Edited Speaking Notes

“Rule by Law: Legalism and Dilemmas in National Security”

Craig Forcese
Associate Professor
Faculty of Law
University of Ottawa

at the
Department of Justice
Human Rights Law Charter Conference
Ottawa, Ontario
November 9, 2010

INTRODUCTION

It is a great honour and privilege to address this year’s Human Rights Law Charter Conference and I
thank the organizers for their invitation. But of course, the invitation posed its own problems, not
least 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 decision
was prompted, not by a desire to be some sort of polemicist, but rather in the hope that in being
provocative, I might galvanize responses from you that might help me to understand better the
policy environment in which all of you operate – that is, in provoking feedback I might help cure, at
least in part, one of the things that troubles me about the work I do as an academic looking in from
the outside – the lingering but often strongly felt fear that I may not know what I’m talking about at
all.

THE RULE BY LAW CRITIQUE

And so that brings me to the title of my presentation – I’d like to begin by unpacking my title a bit
and then focusing on its implications from a general point of view. I them want to illustrate some of
these 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 reflects
some writing Kent Roach and I have been doing recently, including a piece forthcoming in the GWU
international law journal, and sparked in part by a more descriptive research paper he and I compiled
for your department earlier this year

I’ll 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 institutions
can keep order and solve policy disputes”. In its conventional manifestation, legalism is reflected in
the view – help with greater or lesser degrees of explicitness by legal academics – that law is better
than policy and both law and policy are better than politics; and that courts are more worthy than
politicians. There is much truth in this, and I have strong legalist propensities myself – but l
acknowledge 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 national
security. But the focus is not the bright shiny legalism of the small “l” liberal – the legalism of
rational 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 of
you may be familiar with David Dyzenhaus and what he has been saying about rule by law. I shall
borrow from him and describe rule by law as a framework of governance in which all the trappings
of legalism are maintained, but divorced from certain underlying values that animate legalism as a
system 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 requirements
of say, the Manitoba Reference case: there must be law, the law applies to everyone and power can
only be exercised as authorized by the law. Instead, it requires more: adherence to certain
fundamental values without which the rule of law is largely empty; not least close adherence to due
process. 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 of
apartheid 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 Canada’s – and not
just Canada’s – but much of at least the common law world’s -- approach to national security over
the last decade is about rule by law, not rule of law. This is not to say that we have witnessed the
extremes of an apartheid-era South African legalism – or at least not usually, although some of the
convoluted discussions of the reach (or non-reach) of various principles of domestic and
international 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, not
speaking truth to power

In Canada, the rule by law critique has several dimensions (not all of which are necessarily captured
in the writings or positions of any one critic). I’ll lay them out for you in a sort of reverse order of
what I think is their importance – I should say, in fairness, that I have a large measure of sympathy
for 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 when
ineffective or discredited they linger on the statute books or as some latent policy, ticking away to
germinate a new crisis. A brief list of things that need some careful thinking, only some of which
seem to be on the legislative agenda:

1. Repealing and replacing the unconstitutional anti-leakage provision (s.4) in the

Security of Information Act;
2. Curing operations of the Canada Evidence Act (especially s.38 and its
bifurcated court system in which Federal Court judges adjudicate s.38 matters even
while provincial superior court judges hear underlying criminal proceedings);
3. Security certificates (and especially the question of intelligence as evidence, the
implications of Charkaoui II and the issues raised in the unsuccessful effort to
appeal the ultimate holding in Charkaoui through certified questions);
4. Removal to torture, and the question of diplomatic assurances or some other
alternative;
5. Revamped lawful access rules (especially in relation to internet
communications);
6. Information-sharing between Canada and foreign governments, which
continues 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 intercept
authority 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 CSIS’s review body – SIRC –
has grown at only a fraction of the rate as CSIS in terms of funding and personnel, and, my suspicion
is, can’t 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 rights
minimalism – 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 that
is minimally accommodating of rights – yes, we are obliged to have special counsel, but no, once
apprised of the secret information, they can’t speak to the person subject to a certificate, even with
strict non-disclosure obligations and even though there counterparts in SIRC, when that body dealt
with security certificates, could

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

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

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

There is, of course, the flipside: namely, that doing national security law is hard and that government
lawyers are on the pointy end of the stick, constantly grappling which situations in which, were they
to 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 I
believe the rule by law critique must be provisional; there is, however, enough evidence in support of
it to leave me uneasy about the current state of the practice of national security law and leave me
wondering about whether we are able, as a profession and a society to reach what I call the
Goldilocks point – the point of fine balance between national security and the rule of law where
neither rights nor national security is either too hot or too cold, but just right

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 THE 1267 PROCESS AS AN ILLUSTRATION OF THE DILEMMAS OF NATIONAL SECURITY LAW

In the time that remains for me, I want to ask what the implications of the quest for a fine balance
will be for a matter of current controversy – the infamous UN Security Council 1267 Al Qaeda and
Taliban 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 don’t know, the 1267 Committee is a subcommittee of the UN Security Council
established originally in the late 1990s as a body listing members of the Taliban and then Al Qaeda
on a list of persons with whom UN members were then obliged to bar their nationals from having
certain dealings, most notably of a financial sort. It is a form of international blacklist – more
doctrinally known as a smart sanction – established by the Security Council but implemented
domestically

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 Council
to implement into Canadian law measures required by the Security Council involving things other
than use of force. It is, however, unusual, in being global in reach, indefinite in duration and in
including a substantial number of individuals. These individuals are placed on the list unilaterally by
the highly political body -- the Security Council (or more correctly, its committee subset) -- based on
some 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 capacity
to do much more than facilitate. Both listing and delisting are mired in secrecy – not just secrecy in
terms of SC deliberations themselves, but also secrecy surrounding the actual evidence that supports
listing – there is no requirement that the country seeking listing disclose any of this in any real sense
to 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 listed
individuals of a type that overlap in part with the sort of financing of terrorism crimes one now finds
in the Criminal Code. But of course in the case of the Criminal Code, those are true crimes enacted
by Parliament. The Al Qaeda and Taliban Regulations are not offences enacted by Parliament, an
issue to which I will return

You will know that the Security Council is a body comprising 15 states, five of whom sit on the
Council permanently. It is not a representative body; nor is it a democratic body – those five
members enjoy a veto. Resolution 1267 and a few others such as 1373 and 1540 are unusual – they
mark 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-representative
international 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 the
reach 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 of
preserving democracy in combating tyranny – in this case terrorism. I’d give us at best a “D” on that
front in relation to the 1267 system. It risks becoming an “F” if, as will inevitably happen and may
be happening in the continuing litigation around Abdelrazik produces the outcome witnessed before
the UK Supreme Court in the al-Ghabra et al cases: namely, that the aggressive use of a UN Act to
then 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. It’ll be back to
the 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, both
international and domestic. But it is come very close to becoming a posterchild for the rule by law
critique of legalism

First, at some level it is attainder without due process – in essence a purely political body, applying
political judgment, blacklists using something that looks a little like a judicial mechanism but without
acting 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 we’ve moved away from a few
centuries ago in the common law world.

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

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

The most famous example of this is the European Court of Justices’ decision in Kadi, invalidating
the listing of Kadi for, in essence, due process shortcomings. While it was careful to confine its
critique to the due process shortcomings of the EU implementing measures, those shortcomings
were 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 Kadi
along with half-hearted measures that superficially intended to capture due process standards. In
doing so, it condemned the 1267 process:

the Security Council has still not deemed it appropriate to establish an independent and
impartial 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 due
process 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 – and
listing has such a significant impact on an individual’s security of the person I think it indisputable
that 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 on
section 1 than I am – but I have my doubts that such an argument would prevail, given the thumbing
of the nose now given the Security Council in Europe. But I also think there is reason to doubt
whether the 1267 listing is at all useful – there is some doubt expressed in the literature even by those
who generally favour these kind of measures. Ineffectiveness when coupled with the Security
Council’s stubborn resistance to truly cure its process does not make the government’s 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 1267
regime lies in secrecy. There will be a balancing, of course, between security and disclosure. But the
wisdom of many – if not most -- courts that have recently sat in judgment of this question and
concluded that some disclosure must be preserved, is the fear that secrecy at some level means
impunity; freedom to act capriciously without being held to account. In the 1267 context, states will
not provide their intelligence to the Security Council, let alone all the national courts that may be
adjudicating these questions

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

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

• abolish the 1267 system and rely on potentially uneven domestic systems of dealing with Al
Qaeda and Taliban terrorism financing
• maintain the status quo and accept dualist complexity – the fact that the list will no longer be
universal and that states who toe to the due process line and where challenges are brought
will apply a list stripped of those who do bring challenges. My personal view is that Canada
will join the ranks of those states
• upload the rule of law

On this last point, the Security Council is not without experience is creating international entities that
honour the rule of law – the ad hoc tribunals for Rwanda and the former Yugoslavia are creatures of
Security Council resolutions. There is no legal reason – although there are surely political and
financial reasons – why they cannot repeat the exercise and establish at 1267 tribunal. But to
meaningfully 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 states
doing so happily, but then I suppose everything will turn on how important it is to preserve the 1267
system.

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

Thank you.