By Ryan Alford, Medium, June 9, 2018
I published a book last year — Permanent State of Emergency — that addressed the degeneration of the rule of law in the United States during the ‘Global War on Terror’, a process that entailed the abandonment of its commitment to treating certain rights as absolute and not subject to derogation. The three key indicators I discussed were indefinite arbitrary detention, torture, and targeted killing: I concluded that when the Government of the United States obtained the power to violate these rights with impunity, it crossed over the threshold of the rule of law and became an elective dictatorship, the first developed nation to do so since the creation of the modern international order in the wake of the Second World War. The election of Donald Trump has made the consequences of abandoning these most basic constitutional restraints painfully clear.
Owing to my work in this area, people have been asking me about the state of Canada’s rule of law in the wake of last week’s bombshell revelation that the Canadian Armed Forces had participated in the targeted killing of Canadian citizens in Syria, despite the fact that the legal advice they obtained apparently recognized but failed to address the question of whether or not this was constitutional. This essay is my first attempt to grapple with the implications of this serious break with the norms of the rule of law state; this is a painful subject for me to write about, as my book’s research on the American targeted killing program took me to some very dark places; however, the consequences of not recognizing how corrosive targeted killing is to the rule of law are so severe that I could not allow this to pass without comment. As Professor Craig Forcese (of the University of Ottawa Faculty of Law) writes on his National Security Law blog, “targeted killing is no longer theoretical for Canada.”
I agree with some of Forcese’s analysis, but not all. I do agree that we know next to nothing about the relevant details of these drone strikes; conversely, I think we know enough to draw the conclusion that these are both cause for alarm and that they warrant the strongest criticism of their unconstitutionality that scholars can muster. Most particularly, we already know that the Harper Government believed it was acceptable to proceed without considering what the recently released secret memo euphemistically labelled “domestic legal concerns” related to the targeted killing of Canadians (i.e., was it unlawful killing prohibited by the Charter) and that the Trudeau Government’s plans for investigating this are entirely inadequate.
We should begin by defining our terms. Targeted killing is defined by the pre-authorization of the extrajudicial killing of terrorism suspect, one who is not carrying arms against Canada or its allies as those forces are engaged in lawful combat operations. This is essential: contrary to most people’s first impressions, it is not the killing that is problematic in and of itself, but the targeted killing of the individual. As Forcese has noted, killing people on the battlefield is just what soldiers do. If the Canadian Armed Forces was taking part in lawful combat in Syria (it wasn’t, but I’ll come to that later) then a barrage of fire aimed at ISIS’ positions that killed a Canadian would be unproblematic under both the laws of war (a.k.a. the customary principles of jus in bello, the Laws of Armed Conflict or “LOAC”, etc.) and the Canadian Constitution.
This allows us to distinguish some irrelevant counter-examples that were frequently mobilized by supporters of the American targeted killing program: the plan during the Second World War to kill Admiral Yamamoto involved Americans killing a particularly effective member of a belligerent nation’s armed forces for that reason (although this was still subject to the LOAC — had he been killed while hors de combat in a hospital bed, this would have been unlawful); likewise, Union soldiers killed Confederate soldiers during the Civil War on the battlefield not because they were suspected of crimes, or even because they were guilty of treason, but only because they were members of a hostile force. Conversely, it is quite unlikely that Lincoln even considered signing a warrant to send a kill team to assassinate Confederate sympathizers (as he even recognized that ordering them imprisoned without a right to habeas corpus was so constitutionally irregular as to require him to seek Congress’ forgiveness). This because it was once commonly understood that those accused of treason enjoy special protection under Anglo-American constitutional principles.
The abuse of the power to declare someone guilty of treason (or of being enemies of the state, etc.) is what motivated the most important (and enduring) clause of Magna Carta, which reads: “nor will we proceed with force against [any free man] or send others to do so, except by the lawful judgment of his peers and the law of the land.” (King John was thought to have sent assassins to kill his noble rivals, which allegedly included his nephew, Arthur of Brittany). This rejection of an prerogative to kill a troublesome individual became the cornerstone of a structure of constitutional limitations of the powers of government; until very recently, this right was considered inviolable.
Unfortunately, what the Canadian Armed Forces did (and/or participated in) during the Syrian intervention has eroded this foundation. We know this because the released documents show that officials — we don’t yet know who — agreed that particular Canadian citizens could be marked out for death and then killed without any judicial involvement, despite the fact that they were considered troublesome primarily because they had allied themselves with our adversaries, the classic definition of treason. That is to say, they were accused of doing something akin to treason, but rather than being tried for this, they were summarily executed. I am sure that some people will argue that evidence might come out that they were carrying arms with ISIS — which, again, would only justify the fact that they were killed in combat operations, not of marking them out for death regardless of whether they were in combat or aiding those in combat. However, because of what we do know about the Syrian intervention, any such evidence would be irrelevant to the question of whether this was constitutional.
Let’s return to a central issue that I earlier alluded to parenthetically. Are the United States and its allies’ military operations against ISIS in Syria lawful? The majority opinion among scholars of international law (and particularly those working outside of NATO countries) is no (additionally, the question of whether the LOAC apply to non-state actors is hotly debated, and judgments of the ICJ seem to point to the conclusion that they do not). The United States has not established an exception to the principle that you cannot invade foreign nations at will, which has a position in international law analogous to the prohibition on extrajudicial killing of those accused of being enemies of the state within the international legal order established after the Second World War: the prohibition on aggressive war it is the keystone of the structure embodied by the United Nations, just as clause 29 of Magna Carta is the cornerstone of domestic constitutionalism.
The United States has invoked two exceptions to the requirement that wars launched without the sanction of the United Nations are unlawful. The first is collective self-defence: namely, that it is participating in a coalition (which at the time included Iraq) that is defending Iraqi territory from ISIS’s incursion from safe areas in Syria. For various reasons, this is a very tenuous rationale; it also invokes memories of Nixon’s unlawful bombing and invasions of Cambodia. Then as now, at least in the United States’ view, the legality of its intervention hinges on the question of whether the state from which the operations are launched is “unwilling or unable” to prevent them.
Here, the facts are even clearer than they were during the Vietnam War. Unlike the Cambodian Government of Norodom Sihanouk, the Syrian Government was been engaged in dogged (and at times desperate) combat with ISIS. It was clearly not unwilling to fight back against ISIS. As for being “unable”, even if we are charitable to the U.S. in our interpretations of this requirement, it appears that this requirement is clearly not met, as the Syrian Government fought major battles against ISIS in Qalamoun and Palmyra in 2015.
Even if an argument could be made that the U.S.-led coalition’s military operations were lawful, it does not appear that the Trudeau Government agreed. Disagreement with its tenuous rationale may have motivated the Trudeau Government’s withdrawal from combat operations in Syria, which occurred nearly immediately after that Government’s formation in October of 2015. It would be very interesting to know if the Ministry of Justice or other departments (or even JAG) was asked about whether the United States was operating in Syria without the sanction of international law, either before or after the election, or whether legal advisors remained purposefully agnostic to the question of whether it was participating in aggressive warmaking before concluding that the strikes would be authorized by the LOAC.
This is a necessary preliminary question; it must be asked because the issue of whether a violation of international law has occurred determines whether or not the Canadians targeted by the drone strikes were protected by the Charter despite being outside of Canada at the time. There is no more important Charter right than the branch of Section 7; killing someone in a theatre of war because they are engaged or assisting in combat operations against our forces while they are engaged in the lawful use of military force would obviously meet the requirements of fundamental justice (again, depending on a careful consideration of the facts) if that killing was in conformity with the LOAC, but if we did so while engaging in aggressive warmaking — which the Nuremberg Tribunals recognized as the supreme international crime against peace — then this clearly infringes Section 7, even if the Canadian Government only facilitated the drone strike. I believe this is a straightforward interpretation of how the rule announced by the Supreme Court of Canada in R. v. Hape would be applied, although other scholars disagree.
At this point, you might well ask: So what? If we never get to the bottom of whether this was legal and constitutional it might be hard luck for certain fools (or worse) who travelled to Syria, but how would this erode the Canadian Constitution? Let’s imagine what facts might come to light if the targeted killings are properly investigated. a Canadian citizen is in ISIS-controlled territory in Syria serving as their propagandist. He is charged but not tried in absentia for that under s. 83 of the Criminal Code of Canada. He is then put on a ‘kill or capture’ list by the Joint Special Operations Command or the Central Intelligence Agency, and this is approved by American executive branch officials; their rationale is that he is suspected of participating in terrorist plots in Canada, he would also be considered a security risk upon his return to Canada, one that is too great to accept.
Then, when asked whether the Canadian Armed Forces have any objections to his being killed in a drone strike, they obtained advice from the National Security Advisor (at the time, Dick Fadden) which concluded (on the basis of what was evidently a half-baked analysis) that only LOAC applies and there is no need to consider the “domestic legal issues”. Having received that report, the United States (or the United Kingdom, or the Canadian Armed Forces) carried out the drone strike, killing the Canadian citizen.
From my research into the American targeted killing program, I can tell you that this scenario is the most likely to be confirmed, if indeed we ever have an adequate investigation. Many people — chiefly those inside the Government and connected with it in direct and indirect ways — will do their best to prevent this, as it would shock the conscience of many Canadians. These facts would be so shocking precisely because this is exactly what Section 7 is designed to prevent, especially when viewed in the context of constitutional tradition.
In essence, this is what occurred: Rather than recognizing that a terrorism suspect has the right to be tried before being sentenced, some Government(s) concluded more expedient to execute him on the basis of intelligence reports, which are notoriously suspect. (Elsewhere, I argue that this is contrary to both Section 7 and to an Unwritten Constitutional Principle that is embedded by the Preamble, and accordingly not subject to a Section 1-type derogation.)
Some might argue that this is not the case, but if there is even any possibility that this occurred, I would argue that Parliament and the courts need to get to the bottom of it as soon as possible, as the Canadian Armed Forces may be in another military mission with similar parameters in the near future, and this is a highly dangerous precedent. Let’s be clear: We need to consider the possibility that policy makers decided that they should ignore the most fundamental constitutional protections that exist because they would rather not comply with them. If they get away with this (much like the CIA officials who were not prosecuted when President Obama decided to “look forward, not backward”, it’s a short downhill ride to the state of affairs that currently exists in the United States. I can’t explain why in detail here, but I suggest you read my book if you are interested, although I should warn you that it might chill you to the bone. Governments that gain the power to declare someone a traitor and have them killed rarely remain stable and democratic; they tend to acquire a taste for unreviewable and unaccountable power. Think Richard Nixon, but on political steroids.
As Forcese noted, it is likely that the revelations that Minister of Public Safety Ralph Goodale was not entirely correct when he said that “Canada does not engage in death squads” will lead to an investigation in one forum or another. I believe the National Security and Intelligence Committee of Parliamentarians (NSICoP) is not adequate for that task. As I note in my forthcoming article in the University of New Brunswick Law Journal, that committee is controlled by the Government; the fact that its members do not possess parliamentary privileges makes it ideal for burying scandals that could prove embarrassing, whether to Canada, its allies, or both. The Afghan detainee scandal demonstrates the importance of the protections accorded to properly constituted Parliamentary committees; as the stakes of this investigation of the targeted killing of Canadian citizens is considerably higher than detainee abuse, the investigation should not be shunted into a forum where the choice to reveal or disclose what is revealed is the Government’s alone. The stakes here couldn’t be higher.
Ryan Alford teaches constitutional law at the Bora Laskin Faculty of Law, Lakehead University. He published a book with the McGill-Queens' University Press in 2017.
Posted June 17, 2018