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I e-mailed a short statement earlier this morning, but it's only in English and hasn't been translated into French. It sets out the role of the special advocate and my experiences as one.
The role of special advocate came into existence in 1998, really, following a case in the European Court of Human Rights called Jahal, in which enormous criticism was directed against a previously existing advisory panel, which suggested arrangements had to be made that would both accommodate legitimate security concerns and yet accord the individual a substantial measure of protection. That resulted in the creation of what we've called the Special Immigration Appeals Commission, which was set up by an act of Parliament in 1997 and came into operation in 1998.
Although it's called a commission, in fact it's a court presided over by a high court judge, who sits with an immigration judge on one side and someone who usually has a security background on the other side. The proceedings are fairly informal.
The act that sets up that court also makes provision for the appointment of special advocates. I was one of the first special advocates to be appointed by the Attorney General in 1998. At that time I, like the other special advocates, took the appointment because I felt that it was a new system and a very big improvement in terms of fair procedure over the advisory panel that had gone before. At that time, I certainly saw it as a progressive measure.
I felt that all changed after 9/11. The main reason was that after 9/11 the government gave the Special Immigration Appeals Commission, or SIAC, a completely new jurisdiction under the Anti-terrorism, Crime and Security Act of 2001, which made provision for the indefinite detention without trial of suspected international terrorists accused of having links to al Qaeda. This applied only to foreigners who could not otherwise be deported or removed safely from the U.K.; it did not apply to British citizen suspects.
During the course of that particular act, I represented the interests of five of the detainee suspects. Overall, during my time at SIAC I represented roughly 10 different appellants; not all of them, of course, were suspected international terrorists or were being locked up indefinitely. There were, for example, PhD students from Middle Eastern countries whom the government wanted to kick out because it thought they were carrying out studies in order to give their country weapons of mass destruction that would allow them to send missiles to Israel. There was another man who was on it who was accused of helping Pakistan to obtain a nuclear procurement, and so forth.
I'll come to my experience within SIAC. Although the SIAC rules and judgments speak about witnesses and evidence, in fact it's not evidence in the normal sense in which civil and criminal lawyers understand that term. The evidence is almost entirely, in my experience, given by intelligence officers, and their evidence consists not of things that are within their direct knowledge at all, but of assessments. These assessments may be based on a whole variety of sources, from informers and telephone or e-mail intercepts to other assessments by other intelligence services.
One of the things that's very difficult to do, even if you're on the inside, in the kinds of proceedings that are only based on reasonable suspicion, is to test the accuracy of the assessments or the truthfulness of human source materials that are used in reaching these assessments. That's one of the major problems. It's a problem that has certainly been heightened since 9/11 through the widespread use of physical and psychological torture in the quest for better intelligence. One of the troubles with obtaining evidence by torture and slightly less oppressive means, as the Latin historian Tacitus wisely observed 2,000 years ago, is that it tends to bring about false witness. One of the problems is that there is a danger now that you have a whole raft of intelligence that may not be reliable and is certainly questionable.
A second objection is that if you simply allow, as we did, indefinite detention on the basis of reasonable suspicion raised by intelligence assessments, there is no actual role in those cases for the police to play. In the U.K., we have very experienced police who have been dealing with terrorist offences over a long period of time, and they simply don't come into the picture. Therefore, there isn't any real method of turning what is really information into evidence that could be put before a criminal court in the normal way.
A third objection is the more obvious one that is usually put forward, the objection of fairness. As a special advocate, you are allowed to see the appellant and speak to the lawyers representing him or her until the moment that you receive the closed material, the secret material. Then a Chinese wall goes up and you can't speak any longer about the case without the leave of the commission, which will usually only be given to speak of procedural matters. You certainly are not allowed to reveal any of the secret material in order to take instructions on it. Did the appellant make a phone call to A on such and such a day? What was it about? Did he really meet Bin Laden at a training camp in Afghanistan on such and such a date, or was he in fact working at the checkout at a large electrical store in Manchester on that particular date? Has he any proof of that? These are all no-go areas in these cases where you're actually, as a kind of dislocation of representation, between the special advocate and the legal representatives of the appellant.
There are certain situations where it may well be that a special advocate is of value and of some use. One of the first tasks that a special advocate in SIAC has to perform on receipt of the closed evidence is to go through it and then see if it contains material that ought to be disclosed to the appellant, because, for example, it's already in the public domain. That's not very easy to do, because a special advocate has no legal team to back him or her up, nor have they the time to scan through hundreds of websites, some of which may be in foreign languages and so forth. But it is potentially a valuable function, and indeed it's a function that has been replicated in some criminal trials where a special advocate will look at evidence that the prosecution doesn't want to disclose for all kinds of reasons—protection of informers, whatever, but usually for public interest immunity reasons.
The difference, of course, between that and SIAC is that if evidence is not disclosed, then in a criminal trial the prosecution can't use it; in SIAC, they can.
So those are general observations about my experiences.
The House of Lords, in a landmark decision in December 2004, ruled that a law that imposes indefinite imprisonment without trial, that is partial in its operation and only targets one of the groups that may be involved in terrorist planning, is unlawful, and they held that it was a disproportionate and discriminatory response to threats to the nation.
Since that time, the government has introduced control orders under the Prevention of Terrorism Act of 2005, which is basically a form of house arrest—
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No. The special committee heard a lot of evidence, including evidence I gave to it, and they produced a report, which really spoke about the fact that once you've seen the confidential material, the special advocate can't take instructions from the appellant or the appellant's counsel. That was a criticism.
Secondly, the special advocates lack the resources of an ordinary legal team, so it would be difficult to conduct a full defence. And that would be, for example, particularly on the question of disclosure—that you can't see whether something is in the public domain.
There is also a serious problem about the use of intercept evidence in criminal trials in Britain, which seems to have the intelligence services, to some extent, at loggerheads with the police, who are in favour of allowing it in.
And a third point the constitutional affairs committee made was that the special advocates have no power to call witnesses. In my experience, that was not a thing I found I would ever have either wanted to do or needed to do, but that's what they said.
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Thank you, Mr. MacDonald.
Certainly you've been informative of what the process has been. I'll have a series of questions that maybe you could attempt to answer. I'll put them together as I speak.
First, you indicated with respect to SIAC that there was a change after 9/11 that made it difficult for you, as special counsel. I'm wondering if the change of legislation caused that and whether you were able to perform your duties better before that.
One of the other issues in dealing with it in a criminal court is that turning intelligence information into court evidence would be problematic. I think one of the witnesses testified that no democratic country has found a way to effectively prosecute people where part of the evidence is secret and cannot be disclosed to the individual. It's a dilemma that all western countries face. You may have hit on part of what the problem is in the fact that you don't actually get to see original evidence; it's more opinion-based evidence.
Part of our recommendation was that the special advocate would have the ability to test the confidential or secret evidence and give an opportunity for the detainee to meet the case against them—all subject of course to balancing that with national security.
One of your comments was that you had no legal team or time to scan through websites or to dig up original evidence. If you had the resource base, could you not test some of the information to verify its authenticity or accurateness, to actually turn it into original evidence?
Actually, where the parliamentary secretary ended off in balancing the rights of the individual with the security of the nation, I think in some ways that's very dangerous and a false premise. The reason I say that is if you use the test of reasonable suspicion, there was a reasonable suspicion that there were weapons of mass destruction in Iraq, and you can see where that led to.
The other issue is that it ends up being counterproductive; it breeds a mentality of them and us. In terms of the creeping nature of the erosion of civil liberties, it's clearly demonstrated in the Canadian context, where originally we had security certificates for people with no status in the country, then in 2002 we put in security certificates for people with status in the country, and in 2003 an attempt was made to have the security certificates extend to citizens.
My question to you as a jurist—The whole integrity of the judicial system, if we're going to maintain it, is the ability to test that evidence, because if you rely on untested evidence, we have all sorts of outcomes that are very dangerous to society itself and the system itself.
And the indefinite detention—we just saw the other day what happens when you obtain information by threats or torture, where somebody who is a detainee under a security certificate was released on very stringent conditions. The witnesses against him all recanted, essentially. Yet this person is sitting here with the security certificate over them. I think it really does create a dilemma of producing that them-and-us mentality, when if you're going to be fighting terror, it's everybody's and all groups' responsibility in a society to do that. That's my real fear, and I'm not sure what your experience is over in England with that.
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I think that balance between public safety and fundamental liberties and human rights is really at the heart of all this. Perhaps I can quote Lord Hoffman, who is one of the judges in the Belmarsh detainees case. In his judgment, he said:
I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.
That was part of his judgment.
It seems to me that the starting point one must have in a democratic society is one must have good intelligence. In fact, if you lock up everyone who's on your intelligence radar or place them under control orders, house arrests, that wouldn't have prevented either the atrocity that took place in Madrid, or indeed the London bombings that took place on 7/7 in the London tube. They happened because intelligence either was not there or had not been properly applied.
So you find that locking people up may enable the politicians—and I know I'm talking to politicians—to look as if they are protecting us, but the reality is that for the next set of bombers, if they are not on their radar, then at best it's going to be a cosmetic measure to appease public fear and probably not much else.
Secondly, when people are on your radar, assessments and information of the intelligence services, it seems to me, need to be turned into evidence so that the suspected perpetrators can be arrested, tried, and convicted before the courts in open and fair trials. And that in fact is being done in the U.K. on a very big scale now. So far, it's causing a whole lot of other problems in terms of a pileup of cases in certain courts in London and overworked police officers, but that is, it seems to me, the way to go. The starting point for it all is having good intelligence.
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We don't actually have anything quite like security certificates in Britain. But if the Secretary of State decides that someone ought to be deported because they are a threat to security, then the Secretary of State has the power of arrest and detention pending deportation. That, in fact, is what at the moment SIAC is mainly dealing with under its current caseload.
What is happening, of course—I think our opposition may be different from the Canadian one, but we will not deport people either, if there is a risk of their being tortured, because of the United Nations Convention Against Torture, which has been incorporated into U.K. domestic law, or because it would be a breach of article 3 of the European Convention on Human Rights, which forbids absolutely torture and inhumane and degrading treatment. We will not return people in those circumstances, and that applies all over Europe.
What the British government are now trying to do is circumscribe their international obligations by entering into diplomatic agreements, or what are called memorandums of understanding. The first of those memorandums of understanding, one relating to Algeria and a second to Libya, have been before SIAC and will be working their way up through our court system, but we don't expect them to get as far as the House of Lords for a very long time.
So in a sense it's a different approach, but a lot of us have a lot of concerns about memorandums of understanding, because they seem to attempt to bypass very clear international obligations.
And they aren't simply being used in relation to terrorist offences. I've recently done a case where a memorandum of understanding was apparently reached between the Chinese government and the British government about the removal of a police chief who had been giving passports out to people who belong to Falun Gong, the Christian group in China.
There are important legal issues that are raised; there are important issues about the enforcement of international human rights law. There are also difficult factual issues involved with those developments.
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As far as the numbers are concerned, there are actually very few people. About 24 people were detained. And of course they had an option if they wanted to go to another country, or found a country they could go to.
One of the detainees, it was discovered, had dual French nationality. He was released from detention and went to France, where he runs a little shop and has been completely undisturbed by the French government, which obviously did not take the same view about what to do with him as the British government did. Another one went to Morocco, and apparently nothing happened to him when he went there.
So if you look at it in terms of numbers, there were very few people. Nearly all of the people were of North African or Jordanian origin, and none of them was in any way suspected of being engaged in actual terrorist acts; they were being detained more because they were suspected of being associated and having links with terrorist groups operating overseas. So they are quite a different breed, if you like, from the British-born terrorists responsible for the atrocities that took place on the London Tube on 7/7.
You then asked about the drawbacks of being a special advocate. The real drawback of being a special advocate in these cases was first of all that the threshold upon which detention could occur was exactly the same threshold on which a police officer could arrest a suspect in the street. In the police officer's case, it's the start of a whole process of obtaining evidence and charging someone or releasing them, and so forth, and eventually going to trial. In the case of those people, it was such a low threshold it was difficult to win any appeals.
There was one case called “M”, which was referred to in the Charkaoui judgment, that was won. All the rest were lost.
The second problem was that when you saw things in the evidence, there was absolutely no way you could go to check what the client had to say about them and ask, did you make a phone call to such-and-such a person, and what's your relationship with such-and-such a person? You could ask none of those questions. You could not take instructions.
Then the other thing is that if you asked certain questions of the intelligence officers who were giving evidence about the assessments, they would have no direct knowledge of various things, simply because they didn't know anything further than the sources they'd used in the assessments they had made. And there was also a very poor link-up with the police.
Thank you, Mr. MacDonald, for being here and sharing your thoughts with us.
I have to agree with some of the comments you made earlier. The potential real threat to Canadian liberty and freedom may indeed come more from the unconstitutional laws initiated by the state, rather than the acts perpetrated by the terrorists. I thought it was an interesting comment.
When I heard what you were talking about, two key issues seemed to spring up. One dealt with the fact that the evidence before the special prosecutor cannot be shared with the accused and adequately tested. The second was the problem of obtaining access to the original evidence used to formulate the assessment.
I have two questions for you. First, do you believe your United Kingdom system of a special advocate and special immigration appeal commission adequately balances the fundamental human rights and freedoms of the individual with the security concerns of the state?
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Well, they don't have the original stuff. If you get an assessment from another intelligence service, you don't have the original.
If there's an informer who is speaking to Algerian intelligence, you're not going to have access to that informer to know whether or not the information is reliable. In fact, you may not even know whether or not anything emanating from Algerian intelligence is reliable. That's the problem.
We are operating on an international scale here. This isn't a domestic crime that we're talking about. There is really a fundamental problem in getting inside those assessments.
What seems to in fact be happening now in Britain is that when the police take over from the intelligence services, they find actual admissible evidence, and they travel far and wide to do so. You'll have evidence from someone who saw a defendant in a training camp in the Philippines, Afghanistan, or wherever. They do that.