Annual Report 2008-2009 - Accountability in a New Era of Security Intelligence

Section 2: Summaries of SIRC reviews and complaints

A. Reviews

For more than 25 years, SIRC’s reviews have provided Parliament and Canadians with a comprehensive picture of the Service’s operational activities. It has also scrutinized CSIS’s performance of its duties and functions to determine if the Service acted appropriately, effectively and in accordance with the law.

SIRC’s reviews provide a retrospective examination and assessment of specific CSIS investigations and functions. The Committee’s reviews include findings and—where appropriate—recommendations for the Service. Upon completion, all reviews are forwarded to both the Director of CSIS and the Inspector General of CSIS. SIRC is also authorized to provide special reports to the Minister of Public Safety on any matter that the Committee identifies as having special importance or that the Minister asks SIRC to undertake.

SIRC’s research program is designed to address a broad range of subjects. In deciding which matters to review, SIRC considers:

• events with the potential to represent threats to the security of Canada;
  
  
• particular activities by CSIS that could have an impact on individual rights and freedoms;
  
  
• priorities and concerns identified by Parliament or in the media;
  
  
• issues identified in the course of SIRC’s complaints functions;
  
  
• new directions or initiatives announced by, or affecting, CSIS;
  
  
• the CSIS Director’s annual classified report submitted to the Minister of Public Safety; and
  
  
• the need to assess regularly each of the Service’s branches and regional offices.

Each review results in a snapshot of the Service’s actions in a particular context. This approach allows SIRC to manage the risk inherent in being able to review only a small number of CSIS activities in any given year.

SIRC’s researchers consult multiple information sources to examine specific aspects of the Service’s work. As part of this process, researchers may arrange briefings with CSIS employees, as well as examine individual and group targeting files, human source files, intelligence assessments and warrant documents, plus files relating to CSIS’s cooperation and operational exchanges with foreign and domestic agencies and partners, among other sources that vary between reviews. The goal is to create a diverse pool of information so that SIRC can ensure it has thoroughly reviewed and completely understood the issues at hand.

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SIRC Review: CSIS’s Role in the Matter of Omar Khadr

Context

Many Canadians are familiar with the story of Omar Ahmed Khadr—a Canadian citizen held at the United States detention facility at Guantanamo Bay, accused of killing a United States army medic during a firefight in Afghanistan in 2002. The American legal case against Khadr, his treatment while in US custody, his status as a child soldier, and the Canadian government’s stance on his repatriation—all of these topics have garnered widespread media coverage and commentary. In July 2008, Khadr’s story was thrust onto the international stage when his lawyers released a videotape showing CSIS officials interviewing their client at Guantanamo Bay in February 2003. The video prompted questions in the public domain about the nature and extent of CSIS’s involvement in this matter, including the reasons for the Service’s decision to interview Khadr.

SIRC’s Review

SIRC’s objective was to conduct an in-depth review of CSIS’s involvement in the case of Omar Khadr. The Committee looked back as far as mid-August 2002—when Canadian officials, including CSIS, were informed by American authorities that Khadr had been captured by US forces—to the federal court injunction in September 2005, prohibiting further interviews with Khadr by Canadian authorities.

In February and September 2003, CSIS officials travelled to Guantanamo Bay to meet with Khadr. SIRC noted that, from the Service’s perspective, there were compelling operational reasons to interview him, given the threat posed by Sunni Islamic extremism in the months following 9/11. Khadr’s father, Ahmed Khadr, was allegedly the highest-ranking Canadian al Qaida member. When the Americans granted Canadian intelligence and law enforcement officials access to Khadr, the Service seized the opportunity to gather intelligence that would advance their own investigation.

The driving force behind CSIS’s interest in interviewing Khadr was to collect intelligence on a potentially serious terrorist threat and to provide advice to the Government of Canada accordingly. Although SIRC understands CSIS’s position—that it had reasonable grounds to travel to Guantanamo Bay to gather threat-related information—the Committee found that the decision to interview Khadr was prompted primarily by intelligence considerations.

As a result, SIRC believes that CSIS failed to give proper attention to two important extra-intelligence matters: human rights issues and Khadr’s age at the time that CSIS conducted its interview with him.

With respect to the first matter, SIRC examined the issues relating to the Service’s handling of situations where it interacts and shares information with foreign partners when there are potential human rights considerations. CSIS’s exchanges and cooperation with foreign partners have come under closer scrutiny since 9/11, as it has become apparent that intelligence agencies need to work together to combat terrorist threats that transcend geo-political boundaries. Although information-sharing with foreign partners is crucial for CSIS to fulfill its mandate, it has created some new difficulties, specifically when working with countries that do not share Canada’s respect for human rights.

When CSIS interviewed Khadr in February 2003, there was widespread media reporting of alleged mistreatment and abuse of detainees in US custody in Afghanistan and at Guantanamo Bay. In mid-2002, allegations were made by several individuals relating to their treatment by American soldiers after being taken into custody in Afghanistan in late 2001 and 2002. Meanwhile, the US detention facility at Guantanamo Bay opened its door amid controversy as many countries denounced the American government’s legal position, as well as its treatment of detainees.

SIRC did not find any evidence that CSIS took this into account in deciding to interview Khadr.

As a result of recommendations made by SIRC in 2004, and by Justice O’Connor in 2006 with respect to the case of Maher Arar, CSIS revised its policies governing the circumstances in which it shares information with foreign partners who are suspected of having questionable human rights records. CSIS and the Department of Foreign Affairs and International Trade (DFAIT) also signed a new protocol in 2007, to promote greater coordination and coherence across government in addressing issues that arise from consular cases involving Canadians detained abroad in cases related to suspected terrorism or national security. SIRC hopes that these developments will assist CSIS in the future in collecting intelligence while respecting human rights—particularly if confronted with situations similar to that of Khadr.

The second matter relates to Khadr’s age. It is well recognized in Canadian and international law that youth are entitled to certain fundamental rights because of their status as a minor. In Canada, this is expressed in provisions of the federal Youth Criminal Justice Act. The rights of children are also reflected in international conventions to which Canada is party, such as the UN Convention on the Rights of the Child.

SIRC found no evidence that CSIS, in deciding to meet Khadr at Guantanamo Bay, took into account the fact that their interview subject was still a youth at the time. In addition, youth radicalization is of growing concern to the Service. In light of these facts, SIRC recommended that the Service consider establishing a policy framework to guide its interactions with youth. As part of this, CSIS should ensure that such interactions are guided by the same principles that are entrenched in Canadian and international law.

Overall, SIRC believes that information-sharing with countries that have poor human rights records will continue to be a difficulty for CSIS until the Government of Canada resolves its seemingly contradictory position on information obtained from torture, versus the directions it provides to CSIS on carrying out its work.

This position places CSIS in an uncertain and vulnerable position when legal proceedings arise. Such was the case in the matter of Omar Khadr, in which Canadian courts found that DFAIT and CSIS had violated Khadr’s Charter rights by interviewing him and submitting the resulting information to US investigators. Underpinning the courts’ message is that CSIS can no longer view the activities it undertakes strictly through the lens of intelligence-gathering. It must also consider the wider environment and implications within which its work is carried out.

There is general agreement among intelligence experts and academics that the world of intelligence changed dramatically after 9/11. Although CSIS has taken important steps to tackle some of these resulting challenges, the matter of Omar Khadr suggests that changes in policies and procedures are but one component of a broader transition that needs to take place.

The time may have come for CSIS to undertake a fundamental reassessment of how it carries out its work, and shift its operational culture to keep pace with the political and legal developments of recent years. It is also important for the Service to demonstrate that it has the professionalism, experience and know-how required to make the difficult decisions that arise when conducting operations abroad. Indeed, there is mounting pressure and expectation on CSIS to consider extra-intelligence matters in fulfilling its mandate and carrying out its activities.

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SIRC Review: CSIS’s District Office Activities at Canadian International Airports

Context

A safe and secure civil aviation system is a vital component of Canada’s economy. Its security is therefore of great importance. Following the 1985 bombing of Air India Flight 182 and the 9/11 terrorist attacks, a number of new measures were introduced across Canada to improve aviation security. These included new rules for aircraft and airport construction, enhanced screening of people and goods at airports, requirements for air carriers to provide basic information on specific passengers or flights, and assigning undercover police officers to provide security on Canadian aircraft. Although not an exhaustive list, these initiatives illustrate how civil aviation security has evolved into a broad network of players and responsibilities involving regional, provincial and federal agencies, as well as air carriers and private security firms.

SIRC’s Review

CSIS plays an essential role within the complex web of airport security stakeholders by investigating threats to national security, as well as screening passengers travelling to Canada or airport employees requiring access to restricted areas. In addition, CSIS activities at Canadian airports support the aviation security framework in their respective regions.

For this review, SIRC examined CSIS’s activities at a selection of Canadian airports. The objective was to better understand and assess the role of CSIS at these airports, including how they manage their airport-related responsibilities and work with their airport partners.

Through constant contact with airport stakeholders, service personnel are able to transfer information to regions and headquarters, and act as conduits for information collection and sharing among airport partners. The effectiveness of their communications depends on maintaining solid relationships. SIRC observed that both of CSIS’s District Offices spent considerable time and effort developing and maintaining contact with both government and non-governmental airport stakeholders.

Further, SIRC observed that government and law enforcement partners in the airport environment frequently request the assistance of CSIS personnel to obtain national security advice related to airport operations. CSIS airport personnel are called on by airport stakeholders to provide briefings on threat-related issues, including information concerning CSIS’s national security mandate. Service personnel also provide advice to law enforcement agencies in response to any security breach or criminal incident occurring at an airport where a risk to national security is suspected. Airport immigration officers, as part of CSIS’s role in the Port of Entry Interdiction Program, also request the presence of CSIS personnel when conducting interviews of air travellers who are suspected of posing a potential threat to national security. During these interviews CSIS personnel conduct background checks to determine if the person has a history of threat-related activities. This expert advice is vital in securing airport entry points.

CSIS staff also spend considerable time and effort building and maintaining relationships within the airport environment. Through the development of these relationships, CSIS airport personnel are able to support regional and headquarters operational desks that require access to the airport infrastructure to carry out operations.

SIRC noted that CSIS staff who carry out activities at airports would benefit from greater exchanges with their counterparts who serve airports in other regions of Canada, and who carry out day-to-day functions similar to their own. SIRC believes that Service personnel whose main functions are to support airport security should be given the opportunity to collaborate and share best practices with their counterparts at other airports.

Overall, SIRC found that CSIS activities at airports reinforce the Service’s national security mandate. Moreover, this provides airport stakeholders with readily available access to CSIS expertise.

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SIRC Review: A CSIS Human Source Operation

Context

CSIS’s human source program is considered to be an effective and cost-efficient intelligence tool. Sources under this program are often able to provide insight about a target’s intentions — something that cannot be gained through the Service’s other methods of information gathering.

Legislative steps taken to date to fight terrorism have presented the Service with unique challenges in terms of the management of the human source program. One such challenge arose as a result of the Anti-Terrorism Act (2001). Due to its provisions, activities related to CSIS’s human source program that could benefit organizations listed as terrorist entities were, by definition, potentially criminal acts.

Aware of the legal complexities of this situation, CSIS determined that its human source program was carried out within the confines of the law.

SIRC’s Review

The Committee had briefly examined this issue in previous reviews. At that time, SIRC accepted the Service’s position that CSIS operational policy was sufficient to cover all aspects of human source management. Nevertheless, SIRC maintained that it would continue to monitor the matter to identify challenging issues when required.

As part of this commitment, SIRC believed it was important to re-examine the matter at this time. For this review, SIRC placed special emphasis on the appropriateness and adequacy of the human source program’s level of accountability within CSIS, and to the Minister of Public Safety.

In terms of accountability within CSIS, operational policy has not been updated to include any of the emerging factors that must be considered prior to determining whether actions carried out within the human source program are lawful. Nevertheless, SIRC found that a reporting structure was in place to ensure meaningful discussions take place within the Service about significant matters affecting management of the human source program.

In terms of accountability to the Minister of Public Safety, SIRC found that as a result of CSIS’s interpretation—and by extension, its implementation—of operational policy, there was no venue by which it could inform the Minister of the implications of the Anti-Terrorism Act on human source operations. SIRC suggested a process of regularly updating the Minister on this matter.

Since the passage of the Anti-Terrorism Act, the Government of Canada has listed over 40 entities. As Canada’s list of terrorist entities grows longer, commensurate growth is expected in the number of CSIS human source operations that could benefit listed organizations. It is important that CSIS be held to account for these activities.

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SIRC Review: CSIS Activities at a Foreign Station

Context

In fulfilling its legal and operational responsibilities, CSIS maintains a presence outside of Canada. With the exception of three CSIS Stations—London, Paris and Washington—the locations are classified. Traditionally, the primary function of each Station was to liaise with CSIS’s foreign partners and to conduct immigration screening. In addition, CSIS officials at headquarters used to manage operations abroad. Today, however, CSIS Stations take on larger roles in these operations. This expanded role coincides with an increase in the number of CSIS operations abroad, as underlined by former CSIS Director Jim Judd, who publicly acknowledged the Service’s involvement in operations in Afghanistan, Iraq and Lebanon.

SIRC’s Review

This year, the Committee examined the activities of a CSIS Station responsible for the Service’s relationships with agencies in a number of countries. While not one of CSIS’s busiest Stations, its work suggested that there was a high level of cooperation and information sharing. Although the Station under review was actively involved in operations, most continued to be managed by Canadian-based officials. Therefore, liaison work remained the Station’s mainstay. Nevertheless, SIRC noted that the Station is well positioned to fulfill its mandate in liaison and operations.

To be effective in managing foreign relationships, all CSIS Stations need to have efficient methods of exchanging information—both with CSIS and its partner agencies. SIRC identified three communications-related challenges at the Station under review. In two instances, the challenges posed an inconvenience but did not prevent the Station from doing its work. SIRC also noted that CSIS had already indicated that it is exploring options to address these matters.

The third challenge related to the exchange of information directly from CSIS Headquarters to foreign agency representatives—as opposed to the accepted practice of sending the information through the respective CSIS Station. SIRC indicated that it would like to see a more consistent use of the accepted practice for exchanging information (i.e., all messages should go through the respective CSIS Station).

When the Service engages in operations abroad, senior-level approval is required from within CSIS. In recent years, this approval process was delegated downwards. The new process, however, was ambiguous and in some instances led to an inconsistent approach when seeking approval. New processes were recently instituted by CSIS, but these were outside of the scope of SIRC’s work during the period under review. Nevertheless, it is worth noting that, in SIRC’s estimation, the devolution of authority is a significant development that warrants ongoing examination.

As CSIS Stations become more active operationally, they are addressing some of the needs that a separate foreign intelligence service would otherwise address. SIRC will continue to monitor the activities of both the Service and the Stations as they take on greater operational roles.

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SIRC Review: CSIS’s Scientific and Technical Services

Context

Of all the strategies used by CSIS to collect and access information, those that are technology-based are considered to be the most resource-intensive. Designing and deploying these technologies requires a wide range of specialties including forensics, mechanical engineering, programming and laboratory analysis. These are all within the responsibilities of CSIS’s Scientific and Technical Services (STS) Branch.

Although previous SIRC studies have examined aspects of the Service’s technical operations, the Committee believed it was appropriate to conduct a more thorough analysis of what goes on behind the scenes within CSIS before an operation takes place.

SIRC’s Review

The goal of this review was to better understand the nature and scope of the STS Branch’s work, including the challenges it faces in completing its work and how it cooperates with various partners. Intelligence technology is a complex business that requires continued access to new talent and innovative research and development, as well as the ability to develop products in a timely fashion—all while dealing with budgetary constraints. The STS Branch manages these challenges by working with Government of Canada partners and contracting-out to industry.

During the review, it became apparent to SIRC that not all of the challenges STS faces are within its control to address. Primary among these is the need to keep pace with rapidly developing technologies in a variety of disciplines. Associated with this is the absence of lawful-access legislation—requiring telecommunication service providers to design their products with built-in intercept capabilities. This is in sharp contrast to the experience of CSIS’s counterparts in the United States and Europe, where governments have legislated cooperation between the service providers and security intelligence agencies.

In Canada, opponents to lawful-access legislation cite a number of concerns, including:

• the appropriateness of compelling service providers to create intercept solutions;
  
  
• the scope of information that would be obtained and how it would be used; and
  
  
• whether restrictions or oversight would exist to prevent abuse.

Canada’s Privacy Commissioner has argued against various iterations of the proposed legislation, most recently stating that “lawful access raises fundamental issues for rights such as privacy and the ability to communicate freely.” The Committee recognizes it is important that Canadians engage in a healthy debate on this issue. However, SIRC is concerned that STS’s ability to perform certain investigative procedures will be constrained until the government is successful in enacting appropriate legislation.

There were no recommendations arising from this review.

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SIRC Review: CSIS’s Investigation into Domestic Extremism

Context

The Government of Canada considers domestic extremism a national intelligence priority. For this reason, CSIS identifies domestic, politically motivated violence as one of its highest priorities. The investigation of domestic extremism, however, presents a unique challenge to the Service. While it must gather information required to fulfil its mandate, CSIS must also refrain from infringing on Canadians’ protected rights to lawful advocacy, protest and dissent. Successfully negotiating the line between legal protest and activist extremism requires a specialized and in-depth understanding of advocacy movements, protest tactics and the ways in which otherwise well-intentioned protesters can become radicalized.

SIRC’s Review

This study had two objectives. First, SIRC examined CSIS activities in relation to domestic extremism, taking into account the overlap with criminal investigations and lawful advocacy, protest and dissent. SIRC found that CSIS had allocated appropriate resources to deal with the potential threat from domestic extremism. Moreover, CSIS had developed significant expertise regarding potential threats from domestic extremism, as well as a series of balanced measures to ensure Canadians’ right to legal dissent.

However, SIRC found that some of the strategies employed by the Service to analyze the threat environment could benefit from reformulation. Several key concepts to evaluate the potential threat are not universally understood, commonly defined or used consistently. SIRC recommended that the Service establish an accepted terminology and gain a deeper understanding of the parameters of the threat environment to isolate and identify indicators of radicalization.

The second objective was to examine CSIS investigations of special events (i.e., an event that provides a heightened opportunity for carrying out threat-related activities). In that regard, the Committee examined the plans and priorities put in place by the Service for the 2010 Olympic and Paralympic Winter Games in Vancouver, and found them to be on-schedule and well-conceived. However, several of the concerns raised in the context of domestic extremism investigations—key concepts not being commonly defined or used consistently—applied equally to the Service’s assessment of the threat environment surrounding the Olympic and Paralympic Games.

It is important to note that CSIS’s understanding of the Olympics threat environment continues to evolve and its efficiency during the 2010 Games will depend on its ability to assess accurately the movements associated with domestic extremism. SIRC believes that the strategies recommended to address the concerns highlighted in the domestic extremism investigation will also inform CSIS’s preparations for the Olympics.

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SIRC Review: The Case of Paul William Hampel

Context

Former CSIS Director Jim Judd has publicly acknowledged that foreign powers are becoming more sophisticated in conducting espionage within Canada’s borders. A recent case of Russian espionage in Canada underlines this concern. In November 2006, a Russian spy, who had been using the name Paul William Hampel, was detained by Canadian officials in Montreal as he was about to board an international flight. The circumstances surrounding Hampel’s detention received significant media attention, which reported that he was a Russian intelligence officer who had been residing in Canada under a false identity since 1995. However, there was no reporting of the nature and scope of CSIS’s involvement in this high-profile and sensitive matter.

SIRC’s Review

The objective of SIRC’s review was to understand CSIS’s involvement in the Hampel case. The Committee found that after becoming aware of Hampel’s existence, CSIS conducted an investigation to determine the nature and scope of his espionage activities.

During the course of the investigation, the Service gathered important information to advise the Ministers of Public Safety and Citizenship and Immigration that Hampel was a known member of Russia’s Foreign Intelligence Service and had used a fraudulent Canadian identity to further Russian espionage activities. In accordance with the Immigration and Refugee Protection Act, the Ministers signed a security certificate, thereby initiating the process by which Hampel was eventually deported to Russia.

As a result of the Hampel investigation, CSIS gained additional insights into the espionage threat posed to Canada by the activities of the Russian Intelligence Services. This will assist CSIS in investigating similar threats should they arise in the future.

There were no recommendations arising from this review.

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