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Annual Report 2004-2005 - An Operational Review of CSIS Activities
Appendix C : Key Findings and Recommendations
Review of the Terrorist Entity Listing Process
In 2004-2005, SIRC conducted its first review of a CSIS function engendered by Canada's new Anti-Terrorism Act, specifically the Service's role in the Terrorist Entity Listing (TEL) process. The TEL process is mandated under Section 83.05 of the Criminal Code, as amended by the Anti-Terrorism Act. CSIS's role in the TEL process is the creation of Security Intelligence Reports (or SIRs), considered by the Minister of Public Safety and Emergency Preparedness in her recommendation to the Governor-in-Council concerning whether or not an entity should be listed.
The Committee contends that the listing process may require CSIS to collect, retain, and analyze information that does not fall within the definition of “threats to the security of Canada
” as defined in the CSIS Act. Overall, in the Committee's review of the Service's role in the TEL process, SIRC found that the Service's collection of information for the listing process was undertaken in accordance with Ministerial Direction—once this direction was provided—and according to relevant operational policies. Nevertheless, SIRC concluded that the process required the Service to collect some information that does not fall under the authority set out in the CSIS Act, in regard to “threats to the security of Canada.
”
The Committee was unable to have access to the SIRs during its review of the Service's role in the TEL process, owing to Cabinet confidence. While SIRC was able to perform a reasonably comprehensive review of CSIS's role in this process, its efforts nevertheless fell short of a complete assessment.
Review of CSIS's Investigation of Transnational Criminal Activity
This review assessed CSIS's investigation of transnational criminal activities (TCA) and focussed on the Canadian-based activities of several foreign-based, transnational organized crime groups. The investigations sampled for this review were national in scope and subject to Level II and Level III targeting investigations into suspected threat-related activities as described in Section 2(b) of the CSIS Act.
SIRC concluded that CSIS had reason to believe that the activities of the four individual targets were foreign-directed or undertaken on behalf of foreign interests, and generally represented a threat as defined in Section 2(b) of the CSIS Act. In addition, SIRC found that the Service complied fully with Ministerial Direction and operational policy in applying for targeting authorization. It also applied a level of intrusiveness proportionate to the suspected threats.
There were no recommendations arising from this review.
Review of a Counter-Terrorism Investigation
This study outlined the results of SIRC's examination of a CSIS counter-terrorism investigation that had not been the focus of a comprehensive SIRC review in over a decade, yet has remained a high priority of the Counter Terrorism Branch. This investigation was the subject of a Level III targeting authority for suspected threat-related activities as described in Section 2(c) of the CSIS Act.
The Committee selected for in-depth review one issue-based target, one targeted organization, six individual targets, one warrant and six human-source operations. SIRC assessed the Service's compliance with the CSIS Act, Ministerial Direction and operational policy by examining key operational activities. SIRC found that, based on the information in the Service's possession, CSIS had reasonable grounds to suspect that the authorized targets of investigation posed a threat to the security of Canada. The level and intrusiveness of the Service's investigation were proportionate to the suspected threat.
There were no recommendations arising from this study.
Review of Activities and Investigations in a CSIS Regional Office
SIRC endeavours each year to undertake a comprehensive review of CSIS's activities in a particular region. This type of review looks at the targeting of individuals, implementation of warrant powers, use of human sources, as well as cooperation and exchanges of information with Canadian and foreign partners. SIRC also reviewed CSIS's internal security measures for the region, as well as any security violations and breaches between April 1, 2000–March 31, 2003.
Overall, the region's investigative activities during the review period complied with the CSIS Act, Ministerial Direction and operational policy. SIRC found that CSIS had reasonable grounds to suspect the authorized targets of investigation posed a threat to the security of Canada, and that the intrusiveness of the techniques used were proportionate to the suspected threat these targets posed.
During the review, SIRC's attention was drawn to the involvement of certain targets in a local organization—one that had multiple functions. Based on this, the Committee found that the organization had a dual function. SIRC believes operational policy governing investigations that have an impact on, or appear to have an impact on one function should apply to this organization. CSIS disagreed with this finding.
The Committee recommended that CSIS define a term in its operational policy.
Review of a Counter-Proliferation Investigation
This study examined the Service's investigation of the threat to Canadian security posed by activities related to the proliferation of weapons of mass destruction by persons or organizations linked to a certain country.
SIRC found that the Service complied fully with Ministerial Direction and operational policy with respect to applications for targeting authorization and approvals for each of the investigations reviewed by SIRC. The Committee concluded that the Service had reasonable grounds to suspect that each of the authorized targets of investigation posed a threat to the security of Canada. The level and intrusiveness of the Service's investigation was proportionate to the suspected threat. CSIS collected only information strictly necessary to fulfill its mandate.
SIRC endorsed the Service's approach of engaging relevant private-sector entities, undertaken via the Liaison Awareness Program (LAP). The Service met all of the requirements of the CSIS Act and operational policy with respect to warrant acquisition. SIRC concluded that one CSIS regional office did not comply fully with policy requirements concerning the timely provision of verbal and written tasking to the employee responsible for monitoring intercepted communications. CSIS adhered to policy requirements and Ministerial Direction in the management of the human-source operations reviewed. Overall, the Service's cooperation and exchanges of information with domestic and foreign partners complied with operational policy.
There were no recommendations arising from this review.
Review of CSIS's Information Operations Centre
SIRC undertook its first-ever review of CSIS's investigation of threats against Canada's critical information infrastructure. It did so with two objectives. First, SIRC reviewed the role of the Information Operations Centre (IOC) in investigating threats against Canada's critical information infrastructure. Second, the Committee reviewed the IOC's operations, examining one counter-intelligence investigation of an information operation for compliance with the CSIS Act, Ministerial Direction and Service operational policies.
Notwithstanding two concerns identified below, SIRC found that in carrying out its duties and functions, the Service complied with the CSIS Act, Ministerial Direction and CSIS operational policies. SIRC's first concern was that operational policy keep pace with the matter reviewed.
SIRC recommends that the Service review operational policy to ensure that it clearly incorporates certain matters in relation to Section 12 targeting.
The Committee's second concern was related to administrative errors.
SIRC recommends that the Service review operational policy to ensure that if it is necessary to cross-reference operational database reports recorded under one file number with reports recorded under another file number, this should be noted in the “Investigator's Comments
” section of the reports.
Review of CSIS's Exchanges of Information with Close Allies
The case of Mr. Arar focussed public attention on the use of information that may have been collected in Canada and then shared with Canada's foreign partners. The Committee decided to undertake its first in-depth examination of CSIS's exchanges of information with close allied partners. Drawing on one of the Service's counter-terrorism investigations, SIRC chose to review CSIS's information exchanges with four allied agencies as the focus of the detailed review.
In the context of the investigation that was reviewed, SIRC found that the Service's exchanges of information with allied agencies were in accordance with respective foreign arrangements and complied with the CSIS Act, Ministerial Direction and operational policy. The Committee also found that the Service exercised due diligence in exchanging information about targets of investigation.
While the Service obtained appropriate approval prior to disclosing information to selected allied agencies, SIRC found that operational policy should accurately reflect which managerial level is accountable for information exchanged with foreign agencies.
SIRC recommended that CSIS amend operational policy to indicate clearly the managerial level accountable for disclosures to foreign agencies.
In this study, SIRC also examined how human rights were addressed within the context of foreign arrangements. When CSIS initiates the process to enter into a new arrangement with a foreign agency, it informs Foreign Affairs Canada and the Minister of Public Safety and Emergency Preparedness that it will “closely scrutinize the content of the information provided to, or received from, a foreign agency in order to ensure that none of the information sent to, or received from, that agency is used in the commission of, or was obtained as a result of, acts that could be regarded as human rights violations.
” However, the Committee concluded that CSIS was not in a position to provide such an absolute assurance.
SIRC recommended that CSIS revise the content of the letters to Foreign Affairs Canada and the Minister of Public Safety and Emergency Preparedness to avoid leaving any impression that it can guarantee that information sent to, or received from, a foreign agency was not used in the commission of, nor was obtained as a result of, acts that could be regarded as human rights violations.
Review of a Counter-Intelligence Investigation
SIRC examined this counter-intelligence investigation for the period January 1, 2003, to December 31, 2003. The objective was to assess the Service's compliance with the CSIS Act, Ministerial Direction and all relevant operational policies.
Overall, the counter-intelligence investigation was in compliance with the CSIS Act, Ministerial Direction and operational policy during the review period. SIRC found that CSIS had reasonable grounds to suspect that the authorized targets of investigation posed a threat to the security of Canada. Moreover, the Committee found that the intrusiveness of the techniques used were proportionate to the suspected threat that these targets posed. CSIS investigators only collected information that was strictly necessary for the investigation. They also acted appropriately and within the law in their use of human sources.
Throughout the review, SIRC paid particular attention to CSIS's investigation of interference activities. SIRC found that CSIS's operational policies covering these types of situations were incomplete. Because of this, the Committee recommended that:
CSIS review and amend, where appropriate, its operational policies relating to specific institutions to ensure that they cover all aspects of a given process.
Terrorist Financing Activities in Canada
The objective of this study was to examine CSIS's investigation of terrorist financing activities in Canada for in-depth review. SIRC selected one issue-based target, and five specific targets. In each case, the Committee assessed the Service's compliance with the CSIS Act, Ministerial Direction and operational policy.
The Committee concluded that the Service had reasonable grounds to suspect that the activities of targeted individuals and groups posed a threat to the security of Canada. The level and intrusiveness of the Service's investigation were proportionate to the suspected threat, and CSIS collected only that information necessary to fulfill its mandate. The Service's activities complied with the CSIS Act, Ministerial Direction and operational policy.
SIRC was satisfied with the degree and nature of the Service's cooperation with domestic and foreign partners.
It is possible that the Service may be required to collect and analyze information regarding an entity that meets the definition of a listed person or group under the United Nations Suppression of Terrorism Regulations (UNSTR), but does not represent a threat to the security of Canada under Section 12 of the CSIS Act. Further, SIRC noted that the UNSTR does not specifically direct the Service to participate in the listing process, nor has the Minister of Public Safety and Emergency Preparedness provided CSIS with specific direction to that effect.
There were no recommendations arising from this study.
CSIS Liaison with Foreign Agencies: Review of a Security Liaison Post
SIRC sought to determine whether exchanges of information from this post with foreign agencies were within the scope of the government-approved liaison agreements in place. The Committee also assessed the operations at the security liaison post in relation to the CSIS Act, Ministerial Direction, and the Service's operational policies and procedures.
For context, SIRC also reviewed this post's operations, and evaluated them against issues raised in SIRC's ongoing statutory reviews of CSIS's Foreign Arrangements. Moreover, the report considered trends identified in SIRC's SLO studies over the previous five years.
SIRC was concerned by the lack of updated CSIS documents to assess the liaison relationships at the post. While there are written guidelines for the creation, submission and updating of these documents, there are no formal CSIS policies governing this activity. The Committee made the following recommendation:
The Committee recommended that the Service create policies for the preparation, updating and annual submission of CSIS documents used to assess the scope of exchanges with foreign agencies.
Review of Foreign Arrangements
Under Section 17(1) of the CSIS Act, the Service may enter into an arrangement with the government of a foreign state, or an international organization of states (or an institution thereof ), for the purpose of performing its duties and functions. Section 38(a)(iii) of the CSIS Act directs SIRC to review all such arrangements. During 2004-2005, SIRC undertook its first comprehensive review of the expansion process. An enhancement or expansion occurs when the Service changes an existing arrangement. This defines the subject matter and extent of authorized exchanges.
SIRC found that CSIS complied with the conditions set out in Ministerial Direction and operational policy regarding the expansion of the ten existing foreign arrangements. With respect to expansion approvals, SIRC noted that the Service has no operational policy on what type of information must be contained in the request submitted to the Director. The Committee also noted that the assessment of agencies with whom the Service has arrangements were not always submitted on a yearly basis as required in the Foreign Liaison Post Procedures Manual.
There were no recommendations arising from this review.