MUST WE TRADE RIGHTS FOR SECURITY? THE CHOICE BETWEEN SMART, HARSH, OR PROPORTIONATE SECURITY STRATEGIES IN CANADA AND BRITAIN

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1 MUST WE TRADE RIGHTS FOR SECURITY? THE CHOICE BETWEEN SMART, HARSH, OR PROPORTIONATE SECURITY STRATEGIES IN CANADA AND BRITAIN Kent Roach * INTRODUCTION Most debates about terrorism proceed on the assumption that there is a trade-off between security and rights. The question is often defined in terms of the proper balance between these two important values. Some tilt the balance toward security and raise dire warnings that the Constitution is not a suicide pact. Others tilt the balance toward rights and raise equally dire warnings that excessive counterterrorism efforts will undermine the high ground that democracies occupy in their battle with terrorists. Recently, however, the idea of inevitable trade-off or balance between rights and security is being questioned. After having downplayed the relevance of human rights in combating terrorism immediately after 9/11, the United Nations has begun to place greater emphasis on the positive relationship between human rights and security. United Nations Secretary General Kofi Annan argued in a recent report that [i]t would be a mistake to treat human rights as though there were a trade-off to be made between human rights and goals such a security and development.... [S]trategies based on the protection of human rights are vital both for our moral standing and the practical effectiveness of our actions. 1 * Professor of Law, University of Toronto. This article is a revised version of the twentyseventh Viscount Bennett lecture given at the University of New Brunswick Faculty of Law on October 27, I thank the Faculty for inviting me to give this lecture and Sharryn Aiken, Michael Code, David Dyzenhaus, Audrey Macklin, Rayner Thwaites, and Reg Whitaker for helpful comments on an earlier draft. I also thank Michel Rosenfeld and the group that gathered at the Rockefeller Centre in Bellagio in July 2005 for helpful and challenging discussions that helped inform this article. The financial assistance of Canada s Social Sciences and Humanities Research Council is gratefully acknowledged. 1 The Secretary-General, Report of the Secretary-General: In Larger Freedom: Towards Development, Security and Human Rights for All, 140, delivered to the General Assembly, U.N. Doc. A/59/2005 (Mar. 21, 2005). 2151

2 2152 CARDOZO LAW REVIEW [Vol. 27:5 This argument suggests that human rights can be reconciled with security and that some abuses of human rights may be counterproductive in preventing terrorism. Much of the Bush administration s war on terrorism suggests that harsh anti-terrorism strategies may be ineffective. The attempt to detain people in a law-free zone at Guantanamo Bay, Cuba was ultimately unsuccessful. 2 The lack of full adversarial legal procedures for determining the status of Guantanamo detainees has produced both false negatives and false positives: namely, the release of people who have reportedly returned to hostilities and the detention of those who present no threat to the United States. 3 The bipartisan 9/11 Commission has called for the United States to adhere to the rule of law, including the Geneva Conventions, in large part because of the pressing need to respond to negative views of the United States and to help minimize the next generation of terrorists. 4 The use of extreme interrogation techniques has at times produced inaccurate intelligence and tainted the use of statements in criminal prosecutions. Nevertheless, coercive and humiliating interrogations at Abu Ghraib and elsewhere, as well as the invasion of Iraq, seem to have provoked and inspired more, not less, terrorism. The wholesale use of immigration detention in the immediate aftermath of 9/11 failed to result in any terrorism charges related to 9/11. 5 The inability of American governments effectively to mitigate the devastation caused by Hurricane Katrina has also raised concerns about the smartness of homeland security policies that focus on terrorism. Effective emergency preparedness can limit the harms and speed recovery not only from catastrophic terrorism but also from a variety of natural and man-made disasters. The question of whether it is truly necessary to sacrifice rights for security lies at the heart of the determination of whether a particular anti-terrorism measure is a proportionate response to the threat. Principles of proportionality found in many constitutions, including in the limitation and derogation sections of the European Convention for the Protection of Human Rights and Fundamental 2 Rasul v. Bush, 524 U.S. 466 (2004). But see Detainee Treatment Act of 2005, Title XIV of the National Defence Authorization Act for Fiscal Year 2006, H.R. 1815, S. 1405(e), 109th Cong. (amending 28 U.S.C and removing the right of Guantanamo Bay detainees to apply for habeas corpus and regulating appeals from combatant status review tribunals). 3 Kent Roach & Gary Trotter, Miscarriages of Justice in the War Against Terror, 109 PENN. ST. L. REV. 967, 1012 (2005). 4 THE NAT L COMM N ON TERRORIST ATTACKS UPON THE U.S., THE 9/11 REPORT 12.3 (2004) [hereinafter THE 9/11 REPORT]. 5 DAVID COLE, ENEMY ALIENS: DOUBLE STANDARDS AND CONSTITUTIONAL FREEDOMS IN THE WAR ON TERRORISM (2003).

3 2006] TRADING RIGHTS FOR SECURITY? 2153 Freedoms 6 and in Section 1 of the Canadian Charter of Rights and Freedoms, 7 require assessment of the effectiveness of any security measure that may violate rights. Proportionality analysis requires that limits on rights must be clearly prescribed by law so as to facilitate both political and judicial review. It asks whether a rational connection exists between the proposed measure and the goal of stopping terrorism, whether less drastic and rights-invasive means exist to stop terrorism, and finally how the measure s effectiveness in preventing terrorism compares to its burden on rights and affected individuals. Proportionality analysis is a more disciplined and demanding process than open-ended balancing of rights and security because it addresses whether rights violations will actually increase security and whether less drastic measures can be used to prevent terrorism. 8 In addition, proportionality analysis can consider the distributional consequences of violating the rights of minorities in an attempt to increase security. 9 We should never lose sight of the normative value of rights in proportionality analysis, and some antiterrorism strategies such as torture and racial and religious profiling would remain legally and morally wrong even if they were, at times, effective. However, proportionality analysis requires both judges and governments to consider the effectiveness of rights-invasive policies in preventing terrorism. In this Article, I argue that the relationship between rights and security is more complex than is suggested by those who argue that there is an inevitable trade-off between rights and security, or by those who argue that rights and security can be easily reconciled in every case. My argument proceeds in three parts. The first is that in many cases, the smartest and most effective security strategies may not violate rights in any serious manner. Such smart counter-terrorism strategies involve not the dramatic introduction of tough new laws criminalizing terrorism or speech related to terrorism, but rather more 6 See, for example, Article 10(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which allows necessary limits on freedom of expression, and Article 15, which allows derogating measures to the extent strictly required by the exigencies of the situation. Nov. 4, 1950, 213 U.N.T.S Constitution Act, 1982, Pt. I, Canada Act 1982, Sched. B, ch. 11 (U.K.). Section 1 provides: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. On the importance of proportionality in other systems, see Aharon Barak, A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 HARV. L. REV. 16 (2002). 8 Jeremy Waldron, Security and Liberty: The Image of Balance, 11 J. POL. PHIL. 191 (2003); Lucia Zedner, Securing Liberty in the Face of Terror: Reflections from Criminal Justice, 32 J.L. & SOC Y 507 (2005). 9 Ronald Dworkin, The Threat to Patriotism, 49 N.Y. REV. BOOKS 3 (2002).

4 2154 CARDOZO LAW REVIEW [Vol. 27:5 mundane administrative regulation to help prevent terrorists from gaining access to substances and sites that can be used for terrorism. A smart security policy would also recognize the reality that it is impossible to prevent all acts of terrorism or other man-made or natural disasters and that considerable efforts and resources should be devoted to emergency preparedness and harm reduction measures. Although such strategies tend to be neglected as defeatist damage mitigation strategies, the events surrounding Hurricane Katrina demonstrate that evacuation and recovery strategies should be key components of national security strategies. 10 In a world of limited resources, increased emphasis should be placed on double-duty strategies that can respond to both terrorism and other threats to human security. 11 I also suggest that increased independent review of national security activities is a smart strategy that may make those activities more effective while at the same time helping to prevent or redress rights violations. The second part of my argument is that some harsh anti-terrorism policies may not only violate rights, but also prove ineffective in producing security. One such policy involves the use of overbroad definitions of terrorism that target conduct that is not directly related to the commission of violence against civilians. Police and security agencies should focus their efforts on terrorists who plan and prepare to commit serious acts of violence and not on others who may engage in illegal but non-violent dissent. Another harsh anti-terrorism strategy that violates rights and may be of limited effectiveness in preventing terrorism is the targeting of speech as a form of terrorism. I will also suggest that security strategies that target people on the basis of religion, race, or lack of citizenship may not only discriminate, but also may be of limited effectiveness because of their radical over- and under-inclusiveness in targeting terrorists. Although many smart security strategies do not violate rights and many harsh security strategies will not prevent terrorism, it would be wrong to suggest that there is never any tension between rights and security. The third part of this Article will explore three hard cases that implicate both rights and security. The hard cases are: the treatment of information that cannot be disclosed to the affected person or the public because of concerns about national security 10 SELECT BIPARTISAN COMM. TO INVESTIGATE THE PREPARATION FOR AND RESPONSE TO HURRICANE KATRINA, A FAILURE OF INITIATIVE: THE FINAL REPORT OF THE SELECT BIPARTISAN COMMITTEE TO INVESTIGATE THE PREPARATION FOR AND RESPONSE TO HURRICANE KATRINA (2006), available at 11 NAT L RESEARCH COUNCIL, MAKING THE NATION SAFER: THE ROLE OF SCIENCE AND TECHNOLOGY IN COUNTERING TERRORISM (2002); KENT ROACH, SEPTEMBER 11: CONSEQUENCES FOR CANADA ch. 7 (2003).

5 2006] TRADING RIGHTS FOR SECURITY? 2155 confidentiality, the treatment of non-citizen terrorist suspects who cannot be deported because of concerns that they will be killed or tortured upon their return, and preventive detention of suspected terrorists. In these difficult cases, I suggest that conflicts between rights and security should be resolved by the rigorous, rational, and logical application of proportionality principles. Such principles accept that the need to prevent terrorism is an important objective and that the importance of the objective may increase with the frequency and lethality of terrorist attacks. At the same time, however, proportionality analysis insists that counter-terrorism strategies must be legally authorized and subject to judicial application of principles of rationality, least drastic or restrictive means, and overall balance between effectiveness in preventing terrorism and infringement on rights and freedoms. In the last part of this article, I use a case study to test my thesis that some of the smartest and most effective anti-terrorism strategies do not violate rights while some of the harshest strategies may not be effective. I consider available information about whether the 1985 terrorist bombing of Air India Flight 182, which killed 329 people in what was before 9/11 the most deadly act of aviation terrorism in world history, could have been prevented either with smart security strategies such as better aviation security or through a variety of harsh or proportionate security strategies such as broad terrorism offenses, law against terrorist speech, the use of immigration law as antiterrorism law, or preventive arrests. Most of the examples I discuss in this Article come from Canadian and British anti-terrorism law and policy. Both British and Canadian approaches provide interesting contrasts and parallels with American anti-terrorism law and policy. 12 The United Kingdom has had much experience with terrorism and is an influential innovator with respect to anti-terrorism laws. 13 The United Kingdom has recently initiated various proposals with respect to preventive restraints on liberty of suspected terrorists and the punishment of terrorist speech that depart from traditional American policies that 12 Kim Lane Scheppele, Other People s PATRIOT Acts: Europe s Response to September 11, 50 LOY. L. REV. 89 (2004); Stephen J. Schulhofer, Checks and Balances in Wartime: American, British and Israeli Experiences, 102 MICH. L. REV (2004); Michael P. O Connor & Celia M. Rumann, Into the Fire: How to Avoid Getting Burned by the Same Mistakes Made Fighting Terrorism in Northern Ireland, 24 CARDOZO L. REV (2003). 13 On the influence of the Terrorism Act, 2000 on other post-9/11 anti-terrorism law, see Kent Roach, The World Wide Expansion of Anti-Terrorism Laws After 11 September 2001, 3 STUDI SENESI 487 (2004) [hereinafter Roach, The World Wide Expansion] and Kent Roach, The Post-9/11 Migration of Britain s Terrorism Act, 2000, in THE MIGRATION OF CONSTITUTIONAL IDEAS (Sujit Choudhry ed., forthcoming) [hereinafter Roach, The Post-9/11 Migration].

6 2156 CARDOZO LAW REVIEW [Vol. 27:5 favor liberty. Some of these British policies would remain problematic in the United States, but they may be influential in other countries. 14 Although Canada does not have the same experience with terrorism as the United Kingdom, or the same influence with respect to its anti-terrorism laws and policies, it was the launching ground for the Air India bombing. Pointing both to the Air India bombing and other events such as the border arrest of Ahmed Ressam, an illegal immigrant to Canada who had plans to bomb the Los Angeles Airport at the Millennium, 15 concerns have been expressed in some quarters that Canada may be a weak link in American anti-terrorism policies. 16 Canada also is significant because its post-9/11 security policy has taken a different path from that of the United States. 17 Canada has an official national security policy that defines terrorism as only one of many risks to human security. This policy places special emphasis on emergency preparedness 18 and includes effective review of security policies. Canada presently is holding an unprecedented public inquiry into the actions of Canadian officials in relation to Maher Arar. Arar, a Canadian citizen born in Syria, was detained in the United States when he was returning to Canada from Tunsia. He was ordered to be removed from the United States as a threat to national security and was sent to Syria. An independent fact finder appointed by the Canadian inquiry has found that Arar was tortured in Syria. He was released from Syria after almost a year s detention and has now returned to Canada. 19 Canada s public inquiry into Arar s treatment 14 For example, recent Australian legislation has borrowed from and adapted British innovations with respect to restricting the liberty of suspected terrorists through control orders and punishing advocacy of terrorism and other speech that may be associated with terrorism. Anti-Terrorism Act (No. 2), 2005, scheds. 1, 4, 7 (Austl.). 15 THE 9/11 REPORT, supra note 4, at For a survey and endorsement of various criticisms of Canadian anti-terrorism policy made by Americans, as well as criticisms of Canada s immigration policies on the basis of concerns about security, see MARTIN COLLACOTT, CANADA S INADEQUATE RESPONSE TO TERRORISM: THE NEED FOR POLICY REFORM (2006). For an alternative and, in my view, more compelling account about how Canada has altered its refugee policy because of security concerns, see François Crépeau & Delphine Nakache, Controlling Irregular Migration in Canada: Reconciling Security Concerns with Human Rights Protection, IRPP CHOICES, Feb. 2006, at 14-18, 21-25, available at The changes included decreased appeals to court, decreased legal aid, increased detention, the signing of a safe third country agreement with the United States, and serious contemplation of allowing non-citizens held to be security threats to be deported even where they will face torture. 17 See generally ROACH, supra note 11; Reg Whitaker, Made in Canada? The New Public Safety Paradigm, in HOW OTTAWA SPENDS : MANAGING THE MINORITY (G. Bruce Doern ed., 2005). 18 CANADA PRIVY COUNCIL OFFICE, SECURING AN OPEN SOCIETY: CANADA S NATIONAL SECURITY POLICY (2004). 19 Both American and Syrian officials have declined requests to participate in the inquiry.

7 2006] TRADING RIGHTS FOR SECURITY? 2157 stands in contrast to American concerns about secrecy and executive prerogatives in this matter. 20 For better or worse, Americans have an interest in understanding Canada s evolving anti-terrorism and national security policies. I. SMART SECURITY STRATEGIES THAT DO NOT INFRINGE RIGHTS Much of the post-9/11 response to terrorism has focused on new laws criminalizing a range of activities in preparation for acts of terrorism. UN Security Council Resolution 1373 supported this approach, calling on states to criminalize acts of terrorism including the financing of terrorism. The focus has been on directing criminal sanctions at terrorists and their supporters and depriving them of funds. 21 Much of the promise of this strategy has dissipated as subsequent investigations have revealed that terrorists have mounted deadly acts of terrorism with modest funds. The 9/11 Commission in particular was pessimistic about anti-financing strategies, commenting that trying to starve the terrorists of money is like trying to catch one fish by draining the ocean. 22 It expressed doubts that financing laws can be a primary weapon against decentralized terrorist groups. 23 A public report of the inquiry is expected to be released in 2006 regarding both the actions of Canadian officials in relation to Mr. Arar and an independent review mechanism for the national security activities of the Royal Canadian Mounted Police. Arar has not testified at the inquiry, but an independent fact-finder has concluded that he was tortured in Syria. COMM N OF INQUIRY INTO THE ACTIONS OF CANADIAN OFFICIALS IN RELATION TO MAHER ARAR, REPORT OF PROFESSOR STEPHEN J. TOOPE, FACT FINDER (Oct. 14, 2005), available at On the Commission s work and the terms of reference used in the inquiry, see (last visited Mar. 9, 2006). The Commission s public reports on the inquiry will eventually be made available on this web site. 20 Arar s civil law suit against various American officials involved in his rendition to Syria was recently dismissed, in large part on the basis that it related to questions of national security and foreign policy considerations that should be left to the executive and legislative branches of government. Judge Trager concluded that this case raises crucial national-security and foreign policy considerations, implicating the complicated multilateral negotiations concerning efforts to halt international terrorism. The propriety of these considerations, including supposed agreements between the United States and foreign governments regarding intelligence-gathering in the context of the efforts to combat terrorism, are most appropriately reserved to the Executive and Legislative branches of government. Moreover, the need for much secrecy can hardly be doubted. Arar v. Ashcroft, No. CV DGT VVP, 2006 WL , at *29 (E.D.N.Y. Feb. 16, 2006) (citation omitted). 21 S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001). 22 THE 9/11 REPORT, supra note 4, at Id. It has been estimated that the 9/11 attacks cost under $500,000, and the Madrid, Bali, and London attacks cost as little as $15,000 each, and that the costs of complying with anti-terrorist financing regulations far outweigh their benefits. Financing Terrorism: Looking

8 2158 CARDOZO LAW REVIEW [Vol. 27:5 Focusing on the evil and spectacle of terrorism presents the danger of distorting rational analysis not only about the probability of terrorism, 24 but also about the best way to prevent it and limit its harms. Many anti-terrorism strategies focus on deterring or disabling terrorists before they commit an act of terrorism, an approach that may discount the full range of strategies that can limit terrorism and its harms. Much can be learned from other fields. For example, epidemiologist William Haddon constructed a famous matrix evaluating countermeasures to minimize harm before, during, and after traffic accidents. 25 Haddon argued that too many resources are devoted to changing driver behavior before accidents and too little attention is paid to the environment in which traffic accidents occur and to damage mitigation after accidents. His insights have led to increased attention to matters such as highway design, the interiors of automobiles (including airbags), and the evacuation and treatment of the critically injured. In other work, I have adapted the Haddon Matrix to terrorism prevention and the limitation of harms from terrorism. I have argued that examining the full spectrum of anti-terrorism policies that can be used both before and after acts of terrorism suggests that too much emphasis has been placed on attempts to deter terrorists and not enough on regulating the environment in which they operate and on various damage mitigation strategies. 26 Before such an approach is dismissed as defeatist damage control, a neglected finding of the 9/11 Commission should be considered. The Commission found that in the Wrong Places, ECONOMIST, Oct. 20, 2005, available at displaystory.cfm?story_id= CASS R. SUNSTEIN, LAWS OF FEAR ch. 9 (2005); Victor V. Ramraj, Terrorism, Risk Perception and Judicial Review, in GLOBAL ANTI-TERRORISM LAW AND POLICY 107 (Victor V. Ramraj, Michael Hor & Kent Roach eds., 2005). 25 William Haddon, A Logical Framework for Categorizing Highway Safety Phenomena and Activity, 12 J. TRAUMA 193 (1972). 26 ROACH, supra note 11, ch. 7; Kent Roach, The Criminal Law and Terrorism, in GLOBAL ANTI-TERRORISM LAW AND POLICY, supra note 24, at 129 [hereinafter Roach, Criminal Law and Terrorism]. The Haddon Matrix, as adapted to terrorism, draws distinctions among interventions aimed at terrorists, third parties, the physical environment, and the socioeconomic environment. With respect to each category, attention is given to interventions that occur before, during, and after acts of terrorism. Most anti-terrorism strategies have focused on identifying and deterring terrorists before they commit acts of terrorism, but target hardening and weapons controls are promising means to regulate the physical environment in which terrorists operate. Non-violent outlets for grievances, and other interventions including regime change, affect the socio-cultural environment in which terrorists operate. Laws against financing terrorism, as well as laws regulating sites and substances that are vulnerable to terrorism, are mainly directed toward third parties and not potential terrorists. First response and emergency preparedness are interventions that can minimize harm during and after acts of terrorism. In addition, both harsh responses and the stigmatization of acts of terrorism after they have occurred may be interventions that affect the likelihood of future acts of terrorism.

9 2006] TRADING RIGHTS FOR SECURITY? 2159 during the 1993 World Trade Center bombing, the evacuation of occupants took four hours, whereas in 2001 between 14,000 and 16,000 people were evacuated in under one hour, due in part to improvements of procedures and facilities since the 1993 attack. 27 The Haddon Matrix suggests that increased attention to emergency preparedness, and to the regulation of third parties and the environment, can mitigate the harms of terrorism. In an extensive study published in 2002, the National Research Council concluded that better protection of hazardous materials and critical infrastructure could not only help prevent terrorism, but also make the nation safer from natural disasters, infectious diseases, hackers disrupting the Internet, failures in electric power distribution and other complex public systems, and human error causing failures in such systems. 28 Double-duty strategies that can assist in the prevention or mitigation of terrorism as well as other harms may have particular promise. A broader array of anti-terrorism strategies may also reveal approaches that are effective but do not burden rights. A. Administrative Regulation of Sites and Substances Vulnerable to Terrorism One of the most promising strategies for preventing terrorism is tighter regulation of sites and substances that are vulnerable to terrorism. The greatest terrorist threat is the possible use of nuclear material by terrorists. Graham Allison of Harvard s Kennedy School of Government has written of the dangers of nuclear terrorism that can make 9/11 a footnote. 29 He notes that at various times Al Qaeda has attempted to buy enriched uranium or acquire nuclear warheads that Chechen separatists had said they acquired from Russian stockpiles. 30 Professor Allison proposes intensive regulation of fissile material, highly enriched uranium, and weapons-grade plutonium, which could be used for nuclear terrorism. He estimates that such regulation would cost between $5 and $10 billion out of the more than $500 billion that, at that time of his writing, already had been spent on defense and the war in Iraq. 31 Even if the likelihood of nuclear terrorism remains thankfully low, such investment may be 27 THE 9/11 REPORT, supra note 4, at NAT L RESEARCH COUNCIL, supra note 11, at GRAHAM ALLISON, NUCLEAR TERRORISM: THE ULTIMATE PREVENTABLE CATASTROPHE 3, 203 (2005). 30 Id. 31 Id. at 177.

10 2160 CARDOZO LAW REVIEW [Vol. 27:5 warranted, especially if it will also help prevent accidents with nuclear material. Internationally, there is increased interest in the dangers of nuclear terrorism. United Nations Security Council Resolution 1540, enacted in 2004, calls on states to take action to prevent non-state actors from gaining access to nuclear, chemical, or biological weapons or means of delivery. 32 It also establishes a committee to consider country reports on compliance with this resolution. The most recent UN anti-terrorism convention is the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism, which focuses on criminalizing the sale and possession of radioactive material and taking steps to safeguard such material. 33 Even this Convention, however, emphasizes criminalizing the sale and possession of nuclear materials by non-state actors as opposed to the obligations of states and the international community to make every effort to safeguard and destroy nuclear material that could fall into the hands of terrorists. As in other areas, a danger exists that focusing on the evil of terrorism will lead to too much emphasis on the criminal sanction directed at terrorists and too little emphasis on administrative regulation to secure sites and substances that can be used for terrorism. Although tight administrative regulation of nuclear material may at times make it more difficult for universities and others to conduct research on such materials and may require extensive security checks on those who work with such materials, it cannot be seriously argued that administrative regulation and destruction of nuclear materials compromises fundamental rights. The Canadian experience with anti-terrorism law demonstrates how administrative regulation of sites and substances that can be used for terrorism can be eclipsed by the need to enact more visible and tougher strategies to criminalize terrorism. The immediate priority in Canada after 9/11 was to enact a new Anti-Terrorism Act 34 that created new crimes of terrorism, including crimes based on financing terrorism and participating in terrorist groups. The new law also provides for executive designation of terrorist groups and enhanced provisions to maintain national security confidentiality in legal proceedings. The Bill was introduced into Parliament on October 15, 2001 and, after a controversial national debate about its effects on civil liberties, 35 was enacted before the end of One of the 32 S.C. Res. 1540, U.N. Doc. S/RES/1540 (Apr. 28, 2004). 33 G.A. Res. 59/290, U.N. Doc. A/RES/59/290 (Apr. 13, 2005) S.C., ch. 41 (Can.). 35 See generally THE SECURITY OF FREEDOM: ESSAYS ON CANADA S ANTI-TERRORISM BILL (Ronald J. Daniels, Patrick Macklem, & Kent Roach eds., 2001).