WAR OF PERCEPTION

Canadian hate speech law unconstitutional: rights tribunal

The Canadian Human Rights Tribunal on Wednesday ruled that Section 13, Canada's much maligned human rights hate speech law, violates the Charter right to free expression because it carries the threat of punitive fines.

The shocking decision by Tribunal member Athanasios Hadjis leaves several hate speech cases in limbo, and appears to strip the Canadian Human Rights Commission of its controversial legal mandate to pursue hate on the Internet, which it has strenuously defended against complaints of censorship.

It also marks the first major failure of Section 13(1) of the Canadian Human Rights Act, an anti-hate law that was conceived in the 1960s to target racist telephone hotlines, then expanded in 2001 to the include the entire Internet, and for the last decade used almost exclusively by one complainant, activist Ottawa lawyer Richard Warman.

Mr. Warman's first big loss is a victory for the respondent Marc Lemire, webmaster of freeedomsite.org and a prominent figure in the Canadian far right.

Typically for the messy state of Canada's perennial hate speech debate, public reaction to the ruling yesterday was polarized, running the spectrum from glowing praise for the "bold" Mr. Hadjis, to criticism that his "outrageous" conclusion is "vulnerable on judicial review."

All sides seem to agree, however, that the stage is set for pitched battle in federal court, where CHRT rulings can be appealed. Another less likely outcome is for Parliament itself to repeal or amend Section 13, a law that even supporters say needs updating in the age of the Internet.

Neither the CHRC nor Mr. Warman would comment.

"No matter what happens, this decision is going to federal court," Mr. Lemire said. "This is the beginning of the end for Section 13 now. This law is 32 years old. Not a single person has ever won until today. But did I really win? I have given up six years of my life. The process is the punishment."

Mr. Warman, a former investigator for the CHRC, brought a complaint against Mr. Lemire in 2003, after monitoring his website for almost a year. He alleged that postings on the discussion forum, mostly written by others, contravened Section 13 in that they were "likely to expose" identifiable groups to "hatred or contempt." Mr. Warman later urged the CHRC investigators to expand their investigation to other websites he believed Mr. Lemire was involved with, but to "hold off on informing" Mr. Lemire "until the police take a good look at it." No criminal charges were ever filed.

In all but one case, Mr. Hadjis decided that these postings either did not contravene Section 13(1), or that Mr. Lemire cannot be held responsible for what others posted on his website.

Mr. Hadjis found Mr. Lemire violated the law in one case, by posting an article called "AIDS Secrets", written by an American neo-Nazi, which Mr. Hadjis found was "rife with hyperbole and moral condemnation. Homosexuals, and Blacks to a lesser extent, are denigrated as purveyors of a "killer" that is on the loose, agonizingly destroying the lives of American children and adults alike."

Even with this finding, however, Mr. Hadjis declined to make any order against Mr. Lemire. As a statutory tribunal, Mr. Hadjis does not have the legal authority to officially declare a law unconstitutional. But if he finds it would be unconstitutional to enforce it, he can do as he has done, which is to "simply refuse to apply these provisions."

Part of his motivation was that virtually all the offending material was removed either before or shortly after Mr. Lemire received word of the complaint against him.

"Mr. Lemire had not only "amended" his conduct by removing the impugned material, but sought conciliation and mediation as soon as he learned of the complaint against him," Mr. Hadjis wrote. "The problem had thus already been eliminated, yet the complaint continued to be processed."

Section 13(1) remains valid Canadian law, despite this ruling. Its constitutionality was last upheld by the Supreme Court of Canada in a 1990 split decision, before the Internet age.

That decision, about neo-Nazi John Ross Taylor, upheld the law as a justifiable limit on free expression largely because of its remedial, non-punitive purpose. But Mr. Hadjis found that that, today, the law "has become more penal in nature," and this renders it an unjustifiable limit on freedom of expression.

Ever since a 1998 amendment to allow the Tribunal to levy fines up to $10,000 -- payable to the government -- the pursuit of Section 13(1) cases "can no longer be considered exclusively remedial, preventative and conciliatory in nature," he wrote.

He cited Mr. Warman's request for a $7500 penalty against Mr. Lemire. Mr. Warman has won over a dozen other Section 13(1) cases, many leading to similar fines, payments to himself, and legal restrictions on Internet activity.

This criticism about a punitive law masquerading as a remedial one echoes that of Richard Moon, a law professor hired by the CHRC last year to provide an expert analysis of their online hate speech mandate. In essence, his advice was that it could not be done fairly, and so should not be done at all.

Prof. Moon said Wednesday's decision is "obviously a significant moment in the history of Section 13, but it seems like it is in some important sense inconclusive."

He said the ruling has no weight as legal precedent, and could theoretically be ignored by future tribunals, but in practice it is impossible to ignore, and it hints at a fundamental problem with the law.

"As soon as the Supreme Court confirmed that the scope of Section 13 was narrow, and confined to extremely hateful messages, then it was highly unlikely that we were going to have a kind of regular human rights process that involves conciliation between the parties," he said. "That was always something that we could have foreseen."

"We still believe Section 13 is constitutional. There seems to be some major difference of opinion within the Tribunal itself," said Bernie Farber, CEO of the Canadian Jewish Congress, referring to previous constitutional challenges of Section 13 that went the other way.

Marvin Kurz, legal counsel to B'nai Brith, which was an intervenor in this case along with the CJC and others, echoed Mr. Farber's question about why Mr. Hadjis did not simply "read out" the penalty section -- that is, ignore it, but allow the actual hate speech section to stand.

"Not only did he not do it, but he failed to explain why he did not consider the alternative," Mr. Kurz said. "It's like if the police act wrongly in a criminal case, you don't throw out the criminal law. That's what he's done here, and that doesn't make sense to me."

Ezra Levant, a blogger who has led the campaign against human rights hate speech law, said the ruling "shows that the CHRC has been acting illegally for many years," and it forces the Conservative government to make a "new kind of decision" about whether to appeal.

"If they launch an appeal, they are casting their lot with the censors," he said.

Pearl Eliadis, a human rights lawyer and a defender of Section 13, played down the importance of the ruling, and said Mr. Hadjis "just got it wrong. With respect, it's constitutionally not within the normal way that these provisions are dealt with." She said he should have simply ignored the offending penalty section and upheld the law.

Bruce Ryder, a constitutional law professor at York University, said Mr. Hadjis was correct to find that the penalty provision "exacerbated the chilling effect" on freedom of expression. But he said Mr. Hadjis' reasoning "broke down at the end," and he should have simply rejected the penalty provision.

He also wondered how Mr. Lemire was acquitted over the posting of an article that explicitly denied the Holocaust, which he called "outrageous and inconsistent with jurisprudence," and makes the entire ruling "vulnerable on judicial review."

Mark Steyn, a conservative author who was the target of a prominent hate speech complaint over his writing in Maclean's, said Mr. Hadjis' realized "that there is no future for Section 13 because of the damage done to it by the dress-up Nazis of the CHRC and and the sordid racket of Richard Warman."

"It makes explicit that section 13 has no friends," he said.

Joseph Brean / National Post

Is Torture Ever Moral?

After opening the door to a truth commission to investigate torture by the CIA of al-Qaida subjects, and leaving the door open to prosecution of higher-ups, President Obama walked the cat back.

He is now opposed to a truth commission. That means it is dead. He is no longer interested in prosecutions. That means no independent counsel — for now.

Sen. Harry Reid does not want any new “commissions, boards, tribunals, until we find out what the facts are.” Thus, there will be none. The place to find out the facts, says the majority leader, is the intelligence committee of Sen. Dianne Feinstein.

Though belated, White House recognition that high-profile public hearings on the “enhanced interrogation techniques” used by the CIA in the Bush-Cheney years could divide the nation and rip this city apart is politically wise.

For any such investigation must move up the food chain from CIA interrogators, to White House lawyers, to the Cabinet officers who sit on the National Security Council, to Dick Cheney, to The Decider himself.

And what is the need to re-air America’s dirty linen before a hostile world, when the facts are already known.

The CIA did use harsh treatment on al-Qaida. That treatment was sanctioned by White House and Justice Department lawyers. The NSC, Cheney, and President Bush did sign off. And Obama has ordered all such practices discontinued.

This is not a question of “What did the president know and when did he know it?” It is a question of the legality and morality of what is already known. And on this, the country is rancorously split.

Many contend that torture is inherently evil, morally outrageous and legally impermissible under both existing U.S. law and the Geneva Convention on prisoners of war.

Moreover, they argue, torture does not work.

Its harvest is hatred, deceptions, and lies. And because it is cowardly and cruel, torture degrades those who do it, as well as those to whom it is done. It instills a spirit of revenge in its victims.

When the knowledge of torture is made public, as invariably it is, it besmirches America’s good name and serves as a recruiting poster for our enemies and a justification to use the same degrading methods on our men and women.

And it makes us no better than the Chinese communist brain-washers of the Korean War, the Japanese war criminals who tortured U.S. POWs, and the jailers at the Hanoi Hilton who tortured Sen. John McCain.

Moreover, even if done in a few monitored cases, where it seems to be the only way to get immediate intelligence to save hundreds or thousands from imminent terror attack, down the chain of command they know it is being done. Thus, we get sadistic copycat conduct at Abu Ghraib by enlisted personnel to amuse themselves at midnight.

While the legal and moral case against torture is compelling, there is another side.

Let us put aside briefly the explosive and toxic term.

Is it ever moral to kill? Of course. We give guns to police and soldiers, and honor them as heroes when they use their guns to save lives.

Is it ever moral to inflict excruciating pain? Of course. Civil War doctors who cut off arms and legs in battlefield hospitals saved many soldiers from death by gangrene.

The morality of killing or inflicting severe pain depends, then, not only on the nature of the act, but on the circumstances and motive.

The Beltway Snipers deserved death sentences. The Navy Seal snipers who killed those three Somali pirates and saved Captain Richard Phillips deserve medals.

Consider now Khalid Sheikh Mohammed, mastermind of 9-11, which sent 3,000 Americans to horrible deaths, and who was behind, if he did not do it himself, the beheading of Danny Pearl.

Even many opponents against torture will concede we have the same right to execute Khalid Mohammed as we did Timothy McVeigh. But if we have a right to kill him, do we have no moral right to waterboard him for 20 minutes to force him to reveal plans and al-Qaida accomplices to save thousands of American lives?

Americans are divided.

“Rendition,” a film based on a true story, where an innocent man suspected of belonging to a terrorist cell is sent to an Arab country and tortured, won rave reviews.

But more popular was “Taken,” a film in which Liam Neeson, an ex-spy, has a daughter kidnapped by white slavers in Paris, whom he tortures for information to rescue her and bring her home.

Certainly, Cheney and Bush, who make no apologies for what they authorized to keep America safe for seven and a half years, should be held to account. But so, too, should Barack Obama, if U.S. citizens die in a terror attack the CIA might have prevented, had its interrogators not been tied to an Army Field Manual written for dealing with soldiers, not al-Qaida killers who favor “soft targets” such as subways, airliners and office buildings.

By Pat Buchanan

 

First 100 days: Assault weapons ban

WASHINGTON - Campaigning before a church congregation on Chicago’s South Side one Sunday in July 2007, Barack Obama said an epidemic of big city violence was “sickening the soul of this nation.”

Among the potential cures, he said, was permanently reinstating a ban on assault weapons.

One-hundred days into his presidency, President Obama says it remains a goal. But it is one the White House has been forced to abandon.

Voices of agreement
President Obama and Vice-President Biden, “support making the expired federal Assault Weapons Ban permanent,” the White House website declares. Shortly after taking office, members of the Obama cabinet added their voices of agreement.

At his first news conference as attorney general, Eric Holder said, “there are just a few gun-related changes what we would like to make, and among them would be to reinstitute the ban.”

Secretary of State Hillary Clinton endorsed the idea during her trip to Mexico in late March. “These assault weapons, these military-style weapons, don’t belong on anyone’s street,” she said.

But the fire has gone out of President Obama’s goal of restricting the availability of firearms. “I don’t know of any plans,” said White House spokesman Robert Gibbs, to seek an assault weapons ban from Congress.

Attorney General Holder admitted as much when asked, during a recent session with reporters, whether he expected any push for a ban this year to curb the flow of guns from the United States to Mexico.

His answer could have come straight from the National Rifle Association: “I think what we’re going to do is to try to, obviously, enforce the laws on the books.”

Support evaporated
Congress imposed a ban on what it called assault weapons in 1994, outlawing the sale and importation of 19 military-style weapons, copycat models with similar features, and high-capacity ammunition magazines. In a compromise with Republicans, the Democrats who controlled Congress agreed to let it expire in ten years unless it was renewed. By 2004, with Republicans in charge, support had evaporated.

Democrats again control Congress, and a Democrat is once more in the White House, the same conditions that allowed the ban to be imposed 15 years ago. But the make-up of Congress is different, with little appetite for restricting gun ownership.

The Senate’s majority leader is a westerner, Harry Reid of Nevada, where gun control is political poison. And though the House speaker, Nancy Pelosi, comes from the more liberal San Francisco, she has shown no enthusiasm for reviving the assault weapons ban because of opposition among her colleagues.

Sixty-five House Democrats wrote Attorney General Holder in mid-March, saying they “would actively oppose any effort to reinstate the 1994 ban” and predicting “a long and divisive fight” if the administration tried to push for one. Many of them represent rural districts, where gun control is no more popular than in Nevada.

By the time President Obama made his trip to Mexico, he conceded the battle would be futile. “None of us are any illusion that reinstating that ban would be easy.”

“What we’re focused on is how we can improve our enforcement of existing laws,” he said.

Straw buyers
Enforcement of the nation’s gun laws is primarily the responsibility of ATF, the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Its agents and inspectors check to see that gun dealers obey laws governing sales. They look for evidence of “straw buyers” – people legally entitled to buy guns who then sell them to criminals or others who don’t want any records tying them to a specific gun.

ATF says such buyers are responsible for a large proportion of guns that wind up in the hands of violent drug cartels in Mexico.

“These illegal purchases,” ATF’s William Newell told Congress last month, are “a key source and supply of firearms for drug traffickers.”

The best way to improve enforcement of existing gun laws, said one veteran ATF agent, is to put more badges on the street.

“Give us more people to inspect gun dealers, looking for straw buyers, in the states where the guns smuggled into Mexico are coming from,” he says.

The number of ATF inspectors has remained remarkably flat in the past two decades, while support staffing has grown in other federal agencies, including the FBI and Drug Enforcement Administration.

ATF had 764 inspectors in 1990. It has 771 today.

The number of ATF agents has risen 32% during the same period, but it is a comparatively small agency. ATF has 2,441 agents today, compared to the FBI’s 13,040 and the DEA’s 5,235.

It’s no accident that the size of ATF’s inspections force has remained flat. The NRA has successfully fought efforts to expand inspections, claiming that licensed firearms dealers have been harassed.

“Despite its crime-fighting mission,” a recent report from the Congressional Research Service dryly observed, “ATF’s business relationships with the firearms industry and larger gun-owning community have been a perennial source of tension.”

If new agents are hired, says the NRA’s Wayne LaPierre, “You need to make sure they’re directed to go after the bad guys, because owning firearms is a right in the United States, and what you don’t want to do is harass law abiding people.”

The NRA is on a roll. The Supreme Court ruled last year that the Second Amendment protects an individual’s right of gun ownership, not merely the right of organized militias to arm themselves.

Unless the mid-term election brings a substantial change in the composition of Congress, an assault weapons ban has little chance of becoming law under Barack Obama, and ATF will not be able to count on a larger force of agents and inspectors.

Gun control, once considered a soccer-mom issue popular in suburban America, is again radioactive.

MSNBC

 

 

Department of Homeland Security issued report on extremism despite concerns

WASHINGTON – Civil liberties officials at the Homeland Security Department did not agree with some of the language in a controversial report on right-wing extremists, but the agency issued the report anyway.

The intelligence assessment issued to law enforcement last week said some military veterans could be susceptible to extremist recruiters or commit lone acts of violence. That prompted angry reactions from some lawmakers and veterans' groups.

Homeland Security spokeswoman Amy Kudwa said the report was issued before officials resolved problems raised by the agency's civil rights division. Kudwa would not specify what language raised the concerns.

Homeland Security Secretary Janet Napolitano defended the report Thursday, but she said the definition of right-wing extremism that was included in a footnote should be changed.

In the report, right-wing extremism was defined as hate-motivated groups and movements, such as hatred of certain religions, racial or ethnic groups. "It may include groups and individuals that are dedicated to a single issue, such as opposition to abortion or immigration," the report said.

"If there's one part of that report I would rewrite, in the word-smithing, Washington-ese that goes on after the fact, it would be that footnote," Napolitano said Thursday on Fox News.

The same definition was included in the agency's March 26 report on domestic extremism. Both reports were marked "For Official Use Only."

The report on right-wing extremists cites the 1995 Oklahoma City bombing by military veteran Timothy McVeigh as one instance of a veteran becoming a domestic terrorist.

Several lawmakers, the American Legion and Vets for Freedom took offense to the intelligence review. The Veterans of Foreign Wars defended it as an assessment, not an accusation.

Napolitano said, "We do not mean to suggest that veterans as a whole are at risk of becoming violent extremists."

She also said: "I apologize for that offense. It was certainly not intended."

The top Republican on the House intelligence committee, Michigan's Pete Hoekstra, has asked the director of national intelligence's ombudsman to investigate the Homeland Security report for "unsubstantiated conclusions and political bias."

The senior Democrat of the House committee with oversight of the department said the report raises privacy and civil liberty issues. "This report appears to have blurred the line between violent belief, which is constitutionally protected, and violent action, which is not," Rep. Bennie Thompson, D-Miss., wrote in a letter to Napolitano.

The department's definition of left-wing extremism in the March 26 report includes a reference to violence, stating these groups that embrace anticapitalist, communist or socialist beliefs seek "to bring about change through violent revolution rather than through established political processes."

These reports are part of the department's routine analysis of intelligence information to give to law enforcement agencies guidance on possible security threats.

In February, the department issued a similar warning about possible cyber attacks from left wing extremists. In September, the agency reported that right-wing extremists over the past five years had used the immigration debate as a recruiting tool.

Since September, the agency issued several reports on individual foreign and domestic extremist groups such as al-Qaida and Hammerskin Nation, a skinhead organization. The Hammerskin assessment said many of the group's members received military training and fought in Iraq and Afghanistan.

The latest report has turned into a "political football," said Rep. Jane Harman, D-Calif. Harman, who chairs a House subcommittee on intelligence and information sharing, said the report could have been written more artfully, but added that "it was a well-intended effort to describe to law enforcement what things to look for."

"If the result is to dumb down intelligence products that could prevent the next attack to the homeland, we will all lose," she said.

(This version CORRECTS to show that DHS would not specify which language raised concerns.)

By EILEEN SULLIVAN, Associated Press Writer

"TERRORISTS" KEPT IN JAIL WITHOUT CHARGE

Plane-plot suspects to be kept in jail

A district judge ruled Wednesday that British investigators have until next week to investigate the suspects arrested in an alleged plot to blow up as many as 10 trans-Atlantic jetliners, saying they could be kept in custody without charge.

Scotland Yard later said a person arrested on Tuesday as part of its investigation into the foiled plot was released without charge. Another detainee was released without charge Friday.

The judicial order was the first major test of a new terrorism law that lets suspects be held for as long as 28 days without charge so investigators can solidify their cases.

The hearing, which addressed the cases of 23 suspects arrested in Britain's initial sweep last week, was held behind closed doors and attended only by the suspects' lawyers, investigators and government officials.

Scotland Yard said that 21 of the suspects could be detained for questioning through Aug. 23, while another two could be detained until Aug. 21. No reason was given for the difference in the length of time.

Experts say the primary reason police could use nearly a month to complete a probe is because of the complexity of investigations into the alleged plot to smuggle liquid explosives hidden in hand luggage aboard flights.

"You've got laptops, you have to bring in translators to translate all the documents in there, and sometimes it's inopportune to release all your suspects — particularly terrorism suspects — while all that is being downloaded and translated," said Cliff Knuckey, a retired police detective who has worked on terrorism investigations.

"Terrorism investigations are different, simply because you're dealing with people who will do their best not to compromise their plans and who will do anything not to be compromised."

When police officials appeared in February before a House of Commons committee looking at Britain's terror legislation, they told lawmakers much the same thing. And Deputy Assistant Commissioner Peter Clarke, who commands the anti-terrorist police branch, said officers had found terrorist training videos spliced in the middle of normal Hollywood films, meaning hours spent scrutinizing videotapes.

Previously, police were able to detain people suspected of terrorism offenses for 14 days only. But the new legislation, which became law earlier this year, also created new offenses, including preparing a terrorist act, giving or receiving terrorist training, and selling or spreading terrorist publications.

Prime Minister Tony Blair failed to receive parliamentary approval for his own plan to interrogate terrorist suspects for up to 90 days.

The British probe of a plot to destroy U.S.-bound jetliners with chemical explosions is the highest-profile case to be conducted under the new legislation.

Home Secretary John Reid, Britain's chief law-and-order official, acknowledged that some of the suspects would likely not be charged with major criminal offenses, but said there was mounting evidence of a "substantial nature" to back the allegations.

His comments came after he met with the French, German and Finnish interior ministers, Nicolas Sarkozy, Wolfgang Schaeuble and Kari Rajamaki, respectively, and EU Commission Vice President Franco Frattini. They later announced the allocation of $235,000 to research the best ways to detect liquid-based explosives.

Twenty-four suspects have been arrested in Britain in the liquid explosives plot and as many as 17 people in Pakistan, including alleged ringleader Rashid Rauf. British national Rauf's 22-year-old brother, Tayib, is among those in British custody. Those detained in Britain whose assets were frozen range in age from 17 to 35.

Two top Pakistani intelligence agents said Wednesday that the would-be bombers wanted to carry out an al-Qaida-style attack to mark the fifth anniversary of the Sept. 11 strikes, but were too "inexperienced" to carry out the plot.

The two senior agents, who spoke on condition of anonymity, said that if the terror cell members arrested in Pakistan and Britain had appropriate weapons and explosives training, they could have emulated massive attacks like those five years ago in New York and Washington as well as the July 7, 2005, London bombings.

The detainees in Britain and Pakistan had not attended terror-training camps in Pakistan or Afghanistan and had relied on information gleaned from text books on how to make bombs, the officials said.

Their comments offer a different perspective from that given by U.S. Homeland Security Secretary Michael Chertoff. "Certainly in terms of the complexity, the sophistication, the international dimension and the number of people involved, this plot has the hallmarks of an al-Qaida-type plot," Chertoff said Friday.

The Pakistani officials said Rashid Rauf met with al-Qaida figures inside Pakistan before his arrest last week.

They said Rauf, a British national of Pakistani descent in his 30s, had also been in contact — through intermediaries — with the purported No. 3-ranked al-Qaida leader at large in neighboring Afghanistan. The officials declined to give the al-Qaida leader's name.

Meanwhile, air service nudged closer to normal at major London airports, but British Airways said it canceled 35 flights from Heathrow and another 11 at Gatwick.

There was new concern about security after a 12-year-old boy managed to board a plane at Gatwick Airport on Monday without a passport, ticket or boarding pass. He was detected by cabin crew and removed before the flight took off. Authorities said he went through a full security screening before boarding the flight and he didn't pose a threat at any time.

By MATT MOORE, Associated Press Writer

August 17, 2006