Putting names on "no-fly" watch lists is not the way to protect liberty and combat terror, writes Faisal Kutty* As the Canadian government forges ahead with its cleverly named "Passenger Protect" programme, the timing could not be better to seriously reconsider what is for all intents and purposes a no-fly list. Attention to the issue of watch lists generated by the struggle of Maher Arar, the Canadian citizen detained by Americans and shipped off to torture and interrogation in Syria, to clear his name should make us all sit back and reflect. There are many lessons to be learned from the Canadian government's recent apology and financial settlement with Arar for its role in his "extraordinary rendition". One of these lessons is that hasty and ill-considered national security initiatives, aimed more at managing perceptions than addressing legitimate and manageable security concerns, are not harmless. In fact, they cause disproportionate harm relative to very minor gains in terms of intelligence and law enforcement. The innocent and unintended victims of such initiatives are real human beings with lives, rights and dignity. When not properly designed, such initiatives can significantly disrupt and even destroy lives. Another lesson from the Arar case is that religious and racial profiling, no matter how vigorously it is denied, is too often the reality for a growing number in Canada's Muslim and Arab communities, at least in the national security context. In fact, none other than the Department of Justice confirmed this in a report leaked a couple of years ago. A number of other men of Muslim/Arab heritage have made similar allegations as Arar. Three of them will get their own less comprehensive enquiries. One of the common denominators of each of their stories is the fact that they were placed on one kind of watch list or another. The proliferation of government watch lists is a troubling development in the "war on terror". The issues raised by such lists include differences of opinion on who's actually a security threat and consolidating information across agencies by networking computer systems with one another. Indeed, Canada's Auditor General Sheila Fraser found in 2004 that watch lists used to screen visa applicants, refugee claimants and travellers seeking to enter Canada, were in disarray because of inaccuracies and shoddy updating. Now we have another list to worry about. As we consider the need to improve our intelligence and law enforcement systems, we must have an open and informed dialogue about what measures truly make us safer while ensuring that our fundamental values, liberties and rights are not sacrificed. The proper forum for such a debate is our respective legislatures. Bypassing this vital and necessary debate -- as was done with the Passenger Protect programme -- is irresponsible, particularly given the findings of Justice Dennis O'Connor in the Arar enquiry and the Canadian track record so far with watch lists as well as similar experience with such lists south of the border. The information sharing protocols and mechanisms which were criticised by Justice O'Connor have not been improved, yet the government continues with the no-fly initiative which mandates that authorities share -- and even merge and consolidate -- information with foreign entities and agencies that may have less scruples in listing and targeting innocent people on flimsy grounds. Making lengthy watch lists based on subjective and political criteria and then giving the power to add and remove names to agencies that have a vested interest in the national security agenda is akin to asking the fox to guard the hen house. Such lists, which will inevitably fill up very quickly with "false positives", political dissidents and those whom our friends and neighbours subjectively designate as threats, will not make us any safer or interrupt any terrorists, if the US experience is any indication. To make matters worse, real terrorists may not even be placed on the list for fear of tipping them off. According to the US Department of Homeland Security, known terrorists are not placed on the list for fear that they would know they are being watched. Even this new "made-in- Canada" list will be shaped by the US and other nations' lists as they cross-fertilise pursuant to the Smart Border Declaration and the Security and Prosperity Partnership of North America, intelligence agreements that call for increased cooperation and information sharing. How can such a list provide anything more than a false sense of security while leaving it rife for blacklisting innocent people as well as racial and religious profiling? Indeed, Canadians should be asking the government how an individual could be too dangerous to fly, yet be free to roam the streets and plot terror? The no-fly list threatens liberty, equality and mobility rights guaranteed in the Canadian Charter of Rights and Freedoms. Moreover, it leaves little practical recourse to those on the list to get off it. The experience of some individuals who are already encountering difficulties in flying within Canada without even having a Canadian list existing does not inspire confidence. The extraterritorial application of American watch lists is already impacting on Canadians. How will Canadians fare once Transport Canada introduces its own official list and over time it becomes increasingly shaped by other nations' intelligence, criteria and practices? As the CATO Institute's Jim Harper pointed out, the unilateral process is alien to Canada's legal system: "Rather than watch listing, people who are genuinely suspected of being criminals or terrorists should be sought, captured, charged, tried and, if convicted, sentenced. Watch listing allows law enforcement to be very active and intrusive without actually doing what it takes to protect against crime and terrorist acts... Watch listing and identification checking [are] like posting a most-wanted list at a post office and then waiting for criminals to come to the post office." Anti-terrorist watch lists may serve a very limited use function, such as separating individuals deserving of increased investigative attention, but they will never be complete or be totally accurate. They should not but could, however, be the basis for serious restrictions on liberty, such as the denial of transportation or violations of privacy or other rights without the benefit of due process and the principles of fundamental justice. They may have a limited role in designating whom to investigate further or watch so long as there is no deprivation of rights or privacy violations and provided that they are compiled pursuant to due process of law and without resort to subjective criteria or racial/religious profiling. In raising her voice against the no-fly list, the privacy commissioner of Canada, Jennifer Stoddart, said the list "represents a serious incursion into the rights of travellers in Canada, rights of privacy and rights of freedom of movement." To this I would add, increasing likelihood of racial and religious profiling, silencing dissent and persecuting unpopular religious and political views. Transport Canada must not be given a carte blanche to deprive Canadians of their liberty, mobility, equality and privacy rights, even though aviation security has now become a legitimate national security concern. The government's appeal to national security should not exempt it from due process, principles of fundamental justice, accountability, transparency, oversight and a full parliamentary debate. The system envisaged by Passenger Protect is wholly inadequate, as it will be over-inclusive, with high likelihood of false positives, and afford serious potential for racial profiling, and completely lack any meaningful redress mechanism or process. Perhaps, what is needed is not this list, but better investigative and intelligence work to gather evidence so that those who pose a real threat are apprehended and kept off the streets, not just flights. * The writer is a Toronto-based lawyer who serves as vice- chair and counsel to the Canadian Council on American- Islamic Relations.
