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

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

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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