British Columbia Civil Liberties Association | 25 November 2003

A Slogan for Our Times
by John Russell

Things have changed.

This is undoubtedly the signature slogan of our post-9/11age. All the evidence so far indicates that it is not wearing well.

Ask Maher Arar. He knows that things have changed. So do the twenty-three Ontario Muslims initially detained under Canadian immigration law for allegedly planning terrorist attacks. So do others who have been detained for up to two years without charge both here and in the U.S.

It must be a bad sign when a historical slogan can be stated in ironic opposition to its original meaning. But that seems where we are.

No one should be surprised. However, it is important to be clear just how some things have changed in the wake of 9/11. Originally, the things-have-changed mantra had been the ideological grounding for newly minted anti-terrorism laws and for closing down legislative debates around them. But it is emerging that these legislative enactments do not represent the main elements of official responses to 9/11.

In fact, the more significant changes may be more subtle and difficult to pin down. They may have to do with shifts to the culture and attitudes of government and law enforcement after 9/11. The “new normal,” as it has been chillingly called, appears to operate significantly beyond normal law and regulation. That is one thing, among many, that is truly frightening about what has changed post-9/11.

Maher Arar is a case in point. It appears that Canadian police and/or security-intelligence officials may have conspired, or at least knowingly sat by, to permit a Canadian to be abducted, in effect, and sent to another country to be tortured in an attempt to obtain information about terrorism.

That is an amazing, and unfortunately a disturbingly credible, allegation. Such measures were never contemplated even by our own much-criticized anti-terrorism legislation. If it happened, how did it happen? And what else is going on outside the law?

The real lesson here is that politicians, bureaucrats, and law enforcement personnel seem prepared to avoid normal, intended processes of law to address perceived terrorist security threats. Indeed, the belief that anti-terrorism laws would lead to a weakening of the rule of law may have been right, but for the wrong reasons. For it may not have been the anti-terrorism laws that were the greatest threat, but the political signal they sent about a new mandate: Things have changed. That is, the normal rules of a free and democratic society no longer constrain the work of fighting evil in our midst.

Another case in point is that of the Ontario Muslim men who were suspected of planning terrorist activity and were detained on immigration warrants. The government has now given up its attempts to link them to terrorist activity. Most are being deported for immigration violations. None has had a chance to clear his name publicly. All will live under suspicion for the rest of their lives. Ironically, some are seeking refugee status in Canada for fear of what their governments will do to them in light of these allegations.

There are troubling parallels in these cases. Evidently, going through the process of producing evidence to justify criminal code charges or to compel testimony or detention under anti-terrorism legislation is too demanding, awkward – and potentially embarrassing – to take chances with. No matter. Use immigration law, or pass off the file to another country, say, the U.S. or Syria.

It is difficult to believe anyone could have gotten away with this pre-9/11. But things have changed. Pretty clearly they need changing again. And while it is relatively easy to change laws, it may prove harder to identify and change what appears to have gone wrong here and establish new mechanisms for accountability.

This is, in part, why a public inquiry into the Arar case is so essential. Aside from the fundamental merits of Arar’s call for a public inquiry, it may be our best bet to uncover how the culture of law enforcement and security intelligence has altered post-9/11. The RCMP Complaint Commissioner cannot investigate these matters. Neither will internal reviews by federal ministries.

It is said that history repeats itself, first as tragedy, then as farce. Perhaps there is a corollary about history’s slogans repeating themselves – first as irony, then as jest. Quite possibly other Maher Arars will emerge as victims. If so, we will be firmly in the tragedy/irony stage of this process. A public inquiry into the Arar case may be the only way to stop this descent. More important, we need to learn more about how things have changed post-9/11.

 

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