Bombs, Plots, and Laws

Published: May 17, 2013

The Boston Marathon bombing highlighted two issues long debated by legislators and security professionals in the wake of 9/11 and the now infamous “Global War on Terror” initiated by President George W. Bush…

First, the danger of the “enemy within”—supposedly “homegrown” terrorists who are simultaneously alienated and radicalized, often with the help of the Internet. Second, the difficult task faced by law enforcement and intelligence agencies in uncovering such low-tech plots in advance. After all, with a 24 hour news cycle and an inevitable media feeding frenzy, even a relatively low number of casualties (say, compared with the civil war in Syria) can have a high impact. Especially given a target which is already an over-hyped media event.

Fast forward a few days and we have the arrests of Raed Jasser and Chiheb Esseghaier, accused of a plot to attack a VIA passenger train enroute between New York and Toronto. And just a few days after that, the Harper government successfully passed amendments to Canada’s anti-terrorism legislation. The Combatting Anti-Terrorism Act resuscitates two provisions in the original law enacted shortly after 9/11 but expired in 2007 because of built-in “sunset” clauses: preventative detention for up to 72 hours without charge, and compelled testimony in investigative hearings. The timing of the two events was, in the words of Jasser’s Toronto lawyer, John Norris, “surprising.” Even assuming accident over deliberate political manipulation, the three events—Boston, the VIA arrests, and the Tories’ successful efforts to beef up anti-terror provisions—require some dispassionate and depoliticized analysis.

Do we really need such provisions? After all, Canadian authorities managed, albeit with significant assistance from informants within Canada’s diverse Muslim communities, to foil plotters in the “Toronto 18” group arrested in 2006, and now in the VIA rail case. There are two schools of thought on this. The Canadian Bar Association, the NDP, and civil libertarians generally believe that new measures are not necessary and, in any event, run dangerously counter to our legal traditions and the spirit of the Charter. The current government, along with the Globe and Mail editorial board and security professionals generally believe that desperate times sometimes require desperate measures and the fact that the preventative detention and investigative hearings provisions were not used in the past is no indicator of their potential future utility in the law enforcement tool kit. Craig Forcese of U of Ottawa’s law faculty defends the provisions, with the reasoning that it is better to have the measures enshrined in (and limited by) law rather than potential extra-legal responses. Better to have emergency measures within the big tent of the law.

One would suspect that preventative detention and investigative hearings would only effectively work with significant intelligence and detective work in any event, which further assumes that individuals and groups were plotting long enough and were organized, leaving a trail to be followed, or having raised alarm bells in a community willing to work with law enforcement. This may be what happened in the VIA case, but given that our system rightfully presumes innocence until guilt is proven in a court of law, it is simply too soon to tell. But, then again, such provisions were obviously not needed to produce the arrests of Jasser and Esseghaier.

Getting back to Boston, what we know of the story of the Tsarnaev brothers yields the unsettling conclusion that even the most robust and civil rights-trenching provisions probably would not have helped. Everyone—family, friends, neighbours—appeared shocked and appalled that the two were capable of such an enterprise, even though the elder Tamerlan was disgruntled, disempowered by his own lack of success, and had a brush-in with the law over domestic violence. In this respect, he was no different from probably thousands of other young men in the United States who would otherwise not resort to public or political violence. He was apparently on a classified FBI watch list, and the Russians had provided the Americans with a tip-off, which rather begs the question about how and why he was able to obtain a Ruger 9 mm semi-automatic handgun. Who knows if gun control or, at minimum, background checks, might have helped but it is hardly realistic to round up all the angry young men with access to guns and the Internet in a 20th century democracy.

We can anxiously wring out hands about “homegrown” radicalization and applaud efforts by the RCMP and CSIS to work closely with Muslim communities: fostering  mutual understanding, building or enhancing lines of communication and sharing worrying information seems far less suited to political grandstanding in parliament and is far more fruitful given Canada’s relatively (and thankfully) limited experience. Yet even here, care must be taken: if the past can teach us anything, there’s a fine line between community engagement and targeting a minority religion or ethnicity for special scrutiny. International conflicts have too often resulted in a pointless and rights-denying search and destroy mission for the “enemy within.” Any hint of guilt-by-association yields suspicion and disengagement and one side, and tunnel vision and an increased possibility of false positives on the other. The stakes are high, as many Canadian citizens know personally. Just ask Maher Arar.

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