set up a process by which a detained individual could appear before an advisory commit tee in an attempt to conv ince the Commi t tee to recommend his re lease. The detainee, however, had no a c c e s s to the information which led to his internment. Moreover, the burden of proof was reversed, with the the detainee having to prove that he w a s falsely accused . Peppin, supra note 81 at 151. Peppin, supra note 81 at 156. 27 Further, the Minister w a s under no obligation to accep t the Commit tee 's recommenda t ion 1 0 2 . Like the United States Supreme Court and the House of Lords in Britain, the Canad ian courts were generous in construing the power of the execut ive to intern and to restrict habeas c o r p u s 1 0 3 . The question of detention under regulation 21 arose in Ex parte Sullivan™4. The applicant, detained under susp ic ion of being a member of the Commun is t Party of C a n a d a 1 0 5 , petit ioned the Court for a writ of habeas corpus and for his re lease. The petition was den ied, s ince the Minister's decis ion was in "due form". The Court approved dicta from the judgment in Ronnfeldt v. Phillips: " A war could not be carried on accord ing to the principles of M a g n a C a r t a " 1 0 6 . In Re Carriere™7, the petitioner was detained in order to prevent him "from acting in any manner prejudicial to the Publ ic safety or the safety of the State". The case is remarkable in that the Court ruled that although the W M A and the Regulat ions did not abol ish the right of the Court to issue a writ of habeas corpus, the Court is not empowered to review the discret ion of the Minister of Just ice in issuing a detention order. Thus , even though the Cour t i ssued a writ of habeas corpus, it did not produce the petititioner's intended result. T h e court ruled that it "merely examines if the petitioner is detained by a competent Peppin, supra note 81 at 159. Sharpe, supra note 4 at 106. (1941) 75 C C C . 70(Ont. H.C.). (1941) 75 C C C 70 (Ont. H .C) at 71. (1918), 35 T.L.R. 46 at 47 as cited in Ex parte Sullivan, (1941) 75 C C C 70 (Ont H C ) (1942) 79 C C C 329 (Que. S . C ) . ' 28 authority", and if this is the c a s e then the detention order is val id. The petitioner remained in de ten t ion 1 0 8 . Fearing t reason on the Paci f ic Coas t from f ishermen of J a p a n e s e descent , who had a c c e s s to boats and the means to gather information, the Canad ian Government ordered 23,000 persons of J a p a n e s e ancestry to register. Approximately four months later, and one month after the attack on Pear l Harbour in 1942, Order in Counc i l P . C . 365 was passed on January 16, establ ishing a 100-mile "protected area" along the British Co lumb ia coast. O n February 25, 1942, secret Order in Counc i l P . C . 1486, author ized the Minister of Just ice to order the removal of all J a p a n e s e persons, regardless of ci t izenship, from the "protected a r e a " 1 0 9 . By January 1, 1943, approximately 12,000 of the 16,500 J a p a n e s e residents of British Co lumb ia were interned in camps , their possess ions conf iscated and sold at f ire-sale pr ices in order to generate the funds used to pay for their de ten t ion 1 1 0 . In 1945, the Government passed three orders in counci l seek ing to deport J a p a n e s e persons from C a n a d a 1 1 1 , and des igned to include C a n a d i a n ci t izens of J a p a n e s e origin. Despi te the fact that the war had ended , J a p a n e s e Canad ians could be deported to J a p a n , or could agree to a transfer out of British Co lumbia , east of the R o c k y Mounta ins. Approximately 4 ,000 J a p a n e s e left the country. The orders were contested in Co-operative Committee on Japanese Canadians 108 ibid 1 0 9 Jeffrey T. Grenon, Offensive History and the Good War: The Internment of Japanese Canadians and Japanese Americans in World War II (Master of Arts Thesis, Department of History Queens University, 2001) [Unpublished] at 24, 30 online: < http://www.collectionscanada.ca/obj/s4/f2/dsk3/ftp04/MQ55905.pdf>. 1 1 0 Peppin, supra note 81 at 163; Breti, supra note 82. 1 1 1 P.C. 7355, 7356 and 7357 issued on December 15 1945 as cited in Peppin, supra note 81 at 164 footnote 142. 29 v. Attorney General for Canada112. Al though the Court ruled that the three orders were intra vires and fell within the powers granted to the execut ive by means of the W M A , the deportation was never carried out in full as the Government conceded to public op i n i on 1 1 3 . The October Cr is is In October 1970, cel ls of the Front de Liberation du Q u e b e c ("FLQ") k idnapped the Brit ish Trade Commiss ioner , J a m e s C r o s s , and the Q u e b e c Just ice Minister, P ierre Laporte, in an attempt to advance the cause of Q u e b e c independence. T h e Canad ian Government invoked the W M A on October 16, 1 9 7 0 1 1 4 . The move was supported by a 190-16 vote in the House of C o m m o n s on October 19, 1 9 7 0 1 1 5 . Public Order Regulations 1970, i ssued under the W M A , declared the F L Q an "unlawful associat ion". Detent ions without trial and without bail, for a period no longer than 90 days, were author ized, as were arrests without warrants, and imprisonment without charge for a period no longer than 21 days. A s in the past, the Regulat ions reversed the onus of proof. A person who attended a meet ing of the F L Q , spoke publicly in its support, or communicated statements on behalf of the F L Q was considered to be a member of the F L Q , unless he could produce ev idence to the cont rary 1 1 6 . O n November 2, 1970, the 1 1 2 (1947) 1 D.L.R. 557. 1 1 3 Stephanie D. Bangarth, 'We are not asking you to open wide the gates for Chinese immigration': The Committee for the Repeal of the Chinese Immigration Act and Early Human Rights Activism in Canada (2003) 84:3 Canadian Historical Rev. 395 at 403, 420; Peppin, supra note 81 at 164. 1 1 4 Kevin Sneesby, "National Separation: Canada in Context - A Legal Perspective" (1993) 53 La. L. Rev. 1357 at 1362 - 1363; Peppin, supra note 82 at 177. 1 1 5 Peppin, supra note 81 at 181. 1 1 6 Peppin, supra note 81 at 182-183. 30 Public Order (Temporary Measures) Act replaced the W M A and the Public Order Regulations 1970. Th is regime w a s somewhat less stringent, and w a s limited by a sunset c lause, expiring on Apri l 30, 1 9 7 1 1 1 7 . By March 15, 1971, 465 persons had been arrested under one of either legislated power. 403 were fully re leased and only 18 were convicted of any o f f ence 1 1 8 . By the time of the final repeal of the War Measu res Ac t in 1 9 8 8 1 1 9 , C a n a d a had been intermittently governed under emergency legislat ion for more than 20 y e a r s 1 2 0 . In 1988 the Emergency A c f 1 2 1 replaced the War Measures Act. A m o n g the reasons for this w a s the concern regarding the invocation of the War Measures Act during the October Cr is is . The new Act set out four different types of emergenc ies : publ ic wel fare, publ ic order, international emergenc ies , and war emergency. Speci f ic criteria to be met, for e a c h type of emergency, were ou t l ined 1 2 2 . In addit ion, for the Governor in Counc i l to invoke the Emergency Act, the emergency must be "so ser ious as to be a national e m e r g e n c y " 1 2 3 . The Act stipulates differing orders and regulations which may be invoked by the Governor in Counc i l depend ing on the type of emergency C a n a d a is confronted with. Unlike the War Measures Act which could be invoked at the discretion of the executive, without any interference by the court, the Emergency Ac t requires 1 1 7 Peppin, supra note 81 at 181-184. 1 1 8 Peppin, supra note 81 at 183. 119 Emergencies Act, S C . 1988, c. 29, s. 80, assented to July 21, 1988 as cited in Peppin, supra note 81 at 130-131. 1 2 0 1914-1919, 1939-1945, 1945-1947, 1947-1951, 1951-May 1954, October 1970-December 1970, December 1970-April 1972 see Peppin, supra note 81 at 130. 121 The Emergencies Act, S.C. 1988, C. 29. 1 2 2 Peter Rosenthal, "The New Emergencies Act: Four Times the War Measures Act" (1991) 20 Manitoba L. J. 563 at 564. 123 Ibid, at 573. 31 specif ic criteria for its invocation, an important e lement which opens the door to the possibility of judicial review of the decis ion to invoke it. Further, while the W a r Measures Ac t could only be revoked by agreement of both Houses of Parl iament, the Emergency Ac t could be revoked by either h o u s e 1 2 4 . With this in mind, the Governor in Counc i l would have to carefully cons ider his act ions, invoking the Emergency Act only under the direst of c i rcumstances. Conclusion What can this brief reflection of tumultuous t imes and events in the history of three great democrac ies teach us about the use of emergency powers in general , and about execut ive internments in particular? First, it provides s o m e insight into what constitutes an emergency (or at least a perceived emergency) warranting the use of extraordinary powers. History shows that emergenc ies threaten national ex is tence less often than decis ion makers or members of a public swept away in a tide of panic think. W h e n faced with trying to ba lance national security and civil liberties, governments and ci t izens should be aware of these patterns of over- reach. Moreover, it is "crucial to dist inguish threat assessmen t from moral repulsion, to separate ethical judgment from actuarial estimation of d a n g e r " 1 2 5 . S e c o n d , in all three nations surveyed, legislation originally intended to curtail civil liberties only for the duration of a particular cr isis, has been used (or 1 2 4 Ibid, at 590 - 592. 125 Supra note 59 at 52. 32 misused) long beyond the crisis' duration. It is critically important that the use of such restrictive legislation be limited by sunset c lauses . Third, the resort to emergency powers is often widely supported, and tends to be met with little opposit ion when brought before legislative bodies or judicial review. Courts have repeatedly accorded great deference to the execut ive when asked to review the use of emergency powers. The common feature of emergency legislation is that it seeks to limit or curtail civil l iberties in an attempt to protect the public at large from perceived threats. Understandably, the courts have proven reluctant to interfere with the execut ive 's agenda . G iven all of this, it would be prudent for Wes te rn democrac ies to attempt to predefine, not only what truly constitutes an emergency justifying draconian response, but a lso what abr idgments of civil l iberties should be permitted in such an emergency. Wh i le the need to administratively detain may ar ise, for example , the rule of law requires that the execut ive 's decis ion to detain an individual be subject to judicial review. Further, the detainee should be provided with procedural protections enabl ing him or her to mount a defence. Appropr iate protect ions might include a statutory right of appea l , review of the case on its merits by the courts, a clear and appropriately def ined standard of proof required to detain, and the provision for legal representat ion for deta inees. Apply ing these protections would ensure that the deta inee's petition would not be rejected outright on account of undue deference to execut ive action on the part of the courts. Rather, the outcome would, with greater l ikel ihood, be based on legal arguments, not on the execut ive's political requirements. 33 The American Experience in the Wake of September 11 The horrific events of Sep tember 11 profoundly affected the lives of hundreds of mill ions. The events of that tragic morning continue to resonate for ci t izens of all Western democrac ies . The consequences of the attacks on the Wor ld Trade Center and the Pentagon continue to influence the lives of most Amer icans , regardless of their race or religion, as a result of the act ions taken by the Execut ive in its attempts to confront terrorism's threat. That being sa id , there can be no escap ing the fact that measures hastily implemented in the days following the shocking attacks have affected some much more than others. The Execut ive responded in much the s a m e way a s former administrat ions had confronted earl ier threats. Fol lowing patterns estab l ished at the outbreak of the civil war, and in the aftermath of the attack on Pear l Harbour, the government swiftly enacted legislation and issued President ia l Orders . T h e intent, some would say, was to better meet the newly recognized threats. Others are inclined to emphas ize the propaganda purpose of such measures , quieting an anxious public and creating a sense , largely false though it may be, that something was and is being done to protect them. The Guan tanamo deta inees A week following the 9/11 attacks Congress passed the Authorizat ion of the Use of Military Force ( A U M F ) , a joint resolution authorizing the Pres ident to use "all necessary and appropriate force against those nations, organizat ions, or persons he determines p lanned, authorized, committed or a ided the terrorist 34 attacks.. .or harbored such organizat ions or p e r s o n s " 1 2 6 . O n October 7, 2001 , acting pursuant to this authorization, the President ordered a military attack against the Tal iban rulers of Afghanistan and members of A l Q a e d a who were using that country as a safe h a v e n 1 2 7 . A s early as January 11, 2002, the United States began to transport prisoners caught in Afghanis tan to C a m p X - R a y in Guan tanamo B a y 1 2 8 . Ove r the following months, more pr isoners suspec ted of ties to the Tal iban and/or A l Q a e d a , as well as suspected terrorists from other countr ies, were removed from the "theater of war" and transported to C a m p X - R a y 1 2 9 . A s of June 2004, approximately 640 non-Amer icans captured abroad were detained t he re 1 3 0 . In 2002, Guan tanamo deta inees from various countr ies petit ioned the United States District Court for the District of Co lumbia , by m e a n s of writs of habeas corpus. They chal lenged the legality of their detention, and c la imed that they had not taken part in any terrorist activity against the United S t a t e s 1 3 1 . The deta inees also chal lenged the legality of denial of a c c e s s to counse l , attempts to prevent their a c c e s s to any courts and their continuing detention without being charged with any wrongdoing. The deta inees cla imed that the manner in which they had been detained and their treatment in detention was in c lear violation of the U S Constitution and of international law. Stunningly, the District Court d ismissed all of the petitions on the bas is that it lacked jurisdiction over the U S naval base at 1 2 6 Authorization of Use of Military Force, Public Law 107-40 §§ 1-2, 115 Stat. 224 as cited in Rasul v. Bush, 542 U.S. 466 (2004) at 470. 1 2 7 Michael Ratner, "The Guantanamo Prisoners" in Rachel Meeropol, ed., America's Disappeared (Toronto: Publishers Group Canada, 2005) 31 at 34. 128 Ibid, at 35. 129 Ibid. 130 Rasul v. Bush, 542 U.S. 466 (2004) at 471 [Rasul]. 131 Rasul v. Bush, 215 F. Supp. 2d 55 (D.D.C. 2002). 35 Guantanamo Bay as this w a s not United States soi l . T h e Court of Appea ls affirmed the ru l i ng 1 3 2 . The U.S . Sup reme Court granted certiorari, and in Apri l 2004, Rasul v. Bush133 was argued before the Supreme Court. The quest ion at issue was not the legality of the detentions as such , but the preliminary quest ion of whether or not courts in the United States p o s s e s s jurisdiction to entertain such petitions at all. The Court rendered its decis ion in June 2004 ruling by majority that United States Courts do have jurisdiction to hear the petitions. T h e court rejected the government 's posit ion that the precedent set by the S u p r e m e Court ruling in Johnson v. Eisentrager134 should govern. That c a s e had held that a l iens detained outside the United States are not entitled to habeas corpus. Eisentrager w a s dist inguished on the bas is that the petitioners in Rasul v Bush: are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggress ion against the United States; they have never been afforded a c c e s s to any tr ibunal, much less charged with and convicted of wrongdoing; and for more than two years they have been impr isoned in territory over which the United States exerc ises exc lus ive jurisdiction and con t ro l 1 3 5 . The Court ruled that any detainee held at Guan tanamo Bay, regardless of cit izenship, was entitled to invoke the federal courts ' authority to determine the legality of their detention. T h e Supreme Court remanded the c a s e for Al Odah v. United States, 355 U.S. App. D.C. 189 (D.C. Cir. 2003); Rasul, supra note 130 at 471 -473. 1 3 3 542 U.S. 466 (2004). 1 3 4 339 U.S 763 (1950). 1 3 5 Rasul, supra note 130 at 476. 36 considerat ion of the merits of the detainees' c l a i m s 1 3 6 . In its dec is ion the Court quoted approvingly from its own previous decis ion of a half-century earlier: Execut ive imprisonment has been cons idered oppress ive and lawless s ince John , at Runnymede , p ledged that no free man should be impr isoned, d i s p o s s e s s e d , out lawed, or exi led save by the judgment of his peers or by the law of the land. T h e judges of Eng land developed the writ of habeas corpus largely to preserve these immunit ies from execut ive restraint 1 Rasul v. Bush is cons idered by many legal scholars to be "the most important civil rights case in half a century" 1 3 8 , effectively "opening the courthouse door" so that the courts may determine the legality of each individual de ten t ion 1 3 9 . Al though the Cour t ruled that deta inees may bring their c a s e s before the Federa l Courts, the Deputy Secretary of Defense immediately took measu res to forestall this outcome, by issuing an order establ ishing military combatant status review t r ibuna ls 1 4 0 in which deta inees can chal lenge their status as "enemy combatants". Wh i le deta inees deemed "enemy combatants" by the military tribunals may appea l the designat ion in District Cour ts , the government has succeeded in greatly retarding the appeal p r o c e s s 1 4 1 . ' J b Rasul, supra note 130 at 485. 137 Shaughnessy v. United States ex ret. Mezei, 345 U.S. 206 (1953) at 218 - 219 as cited in Rasul, supra note 130 at 474. 1 3 8 David McKay Wilson, "Barbara Olshansky '85: Public Interest Lawyer of the Year" Stanford Lawyer 40:74 (Winter 2006) 6, online: < http://www.law.stanford.edu/publications/lawyer/issues/74/sl74_articles.pdf>; also as written in the New York Times and cited in supra note 127 at 54. 139 Supra note 127 at 55. 1 4 0 Order Establishing Combatant Status Review Tribunal, 7 July, 2004, online: Department of Defense, <http://www.dod.gov/news/Jul2004/d20040707review.pdf>. 1 4 1 David D. Carson & Caron & David L. Sloss, eds., Availability of U.S. courts to detainees at Guantanamo Bay Naval Base - reach of habeus corpus - executive power in war on terror (2004 98 A.J.I.L. 788 at 792-793. 37 By s idestepping the Sup reme Court 's dec is ion, the government has produced a legal quagmire. T h e lower courts have reached conflicting verdicts on whether al iens held at Guan tanamo Bay may invoke the Due P r o c e s s c lause of the Fifth Amendmen t to attack the military tribunals to which they are subjected. Whi le in Khalid v. Bush142, the District Court for the District of Co lumb ia accepted the government 's c la im that al ien detainees "lack judicial ly enforceable rights", in Re Guantanamo Detainee CasesU3, the s a m e court ruled that due process protections do indeed extend to Guan tanamo Bay pr isoners and that the military combatant status review tribunals did not satisfy due process requ i rements 1 4 4 . Even Amer i can ci t izens are afforded no greater due p rocess rights, nor constitutional protections. A landmark decis ion in the ongoing struggle to find middle ground between civil liberties and national securi ty is the c a s e of Hamdi v. Rumsfeld™5. Y a s e r Hamdi was captured in Afghanis tan and subsequent ly transferred to Guan tanamo Bay in January, 2002. In Apr i l of that year, upon learning that Hamdi w a s an Amer i can cit izen, he was transferred to a military prison in the United States. The government contended that, though an Amer ican cit izen, Hamdi w a s an "enemy combatant", and, thus, that it had the authority to detain him indefinitely with no need to file any formal charges. In June, 2002, Hamdi 's father petitioned the court on his son 's behalf, for a writ of habeas corpus, stating that his son 's indefinite detent ion without charge M 3 Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005). 143 In Re Guantanamo Detainee Cases, 355 F. Supp. 2d 443 (D.D.C. 2005). 1 4 4 Norman C. Bay, "Executive Power and the War on Terror" (2005) 83 Denv U L Rev 335 at 365 footnotes 226 and 227. 1 4 5 542 U.S. 507 (2004) [Hamdi]. 3 8 and without a c c e s s to counse l , violated his rights under the Fifth and Fourteenth A m e n d m e n t s 1 4 6 to the Consti tut ion. The District Cour t ordered the government to produce a number of documents relevant to its review of the mat ter 1 4 7 . The government appea led. The Fourth Circuit Court reversed the order, ruling that as "it was 'undisputed that Hamdi was captured in a foreign theater of conflict,' no factual inquiry or evidentiary hearing al lowing Hamdi to be heard or rebut the Government 's assert ions was necessary or p roper " 1 4 8 . The Fourth Circuit Court d ismissed the habeas corpus petition determining that it was within the Pres ident 's war powers to order Hamdi 's detention based on the A U M F 1 4 9 . The Fourth Circuit Court a lso rejected Hamdi 's argument that there was no legal foundation for his classif ication and detention as an enemy combatant and the deprivation of his due process rights to which he is entitled as an Amer i can ci t izen, ruling that "[o]ne who takes up arms against the United States in a foreign theater of war, regardless of his ci t izenship, may properly be designated an enemy combatant and treated as s u c h " 1 5 0 . 1 , 0 Fifth Amendment: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation"; Fourteenth Amendment: "...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws...". 147 Hamdi v. Rumsfeld, 243 F. Supp. 2d 527 (D. Va. 2002). 148 Hamdi v. Rumsfeld, 316 F. 3d 450 (4 t h Cir. 2003) at 459 as cited in Hamdi, supra note 142 at 514. 149 Ibid, at 467-468. 150 Ibid, at 475 as cited in Hamdi, supra note 145 at 516. 39 The Sup reme Court addressed the question of whether the Execut ive had the authority to detain ci t izens labeled as "enemy combatants" . Al though the government had never provided speci f ic criteria defining "enemy combatant", it had made c lear that the individual in quest ion w a s al legedly "part of or supporting forces hostile to the United States or coalition partners" in Afghanis tan "who engaged in armed conflict against the United States". The Court accordingly limited itself to deciding whether or not an individual falling within that definition could be detained, and conc luded that the A U M F provided the Execut ive with the authority necessary to detain such individual "enemy combatants" for the duration of the conf l ic t 1 5 1 . Cons ider ing Hamdi ' s due process rights, the court ruled, in v iew of the possibility of his indefinite detention, that he should be afforded a fair opportunity to rebut the government 's assert ion that he is an "enemy combatant" before a "neutral decis ion-maker" . The Court a lso stated that the "proceedings may be tailored to alleviate their uncommon potential to burden the Execut ive at a time of ongoing military conflict. Hearsay, for example may need to be accepted as the most reliable avai lable ev idence from the Government in s u c h a p roceed ing " 1 5 2 . Moreover, g iven the extraordinary c i rcumstances at issue, it held that the "constitution would not be offended by a presumption in favor of the government 's ev idence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were p rov ided" 1 5 3 . 1 5 1 Hamdi, supra note 145 at 517-518. 1 5 2 Ibid, at 533 - 534. 153 Ibid. 40 B e c a u s e the "neutral dec is ion-maker" need not be a Federa l Court, the government could force Amer i can cit izens, as well as al iens, to petition military combatant status review tribunals to chal lenge their "enemy combatant" s ta tus 1 5 4 . The Hamdi c a s e points to the government 's fear of attempting to try suspected terrorists in court. Fear ing Hamdi 's c a s e would be heard in court, the government started to negotiate Hamdi 's re lease shortly after the Sup reme Court ruling. In October 2004 Hamd i was re leased to Saud i A rab ia condit ioned on renouncing his U .S . ci t izenship and certain other travel res t r ic t ions 1 5 5 . Whi le it is possible that the government feared the d isc losure of sensi t ive intell igence information as a consequence of legal proceedings, others c la im that "the government wanted to avoid a Hamdi trial b e c a u s e of the potential embarrassment of admitting that its ev idence against him w a s inadequate. Not only that, but this precedent would undermine its credibility in future c a s e s , such as those of the Guan tanamo pr i soners " 1 5 6 . Regard less , the fact remains that, "it's quite something for the government to declare this person one of the worst of the worst, hold him for a lmost three years and then, when they're told by the Supreme Court to give him a fair hearing, turn around and give u p " 1 5 7 . The only other Amer i can cit izen to be labeled an "enemy combatant" s ince 9/11 is J o s e Padi l la . Padi l la was arrested on May 8, 2002, under a material witness warrant, upon arrival at O 'Hare Airport on a flight f rom India. He was 1 5 4 Barbara Olshansky, "What Does It Mean To Be An Enemy Combatant" in Rachel Meeropol, ed., America's Disappeared (Toronto: Publishers Group Canada, 2005) 179 at 204. 1 5 5 Phil Hirschkorn and Nic Robertson "Hamdi voices innocence, joy about reunion" Cnn.com (14 October 2004), online: Cnn.com <http://www.cnn.com/2004AA/ORLD/meast/10/14/hamdi/>. 1 5 6 Yonatan Lupu "Missed Trial" The Newrepublic Online (27 September 2004), online: The Newrepublis Online < http://www.tnr.com/doc.mhtml?i=express&s=lupu092704>. 157 Ibid. 41 detained for severa l weeks before his attorney filed a motion seek ing his re lease, arguing that material w i tnesses could not be lawfully deta ined. A court ruling on the petition was schedu led for June 11, 2002. O n J u n e 9, President Bush declared, based on hearsay ev idence, that Padi l la w a s an "enemy combatant" and ordered him detained in a military compound, al leging "Padi l la f lew to the United States on an al Q a e d a scouting miss ion to detonate a radioactive 'dirty b o m b ' " 1 5 8 . Padi l la petitioned the Supreme Court for a writ of habeas corpus claiming that he w a s unlawfully deta ined. Al though the Sup reme Cour t agreed to hear the case , it d ismissed Padi l la 's petition, by majority dec is ion, without address ing the merits of the case . It did so , on purely technical grounds, ruling that Padi l la had not named the proper authority in his habeas corpus pet i t ion 1 5 9 . The ruling in effect forced Padi l la to re-file his petition, delaying the Court 's examinat ion of the merits of the case , whi le Padi l la remained in custody. Finally, on November 22, 2005, three years after his arrest, Attorney Genera l Alberto G o n z a l e s announced that Padi l la would be indicted and charged with "providing - and conspir ing to provide - material support to terrorists, and conspir ing to murder individuals who are o v e r s e a s " 1 6 0 . Unl ike Pad i l la and Hamdi , John Wa lker L indh, an Amer i can accused of fighting a longside the Tal iban, was not detained in a military installation. Lindh 1 5 8 "Feds defend incarceration of 'dirty bomb' suspect" Cnn.com (27 June 2002), online: Cnn.com < http://archives.cnn.com/2002/LAW/06/27/dirty.bomb.suspect/>: Supra note 154 at 184-5. 159 Rumsfeld v. Padilla, 542 U.S. 426. 1 6 0 Prepared Remarks of Attorney General Alberto R. Gonzales at the Press Conference Regarding the Indictment of Jose Padilla Washington D.C, November 22, 2005, online: <http://www.usdoj.gov/ag/speeches/2005/ag_speech_051122.html>. 4 2 was charged in a civil ian court on criminal charges, with all the due process rights that involves, and w a s eventual ly convicted a s a result of a p lea bargain (the government again avo ided having to reveal its ev idence or investigation techniques). W h y did Hamdi and Lindh, apparently caught in similar c i rcumstances, receive such differing treatments? S o m e argue that "the decis ion to treat them s o differently... indicates the presence not only of wholly unfettered discretion but a lso the arbitrary exerc ise of such d isc re t ion" 1 6 1 . Others claim that "the only factors that s e e m to distinguish the two c a s e s are race and national origin The Patriot Ac t The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001163, better known by its Orwell ian acronym, "The Patriot Act" ("The Patriot Act") w a s not the first U S attempt to codify anti terrorism legislation in the w a k e of a terrorist attack. Following the Apri l 19, 1995 attack on the Alfred P. Murrah Federa l Building in Ok lahoma City, the Antiterrorism and Effective Death Penalty Act of 1996164 ( A E D P A ) was s igned into law by Pres ident Cl inton on Apr i l 24 , 1996. Al though the Ok lahoma City attack w a s carried out by an Amer i can cit izen, it raised Amer ican public awareness vis-a-vis possib le terrorist at tacks from outside as Supra note 154 at 192. 1 6 2 John Lichtenthal, "The Patriot Act and Bush's Military Tribunals: Effective Enforcement or Attacks on Civil Liberties?" (2004)10 Buff. Hum. Rts. L. Rev. 399 at 415 footnote 100 Pub. L. No. 107-56, 115 Stat. 272. 1 6 4 Pub. L. No. 104-132, 110 Stat. 1214. 43 well as from within. A s such , in the same year, the Illegal Immigration Reform and Immigrant Responsibility Act of1996165 (IIRIRA) w a s p a s s e d . These two acts provided the Execut ive with the m e a n s to introduce secret ev idence in deportation hear ings against suspected al ien terrorists, and to impose mandatory detent ions, on a wider range of non-ci t izen immigrants on various grounds. Furthermore, these two acts significantly curtai led the ability of the courts to review immigration d e c i s i o n s 1 6 6 . In contrast to what many bel ieve, the Patriot A c t w a s not born a s a result of the catastrophic attacks of 9/11, the groundwork having been laid well in advance. Al though it was evident that the Patriot Act severe ly infringed on many civil liberties, the Execut ive opportunistically se ized the opportunity 9/11 provided to push C o n g r e s s to authorize it, using its Orwel l ian title to obscure the extent of its deviation from traditional U S values. Not wanting to appear less than patriotic, Congress and the Sena te passed the bill within six weeks (a good dea l less time than Cong ress spends reviewing legislation with no constitut ional implications), with no real del iberative process . There is ev idence to suggest that many 1 6 8 Pub. L. No. 104-208, 110 Stat. 3009 - 546. 1 6 5 Dana Keith, "In the Name of National Security or Insecurity?: The Potential Indefinite Detention of Noncitizen" (2004) 6 Fla. J. Int'l L. 405 at 420-421 [Fla. J. Infl L.]; Harvard Law Review, "Plight of the Tempest-Tost: Indefinite detention of Deportable Aliens" (2002) 115 Harv. L. Rev. 1915 at 1920; Jennifer C. Evans, "Hijacking Civil Liberties: The USA Patriot Act of 2001" (2002) 33 Loy. U. Chi. L.J. 933 at 958-959 footnotes 166 and 167; David Cole, "No Clear Statement: An Argument for Preserving Judicial Review of Removal Decisions" (1998) 12 Geo. Immigr. L.J. 427 at 427. 44 legislators did not even have the chance to study the law before its enac tmen t 1 6 7 . On October 26, 2001 , the Patriot Act was s igned into l a w 1 6 8 . The Patriot Act dramatical ly increased the powers of the Execut ive, and diminished the s c o p e of judicial review of Execut ive act ion. T h e authority of the Execut ive to use survei l lance techniques such a s wire tapping and the interception of electronic communicat ions has been expanded . The Patriot Act also enab les increased shar ing of information between government agenc ies . Under sect ion 802, the definition of the federal cr ime of terrorism is expanded to include "domest ic terrorism": "acts dangerous to human life that are a violation of the criminal laws" if they "appear intended to influence the policy of a government by intimidation or coerc ion" and occur, primarily, in the United States. Although intended as a means to give the government greater flexibility in investigation and prosecut ion of violent political organizat ions, the definition has been criticized as being so broad as to even include act ions of "radical env i ronmenta l is ts" 1 6 9 . Defining Terror ism Perhaps one of the most problematic changes brought about by the Act is the manner in which a "terrorist organizat ion" is def ined, and the implications of being affiliated with such an organizat ion. Prior to the Ac t ' s enactment, a group 1 6 7 Robert A. Levy, "Cato Handbook for Congress: Policy Recommendations for the 108 t h Congress", Cato Institute Washington D.C. at 118. 1 6 8 Rachel Meeropol, "Introduction" in Rachel Meeropol, ed., America's Disappeared (Toronto: Publishers Group Canada, 2005) 11 at 14-15. 1 6 9 Section 802 of the Patriot Act as cited in Lisa Finnegan Abdolian & Harold Takooshian, "The USA Patriot Act: Civil Liberties, the Media, and Public Opinion" (2003) 30 Fordham Urb. L.J. 1429 at 1430; Supra note 168 at 15-16. 45 would be classi f ied by the Secretary of State as a "foreign terrorist organizat ion" in accordance with sect ion 219 of the Immigration and Nationality Act ( INA) 1 7 0 , if that group engaged in terrorist act iv i ty 1 7 1 or te r ro r i sm 1 7 2 and if the group's act ions were thought to threaten the security of United States nationals or the national security of the United States. Sect ion 219 stipulates that notice must be given to congress ional leaders seven days prior to making such a designat ion and designat ions are required to be publ ished in the Federa l Reg i s t ra r 1 7 3 . Whi le the U S Patriot Act retains the provisions outl ined in sect ion 219, it a lso specif ies two more ways in which a group could be categor ized as a "terrorist organization", without reference to classif ication as foreign or domest ic . First, the Secretary of State in consultat ion with, or upon request of the Attorney Genera l or the Secretary of Homeland Security, can make such a designat ion if they find that the organizat ion commits, or incites to commit an act intended to cause death or ser ious bodily injury, and/or to prepare or plan terrorist activity, to gather information on potential targets for terrorist activity or to solicit funds for a terrorist organization or act iv i ty 1 7 4 . The designat ion would be effective upon publication in the Federa l Reg i s t ra r 1 7 5 . S e c o n d , the Ac t \de te rm ines that any group of two or more individuals, organized or not, who engage in the abovement ioned activities may a lso be 1 7 0 codified as amended at 8 U.S.C. 1189 (2001). 1 7 1 as defined in section 212(a)(3)(B) of the Immigration and Nationality Act, codified as 8 USCS § 1182(a)(3)(B). as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (22 U.S.C. 2656f(d)(2)). 1 7 3 Shirin Sinnar, "Patriotic or Unconstitutional? The Mandatory Detention of Aliens Under the USA Patriot Act" (2003) 55 Stan. L. Rev. 1419 at 1423 [55 Stan. L. Rev.]. 1 7 4 Section 411 USA Patriot Act, 8 U.S.C. 1182 (a)(3) (2001) as cited in supra note 173 at 1423. 175 Supra note 173 at 1423. 46 defined as a terrorist organizat ion. The new category carr ies with it dire consequences . A n y non-ci t izen who is a member of a "terrorist organization", designated or undesignated, or endorses such an organizat ion is inadmissible and/or depor tab le 1 7 6 . The creation of the new category of undesignated terrorist organization imposes guilt by associat ion on non-ci t izens as it greatly increases the pool of potentially deportable "terrorist organization members" . Sect ion 411 of the Patriot Act imposes on the non-cit izen who sol ici ted membersh ip or funds for the undesignated organizat ion, the onus of "demonstrat[ing] that he did not know, and should not have reasonably known, that the act would further the organization's terrorist act iv i ty" 1 7 7 . The Patriot Act a lso broadens the term "terrorist activity" to include any cr ime in which a weapon or dangerous device was used (other than for mere personal monetary gain). Th is definition is particularly problematic, a s it e n c o m p a s s e s cr imes which may or may not be politically motivated. Furthermore, the Patriot Act decrees that its provisions are retroactive, which s u c c e e d s in "vastly expanding the c lass of nonci t izens that can be removed on terrorist g rounds " 1 7 8 . Moreover, the breadth of the definitions of "terrorist organizat ion" and "terrorist activity" force a direct conflict with a non-cit izen's rights a s set out in the Amendments to the U S Const i tu t ion 1 7 9 . For example, it may be argued that s ince solicitation of funds for a "terrorist organizat ion" now falls under the rubric of Supra note 173 at 1423 - 1424. 1 7 7 Fla. J. Int'l L, supra note 166 at 435. 178 Ibid. 179 Aliens residing in the United States are protected by the First, Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution. See The Harvard Law Review Association 1997, "Foreign Campaign Contributions and the First Amendment" (1997) 110 Harv. L. Rev. 1886 at 1896 47 "terrorist activity" punishable by detention and/or deportat ion, here the Patriot Act could infringe on the non-cit izen's f reedom of express ion, previously protected by the First A m e n d m e n t 1 8 0 . Ci t izens, on the other hand, are treated differently. They have a constitutional right to endorse a terrorist organizat ion's activity, so long as their s p e e c h is not intended and is unlikely to produce imminent lawless a c t i o n 1 8 1 . Nonethe less, cit izens, like non-ci t izens lose in that the Patriot Act d imin ishes the spirit of public debate and political f r e e d o m 1 8 2 . Al ien Detentions and T h e Patriot Ac t Sect ion 412 speci f ies and expands the ability of the Attorney Genera l to detain non-cit izens suspected of terrorism. Under this sect ion the Attorney Genera l may detain a non citizen without a hear ing, if he has " reasonable grounds to bel ieve" that the al ien has engaged in terrorist activities or "any other activity that endangers the national security of the United S t a t e s " 1 8 3 . O n c e the Attorney Genera l issues a certificate ordering the detention of a non-cit izen, the named individual may be detained for up to seven days without any form of charges being f i led. If the cont inued detention of the al ien is deemed necessary, deportation proceedings must be initiated and/or criminal charges be filed. Once removal proceedings are set in motion, the individual must remain in detention pending one of three outcomes. T h e s e include removal , decertif ication 1 8 0 Fla. J. Int'l L, supra note 166 at 449. 1 8 1 Fla. J. Int'l L, supra note 166 at 449; Brandenberg v. Ohio 395 U.S. 444 (1969); NAACP v. Claiborne Hardware Co. 458 U.S. 886 (1982). 1 8 2 David Cole, "Enemy Aliens" (2002) 54 Stan. L Rev. 953 at 970. 1 8 3 Fla. J. Int'l L, supra note 166 at 440. 48 by the Attorney Genera l , regardless of whether the named individual is granted relief from removal , or thirdly, a decis ion that he is unremovable. If it becomes apparent during proceedings that removal is unlikely in the "reasonably foreseeable future", the grounds for detention must be reviewed, by the Attorney Genera l , every six months. Detention is renewable for an addit ional six months as long as it is felt that the detainee's re lease would "threaten the national security of the United States or the safety of the community or any p e r s o n " . 1 8 4 . The fact that these detent ions are deemed to be civil commitments rather than a punitive a c t i o n 1 8 5 has certain constitutional consequences . The Supreme Court has ruled that the execut ive must at least meet the c lear and convincing burden of proof (d iscussed below) when implementing administrative de ten t ions 1 8 6 . Furthermore, "due process requires that the nature and duration of commitment bear s o m e reasonable relation to the purpose for which the individual is commi t ted " 1 8 7 . O n the other hand, "because deportat ion is deemed not to be punishment, the constitutional protections guaranteed to all persons in criminal trials do not apply, al lowing, among other things, the use of secret e v i d e n c e " 1 8 8 . T h e Patriot Ac t itself affords deta inees certain procedural safeguards. T h e s e include the right to judicial review, and the right to initiate habeas corpus proceedings. It should, however, be noted that whi le such 1 8 4 Fla. J. Int'l L, supra note 166 at 441.; 55 Stan. L Rev., supra note 173 at 1425. 1 8 5 Tracy L Conn, "The Use of Secret Evidence by Government Lawyers: Balancing Defendants' Rights with National Security Concerns" (2004-2005) 52 Clev. St. L. Rev. 571 at 572-3 [Clev. St. L. Rev.]. 186 Addington v. Texas, 441 U.S. 418 (1979) at 432-433 as cited in Brian Smith, "Charles Demote v. Hyung Joon Kim: Another Step Away from Full Due Process protections" 38 Akron L. Rev. 207 at 211. 187 Jackson v. Indiana, 406 U.S. 715 (1972) at 738. . 188 Supra note 185. 49 petitions may be m a d e to any district court having jurisdiction, the Patriot Act specif ies that all appea ls shal l be heard and dec ided only by the U S Court of Appea ls for the District of Co lumbia which has shown a "remarkable tendency toward national security fundamenta l i sm" 1 8 9 . Further, the Attorney Genera l himself is required to review the detention of certified non-ci t izens every six months, and to report to Cong ress on the number of deta inees, their nationality, and the duration of and grounds for de ten t ion 1 9 0 . The notion of a requisite "c lear and convincing" s tandard of proof deserves some d iscuss ion , a s this standard is somewhat unique and innovative and is currently used in other Weste rn d e m o c r a c i e s 1 9 1 for administrative detention proceedings. C lear and Conv inc ing Three standards of proof have evolved within the C o m m o n Law legal tradition. At one end of the spectrum a minimalist ic approach - the "preponderance of the ev idence standard" - appl ies where society has little concern regarding the outcome of the dispute and there is general ly no loss of liberty to any individual. Th is is most commonly appl ied in civil d isputes. At the other end of the spect rum, the defendant 's interests are so great that they have traditionally been protected by the highest s tandards of proof possib le, with society, rather than the individual whose fate is to be determined, assuming 1 8 9 Cass R. Sunstein, "Recent Decisions of the United States Court of Appeals for the District of Columbia Circuit: National Security, Liberty, and the D:C. Circuit" (2005) 73 Geo. Wash L. Rev. 693 at 697 [Geo. Wash L. Rev.]; Fla. J. Int'l L, supra note 166 at 441. 1 9 0 Fla. J. Int'l L, supra note 166 at 441. 1 9 1 Among them the United States and Israel. 50 almost the entire risk of an erroneous judgment. Under the Due P r o c e s s C lause of the United States Consti tut ion, the state must prove the guilt of an accused beyond a reasonable doub t 1 9 2 . Most, if not al l , c o m m o n law legal sys tems apply this standard in a lmost all cr iminal proceedings. Between these two s tandards lies an intermediate standard of proof, a lso referred to as the "c lear and convincing standard". Th is requires that the facts asser ted be highly probable, and based on ev idence which is at least seventy percent p robab le 1 9 3 . In Addington v. Texas™4 the United States Sup reme Court examined the issue of standard of proof as it relates to the involuntary commitment of a person to a mental institution, emphas iz ing that "the function of a standard of proof, as that concept is embod ied in the Due P rocess C l a u s e and in the realm of factfinding, is to 'instruct the factfinder concerning the degree of conf idence our society thinks he should have in the correctness of factual conc lus ions for a particular type of ad jud ica t ion ' 1 9 5 . The standard se rves to a l locate the risk of error between the litigants and to indicate the relative importance at tached to the ultimate d e c i s i o n " 1 9 6 . The court surveyed the different standards of proof used in var ious legal fields, on its way to ruling that the standard required to meet the Fourteenth ™ Addington v. Texas, 441 U.S. 418 (1979) at 423-424 [Addington]. 1 9 3 Emanuel Gross, "Human Rights in Administrative Proceedings: A Quest for Appropriate Evidentiary Standards" (2001) 31 Cal. W. Int'l L.J. 215 at 216 [Appropriate Evidentiary Standards]. 1 9 4 Addington, supra note 192. 195 In re Winship, 397 U.S. 358 at 370 (1970) cited in Addington, supra note 192 at 423. 1 9 6 Addington, supra note 192 at 423. 51 Amendment requirement of due process in c a s e s such as this one, was that of "clear and convincing ev idence" . Al though somewhat unusual , this standard was not invented in the Addington ruling. In the United States, it is used in matters where the defendant has committed "quasi-cr iminal wrongdoings" such as fraud, or in civil c a s e s requiring greater protection for particularly important individual in te res ts 1 9 7 . In Woodby v. Immigration & Naturalization Service™8, for example , it w a s ruled that the "clear and convincing" ev idence standard should be adopted in c a s e s involving deportation proceedings. In Chaunt v. United States™9, it w a s ruled that in matters in which the state seeks to denatural ize an individual, the ev idence supporting the request must meet the "clear and convincing" standard of proof. In Addington the Court sought to ba lance the interests of the petitioner to not be involuntarily committed indefinitely against the interest of the state to protect its cit izens from people who, because they are mentally ill, might pose a danger to themselves or to society. The court ruled that the state must prove by a "clear and convincing" standard that a person is indeed mentally ill and thus should be involuntarily commit ted: T h e individual should not be asked to share equal ly with society the risk of error when the poss ib le injury to the individual is significantly greater than any poss ib le harm to the state. W e conc lude that the individual's interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify 197 Ibid, at 424. 198 Woodby v. Immigration & Naturalization Service, 385 U.S. 276 (1966). 199 Chaunt v. United States, 364 U.S. 350 (1960). 52 conf inement by proof more substantial than a mere preponderance of the e v i d e n c e " 2 0 0 . Zadvydas v. Dav is The courts have not to date been cal led upon to review the quest ion of indefinite administrative detention of an al ien suspec ted of terrorism under the Patriot Act. S o m e gu idance may however be found in the earl ier case of Zadvydas v. Davis201. The Sup reme Court was there cal led upon to dec ide the issue of indefinite detention for al iens who had been convicted of criminal wrongdoings and for whom the possibil ity of deportation was all but e x h a u s t e d 2 0 2 . In rendering its dec is ion that "once removal is no longer reasonably foreseeable, cont inued detention is no longer au tho r i zed" 2 0 3 , the Court ruled that after a six month period "once the al ien provides good reason to bel ieve that there is no significant l ikelihood of removal in the reasonably fo reseeab le future, the Government must respond with ev idence sufficient to rebut that showing. A n d for detention to remain reasonable , as the period of conf inement grows, what counts as the " reasonably foreseeable future" converse ly wou ld have to shr ink" 2 0 4 . A l though this decis ion might be taken as implying a degree of rigour in approach to the Patriot Ac t detentions, it was handed down in the different 2 0 0 Addington, supra note 192 at 427. 2 0 1 533 U.S. 678 (2001). 2 0 2 Both aliens were detained pursuant to 8 U.S.C.S. § 1231(a)(6) which stipulates that: "An alien ordered removed who is inadmissible under section 212...removable under section 237(a)(1)(C), 237(a)(2), or 237(a)(4)..., (a)(2), or (a)(4)] or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3)". 203 Supra note 201 at 699. 2 0 4 /b/d. at 701. 53 c i rcumstances that pervaded prior to the attacks of 9/11. Moreover , the court specif ical ly stated that its reasoning could not be a s s u m e d to apply automatical ly in c i rcumstances involving national security: "Neither do we cons ider terrorism or other specia l c i rcumstances where specia l arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national secur i t y " 2 0 5 . The P E N T T B O M Investigations In the wake of the 9/11 attacks the Federa l Bureau of Investigations launched an extensive investigation - t e rmed " P E N T T B O M " - into the attacks. A s part of the investigation 762 al iens were detained, the majority of w h o m were arrested between September 11, 2001 , and August 6, 2 0 0 2 2 0 6 . A l though the U S Patriot Act was rushed through Congress in a matter of w e e k s after 9/11, the procedures fol lowed for most of these detentions went far beyond anything authorized in the Patriot Act . The vast majority of individuals detained as part of the P E N T T B O M investigation were never truly suspec ted of involvement in the 9/11 attacks, but were nonetheless detained on suspic ion of violating immigration law. In a report publ ished for the United States Department of Just ice in June 2003, the Office of the Inspector Genera l (OIG) wrote: "The FB I . . .made little z u o Ibid, at 696. 6 U.S., Office of the Inspector General Department of Justice, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks, June 2003 at Chapter 1 Introduction, online: Office of Inspector General's Website <http://www.usdoj.gov/oig/special/0306/chapterlhtm>. 54 attempt to dist inguish between al iens who were subjects of the FBI terrorism invest igat ion.. .and those encountered coincidental ly to a P E N T T B O M l e a d " 2 0 7 . Deta inees arrested as part of the " P E N T T B O M " investigations were subject to an unwritten "held until c leared" policy, which meant that they could be, and in many cases , were detained, under the order of the Just ice Department, under deplorable condi t ions for w e e k s to months without any possibi l i ty of a bond hea r i ng 2 0 8 . B e c a u s e so many deta inees were held and subject to c learance investigations before they could be re leased, the authorit ies were unable to investigate and charge deta inees within the 72 hour t ime f rame establ ished by the Immigration & Natural izat ion Serv ice 's (INS) self imposed , but not legally binding, t ime frame. Many deta inees were, as a result, held for extended periods without knowledge of the reason for their arrest and without any ability to obtain legal representa t ion 2 0 9 . The imposed blanket "no bond" pol icy led to a good deal of internal confus ion. Individuals for whom the INS had conc luded its investigation and who had either been c leared, or for whom a departure order had been issued, could not be re leased until the FBI had completed its investigation. However, s ince the FBI 's c learance process was much slower than the INS' p rocess , the INS began to raise concerns regarding the Just ice Department 's "no bond" policy, particularly in those c a s e s in which the detainee U.S., Press Release by the Office of the Inspector General Department of Justice, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges h Connection with the Investigation of the September 11 Attacks, June 2003, online: Office of Inspector General's Website <http://www.usdoj.gov/oig/special/0306/press.htm>. 55 had received either a final removal order or a voluntary departure order, but continued to be held in detention, subject to investigation by the F B I 2 1 0 . In October 2001, in the wake of these multiple al ien arrests and detentions, severa l immigrants' rights groups and civil l iberties organizat ions filed F reedom of Information Ac t (FOIA) requests, in an attempt to force the government to d isc lose the identities of deta inees and their attorneys, the date, location, and reasons for both detention and subsequent r e l e a s e 2 1 1 . Under the FOIA, the government must respond to such requests by providing information that is not classi f ied or otherwise exempt from disc losure under the law. S ince the Sep tember 11 attacks, the United States Cour t of A p p e a l s for the District of Co lumb ia Circuit has handled most of the c a s e s involving conflict between individual liberty and national security. In nearly all of these c a s e s , the court has shown a striking tendency to what has been termed "national security fundamental ism", deferring to the power of the Execut ive in a lmost every c a s e 2 1 2 . In the benchmark dec is ion of Center for National Security Studies vs. U.S. Department of Justice213, Judge G ladys Kess le r of the Federa l Cour t in D.C. ordered the Just ice Department to re lease the n a m e s of the deta inees and their lawyers. S h e ruled, however, that all other information could be withheld. O n a p p e a l 2 1 4 , in a majority dec is ion, the District of Co lumb ia Circuit Court , in one of the clearest examp les of national security fundamenta l ism, reversed Judge 210 ibid. 2 1 1 Rachel Meeropol, "The Post 9/11 Terrorism Investigations and Immigration Detention" in Rachel Meeropol, ed., America's Disappeared (Toronto: Publishers Group Canada, 2005) 144 at 157. 2 1 2 Geo. Wash L. Rev., supra note 189 at 697. 2 1 3 215 F. Supp. 2d 94 (D.D.C. 2002). 214 Center for National Security Studies v. United States Department of Justice, 331 F.3d 918 (D.C. Cir. 2003) [Nat'l Security Studies]. 56 Kess ler 's dec is ion, ruling that the government was not required to re lease even the names of the deta inees, s ince that information fell under the F O I A exemption which al lows an agency to withhold "information compi led for law enforcement purposes. . . to the extent that such.. . information could reasonably be expected to interfere with enforcement p roceed ings " 2 1 5 . In delivering its ruling the Court wrote: A m e r i c a faces an enemy just as real as its former Co ld W a r foes, with capabil i t ies beyond the capaci ty of the judiciary to exp lo re 2 1 6 . . . the courts must defer to the execut ive on dec is ions of national security. In so deferring, we do not abdicate the role of the judiciary. Rather, in undertaking a deferential review we simply recognize the different roles underlying the constitutional separat ion of powers. It is within the role of the execut ive to acquire and exerc ise the expert ise of protecting national security. It is not within the role of the courts to s e c o n d - g u e s s execut ive judgments made in furtherance of that branch's proper r o l e 2 1 7 . Pe rhaps even more striking than the Court 's outright deference to the Execut ive is the fact that its decis ion was rendered only two weeks after the O IG reported that very few of the deta inees had been involved in any terrorist ac t iv i t ies 2 1 8 . T h e Cour t based much of its opinion on declarat ions made by government officials that: . . .many of the detainees have links to terrorism. Th is c o m e s a s no surpr ise given that the deta inees were apprehended during the course of a terrorism investigation, and given that severa l deta inees have been charged with federal terrorism cr imes or held as 215 Ibid, at 925 - 926. 2 1 6 Ibid, at 928. 2 1 7 Ibid, at 932. 218 Supra note 211 at 158 -159; Nat'l Security Studies, supra note 214 at 941. 57 enemy combatants . Accordingly, we conc lude that the ev idence presented in the declarat ions is sufficient to show a rational link between d isc losure and the harms a l l e g e d 2 1 9 Judge Tatel , in dissent, pointed to the problematic nature of the above logic, stating that the Cour t may have based its dec is ion on "facts" not supported by the ev idence. T h e plaintiffs appea led to the United States Sup reme Court, but their request for review was d e n i e d 2 2 0 . In the events following the 9/11 attacks, we s e e the eros ion of civil liberties in the United States as fol lows: T h e O I G report, which e m p h a s i z e d that very few of the detainees had any connect ion to terrorism, was largely ignored by the D.C. Circuit Court, in a dec is ion which, as pointed out by the dissent ing judge, appears not to have been based , in most c a s e s , on sol id ev idence , but rather on circuitous logic (the deta inees were connected to terrorism b e c a u s e they were being investigated for terrorist activities) presented by government officials. Appea l to the Sup reme Court for review of the decis ion by cit izen watchdog groups, w a s den ied . Th is shows that in what is bel ieved to be the greatest of all Western democrac ies , when the execut ive dec lares that the country is at war with "terrorism", not only do secretly named deta inees have no rights, but the right of ci t izens to scrut inize the act ions of the execut ive, is d imin ished, due to undue deference on the part of the courts. Nat'l Security Studies supra note 214 at 931 and 941. Ctr. for Nat'l Sec. Studies v. DOJ, 540 U.S. 1104 (2004). 58 Issues of Secre t Ev idence O n e of the most t reacherous ways in which the rights of a detained individual are systemat ical ly eroded is through the legal ized use of secret ev idence in administrative detention proceedings. Fol lowing the Ok lahoma City bombings the A E D P A author ized the use of secret ev idence in immigrant removal proceedings, particularly in c a s e s involving al legations of te r ro r i sm 2 2 1 . The A E D P A also establ ished "alien terrorist removal cou r t s " 2 2 2 in which the federal rules of ev idence do not apply, to deal with such c a s e s 2 2 3 . The A E D P A does stipulate, however, that the removal court shall "provide for the designat ion of a panel of attorneys each of whom. . . has a security c learance which affords the attorney a c c e s s to c lassi f ied information, and . . .has agreed to represent permanent resident al iens with respect to classi f ied informat ion" 2 2 4 . One case which hinged on secret ev idence was that of N a s s e r A h m e d . The INS c la imed that he was assoc ia ted with a terrorist organizat ion and , as such , was a threat to national security. A h m e d was detained for a lmost three and a half years. H e resisted deportation, he sa id , out of fear of torture if he were to be returned to Egypt. T h e INS at one point produced a one- l ine summary of the ev idence which stated that it had information regarding the respondent 's associat ion with a terrorist organizat ion, but it did not even name the 221 8 U.S.C. 1534(e). 222 8 U.S.C. 1532; Clev. St. L. Rev., supra note 185 at 575. 223 8 U.S.C. 1532(h). 224 8 U.S.C. 1532(e). 59 organ iza t ion 2 2 5 . W h e n the INS was finally forced to d isc lose its secret ev idence, it was revealed that the information was unsubstant iated "double or triple hearsay". In the result, a district judge ordered A h m e d ' s re lease. It turned out that "the FBI and INS [had been] attempting to make good on their threat to deport him for refusing to inform on Sheik Abde l R a h m a n , who was on trial for conspiracy in connect ion with the 1993 Wor ld Trade Center b o m b i n g " 2 2 6 . Perhaps the best known c a s e involving the use of secret ev idence is that of Kiareldeen v. Reno227. K iare ldeen, an Israeli cit izen who had been a United States resident s ince 1990, was detained in 1998 on susp ic ion of being a terrorist. It was al leged that he had plotted to kill Attorney Gene ra l Janet Reno and that he had met with Nidal Ayyad (convicted in connect ion with the 1993 World Trade Cent re bombings) a week prior to the W T C attack. T h e respondent filed an appl icat ion for habeas corpus, and was eventual ly re leased in 1999 when it was d iscovered that the "ev idence" had been entirely fabricated by his ex-wife. The court dec lared that "the petitioner's c a s e is an example of the dangers of secret e v i d e n c e " 2 2 8 . These c a s e s illustrate the pragmatic and prudential reasons why law abhors secret ev idence. They point to constitutional concerns regarding the use of secret ev idence. S o ser ious are those issues that K iare ldeen and A h m e d resulted in two failed attempts to pass secret ev idence repeals acts. T h e first of these (1999) 2 2 5 Clev. St. L. Rev., supra note 185 at 575. 2 2 6 Clev. St. L. Rev., supra note 185 at 575 footnote 44; Natsu Taylor Saito, "The Enduring Effect of the Chinese Exclusion Cases: The "Plenary Power" Justification for On-Going Abuses of Human Rights" (2003) 10 Asian L.J. 13 at 20. 2 2 7 71 F. Supp. 2d 402 (D.N.J. 1999). 2 2 8 Ibid, at 413. 60 never passed despi te the heavy support of both the House of Representat ives and the Attorney Genera l herself. The second , p roposed in 2001 , would have entitled the deta inee to non-federal ly provided counse l , an ability to examine all the ev idence, to provide his own wi tnesses and c ross-examine wi tnesses. The attacks of Sep tember 11 of that year, however, changed the priorities of Congress dramatical ly, and this act too, failed to p a s s 2 2 9 . Military Tr ibunals S ince the 9/11 attacks, the U .S . federal government has sought to act in secret in a w ide range of its activities. Th is is shown particularly in the establ ishment, by President ia l Order, of military t r i buna l s 2 3 0 in which suspected terrorist non-ci t izens, may be tried for al leged terrorist connect ions and/or activities, by a panel of military officers, without appl icat ion of "the principles of law or the rules of e v i d e n c e " 2 3 1 . This appl ies equal ly to foreigners captured overseas and to resident al iens in the U S A . Speci f ical ly, the Pres ident or the Secretary of De fense may identify the persons to be tried, appoint the judges, name the prosecutors, and select the defense lawyers. The proceedings may be held in secret, and the President may decide all a p p e a l s 2 3 2 . A s of March 2002, however, certain procedural amendments were put in p lace. Unrepresented defendants are now provided with appointed military defence lawyers, and are 2 2 9 Clev. St. L. Rev., supra note 185 at 577 - 578. 2 3 0 Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terror, Vol. 66, Number 222 Fed. Reg. Pages 57,831 - 57,836 (November 16, 2001), online: <http://www.fas.org/irp/offdocs/eo/mo-111301.htm> [Military Order]. 2 3 1 Section 1 (f) of the Military Order, supra note 229. 2 3 2 Steven W. Becker '"Mirror, Mirror on the Wall...': Assessing the Aftermath of September 11 t h (2003) 37 Val. U.L. Rev. 563 at 581. 61 presumed innocent until proven guilty beyond a reasonable doubt (as seen by a two-thirds majority of the t r ibunal ) 2 3 3 . These amendments may, however, have little practical va lue, b e c a u s e should the amendments conflict with the original President ial Order, "the Pres ident 's military order shal l g o v e r n " 2 3 4 . Th is process has been cal led "the greatest array of legal powers to be exerc ised in the justice system that has ever been vested in a single person, office, or branch of government s ince the birth of this na t ion" 2 3 5 . Nearly three years after the Military Order was i ssued , a military commiss ion was to hear the c a s e filed against O s a m a bin Laden ' s a l leged driver and bodyguard, Sa l im A h m e d Hamdan , in July, 2004. H a m d a n petit ioned the Federa l Court in Wash ing ton for a writ of habeas corpus, contest ing the authority of the military commiss ion to hear the charges filed against him. T h e Court granted the petition in part and ruled that: "unless and until a competent tribunal determines that petitioner is not entitled to the protections afforded pr isoners-of-war under Article 4 of the G e n e v a Convent ion Relat ive to the Treatment of Pr isoners of W a r of August 12, 1949, he may not be tried by Military C o m m i s s i o n for the of fenses with which he is c h a r g e d " 2 3 6 . A l though the national security fundamental ists of the Court of A p p e a l s for the District of Co lumb ia reversed the ru l ing 2 3 7 , the United * M Sections 5 & 6 of the Department of Defense Military Commission Order Number 1 of March 21, 2002, online: <http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf>. 234 Ibid at Section 7B. 2 3 5 Steven W. Becker '"Mirror, Mirror on the Wall...': Assessing the Aftermath of September 11 th" (2003) 37 Val. U.L Rev. 563 at 581 footnote 110. 236 Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C. 2004) at 173 - 174. 237 Hamdan v. Rumsfeld, 367 U.S. App. D.C. 265 (D.C. Cir. 2005). 62 States Supreme Court, granted certiorari in November, 2005, after having been urged in a letter by 450 law professors to review the case 2 3 8 . In June 2006, the Supreme Court held in a 5-3 verdict that it had jurisdiction to hear the case of the accused combatant, and that the military commission that had been set up could not proceed, because it violated both the Uniform Code of Military Justice, as well as Common Article 3 of the Third Geneva Convention. Since Hamdan was apprehended in the territory of a Geneva Conventions signatory (Afghanistan), he was entitled to some protections under Common Article 3, specifically, judgment pronounced by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people"239. The Court also ruled that: the procedures adopted to try Hamdan deviate from those governing courts-martial in ways not justified by any "evident practical need"...and for that reason, at least, fail to afford the requisite guarantees...Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.240" Novel Approaches. New Legal Problems: the Zaccarias Moussaoui Case While section 412 of the Patriot Act allows for detention of non-citizens suspected of terrorist activity (similar to Security Certificate legislation in Hamdan v. Rumsfeld, 126 S. Ct. 622 (U.S. 2005); Tung Yin, "Ending the War on Terrorism Bone Terrorist at a Time a Noncriminal Detention Model For Holding and Releasing Guantanamo Bay Detainees" (2005) 29 Harv. J.L. & Pub. Pol'y 149 at 182 footnote 160. Article 3(1 )(d) of The Geneva Convention (III) Relative to the Treatment of Prisoners of War 12 August 1949, 6 U.S.T. 3316, T.I.A.s. No. 3364. 240 Hamdan v. Rumsfeld 546 U.S. (2006). 63 Canada) , criminal or deportation proceedings must be initiated in a timely fashion. B e c a u s e the United States views terrorism as a border less threat, it has establ ished a two-pronged mechan ism by which to try suspec ted terrorists. The operation of this mechan i sm is best demonstrated by the c a s e of Zaccar ias Moussaou i , a French cit izen, detained and awaiting deportation for remaining in the United States illegally. Whi le in the United States, Moussaou i had participated in var ious flying courses , during which t ime he showed undue interest in features such as the door-operating mechan isms of certain aircrafts. In addition, large sums of money, the origins of which he could not properly account for, appeared in his bank account, all around the t ime of the Sep tember 11 attacks. Due to the susp ic ious nature of his activities, he w a s indicted rather than deported. T h e criminal charges included, among others, consp i racy to commit acts of terrorism transcending national boundar ies, consp i racy to murder United States employees , and conspi racy to commit aircraft p i r acy 2 4 1 . Moussaou i , representing himself, petitioned the court for permission to question Ramz i Binalsh ibh, held overseas for al legedly having f inanced the aircraft hi jackers of the Sep tember 11 attacks. Binalshibh, Moussaou i c la imed, could help him prove that, al though he w a s an A l Q a e d a member , he w a s not involved in the Sep tember 11 attacks. The court ruled that M o u s s a o u i could question B i n a l s h i b h 2 4 2 . The government appea led the dec is ion, arguing that allowing Moussaou i to quest ion Binalshibh would cause irreparable harm to Clev. St. L. Rev., supra note 185 at 585 - 586. United States v. Moussaoui, 282 F. Supp. 2d 480 (D. Va. 2003). 64 national security, and would "imperil the prosecut ion of other terror s u s p e c t s " 2 4 3 . The Fourth Circuit Cour t of Appea l s upheld the lower court 's d e c i s i o n 2 4 4 . Despite statements by the Just ice Department that it is confident that Moussaou i ' s c a s e can be tried in civilian court, it had a lso stated that it had the option of moving the c a s e to a military cour t 2 4 5 , with all the due process implications that would entail. In May, 2006, almost four and a half years after his trial begun, M o u s s a o u i w a s sentenced by the U .S . District Cour t for the Eastern District of Virg in ia to life in prison without the possibil i ty of parole. Al though the intentions of the United States in attempting to prosecute suspected terrorists are commendab le , the Moussaou i case illustrates the inherent difficulty in achieving the intended goals. Whi le deport ing a suspected terrorist would accompl ish nothing, trying him in a criminal or military court necessar i ly leads to a long, drawn out p rocess of detent ion, sec recy and appeals , with no end in sight. Conc lus ions The "global war on terrorism" has been raging on for a lmost 5 years and, in all l ikelihood, will not end in the near future. Speak ing just three days after the 9/11 attacks Pres ident B u s h dec lared that while "Amer icans do not yet have the distance of history.. .our responsibi l i ty to history is a l ready clear: to answer these Clev. St. L Rev., supra note 185 at 589 footnote 181. 244 United States v. Moussaoui, 382 F.3d 453 (4 t h Cir. 2004); Clev. St. L. Rev. supra note 185 at 587-591. 2 4 5 Clev. St. L Rev., supra note 185 at 590 footnote 188. 65 attacks and rid the world of e v i l " 2 4 6 . The cost of this miss ion must be considered carefully. Wha t amount of collateral constitutional d a m a g e to their own liberty-loving traditions are ci t izens of a democrat ic society will ing to susta in in order to achieve a goal wh ich is, in fact, unattainable? It is no secret that "people 's respect for human and civil l iberties is very often fragile when they are f r igh tened" 2 4 7 , but the attacks of 9/11 were not the first t ime the Amer ican people have had to confront a threat to their nation. Moreover, as horrendous as those attacks were, one would be hard p ressed to say that they actually threatened the ex is tence of the United States. Previous t imes of turmoil reveal abundant examples of the Court 's deference to actions taken by the Execut ive in curtailing civil l iberties, to lerance of anti-sedition laws, and administrative detentions. Hindsight a l lows us to judge some decis ions, such as upholding racist state action in Korematsu v. the United States248, as stains on the Court 's record. The fact that such conc lus ions are more easi ly reached when the fear subs ides g ives cause for sober reflection in t imes of perceived cr isis. Whether "lawful" or not, much that is done in the name of fear, is not moral ly just. There is no doubt that the "war on terror" poses many new legal chal lenges. It may indeed require use of new and extraordinary methods to capture and convict those who hide among us and wish to harm us. There is no doubt that the As cited in Mark Danner, "Taking Stock of the Forever War", The New York Times Magazine (11 September 2005), online: <http://www.wehaitians.com/taking%20stock0/o20of%20the0/o20forever%20war.html>. Ronald Dworkin, "The Threat to Patriotism" The New York Review of Books 49:3 (28 February 2002), online: <http://www.nybooks.com/articles/15145> 2 4 8 323 U.S. 214(1944). 66 United States government is deeply committed to waging the war on terror, by both military and legal means . The U S Patriot Act and the Military Order s igned by President B u s h are two key components in the Execut ive 's arsena l . T h e great powers so conferred on the Execut ive, import, in equa l measure , great burdens of responsibil i ty to both decency and fairness. The broad definit ions of "terrorism" and "terrorist organizat ion" p lace an enormous burden on the w isdom of government officials to take great care not to infringe unduly upon long standing and cher ished legal rights. Us ing such broad definit ions, however, "amounts to an invitation to p lace unquest ioning trust in the discret ion (a polite term denoting b iases, gut instincts, upbringing, and social izat ion) of off ic ialdom...The collateral damage done by misdirected antiterrorist fire will register a s irreparable harm to innocent p e o p l e " 2 4 9 . The d iscrepant procedures used in the c a s e s of Hamd i and Lindh highlight the somet imes arbitrary nature in which the Execut ive u s e s new legal tools at its d isposal . T h e s e tools must be used in a manner which appears just, fair, and unbiased. T h e attempt to try deta inees in civil ian courts, and the provision of counse l who can review secret ev idence, are commendab le s teps. T h e U S A a lso attempts to preserve liberty va lues through its approach to standard of proof. Both the standard of proof required to administratively detain, (clear and convincing ev idence) and that used by military tr ibunals (beyond reasonable doubt in the view of a two thirds majority) are higher s tandards than those required by the C a n a d i a n Courts . 2 4 9 W. Wesley Pue, "The War on Terror: Constitutional Governance in a State of Permanent Warfare?" (2003) 41 Osgoode Hall L.J. 267 at 282. 67 The very real possibility of indefinite detention, remains, however. After the Patriot Act was passed, even with this powerful mechanism in hand, the Executive went well beyond its authority in the manner in which it detained aliens in the PENTTBOM investigation250. While administrative detentions may be necessary, every effort should be made to minimize the length of the detention and to afford the detainee all of the due process rights usually afforded to individuals by the criminal justice system. In these cases, utter deference to the Executive on the part of the court is not what is needed. An honest, informed critique of the government's actions would enhance not only the concept of separation of powers, but ultimately, democracy itself. Indeed, as the United States Supreme Court noted in Hamdi, "it is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad" 2 5 1. Supra note 207. Hamdi, supra note 145 at 532. 68 Administrative Detention in Israel A Historical Rev iew Unlike the United States and C a n a d a which have only sporadical ly had to cope with terrorist threats and only in recent years, Israel has had to grapple with terrorism s ince its very concept ion. A look at Israel's methods of deal ing with terrorism from the legal perspect ive sheds much light on this compl icated issue. The lessons learned from methods which work, to those which might work but should not be sanct ioned, to those which do not work, are all va luable as they come with the advantage of the hindsight of decades . During the British mandate of Palest ine, in the face of violent insurrection by Jewish underground movements such as the Irgun Zva ' i Leumi and the Lohamei Heruth Israel, the British introduced a set of emergency regulat ions enabl ing them to detain individuals without trial, to deport and to order curfews. These actions were taken under the Defence (Emergency) Regulations of 1945 (Regulat ions), regulations which Israel inherited in 1948 when it gained i ndependence 2 5 2 . S i nce these regulations were used to detain without trial, and to deport thousands of members of Jewish underground movements , their adaptation into law by the newly formed state provoked much crit icism and pressure on the government to amend t h e m 2 5 3 . A l though the Regulat ions were rarely used, the government contended that they were required, as Israel was 2 5 2 John Quigley, "Israel's Forty-Five Year Emergency: Are there Time Limits to Derogations from Human Rights Obligations?" (1994) 15 Mich. J. Int'l L. 491 at 493; Emanuel Gross, "Human Rights, Terrorism and the Problem of Administrative Detention in Israel: Does a Democracy Have the Right to Hold Terrorists as Bargaining Chips?" (2001) 18 Ariz. J. Int'l & Comp. Law 721 at 754 [Bargaining Chips]. 5 3 Bargaining Chips, supra note 252 at 755; Yehouda Weiss, "Administrative Detention -Tendencies, Procedure and Rules of Evidence" (1989) Law and Army 10 at 4 [Weiss]. 69 under constant threat which necessi tated spec ia l measu res to protect the newborn state and its pub l i c 2 5 4 . Reform came in 1979, thirty-one years following Israel's independence. The regulations were replaced by a new statute, the Emergency Powers (Detention) Law of 1979255 (Administration Detention Law). The Administrat ion Detention Law was a response to the criticism that a law was needed with more due process rights, more in tune with Israel's democrat ic v a l u e s 2 5 6 . The Emergency Powers (Detention) Law of 1979 The Administrat ion Detention Law provisions made a number of substantial fundamental changes to the original British regulat ions. T h e regulations authorized the Chie f of Staff of the Israeli Defence Forces (IDF) or an IDF region commander to order that a person be detained. The Administrat ion Detention Law only bestowed this power on the Minister of Defence, the only except ion being that the IDF Chie f of Staff may order such a detention, but for a period no longer than 48 hours, which he may not e x t e n d 2 5 7 . It should be noted that the Minister of Defence 's authority under this law can not be d e l e g a t e d 2 5 8 . The Minister of Defence may order an individual to be administratively detained if he has a " reasonable foundation to a s s u m e that for the reasons of the State's security or the public safety an individual should be held in de tent ion" 2 5 9 . 2 5 4 Weiss, supra note 253 at 4 - 5. 2 5 5 Bargaining Chips, supra note 252 at 756. 2 5 6 Weiss, supra note 253 at 5. 2 5 7 Section 2(c) Emergency Powers (Detention) Law, 1979. 2 5 8 Section 11 Emergency Powers (Detention) Law, 1979. 2 5 9 Section 2(a) Emergency Powers (Detention) Law, 1979 as cited in Appropriate Evidentiary Standards, supra note 193 at 222. 70 W h e r e a s the Regulat ions did not limit the duration of the detention, the Administrat ion Detention Law limited the duration of detention for a period no longer than six m o n t h s 2 6 0 . However, the Minister could extend the detention for additional per iods of s ix months if he bel ieves that an individual cont inues to pose a threat to national securi ty or the public sa fe t y 2 6 1 . Under the regulat ions an individual who w a s detained could appea l to an advisory committee, which only had the authority to make recommendat ions. Alternatively, he could petition the Israeli High Court of Jus t ice for a writ of habeas c o r p u s 2 6 2 . T h e Administrat ion Detention L a w expanded the judicial review p rocess beyond that of the British Co lon ia l Law, by specif ical ly incorporating the p rocess into the law, stipulating that a detent ion order must be brought before the Chie f Just ice of the District Cour t for review within 48 hours of detention. Fai lure to do s o mandated the deta inee 's immediate r e l e a s e 2 6 3 . Furthermore, any dec is ion rendered by the District Cour t may be automatical ly appea led to the S u p r e m e Court of I s rae l 2 6 4 . Sect ion 4(a) of the Administrat ion Detention L a w a lso empowers the District Court 's Ch ie f Just ice to approve, shorten, or repeal the detention order. Sect ion 4(c) of the law author izes the judge to repeal the order when there is ev idence to support the contention that the order w a s issued for reasons other than the Section 2(a) Emergency Powers (Detention) Law, 1979. 2 6 1 Section 2(b) Emergency Powers (Detention) Law, 1979. 2 6 2 Weiss, supra note 253 at 5; Eyal Nun, "Administrative Detention in Israel" (1992) 3 Plilim 168 at 190 [Nun]. 2 6 3 Section 4(a) Emergency Powers (Detention) Law, 1979. 2 6 4 Section 7 Emergency Powers (Detention) Law, 1979; Weiss, supra note 253 at 5. 71 protection of national security or public safety, or if the detention order was issued either in bad faith, or based on irrelevant factors. The Administrat ion Detention Law provides severa l signif icant procedural safeguards. The detainee has the right to know the reasons which led to his detention, as well as the right to legal representation, al though this right may be limited to state-approved l awye rs 2 6 5 . Moreover, the detainee and his counse l may be present at all court proceedings unless the Chie f Just ice of the District Court rules that the deta inee 's and/or his counse l 's p resence could endanger national security or public sa fe t y 2 6 6 . O n c e detained, the District Court 's Chief Just ice is required by law to re-examine the detention order every three months. Fai lure to do so leads to the detainee's immediate r e l e a s e 2 6 7 . The Administrat ion Detention Law stipulates that when reviewing a detention order the judge is not required to adhere to the normal rules of ev idence if he is convinced that not doing so will better lead to elucidation of the facts and to the proper carr iage of j us t i ce 2 6 8 . Moreover, ev idence may be reviewed without revealing it to the detainee and/or the detainee's counse l if the District Court judge is conv inced that d isc losing the ev idence would endanger national security or the public sa fe t y 2 6 9 . W h e n choosing to deviate from the normal rules of ^ Section 8(b) Emergency Powers (Detention) Law, 1979; Bargaining Chips, supra note 252 at 757. 2 6 6 Section 8(a) Emergency Powers (Detention) Law, 1979. 2 6 7 Section 5 Emergency Powers (Detention) Law, 1979; Bargaining Chips, supra note 252 at 757. 2 6 8 Section 6(a) Emergency Powers (Detention) Law, 1979. 2 6 9 Section 6(c) Emergency Powers (Detention) Law, 1979. 72 evidence the District Court judge must specif ical ly state the considerat ions which led him to do s o 2 7 0 . It is noteworthy that Sect ion 1 of the Administrat ion Detention Law speci f ies that the Law will only be in effect "when Israel f aces a state of emergency, declared in accordance with sect ion 49 of Bas i c Law: the Government . However, this precondit ion has no substant ive implications s ince Israel has been in a state of emergency s ince its establ ishment in 1 9 4 8 " 2 7 1 . A s the Administrat ion Detention Law has been in force for over 25 years, it is interesting to examine the transformation in the manner in which the courts interpret the law with regard to such issues as the credibility of the ev idence used to support the Minister 's decis ion to detain, the standard of proof required in reaching the dec is ion to detain, and the scope of judicial review implemented when reviewing the Minister 's decis ion. A brief survey of key court rulings which set precedents with regard to these issues follows. Ev idence, Ministerial discretion and the Standard of Proof Sect ion 2 author izes the Minister to issue a detention order when there are reasonable grounds to a s s u m e that the individual in quest ion poses a threat to national security or publ ic safety. T h e s e grounds must be based upon adequate ev idence and must satisfy a certain standard of proof. The ev idence may be drawn from the individual 's past act ions which point to a genera l pattern of behavior indicative of a l ikelihood of committing similar of fenses in the future. It 2 7 0 Section 6(b) Emergency Powers (Detention) Law, 1979. 2 7 1 Bargaining Chips, supra note 252 at 757. • 73 may also be based on intell igence regarding an individual 's future intentions surrounding a specif ic, p lanned o f f ense 2 7 2 . In Shahin v. Military Commander of the Gaza Region the Supreme Court ruled that "the ev idence to support an administrative authority's dec is ion need not be of the character of admiss ib le ev idence required in proceedings before cour ts " 2 7 3 . The Court did, however, emphas ize that "a rumor or unchecked assumpt ion" are not enough to justify the issuance of a detention o rde r 2 7 4 . In many c a s e s the Minister bases his decis ion on hearsay, and in some instances double and triple hearsay. The Court in such c a s e s is unable to hear the source of the information, and, thus, has to rely on the security serv ices which gathered the information. Moreover, in most ins tances the test imony and/or ev idence presented by the security serv ices is heard in camera . W h e n evaluating such ev idence, the court should probe into the identity of the sources and their connect ion, if any, to the suspected individual. Furthermore, the court should a lso enquire regarding the number of sources implicating the individual, in an attempt to corroborate ev idence by cross-referencing it with information obtained from other s o u r c e s 2 7 5 . "When evaluat ing the admiss ion of hearsay ev idence the Israeli Sup reme Court has appl ied a standard that requires the anticipated danger to public safety be severe enough to make it essent ia l to deprive the deta inee of the right to a proper defence. A poss ib le but remote and Nun, supra note 262 at 169. 273 H.C.J.159/84, 39(1) P.D. 309 at 327 - 328 as cited in Appropriate Evidentiary Standards, supra note 193 at 223 footnote 57. 2 7 4 H.C.J.159/84, 39(1) P.D. 309 at 327-328. 2 7 5 Weiss, supra note 253 at 15. 74 marginal danger to the State 's security is not sufficient to keep the ev idence conf ident ia l " 2 7 6 The S u p r e m e Cour t has ruled that the ev idence needed to permit an administrative authority to infringe upon the bas ic human rights of an individual need be credible and convincing, not leaving any room for doub t 2 7 7 . W h e n trying to ascertain whether or not the ev idence meets this burden of proof the test to be implemented is an objective one, the test of the " reasonable man" . T h e quest ion is whether a " reasonable man" presented with this ev idence, cognizant of the source of the information, come to the conclusion that the ev idence supports the detention of an ind iv idua l 2 7 8 . In Agabriya v. State of / s r a e / 2 7 9 the Sup reme Court ruled that the test to be implemented by the administrative authority when reviewing the ev idence and applying its discretion to detain is that the ev idence must indicate the "existence of a real and ser ious danger, and proof that not issuing the detention order may lead to action that involves danger to the safety of the State and the pub l i c " 2 8 0 . In Federman v. Military Commander of Judea and Samaria Region™ and Rabbi Ginzburg v. Minister of Defence and Prime Minister282 the Sup reme Court ruled " * A.D.A. 1/80 Kahane v. Minister of Defence, 35(2) P.D. 253 at 259. and Weiss, supra note 253 at 13 as cited in Appropriate Evidentiary Standards, supra note 193 at 225 footnotes 76 & 77. 2 7 7 H.C.J. 56/76 Berman v. Minister of Police, 31(2) P.D. 687 at 692. 2 7 8 H.C.J.159/84, 39(1) P.D. 309 at 327 - 328. 2 7 9 A.D.A. 1-2/88, 42(1) P.D. 840. 2 8 0 A.D.A. 1-2/88, 42(1) P.D. 840 at 845 as cited in Appropriate Evidentiary Standards, supra note 193 at 223. 2 8 1 H.C.J. 3280/94, Takdin 94(2) 2298. 2 8 2 A.D.A. 4/96, 50(2) P.D. 221. 75 that the "Minister of Defence must establ ish the degree of probability to a "c lose certainty" ev idence standard before he can exerc ise his detention author i ty" 2 8 3 . "The judicial superv is ion that has become a part of the procedure limits the discretion of the administrative authority. Al though uncertainty still exists as to the exact level of ev idence required, the Israeli Sup reme Court has progressed by adopting a "c lose certainty" ev idence standard for de ten t ions " 2 8 4 Administrat ive Detention and Judic ia l Rev iew In 1980 in the c a s e of Kahane v. Minister of Defence285, Rabb i Mei r K a h a n e was detained for a period of s ix months. T h e Minister of De fence argued that he had reasonable foundation to a s s u m e the state's national securi ty required the issuance of the detention order. W h e n bringing the detention order before the Chief Just ice of the District Court for review, the only fact which w a s revealed to the petitioner and his counse l was that he was suspec ted of "planning terrorist attacks against A r a b s " 2 8 6 . The supporting ev idence and test imony which led to the issuance of the detention order was presented to the Court in camera at the request of the Minister of Defence, the Court having ruled that its d isc losure would threaten national secur i t y 2 8 7 . The District Court approved the detention order, leading to an appea l to the Israeli Supreme Court. H.C.J. 3280/94, Takdin 94(2) 2298 at 2300 and A.D.A. 4/96, 50(2) P.D. 221 at 223 - 224 as cited in Appropriate Evidentiary Standards, supra note 193 at 225. 2 8 4 Appropriate Evidentiary Standards, supra note 193 at 225 2 8 5 A.D.A. 1/80, 35(2) P.D. 253. 2 8 6 A.D.A. 1/80, 35(2) P.D. 253. 2 8 7 A.D.A. 1780, 35(2) P.D. 253 at 255-256. 76 In upholding the District Cour t 's dec is ion, the S u p r e m e Cour t ruled that when reviewing the Minister 's dec is ion the Court must take into account , on the one hand the amount of information revealed to the deta inee and cons ider the procedural and substant ive limitations imposed on him in his attempt to mount a defence, and on the other hand, the potential danger to nat ional security or public safety thwarted by the detention. The detention should only be upheld if the Court is conv inced that the danger to national securi ty or the publ ic safety is so substantial that it warrants such an infringement on the deta inee's r igh ts 2 8 8 . It should however be noted that in Kahane, the Court chose a minimalist approach, specif ical ly indicating that there is no p lace to compare its function in reviewing a detention order under the Administrat ion Detention Law to its function when rendering a judgment in a criminal case . The Court specif ical ly stated that its responsibil ity is to examine the legality of the Minister 's dec is ion, as the law did not intend for the court to review the merits of the c a s e or to replace the Minister's considerat ions with its o w n 2 8 9 . In 1986 in the c a s e of Ploni v. Minister of Defence290 the Sup reme Court implemented a much more expans ive a p p r o a c h 2 9 1 . The petit ioner was al leged to be the region commander of Force 17, a unit of the Palest in ian Fatah movement, and had been originally administratively detained for a period of three months. The detention was prolonged 3 t imes, each time for an addit ional period of three months. In upholding the Minister 's decis ion to detain, the District Cour t ruled that 2 8 8 A.D.A. 1/80, 35(2) P.D. 253 at 261. 2 8 9 A.D.A. 1/80, 35(2) P D . 253 at 258-259; Appropriate Evidentiary Standards, supra note 193 at 224. 2 9 0 A.D.A. 2/86, 41(2) P.D. 508. 2 9 1 Appropriate Evidentiary Standards, supra note 193 at 224. 77 the ev idence on which the detention order was based could not be revealed to the petitioner and/or his counse l as this could endanger national security and compromise crucial intell igence sources . The Sup reme Court w a s cal led upon to review the dec is ion of the District Court which upheld the Minister of Defence 's order to prolong the administrative detention of the petitioner for the third time. The Sup reme Court d ismissed the petitioner's appea l , rejecting his lawyer's argument that the length of the detention and the failure to bring criminal charges against his client were indicative of the fact that the dec is ion to detain his client was ultra vires as it w a s not based on a reasonable foundation that the petitioner was a danger to national security or public safety, but rather it was fueled by the Minister of De fence 's desi re to use the petitioner a s a "bargaining chip" in negotiations with terrorist organizat ions holding Israeli c ivi l ians. T h e Sup reme Court stated that s ince the petitioner's counse l did not have a c c e s s to the information on which the detention order w a s b a s e d , this argument was speculat ive. Furthermore, the Court reviewed the information on which the detention order was based and dec ided that national securi ty concerns did indeed warrant the petitioner's de ten t ion 2 9 2 . The Sup reme Court a lso ruled that as the Minister 's discret ion to detain under sect ion 2 of the Administrat ive Detention Law is extraordinary and very broad, and as the actual detention is not punitive in nature, but intended to avert a possible future threat, the use of such a power must be exerc ised with great cau t i on 2 9 3 . 2 9 2 A.D.A. 2/86, 41(2) P.D. 508 at 514 - 515. 2 9 3 A.D.A. 2/86, 41(2) P.D. 514-515. 78 "The detention order must be the sole avai lable means of achieving the desired result. If alternative means bes ide a detention order are avai lable, the judge must dec lare the order invalid. Administrat ive detention is intended only for situations where no alternatives exist for achieving the desired objective. Difficulty in convict ing a person in ordinary criminal proceedings is not a reason for favoring administrative detention. However , if ev idence is privi leged and cannot be d isc losed , administrative detention b e c o m e s an o p t i o n " 2 9 4 In what is perhaps the most important part of the ruling, the Sup reme Court interpreted sect ions 4(a) and 4(c) of the Administrat ion Detention Law and d iscussed the role of the District Court Chief Just ice in the detention process. The Supreme Court adopted the position of Pro fessor Klinghoffer, a prominent Israeli Publ ic Law scholar, that an administrative detention order is a result of a "composite o r g a n " 2 9 5 as it "draws its effect from the Minister of Defence and the President of the District Court . In other words, an order is val id only when the two confirm it. P ro fessor Klinghoffer 's theory is based on the requirement that the detainee be brought before a judge within forty-eight hours for confirmation of the detention order. The theory a lso finds support from the progression in the law benefiting the detainee. Al though an order is conf irmed and becomes valid by virtue of the Minister of Defence and the President of the District Court, in contrast, resc iss ion of it requires a decis ion only of one of the two authorities. Therefore, a court must exerc ise its discretion when it dec ides whether to confirm or rescind an order. Pro fessor Klinghoffer a lso bases his theory on the discretion Bargaining Chips, supra note 252 at 757. Nun, supra note 262 at 191. 79 of the President of the District Court to shorten the period of t ime prescr ibed in the o rder " 2 9 6 . The Supreme Court went on to state that interpreting the wording of the law, and examining the spirit in which it was codif ied as well as its goal of enhancing judicial review, led the Court to conc lude that the legislator did not intend for the District Court to merely examine the legality of the detention order, rather the Court should cons ider the merits of the c a s e in deciding whether the detention and its length are crucial to ach ieve the objectives st ipulated in sect ion 2 of the s ta tu te 2 9 7 . Th is was a significant change in clarification of the law, which up until the point had been interpreted by the courts as a call to examine only the legality of the detention order. In 1988 in the c a s e of Agabriya v. State of IsraeP98, two petit ioners appealed administrative detention orders. Petit ioners O n e and Two were suspec ted of being the leader and a member of a group involved in incitement, and organizing violent demonstrat ions against the State of Israel. The Court ruled that the Minister of De fence based the decis ion to issue the orders on intell igence information which led him to bel ieve that, if not deta ined, the two petitioners would to a degree amount ing to "almost certainty" organize and take part in violent demonstrat ions on upcoming Palest in ian commemorat ion d a y s 2 9 9 . The Supreme Court ruled that the Minister of Defence is not limited by the Administrat ion Detention Law to issue a detention order only when an individual 2 9 6 Bargaining Chips, supra note 252 at 759. 2 9 7 A.D.A. 2/86, 41(2) P.D. 508 at 516 - 517. 2 9 8 A.D.A. 1-2/88, 42(1) P.D. 840. 2 9 9 A.D.A. 1-2/88, 42(1) P.D. 840 at 842-843. 80 poses a physical threat to national security or publ ic safety. There may be c i rcumstances in which the potential threat emanat ing from an individual's rhetoric or incitement would pose more of a threat than physical a c t i o n s 3 0 0 . The Court a lso aff irmed, albeit by way of obiter dictum, its previous ruling in P /OA?/ 3 0 1 , reiterating that the discretion of the District Court Chie f Just ice is very broad, enabl ing him to review not only the legality of the detention but a lso its merits and n e c e s s i t y 3 0 2 . In 1997 in the c a s e of Anon v. Minister of Defence303 the Sup reme Court exhibited the most drast ic judicial activism to date. The petit ioners, all of whom were Lebanese ci t izens, were brought by the IDF to Israel between 1986 and 1987. They were subsequent ly tried and convicted for their associat ion with terrorist organizat ions and involvement in terrorist attacks. Upon complet ing their sentences, the petit ioners were held in custody initially by m e a n s of deportation orders, and later by means of execut ive detention orders. After being detained for periods ranging between two and three years, they appea led the District Court 's decis ion to renew the detention o r d e r s 3 0 4 . The petitioners argued that they were no longer a threat to national security and that the only reason for their continued detention w a s s o that they could be used as "bargaining ch ips" in future negotiations with terrorist organizat ions supposedly holding Israeli soldiers as hostages, most notably Israel's most famous prisoner-of-war, air force navigator Ron A rad , shot down over Lebanon in 3 0 0 A.D.A. 1-2/88, 42(1) P.D. 840 at 844-845. 3 0 1 A.D.A. 2/86, 41(2) P.D. 508. 3 0 2 A.D.A. 1-2/88, 42(1) P.D. 840 at 845-846. 3 0 3 F.H. 7048/97, 54(1) P.D. 721. 3 0 4 A.D.A. 10/94 Anon v. Minister of Defence, 53(1) P.D. 97. 81 1986. In a majority dec is ion the Sup reme Court rejected the petit ions for re lease. The matter was not c losed , however. The case brought to the surface many complex legal and moral issues, the most notable of them being the quest ion of what constitutes "national security" and when it should trump bas ic human rights. A s such, the Sup reme Court conducted a "further hear ing" on the matter, a specia l procedure by which the Supreme Court revisits a ruling it has already made with an expanded panel of just ices. The further ruling in Anon305 was handed down in Apri l , 2000, and is considered by s o m e to be "a cornerstone in the legal field of human rights in Israeli constitutional l a w " 3 0 6 . A s the Court wrote: "There is no choice - in a democrat ic society seeking f reedom and security but to create a ba lance between f reedom and dignity on one hand and security on the other. Human rights cannot b e c o m e a pretext for denying public and State security. A ba lance is needed - a sensi t ive and difficult balance - between the f reedom and dignity of the individual and State and public sa fe ty " 3 0 7 . In the beginning of the ruling, the Court emphas i zed that the petitioners indeed no longer posed a threat to national security and that they were in fact being held so that they may be used to elicit pressure on terrorist organizat ions to "breach the wall of s i l e n c e " 3 0 8 with regard to the fate of miss ing and captured Israeli soldiers. The Court set out to determine whether or not such detention could be legally justified under the Administrat ion Detention Law. 3 0 5 F.H. 7048/97, 54(1) P.D. 721. 3 0 6 Bargaining Chips, supra note 252 at 721. . 3 0 7 F.H. 7048/97, 54(1) P.D. 721 at 743 as cited in Bargaining Chips, supra note 252 at 721. 3 0 8 F.H. 7048/97, 54(1) P.D. 721 at 761-762. 82 W h e n the c a s e first c a m e before the Supreme Court, Ch ie f Just ice Barak wrote the majority opinion ruling that the decis ion of the District Court Chief Just ice authorizing the petitioners' detention should be upheld. Barak wrote that "the detention of individuals for the purpose of the re lease of our miss ing and captured [soldiers] for the purpose of the protection of this interest in this manner is conferred on the respondent [the State] within the framework of the Detention L a w " 3 0 9 . The Ch ie f Just ice based the decis ion on secret ev idence which led him to conclude that if the petitioners were re leased, the negotiat ions for the re lease of the captured and miss ing Israeli soldiers would be u n d e r m i n e d 3 1 0 . W h e n the c a s e w a s cons idered again in the context of the further hearing, Chief Just ice Barak again wrote for the majority. H is opinion had changed . Barak wrote that s ince the first ruling he had reconsidered his dec is ion , writing that he did not bel ieve that a ruling's finality guarantees its correctness. W h e n forced to choose between truth and steadfastness, he must choose t ru th 3 1 1 . Barak wrote: Administrat ive detention violates the f reedom of the individual. W h e n the detention is carr ied out in c i rcumstances in which the detainee provides a 'bargaining chip', this compr ises a ser ious infr ingement of human dignity, as the detainee is perceived as a m e a n s of achieving an objective and not a s an objective in himself. In these c i rcumstances, the detention infringes the autonomy of will, and the concept that a person is the master of himself and responsib le for the outcome of his act ions. T h e detention of the appellants is nothing other than a situation in which the key to a person 's pr ison is not held by him but by o the rs 3 1 2 . A.D.A. 10/94 Anon v. Minister of Defence, 53(1) P.D. 97 at 108 as cited in Bargaining Chips supra note 252 at 728. 310 Bargaining Chips, supra note 252 at 728. 3 1 1 F.H. 7048/97, 54(1) P.D. 721 at 744 - 745. 3 1 2 F.H. 7048/97, 54(1) P.D. 721 at 743 -744 as cited in Bargaining Chips, supra note 252 at 727. 83 In a 6 to 3 majority decis ion the Court ruled that when balancing the state's security needs with an individual's bas ic human rights of liberty and dignity, the individual's rights must govern unless he poses a direct threat to the state's security. Thus in Anon this ba lance cannot support the cont inued detention of the pet i t ioners 3 1 3 . A s a result of the decis ion, Israel re leased the Lebanese detainees. A s Harold Rudolph writes: "Ultimately the decis ion is one of policy and not one of pure law. The advantages to be derived from an ' inquisitive' court, a court that is not prepared meekly to accept the dictates of the execut ive, but is prepared on a totally objective and independent bas is to ba lance such dictates against the equal ly important principles of individual liberty and f reedom, by far outweigh the poss ib le d isadvantages inherent in such act iv i ty" 3 1 4 The rulings examined above illustrate the expanded role of the Israeli courts in reviewing administrative dec is ions with national securi ty implications. For many years, in all l ikel ihood, wary of the public outcry which might ensue should it err, the Court demonstrated great deference to the will of the execut ive, refusing to review c a s e s on their merits or substitute the Minister 's considerat ions with those of its o w n 3 1 5 . The last three dec is ions c a n v a s s e d above demonstrate that this is no longer true. The Court has taken what has been cal led by s o m e judicial activism to new frontiers in interpreting the Administrat ive Detention Law according to Klinghoffer's posit ion, that when reviewing the Minister 's decis ion 3 1 3 F.H. 7048/97, 54(1) P.D. 727 at 743. Harold Rudolph, "The Judicial Review of Administrative Detention Orders in Israel" (1984) 14 Isr. Yearbook on Hum. Rts. 148 at 181. 3 1 5 Bargaining Chips, supra note 252 at 758. 84 the Court has a duty to not only review the legality of the c a s e but a lso its merits. Al though in A n o n 3 1 6 the Court may have reached an unpopular dec is ion as Israel received nothing in return for the pr isoners' re lease, there can be little doubt that the decis ion demonstrates great courage on the part of the Jus t ices and speaks to the democrat ic sys tem and va lues underlying Israeli society. 3 1 6 F.H. 7048/97, 54(1) P.D. 721. 85 Security Certificates in Canada: Balancing civil rights and national security In the previous sect ion, it was shown that the rights of an individual detained in Israel are outlined in the Emergency Powers (Detention) Law of 1979, and are subject to the court 's interpretation of the law on a c a s e by c a s e bas is . Israel, unlike C a n a d a , has only a set of Bas i c Laws, without a clearly def ined constitution. T h e s e laws will eventually form Israel's constitution. Sect ion 5 of the Bas ic Law concerning human rights in Israel (Basic Law: Human Dignity and Liberty, 1992) st ipulates that: "There shal l be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise". However, this sect ion can be c i rcumvented by sect ion 8, which states that: "There shal l be no violation of rights under this Bas i c Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required". It should be noted that while there are di f ferences of opinion regarding the superiority of the Bas i c Laws over other Israeli l a w s 3 1 7 , Anon v. Minister of Defence (see above) is one example in which individuals detained on suspic ion of posing a threat to national security successfu l ly chal lenged their detention as a violation of the Human Dignity and Liberty Law. C a n a d a ' s "bas ic laws" include The Canadian Charter of Rights and Freedoms3™, which was incorporated into the Constitution Act, 19823™. This document sets out to guarantee rights and f reedoms d e e m e d essent ia l in the 3 1 7 The Knesset, "Basic Laws - Introduction", online: <http://www.knesset.gov.il/description/eng/eng_mimshal_yesod.htm>. 318 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 [Charter]. 319 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. 86 preservation of a free and democrat ic society. T h e Char ter st ipulates that: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental jus t i ce" 3 2 0 ; "Everyone has the right not to be arbitrarily deta ined or impr i soned" 3 2 1 , once detained to be informed promptly of the reasons there fo r 3 2 2 and to be tried within a reasonable t i m e 3 2 3 . Yet, despite guaranteeing bas ic human rights by constitutional documents and ratified international t rea t ies 3 2 4 , Canad ian governments occas ional ly violate their entrenched commitment to due process va lues, loosely interpreting "reasonable limits" on individual rights and f reedoms as outl ined in sect ion 1 of the Charter325. The use of security certif icates has been , perhaps, the most blatant recent examp le of this infringement. Here in, I will examine the use of security certif icates up until the Supreme Court of C a n a d a ' s 2007 ruling of such certificates as unconst i tu t ional 3 2 6 . Whi le the ruling and the Court 's suggested amendments to the law including measures such as a move c loser to the "correctness" standard of review, and use of spec ia l counse l are a major step forward for individual rights and f reedoms in C a n a d a , they do not go quite far enough. Addit ional s teps, such as a shift in the burden of proof, and consequent ly an alternative standard of proof, are necessary . 3 2 0 Charter, supra note 318 s. 7. 3 2 1 Charter, supra note 318 s. 9. 3 2 2 Charter, supra note 318 s. 10(a). 3 2 3 Charter, supra note 318 s. 11(b). 324 International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47, 6 I.L.M. 368; Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 24 June 1987, Can. T.S. 1987 No. 36; Convention Relating to the Status of Refugees, 4 June 1969, Can. T.S. 1969 No. 6. ; 3 2 5 Charter, supra note 318 s. 1. 326 Charkaoui v. Canada (Citizenship and Immigration), [2007] SCC 9 [Charkaoui SCC]. 87 Implementation of greater procedural protections, such as a statutory right of appeal coupled with the adaptation of an alternative standard of proof - the "clear and convincing ev idence standard" - for use in determining whether sufficient credible ev idence exists to warrant i ssuance of a securi ty certif icate, would better serve the c a u s e s of just ice and security in the C a n a d i a n context. T o this end much can be learned from the exper iences of the United States and Israel. Securi ty certif icates - i ssued jointly by the Minister of Ci t izenship and . Immigration and the Minister of Publ ic Safety and Emergency Preparedness under the Immigration and Refugee Protection Act, S.C. 2001, c. I-2 ( IRPA) -differ from other recent measures encroaching on civil l iberties in that they were not conceived in the wake of the Wor ld Trade Centre attacks. The current provisions of the I R P A governing these matters are nearly identical to those of the previous Immigration Act , the Immigration Act, R.S.C. 1985, c. I-2. Simply put, they enab le the government to deport any non-cit izen who is deemed a security risk to C a n a d a , without substantive judicial review. T h e consequences may include indefinite administrative detention as well as deportation to face tor ture 3 2 7 . One central matter concerns the standard of judicial review of the Ministerial decis ion to detain. In Suresh v. Canada (Minister of Citizenship and Immigration)228, the Sup reme Court ruled that the court should "set as ide the Ministers' discret ionary dec is ion" only: 3 2 7 British Columbia, B.C. Civil Liberties Association, National Security: Curbing the Excess To Protect Freedom and democracy, (Vancouver B.C.: B.C. Civil Liberties Association (bccla.org), October 2005) at 66-67. 328 Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 [Suresh]. 88 if it is patently un reasonab le in the s e n s e that it w a s m a d e arbitrari ly or in bad faith, it canno t be suppor ted on the ev i dence , or the Min is ter fai led to cons ide r the appropr ia te factors . T h e court shou ld not rewe igh the factors or interfere mere ly b e c a u s e it wou ld have c o m e to a different c o n c l u s i o n 3 2 9 . T h e appel lant , Suresh, w a s the subject of deportat ion hear ings c o m m e n c e d aga ins t h im on susp i c i on that he w a s a m e m b e r of and fundra iser for the Liberat ion T igers of Tami l E e l a m , an organ izat ion a l l eged to be e n g a g e d in terrorist activity in Sr i L a n k a . M e m b e r s of the Tami l T ige rs are sub jec t to torture in that country. Suresh, in an appea l to the S u p r e m e Cour t of C a n a d a , cha l l enged the const i tut ional validity of the p rocedu res for depor ta t ion, spec i f ica l ly whe ther the Immigration Act permits deportat ion to torture, contrary to the Char te r , and the v a g u e n e s s of te rms s u c h a s "danger to the secur i ty of C a n a d a " and "terror ism". Desp i te the s e v e r e c o n s e q u e n c e s invo lved , the S u p r e m e Cour t of C a n a d a in effect sanc t ioned re l iance on the least str ingent s tandard of judic ia l rev iew. Th is , desp i te the fact that in addi t ion to the potent ial ly ex t reme infr ingement of the de ta inee 's bas i c h u m a n rights (torture o v e r s e a s ) , the result wou ld be r e a c h e d fo l lowing p rocedures in wh ich the de ta inee en joys very few sa fegua rds . Procedural Process in the Issuance of Security Certificates T h e p r o c e s s by wh ich v is i tors to C a n a d a , re fugees and pe rmanen t res idents may be depor ted f rom C a n a d a w h e n d e e m e d a risk to nat ional secur i ty or to the 3 2 9 Ibid, at 23-24. safety of any pe rson is set out in the I R P A . T h e p rocedure es tab l i shed in the I R P A is in tended to ba l ance two oppos ing interests: "the interest of the state in protect ing nat ional secur i ty , and the interest of the indiv idual [the subject] in be ing ab le to asser t , in his de fence , all the rights normal ly ava i lab le to h i m " 3 3 0 . T h e p r o c e s s cons is ts of partial ly over lapp ing s t a g e s 3 3 1 : 1. Invest igat ion and gather ing of ev i dence aga ins t a pe rmanen t res ident or a foreign nat ional . ' 2. S ign ing of a secur i ty cert i f icate and fil ing it with the F e d e r a l Cour t . 3. Detent ion 4. App l ica t ion by the de ta inee to the Min is ter of Immigrat ion for protect ion. 5. Determinat ion by Fede ra l Cour t a s to whether the secur i ty cert i f icate is r easonab le and whether the dec is ion on the app l ica t ion for protect ion (if requested) is lawfully m a d e . S t a g e 1 W h a t l eads to the i s s u a n c e of a secur i ty cert i f icate? "Due to the se r ious impl icat ions attr ibuted to the i s s u a n c e of a secur i ty cert i f icate", C a n a d a ' s Secur i ty Intel l igence S e r v i c e ( C S I S ) , reports that it fo l lows a "careful ly cons ide red and r igorous p r o c e s s " w h e n it c o m e s to their i s s u a n c e , cu lminat ing in the preparat ion of the secur i ty inte l l igence report (SIR) upon wh ich 330 Charkaoui (Re) (F.C) [2004] 3 F.C.R. 32. 331 Supra note 327 at 67. So the Minister's dec is ion to issue (or not issue) the certificate is b a s e d 3 3 2 . Severa l condit ions must be met before C S I S considers preparing a SIR. First, the individual must be identified as posing a significant threat to C a n a d a ' s security. This assessmen t is contingent upon the C S I S ' possess ion of sufficient threat-related information and intell igence. The information must be reliable and corroborated by multiple sources . S e c o n d , the individual 's removal must be of strategic value, Third, C S I S must have "sufficient re leasable open-source information to support an unclassi f ied summary documen t " 3 3 3 . Stage 2 The factors cons idered in determining whether or not an individual poses a threat which warrants inadmissibil i ty are set out in subsec t ions 34 - 37 of the IRPA. T h e s e include al leged acts of esp ionage, terrorism, v io lence, subvers ion, and membersh ip in any organizat ion engaging in these activit ies (subsect ion 34 of the IRPA) . If the Minister of Ci t izenship and Immigration and the Minister of Publ ic Safety and Emergency Preparedness determine that there are reasonable grounds to bel ieve that an individual poses a security threat, subsect ion 77(1) stipulates that the Ministers shal l both sign a certificate stating that the foreign national or permanent resident is inadmissible on grounds of security, violating human or international rights, ser ious criminality or organized criminality. The signing by both ministers is an absolute requisite which can not be delegated. CSIS, "Certificates Under The Immigration and Refugee Protection Act", online: CSIS Backgrounder No. 14,<http://www.csis.gc.ca/en/newsroom/backgrounders/backgrounder14 asp> 3 3 3 /Jb/d. 91 The certificate is then referred to a Federa l Court judge who must "on the basis of the information and ev idence avai lable, determine whether the certificate is reasonable.. . [T]he judge shal l quash a certificate if the judge is of the opinion that it is not reasonable" (subsect ions 80(1) and 80(2) of the IRPA) . At this time, any refugee or immigration proceedings concerning the person named, other than an appl icat ion for protection under subsect ion 112(1) of the IRPA, are adjourned until a determination on the certificate is m a d e 3 3 4 . Stage 3 Detention of a permanent resident named in a security certificate requires the issuance of a warrant for arrest by the Ministers of Ci t izenship and Immigration and of Publ ic Safety and Emergency P r e p a r e d n e s s 3 3 5 . Detent ion of a foreign national does not require such a warrant and is effectively mandatory upon signing a security cer t i f icate 3 3 6 . Judic ia l review of the reasons for continued detention of a permanent resident shal l commence within 48 hours of the beginning of the detention, and the detainee must be brought before a judge at least every six months for further reviews, at which t ime the judge shal l order the detention cont inued if sat isf ied that the detainee p o s e s continuing danger to national security or to the safety of any person, or is unlikely to appear at a Immigration and Refugee Protection Act, S.C. 2001, c. I-2, s. 77(2) [IRPA] IRPA, ibid. s. 82(1). IRPA, ibid. s. 82(2). 92 proceeding, or for r e m o v a l 3 3 7 . It is noteworthy that the dec is ion to detain the subject of a security certificate is not open for judicial a p p e a l 3 3 8 . The I R P A enab les the Minister to order the subject 's re lease to permit their departure from C a n a d a 3 3 9 . Similarly, a foreign national may be re leased from detention after 120 days if they have not been removed from C a n a d a and if the judge is satisf ied that the subject will not be removed from C a n a d a within a reasonable time and that the re lease will not pose a danger to national security or to the safety of any p e r s o n 3 4 0 . Stage 4 Subsect ion 112(1) of the I R P A enab les the named individual, if eligible, to appeal to the Minister of Ci t izenship and Immigration for protection. A subject would be cons idered in need of protection if he can provide satisfactory ev idence to the Minister that upon return to his country of nationality he would face substantial risk of death, torture or cruel and unusual treatment or punishment. Once such an appea l has been fi led, and on the request of the Minister of Ci t izenship and Immigration or the subject himself, the court shal l suspend the proceedings with respect to reasonab leness of the certificate in order for the Minister to make a dec is ion on the application for p ro tec t ion 3 4 1 . In Suresh the Sup reme Court ruled that: IRPA, ibid. ss. 83(1), 83(2), 83(3). Supra note 327 at 69. IRPA, supra note 334 s. 84(1). IRPA, supra note 334 s. 84(2). IRPA, supra note 334 s. 79(1). 93 It is for the refugee to establ ish a threshold showing that a risk of torture or similar abuse exists before the minister is obl iged to consider fully the possibil ity. Th is showing need not be proof of the risk of torture to that person, but a prima facie case that there may be a risk of torture upon deportation. If the refugee estab l ishes that torture is a real possibil i ty, the Minister must provide the refugee with all the relevant information and advice she intends to rely on, provide the refugee an opportunity to address that ev idence in writing, and after consider ing all the relevant information, i ssue responsive written reasons . Th is is the minimum required to meet the duty of fa i rness and fulfill the requirements of fundamental just ice under s. 7 of the Charter. The I R P A stipulates that even if the Minister of Ci t izenship and Immigration determines that the subject is at risk of suffering torture, upon returning to his country of nationality, the application for protection may be refused on account of: "the nature and severity of acts committed by the appl icant or because of the danger that the appl icant constitutes to the security of C a n a d a " 3 4 2 . In the words of the Court in Suresh: W e conc lude that general ly to deport a refugee, where there are grounds to bel ieve that this would subject the refugee to a substantial risk of torture, would unconstitutionally violate the Char te r ' s s. 7 guarantee of life, liberty and security of the person. Th is sa id , we leave open the possibil ity that in an except ional c a s e such deportation might be justified either in the balancing approach under ss . 7 or 1 of the Charter343. IRPA, supra note 334 s. 113(d)(ii). Suresh, supra note 328 at 68. 94 It is the duty of the designated judge to determine solely whether the Minister's dec is ion regarding the application for protection was lawfully m a d e 3 4 4 . It should be noted that the process of filing an appl icat ion for protection can be quite lengthy and subject to administrative delays, usual ly while the subject is de ta i ned 3 4 5 . S tage 5 The final s tage is the Federa l Court, Trial Div is ion's determinat ion with regard to the reasonab leness of the certificate. Under subsect ion 78 of the IRPA, at the request of either of the signing ministers, the judge shal l hear all or part of the ev idence on which the security certificate is based in private proceedings, in the absence of the subject and his lawyer, within seven days of referral. The judge may receive into ev idence anything that in his opinion is appropriate, regardless of its admissibi l i ty in a court of law, and may base his opinion on that ev idence. The judge may refuse d isc losure of information to the subject and to his lawyer if in his opinion its d isc losure would be injurious to national securi ty or to the safety of any person. The subject is afforded a hearing and the judge must provide the subject with a summary of the information or ev idence, enabl ing him to be "reasonably informed" of the c i rcumstances giving rise to the certificate. The IRPA stipulates, however, that the judge must ensure the confidentiality of the information on which the certificate is based , and any other ev idence the disclosure of which, in the opinion of the judge, would be injurious to national 3 4 4 IRPA, supra note 334 s. 80(1). 345 Supra note 328 at 70. 95 security or to the safety of any person. "Information that would be withheld from the subject of the certificate could include, but is not limited to, details concerning human or technical sources , intell igence-gathering techniques and methods or information communicated in conf idence from a foreign a g e n c y " 3 4 6 . The I R P A also stipulates that the s a m e evidentiary proceedings which regulate the divulgence of information with regard to the reasonab leness of the security certificate a lso regulate the hearing regarding the subject 's de ten t ion 3 4 7 , thus the subject may and will in all l ikelihood be detained, unaware of all or part of the ev idence which led to his detention. Should the certif icate be found reasonable, it is d e e m e d conc lus ive proof that the subject is inadmissib le. The ruling thus becomes a removal order which may not be appealed or judicially r e v i e w e d 3 4 8 . G iven the se r iousness of the matter and the finality of the judge's decis ion, judicial review of the Ministers ' dec is ion is a task of some consequence . A n understanding of the var ious standards of review appl icable to administrative dec is ions is crit ical. Standards of Review The standard of review refers to the "degree of intensity with which the courts will examine the dec is ion of a statutory delegate, whether on an appea l or on an application for judicial rev iew" 3 4 9 . Unfortunately, the legislature often d o e s not specif ical ly articulate what powers it intends to confer on the statutory delegate, 346 Supra note 332. 3 4 7 IRPA, supra note 334 s. 83(1). 3 4 8 IRPA, supra note 334 s. 81. 3 4 9 David Phillip Jones & Anne S. de Villars, Principles of Administrative Law, 4 t h ed. (Toronto: Carswell, 2004) at 451 [Principles of Administrative Law]. 9 6 or the relationship between the statutory delegate and the court 's power. Consequent ly , courts most often have to determine what powers the legislature intended to give the statutory delegate and the court itself from a ser ies of inferences taken from statutory language. This determination dictates the standard of review the court should apply, and ultimately, to what extent the court will defer to the decis ion of the statutory de lega te 3 5 0 . The most stringent standard of judicial review was articulated in the Engl ish c a s e of Anisminic Ltd. V. Foreign Compensation Commission (1968)35\ T h e House of Lords outl ined the condit ions under which the court has or does not have jurisdiction to review a statutory delegate 's dec is ion, al lowing "the courts to use a microscopic examinat ion of a delegate 's act ions in order to find jurisdictional defects which the courts can cor rec t " 3 5 2 . Whi le this approach has been used by the S u p r e m e Court of C a n a d a in s o m e c a s e s , the Engl ish courts have in effect "extended Anisminic to the point where it is now simply assumed that all errors of law can be reviewed and corrected by the cou r t s " 3 5 3 . This implies, by consequence , that there is only one correct interpretation of the l a w 3 5 4 . Thus , the standard for judicial review in Eng land in so far as matters of law are concerned is c losest to "correctness", "al lowing the court to determine whether it agrees with the decis ion of the statutory de legate; and , if not, to substitute its own view of the correct ou t come" 3 5 5 . 350 Ibid, at 455 - 456. 3 5 1 [1969]2A.C. 147 (U.K.H.L.). 3 5 2 Principles of Administrative Law, supra note 349 at 456 - 457 353 Ibid, at 457. 354 Ibid, at 458, 355 Ibid, at 483. 97 The least stringent standard for judicial review in C a n a d a , outl ined in the benchmark ruling Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corp 3 5 6 is the "not patently unreasonable" t es t 3 5 7 . Accord ing to this standard, the correctness of the statutory de legate 's or lower tr ibunal's decis ion is, effectively, irrelevant. If the lower judicial body served its purpose in rendering a dec is ion which was not unreasonable on its face, the higher court should exerc ise judicial restraint, and not in te rvene 3 5 8 . It shou ld be noted that this standard has "no appl icat ion to constitutional quest ions or jurisdictional g i vens " 3 5 9 . The concept of var ious standards of review bookmarked by "correctness" at one end, and "patent unreasonab leness" at the other, and the articulation of the intermediate standard of review ("reasonableness simpliciter"), as well as the determination of when e a c h standard should be uti l ized, is a result of three landmark dec is ions of the Supreme Court of C a n a d a 3 6 0 : Pezim v. British Columbia (Superintendent of Brokers)361; Canada (Director of Investigations & Research) v. Southam Inc.362; and Pushpanathan v. Canada (Minister of Employment & Immigration)363. Accord ing to the " reasonab leness simpliciter" s tandard, the court must determine "whether 'after a somewhat probing examinat ion, can the reasons [1979] 2 S.C.R. 227. Principles of Administrative Law, supra note 349 at 459. Principles of Administrative Law, supra note 349 at 469. Principles of Administrative Law, supra note 349 at 462. Principles of Administrative Law, supra note 349 at 471. Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557. Canada (Director of Investigations & Research) v. Southam Inc., [1997] 1 S.C.R. 748. Pushpanathan v. Canada (Minister of Employment & Immigration, [1988] 1 S.C.R. 982. 98 given, when taken as a whole, support the d e c i s i o n ? ' " 3 6 4 . If the delegate 's or lower judicial body 's decis ion may be supported by a "tenable" explanat ion based on the ev idence, that dec is ion may satisfy the reasonab leness standard. This does not imply cor rectness, nor does it imply that the higher court would have reached the s a m e dec is ion. Thus , the reasonab leness simpliciter standard of review is more stringent than the patent unreasonab leness standard, but less stringent than the correctness s t a n d a r d 3 6 5 . Accord ing to the rulings in Law Society of New Brunswick v. Ryan366, and Q v. College of Physicians & Surgeons (British Columbia)367, determining the standard of review "is all a matter of applying a pragmat ic and functional approach to determine how much deference the legislators intended the courts to apply in a particular c a s e " 3 6 8 . The "functional and pragmatic approach for determining the appl icable standard of review" takes into account four fac to rs 3 6 9 : 1. Ex is tence of a privative c lause (suggesting the adoption of a more deferential standard); 2 . The level of expert ise of the statutory delegate relative to that of the court on the matter in quest ion (the higher the expert ise imba lance in favour of the statutory body, the more deference should be accorded) ; 3. The purpose of the Ac t as a whole, and the provision at i ssue in particular; 364 Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 as cited in Principles of Administrative Law, supra note 349 at 479. 3 6 5 Principles of Administrative Law, supra note 349 at 483 - 484. 3 6 6 [2003] 1 S.C.R. 247. 3 6 7 [2003] 1 S.C.R. 226. 3 6 8 Principles of Administrative Law, supra note 349 at 477. 3 6 9 Principles of Administrative Law, supra note 349 at 476. 99 4. Whether the problem is one of law or of fact (question of law, being the specia l preserve of the courts, resulting in bodies being accorded less deference). Apply ing the functional and pragmatic approach to determining the standard of review appropriate to ministerial decis ions to detain, the courts have ruled out the "correctness" standard, mainly on account of the strong language of the IRPA. The court must, thus, determine whether the Ministers acted within their discretion, and if so, whether their discretion was exerc ised in an unreasonable manner or a patently unreasonable m a n n e r 3 7 0 . In reviewing the Ministers' decis ion with respect to whether Suresh 's p resence in C a n a d a constituted a danger to national security, the court deferred to the Ministers' dec is ion, having concluded that the appropriate standard of review is "patent unreasonab leness" in such c a s e s . Apply ing the functional and pragmatic approach, the court found that the language of the I R P A which limited the right of appea l , the relative expert ise of the Ministers compared with the court, and the highly contextual and fact-based nature of the case , all left little room for judicial in tervent ion 3 7 1 . Diagnosing the Problem and Suggested Solutions In Suresh the court ruled that: "The greater the effect on the life of the individual by the dec is ion, the greater the need for procedural protections to meet the common law duty of fa i rness, and the requirements of fundamental justice 3 7 0 Principles of Administrative Law, supra note 349 at 524 - 528. 371 ibid. 100 under s. 7 of the Charted72. This statement demonstrates a v iew ostensibly adopted by the Canad ian Supreme Court. The gap between principle and outcome in Suresh i l lustrates the Immigration Act's (and the IRPA 's ) problematic nature. In security certificate hearings, the adversar ia l procedures used for all other types of c a s e s are c i rcumvented. The subject is not afforded any meaningful due process , as the ev idence presented in support of the Crown 's case in issuing the certificate (and in the cont inued detention of the subject), need not be divulged either to the subject or to his lawyer. Hear ings can be held in camera , at the request of one of the Ministers. Thus , even if substant ive justice is served, the procedures used give little assu rance of actual justice being served. The Federa l Court Trial Division hearing occurs ex post facto and examines only the reasonab leness of the Minister 's dec is ion , not the matter's mer i t s 3 7 3 . This amounts to a sham judicial preceding, giving "cover" to Ministerial actions that are s for all practical purposes, unreviewable. Further, the Sup reme Court of C a n a d a has ruled that in reviewing ministerial decis ions to deport [and detain] under the Act the: Cour ts must accord deference to those dec is ions. If the Minister has considered the correct factors, the courts should not reweigh them. Prov ided the.. . dec is ion is not patently unreasonab le -unreasonable on its face, unsupported by the ev idence, or vitiated by failure to cons ider the proper factors or apply the proper procedures - it should be u p h e l d 3 7 4 . 3 7 2 Suresh, supra note 328 at 63. 373 Canada, Canadian Muslim Lawyers Association, Justice, Human Rights, Public Safety & Emergency Preparedness, (Canada: Canadian Muslim Lawyers Association, September 2005) at 8. 3 7 4 Suresh, supra note 328 at 29. 101 Stunningly, the dec is ions of the Federa l Court Trial Div is ion, hemmed in on all s ides as they are, cannot be reviewed or appea led . Thus , in contradistinction to the Sup reme Court 's recognit ion of a "greater need for procedural protection", the court adopts a deferential approach when assess i ng the Minister 's decis ion with regard to both the detention and the i ssuance of the certificate, and intervenes only when the decis ion is deemed "patently unreasonable" . The absurdity of the court cal l ing for procedural sa feguards on one hand, yet deferring, carte b lanche, to dec is ions by ministers applying a statute where very few such safeguards exist, highlights the fundamental difficulty of address ing the terrorist threat within a framework of the Rule of Law. Whi le it could be argued that the procedure as outl ined in the I R P A strikes an "acceptable ba lance" between the State's interest and the subject 's rights, a case could a lso be made that the procedure violates the principles of fundamental justice given constitut ional force under the Charter. In Charkaoui275 (a Permanent Resident of C a n a d a of Moroccan descent suspected of membersh ip in the Bin Laden network) the Federa l Court ruled that the ba lance was indeed acceptable and that the procedure set out in the I R P A is consistent with the principles of fundamental justice. Mr. Charkaou i ' s counse l submitted, however, that: T h e procedure. . .v io lates the principles of fundamenta l just ice.. . the role of the designated judge, the exclus ion of information on grounds of national security, the hear ings held in the absence of the person concerned and his counse l , as well as the s tandards of " reasonab leness" for the certif icate and " reasonable grounds to bel ieve" that a danger to Charkaoui (Re)(F.C.) [2004] 3 F.C.R. 32. 102 national security exists, are clearly in breach of the principles of fundamental j us t i ce " 3 7 6 The most problematic aspects of the statute, are the standard of proof required to issue the certificate (further d i scussed below), and the standard of review used by the court to review the Ministers' dec is ion . Sect ion 82(1) of the I R P A stipulates that an individual named in a security certif icate may be detained if the Ministers have " reasonable grounds to bel ieve that the permanent resident is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal". Accord ing to sect ion 80(1) of the IRPA, the judge reviewing the Ministers ' dec is ion must determine whether the decis ion is " reasonable" . In Charkaoui the Federal Court ruled that "national security is such an important interest that its protection warrants the use of s tandards other than the preponderance of ev idence s tandard " 3 7 7 . Having sa id that, the court a lso determined that "the ' reasonab leness ' and ' reasonable grounds to bel ieve' standards comport requirements that come c lose to the preponderance of ev idence s tanda rd " 3 7 8 . Up until the February 2007 Canad ian Sup reme Court ruling in Charkaoui, Almrei and Harkat, C a n a d i a n courts had ruled that the I R P A "fulfills the minimum requirements of the principles of fundamental j us t i ce " 3 7 9 , that using "the reasonab leness" and "reasonable grounds to bel ieve" s tandards is necessary in order to avert catastrophe, and that it strikes a proper ba lance between individual 376 Ibid, at 69. 377 Ibid, at 38. 378 Ibid, at 8 7 - 8 8 . 3nCharkaoui (Re)(F.C.) [2004] 3 F.C.R. 32; Harkat (Re), [2005] F.C.J. No. 481; Ahani v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72. 103 rights and national security. Appl icat ion of the " reasonab leness" standard, however, in the face of reduced procedural protections, including rel iance upon secret hearings where neither the detainee nor his lawyer are present, lack of a c c e s s to ev idence, and denial of a right of appea l , opens the door to error. The consequences are enormous for individuals who may be wrongfully suspec ted , detained over protracted per iods and eventually deported. C a n a d a ' s record of wrongful convict ion is shamefu l enough even in the cr iminal courts where full procedural protections are r e s p e c t e d 3 8 0 . Moreover, s ince the statute appl ies only to non-cit izens, sys temic b ias will result: the "risks of wrongful accusat ions . . .a re not distributed equal ly in society but fall disproportionately on var ious religious, racial and political minor i t ies" 3 8 1 . Charkaou i , Harkat and Almrei chal lenged the constitutionality of the IRPA ' s certificate scheme , under which they were detained. Wh i le Charkauou i had permanent resident status in C a n a d a , Harkat and A lmre i were foreign nationals recognized as Convent ion refugees. Al l three were suspec ted of terrorist act iv i t ies 3 8 2 . T h e appel lants argued that the i ssuance of securi ty certif icates under the I R P A violated "five provisions of the Charter: the s. 7 guarantee of life, liberty and security of the person; the s. 9 guarantee against arbitrary detention; the s. 10(c) guarantee of prompt review of detention; the s. 12 guarantee against cruel and unusual treatment; and the s. 15 guarantee of equal protection and Government of Canada, Philip Rosen "Wrongful Convictions in the Criminal Justice System", online: <http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/bp285-e.htm#INTRODUCTION>. 3 8 1 Kent Roach & Gary Trotter, "Miscarriages of Justice in the War Against Terror", (2005) 109 Penn St. L. Rev. 967 at 1033. 3 8 2 Charkoui SCC, supra note 326 at 21-22. 104 equal benefit of the l a w " 3 8 3 . In 2007, the Supreme Court ruled that the security certificate proceedings are indeed unconstitutional. The most critical bas is for the decis ion w a s that these proceedings fundamental ly infringe on s. 7 of the Charter in ways which cannot be justified under s. 1. The Court stated that: "In the I R P A an attempt has been made to meet the requirements of fundamental just ice essent ia l ly through one mechan ism - the designated judge charged with reviewing the certificate of inadmissibi l i ty and the detent ion.. .despi te the best efforts of judges of the Federa l Court, to breathe judicial life into the I R P A procedure, it fails to assure the fair hearing that s. 7 of the Charter requires before the state depr ives a person of life, liberty, or security of the p e r s o n " 3 8 4 . One of the sticking points included issues surrounding the independence and impartiality of the designated judge, specif ically that he or she may appear to be an agent of the government, that he or she may be forced to take on the role of investigator, and that he or she may identify with the named person in proceedings where the named person is absent and/or may not have a c c e s s to the material relevant to his case . The main st icking point, however, s p e a k s to the use of secret ev idence in security certificate hear ings. Limited disc losure and ex parte hearings make it nearly impossible for a deta inee to mount a meaningful de fense. A s the Court stated: "In the context of national security, non-d isc losure, which may be extensive, coupled with the grave intrusions on liberty imposed on a detainee, make it difficult, if not impossible, to find substitute procedures that will satisfy s. 7 . . .The fairness of the I R P A Charkoui SCC, supra note 326 at 22. Charkoui SCC, supra note 326 at 47. 105 procedure rests entirely on the shoulders of the designated judge. Those shoulders cannot by themse lves bear the heavy burden of assur ing, in fact and appearance , that the decis ion on the reasonab leness of the certificate is impartial, is based on a full v iew of the facts in law, and reflects the named person 's knowledge of the case to meet. The judge, working under the constraints imposed by the IRPA, simply cannot fill the vacuum left by the removal of the traditional guarantees of a fair hea r i ng . . . " 3 8 5 . The Court left Par l iament with the task of developing speci f ic mechan isms of procedural fa i rness, and a deadl ine of one year to accompl ish the task. At the s a m e time, the ruling surveyed a number of methods which would al low for minimal impairment of detainee rights without compromis ing national security. These included use of spec ia l counse l such as in the Ara r Inquiry, and use of the Security Intelligence Rev iew Commit tee (SIRC) and the spec ia l advocate system employed by the Spec ia l Immigration Appea ls C o m m i s s i o n (SIAC) in the United Kingdom, as models for emulat ion. S o m e of these will be d i scussed , as will additional methods not included in the ruling. In the Court 's 2007 dec is ion, the standard of review to be used when the court c o m e s to cons ider the Ministers' dec is ion is cons idered. A s shown above, the functional and pragmatic approach presently prec ludes appl icat ion of the "correctness" standard on review, primarily because of the lack of right of appeal in the I R P A and to the relative lack of expert ise on the part of the courts in national security matters. Chang ing the I R P A so as to create a statutory right of appeal (as exists both in Israel and in the United States) would immediately shift Charkoui SCC, supra note 326 at 44-46. 106 the standard of review away from the patent unreasonab leness standard. The Court states: "The certificate provisions of the I R P A do not violate ss . 7 and 12 of the Charter if accompan ied by a process that provides regular opportunities for review of detention, taking into account all relevant f ac to r s " 3 8 6 including reasons for detention, length of detention, reasons for delay in deportat ion, anticipated future length of detention, and the availability of alternatives to detention. S ince the same body would review and re-review its own dec is ion , however, this procedure does not count as an appeal (the most desi rable option) in the strict sense . However, as designated judges gain expert ise in reviewing administrative detention dec is ions, their inclination to take a deferential approach may diminish over time. Under these condit ions, in applying the functional and pragmatic approach to determining the required standard of review, the courts would presumably move c loser to the correctness standard. It has been noted that it is not unheard of for s tandards of review to change given "supervent ing e v e n t s " 3 8 7 . Amicus Curiae and special counsel The Court points to one ser ious defect in current securi ty certificate procedures - the denial of full rights of representation by counse l . A n additional innovation that would better ba lance security needs against subject 's interests, would be to permit the appointment of an amicus curiae. It has been seen that this is done in the United States and Israel. It is a lso permitted in Britain. This idea was previously raised in C a n a d a in the McDona ld Commiss ion Report 3 8 6 Charkoui SCC, supra note 326 at 68. 3 8 7 See Principles of Administrative Law, supra note 349 at 517 - 518. 107 publ ished in 1 9 8 1 j a B . The Commiss ion was the first to suggest the idea of appointing designated judges from the Trial Division of the Federa l Court to issue secret warrants in ex parte hear ings. In consider ing whether to recommend procedures permitting the appointment of a "friend of the court", the commiss ion wrote: Th is officer would appear before the judge and point out poss ib le w e a k n e s s e s or inadequac ies in the appl icat ions. Whi le we think such a proposal has considerable merit and have considered it carefully, we have conc luded that, on balance, it would not be adv isab le to adopt such a mechan ism. The adversar ia l e lement afforded by such a procedure might be rather artificial and would make the p rocess of approving appl icat ions unduly complex. Further, we think that an exper ienced judge is capab le of giving adequate considerat ion to all relevant aspec ts of an appl icat ion without the ass is tance of an adversar ia l p r o c e d u r e " 3 8 9 In December , 2004 the issue came before the Federa l C o u r t 3 9 0 while examining the reasonab leness of a security certificate issued against Mohamed Harkat (an al leged terrorist from Algeria). Harkat asked the court to appoint an amicus curiae to ass is t the court with regard to matters which could not be d isc losed to himself or his lawyer. He argued that his c a s e w a s more compl icated in its history and c i rcumstances than those of previous security certificate detainees [such as Ahani v. Canada]. 0 0 8 Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police. Freedom and security under the law: Second Report, vol. 1, 2 (Ottawa: Supply and Services Canada, 1981) [McDonald Commission]; also see Harkat (Re)(F.C), [2005] 2 F.C.R. 416 at 443-444. 389 McDonald Commission, supra note 372 at paragraphs 104 and 106 of part V (vol. 1 pages 557-558); also see supra note 330 at 56. 390 Harkat (Re)(F.C), [2005] 2 F.C.R. 416. 108 Mr. Ha rka f s lawyers provided the Court with the n a m e s of two eminent members of the Law Society of Upper C a n a d a , each of whom had previously been granted "top secret" security c learance and each of whom had agreed to take on the c a s e if the Court were to appoint them. Mr. H a r k a f s lawyers argued that: A n amicus curiae would al low the Court to benefit f rom hear ing representat ions of counse l which would not otherwise be put forward, while preserving the government 's claim to national security interest. Cons ider ing the type of issues the Court will be cal led upon to dec ide, the ass is tance or input of an amicus curiae could prove invaluable so that Mr. Ha rka f s interest will be more completely protected. The appointment of an amicus curiae is said to strike a just ba lance between the compet ing interests inherent in the c a s e " 3 9 1 . His lawyers acknowledged that the power to appoint an amicus curiae was not specif ical ly granted to the Court on the terms of the legislation but asserted that the Court had jurisdiction to make such an appointment both at common law and under subsect ion 24(1) of the Charter, which provides that: "Anyone whose rights or f reedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy a s the court considers appropriate and just in the c i r cums tances " 3 9 2 . Moreover , it was argued that such an appointment was necessary to "prevent a b reach of Mr. Harka ts 's rights guaranteed under sect ion 7 of the Char te r " 3 9 3 . Ibid, at 430-431. Charter, supra note 318 s. 24(1). Supra note 390 at 424-425. 109 While the Court decl ined to decide whether or not it had the jurisdiction to appoint an amicus, it noted that it would a s s u m e that it d id. Despi te this, the Court ruled that such an appointment was "not in acco rdance with the intent of Parl iament as expressed in the leg is la t ion" 3 9 4 and that "the standard for finding an implied power is a stringent one; a power is not to be implied where it is simply logical or des i rab le " 3 9 5 . Further, the Court did not accept Mr. H a r k a f s argument that his matter was more compl icated than that of any other security certificate deta inee and, as such the Court would not accede to a procedure deviating from that which afforded the subject the right to be heard as outlined in the IRPA. The Court pointed to two addit ional factors which inf luenced its decis ion to deny Mr. Harkat 's petition. First, his request was made late in the proceedings, such that appointing an amicus curiae would result in further delay. S e c o n d , the I R P A itself provides the designated judge with the necessary tools to ba lance the subject 's rights with national security, while inquiring into the reasonab leness of the cer t i f icate 3 9 6 . In Harkat, the Court ruled that: "designated judges are the cornerstone of the review p rocedu re " 3 9 7 , and that they are fully capab le of balancing the rights of the detainee on the one hand and the needs of the state on the other. However, as Lord Hewart wrote al ready in 1923 "justice should not only be done, but should 394 395 396 397 Supra note 390 at 441. Supra note 390 at 437. Ibid. Supra note 390 at 431. 110 manifestly and undoubtedly be seen to be d o n e " 3 9 8 . T h e capabi l i t ies of the designated judges notwithstanding, a process which entai ls in camera hearings and non-disc losure of ev idence, poses a real threat of the appearance of bias. This appearance is magnif ied when the individuals involved are overwhelmingly drawn from minority groups. The problematic nature of the I R P A ' s procedure was identified by Federa l Court Just ice Hugessen in comments regarding in camera hearings: Th is is not a happy posture for a judge, and you are in fact looking at an unhappy camper when I tell you about this funct ion.. .we do not like this p rocess of having to sit a lone hearing only one party and looking at the materials produced by only one party and having to try and figure out for ourse lves what is wrong with the c a s e that is being presented before us and having to try for ourselves to s e e how the wi tnesses that appear before us ought to be c ross -examined . . . we greatly miss, in short, our securi ty blanket which is the adversary sys tem. . . the real warranty that the outcome of what we do is going to be fair and jus t " 3 9 9 . In its 2007 ruling, the Sup reme Court of C a n a d a contended that the I R P A in fact does not provide the designated judge with the necessa ry tools required to balance national security with individual rights. O n e of the mechan isms suggested to remedy this shortcoming, is that of amicus curiae. T h e Court stated that "the use of spec ia l advocates has received widespread support in Canad ian jaB Rex v. Sussex Justices (1923), [1924] 1 K.B. 256 at 259. 3 9 9 J.K. Hugessen, "Watching the Watchers: Democratic Oversight", Speech presented at a conference entitled "Terrorism, Law & Democracy: How is Canada Changing Following September 11?" organized by the Canadian Institute for the Administration of Justice cited in Canada, Canadian Muslim Lawyers Association, Justice, Human Rights, Public Safety & Emergency Preparedness, (Canada: Canadian Muslim Lawyers Association, September 2005) at 9 and Harkat (Re)(F.C), [2005] 2 F.C.R. 416 at 442. I l l academic commen ta ry " 4 0 0 Further, the Court quoted Pro fessor R o a c h , stating that "specia l advocates constitute one approach that is a more proportionate response to reconci l ing the need to keep s o m e information secret and the need to ensure as much fa i rness and adversar ia l chal lenge as p o s s i b l e " 4 0 1 . It is noteworthy that other common law countr ies have adopted a similar approach. The Court draws on the United K ingdom's Special Immigration Appeals Commission Act (U.K.), 1997, c.68 (S IAC Act), which regulates the hearing of appea ls of persons issued with deportation certif icates and detained once they are suspec ted of posing a threat to national security or being a "terrorist". Th is Ac t resembles the Canad ian S I R C model . Sec t ion 6 of the S I A C Act stipulates that the Attorney Genera l of Eng land may "appoint a person to represent the interests of an appellant in any proceedings before the Spec ia l Immigration A p p e a l s Commiss ion from which the appel lant and any legal representative of his are exc luded" . In the case of Secretary of State for the Home Department v. "M'A02 the Secretary of State appl ied for permission to appea l a dec is ion rendered by the Spec ia l Immigration Appea l s Commiss ion ("SIAC") to cance l a certificate issued against a Libyan national whom the Secretary of State deemed to be a terrorist. The Court of A p p e a l refused to grant the Secretary of State permiss ion to appeal stating that S I A C was within its mandate to cance l the certif icate. Charkoui SCC, supra note 326 at 55. 4 0 1 K. Roach, "Ten Ways to Improve Canadian Anti-Terrorism Law" (2005) 51 Crim. L.Q.102, at 120 as cited in Charkoui SCC, supra note 326 at 56. 402 Secretary of State for the Home Department v. "M", [2004] EWCA Civ. 324. 112 This decis ion is a c a s e in point with regard to the usefu lness of an amicus curiae, as exempli f ied by S I A C ' s ruling: A s a result of Mr. McCul lough 's [the amicus curiae] r igorous c ross examinat ion in the c losed sess ion it was revealed that the assert ions made in the statements provided by the respondent [the H o m e Secretary] are not supported by the ev idence . . .we are concerned that too often assessmen ts have been based on material which does not on analys is support t h e m 4 0 3 . Adopt ing the procedural safeguard of amicus curiae, as a mechan ism employed under the British legal sys tem, would in no way endanger national security, s ince secret information would only be handed over to state sanct ioned lawyers with appropriate security c learance. The possibil i ty that the procedure may become more complex and time consuming because of the introduction of a lawyer acting in the interest of the person whose rights are affected is a factor of little re levance. The s takes for the person concerned are immense. Furthermore, s ince the t ime security certif icates were first introduced in the early 1990s, only about 27 of these have been s i g n e d 4 0 4 , the implementation of procedures which include an amicus curiae would be unlikely to impose an undue burden on the judiciary. The opposi te is more likely the case - an amicus curiae with top level security c learance and intel l igence-gathering knowledge and exper ience, would, if anything, accelerate the process by eas ing the burden hitherto handled by judges alone. A s it s tands now, the judges' task of examin ing ev idence based 4 0 3 ibid. 404 Supra note 381 at 1003. 113 largely on intel l igence information, at t imes without first hand a c c e s s to wi tnesses, is daunting and intricate, particularly when the ev idence is only being gathered and presented by C S I S representatives, who necessar i ly represent only the state's interest. This , coupled with the fact that most judges do not possess sufficient expert ise in professional and met iculous examinat ion of intell igence information, makes the sys tem inherently error-prone s ince most judges would rather be safe than sorry where national security is involved, thus consistently running the risk of erring on the s ide of caution more than they ought. Standard of Proof All of this g ives the quest ion of standard of proof heightened importance. The United States Sup reme Court has ruled that "in c a s e s involving individual rights...[the] standard of proof [at a minimum] reflects the va lue society p laces on individual l iberty" 4 0 5 . G iven that few procedural sa feguards exist in C a n a d a ' s security certificate determinat ions, it may be that raising the bar with regard to the standard of proof to be met by the Ministers prior to issuing a certif icate, and, hence, that at play when the courts review the Ministers' dec is ion, might lead to a more appropriate ba lance between national security and the subject 's rights. What then, should the standard of proof be? It has already been s e e n that both the United States and Israel have adopted higher standards of proof to be met in order to administratively detain an individual. In Israel it w a s determined that the ev idence must be credible and 405 Addington v. Texas, 441 U.S. 425 (1979) quoting Tippett v. Maryland, 436 F.2d 1153 at 1166 (4 th Cir. 1971) as cited in Appropriate Evidentiary Standards, supra note 193 at 237-238. 114 convincing, not leaving any room for doub t 4 0 6 . In the United States, as was shown above in Addington v. Texas, in order to meet the requirements of the due process c lause of the Fourteenth amendment, in c a s e s concern ing involuntary detention in the interest of public safety and security, the facts underlying the evidence must be at least 7 0 % probable. Th is is referred to as the "clear and convincing" standard of proof. The question that ar ises, then, is whether the analysis and outcome of the United States Sup reme Court in Addington (see above), should inform the treatment of security certificate proceedings in C a n a d a . A re the situations sufficiently ana logous? If so , then an individual suspect 's loss of liberty through detention must be seen as a harm at least as great as any poss ib le harm which might come to the state shou ld it err by setting a would-be terrorist free, and as such , the ev idence to detain him must be of a clear and convincing standard. The view that the potential risk to the state by not detaining and deporting the subject named in a security certificate far outweighs any error which might be imposed on that subject in the event of fwrongful detention and deportation might justify rel iance on only a " reasonab leness" standard in such c a s e s . A s Professor Tribe remarked, "it may be right, in more normal t imes, to al low a hundred guilty defendants to go free rather than convict one innocent one, but we must reconsider that arithmetic when one of the guilty may blow up the rest of Manha t tan " 4 0 7 . H.C.J. 56/76 Berman v. Minister of Police, 31(2) P.D. 687 at 692. 4 0 7 Laurence H. Tribe, "Trial by Fury" The New Republic, (10 December 2001) as cited in Ronald Dworkin, "The Threat to Patriotism" The New York Review of Books 49:3 (28 February 2002), online: <http://www.nybooks.com/articles/15145>. 115 While this claim has been argued with considerable persuas iveness it is in effect contrary to the bas ic va lues which underpin Wes te rn constitutional structures. Denying one c lass of suspect rights that are treated as essent ia l for others is unjustified, particularly when the c lass den ied is politically vulnerable, or is selected in whole or in part by criteria relying on race, religion, or ethnicity. A s Dworkin writes, "It makes no s e n s e to say that people a c c u s e d of more ser ious cr imes are entitled to less protection for that reason. If they are innocent, the injustice of convict ing and punishing them is at least as great as the injustice in convicting s o m e other innocent person for a less ser ious c r i m e " 4 0 8 . Further, Dworkin argues that a balance between risk and rights can never truly be ach ieved, that it is an idea which is used more or less as a tool by democrat ic governments striving to protect their own national security without admitting to acting unjustly toward those whose individual rights are violated. In this situation, societ ies run the risk of the loss of political f reedom, of a weakened constitution, and of decay of the rule of law in the long run. It is doubt less true that justice would ideally require that all individuals be equal in the eyes of the law. If this could be done, those fac ing security certificate determinations should enjoy the benefit of protection under the criminal standard of proof: proof beyond reasonable doubt. W e do not however, live in an ideal world. The adaptation of such a standard would thwart the ability of the state to detain anyone, as meeting this burden of proof would be virtually impossible in the pecul iar sphere of security intell igence and antiterrorism pol ic ing. 4 0 8 Ronald Dworkin, "The Threat to Patriotism" The New York Review of Books 49:3 (28 February 2002), online: <http://www.nybooks.com/articles/15145>. 116 Since prudence requires approaches to risk management which dictate the unjust treatment of certain individuals, lawmakers and the judiciary are indeed left with the unsavoury task of trying to ba lance national safety with the subject 's rights. Combat ing modern terrorism poses real cha l lenges for securi ty agenc ies worldwide. Infiltrating smal l close-knit terrorist cel ls , gathering reliable intell igence, acquir ing credible informants and piecing the ev idence together s o that it can be presented in court without endanger ing national security are enormous cha l lenges. S i n c e the criminal burden of proof wou ld be too great for successfu l detention of a justly accused subject, while the " reasonab leness" and "preponderance of the ev idence" standards pose a real danger of wrongful detention and deportat ion, a more balanced approach to security certificate determinations would require that a "clear and convinc ing" standard of proof be required of the Ministers in issuing the certificate. S ince security certif icates have been delegit imized, other i ssues have ar isen in anti-terrorist proceedings in C a n a d a . O n e c a s e in point involves Canad ian cit izen, M o h a m m e d Momin Khawaja , who in December 2005 became the first person charged under C a n a d a ' s 2001 Anti-Terrorism Act. Khawaja , a software developer, was charged with 7 offences under the Anti Terrorism Act. It is contended that Khawaja played a key role in the plan to carry out terrorist attacks in London. In October 2006, Super ior Court Just ice Doug las Rutherford ruled that the Act violates Charter-guaranteed rights on the bas is that the Act def ines terrorism based on motives rather than on a c t i o n s 4 0 9 . Further, a Federa l Court ruled that the government hand over a summary of 400 documents and full or 409 R.v. Khawaja, [2006] O.J. No. 4245. 1 1 7 partial a c c e s s to 73 other documents to Khawaja 's de fence l a w y e r s 4 1 0 . In so doing the Federa l Court rejected the government 's contention that national security interests should outweigh Khawaja 's right to make full answer to and defend against the charges. A s in the United States (Hamdi v. Rumsfeld), when the government is faced with the d i lemma of reveal ing its ev idence in a terrorism c a s e in order to secure a conviction of a ci t izen, many t imes it backs down. Fac ing the cho ice between tabling its ev idence (which may entail vast col lateral damage) , and non-disclosure which may end in the individual's re lease without trial, is undoubtedly difficult for any government trying to protect its national securi ty interests. It is yet to be determined how C a n a d a will react if forced to reveal sensi t ive intell igence in the Khawaja c a s e . Thesis Conclusion While the recent ruling of the Supreme Court of C a n a d a goes a long way in an attempt to find a more appropriate ba lance between civil l iberties and protecting national security, more can be done. The Court left Par l iament with the task of developing speci f ic mechan isms of procedural fa i rness. For society to maintain faith in its judicial sys tem in turbulent t imes, and for judges in the sys tem to bel ieve they are truly being fair and just, a fundamental ly altered I R P A is required. Securi ty certificate proceedings in C a n a d a , and the effort that goes into preparing them, could greatly benefit from mechan isms 410 Canada (Attorney General) v. Khawaja, [2007] F.C.J. No. 622. 118 implemented in other countr ies to afford the subject greater procedural protection. T h e s e mechan isms may positively affect the fact-finding s ide before the certif icate's i ssuance , by raising the standard of proof required of the Ministers to the c lear and convincing ev idence standard. Alternatively, they may affect the stage of determination by the designated judge, through use of amicus curiae for the subject, the option of assess ing a subject 's c a s e on its merits through a correctness standard of review, or a combinat ion of the two. Hopefully Parl iament will adopt a variation of these safeguards in planning future legislation. 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