VOLUME 16 • NUMBER 2 • FEBRUARY, 2012 Table of Contents - SPECIAL ISSUE review Introduction 129 Redrawing Security, Politics, Law And Rights: Reflections On The Post 9/11 Decade Alexandra Dobrowolsky and Marc Doucet, Guest Editors Articles 139 The Post-9/11 National Security Regime in Canada: Strengthening Security, Diminishing Accountability Reg Whitaker 159 Failing to Walk the Rights Talk? Post-9/11 Security Policy and the Supreme Court of Canada Emmett Macfarlane 181 Insecure Refugees: The Narrowing of Asylum-Seeker Rights to Freedom of Movement and Claims Determination Post 9/11 in Canada Constance MacIntosh 211 Governing Mobility and Rights to Movement Post 9/11: Managing Irregular and Refugee Migration Through Detention Kim Rygiel 243 Counter-Terrorism In and Outside Canada and In and Outside the Anti-Terrorism Act Kent Roach 265 The Role of International Law in Shaping Canada’s Response to Terrorism Frédéric Mégret Book Review 287 From Counter Terrorism to National Security: Review of The 9/11 Effect: Comparative Counter-Terrorism, Kent Roach Adam Tomkins Redrawing Security, Politics, Law and Rights: Reflections on the Post 9/11 Decade Alexandra Dobrowolsky* Marc G. Doucet* September 11, 2011 marked the ten-year anniversary of that tragic and fate- ful day when four hijacked airliners crashed into the World Trade Center, the Pentagon, and a field in Pennsylvania, killing 2,997 people. Over the last decade, the aftershocks of these terrorist attacks on the US have certainly been felt the world over, including in one of its closest, proximal, neighbours, Canada. While initial responses claimed that 9/11 “changed everything,” this spe- cial issue explores and evaluates whether and/or how this was the case for Canada. With the benefit of ten years of hindsight, and the grounded analyses of six academics from across Canada (three legal scholars and three politi- cal scientists), the conclusions drawn can be, at once, clearer, but also, more circumspect and qualified. Yes, September 11 transformed law and politics in this country, both discursively and materially. Changes occurred on the level of ideas (and popular discourses), in institutions (including both the state and the courts), and as a result of changing orientations to rights and rules. * Alexandra Dobrowolsky is a Professor of Political Science at Saint Mary’s University and Adjunct Professor in the Schulich School of Law at Dalhousie University. She has published extensively on themes of representation and citizenship, and in policy areas that range from constitutional and social policy, to security and immigration policy. She is the author of The Politics of Pragmatism: Women, Representation, and Constitutionalism in Canada (Oxford 2000), co-editor of Women Making Constitutions: New Politics and Comparative Perspectives (Palgrave Macmillan 2003) and Women, Migration and Citizenship: Making Local, National and Transnational Connections (Ashgate 2006). She most recently edited Women and Public Policy in Canada: Neoliberalism and After? (Oxford 2009). * Marc G Doucet is an Associate Professor at Saint Mary’s University where he teaches Political Science. His areas of research have included international relations theory, radical democracy, and the alter-globalization movement. His current research draws from recent literature on biopower and sovereign power in order to examine contemporary forms of international intervention. He is the co-editor of Security and Global Governmentality: Globalization, Governance and the State and has published articles in Security Dialogue; Theory & Event: Contemporary Political Theory; Millennium: Journal of International Studies; Alternatives: Global, Local, Political, and Global Society: Journal of Interdisciplinary International Relations. 129 Introduction The real-life effects that ensued were multiple, from the more innocuous pro- longed security checks at airports, to more insidious racial profiling, targeting of communities, and even, in some instances, wilful ignorance and/or com- plicity in situations of rendition, detention, abuse and torture of Canadian citizens (e.g., Maher Arar and Omar Khadr) and non-citizens alike. At the same time, however, the careful analytical work and empirical re- search featured in this special issue also suggests that these post-9/11 shifts are not necessarily of the order and scale that were initially predicted, and that they have penetrated norms and realms in unanticipated ways domestically and in terms of Canada’s place on, and relation to, the broader international stage. Positioned within a broader conceptual framework, the articles gath- ered here bring to light how many of the “exceptional” or “extraordinary mea- sures” that marked the immediate aftermath of 9/11 have become regularized through law and policy changes as well as through less formal government practices at the domestic, international, and transnational levels (see, for ex- ample, Roach in this special issue). The staying power of these exceptional practices, in Canada and else- where, is largely due to the way in which “security” as a particular political discourse has been marshalled by state, legal and other authorities to (re)frame new and old threats.1 Central to this (re)framing is the re-orientation of the referent object of security. That is to say, threats are said to emanate less from the existential threat posed by self-same enemy states, but rather, are increas- ingly portrayed as stemming from a range of potential dangers and risks to the population posed by other humans. While terrorism can undoubtedly have its state patrons, it is nonetheless the figure of the individual terrorist that most often populates public pronouncements regarding the continued threat of international terrorism. The shift in the referent object towards the human has also facilitated the targeting, with added vigour,2 of more conventional subject identities such as migrants and refugees (see, for instance, MacIntosh and Rygiel in this issue). In turn, this focus has generated new state-sponsored border geographies— from efforts to strengthen cross-border co-operation and information-sharing 1 �����������������������������������A similar point is made by Mariana ����������������������������������������������������������alverde in her assessment of the general context that in- forms Canada’s anti-terrorism legislation. See Mariana �alverde, “Governing Security, Governing through Security, in Ronald J Daniels, Patrick Macklem and Kent Roach, eds, The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (Toronto: University of Toronto Press, 2001) 83. 2 See Alexandra Dobrowolsky, “(In)Security and Citizenship: Im/migration and Shifting Citizenship Regimes” (2007) 8 Theoretical Inq. L. 629. 130 Volume 16, Issue 2, 2012 Alexandra Dobrowolsky & Marc G. Doucet on security related matters (see Mégret and Whitaker in this issue)3 to a will- ingness to resort to “in-country” detention centres and consider “offshore” deterrent mechanisms to migration “risks.” Yet, at the same time, and quite ironically, security’s re-orientation towards the more “human” element evokes a more “progressive” quality in the sense that it appears to ally state security measures with the unqualified good of protecting the well being of citizens and providing for their ongoing safety.4 Concomitantly, as security measures no longer appear to respond primar- ily to threats emanating from enemies that have a recognized or established formal political status (as was the case for instance during the Cold War when much of the current national security apparatus was initially developed), they appear more removed from conventional political (i.e., state) actors and stan- dard politico-legal subjects. However, such processes involve more than dis- tancing, as they serve to “depoliticize” acts that nonetheless remain intensely political. This depoliticization has certainly come into play in other countries when, for example, justifying the extra-judicial assassination or indefinite de- tention of terrorists. But it is also a feature of the Canadian Supreme Court’s minimalist posture in dealing with a range of security policies involving the Charter of Rights and Freedoms5 (see, for example, Macfarlane in this issue), or the trend towards the less sensationalized criminalization and securitization of refugee claimants that is apparent in policy debates and administrative prac- tices in Canada and elsewhere (see Rygiel). Furthermore, when the shift in the referent object of security is success- fully mobilized by government authorities to defend new legislative or admin- istrative measures, the nature and space of political debate is altered. While many pundits and analysts are quick to criticize government authorities for “security failures” or weak security measures that amount to little more than “security theatre,” it becomes much more difficult to query whether enhanc- ing security at the domestic, international, or transnational level ought to be a top government priority. Instead, real or perceived security breakdowns are typically met with immediate calls for more robust security practices and a marked absence of any interrogation of security in and of itself. 3 See for the instance the mapping of detention centres provided by the Global Detention Project http://www.globaldetentionproject.org/. See also, Anna Pratt, Securing Borders: Detention and Deportation in Canada (�ancouver: UBC Press, 2005). 4 Mark Neocleous, “Inhuman security” in David Chandler and Nik