Judges tackling national-security learning curve

posted on February 28, 2006 | in Category Bill C-36 | PermaLink

Original author: Colin Freeze Source: The Globe and Mail URL: [link] Date: February 27, 2006 As invasive laws test individual freedoms, Federal Court seeks outside expertise

Magistrates from the Federal Court of Canada are quietly taking timeouts from the bench to attend informal seminars, where they are tutored about security and terrorism issues. Almost half of the court's 40 judges, who are often called upon to evaluate national security threats and the need for spying, have taken breaks to get together and ask questions, over sandwiches, of everyone from American experts in wiretap laws to Canadian civil libertarians. These judges say that as it gets harder to reconcile invasive laws with individual freedoms, they're doing a lot more extracurricular consulting, meeting with at least five experts in the past year."We're trying to improve our ability to test the government's case as time goes by," Mr. Justice Simon Noel of Ottawa explained during a speech last month at a human-rights conference in New York.

"It's absolutely clear that judges cannot become intelligence officers. . . . We have no intention of trying to become such officers," he said. "But that doesn't mean that we can't become quite well-informed."

Judge Noel said he and his colleagues would be doing a "grave disservice" to Canada if they failed to become more intelligent about intelligence, given the complex issues they ponder.

The Federal Court often scrutinizes secret spy information. Crown attorneys frequently come to the court with classified documents, attempting to show the judges the urgent need for wiretaps, or, in rare cases, to jail non-citizens as suspected terrorism threats.

Frequently, defence lawyers are barred from such hearings, wherein government motions almost always succeed. Human-rights groups have been sharply critical of secrecy that can surround such procedures. The judges acknowledge that these processes are difficult.

Judge Noel insisted in his speech that he and his colleagues do "the very best we can" to challenge government evidence that's presented in camera, adding "the court cannot simply throw up its hands and rubber-stamp the government's position." He said it's vital that judges pose hard, knowledgeable questions and, to this end, they have been learning through their meetings with various experts.

Several American officials have been consulted over the past year, including a high-level government lawyer, James A. Baker, and a top judge, Colleen Kollar-Kotelly, both of whom work to uphold U.S. laws meant to rein in domestic spying. (The same officials have lately made headlines for opposing U.S. President George W. Bush's controversial program of having U.S. spies eavesdrop on conversations without first obtaining warrants.)

The Canadian judges have also met a former Central Intelligence Agency inspector-general, who recalls his hour-long meeting warmly.

"We had a good discussion," said Fredrick Hitz, whose job as a watchdog had him keeping tabs on the CIA in the 1990s.

In an interview, Mr. Hitz said he enjoyed travelling to Ottawa last summer to meet a dozen judges. "They were very polite. They didn't ask a lot of questions."

Still, he said the stepped-up security measures that followed the 2001 terrorist attacks in the United States were very much on the judges' minds. Some wondered whether the threat of terrorism should prompt them to be any more accepting of government arguments.

"The underlying question was, 'Do we sublimate our underlying judge-like instincts?' " Mr. Hitz said. "My answer was, 'No -- increase them!' "

In a telephone interview, Mr. Hitz says he feels there have been many regrettable excesses in the war on terrorism led by the United States. "If nothing else, Canada can learn from our mistakes, which seem to be plenty," he said.

The judges are also consulting Canadian experts, including members of the Canadian Civil Liberties Association, which has long denounced government secrecy and certain anti-terrorism laws.

They heard another perspective a few weeks ago, when they met with Martin Rudner, a professor who heads a research centre at Carleton University devoted to intelligence and security studies.

The subject was "what is al-Qaeda and how has it evolved," Prof. Rudner said in an interview. "The idea was to give them the kind of background that I think they need."

The professor said Judge Noel approached him to arrange the seminar. While the judges wore casual clothing and munched sandwiches, he said, they were focused on their interest in terrorism issues.

"We had a very good philosophical discussion," said Prof. Rudner, who emphasized that fighting terrorists demands different approaches than fighting criminals. "I feel one should commend the Federal Court, because in order to do justice, it needs to have a lot of knowledge."

© Copyright 2006 Bell Globemedia Publishing Inc. All Rights Reserved.