When does surveillance constitute a violation of basic freedoms?

There is a very important distinction in most Western courts of law between actus reus and mens rea, Latin for respectively, guilty act and guilty mind (more or less).   We  have decided that in order for a crime to have been committed, the alleged guilty party had to have the intent to commit that criminal act.  In the absence of intent (through mental illness, say), courts generally dismiss the accused.  This is the famous “insanity defence” we all hear about.

There are of course three other possible combinations of mens rea/actus reus.  If both are present, the perpetrator is guilty of a crime.  If neither are present there is nothing to talk about.  But what if there is mens rea but no actus reus? In other words, what if criminal intent is present but no criminal act is committed?  Most of us would probably say that we should not act against those who are merely thinking about committing a criminal act and focus on those who are putting their thoughts into action.  This strikes me as a reasonable belief.  Arresting people for what is in their heads brings up the spectre that authorities are creating “thought police”.

As usual, there are exceptions.  In what may surprise – and annoy – some, the cases of mens rea without actus reus arise frequently in the everyday business of security intelligence services worldwide.  These agencies are tasked with identifying potential threats to national security well before they become actual threats (i.e before the bomb goes off).  In essence they look at those who  have mens rea and inform their law enforcement partners when it looks like becoming actus reus. This system works fairly well, at least in Canada.

I am sure there are those who see this activity – “spying” on people for what they are thinking rather than for what they are doing – as a gross violation of fundamental freedoms.  Such people will be very angry to hear that the Swedish SAEPO (actually a law enforcement/intelligence hybrid) is going to create a registry of Islamic State sympathisers.   Punishing people for being sympathetic to a terrorist group, even one as barbaric as IS, should not be allowed, should it?

Except that this does not constitute punishment, at least not in my books (full disclosure: I worked on cases like this at CSIS for 15 years).  Intelligence investigations are NOT the same as police ones and do not result directly in arrests (remember that it is only when mens rea becomes actus reus that the cops get involved, as they should).  Besides, what is the harm of being on the radar of a spy agency?  The fact that you are in a database?  I have bad news for those who oppose the work that CSIS and its partners do: you are already in so many databases that CSIS should be the least of your worries.

Furthermore, who could justifiably defend anyone who expresses sympathy for IS, a terrorist group listed by everyone?  Do we really want our authorities to completely ignore those with such leanings, for fear of infringing on their “rights”?

We could of course mandate that intelligence agencies only get involved when it is clear a criminal act is being planned, i.e. when actus reus is present. To do so would hamstring those agencies and force them to ramp up resources and investigations within a very narrow window.  In this kind of society, there would not be enough time to stop most terrorist acts and people will die.  This is not drama: this is reality.

Our intelligence agencies are constrained by laws and policies that outline very carefully what they can and cannot do.  Giving them the ability to watch someone at an early stage, when there are reasonable grounds to suspect a threat (rather than the higher threshold of reasonable grounds to believe) is critical to their success.  We remove that tool at our peril.

By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. Phil is a 32-year veteran of CSE and CSIS and the author of six books on terrorism.

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