Summary of Reviews, 2006-2007
SIRC carries out reviews to determine whether CSIS has acted appropriately in the performance of its duties and functions, and met all requirements set out in law, Ministerial direction and operational policy. SIRC’s reviews are not intended to provide oversight of current CSIS activities, but rather to examine CSIS’s performance on a retrospective basis. The findings of an individual review are not intended to be a judgement on CSIS’s operations as a whole.
Each review provides a “
snapshot” of a Service operation or program at a defined period in time. The reviews may include findings or recommendations. SIRC’s recommendations are not binding; rather, its role is to advise and comment, so that CSIS may take steps to modify policies and procedures as needed. SIRC’s reviews are sent to the CSIS Director, the Inspector General of CSIS, and in the case of Section 54 reports, directly to the Minister of Public Safety.
SIRC completed nine reviews during 2006-2007. In addition, SIRC completed its annual review of foreign and domestic arrangements, the CSIS Director’s annual report and the certificate of the Inspector General.
Section 54 Report
This review concerned CSIS’s role in the case of Mohammed Mansour Jabarah, an admitted al Qaida member, who planned to bomb American and Israeli embassies in Southeast Asia. Despite his admissions, he could not be charged under the Criminal Code, since all of his terrorist activities pre-dated Canada’s Anti-Terrorism Act. CSIS officials travelled to Oman where Jabarah had been apprehended and in April, 2002 arranged for his return to Canada. CSIS then engaged in consultations with him following which Jabarah signed an agreement to facilitate his entry into the U.S. In May, 2002, CSIS helped to arrange his transportation to the U.S. on a Canadian government-owned aircraft. Jabarah subsequently pleaded guilty to a number of terrorism-related offences but has not been sentenced and remains incarcerated there.
SIRC examined CSIS’s role during Jabarah’s time in Oman; after his return to Canada; and his transfer to American custody. Because of the nature and gravity of certain issues, SIRC also obtained legal advice from the Honourable Gérard LaForest, C.C., Q.C., a former member of the Supreme Court of Canada and a recognized expert on the Charter. SIRC’s review raised questions regarding CSIS’s contention that Jabarah’s decisions were made freely and voluntarily. The Committee concluded that Jabarah was “
arbitrarily detained” by CSIS in violation of section 9 of the Charter and that his right to silence as protected by sections 7 and 11 (c), as well as his right to counsel under section 10, was breached. Furthermore, his right to remain in Canada as protected by section 6 of the Charter (mobility rights) was violated. SIRC believes that section 12 of the CSIS Act does not authorize all aspects of this investigation, and that CSIS strayed from its security intelligence mandate into the area of law enforcement.
The Committee made six recommendations, principal among them the need to obtain formal legal advice from the Department of Justice in operations where an individual is questioned in circumstances which may give rise to a detention and in all occasions when it is unclear whether the Service’s activity falls within its statutory mandate. SIRC also made several recommendations designed to improve the Service’s records management practices.
Review of a security liaison officer (SLO) post
CSIS maintains a number of SLO posts outside Canada. This year, SIRC reviewed a recently established post and found it was managed effectively and that its operations were in compliance with the CSIS Act, Ministerial Direction and CSIS operational policy and guidelines.
CSIS’s assessments of agencies with which the Service cooperates were, for the most part, completed accurately and submitted in a timely manner. A new Section 17 arrangement with an organization in the region was established in accordance with Ministerial direction and operational policy. All exchanges of information with foreign agencies included the appropriate caveats. Finally, SIRC noted that the post complied with a CSIS directive not to provide information to or cooperate with a specific foreign agency during the review period, because of concerns about its reliability.
Review of activities and investigations in a CSIS regional office
SIRC’s regional reviews provide insights into how investigations authorized by CSIS Headquarters are implemented in the field, and help SIRC to gain a better understanding of a region’s activities, priorities and challenges. This review examined CSIS’s smallest regional office and found that its operations were fully in accordance with applicable laws, directions and policies. Although there were a few administrative errors noted in certain human source files, SIRC considered these minor. CSIS had reasonable grounds to suspect that the targets of authorized investigations in this region posed a threat to the security of Canada and the intrusiveness of the techniques used was proportionate to the suspected threat.
Review of a counter-terrorism investigation
This review examined a long-running CSIS investigation of two terrorist entities listed under the Criminal Code. Its purpose was to learn whether there was any formal presence of these Middle East-based terrorist groups within Canada and to identify any Canadian support networks. Generally, the Service’s investigations of targets were fully in accordance with the CSIS Act as well as applicable Ministerial direction and operational policy. However, SIRC noted one case where policy requirements were not met concerning the need to obtain special authorization to investigate individuals involved simultaneously in lawful advocacy, protest or dissent and suspected threat-related activities. SIRC also noted that, as a result of ineffective CSIS / RCMP coordination, CSIS lost track of an individual for several months. Although CSIS had not identified any formal presence of these groups in Canada by the end of the review period, the Service had launched several new investigations of individuals believed to be associated with these two terrorist organizations.
Review of a Section 16 activity
Under Section 16 of the CSIS Act, either the Minister of Foreign Affairs and International Trade or the Minister of National Defence can request CSIS to collect foreign intelligence within Canada. Foreign intelligence relates to the capabilities, intentions or activities of foreign states or individuals, and may help to advance Canada’s foreign and defence policy goals.
This particular review concerned CSIS’s collection of foreign intelligence related to “
Country A.” SIRC found that the Service’s activities met the requirements of the CSIS Act, in that it did not involve any targeting of Canadians or Canadian organizations. The application and use of Section 16 warrant powers and the management of the human sources reviewed, were also appropriate and in accordance with legal and policy requirements.
Review of a counter-terrorism investigation
This was SIRC’s first review of suspected threat-related activity in Canada, of a foreign-based group known for its support of al Qaida. Overall, SIRC found that CSIS complied with the CSIS Act, Ministerial direction and operational policies in its investigation of certain individuals. CSIS determined that the group was not involved in terrorist activities in Canada and did not constitute an active, operational terrorist cell.
Review of CSIS’s collaboration and exchanges of information post-9/11
This review examined CSIS’s relationship with one foreign agency and the RCMP. It was prompted by increasing exchanges of information and the growing role of the RCMP in investigating national security threats, following the passage of the Anti-Terrorism Act.
With respect to the foreign agency, CSIS’s exchanges were within the scope of its foreign arrangement and complied with the CSIS Act, Ministerial direction and operational policy. SIRC observed some internal mis-communication which resulted in an SLO receiving incorrect tasking. Domestically, CSIS’s exchanges with the RCMP were fully in accordance with legislation and relevant policies, but SIRC noted two instances that created significant friction during the 2005 review period. The first was a failed RCMP prosecution using CSIS information; the second concerned the activities of a CSIS human source, which complicated an RCMP investigation. Since then, there have been positive developments in the CSIS / RCMP relationship, such as the signing of a new Memorandum of Understanding in 2006 and the establishment of a working group to review and improve the process for using intelligence in criminal prosecutions of national security offences.
Review of security screening outside the federal government
CSIS’s security screening program has two main goals: to prevent an individual who is a security risk from entering or receiving status in Canada; and to prevent anyone of security concern from gaining access to sensitive government assets, locations or information. With respect to the latter, CSIS provides assessments to foreign agencies concerning Canadians who are candidates for employment in a foreign country and who may require access to classified material; and also provides security assessments of individuals requiring access to sensitive sectors such as airports, nuclear sites, the Parliamentary Precinct, etc. Although CSIS conducts security screenings and provides advice, the ultimate decision of whether or not to grant a clearance rests with the client.
SIRC made two recommendations stemming from this review. Because CSIS’s Information Briefs do not differentiate between the varying degrees of risk posed by security screening subjects, SIRC recommended that policy be created to make these briefs more uniform and consistent. SIRC also recommended that CSIS obtain written consent forms from foreign agencies, when it is asked to undertake security assessments on their behalf.
Review of the CSIS Counter Espionage Investigations desk
This desk was formed in 2002 to compartmentalize highly sensitive counter-espionage investigations which could lead to the prosecution of individuals linked to hostile foreign intelligence services. SIRC examined two investigations managed by the desk and found that they were fully in accordance with the CSIS Act as well as applicable Ministerial direction and operational policy. In the first investigation, SIRC found that close cooperation between CSIS and its domestic and foreign partners allowed a serious security issue to be resolved in a timely manner. In the second case, CSIS’s disclosure of information allowed the RCMP to take action against an individual engaged in unlawful activities.
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