The Views of Canadian Scholars on the Impact of the Anti-Terrorism Act

3. STUART FARSON Institute for Governance Studies, Simon Fraser University

3.1 What has been the impact of the Anti-Terrorism Act on Canada?

It is, I think, important to distinguish between several issues before trying to discern what impact the Anti-terrorism Act itself has had on Canada. These issues concern the impact of the attacks of September 11, 2001 on the United States; the impact of the responses that the United States has taken to these attacks on Canada; the impact of Canada's Anti-terrorism Act on Canada and Canadians; and the impact of the September 11, 2001 attacks on Canada and Canadians.

There is little doubt that the events of September 11, 2001 have had an enormous and direct impact on the U.S. Government and its citizens, immigrants and visitors. On the home front it has led to the largest reorganization of government since the end of the Second World War. The most noticeable change in this regard has been the formation of a new omnibus department, the Department of Homeland Security. This organization will attempt to meld a variety of organizations with distinctly different organizational cultures under a single tent. Several factors will affect this reorganization and whether it will turn out positively. Two are of critical importance. Providing enhanced and adequate levels of security across a range of needs will depend on the broad-scale collaboration between not only the various arms of government federal, state, and municipal but also between government institutions and the private sector. In this regard, it is important to recall that most critical infrastructure is in private sector, not public sector, hands. The second factor concerns a new set of attitudes toward the sharing of information and intelligence between organizations. This needs to happen very broadly not only between the various federal members of the U.S. security and intelligence community something that has not happened either readily or effectively in the past but also between federal government institutions and state government organizations, and among all levels of government and the private sector.

Overseas the United States has undertaken a vast intelligence and military project to nullify the influence of the Taliban and elements of the al-Qaeda network in Afghanistan and in neighbouring states. Further afield it has undertaken, again in conjunction with supporting states, to thwart the threat posed by al-Qaeda and the network of Islamic extremist groups. An important component of this activity has been the increased sharing and swapping of intelligence not only with traditional allies like Canada but also with more unsavoury regimes. In addition, under the banner of the war on terror the U.S. and Britain have invaded Iraq and toppled the regime of Saddam Hussein. The premise under which this was pursued was the belief, based supposedly on sound intelligence, that the Iraqi regime not only possessed weapons of mass destruction but also was prepared to use them. Most appear to believe that this has been proven to be false. It is likely that the selective use of intelligence in this way to support policy viewpoints will have long-term ramifications for U.S. and British intelligence. Inquiries in both countries have been announced.

These changes at home and abroad have incurred substantial economic costs, particularly regarding the attack on Iraq and the rebuilding of its critical infrastructure. On the domestic level, several economic sectors have been particularly hard hit. Not the least of these is the airline industry and transportation generally. Abroad countries relying on U.S. tourism dollars will be hard hit. It is unclear, at this point, what the immediate and long-term ramifications for the U.S. economy will be. Certainly, the debt levels are now sufficient to cause serious international concern.

Change to U.S. national security law has been another important effect of the dramatic September 11, 2001 attacks. Domestically, new legislation has provided greater and more invasive powers of surveillance, investigation and procedure. Similarly, people believed to be involved in terrorism who have been captured abroad are being detained outside U.S. territory as enemy combatants. This will likely permit such individuals to be brought before military tribunals rather than civilian courts without the usual safeguards and remedies provided under the U.S. constitutions. Collectively, these changes to law and procedure challenge many of the long cherished traditions of freedom and democracy that the U.S. has hitherto epitomized.

It is also important to recognize that the attacks have had an important and profound effect on the American psyche. This has occurred at a number of levels. Fear levels have evidently risen. These are reflected in the decline in air travel both within the United States and to foreign locations and in the decline in tourism by Americans outside the U.S. Voices of criticism against the war in Iraq have found it hard to find a stage. And there is a greater willingness to accept measures such as traveller profiling and immigrant tracking that are geared to persons of particular religious beliefs and ethnic backgrounds. The reputation of the United States as a welcoming place to immigrants, visitors and students alike is now profoundly changed. All are suspects. It is to be hoped that the insecurity state, which appears to have resulted, will be short-lived.

The impact of these developments on Canada has already been considerable. The amount of Canada's trade that Canadians ship to the U.S. provides the U.S. Government with substantial leverage. Not surprisingly, this has been most closely felt in the area of security. For many Canadians, several of the key measures in the Anti-terrorism Act and elements of the border security agreements were adopted specifically to assuage U.S. fears rather than to enhance Canada's security against a real threat. It is important in this regard to note that many in the U.S., even normally well informed and astute politicians are still under the wrong-headed assumption that the hijackers who carried out the attacks on September 11, 2001 entered the U.S. from Canada. Similarly, though senior FBI officials have been at pains to point out that Ahmed Ressam was not a member of al-Qaeda, he is frequently mythologized as such both in the U.S. and Canadian media. An important development has occurred in the field of intelligence. It is probably true to say that from the Second World War to the events of September 11, 2001, Canada received a greater benefit from its various intelligence sharing relationship with the U.S., than did the U.S. The ground has shifted since September 11, 2001, probably profoundly. Not only is the information that Canadian intelligence organizations can provide now of greater interest and importance to their U.S. counterparts but there is clear recognition among senior Canadian intelligence officials that if Canadians do not protect U.S. interests in Canada, U.S. agencies will step in and do so. Thus, the current climate includes both carrots and sticks for Canadian intelligence agencies. The result in all likelihood will be better cross-border working relationships. However, the Arar case demonstrates that these arrangements remain highly problematic and fragile.

U.S. responses to terrorism have created other problems for Canadians. New border restrictions and procedures as well as new tracking and screening systems have made travel to the US a decidedly unpleasant experience for Canadians of particular ethnic and religious backgrounds. Similarly, Canadian enterprises have suffered along with their U.S. counterparts as the result of the September 11, 2001 attacks. Canada's national airline is currently in bankruptcy protection and tourism by Americans to Canada is down considerably. The actual impact of the Anti-terrorism Act on Canada and Canadians is hard to assess. Certainly, its passage and eventual adoption created significant interest in terrorism and the Government's reaction to it. For many, the traditional delicate balance between the state's right to protect itself and its obligation to preserve the rights and freedoms of individual Canadians as well as the democratic fabric, which was established by the McDonald Commission, was placed under threat. In this regard, at least two major academic conferences were spawned directly by the legislation, their proceedings being subsequently published. There is little evidence that the Act itself has proven to be the demon that critics feared. Certainly, the most controversial powers provided under the legislation do not appear to have been used except in the earlier Air India investigation and court case. It is harder to judge--because their actions are not readily visible what impact the legislation has had on the attitudes and practices of those with law enforcement powers, and hence the rights and freedoms of those they investigate. Certainly, the inclusion of terrorism as a Criminal Code offence has expanded the national security role of the Royal Canadian Mounted Police and has given other police forces a remit in this area. Law, it is to be recalled, has both symbolic and actual value. In this regard, there have been a number of instances that give cause for concern, especially where joint task forces have been engaged. These have revealed both the importance of effective law enforcement oversight where national security affairs are involved and the shortage of it. It appears from the significant changes that the new Martin Government has introduced to the national security sector that it too perceived that a dramatic shift in the delicate balance had occurred. In this regard, its initiatives to provide a permanent standing committee in the House of Commons on National Security composed of privy councillors and more substantive oversight of national security policing are important initiatives in redressing the perceived imbalance.

It would be wrong to suggest that national security initiatives provided by the Canadian Government resulted only from U.S. pressure or a desire to assuage U.S. fears. Prudence and self-interest were also likely factors.

3.2 What emerging trends in terrorism do you foresee and what threats do they pose to Canada? In discussing these trends and threats, please describe what you consider terrorism to be.

How terrorism is defined, and who labels persons and groups as terrorists, and how they do it, are important issues that need to be understood. Academic researchers have found more than 200 definitions of terrorism. None of these seem to have found extensive common ground. Perhaps for this reason, the framers of the Canadian Security Intelligence Service Act, wisely in my view, studiously avoided defining terrorism, using instead the notion of serious political violence.

In the past, defining who is a terrorist has proven equally problematic. Nation states possess the power to define particular groups as terrorist when their authority is challenged through force. In some instances, such labelling has legitimacy where the labeller is a democratic government. Where the state either is autocratic or prevents specific groups from participating in the process of governance such labelling is often on more tenuous ground. The process of democratization can, in fact, turn today's terrorist into tomorrow's freedom fighter.

Because of these factors, I did not favour defining terrorism in legal terms and would have preferred to use constructs that were already within the Criminal Code. While it is now probably too late to put the genie back in the bottle, the Government of Canada needs to be particularly careful when it comes to listing groups formally as terrorists.

Terrorism for me includes all those activities which involve the planning, training for, and carrying out of acts of serious violence where those involved attempt to instil fear in a society or community for a political motive. It would not normally include such activities as cyber-terrorism, broadly construed. That having been said, cyber attacks can be used by terrorists to cause broad-scale economic and social havoc, particularly where they affect the safe functioning of utilities. Terrorism may, however, include acts that are normally perceived to be purely of a criminal nature where that activity is being used later to support or finance acts of serious political violence.

In earlier years, an important characteristic of terrorism was political communication. Frequently, the perpetrators of an act of serious violence claimed responsibility for that act and used the media to promote their particular political agenda. Though the leaders of al-Qaeda have made use of modern means of communications, and have released videos and other communications of various types with a view to encouraging their supporters to conduct further acts of violence, they have seldom specifically claimed responsibility for particular acts.

Another important characteristic of al-Qaeda activities is the extensive use of young, male suicide bombers to attack particular targets. While other groups have used this tactic extensively against Israel, it had not hitherto been used widely by other groups since the Second World War. While suicide bombing is difficult but possible to defend against, it has proven to be a very effective device in deterring air travel and encouraging domestic tourism. Though Canadian airlines have not, as yet, been successfully targeted, they have been affected significantly by the fall in international travel.

Most terrorism before the end of the Cold War was secular or nationalistic in nature and in large part sponsored by particular states, the Soviet Union being a prime example. The end of the Cold war has removed Russia from the equation along with a number of other state sponsors. By contrast, contemporary terrorism tends to be based primarily on religious or ethnic motivations. With few exceptions the groups in Columbia are good examples--it is not primarily encouraged by ideological differences. Similarly, contemporary terrorism is also more likely to be self-funded.

al-Qaeda also differs from other forms of past terrorism in being more global in scope, operating at once nationally, regionally and internationally. In this regard, it is said to comprise a decentralized network of fairly autonomous cells, each with its own leadership. Some studies suggest that parts of the network exist in as many as 60 countries. To be effective it has widely used modern communications technologies. For funding it has had to rely on a range of mechanisms: drug trafficking; criminal activities such as credit card fraud; front companies; charitable organizations; and range of covert supporters. It is said to transfer money through couriers, money-laundering techniques using a variety of banks and institutions, and through such traditional remittance mechanisms as the hawalas. All these mechanisms together provide the network with greater resilience. Even so, al-Qaeda's influence will likely still eventually wax and wane as other groups have done before it.

While the primary targets appear to be the United States, Israel and what al-Qaeda's leadership perceives as corrupt Arab states, such as Saudi Arabia, the victims of the networks attacks come from a broad range of nationalities. Canadians were, for example, among the victims of the attacks on the World Trade Centre. To date, however, Canada does not appear to have been specifically targeted, except its soldiers in Afghanistan, which have been attacked by suicide and other bombers.

To date al-Qaeda has used only conventional weapons, albeit in strategically new ways. Given the willingness of al-Qaeda to cause mass casualties and not to distinguish between state targets and innocent victims, it seems a prudent step for the international community to consider that it one day might use chemical, biological, radiological, nuclear weapons, or high-yield explosives. There is, of course, a precedent for terrorist groups using such weapons. The Aum Shinryko used a chemical weapon, sarin gas, when it attacked the Tokyo subway system in 1995.

3.3 How should our country respond to these trends and threats? Please feel free to include measures at any level, such as social, economic, political, or legal or a combination of these levels.

The threats that Canadian society routinely faces take many forms. Terrorism is but one of them. Some threats, like terrorism, are man-made: others constitute natural hazards. Some threats, particularly those of the natural type, cannot be prevented. Others sometimes can be thwarted. Both man-made and natural disasters can have a disastrous impact on communities across the country and on specific sectors of the economy. Response to threats can be designed either to be preventive in nature or to mitigate against the impact that such disasters create. However, governments---at all levels-- cannot afford either to prevent the full gamut of threats or to make society resilient against them. Consequently, it is important that all threats natural and man-made--be prioritized in some way so that governments across the country can respond in an appropriate and cost-effective manner on a regional basis. At present, there is no body at any level of government that attempts to prioritize the full range of threats. There should be such a body.

Responding to the broad array of threats is not primarily the responsibility of the Federal Government. All levels of government share to a larger or lesser extent the responsibility for preventing and mitigating against threats. Some argue that the private sector, which owns more than 80 per cent of the critical infrastructure in the country, also has a primary responsibility both for thwarting threats and making their assets resilient against them. This means that there is a critical need to share information and intelligence not only between the various levels of government but between the various levels and the private sector. Such information and intelligence need to be of both a tactical and strategic nature. Both are of particular importance when it comes to the strategic planning that many elements of the private sector perform. Historically, federal institutions when dealing with such national security threats as terrorism have been reluctant not only to share information with provincial and municipal governments but with the private sector. Since September 11, 2001 there have been a number of information and intelligence--even of a classified nature--sharing initiatives at the regional level between some of these various elements. But these are the exception rather than the rule. Furthermore, this sharing has not extended across the full range of threats. The focus appears to concern those phenomena likely to produce an immediate or sudden disaster, not those where the consequence has tended to be more systemic or endemic in nature. Information and intelligence need to be much more broadly shared than it currently is. The lack of efficient and effective means for sharing information and intelligence stems from three factors. One is the lack of regional institutions at the provincial level to provide the role. The second is the lack of funding available for such institutions. The third has its origins in the mandates that federal organizations possess. The Canadian Security Intelligence Service, for example, is limited in its mandate to informing the Government of Canada and other intelligence agencies. The new Department of Public Safety and Emergency Preparedness is ideally suited to provide funding and support such regional centres.

The production of information and intelligence about various types of threats is also problematic. Research that I have recently conducted in one region of Canada indicates that those conducting threat analyses do not share either a common lexicon or methodology. Arguably, the seriousness of a threat depends on examining the threat from two points of view: threats from and threats to. Threats from approaches focus on the agent of the action, and concentrate on such matters as the capacity of the entity or phenomenon and the likelihood of that entity taking action or a phenomenon occurring. By contrast, threats to approaches focus on the vulnerability of those who might be affected or victimized by the act or phenomenon. From talking to respondents involved in analysing threats, it is clear that threat and vulnerability analyses are often used interchangeably. This is quite important when contemporary terrorism is evaluated. Loosely linked and fairly autonomous networks like al-Qaeda have proven to be particularly hard to penetrate and obtain a precise picture of the threat they actually pose and to whom. Consequently, threat assessments have sometimes tended to focus more on the vulnerability of particular societies in terms of both their human content and critical infrastructure, and the activities they perform, rather than the strategies, capacities and intentions of terrorists. This has fostered worse case scenarios rather than more likely ones. Arguably, effective risk assessment depends on knowing both the strategies, capacities and the intended targets and methodologies of terrorist groups, as well as the vulnerability of potential targets. It appears that some organizations are not doing rigorous risk, threat and vulnerability analyses. It would likely be useful to review the processes and methodologies that organizations involved in producing threat analyses employ.

Arguably, terrorism has many underlying causes. Not the least of these are autocratic government, corruption, ethnic strife, poverty and religious conflict in numerous countries abroad. Though there are no quick fixes to alleviate these problems, the Canadian Government would be wise to do what it can to ameliorate them through well-crafted foreign policies, carefully and strategically directed foreign aid, and well supported peacekeeping operations.