forcese"rule by law" presentation – november 2010.docx [compatibility mode]

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Edited Speaking NotesRule by Law: Legalism and Dilemmas in National Security

Craig ForceseAssociate Professor

Faculty of LawUniversity of Ottawa

at theDepartment of Justice

Human Rights Law Charter ConferenceOttawa, Ontario

November 9, 2010

INTRODUCTION

It is a great honour and privilege to address this years Human Rights Law Charter Conference and Ithank the organizers for their invitation. But of course, the invitation posed its own problems, notleast what to say and how to say it. I ultimately arrived at the decision of being provocative;

provocative in a mild, restrained and pleasant manner, but provocative nevertheless. My decisionwas prompted, not by a desire to be some sort of polemicist, but rather in the hope that in beingprovocative, I might galvanize responses from you that might help me to understand better thepolicy environment in which all of you operate that is, in provoking feedback I might help cure, atleast in part, one of the things that troubles me about the work I do as an academic looking in fromthe outside the lingering but often strongly felt fear that I may not know what Im talking about atall.

THE RULE BYLAW CRITIQUE

And so that brings me to the title of my presentation Id like to begin by unpacking my title a bitand then focusing on its implications from a general point of view. I them want to illustrate some ofthese general issues with an eye to a specific illustration; the UN Security Council 1267 system, as

implemented into Canadian anti-terrorism law. And in the interest of full disclosure, this reflectssome writing Kent Roach and I have been doing recently, including a piece forthcoming in the GWUinternational law journal, and sparked in part by a more descriptive research paper he and I compiledfor your department earlier this year

Ill start with legalism for my purpose, legalism is the view often strongly held in our profession that law can cure problems; or as Eric Posner has put it, the view that law and legal institutionscan keep order and solve policy disputes. In its conventional manifestation, legalism is reflected inthe view help with greater or lesser degrees of explicitness by legal academics that law is betterthan policy and both law and policy are better than politics; and that courts are more worthy thanpoliticians. There is much truth in this, and I have strong legalist propensities myself but lacknowledge that legalism is highly elitist and almost entirely anti-democratic

For our purposes in this talk, I intend to focus on legalism as a reaction to dilemmas in nationalsecurity. But the focus is not the bright shiny legalism of the small l liberal the legalism ofrational rules applied by rational individuals, many of them be-robed and behind elevated daises.Instead this is a legalism labouring under what I will call the philosophy of rule by law. Some ofyou may be familiar with David Dyzenhaus and what he has been saying about rule by law. I shallborrow from him and describe rule by law as a framework of governance in which all the trappingsof legalism are maintained, but divorced from certain underlying values that animate legalism as asystem governed by the rule of law.


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In the views of Dyzenhaus and others, the rule of law means more than the minimum requirementsof say, the Manitoba Reference case: there must be law, the law applies to everyone and power canonly be exercised as authorized by the law. Instead, it requires more: adherence to certainfundamental values without which the rule of law is largely empty; not least close adherence to dueprocess. Legalism without adherence to these fundamental values is just a form of social control

without countervailing virtue it is literally the act of ruling by law. The South African system ofapartheid is an archetypical illustration of this richly legalist and morally bankrupt

Now on to my topic proper. There is a strongly held view in some quarters that Canadas and notjust Canadas but much of at least the common law worlds -- approach to national security overthe last decade is about rule by law, not rule of law. This is not to say that we have witnessed theextremes of an apartheid-era South African legalism or at least not usually, although some of theconvoluted discussions of the reach (or non-reach) of various principles of domestic andinternational law to the conduct of militarized anti-terrorism has some of the same sort of flavour the famous torture memos in the United States, for example, are legalism is service of power, notspeaking truth to power

In Canada, the rule by law critique has several dimensions (not all of which are necessarily capturedin the writings or positions of any one critic). Ill lay them out for you in a sort of reverse order ofwhat I think is their importance I should say, in fairness, that I have a large measure of sympathyfor these views:

First, national security law in this country is more about muddling through than effective design.Laws are crafted on almost a piecemeal basis to deal with particular issues as they arise, and whenineffective or discredited they linger on the statute books or as some latent policy, ticking away togerminate a new crisis. A brief list of things that need some careful thinking, only some of whichseem to be on the legislative agenda:

1. Repealing and replacing the unconstitutional anti-leakage provision (s.4) in theSecurity of Information Act;

2. Curing operations of the Canada Evidence Act (especially s.38 and itsbifurcated court system in which Federal Court judges adjudicate s.38 matters evenwhile provincial superior court judges hear underlying criminal proceedings);3. Security certificates (and especially the question of intelligence as evidence, theimplications of Charkaoui II and the issues raised in the unsuccessful effort toappeal the ultimate holding in Charkaoui through certified questions);4. Removal to torture, and the question of diplomatic assurances or some otheralternative;5. Revamped lawful access rules (especially in relation to internetcommunications);6. Information-sharing between Canada and foreign governments, whichcontinues to percolate as at least a legacy issue from the Arar and Iacobucci inquiries

and in the annual reports of the Security Intelligence Review Committee;7. The scope of the Communications Security Establishment Canada interceptauthority under the National Defence Act;8. Preventive detention;9. Investigative hearings;10. Review by specialized review agencies of the security services (most notably,the RCMP); and,11. Enhanced Parliamentary review in the national security area


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I could add more administrative issues to these including the fact that CSISs review body SIRC has grown at only a fraction of the rate as CSIS in terms of funding and personnel, and, my suspicionis, cant possibly perform its role as effectively as it would be able to do if better funded

Second, when national security is balanced against rights, the solution seems to be one of rightsminimalism that is, when compelled to incorporate due process protections in things like, for

instance security certificates after the 2007 Charkaoui decision, the government prefers a course thatis minimally accommodating of rights yes, we are obliged to have special counsel, but no, onceapprised of the secret information, they cant speak to the person subject to a certificate, even withstrict non-disclosure obligations and even though there counterparts in SIRC, when that body dealtwith security certificates, could

Third, there is what Ill call salted earth litigation strategies. I know that there are people here thathave worked on some of these cases I know that I am about to be controversial. But at least someof the lawyers on the other side of you take the view that the government strung out losing cases andtook untenable positions and used legal proceedings to delay inevitable results rather than concedingthe broader points at issue.

I know that there are strongly held views on your side of the table and in some of these cases Ithink there were important principles to be defended. Im no so sure about others: the prosecutionshould not have been brought in Mejid given the actions of the CSIS officer; the pitched battle overwhether Abdelrazik should be able to return from Sudan was a loser and should never have beenfought; the secrecy claims in relation to the embarrassing paragraphs in the Arar report should neverhave been contested in Federal Court; the governments claims that it would be detrimental tonational security even to ask for release of third-party controlled secret intelligence from theoriginating intelligence service in Charkaoui was problematic; the abuse of process findings in Harkatand Almrei were devastating and depressing, although it may be unfair to ask the lawyers to wear theconsequences of their CSIS client in those cases; Im not yet sure what to make of the mess aroundthe Afghan detainee saga, but I doubt that in the end all will come up rosy, and I think thegovernment could have moved much earlier to improve the transfer arrangement, and not simply onthe eve of the Amnesty judicial review hearing. The list could go on.

Im sure there is a story for each of these cases and I am not close enough to any of these mattersto truly be able to rebut that defence. Suffice it say that there is a view out there that zealousadvancement of the interests of the government client needs to be balanced by a prosecutor-likeinclination to see justice done, even in matters that are superficially civil given the consequences thatcan and do befall those subject to these legal proceedings. And there is a view out there that thatbalance has not been struck by the government and their lawyers in these and other cases. Some ofthis view is held by persons whos viewpoints are such that I might doubt their good faith in makingsuch assertions. But still others have also expressed this opinion in my presence, and theseindividuals include members of the bar of some standing, albeit as defence lawyers, but ones who arenot blinkered to the other side of the coin

There is, of course, the flipside: namely, that doing national security law is hard and that governmentlawyers are on the pointy end of the stick, constantly grappling which situations in which, were theyto err, danger possibly of an almost unimaginable sort might ensue. As as an outside observer,therefore, one cannot fully and fairly understand until one has lived that life. I have not, and so Ibelieve the rule by law critique must be provisional; there is, however, enough evidence in support ofit to leave me uneasy about the current state of the practice of national security law and leave mewondering about whether we are able, as a profession and a society to reach what I call theGoldilocks point the point of fine balance between national security and the rule of law whereneither rights nor national security is either too hot or too cold, but just right


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THE 1267PROCESS AS AN ILLUSTRATION OF THE DILEMMAS OF NATIONAL SECURITYLAW

In the time that remains for me, I want to ask what the implications of the quest for a fine balancewill be for a matter of current controversy the infamous UN Security Council 1267 Al Qaeda andTaliban affiliates listing process. And I intend to do so with am eye to several regular dilemmas that

confront anyone trying to find the Goldilocks point.

Preserving democracy in combating tyranny

For those who dont know, the 1267 Committee is a subcommittee of the UN Security Councilestablished originally in the late 1990s as a body listing members of the Taliban and then Al Qaedaon a list of persons with whom UN members were then obliged to bar their nationals from havingcertain dealings, most notably of a financial sort. It is a form of international blacklist moredoctrinally known as a smart sanction established by the Security Council but implementeddomestically

Having gone through several rounds of revision and refinement, it persists and is implemented in

Canada by regulation under the UN Act, the instrument which authorizes the Governor in Councilto implement into Canadian law measures required by the Security Council involving things otherthan use of force. It is, however, unusual, in being global in reach, indefinite in duration and inincluding a substantial number of individuals. These individuals are placed on the list unilaterally bythe highly political body -- the Security Council (or more correctly, its committee subset) -- based onsome rather undemanding expectations as to what is required to justify listing.

And it is very difficult to get off this list, something that has galvanized a round of reforms including more recently an ombudsperson to facilitate de-listing requests, but who lacks the capacityto do much more than facilitate. Both listing and delisting are mired in secrecy not just secrecy interms of SC deliberations themselves, but also secrecy surrounding the actual evidence that supportslisting there is no requirement that the country seeking listing disclose any of this in any real senseto anyone whether other SC members, the ombudsperson or the listed person

It is also unusual that the regulations implementing the system the Al Qaeda and Taliban Regs --enumerate a large number of effectively criminal penalties for having financial dealings with listedindividuals of a type that overlap in part with the sort of financing of terrorism crimes one now findsin the Criminal Code. But of course in the case of the Criminal Code, those are true crimes enactedby Parliament. The Al Qaeda and Taliban Regulations are not offences enacted by Parliament, anissue to which I will return

You will know that the Security Council is a body comprising 15 states, five of whom sit on theCouncil permanently. It is not a representative body; nor is it a democratic body those fivemembers enjoy a veto. Resolution 1267 and a few others such as 1373 and 1540 are unusual theymark a new era in Security Council practice where the Council in essence prescribes the introduction

of new legislative measures in UN member states that is, the UN Security Council legislates.

The result is what elsewhere I have called a form of hegemonic federalism: a non-representativeinternational body on which the great powers the hegemons in international relations parlance exercise substantial powers dictate the content of law for member states. In the Canadian context,that decision is then implemented by the executive without recourse to Parliament, because of thereach of the UN Act a statute formed before the Security Council got into the legislative business.


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There are obvious democratic implications of this system; hence the reference to the dilemma ofpreserving democracy in combating tyranny in this case terrorism. Id give us at best a D on thatfront in relation to the 1267 system. It risks becoming an F if, as will inevitably happen and maybe happening in the continuing litigation around Abdelrazik produces the outcome witnessed beforethe UK Supreme Court in the al-Ghabra et al cases: namely, that the aggressive use of a UN Act tothen introduce comprehensive anti-terrorism crimes via regulation is viewed as ultra vires the quite

different authority parliamentarians likely had in mind when they passed the statute. Itll be back tothe drawing board, as to a certain case is has been in the UK

Using Law to respond to chaos

The 1267 system also, of course, is a form of legalism it has all the trappings of law, bothinternational and domestic. But it is come very close to becoming a posterchild for the rule by lawcritique of legalism

First, at some level it is attainder without due process in essence a purely political body, applyingpolitical judgment, blacklists using something that looks a little like a judicial mechanism but withoutacting in a judicial manner without applying natural justice. The result is not far off a bill of

attainder the act of legislatively prescribing guilt something weve moved away from a fewcenturies ago in the common law world.

That may be well and good at the international level, but international rule by law meets domesticrule of law, and the result may not be pretty. The 1267 list depends on domestic implementation andby one count, a few years back, there were some 30 states in which challenges were afoot to the 1267process, as implemented domestically.

The result is what Kent Roach and I have called the dualist challenge to the 1267 process domesticcourts applying domestic constitutional and rights rules second guess domestic measuresimplementing an international system bereft of due process. In a number of instances, they areeffectively indifferent to the Security Council origin of this obligation

The most famous example of this is the European Court of Justices decision in Kadi, invalidatingthe listing of Kadi for, in essence, due process shortcomings. While it was careful to confine itscritique to the due process shortcomings of the EU implementing measures, those shortcomingswere a product of the Security Council shortcomings. The EU cannot cure what it cannot control.That is why the European Court of First Instance just in September invalidated the relisting of Kadialong with half-hearted measures that superficially intended to capture due process standards. Indoing so, it condemned the 1267 process:

the Security Council has still not deemed it appropriate to establish an independent andimpartial body responsible for hearing and determining, as regards matters of law and fact,actions against individual decisions taken by the Sanctions Committee. the creation of the the Office of the Ombudsperson cannot be equated with the provision of an effective

judicial procedure for review of decisions of the Sanctions Committee

What is true for Europe is almost certainly true for any other jurisdiction inclined to require dueprocess before imposing the significant strictures associated with 1267 listing, including Canada

I can imagine no circumstances in which the 1267 approach can survive a Charter s.7 challenge andlisting has such a significant impact on an individuals security of the person I think it indisputablethat section 7 is triggered. Whether it would be saved by a section 1 analysis depends, it would seem,on whether a court would accept a the Security Council made us do it defence, situated in the


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appropriate place in the section 1 discussion. There are many persons in this room more expert onsection 1 than I am but I have my doubts that such an argument would prevail, given the thumbingof the nose now given the Security Council in Europe. But I also think there is reason to doubtwhether the 1267 listing is at all useful there is some doubt expressed in the literature even by thosewho generally favour these kind of measures. Ineffectiveness when coupled with the SecurityCouncils stubborn resistance to truly cure its process does not make the governments defence of

this case much easier

Acting transparently in responding covertly

At the end of the day, as in so many other national security matters, the problem with the 1267regime lies in secrecy. There will be a balancing, of course, between security and disclosure. But thewisdom of many if not most -- courts that have recently sat in judgment of this question andconcluded that some disclosure must be preserved, is the fear that secrecy at some level meansimpunity; freedom to act capriciously without being held to account. In the 1267 context, states willnot provide their intelligence to the Security Council, let alone all the national courts that may beadjudicating these questions

In the result, rule by law reaches its limits as soon as the bumps up to an irreducible minimumelement of law that requires some modicum of disclosure and so the 1267 system will crash andburn.

I think there are only three solutions, given this conundrum:

abolish the 1267 system and rely on potentially uneven domestic systems of dealing with AlQaeda and Taliban terrorism financing

maintain the status quo and accept dualist complexity the fact that the list will no longer beuniversal and that states who toe to the due process line and where challenges are broughtwill apply a list stripped of those who do bring challenges. My personal view is that Canadawill join the ranks of those states

upload the rule of lawOn this last point, the Security Council is not without experience is creating international entities thathonour the rule of law the ad hoc tribunals for Rwanda and the former Yugoslavia are creatures ofSecurity Council resolutions. There is no legal reason although there are surely political andfinancial reasons why they cannot repeat the exercise and establish at 1267 tribunal. But tomeaningfully honour due process, states must be prepared to share intelligence with the tribunal,perhaps involving compromise solutions like our special advocate system. It is hard to see statesdoing so happily, but then I suppose everything will turn on how important it is to preserve the 1267system.

And so in conclusion, let me ask what Canada should do in all of this: which of the hard fights do wechoose: do we fight to save the Al Qaeda and Taliban Regs from a Charter challenge and an ultravires challenge, or do we acknowledge the Kadi world-view and realize that our fight should be tobuild a better system at the international level; to upload the rule of law, in other words. The choicewe make, I think, will say something about whether the critique I began this talk with today is a proposthe way we do national security law in this country, or not. My pitch I suppose as nave as it maysound -- is to expend money and effort where it is deserved: in the UN, not in the Federal (andprobably ultimately, the Supreme) Courts. Canada may not have been selected to be on the SecurityCouncil; but we surely can still play a role in making it a better place for the rule of law

Thank you.

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