Frontier Justice

by Andy Lamey

  Many people who make refugee claims are running from terror. They do not always speak the same language as us or practise the same religion, but they are terror’s victims nonetheless. Imposing harsh measures on refugee claimants as a class, let alone choking off their only means of escape, is not a measure that can plausibly be justified in the name of opposing terrorism. Of the many harmful aspects of the Ressam myth, the worst was the support it lent to the vicious thought that we should strike a blow against terror by punishing its victims.

  Consider the suggestion, put forward by mythologizers, that people who travel on fake passports should be denied entry. As we saw in the case of Francine Peyti, a fake passport is what allowed her to reach North America from Zaire. According to Peter Showler, this is common with genuine refugees. “Fifty percent of claimants do not have documents when they make their claim. [But] virtually all of them have some form of identity document by the time their claim is heard. Because after they can get legal counsel, they find ways to get documents, whether it’s birth certificates, driver’s licences, school graduations.” Rejecting refugee claimants who arrive with false papers would have devastating consequences for people like Peyti who have no other way to escape unspeakable violence.

  Another proposal mythologizers made concerned appeals. As the National Post editorialized, “Even when refugees are turned down, they often are permitted to remain in Canada through the seemingly interminable appeals process permitted under existing legislation. A prime example is Ahmed Ressam.” It is true that Ressam’s lawyer asked for a review of his case that drew out his deportation by six months. But this is not what really allowed Ressam to remain in Canada. Canada could have not permitted any review of refugee decisions whatsoever, and Ressam would still have remained, for all the reasons outlined above. Canada at the time had no appeal process for refugee decisions based on factual mistakes. It is reasonable to ask how such an appeal might be structured so as to discourage false claimants from indefinitely drawing out their claims (perhaps appeals and deportation hearings could be combined). But claiming that the review Ressam’s lawyer sought is what allowed a terrorist to almost blow up the Los Angeles airport injects propaganda into the debate over an important legal safeguard.

  The myth’s second ripple effect concerned not the needs of refugees, but the nature of terrorism. Here the legend’s pernicious effect was to reinforce a widely held but mistaken view of what drives people to extremism. The view holds that foreign-born terrorists, particularly those from the Middle East, are invariably extremists from the moment they arrive in the West. As National Post columnist Lorne Gunter sums up this view, “It is recently arrived Muslims who are the most likely to be filled with the hateful, anti-Western teaching that is booming in the Middle East. Long-standing Canadian Muslims are largely as peaceful as they claim to be.” There is no question that longstanding Canadian Muslims should not be stigmatized by association with the tiny handful of terrorists who somehow claim to act in Islam’s name (given the Koran’s prohibition on all forms of suicide, being an Islamic suicide bomber is as contradictory as opening a Catholic abortion clinic). Gunter, however, is wrong to suggest that recently arrived Muslims are the group most likely to be hate-filled ideologues.

  This can be seen by comparing the terrorist cell that formed around Ahmed Ressam in Montreal to one that coalesced around Mohammed Atta in Hamburg. Atta flew the first plane into the World Trade Center, and Hamburg is where he met the accomplices he would work most closely with, including the pilot of the second plane. Atta was much more successful and self-possessed than Ressam. Rather than an uneducated economic migrant, he was a professional urban planner who moved from Egypt to Germany to obtain a graduate degree. Atta was the leader of the Hamburg group, the other members of which all went to Germany as students. (One of the four, Ramzi Binalshibh, had applied for asylum in Germany in 1995 but was rejected. He returned to the Middle East and re-entered Germany as a student.) Like Ressam, none of the Hamburg hijackers were terrorists when they landed in Germany.

  Even more so than the Montrealers, members of the Hamburg cell were typical of the thousands of young Middle Eastern men who trained in terror camps in Afghanistan. As Lawrence Wright notes in his prize-winning history of al-Qaeda, “What the recruits tended to have in common—besides their urbanity, their cosmopolitan backgrounds, their education, their facility with languages, and their computer skills—was displacement. Most who joined the jihad did so in a country other than the one in which they were reared … Alone, alienated and often far from his family, the exile turned to the [fundamentalist] mosque.” The Bunch of Guys in Montreal were not as sophisticated as the average al-Qaeda cell (and were technically freelancers rather than sworn al-Qaeda members). But like their Hamburg colleagues, most of them adopted extremism during a time of displacement.

  Displacement, crucially, is a phenomenon of migration rather than of immigration as such. This is why Atta and his cell members could experience it even though they entered Germany on student visas, and even though Germany is not a country of immigration. We should therefore be skeptical of explanations of Ressam’s conversion that automatically ascribe a central role to Canada’s immigration and multiculturalism policies. Such explanations overlook the fact that displaced extremists are found in countries of low and high immigration alike. They can potentially arise in any state that allows human beings to cross its borders, whether as asylum-seekers, students or guest workers. It is thus not clear how any immigration policy short of a North Korean–style ban on entry can prevent their occurrence. Canada could scrap all its multiculturalism programs tomorrow and still not stop the rise of terrorist cells.

  Very well, some might say. If Canada reduced its immigration intake, it might not keep out every potential terrorist, but it would surely reduce their number. This, however, does not necessarily follow. In Canada a commitment to high immigration and official multiculturalism have gone hand in hand. While it is possible in theory to embrace both low immigration and multiculturalism, on a political level they usually rise and fall together. This is important to note, because there is a view that suggests combating terror requires more multiculturalism, not less.

  This theory holds that multicultural policies make migrants feel welcome, and so reduce the sense of alienation that usually precedes a would-be terrorist’s trip to Afghanistan. If this theory were correct, it would explain why the terror cell that formed in Germany was made up of individuals who were more accomplished and capable than Ressam and the Bunch of Guys. Members of the Hamburg cell would have had their inclination to reject mainstream opportunities reinforced not by a personal lack of talent and potential, but by the comparatively unwelcoming attitude of the society around them.

  Mentioning the “more multiculturalism, less terror” theory is not the same as endorsing it. Many facets would need to be examined before we could fully understand the relationship between multiculturalism and terror-cell formation. The reason Germany’s experience as an extremist breeding ground is worth mentioning is to note what is at stake in getting that relationship wrong. It is possible to have the worst of both worlds, after all. A country can fail to do justice to the needs of refugees and immigrants while simultaneously incubating terror. In Germany’s case, it tore apart its asylum system in 1993, yet still gave rise to a terror cell far more lethal than any that has come out of multicultural Canada. Lethal enough, it turned out, to bring down the twin towers.

  The fact that two September 11 pilots took up extremism in Germany should cause us to see the dogmatic assumptions at work in blaming Ahmed Ressam on multiculturalism. Making Canada’s immigration regime more like Germany’s will not necessarily make North America safer. Such a view simply takes it for granted that slashing refugee and immigrant intakes will ensure that no foreign terrorist ever again attempts to drive a car loaded with explosives across the Canada-U.S. border. There is, however, a second possibility. It is that there could in fact be a next time. But rather
than a failure like Ahmed Ressam, someone with Mohammed Atta’s dark talents will be the driver.

  Ultimately, the real lesson of the Ressam affair is not that we should turn away refugees or abolish multiculturalism. It is that more resources should be devoted to deportation. In 2001 Canada increased its budget in this area by $48 million, but there is still room for improvement. The failure to promptly deport Ressam and his cohort likely created an atmosphere that made extremism more attractive. “If you’re in a situation where you’re not removed, but you’re subject to a deportation order, it’s very difficult to find work,” Showler points out. “So [when] you’re sitting there in a kind of impoverished situation, and you’re also primarily relating only with members of your expatriate community, it creates a kind of hothouse situation. It makes it ripe if recruiting is going on.” Increasing the budget for deportations would decrease the possibility of further hothouses arising, without jeopardizing the protection Canada extends to genuine refugees.

  Three weeks after September 11, the Ressam myth collided with the foundation of Canadian refugee policy. Tom Kent, a former deputy minister for immigration, released a report slamming the Singh decision. Kent wrote his paper before September 11, but its release at a time when the rubble was still smouldering saw him give interviews in which he invoked terrorism to bolster his case. “It becomes particularly significant now, I think, because these people who make these claims to be refugees because they’ve got here—well, they can be here for all sorts of reasons,” Kent said. “It’s an easy entry for people with other motives, including those with terrorist intentions.”

  Kent was a highly respected public servant. He had been a key architect of Canadian immigration policy during the 1960s. Someone with his credentials attacking the Singh decision was a bit like Pierre Trudeau coming out against rights or Ronald Reagan saying he wanted to bring back communism. For this reason the media gave Kent’s report big play. Unfortunately, Kent’s comments did not reflect a detailed grasp of what Singh actually said. Perhaps this was because it had been several decades since Kent had been required to look at migration law closely. Whatever the cause, Kent had entered the debate without realizing that both international and Canadian refugee law permit exceptions for terrorists. He therefore argued that the so-called notwithstanding clause in the Charter of Rights and Freedoms needed to be used to overcome Singh.

  The notwithstanding clause was the result of a political compromise at the time of the Charter’s introduction. Pierre Trudeau originally conceived a document similar to the U.S. Bill of Rights, in that it would give the Supreme Court the final say in applying rights. The Charter that Trudeau was eventually able to bring in, however, made a significant concession to the Diefenbaker tradition of law. If Parliament did not like a court decision involving certain Charter rights—including the right to life and liberty on which Singh was based—Parliament could decree that the court’s ruling would have no effect for five years (at which point Parliament could extend its override for another five years, and still again five years later, ad infinitum). A majority vote in Parliament would be enough to overrule the court. Trudeau reluctantly accepted this arrangement as the price of having any rights instrument at all. To this day, there are Trudeauites who regret the existence of the notwithstanding clause, regarding it as a steaming pile of Diefenbaker law in the middle of an otherwise pristine document.

  The Trudeauite critique of the notwithstanding clause raises an issue that is also central to Hannah Arendt’s critique of human rights. Arendt judged human rights according to what we might think of as a hyper-Trudeauite standard. A right is insufficient, or not really a right at all, according to the ease with which it can be overridden. Hence, the frequency with which European border guards turned away refugees caused Arendt to conclude that refugees had no rights whatsoever. Trudeauism is also concerned with how easily rights are disregarded: this is why it is reluctant to give carte blanche to politicians. Whereas for Arendt a concern with enforcement leads to a rejection of the whole idea of human rights, for Trudeau and the broader liberal tradition a concern with enforcement leads to a Charter that takes at least some rights out of the hands of Parliament.

  A consistent application of Arendt’s argument would suggest that any right that can be overridden with the ease that the notwithstanding clause allows—a category that includes the right to an oral hearing enshrined in Singh—is not really a right at all. It is, rather, a privilege that can be revoked whenever Parliament chooses. Fully assessing this criticism would require a lengthy detour into the debate over Canada’s notwithstanding clause, which is a bit like flying into the Bermuda Triangle: those who do so have been known to disappear into an ambiguous no man’s land of constitutional law, from which they do not always come back alive. But defending the inner logic of the Singh decision does not require taking a stand on the separate matter of the notwithstanding clause. Singh is worth copying, whether or not the notwithstanding clause is.

  Tom Kent was not the first person to portray Singh as a legal disaster. Preston Manning, leader of the 1990s-era Reform Party, had also called for the notwithstanding clause to be used, as had former officials in the Department of Immigration who tended to see their job as keeping people out rather than letting them in. Kent’s high-profile report gave new life to this long-standing view. It also made a special contribution of its own. This was to associate the Singh decision with terror. Kent’s report was brandished in Parliament by Canadian Alliance MP Stockwell Day, then the leader of the Opposition. “Why does the Prime Minister not overturn this decision,” Day demanded, “which is a threat to our security and of no help whatsoever to true refugees?”

  Against this backdrop, it was only a matter of time before Ahmed Ressam was blamed on Singh. As a Calgary Herald editorial put it, the “Singh decision extended charter protections to non-Canadians. That allowed rule-breakers, queue-jumpers and frauds with sinister intentions—would-be LAX bomber Ahmed Ressam, for instance—access to welfare, legal aid and numerous appeals.” It did not matter that welfare, legal aid and appeals were subjects that Singh did not mention. It did not matter that Singh extended no protection to suspected terrorists. It did not matter that the one right Singh did uphold, the right to an oral hearing, was one that Ahmed Ressam never exercised. The threat of terrorism was in the air, and refugee claimants had to be stripped of the one slender right they possessed.

  Calls to invoke the notwithstanding clause against Singh are now a routine part of Canada’s refugee debate. Large swaths of the media are opposed to Singh, as are many politicians. Given the controversial nature of the notwithstanding clause, it is difficult to imagine its ever being used to overturn Singh outside the context of a national emergency involving a huge influx of refugees. But that the anti-Singh voices have not yet succeeded in destroying Canada’s great contribution to the tradition of human rights does not make the anti-Singh position any less destructive. Take away Singh, and we take away human rights. The Ressam legend did lasting damage by falsely associating Singh with terror. It triggered a debate about how Singh might be abolished, when the real question is how the principles underlying Singh might be broadened and extended.

  Peter Showler will never forget the legends that sprang up in the wake of September 11. “To this day,” he says, “there are Americans, including members of the U.S. Senate, who still believe that some of the terrorists came through Canada.” But it was not just Americans who spread myths, and not just the September 11 hijackers who were their subjects. Ahmed Ressam became the subject of a myth in a classical sense. His legend made a larger point through the recounting of apocryphal events. It was put forward by a chorus that recounted an epic journey and a passage through the underworld. Ressam was the myth’s warrior-protagonist. Like Odysseus, he is always ever-returning.

  NINE

  IN THE TRACKS OF LEVIATHAN

  THIS BOOK HAS OFFERED a response to Hannah Arendt’s diagnosis of the conflict between human rights and n
ational sovereignty. Throughout the preceding chapters, I have often had occasion to explicitly address the subject of human rights, and I have tried to show how the rights of refugees might be enforced in a world of sovereign states. The solution I have proposed, however, is currently the law in no country, and the tension Arendt diagnosed continues to define the treatment of many refugees seeking asylum. Precisely because I have stressed the enduring nature of the conflict between sovereignty and human rights, some observers might conclude not that my proposed solution is worth adopting, but rather that it is ultimately a problem without a solution. From this pessimistic point of view, sovereignty is a monolith of brute power, against which a moral concept such as human rights is forever doomed to beat its gossamer wings without effect.

  It is not hard to see why someone might adopt such a stance. Our world is so dominated by sovereign states that there is an understandable temptation to view them as natural phenomena, institutions that have always existed and will always be there, unchanged and enduring. In reality, however, the sovereign state is an institution created by human beings. Like other institutions, it arose in a particular place at a particular time, and it has changed in response to new challenges and needs. The best way to see this is to approach the sovereign state in historical terms. Charting its rise and spread, and the way different aspects of sovereignty arose in different periods, should make us optimistic that states may someday exercise their sovereignty in a way that exhibits greater respect for human rights than is currently the norm.

  The history of sovereignty I am about to offer will leave out many things. The rise of international entities such as the European Union and the International Court of Justice, the deregulation of financial markets and the global spread of the Internet; these and other trends others have all been held up as evidence that the sovereign state is on the wane. I will not try to outline every different area in which sovereignty is contracting or expanding. For however much state sovereignty may be reduced in other areas, when it comes to the situation of refugees, it remains a force of some power. For this reason, charting how we came to inhabit a world in which sovereignty poses a challenge to the enforcement of refugee rights will speak to a problem we still face.