By: Kent Roach
This commentary was first published in the Toronto Star on September 6, 2011.
9/11 may or may not have fundamentally changed the world, but it did change the way governments conduct counter-terrorism. The constant mantra after 9/11 has been the need to break the walls between agencies and countries that prevent the sharing of intelligence.
In theory, information sharing can help prevent another 9/11. But it also poses many dangers. They include false positives that wrongly identify people as terrorists, complicity in torture and a lack of accountability for how information is shared.
Take the case of Maher Arar. The Syrian-born Canadian was inaccurately identified as a member of Al Qaeda in Canadian intelligence that was shared among various Canadian and American agencies. Arar was detained in the United States and removed to Syria where he was tortured and detained for almost a year before released and allowed to return to Canada. During that time, Canadian agencies sent questions to Syrian officials in their quest for more intelligence. They duly received and distributed information obtained by the Syrians to various parts of the Canadian government.
The regular accountability and review processes in Canada failed Arar because the agency that reviewed the work of Canadian intelligence had no jurisdiction to follow the information-sharing trail as the inaccurate intelligence was passed from one agency to the police to customs officials and then on to American agencies. Similarly, no sole agency could follow the information back from Syria when information derived under torture was passed from the Syrians to foreign affairs officials, and then passed on to Canadian intelligence and policing officials, where it was eventually used to obtain a search warrant from a judge.
Fortunately, the Canadian government made a discretionary decision to appoint two special inquiries to examine what went wrong. Both inquiries had the power to see all of the relevant classified information. The reports of these inquiries revealed how easily democracies, in their desire to find and share intelligence, can become complicit with torture. The Arar Commission also recommended a fundamental restructuring and expansion of the review of national security activities. It recognized the need for intelligence sharing, but stressed the need for independent review and accountability.
No similar inquiries have been appointed in the United States. A thorough inquiry into the Arar case in the U.S. would require review bodies that could examine intelligence, immigration and perhaps unknown executive bodies.
The courts are often the accountability institution of last resort, but Arar’s lawsuit against the American government has, like many others, been shut down by the judicial application of a broad state secrets doctrine.
The lack of accountability in the U.S. for counter-terrorism abuses is striking. It has produced a legal system that is prepared to shelter extra-legal conduct by state officials.
Accountability in the post-9/11 era is an extremely different enterprise. Congressional committees were apparently briefed on warrantless spying by the National Security Agency (NSA) on American citizens, but it took the New York Times to break the story. A subsequent inquiry into the scandal had to be jointly conducted by five inspectors general covering defence, justice, the CIA, the NSA and the director of national intelligence. If it has become difficult to review and hold to account whole-of-government responses to terrorism, it is virtually impossible to hold governments to account for intergovernmental security measures, including the sharing of intelligence. Governments refuse to participate in reviews by other governments, and regional and international accountability structures are often powerless in the light of similar refusals to cooperate and reveal information covered by broad secrecy claims.
The Canadian inquiries asked both the U.S. and Syrian governments to cooperate in their inquiries, but both governments refused to do so. These countries still retained control over information that they had shared with their Canadian counterparts and both inquiries struggled to make full public reports in part because of concerns about breaching the rules that govern international intelligence sharing.
The Arar and similar cases demonstrate how accountability gaps threaten human rights, including the most basic rights against torture. They also can threaten security by preventing those in charge from examining whether agencies are not sharing enough information. In Canada, another commission found that a lack of information sharing contributed to the 1985 Air India bombing that killed 329 people. Its recommendation for increased review by a national security adviser has, however, been rejected by the Canadian government.
It is no secret that those responsible for security resent the burden of increased review. No one likes to be second guessed when they are doing a difficult job. Nevertheless, the accountability gaps that have emerged since 9/11 threaten both security and human rights. They deprive all of us as citizens about what is being done or not being done in the name of security and increased intelligence sharing.
