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Sources and Trends in Post-9/11 Anti-terrorism Laws
IN THE FIVE years since the terrorist attacks on the United States, a staggering array of new anti-terrorism laws have been enacted throughout the world.1 A genealogical examination of the sources of anti-terrorism law may seem to be a premature attempt at history at a time when many countries are still making history with new anti-terrorism initiatives. Nevertheless, excavating the sources of recent anti-terrorism laws may contribute to ‘a history of the present’2 that can reveal how international and domestic organisations often draft anti-terrorism initiatives on the fly. These organisations engage in bricolage with what is at hand,3 but with limited information about the effects of various measures on security and human rights. In short, the sources used to make anti-terrorism laws can reveal much about their substance. In particular, they can expose the contingent, questionable but not easily reversed choices that have been made with respect to both security and human rights.
In this chapter, I will focus on three influential sources for the anti-terrorism laws found in a number of jurisdictions including Australia, Canada, South Africa, the United Kingdom and the United States. It is possible to focus on only a few sources, in part because there has been a faddish aspect to post-9/11 antiterrorism laws, with a number of countries following trends established by a small number of influential international and domestic instruments. In some instances, the directions set by influential sources of anti-terrorism law already seem dated even though it has been only five years since the new wave of anti-terrorism laws was launched.
The first source to be examined, and the most influential, is Security Council Resolution (SCR) 1373, adopted by the United Nations Security Council on 28 September 2001. This Resolution stipulates that all states shall prevent and suppress the financing of terrorist acts and called upon them to become parties to the International Convention for the Suppression of the Financing of Terrorism (1999). Resolution 1373 was also influential in drawing a link between immigration and anti-terrorism law by calling on all states to ensure that refugee status was not abused by terrorists.
When the Security Council decided with SCR 1373 to focus on the financing of terrorism and the danger that refugee law would be abused by terrorists, it was acting with limited information about the causes of 9/11 and the terrorist threat. The US 9/11 Commission Report, released in 2004, revealed significant limits on the ability of financing laws to prevent even massive acts of terrorism like 9/11, let alone the smaller and less expensive bombings in Bali, Madrid and London. It also revealed that the 9/11 hijackers entered the United States in a variety of ways, none of which included claims of asylum.4 The UK House of Lords in its first Belmarsh case5 has also subsequently revealed the dangers for both human rights and security of relying on immigration law as anti-terrorism law.
Resolution 1373 has been extremely influential but does not provide any guidance about the proper definition of terrorism. For such guidance many states have turned to the definition of terrorism in the UK Terrorism Act 2000.6 The UK definition was taken as a starting point despite the fact that it is much broader than previous definitions of terrorism in UK or international law and that it goes well beyond what is required to respond to Al Qaeda’s murder and maiming of civilians. This use of the UK law has attracted widespread concern in many democracies that dissenters could be caught in the broad definition of terrorism. The influence of UK anti-terrorism law, especially in its former colonies, is an important factor to consider as UK anti-terrorism law continues to grow.
The third influential source of anti-terrorism law is SCR 1624, adopted by the UN Security Council on 14 September 2005. It calls upon all states ‘to counter incitement of terrorist acts motivated by extremism and intolerance and to prevent the subversion of educational, cultural, and religious institutions by terrorists and supporters’. This recent resolution has already borne fruit in terms of new laws enacted in Australia in 2005 targeting speech that praises terrorism7 and new offences in the UK Terrorism Act 20068 against speech and publications that directly or indirectly encourage terrorism. The trend to criminalise speech associated with terrorism has obvious human rights implications, but it is also possible that in a few years, the effectiveness of laws targeting speech in promoting security will begin to be questioned in much the same manner as laws against the financing of terrorism, the use of immigration law as anti-terrorism law or broad definitions of terrorism. All of these previous trends have been revealed to have limited effectiveness in preventing terrorism while having adverse impacts on human rights.
Trends in anti-terrorism laws, unlike trends in fashion, do not fade away. They build and feed on each other. The new emphasis in SCR 1624 on speech and extremism reflects the failure of past initiatives, including the focus on the financing of terrorism and the use of immigration law as anti-terrorism law in SCR 1373. In other words, laws against the financing of terrorism and the use of immigration law as anti-terrorism law were unable to stop low-cost acts of terrorism such as the 2005 London bombings. The new response seems to be to focus on terrorist speech, while not rethinking the previous strategies that failed to prevent terrorism. New offences of incitement or encouragement of terrorism will aggravate the danger of overbroad definitions of terrorism taken from the Terrorism Act 2000, which include politically motivated property damage or disruptions of essential services. New incitement offences will also be applied in a context in which many Western states have, through the use of immigration laws and other measures, focused on Arab and Muslim communities as likely sources of terrorism.
The limited sources and trends of post-9/11 anti-terrorism law raise the issue of what corrective measures can be taken to prevent additional misguided trends in anti-terrorism laws and to re-evaluate old trends. One response would be to ensure pre-enactment scrutiny of Security Council Resolutions and other instruments that are likely to become influential sources for anti-terrorism laws throughout the world. In this respect, some pre-enactment scrutiny with a focus on compliance with human rights is carried out before the enactment of UK antiterrorism legislation, but little pre-enactment scrutiny seems to take place before the United Nations Security Council enacts influential resolutions that require or encourage the enactment of anti-terrorism laws. In addition, compliance with these resolutions is monitored by a Counter-terrorism Committee (CTC) that has not seen human rights as within its mandate. The CTC should pay greater attention to the impact that the anti-terrorism laws it encourages has on human rights. Another corrective measure to the trendy nature of post-9/11 anti-terrorism laws may be to include ‘sunset provisions’ that would require anti-terrorism strategies to be re-evaluated in light of their effectiveness and their effects on human rights. Finally and most importantly, independent adjudicative bodies have a special role in evaluating and invalidating anti-terrorism trends that violate human rights and are not effective in preventing terrorism.
I. SECURITY COUNCIL RESOLUTION 1373 AND THE FINANCING OF TERRORISM
Resolution 1373 was adopted by the United Nations Security Council on 28 September 2001. Although longer informal negotiations had undoubtedly already taken place, it took only five minutes during a formal meeting for the momentous Resolution to be unanimously approved by all 15 members of the Security Council.9 Given its influence as an important source for post-9/11 anti-terrorism laws, its operative provisions will be quoted at some length:
Acting under Chapter VII of the Charter of the United Nations, [the Security Council]
1. Decides that all States shall:
(a) Prevent and suppress the financing of terrorist acts;
(b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;
(c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities;
(d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons;
2. Decides also that all States shall:
(a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists;
(b) Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information;
(c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens;
(d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens;
(e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts;
(f) Afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings;
(g) Prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents, and through measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents…;
The Resolution also created a Counter-terrorism Committee (CTC) to monitor its implementation and called upon all states to report to the new Committee no later than 90 days after the Resolution. In a number of countries, including Canada and the United Kingdom, this short reporting deadline was taken as a virtual deadline for the enactment of new anti-terrorism laws.10 Although many countries have at various times enacted anti-terrorism laws in a hurry in response to acts of terrorism, the effects of the SCR 1373 reporting requirement in encouraging rushed enactment of anti-terrorism laws in jurisdictions that did not experience acts of terrorism should not be ignored. Neither should the continued influence of the CTC, which has frequently asked formal questions about each state’s compliance with the Resolution; most states have submitted multiple reports to the Committee.11
There are repeated references to the financing of terrorism in SCR 1373. Indeed the first paragraph is devoted entirely to preventing the financing and funding of terrorist acts. It creates the impression that terrorism is not so much the weapon of the weak but the weapon of those who receive extensive financing. The second paragraph focuses more on the prevention and criminalisation of terrorist acts, but even in that paragraph, there are repeated references to the financing of terrorism.
Why did the United Nations place such great emphasis on the prevention of the financing of terrorism in the immediate aftermath of 9/11? One factor may have been suspicions that the mastermind of the 9/11 attacks was Osama bin Laden, a reputed financier of terrorism.12 In 1999, the Security Council had issued SCR 1267, which among other matters called for the Taliban to hand over bin Laden, who had been indicted in connection with the 1998 bombings of US embassies in Kenya and Tanzania, and to freeze various assets associated with the Taliban. Like SCR 1373, SCR 1267 created its own committee to consider reports from states on compliance with the Resolution. In 2000, the Security Council issued SCR 1333, which attempted to freeze bin Laden’s funds and assets and those of associated individuals and entities.13 Efforts both to list terrorists and to prohibit financial dealings with them were an established part of UN procedures before the 9/11 terrorist attacks.14 These Resolutions, however, were not mentioned in SCR 1373, perhaps in recognition of their failure to prevent 9/11.
Another reason why SCR 1373 focused on the financing of terrorism is found in paragraph 3(d), which calls upon states to ‘become parties as soon as possible to the relevant international conventions and protocols relating to terrorism, including the International Convention for the Suppression of the Financing of Terrorism of 9 December 1999’.15 This Convention was at the time the most recent convention on terrorism. Although it had been signed by a number of countries before 9/11, including Canada, the United States and the United Kingdom, it had been ratified by only a few states, including the United Kingdom. The Security Council had an interest in promoting the financing convention and did so despite evidence that attempts to starve Al Qaeda of funds had not worked in the past.
The quickest responses to SCR 1373 in Australia, Canada and the United Kingdom were the promulgation of regulations under existing United Nations Acts that incorporated or built on the listing process started by the 1267 Committee.16 The use of subordinate legislation facilitated quick compliance with SCR 1373 while avoiding the controversies that accompanied the enactment of new anti-terrorism laws in all these countries—even though the regulations that were enacted often mirrored the new anti-terrorism laws in prohibiting financial dealings with listed persons and placing obligations on various individuals to report any such dealings.
Laws against the financing of terrorism can only be enforced by placing positive duties on institutions and individuals to report suspected financial dealings with terrorists to the appropriate authorities. In this sense, laws against the financing of terrorism fit well into modern security and policing strategies in which there are often more private than public police, and the state governs indirectly by requiring individuals and organisations to monitor and report on risky activities. At the same time, however, anti-terrorism financing strategies are generally not adopted voluntarily or willingly by individuals, who instead often comply on pain of a conviction of a serious criminal terrorist offence. For example, section 19 of the Terrorism Act 2000 places duties on those engaged in a trade, profession, business or employment to report both beliefs and suspicions relating to terrorist fund-raising and money laundering to the police or a designated person in their company. Breach of those duties is an offence under the Terrorism Act subject to five years’ imprisonment. Although there are provisions for lawyer–client privilege, section 20(2) of the Act permits disclosure notwithstanding any other law restricting disclosure.
Although the United Kingdom was one of the few countries to have ratified the 1999 Convention on the Financing of Terrorism before 9/11, this did not stop the United Kingdom from enacting its own legislative response to 9/11 within the 90-day reporting timeline set by SCR 1373. The Anti-terrorism, Crime and Security Act 200117 expanded the reporting requirements of the Terrorism Act 2000 with respect to various regulated sectors.18 Moreover, it created a general duty to report information that a person knows or believes will prevent an act of terrorism or assist in its apprehension, prosecution or conviction.19 The latter amendment revived and extended a controversial provision in section 18 of the Prevention of Terrorism (Temporary Provisions) Act 1989 that applied to all acts of terrorism. The already controversial strategy of requiring the co-operation of private authorities with respect to the financing of terrorism extended to a more general and even more divisive provision for the reporting of all information about terrorism.20
Canada’s Anti-terrorism Act, enacted within 90 days of SCR 1373, featured several broad offences against the financing of terrorism and amended money-laundering legislation to include the financing of terrorism. The latter legislation places special reporting obligations on various financial institutions, and the former places a specific duty on all Canadians to report knowledge about terrorist-owned property to the heads of the national police force and the civilian security intelligence agency.21 Concerns have been raised that the Canadian provisions may be in tension with human rights because they make no exceptions for access to legal or other necessary services.22 There are also fears that terrorist-financing laws may have a disproportionate effect on Muslim charities in Canada and elsewhere.
In its 2004 report, the 9/11 Commission reached some significant conclusions that suggest that the United Nations and countries following SCR 1373 may have placed too much faith in measures aimed at the financing of terrorism as a means of preventing terrorism. The 9/11 Commission found that the 9/11 plotters spent US$400,000–$500,000 on the plot and that they ‘moved, stored, and spent their money in ordinary ways, easily defeating the detection mechanisms at the time. The origins of the funds remain unknown’.23 It expressed considerable scepticism about the ability of financing laws and practices of the type contemplated by SCR 1373 to prevent future acts of terrorism like 9/11. It concluded that ‘if a particular funding source had dried up, Al Qaeda could have easily tapped a different source or diverted funds from another project’24 and that ‘trying to starve the terrorists of money is like trying to catch one kind of fish by draining the ocean’.25 The pessimism of the 9/11 Commission regarding the possibility of preventing terrorism through the blocking of terrorist financing is only increased by estimates that the post-9/11 Bali bombings cost US$15,000–$35,000, the Madrid bombings cost about US$15,000 and the London bombings were even less expensive to carry out.26
In addition to concerns about the effectiveness of laws aimed at the financing of terrorism, there are also concerns about their effects on human rights. Many countries, including Australia, Canada, South Africa and the United Kingdom, followed the United Nations in creating various mechanisms that allow the executive to produce lists of terrorist groups and associated individuals and entities as a means of facilitating the enforcement of laws against the financing of terrorism. Such lists have been criticised as bills of attainder because they allow individuals to be declared outlaws by legislative or executive as opposed to judicial acts.27 In some cases, individuals have been wrongly added to lists, a fact that is unsurprising given the absence of adversarial hearings or challenges of evidence before a person is listed either domestically or internationally as a terrorist.28 The effects of an error in listing (including problems caused by common names) can be devastating because it is unlawful for almost anyone to associate with or have dealings with a listed person.
The emphasis placed on preventing the financing of terrorism in SCR 1373 was not the result of informed analysis of either the causes of 9/11 or the effectiveness of laws prohibiting the financing of terrorism. Indeed, the Security Council enacted SCR 1373 with a blinding speed that eclipsed the enactment of post-9/11 anti-terrorism laws in the United States, the United Kingdom and Canada. The United Nations had its own institutional reasons for promoting measures against the financing of terrorism. The Security Council, like domestic bodies struggling to do something to reassure the public,29 engaged in a form of bricolage, relying on the 1999 Convention and the SCR 1267 process as starting points, despite the fact that the latter process did not and probably could not have prevented 9/11.
Reliance on what is at hand may result in measures that are not optimal nor even effective for the prevention of acts of terrorism. The consequences of error are particularly great when the Security Council acts under Chapter VII because all 192 UN member states will be under pressure to follow its lead down what may be the wrong path. Having started down such a path, both the Security Council and member states may be reluctant to retreat. The CTC continues to question member states about their efforts to comply with SCR 1373’s financing provisions, and many states have established laws and institutions in order to satisfy the Resolution.
II. SECURITY COUNCIL RESOLUTION 1373 AND THE USE OF IMMIGRATION LAW AS ANTI-TERRORISM LAW
In addition to its focus on the financing of terrorism, SCR 1373 also makes specific mention of immigration law. Paragraph 2(g) makes reference to the need for ‘effective border controls’ to ‘prevent the movement of terrorists or terrorist groups’, and paragraph 3 provides that all states should:
(f) Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum seeker has not planned, facilitated or participated in the commission of terrorist acts;
(g) Ensure, in conformity with international law, that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts, and that claims of political motivation are not recognized as grounds for refusing requests for the extradition of alleged terrorists …
The reference to border controls and identity papers in the Resolution is understandable given that the 9/11 hijackers entered the United States with a variety of visas. On the other hand, the singling out of refugee status for special attention is more troubling. None of the 9/11 hijackers had applied for refugee status, which normally attracts increased scrutiny of the applicant’s history, including any involvement in political or terrorist organisations. Although there are some examples of Al Qaeda terrorists applying for refugee status,30 it is far from clear why SCR 1373 singled out refugee applicants as possible security threats.
Immigration law was also featured in one of the ten parts of the USA PATRIOT Act. The amendments provided for increased vigilance in ‘protecting the Northern Border’, something that responded to widespread but false claims that the 9/11 plotters had entered the United States from Canada.31 This again illustrates the dangers of making security policy on the fly. In the immediate aftermath of 9/11 the United States also made widespread use of immigration law to detain suspects of terrorism, who were subject to closed hearings, denied access to counsel, and detained and removed on the basis of expressive and associational activities. However, few, if any, genuine terrorism charges emerged from the immigration law detentions.32 Expedited removal proceedings under US immigration law were used in 2002 to detain and remove Maher Arar to Syria on the basis of a conclusion that he was a member of Al Qaeda. A recent Canadian inquiry determined that Mr Arar was subsequently tortured in Syria before eventually being released. The inquiry also found that the US process relied on inaccurate information provided by Canadian officials and that there was no evidence that Mr Arar was guilty of any terrorism-related offence or was a threat to national security.33
Until the June 2006 arrest of 17 persons on criminal charges under the Antiterrorism Act 2001, Canada relied almost exclusively on immigration law as antiterrorism law in a manner that threatened both human rights and security. For example, five non-citizens, all Muslim men from Arab countries, have been subject to indeterminate detention under security certificates under allegations that they are associated with Al Qaeda.34 It is much easier for Canadian authorities to detain a person under immigration law than under the criminal law. For example, non-citizens can be rendered inadmissible on the basis not only that they have engaged in terrorism, but also that they are a danger to the security of Canada or are ‘member[s] of an organization that there are reasonable grounds to believe engages, has engaged or will engage’ in terrorism.35 Under Canada’s Antiterrorism Act, the liability rules are more restrained in part because a deliberate choice was made not to follow the UK example of criminalising membership in a terrorist group and because various intent requirements were added to terrorism offences to ensure their constitutionality under Canada’s Charter of Rights and Freedoms.
Canadian immigration law has not only broader liability rules but a much lower standard of proof than the criminal law. Under immigration law, all that is required to be proven is that ‘there are reasonable grounds to believe’ that the facts that give rise to inadmissibility ‘have occurred, are occurring or may occur’.36 This standard has been interpreted by the courts to be less than the civil standard of balance of probabilities, requiring only a serious possibility that the facts exist based on reliable, credible evidence.37 In contrast, a Canadian criminal trial judge affirmed the high standard of proof beyond a reasonable doubt as ‘the essence of the Rule of Law’, which ‘cannot be applied any less vigorously in cases of horrific crimes’38 when in 2005 he acquitted two men charged with the murder of 329 people in the 1985 terrorist bombing of an Air India plane.
Canadian state officials also have an enhanced ability to protect the confidentiality of intelligence in immigration as opposed to criminal proceedings. The Canadian immigration security certificate process allows the state to present evidence to the reviewing judge without the presence of detainees or their lawyers. A judge can use information that if disclosed would injure national security or the safety of any person to determine the reasonableness of a security certificate but is prohibited from including any such information in a summary of the information that is provided to the detainee.39
In 1992, the Supreme Court upheld a predecessor provision under the Canadian Charter of Rights and Freedoms on the basis that the detainee can learn through the edited summary the substance of the charges and that the state had a legitimate interest in protecting intelligence methods and sources from disclosure.40 In late 2004, the Federal Court of Appeal also upheld the security certificate process from Charter challenge, stating that while the judge’s use of evidence that was not disclosed to the detainee ‘derogates in a significant way from the adversarial process normally adhered to in criminal and civil matters’, it was justified by the judge’s ‘pro-active role in the interest of ensuring fairness’ and the security interests of society as a whole.41 The Canadian Supreme Court recently reversed this decision, holding that the security certificate process did not allow the affected persons to know the case against them or adversarial challenge of the secret intelligence that the government presented to the judge.42 The Court has given Parliament a year to reform the process by for example allowing security-cleared special advocates but it did not nullify existing or new security certificates.
The broad liability rules, low standards of proof and low disclosure standards used in Canadian immigration law raise the question of whether innocence can survive as a meaningful concept when immigration law is used as anti-terrorism law. The UK experience of wrongful convictions of suspected IRA terrorists in the 1970s serves as an important reminder of the dangers of misidentification of people as terrorists. Not only was the reputation of UK administration of justice and anti-terrorism efforts tarnished, but such miscarriages caused grievous harms to the innocent and allowed the guilty to go free.
A number of these wrongful convictions were eventually overturned in the 1990s on the basis of new evidence,43 but it is doubtful whether immigration detentions and removals can be identified as miscarriages of justice in the same way as criminal convictions can be identified as wrongful. The allegation in immigration cases will often not be that a person has planned or participated in a specific act of terrorism but rather that he or she is a member or supporter of a terrorist group. It is far more difficult to disprove the latter allegation than the former,44 and any standard of review will incorporate deference to the executive as well as the lower standard of proof. Indeed, it is even possible that a court could conclude that, although an immigration law detainee is not in fact a member or supporter of a terrorist group, the initial decision-maker nevertheless had a reasonable basis for such a conclusion.45
Maher Arar’s expedited immigration removal from the United States to Syria on the mistaken and inaccurate basis that he was member of Al Qaeda is an example of a post-9/11 miscarriage of justice. This miscarriage of justice was revealed only after a multi-year and multi-million-dollar judicial inquiry in Canada, which was hindered by the refusal of US and Syrian officials to participate in the inquiry. It is likely that many other post-9/11 miscarriages of justice will never come to light because of the broad nature of allegations concerning support for and membership of terrorist groups, and the secrecy of many national security proceedings.
Attempts to question the reliability of information used in immigration detention cases by questioning the sources and methods used may be stymied by claims that such information cannot be disclosed because of national security concerns. Innocent errors such as mistaken eyewitness identification and culpable errors such as unreliable information obtained through torture or extreme interrogation techniques may go undetected, in part because the state is allowed to protect its sources and methods for reasons of national security.46 Even under the UK system of security-cleared special advocates, there is a danger that special advocates will not appreciate problems with the credibility and motivation of sources because of restrictions on their ability to convey classified information to detainees.
Part IV of the UK’s Anti-terrorism, Crime and Security Act 2001 derogated from fair trial rights in order to provide for the indeterminate detention of non-citizen terrorist suspects who could not be deported because of concerns that they would be tortured. This provision and the derogation from the European Convention on Human Rights (ECHR) received criticism in part because the United Kingdom was the only nation in Europe to derogate from the ECHR.47 The derogation was held by the House of Lords in late 2004 to be disproportionate and discriminatory. Many of the Law Lords stressed that some terrorist suspects are citizens,48 a fact that was tragically affirmed by the London bombings in July 2005. A report on the London bombings has revealed that the intelligence community was slow to recognise that the terrorist threat was not confined to non-citizens.49