Categorically Incorrect: Ethical Fallacies in Canada's War on Terror

By A. Alan Borovoy

If humanity has learned anything from the horrors of the war against terror, it is that our one hope is democracy. The final goal of our country’s actions at home and abroad is the preservation of democracy. This is the lens through which our policies should be discerned, dissected, and amended.

Borovoy argues that Canada has pursued an ethically cockeyed war against terror. We have been needlessly dovish abroad and excessively hawkish at home. In order to use military force abroad, the government fussed over the need for UN approval. At home, however, there are no such restraints: without even asking a court, the government may effectively deprive certain perople of the right to make a living. As the author summrizes: "Internationally, key fallacies stem from an undue respect for a rule of law that does not exist. Domestically, key fallacies stem from an undue neglect of a rule of law that does exist."

• Language: English
• Publisher: Dundurn
• Release date: Jul 3, 2008
• ISBN: 9781459718517

A. Alan Borovoy

A. Alan Borovoy is general counsel of the Canadian Civil Liberties Association and former director of the Labour Committee of Human Rights. The holder of four honorary doctorates, Borovoy was made an officer of the Order of Canada in 1982. This is his fourth book; his first, When Freedoms Collide, was nominated for a Governor General's award in 1989.

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CATEGORICALLY INCORRECT

Also by A. Alan Borovoy

When Freedoms Collide:

The Case for Our Civil Liberties (1988)

Uncivil Obedience:

The Tactics and Tales of a Democratic Agitator (1991)

The New Anti-Liberals (1999)

CATEGORICALLY INCORRECT

Ethical Fallacies in Canada’s War on Terror

A. Alan Borovoy

Copyright © A. Alan Borovoy, 2006

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise (except for brief passages for purposes of review) without the prior permission of Dundurn Press. Permission to photocopy should be requested from Access Copyright.

Editor: Michael Carroll

Design: Alison Carr

Printer: University of Toronto Press

Library and Archives Canada Cataloguing in Publication

Borovoy, A. Alan

Categorically incorrect : ethical fallacies in Canada’s war on terrorism / A. Alan Borovoy.

Includes bibliographical references and index.

ISBN 10: 1-55002-628-3

ISBN 13: 978-1-55002-628-3

1. Afghan War, 2001- --Canada. 2. Afghan War, 2001- --Moral and ethical aspects. 3. Democracy--Canada. 4. War on Terrorism, 2001- --Moral and ethical aspects. 5. Civil rights--Canada. 6. Canada--Foreign relations--1945-. I. Title.

HV6433.C3B67 2006  303.6’250971  C2006-905968-3

1 2 3 4 5 10 09 08 07 06

We acknowledge the support of the Canada Council for the Arts and the Ontario Arts Council for our publishing program. We also acknowledge the financial support of the Government of Canada through the Book Publishing Industry Development Program and The Association for the Export of Canadian Books, and the Government of Ontario through the Ontario Book Publishers Tax Credit program, and the Ontario Media Development Corporation.

Care has been taken to trace the ownership of copyright material used in this book. The author and the publisher welcome any information enabling them to rectify any references or credits in subsequent editions.

J. Kirk Howard, President

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CONTENTS

Acknowledgements

Preface

A Beginning Word

Part One — Abroad

1 IN GENERAL

The Root Causes Phenomenon

The Perpetual Paramountcy of Peace

Deference to the United Nations

The Multilateral Requirement

The Doctrine of Pre-Emption

Equivalence Mongering

Retaliating, Negotiating, and Accommodating

Democracy and Sovereignty

2 ON IRAQ

A Perspective

The Question of Evidence

Invasion Issues

Post-Invasion Issues

Part Two — At Home

1 IN GENERAL

2 EXPANDING THE OFFENCES

The Triggering Definition

Lowering the Threshold of Culpability

3 EXPANDING THE POWERS

The Ostracizing of Terror Suspects

Preventive Detention

Requiring Investigative Assistance

Electronic Bugging

The Secrecy of Proceedings

The Security of Information

Controlling Access to International Conferences

More Anti-Hate Measures

Permissible Law-Breaking

4 THE ADEQUACY OF THE SAFEGUARDS

The Fate of the Sunset Proposal

Mechanisms of Oversight

The Role of the Minister

5 CONSEQUENTIAL ISSUES AND COLLATERAL FALLOUT

Controlling Status and Mobility

Torture

A Word About U.S. Domestic Behaviour

Religious Faith and Secular Clout

A Concluding Word

Notes

Index

Acknowledgements

The impulse to write this book is attributable to a disquiet that engulfed me as Canada debated its response to the events of September 11, 2001 (9/11). I could not disgorge the sense that the debate was mired in critical fallacies. By chance, I happened to mention my discomfort to Patrick Luciani, an official of the Donner Canadian Foundation with whom I had lunch back in August 2002.

He reacted with the unexpected suggestion that I ask my organization, the Canadian Civil Liberties Association (CCLA), to prepare a grant proposal to his foundation for a book on the subject. The idea appealed to me, but it also created problems.

I wanted to write about international as well as domestic issues, but CCLA generally confines its activity to domestic matters. Thus, the organization declines to register on questions involving foreign policy. Indeed, there is no doubt that the leaders and members of CCLA entertain a wide variety of opinions on international issues. By contrast, the organization was quite active on the domestic front. It had been playing a vigorous role in addressing government initiatives to increase the legal weapons against terror. For these purposes, I had already spoken out many times as the organization’s official representative.

But my impulse to write grew out of a strange asymmetry that I believed was influencing both the international and domestic aspects of Canada’s anti-terror program. My idea was to probe — and hopefully to illuminate — this asymmetry. Unless I could deal with both parts of the Canadian response, my theme could not be adequately expressed.

In the result, I now acknowledge, with deep gratitude, the go ahead that my CCLA colleagues gave me. At the same time, I state unequivocally that, while my comments on Canada’s domestic anti-terror program will likely reflect the consensus in the organization, no such characterization can be made with respect to the international aspect of what follows. For these purposes, I write as an individual and not as the organization’s representative.

This is also the point publicly to convey my thanks to the Donner Canadian Foundation for a generous grant to the Canadian Civil Liberties Education Trust, CCLA’s research and educational arm. As a result of this grant, I was able to spend the effort and obtain the assistance that were needed to produce what follows.

As usual, I was helped by many people. I am deeply grateful to the following who read and commented insightfully on various aspects of the manuscript: Sydney Goldenberg, Marv Schiff, Dawn Clarke, Cyril Levitt, Ken Swan, Owen Shime, Louis Greenspan, and John McCamus. Goldenberg, Swan, and McCamus read, re-read, and commented on certain revised sections. John McCamus came up with, what I believe is, the rather clever title for the book.

I note, with thanks, the contributions of my CCLA staff colleagues and volunteers: Alexi Wood, Noa Mendelsohn-Aviv, Josh Paterson, Jeremy Patrick, Ben Aberant, Laura Swan, and Danielle McLaughlin. I also extend my thanks to the staff for the way they kept up the activities of the organization while I was immersed in writing. As for Donna Gilmour, my administrative assistant, I continue to marvel at the efficiency and speed with which she typed the manuscript and its many revisions.

It is appropriate, at this point, to express my gratitude to the Honourable Anne McLellan, Canada’s former deputy prime minister. Despite many attempts, my colleagues and I were unable to find the sources for certain quotes attributed to her. I do believe that I had seen the quotes, but I did not keep them and could not find where I saw them. Ms. McLellan knew me to be a critic of many of her policies. Nevertheless, she graciously acknowledged the ownership of the quotes in question. Despite whatever criticisms I continue to make about this country, I am proud of the civilized nature of much of the discourse that occurs here. And I am pleased to note that my interaction with Anne McLellan falls squarely within this category.

I also extend a special word of thanks to Motek Sherman, student-at-law with CCLA. His prodigious and tenacious research was responsible for producing the notes appended to the manuscript. Within a relatively short period, he found the sources for the quotations that appear here. This involved a Herculean effort. Motek simply would not let any obstacle interfere with the effort. His contribution is especially noteworthy because he harboured a number of significant disagreements with the views I was expressing. Obviously, this represented performance well beyond the call of duty.

Last but not least, my thanks to the folks at The Dundurn Group, my publisher: Kirk Howard, Beth Bruder, and my editor Michael Carroll. They were warm, welcoming, and helpful. Although it goes without saying, I will say it, anyway: those who helped me, bear no responsibility for what I have written. Whatever criticism is evoked belongs to me alone.

A. Alan Borovoy

Toronto, Ontario

June 2006

Preface

This book is dedicated to the memory of North America’s tough-minded democratic Left.

The tough-minded democratic Left of North America is becoming an endangered species. I am referring to the kind of people who, just a few years ago, played a vital role in North American political life. My heroes combined a compassionate social conscience with a keen sense of reality. In Canada I am referring to the likes of social democratic leader David Lewis and labour leaders such as Dennis McDermott, Eamon Park, and Terry Meagher. In the United States, this constituency included politicians such as Democratic Party senators Henry Scoop Jackson, Hubert Humphrey, and Paul Douglas, as well as socialist icon Norman Thomas and civil-rights leader Bayard Rustin. Among the intellectuals who exhibited this kind of thinking were John Dewey, Sidney Hook, and Irving Howe.

A few examples will most effectively illustrate what it is that made the contributions of these people so valuable. In the case of the Canadians, these leaders fought to promote greater economic security and equality for workers, racial minorities, women, and the poor. They also championed the cause of civil liberties. In the latter connection, consider, for instance, how courageously David Lewis challenged the propriety of the Canadian government’s 1970 invocation of the War Measures Act. With the whole country applauding that action taken by then Prime Minister Pierre Trudeau, Lewis made an eloquent case for the opposition.

At the same time, however, these leaders were clear-headed and realistic about the dangers posed by other elements on the Left. Lewis, McDermott, Park, and Meagher were in the forefront of the battle to divest the totalitarian Communist Party of any significant influence within the ranks of organized labour. This sophistication also led them to resist a number of left-wing efforts aimed at promoting Canada’s withdrawal from the North Atlantic Treaty Organisation (NATO). Since Dennis McDermott lived longer than most of the others, he had occasion to speak out against the anti-Israel direction of a number of Canada’s current labour leaders. Despite his opposition to the then right-wing policies of Israel’s Ariel Sharon government, McDermott believed in the paramount importance of defending the democratic Jewish state against the threat of Palestinian terror.

As for those American leaders, they promoted the cause of civil rights for blacks and the creation of a viable welfare state. On the issue of civil liberties, they were outspoken opponents of the notorious Senator Joseph McCarthy. At the same time, every one of them supported the goal of U.S. policy: to prevent the spread of Soviet Communism.

In some situations, this position produced unexpected outcomes. In the late 1940s, for example, socialist leader Norman Thomas denounced presidential peace candidate Henry Wallace because of the latter’s apologies for Soviet cruelty and bad faith. Much later, socialist intellectual Irving Howe similarly chewed out left-leaning author Lillian Hellman because of the way she had belittled the harm caused by the Communist Party. In the 1970s, New Deal liberal Senator Scoop Jackson criticized conservative U.S. President Richard Nixon for the softness of Nixon’s détente policy towards the Soviet Union. In the 1980s, self-styled social democrat Sidney Hook chastised right-wing U.S. President Ronald Reagan for being too irresolute in his opposition to Soviet expansion.

Of course, these people did not constitute a monolith. They had a number of disagreements even with one another. Nor am I suggesting that each of them would support all of the positions I espouse. But what is important about them is the similarity in their basic orientation. This is best understood in terms of the pathologies to which certain extremes of the Right and the Left are particularly susceptible. I summarized them in an aphorism a few years ago: The pathology of the Right is a hard heart. The pathology of the Left is a soft head.

What distinguished the people to whom I have referred is their refreshing combination of soft heart and hard head. For all their idealism in promoting their left-of-centre philosophies, they had no illusions about the extremists on their Left. At a time when terrorists and their rogue-state sponsors are threatening the very survival of our precious democracy, and at a time when our side is under increasing pressure itself to abandon the principles of democracy, we urgently need the kind of contribution these people made. If ever there was a time for political resurrection, this is it.

A Beginning Word

The atrocities of 9/11 have reinforced a central message of history: as long as authoritarians anywhere in the world have resources or power, democracies are not likely to be left in peace.

In the twentieth century, the democracies faced threats to their very survival. First it was Nazism, a particularly malevolent manifestation of fascism. Then it was Communism, a particularly cynical bastardization of socialism. Nazism appealed to humankind’s worst proclivities: racism and xenophobia. By contrast, Communism exploited the best in us: the yearning for social justice and equality. Through activities such as the Holocaust, the Nazis fulfilled their malevolent promise. Through activities such as the Gulag, the Communists betrayed their benevolent promise. Both represented a mortal challenge to democracy.

The terrorists of the twenty-first century are closer to the fascists of the twentieth century. There is, however, one crucial difference: a large component of today’s terrorism is fanatically religious. Al-Qaeda, the major terrorist organization, contends that many of its activities are directed by God Himself. As a consequence, such terrorists are a particularly formidable enemy.

What makes al-Qaeda so important in this regard is that, according to the most authoritative sources we have, it is the organization that perpetrated the massacres of 9/11. That operation combined a high level of political ingenuity, technological efficiency, and sheer human cruelty. Al-Qaeda’s recognized leader is Saudi-born Osama bin Laden. From numbers of interviews he has given and announcements he has made, we acquire a glimpse of what this enemy is all about.

Many wrongdoers go out of their way to deny — and even to conceal — their misdeeds. Not Osama bin Laden. He has openly boasted that we are terrorists. He has said, Yes, we kill their innocents.¹ Indeed, bin Laden has said of the Americans: We do not have to differentiate between military or civilian. As far as we are concerned, they are all targets.²

Bin Laden’s xenophobia appears as unshakable as it is frightening. According to him, Muslims should sever any relations with the Jews and the Christians … whoever befriends Jews and Christians becomes like them, and becomes one of them in their religion and in their infidelity.³ Indeed, bin Laden has proclaimed that killing Jews is top priority⁴ and that judgment day shall not come until the Muslim fights the Jew.⁵ According to him, the enemy is the crusader alliance led by America, Britain, and Israel … a crusader-Jewish alliance.⁶

Western leaders who have ordered their soldiers into war have nevertheless described the exercise as a regrettable necessity. Israel’s Golda Meir, for example, once expressed this feeling with particular eloquence. The one thing, according to her, that Israelis could not forgive is that the Arabs made the Israelis kill them. Contrast that sentiment with the comments of Osama bin Laden on the occasion of the suicide bombing of the American ship USS Cole: The pieces of the bodies of infidels were flying like dust particles. If you could have seen it with your own eyes, you would have been very pleased, and your heart would have been filled with joy.⁷ And in relation to the fear in America engendered by 9/11, bin Laden reportedly exclaimed, Thank God.⁸

And what are bin Laden and his cohorts attempting to achieve? Perhaps a helpful source of information in this regard is one of his religious mentors, the blind sheik Omar Abdel-Rahman, who was implicated in the 1993 bombing of the U.S. World Trade Center. The aim, according to the sheik, is to conquer the land of the infidels.⁹ One expert, Yossef Bodansky, has described bin Laden’s ultimate goal as world domination by the kind of Islamic radicalism we see in the Taliban Afghanistan regime or in Sudan or in Iran.¹⁰ Bin Laden himself seemed to corroborate at least part of this analysis when he made the following statement: As for the Taliban, we pray to God to keep their feet firm, and guide them on the right path. In our opinion, their positions are firm, right, and principled.¹¹

It will be remembered that, in the Taliban’s Afghanistan, girls were not allowed to attend school, men were required to wear beards, and certain convicted felons had their limbs chopped off in front of large public gatherings.

Bin Laden has implied that such an Islamic regime is the outcome he seeks for the United States itself. Upon being asked what his organization wanted from that country, his letter to the American people, dated November 24, 2002, replied as follows: The first thing that we are calling you to is Islam…. It is to this religion that we call you; the seal of all the previous religions.¹²

Although the Nazis and the Communists also sought domination, they were essentially secular movements. This band of terrorists, however, is thoroughly theocratic. Osama bin Laden contends that God … ordered us to carry out jihad.¹³ He maintains that on 9/11 the pilots of the hijacked planes were blessed by Allah.¹⁴ As for nuclear arms, he says that it would be a sin for Muslims not to try to possess¹⁵ such weapons. He considers hostility towards America to be a religious duty.¹⁶

Bin Laden’s theology also provides an alluring incentive for himself and his followers. He talks freely about the rewards that Muslims can look forward to in God’s paradise.¹⁷ He also thunders that "little is the comfort of this life, as compared with the