What is it exactly that gets you on a no-fly list?

New documents reveal a fight over defining an ‘immediate threat’

PHOTOGRAPH BY ANDREW TOLSON

For obvious reasons, Canada’s “no-fly” list is a top-secret document. Only a handful of senior government officials are privy to the file, and even the size (200 names? 2,000?) is considered classified. About the only thing the feds will confirm is that the list is based on “reliable and vetted” intelligence, and if you’re on it, you “pose an immediate threat to aviation security.”

But what does “immediate” really mean? Must an aspiring terrorist walk into an airport with plastic explosives strapped to his chest in order to qualify for the list? Do authorities need irrefutable proof that a hijacker is about to strike? Or is tough talk—on an extremist website, for example—reason enough to ban someone from the skies?

A Montreal man fighting to have his name removed from the list has forced federal security officials to clarify their definition of “immediate.” But the government’s answer, disclosed in newly released court documents, will do little to help Hani Al Telbani—or anyone else deemed too dangerous to fly. According to Ottawa, when it comes to terrorist plots, there are varying degrees of immediacy. In other words, a threat can still be immediate even though it’s not immediate.

To quote CSIS, Canada’s spy agency: “Immediate is not black and white.”

Enacted three years ago, the so-called Passenger Protect Program is a delicate balance between an individual’s right to free movement and another individual’s right not to be killed by a fellow passenger. The program, however, has been widely criticized by Muslim groups and civil libertarians because it gives bureaucrats the power to unilaterally label someone a threat. People have no opportunity to challenge the secret evidence against them—a person won’t even know he’s on the list until he tries to check in for a flight—and the final decision rests with the deputy minister of transport. Simply put, people like Hani Al Telbani are stuck in a sort of national security limbo: too dangerous to fly, though not quite dangerous enough to arrest.

But if the latest documents filed in the Telbani case reveal anything, it’s that the question of immediacy is much more than a semantic one. What separates a threat from an immediate threat has triggered a heated debate between those who spend their days fighting terrorism and those who believe the no-fly list has cast too wide a net. One thing, though, is certain: the government—CSIS, the RCMP and Transport Canada—have made up their minds. “The concept of immediacy?.?.?.?is not confined to the element of time,” says a declassified report written by Transport Canada’s security intelligence branch. “For these purposes, immediacy also relates to the likelihood of an individual attempting an action in the future.”

As first reported in Maclean’s, Hani Ahmed Al Telbani was the first person ever denied boarding as a result of the no-fly list (known officially as the “Specified Persons List”). A Palestinian immigrant whose citizenship application is pending, Telbani showed up at Montreal’s Trudeau Airport on June 4, 2008, with a round-trip ticket to Riyadh, via Heathrow. But instead of a boarding pass he was handed an “emergency direction” from Transport Canada, declaring him an “immediate threat” who “will endanger the security of an aircraft.”

A Concordia University master’s student at the time, Telbani fired off a flurry of complaints—to CSIS headquarters, to the Security Intelligence Review Committee (an independent CSIS watchdog), and to the Federal Court. He also filed a civil lawsuit against Ottawa, demanding $550,000 in damages for the “stigma, humiliation, contempt, hatred and ridicule” he has endured. But it was an appeal to the so-called Office of Reconsideration, an independent arm of Transport Canada, that yielded the quickest results.

In a scathing report completed in October 2008, the OOR reviewed Telbani’s CSIS file and concluded he is not a risk to fellow passengers. The authors—Allan Fenske, a former judge advocate general of the Canadian Forces, and Wendy Sutton, a Toronto lawyer—said CSIS relied on “decidedly vague and incomplete” information that does not “identify a discernible threat, immediate or otherwise.” They urged Ottawa to not only delete the 28-year-old from the list, but to reassess the intelligence used to justify every entry.

Most of the evidence against Telbani remains secret, and where it’s mentioned in court documents, the words are covered in black ink. But the OOR report did shed some light on why the Canadian Security Intelligence Service was keeping such a watchful eye on the engineering grad—including the fact that he spent considerable time surfing Islamic extremist websites under the pseudonym “Mujahid Taqni” (Technical Jihad). Two days before he was sent home from the airport, Telbani was also visited by a pair of CSIS spies who accused him of collaborating with a website linked to al-Qaeda.

An advisory group with representatives from CSIS, the RCMP and Transport Canada is in charge of nominating candidates for the no-fly list, and as Maclean’s reported earlier this year, the committee scoffed at the findings of the Office of Reconsideration. Rather than follow the recommendations, they voted unanimously to keep their target grounded. But the newly filed documents, entered as evidence in Telbani’s Federal Court case, provide a rare glimpse into the inner workings of the no-fly list—and the challenges of countering a threat that is never completely known. As one Mountie who sits on the committee said: “The OOR report seemed to indicate the consultants lacked an insight as to the workings of terrorist activity and just how such attacks could unfold.”

On Dec. 22, 2008, the committee convened a “special meeting” to “furnish a thorough discussion” of the OOR report. According to the minutes, an anonymous CSIS agent complained that the independent investigators were demanding a burden of proof equal to that of a criminal trial—a “level far above” what “the system can ever provide prior to an event.” If things were that simple, the agent said, there “would be no need for” a no-fly list because everyone who posed a threat “would be arrested and charged under the Criminal Code of Canada.”

The spy’s message was clear: thwarting an attack is the top priority, and in many cases that means depending on intelligence that wouldn’t necessarily secure a conviction. “Denying an individual the ability to board an aircraft [is] not the same as putting someone in prison, therefore the standards of evidence should reflect the differences in action taken,” the minutes state. “CSIS offered to brief the minister and officials on terrorism, Sunni Islamic extremism, and the role of intelligence in combatting terrorism.”

Most of the discussion, however, focused on the definition of immediacy. “CSIS summed up their position by indicating concern about the term ‘immediate,’ whether it is an issue of capability and intent (direct action) versus a temporal interpretation of immediate,” the minutes continue. “An immediate threat may extend for a long period of time, waiting for the right opportunity, which may not be known in advance.”

Transport Canada agreed. On Jan. 14, 2009, the department issued an “Aviation Security Risk Assessment” on Telbani, confirming that immediacy “is not confined to the element of time” and that it “also relates to the likelihood of an individual attempting an action in the future.” (A spokeswoman for Transport Canada confirmed that the department still follows that definition).

What does that mean for Hani Al Telbani? More than two years after his trip was cancelled, the feds still consider him a threat. An immediate threat.




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What is it exactly that gets you on a no-fly list?

  1. “…Denying an individual the ability to board an aircraft [is] not the same as putting someone in prison, therefore the standards of evidence should reflect the differences in action taken…”

    That's an interestingly slippery slope.

    So if the information is REALLY lousy, then you only get to do what?

    Take their bus pass?

    Each form censure of someone's rights should have to meet a reasonably stringent legal standard, and frankly that doesn't appear to be the case.

    And shouldn't you have to tell them they're on the list when you put someone on it? Showing up at the airport with your luggage and being told only then that your nation considers you a threat to national security seems insane to me.

  2. And has anyone considered that putting so many people with Islamic names on this list that shouldn't be there, might actually compound the problem?

    The first thing one should do when trying to undermine such a threat is separate out as many of the reasonable members as possible and bring them under your own wing.

    Instead, these types of actions, as reflected in the media, are likely to make many Muslims feel persecuted and therefore increase the likelihood of rash young people relating to the terrorist's faux cause, ie freedom from western oppression.

    We have seriously dropped the ball on this issue from the beginning.

  3. “The concept of immediacy . . . is not confined to the element of time,”

    Yup, it's 29 o'clock.

    The concept of immediacy is very much confined to the element of time. Do these government goons not have access to a dictionary?

    Maybe Al Tebani is to dangerous to fly, maybe he's not. I really have no way of knowing. What is dangerous is a government that makes secret decisions without having to justify them. This guy visited a few web sites they've deemed dangerous? So what? Did he, while making those visits, do or say anything that they think makes him dangerous? If he did, then they can either tell us what those things were, or they can shut the hell up and admit they have nothing.

    If our authorities are having trouble operating within a democracy, then they aren't any better than the extremists they claim to be protecting us from. It's been a long time since the Magna Carta, perhaps somebody needs to whack CSIS across the eyes with a few times. Hard.

  4. Phil_king noted:
    "And shouldn't you have to tell them they're on the list when you put someone on it? Showing up at the airport with your luggage and being told only then that your nation considers you a threat to national security seems insane to me. "

    I agree…..if the person who shows up is not indeed a threat.

    If, however, the person is planning on doing harm, or committing a terrorist act, the last thing you want to do is let him know he's being watched so that he can get out of dodge or destroy evidence, or pass the word along to his comrades.

    The element of surprise has its own merits. Warning the bad guys (who are bad guys) is just self-defeating.

    • Don't call somebody a bad guy unless you have incontrovertible evidence to that effect.CSIS's suspicion does not constitute evidence!Just as a few visits to porno sites does not make you a sex offender suspect.

      • rabro wrote:
        "Don't call somebody a bad guy unless you have incontrovertible evidence to that effect"

        So, I take it that you would prefer CSIS to assume someone is a bad guy after the smoking wreckage land in your city?

      • His pseudonym was "Technical Jihad", not "Moderate Muslim". If the evidence was incontrovertible, as stated in the article, he would be under arrest and not on a no fly list.

        Much of what is considered security at airports is nothing more than theatre; however, if there is evidence short of absolute proof a person has links to a terrorist agency, keep that person off the plane. The alternative is to put a armed security next to him on the flight, as the Isreali's did with Richard Reid.

        Your porn analogy is weak. If you frequent pornsites advocating sex with minors, you better expect repercussions.

  5. Reverend Blair wrote:
    "If our authorities are having trouble operating within a democracy, then they aren't any better than the extremists they claim to be protecting us from. It's been a long time since the Magna Carta, perhaps somebody needs to whack CSIS across the eyes with a few times. Hard."

    Tell you what Rev……if the muslim men they just apprehended in Ottawa for planning terrorist attacks are innocent, you have a point. If they were indeed stopped from carrying out an attack, will you still condemn CSIS for their methods?

  6. Am I missing something here? Is there a reason why the authorities can't simpy do a careful body and luggage search of a person who is suspected to be conspiring to brng down a plane?
    Some might choose not to submit to the indignity, and for sure there would need to be a passenger advocate available to keep search-happy guards appropriate, but does this not more accurately address the problem of the actual "immediate dangerousness" of the person?

  7. I am confused about Mr. Telbani request to fly out of Canada, as he is not a Canadian citizen, he is a Palestinian immigrant whose citizenship application is pending. So lets just deport him under Armed escort by the Air Marshalls to his home town in Palestine where he can conjure up anything his heart desires. I for one am willing to assist in paying for his ticket to go, though I believe I have sufficient Airs Miles for him to go for free, at no cost to the Taxpayer.

    Of course there is always cruise Ships, perhaps on the Tamil ship MV Sun Sea before it heads back to Thailand.

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