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ABSTRACT
The harbinger theory of terrorism holds that the events of 9/11 presaged an inevitable set of mass terror attacks that would constitute an existential threat to the Global North. It has become the key premise of the argument that in an era purportedly defined by the threat of transnational terrorism, these nations must reject all limits on the measures they take to reinforce state security. This theory is incompatible on its face with non-derogable rights, which are essential to any instantiation of the rule of law in any international or domestic constitutional order. This article demonstrates that accepting this theory inevitably leads to the erosion of these rights, to the point that in a future public order emergency (which the harbinger theory holds to be inevitable), the rule of law will be abrogated. This is true even in nations where there have been no substantial terrorist attacks. Developments in Canada demonstrate that when the harbinger theory and the premise that rights must be balanced against security are accepted, this erosion accelerates.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes on contributor
Ryan Alford is an associate professor at Bora Laskin Faculty of Law and a visiting fellow at the Max Planck Institute for European Legal History in 2019. He is the author of Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law (McGill-Queens’ University Press, 2017), and is currently writing a book entitled What Does Canada’s Rule of Law Protect? Recovering the Rights Protected by Our Unwritten Constitutional Principles.
Notes
1 Attorney-General Eric H. Holder, Jr., Letter of 4 March 2013 to the Honorable Ron Paul, https://web.archive.org/web/20130309221652/http://www.paul.senate.gov/files/documents/BrennanHolderResponse.pdf.
2 United Nations Committee Against Torture, ‘Concluding Observations on the Combined Third to Fifth Periodic Reports of the United States of America’, para. 17, CAT/C/USA/CO/3-5.
3 See e.g. The SS ‘Wimbledon’, United Kingdom and ors v Germany, Judgment, (1923) PCIJ Series A no 1, ICGJ 235 (PCIJ 1923), 17 August 1923, League of Nations (historical) [LoN]; Permanent Court of International Justice (historical) [PCIJ].
4 See generally George W. Baer, Test Case; Italy, Ethiopia, and the League of Nations (Ann Arbor, Michigan: Hoover Press, 1976).
5 See e.g. Article 53 of the Vienna Convention on the Law of Treaties, UN Doc. A/CONF.39/27 (1969), reprinted in American Journal of International Law’ 63 (1969): 875–903.
6 UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/1985/4 (hereafter Siracusa Principles).
7 See note verbale dated 24 August 1984 from the Permanent Representative of the Netherlands to the United Nations Office at Geneva addressed to the Secretary-General, E/CN.4/1985/4, 28 September 1984.
8 Siracusa Principles, supra note 6, ss. 39.
9 United States v. Carl Krauch, VIII Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 1081 (1950) [The Farben Case], 1137–8.
10 Ben Saul, Defining Terrorism in International Law (Oxford, UK: Oxford University Press, 2006), 3.
11 Sami Zeidan, ‘Desperately Seeking Definition: The International Community’’s Quest for Identifying the Specter of Terrorism’, Cornell International Law Journal 36 (2004): 491–92.
12 Ariel Heryanto, State Terrorism and Political Identity in Indonesia: Fatally Belonging (New York, NY: Routledge, 2006), 161.
13 Remarks of Ronald Reagan at the at the Annual Dinner of the Conservative Political Action Conference, 1 March 1985.
14 The Republic of Nicaragua v. The United States of America, 1986 I.C.J. 14 (9).
15 Stephen Chapman, ‘Contra Atrocities and US Policy Toward Nicaragua’, Chicago Tribune, 17 May 1987.
16 President Bush, Address to a Joint Session of Congress, 20 September 2001.
17 Stockholm International Peace Research Institute, ‘SIPRI Yearbook 2007’, p. 636.
18 Robert Diab, The Harbinger Theory: How the Post-9/11 Emergency Became Permanent and the Case for Reform (Oxford, UK: Oxford University Press, 2015), 99–100.
19 See generally Ryan Alford, Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law (New York, NY: McGill-Queen’s University Press, 2017).
20 Diab, supra note 16, 42.
21 ‘In October 2005, the chief of CTC’s CBRN (Chemical, Biological, Radiological, and Nuclear) Group wrote, under the heading, “Don’t Put All Your Uranium in One Bucket”: “Jose Padilla: we’ll never be able to successfully expunge Padilla and the ‘‘dirty bomb’‘ plot from the lore of disruption, but once again I’d like to go on the record that Padilla admitted that the only reason he came up with the so-called ‘‘dirty bomb’‘ was that he wanted to get out of Afghanistan and figured that if he came up with something spectacular, they’d finance him. Even KSM says Padilla had a screw loose … . Anyone who believes you can build a [nuclear device] by ‘‘putting uranium in buckets and spinning them clockwise over your head to separate the uranium’‘ is not going to advance al-Qaida’s nuclear capabilities”’’. Stephen Ricard, ‘More Questions for Gina Haspel: The Record of False CIA Claims about Torture’s “‘Efficacy”‘‘, Just Security, https://www.justsecurity.org/55976/questions-gina-haspel-the-record-false-cia-claims-tortures-efficacy/#_ftn3.
22 Anti-Terrorism Act, S.C. 2001, c. 41.
23 Immigration and Refugee Protection Act, S.C. 2001, c. 27.
24 Colleen Bell, ‘Subject to Exception: Security Certificates, National Security and Canada’’s Role in the War on Terror’, Canadian Journal of Law and Society 21 (2006): 63.
25 Immigration and Refugee Protection Act, Section 34(1).
26 CBC News Online, ‘Indepth: Canadian Security: Security Certificates and Secret Evidence’, CBC, February 22, 2005, http://www.cbc.ca/news/background/cdnsecurity/securitycertificates-secretevidence.html.
27 Bell, supra n. 24, 71.
28 As noted above, the right not be tortured is non-derogable under Article 4 of the International Covenant on Civil and Political Rights.
29 Canada (Citizenship and Immigration) v. Harkat, [2014] 2 SCR 33, 2014 SCC 37; Charkaoui v. Canada (Citizenship and Immigration), [2008] 2 SCR 326.
30 Bell, supra n. 24, 68; see also Jaballah, Re, [2006] FCJ No 1706 (QL), https://www.canlii.org/en/ca/fct/doc/2006/2006fc1230/2006fc1230.html?resultIndex=1.
31 Arar Commission, ‘Rapport sur les événements concernant Maher Arar’, http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/maher_arar/07-09-13/www.ararcommission.ca/fr/Vo_II_French.pdf.
32 Maxime Deland, ‘“‘Radicalized”‘ Quebecer Shot Dead After Running Down 2 Soldiers in Suspected Terrorist Attack’, Toronto Sun, http://torontosun.com/2014/10/20/possible-terror-attack-as-soldiers-run-down-in-quebec-parking-lot/wcm/74cb0855-23bb-4782-a244-7aea18da1cf2 (accessed 30 November 2014).
33 Graeme Hamilton, ‘Martin Rouleau’’s Neighbours Sad but Not Surprised Over His Alleged Role in Soldier’’s Death’, National Post, 21 October 2014, http://news.nationalpost.com/2014/10/21/martin-rouleaus-neighbours-sad-but-not-surprised-over-his-alleged-role-in-soldiers-death/ (accessed 1 December 2014).
34 ‘“‘He Said the Devil Is After Him”‘: What We Know About Michael Zehaf-Bibeau’, The Age, 24 October 2014, https://www.theage.com.au/world/he-said-the-devil-is-after-him-what-we-know-about-michael-zehafbibeau-20141023-11aljl.html?skin=text-only/.
35 ‘Attack on Parliament Hill: Terrorism or Mental Illness? Canadian Public Opinion Is Divided’, Angus Reid, 25 November 2014, http://angusreid.org/homegrown-terrorism-radicalization-canada-overblown-serious-threat/#II.
36 Glenn Greenwald, ‘Canada, at War for 13 Years, Shocked That “‘A Terrorist”‘ Attacked Its Soldiers’. The Intercept, 22 October 2014, https://firstlook.org/theintercept/2014/10/22/canada-proclaiming-war-12-years-shocked-someone-attacked-soldiers/.
37 Ryan Patrick Alford, ‘Bill C-51: A Threat to the Rule of Law?’, National Journal of Constitutional Law 36 (2016): 113, 114.
38 Emergencies Act, S.C. 1988, c. 22, (4 th Supp.).
39 Siracusa Principles, supra note 4, ss. 59–60.
40 Ryan Alford, ‘Bill C-59 and the Former Bill C-22: Compromised Oversight and Continuing Threats to Non-Derogable Rights’, University of New Brunswick Law Journal 69 (forthcoming 2018).
41 This excluded an anti-Muslim hate crime that killed six in 2017. The perpetrator of this attack was arrested but not charged under the terrorism provisions of the Criminal Code. See Jesse Feith, ‘Why No Terrorism Charges in Quebec Mosque Shooting? It Would Place Extra Burden on Prosecutors: Experts’, National Post, Postmedia Network, 31 January 2017, http://news.nationalpost.com/news/canada/quebec-mosque-shooting-terrorism-offences-are-complex-experts-say (accessed 1 February 2017).
42 Government of Canada, Our Security, Our Rights: National Security Green Paper, 2016, Background Document (Ottawa: Public Safety Canada, 2016), 5, https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ntnl-scrt-grn-ppr-2016-bckgrndr/index-en.aspx.
43 The Supreme Court has yet to adopt the position that section 7 imposes a positive duty on the government to take measures that would preserve or protect members of the public, as was articulated in the dissent of Arbour J. in Gosselin v. Quebec (AG), [2002] 4 SCR 429.
44 House of Commons, Standing Committee on Public Safety and National Security, Protecting Canadians and Their Rights: A New Road Map for Canada’s National Security, May 2017, Chair: Robert Oliphant, https://www.ourcommons.ca/Committees/en/SECU/StudyActivitystudyActivityId=8988648.
45 Alford, ‘Bill C-51’, supra note 37.
46 Public Safety Canada, National Security Consultations: What We Learned Report, by Hill & Knowlton Strategies (Ottawa: Public Safety Canada, 2017), https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2017-nsc-wwlr/2017-nsc-wwlr-en.pdf.
47 Government of Canada, “Our Security, Our Rights: National Security Green Paper, 2016”, p. 5, https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ntnl-scrt-grn-ppr-2016-bckgrndr/ntnl-scrt-grn-ppr-2016-bckgrndr-en.pdf.
48 Upton Sinclair, I, Candidate for Governor: And How I Got Licked (Berkeley: University of California Press, 1994), 109.
49 Public Safety Canada, 2016 Public Report On The Terrorist Threat to Canada, https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2016-pblc-rpr-trrrst-thrt/index-en.aspx.
50 Justin Ling, ‘Harper’’s New Budget Is Making it Rain on Canada’s Military and Spies’, Vice Magazine, 21 April 2015, https://www.vice.com/en_ca/article/qbx4pd/harpers-new-budget-is-making-it-rain-on-canadas-military-and-spies-001.
51 Ian McLeod, ‘Spies in New Glass Houses: Ottawa’’s Electronic Espionage Agency Budget Blows Past CSIS, Tops $600 Million’, Ottawa Citizen, 10 November 2016, http://nationalpost.com/news/politics/spies-in-new-glass-houses-ottawas-electronic-espionage-agency-budget-blows-past-csis-tops-600-million.
52 Commission of Inquiry Concerning Certain Activities of the RCMP, Second Report: Freedom and Security Under the Law (Ottawa: McDonald Commission, 1981); Rapport de la Commission d’Enquête sur des Opérations Policières en Territoire Québécois (Rapport Keable) (Québec: Ministère des Communications, 1981).
53 CBC News, ‘Air India Case Marred by ‘Inexcusable Errors’, 17 June 2010, https://web.archive.org/web/20100619234239/http://www.cbc.ca/canada/story/2010/06/17/air-india017.html.
54 Andrew Mitrovica and Jeff Sallot, ‘CSIS Destroyed Air-India Evidence’, The Globe and Mail, 26 January 2000, https://www.theglobeandmail.com/news/national/csis-agent-destroyed-air-india-evidence/article4159517/.
55 See X, Re, 2014 FCA 249, 2014 CarswellNat 4344, 2014 CarswellNat 4345, [2015] 1 F.C.R. 684 (F.C.A.), leave to appeal allowed 2015 CarswellNat 182, 2015 CarswellNat 183 (S.C.C.).
56 Faisal Kutty, ‘Goodale Must Investigate Racism Allegations Against CSIS’, 20 July 2017, http://www.faisalkutty.com/feature_event/goodale-must-investigate-racism-allegations-against-csis.
57 Ibid.
58 Michelle Shepard, ‘Judge Slams Ottawa for Delays Over $35-Million CSIS Lawsuit Alleging Workplace Islamophobia, Racism and Homophobia’, Toronto Star, 24 October 2017, https://www.thestar.com/news/canada/2017/10/24/judge-slams-ottawa-for-delays-over-35-million-csis-lawsuit-alleging-workplace-islamophobia-racism-and-homophobia.html.
59 Andrew Mitrovica, ‘Canada’’s “‘Untouchable”‘ Spies’, Al-Jazeera, 19 July 2017, https://www.aljazeera.com/indepth/opinion/2017/07/canada-untouchable-spies-170719090810820.html.
60 Bruce Livesey, ‘Is Bigotry Blinding CSIS and the RCMP – to Disastrous Effect?’, National Observer, 14 September 2017, https://www.nationalobserver.com/2017/09/14/news/bigotry-blinding-csis-and-rcmp-disastrous-effect.
61 Michelle Shephard, ‘CSIS Settles Multimillion-Dollar Lawsuit with Employees Who Claimed Workplace Islamophobia, Racism and Homophobia’, Toronto Star, 14 December 2017, https://www.thestar.com/news/canada/2017/12/14/csis-settles-multimillion-dollar-lawsuit-with-employees-who-claimed-workplace-islamophobia-racism-and-homophobia.html.
62 R. v. Nuttall, 2016 BCSC 1404, para. 17.
63 Ibid., para. 40.
64 Thomas Walkom, ‘BC Entrapment Ruling Reins in Excesses of War on Terror’, Toronto Star, 3 August 2016.
65 See R v Hart [2014] SCC 52.
66 R. v. Nuttall, para. 832–6.
67 Ibid., para. 40–52.
68 Ibid., para. 52–6.