Canada’s “no-fly list” is, by design, a tight-lipped operation—a database so top-secret that the people on it have no idea (until they try to board an airplane). The federal government won’t even reveal how many names the list contains, insisting that such basic disclosure could somehow help a terrorist plan an attack. Reported estimates range from 500 to 2,000 entries, which means someone is way off.
Whatever the actual figure, the list is about to expand.
Declaring the October attacks that killed two Canadian soldiers “a call for action” against “a great evil,” the Harper Conservatives last week tabled the most comprehensive anti-terror legislation since 9/11. If passed, the bill will enhance the investigative powers of Canada’s spy agency, introduce jail time for those who promote or advocate terrorism—and drastically overhaul Ottawa’s Passenger Protect Program, creating a much longer no-fly list by slashing the burden of proof required to land on it.
For all the criticism the bill has triggered, expanding the no-fly database (known officially as the “specified persons list,” or SPL) may be the hardest amendment to dispute. When the list first launched in 2007, the primary terrorist threat was still sophisticated, Sept. 11-style attacks, with airliners the target of choice. Think of the 2006 British plot to detonate liquid explosives on 10 international flights, or the “Underwear Bomber” who tried, but failed, to blow up a Detroit-bound jet in 2009. Passenger Protect was specifically designed to thwart such large-scale schemes by identifying only “immediate threats to aviation security”—and ensuring those select few never receive a boarding pass.
But eight years after the list went live, the threat of Islamist terrorism has undoubtedly evolved. Grand, glorious plots have given way to the type of “lone wolf” attacks that rocked Parliament Hill, and although security agencies remain as concerned as ever about radicalized Canadians checking in for flights, the fear isn’t necessarily what those passengers may attempt after takeoff. It’s where they’re going. At last count, more than 130 Canadians have left the country to join banned organizations overseas, including the ranks of Islamic State militants waging a barbaric jihad in Iraq and Syria. (On Tuesday—the same day Islamic State released gruesome images of a Jordanian air force pilot being burned alive in a cage—the RCMP announced criminal charges against two more Canadians suspected of joining ISIS, as well as a third conspirator accused of funding their travels.)
The Tories’ proposed law would significantly lower the no-fly threshold (again, the current bar is “immediate threat” to aviation security) to ensnare such wannabe foreign fighters before they can sneak away. The legislation also will allow security agencies to nominate not-so-immediate threats: the type of people whom authorities have “reasonable grounds to suspect will engage or attempt to engage in an act that would threaten transportation security.” Simply put, the no-fly club will be a lot less exclusive if the bill becomes law.
More than anything, though, the legislation would finally mark the end of an internal government debate that has raged for years—and bordered, at times, on the absurd: What exactly is an “immediate” threat to an aircraft? Does a person need to be caught on wiretaps discussing a hijacking to land on the list? Does he have to build a bomb? Or is tough talk in an online forum enough to ban someone from the skies? “The program’s statutory threshold is difficult to meet in practice,” said a 2012 report from the security intelligence review committee (SIRC), the independent body that examines the actions of CSIS, Canada’s spy service. “The concept of ‘immediate threat’ is open to interpretation. As a result, nominating departments and agencies have struggled with the nomination process.”
Struggled is an understatement. As the SIRC report concluded, “uncertainty” over what constitutes an immediate threat has “resulted in a somewhat ad hoc approach” that has “significantly undermined the potential of the SPL to be an effective aviation security tool.”
At a closed-door meeting with fellow security officials in 2008, one CSIS agent summed up the confusion best: “Immediate is not black and white.”
The origins of the “immediate threat” conundrum can be traced back to one man: Hani Ahmed Al Telbani, a former master’s student in Concordia University’s department of engineering. A Palestinian immigrant and permanent resident of Canada, Telbani was 26 when he showed up at Montreal’s Trudeau Airport on June 4, 2008, with a round-trip ticket to Riyadh, via Heathrow. But instead of a luggage tag he was handed an “emergency direction” from Transport Canada, branding him an “immediate threat” who “will endanger the security of an aircraft.” He was the program’s inaugural hit, the first person ever denied boarding as a result of the new list.
According to CSIS, Telbani was one of the devoted administrators of a notorious but now defunct Web forum known as el-Ekhlaas, a militant, password-protected site that broadcast fresh messages from Osama bin Laden and how-to guides for aspiring jihadists. His online alias was “Mujahid Taqni” (Technical Jihad). Posts on the web page ranged from how to launch a shoulder-fired missile to “eliminating the phobia and anxiety that some people feel and which hinders them from participating actively in jihad because they assume that intelligence services are counting their breaths and monitoring their every move.”
In Telbani’s case, CSIS was indeed monitoring his every move. (He denies any wrongdoing, insisting in court documents that he is “not a danger to the public” and has been “unjustly associated with terrorism.”)
The database is overseen by the so-called “specified persons advisory group,” a panel of federal officials that includes representatives from Public Safety, CSIS, the RCMP and Transport Canada. Armed with the intelligence it gleaned on Telbani, CSIS nominated him for the list during a meeting on May 8, 2008; everyone else at the table concurred. Four weeks later, he was turned away at the Air Canada check-in counter.
But when Telbani filed an appeal with Transport Canada’s so-called “Office of Reconsideration,” the independent security consultants hired to examine his case reached a much different conclusion than CSIS. Privy to the spy agency’s complete file on Telbani, they concluded that the service relied on “decidedly vague and incomplete” information to nominate him for the list, going so far as to urge Ottawa to reassess all the intelligence used to justify every entry on the database. “We have not been able to identify a discernible threat, immediate or otherwise,” the consultants wrote in October 2008.
Senior security officials were stunned, to say the least. At a “special meeting” of the advisory group convened on Dec. 22, 2008, members of CSIS and the RCMP complained that the consultants’ report demanded a level of proof “far above” what “the system can ever provide prior to an event.” They noted that the goal is to keep potential threats off airplanes—not throw them in jail—so “the standards of evidence should reflect the differences.” In other words, if nominating a person for the no-fly list required the same burden of proof as a criminal conviction, there would be no need for the list—because everyone flagged “would be arrested and charged under the Criminal Code of Canada.”
“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,” says the minutes of the meeting, disclosed as part of Telbani’s ongoing legal battle to have his name deleted from the list. “Immediate can be defined differently according to the terrorist’s belief system, which is to say that immediate is not black and white … Immediate is defined by their belief system, which is to say that they are patient in looking for opportunities and an immediate threat may extend for a long period of time, waiting for the right opportunity, which may not be known in advance by intelligence organizations.”
At a follow-up meeting on Jan. 6, 2009, a senior Mountie said the reconsideration report “seemed to indicate the consultants lacked an insight as to the workings of terrorist activity and just how such attacks could unfold,” and suggested they require “some sort of terrorism awareness training by CSIS to assist in the future evaluation of cases.”
In the end, the advisory group ignored the consultants’ report and concluded, unanimously, that Telbani should stay on the list. “The department believes that the concept of immediacy as applied to individuals under consideration for recommendation to the SPL is not confined to the element of time,” said a 2009 intelligence report from Transport Canada, confirming his inclusion. “For these purposes, immediacy also relates to the likelihood of an individual attempting an action in the future.”
Three years later, when SIRC issued its annual report, the definition of “immediate threat” remained just as murky. “Even though guidance materials were provided by Transport Canada that were intended to assist the nominating departments, uncertainty remains about the precise meaning of ‘immediate threat,’ ” the report concluded. “Compounding this problem, SIRC noted that CSIS did not take the necessary steps to formalize explicit, consistent criteria to guide its nomination process.”
By lowering the bar, the proposed legislation should eliminate any uncertainty. The bill would also create a new appeal process, bypassing the former Office of Reconsideration and going directly to the minister of Public Safety (currently Steven Blaney). The bill says the minister “must afford the applicant a reasonable opportunity to make representations,” and if refused, the ruling can be challenged in Federal Court.
“To me, it’s all going to hinge on the oversight and the redress,” says Yves Duguay, the former director of security at Air Canada who now operates a consulting firm, HCiWorld. “If I’m on the list, can I make an application and can I have the sense that I’m going to have a fair hearing? On the flip side, I understand that this is a tool that authorities need. The problem is like nothing we’ve ever faced before. It’s very often something you won’t see until something happens.”
Whatever the no-fly threshold—or however large the list grows—the people on it are stuck in the same national-security limbo: too dangerous to fly, though not quite dangerous enough to arrest. Since day one, the SPL has toed a very fine line between a person’s right to free movement and another person’s right not to be murdered by a fellow passenger. But flying on a plane is not a human right, and refusing a boarding pass is not nearly the same infringement as locking someone in jail. “The objective is to protect the industry and protect the public from potential terrorism,” Duguay says. “For me, the best approach has always been an intelligence-driven approach. Putting our resources into intelligence-driven efforts before something happens, rather than after, makes sense.”
For all the attention the list has received (thanks mostly to Hani Al Telbani), an actual hit is extremely rare. To this day, Telbani’s is the only reported case of a person being denied boarding as a result of the SPL. “It’s fairly infrequent,” says Michael Skrobica, the senior vice-president of the Air Transport Association of Canada, which represents the country’s commercial airlines. “Based on my experience—and I’m not informed every time—I believe it would be below 50 times.” Translation: since the list was unveiled in 2007, the Passenger Protect Program has probably stopped six or seven people a year from boarding an airplane. “That’s about it,” Skrobica says.
That number is sure to increase in the months to come. Whether the revamp ever thwarts a terrorist’s travel plans—or withstands the scrutiny of an inevitable court challenge—remains to be seen. “The threat has changed,” says Michael Zekulin, a University of Calgary political science professor who specializes in radicalization. “We’re not necessarily solely concerned with individuals who are going to attack us at home. We now see this radicalization manifesting itself in individuals trying to travel abroad, and as a good country, I think we would all recognize we have a responsibility to prevent people, our citizens, from going abroad and causing trouble in other parts of the world.”
Even if we aren’t absolutely sure of their immediate plans.