In the wake of the high-profile story of a six-year-old, Syed Adam Ahmed, caught in Canada's no-fly web in late December, similar stories of 21 other children -- ages six months to 17 years -- have come forward. The details are contained in a letter sent to the federal government by Adam's mother, Khadija Cajee.
The federal government was quick to respond and promised to examine changes to the program. "[It's] no fault of their own," says Ralph Goodale, the minister of public safety. Having a name that is similar to one on the list "can present an awkward situation" and "a feeling of stigma."
The reality for the 500 to 2,000 Canadians rumored to be on the list and those with similar names who get caught up from time to time goes far beyond awkwardness and stigma.
The consequences have been all too real: jobs have been lost, family members separated at the airport, family members geographically separated, fear and anxiety over what will happen next and uncertainty about which other nations have their names.
The National Council of Canadian Muslims, the International Civil Liberties Monitoring Group and even our law firm have witnessed a growing number of complaints about difficulties that go beyond delays and inconvenience.
The Specified Persons List
The cleverly named Passenger Protect Program, introduced in 2007, created the Specified Persons Advisory Group (SPAG), which Public Safety Canada oversees and includes Transport Canada, the Canada Border Services Agency, the Canadian Security Intelligence Service, Justice Canada and the Royal Canadian Mounted Police.
The group identifies individuals who pose an "immediate threat" for inclusion in the Specified Persons List, which airlines in Canada are mandated to screen against. Once a person is flagged, a Transport Canada official could authorize his or her boarding, request extra screening or issue an "emergency direction" to prevent boarding.
If a person is denied, he or she could apply to the Office of Reconsideration to petition to be removed from the list. But the office can only make recommendations to the transportation minister; its decision is never binding.
This illusory power is evident in the Hani Ahmed Al Telbani's case. The office had concluded that CSIS relied on "decidedly vague and incomplete" information, that "we have not been able to identify a discernible threat, immediate or otherwise" and CSIS, therefore, had no basis to add Telbani to the list. In the end, the SPAG ignored the recommendation and kept him on the list, affirming the view that "immediate is not black and white."
The incestuous nature of the SPAG and difficulty in getting recourse were just a few of the concerns that critics raised in 2007. They pointed out that the government had failed to establish the need and effectiveness of such a list and that it lacked authority to enact it without parliamentary debate and discussion.
Among the two dozen questions raised to Transport Canada in 2005 by Privacy Commissioner Jennifer Stoddart was: "What studies, if any, has the department carried out to demonstrate that advance passenger information will be useful in identifying high-risk travellers?"
Transport Canada failed to give a satisfactory answer to this and virtually all the other questions Stoddart asked. Surely, if there was evidence to suggest that the no-fly list has prevented attacks, then the public is entitled to know (even if the details are redacted).
Commenting on the U.S. list, Jim Harper, director of information policy studies at the Cato Institute, wrote: "Easy to evade, it provides no protection against people who haven't yet done anything wrong, who haven't come to the attention of security officials, or who have adopted an alias. Terrorist planners are nothing more than inconvenienced by having to use people with 'clean' records."
With respect to authority, the government pointed to provisions of the Aeronautics Act to specify an individual as a threat to aviation security and to require airlines to provide information about the specified person.
A number of critics, including the privacy commissioner, pointed out that this was an overly broad and liberal reading of the act. The act does indeed authorize the minister to designate and deal with threats, but a more precise reading of the provisions suggests that this refers to imminent threats and on-the-spot emergency decisions.
Critics also highlighted negative repercussions on the right to liberty, fundamental justice, freedom of movement, privacy rights and raised potential discrimination avenues. In fact, civil society groups, legal groups and even Canada's Privacy Commissioners all expressed opposition, but it fell on largely deaf ears.
Instead of government pushing for the issue to be thoroughly debated and investigated in parliament, at the time, officials only offered a fig leaf process of canvassing regulatory comment, ex post facto, largely in an attempt to score PR points.
A bad program gets worse
Over the years many people on the list have been caught in limbo without any recourse. Interestingly, Laureen Kinney, currently the assistant deputy minister for safety and security at Transport Canada, testified in 2010 to a parliamentary committee that there were about 850 false positives within the first three years of the program.
Despite a poor track record, a bad program has gotten worse with a firmer footing through anti-terror legislation (C-51), which former Prime Minister Stephen Harper's government passed last year.
Rather than addressing earlier concerns, the Secure Air Travel Act (SATA) made the program worse in many respects. Amendments authorized the minister of public safety and emergency preparedness to establish a list of persons who the minister has reasonable suspicion to believe poses a threat.
The Canadian Civil Liberties Association, among others, has pointed out that the term "reasonable grounds to suspect" is left undefined while the concept of a "threat" is overbroad. The threat could be to transportation security, or it may be that the minister has "reasonable grounds to suspect" that the person will commit a terrorist offence, or participate or contribute directly or indirectly to a terrorist group or activity (as set out in the Criminal Code).
The offence is committed regardless of whether the group engages in such an act, the person actually contributes to the group or realizes he or she is doing so. There is no guidance provided as to how the minister or designate can come to such a conclusion.
Moreover, the standard of "reasonable suspicion" may not pass constitutional muster given that inclusion on the no-fly list would mean deprivation of mobility rights and other guarantees contained in the Canadian Charter of Rights and Freedoms.
Other changes include extending the time to review the list to every 90 days from every 30 days; authorizing the minister of transport to demand information from carriers and reservation systems and to share these with other entities, including foreign; and adds the minister of citizenship and immigration to the SPAG (though unclear if it will continue).
The no-fly list is certainly not going to shrink thanks to these provisions.
It is also unclear whether the Office of Reconsideration will continue its work. The SATA says that a denied person (whose name may have already been provided to foreign entities) now must apply directly to the minister within 60 days of being denied transportation to challenge a listing. This is akin to having the fox guard the henhouse.
Moreover, SATA suggests that a person on the list may not be informed that he or she is on the no-fly list, raising the question of how people will come to know they are on the list so they can attempt to seek redress.
If a person is in fact advised or somehow learns that he or she is on the list, he or she applies to the minister and if the minister's decision is not forthcoming within 90 days, it is deemed a non-removal. An appeal flows to a federal judge, who must be convinced that the minister was not only wrong, but acted "unreasonably."
The kicker is that this will most likely be done in a private hearing with secret (unchallenged and unchallengeable) evidence presented in the absence of the individual and counsel. This Kafkaesque process was held unconstitutional by the Supreme Court of Canada in the context of security certificates used to detain non-citizens as national security threats.
More headaches from secrecy
Ironically, as the U.S. begins to ease up on its own lists in response to civil rights lawsuits, the Canadian list is becoming more secretive, sweeping and less accountable.
Those on the list and sometimes even those with similar names not only face delays and inconvenience, but also life-altering consequences as the list cross-fertilizes with other lists, domestic and foreign.
In other words, Canadians may be targeted not only by the Canadian list but, consistent with the cross-fertilization thesis, they may also be subject to American and other nations' no-fly lists.
Watch lists may serve a limited legitimate and useful function, such as separating individuals deserving of increased investigative attention. But these lists will never be complete or totally accurate, and as such, should never be the basis for serious restrictions on liberty, freedom of movement, violation of privacy or other rights without the benefit of the principles of fundamental justice.
The government's appeal to national security should not exempt it from rigorous accountability and oversight. As many critics have argued, the system envisaged by the Passenger Protect Program and as amended by SATA has proven neither necessary nor effective. It is unconstitutional, as it is over inclusive with high likelihood of false positives, and poses a serious potential for rights violations and completely lacks any meaningful redress mechanism or process.
As Harper wrote in his book Identity Crisis: "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."
If the Canadian government wants to really make a difference, then cosmetic changes need to give way to substantive and procedural protections. Otherwise Syed Adam Ahmed and the 21 others like him may not be the last kids or innocent Canadians caught in the web.
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Security gets off to a weak start with the questions at check-in. Here’s a send-up version of the Q & A that I took off an anonymous blog, that reveals, I think, the farcical difficulties of the actual encounter: “Has anyone asked you to carry anything aboard this aircraft? (Yes, my mother and my girlfriend.) Has anyone asked you to pack something for them? (I packed a shirt for my wife, because she ran out of room in her suitcase.) Did you pack the bags yourself? (No, the butler did, but I don’t think he’s a threat.)” If you are smart, you will answer all these questions in the negative; otherwise you risk delay and, at minimum, ridicule. So the sensible thing to do is to lie. Setting up people to lie is not a good way to initiate security nor is it relaxing for anyone involved. The better model comes from the welcoming flight attendants who greet us as we come aboard, maybe asking how we are doing but actually looking out for trouble—who won’t be able to reach the overhead bin? Who is drunk? Doesn’t understand English? That’s the way to get things going. (AP Photo/David Goldman)
In the U.S. (but not most other parts of the world), we must take off our shoes. Shoes often have laces and there’s no easy way to untie them and get them off while in a line that slows and spurts in unpredictable ways. At least there could be a ledge, perhaps protruding from the table and counter bottoms, where a foot could be rested while undoing laces. This is a small matter, but it cumulates with other thoughtless impositions to create massively bad experiences. Rather than having been created for the security gate application, the equipment used at the gate derives from goods like restaurant supply paraphernalia. After 9-11, the TSA put dog food bowls to the task of holding our coins, pens, and other pocket metals. The trays where we place our laptops originate as dish-busing equipment, just as the shiny metal tables (without ledges) are also from the commercial kitchen. Maybe the dog bowls should have funnels for coins to roll out into one’s hands. Maybe the trays should be transparent to make it easier to see what is inside each one, an advantage to both passenger and TSA agent.
Given lacks in equipment, nobody is around to help make up the difference. TSA guards instruct, cajole, and riff through our stuff. They do not help an elderly person lift a suitcase on to the conveyer. They do not hold a pram while parents try to re-balance a fretting toddler on their shoulders. They do not hold jackets, crutches, canes or fragile items as the momentary needs arise. They do not offer suggestions for how to store a boarding pass or ID while reassembling all the rest of one’s gear. Either the TSA guards should have helping as part of their repertoire or there should be people assigned to the gates with helping as their specific task. This would not sacrifice intelligence but add to it. When you assist a person to “get ready,” you learn a lot about what is going on. Anyone who has helped children put on a jacket knows it is a learning experience for the helper. You discover if kids have a hurt arm, if they took a cookie, or if their body heat seems above normal. Touching people and their stuff in a helpful way, not just frisking them, is data rich. The fact that it might also do some good for fellow human beings is no small advantage. (AP Photo/St. Louis Post-Dispatch, Christian Gooden)
Quite ironically, check-in sometimes assembles a group larger than will ever be on a single plane. No bodies or luggage have been checked; everyone is exposed. Next comes the official security gate and another line, often the longest of all. This too is before scrutiny. Security itself, in other words, creates the target. All other things equal, the more intense the inspections, the longer will be the line, the exposure, and the time it will exist. Some TSA checkpoints show videos that instruct what comes next and this is good. But videos could also show the news or relaxing entertainment. Lines could be made fairer and less annoying by having electronic boards (like at Whole Foods Markets) to indicate who is next and where. But the best way to deal with lines is not have them at all. It is a great solution because it makes for a happier place even if nobody threatens anything. One good way to assure at least a short line is to give TSA workers authority to just let everyone through when back-ups start to occur. Given the very limited effectiveness of TSA screening in the first place, we gain by having fewer exposed to pre-boarding bombs as well as less irritation and psychological mayhem. Just let the people go. (AP Photo/Ted S. Warren, file)
The long check-list of forbidden items results not from expert weighing of danger, but from ad hoc notions from politicians, disaster movies, and whatever scheme the last crazy person used to try to inflict harm. So we have the shoes-off rule because of that shoe-bomber -- one guy, one time. Then came the underwear bomber who strapped explosives in his intimate body parts. In fact, the PETN compound he used does not show up in the scanning machines. Nevertheless we have whole-body body-imaging -- or “enhanced pat-down” on special request. Once on the plane, of course, it is easy enough to manufacture weapons; generations of prisoners have mastered the skills with much less to work with. Coke cans become lethal if disassembled into razor sharp metallic ribbons; seat belt webbing (and belts) can strangle; and glass, glass, glass – from duty free, from the pantry, and maybe the gift vase stored in the overhead bin – can all slice like box cutters. All the search for contraband takes up a lot of TSA time and uses resources that could go to other things, including more meaningful security measures. Sealing off the on-board crew was the single most important remedy. It means that the plane cannot be turned into a bomb. Now lighten up on the petty harassments like confiscating the OJ or my $3.00 bottle of water. Don’t make me really prove that in that baby bottle I got milk.
Folks fool around in real life, even with strangers and even on – maybe especially on – risqué topics. At security, one must be cautious. Making a gun, knife, or bomb joke is a special no-no. In a 2009 incident, a 30-year-old going to his own wedding was asked by a United flight attendant if he needed anything. He said, “No, I'm fine. I've got my shoe bomb -- I'm good.” He was removed and booked on a felony. In another incident, authorities arrested an Air France pilot who joked at JFK that he (also) had a bomb in his shoes -- with a resulting 12-hour delay of the New York-Paris flight. A transportation security administration spokesman told The New York Times, “We have zero tolerance for those kinds of comments.” Besides being natural to all cultures, joking is – like helping -- at least potentially a source of information. It can reveal, in a subtle way, intentions otherwise being masked and also, just as important, meanings that are utterly benign. Standard security operating procedure has a single and unvarying concept of what means trouble and what does not. Letting humor run its natural human course would be another source of intelligence: it tips off. (AP Photo/Elise Amendola, File)
Calm is the opposite of commotion and it is what security needs more of. Calm delivers a life benefit to passengers but it also helps make trouble more evident – whether trouble from contraband, a miscreant, or trouble in the form of an ailing person. Making everyone anxious makes it that much harder to pick out those who are anxious because they have something to hide rather than that they are just trying to get through the thing. As surfers well know, a shark in calm water is easier to spot than a shark in rough seas. So even within narrow conventions of surveillance security, calm is best. So security might also come from use of restful colors, music and even scent. Voices might be mellifluous and objects gently moved from place to place with sounds muffled by rubberized surfaces. Some airports have public art programs that go some way toward bringing in part of normal life to at least the concourse areas. In the US, San Francisco’s has vitrines of wonderful objects lining the corridors and along the moving walkways -- like the mechanism that moved multitudes past Michelangelo’s on-loan “Pieta” at the 1964 World’s Fair in Queens. It is a version of providing a “nudge,” in which people are not forced to obey, but encouraged to make desirable choices from the standpoint of convenience, pleasure, and good order. (Wikimedia/Public Domain)
The usual clumsiness of the whole apparatus reflects a general lack of design. At a time when the common toothbrush is subject to focus groups and teams of ergonomic and stylistic experts, security stuff gets no such attention. In 2009, TSA hired the prominent design firm IDEO to develop prototypes to improve both physical design and staff repertoires (the shark analogy was part of their presentation to TSA). Other than a trial set-up at Baltimore-Washington International, I could find no evidence of implementation. I did learn from former top TSA officials that anything like design tended not even to occur to those running DHS or TSA. As the IDEO project unfolded, the very word “design” and some of IDEO’s other terminology – like “customer engagement” put off some officials and politicians. The IDEO people proffered terms like “composing lily pads” and “rejuvenating send-off” as security gate concepts—not exactly winners for military minds. A professional design reconfiguration would bring more than a well-placed spout or a footrest. Product and systems designers, knowing all the tricks of the trade, could reconfigure the entire process and each of its elements. There would be complementarity between all elements, including staff training along with reform of the artifacts. It would mean paying rigorous attention to people’s real needs and to more than a compulsion to herd and command everyone into protocol submission.
Although security is supposed to benefit all alike and we are all supposed to sacrifice in its name, some are made to sacrifice more than others. Privileged passengers may have special expedited lanes. Anecdotally, I’m told there is greater leeway for fudging the rules, like being able to take liquor and make-up through the gate when flying first. New programs are being initiated for “trusted travelers.” After paying a fee, filling out forms on the web, and taking care of other formalities (in some versions requiring an interview at the airport), one gains the elevated status of being spared a lot of the hassles (shoes can be left on, for example). This means there will also be, by definition, “untrusted travelers.” The hoi polio will face the old gauntlet alone, without the comradely clout of their former high-end fellow-sufferers. In the business and first class lounges there are even now no loudspeaker reminders to stay with your stuff so people scatter their suitcases and belongings across the rooms and cubbies of the facility. Once on board, the privileged few have their own toilets. A flight attendant announces that everyone (rich and poor alike) should use only the lavatories designated for their cabin area “for the sake of security,” as it is sometimes broadcast throughout the plane. More toilets would be decent and so would a let-up on the special security screws now imposed on the ordinary traveler on board and off. AP Photo/Charles Dharapak)
Air travel is our most notorious security apparatus (for those of us not in full-time prison) but it is mimicked by other organizations as the way to “do something” in the never-ending war on terror. So in the New York subways, for example, there are periodic set-ups of inspection tables where passengers are asked to submit their packages and luggage for police to go through. Given that the subway has over 400 stations, each with numbers of entries, this is transparently nonsense. Equally silly are the sniffing dogs and gun-toting soldiers: as in synch with the airport goings on, not a single person has been charged with terror as a result of all these inspections. Meanwhile, any car driver can mow down innocent people at pedestrian thoroughfares all over America. We avoid facing that problem because it would be too awkward to take on, just like the problem of searching air passengers before they can get to the guards at the gates. A security apparatus happens, this implies, not because it secures but because it is feasible to set up. Meanwhile it obscures the fact that our safety remains, in the main and in most all circumstances, with each other: people who smell smoke, who sense a drowning child, who jump to the tracks to save a person who falls in. Day in and day out, and free of charge, the solution is in place, relying only (but fully) on the mutual regard we have for one another. Sustaining that regard should also be thought of as a security effort. (AP Photo/Charles Rex Arbogast)
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