TY - JOUR
AU - Maurutto,, Paula
AB - Abstract Despite the increasing use of no-fly lists in countries like the United States, United Kingdom and Canada, their impact has not been explored in academic research. In a bid to fill this gap, we conducted 70 in-depth interviews with Muslim community leaders to explore Canadian Muslims’ experience of the no-fly list. We find the Canadian no-fly list targets Muslim communities, restricts mobility, separates individuals from family and friends, diminishes professional and economic opportunities, and stigmatizes those labelled a security risk. Drawing on the preventive security literature and critical race studies of counter-terrorism, this research demonstrates how no-fly lists erode fundamental aspects of justice, and reproduce racial hierarchies. Introduction Since 9/11, western nations have been asserting increasing control over national landscapes by tightening border controls (Cunningham 2004; Lyon 2008), with no-fly lists emerging as a central tactic in the ‘War on Terror’. No-fly lists contain the names of individuals identified as potential national security risks who are denied the right to board aeroplanes or leave the country. These lists are enacted with little understanding of their broader consequences. Our research highlights the complex, insidious effects for those affected by the lists, and how these effects reverberate like shock waves through communities who experience them as a racial punishment. No-fly lists have been denounced internationally by academics and civil rights groups for undermining the rule of law and exacerbating the racial profiling of minorities (Werbin 2009; International Civil Liberties Group 2010). Researchers argue that in the post 9/11 world, the association of Muslims with radical extremism and terrorism has become the strongest rationale for regressive border policies (Sharma 2006). Despite concerns about their inherent racism, there is a dearth of academic studies exploring the experiences and concerns of racialized minorities affected by no-fly lists. As Ashworth and Zedner point out (Ashworth and Zedner 2014:1), the impacts of counter-terrorism policies, in general, have yet to be fully ‘mapped, analyzed or rationalized’. Indeed, we were hard pressed to find any academic research on those affected by no-fly lists. Some scholars have explored Muslims’ experiences crossing international borders (Mythen et al. 2009; Mythen et al. 2013; Nagra and Maurutto 2016), but we are the first to give voice to Canadian Muslims’ experience of the no-fly list. To develop our analysis, we begin by situating our work on Canadian Muslims within the literature on preventative security and critical race studies of counter-terrorism. We then briefly review the Canadian Passenger Protect Program, the legislative backbone of the Canadian no-fly list. We draw on 70 interviews with Canadians who identify as Muslim and are active in their communities to understand the impacts of the list on individuals and communities. We identify five common themes arising from our interviews; no-fly lists (1) arbitrarily target Muslim Canadians, (2) result in a layering of racial punishment, (3) curtail fundamental rights and access to justice, (4) foster fear of community association, and (5) produce a reactive agency. We conclude that the no-fly list functions as a racialized practice by targeting Canadian Muslims, exacerbating their racial profiling at airports and subjugating them to forms of racial punishment. Moreover, no-fly lists reproduce racial hierarchies and rely on racial discourses to erode fundamental aspects of justice. Although we focus on Canada, our findings are germane to larger debates on the impacts of counter-terrorism policies. Preventive Security and Critical Race Studies Our work builds on and contributes to two sets of literature, the preventive security literature (Cunningham 2004; Lyon 2008; Ashworth and Zedner 2014; Forcese and Roach 2015) and critical race studies of counter-terrorism (Mamdani 2004; Naber 2006; Thobani 2007; Razack 2008; Zine 2012). These bodies of work have tended to develop separately with little cross-referencing. The preventive security literature acknowledges that security can produce racism, but it insufficiently explores how counter-terrorism logics, practices, and rationalities are deeply engrained in and reflective of race relations and race thinking (Thobani 2007, 2018; Razack 2008, 2012). Critical race theory points to how security is embedded within an orientalist and colonialist racist history. We bridge these distinct sets of literature to understand the racial layering effects of counter-terrorism practices. A growing body of preventive security literature is documenting the rise of counter-terrorism ‘hyper-legislation’ (Roach 2011). Academics in the fields of law, criminology, citizenship, and surveillance studies have documented how the state’s claims to preventative security legitimates the production of a marginalized, vulnerable population that is deemed the enemy and whose rights are increasingly eroded (Ackerman 2007; Macklin 2007; Zedner 2010:394; Roach 2011; Dubber 2013; Ashworth and Zedner 2014). Zedner (2010) for instance, argues that racial profiling in the post 9/11 world includes a ‘new security architecture’ that targets and racializes a group composed of different ethnicities, Islamic religious traditions, and culture as the Muslim ‘other’. Citizenship studies have focussed on how counter-terrorism policies produce ‘second class citizenship’ or ‘non-deserving citizens’ whose rights are readily depleted (Aas 2011). Surveillance studies have highlighted how counter-terrorism policies are creating new forms of ‘social sorting’ that produce labels such as ‘terrorist’ and ‘security threat’, with significant implications for social movements, civil liberties, and due process rights (Lyon 2003; Lyon and Haggerty 2012; Huysmans 2014). Collectively, this literature argues that new anti-terrorism laws allow the exercise of extraordinary state powers, resulting in the expanded and excessive use of military intelligence, police powers, surveillance, pre-trial detention, and indeterminate administrative practices, including preventative detention and torture. The cumulative effects of these measures undermine the rule of law, reduces checks on the arbitrary use of excessive power, and results in the derogation of domestic and human rights in the name of security. The emerging scholarship informed by critical race theory and post-colonial theory explores how the rapid intensification and proliferation of anti-terrorism policies are intertwined with and deeply rooted in historical practices of race relations, colonialism, nation-state formation, orientalism, and Islamophobia, all practices pre-dating 9/11 (Ahmed 2000; Naber 2006; Sharma 2006; Thobani 2007; Razack 2008; Zine 2012; Nagra 2017). This work begins with the premise that contemporary anti-terrorism policies are part of a long-standing history that has sustained a racial and neoliberal order where ‘white people come to know themselves as superior, a community that must fortify itself against pre-modern racial Others who do not share its values, beliefs, practices, and level of civility’ (Razack 2008: 7–8). According to Razack, ‘the eviction of Muslims from the political community is a racial process that begins with Muslims being marked as a different level of humanity and being assigned a separate and unequal place in law’ (Razack 2008: 7). The rapid intensification of hyper counter-terrorism policies and the erosion of the rule of law in countries around the world has been made possible, in part, because of long-standing tropes about the barbaric Muslim ‘other’, described by Said (1985) decades before 9/11. However, in ‘The War on Terror’, Islam is no longer projected as just encompassing inferior religious and cultural practices; rather, it is imagined as a threat to all western civilization (Mythen 2009, 2013; Jiwani 2012; Nagra 2017). Within this logic, entire Muslim communities are perceived as incubators of risk. The suspension of rights is then justified through the conflation of Islam with terrorism. Critical race scholars draw on Agamben’s (1998) theorization of the ‘state of exception’ to call attention to how the demonization of ‘entire categories of citizens’ has allowed nation states to exercise ‘extraordinary powers’ to detain, torture, and deny full citizenship rights. The removal of rights is ‘fetishized as a weapon of reason and preservation of freedom of the citizens vis-à-vis the threats from outsiders, from internal enemies, and from those not yet fit for citizenship’ (Hansen and Stepputat 2005: 3). Within this context, the suspension of rights appears not as violence, but as the law itself (Razack 2008). Violence and the derogation of the rights of Muslims and other targeted communities emerge as the only reasonable option. According to critical race scholars, the ability to easily operate outside democratic law did not emerge with 9/11. It is endemic to democratic governments and ingrained in the racial underpinnings of nation states; it is part of continuing management of racial populations (Thobani 2007; Razack 2008). As criminology, law, citizenship, and the sociology of surveillance studies all note, since 9/11, this practice has become more readily employed and widely accepted. Nation states openly impose racial management through hastily enacted draconian laws that operate outside the constraints of constitutional laws and protected rights (Zedner 2009: 117). It is within this situated historical context that you end up with blunt instruments like the no-fly list that target Muslim communities. Although deemed preventive rather than punitive (Goede and Sullivan 2016), our research shows how no-fly lists erode basic justice in the name of national security. Anti-terrorism Policies and the Passenger Protect Program In 2007, under section 4.82 of the Aeronautics Act, Canada enacted its first passenger-screening system, the no-fly list through the Passenger Protect Program (Luongo 2010). Canada’s no-fly list was a direct response to American pressure. Specifically, the US Patriot Act passed in 2004 singled out the border with Canada as requiring ‘intensified intelligence’. The Act identified the need to pressure Canada to align its policies with American national interests (Roach 2011). The Passenger Protect Program was launched as a strategy to ensure Canada maintained its foreign policy independence by establishing its own no-fly lists rather than relying on US lists (Bennett 2008).1 The Program targeted individuals who might ‘engage or attempt to engage in an act that would threaten transportation security’, or those ‘attempting to travel abroad to commit certain terrorism offences, as defined in the Criminal Code, such as terrorist attacks, funding for weapons, training and recruitment’ (Public Safety Canada 2019). In 2015, the Canadian government intensified its legislation under the Secure Air Travel Act (SATA) calling for the creation of two lists: the standard ‘no-fly’ list and the peculiarly labelled ‘slow-fly’ one (Vonn 2016). The no-fly list identified those designated ‘high risk’ and denied air travel, and those on the slow-fly list were deemed a ‘potential risk’ warranting additional screening.2 These changes expanded the rationale for placing people on the list and moved the oversight of the program from a larger advisory group into the hands of the Minister of Public Safety. The exact number of people on the lists is deemed a national security secret and the federal government has refused to reveal the exact number of people on the list. However, in 2007, a government official publically stated that approximately up to 2,000 people were on the list (CTV News 2007), but the number is predicted to have soared substantially since then (Fife 2017). More recently, research conducted by students at the University of Western Ontario estimate that as many 100,000 Canadians could be falsely flagged on the no-fly list, simply, because of shared names (Fife 2017; International Civil Liberties Monitoring Group 2019). Canadian civil rights groups have strongly opposed the no-fly list. The Canadian Privacy Commissioner and several human rights organizations, including the Canadian Civil Liberties Organization and the Canadian Race Relations Foundation, have called for its cancellation (Barrett 2007). These groups say the no-fly list is a punitive measure that disproportionately targets innocent members of Muslim communities, denying them the right to due process and procedural fairness. The Privacy Commissioner has pointed to the lack of transparency, lack of sufficient evidence, and absurdly low threshold for determining who presents a security risk (Barrett 2007; Bennett 2008; International Civil Liberties Monitoring Group 2010; Levine 2015). These groups have admonished the Canadian government for including people deemed too dangerous to fly, yet not quite dangerous enough to arrest, suggesting that in all likelihood, there is insufficient evidence to legally detain them (Friscolanti 2015). Other concerns relate to the list’s effectiveness in combatting terrorism, relates to how it is shared with foreign governments, the lack of recourse for false positives, the intrusion into privacy, and the inadequate safeguarding of the list by airline carriers (International Civil Liberties Monitoring Group 2010). The no-fly list, some say, is not so much a method to prevent terrorism as it is a ‘signifier of an endemic meaning surrounding terrorism’, implicating it in processes of racialization (Werbin 2009). Not surprisingly, Jamil (2017), found that media coverage on those detained by the Canadian no-fly list disproportionately reports on Muslim communities. Research Methodology Our research draws on 70 interviews from a larger qualitative research study examining counter-terrorism policies. Semi-structured interviews were conducted in 2014–2015 with Muslim community leaders living in five major cities across Canada: Toronto, Ottawa, Montreal, Calgary, and Vancouver. We chose to utilize purposeful sampling in order to include a wide spectrum of representatives from Muslim communities across the country. Muslim community leaders were identified as those who could speak to their communities’ experiences with Canada’s counter-terrorism policies. This included those who had official and prominent roles in Muslim communities, such as Imams in Mosques and executive members of Muslim organizations, as well as Muslim academics, lawyers and political activists. In addition, to ensure our study captured a wide range of voices and diverse perspectives, we also interviewed members of Muslim women and youth organizations. Individuals were selected because they were active in their communities in diverse ways and, therefore, well-placed to speak to the general experiences and concerns among Muslim communities. The sample consisted of 70 per cent male and 30 per cent female interviewees ranging in age from 23 to 74 with an average age of 45. The majority, 91 per cent, were Canadian citizens; 8 per cent were permanent residents, and one individual fell into the category of Protected Persons (suggesting an uncertain status, often the case for refugees). Interviewees represented the diversity of Canadian Muslim communities; their ethnic backgrounds were Indian, Pakistani, African, Egyptian, Syrian, Bosnian, Lebanese, Middle-Eastern, Palestinian, Bangladeshi, Fijian, Sri Lankan, and European. When asked about their own Muslim sect, 59 per cent identified as Sunni, 3 per cent as Shia, and 38 per cent preferred not to identify. Interviewees were recruited through both purposeful and snowball sampling. We approached many Muslim community leaders by directly emailing and phoning Muslim organizations and Mosques. Academics, political activities and lawyers readily agreed to participate in the study. However, some of those from Mosques and certain Muslim organizations were more reluctant to participate and often requested for more information about the study. In these situations, we often engaged in detailed conversations about the project, providing them with additional information regarding the intent of the study and, we explained our ethical commitment to anonymity. This resulted in most community leaders consenting to participate in the study, although a few did refuse to participate citing the current Anti-Muslim climate as a reason for not feeling comfortable to speak about state counter-terrorism policies. A semi-structured interview guide was used to conduct the interviews and interviewees were encouraged to elaborate where they saw fit. Interviews lasted approximately one hour; they were audio-recorded, transcribed, coded thematically, and analyzed using the N-VIVO qualitative software program. Because we had recruited community leaders, our interviews focussed on what they could tell us about how their communities had experienced counter-terrorism measures like the no-fly list. This included not only their recollection of their own direct experiences and their families with counter-terrorism policies but also their accounts of their fellow community members’ experiences. Our intent was to understand the experiences and impact of no-fly lists on individuals but, more importantly, the community at large. Our interest was not in documenting percentages of individuals on the list, but rather to understand patterns of experiences, which we found to be remarkably similar across the country. It is impossible to know with certainty how many of our interviewees are actually on a no-fly list, since the government refuses to notify individuals, but for us what is central is not the actual number, but rather how Canadian Muslims are affected, how they fear the effects of the lists, how it impacts their lives and communities. We used our interviewees’ recollection of these experiences with no-fly list as ‘evidence’ of real practices in society, not just subjective accounts. The lived experiences of racial minorities have often been disregarded in academia and popular discourses by claims that they merely represent ‘perceptions’ and ‘subjective experiences’ rather than as ‘evidence’. According to Frances and Tator (2006) academia reproduces racial discrimination when it undermines the reality of discrimination faced by minorities by dismissing it as non-generalizable, as ‘mere perceptions’, or as ‘subjective’. As they argue, experiences are in fact ‘a body of systematic evidence of individual and systematic racism directed against people of colour’ (Frances and Tator 2006: 122). We draw on the critical race literature to articulate a different way of understanding ‘evidence’ that includes experiences. We take the accounts reported by our interviewees as real evidence of how no-fly lists perpetuate the War on Terror and subjugate Muslim communities to racialized punishment. Arbitrary Targeting of Muslims The most prevalent theme to emerge from the interviews was the pervasive perception that the no-fly list blatantly targets Muslim communities. Across the country, in each city we studied, interviewees repeatedly denounced the no-fly list as a systematic mechanism designed to target Muslim identity. Our interviewees claimed Muslims were placed on the list, not because of any ‘suspicious actions’ or ‘wrong doing’, but because of the racialization of Muslim identity which positions Muslims as ‘dangerous’ and an ‘imminent threat’. One interviewee remarked: The Canadian No-fly list is just a list with a bunch of Muslim names on it and those names in Islam are so common. It’s ridiculous that you can just throw Muslims’ names onto a list. For example, these people they might have had some connection to someone who is involved in some (Muslim) organization that might have funded a ‘terrorist organization’ or whatever. The link they saw is so far off, but they put the person on the list so quickly and so easily just to be on the safe side. It makes me feel, just because you’re a Muslim they can get away with it. There is no justification for this. (Calgary 10) This comment typifies the reactions across our interviewees. Our interviewees repeatedly pointed to how regularly they, or someone they knew, experienced problems flying because they were on the list. Interviewees also frequently spoke of how they or someone close to them were flagged and subjected to added security checks because their names matched someone else’s on the list. One interviewee recounted the following story: My dad frequently has delays, because his name is Samar Khan,3 and apparently there’s some Samar Khan, in some place that is a bad actor and anytime he’s flying a phone call has to be made confirming that, no, my dad is the 83-year old Samar Khan, not the 38-year old Samar Khan. So, there’s always a delay built in when he’s checking in. (Calgary 4) In this age of advanced computerized technology, with facial imaging, fingerprinting, and other data readily available, our interviewees quite rightly wondered why those with similar names were being stopped. In general, interviewees feared the unbounded nature of the lists. They seemed to be expanding to include ever more innocent members of their communities, subjecting them to extra screening or denying travel altogether. There was a pervasive sentiment that entire groups of innocent Muslims were increasingly caught in a web of racialized surveillance that was spreading in unimaginable ways with no reliable justification. Some remarked that some distant connection to someone else was often sufficient to flag a name for inclusion. For instance, a lawyer from Ottawa who has represented Canadian Muslims placed on the list said: ‘I learned that basically people who just happen to be associated with someone either by family relation or by just being in the same circle of contact, can end up on the list’ (Ottawa 14). There was widespread concern that the list would continue to expand, increasing the likelihood of Muslims being put on the list simply for engaging in everyday practices in their communities. Interviewees said Canadian Muslims were specifically being targeted. They substantiated this claim by pointing to the high rate of false positives and the clear lack of accountability. A lawyer from Hamilton said: The list in Canada is supposed to have more checks and balances than the American list. But I know a lot of people who’ve got very common Muslim names and who have had problems with the list. For example, there are a lot of people with the last name Khan. If there is another Khan somewhere in the world that’s a person of interest, then this Canadian (with the same last name) gets scooped up at the airport. (Toronto 30) The high rates of false positives and lack of checks and balances were not perceived as technical mistakes of misidentification but as endemic practices of institutionalized racism. Our interviewees said this could not simply be a case of random error and suggested formal practices of targeting. They mentioned news reports estimating that upwards of 100,000 Canadian have been affected by false-positive screening related to the no-fly list (No-fly list kids 2019). The fact that the government has not adequately responded to the alarming rates of false positives experienced by Muslim communities, they suggested, is negligence, a lack of concern for these racialized minority communities. The inclusion of children’s names on the list was identified by our interviewees as clear evidence of endemic racism. In 2016, numerous media reports raised awareness of Muslim children experiencing flight delays because they were flagged by the Passenger Protect Lists (Huffington Post 2016). Approximately 50 families said their children were prohibited from boarding flights (Khandaker 2018). Our interviewees said the program claimed to only screen those 18 years and older, yet Muslim children were increasingly targeted, suggesting a disconnect between government claims about how the no-fly list functions and what is actually happening on the ground. One interviewee mentioned a child who was placed on the list when he was only six years old: ‘Very dear friends of ours of Lebanese descent, their little grandson whose name happens to be Mohamed was always pulled over when he was 6 years old because his name was on some kind of list’ (Toronto 21). The identification of young children as a risk on the no-fly list reinforced a common sentiment among our interviewees that any Muslim can be seen as a potential threat and thus be arbitrarily subjected to counter-terrorist measures. The mistreatment of Canadian Muslims who appear on the no-fly list intensifies the discrimination and harassment Muslims already face at airports (Nagra and Maurutto 2016). The evidence from our interviews echoes the critical race literature that speaks to how long-standing tropes about the Muslim ‘other’ are ingrained in counter-terrorism policies, with Muslims being deemed guilty by cultural and religious association (Thobani 2007). Layering of Racial Punishment We use the term ‘layering of racial punishment’ to capture the multiple, compounding effects of the no-fly list described by our interviewees. No-fly lists do more than restrict movement; our interviews reveal an ongoing ‘layering of racial punishment’ that pervaded their lives and those affected by the no-fly list in insidious ways. Interviewees recounted the impact on social and family relations, financial security, and employment possibilities. In addition, the label and stigma of being identified as a ‘threat’ had serious consequences on both identity and well-being. Restrictions on mobility interfered with the ability to maintain important family and social relations, intensifying feelings of isolation. We heard of individuals who were unable to attend important family gatherings such as weddings or funerals; some could not visit severely ill family members. One interviewee explained: Imagine your parents are sick in Somalia or in India, you know, your mother is on her last breath and you just want to say goodbye but you can’t travel. Your family could be somewhere else but you can’t travel to see them. So being on the list definitely would make your life miserable. There are a lot of difficulties. (Toronto 20) Another interviewee said: One guy I know was affected by this. So his story was, he’s at the airport with his wife and his kids, he’s of Pakistani origin and is a Canadian citizen. And, he gets singled out on a domestic flight within Canada. He gets pulled off, is not allowed to check-in, humiliated in the airport, and forced to endure the indignity of having his wife and kids travel on without him because, they say you’re on the list. (Toronto 31) Interviewees spoke of the hardship faced when one family member was forced to stay behind while the rest travelled. They identified the detrimental impact on family cohesion and the sustainability of distant relations. Compounding these feelings was the fear of disclosing to family and friends why they could not fly; many felt this could generate suspicion within families and social networks, potentially disrupting these relationships. We also heard about the impact on financial security and employment prospects when people were barred from travelling. One interviewee said: ‘We have concerns about anything that restricts mobility, particularly, from a business perspective, because business people need to travel to do their business’ (Calgary 30). Another interviewee spoke about the impact on a friend who was placed on the list: It was just a really bad situation. And while he was on the list he could not get any job. He was very limited in terms of job prospects. He was not able to support his family. Eventually the Muslim community raised some funds to help him. After five years of contesting it, he finally was able to get his name off the list. (Toronto 24) Another was even more direct: ‘It (the No-Fly list) brings people to the margins of poverty because many of them lose their job. Many of them don’t have access later to the jobs. So, it basically destroys lives’ (Ottawa 3). Equally distressing to interviewees was the potential impact of having to disclose to an employer why they could not travel, as this could impact promotions, salaries, and future job prospects. Interviewees felt that these very real long-term consequences were not fully understood or considered by those operating the no-fly list. The layering of racial punishment was evident in the devastating effects of the no-fly list on people’s psyche and well-being. Racial punishment goes beyond racial profiling and discrimination; it produces a social identity where someone is seen as ‘deviant, flawed, and having an attribute that deeply discredits the individual’ and results in social exclusion (Teasly et al. 2018: 40). Interviewees affected by the no-fly list reported feeling stigma, indignity, fear, and shame. The list materializes the stigma associated with being a terrorist onto the bodies of Muslim Canadians. While all Muslims may be perceived as a ‘potential threat’, the no-fly list suggests the state has vetted certain people and officially designated them as a ‘threat’ to society. One interviewee commented: ‘Psychologically I feel very embarrassed about being on the list, like I have done something wrong, and I am supposed to be stopped. But I know that there is no reason to it. It is emotionally very draining’ (Toronto 2). Others said being stopped sent a clear message that they were considered a ‘threat’, a ‘terrorist’, and a ‘danger’. Another added: ‘You feel judged. When you’re in the airport and you get stopped, how does that make you feel? Of course, you feel like they think you are a threat. When security pulls you aside, you feel like saying, “I’m not a terrorist. I’m not”’ (Calgary 13). And a third commented: ‘They are saying you’re a suspected terrorist; “we think you’re too dangerous to fly.” It’s a tremendous slap in the face for anybody to experience it and to experience it in front of other people’ (Toronto 31). In short, what came across in our interviews was that being labelled a terrorist is a powerful identity marker with permanent psychological and social consequences. Our interviewees reiterated the trauma associated with waiting at the airport and the fear of being detained and potentially harassed by security personnel: During that while, like those few hours where the person is taking aside into the room, it’s a scary period for person to go through, especially if it’s someone who is not a citizen of this country. There is no guarantee that they’ll be okay. You end up being very afraid, terrorized possibly. Not knowing what the consequences will be and what will potentially take place. (Toronto 24) Echoing across the interviews was the widespread fear of entering a ‘state of exception’ where civil laws and rights could be readily stripped away at the whim of security guards. Interviewees wanted us to know that this overwhelming fear did not reflect one negative encounter at the airport. It was ongoing; they were repeatedly stopped for extra screening, sometimes simply because they shared a name with someone on the list. They had to prove again and again that they were not a threat. The repeat screening caused frustration and was a constant reminder that they were being watched. One interviewee explained: I was travelling to Vancouver to Calgary, and it took me about an hour or so for them to make the phone calls to make sure I’m, ‘Okay’. I went to Vancouver for three days, and when I was coming back to Calgary the same thing happened again. I said, ‘I am the same person. I have the tickets, you already checked me. What could happen in three days that I am a risk to British Columbia that you’ve got to check again?’ So, that was very annoying. (Calgary 31) This repeat targeting traumatized our interviewees, in part, because they never knew, if not this time, then possibly next time, they could encounter civil rights abuses. The stigma, they felt, would never end. The experiences described in the interviews suggest racial punishment is a complex and layered process that operates on multiple levels and goes well beyond the mainstream understanding that the no-fly list merely impacts mobility. Rather, it reinforces a racial process that demeans, threatens, and devastates, in insidious ways, every aspect of individuals’ lives. These experiences reinforce what Razack (2008) calls the racial process of marking Muslims at a different level of humanity where they are treated as deviant and flawed individuals who deserve to have their civil rights curtailed. The no-fly list is deeply implicated in the racialization process, legitimatizing the erosion of fundamental rights and justice, an issue explored in the following section. Erosion of Fundamental Rights and Justice A central theme raised by our interviewees was the opaque procedures embedded in the no-fly list. Our interviewees said discovering they were on a list was traumatic, but equally distressing were the practices associated with the Passenger Protect Program. They raised alarm over the erosion of core legal protections and rights, such as the presumption of innocence, the right to a legal defence, and the right to a fair trial. They also noted the unrestrained and unchecked powers of the state and the lack of recourse to an appeal process that would enable one to and prove one’s innocence. Particularly troubling for our interviewees was that those placed on the no-fly list were not officially notified; most discovered they were on the list after arriving at the airport to check-in. Interviewees found this humiliating. One interviewee commented: I find it interesting that if you’re trying to build relationships and really prevent this (terrorism) from happening, but you’re not being completely transparent with the community. I think that’s a conflict, right? So, if someone is on the passenger protect list, I think it’s in the best interest to talk to that person and be like let’s do some investigation around this and tell the person you have concerns about them. Not having people arrive at the airport and then be like ‘oh, I’m sorry, you can’t travel’, slap in the face. (Calgary 2) According to Public Safety Canada (2019), people are only notified that they are on the no-fly list if they are prohibited from boarding a flight. By denying them advance notice of their status, Canadian Muslims are stripped of their humanity and are deemed so dangerous and unworthy; they are no longer treated as Canadian citizens who deserve to be notified by their state that their ability to fly has been restricted. Instead, they are publically shamed when they discover in public that they are not allowed to fly, intensifying and compounding the stigma of being on the no-fly list. A second theme to emerge was the lack of due process. Our interviewees were concerned that people were placed on the list without having a chance to defend themselves. The following comments are indicative of their feelings: You can’t have it both ways. A person is guilty of a crime, then they need to go to jail. They are innocent and you don’t have any evidence against them to convict them, leave them alone. Give them their freedom. I don’t feel a person should have to stay in limbo. (Calgary 3) You’re creating some fly apartheid. Either get the names of these people and check them carefully. Do they actually have security problems or not? Not just putting them in the list and saying, ‘your name is in the list and you can’t really fly, you can’t really go to your home country’. This is absolutely something that we cannot accept. This is illegal apartheid. It’s either you bring those names into justice and try to indict them, ultimately, or clear all those names actually…It’s basic human rights. (Montreal 12) The lack of due process rights was equated to ‘illegal apartheid’, and the no-fly list was perceived as operating outside conventional legal standards. Our interviewees said the so-called preventative security measures were more punitive than criminal sanctions. They noted how they did not have the legal presumption of innocence granted under criminal law. In criminal law, one may not receive an adequate defence, but with no-fly lists, interviewees noted, there is no legal defence at all. Their comments are backed up by studies suggesting counter-terrorist measures ‘mimick the coercive effects of the criminal law but yet are not subject to the same sorts of restrictions and protections of the criminal procedure’ (Lazarus et al. 2012: 471). The secrecy and lack of transparency over how the no-fly list operates was another concern. No information is provided on the criteria or indicators used to place a person on the list. Moreover, those on the list cannot access the evidence used against them. One interviewee mentioned: ‘I look at the no-fly list and it’s abominable. You can’t find out why you’re on it. That’s something that people are very weary of it. They don’t trust that it would be done in a fair way based on precedence’ (Ottawa 9). Our interviewees thought Muslims were deemed a security risks so dangerous that they were not given access to the evidence against them, reinforcing their fears that they were at risk of having normal rules of law arbitrarily suspended. Another common perception was that the state was relying on circumstantial and unreliable evidence and, as a result, was reluctant to be transparent about its procedures. In our interviewees’ eyes, this amounted to a witch hunt. Interviewees were also distressed by the lack of an appeal process. No information is provided on how to contest the list; those on the list are denied the right to have a hearing or to defend themselves. Our interviewees could not understand how a Canadian legal process could circumvent the right to a legal defence to clear their identity. They said it felt like the criminalization of Muslim identity but without the procedural protections embedded in criminal law. One interviewee mentioned: The onus is totally on the individual to figure out how to navigate through the system. It’s not like that the government took the onus on themselves to remove you from certain lists the first time they realize it’s a mistake. You have this feeling that you can’t get off because you don’t know how it works, you don’t know how you got on a list to begin with. I don’t have the awareness, or our community doesn’t have the awareness, of how to remove yourself from the list. And when my husband (who is on the list) asked the security people at the airport about how do I get off of the list, they told him ‘we’ve already given too much information.’ So the little bit of information about you getting on the list is already too much information. And then you just leave the airport and try to fly next time. (Toronto 12) Interviewees said when they asked for information at airports, they were not told about the potential for recourse. Without this information, few knew how to initiate an appeal. And many could not afford the cost of hiring a lawyer to find out for them. As one interviewee remarked, They say they are ways in the system to get off the list but I don’t know how. So I need to go and fight. But who is paying for the lawyer fees and all the costs that I can’t afford? ‘Well, it’s not our problem.’ Well, it wasn’t my problem for you to put me on the list. You didn’t ask my opinion. (Toronto 20) Not knowing how to get off the list contributed to feelings of uncertainty, frustration, powerlessness, and vulnerability. Also disconcerting was the fear of how the list might be shared with other countries, especially the United States. One interviewee mentioned: There is a problem with them sharing that list with the States. Because if they put your name on the Canada list and they share the list with the States, then US will put your name on their no-fly list. Then you are really in trouble because you cannot force the United States to withdraw your name. (Montreal 6) In addition, some worried that another country’s airline, for example, American Airlines, which operates in Canada, would have access to the list. Under SATA, the no-fly list can be shared with foreign governments; there are no restrictions on the sharing of lists (International Civil Liberties Monitoring Group 2019). This creates real concerns over the number of agencies and international airlines with access to the Canadian no-fly list. Even if someone were to clear his or her name from a Canadian list, this does not guarantee the name is cleared with other countries. The lack of notification, secrecy over who is on the list, the lack of due process, and the lack of transparency over how the list operates were repeatedly raised as evidence of how readily rights and legal protections were eroded, not for everyone, but for those deemed unworthy. This along, with the reverse onus to prove one’s innocence and lack of information on how to clear one’s name, reinforced the perception that the trope of the lawless ‘radical Muslim terrorist’ is being used to justify security configurations that are shrouded in secrecy. The erosion of fundamental rights and freedoms was experienced as ‘apartheid’ or a ‘state of exception’ where Canadian Muslims inhabit communities without the right to have rights (Razack 2008). Fear of Community Association Our interviewees responded to the fear of the no-fly list in complex and contradictory ways. While some actively engaged in strategies of resistance (explored in the next section), others employed what Mythen et al. (2009) refer to as techniques to diffuse and deflect risk labelling. Critical race scholars have shown how those subjected to state surveillance often start self-regulating their behaviour (Naber 2006; Zine 2012). We found a similar phenomenon; fear of being put on the list led some of our interviewees to alter the ways they participated in religious and cultural communities. Interviewees thought they were at risk of being targeted by state policies and potentially being placed on the no-fly list if they engaged too much with their community. This fear of association took multiple forms. Some feared giving money to Muslim organizations. One interviewee remarked: ‘I have become less likely to contribute my money to mainstream Muslim organizations. I want to make sure that my money does not come back to bite me. I don’t want to end up on some list’ (Montreal 16). Others talked about being afraid to regularly visit mosques, as they felt this could attract state suspicion. Interviewees also spoke of Muslim parents who stopped their children from attending Muslim events and joining Muslim organizations to protect them from state surveillance. Leaders of Muslim communities or religious organizations (a large part of our interviewees) reported that as the face of the community, they now feared state suspicion. Some mosque leaders did not want their names appearing on their organization’s website to avoid broadcasting their association with it. One interviewee told us: Most of the time the mosque leaders don’t want to be advertised on the websites. If you look at the mosque websites, there was nothing on them. That’s not because they don’t want to put... they just don’t want it to be public. Because they’re afraid that it might get them unwanted attention. (Montreal 6) The fact that even those in powerful positions in their community were fearful about showing their affiliation with mosques demonstrates the pervasive fear of association within Muslim communities. The culture of fear was tied to distrust in the government and the undemocratic erosion of the rule of law. The majority of our interviewees had no faith that they would be treated fairly by state agencies if they came under suspicion. One stated: ‘We’ve completely lost trust in our government, we’ve completely. We’re living in fear’ (Calgary 10). Overall, our interviewees agreed that because Islam was increasingly conflated with terrorism, they did not have to do anything wrong; their association with Muslim communities was enough to mark them as suspicious. Hence, several participants were caution of their engagement with their communities. Reactive Resistance For many of our interviewees, the experience of being targeted and victimized strengthened their political engagement. While the previous section described how fear of association caused many to retreat from religious and cultural associations, many, nonetheless, proactively mobilized and engaged in acts of political resistance. They developed ties to mainstream human rights organizations, became more politically active, and learned to use social media to draw public and political attention to the extreme effects of counter-terrorism policies. While our sample included primarily Muslim community and religious leaders who were more likely to become involved in political action anyway, their comments suggested that political engagement was evident in the wider Muslim communities. Moreover, our findings are supported by research on political action among minority groups subjected to excessive repression (Kundnani 2002; Das Gupta 2004; Mythen et al. 2009; Nagra 2011; Peek 2011). Research on identity formation indicates that when faced with religious discrimination and racism in the post 9/11 era, many Muslims in western nations have responded by reasserting their Muslim identity and their rights (Kundnani 2002; Das Gupta 2004; Mythen et al. 2009; Nagra 2011; Peek 2011). Some interviewees spoke of engaging with politicians by writing memorandums and submissions and speaking at political events and discussion forums. Participation in this type of political action fostered the empowerment of many Muslims disaffected by government policies. One interviewee said: We have a lot of (Muslim) organizations that have done excellent work when it comes to advocacy for the Muslim community. So, that their voice can be at the table whenever we’re having serious discussions about policy. I think every Muslim should really be a part of some sort of organization because you have to feel empowered. (Montreal 16) One said the following: I was on the board of the Canadian Muslim Lawyers Association… we have an advocacy committee that deals with these types of things and we release press releases on certain issues. We might even address legislative committees … and provide our submissions. (Toronto 9) Active lobbying to ensure politicians understood how civil liberties were being violated was a mechanism that brought communities together and provided hope where many felt it had been lost. Interviewees also commented on how their Muslim organizations forged alliances with larger Canadian civil and human rights. As one community member noted, ‘We participate in coalitions with other civil liberties organization and try to increase the impact of our statements, … we provide our feedback about security practices’ (Ottawa 4). These partnerships allowed an exchange of skills and strategies and increased larger social activist groups’ sensitization to Muslim concerns. Another common strategy identified by our interviewees was the use of public media to advance their claims. For example, one interviewee said he had tried to build linkages between the media and his community: ‘I found that the Muslim community was lacking completely in media relations in that capacity. So I helped bridged the gap with organizations like the CBC, the CTV with the local Muslim community’ (Calgary 16). These mechanisms were described as critical to reclaiming how Muslim communities are publicly depicted. Some interviewees pointed to the #No-FlyListKids as a successful campaign where Muslim groups, together with civil rights organizations, effectively used social media to draw attention to the number of children experiencing flight delays because they were flagged by a no-fly list (Khandaker 2018). The #NoFlyListKids group was formed in 2016, with no funding; it mobilized online and brought Muslim organizations together with larger social groups to protest the use of counter-terrorism policies targeting children and youth. Their use of social media fuelled a public backlash that prompted the federal government to revise its policies. In 2018, the federal government allotted $81 million to revamp the Passenger Protect List, with additional funds promised in subsequent years (Scotii 2019). Despite these changes, some children continue to be flagged by the no-fly list (International Civil Liberties 2019). These forms of reactive resistance were critical in pressuring the Canadian government to introduce new legislative changes. In 2017, the government introduced Bill C-59. Under this bill, parents will be informed if their children are on the list and an automated redress system for those falsely accused will be formed. However, Bill C-59 requires Senate approval, and the new redress system will likely not come into force until 2022 or later. Although it falls short of repealing the no-fly list or dealing with its serious and egregious deficiencies, public pressure from Muslim organizations has led to the creation of some checks and balances. These may be considered minor effects, as racism continues to be ingrained in counter-terrorism policies. Nonetheless, minor victories have real effects on the lives of those affected and should not be dismissed. Conclusion Our interviews with Canadian Muslim community leaders reveal the multiple and layered effects of the no-fly list and how these lists function as a racialized form of punishment with far-reaching punitive effects. Our findings, while specific to the Canadian context, are relevant for other countries with similar policies. Indeed, no-fly lists are part of a broader counter-terrorism arsenal that compounds the discrimination that Muslims already face at borders. Criminology, surveillance and the preventative security literature has documented that counter-terrorism does target racialized minorities. Our work contributes to this scholarship by demonstrates how this ‘othering’ and discrimination operates in Muslims’ daily lives. The depth of experiences is far more penetrating and far-reaching than simply being denied travel. We identify five common patterns of experiences that were expressed by interviewees across the country. Our research points to, first, how no-fly lists are perceived as a blatant racialized tool for targeting Muslim communities. Our interviewees spoke of how, evermore innocent Muslims are arbitrarily placed on lists, including young children, with no explanation or rationale given by authorities. Moreover, the high rates of false positives that specifically target Muslim people, coupled with the lack of government oversight over how no-fly lists operate at borders, are illustrative of endemic practices of institutionalized racism. Second, our findings underscore the layering of racial punishments that pervade the lives of those affected by the lists. The impact of the lists was not contained to one negative encounter; rather, they resulted in repeated forms of punitive processes, humiliation, psychological strain and stigma. No-fly lists produced cumulative overlapping harms that affected social and family relations, economic security, employment, and psychological well-being; these effects spread far beyond mobility restrictions. Yet, the full weight of these effects is often obscured in political discussions. Third, no-fly lists function as a ‘state of exception,’ where fundamental legal and human rights are readily suspended in the name of protecting national security, thereby, reproducing racial hierarchies. Preventative security measures such as no-fly lists erode core liberal protections such as the right to notification, presumption of innocence, the right to a legal defence, the right to challenge or appeal, or even know the claims made against you. Our interviewees spoke of how their communities were racialized as so excessively dangerous that normative legal protections could be arbitrarily suspended on the flimsiest of evidence or, on the basis of no evidence at all. Four, no-fly lists are so extreme in their effects that they disrupt not only those on the lists but entire Muslim communities creating a pervasive culture of fear. Interviewees spoke of how many restricted their participation with Muslim cultural or religious organizations because of fear that such association would land them on a list. Perhaps, one of the most insidious effects of counter-terrorism policies such as no-fly lists is that Muslims no longer feel safe within their own communities. Despite these fears, several interviewees spoke of how the targeting and victimization of Muslim communities intensified their political engagement. The extreme effects of no-fly lists spurred many to proactively reassert their Muslim identity and engage in reactive forms of resistance. They forged alliances with Canadian civil and human rights organizations, engaged with media outlets and lobbied governments for changes to legislations. These forms of reactive resistance were instrumental in drawing attention to the penetrating extreme effects of counter-terrorism policies but also brought government policies under greater public scrutiny, thereby, forcing the federal state to consider, even if only at the level of rhetoric, the provision of some checks and balances. Our findings speak to how the layering of racial punishment is endemic to no-fly lists, but also counter-terrorism policies more broadly. In fact, the list is just one of many counter-terrorism measures designed to pursue the ongoing ‘War on Terror,’ a war driven by racial and political discourses (Thobani 2007; Razack 2008). The formation of policies, like the no-fly list, that rarely consider the widespread punitive effects on individuals, families and communities, is a racial process that is made possible because of long-standing racial hierarchies and histories that mark Muslims at a different level of humanity. Canada, as well as other western countries, have historically policed borders along these racial lines. Our findings are informed by but also broaden the understanding of preventative security logics. The preventative security literature, in the field of law, criminology, citizenship and surveillance studies, has articulated how the architecture of counter-terrorism targets racial groups and reproduces racist practices (Ackerman 2007; Macklin 2007; Zedner 2010:394; Roach 2011; Dubber 2013; Ashworth and Zedner 2014). It has highlighted how ‘hyper’ security legislation fosters the production of enemy groups in order to legitimate the erosion of protected legal rights (Roach 2011). Practices of ‘racial profiling’, and ‘social sorting’ produced through counter-terrorism rhetoric have been shown to depleted civil rights producing second class citizenship (Lyon 2003; Zedner 2010; Lyon and Haggerty 2012). Anti-terrorism laws reduce legitimate checks on the arbitrary and excessive use of power and promote a security logic that privileges some while depleting the same protections for others. Our work contributes to this literature by demonstrative how the punitive practices, embodied in the no-fly list, have devasting effects that are far reaching and operate in insidious cumulative ways that affect not only those identified as ‘potential suspects’ but entire Muslim communities. However, we argue that the preventative security literature is limited and insufficiently acknowledges how counter-terrorism logics are engrained in long-standing histories of colonial and race relations. The rapid formation of intensely punitive counter-terrorism policies that target racialized minorities, in this case Muslims, is made possible because of deeply rooted historical practices of race relations, colonialism, orientalism and Islamophobia. The ease with which much hyper counter-terrorism has been accepted is only possible because of long-standing historical process of race relations. The rhetoric underlying Western security and counter-terrorism policies rely on what Said (1985) long before identified as enduring tropes about the barbaric Muslim ‘other’. The depiction of Muslim communities as incubators or risk deserving of extreme sanctions cannot simply be attributed to 9/11 or similar events. Critical race theorists have brought attention to how the demonization of Muslim communities has long-standing historical roots upon which claims to Western security have been built (Ahmed 2000; Naber 2006; Sharma 2006; Thobani 2007; Razack 2008; Zine 2012). Liberal states have always legitimized security through acts of coercion and violence directed at racialized minorities; for instance, the creation of the Canadian state was made possible through the violent eviction of indigenous communities (Thobani 2007, 2018). By the same token, counter-terrorism measures allow liberal states to pursue ongoing racialized nation-state projects where they can use coercion to police racialized communities without jeopardizing their legitimacy as law-abiding liberal states. The speed with which the Passenger Protect legislation was passed, the lack of checks and balances, the high rates of false positives, the ready removal of legal protections, are only possible in a nation with a history of race relations, where rights have always been allocated unevenly and denied to racialized minorities. The ability of states to so easily operate outside of democratic rights and legal protections is part of the historical racial legacy of Canadian and other Western nations. It is precisely within this historical context that punitive policies like the no-fly lists, among other counter-terrorism policies, are made possible. Acknowledgements We are thankful to Patti Tamara Lenard for her support of this research project. 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Google Preview WorldCat COPAC Footnotes 1 Because of the large number of flights to and from Canada over US airspace, Canadian policies on airline security are intrinsically tied to the United States. The Canadian government created its list to avoid handing over passenger rosters to the United States or checking Canadian names against US lists for Canadian flights (Bennett 2008). 2 If a person is on the slow-fly list, the airline is required to contact Transport Canada who will confirm if the individual poses a threat to aviation security and should undergo additional screening or is prohibited from boarding a flight (Luongo 2010; https://www.publicsafety.gc.ca/cnt/ntnl-scrt/cntr-trrrsm/pssngr-prtct/ppio-faq-en.aspx). 3 This name has been altered for confidentiality reasons. © The Author(s) 2019. Published by Oxford University Press on behalf of the Centre for Crime and Justice Studies (ISTD). All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - No-Fly Lists, National Security and Race: The Experiences of Canadian Muslims
JF - The British Journal of Criminology
DO - 10.1093/bjc/azz066
DA - 2020-04-04
UR - https://www.deepdyve.com/lp/oxford-university-press/no-fly-lists-national-security-and-race-the-experiences-of-canadian-HWwcI2ALYz
SP - 1
VL - Advance Article
IS - 
DP - DeepDyve
ER -