Proof of intelligence?

by John Thompson

09/01/03

Is the proof of intelligence an intelligent proof? This is no idle question.

About three weeks ago, some 20 young Muslims were arrested by Canadian authorities through a little-known aspect of our security legislation -- national security certificates. These are certificates issued by the Solicitor General (or the Minister of Citizenship and Immigration) allowing for the arrest, detention and speedy deportation of individuals deemed to be a threat to the security of Canada or to that of our allies.

Needless to say, most of us know little about these certificates and are not comfortable with the idea that they exist. However, lest visions of the Ancien Régime, lettres de cachet, and mysterious prisoners in the bowels of the Bastille overwhelm us; it might help to know a little bit more about them.

Police and intelligence officers are seldom fools, and normally have a fairly comprehensive idea about where the sources of trouble are in within their jurisdictions. An RCMP officer tasked with dealing with the, oh, Russian Mafiya or Tamil Tigers, or a municipal police officer who deals with street gangs normally has a very good idea of who is who and what they are doing — in a general sense. Proving wrongdoing in a specific sense is much more difficult.

To a police or security agency, the old expression "Where there is smoke, there is fire" is perfectly true. Common sense and experience tells them this is the case. A whiff of acrid smoke, a small heat shimmer, perhaps even a glimpse of a tongue of flame is enough of a proof for concern.

However, no court would ever accept this statement is true. For a start, the defence lawyer would not be doing his job if he didn’t begin by questioning the definition of fire to begin with, then asking the police if they actually felt a burning sensation when investigating the alleged fire. To avoid wasting his time (which is indeed quite valuable) neither the judge nor the prosecutor would want to go to trial unless the proof of a fire is strong enough to withstand this test.

But, as we all know, calling the fire department early is a much more prudent option than waiting to see if your house or garage will actually explode into flame. In dealing with contemporary terrorism, the price for failing to act in a timely manner can be devastating; waiting for a building to collapse on hundreds of people as the proof of a threat is unacceptable.

There is an additional problem, in that the investigation of a terrorist group can be an extraordinarily complex undertaking, often involving several agencies in several different countries at once. Moreover, much of the early investigation of a likely terrorist cell hinges upon the gathering of the collection of information that often has derived from sources which could still be useful in the future, or who might be serious danger when exposed. Exposing a method or agent for the premature trial of a group of suspects on the periphery of a group might well leave its deadly core free to act in the future.

So, we need a mechanism for those circumstances when we can smell smoke but not yet prove there is a fire about. The national security certificates provide it.

This does not mean that there are no checks and balances… first, Canadian police and security officials most convince one of our cabinet ministers that there is a threat. This can be a very hard sell — witness the appearance of Paul Martin and Maria Mina at a Tamil Tiger function in April 2000, despite all the warnings they received from CSIS and the RCMP; or the long delays in banning Hizbollah, Hamas and sundry Sikh groups.

In issuing the certificate, much of the information and material developed by police and CSIS will be shared with the Minister, but it will not be shared with the public. This has led to situations where those detained under this provision will not be able to see the evidence marshaled against them (another disquieting feature of the system), but a judge will be able to review it before deciding on deportation. In short, two people will be making informed decisions before action is taken.

The public will know little about the specifics that the RCMP does not care to release. With the twenty people recently arrested, it does seem that there is a whiff of smoke in the air and it should be enough to convince some people that there may be a fire here after all.

John Thompson is President of the Mackenzie Institute which studies political instability and terrorism. He can be reached at: mackenzieinstitute@bellnet.ca