"Nothing personal sir, but your packages are not
allowed on passenger airlines," said a United Parcel Service customer
service agent, sitting in an American call centre. She was explaining to me
that my package could not be delivered on an "early a.m." basis from
Toronto to Peterborough.
I was interrogating the agent about why this was so, since I
had been using UPS without any problems since starting my practice in 1996.
Initially reluctant, the agent eventually confessed that when my account number
was entered into their system, the "Flight Guardian" software flashed
a red signal.
"Sir," she said, "after 9/11 we can only pick
up packages if the green light is given."
The next day I called the UPS head office and inquired about
the situation. The supervisor apologized and informed me that I could use the
expedited service within Canada, but that I did not have the requisite
clearance to use this service to the U.S.
We will never know how many Canadians have been so specially
designated on more than a dozen lists maintained by the United States. The
proliferation of these watch lists around the globe has been a troubling
development in the "war on terror."
Now the Canadian government will complicate the situation
even more by introducing its own no-fly list (set to be launched on June 18,
2007), which will inevitably be shaped by, and be available to, the Americans
and perhaps even others.
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 and
liberties are not sacrificed.
The proper forum for such a debate is our legislature.
Bypassing this necessary debate in introducing the cleverly
named "Passenger Protect program" is irresponsible and cavalier,
particularly given what we learned from the case of Maher Arar, the Canadian
citizen who was rendered to Syria for torture while in transit through New
York.
This charge is not being made lightly, as the
information-sharing protocols and mechanisms, which were criticized by Justice
Dennis O'Connor in the Arar inquiry findings, have not been improved or
addressed, yet, Ottawa is pushing ahead with its list.
Though the government has claimed national security
privilege in refusing to confirm or deny this, the Smart Border Declaration and
the Security and Prosperity Partnership of North America, as well as
intelligence agreements, make it certain that the list will cross-fertilize
with U.S., and perhaps even other nations' lists.
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 -- they will inevitably fill up quickly with
"false positives," political dissidents, those whom our friends and
neighbours subjectively view as threats -- have not yet, as far as the public
is aware, caught any terrorists in the U.S.
Indeed, common sense should make us wonder how someone can
be too guilty to fly and yet be too innocent to be charged. Should those who
pose a threat to our security be kept off our flights, but be free to roam our
streets?
To make matters worse, real terrorists may not even be
placed on the list for fear of tipping them off; no kidding, this is the
official U.S. position.
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?
The no-fly list will threaten many basic rights and leave
little practical recourse.
Yes, in theory there is the office of reconsideration. But
the inability to know whether you are on the list until boarding time, the
potential use of secret evidence as well as the use of unreliable and illegally
obtained information by foreign sources, will make it near impossible to get
off the list in many cases.
This is based on a close review of the U.S. experience as
well as the plight of individuals who are already encountering difficulties in
flying within Canada without Ottawa even having an official list of our own
yet.
The extraterritorial application of U.S. watch lists is
already impacting us; how will we fare once we have our own list interacting
with, confirming and/or merging with other lists?
Hasty and ill-considered national security initiatives,
which are essentially aimed at managing public perceptions more than they are
in really addressing legitimate and manageable security concerns, will not move
us forward in the fight to disrupt terrorism.
It will only complicate the lives of innocent Canadians and
increase the opportunity for religious and racial profiling.
No matter how vigorously it is denied, racial/religious
profiling is too often the reality for a growing number among Canada's Muslim
and Arab communities and certainly in the national security context.
The experience of many Canadians who have already been
caught up in the web of watch lists, in areas other than flying -- be it for
opening bank accounts, wiring money, sending courier packages, etc. -- does not
bode well for the no-fly list.
And my package? The one that was flagged by "Flight
Guardian?"
Well, I drove to a depot close to my office and sent it off
-- without using an account number and by paying cash.
So much for the security offered by a watch list.
Faisal
Kutty, a Toronto lawyer (www.ksmlaw.ca) and
doctoral candidate at Osgoode Hall Law School at York University, is also
vice-chair and counsel to the Canadian Council on American Relations.