April 5, 2018
Bill C-59 was explicitly introduced with the claim that it fixes “the problematic aspects” of its predecessor, Bill C-51—now Canada’s Anti-terrorism Act, 2015.
We, the undersigned civil society organizations and individual experts, are concerned that C-59 does not truly fix all of the problems with our current national security law, and it has introduced some very serious new issues.
The Bill was referred to the House of Commons Standing Committee on Public Safety and National Security (SECU) after first reading, which leaves open the possibility for amendments. SECU has had the opportunity to hear from many of us, and many others, about where Bill C-59 falls short, where it oversteps, and how it can be improved to ensure that it takes a rights-centric approach to national security. The coming days and weeks are a crucial time to speak out. As Bill C-59 moves through Parliament our government needs to hear from those who think that Canada deserves better and that this legislation can and must protect national security while firmly and unequivocally upholding human rights.
There is consensus amongst civil liberties and human rights organizations about some of the most troubling aspects of Bill C-59. Our concerns focus on: 1) the bill’s empowerment of our national security agencies to conduct mass surveillance; 2) the practical impossibility of an individual effectively challenging their inclusion on the “no-fly list”; and 3) the authorization of Canada’s signals intelligence agency, CSE, to conduct cyberattacks. While these by no means represent the only problems with Bill C-59 that require “fixes”, they are among the areas where change is both urgently required and most broadly supported.
Authorizing Mass Surveillance
We acknowledge the increase in oversight and review that may be achieved with the creation of a National Security Intelligence Review Agency and an Intelligence Commissioner. However, Bill C-59 also expressly empowers mass surveillance through the collection of bulk data and “publicly available” data – a term that is not clearly defined in the bill in relation to datasets collected by our human intelligence agency, CSIS, and extraordinarily expansively defined for the CSE. In both cases, “publicly available” is open to interpretations that are as sweeping as they are troubling. In particular, there is no requirement that publicly available information must have been lawfully obtained. In the absence of effective limits in the law, the bodies that have been set up to improve accountability may review or oversee mass surveillance activities, but not necessarily prevent or limit them. The bill also lowers the threshold to allow CSIS to collect information about Canadians – even data that is expressly acknowledged to not relate directly and immediately to activities threatening the security of Canada–if it is “relevant,” rather than restricting collection to information that is necessary. There has been little meaningful debate on whether this lower threshold is necessary or reasonable in light of the goals the government seeks to achieve.
Secret trials with secret evidence for individuals on the “no fly” list
The no-fly list has never been shown to increase aviation safety. Bill C-59 perpetuates a scheme that severely limits rights based on a mere suspicion of dangerousness that cannot be effectively challenged in a fair and open process. The government’s proposed redress system for those mistakenly on a list of people subject to enhanced security screening (“slow fly list”) does not assist those who are simply prohibited from flying. These individuals face a process in which they can legally be denied information relevant to their case, can be denied access to their own hearing and have no right to an independent special advocate with access to all of the evidence against them. SECU has already recommended a number of changes to the no-fly list including the use of Special Advocates. Some of us, and others, have gone further, and argued for the repeal of the “no fly” system completely. Successive governments have allowed this system to endure for over a decade, and it is imperative that the fundamental rights issues it poses be acknowledged and addressed.
Legalizing Cyberattacks by “Canada’s NSA”, the Communications Security Establishment (CSE)
We are seeing our “intelligence” agencies transformed in dangerous directions. C-59 continues to allow CSIS active “disruption” powers and now also gives the CSE new powers to use cyber-attacks against foreign individuals, states, organizations or terrorist groups. This would include hacking, deploying malware, and “disinformation campaigns”. There is a significant danger of normalizing state-sponsored hacking, not to mention the obvious tension when the agency mandated with protecting our cyber infrastructure is also powerfully incentivized to hide and hoard security vulnerabilities for its own attack exploits. We need a public discussion about what threats these attack powers are meant to address and what new threats they may open us up to if a Canadian attack results in cyberwar escalation.
Canadians were told that the new law would “fix” the old law. Instead, we got a bill that nominally addresses some concerns, but exploits the opportunity to introduce more radical new powers for national security agencies.
If the goal of Bill C-59 is truly to “fix” Canada’s national security laws, there is still much work to be done.
Signed by (alphabetical order):
Amnesty International Canada
BC Civil Liberties Association
BC Freedom of Information and Privacy Association
Canadian Association of University Teachers
Canadian Civil Liberties Association
Canadian Federation of Students
Canadian Journalists for Free Expression
Canadian Union of Postal Workers
Canadian Union of Public Employees
Independent Jewish Voices Canada
International Civil Liberties Monitoring Group
Lawyers’ Rights Watch Canada
Ligue des droits et libertés
National Council of Canadian Muslims
National Union of Public and General Employees (NUPGE)
Privacy and Access Council of Canada — Conseil du Canada de l’Accès et la vie Privée
Rocky Mountain Civil Liberties Association
Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC)
Elizabeth Block, Independent Jewish Voices, Canadian Friends Service Committee
James L. Turk, Director, Centre for Free Expression, Ryerson University
Sharon Polsky, MAPP, Data Protection Advocate & Privacy by Design Ambassador
Sid Shniad, Member of the national steering committee, Independent Jewish Voices Canada
In November 2017, ICLMG held its general assembly meeting. We invited Azeezah Kanji to give a talk to our member organizations. Azeezah is Director of Programming at Noor Cultural Centre. She has a Bachelor of Health Sciences from McMaster University, a JD from University of Toronto’s Faculty of Law, and an LLM (Master’s of Law, Islamic Law specialization) from the School of Oriental and African Studies, University of London. She is also an opinion columnist at The Toronto Star on race, law and national security. Here is a transcript of her talk, thanks to Matthew Behrens. It was lightly edited for length and clarity.
I am a huge appreciator of the work of ICLMG, which has helped me in shaping my knowledge and approach to national security policy and publicizing that in the media.
It is quite a refreshing change to be here. I spend a lot of time talking to audiences who have some scary and strange views. I’m at a bit of a loss to be among people who have the basic premise that Muslims are human beings like most other people.
A few weeks ago, I was speaking to a continuing education class at Ryerson. I was planning to talk about Islamophobia and media. The class got extremely angry at me. They only wanted to talk about sharia and jihad and niqabs. One woman came up to me and said, “I thought you were only going to be talking about sharia and if you’re not, I’m walking out of the class.” So I let her go. I did end up talking about sharia in the end.
It strikes me how the questions that people have about Muslims are so completely oriented around Muslims as a source of terroristic and misogynistic danger, sources of jihad, the threat of sharia and the threat of niqab; even though for Muslims, Islamophobia is far more salient, far more a part of our lives than waging jihad or imposing sharia in the rest of Canada.
There are ways in which the questions that come to the fore about Muslims, the way in which Muslims are legible through the lens of threat, not through the lens of Muslims as the victims of violence. There is nothing natural or inevitable that the things people want to know about Muslims have to do with Muslims as a source of danger. As Foucault reminds us, problems don’t exist out there in the world as natural entities. Things are problematized as a result of the dominant discourses that we have. So when we think about the types of questions, and the types of things people think are important about Muslims, the fact is that people are more concerned about jihad than Islamophobia, even though we know in this country, as in the United States, we are far more likely to be killed for being a Muslim than to be killed by a Muslim.
But the fact that these questions about Muslims focus around Muslims as a source of violence rather than victims of violence are a product of dominant discourses that really need to be interrogated for the racial assumptions that are embedded in them and that are further entrenched. We can see very clearly the types of disparities in questions that are asked about Muslims as opposed to the rest of the Canadian population when we look at recent surveys about Muslims and Muslim issues. In a recent Environics survey on Muslim experiences in Canada, which was hailed for supposedly debunking many predominant assumptions about Muslims in Canada, we can see the very formulation of the questions that were asked reflect the racialized lenses through which Muslims are seen as a source of violence.
For example, Muslims were asked: “what are your views on ISIS.” We had encouraged them to frame the question instead as: “do you support deliberate attacks on civilians,” because that is a question that would provide a comparison between Muslim and non-Muslim Canadians in their views on violence. But instead the question was framed as asking Muslims whether they support ISIS, and Muslims’ innocence was only then thought to be proven through the survey, not to be assumed at the outset. On the other hand, we don’t see similar questions asked of Canadians of all backgrounds about military violence which we know has led to far more civilian casualties than Muslim terrorists. For example, you don’t see Canadians being asked, “do you support drone attacks, or the killing of civilians?” When Canadians are asked about the “war on terror” they are asked, “do you think we need to engage in more violence to make Canadians safer?” Surveys are conducted asking whether Canadians through the Trudeau government should be making more military violence in Syria in order to make Canadians safer.
Canadians are not asked to repudiate the forms of violence that are conducted on our behalf and with our tax dollars, even though as a Muslim I’m more responsible for military violence that is conducted by my government than I am for anything that is conducted by ISIS or other Muslim militants, supposedly in the name of Islam. But those are never the types of questions that are asked, or the types of violence that Canadians are responsible for.
Similarly, with the recent outpouring around the Omar Khadr settlement we know that Canadians were asked whether the government should have apologized or given out the compensation. They were not asked, “do you support our government in being complicit in the torture in Guantanamo and other places,” even though we know Canadians have been deeply involved in the American regime of torture.
The fact that Omar Khadr received compensation generated far more outrage than the fact that Elmaati, Almalki and Nureddin, for example, who received compensation around the same time, were tortured with Canadian complicity. In other words, Omar Khadr was read through the lens for Muslims being responsible for violence and radicalization and so the government was condemned for offering him a settlement, whereas the government’s complicity in the torture of so many other Muslims wasn’t subject to the same sort of collectivization of responsibility that was imposed on Canadians.
Again, there’s nothing natural or inevitable about the frames through which we think about Muslims, through which we think about violence. These are frames that are created and reproduced through processes of state and media discourse.
I’m going to now focus on media, although we know that state national security discourse is involved in this, and they are not separate from media. People like Mubin Shaikh who are involved in state counter-terrorism are frequently brought onto mainstream to be expert commentators, frequently without acknowledging their involvement as informants. They’re brought on as neutral experts. The state and media are deeply entangled in presenting these frames of Muslims as perpetrators of violence rather than victims.
We know there are significant disparities in Canadian media towards violence committed by Muslims versus violence committed against Muslims, and violence committed against other racialized and marginalized groups. The fact that it only seems to be Muslims who are branded as terrorists is problematic. CBC Investigators even had a program on it, and when CBC covers it you know that it has penetrated into the mainstream discourse, it can no longer be ignored.
But what’s not examined is the way that the double standard and the disparities in the way that terrorism is applied actually stems from a whole host of media practices and the way that violence is represented.
A recent study from the University of Georgia found that acts of violence committed by Muslims received 5 times as much coverage as acts of violence committed by non-Muslims. It was based on a comprehensive analysis of mainstream media sources. We don’t have that data for Canada, which should be prioritized in developing. But even when it comes to how individual acts of violence are represented, there are disparities. For example, the night of the Quebec mosque shooting, it received 5 minutes of coverage on CBC’s The National. This was an act of violence that occurred in Canada; it was the most fatal act of political violence since 1989. A few months later, the London Borough attacks happened in the UK, and the CBC broke news to devote 5 hours of live coverage and reporting.
It’s not only quantitative disparities, there are qualitative disparities in the way that acts of violence are framed and contextualized. When perpetrators of violence are Muslims, every act of violence is accompanied by a recitation of previous acts of violence, even if they have not been committed by the same group. The only thing that links them together is the fact they are Muslims. So we see the World Trade Centre attack being linked to the Brussels attack, to Nigeria, to Paris, to Afghanistan. Every time an act of violence occurs, it’s immediately contextualized so that that violence can be seen as systematic and part of a broader pattern.
In contrast when Islamophobic attacks happen, those attacks are not contextualized in the context of Islamophobia. On the contrary, those are characterized as revenge attacks for attacks by Muslims. When CBC covered the mosque attack, it didn’t mention any of the other Islamophobic attacks.
Similarly, the history of Islamophobia that had occurred in the past few years was never mentioned. What was mentioned was the mosque’s history of links with extremism from over a decade ago. That was the frame that they chose to contextualize the mosque attack in. Within that frame it became very easy to “understand” the mosque attack, but not as a product of systemic Islamophobia and the racial formations of states like Canada through national security discourses. In fact they had a Canadian “expert” speak on the mosque attack in the immediate aftermath, and he was asked, do you think something like this could ever happen in Canada, and he said no, even though this was just after the Quebec mosque shooting.
There is constant erasure of systemic Islamophobia. Adrienne Arsenault was that same night reporting that ISIS was taking advantage of the mosque attack to lead to further violence against the West.
When we are talking about national security laws and violence and the amount of oppression they entail for Muslim communities, there is already a well-developed framework that is entrenched over and over again.
This poses challenges for a principled and effective advocacy around civil liberties, civic rights and national security. No matter how many human rights abuses occur through the practices of CSIS or the RCMP through oppressive national security, they are already justified because of the threat that Muslims allegedly represent. And indeed we know that a 2012 survey by the Civil Liberties Union indicated that Canadians agree that Muslims are discriminated against, but that it is mostly their fault.
Of course, this presents a challenge as to how we frame our opposition to the abuses of national security policy when simply exposing the abuses is inadequate because there is already a framework in place to justify it. The idea of racialized threat that national security depends upon, is constantly being reiterated through media discourses, even when Islamophobia is being discussed. The overarching frame serves to justify and rationalize violence committed against Muslims.
Arun Kundnani, who teaches at NYU and is the author of The Muslims are Coming, which I think is one of the most rigorous and authoritative studies, describes the security state as discourses of race dividing the people who are the most visible targets from those who are presumed to be the beneficiaries of them. Thus, the majority of Canadians can feel that they are part of a nation that is being protected, and not part of the national security threat who bears the brunt of the violence committed in the name of national security. We can see this in the reports by Public Safety Canada demonstrating that there are over 100 right wing and white supremacist groups, which we know have committed more incidents of violence and fatal violence than any Muslims, and yet the reports focus exclusively on Muslims as sources of terror and danger. In some of their early reports, they lump together environmental activists and white supremacists as single-issue domestic threats. But in the later reports, under the supposedly non-racist PM Trudeau, the focus is entirely on Muslims.
We also see this racialized approach in terrorism prosecutions. All but one of the around two dozen prosecutions have involved Muslims or people linked to Muslim groups. So we see how these counter-terrorism prosecutions are pre-emptive; they are not meant to criminalize acts that have already occurred. They focus on criminalizing the preparation for acts of violence that are often encouraged by state informants. These pre-emptive provisions of the Criminal Code are applied almost exclusively to Muslims; they are not applied to right wing supremacists. But the more pertinent question is: why aren’t they being applied to right-wing militias who are actively involved in violent training exercises?
I think this shows how deeply the lies of national security are embedded, because if non-racialized populations were subject to the kind of pre-emptive criminalization that racialized populations were subjected to, if this approach was applied to the general population, I don’t think they would be considered in the general interest of people.
We can actually see some of this in the recent debate of Bill M-103 which did not involve any imposition on people’s freedoms in the ways that counter-terrorism laws restrict freedom. After the Quebec mosque shooting, a non-binding motion to study Islamophobia was presented, which a majority of Canadians thought was an over-reaction. In contrast after the Parliament Hill attack by Muslims, a majority of Canadians were in favour of strengthening counter-terrorism laws in order to protect against this threat.
In other words, a non-binding Parliamentary motion is seen as an over-reaction when Muslims are killed, but when Muslims are the source of violence, it’s not considered an over-reaction; in fact, it’s considered eminently desirable to increase the realm of criminalization. People assume, I think, that its most visible targets are Muslims, who are assumed to be the source of danger, and understood primarily through the lens of being a source of danger, rather than the victim of the erosion of civil liberties and civil rights through counter-terrorism.
We also know from survey data in the United States, for example, that when the revelations about the widespread surveillance through the NSA came out, wide swaths of the American population were outraged. But when it was revealed that it was primarily Muslim communities who were being targeted for surveillance, the percentage of Americans who thought this was wrong dropped drastically.
And we know that as national security becomes more and more pre-emptive, as it becomes even more oriented towards preventing terrorism, as opposed to simply punishing acts of violence after they occur, the logic of national security becomes more and more oriented to ideas around race. It becomes less about what people have actually done, and more about using ideas of race to identify which communities pose a risk, and which communities need to be subjected to extraordinary, pre-emptive measures of intervention. Indeed, you have nothing but the sort of racial ideas to go on, in determining who constitutes a threat. It becomes less about what people have actually done and more about what people’s ideologies are presumed to be, i.e., what’s in their head, who they are talking to, the community spaces they are going to.
There is a CSIS report that halal shops, for example, were a hub of radicalization. I’m a vegetarian so I don’t eat halal meat, so I’m not implicated in that, but it’s disturbing that as the project of national security becomes ever more obsessed with intercepting supposed threats before they occur, it becomes more and more about interpreting markers of race as signs of danger.
We know with counter-radicalization programs, for example, which are supposed to be government programs to intercept people who are on the threat of being radicalized to extremism, that what states have come up with as the markers of radicalization to violence are explicitly racist. Some of the markers of radicalization in the US have things like wearing traditional dress, starting to use more traditional language. Or they are applied in a way that are not explicitly racist but because the criteria are so vague, they end up being applied in a way that interprets things that wouldn’t be considered suspicious otherwise, but when Muslims exhibit them, they are considered suspicious, and then they get referred to counter-radicalization programs.
So, for example, we know with the Toronto counter-radicalization program that has been operating, they have 108 markers that indicate that someone might be moving towards radicalization, and they have been very non-transparent about what those markers actually are. There were things like people becoming disinterested in school and disengaged from their activities, or not paying as much attention to their homework. These are things that wouldn’t be considered a sign that someone is planning to engage in terrorism in any other context, except through these implicitly racial ideas that If Muslims are doing it, then it’s not just a sign of teenage anomie, it’s a sign that someone is potentially going along this path to participating in violence.
We know from the UK and the US that it is overwhelmingly Muslim communities who are targeted by counter-radicalization. A study of counter-radicalization in the UK by the Open Society Foundation found that 80% of referrals to the Prevent Program were subsequently found to be unfounded; they were spurious. And yet, it was predominantly Muslims who were being referred to these programs.
So these general spurious ideas about Muslim threats lead to Muslims being subjected to extreme exceptional scrutiny and securitization through these programs on the basis of very problematic and vague criteria, even though subsequently they’ve found that there’s no basis for that kind of suspicion.
In Canada, we don’t have data about who is being referred to these programs, what their criteria are, what the outcomes are. The media are not really interested in asking these kinds of questions and holding governments to account for these counter-radicalization programs until the question of the possibility of foreign fighters came up. We’ve seen that suddenly, in the last week or so, CBC has been pointing to the fact that the government hasn’t been keeping track of who is going through the counter-radicalization programs, and what kind of interventions they’re being subjected to, until the possibility came up of foreign fighters returning. Now they’re worried, not that these counter-radicalization programs are violating the rights and liberties of the communities who are targeted by them, but about the efficacy of their ability to de-radicalize people who are supposedly seen as threats. This is why then we have journalists as well as politicians encouraging the government to engage in targeted killing of foreign fighters abroad, because these counter-radicalization programs can’t be trusted.
It wasn’t the lack of transparency that was the problem when the danger was that Muslims were being unfairly and oppressively securitized. It only becomes a problem when it calls the efficacy of the program into question, and therefore perhaps endangers the safety of the Canadian nation, which is seen as excluding the Muslims who are subjected to exceptional scrutiny in the name of securing the nation.
I think we can see how the logic of national security is not accidentally or peripherally racist in its application. People were surprised when the allegations about CSIS’ racism came out. For example, it turned out that they were telling gay employees that you better watch out for your Muslim in-laws, that they don’t behead you in your sleep. A female employee who wore the hijab was subjected to a polygraph test about how many times a day she prayed and asked who she was affiliated with in her community. People treated that as shocking, but the logic of race has always been central to the logic of national security, which isn’t, as government ministers have stated, simply about punishing crimes after they occur. The threat of terrorism is seen as so serious and so large that the purpose of national security is to pre-empt threats before they occur. The entire logic around which threats are understood and apprehended is based on the logic of race. Race is central to the way national security operates. Racism isn’t an accidental side effect.
I think that this has some implications then for the way that we approach national security advocacy. I think that sometimes opposition to oppressive national security laws and policies must take in the form of highlighting cases where the application has supposedly been over broad, such as when environmental activists have been caught up in the web of national security. These are seen as times when national security has targeted people who are obviously undeserving of national security scrutiny.
Kent Roach and Craig Forcese in their critique of Bill C-51 were listing the types of things that would come under the government’s increased information sharing power, as activities that undermined the security of Canada. They listed a whole bunch of activities, none of them relating to Muslims, and Muslim politics, because the idea that Muslims and Islam, and Muslim political and religious activities are inherently suspicious have been so deeply ingrained that Muslims are no longer seen as obviously innocent casualties of national security. I think this has led to a dangerous tendency in advocacy to focus on people who are seen as probably caught up in national security’s web of securitization, instead of attacking the underlying logic of national security, which is built on the naturalization of racialized threat.
In doing so, it perpetuates this racialized distinction between good, presumptively innocent victims of national security, and bad victims of national security, who may have ultimately been innocent, but the suspicion against them was somehow seen to be reasonable or legitimized.
There’s nothing natural about that. It’s a product of the way that violence and racial discourses are entrenched and repeated through media and state discourses, that I think we all need to be committed to opposing.
I think ICLMG has been good on this, compared to the way I’ve seen other race-neutral authoritative critics of national security, which either treat it as an abstract issue, and then question it when its application is overbroad, rather than looking at the way that race is central to issues of national security. I appreciate ICLMG’s work, but I don’t think there’s a universal race-neutral approach.
Since you’re here…
… we have a small favour to ask. Here at ICLMG, we are working very hard to protect and promote human rights and civil liberties in the context of the so-called “war on terror” in Canada. We do not receive any financial support from any federal, provincial or municipal governments or political parties.
You can become our patron on Patreon and get rewards in exchange for your support. You can give as little as $1/month (that’s only $12/year!) and you can unsubscribe at any time. Any donations will go a long way to support our work.You can also make a one-time donation or donate monthly via Paypal by clicking on the button below. On the fence about giving? Check out our Achievements and Gains since we were created in 2002. Thank you for your generosity!