I Preliminary considerations

How can constitutional democracies control the exercise of emergency powers?Footnote ² I begin with several important definitions: (1) An ‘emergency’ occurs when there is general agreement that a nation or some part of it faces a sudden and unexpected rise in social costs, accompanied by a great deal of uncertainty about the length of time the high level of cost will persist.Footnote ³ Emergencies can be military or economic or medical,Footnote ⁴ although in what follows I take the military emergency as the central case. (2) ‘Emergency powers’ describes the expansion of governmental authority generally and the concomitant alteration in the scope of individual liberty, and the transfer of important ‘first instance’ law-making authority from legislatures to executive officials, in emergencies. Power typically flows to executive officials because such officials are thought to be better able than legislators to act quickly, in a co-ordinated response, on the basis of adequate information.Footnote ⁵ (3) ‘Control’ means the measures taken to ensure that whatever alterations in government power and individual liberty that do occur, do not produce a higher rate of violations of fundamental human rights than happens under non-emergency conditions.Footnote ⁶ At this point I must flag an extremely difficult analytic issue – the identification of an appropriate baseline for comparison. One can imagine a political system with a relatively weak culture of rights. Consider a marginal decrease in civil liberties in such a system. Should the decrease be regarded as relatively minor because it is small in absolute terms, or quite important because it is quite large in proportion to the rights previously recognised. In what follows I attempt to avoid judgements that rest on a specification of the baseline.

I have formulated these definitions to emphasise the distinction between the scope of individual liberty in non-emergency conditions and fundamental human rights.Footnote ⁷ As many commentators have observed, we have no strong reason to take the scope of individual liberty available in non-emergency conditions to be the measure of fundamental human rights.Footnote ⁸ So, for example, a constitutional democracy might authorise preventive detention in non-emergency conditions, for defined groups and after prescribed procedures. Under emergency conditions the class of those subject to preventive detention might be expanded and the procedures for determining who falls within that class might be different from those prescribed for preventive detention otherwise. The simple fact of these changes does not mean that we are observing a failure of constitutional democracy, as long as the new system of preventive detention does not violate fundamental human rights as determined by some criteria other than those established by non-emergency practices.Footnote ⁹ The events creating the emergency might provide additional information about the general question of what should be done in response to threats to security, including ordinary crime. Or shifting authority from legislatures to the executive might eliminate a ‘veto gate’ that had obstructed the adoption of policies appropriate in non-emergency conditions.

So, with these preliminaries out of the way, how can constitutional democracies control the exercise of emergency powers? In general: by law or through politics. Legal controls on the exercise of emergency powers rely on the courts to determine whether some novel practice violates fundamental human rights; political controls rely on the interactions among important political actors – including political parties, the permanent staffs of executive bureaucracies and the people in their capacity as voters – to produce policies that do not violate fundamental human rights. I think it clear that as between equally effective political and legal controls, political controls are preferable. They are more consistent with the democratic component of constitutional democracies, and to the extent that they work they are consistent with the constitutional component as well.

In addition, the case supporting the view that legal controls are necessarily more effective than political ones is weaker than many authors appear to believe. The record of courts in emergency situations is at best mixed. Some critics describe them as ‘weak reeds’ in a crisis, others discern a pattern in which courts accede to problematic exercises of emergency powers while (in the courts’ view) the emergency is ongoing and then impose controls only after the emergency has passed (again, in the courts’ view).Footnote ¹⁰ Even the courts’ defenders do little more than describe an ‘evolving practice’ in which courts assert themselves in the midst of ongoing emergencies,Footnote ¹¹ and a sceptic might note how sporadic the courts’ interventions are, and suggest that their interventions do not get at the heartland of exercises of emergency powers.

The reasons for the courts’ weakness are rooted primarily in considerations of speed and information. Courts typically move slowly in dealing with cases arising out of emergencies.Footnote ¹² Executive governments have an array of lawful techniques they can use to retard the pace of judicial proceedings, including withholding of information until ordered to do so by the highest court. And even when courts extract information from the executive government, they may find themselves unable to assess it confidently, or even to have confidence that they have access to all the information relevant to making a sound decision.

But, if courts are weak reeds, are political controls any stronger? Or, more precisely, what are the conditions under which we can expect political controls to work well and work badly? I argue in a companion essay that under several arrays of power in the US separation-of-powers system we can expect political controls to work well enough.Footnote ¹³ Specifically, the policies that result when different political parties control the presidency and Congress might not result in violations of fundamental human rights at a rate different from that experienced in non-emergency conditions.Footnote ¹⁴

My analysis suggests that political controls will not work well when the US government is unified, as it was from 2003 to 2007. In this essay I consider the relative roles of political and legal controls in parliamentary systems, where – almost by definition – unified government prevails. This comparative exercise rests on two grounds. First, like any examination of comparative constitutional law, it simply informs us about constitutional possibilities. Second, and perhaps more important from my perspective in the United States, some features of the way constitutional systems deal with emergency powers in general are brought out in sharper relief when we examine how parliamentary systems deal with such powers.

I assume that legal controls are available in parliamentary systems; that is, I assume that the systems are not ones of complete parliamentary supremacy, although I also assume that traditions of parliamentary supremacy are strong. Still, in the systems I consider, courts have a role to play in enforcing fundamental human rights, primarily through the invocation of some domestically applicable human rights norms.Footnote ¹⁵ I argue that political controls can work reasonably effectively, although one would want to reserve some significant role for legal controls in parliamentary systems, probably a larger role than in separation-of-powers systems. After the theoretical analysis, I offer some unsystematic observations about how political controls have worked in parliamentary systems.

The starting point must be a contrast between the approach I take and the one most commonly found in scholarly commentary. Probably because that commentary focuses on legal controls, it takes the security policy adopted by executive government as given, and asks whether there are reasons to believe that legal controls (in the usual analysis) or legislative controls (in a US separation-of-powers system) will produce a better balance between security and liberty. That is, the commentary asks whether courts or legislatures can improve on the balance struck by executive government.Footnote ¹⁶ Executive government typically is said to have advantages with respect to information regarding security policy, legislatures with no particular advantages with respect to either security policy or civil liberties, and courts with respect to civil liberties. Scholars differ, of course, about whether, on balance, executive government’s institutional advantages are substantial enough to outweigh courts’, taking into account the magnitude and likelihood of mistakes if decisions are committed to one or the other institution.

In contrast, the analysis of political controls on emergency powers deals with the initial formulation of security policy. Courts are out of the picture entirely, at least up to the point we begin to consider the relative capacity of legal and political controls over the exercise of emergency powers. Importantly, in parliamentary systems the distinction between executive government and the legislature is quite weak. For example, the information available to ministries is, or can be, available to legislators. Where the parliamentary majority consists of a formal coalition between a dominant (plurality) party and one or more coalition partners, the partners can negotiate terms for their continued participation that include access to information regarding security policy.Footnote ¹⁷ As a result, the policy offered by executive government is best understood as a proposal or a bid, carrying no presumption that the proposal is better than alternatives offered by other parliamentarians.

At the end of the day we will want to compare legal with political controls. As we will see, political controls operate in real political time – that is, some political controls operate relatively slowly.Footnote ¹⁸ This might lead some to conclude, erroneously, that legal controls are systematically better than political ones, because, they believe, courts can intervene promptly when they are presented with a claim that some government policy violates fundamental human rights. That conclusion is mistaken, though, because courts operate in real time as well. Recent experience in the United States demonstrates how long it can take to get a court to issue a ruling that the executive government takes as conclusive on the question of whether its policy violates fundamental human rights.

Perhaps we could use the length of time it typically takes a court to resolve such claims definitively as the baseline, and ask whether or when political controls can operate more expeditiously.Footnote ¹⁹ Alternatively, and I think preferably, we could set some absolute baseline: the constitutional order has failed if rights-violations remain embedded in government policy for more than, say, two years. Then we would ask how many such failures occur under a regime of legal controls compared to the number under a regime of political controls subject to subsequent legal controls.

The temporal dimension of control is important as well when we distinguish at least as a preliminary matter between the formulation of policy and its administration. Political controls can operate both prospectively, to shape the policy executive government adopts, and retrospectively, to evaluate how policy has been administered. And, of course, an executive government that anticipates retrospective evaluation will take the political consequences of such evaluations into account when it formulates policy in the first place. Further, some policies are almost certain to be adopted at the highest political levels, while others might be adopted either at that level or at lower levels. A recent example of the former is the Bush administration’s programme for surveilling certain telephone calls through the National Security Agency; no individual agent would undertake such a programme on his own initiative. In contrast, perhaps, are instances of torture or coercive interrogation. Here it is not hard to imagine a ‘rogue’ agent or some ‘bad apples’ deciding to use excessive interrogation tactics. At some point, though, these practices can be widespread enough to lead to trouble for the higher ranks, who may find themselves faced with charges – legal or political – that they turned a blind eye to or even tacitly encouraged the use of these tactics.Footnote ²⁰

II Political control of emergency powers in a parliamentary system

We can set a frame around the question of political controls on emergency powers by considering what I understand to be the traditional view of constitutional review in systems of parliamentary supremacy, which I characterise – in a perhaps US-centric way – as treating constitutional law as a form of administrative law. The courts’ role is limited but important for an account of political controls: when an executive official takes an action that, in the courts’ view, threatens to violate fundamental human rights, the courts will ask whether the official’s action was authorised by statute. The aggressiveness of this inquiry can vary. The courts might take a quite general authorisation to be sufficient. More interesting, and I think likely to be more important in systems of constrained parliamentary supremacy, is the possibility that the courts will insist on a reasonably clear authorisation, and not because of some general approach to interpreting statutes but precisely because of the presence of a human-rights concern.

A clear-statement approach will not of course prevent the legislature from adopting statutes that do threaten fundamental human rights. What it does, though, is force the threat into the open. That is, parliament must be made aware of the implications of its (proposed) action, giving those who worry about the possibility that rights-violations will actually occur the chance to make their case within parliament and to the public. A clear-statement approach enables political controls even though it does not impose them. And yet, the ‘weak reed’ concern about the courts’ direct enforcement of human rights can arise in connection with the indirect, clear-statement approach: will the courts insist on clear statements when the political winds are unfavourable to human rights, or will they be weak reeds in this context as well?

How do political controls operate in a parliamentary system? On the face of things, and in many real-world cases, the proposals made by the executive government should be enacted without much difficulty. But immediate success for the executive government’s proposals is not guaranteed, even when the government has a large majority in parliament and is acting with the speed that is said to result from panicky responses to emergencies. In 1939, for example, Irish republicans began a campaign of violence in Great Britain.Footnote ²¹ In response, the government prepared the Prevention of Violence Act 1939, which ‘swept through both Houses of Parliament in two days’.Footnote ²² The government’s draft proposals contained several provisions that were struck before final enactment: the Act required that those ‘reasonably suspected of complicity’ in terrorism register with the police, but provisions limiting their travel were eliminated by the Home Affairs Committee after the Lord Chancellor objected to them as ‘unduly oppressive’.Footnote ²³ The omission of any mechanism for reviewing orders expelling people from Great Britain faced ‘a considerable challenge during the second reading and committee stages’.Footnote ²⁴ Although no provision for judicial review was included in the final legislation, the statute did end up with a provision allowing for expedited ‘appeals’ within the executive ministries, who were required to refer non-frivolous appeals to an adviser who was neither a police officer nor a civil servant.Footnote ²⁵

Why might ultimate enactment conceal difficulties in formulating proposals? Consider as a start a coalition government.Footnote ²⁶ Sometimes members of the coalition will disagree about security policy. Some coalition members may think that policies more intrusive on civil liberties are desirable, while others favour less intrusive ones. Some coalition partners may care enough about security and civil-liberties policy to threaten to defect unless government policy reflects, or at least accommodates, their views. And sometimes the threat of defection will matter a great deal, when the minority party or coalition either agrees with the potential defectors on the substance of the relevant policy, or does not care much about those policies but wishes to take office to enact other policies and is willing to accept the defectors’ security/civil-liberties policy.Footnote ²⁷

The British experience during World War II provides an instructive example.Footnote ²⁸ The executive government was a nearly all-party coalition, and maintaining that coalition was important to ensure sustained support for the war effort. The one Communist Party member in the House of Commons was not a member of the coalition, though. In early 1941 the government invoked its emergency powers to close down the Communist newspaper the Daily Worker, because in the government’s view its stories were impeding the war effort. A little over a year later the government threatened to close a popular newspaper that had published a cartoon that, Prime Minister Winston Churchill thought, would lead soldiers to believe that they were being abandoned to help price-gougers. A parliamentary debate ensued over the specifics of that suppression order, which leached over into a discussion of press suppression more broadly. The Liberal Party declared its opposition to the continuing suppression of the Daily Worker, and three months later the Labour Party conference adopted a resolution urging that the ban be lifted. As the New Statesman put it, it was ‘extremely difficult for Labour and Trade Union Ministers to be members of a Government which refuse[d] a desire so strongly expressed by the constituent bodies of the working-class movement’.Footnote ²⁹ The executive government interpreted these expressions as credible threats to leave the government coalition,Footnote ³⁰ and responded by lifting the publication ban in August 1942.

Of course there is no general reason to believe that the policies that result from this sort of bargaining and accommodation will move policy across the threshold that divides violations of fundamental human rights from respect for such rights. Sometimes the bargaining will occur entirely within the domain of respect for human rights and sometimes entirely within the domain of rights-violations. Sometimes, indeed, the bargaining may push the dominant party from a position of respect for human rights into a position of rights-violation.Footnote ³¹ Still, in some circumstances this kind of political control – that is, bargaining among coalition partners over security/civil-liberties policy – will prevent rights-violations from occurring.Footnote ³²

The analysis is not much different even if a single party can form the executive government. Begin with a single political party that all participants understand to be a coalition of more-or-less like-minded people. Here the executive government formed by that party will be not much different from a coalition government; the coalition forms before the election, in the composition of the dominant party, rather than afterward.Footnote ³³ We can expect the ties of members of these pre-election ‘coalitions’ to the dominant party to be somewhat stronger than the ties created by formal coalition agreements, although there certainly are instances of reasonably formal internal party agreements among factions. For any given level of policy disagreement, the threat of defection will be weaker than in the formal coalition. But at some point the analysis I sketched for the formal coalition will kick in.Footnote ³⁴

More interesting than the threat of formal defection, I think, are other internal party and parliamentary dynamics. First, some parliamentarians are permanent backbenchers, with no hope of becoming part of the executive government and sufficiently secure in their seats to have some significant degree of independence of the party leadership even without posing a threat of defection. Basically, these backbenchers can appeal over the heads of the party leaders to the public (and not merely their own electoral constituencies), arguing openly for the policies they prefer. And these appeals can weaken the executive government, giving it an interest in accommodating the backbenchers.Footnote ³⁵ Some ministers may have independent political bases as well, allowing them to dissent within the cabinet from the chief executive’s policy, and sometimes that dissent may be effective in reshaping policy.Footnote ³⁶

Second, there may be procedures accompanying the introduction of legislation that give parliamentarians who disagree with the executive government’s proposals a chance to have their say and even affect the ultimate policy. Constrained parliamentary systems appear to have developed institutions to advise the executive government on whether its proposals conform with the constraints the government has agreed to respect.Footnote ³⁷ New Zealand, for example, gives the relatively non-political Attorney General the responsibility for this sort of ‘rights-vetting’.Footnote ³⁸ That official has taken what seems to me a strikingly aggressive stance, issuing public comments disparaging the executive government’s policy proposals for violating rights-guarantees even in circumstances where the executive government’s position is reasonable or at worst only marginally offensive to fundamental human rights. In Canada and the United Kingdom, rights-vetting has been assigned to specialised bureaucracies. The parliamentary joint committee on human rights has ‘directed the attention’ of the executive government – and the public – to human rights concerns about several important proposals, including those dealing with the security/civil-liberties balance.Footnote ³⁹

The important feature of these institutions is that they are agencies whose charge is to assess proposals with an eye to human rights. And, like any bureaucracy with a specialised mission, these institutions seem to have done what one would expect a bureaucracy with a mission to do: they caution ministries to avoid putting forth proposals that might come close to constituting a rights-violation, and define the relevant rights broadly (with the effect, of course, of giving the bureaucracies a more important role in policy development). Of course, a powerful executive government, or one strongly committed to a particular proposal, can disregard the advice it receives. We can expect that doing so will impose political costs on the executive government, which can bear them to some extent but not indefinitely. And, if constrained parliamentarianism includes even a modest form of subsequent review – what I have called ‘weak-form’ judicial review, such as that under the Human Rights Act – the existence of a prior statement of concern about a policy’s consistency with the relevant constraints may increase the likelihood that the reviewing institution will add its voice to the prior critics’. And, anticipating that outcome and its political costs, the executive government may end up modifying its policies to steer clear of criticism by these institutions. Again, this process will not always prevent the adoption of policies that violate fundamental human rights, but it does systematically push policy away from the boundary line.

In addition to the rights-vetting institutions, the general civil service will inevitably contain some who disagree with proposals initiated by the political members of the executive government.Footnote ⁴⁰ Under modern conditions, some of these civil servants may ‘leak’ the proposals in the hopes of defeating or at least modifying them.Footnote ⁴¹ Here too, there is no reason to think that leaking proposals will always be designed to, or will have the effect of, moving policy in a more rights-protective direction.Footnote ⁴² The extent of leaking with depend, too, on the strength of legal constraints against leaking – whether the nation has an effective Official Secrets Act, for example – and on the strength of traditions within the civil service of strictly following ministerial direction on highly contentious matters.

Mentioning leakers brings me to the final set of institutions that help shape policy in contemporary constitutional systems: the press and, more generally, civil society. I think it unnecessary to do more than identify civil society as a force in policy development, because the basic point is clear: the executive government in a parliamentary system does not have a free hand in putting into effect the policies initially favoured by its leading members.Footnote ⁴³ Or, put another way, politics does indeed constrain the development of security policy even in fairly robust parliamentary systems, and even more so, I believe, in constrained parliamentary ones.

Adverse press publicity can force governments to establish commissions of inquiry. Such commissions often face serious limitations – in their terms of reference, in the degree to which they can elicit co-operation from executive government, and more. And yet, their reports – and, perhaps more important, the prospect that the policy executive government prefers might generate a commission of inquiry – can place limits on the policies the government adopts.

There is an underside to the role of civil society in regulating the exercise of emergency powers, though. The term civil society has come to have rather favourable connotations. But, in another guise some parts of civil society might be called a ‘fifth column’. That characterisation brings out another important feature of political control – roughly speaking, the extent to which there is significant disagreement within the nation over the very question of whether the nation faces a national security emergency. Consider, for example, a nation facing an internal threat because of a colonial insurgency. Some in the metropole may support the insurgents’ claim for independence. I cannot easily systematise my intuition here, but it is something like this: the degree to which political controls will operate to constrain the development of security policy will be an inverted U-shaped curve. Where there is relatively little domestic support for those said to threaten national security, political controls will be relatively weak because few will oppose the actions the executive government takes; as domestic political forces increasingly regard the purported threat as unimportant or insubstantial, political controls will become increasingly potent; but, at some point the domestic support for the threat will become so great as to generate a near civil war, thereby provoking increasingly vigorous exercises of emergency powers, escaping the bonds of political control until one side prevails in the civil conflict.

III An example: the Arar Commission

With this theoretical background, I turn to an example. My hope is to motivate additional inquiry into the conditions under which politics in a parliamentary system can control the executive government’s exercise of emergency powers, not to establish that such conditions always, or even often, occur.

Maher Arar is a Canadian citizen born in Syria.Footnote ⁴⁴ In September 2002 his return flight from a vacation in Tunisia to Canada stopped in New York, where he was questioned by US officials and detained on the basis of what they said were his connections to al-Qa’ida.Footnote ⁴⁵ In the first week of October he was ‘deported’ from the United States to Syria as part of the US programme of so-called extraordinary rendition, in which persons are transferred from US custody to the custody of nations who, US officials expect, will engage in torture or at least more aggressive interrogation techniques than they believed they themselves can use. Two or three days later Canadian officials were informed of Mr Arar’s transfer to Syria. In Syria Mr Arar was tortured and ‘admitted’ his terrorist ties.

Canadian officials reported in late October that Mr Arar was being held in a Syrian prison. In November his family began to mobilise a public relations campaign in Canada seeking his release, an effort that continued through 2003 and included an appearance in September before a parliamentary committee. Syria released Mr Arar in early October 2003. The government initially rejected calls for a commission of inquiry but by December 2003 the Security Intelligence Review Committee – an internal government committee – announced that it would examine how the Canadian security forces handled the Arar case. In December 2003 and January 2004 Juliet O’Neill, a newspaper reporter, published a number of stories clearly based on information leaked from the security services; the information was aimed at discrediting Mr Arar and demonstrating that the security services had acted appropriately in light of the threat Mr Arar posed.Footnote ⁴⁶ The disclosure of the secret information probably violated Canada’s criminal laws dealing with government secrecy, and a criminal inquiry into the leaks began. On 21 January 2004, the Royal Canadian Mounted Police (RCMP) searched Ms O’Neill’s home and office in an effort to determine the source of the leaks. This search, which was later held to violate the Canadian Charter of Rights because the statute authorising it was overbroad, produced a media uproar.

One week later the government gave a respected judge the charge of conducting an independent investigation into the Arar case. The Commission’s investigation began in June 2004, and produced information showing that Canadian officials had collaborated with US officials in dealing with Mr Arar’s deportation. The Commission released a large number of documents and held public hearings, all of which continued to place pressure on the government to acknowledge its role in the Arar case. The Commission’s public hearings ended in September 2005. A year later the Commission presented its report. It found no evidence that Mr Arar had connections to terrorism, and criticised Canadian security officials for their actions in connection with Mr Arar’s detention and rendition. The Commission also recommended that Mr Arar receive compensation from the Canadian government. In January 2007 the government apologised to Mr Arar and announced that it would pay him $10.5 million (Canadian) for its role in his rendition.

All of these proceedings occurred outside the courts. Mr Arar also filed an action in the United States seeking compensation. That lawsuit was filed in January 2004. It was dismissed by the federal district court on 16 February 2006. The court held that Mr Arar could not pursue his claim against US officials because of the national security issues connected with the claims counselled against allowing the case to proceed.Footnote ⁴⁷ As of this writing, the case remains unresolved. So, the processes used in a parliamentary system produced policy changes, acknowledgements of wrongdoing and compensation, the judicial process – admittedly, in the United States – yielded nothing.

In form the Arar Commission dealt with a problem of rectification, but its Report recommended changes in policy, not merely changes in the implementation of existing policy. Many of the recommendations were phrased in cautious bureaucratese, telling various agencies to ‘continue’ to do what they were doing. Even these recommendations might counter internal pressures to depart from established policies; the Commission recommended that the RCMP ‘should continue to adhere to and refine its policy of co-operation’ with other Canadian national security agencies.Footnote ⁴⁸ Others would reinforce standard operating procedures within bureaucracies.Footnote ⁴⁹ Serious policy issues lurked behind mild language.Footnote ⁵⁰ More important, though, were the recommendations for real policy change, the most significant of which was that the RCMP’s ‘information-sharing policies and arrangements should be subject to review by an independent, arms-length review body’.Footnote ⁵¹

In February 2007, two months after the Arar Commission released its policy recommendation, the Canadian Supreme Court issued its opinion in Charkoui v. Canada (Minister of Citizenship and Immigration).Footnote ⁵² The Court held that provisions in Canada’s immigration laws allowing for detentions of those determined to be inadmissible to Canada violated the Charter of Rights because the procedures allowed detentions based on information not revealed to the detainee, and because detentions of non-Canadians that went unreviewed for up to 120 days were unreasonable. In examining the extent to which security considerations should affect the Court’s analysis of whether the challenged provisions violated principles of fundamental justice, Chief Justice Beverly McLachlin observed that the Arar Commission had placed the ‘potential consequences of deportation combined with allegations of terrorism … under a harsh spotlight’, and that the Commission recommended ‘enhanced review and accountability mechanisms for agencies dealing with national security’.Footnote ⁵³ Chief Justice McLachlin did not rely on the Arar Commission’s recommendations, but the opinion undoubtedly capitalised on the Report and its effects on public policy and public opinion.

I would highlight a few aspects of the process. First, the commission of inquiry, as a process, was almost certainly more effective in getting at the relevant facts more quickly than an inquiry conducted as part of ordinary litigation aimed at getting some concrete redress for Mr Arar. Perhaps ordinary litigation would have eventually generated information, but the commission of inquiry was able to pressure the executive government to reveal confidential national security information to it relatively promptly.Footnote ⁵⁴

Second, the Commission was created after a political process that initially seems odd, but that in the end resulted from some important general characteristics of the ordinary politics of emergency powers. Mr Arar’s plight had received some attention in the press, but the Commission was established only after a freedom-of-the-press ‘scandal’ occurred. The issue took fire after the RCMP search of a journalist’s office and home. The police were investigating reports on the Arar case that were clearly based on information protected by government secrecy laws. What makes the investigation interesting is that the press reports were hostile to Mr Arar. So, one might have thought, an executive government seeking to limit inquiries into its programmes might have welcomed the disclosures as validating what had happened, and therefore might have let the violations of secrecy law lie, particularly because of the risks, which materialised, that inquiring into the press’s activities would escalate the controversy. The Arar Commission did not think it part of its mandate to figure out why the RCMP investigated, but it seems to me that the reason is clear (and explains the Commission’s understanding of its mandate): The RCMP is supposed to investigate violations of the secrecy laws, and it was just doing its job. That is, what I have been calling the permanent civil service ground along independent of the apparent political interests of the executive government.Footnote ⁵⁵

Finally, and perhaps most important, the entire process in Canada was political not judicial.Footnote ⁵⁶ Politicians responded to public pressure on behalf, one must note, of someone described in the secret documents leaked to the press as clearly affiliated with terrorists.Footnote ⁵⁷ We might compare the outcome of the Arar case in Canada with the resolution of challenges in the United States to detentions at Guantánamo Bay. Somewhere on the order of eight hundred people were detained there between 2002 and 2007. Approximately half of those were released from detention there, some as a result of diplomatic pressure on the United States.Footnote ⁵⁸ Not one was released as a result of a judicial proceeding.