Faisal Kutty: National security vs. personal freedoms — the debate continues 25 years later - Toronto Star

We risk protecting our own security by giving up someone else’s freedom.

Maher Arar speaks at a news conference in Ottawa in 2006 about the judicial inquiry report into Arar’s case. Arar was detained by American authorities and partially based on inaccurate intelligence supplied by the RCMP, was rendered to Syria, where he was imprisoned and tortured.

Faisal Kutty is a Toronto-based lawyer, law professor and writer. 

More than two decades ago, Canadian Supreme Court Justice Ian Binnie described the conflict between human rights and national security as “truly a clash of the titans.”

Twenty-five years after 9/11, Canada is still wrestling with that clash.

Within three months of the attacks that killed nearly 3,000 innocent people, Canada had fundamentally rewritten its national-security laws. Bill C-36, the Anti-terrorism Act, went from introduction to law (Dec. 18, 2001) in just over two months. It created new terrorism offences and investigative powers and measures targeting terrorist financing and charities.

Expanded intelligence sharing and, eventually, a no-fly list followed. National security increasingly reached into immigration, travel, banking and other areas of ordinary life. 

Some of this was necessary. Canada faced genuine threats and governments had an obligation to protect the public. But emergencies have a way of shifting the boundaries of government power. The harder question comes later: Which of those changes do we give back?

I had a front-row seat to that debate.

As a Toronto lawyer and counsel to Muslim civil-liberties organizations, I worked on challenges to Canada’s post-9/11 national-security regime. I was counsel to organizations involved in the Maher Arar Inquiry and security-certificate cases before the Supreme Court. I worked on anti-terrorism issues and, in 2007, prepared a submission challenging Canada’s proposed no-fly list on behalf of more than two dozen organizations.

Arar’s case was an early warning. A Canadian citizen returning home was detained by American authorities and rendered to Syria, where he was imprisoned and tortured. The inquiry exposed how inaccurate information supplied by the RCMP contributed to his ordeal. Intelligence had crossed a border much more easily than accountability.

Security certificates raised another problem: How do you defend yourself when the government can rely on secret evidence you cannot see?

Twenty-five years later, it’s important to remember that rights are not simply obstacles to security. The rule of law is part of what we are supposed to be protecting. Otherwise, we risk protecting our own security by giving up someone else’s freedom.

Perhaps I was particularly sensitive to this because my encounter with emergency powers began long before 9/11.

I was 6 when Indira Gandhi declared a state of emergency in India in 1975. My father, a former editor of an opposition magazine, was wanted for his writings. We moved from place to place before eventually sneaking out of the country and settling in Canada.

At that time, I didn’t know the language of constitutional rights or due process, but I came to it through my law career.

In Canada, limits were imposed. Courts pushed back. Laws were amended and safeguards added. And Canada did not go as far as the United States in important respects. Those distinctions matter.

But much of the architecture survived. Canada’s Passenger Protect Program (no-fly list) still exists. Intelligence sharing remains deeply integrated across borders. Immigration and national security remain intertwined. The post-9/11 focus on terrorist financing also brought Muslim charities under heightened scrutiny.

The question is not whether all these powers are illegitimate. They aren’t.

The question is whether measures introduced in an emergency should become permanent without having to show that the loss of liberty actually buys us greater security.

I was asking that question when Canada’s no-fly list was introduced. How could someone be considered too dangerous to board an airplane but not dangerous enough to charge?

Nor is this only a Muslim issue. Powers developed in response to one feared group rarely remain confined to that group. Governments change. Threats change. So do the people considered threatening.

The consequences also extended far beyond our borders. Canada fought in Afghanistan and participated in the broader post-9/11 security order. Brown University’s Costs of War project estimates that the post-9/11 wars caused 4.5 million to 4.7 million deaths, directly and indirectly, and displaced at least 38 million people.

The nearly 3,000 innocent people murdered on Sept. 11 deserved justice. But remembering them should not prevent us from reckoning with what followed. The millions who died and the tens of millions who were displaced mattered too.

Twenty-five years after 9/11, the question for Canada is no longer whether the emergency is over. It is how much of the emergency we have decided to keep.

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Opinion articles are based on the author’s interpretations and judgments of facts, data and events. More details

Faisal Kutty is a Toronto-based lawyer, law professor and writer.