National Security Law and Anti-Terrorism Law

This commentary by Prof. Ed Morgan was first published in The Globe and Mail on May 27, 2009.

Canadians may be surprised to learn a few things about our constitutional law.

First, the military owes no duty toward detainees arrested by us and turned over to a foreign state for custody.

Second, our intelligence service does owe a duty toward prisoners taken into custody by a foreign state and turned over to us for interrogation.

Third, our diplomats are obliged to intervene with a foreign legal system that fails to live up to our domestic standards of punishment.

And fourth, our police are free to comply with a foreign legal system that fails to live up to our domestic standards of search and seizure.

When it comes to the powers of the Canadian government abroad, each new court ruling makes us wonder if the judges took the time to read the last one. How did this confused state of affairs come to be?

A decade ago, the world rightly stood in solidarity with the United States in the face of the 9/11 terrorist attacks.  The story of how the Bush Administration squandered that solidarity through Guantanamo, torture and the invasion Iraq is well known. Less well known is how the United Nations also lost its opportunity to unite world in principled counter-terrorism.

The 9/11 attacks provided the U.N. with an unparalleled opportunity to forge international agreement on a definition of terrorism. Whatever previous disagreements there were about freedom fighting and state terrorism, it was clear that the 9/11 attacks constituted terrorism. The killing of innocent people not engaged in hostilities in an armed conflict was terrorism; it did not matter whether they were in the planes, the World Trade Centre or the Pentagon.

On September 28, 2001, the Security Council demanded that all states enact tough counter-terrorism measures under its mandatory powers to enforce international peace and security. The Security Council offered no guidance on the definition of terrorism. It failed to so, even though a 1999 Convention on the Suppression of Terrorism Financing previously included a restrained but principled definition:  the intentional killing or injuring of those not engaged in armed conflict in order to intimidate a population or compel governments to act.

This article by Prof. Ed Morgan was originally published in The Lawyers Weekly, April 13, 2012.

In the Afghan prisoners case, the Federal Court of Canada explained that the government owes no constitutional duty when, after questioning, the military turns detainees over to a foreign government. The judgment presumed that Canadian forces require flexibility, and enjoy the discretion to deviate from domestic rules when they deal with an allied state and prisoners of war.