Maher Arar in Ottawa Thursday, Oct. 18, 2007.TOM HANSON/The Canadian Press
In the age of terror, Canada needs to be able to work with foreign intelligence services, even to report to those services the names of Canadians who have committed no crime, but who are suspected of involvement in terrorism. Still, some controls are needed on such reporting, because the consequences of being reported can be drastic for individuals - inclusion on no-fly lists, incarceration, even torture - and because Canadian citizenship should mean protection from arbitrary actions of the state.
Roughly 20 Canadians a year, about half of whom have been charged with involvement in terrorism, were reported by Canadian authorities to United States intelligence in the past two years, according to U.S. cables revealed by WikiLeaks. For those who have never been charged, how high must the threshold of suspicion be that triggers a report? How likely are mistakes to be made? A Canadian citizen who has done nothing wrong may be exposed by his own government to a world in which he can be made to disappear. That is what happened to Maher Arar of Ottawa in 2002. And without some controls, it could happen again.
Any controls put on such information-sharing should not be so aggressive that the flow of information ceases. Canada needs to be able to continue sharing with the U.S. and other allies names of people suspected of being involved in terrorism. The most obvious reason is to protect against real perils - bombings, assassinations, the death of innocents. And Canada is obliged to help in the fight against international terrorism beyond our borders. The U.S. justifiably expects Canada to co-operate in that fight.
But a strong case exists for some controls and accountability - to protect the innocent and ensure that Canadian citizens are not subject to the worst excesses of the war on terror.
Consider that Mubin Shaikh, whom Canadian officials reported to the United States, was a paid informant for Canadian security agencies who was instrumental in exposing and convicting a terrorist ring in the Toronto area. Even apart from putting Mr. Shaikh at risk if he leaves the country, reporting him could drive away potential informants in future terror investigations. The reporting of his name to the U.S. may have been a mistake.
Of course, Canadians already know that terrible mistakes can be made, with chilling results. In the fraught days after Sept. 11, 2001, the RCMP reported Maher Arar, a father of two who immigrated to Canada from Syria when he was 17, to U.S. authorities, saying that he and his wife, Monia Mazigh, were affiliated with al-Qaeda. In fact, he was merely a "person of interest" (and his wife not at all), because he had been in contact with a man under suspicion - a man who even today has never been charged with any crime. The RCMP also told the U.S. that, after its officers visited Mr. Arar's home, he left abruptly for Tunisia. In fact, he left five months later.
The consequences of those mistakes were catastrophic. The U.S. apprehended the father of two in New York and deported him to Syria, where he was held for a year and tortured. The Canadian government ultimately paid him $10.5-million in compensation, plus $2-million in legal costs.
What sort of controls should Canada apply? At one level, "caveats" - limits on how the U.S. or other foreign governments could use the information (that is, for intelligence purposes, not legal processes, unless expressly authorized, and not to be transferred on to other governments). But caveats are not considered terribly effective. Once the information is out, it's hard to control how a foreign government uses it. (In the Arar case, the RCMP ignored its own rules on caveats.)
Another possible control would be to have a judge, or an other neutral decision-maker with a security clearance, review a name before sending it to a foreign government. The rules would need to spell out the threshold for reporting - say, reasonable suspicion of a crime (such as being a member of a terrorist group). The information would have to be relevant, accurate and reliable. This type of control is proposed by Paul Cavalluzzo, who was general counsel to the judicial inquiry on the Arar affair. Who would help ensure the information is reliable? A special advocate would challenge the government's evidence - though the person who is to be named would never know the case is going on.
Canadians want to be protected by their government, but sometimes they need protection from their government - especially from inflammatory and false or misleading information it passes on to foreign agencies, information that may have dire consequences in a largely covert war. The process will never be an open one, but the rules and safeguards deserve an open debate.