Civil Liberties Concerns

Civil Liberties Concerns

Civil Rights and Civil Liberties: International Concerns

To establish the principles of civil liberties and civil rights on an international basis, the United Nations Charter was drawn up after World War II (1939-1945); it states that one of the purposes of the UN is to promote and encourage respect for “human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.” In 1946 a UN Commission on Human Rights was established. In 1948 the General Assembly adopted a Universal Declaration of Human Rights prepared by the commission and embodying the 18th-century ideals of liberty, equality, and fraternity. This declaration, however, is not binding on member states.

Almost all nations deny civil rights to disfavored minorities within their borders. A major obstacle to international protection of human rights is the opposition of most countries to interference with their internal affairs, including questions of the rights of their own citizens. To some degree this difficulty has been overcome through regional arrangements and implementing bodies such as the European Commission on Human Rights and the Inter-American Commission on Human Rights.

The administration of President Jimmy Carter in the late 1970s introduced human rights as an element of foreign policy. This initiative was unevenly pressed and sometimes ineffectual, but it increased international awareness of the gravity of the problem of securing human rights for all people. The administration of President Ronald Reagan took a less aggressive stance on human rights violations, claiming that quiet diplomacy was more effective than public threats. During the administrations of Presidents George H. W. Bush and Bill Clinton, human rights issues became increasingly intertwined with international trade and commercial treaties. Controversy surrounded the granting of most-favored-nation status to countries alleged to have violated human rights, such as China. Most-favored-nation status guarantees that a country will receive the same terms offered to other trade partners in commercial treaties.

International revulsion at atrocities committed in several countries during the 1990s, including Rwanda and the former Yugoslavia, led to the establishment of international tribunals to try the most brutal war crimes. A permanent body, the International Criminal Court, began operation in 2002 to try individuals accused of war crimes, genocide, crimes against humanity, and crimes of aggression. Proponents said the existence of the court would help deter future human rights abuses. The United States does not participate in the International Criminal Court and does not recognize its authority. (1)

For an ovevriw of Civil Rights and Civil Liberties in the U.S., read here.For an ovevriw of Civil Rights and Civil Liberties worldwide, read here.

Anti-terrorism Civil Liberties Concerns

There are a number of significant concerns about how anti-terrorism measures adversely impact civil liberties. Objections to some anti-terrorism measures because of violations to civil liberties are amplified by the fact that their ability to enhance national security is questionable. In the discussion below, specific examples illustrate the major civil liberty issues, but these same concerns arise repeatedly across initiatives.

General Concerns

Criticism about anti-terrorism legislation and other measures in the United States, Canada and other countries focussed on three main areas:

Unconstitutional

Much debate has revolved around the constitutionality of Canada Customs and Revenue Agency´s API/PNR system. Three sections of the Canadian Charter of Rights and Freedoms (the Charter) are at issue:

  • section 1 states that the rights and freedoms set out in the Charter are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society;
  • section 7 states that everyone has the right to life, liberty and security of the person, and the right not to be deprived of such except in accordance with the principles of fundamental justice; and
  • section 8 states that everyone has the right to be secure against unreasonable search or seizure (Constitution Act, 1982 [en. by the Canada Act 1982 (U.K.), 1982, c. 11 Schedule B], as amended).

In a legal opinion prepared for the Privacy Commissioner of Canada, former federal Deputy Minister of Justice Roger Tass found:

“The Canadian Charter of Rights and Freedoms is intended to foster values recognized as important in Canadian society. These values include the dignity and autonomy of the individual in a free society; values that are balanced against the interests of the state in the administration of government and law enforcement. The actions of the state must be balanced and proportionate in order to limit the infringement of basic rights considered important to Canadians in the least intrusive manner possible. In light of this Charter requirement, and despite a judicial inclination to be deferential to the policy choices made by Parliament, state authority to require the submission of personal information is not absolute. The Charter, through its establishment of legal rights, permits Canadians, to a degree, o control their personal information, including the submission and use of that information to the state. The regime implemented in the form of CCRA´s API/PNR Initiative raises serious questions as to whether it is proportional to the legitimate requirements of the state.

… we are of the opinion, based on our analysis of Supreme Court decisions relating to section 7 of the Charter of Rights and Freedoms, that there is a good case to conclude that the collection, use and disclosure of information pursuant to CCRA´s API/PNR Initiative does infringe the rights and freedoms of Canadians guaranteed by section 7 of the Canadian Charter of Rights and Freedoms and that by reason of its overbreadth, the API/PNR Initiative cannot be demonstrably justified in a free and democratic society, pursuant to section 1 of the Canadian Charter of Rights and Freedoms.” (Opinion by Mr. Roger Tass, O.C., Q.C., November 21)

A second legal opinion prepared by retired Supreme Court Justice Gerard Vincent La Forest states:

“While individuals may have a diminished expectation of privacy at border crossings, and customs-related searches may not generally require full compliance with the standards required in other circumstances, the seizure and long-term retention of API/PNR information is in my view deserving of some degree of protection for individual privacy. The CCRA´s plan makes no provision for such protection. It would trench upon a reasonable expectation of privacy without either prior authorization or any measure of individualized suspicion. Government agencies would have access to detailed, travel-related information of millions of innocent Canadians. In my view this would violate section 8 of the Charter” (Opinion by retired Supreme Court Justice Hon. Gerard V. La Forest, C.C., Q.C., as cited in Privacy Commissioner of Canada, News Release, November 22, 2002).

In an October 3, 2002, letter to Minister Eleanor Caplan, David Loukidelis, the Information and Privacy Commissioner for British Columbia noted:

“… In arguing that this unprecedented, open-ended surveillance of Canadian citizens is proportional to the security benefit that is to be derived, you said that the “sort of catastrophe that can be brought about by weapons of mass destruction is without a doubt justification for keeping this information.” This response mocks the concept of proportionality that underpins s. 1 of the “Charter of Rights and Freedoms” and amounts to a bold justification for even more egregious state actions” (David Loukidelis, Information and Privacy Commissioner of British Columbia, Letter to The Honourable Elinor Caplan, Minister of National Revenue, October 3, 2002).

Freedom of Speech and Political Association

When introduced, Canada´s Anti-Terrorism Act, Bill C-36, was severely criticized because it created far-reaching powers with major implications for civil liberties. Of particular concern was the Bill´s sweeping definition of terrorism many felt jeopardized freedom of speech and political association. Amnesty International argued the provisions of this definition were “too far-reaching” and included in its ambit activities carried out in full accord with international human rights standards. For example, individuals whom Amnesty International would consider to be “prisoners of conscience” could have been prosecuted under this definition (Amnesty International (Canada), Protecting Human Rights and Providing Security: Amnesty International´s Comments with Respect to Bill C-36).

The same concern was raised about the USA PATRIOT Act. The legislation created a federal crime of “domestic terrorism” that broadly extended to “acts dangerous to human life that are a violation of the criminal laws” if they “appear to be intended to influence the policy of a government by intimidation or coercion,” and if they “occur primarily within the territorial jurisdiction of the United States (Nancy Chang, Center for Constitutional Rights, The USA PATRIOT Act: What´s So Patriotic About Trampling on the Bill of Rights?, November 2001, pp. 2-3).”

As this crime is couched in such vague and expansive terms it is feared it may be read by federal law enforcement agencies as permitting the investigation and surveillance of political activists and organizations based on their opposition to government policies. It also could be read by prosecutors as licensing the criminalization of legitimate political dissent.

Vigorous protest activities, by their very nature, could be construed as acts that “appear to be intended … to influence the policy of a government by intimidation or coercion.” Further, clashes between demonstrators and police officers are acts of civil disobedience. Even those that are entirely non-violent could be construed as “dangerous to human life” and in “violation of the criminal laws.” Environmental and anti-globalization activists who use direct action to further their political agendas may be particularly vulnerable to prosecution as “domestic terrorists.”(Nancy Chang, Center for Constitutional Rights, The USA PATRIOT Act: What´s So Patriotic About Trampling on the Bill of Rights?, November 2001, pp. 2-3).

Reportedly, the FBI has investigated political dissident groups it claimed are linked to terrorism; among them pacifist groups such as the United States´ chapter of Women in Black, which holds peaceful vigils to protest violence in Israel and the Palestinian Territories. As one of the group´s members said: “If the FBI cannot or will not distinguish between groups who collude in hatred and terrorism, and peace activists who struggle in the full light of day against all forms of terrorism, we are in serious trouble.” (Michael Ratner, Center for Constitutional Rights, Making Us Less Free: War on Terrorism or War on Liberty?)

Presumption of Innocence

The principle of the presumption of innocence (i.e., everyone is presumed to be innocent until proven guilty) is embodied in subsection 11(d) of the Canadian Charter of Rights and Freedoms. There are concerns that the profiling used in a number of anti-terrorism initiatives will turn this presumption of innocence into the presumption of guilt.

Computer profiling is seen to shift the burden of proof from the government having to prove wrongdoing to data subjects having to prove their innocence. Individuals who fit the profile will be treated differently from those who do not. Guilt is inferred from the probability that an event will or has occurred. A judgment is made about a particular individual based on the past behaviour of other individuals who appear to be statistically similar. See United States Congress, Office of Technology Assessment, Federal Government Information Technology: Electronic Record Systems and Individual Privacy (Washington, D.C.: U.S. Government Printing Office, June 1986), p. 88.

In the United States this concern was raised about the type of profiling used by CAPS. Passengers who “fit the profile” are selected for heightened security measures, which can include a thorough search of their luggage in front of other passengers, intrusive personal questioning, tagging of luggage with orange tape, and a physical escort from the check-in counter to the airport gate by security personnel, in full view of other passengers. The ACLU has long criticized passenger profiling, calling it “a speculative means of predicting criminal conduct that does nothing to insure safety. (American Civil Liberties Union, “As Airlines Debut Profiling System, ACLU Launches Web Complaint Form,” Press Release, December 31, 1997).

Search and Seizure

Supporters of the creation and use of national databases argue that harm to individuals is minimal: most individuals are not even aware of the profiling. They also hold the view that “if you have done nothing wrong, you don´t have anything to worry about.”

Opponents, on the other hand, view the creation of large scale databases and the use of profiling as nothing more than sanitized search and seizure. They think many of the anti-terrorism systems will amount to a general electronic search, a “fishing expedition” or “dragnet,” because the collection, use and disclosure of personal information is done without consent and without any pre-existing evidence or suspicion of wrongdoing.

A traditional law enforcement investigation is generally triggered by some evidence that a person is possibly engaged in wrongdoing. Concerns arise because many of the anti-terrorism measures are not bound by this limitation. They are directed not at an individual, but at an entire category of persons that “fit the profile.” They are not initiated because a specific person is suspected of misconduct, but because a category of people is of interest to law enforcement (i.e., those who purchase one-way airline tickets with cash, or those who purchase large quantities of ammonium nitrate, such as Terry L. Nichols who was involved in the Oklahoma City bombing). What makes these anti-terrorism measures fundamentally different from a traditional law enforcement investigation is their very purpose is to generate the evidence of wrongdoing required before an investigation can begin (John Shattuck, “Computer Matching is a Serious Threat to Individual Rights,” Communications of the ACM, June 1984, p. 538).

Due Process

The issue of due process is one of the most contentious in the ongoing debate about the lawfulness of a number of anti-terrorism measures. Due process refers to the right to view, challenge and refute the government´s information before a formal decision is made.

A number of legislative changes authorize law enforcement to delay notice of action or to withhold information from the individual who is the subject of the surveillance. To the extent individuals are denied knowledge and adequate opportunity to challenge or contest the conclusions, they are denied due process of law.

When introduced, one provision of Bill C-36 would have empowered the Solicitor General to recommend groups be put on a public “terrorist” list without any advance notice or an opportunity for response prior to listing. The lack of due process and procedural protections were at the core of the criticism surrounding this provision.

Later amendments incorporated a number of protections including provisions for removal from the list, judicial review and safeguards to address cases of mistaken identity. In addition, the list must be reviewed every two years by the Solicitor General (Department of Justice, Backgrounder, Royal Assent of Bill C-36 The Anti-Terrorism Act, December 18, 2001). However, it should be noted that groups may still be put on the terrorist list without being permitted to see the evidence against them: they only have access to a summary prepared by a judge.

The issue of secret searches also raises significant due process issues. As a result of post-9/11 anti-terrorism legislation, both Canada and the United State can lawfully conduct secret searches. The Anti-Terrorism Act adds “terrorism offences” to the list of circumstances under the Criminal Code in which an Attorney General may delay notifying a person of an interception for up to three years. The USA PATRIOT Act authorizes a person´s home to be searched without that person being informed a search was ever performed or surveillance devices implanted. The application of this provision is not limited to terrorism investigations, but extends to all criminal investigations, and is not scheduled to expire.

The new “sneak and peek” search provision of the USA PATRIOT Act applies where the court, says Chang, in the “The USA PATRIOT Act,” “finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse effect.” 126 This is seen as a contravention of the “knock and announce” principle, which forms an essential part of the Fourth Amendment´s reasonableness inquiry. In the United States, the Fourth Amendment states the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

When notice of a search is delayed, the subject is prevented from pointing out deficiencies in the warrant and from monitoring whether the search is being conducted in accordance with the warrant, says Chang.

Law enforcement officials maintain that the arguments regarding violations to due process are misleading. They note the right to confront an accuser never applied to the purely investigative stages of a law enforcement activity. In addition, they argue due process is not an issue if after the investigation is completed, individuals are informed of what information was used, how conclusions were arrived at, and have an opportunity to refute the evidence.

Equal Protection

Critics argue the profiling of certain national, ethnic and religious groups is discriminatory action by the government. In particular, computer profiling is seen as a violation of the right of equal protection under the law.

In November 2001, United States Attorney General Ashcroft announced the FBI and other law enforcement personnel would interview more than 5000 men, mostly from the Middle East, who were in the United States on temporary visas. None of these men were suspected of any crime. The interviews were said to be voluntary (Ratner, “Making Us Less Free”.)

Civil liberties as well as Muslim and Arab-American organizations objected because the investigations amounted to racial profiling and interviews of immigrants who might be subject to deportation cannot be considered voluntary. A number of law enforcement officials also raised concerns; a few local police departments even refused to cooperate (Ratner, “Making Us Less Free”.)

In March 2002, Ashcroft announced the Justice Department was launching a new investigation of 3000 more non-citizens, mostly young Arab men. This initiative was undertaken despite the fact that just over half of the initial 5000 could be found for the interviews and little, if any, information was learned. The American-Arab Anti-Discrimination Committee was sharply critical of this new effort saying it was an “ineffective method of law enforcement and constituted an unacceptable form of racial profiling (Ratner, “Making Us Less Free”.)

When the CAPS program was first contemplated in the United States, the “constitutional fragility” of such a system was recognized by the government. As a result, no CAPS profile was to “contain or be based on material of a constitutionally suspect nature (White House Commission on Aviation Safety and Security, Final Report to President Clinton, February 17, 1997, as cited in Chakrabarti and Strauss, Carnival Booth).

The United States Federal Aviation Administration maintained its profiling procedures were not discriminatory and insisted CAPS did not target any group based upon race, national origin, or religion (Michigan Advisory Committee, Civil Rights Issues Facing Arab Americans). However, in 1997, a newspaper reporter obtained confidential airline security manuals and found they explicitly listed some ethnic associations, with names of Middle Eastern origin, as grounds for suspicion (American Civil Liberties Union, “As Airlines Debut Profiling System”).

Critics of the anti-terrorism measures also contend they actually foster racial discrimination in the population at large. The ACLU was particularly concerned some of the information provided under the proposed Operation TIPS would have come as a result of personal bias or racial profiling. Law enforcement would have had to follow-up on information provided by uninformed citizens who may be prejudiced (Black, “Some TIPS for John Ashcroft”).

This concern is not without foundation. For months after September 11 2001, Canada´s Muslims were subjected to increased harassment and threats. Recorded incidents included assaults, arson, death and bomb threats, vandalism, malicious e-mails, slurs yelled out of passing cars and looks of distrust in shopping centres and city streets. Places of worship were vandalized, individuals were humiliated and abused, and even children were victimized (David Kilgour, Sam Millar and Jacqueline O’Neill, “Strength Under Siege: Canadian Civil Society Post-September 11th”).

By virtue of visual association and ignorance, Sikhs, Jews and others ethnic and religious groups also reported cases of harassment, intimidation, and violence. On September 15, 2001, in Hamilton, Ontario, a Hindu temple was destroyed by fire set by individuals who, according to police, thought it was a mosque. In addition, a man left a disturbing message on the Hamilton Mosque´s answering machine saying in retaliation for the World Trade Center attacks he was going to rape five year old Muslim children (Susan McClelland, “Rising from the fire: Hamilton´s religious leaders unite to combat,” Macleans).

Fair and Public Trial

There are concerns in both the United States and Canada about anti-terrorism legislation significantly eroding an individual´s right to have a fair and public trial. Canada´s Anti-Terrorism Act placed restrictions on this well-established principle by:

  • creating a new subsection to the Criminal Code waiving the right to remain silent;
  • amending the Criminal Code regarding the right to a public trial; and
  • introducing new subsections to the Canada Evidence Act which provide a Federal Court judge, the Attorney General of Canada and the Minister of National Defence the authority to order the non-disclosure of information during any judicial proceeding (Amnesty International (Canada), Protecting Human Rights and Providing Security).

Amnesty International argued these provisions are inconsistent with a number of the fair trial safeguards found in Article 14 of the International Covenant on Civil and Political Rights. Canada ratified the Covenant and, therefore, is bound by its provisions (Amnesty International (Canada), Protecting Human Rights and Providing Security).

Resources

Notes and References

  1. Encarta Online Encyclopedia

See Also


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