Much of the public discussion about Bill C-51 has focused on its implications for rights to protest and dissent, and with good reason – between the proposed Security of Canada Information Sharing Act and the new “advocating and promoting terrorism” offence, there’s a lot to be concerned about when it comes to freedom of expression.
In this post though, we’d like to spend a little bit more time on another aspect of Bill C-51, and that’s the no-fly regime proposed through the Secure Air Travel Act. (For those of you following along with the Bill itself, that’s at Part 2, starting at page 11.)
We’ve set this out in some detail in our written brief to the House of Commons Standing Committee on Public Safety and National Security, but here’s a condensed version. As readers of these pages may recall, Canada has utilized a “no-fly” scheme known as the Passenger Protect Program since June 2007. Canada’s no-fly regime has never been comprehensively legislated, and currently exists primarily as a creature of regulation and guideline passed under the auspices of the Aeronautics Act. C-51’s creation of the Secure Air Travel Act purports to finally provide a legislative framework for Canada’s no-fly list, but in our view, what this Act really does is make an already problematic system even worse.
What are no-fly lists good for?
First, a bit about no-fly regimes in general. As a threshold matter, we question the efficacy of no-fly schemes. Travelers on such lists are deemed too dangerous to fly, yet too harmless to arrest. They are restricted from boarding aircraft, but not trains, or ferries, or subways, or buses. If the aim is to keep suspected terrorists off planes, that can be accomplished under existing law. For example, if law enforcement officials have enough information to determine that an individual poses a threat to aviation safety, or that they are planning to board a plane in order to commit a terrorism offence, they are also likely to have enough information to lay charges or to seek a recognizance order with conditions. (Remember also that conspiracy to commit or attempting to commit terrorism offences are themselves crimes.) The criminal law as it already exists also allows the government to impose travel bans pursuant to a court order.
As the ACLU has reported in the context of the U.S. no-fly scheme, FBI agents have offered to help remove individuals from the no-fly list in exchange for serving as informants in their communities. Nagib Ali Ghaleb was one of the individuals profiled by the ACLU. An American citizen, Nagib was allowed to fly out of the United States to visit his family in Yemen. When he tried to board a flight back home to San Francisco, however, he was denied boarding. According to the ACLU:
Stranded abroad and desperate to return home, Nagib sought help from the U.S. embassy in Yemen and was asked to submit to an FBI interview. FBI agents offered to arrange for Nagib to fly back immediately to the United States if he would agree to tell the agents who the “bad guys” were in Yemen and San Francisco. The agents insisted that Nagib could provide the names of people from his mosque and the San Francisco Yemeni community. The agents said they would have Nagib arrested and jailed in Yemen if he did not cooperate, and that Nagib should “think about it.” Nagib, however, did not know any “bad guys” and therefore refused to spy on innocent people in exchange for a flight home.
The fact that law enforcement agents were willing to let Nagib board a flight if he agreed to spy on his community suggests that he posed little risk to aviation security in the first place. The fact that they asked him to spy on their behalf suggests that they don’t suspect he’s a terrorist, either. The fact that he was permitted to leave the United States but not to return home unless he agreed to become an informant suggests that such blacklisting isn’t really about keeping the skies safe at all.
The no-fly regime being proposed in Bill C-51 adopts some of the most troubling aspects of the U.S. system.
Can’t confirm or deny listings
The scheme makes it illegal for anyone to disclose whether an individual is on the list or not, creating an absurd situation where neither government nor airlines can confirm or deny listings, even to the person affected. The opacity is compounded by the fact that prohibition against flying is only one of two consequences of being listed; the second consequence is that travelers may simply be subjected to additional screening at airports. So what to make of repeated secondary screenings? It might just be a particularly bad run of luck with airport security. Or the traveler might be on a no-fly list. Under this scheme, there’s no way to tell. There’s also no way for individuals who are only subjected to extra screening to get off the list either – the Act only allows travelers to seek a delisting if they’ve been denied travel.
Delisting based on secret evidence and secret hearings
The process for delisting is equally Kafkaesque. When applying for a delisting, a traveler knows only that she has been denied the ability to board an aircraft. She is not informed of the reasons for her listing, and her task is to prove a negative – that she poses no threat to aviation security and that she is not about to commit a terrorism offence. The Minister is not even required to respond to her request for a delisting – if 90 days go by with no response from the government, then the listing is assumed to remain valid. This provides very little incentive for government to consider a delisting request seriously.
A traveler can request further review from the Federal Court, at which point the government is finally compelled to provide some information justifying the listing. But that information is only available to the judge – the affected person has no automatic right to this information. At best, she might receive a summary of the reasons for listing, but the details of the case against her might be entirely withheld on national security grounds. This summary isn’t even required to be complete; the judge is permitted to rely on information supplied by the government, even if no summary is ever provided to the affected person. And if the Minister requests it, the entire hearing must be held in secret – neither the affected person nor her lawyers are permitted to attend.
Astoundingly, while individuals on the list are not permitted to access information relating to their own listing, Bill C-51 allows the government to share its no-fly list with other countries, with no statutory limitations on how that information may be used. However, as the experiences of Maher Arar, Ahmad El Maati, Muayyed Nureddin, Abdullah Almalki, and Benamir Benatta show, Canada’s had a troubling history of mistakenly labeling individuals as security threats and providing that information to foreign governments, with devastating results. The experiences of these men also illustrate that for the past decade, Canada’s “anti-terrorism” practices have disproportionately impacted racialized communities and Muslim communities. These are the Canadians who have already borne much of the burden when it comes to violation of rights and infringement of civil liberties in the name of protecting public safety and national security. It will also be these Canadians who will bear the brunt of C-51’s impact, if this Bill is passed. And if the example of how the no-fly list has been used in the U.S. is any guide, it may also be these Canadians who end up on our no-fly lists, asked to inform on their communities, neighbours, and friends.
Wait… there’s more!
Much of the public discussion about Bill C-51 has focused on its implications for rights to protest and dissent, and with good reason – between the proposed Security of Canada Information Sharing Act and the new “advocating and promoting terrorism” offence, there’s a lot to be concerned about when it comes to freedom of expression.
We’ve set this out in some detail in our written brief to the House of Commons Standing Committee on Public Safety and National Security, but here’s a condensed version. As readers of these pages may recall, Canada has utilized a “no-fly” scheme known as the Passenger Protect Program since June 2007. Canada’s no-fly regime has never been comprehensively legislated, and currently exists primarily as a creature of regulation and guideline passed under the auspices of the Aeronautics Act. C-51’s creation of the Secure Air Travel Act purports to finally provide a legislative framework for Canada’s no-fly list, but in our view, what this Act really does is make an already problematic system even worse.
What are no-fly lists good for?
We’ve found little evidence that no-fly schemes actually increase aviation security, and so far, the government hasn’t provided it either. No-fly schemes are pretty good at one thing though, and that’s in pressuring listed individuals in becoming informants for security intelligence agencies.
Leverage for intelligence agencies
Stranded abroad and desperate to return home, Nagib sought help from the U.S. embassy in Yemen and was asked to submit to an FBI interview. FBI agents offered to arrange for Nagib to fly back immediately to the United States if he would agree to tell the agents who the “bad guys” were in Yemen and San Francisco. The agents insisted that Nagib could provide the names of people from his mosque and the San Francisco Yemeni community. The agents said they would have Nagib arrested and jailed in Yemen if he did not cooperate, and that Nagib should “think about it.” Nagib, however, did not know any “bad guys” and therefore refused to spy on innocent people in exchange for a flight home.
The fact that law enforcement agents were willing to let Nagib board a flight if he agreed to spy on his community suggests that he posed little risk to aviation security in the first place. The fact that they asked him to spy on their behalf suggests that they don’t suspect he’s a terrorist, either. The fact that he was permitted to leave the United States but not to return home unless he agreed to become an informant suggests that such blacklisting isn’t really about keeping the skies safe at all.
The no-fly regime being proposed in Bill C-51 adopts some of the most troubling aspects of the U.S. system.
Can’t confirm or deny listings
The scheme makes it illegal for anyone to disclose whether an individual is on the list or not, creating an absurd situation where neither government nor airlines can confirm or deny listings, even to the person affected. The opacity is compounded by the fact that prohibition against flying is only one of two consequences of being listed; the second consequence is that travelers may simply be subjected to additional screening at airports. So what to make of repeated secondary screenings? It might just be a particularly bad run of luck with airport security. Or the traveler might be on a no-fly list. Under this scheme, there’s no way to tell. There’s also no way for individuals who are only subjected to extra screening to get off the list either – the Act only allows travelers to seek a delisting if they’ve been denied travel.
The process for delisting is equally Kafkaesque. When applying for a delisting, a traveler knows only that she has been denied the ability to board an aircraft. She is not informed of the reasons for her listing, and her task is to prove a negative – that she poses no threat to aviation security and that she is not about to commit a terrorism offence. The Minister is not even required to respond to her request for a delisting – if 90 days go by with no response from the government, then the listing is assumed to remain valid. This provides very little incentive for government to consider a delisting request seriously.
A traveler can request further review from the Federal Court, at which point the government is finally compelled to provide some information justifying the listing. But that information is only available to the judge – the affected person has no automatic right to this information. At best, she might receive a summary of the reasons for listing, but the details of the case against her might be entirely withheld on national security grounds. This summary isn’t even required to be complete; the judge is permitted to rely on information supplied by the government, even if no summary is ever provided to the affected person. And if the Minister requests it, the entire hearing must be held in secret – neither the affected person nor her lawyers are permitted to attend.
CIVIL LIBERTIES CAN’T PROTECT THEMSELVES