Lecture 11 Tuesday, August 6, 2013
• There’s a segment of this course that evolves from our Red Scare cyclical nature of
societal paranoia, national security fetish--- it relates to espionage, spies, treason.
• You don’t frequently hear those words in contemporary context
• There’s a big to-do in the US with the guy in the armed forcies who had hooked up with
the Wikileaks group…the media broke up over Russia, irrespective of the fact that they
leaked stuff that was generally known anyway. If anything, made public servants more
careful about what they say and who they talk to.
• In Canada, the Fixstill Resident…he got 25 years. Canadian soldier who had been
transferring information to the Russians. Sticks out because you just don’t hear about it
• What is treason these days?
• The more access that you technologically have to information,t he fewer restrictions
there are the release/transfer of that data, renders the whole area very vague and
• When you choose to share something with someone, it’s not like the old spy days of
leaving a physical package on a bench for someone to pick up…what really constitutes
treason? In a larger ethical sense, in a world where sometimes overinformed and driven
crazy by our sense of outrage at certain things (i.e. environmental enthusiast does
something because he knows that a particular state is complicit in some activity like
killing dolphins) and you happen to know where something’s going to take palce and tell
your activist friends, then you’re charged with treason because you’re sharing a secret,
and yet you take th view that you were broadcasting a wrong, how can that be treason?
• The concept of betraying the king/queen has certainly changed over the centuries
• But anywy, there’s certainly a treason provision—we’ll look at that next week.
• Read some of the books/magazines, look for names like Alger Hiss (one of the most
famous cases on perjury, and the Communist scare…wrapped the American nation, led
the way to McCarthyism, gave rise to the career of Nixon who was previously a nobody,
managed to get into the Huac committee and lead an investigation on Hiss…statesman,
diplomat with distinguished education, now charged in 1948 with having been with
someone in Communist underground…
• BOOK: “Perjury: The Hiss-Chambers Case” by Allen Weinstein.
o Chambers was the senior Time editor who admitted to being a member of the
Communist underground at some point
o Relates to the controversial period of 1920s and 30s when many of the
intelligentsia outsie of Russia (UK, Canada, US) flirted with Communism—you
might have been part of a club on campus or something. Many distinguished
people were nominally in the club but still patriots, etc. o Great book.
o Sacco-Vinzetti book was extraordinary, about legal procedure...
o Picture of the young Alger Hiss who was a law clerk for the most famous
Americna justice of the time (Holmes)…he went to John Hopkins university,
picture of him in his undergrad years, on international committees, worked with
President Truman after Roosevelt died…
o All hell broke loose when Chambers dropped a bomb.
o Edgar Hoover (prosecutor)…the editor resigned and died, still obsessed with the
case, the prosecutor became a judge, the congressman became president
(Nixon)…not much integrity to the investigation
o This case is fascinating because it shows you the slogans and matnras of politics
when politicians ride on the insecurity of the day in order to get some limelight
o Hiss, who had served in prison and been through hell, managed to get his bar
membership back…years later, having outlived everyone in the case, and the
Soviet Union having fallen apart…
o Question everything! Don’t accept anything on face value.
o Weinstein who wrote it was a distinguished author, had access to the FBI, office
of secret service, Hiss’s defence papers, etc. This was going ot be the thing.
Despite being attracted to the personality of Hiss, Weinstein felt at the end that
he proably was guilty.
o The trials were filled with things like ballistic tampering, jury tampering… Most
likely, the FBI had tampered with a typewriter and constructed on that they
thought was the key one Hiss used to write stuff to the Soviets…Hiss denied this
all the way through.
o When the walls came down (1989) and new republics emerged, Hiss petitioned
Dmitri Antonovich (general, who had become Yeltsin’s military advisor) and said,
“So? Tell me.” Russians reviewed their files, in 1992 found no evidence that he
was ever a member of the Communist party.
o You can be a cynic and say they’re just covering their tracks, but the Cold War’s
over. Why would they lie?
o A bunch of research found that there’s no evidence to suggest that Hiss was a
paid or unpaid agent of the Soviet Union
• The case of the Rosenburgs
o They were two Jewish members who they assumed were part of the Communist
party, electric chair for giving info to the Russians
o The Atomic Spy Case.
o Julius and Ethel Rosenburg—also a love story. o Right in the transitional period..
o Also spilled into Canada—Igor Gusenko, who was the Soviet functionary here in
Canada who defected just downtown here and disclosed info that fed into the
Atomic Spy case, the fact that there had been subversion of the British spy
network by KGB agents…inaugurated the Cold War officially.
o There were the Gusenkos and the Rosenburgs
o Interesting about the Rosenburg case: their two sons have campaigned almost
until recent years, since the 50s when their parents were electrocuted…outcry to
clear their name. Similar post-Wall scenario, further information was given from
Soviet agents that yes, Julius had conveyed information about bomb sighting
during the WWII. Ehtel had not been an agent and had not conveyed classified
info. Travesty about judgement and paranoia of the day.
o Their in-laws turned them in for a deal. They were more complicit!
o Julius was Jew from Europe who rightly hated the Nazis, didn’t have qualms with
sharing info that would help end the Nazis. He didn’t in fact cause nuclear
destruction or en dthe Manhattan project…
• Igor Gusenko case, Rosenburg case, Hiss-Chambers case.
o Their progress through the courts and media, their reception by the public tend to
avoid the real issues, not dealth with candour
o In the great cases, the trials are not about guilt or innocence but about ideas
o Great patriotic railroading characteristics tend to create horrible legal results…
o Hiss-Chambers case propelled Nixon into prominence, as member of the Huack
members committee, which prevailed over the Communist hearings…
o An interesting period, an interesting time
o We can be a little more philosophical about questioning terrorism, what it means,
what its impact is, whether we’re taking long-term or short-term solutions
o The drones might create a short-term solution but will it be long-term?
o Terrorism or crime is always going to be with us, so what’s our real policy?
• There is an excellet movie: Goodnight, and Good Luck. Gives you the flavor of the
Communist witch hunt era, McCartny.
• Case that show’s government’s philosophy toward corrections, law: ours is geared
towards reacting, stuffing the miscreants back into double bunks, out of sight
o The Omnibus Crime Bill and mandatory sentencing
o They don’t prevent crime, don’t treat criminals or mentally ill people o They just react
o Quick fix, play to the slogan of “get tough” but not going to the root of it
o The head of Ontario’s review board (Dr. Schneider) has made a comment on the
handling of the release of offenders who are found not criminally responsible on
reason of mental disorder (ex. Case of Mr. Li, who decapitated a passenger on a
bus; Mr. Schonberg who killed his children in BC)
These cases are grizzly, but not the usual fare of our criminal courts
And yet you have the government bringing in bill C-54
Lengthens the time between reviews of those individuals in detention
When they’re found not criminally responsible, can be sent to an
institution where they’d be released when found no longer a risk to
But rather than increase the funds, skill, expertise in helping a person to
be able to reintegrate into society, the government is increasing the time
If someone is getting better, why keep them any longer? What’s the point,
other than just being punitive or ignorant?
Statistics show that there’s a higher recidivism rate for mentally ill persons
who are released from conventional prisons. However, considerably lower
rate for those found not criminally responsible who are released from
mental care facilities
Schneider: there is no evidence to suggest that the current system isn’t
working. Pointing to significantly lower rates of reoffending amongst those
who go through the not-criminally-responsible system.
Woman in Douglas Institute found that the rate for those found not
criminally responsible of recidivism is just below 20%, compared to 33.5%
of inmates from prisons. So why are we focusing on the mentally ill? Why
aren’t ew getting them out o fthe regular justice system?
• Romeo Daillaire’s book “They Fight Like Soldiers, they Die Like Children”—now a
documentary film, going to appear in Canadian theatres starting in May.
o Book points out that there are more than 250,000 children involve din at least 17
conflicts around the world who are under 18 years old. At least 40% of them are
girls who are either sex slaves or child soldiers in the other sense.
o Daillaire founded the Chld Soldiers Initiative, most internationally recognized
spokesperson for that cuase • Controversial Canadian civil rights and immigration lawyer, Rocko Galati spoke out
closely after 9/11 events, when Bill C-36 was being ratcheted up and giving state the
ability to do things that it hadn’t had before:
o “19 murdering bastards got on planes on September 11, and now 300 million
people are supposed to lose civil liberties that have taken 800 years to acquire…
we’re supposed to lose it all because of a terrorist act? All because of some
ongoing neverendig threat: terrorism. It’s the bogeyman.”
o You don’t find many Canadian lawyers speaking about anything at all, let alone
that compelling phraseology
• Canada’s legislative response to 9/11:
o Bill C-36 (the Anti-Terrorism Act): assented to in December, came into effect
December 24, 2001. Probably one of the fastest pieces of legislation to become
an actin Caanda’s legislative history
o Question whether it’s fully meritorious
o Most criminal and human rights lawyers have always been of the view that the
act wouldn’t pass Charter muster, and in various respects it doesn’t
o There was also Bill C-35 (Public Safety Act), preceded by Bill C-52 which was
killed because it would have allowed a minister to declare “war zone” anywhere
in Canada, what would have been abused…look at the Winnepeg general strike
after WWI with ministers deporting people without any procedure whatsoever
because they thought they were detrimental to Canadian peace and order—a lot
of kerfuffle about that. Given the anxiety and paranoia.
o If that had gone through, woud have been shades of Quebec 1970 again and
invocation of the War Measures Act.
o Also Bill C-11—the Immigration and Refugee Protection Act. Not sure what
protection has to do with it…it’s what was added to the existing immigration act.
o The Proceeds of Crime, Money Laudnering, and Terorist Financing Act—
replaced the existing money laundering act
Caused a kerfuffle—at one point, required lawyers to filch on their clients
if they thought they were conducting suspiciously large financial
Idea that it was financing terrorists..
But it’s created problesm for Iranian immigrants transporting funds back
home. We have many immigrants with families back home for whom they
work hard and send money back. This suddenly becomes suspicious.
Charities are under the gun.
You don’t know whether a charity is financing terrorists, and if you donate
to it, you suddenly become a suspect! It’s meant to capture extraordinary financial transactions that might cause
concern, but there’s never been one!
Is it an unduly target?
Recently, Iranian Canadians who are running into amss problems with
Canada Trust freezing their accoutns for no reason other than the Iranian
origin. That idea that Iran is about to drop a nuclear bomb…
• Marc Levign (University of California) right after 9/11: let’s think about things. Article, “10
Things to Know about Terrorism”
o It’s hard to define in its broadest sense
o Can be thought of as threatening of civilians tor bring about legal/social change
o Difficult to differentiate betweent errorism and acts of war
o Perception is very important
o In the 80s, Bin Laden was hailed by Cheney and others as a freedom fighter. At
the same time, the same Cheney considered Mandela a terrorist.
o But you have to balance this with UN definition: all war crimes will be considered
acts of terrorism
o Where are the terrorists today?
Al-Qaeda has become very broken down, more clusters of cells, more in
There are at least 45 terrorist groups outside US, at least 7 rogue states
(Iraq, Iran, Syria, Cuba, Afghanistan, etc.)
The Palestinian now dead Arafat was once a terrorist, but now not
considered as such.
Sinn Fein’s Gerry Adams became leading political figure in the much-
pacified Northern Ireland
At least 3 ormer Israeli prme ministers were self-avowed terrorists. And
they justified for their cause.
Putin who tries to hard to be a swell guy, posing fo pictures everywhere,
has been carrying on a dirty war in Chechnya which has all kinds of
horrors, can be viewed as a war criminal in that sense
Question the obvious—what is terrorism and where is it?
• National panel of jurists, judges from 7 countries in 2008 issued a report o One of the judges on this panel was Justice Ian Viney (at the time in the
Supreme Court of Canada)
o They were addressing cosenquences of pursuing counter-terrorism in the west
o Questioning the role of the justice system in addressing counter-terrorism. Why
do many people in counter-terrorism feel the need to set up separate justice
system to put themselves, their agents, border guards, spies, officials, etc. above
o The panel came to the conclusion that it was important to dispense with the war
mentality. Terrorist suspects and agents should cease to think of it as existing
outside of the rule of law.
o The Mahar Arar affair—he said that Justice Conner’s decision in his case…the
lessons had not been learned in that inquiry, extraordinary rendition still going on,
policies go wrong when a state becomes paranoid about its national security
o This commission went to Bogota, Doha, Belfast, Cairo, Ottawa, and Washington.
o On the Arar case: “it was a model of how transnational intelligence should not be
happening”—that probably didn’t get a lot of press here in Canada
• Lawrence Martin (with the Globe and Mail) wrote a column under the title: “Paranoia,
Anyone? Seeking an End to Security Excess”
o Not saying there should be an end to security altogether, but be rational about it
o He posed the question: “for a sorry sight that exemplifies paranoia…head down
to Sussex Drive and watch the barricades in front of the US embasy”
o If someone wanted to painta portrait of an intimidated country, they could choose
worse than that locale
o Most militarily powerful country cowers behind these walls intimidated by the
most ewakly armed country in history (terrorists have no armies, no nation)
o The more silence there is, the more fear. The thing about paranoia is that the
sourc,e methodology, etc. is unknown. If you can sell that absence of knowledge,
o Our era of overreaction provides opportunity for leader to forge a different
mentality, a culture of courage to replace the on eof fear
o Roosevelt’s phrase during wwii: ‘all we have to fear is fear itself’
o The call goes out for an Atticus Finch, a leader with courage to accept that there
always have been and always will be terrorist threat. Great nations do not get
threatened by that fact but move on.
• If we’re going to have a rational dialoge in this area, there are three sections: o Ethics
Survey and explore the science of human conduct, assess a
contemporary erosion of citizen trust in governments
It’s genetic in the Republicans, its most extreme version goes in the
survivalists who hang out waiting for Armageddon with their tin cans and
How can we become robustly self-confident again, and attain some moral
credibility in the world stage?
Canada isn’t consistent with its criminal law philosophies, domestic as
opposed to international. We’ve withdrawn our commitments in Africa,
imbalanced about our presence in th Middle East (notably the Palestinian-
Israeli conflict)…if you line up the miscues with Arar, Abdel Ranzig,
Amalki, Omar Khadr, why would you have a great deal of faith in CSIS
and the criminal law system in Canada? Do you trust them with having
some of your civil liberties? Do you feel that they need to have them?
In a globalized era, you can’t believe that good fences make good
Bush’s hilarious attempt to build an actual fence between US and
But the Berlin Wall came down. There’s a wall up in West Bank in Israel,
and prof questions how the Israelis can put a wall up. It evokes
concentration camps and enslavement.
Good movie about that: “Inshallah”—tough film.
• Directed by a Quebec woman, stars a Quebec actress
• A woman doctor who works as an obstetritian in Palestinian
refugee camp but lives on the Israeli side, travels back and forth
• Sure doesn’t equal what Baid said about his visit there
Who si the real enemy?
Is itan ideology? Is it Islam? Are you so afraid of a counter-religion? Are
you faith-based in your apprehensions? Are all theocracies necessarily
evil and terrorist in their nature?
The US is theocratic state, always going on about God, but they’re
dropping drones on the Middle East…
The fanatics among us as opposed to the faiths ou