Terror bill suitability up to courts
There is a tendency, in discussions of national security, or civil liberties — perhaps in discussions of most things — for people to retreat into cliché.
Raise concerns, however well-founded, about the consequences of some proposed security measure for civil liberties, and prepare to be accused of making — for no one bothers to rebut arguments any more, they just name them — a “slippery slope” argument.
On the other hand, suggest that the peculiar threat posed by modern macro-terrorism may require some adjustment, however slight, in the traditional balance between freedom and order, and brace yourself for a lecture on the theme “the ends do not justify the means.”
Well, no. Some slopes are slippery. Merely because someone asserts the existence of a “slippery slope” — if we accept x then y will surely follow — is not enough either to prove or disprove their argument. It depends, rather, on the plausibility of the slipperiness. Likewise, it is no more true to say “the ends do not justify the means” — at all times, in all circumstances — than it is to say that they do. How can we know, without comparing them? The true statement is:
some ends justify some means. So to the government’s anti-terrorism legislation, Bill C-51. The tendency, as I say, has been for observers to condemn it unreservedly, or praise it without qualification. An example of the former was that now legendary Globe and
Mail editorial, in which it was asserted, on scant evidence, that the government was plotting to unleash a “secret police force” on the unsuspecting public.
The “secret police” in question is the quite well-known Canadian Security Intelligence Service (CSIS), who would be given some modest new powers under the bill. As the editorial itself acknowledges, CSIS “will not be allowed to make arrests or detain suspects,” nor can it “kill or harm anyone.” It can’t even spy on anyone, at least in the cloak and dagger sense — entering their house, seizing documents, planting listening devices — without seeking, and obtaining, a warrant. The power to ask a judge for a warrant is not a power typically associated with secret police forces.
Nevertheless, these are new powers, untried and untested, and skepticism is in order. The scale of the threat, or rather threats, is open to debate — though with court dockets now bulging with terrorism cases, it’s hard to argue they don’t exist — as are the appropriate responses to each. A measure that might be justified in the name of preventing a mass atrocity on the scale of a Sept. 11 might not be justified in dealing with so-called “lone-wolf ” attackers.
That’s why it’s vital to require both judicial oversight at the front end and close reporting and monitoring at the back, and while the bill is admirably full of examples of the former, the latter — particularly the desperately understaffed condition of the Security Intelligence Review Committee, CSIS’s overseer — is rather less in evidence.
But the mere fact that police and intelligence-gathering activities will henceforth not be contained within separate, airtight silos is not enough, in my view, to condemn the bill. While the Globe may wish to recall some long-ago abuses by the RCMP, when intelligencegathering was part of its brief, other observers, Bob Rae among them, have a fresher memory in mind: the Air India attack, whose investigation was greatly impeded by the lack of communication between the RCMP and the newly minted CSIS.
More broadly, to say that the police and intelligence services already have all the powers they need to combat terrorism is to suggest that we struck the right balance between security and liberty on the first try, in public safety legislation passed in the wake of Sept. 11. If nothing else, that would be a remarkable coincidence. Though much of that bill has withstood scrutiny, much has happened since then, including the first successful jihadist attacks on Canadian soil.
No doubt the government sees political gain to be had in exploiting public fears, valid or otherwise. And certainly the prime minister’s cloddish, unyielding rhetoric does nothing to allay those suspicions. But that, too, is not enough to discredit the legislation. People can do the right things for the wrong reasons. (As, of course, they can do the reverse.) The bill must stand or fall on its own merits, weighing the harm it might do to civil liberties against the harm it seeks to avert: the old “reasonable limits” quandary.
Moreover, the bill need not be accepted or condemned in toto: different measures will raise different levels of concern. For example, I can see the case for preventive arrest, such as we already have on the books, in the case of the proverbial ticking time bomb: where the police have evidence, sufficient to persuade a judge, that someone is about to launch a terrorist attack — in the language of existing law, that an attack “will be” committed — it does not strike me as disproportionate to let them put him on ice for 72 hours.
I am less willing to accept the language in Bill C-51, allowing police to detain someone — for a full week — merely on the suspicion that they “may be” about to attack. This is not just “lowering the bar” on the use of preventive arrest, as it is sometimes put: it pretty much removes it altogether.
Likewise, the provision making it a crime to “promote” terrorism — not to counsel someone to commit a specific attack, as is already proscribed by current law, but just to endorse terrorism generally — is vastly overbroad, and almost certain to be struck down by the courts.
And that’s the backstop in all these discussions. Whatever measures the government may see fit to introduce, and whatever laws Parliament may pass, they must ultimately conform with the law of laws, the Constitution. Which ends justify which means? The courts will decide.