Frontier Justice

by Andy Lamey

  A more ambiguous case is that of Nourddine Zendaoui. CSIS publicly stated in 2005 that Zendaoui was a member of the Salafist Group for Call and Combat and had, until recently, lived in Toronto. According to CSIS, the agency had at one point considered invoking a security certificate against Zendaoui but decided instead to subject him to “confrontational interviews,” to let him know he was being closely watched. Zendaoui left Canada after one such interview in 2004. It is not clear whether CSIS decided against a security certificate for lack of evidence, and terrorism allegations against Zendaoui have never been proven. As I say, his case is ambiguous, but I gave CSIS the benefit of the doubt and included him.

  The third case is Omar el-Sayed, who washed up in Edmonton in 1998. A month after arriving on a fake passport, he told Immigration officials his real name and that he had once belonged to Hezbollah. The officials soon discovered that el-Sayed was wanted in Germany on drug charges, and he was arrested and slated for extradition. After a judge released el-Sayed on bail, he disappeared, generating news stories about a dangerous terrorist being on the loose. It seems unlikely, however, that el-Sayed entered Canada with terroristic intentions. His disclosure of his Hezbollah affiliation, as well as the fact that he had been living in Germany for eight years, both suggest he was telling the truth when he claimed to no longer belong to the organization. The wiretapping of Mohammed Dbouk’s Hezbollah cell in Vancouver also took place in the months before el-Sayed’s arrival, and there is no evidence they were aware of el-Sayed or attempting to get an operative into Edmonton. For these reasons I excluded el-Sayed.

  Controversial omissions may be inevitable with a list like this. The same is true of controversial inclusions. Consider Palestine Liberation Organization member Wahid Baroud. He was subject to a complicated legal ruling that said although there was no evidence he had ever engaged in terrorism, he did once belong to a PLO commando unit that did, on which basis he was deported to Sudan. Baroud has since been held up as an example of someone classified as a terrorist according to an overly broad legal definition. But his case was found to be serious by Canadian courts, and so he is included here.

  Focusing on individuals who were eventually convicted or escaped while under observation by CSIS makes it possible to generalize about cases where the terrorist label is least in dispute. Although I am not aware of other cases meeting this standard, some could easily turn up. Yet if they do, this list is still likely to offer a reasonable estimate of how frequently terrorists have tried to enter North America through Canada’s refugee system. It therefore provides some indication of what the typical outcome is for terrorists who try to pass themselves off as refugees.

  Putting aside doubts about any particular individual, the list shows that people associated with political violence, a category that includes not only terrorists but also supporters who aided extremist groups through fundraising, passport forgery and other means, have sought to enter North America through Canada’s refugee system approximately twenty-six times during the period in question. The first case occurred in 1988, the last in 2001. Clearly, extremists did try to pose as refugees during this time. Several observations, however, should be borne in mind when determining how much of a threat they represent.

  The first is that political extremists are a microscopic portion of the total number of refugee claimants. During the same thirteen-year period that the twenty-six individuals in question arrived, 325,280 refugee claims were filed in Canada. This suggests that in any given year, the odds of a proponent of political violence being present in a refugee stream are one in 13,000. By way of comparison, the annual chance of dying in a car accident is one in 6,500, or twice as great. As for the possibility of actually being killed by a terrorist refugee claimant, the odds to date are too small to measure. Ironically, the extreme rarity with which terrorists make refugee claims may only enhance their media profile. A terrorist nabbed in the refugee stream is a frontpage story. The greater risks we all take in stride every day are too routine to generate the same interest.

  The second noteworthy feature about the twenty-six cases concerns when the last one occurred. Cases may someday come to light of terrorists who sought to enter Canada through its refugee system in the years immediately following September 11. However, given that none have emerged by the time of writing, as well as the dramatic changes in security legislation that occurred in North America during this time, it seems unlikely that cases during the 2000s will reach the same level as the 1990s. This reinforces an idea mentioned in chapter 8, namely that the Ressam myth fostered panic about terrorist refugee claimants just when they were least likely to arrive.

  Another point is that in none of the twenty-six cases was the refugee system used as part of a successful terror operation. As also mentioned in chapter 8, there has been speculation that after Essam Marzouk left Canada for Afghanistan he trained two suicide bombers who carried out the U.S. embassy bombings in Africa. If so, that would make Marzouk the one person on the list to have been involved in a successful terrorist operation after filing a refugee claim. But if Marzouk did train the bombers, he had to leave North America to do so. While in Canada he was subject to observation and interviews by CSIS, which radically curtailed his effectiveness. Marzouk’s time in Canada was likely the one point in his terror career when he knew he was being watched, and so had to avoid acting on his beliefs.

  Each of the twenty-six individuals was either investigated by CSIS or taken into custody. This suggests that Canadians—and, by extension, Americans—are well protected by Canada’s law enforcement agencies. The role of CSIS in particular is worth highlighting. Canada’s security service has been embroiled in its share of scandals over the years, but when it comes to would-be terrorist refugee claimants, the evidence suggests that the agency is effective at identifying and neutralizing them. CSIS may well be North America’s most underappreciated counterterrorism force.

  Finally, it is noticeable that security certificates were used against fifteen of the twenty-six individuals. Security certificates are an absolutely devastating legal tool. They allow the Canadian government to use in court evidence that is never shown to the suspect. They also give the government sweeping detention powers. When Ressam was sentenced, the presiding judge said that his conviction showed that the United States can protect its national security without compromising its constitutional ideals. “All of this occurred in the sunlight of a public trial. There were no secret proceedings, no indefinite detention, no denial of counsel.” The same cannot be said of security certificates, which attract criticism due to the extraordinary power they grant the Canadian government. The point at hand, however, concerns the frequency with which certificates have been used against terrorists posing as refugees. This frequency, together with the eight conventional arrests, suggests that the widespread view of the refugee system as an easy means by which extremists can avoid detection is the opposite of the truth.

  Indeed, without wishing to give advice to terrorists, it is difficult to imagine a terror operation less likely to succeed than one involving Canadian refugee claimants. Security certificates can be used against people who make refugee claims because they are not Canadian citizens. An operation involving so-called home-grown terrorists, who have full citizenship rights, would be much harder to prosecute. Conversely, foreign operatives travelling on business or tourist visas, which do not require submitting fingerprints and life histories, would be much harder to detect. Missions involving refugee claimants represent the worst of both worlds from a terror chief’s point of view, as they combine maximum disclosure requirements with minimum legal rights. In the end, what is most striking about terrorists posing as refugees is not how much fear they should strike in us. It is how much terror we should strike in them.

  ACKNOWLEDGEMENTS

  THIS BOOK WOULD NOT EXIST without the help of many people. It began in a long exchange about rights with my old friends Daniel Brandes and John Haffner. It was through Daniel’s extensive involvement
in that exchange that I first became aware of Hannah Arendt’s critique of human rights. Daniel is a humanitarian in his own way, but is less attracted than I am to the idea of human rights. Had he not presented Arendt’s argument with such force, I would never have become interested in refugees. John was receptive to my initial thoughts on refugee law. He also informed me of the situation of refugees seeking asylum in Japan and lent me his apartment for two months while I was working on the book. I thank them both for the different forms of inspiration they provided and for their friendship over many years.

  Before it was a book, Frontier Justice was a radio documentary on the Canadian Broadcasting Corporation’s Ideas program. I thank my producers, Lisa Hébert and Susan Mahoney, for their original interest and for making the radio project so rewarding. I also thank the people who submitted to interviews for the documentary, portions of which also appear here.

  After the show became a book project, it benefited from three institutions. The first was the Canada Council, which provided me with a grant during the research phase. The second was the University of Western Australia, with which I was affiliated during most of the writing. At UWA I am particularly grateful to Keith Horton, Rob Stuart and Miri Albahari, without whose support I would not have been able to finish the book while studying and teaching. The third institution was Random House of Canada, where my editor, Amy Black, provided the perfect mix of patience and enthusiasm when I was working on the manuscript, and provided invaluable comments on it when I was done.

  I am grateful to the many people who consented to be interviewed for this book. I owe a special debt to Mohammad Al Ghazzi, who graciously submitted to multiple interviews about a harrowing and heartbreaking period in his life.

  A number of people read portions of the manuscript. They include Lisa Daugaard, Elizabeth Detweiler, John Haffner, Jeet Heer, Sue Hoffman, Ian Mason, Paul Saurette, Peter Showler and Joe Tringali. I am grateful to each for taking the time to do so.

  My biggest thanks is to my wife, Kirsty. She helped me develop the ideas in the book and went over every sentence with me. More than this, she was my refuge while writing it. This book is for her.

  NOTES

  PREFACE

  1 At one of the meetings Jacques Maritain, “Introduction,” in Human Rights: Comments and Interpretations (Paris: Unesco, 1948), p. 1.

  CHAPTER 1: The Philosopher in Exile

  1 Among them were a young Jewish woman and her mother The story of Arendt’s escape from Germany and life in France in the 1930s is taken from Elisabeth Young-Bruehl, Hannah Arendt: For Love of the World (New Haven, Conn.: Yale University Press, 1982), in particular chapter 4, “Stateless Persons 1933–1941.”

  2 The arrival of the German refugees This account of France’s refugee crisis draws on Vicki Caron, Uneasy Asylum: France and the Jewish Refugee Crisis, 1933–1942 (Stanford, Calif.: Stanford University Press, 1999). Caron notes that France’s refugee policy took a “twisted road” during the 1930s, alternating between welcoming and anti-refugee policies, before culminating in the extremely harsh anti-immigrant laws of 1938.

  3 “When some of us suggested that we had been shipped there” Hannah Arendt, “We Refugees,” in Marc Robinson, ed., Altogether Elsewhere: Writers on Exile (Boston: Faber and Faber, 1994), p. 113.

  4 “The very immensity of the crimes” Hannah Arendt, The Origins of Totalitarianism, new edition (London: George Allen and Unwin, 1967), p. 439.

  5 Even travelling to a foreign consulate See Reg Whitaker, Double Standard: The Secret History of Canadian Immigration (Toronto: University of Toronto Press, 1987). Whitaker’s book opens with the story of Beatriz Eugenia Barrios Marroquin, who was killed in Guatemala in the winter of 1985–86 while trying to obtain a visa to travel to Canada.

  6 “saturated with Jews” Michael Marrus, The Unwanted: European Refugees in the Twentieth Century (New York: Oxford University Press, 1985), p. 157.

  7 “Most important, however, was the fact that France” Caron, Uneasy Asylum, p. 15.

  8 Switzerland’s policies were unremarkable The immigration policies of Western countries in the 1930s are described in Marrus, The Unwanted, chapter 3. For an example of a country with an especially restrictive policy, see Irving Abella and Harold Troper, None Is Too Many: Canada and the Jews of Europe, 1933–1948 (Toronto: Lester & Orpen Dennys, 1982).

  9 “will soon constitute groups of discontented” Caron, Uneasy Asylum, p. 20.

  10 “an honour for our nation” Caron, Uneasy Asylum, p. 21.

  11 Many of the new countries’ borders My discussion of the refugee crisis after World War I draws on chapter 9 of Arendt’s Origins and chapter 2 of Marrus’s The Unwanted. Hungary’s sealed borders are discussed on p. 72 of the latter.

  12 in 1926 there were still 9.5 million refugees Marrus, The Unwanted, p. 51.

  13 “The Rights of Man, supposedly inalienable” Arendt, Origins, p. 293.

  14 “The conception of human rights” Arendt, Origins, pp. 299–300.

  15 “It was a problem not of space” Arendt, Origins, p. 294.

  16 “essentially wipes out asylum” Austin T. Fragomen Jr., “The Illegal Immigration Reform and Immigrant Responsibility Act of 1996: An Overview,” International Migration Review, vol. 31, no. 2 (1997), p. 443.

  17 “to secure our borders” Bill Clinton, Address to Nation on Haiti, September 15, 1994, http://www.clintonfoundation.org/legacy/091594-speech-by-president-address-to-nation-on-haiti.htm, last accessed February 28, 2005.

  18 15 million in the late 1940s Marrus, The Unwanted, p. 355.

  19 2.9 million by 1975 The State of the World’s Refugees: Fifty Years of Humanitarian Action (New York: Oxford University Press, 2000), p. 310.

  20 The Hungarian crisis of 1956 The Hungarian refugee operation is described in Marrus, The Unwanted, pp. 359–60.

  21–21 over 11 million … 31 million United Nations High Commissioner for Refugees, Frequently Requested Statistics, “Total Population of concern to UNHCR: Refugees, asylum-seekers, IDPs, returnees, stateless persons, and others of concern to UNHCR by country/territory of asylum, end-2007,” UNHCR Statistical Online Population Database, http://www.unhcr.org/statistics/49a2c7ff2.html, last accessed May 8, 2009. Note that UNHCR’s global statistics do not include Palestinian refugees, who have their own UN agency and occupy a unique position of permanent displacement.

  22 In the early 1970s … 412,700 asylum applications Matthew J. Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Cambridge: Cambridge University Press, 2004), p. 3.

  23 “liberal democratic states publicly avow” Gibney, Ethics and Politics, p. 229.

  24 “the very phrase ‘human rights’ ” Arendt, Origins, p. 269.

  25 “No such thing as inalienable human rights” Arendt, Origins, p. 229.

  26 “The legal distinction between ‘refugees’ ” Michael Kinsley, “An Open U.S. Door for Both Political and Economic Refugees,” Wall Street Journal, April 3, 1986.

  27 “in the case of victims of famine” Gibney, Ethics and Politics, p. 8.

  CHAPTER 2: American Lavalas

  1 “The downtown part of Guantánamo” Harold Koh interview, March 8, 2005. Unless otherwise indicated, all subsequent Koh quotes are from this interview.

  2 “There was no way you could go to that camp” Michael Ratner interview, March 9, 2005. Unless otherwise indicated, all subsequent Ratner quotes are from this interview.

  3 “a rights-free zone” Harold Hongju Koh, “Reflections on Refoulement and Haitian Centers Council,” Harvard International Law Journal, vol. 35, no. 1 (Winter 1994), p. 4.

  4 debate the idea of collective suicide Victoria Clawson, Elizabeth Detweiler and Laura Ho, “Litigating as Law Students: An Inside Look at Haitian Centers Council,” Yale Law Journal, vol. 103 (1994), pp. 2375–76.

  5 Between 1946 and 1994 it admitted Matthew Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Cambridge: Cambridge University
Press, 2004), p. 132.

  6 “Vacationers, slick with suntan lotion” Thomas Powers, “The Scandal of U.S. Immigration: The Haitian Example,” Ms., February 1976, p. 62.

  7 But in 1980 the number of Haitians arriving by boat spiked to almost 25,000 In 1979, 4,449 Haitians arrived; in 1980, the figure was 24,562. Josh DeWind and David H. Kinley III, Aiding Migration: The Impact of International Development Assistance on Haiti (Boulder: Westview, 1988), p. 9.

  8 several thousand criminals and psychiatric patients Matthew Gibney gives a figure of 8,000. See Ethics and Politics, p. 153.

  9 “The refugee question has hurt us badly” Quoted in Gibney, Ethics and Politics, p. 156.

  10 “We have taken careful steps” Quoted in Guy S. Goodwin-Gill, “The Haitian Refoulement Case: A Comment,” International Journal of Refugee Law, vol. 6, no. 1 (1994), p. 107.

  11 “ordinarily asked all of the questions” Lawyers Committee for Human Rights, Refugee Refoulement: The Forced Return of Haitians Under the U.S.-Haitian Interdiction Agreement, New York, 1990, p. 22. The questions and answers given in the text can be found on pp. 21 and 34. Note that the committee is now called Human Rights First.

  12 “Of these, the attorneys wrote, two had lived in the United States … at least hundreds of refugees” Refugee Refoulement, pp. 23, 3.

  13 3 to 5 percent of those interviewed each month Susan Beck, “Cast Away,” American Lawyer (October 1992), no page (database).