Profiles in Terror: A Legal Framework for the Behavioral Profiling Paradigm

Authors: Justin Florence and Robert Friedman
Citation: (2010), 17 Geo. Mason L. Rev. 423

This article discusses the doctrinal legality of “SPOT” (a behavioral profiling program in operation in airports and urban mass transit systems across the United States). SPOT stands for “Screening Passengers by Observation Technique”. The program involves screening passengers based on their facial movements, body language, sweat levels and other behavioral elements. The authors consider the program’s doctrinal legality under three different U.S. constitutional provisions: the Equal Protection Clause, the Fourth Amendment, and the Due Process Clause. They argue that this program, if operated responsibly and correctly, would not violate U.S. constitutional rights and would also be consistent with core civil liberties. In support of this argument, the authors discuss the scientific merits of the techniques used in this kind of program and its benefits.

The weaknesses of the program especially in relation to concerns over racial profiling and whether such programs may simply be racial or ethnic profiling in disguise are also discussed and examined along with discussions about officer ability to interpret behaviors. The authors cite several reasons for concern about the potential that SPOT (and similar programs) may be racial or ethnic profiling programs in disguise. These reasons include: (1) the fact that behavioral profiling criteria are not made public and may therefore include criteria based on race, religion and ethnicity, (2) that for whatever reason, objective, non-racial criteria, applied evenly and appropriately by Behavior Detection Officers (BDOs), still end up targeting a disproportionately high number of people from certain classes since travelers of certain races or ethnicities may act or appear differently in airports because they are conditioned to believe there is a greater likelihood of being stopped or questioned and (3) the potential for unconscious racism by BDOs.

Furthermore, the overall reliability of such programs come into question when the authors point out that the facial expressions accompanying a terrorist's response to a BDO query might not register under the Facial Action Coding System (FACS) framework which SPOT relies on, and the fact that people can suppress their emotions to elude security personnel.

The authors conclude with the proposal of an ongoing oversight system done by the executive branch to ensure that behavioral profiling programs are designed and operated based on “sound, peer-reviewed, properly applied scientific research” that involves the use of various tools such as Scientific Validity Statements, Privacy Impact Statements, quantitative auditing as well as mechanisms for whistleblowers.

Posted by Agnes Tong (Windsor Law II)

Report: Racial Profiling a Fact of Life When Travelling

Despite announcing last month that Canada’s border security would focus its attention on identifying irregular or suspicious behaviour and not engage in racial or ethnic profiles, it seems once again the government is being called on to do more to ensure Canadians’ constitutional rights are being protected and dignity preserved when they choose to travel.

This week the International Civil Liberties Monitoring Group (ICLMG) released a revealing report containing two years’ worth of studies documenting the personal accounts of many that feel they were, without explanation, hassled by security at the border or altogether denied passage because they had been added to no-fly register or watchlists.

The ICLMG report suggests, amongst other things, that members of Arab and Muslim communities have had particular difficulty in their travels.

For example, a Montreal-area student named Hani Al Telbani was prevented from boarding a plane to Saudi Arabia in June 2008. In an independent review of its no-fly rosters, Transport Canada was urged to immediately remove Al Telbani’s named from and conduct a sweeping review of the no-fly register. However, the consultant’s findings went deeper. It seems the officer that issued the emergency direction to prevent Al Telbani from flying was never authorized to do so, and that subsequent decisions of an advisory group, including transport officials, the RCMP and CSIS, to keep Al Telbani on the register were made “without legal authority” or parliamentary scrutiny.

However, the ICLMG report also notes the increasing number of watchlists and databases that are being used to monitor North American travelers and how Canadians’ personal information is being shared with international government bodies without their knowledge or consent. The ICLMG report implores the government to conduct a full audit of the no-fly register, streamline how the borders are currently being regulated, as well as seriously consider the legal and Charter implications of the current regime.

One can be forgiven for asking why and how it is Canadians continue to find themselves in these situations when we have seen the serious consequences and torture that has resulted from second-rate intelligence and racial profiling. More than three years ago, Justice O’Connor released his report on Canada’s involvement in the rendition and torture of a fellow Canadian Maher Arar. Included in Justice O’Connor’s report were recommendations for increased and more centralized oversight of security border security and intelligence gathering and sharing so similar mistakes and abuses were not repeated in the future. And yet one need only read the ICLMG report to realize that racial profiling occurs every day consciously and subconsciously on major and minor scales with lasting negative effects.

Posted by Jeremy Tatum (Law I)

Delay marks attempts to seek redress from wrongful inclusion on "no fly list"

In May 2004, Toronto born architect and cartoonist Shahid Mahmood was unexpectedly prohibited from flying from Vancouver to Victoria on an Air Canada flight. At that time, there was no official "no fly list" in Canada.

CBC's The Current did a story on his ordeal and the issue of "no fly lists." Click here to listen to the story.

Amnesty International has also commented on the case. See "Amnesty calls for implementation of Arar Commission recommendations for improved review of national security issues in Canada - Open Letter."

In November of 2007, Mahmood asked the Canadian Human Rights Commission to investigate. See "Shahid Mahmood To File Human Rights Complaint Against Air Canada Over Canada’s Unofficial No-Fly List."

More than two years later, he finally heard back from the Commission and learned the reason he was prevented from flying was because he had been “flagged” as a potential security risk.

Over the years, Air Canada provided several conflicting reasons as to why Mahmood was prohibited from being a passenger on one of their flights – all of which have proven to be unfounded. Nevertheless, Air Canada has maintained that they do not engage in racial profiling and have not provided redress for Mahmood in any way.

Despite that Mahmood has since flown (although not to the U.S.), his ordeal highlights the inadequacy of the Canadian Human Rights Tribunal to promptly respond to claims made. It has now agreed to conduct an inquiry. This lack of timeliness is clearly unacceptable for a body that has been created to ensure that human rights of Canadians are protected.

The Tribunal’s tardiness has only added salt to a very open wound.

Posted by Claire Doughty (Law II)

Racial profiling makes us less safe

Focusing security efforts on Muslims is far too general to be of assistance -- and can inhibit collecting genuinely useful intelligence

By David M. Tanovich, Ottawa Citizen (January 8, 2010)

Once again we are debating the reasonableness of racial profiling following the failed Christmas Day bombing.

That the issue is being debated so openly and fervently is probably not a great surprise given the fear engendered by the thought of airline bombings, and since most proponents of profiling have no idea what it is like to live every day under a cloud of suspicion.

It would appear that rather than address the human rights violations and collateral damage caused by profiling, the focus has shifted to so-called common sense, or as Leonard Stern wrote in his Thursday column "What anti-profilers don't get," to statistical generalization arguments.

As an "anti-profiler," I want to respond to these arguments.

The idea that it is only common sense to focus on young Muslim men is grounded in the belief that these attributes have some value to security officials in finding the next terrorist.

However, experience and logic paint a very different picture. Experience tells us that, generally speaking, profiling does not work in the criminal law or security context as a means of finding the proverbial needle in the haystack. Countless examples can be cited, from the Virginia Sniper (whom the profilers were convinced was white) to the 1986 case of an Irish woman who was pregnant and whose Palestinian boyfriend had planted a bomb in her suitcase as she travelled from London to Tel Aviv.

It is not surprising then that no one can point to a case where racial profiling actually worked to stop a terrorist from boarding a plane. What works is good intelligence and screening for truly suspicious behaviour.

Meanwhile, logic tells us that reliance on profiling of any kind will only serve to put us in greater danger.

Osama bin Laden or those who have taken his place are well-trained with considerable intelligence experience (let's not forget that bin Laden, for example, received training from the CIA). They are well aware of the profile, which is why each airline or subway attack has been carried out by someone who doesn't fit the profile of those who committed the last attack.

Indeed, before 9/11, bin Laden was attempting to recruit would-be terrorists who did not fit the profile. For example, Jack Roche, a White British-born Australian, met bin Laden at a training camp in Afghanistan and was told to recruit white Australians. Roche would later become the first Australian convicted under its anti-terrorism legislation for his involvement in an al-Qaeda plot to bomb the Israeli embassy in Canberra.

Two other white men caught training in Afghanistan (American John Walker Lindh and Australian David Hicks) would have been prime candidates to carry out attacks under the radar had they not been caught. One thing is for sure, it is not likely that the next terrorist attack in an airplane or subway will be perpetrated by an individual with ties to one of the 14 countries that form part of the new terrorist watch list.

The profile is not even a profile.

The fact that all of the attacks have been carried out by Muslim men provides far too general information to be of assistance. To take it out of the terrorism context, we know that in Canada, much more than 95 per cent of those who commit sexual assault are men and the overwhelming majority of those men are white. How do these facts help law enforcement find the next rapist or identify the last one?

Adding country of origin or travel doesn't make it any better. There are more than 500,000 Muslims in Canada, between one and three million Muslims in the United States and 1.5 billion in the world. Fifty-four countries in the world have significant Muslim populations and there are terrorists in every country from the United States and Canada, to England.

Countless hours will be wasted targeting individuals simply on the basis of religion, skin colour, citizenship or travel. Not only will we be wasting limited resources and allowing a terrorist who does not fit the profile on a plane but profiling will only further inhibit intelligence gathering because it will further alienate those individuals and groups who may have valuable information to share.

As if the haystack were not big enough, it is virtually impossible to determine by a quick visual scan who is the needle. Names, skin colour, citizenship will not always provide an answer as to who is Muslim.

Finally, let us not forget that the December attack could have easily been stopped with proper intelligence sharing and with a focus on suspicious behaviour such as the attacker's agitated state, his travel from Amsterdam to Detroit without baggage and the purchase of his ticket with cash. The same can be said about 9/11. The terrorists were travelling with expired visas, purchased a one-way first class ticket with cash and had learned to fly without also learning how to land. Focusing on behaviour and not screening thousands of innocent individuals is the most effective way of keeping us safe.

This is the common sense approach, not profiling.

David M. Tanovich is a law professor at the University of Windsor and author of The Colour of Justice: Policing Race in Canada. He is also academic director of Windsor Law's Law Enforcement Accountability Project (LEAP).
© Copyright (c) The Ottawa Citizen

Committee on Public Safety and National Security report urges government to create independent national security review body

This month, the Standing Committee on Public Safety and National Security issued its "Review of the Findings and Recommendations Arising From the Iacobucci and O'Connor Inquiries." These inquiries exposed that Mahar Arar, Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Narreddin were victims of "inaccurate intelligence sharing practices by Canadian security agencies..." The inquiries also "...exposed the glaring lack of civilian oversight of our national security activities." The report begins with the recognition that in the wake of 9/11, anti-terrorism efforts have "resulted in the racial profiling of members of the Muslim and Arab communities ..."

In its report, the Committee expressed strong concerns that all of the O'Connor recommendations had not been implemented, particularly, those concerning oversight. It issued the following five recommendations:

RECOMMENDATION 1:
The Committee reiterates the recommendation made in its report presented to the House of Commons on January 30, 20071 and recommends that the Government of Canada recognize the urgency of the situation by immediately implementing all the recommendations from the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar.

RECOMMENDATION 2:
The Committee recommends that the Government of Canada immediately issue regular public reports on the progress made in implementing the findings and recommendations arising from the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar and the Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki,
Ahmad Abou-Elmaati and Muayyed Nureddin.

RECOMMENDATION 3:
In consideration of the harm done to Mr. Almalki, Mr. Abou-Elmaati and Mr. Nureddin, the Committee recommends:

• That the Government of Canada apologize officially to Mr. Abdullah Almalki, Mr. Ahmad Abbou-Elmaati and Mr. Muayyed Nureddin.

• That the Government of Canada allow for compensation to be paid to Mr. Almalki, Mr. Abou-Elmaati and Mr. Nureddin as reparation for the suffering they endured and the difficulties
they encountered.

• That the Government of Canada do everything necessary to correct misinformation that may exist in records administered by national security agencies in Canada or abroad with respect to Mr. Almalki, Mr. Abou-Elmaati and Mr. Nureddin and members of their families.

RECOMMENDATION 4:
The Committee recommends that the Government of Canada issue a clear ministerial directive against torture and the use of information obtained from torture for all departments and agencies responsible for national security. The ministerial directive must clearly state that
the exchange of information with countries is prohibited when there is a credible risk that it could lead, or contribute, to the use of torture.

RECOMMENDATION 5:
The Committee recommends, once again, that Bill C-81, introduced in the 38th Parliament, An Act to Establish the National Security Committee of Parliamentarians, or a variation of it, be introduced in Parliament at the earliest opportunity.

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

CSIS did not disclose informant failed polygraph

On June 5, 2009 the Federal Court released details of the “significant” information that had been withheld by CSIS about a human source. The expurgated version of the top secret May 26th letter delivered to Justice Noel reveals that the informant who had implicated Mohamed Harkat as an al Qaeda operative did not pass a polygraph in 2002. The polygraph had been administered because of undisclosed issues that caused CSIS to question the informant’s loyalty to the Service. Although the polygraph results indicated that the informant had been truthful about his own associations with other agencies or militant organizations, the examiner concluded that the informant lied when asked other questions, presumably about Harkat. CSIS had previously disclosed to the court that the informant had been truthful about certain questions – but failed to disclose the negative polygraph results related to Harkat.

The expurgated letter also reveals that Justice Noel has been urging CSIS to approach “foreign agencies” to reconsider their position on the release of their information relevant to the case. Such consent is required by the third party rule, pursuant to which information that originated with a foreign agency is protected by national security confidentiality unless the foreign agency lifts its caveats. CSIS had previously refused to seek consent again from the relevant agencies, but as a result of the developments involving the informant, CSIS confirmed on June 5 that the Ministers have directed CSIS to seek the consent of foreign agencies to release information to Harkat.

CSIS is clearly worried about its credibility given these events. In his June 5th letter, Michael Duffy, CSIS’ senior general counsel, acknowledged the seriousness of the issue and stated that the “Service is resolute in its determination to restore judicial confidence” in the integrity of the Service’s evidence and in the credibility of its employees. Duffy announced that an internal investigation is being conducted into the matter, and all security certificate related human source matrices (disclosures) were being reviewed by two intelligence officers, two senior managers and a Department of Justice lawyer.

For its part, the Court is recalling three CSIS witnesses who had previously testified in closed hearings. Justice Noel has also reserved the right to call other witnesses should circumstances so warrant.

In an interview with the Globe and Mail, Harkat’s lawyer Norman Boxall stated that in light of all of the facts, he can only conclude that the negative polygraph results had been buried. This is particularly problematic in security certificate cases since none of the original notes of interviews have been kept and only summaries prepared by CSIS have been provided. Given that CSIS had actively misled the Court, Boxall believes that none of these summaries can be trusted, and that the integrity of the security certificate process is in question. He also commented that CSIS cannot be relied on to review its own procedures, and that any serious review should be conducted by an outside body such as a judge or the Security Intelligence Review Committee.

Posted by Professor Jasminka Kalajdzic, University of Windsor, Faculty of Law

CSIS hid evidence in Harkat case

Disturbing news of CSIS misconduct emerged last week in the security certificate review hearing of Mohamed Harkat. Federal Court Justice Simon Noel released an unprecedented decision ([2009] F.C.J. No. 619) ordering CSIS to disclose the name of a key confidential informant, and to produce its uncensored file on the informant, to the two special advocates charged with protecting Harkat’s interests in the in camera proceedings.

Justice Noel’s ruling came a day after CSIS delivered a top secret letter to the judge acknowledging that information about the CSIS source, dating from 2002 and 2008, had not been presented to the Court. Justice Noel had specifically asked for all evidence relevant to the reliability of the witness in an in camera hearing last year and was assured all had been given. The new information, wrote the judge, is “significant”, and goes to the weight to be given to the informant’s evidence.

Late last year, the special advocates sought disclosure of CSIS’ intelligence files and access to CSIS informants who had implicated Harkat as a sleeper al Qaeda operative. At that time, the Ministers took the position that they had complied with the Court’s previous disclosure orders and had provided all of the information required to be disclosed in accordance with the Supreme Court of Canada’s decision in Charkaoui #2, [2008] S.C.J. 39. The Ministers advised the Court that the special advocates were in possession of all the information in the possession or control of CSIS regarding Harkat. On this basis, Justice Noel rejected the request for further disclosure, and further held that CSIS informants’ identities were protected by covert human intelligence source privilege, analogous to the common law police informant privilege.

In last week’s ruling, however, Justice Noel referred to the one exception to the rule – if failure to disclose the information would constitute a “flagrant breach of procedural justice” and bring the administration of justice into disrepute. After reviewing the contents of the Ministers’ letter, Justice Noel concluded that “the Special Advocates have a need to know the contents of the human source file even if this results in the revelation of the source's identity. The rule of law requires no less. Once the Court has evidence that leads it to question the completeness of the information being provided to it by the Ministers, in apparent violation of their obligation of utmost good faith, it must allow the Special Advocates access to all information which they have a need to know” (at para. 14).

In light of “possible prevarication” by CSIS witnesses and the withholding of important evidence, Justice Noel also stated that the Court would review all orders issued and evidence provided to date “to see if any further judicial action is required to preserve the integrity of the administration of justice” (at para. 15). The hearing to assess the reasonableness of the security certificate has been postponed.

In the meantime, Justice Noel is considering submissions by Harkat’s counsel that a search of Harkat’s home in mid-May 2009 was unconstitutional. Thirteen Canadian Border Service officials, three police officers and three dogs searched the home and seized, among other things, photo albums, Harkat’s wife’s computer (containing correspondence with Harkat’s counsel), and her agendas. During the June 3rd hearing, Justice Noel expressed concern that the search was “out of proportion” and “extremely instrusive”.

Posted by Professor Jasminka Kalajdzic, University of Windsor, Faculty of Law

SIRC identifies concerns with Canada's spy agency's investigation of terrorism and reliance on information obtained by torture

The Security Intelligence Review Committee (SIRC) is a body created in 1984 and empowered under the Canadian Security Intelligence Service Act to review the actions of the Canadian Security Intelligence Service (CSIS), Canada's spy agency. It also investigates citizen complaints about CSIS. The SIRC review model was discussed recently by the Supreme Court of Canada in Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 at paras. 71-74.

In its 2007-2008 Annual Report, SIRC pointed to a number of problems with the investigation of suspected terrorist activity. In one instance, SIRC was critical of the failure of CSIS to include the relevant literature concerning whether a particular group was a terrorist organization in the "targeting approval process." In another investigation involving what CSIS calls "second-generation terrorists" or "homegrown" terrorists, CSIS had failed to obtain the proper approval before it sent a "human source" to obtain information within a sensitive institution (e.g. academic, political, media, religious or trade-union fields). There were also concerns raised about the investigation's target-approval documentation.

SIRC also recommended that CSIS adopt the recommendations made out of the Arar Inquiry as it relates to Canada's dealings with countries or agencies that use torture as a means of gathering information. As SIRC put it in their review:

Based on these facts, SIRC found CSIS is concerned with human rights, but nevertheless may use information obtained by torture. Although it did not find a “total lack of concern” for evidence obtained by torture, SIRC did find that CSIS focused on the impact that torture might have on the reliability of information used in carrying out its responsibilities under the CSIS Act, rather than on its obligations domestically under the Canadian Charter of Rights and Freedoms and the Criminal Code of Canada, as well as internationally under the treaties signed by Canada that absolutely reject torture.

Posted by Professor Tanovich