To the surprise of many, it turns out that Canada’s chief security intelligence agency – the Canadian Security Intelligence Service (CSIS) –may not legally collect covert intelligence abroad. That is at least one interpretation of a Canadian Federal Court decision issued in October 2007, but only released publicly in 2008. At issue was whether the court had the jurisdiction to issue a warrant under the Canadian Security Intelligence Service Act (CSIS Act) in investigations concerning Canadians taking place overseas. CSIS had sought the warrant because the targets of the investigations, as Canadians, potentially enjoyed privacy rights under Canada’s constitutional bill of rights, the Canadian Charter of Rights and Freedoms.
Faced with this conundrum, there were two plausible courses of action open to the court. First, it could have concluded that the CSIS Act’s warrant provisions extended only as far as authorizing searches and seizures in Canada. While this approach would have left open the question whether constitutional rules applied to CSIS’s extraterritorial conduct, it would have allowed the court to avoid the incongruity of a Canadian court “legally” authorizing an invasion of privacy taking place in a foreign jurisdiction whose own laws would probably be violated by the action.
Second, the court could have reached even further and concluded that CSIS itself has no statutory authorization to conduct extraterritorial investigations, pursuant to its core, statutory mission to collect intelligence relating to threats to the security of Canada. This approach would avoid the constitutional question entirely, but with the consequence of greatly limiting the scope of CSIS’s basic jurisdictional competence.
The filling of a judicial vacancy provides a unique opportunity to examine not only the appointment or election process, but also the court itself and its work. For obvious reasons, this has been recognized in connection with the Supreme Court of the United States,1 where vacancies are often the subject of much conjecture but, because of life tenure, remain essentially unpredictable. On a less lofty plane, the opportunity to take stock also occurs in other courts, and the timing, at least, is less a matter of speculation in non-Article III courts, where judges serve for fixed terms.
A case in point is the expiration of Chief Judge Andrew S. Effron’s term on the United States Court of Appeals for the Armed Forces (referred to here as the Court of Appeals) on September 30, 2011. It is appropriate to consider the process for filling his seat; the standards that, based on the law and past experience, must, could, or should not be taken into account in choosing a successor; and the possible impact on the court and its jurisprudence.
While national security law covers a broad swath, military justice is a key component, since good order and discipline are integral to a credible military capacity, and notwithstanding the remarkable trend towards the use of high technology in national defense, uniformed personnel – human beings – and their conduct (both actual and desired) remain the heart of the matter. Hence, the filling of Judge Effron’s seat is properly viewed as potentially impacting on national security.
Seen from the great height of global comparison, the number of new anti-terrorism laws that criminalize terrorism, block terrorism financing, develop new international monitoring mechanisms to spot terrorists, and increase vigilance about the international movements of persons is extraordinary. Up close, however, widespread compliance [with the Security Council Resolution 1373 framework] looks less like a tightly coordinated strategy than diverse variations on a theme.